December 19, 2009
ICE and the Disappearance of Immigrants
America's Secret ICE Castles
Jacqueline Stevens writes in the January 4, 2010 edition of The Nation:
"If you don't have enough evidence to charge someone criminally but you think he's illegal, we can make him disappear." Those chilling words were spoken by James Pendergraph, then executive director of Immigration and Customs Enforcement's (ICE) Office of State and Local Coordination, at a conference of police and sheriffs in August 2008. Also present was Amnesty International's Sarnata Reynolds, who wrote about the incident in the 2009 report "Jailed Without Justice" and said in an interview, "It was almost surreal being there, particularly being someone from an organization that has worked on disappearances for decades in other countries. I couldn't believe he would say it so boldly, as though it weren't anything wrong."
Pendergraph knew that ICE could disappear people, because he knew that in addition to the publicly listed field offices and detention sites, ICE is also confining people in 186 unlisted and unmarked subfield offices, many in suburban office parks or commercial spaces revealing no information about their ICE tenants--nary a sign, a marked car or even a US flag. (Presumably there is a flag at the Veterans Affairs Complex in Castle Point, New York, but no one would associate it with the Criminal Alien Program ICE is running out of Building 7.) Designed for confining individuals in transit, with no beds or showers, subfield offices are not subject to ICE Detention Standards. The subfield office network was mentioned in an October report by Dora Schriro, then special adviser to Janet Napolitano, secretary of Homeland Security, but no locations were provided. Click here for the rest of the story.
American Apparel Sale Today for Immigrant Rights
Happy Holidays From American Apparel: Justice For Immigrants Factory Sale in L.A.
As the holidays rapidly approach, our focus shifts to shopping, cooking and decking the halls for the invasion of relatives. But, as we hit the shops, we often forget to take a moment to think about the origins of our chic outfits and abounding feasts (those of us lucky enough to still have these).
Those trendy peacoats and ripe, delicious pears didn’t fall off of a sleigh after all.
In Los Angeles, California, a building full of laborers--many foreign-born-- work tirelessly to fill the shelves of American Apparel with their not-so-basic t-shirts and colorful sweaters, enough to fulfill the Christmas wishes of millions of American teens in various stages of blossoming hipster-dom. But, like so many companies, American Apparel has been stuck in the middle of our immigration crisis this year.
In September and October, 1,600 of the company's workers were forced out of jobs, leaving their families divided by an immigration system that continues to plague mixed-status families across the United States. As a result, some of these families will not spend the holidays together and will be struggling just to put food on the table, much less buying presents for the tots.
But, in the spirit of the season, American Apparel has not forgotten the individuals who contributed so much to their company and have fallen victim to a system that continues to penalize families who want nothing more than to be part of our great nation and it’s economy. On Saturday, December 19th, American Apparel will be hosting a Holiday sale at their factory store with up to 80% off all inventory and all proceeds will benefit organizations who support immigrant families, like those let go from American Apparel.
So, for those who live in L.A., grab your shopping list and hit the stores to support immigrant families in crisis this holiday and a company that exemplifies both the spirit of Christmas and the spirit of America.
December 18, 2009
International Migrants Day and Protecting the Rights and Assets of Deportees
Protecting the Rights & Assets of Deportees
Just in time for tomorrow's celebration of International Migrants' Day, two signature Appleseed projects relating to immigrant rights have reached important milestones.
Yesterday Appleseed released "Protecting Assets and Child Custody in the Face of Deportation: A Guide for Practitioners Assisting Immigrant Families," a manual that guides volunteer lawyers and non-lawyer practitioners through important financial and family rights threatened by the deportation process, including final paychecks, bank accounts, car and home ownership, government benefits, and child custody. Available here, the manual provides easy-to-follow, step-by-step instructions to help immigrants protect their financial assets and family relationships.
The U.S. deported more than 358,000 immigrants in 2008, the sixth consecutive year of record-high deportations. Whether or not someone has a right to stay in the U.S. - or an ability to enforce that right - he or she is entitled to a final paycheck and is not by law stripped of all financial rights or child custody. But in fact, persons being deported not only often lose their U.S. community and family security, but also the resources they have built up and to which they are entitled.
Produced at the request of community advocates with the help of pro bono counsel from Skadden, Arps, Slate, Meagher & Flom, DLA Piper, and others, and funded in part by the Annie E. Casey Foundation, "Protecting Assets" will help volunteers and nonprofit advocates - including non-lawyers - minimize the deprivations of rights and assets that deportation poses.
Meanwhile, the Consumer Financial Protection Agency Act, which last week won the approval of the U.S. House of Representatives, includes rules negotiated by Appleseed with representatives of the remittance industry and fostered by Reps. Barney Frank and Luis Gutierrez that require providers to disclose vital service information prior to a transaction. Service fees, exchange rates, pick-up location, and the date and time when funds will be available after transfer are among the pre-transaction disclosures to be provided by remittance companies according to the legislation.
These disclosures are to be issued in writing and as printed receipts; they also will be available in the non-English languages most commonly used by remittance customers. The CFPA or subordinate agency will create and distribute disclosure templates for use by providers nationwide; the act also requires remittance providers to establish toll-free phone numbers and websites to disclose service information.
That these successes align with the celebration of International Migrants Day, which marks the United Nations' adoption of International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families on Decmber 18, 1990, helps underscore their importance.
U.S. Buses Undocumented Immigrants To "Nowhere"
NPR reports on new efforts to discourage undocumented immigrants from re-entering the United States. The Border Patrol is busing those it arrests in Arizona to a remote border crossing in Texas and returned to Mexico. "Officials call the program a success, but locals on both sides aren't happy about the nearly 100 young men dumped in their communities every day."
December 17, 2009
A Separate Immigration Bill in the Works?Sen. Charles Schumer (D-N.Y.) is likely to introduce a bipartisan immigration reform bill with Sen. Lindsey Graham (R-S.C.) The package could be released as soon as January and taken up in the Judiciary Committee soon thereafter. This bill is probably stricter on immigration enforcement than the Gutierrez bill and less generous on immigration reform but it is predicted to have a greater chance of being passed into law. For the full story, click here.
Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On The Case of Ms. Rody Alvarado December 15, 2009 I
Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On The Case of Ms. Rody Alvarado December 15, 2009
I am pleased to learn that, after 14 years of legal struggle, Ms. Rody Alvarado has finally received asylum in the United States. The details of Ms. Alvarado’s case are shocking. She suffered from horrific domestic violence in her home country of Guatemala, and sought protection in the United States under our asylum laws. Because persecution of this type had not previously been recognized as a basis for refugee or asylum protection, Ms. Alvarado was forced to fight a long legal battle to win her case.
The administrations of three different presidents – Clinton, Bush and Obama – have grappled with how to handle gender-based asylum claims, but the resolution of this case brings us closer to the end of this journey. Ms. Alvarado can finally feel safe here in the United States, because she is no longer at risk of being deported to Guatemala. The Obama administration must now issue regulations to ensure that other victims of domestic violence whose abuse rises to the level of persecution can obtain the same protection as refugees or asylees.
Ms. Alvarado fled Guatemala in 1995 after being beaten daily and raped repeatedly by her husband. When she became pregnant, but refused to terminate her pregnancy, her husband kicked her repeatedly in the lower spine. Ms. Alvarado had previously tried to escape the abuse, seeking protection in another part of Guatemala, but her husband tracked her down and threatened to kill her if she left their home again. We know that Ms. Alvarado notified Guatemalan police at least five separate times, but the police refused to respond, telling her that her desperate situation was a domestic dispute that needed to be settled at home.
Over the past 14 years, Ms. Alvarado’s case has been considered by immigration judges, the Board of Immigration Appeals, and three different Attorneys General. Throughout this extensive consideration, the core facts of her case have never been disputed. All parties have agreed that Ms. Alvarado suffered extreme abuse at the hands of her husband, and that the Guatemalan government would not protect her. All parties agreed that she has a well-founded fear that she would be abused again if she was forced to return to Guatemala.
The dispute in Ms. Alvarado’s case centered on whether the abuse she suffered was persecution under the terms of the Refugee Convention and applicable U.S. law. To obtain protection in the United States, an asylum seeker must demonstrate that they have a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.
I first wrote to Attorney General Janet Reno in December 1999, when the Board of Immigration Appeals (BIA) reversed Ms. Alvarado’s grant of asylum, concluding that her abuse was not persecution on account of membership in a particular social group. This decision was particularly troubling because it left unclear what grounds, if any, could be applied to a victim of severe domestic abuse who cannot obtain the protection of her country of origin. I wrote to Attorney General Reno again in February and September 2000 asking her to exercise her authority to review the case, called Matter of R-A-, and to reverse the BIA’s decision. Unfortunately, the case was not reversed at that time, and it then languished for years. I wrote to Attorney General Ashcroft in June 2004 asking him to work with the Department of Homeland Security (DHS) to issue regulations to govern cases such as Ms. Alvarado’s and to then decide her case in accordance with such rules. When he was a nominee to be Attorney General in January 2005, I asked Mr. Alberto Gonzales to commit to taking up the case and resolving it if he was confirmed. Mr. Gonzales promised to work with DHS to finalize regulations, but did not take any action during his years as Attorney General.
Ten years after I and other members of Congress first sought appropriate action and the fair resolution of this case, we celebrate the long-overdue outcome. While I dismayed at the length of time Ms. Alvarado has lived with fear and uncertainty, the final resolution of this case gives me hope that abuse victims like Ms. Alvarado who meet the other conditions of asylum will be able to find safety in the United States.
The Obama administration has laid out a welcomed, new policy in its legal briefs in this case, and I thank the President, Secretary Napolitano, and Attorney General Holder for bringing this case to such a positive resolution. Yet, the administration’s work is not done. It must issue binding regulations so that asylum seekers whose cases have been held in limbo for years can also be resolved and that future cases are not delayed in adjudication. I urge the administration to immediately initiate a process of notice and comment rulemaking so that asylum seekers, practitioners, and other experts can contribute to the formulation of new rules.
Today, I commend Ms. Alvarado on the courage she has demonstrated over for many years while seeking protection in the United States. I congratulate her and wish her all the best as she finally experiences true freedom from persecution and the full scope of liberties enjoyed by Americans.
Feds Charge Police Chief in Coverup of Hate Crime Murder of Mexican Immigrant
Michael Rubinkam and Kathy Matheson write for the Associated Press:
The Shenandoah police chief and two officers under his command are charged with orchestrating a cover-up in the fatal beating of a Mexican immigrant by altering evidence or lying to the FBI in a hate crimes case against two popular football players.
The former Shenandoah High School athletes, 19-year-old Derrick Donchak and 18-year-old Brandon Piekarsky, have now been charged with a federal hate crime, accused of beating Luis Ramirez in a park on a night in July 2008 as they headed home from a party, the Justice Department said Tuesday in Washington.
State prosecutors who tried unsuccessfully to win ethnic intimidation or murder convictions against the athletes had alleged that the attackers yelled racial epithets at Ramirez and that one gripped a piece of metal to give his punches more power.
One of the indictments accuses police Chief Matthew Nestor, Lt. William Moyer and Officer Jason Hayes of conspiracy and falsifying documents "with the intent to impede, obstruct, and influence the investigation." Moyer is further accused of witness tampering, destroying evidence and lying to the FBI.
Each officer faces up to 20 years in prison on obstruction charges and five years for conspiring to obstruct justice. Moyer also faces five additional years for making false statements to the FBI. Click here for more.
Fidel Hopes for more U.S. Tourists
Kitty Bean Yancey writes for USA Today:
While they wait to see if Congress will vote to lift the longstanding ban on U.S. tourists visiting Cuba, American tour operators and developers in Washington, D.C., and Cuban tourism officials in Havana got cozy via a groundbreaking live videoconference Wednesday.
Cubans touted the virtues of a country with beautiful beaches and "no drugs, no vices … no crime against tourists," according to tourism ministry advisor Miguel Figueras. He added, "You will be welcome in Cuba at any time."
Three dozen stateside travel-industry reps — including travel agents and big names such as Tauck World Discovery and Lindblad Expeditions — wanted to know whether Cuba could handle an influx of Americans (yes, said officials, to some skepticism); if Americans could own hotels (no, but joint ventures are welcome); or whether Cuba could handle big cruise ships ("If we don't have (U.S.) cruisers, why should we invest?" in megaship docking, Figueras said). Golf courses are a weak spot, tourism officials acknowledged, but said there are plans to build 10. Click here for more.
NEW AMERICANS IN THE OLD LINE STATE
The Immigration Policy Center has compiled research which shows that immigrants, Latinos, and Asians are an important part of Maryland's economy, labor force, and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers, and entrepreneurs. As high-skilled workers, immigrants accounted for more than one quarter of all scientists in the state and more than one fifth of all health care practitioners. With the state working towards recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of the Old Line State. Highlights from Maryland include:
• Maryland was home to 694,590 immigrants in 2007. • 45.5% of immigrants in 2007 (or 315,892 people) in Maryland were naturalized U.S. citizens who are eligible to vote.
• Latinos accounted for 6.3% (or 353,956) and Asians 4.9% (or 275,299) of Marylanders in 2007.
• The 2008 purchasing power of Latinos totaled $10.2 billion and Asian buying power totaled $12.0 billion in Maryland in 2007.
• If all unauthorized immigrants were removed from Maryland, the state would lose $15.3 billion in expenditures, $6.8 billion in economic output, and approximately 73,267 jobs.
There is no denying the contributions immigrants, Latinos, and Asians make and the important role they will play in Maryland's political and economic future.
THE RACIAL DIVERSITY OF HUNGER
In David Bacon's latest in the East Bay Express, he writes "Everyone knows Oakland, CA, is a diverse community. Probably more people from more races and nationalities live in the city than anywhere west of New York or north of Los Angeles. But before we celebrate diversity, think of its most diverse places. Some of them are surely the lines of hungry people lining up for food." For more, click the link above.
Click here for David's latest article on immigration enforcement.
The Obama Administration's Resounding Silence on Immigration Reform
One of the biggest pieces of immigration news this week was Rep' Luis Gutierrez's introduction of comprehensive immigration reform legislation. Given the Obama administration's stated support for reform, one might expect a voice of support from the President or Department of Homeland Security Secretary Janet Napolitano. So far, the response has been the sound of silence. For interesting commentary on this silence, see Anis Shivan's piece on the Huffington Post.
December 16, 2009
Limits Placed on Detention of Asylum-Seekers
AP reports that "[t]he Obama administration says it will stop detaining asylum seekers who have a credible fear of persecution in their home countries. Immigration and Customs Enforcement director John Morton says beginning Jan. 4, asylum seekers can temporarily enter the U.S. if they meet certain criteria."
UPDATE (12/16): For the officialk ICE press release, click here.
The 800 Mile Wall - DVD
From John Carlos Frey:
I just wanted to let you know that our latest film, "The 800 Mile Wall" is now available on DVD. It is our most ambitious project to date and we believe a powerful voice for urgently needed reform. For more information and how to order a DVD,please visit the films'
"The 800 Mile Wall" highlights the construction of the new border walls along the U.S.-Mexico border as well as the effect on migrants trying to cross into the U.S. The film is an unflinching look at a failed U.S. border strategy that many believe has caused the death of thousands of migrants and violates fundamental human rights.
I invite you to pick up a copy and share it with as many people as possible.
John Carlos Frey
Immigration Reform: Is the Hate Train Coming to Town?
Bill Pershing on Capitol Briefing discusses the immigration reform proposal intoduced by Rep. Luis Gutierrez yesterday, which Bill Hing blogged about. I guess that I should not be surprised, but I am, by the mean-spritedness that quickly rises to the surface when the issue of immigration reform is raised. Here is one of the comments to Pershing's straightforward story about the bill, its introduction, and the political background:
"My great grand parents came here from italy, took nothing, learned english on their own and were successful. How dare these illegal immigrant lawmakers demand anything from us, they get plenty of handouts for their teen age mothers bearing anchor babies (future voters)and we have to spend our money to teach them english. I feel very sorry for my unborn great grandkids, I guess I need to start saving now so they have enough money to learn to speak spanish someday because there will be no more handouts left. And the CBC is on their side? We have two third world countries against one first world country now." (emphasis added).
Yesterday, federal hate crime charges were filed against the teens who allegedly killed, along with police who allegedly covered it up, Luis Ramirez in Shenandoah, PA. When will people see the relationship between the mean-spiritedness against Latinos and immigrants in the immigration debate and the rise in hate crimes against Latinos in recent years?
December 15, 2009
Judge Posner's Latest Asylum Decision
For Judge Posner's latest asylum decision for the U.S. Court of Appeals for the Seventh Circuit, see Download TG13OC9G. The case involves a particular social group claim by a Salvadoran based on gang membership. Judge Posner rides again!
The all-smiles picture of Judge Posner at left was taken long before his most recent decision.
Breaking News: Feds File Hate Crime Charges against Teens Who Killed Luis Ramirez
In July, 2008, youths in Shenandoah, Pennsylvania attacked and killed Luis Ramirez. They were only convicted of misdemeanors by an all-white jury earlier this year. CNN now reports that "Five people, including three police officers, have been indicted in the fatal race-related beating of a Latino man in Shenandoah, Pennsylvania, the Justice Department said Tuesday. Two indictments charge the five with federal hate crime charges, as well as obstruction of justice and conspiracy, authorities said in a written statement. A federal grand jury handed up the indictments last week, and they were unsealed Tuesday."
UPDATE The Associated Press elaborates on the various charges against local police officers for an alleged cover up of the hate crime. Shenandoah is a small coal town about 80 miles from Philadelphia that has seen an increase in its Latino population in recent years. Huffington Post and Daily Kos have run with this story.
Luis Gutierrez Comprehensive Immigration Reform Bill Summary
Here is a summary of the Gutierrez bill that was introduced in Congress today:
Comprehensive Immigration Reform for
America's Security and Prosperity
(CIR ASAP) Act of 2009
TITLE I - BORDER SECURITY, DETENTION, AND ENFORCEMENT
Subtitle A - Border Security:
Subtitle A of Title I assembles a vision of effective and accountable enforcement for the 21st century through maximizing border security by requiring the Secretary of Homeland Security to form a national strategy that is consistent with the progress already made. In order to achieve these goals, oversight and accountability for the Department of Homeland Security is emphasized, especially as they pertain to fiscal appropriations and cost-benefit analyses of operations and programs.
Protecting Our Borders: This subtitle protects United States border cities and communities from violence and crime along the U.S.-Mexico border by:
Creating a Southern Border Security Task Force that is composed of federal, state, and local law enforcement officers
Requiring a security plan for land ports of entry at the borders involved in international trade
Expanding the programs under the Customs-Trade Partnership Against Terrorism that is in accordance to the SAFE Port Act
Improving the exchange of information between federal agencies on North American Security by a conducting a targeted study of security clearance standards, document integrity, immigration and visa management and coordination, terrorist watch lists and smuggling operations
Effective Enforcement: Subtitle A achieves effective enforcement by improving personnel, assets and technology. This section:
Supports additional training, oversight and evaluation for agents who are the first face of America at the borders
Ensures that Customs and Border Protection have sufficient personal equipment like body armor, weapons, and uniforms, and that Customs and Border Protection have sufficient assets such as helicopters, power boats, motor vehicles and other electronic equipment
Promotes standards for searches of electronic devices and appropriate training for agents in conducting such searches
Minimizes wasteful spending by developing and studying comprehensive uses of advanced technologies, such as aerial and automated surveillance
Requires an inventory prior to any increase of personnel assets and technology
Securing Ports of Entry: Our nation's ports of entry are modernized for our economic benefit and security by conducting a study of the infrastructure and operations to identify necessary improvements and projects to enhance border security and the flow of legitimate commerce and travel. This section:
Improves infrastructure and recalibrates resources and training to allow for more effective screening of commercial goods and individuals so as to minimize threats to national security at ports of entry
Increases the number of full-time port of entry inspectors, agricultural specialists, and support staff to improve the timely and safe flow of commercial goods and individuals
Establishes a demonstration project to test and evaluate new port of entry technologies and also refines existing technologies and operational concepts
Combating Criminal Activity: This subtitle recognizes the role of state law enforcement at the border in combating criminal activity by creating border relief grant programs for Northern and Southern border state, local and tribal law enforcement entities. This section:
Enables better training and technical assistance for state and local partners that deals with narcotics-related kidnapping, drug trafficking and the interdiction of weapons and currency
Facilitates information-sharing and collaboration between federal and state partners
Suspends the Operation Streamline program pending review of the goals, impacts and cost-benefit analyses
Reimburses Northern and Southern border state and local prosecutors for prosecuting federally initiated drug cases
Provides expanded resources for Operation Armas Cruzadas and Project Gunrunner to identify, investigate, and prosecute individuals involved in the trafficking and smuggling of firearms between Mexico and the United States.
Improving Partnerships: The importance of border communities as partners and allies are recognized as key in achieving effective enforcement by prioritizing community consultation in developing enforcement policies, border protection strategies and training. This subtitle:
Establishes the U.S.-Mexico Border Enforcement Commission and a Border Communities Liaison Office to foster and institutionalize community consultation
Prohibits military involvement in non-emergency border enforcement
Prioritizes mitigating adverse impacts to federal, tribal, state, local and private lands, waters, wildlife and habitats by promoting cross-agency development of comprehensive monitoring and mitigation of ecological and environmental impacts of border security infrastructure and activity
Combating Human Trafficking: Subtitle A requires the development and implementation of a plan to improve coordination amongst federal and state partners to address human smuggling and migrant deaths. This section calls for additional ICE agents dedicated to combating human smuggling are stationed at ports of entry, requires reporting on migrant deaths, and establishes a study of strategies used at the Southern border to address this problem.
Subtitle B - Detention:
Improving Conditions of Detention: The bill requires DHS to meet minimum requirements to ensure the humane treatment of detainees. Minimum requirements include:
Adequate medical and mental health screenings, evaluations, medically necessary treatment, and continuing care
A review process for medical treatment requests and complete and confidential medical records
Reasonable access to telephones, affordable rates, and privacy protections for calls
Protections from sexual abuse, care for victims, and reports and investigations of abuse
Protection from transfers that fail to consider health and access to counsel
To ensure compliance with minimum detention conditions, the bill requires rulemaking and enforcement. An independent immigration detention commission is established to investigate and report on compliance. DHS must report the death of a detainee within 48 hours, and report annually to Congress on the circumstances of all deaths in detention.
Protecting U.S. Citizens, Lawfully Present Immigrants, Vulnerable Populations, and Communities: This section increases screening and protections during immigration-related enforcement activities for U.S. citizens, Legal Permanent Residents, others lawfully present in the U.S., and vulnerable populations. Social service agencies, translators, and legal services must be available during enforcement activities. DHS will be required to:
Issue regulations prohibiting apprehensions at enumerated community, educational, and religious locations
Provide access to legal orientation programs and access to counsel during enforcement activities and for disabled individuals unable to fully participate in removal proceedings
Give timely notice and service of immigration charges, as well as timely bond hearings if detained more than 48 hours
This section increases protections for individuals subject to immigration detainers, limits the use of detainers to confirmed removable aliens, and requires DHS to collect data and report on detainer use. The unnecessary detention of refugees is prohibited. DHS is required to report to Congress on the impact of immigration-related enforcement activities.
Improving Secure Alternative to Detention Programs: Criteria are established to guide detention and release decisions and require release for vulnerable populations. Detention decisions must be in writing, served upon detainees, and are subject to redetermination by an immigration judge.
Protecting Family Unity: Families with children may not be separated except in exceptional circumstances where alternatives to detention are not available. Residential, non-penal facilities are developed for any necessary family detention with appropriate protections for children and parental rights. The bill includes safeguards for families and children during immigration-related enforcement actions by:
Improving child welfare services for children separated from parents and guardians who are in immigration detention or have been removed
Requiring training for federal and state personnel who interact with separated children and for staff at immigration detention facilities on parental rights, humanitarian, and due process protections
Ensuring protections for detained parents, guardians, and caregivers in immigration detention to promote access to children, family courts, child welfare services, and consular officials
Protecting Unaccompanied Alien Children: Training is required for DHS employees who encounter unaccompanied alien children. Upon apprehension of an unaccompanied alien child, immediate notice is required by DHS or ORR and transfer to ORR custody within 24 hours.
Subtitle C - Enforcement:
Protecting workers: Provides temporary visas and work authorization for detained workers when they have been retaliated against by their employer for asserting their labor rights and they agree to pursue labor claims against their employer. Also expands U visas to provide for whistleblower protections with regard to worker exploitation, civil rights violations and retaliation for exercising labor rights.
Address Reporting: Clarifies address reporting requirements
Ending Discrimination: Preempts any state or local law that discriminates against an individual based on immigration status or imposes sanctions on any individual or entity based on the immigration status of its clients, employees or tenants
Repeals the 287(g) program: Repeals the 287(g) program and clarifies that the authority to enforce federal immigration law lies solely with the federal government
ICE Ombudsman: Establishes an Immigration and Customs Enforcement (ICE) Ombudsman
Asylum: Eliminates the arbitrary 1-year bar to applying for asylum
Restores federal jurisdiction: Restores the federal courts of their jurisdiction to review decisions and practices of DHS thereby also restoring the historic role that the courts play in reviewing agency actions
TITLE II - EMPLOYMENT VERIFICATION
This section sets up an employment verification system for employers to verify each new hire’s authorization to work. The new system will eventually apply to all workers and all new hires, and will be rolled out in phases, beginning with critical infrastructure employers and large employers. The employment verification system:
Creates significant civil penalties for employers who do not comply with the requirements under the new system
Establishes serious criminal penalties for knowingly hiring unauthorized aliens
Debars employers who repeatedly violate these provisions from government contracts, grants, and agreements
Includes privacy safeguards by limiting the data that can be collected and stored in the database and requiring the agencies to develop the system with maximum security and privacy protections
Requires the agencies to evaluate impact of system from a privacy perspective and complete privacy impact statements
Prohibits creation of a national identification card
Includes anti-discrimination provisions. Forbids employers from using the new system to discriminate against applicants or employees on the basis of nationality. Prohibits employers from terminating employment due to a tentative non-confirmation, using the system to screen employees prior to offering employment, or using the system selectively
Allows an individual to register with the Social Security Administration and acquire a PIN that would allow them electronic access to their file in the system, update their information, and lock their file for purposes of employment
TITLE III - VISA REFORMS
Backlog Reduction and Numerical Limit Reforms:
Reduction of existing backlogs: Permits the “recapture” of unused employment-based visas and family-sponsored visas from fiscal years 1992-2008 and allows future unused visa numbers to roll over to next fiscal year. Immediate relatives are exempted from the annual cap on the number of immigrant visas. This section increases the percentage limit of visas which may be issued yearly to a single country.
Promotion of Family Unity: To recognize family unity principles and facilitate backlog reduction, reclassifies spouses and children of lawful permanent residents as immediate relatives. The government is given greater discretionary authority to waive unlawful presence bars to reunite families upon a demonstration of hardship for applicant’s U.S. citizen or lawful permanent resident family members.
Sons and daughters of Filipino World War II veterans: Exempts the sons and daughters of Filipino WWII veterans from the annual numerical limitations.
Immigrants with Advanced Skills Exempt from Visa Cap: Exempts several categories of highly skilled workers from the employment-based immigrant visa cap.
Retaining Workers Subject to the Green Card Backlog: Current nonimmigrant skilled workers whose employer has petitioned for an employment-based green card on their behalf and their dependents will be permitted to file an application for adjustment of status, regardless of whether a visa is immediately available. An applicant under this section must pay a supplemental $500 fee, to be used by DHS for backlog reduction and clearing security background check delays. The Secretary shall provide employment and travel authorization in 3-year increments while the application is pending.
Protection of Children and Families:
Relief for Orphans and Widows: Ensures that surviving spouses and children applying for adjustment of status or naturalization, including spouses and children of asylees and refugees, retain eligibility for waivers and other considerations that would have been available to them at the time of the petitioner’s death. Reform of Cancellation of Removal: Permits immigration judges greater discretion in determining eligibility requirements for long-term lawful permanent residents seeking cancellation of removal. Eliminates prohibitions on including time spent in the United States after becoming inadmissible or being placed in removal proceedings as counting towards continuous presence requirements for cancellation of removal. Protection for Refugees, Parolees or Asylees: Prohibits the removal of any individual who fled his or her homeland for fear of persecution before the age of twelve and was subsequently admitted into the United States as a parolee or refugee or was granted asylum in the U.S. Enhanced Protections for Children: Revises current law to ensure that the children of fiancés of United States citizens will be protected from aging out of eligibility to adjust to conditional resident status by requiring that eligibility determinations are based on the child's age at the time the U.S. citizen files a petition for classifying the child's parent as a fiancé or spouse. Eliminates he requirement that stepchildren must have been under the age of 18 at the time the qualifying marriage took place in order to be classified as a child for purposes of immigration eligibility.
Limits on Removal for Parents of U.S. Citizen Children: Permits an immigration judge to decline to order the removal of the parent of U.S. citizen child if the judge determines that removal would not be in the child's best interests and the parent is not subject to removal based on national security, terrorism or trafficking grounds.
Determinations under the Haitian Refugee Immigration Fairness Act of 1998: This section amends the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) to preserve eligibility for children of applicants based on their age on the date of enactment of HRIFA and permits new applications and motions to reopen on that basis.
Affidavit of Support: Revises the eligibility requirements for sponsorship of immigrants by reducing the level of support required from 125% of poverty level to 100% of poverty level.
Return of Talent Program: Permits lawful permanent residents to temporarily return to their home country to assist in post-conflict or natural disaster reconstruction activities, for up to two years without losing credit towards time as a continuous resident of the U.S. for purposes of applying for naturalization.
Humanitarian Visa Program to Prevent Unauthorized Migration (PUM Visa):
Prevent Unauthorized Migration Visa (PUM Visa) Creates a stop-gap new visa program that will provide for safe, humanitarian migration during the three-year transition period before the implementation of recommendations made by the new Labor Commission.
One hundred thousand PUM visas will be made available annually, for three years, to persons from sending countries of unauthorized migration to the United States to be distributed on a percentage basis through a lottery system.
Individuals may apply to the lottery if they are not present in the United States at the time of filing, do not have other family or employment-based means to immigration, submit to criminal background checks, and have completed less than a 4-year college degree program.
Individuals awarded visas will be admitted to the United States as conditional residents and may petition to remove the condition after three years upon showing they have good moral character, pass all required background and security checks, comply with all tax requirements and other factors, including payment of a $500 fee that will be used to fund security and employment programs.
TITLE IV – EARNED LEGALIZATION PROGRAM FOR THE UNDOCUMENTED
Visa Program for Qualified Undocumented Workers: Creates a program providing conditional nonimmigrant status for undocumented immigrants (and their spouses and children) in the U.S., which is valid for six years.
Features of the Conditional Nonimmigrant Program:
Provides conditional nonimmigrant visa applicants with work and travel authorization and protection from removal
Bars related to undocumented status will be waived (security and criminal bars cannot be waived)
Contains provisions for administrative and judicial review of denied applications
Requirements for Conditional Nonimmigrant Status: The alien must:
Establish presence in the U.S. on the day of introduction, and continuously thereafter
At time of registration, attests to contributions to the U.S. through employment, education, military service, or other volunteer/community service (with exemptions for minors, persons with disabilities, the elderly, or other unusual circumstances)
Complete criminal and security background checks
Pay a $500 fine plus necessary application fees (fine exemption for children and certain immigrants who initially entered the U.S. before the age of 16)
The individual shall be ineligible to receive a visa as a result of a serious criminal conviction, persecution of another person or reasonable grounds for believing that the alien committed a particularly serious crime abroad
There is a penalty of up to five years' imprisonment for anyone who willfully falsifies information in an application for conditional nonimmigrant status
Adjustment of Status to LPR: Provides qualified conditional nonimmigrants and their spouses and children with an opportunity to apply for lawful permanent resident status (green card) and eventual citizenship.
Features of the Earned Adjustment of Status Program:
No green cards may be issued under this program earlier than six years after the date of enactment unless existing immigrant backlogs have been cleared before that time
The Department of State and DHS are required to provide any requesting law enforcement entity with information furnished on an application in connection with a criminal or national security investigation or prosecution
New penalties for making false statements in an application for earned citizenship are created
Immigrants who adjust from a conditional nonimmigrant visa (including dependents) to lawful permanent resident status shall not be counted against the worldwide numerical visa caps
Those appealing decisions associated with the application for adjustment to permanent status have access to a defined administrative and judicial process
Special Rule for Persons Brought to the United States Before the Age of 16: In order to simplify processing of applicants under CIR ASAP, those persons ordinarily covered under the DREAM Act will apply for status through the same program outlined above, with the following special features:
No fines for persons who were brought to the United States before the age of 16, have resided in the U.S. for at least five years, and were 35 years of age or less
Such persons will be eligible for accelerated LPR status upon graduation from high school, and completion of two years of college, military service, or employment. Persons granted LPR status under this provision will be eligible for naturalization three years after the date LPR status is granted
Graduation from a U.S. high school or receipt of an equivalency degree will meet the English proficiency requirement
Individual states permitted to determine residency requirements for in-state tuition purposes
Requirements for Earned Adjustment: The applicant must:
Demonstrate contribution to the United States through employment, education, military service, or voluntary or community service, where applicable
Complete criminal and security background checks
Establish registration under the Selective Service (if applicable)
Meet English and civics requirements
Undergo a medical examination
Pay all taxes
Show admissibility to the U.S
Other Provisions in Title IV:
AgJOBS Act of 2009
TITLE V - STRENGTHENING AMERICA'S WORKFORCE
Title V of CIR ASAP strengthens America's workforce by reforming the badly-flawed H-1B, H-2B and L-1 visa programs and establishes a Commission on Immigration and Labor Markets to provide researched, unbiased, accurate recommendations for future flows of workers. It also permanently reauthorizes the EB-5 visa program and establishes stricter requirements for employers and recruiters of foreign workers. Title V additionally establishes the American Worker Recruit and Match System which will match qualified individuals with job opportunities in fields that traditionally have relied on unauthorized labor. Furthermore, this title establishes the Security and Prosperity Account which directs funds raised from fines in the earned legalization program to fortify America's workforce, integrate new Americans and safeguard our borders.
Commission on Immigration and Labor Markets: Title V establishes a new independent federal agency known as the Commission on Immigration and Labor Markets. The Commission will:
Establish employment based-immigration policies that promote economic growth and competitiveness while minimizing job displacement, wage depression and unauthorized employment
Create and implement a policy-focused research agenda on the economic impact of immigration on multiple levels
Collect and analyze information on employment-based immigration and publish the data and analysis
Recommend to Congress and the President appropriate methods for determining the levels of employment-based immigration and assessing the effects of such immigration as well as the numerical levels and characteristics of procedures for future flows of workers to be admitted into the United States
Security and Prosperity Account: The Security and Prosperity Account is established in Title V to fund efforts to strengthen our workforce, including:
Grants to states for adult and dislocated worker employment and training activities
Funding for the Electronic Employment Verification System to ensure that all individuals working in the U.S. are authorized to do so
Funding for the Commission on Immigration and Labor Markets to provide sound, researched and objective employment based immigration policy
Dislocated workers assistance national reserve funding
Establishment of AWRMS programs and funds educational purposes
Funding to reduce the USCIS visa backlog to ensure a timely and reliable process for all individuals applying for visas and further the integration of new Americas with programs that, for example, facilitate citizenship for legal permanent resident students and create citizenship promotion services
Funding for border security, detention and enforcement activities
American Worker Recruit and Match System: Title V establishes the American Worker Recruit and Match System (AWRMS), which is an internet-based program that is set up by each State Workforce Agency (SWA) to be incorporated into current Web-based job search engines. AWRMS is a searchable database that allows employers to post job opportunities in fields that have traditionally relied on unauthorized labor. In addition, individuals can post their employment profiles and AWRMS will match employers with qualified individuals.
Protecting Workers: Title V protects foreign workers from exploitation and abuse by ensuring that each prospective employee is provided a written description of the terms of their employment which may not knowingly include any misleading or false information. In addition, each employer must provide to the Secretary of Labor the identity of all recruiters working on their behalf and any possible violations committed by a recruiter. An employer will be held responsible for the actions of a recruiter and may be subject to civil penalties.
H-1B visa program: The current H-1B visa program does not adequately protect American or H-1B workers. Title V reforms the H-1B visa program to:
Ensure that before an employer can hire an H-1B worker, the employer must meet strict requirements for the recruitment of American workers
Authorize the Department of Labor (DOL) to initiate investigations into possible fraud and abuse in the absence of a formal complaint and/or the Secretary's approval.
Increase penalties for violations
Authorize the DOL to conduct annual audits of employers that rely heavily on the H-1B program
L-1 visa program: The L-1 visa program is currently vulnerable to fraud and abuse. CIR ASAP authorizes the Secretary of Homeland Security to audit L-1 visa participants. Penalties will be assessed for violations of the provisions of the L-1 visa program.
H-2B visa program: The H-2B visa program is reformed to prevent the exploitation of H-2B non-immigrants and the depression of wages and other workplace abuses by exploitative employers. Reforms to the program:
Include stricter requirements for recruitment of American workers
Prevent employers from participating in the program if they have conducted a mass lay-off in the past year and includes strengthened worker protections
EB-5 Visa program: The EB-5 Visa program is permanently reauthorized within Title V with an increase in available visas to 10,000. It also allows for an expedited processing of petitions for a fee of $2,500. The definition of Targeted Employment Area (TEA) is expanded to include:
Counties with a 20 percent or more population decrease since 1970
Areas within the boundaries of state or federal economic development incentive programs
Areas designated as TEAs by a state agency authorized by the Governor
Areas designated as TEAs during the two year period before visa application
In addition, Title V requires the Secretary of Homeland Security to study and report on the current job creation counting methodology and how to promote the employment creation program to overseas investors. Lastly it creates a new category of job-producing foreigners eligible for visas: venture capitalist seeking a Founder's visa.
TITLE VI - INTEGRATION OF NEW AMERICANS
Immigration Fees: Immigration fees have risen steeply in the past decade. Title VI will ensure that future fee increase requests receive closer scrutiny than provided by the largely perfunctory regulatory public comment process. Title VI incorporates and expands on provisions of the Citizenship Promotion Act of 2007 to make citizenship more accessible and affordable. This title:
Provides for greater transparency for immigration application fees and encourages a uniform process to submit fee waiver applications
Provides for uniform administration of the naturalization exam
Promotes citizenship of the elderly by adjusting the age requirements for English language exemption
Improving the Naturalization Process: The process for naturalization is lengthy and difficult to navigate. Title VI creates reforms that encourage citizenship among immigrant communities. This section requires timely response on background checks and evaluates their efficiency. In addition, this title includes a grant program for community based organizations to promote and help immigrants prepare for citizenship. These grants in support of naturalization efforts will assist legal permanent residents with:
English language and citizenship classes
Community outreach activities
Assisting aliens with applications for citizenship
Integration Grant Programs:
Title VI includes a grant program for education, training and support efforts relating to the provisions of the CIR ASAP Act, including protections from immigration fraud and the availability of benefits provided by the act. Provisions ensure that to the extent possible, the nonprofit community organizations receiving grants serve geographically diverse and ethnically diverse locations.
USCIS Grant Program: Title VI establishes a grant program within USCIS that provides funding to community-based organizations, including community-based legal service organizations, as appropriate, to develop and implement programs to assist eligible applicants for naturalization. Grants provided for in Title VI will be funded through fees and fines deposited in the Security and Prosperity Account.
Initial Entry, Adjustment, and Citizenship Assistant Grant Program: Title VI establishes the Initial Entry, Adjustment and Citizenship Assistance Grant Program. IEACA grants will be awarded to community-based organizations for the design and implementation of programs to provide the following services:
Assistance and instruction, including legal assistance, to aliens making initial application for conditional nonimmigrant or conditional nonimmigrant dependent classification
Assistance and instruction, including legal assistance, to aliens seeking to adjust their status
Assistance and instruction to applicants on the rights and responsibilities of US citizenship and English language proficiency
Improving Naturalization for Legal Permanent Residents: Facilitates citizenship among Legal Permanent Resident students that want to naturalize. Legal Permanent Resident students will be deemed to have satisfied the language and civics requirements for naturalization if they are able to demonstrate they graduated high school after completing grades 6 through 12 in the United States and the curriculum reflects knowledge of U.S. history, Government, and civics.
Strengthening Communities: Title VI strengthens and unites communities by creating incentives for English language acquisition programs. Creates tax credits for teachers in limited English proficient schools. Provides employers with a tax credit for qualified English language education programs. Authorizes states to form State New American Councils comprised of 15-19 individuals from state and local government, business and community organizations.
Celebrating Citizenship: Title VI celebrates the citizenship of new Americans and encourages these individuals to integrate into their communities. It provides for the availability of funds to the Director of USCIS or to approved public or private nonprofit entities to support public ceremonies for administering oaths of allegiance to naturalizing legal immigrants. Independence Day naturalization ceremonies include appropriate outreach, ceremonial, and celebratory activities. This program shall be funded through fees and fines deposited in the Security and Prosperity Account.
Colorado Supreme Court Holds that Raid of Immigrant's Tax Preparer Violated Fourth Amendment
In a 4-3 decision in People v. Gutierrez, the Colorado Supreme Court held that a trial court properly suppressed evidence obtained pursuant to an unlawful search of defendant’s tax returns. The documents were found in Gutierrez’s files that police seized from his tax preparer’s office. The Court held that Gutierrez has standing under the Fourth Amendment to object to a search of his client file. A taxpayer has a reasonable expectation of privacy in his or her tax returns and return information, even when that information is in the custody of a tax preparer. This reasonable expectation of privacy is based on federal and state laws that protect the confidentiality of tax returns and return information. The Court also held that Gutierrez’s client file was searched in violation of the Fourth Amendment. The affidavit supporting the warrant did not name Gutierrez or refer to him in any way and therefore failed to establish individualized probable cause to search his client file. Finally, the Court found that the good faith exception to the exclusionary rule does not apply in this case, because the affidavit supporting the warrant was so lacking in indicia of probable cause to search Gutierrez’s file that no reasonably well-trained officer could have relied on it. Therefore, suppression of the evidence was appropriate and the judgment was affirmed.
The case arose from a 2008 raid of a local tax preparer's office (Amalia's Tax and Translation, a business that caters to Spanish-speaking clients) aimed at building identity-theft cases against undocumented immigrants. The raid was part of "Operation Numbers Game," an investigation launched by a local sheriff and district attorney that aimed to use tax returns to identify and prosecute undocumented immigrants. More than 100 persons reportedly were arrested because of the raid.
December 14, 2009
Supreme Court Grants Cert in Immigration Case
The Supreme Court today granted cert in an immigration case. Here is the information that SCOTUS blog has on the case:
Title: Carachuri-Rosendo v. Holder
Issue: Whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.
Under the Immigration and Nationality Act, a lawful permanent resident who has been “convicted”of an “aggravated felony” is ineligible to seek cancellation of removal. 8 U.S.C. § 1229b(a)(3). The courts of appeals have divided 4-2 on the question presented by this case.
SCOTUS blog has links for the
-- Opinion below (5th Circuit)
-- Petition for certiorari
-- Brief in opposition
-- Petitioner’s reply
-- Amicus brief of the National Association of Criminal Defense Lawyers et al.
-- Amicus brief of the Center on the Administration of Criminal Law
UPDATE: The University of Houston Law Clinic is the co-counsel for the noncitizen in the case and and will be assisting a D.C. law firm,O’Melveny & Myers with briefing before the Supreme Court.
NEW AMERICANS IN THE CORNHUSKER STATE Immigrants, Latinos, and Asians are Growing Economic and Political Force in Nebraska
The Immigration Policy Center has compiled research which shows that immigrants, Latinos, and Asians are an important part of Nebraska's economy, labor force, and tax base. Immigrants and their children are a growing economic and political force as workers, consumers, taxpayers, and entrepreneurs. With the state working towards recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of the Cornhusker State. Highlights from Nebraska include:
• Nebraska was home to 98,512 immigrants in 2007.
• 37.0% of immigrants in 2007 (or 36,423 people) in Nebraska were naturalized U.S. citizens who are eligible to vote. • Latinos accounted for 7.5% (or 133,093) and Asians 1.4% (or 24,844) of Nebraskans in 2007.
• The 2008 purchasing power of Latinos totaled $2.8 billion and Asian buying power totaled $1.0 billion in Nebraska in 2007.
• If all unauthorized immigrants were removed from Nebraska, the state would lose $852.4 billion in expenditures, $378.6 million in economic output, and approximately 5,400 jobs.