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Ninth Circuit Court of Appeals Adopts Legal Action Center’s Arguments
Washington D.C. - In a decision issued today, the Ninth Circuit Court of Appeals adopted the arguments of the Legal Action Center (LAC), of the American Immigration Council, that the United States Citizenship and Immigration Services (USCIS) unlawfully imposed extra-regulatory requirements on a petition for a worker of “extraordinary ability” (EB-1). The case in question, Kazarian v. USCIS, involves a theoretical physicist whose employment-based visa was denied because he did not demonstrate “the research community’s reactions to his [scholarly] publications” - an arbitrary requirement with no justification in the law.

In today’s decision, the Ninth Circuit amended its previous ruling and reversed the agency’s interpretation. The court held that “neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].” The Ninth Circuit also found that the agency impermissibly added another unlawful criteria as well.

The case stems from a 2009 Ninth Circuit Court ruling in favor of USCIS. Following that ruling, the LAC and NAFSA submitted an amicus brief in support of rehearing Kazarian’s case. The LAC argued that USCIS erred by adding an additional requirement that did not exist under the law. Kazarian was represented pro bono in the rehearing petition by Wolfsdorf Immigration Law Group.

Today’s decision sends a clear message that USCIS must follow the law and provide a fair process. Unfortunately, this case is not an isolated incident and not the first time the LAC has successfully challenged the policies and practices of the agency. The LAC will continue to challenge similar attempts by the government to operate outside of the law.

“Immigration law is complicated enough without the immigration agency imposing additional requirements and burdens of proof that aren’t in the statute or regulations and that ultimately undermine the goal of attracting the best and brightest to our shores,” said Benjamin Johnson, Executive Director of the American Immigration Council.

To read the decision in its entirety visit: http://www.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdf -

Legal Action Center press release

Categories: Employment Immigration, Immigration Litigation and Removal, General |

Shortly after a devastating earthquake destroyed the homes and lives of innumerable Haitians, Department of Homeland Security Secretary Napolitano announced the designation of Temporary Protective Status (TPS) for the roughly 100,000-200,000 eligible Haiti nationals currently in the United States as of January 12, 2010. As the world continues to respond with an outpouring of relief efforts, it is important to understand the facts on what TPS is, what it isn’t, how it works and who is eligible.

The Immigration Policy Center (IPC) released a fact sheet which provides background information vital to understanding TPS, including:

• Temporary Protected Status (TPS) is a temporary, humanitarian form of relief from deportation that does not include granting permanent residence or “amnesty” to unauthorized immigrants in the United States.
• The 100,000-200,000 Haitian immigrants whom the Department of Homeland Security (DHS) estimates are now in the United States on a temporary basis or without authorization will not be subject to removal as long as there is no functioning country to which they can return, and provided that they do not have criminal records.
• The Secretary of Homeland Security, “in consultation with the Secretary of State, can issue TPS for periods of 6 to 18 months and can extend these periods if conditions do not change in the designated country.”
• Major requirements for TPS include compliance with nationality and physical presence criteria (such as evidence of a passport issued by the designated country), continuous physical presence in the United States since the date TPS went into effect, timely registration, and being otherwise admissible as an immigrant.

To view the fact sheet in its entirety, see:

• Granting Refuge: Temporary Protected Status (TPS) for Haitians in the United States

Categories: Legislation and Policy, Immigration Litigation and Removal, Family Immigration, Blogroll, General |

The American Immigration Council applauds today’s U.S. Supreme Court decision ensuring that immigrants facing deportation have fair process in the review of their cases. The Court ruled that individuals who seek to reopen their deportation orders have the right to appeal to the federal courts if the immigration court refuses to hear the appeal. The Court’s decision protects immigrants’ access to federal court review and affirms the role of the courts in our system of checks and balances on government power.

The case, Kucana v. Holder, was brought by an asylum seeker who filed a motion to reopen his removal proceedings because of changed circumstances in his request for asylum. A motion to reopen is a procedural mechanism that allows individuals to present new evidence to an immigration judge.    “The Supreme Court’s decision reaffirms that immigrants are entitled to fair process” said Beth Werlin, Attorney at the American Immigration Council’s Legal Action Center. “Given the stakes involved in immigration cases, federal court review is an important check on the executive branch and is a necessary layer of protection for individuals who are facing removal from the United States.”    

Read more about the Supreme Court’s decision at the Legal Action Center’s Supreme Court Update webpage.

Categories: Legislation and Policy, Immigration Litigation and Removal, General |

On June 26, 2009, the ACLU of Texas made the following, highly-anticipated announcement regarding the settlement of a pending case in Brownsville, Texas, involving Mexican Americans who were categorically denied U.S. passports simply due to the fact that they were born by midwife:

State Department Agrees To Fair Issuance Of Passports To Mexican Americans (6/26/2009)

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

McALLEN, TX –The U.S. Department of State (DOS) has agreed to implement new procedures designed to ensure the fair and prompt review of U.S. passport applications by Mexican Americans whose births in Texas were attended by midwives. Under the agreement, no eligible applicant should be denied a passport.

The procedural changes are the result of a settlement agreement following a class action lawsuit filed by a coalition of civil rights and legal organizations including the American Civil Liberties Union, the ACLU of Texas, the international law firm Hogan & Hartson LLP, and Refugio del Rio Grande, Inc.

“The new procedures agreed to by the government are aimed at restoring the core American values of fairness and equality to the ways in which it issues U.S. passports,” said Vanita Gupta, staff attorney with the ACLU Racial Justice Program who worked on the case along with the ACLU Immigrants’ Rights Project. “Citizens will no longer be denied a passport solely because of their race, ancestry or because they happened to be born at home with a midwife.”

The settlement comes at a particularly crucial time. The Western Hemisphere Travel Initiative (WHTI), which went into effect June 1, requires every American who wishes to exit or enter or the United States to have a valid U.S. passport or passport card. Previously, citizens needed only a valid U.S. driver’s license to travel between the U.S. and Mexico or Canada.

“For U.S. citizens who live in the Southwest, a passport is now as necessary as a driver’s license,” said Lisa Graybill, Legal Director for the ACLU of Texas. “We are relieved that US citizens who work, shop, receive medical care, and have family on both sides of the border will no longer be in danger of losing their jobs, risking their health, or being separated from family members simply because of the circumstances of their birth.”  

Although midwifery has been a common practice for more than a century – particularly in rural and other traditionally underserved communities – the lawsuit charged that DOS was violating the due process and equal protection rights of virtually all midwife-delivered U.S. citizens living in the southern border region by forcing them to provide an excessive number of documents normally not required to prove their citizenship. Then, even after the applicants supplied further proof of their citizenship, DOS responded by summarily closing their applications without explanation.

“Because DOS lacked clear standards, countless passport applicants were treated arbitrarily, said Lisa Brodyaga, the attorney for Refugio del Rio Grande. ”With this settlement, applicants born with midwives are guaranteed the same full and fair consideration of their applications as everyone else.  This is especially critical now given that the June 1st deadline of WHTI has passed.”

The lawsuit also charged that the Department’s practices were violating the Administrative Procedure Act, which was enacted as a safeguard against arbitrary and capricious government agency procedures. During the course of the litigation, several of the plaintiffs were granted passports even though they had been denied previously on the very same showing of evidence of citizenship. 

Pending court approval, DOS will train its staff on how to fairly weigh all the evidence provided in passport applications and how to avoid improperly subjecting people whose births were assisted by midwives in Texas and along the U.S.-Mexico border to heightened scrutiny in reviewing their passport applications. All denials will be automatically reviewed by a three-member panel comprised of experienced DOS staff members, and if that panel also denies an application, DOS must communicate the specific reasons for the denial to the applicant. The applicant can then challenge the denial and ask DOS to reconsider its decision.

Additionally, anyone birthed by a midwife who has filed an application for a passport between April 2003 and September 15, 2008 and, with a few exceptions, whose application was not expressly “denied,” can re-apply for free. DOS will be setting up mobile units across the border on specific dates to assist those reapplying.

DOS has also agreed to restrictions on a list it maintains of suspect midwives and other birth attendants, which it purported to use to justify its discriminatory policies. Importantly, DOS will not deny a passport application simply because the applicant’s birth attendant or midwife is on the list. Furthermore, DOS will conduct regular reviews of the list to ensure that no one is included unless DOS has a reasonable, lawful basis to do so. These measures will help ensure that DOS does force passport applicants to take unnecessary measures to prove their citizenship and does not arbitrarily deny passports merely because the individual was born to a suspect midwife. 

“We’re very happy that we were able to come to an agreement with the government that recognizes every U.S. citizen’s constitutional right to be treated with fairness and equality,” said Adam K. Levin of Hogan & Hartson. “You can’t deny basic rights to an entire group of U.S. citizens because their parents did not deliver them in hospitals.”

…. 

To read the announcement and find links to the complaint and settlement, click here.

By Michelle Richart

Categories: Legislation and Policy, Immigration Litigation and Removal, Family Immigration, Blogroll, General |

On July 1, 2009, Attorney General Holder appointed Brian M. O’Leary as the new Chief Immigration Judge.  O’Leary has been working with the EOIR and BIA since 1994.  Prior to then Judge O’Leary worked for many years with the legacy INS.  To read the Department of Justice announcement, click here.

By Michelle Richart

Categories: Immigration Litigation and Removal, Blogroll |

Reuniting Families Act (S. 1085) was introduced in the Senate on 5/29/2009.

The bill aims to help family members reunite in America in a timely manner by reforming America’s family-based immigration system to end lengthy separations of loved ones, promote family stability and foster the economic growth.

For the full text, click here

Categories: Immigration Litigation and Removal, Family Immigration, Firm News, Blogroll, General |

In an immigration policy update issued on May 7, 2009, the National Immigration Forum writes:

Senate begins consideration of comprehensive immigration reform: On Thursday, April 30, the Senate Immigration Subcommittee held its first hearing to consider how to fix the immigration system. The topic, “Comprehensive Immigration Reform in 2009, Can We Do It and How?”  Witnesses presented compelling testimony from a range of perspectives–faith, business, labor, law enforcement, and civil rights. 

The first panel consisted of former Federal Reserve Chairman Alan Greenspan; J. Thomas Manger, Police Chief for Montgomery County, Maryland (also speaking on behalf of the Major Cities Chiefs); Dr. Joel Hunter, Senior Pastor of Northland Church in Longwood, Florida, and a member of the President’s Advisory Council on Faith-Based and Neighborhood Partnerships; and Jeff Moseley, President and CEO of Greater Houston Partnership in Houston, Texas.

Greenspan noted that in this economic crisis, immigration has slowed, but that he hoped that Congress will reform the immigration system by the time this crisis fades. He talked about the role undocumented immigrants have played in the U.S. labor force, accounting for 1 in 6 new workers from 2000 to 2007. He also devoted much of his time speaking of the need for high-skilled immigrants to our economy.

Chief Manger told the Senators that one compelling reason for comprehensive immigration reform is that “[i]t is tremendously challenging to deliver police service to a community of people who are afraid to have any contact with the police.” He went on to list a host of problems arising from our broken immigration system that police agencies must deal with.

Dr. Hunter gave one of the most eloquent testimonies I have heard concerning the hardship caused by the broken immigration system. He told the Senators that, “[t]he need for comprehensive immigration reform is to create a path that will help people do the right thing.”

Mr. Mosely talked about the hardship imposed on business due to the broken immigration system. He noted that the legal channels for both low-skilled and high-skilled immigrant workers are insufficient for the needs of our economy, and the fact that there are 12 million undocumented persons here is testament to that fact. Even with unemployment up at the moment, the idea that removing the undocumented would make jobs available for American workers assumes “…that an unemployed worker in New York’s financial sector would be willing to relocate to do agricultural work in California or construction work in Houston….”

A second panel consisted of Eliseo Medina, Executive Vice President of the Service Employees International Union, representing the labor view; Wade Henderson, President and CEO of the Leadership Conference on Civil Rights presenting the civil rights perspective; and Doris Meissner, formerly Commissioner of the Immigration and Naturalization Service and now Senior Fellow with the Migration Policy Institute. The one witness testifying against sensible reform was Kris Kobach of the University of Missouri Law School and formerly with the Department of Justice under Attorney General John Ashcroft.

All of the testimony, and a recording of the Webcast, is available here:

http://judiciary.senate.gov/hearings/hearing.cfm?id=3793

Categories: Employment Immigration, Legislation and Policy, Employer Compliance, Immigration Litigation and Removal, Family Immigration, General |

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that the revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. The revision date is printed on the lower right-hand corner of the form. Employers may no longer use previous versions of the Form I-9.

USCIS also updated the Handbook for Employers – Instructions for Completing Form I-9 to reflect the requirements of the revised Form I-9.

Click the link below for the full announcement

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=37a38d8b3b760210VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

Categories: Employer Compliance, Immigration Litigation and Removal, Blogroll, General |

FACT: Engaging in 287(g) programs can be costly to the local police department. Three months after Arizona Sheriff Joe Arpaio of Maricopia County partnered with ICE, the office had created a $1.3 million deficit. By the end of the first month of the partnership, deputies began working 4,500 extra hours every two-week pay period (compared to 2,900 extra hours previously). In April 2007, deputies worked more than 9,000 overtime hours at a cost to the county of $373,757.

FACT: Staffing the immigration beat pulls police officers away from their other duties. In Maricopa County in 2006 and 2007, patrol cars arrived late two-thirds of the time on more than 6,000 of the most serious calls for service. In order to staff the immigration team, Sheriff Arpaio pulled deputies off patrol beats and used them to staff the human-smuggling unit. Every patrol district, the trails and lake divisions, and central investigations bureau all lost deputies. Armed with fewer deputies, the districts’ response times to emergency calls increased.

More mythbusting facts on this issue can be found in the IPC’s Immigration Fact Check entitled “What Happens When Local Cops Become Immigration Agents?”

AILA InfoNet Doc. No. 09030461 (posted Mar. 4, 2009)

Categories: Immigration Litigation and Removal, Blogroll, General |

Name Checks Pending More Than Six Months Now Completed

On 3/4/09 USCIS announced that it eliminated the backlog for FBI name checks pending more than 6 months. The next goal is to complete name check requests pending more than 90 days by 5/30/09.  For the full press release, click here.

Categories: Employment Immigration, Immigration Litigation and Removal, Family Immigration, Medical Professionals, General |