Daniel Shanfield, Esq. Immigration Law & Defense Blog

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.

CONFRONTING RESCISSION OF LAWFUL PERMANENT RESIDENT STATUS UNDER INA Sec. 246(a), OR THANKS FOR ISSUING THAT NOTICE TO APPEAR

I wanted to write about a recent case success involving a client facing rescission of permanent residency status.  Of course, this blog does not consitute legal advice, so you should speak to an attorney before undertaking any immigration application or defense.

 

As many immigration practitioners are aware, USCIS may rescind a non-citizen’s permanent residency within five years of granting that status where the permanent residency was granted in error.  INA Sec. 246(a).  These efforts at rescission are generally a response to some alleged fraud on the application. 

 

In my case, USCIS had issued a Notice of Intent to Rescind (NOIR) arguing that my client, who had been admitted as a crewman and needed 245(i) to adjust status to permanent residency, had been ineligible for adjustment of status at the time it was granted.  USCIS had discovered that at the time second wife had filed the F2A visa petition, he had still not divorced his first wife, who had abandoned him well before the time he remarried.  Accordingly, since his petition was not approvable when filed, USCIS argued that he could not benefit from 245(i), and therefore could not adjust status.

 

USCIS’s assessment looked correct, and so confronting the NOIR head on seemed hopeless.  This was horrible news for my client.  His wife has suffered from a variety of serious illnesses, and three of his children had derived status through him.  If USCIS went forward with rescission, his sons would have also lost their status, and my client would have been referred for removal proceedings in front of the Immigration Judge without the benefit of LPR status, with little prospect of relief.  Even though his wife had since naturalized, as a crewman he would still need 245(i) to adjust, something he could never recover.  The only avenue open then would have been cancellation of removal for non-LPRs.  Given the exceptional and extremely unusual hardship standard required for eligibility, I did not hold out much hope.

 

However, two of the key lessons I’ve learned in immigration practice are 1) never give up and 2) practically every adverse action initiated by USCIS is based at some level on an exercise of prosecutorial discretion.  This is particularly true in INA Sec. 246(a) rescission cases, and is confirmed by the USCIS Adjudicator’s Field Manual (AFM), which treats rescission as something of a nuclear option.  In fact, the AFM bluntly warns that rescission is not required to resolve ineligibility at the time of adjustment, even indicating a preference to refer such cases for resolution to the Immigration Court.  USCIS AFM Sec. 26.1(g).  Going further, the AFM also admonishes that if there was no intention to commit fraud or deception in the obtaining permanent residency, USCIS in its discretion may decline to institute rescission proceedings, particularly where the non-citizen has accrued other equities since gaining LPR status.  Id.

 

In that light, and depending on the equities, USCIS may decline to institute further action, or opt instead to initiate removal proceedings under a charge of INA Sec. 237(a)(1)(A) (Inadmissible at time of entry or of adjustment of status).  They key lesson here however is that regardless of whether fraud or deception are present, the decision to pursue rescission at bottom is prosecutorial, and is therefore purely discretionary.  Prosecutorial discretion cuts both ways, so why not have it cut favorably for once? 

Because the decision to initiate the rescission process is subject to USCIS’s unreviewable discretion, the Agency is not bound by the named adverse factors like fraud and deception listed at USCIS AFM § 26.1(g) in going forward.  Rather, USCIS may consider any lawful factor in proceeding or forbearing under 246(a).  Perhaps more importantly, if USCIS has prosecutorial discretion to determine whether to forebear from Rescission proceedings, it likewise has plenary discretion on when to pull back.  This was critically important in our case, because USCIS had already issued its NOIR.  Just because the rescission process had already left the station, that did not mean we were dealing with a runaway train.

 

In our case avoiding 246(a) rescission and persuading USCIS to let us go in front of the Immigration Judge was absolutely critical.  In removal proceedings, as long as USCIS does not first rescind under INA § 246(a), the non-citizen has a real fighting chance to salvage permanent residency.  The non-citizen may both contest the allegation that permanent residency was improvidently granted through fraud, and if unsuccessful, may still seek a waiver under INA § 237(a)(1)(H) for that fraud.  The 237(a)(1)(H) waiver moreover is discretionary; it does not require a showing of extreme hardship, but merely a favorable balancing of the equities.  Best of all, under Matter of Sosa Hernandez, 20 I&N Dec. 758 (BIA 1993), conferral of this waiver cures all underlying adjustment ineligibility issues nunc pro tunc.  Accordingly, by obtaining a fraud waiver from the Immigration Judge, we could also resolve the other documentary deficiencies under INA Sec. 212(a)(7)(A) making him inadmissible at the time of adjustment. 

 

So our plan was laid out before us in challenging the NOIR: contest the fraud charge head on, drive home the equities about the wife’s health, and ask USCIS in the alternative to forebear on rescission and to put us in front of the Immigration Court to apply for a 237(a)(1)(H) waiver.  USCIS agreed, and has done us the favor of issuing an NTA.  Our equities are strong, and I’m hopeful we’ll prevail.

 

Needless to say, I was extremely pleased that USCIS went the extra mile to carefully consider the equities of this case and ultimately opt against rescission.  And, in the end, I’m glad we could agree that the Immigration Court, rather than the Agency, was the best forum to determine the justice of rescinding my client’s permanent residency.

I guess that makes it a streak: Law & Politics and SF Magazine Name Us a "2009 Northern California Super Lawyer"

The Year 2008 gave us our first award.  Now, Law & Politics and San Francisco Magazine have named us a "2009 Northern California Super Lawyer" in Immigration Law.  It's quite an honor.

We've all heard that saying, success has 100 parents.  So, thanks to my legal assistant, Stephanie Gutierrez, whose integrity, smarts and long time contribution have made a critical difference in the lives of our immigrant clients.  Thanks also to our mega-talented new paralegal, Heidi Sermeno. She has, in a few short weeks, made a huge impact on the firm, allowing us to expand our legal services to even more immigrants.  Simply put, Stephanie and Heidi are both dedicated, bright, and all around terrific.

I also have to offer my deepest gratitude to Merle Kahn, who in my book is also a Super Lawyer, and who has done phenomenal work on projects both big and small.

Lastly, I must thank our clients, who have placed their faith in us, and given us the chance to show what we're made of as lawyers and immigrant advocates.

Arrests on U.S. Mexican Border Down, Drug Violence Asylum Cases Up

A series of news reports in recent weeks have established a paradoxical trend in U.S. Mexico migration patterns.  The Los Angeles Times this morning is featuring a story on a precipitous decline in border arrests, the depths of which would have been inconceivable just one year ago:

From October 2008 through February of this year, the Border Patrol arrested 195,399 illegal immigrants, a 24% decrease from the same period last year. The apprehension level is on track to dip to about 550,000 for this federal fiscal year, the lowest level since 1975, when 596,796 immigrants were caught, according to Border Patrol statistics.

The downward trend in arrests -- considered one of the best indicators of illegal immigrant migration -- began a few years ago, about the same time the federal government started fortifying the border with more agents, fencing and infrastructure.

The border enhancements weren't enough on their own to stop immigrants from entering the country. But with the U.S. economy in a tailspin, few incentives remain for immigrants to endure the increasingly difficult crossings.

First NAFTA and its promise of economic development were supposed to create incentives for Mexican labor to stay put at home to take advantage of domestic job growth.  But when free trade economic development failed to live up to its promise, the U.S. began work on The Fence, with failed results (migrants continued making their way through, though many perished trekking through the desert).  It seems the only thing that has worked is the economic de-development in the United States, and our decline as an attractive country for migration -- even for those in Mexico facing difficult and declining standards of living.

Only those who hate immigrants more than the care about our country could find encouragement in these numbers.

On the other hand, DHS is experiencing a spike in asylum claims from Mexico in connection with increasing impunity by the drug cartels.  As also reported earlier by the Los Angeles Times,

The number of asylum requests filed at U.S. border entries by Mexican nationals nearly doubled to almost 200 in the last fiscal year, and the pace has increased this year. Seventy Mexican asylum-seekers filed petitions in the first quarter, most of them in El Paso and San Diego. The figures are small compared with the vast scale of illegal immigration, but many fear explosive growth if the bloodshed worsens.

Drug violence in Mexico has claimed at least 7,000 lives in little more than a year, most of them along the border and many carried out to maximize their gruesome effect. Mass killings and beheadings have had a terrorizing effect on border towns from Texas to Tijuana.

It is unclear whether any asylum requests have been granted in cases based on fear of drug violence. Most of the recent cases are still working their way through the system. Some refugees from the narco-wars are hiding on the U.S. side of the border, uncertain whether to apply for asylum -- and risk being deported if their petitions are denied.

Truly Mexico is facing a crisis in enforcing its writ over the entire country.  A major contributor to this violent instability is the flood of assault weapons pouring into Mexico from the United States, as the drugs flow northward across the border. The crisis is so severe in fact, that the Canadian Government is viewing Mexico's drug war and its spill-over as a threat to their own national security.

As Mexico, United States and Canada face declining economic prospects for the foreseeable future, can an increase in cross-border black market trade and violence be far behind?  How this impacts unregulated migration in North America remains to be seen.  However, the potential for a humanitarian migration crisis from Mexico, on the scale of Haiti, is no longer the stuff of science fiction.  We can only hope the Obama Administration, and our friends in Mexico and Canada, can come up with a coordinated approach to pull us back from the brink.