Daniel Shanfield, Esq. Immigration Law & Defense Blog

On Gender Asylum, HIV Travel Ban, Obama Adminstration Moves (Slowly) to Improve Ties with Immigrants, Women, LGBT Supporters

The Obama Administration did the right thing on immigration last week, addressing demands from two key political constituencies feeling somewhat jilted since Inauguration Day, liberal women's groups and LGBT voters.  On the women's front, the Justice Department is set to issue a long-awaited decision on gender based asylum claims.  Separately, in a major shift aimed at ending stigma against people with HIV/AIDS -- a stigma rooted in Jesse Helms' era anti-gay bias -- the Obama Administration, is declassifying HIV infection as a health related ground of inadmissibility for visitors to the United States.

On the asylum side, the Justice Department's decision relates to a case pending before DHS and the Immigration Court's since 1995, Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008).   Ms. Alvarado is a native of Guatemala who suffered years of brutal abuse at the hands of her husband, and ex-Guatemalan army soldier.  Her story was the subject of a PBS Documentary, Destination America.

As explained by Prof. Karen Musalo, Ms. Alvarado's attorney and Director of the Center for Gender and Refugee Status at UC Hastings Law:

Despite her repeated attempts to obtain protection from the [Guatemalan authorities], the police and the courts refused to intervene. When she ran away, her husband found her and beat her unconscious. Desperate to save her life, Ms. Alvarado finally fled to the United States, leaving her two children with relatives.

In 1996, a San Francisco immigration judge granted Rodi asylum. But the immigration service chose to appeal . . . In June 1999, the BIA reversed the decision of the immigration judge, and ordered that Ms. Alvarado be deported to Guatemala.  The decision in Matter of R- A- led to denials of asylum protection to women fleeing a broad range of serious human rights violations, including trafficking for prostitution, gang rape and honor killing, as well as domestic violence.

In January 2001, then-Attorney General Janet Reno responded to a nationwide campaign of outrage and concern by overturning the BIA's decision. She ordered the BIA to issue a new decision in Rodi's case after the issuance of proposed Department of Justice regulations on the subject of gender asylum. Those regulations have never been finalized by the Bush Administration.  In January 2005, Attorney General Ashcroft remanded Matter of RA back to the BIA.  

In September 2008, Attorney General Mukasey certified Matter of R-A- to himself and issued a decision ordering the BIA to reconsider it, removing the requirement that the BIA await the issuance of proposed regulations. This decision meant that the BIA could immediately begin to consider Matter of R-A-, as well as many other cases that had been placed on hold pending a decision in Matter of R-A-. However, because the case was litigated prior to the BIA decisions requiring an asylum applicant to establish the social visibility and particularity of the social group to which she belongs (see In re C-A-, 23 I. & N. Dec. 951 (BIA 2006), In re A-M-E- & J-G-U, 24 I. & N. Dec. 69 (BIA 2007), In re S-E-G-, 24 I. & N. Dec. 579 (BIA 2008)).

In July 2009, the Department of Homeland Security, which had originally opposed asylum in R-A-, submitted argument in a separate case, In re L-R-, (BIA 2009).  That case involved a Mexican woman fleeing domestic violence. The DHS in its L-R- brief demonstrated a marked evolution in its gender persecution analysis:

DHS accepts that in some cases, a victim of domestic violence may be a member of a cognizable particular social group and may be able to show that her abuse was or would be persecution on account of such membership. This does not mean, however, that every victim of domestic violence would be eligible for asylum . . . The evidence in this case at least raises the possibility that [the persecutor] believes that women should occupy a subordinate position within a domestic relationship and that, in his eyes, the female respondent remains in this subordinate position in the relationship even though she has physically separated from [the persecutor]. The evidence further suggests that [the persecutor] believes that abuse of women within such a relationship can therefore be tolerated, and that social expectations in Mexico reinforce this view . . .

Accordingly, a valid social group could comprehend "Mexican women in domestic relationships who are unable to leave" or  "Mexican women who are viewed as property by virtue of their positions within a domestic relationship."

Now, applying this same analysis to R-A-, the San Francisco Immigration & Customs Enforcement Office of Chief Counsel, in a one-page pleading to the Immigration Court, has assented to a grant of asylum for Ms. Alvarado. The Court's favorable decision (and final resolution) is expected shortly.

Building on the positive news in R-A-, the Obama Administration last week issued new rules declassifying HIV/AIDS as a bar under INA s. 212(a)(1)(A) to visitors and immigrants coming to the United States.  Clearly a vestige of anti-gay prejudice, the ban, which has been in place since 1993, has prevented any international conference related to HIV/AIDS research from taking place on U.S. soil.

Repeal of the HIV exclusion has been a long time coming, particularly in light of the United States' fringe status on this issue, one of only among twelve countries in the world imposing such a ban. Its repeal has been hailed by the international community, and now China and the Ukraine are considering following suit.

What do these two developments portend?  Not exactly "Change", but maybe an evolution in attitude within the White House, DHS and DOJ, recognizing America's isolation on these issues within the international community.  We can only hope these values trickle down to the agency level.  Now, the Obama Administration could have made a bigger splash, implementing sweeping regulations on gender-based persecution, or working to end the ban on gay partners as spouses under the Defense of Marriage Act.  That he opted to approach these problems piecemeal is further indication of Obama's governing style, to pursue change slowly, in hopes that policy can shape values, and nudge the Nation along accordingly.

As for the political calculus, these policy choices were initiated under the Bush Administration, required no Congressional approval, cost the Administration nothing politically, and dovetail with efforts to mend Obama's sometimes challenged relationship with progressive women's groups, immigrants and LGBT voters.  It sounds like a no-brainer.

Returning Legal Permanent Residents with Prior Crimes: Avoiding Traps and Pitfalls

A recent client of ours, a resident of California's Central Valley and 19 year U.S. legal permanent resident (LPR), was returning home via Phoenix International Airport after attending his father's funeral in Mexico.  At the Phoenix airport, Customs Border Protection discovered that he had a nine-year old conviction for simple possession of cocaine.  CBP took him into custody, away from his wife, child, construction job, and new home, and remanded him to the Florence Immigration Detention Center outside of Phoenix.  He was detained without bond, and as an arriving alien beyond the custody authority of the Immigration Judge, he could not be released, even though he clearly qualified for relief from deportation, had an otherwise spotless criminal record, and had a family at home who desperately needed him.

Our office succeeded in blocking his deportation and getting back his green card.  However, the months he spent incarcerated had plainly left its scars on my client, his wife, and his young child.

Our client's situation is not uncommon.  DHS is subjecting legal permanent residents to an ever-tightening noose, with the goal of identifying, detaining, and removing those non-citizens convicted of, or who are suspected to have committed, crimes in the U.S. or abroad.  

In addition to actively investigating certain priority criminal violators, DHS has set up a series of passive "checkpoints" to identify non-citizens with criminal backgrounds.  For instance, LPRs are required to submit to biometrics when applying for permanent residency, renewing an expiring I-551 green card, applying for a re-entry permit for extended foreign travel, when applying to remove the condition on permanent residency, or pursuing naturalization.  They are also subject to investigation as petitioners for family members under the Adam Walsh Act, which prohibits citizens and permanent residents convicted of certain sex offenses from petitioning family members for an immigrant visa, but in the course of DHS investigation, may also be found-out in connection with other offenses, and thereby subject to possible removal.

As federal and state law enforcement agencies have in the last several years effectively linked up their offender databases, these checkpoints have become extremely effective at identifying LPRs with law enforcement records, and at mistakenly sweeping up immigrants who do not.

The most perilous checkpoint however for LPRs is the Customs and Border Protection window at the U.S. airport or port of entry.  Now, under US Visit and the DHS Northern Hemisphere Travel Initiative, returning LPRs must present their passports and I-551 green cards to gain entry into the United States, as well as submit a fingerprint scan.  Now linked to the massive (and massively inaccurate) federal-state law enforcement database, LPRs who previously came and went in and out of the U.S. are now finding themselves being referred for deferred inspection and even being referred for removal and deportation proceedings, based on long ago arrests and convictions.  

Practically all of our client who have faced this calamitous process had no idea what they were in for when they decided to travel abroad temporarily form the U.S. Many of these clients had long ago criminal issues that they thought were completely resolved when they did their time in jail and completed probation, or when their charges were dismissed.  Most of them had also travel abroad many times before without incident, and believed their permanent residency to be in good standing.  Once taken aside at the airport, and told they were facing deportation from the U.S., these clients are devastated to learn that they could lose everything they had built up in the United States.

Returning LPRs however are not just vulnerable to trouble for criminal convictions.  DHS may also initiate a case for removal for crimes that a CBP officer can get the LPR to confess to, whether actually committed or not.  Under INA s. 212(a)(2)(A)(i), any LPR who merely admits to having committed either a crime involving moral turpitude or an offense relating to a controlled substance is subject to exclusion from the United States and potential loss of permanent residency.  In a recently publicized DHS training article for CBP inspectors, DHS officers are instructed on how to intimidate and confuse returning LPRs, under the difficult and fearsome circumstances of a CBP inspections interrogation, into confessing crimes that they might have been arrested for but subsequently cleared.  To quote,

For example, an officer encounters an alien with an arrest for cocaine possession but no conviction. He should not ask: "Have you ever knowingly possessed a controlled substance?" Rather, he should assert: "I see you've been involved with cocaine. Are you still dealing drugs?" When confronted with the very serious offense of trafficking in cocaine, many criminal drug users, will immediately deny this offense while equivocating on the lesser offense of cocaine possession. Experience indicates that if this individual actually was involved with cocaine, they will likely admit to it if questioned properly.

Sounds straight forward, doesn't it?  Get the LPR to admit to a crime he committed, even if he wasn't convicted for it.  And yet, the literature on false confessions is already well established.  And so are the punitive conditions faced by arriving non-citizens at deferred inspections that tend to promote baseless admissions.  Clients have advised our firm that upon arriving exhausted from lengthy travel, of being forced to wait hours, cooling their heels, awaiting their CBP interrogator.  While waiting, there is often little or no food provided, restricted access to medication and restrooms, denial of sleep, and no contact with family or an attorney who might help. 

Worse is the deception practiced by CBP officers.  Clients have advised us that they believed themselves compelled to agree with whatever the CBP inspector asked, and of being threatened with deportation if they refused to cooperate. And why cooperate?  Based on what our clients have told us, because of false promises that by going along with the CBP inspector, they would be allowed to go back to their families, their homes, and their jobs.  I suppose that this is what is meant by proper questioning. 

In the end, DHS will continue to innovate novel control methods for immigrants in the United States.  It's up to lawyers and advocates to defend our clients' rights under these difficult and overreaching conditions, and most importantly, to educate the immigrant community before trouble strikes. For immigrants with criminal issues, the most important step they can take to protect themselves is to consult with an attorney or legal service organization on how best to navigate these checkpoints.  Often, immigrants can do quite a lot in preparation for these encounters with DHS, first to mitigate the damage and preserve their permanent residency, but also to keep alive the opportunity to eventually become United States citizens.

Joe Wilson, Healthcare Reform and the Return of the Immigration Wedge

Give Rep. Joe Wilson (R-S.C.) and his restrictionist allies credit: they know the right buttons to push to get their way on Capitol Hill.  Whether it's claiming a federal coup on health care, or the creation of "death panels" to pull the plug on grandma, or that doctors will be forced to perform late-term abortions, the winning ticket to beat health care reform might just be our old nemesis, the illegal immigration wedge.

The Congressman might have behaved boorishly in accusing President Obama of lying when the President stated that benefits under his health care reform plan "would not apply to those who are here illegally."  Thanks to his ill-tepered outburst however, Wilson has provided both anti-health care reformers and immigration restrictionsists with a remarkable double achievement, running the health care debate into the anti-imigrant ditch. 

To his (dis)credit, Joe Wilson has raised from the dead the shibboleth of the federal government as nanny for undocumented immigrants, an issue seemingly buried in the mid-1990s, when Newt Gingrich and Bill Clinton teamed up to "end welfare as we know it."   The usefulness in this approach for opponents of Pres. Obama is that instead of talking about health care reform, the debate has diverted the discussion back to illegal immigration and electrified the right-wing base.  

Truth seems to be a casualty of this partisan war, as the populist paranoia of other partisan debates has found a home here.  As reported in the New York Times,

Democratic lawmakers, growing exasperated, have taken to reading directly from the House and the Senate bills at town-hall-style meetings.

“I don’t know how it could be more clear,” said Representative Bruce Braley, Democrat of Iowa, who has read aloud from a section of the House bill with the title “No Federal Payment for Undocumented Aliens.”

Republicans argue that some of the voters’ concerns are justified because, they say, the proposals before Congress do not spell out procedures to verify the citizenship of those who would receive health coverage.

After testing their ideas with voters during the recess, Republicans said they would press for verification measures when the health care debate picks up again in Washington.

“The language is there, but without the verification you can’t frankly believe it is serious,” said Representative Lamar Smith, Republican of Texas, who added that concerns about illegal immigrants were clearly on the minds of citizens he met in his district. Mr. Smith said Democrats “intentionally left gaping loopholes” in the proposals that illegal immigrants could step through.

Pres. Obama's gambit to temporize on immigration reform will likely haunt him on every piece of social legistation put forward by his administration.  Columnist Ruben Navarrette ably describes the President's strategic failure in a recent column,

Given the Obama administration's desire to pursue both immigration reform and health care reform - immigration should go first. Otherwise, [immigrant advocates] said, health care would fail because of public fears that illegal immigrants would get free medical services. Make those immigrants legal, they said, and it would defuse the issue.

The point is moot since the administration decided to roll the dice on health care first. But the strategists were right that the immigration debate would find a way to infiltrate the health care debate and damage it.

In fact, as divisive and shrill the health care discussion has been at times, the soon-to-be resurrected immigration debate could be much worse.

The issue isn't just causing trouble from the Anti-Immigrant Right.  Immigrant advocates in the Senate are also taking aim at Pres. Obama's promise that no undocumented immigrant would be allowed to seek benefits under any proposed reform plan.  Sen. Bob Menedez (D-N.J.) is rallying allies to withhold support from the Baucus health care reform bill.  The Hill reports,

Menendez is troubled by [restrictive] language [in the bill] and has joined Hispanic advocacy groups in criticizing the bill for placing too heavy a burden on legal and illegal immigrants.

Immigrants are not required to show proof of citizenship or legal residency to buy health insurance. If they were prohibited from participating in an insurance exchange, they would be forced to buy coverage at a significantly higher cost than legal residents.

Hispanic advocates argue that companies employing illegal immigrants would be tempted to opt out of the national health insurance exchange to avoid having to verify the immigration status of all their workers. Nearly half of illegal immigrants receive health insurance from their employers, according to one estimate.

“We’re not very pleased with the provisions in the bill,” said Brent Wilkes, national executive director of the League of United Latin American Citizens. “We think it goes far beyond what is necessary to prevent undocumented immigrants getting tax-subsidized benefits.”

Menendez and the Hispanic advocacy groups are also concerned with how Baucus would treat families made up of both legal and undocumented residents.

“I have a series of concerns about the bill,” Menendez said.

Satisfying Menendez’s objections to the immigration provisions will not be an easy task. Any concessions making it easier for immigrants to buy insurance could be seized on by opponents who have accused Democrats of planning to subsidize health plans for illegal immigrants.

These developments bode poorly for any immigration reform bill.  The health care reform debate has rendered the legislative environment so toxic, that even the pro-immigrant caucus and their allies are in disarray.  In that light, it's no wonder immigration reform continues to be pushed back on the legislative calendar.

We'll continue to keep readers posted on immigration reform efforts at http://www.immigration-defense.com.

Edward Kennedy: Father of Immigration Reform

Today marks a sad day for people across America committed to the cause of immigrants.  The passing of Sen. Edward Kennedy (D-MA) closes the book on over four decades of principled, progressive immigration reform.

Kennedy's achievements in the field were nothing short of awe-inspiring, and in many ways, remind us of a more farsighted and magnanimous era in U.S. foreign and domestic policy.  As detailed in USA Today, Kennedy was the key driver behind historic, groundbreaking legislation, responsible for nothing less than a fundamental shift in this country's ethnic and demographic mix. 

Here are just a few of his major achievements:

•A 1980 bill that established a system for refugee resettlement in the USA and nearly tripled the number of people who would qualify for admission.

•A 1986 bill that granted amnesty to an estimated 2.7 million people living illegally in the USA and established penalties against employers who hired illegal immigrants.

•A 1990 bill that revised the legal immigration system to allow for more immigrants and more high-skilled workers.

For his efforts on behalf of immigrants, Kennedy earned himself the enmity of all the right restrictionists.

Sen. Kennedy's involvement in immigration began soon after his entry into the Senate, when he led the push for legislation to eliminate restrictive immigration quotas for nationals of all countries outside of Western Europe, leading to the modern immigrant visa preference system.

In his later days, Sen. Kennedy was the Senate's leading voice for thoughtful and humane immigration reform.  With his death, a huge leadership void exists in the pro-reform camp, with no clear credible contender for his mantle likely to emerge in the near future.  Comprehensive immigration reform has always needed a strong advocate in the Senate to move forward.  It has now lost its most important champion.  What comes next is anyone's guess.

Your Papers, Please: ICE Home Invasion Abuses Gain Media Traction

It's taken nearly three years, but the MSM are finally paying attention to ICE's pattern and practice of unconstitutional home invasions.  Thanks to a groundbreaking report by the Cardozo Law School Immigration Justice Clinic, media outlets including the Washington Post, CBS News, the New York Times, and even Xinua (!) News from China, are now shining a light on these shocking abuses of power.  From the Cardozo Report's Executive Summary:

During the last two years of the Bush Administration, the U.S. Immigration and Customs Enforcement agency (ICE) vastly expanded its use of home raid operations as a method to locate and apprehend individuals suspected of civil immigration law violations. These home raids generally involve teams of heavily armed ICE agents making predawn tactical entries into homes, purportedly to apprehend some high priority target believed to be residing therein. ICE has admitted that these are warrantless raids and, therefore, that any entries into homes require the informed consent of residents. However, frequent accounts in the media and in legal filings have told a similar story of constitutional violations occurring during ICE home raids — a story that includes ICE agents breaking into homes and seizing all occupants without legal basis . . .

Analysis of [ICE] records, together with other publicly available documents, reveals an established pattern of misconduct by ICE agents in the New York and New Jersey Field Offices. Further, the evidence suggests that such pattern may be a widespread national phenomenon reaching beyond these local offices. The pattern of misconduct involves:

• ICE agents illegally entering homes without legal authority – for example, physically pushing or breaking their way into private residences.

• ICE agents illegally seizing non-target individuals during home raid operations – for example, seizing innocent people in their bedrooms without any basis.

• ICE agents illegally searching homes without legal authority – for example, breaking down locked doors inside homes.

• ICE agents illegally seizing individuals based solely on racial or ethnic
appearance or on limited English proficiency.

These findings come as no surprise to our law firm.  Regarding the many home invasion victims we've consulted with, these raids as a rule were conducted at dawn by armed agents, with no consent to enter, with home residents pulled out of bed or the shower, with no opportunity by home residents to end the encounter, and with no advisal of rights, as required by law and ICE's own regulations at 8 CFR Section 287.8(b), (c).

As bluntly put by essayist Edward Schumacher-Matos,

Proponents of harsh immigration enforcement often forget that it is the Fourth Amendment, and not some liberal court, that specifically prohibits "unreasonable searches and seizures" and demands that police get warrants based upon "probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Courts have ruled that the amendment applies to illegal immigrants, too, and for more reasons than fairness. How can you tell by looking if someone is undocumented?

In our clients' experience, ICE agents are using non-judicial, administrative arrest warrants -- warrants that only allow agents to arrest a specifically named individual who is already under a deportation order.  These ICE warrants provide no 4th Amendment authority to agents to enter or search a home.  However,  ICE agents appear to be using these administrative warrants as a pretext to forcibly enter private residences and once inside, intimidate, interrogate, and arrest any undocumented person they might find in the home.  The great proportion of these "collateral" arrests, according to the Cardozo Report, are not criminals, but rather people who are liable at most for irregular entry or overstaying their visas. 

These violently invasive ICE operations beg the question about the type of country we want to be, and whether Americans are willing to shred the 4th Amendment to clear this country of any and all undocumented immigrants.  Daniel Shanfield, Esq. Immigration Defense will continue to follow this issue and provide updates through our blog.

Immigration Reform and Guest Workers: "We Wanted Workers; We Got People"

A thought provoking essay in the Washington Post by Ruben Navarrette, Jr. spreads the blame across the aisles for the lack of progress on immigration reform.  The conventional wisdom, particularly among pro-immigrant reformers, is that Republican restrictionists are responsible for the hold-up.  Not so, argues Navarrette, who claims a deal would be at hand if Obama would only throw his support behind the Republicans' guest worker proposals:

Republicans are under a lot of pressure from business groups to fix the immigration system so companies can more easily hire workers. As for Democrats, they were the ones carrying the ball in 2007, the last time Congress fumbled the chance at reform.

In fact, in this go-round, it is the Democrats -- specifically, Blue Dog Democrats -- whom Obama has to worry about most. An estimated 40 House Democrats are thought to be either too conservative to support a pathway for illegal immigrants to become legal, or at risk of losing their seats if they vote for such a measure.

This makes it all the more important that Obama win over at least some Republican votes to offset the Democratic ones he can't count on. But the problem stretches back to why Democrats had trouble passing reform two years ago. You see, the Democratic Party is beholden to organized labor, which supports immigration reform but with an important caveat. While it has no problem with legalizing workers it hopes will become card-carrying, dues-paying union members, it continues to resist the idea of allowing businesses -- as part of the bargain -- to bring into the United States hundreds of thousands of temporary foreign workers.

Navarrette suggests that breaking from the Dems' organized labor constituency is Obama's only hope to offset Democratic defections and win over enough Republican votes in support of reform from the likes of John McCain and Lindsay Graham.  From Navarrette's perspective, Obama's position is pure political calculation. However, could it not also be a principled realization that a guest worker program is not just inhumane, but that it would undo the key aim of immigration reform: to maintain a legal and nimble immigrant workforce?

Opposing guest workers isn't just about vote counting; there are sound reasons to disdain any guest worker plan.  Simply put, experience shows that these programs are inhumane.  They create an underclass of disposable low wage workers completely at the mercy of their petitioning employers.  The conditions of employment -- poor wages and short-term residency -- make redress of workplace violations and enforcement of labor laws practically impossible.  Workers will have neither the resources nor the time in the U.S. to see an employment violation claim through, even if provisions for investigations or administrative hearings are included for employer sanctions.  And once a worker's complaint is filed, employers have every opportunity to retaliate by terminating visa status and calling ICE to sweep away the problem. 

The European gastarbeiter experience should give caution to proponents of guest worker programs.  In the words of the late Swiss writer Max Frisch: ''We wanted workers, we got people."  "People" who put down roots, fall in love, get married, and have children.  People who contribute to  society, and will, inevitably, demand to be treated with dignity should they decide to remain in the U.S.  Do we want to create a situation, as the Europeans have, of creating a second class, who will be that much more vulnerable to workplace exploitation and societal discrimination? And for those who will inevitably break the rules, who will settle down and start a family in the U.S., do we want to keep repeating the situation we face now, of mixed status families being torn apart and loved ones being deported?

In the end, it's just incoherent to expect that a sizable number of guest workers will opt not to stay in the U.S. once the time on their visas are up.  And that's where proposals for immigration reform will crash on the rocks of a guest worker program.  Republicans in support of immigration reform are promising that they won't repeat the mistakes of the first immigration reform bill under the 1986 Immigration Reform and Control Act (IRCA), that this will be the last "amnesty" every handed out.  But that promise is pure nonsense under any proposal that features guest workers,  as some substantial segment of the temporary labor pool will inevitably remain in the U.S. unlawfully, and in turn become fodder for ICE as the next new undocumented population.

So we can accuse Democrats and the Obama Administration of shilling for organized labor, or we can see opposition to a guest worker program as just making sense.  

Thanks for reading.  Daniel Shanfield, Esq. Immigration Defense will continue to monitor immigration reform issues and update our readers as developments occur.

Kinder Gentler Immigration Raids? Obama's Computer Raid Leads to 200 Food Processor Firings

The Los Angeles Times is reporting today on the termination of 200 food processor plant employees at Overhill Farms (motto: The kind of food mom would make, if she had a 225,000 square foot kitchen and 800 helpers).  The plant is located in Vernon, California, an industrial suburb of Los Angeles.  The workers were fired in connection with an Internal Revenue Service audit that found that 260 employees had provided "invalid or fraudulent" Social Security numbers.  Many of these workers had served Overhill for over a decade without any scrutiny.

Most notable for what is being called a "computer raid" is that the Government took no action against the workers.  It was Overhill Farms that swung the hatchet: the company issued pink slips on May 31, 2009.

None of the affected parties are too thrilled about this. 

"This is not something the company planned to do, it's not something the company initiated and it's not something that benefited the company," said Alexander Auerbach, a spokesman for Overhill, which dismissed about a quarter of its 1,000-plus workforce. "Quite the contrary. We lost very good, very loyal employees."

As for the fired employees, facing unemployment in a down economy,

"We killed ourselves on the assembly lines for years, many of us have injuries from repetitive motion," said Bohemia Agustiano, 38, a mother of four from Huntington Park. "Now we're worth nothing. We're out on the streets. This is unjust, no one should be treated this way."

Food processing and agricultural labor is heavily undocumented.  Now that Overhill faces the loss of 260 of "mother's 800 helpers", it should be instructive as to who their replacements will be.  Will American workers step forward and take up this dangerous work, or will the firings set spinning a revolving door for hiring the same undocumented labor, using different documentation? 

As for the Administration's goals of attacking illegal immigration, will squeezing employers like Overhill in turn lead undocumented workers -- men and women who have toiled in this country for years, raised kids here, and made the United States their home -- to give in, pack up and go back to their countries of birth?

The approach here seems a bit misguided, to say the least.  Because of their impact on our clients' rights, Daniel Shanfield, Esq. Immigration Defense will continue to follow these immigration enforcement activities.

ICE Pays a Visit to the Local Jail -- Can Due Process Keep Up?

The Washington Post is reporting the expansion of a $1.1 billion program targeting immigrants in criminal lock-up.  This program, previously focused on federal and state prisons, is broadening it scope to include local county and municipal jails.  According to the Post Article, immigration officials are estimating a potential ten-fold increase in the number of non-citizens identified for deportation.  Three California counties -- Los Angeles, Ventura, and San Diego -- have already taken the plunge and are promising cooperation with ICE.

Identifying non-citizens for possible removal is one thing; actually deporting is something else entirely.  Many of those persons identified will need to be placed before an Immigration Judge to determine whether they are in fact deportable, and a fair proportion of those charged will be held in ICE and local contract detention facilities, far from family and access legal counsel.  A great number of my clients face long delays in having their cases heard, and are housed at government expense in detention centers far from their homes, in far-flung locales Florence, Arizona and Yuba City, California. 

The question now is: how is the Government going to come up with the resources to properly jail and hear these cases?

A familiar gripe on this blog is how Congress has systematically starved the Immigration Courts.  An adequately resourced immigration court system is critical to ensuring that the right people are being deported, and not just everyone caught in this ever expanding immigrant dragnet.  In an environment of inadequate court resources, cases are too often rushed to judgment, particularly where our clients are in ICE custody, and the cost of detention trumps a person's due process right to adequate preparation time.  The Immigration Court system is already strapped for resources; the ten-fold increase in non-citizens tagged for removal sounds like a tsunami that EOIR may not be able to withstand.

It's true that many of these non-citizens might be deportable.  But they also might not be -- as witnessed by the success of our law firm in getting cases favorably terminated by the Immigration Judge, or at least obtaining some form of forgiveness.  We can only hope that Pres. Obama's new plan will provide the resources the Immigration Courts deserve, minimize detention as a means of tracking non-citizens in proceedings, and providing adequate supervision and funding to ameliorate conditions for those already in detention.

The Immigration Judge, a Lawyer's Best Friend under Silva-Trevino?

The Attorney General's recent decision in Matter of Silva-Trevino, 24 I.&N. Dec. 687 (A.G. 2008), undoing a century of legal doctrine in analyzing crimes under the categorical approach, has made criminal immigration defense more challenging than ever.  I've recently had my own personal experience working under this new order, and can offer a few preliminary insights.

By way of background, the AG in Matter of Silva-Trevino, set out a three-part analysis for immigration judges and DHS officers to determine whether a non-citizens criminal offense constitutes a crime involving moral turpitude (CMT).  In short,

to determine whether an alien's prior conviction triggers application of the Act's moral turpitude provisions, adjudicators should: (1) look first to the statute of conviction under the categorical inquiry set forth in this opinion and recently applied by the Supreme Court in Duenas-Alvarez; (2) if the categorical inquiry does not resolve the question, look to the alien's record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.

Id. at 704. 

The first two steps track approximate the Taylor and Shepard analyses traditionally applied under the categorical and modified categorical approaches and favored by the U.S. Supreme Court recently in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2006).  See also Taylor v. United States, 495 U.S. 575 (1990); Shepard v. United States, 125 S.Ct. 1254 (2005). The reasons for confining the inquiry are based both on fair play and judicial economy: inquiring beyond the record of conviction and imposing immigration liability for acts not pleaded to or proven beyond a reasonable doubt in criminal court would unfairly penalize non-citizens facing deportation, and would bog down administrative proceedings with criminal mini-trials to determine the character of the alleged offense.  Also, numerous criminal defendants fashioned their plea bargains and took guilty pleas justifiably reliant upon an understanding that immigration courts would not look beyond the confines of the record of conviction in finding a crime involving moral turpitude.

Unsatisfied with this wisdom, Attorney General Michael Mukasey conjured the third prong, thereby discarding, for all practical purposes, the prudential limitations of the categorical approach.  AG Mukasey dismissed these broadly accepted concerns over fairness and economy, leaving it to the discretion of immigration judges and DHS officers to determine how far is far enough in retrying the alleged criminal offense.  

The immigration bar, notably the American Immigration Law Foundation and the National Immigration Project of the National Lawyers Guild, has responded forcefully to the Attorney General's decision.  Many immigration defense attorneys pondered a practice landscape replaced by a battlefield of trench warfare, where ICE attorneys call to the stand police officers, alleged victims, and witnesses repeating hearsay statements to impugn our clients, and where defense counsel calls competing witnesses to testify.

What few counted on however is the unsympathetic response the AG's decision might receive from the immigration bench, a response that might lead to something of a repudiation, in the practical sense, of Silva-Trevino.  Immigration Judges already face a crushing workload, and the backlog on individual case hearings reach out eighteen months in some courtrooms.   Under the circumstances, it's only appropriate that there might be push-back on any added burden on IJ time without any provision of additional resources.  So, faced by the prospect of these third-prong hearings, some judges are fighting back.

In the San Francisco Immigration Court, ICE attorneys are abusing the privilege afforded by the third prong, submitting generic requests for hearing on the CMT charge, even where they have failed under their burden of production to proffer any evidence beyond an inadequate record of conviction, evidence such as a police report or witness affidavit, to justify a decision by the court to set aside a day of hearings.  Demonstrating toughness and independence however, a judge In one of our cases flatly rejected ICE's request, allowing the Government just 60 days to come up with some evidence in support of further inquiry.

From the gist of the court's order, it was easy to discern the judge's deep frustration with the burden of Silva-Trevino and ICE's scheme to mine for evidence on the day of trial. What's clear from the incident is that immigration judges just might be our unrecruited allies against the third-prong.  In motions to dismiss CMT charges under Silva-Trevino, defense counsel should be making common cause with the judges against ICE requests to hold fishing expedition hearings where either no evidence beyond the record of conviction or unfair, inadmissible evidence in support of prong three has yet been submitted.   Recall that Silva-Trevino endows Immigration Judges wide discretion to determine just what evidence is "necessary or appropriate" to ascertain whether an offense constitutes a crime involving moral turpitude.  It pays to remind the court of this authority and not be browbeat by ICE into scheduling a third-prong hearing in arguing against a time wasting witness examination.

Just as importantly in fending off these hearings, defense counsel should early on try to defeat the expectation that ICE can compel the respondent to testify where the burden of production, as a constitutional due process matter, rests with the Government to establish all elements of removability by clear, convincing an unequivocal evidence.  See Woodby v. INS, 385 U.S. 276 (1966) (clear, convincing and unequivocal standard required as a matter of due process);  cf. INA § 240(c)(3) (clear and convincing standard); Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2006); Matter of Tang, 13 I&N Dec. 691 (BIA 1971) (non-citizen cannot be called to testify unless Gov't provides some evidence of alienage), U.S. v. Minker, 350 US 179 (1956) (denatz case), Matter of Vivas, 16 I&N Dec. 68 (BIA 1977) (burden of persuasion only shifts to Respondent when Gov't makes prima facie case); Matter of Guevara, 20 I&N Dec. 238 (BIA 1991) (adverse inference by 5th Amendment exercise of silence cannot be sole basis for establishing Gov'ts prima facie case); Chavez v. Gonzales, 192 Fed.Appx. 712, 713 (9th Cir. Jul 27, 2006) (adverse inference from silence appropriate only where other evidence of alienage in record).  None of these decisions were explicitly overturned by Silva-Trevino, and thus they remain good authority.

I'll keep readers posted on further developments in these cases.

 

DREAM Act Bill Revived: Help for the 1.5ers?

    The latest version of the DREAM Act, also known as the Development, Relief, and Education for Alien Minors Act (S. 729), was introduced on March 26, 2009, by Dick Durbin (D-IL) and Richard Lugar (R-IN) in the Senate.  In the House of Representatives,the bill is called the American Dream Act (H.R. 1751), and it was introduced that same day by Howard Berman (D- CA), Lincoln Diaz-Balart (R-FL), and Lucille Roybal-Allard (D-CA).  With Democrats in control of both Houses and President Obama having supported the DREAM Act in its prior incarnations, hopes for passage are high. 

    For those unfamiliar with the Bill, ILRC provides a very helpful overview.  The DREAM Act would enact two major changes in current law:

• Permit certain immigrant students who have grown up in the U.S. to apply for temporary legal status and to eventually obtain permanent status and become eligible for U.S.citizenship if they go to college or serve in the U.S. military; and
• Eliminate a federal provision that penalizes states that provide in-state tuition without regard to immigration status.

    Specifically, Under the DREAM Act, most students with good moral character who came to the U.S. at age 15 or younger at least five years before the date of the bill’s enactment would qualify for conditional permanent resident status upon acceptance to college, graduation from a U.S. high school, or being awarded a GED in the U.S. Students would not qualify for this relief if they had committed crimes, were a security risk, or were inadmissible or removable on certain other grounds.  The Senate bill contains an additional requirement that the student be under age 35.

    One of the best analyses on which young people would be helped comes from Marcela Sanchez in her 2007 Washington Post Desde Washington Column.  She talks about the "1.5ers",

"a member of a generation who came as children with immigrant parents to the United States. One-point-fivers are neither first-generation immigrants, adults who immigrated to the United States; nor are they second-generation, children born here of immigrant parents.

These young immigrants are different from their U.S.-born siblings.

They tend to be "the most bilingual," said Ruben Rumbaut, a sociology professor at the University of California at Irvine who has been studying immigrant children since the 1960s and who coined the term "1.5 generation." Often quickly learning English, they serve as interpreters for their non-English-speaking parents. Their second-generation siblings are more likely to lose their parents' language and by the third generation most speak only English.

They also are high achievers, working to make good in the eyes of parents who made considerable sacrifices on their behalf. Some too, if they were old enough when they came to the U.S., are motivated by the difficult conditions that they left behind. As Julita put it, "I wasn't going to go to college where I am from....I came here hungry to learn, to get ahead."

On the flip side, 1.5ers are less likely to run afoul of the law. Despite the myth that immigrants are more prone to criminality, study after study has found that the chance of incarceration is greater among second-generation Americans."

It's hard to think of a downside to this Bill.  Helping law-abiding, hard-working, high achieving young people is as American as apple pie.  If you would like to help, you can contact your Congressional Representative.  We'll post more news to this blog as the Bill winds its way through the legislative process.