October 26, 2012
Family Visa Petitions WebinarFrom the Immigrant Legal Resource Center:
This webinar is intended for legal service providers who are new to the area of family-based immigration and will focus on the basics of the family visa petition. We will cover which relatives can qualify for family-based immigration and how they fit, and move around the preference categories with events such as marriage, divorce or the naturalization of the petitioner. The discussion will include an overview of the Child Status Protection Act and the rules applying to widows and other beneficiaries when the qualifying relative dies. We will also review how priority dates are established, lost and recaptured, as well as the role of the visa bulletin and what happens when the visa availability date advances or regresses. The webinar will conclude with a brief introduction to the second step in the family immigration process, the adjustment of status under INA 245(a).
Presenters: Lourdes Martinez, Staff Attorney, and Erin Quinn, Staff Attorney
Date: November 2, 2012
Time: 12:00 pm - 1:30 pm Pacific Time
MCLE: 1.5 CA
Register by: 10/31/12
Comment to Office of Special Counsel on Employer I-9 Self AuditsFrom the National Employment Law Project:
Call for Commentary to Office of Special Counsel for Immigration-Related Unfair Employment Practices on Employer I-9 Self-Audits
The Office of Special Counsel for Immigration-Related Unfair Employment Practices of the U.S. Department of Justice—Civil Rights Division is accepting comments as it prepares to develop guidelines on the topic of employer self-audits of I-9 forms. Comments can be submitted by email to: Osc.Engagement@usdoj.gov<mailto:Osc.Engagement@usdoj.gov>, and must be received by Friday, November 9, 2012.
The Dolores Street Community Services, Impact Fund, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Legal Aid Society-Employment Law Project, National Employment Law Project, National Immigration Law Center, and Women’s Employment Law Clinic of Golden Gate University School of Law encourage advocates for low-wage immigrant workers to timely submit comments to the OSC.
The OSC is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual’s national origin or citizenship status. The statute also prohibits unfair documentary practices during the employment eligibility verification process (I-9 verification process) on the basis of citizenship status or national origin, and retaliation or intimidation on these grounds.
Employers may re-verify, or ask workers to produce their I-9 work authorization documentation after initial verification at time of hire, in limited circumstances. These circumstances include situations where work authorization documents had an expiration date at the time of hire (except for documentation of legal permanent residents (LPRs), whose authorization does not expire), an ICE I-9 audit, or if an employer discovers that I-9 forms or accompanying documents for some employers are missing or incomplete during the course of conducting a self-audit of all I-9 forms in a non-discriminatory manner.
Some employers, however, may use the opportunity to conduct I-9 self-audits in a retaliatory fashion after employees have filed workplace-based complaints, or in the midst of labor disputes or collective bargaining. Employers may also provide little to no notice to workers about the reason for the I-9 re-verification, and fail to provide a reasonable period of time for employees to respond to the self-audit. Through suggested comments, we urge OSC to fulfill its core mission of protecting workers’ rights by supporting the robust protection of labor standards.
Key Points to Raise with OSC:
· OSC should warn employers of the labor and employment law consequences of self-initiated I-9 audits in response to employee complaints or organizing. Employer retaliation through the use of I-9 re-verification may often occur in workplaces involving other forms of workplace violations and abuse. Federal and state labor and employment statutes prohibit retaliation by employers against employees for engaging in protected activity. One additional way that OSC can do so is by incorporating questions into hotline intake that would elicit from employers whether or not the workplace is currently the site of an employment dispute or worker complaint.
· OSC should warn employers against verifying the entire workplace to avoid liability for anti-discrimination complaints under INA or other federal or state civil rights protections, particularly if there is an underlying employment dispute.
· OSC should warn employers that asking for forms of documentation other than those required by law, specifying which documents are acceptable, asking for documentation when it has already done so, or refusing to accept documentation that is legitimate on its face, may be considered discrimination and/or document abuse under 8 U.S.C. § 1324b.
· OSC should engage in multi-agency collaboration to protect the rights of all workers. OSC should thus adopt a multi-agency approach to combating employer retaliation, and work in collaboration other federal agencies, including the U.S. Department of Labor, Equal Employment Opportunity Commission, the National Labor Relations Board, and Immigration and Customs Enforcement, which recognize the importance of enforcing labor standards for all workers regardless of immigration status. See Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites (Dec. 7, 2011), available here.
· OSC should advise employers to provide employees with sufficient notice and opportunity to inspect and correct I-9 forms in question. Consistent with safe harbor regulations adopted by the EEOC and Social Security Administration for no-match letters, OSC should recommend that employers provide a 90-day period for employees to correct I-9 forms in question. Aramark Facility Servs. v. Serv. Empl. Int’l Union, 530 F.3d 817 (9th Cir. 2008); Id. at 829, n.8 (citing EEOC policy recommendation to provide 90-day deadline for employees to “collect, organize, deliver documentation, and perhaps meet with the relevant federal agency and/or seek legal advice while maintaining their work hours.”). The safe harbor period should begin after employers have provided employees with the following information in a language spoke by the worker(s):
1) basis of inaccuracy,
2) a true and complete copy of the I-9 documents in question,
3) the employer’s reason for the I-9 audit, and
4) whether the audit is the result of a self-initiated audit or by ICE.
· OSC should clearly state that re-verification following reinstatement is prohibited.
· OSC should warn employers about the questionable validity of I-9 screening information provided by third party auditors. Employers have increasingly turned to third-party auditors to conduct internal audits, which may raise concerns about the origin and accuracy of data used for audits.
October 25, 2012
The Naturalization Clause in the U.S. Territories: The Insular Cases Revisited
Last month, the U.S. Court of Appeals for the Ninth Ciruit upheld the denial of naturalization applications filed by two lawful permanent residents (LPRs) who had been residing in the Commonwealth of the Northern Mariana Islands (CNMI) for several years. The LPRs submitted their application for citizenship contending that because they had lived in the CNMI, a U.S. territory, for well over the five-year continuous residency requirement established under 8 U.S.C. 1427, then they were eligible to apply for naturalization.
The Ninth Circuit disagreed, holding in Eche v. Holder that the two applicants failed to satisfy the five-year continuous residency requirement. The court acknowledged that one of the applicants had been residing in the CNMI as an LPR since 2000 and the other since 2005. However, according to the court, their presence in the CNMI did not constitute as being present in the United States. That is because it was not until 2009 that the Immigration and Nationality Act became effective in the CNMI. (Congress passed the Consolidated Natural Resources Act of 2008, which extended the INA to the CNMI; prior to that, the CNMI regulated its own immigration laws since 1976, when it became a U.S. territory).
The court relied on the plain language of the CNRA, which stated that presence in the CNMI prior to the CNRA would not constitute "presence in the United States" (except for a specific exception not at issue in the case), to hold that the lawful pre-transition presence in the CNMI did not count towards the five-year requirements for naturalization. (In other words, the appellants would need to reside in the CNMI for at leat five-years after 2009 in order to be eligible to apply for citizenship).
The parties argued that the CNRA created different naturalization rules for the CNMI, which violates the Naturalization Clause, which requires Congress to "establish a uniform rule of naturalization." The Ninth Circuit also rejected this argument. Notably, the court held that under the Naturalization Clause does not apply on its own force in an unincorporated territory like the CNMI. In particular, the court relied on the Insular Cases such as Downes v. Bidwell, 182 U.S. 244 (1901), to hold that the Naturalization Clause did not follow the flag when the CNMI became a U.S. territory.
Why “deferred action” isn’t enough by Michael Olivas
On From the Square nyupressblog, Professor Michael A. Olivas opines that the recently announced Deferred Action for Childhood Arrivals (DACA) policy, and deferred action generally, is just not enough for the undocumented DREAMers.
Argument preview: The retroactive application of Padilla v. Kentucky
Here is my preview on SCOTUSblog of the oral argument before the Supreme Court on October 30 in Chaidez v. Holder. The issue in that case is the retroactive application of Padilla v. Kentucky (2010), in which the Court held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on an attorney’s failure to inform a criminal defendant of the risk of deportation resulting from a plea agreement and criminal conviction.
Earlier this month, the Supreme Court heard oral arguments in another immigration case, Moncrieff v. Holder, which involves the possible removal of a lawful immigrant for a criminal conviction based on possession of a few grams of marijuana.
UPDATE (November 1): Here is a transcript to the oral argument.
Immigration Fraud and DACA - ILRC PodcastFrom the Immigrant Legal Resource Center:
We're pleased to introduce the latest in our series of podcasts, Immigration Fraud and DACA. This essential resource is intended to help DACA applicants protect themselves against immigration fraud. Featuring Nora Privitera, Director of our Anti-Fraud Campaign and Special Projects Attorney, this podcast answers commonly asked questions such as:
Why should DACA applicants worry about fraud?
What is immigration fraud?
Where should I go to get true information about DACA?
How should I go about getting legal advice?
What can happen to me if I go to the wrong person?
Several valuable tips and resources are mentioned in this recording, so we encourage you to take a few minutes to listen and share it with your family and friends. Be on the lookout for more DACA-related resources coming your way soon.
NY Dream Fellowship ProgramFrom the NY Immigration Coalition:
The New York Immigration Coalition, in partnership with the Fund for Public Advocacy, is proud to announce that we are now accepting applications for the 2013 DREAM Fellowship Program. In the spring 2012 semester, the NYIC had the privilege of supporting the inaugural cohort of ten talented DREAM Fellows, who were awarded scholarships toward their CUNY tuition, engaged in leadership development trainings, and gained on-the-ground experience in internships with several of the NYIC's member organizations. It was an enriching and inspirational experience for the students and participating organizations alike, and we are thrilled to announce another DREAM Fellowship cycle for the 2013 spring semester.
We encourage you to share this opportunity with DREAM Act-eligible college students you know who could benefit from this opportunity! The application is now available on our website here.
What is the DREAM Fellowship Program?
The Dream Fellowship Program is a semester-long leadership development program, initiated jointly by the New York Immigration Coalition and the Fund for Public Advocacy. In its first semester in the Spring of 2012, ten college-level DREAM Act eligible student leaders were selected for the fellowship, which included leadership development trainings, internships at community organizations and $2,000 scholarships toward tuition at City University of New York.
The leading impetus for the Fellowship was a vibrant and growing immigrant youth movement. With almost no paid staff, no lobbyists, and few financial resources, undocumented immigrant youth and immigrant communities galvanized a historical movement for passage of the DREAM Act. In the aftermath of Congress’s failure to act, a new sense of urgency emerged. However, DREAMers faced the challenge of continuing to fight for their rights, while still excluded from most of the educational, financial and leadership opportunities their peers had, simply because of their immigration status. To address this disparity, recognizing the tremendous talent and leadership potential of these young people, the NYIC and the Fund for Public Advocacy created the DREAM Fellowship, a program that combines financial assistance with leadership training and hands-on field work.
Immigration Article of the Day: The Partisan Fallout from Arizona's Immigration Battle: Applying Lessons from California by Gregory Robinson, Jonathan S. Krasno, Joshua Zingher, and Michael A. Allen
The Partisan Fallout from Arizona's Immigration Battle: Applying Lessons from California by Gregory Robinson (Binghamton University), Jonathan S. Krasno (Binghamton University), Joshua Zingher (State University of New York at Binghamton), and Michael A. Allen (Binghamton Political Science Department). September 2012
Abstract: We explore the potential political impact of Arizona’s controversial immigration statute, SB 1070, by examining a similar event: the 1994 passage of Proposition 187 in California. Both statutes were efforts to respond to the flow of undocumented immigrants (largely) entering through each state’s border with Mexico, and thus are seen as especially noxious to Latinos. We reexamine and extend the academic literature on the political impact of Proposition 187 and apply the effect estimates to Arizona by simulating the two-party presidential vote from 2012 thru 2032 under a variety of scenarios. Our results show sizable movement toward the Democratic candidate in Arizona — if Latinos and non-Latinos there react to SB 1070 as Californians reacted to Prop. 187. Coupled with population trends, we project the Democrat presidential candidate to become immediately competitive in the 2012 election and to carry the state as early as 2020.
October 24, 2012
Baseball's Sergio Romo, Son of Migrant Workers
The San Francisco Giants are back to the World Series. Wahoo! With Brian Wilson recovering from surgery, the primary role of closer has ben assumed by colorful Sergio Romo. He grew up in Brawley, California, the son of migrant farmworkers from Mexico. Brawley has produced a number of major league baseball players. The opportunity to cross the border and play against great baseball players in Mexicali apparently helped hone baseball skills for others like Romo. Here's a great story on Romo and Brawley that aired on NPR this morning.
Job Openings: ACLU Immigrants' Rights ProjectFrom the ACLU Immigrants' Rights Project
The ACLU Immigrants’ Rights Project has five open positions. Four of the positions are for regionally-based staff attorneys for a term of three years, and one position is for a staff attorney based in NY or San Francisco.
Click here and here.
From the Bookshelves: Punishing Immigrants: Policy, Politics, and Injustice Edited By Charis E. Kubrin, Marjorie S. Zatz and Ramiro Martínez
Arizona’s controversial new immigration bill is just the latest of many steps in the new criminalization of immigrants. While many cite the presumed criminality of "illegal aliens" as an excuse for ever-harsher immigration policies, it has in fact been well-established that immigrants commit less crime, and in particular less violent crime, than the native-born and that their presence in communities is not associated with higher crime rates.
Punishing Immigrants moves beyond debunking the presumed crime and immigration linkage, broadening the focus to encompass issues relevant to law and society, immigration and refugee policy, and victimization, as well as crime. The original essays in this volume uncover and identify the unanticipated and hidden consequences of immigration policies and practices here and abroad at a time when immigration to the U.S. is near an all-time high. Ultimately, Punishing Immigrants illuminates the nuanced and layered realities of immigrants’ lives, describing the varying complexities surrounding immigration, crime, law, and victimization.
October 23, 2012
New Approaches to Migration Management in Mexico and Central America By Francisco Alba and Manuel Ángel Castillo
Migration has emerged as a critical policy issue for Mexico and Central America during the past three decades. This report traces the history of migration and transmigration trends and policy in Mexico and Central America, and examines Mexico’s sweeping 2011 immigration law and implementation challenges.
Latin America Ignored At Third U.S. Presidential Debate
There is lots of critical analysis in the news of the third and final debate between U.S. Presidential candidates Mitt Romney and Barack Obama. As this piece on Huffington Post by Roque Planas observes, Latin America unfortunately does not seem to be at the forefront of either of the candidates' global outlook:
"In a debate centered on foreign policy, President Barack Obama and his GOP opponent Mitt Romney found ways to mention Detroit and Massachusetts, while completely ignoring Mexico -- the country of origin of 60 percent of undocumented workers in the United States, the site of a U.S.-led drug war that has claimed an estimated 60,000 lives, and the ancestral country of some 33 million U.S. Latinos . . . . Mexico is also the United States' third largest trade partner, federal data indicates."
October 22, 2012
Attorneys Fees Awarded in FOIA Request Against USCIS
Congratulations to Kip Steinberg, Esq.!
From Kip Evan Steinberg:
In a case I litigated pro bono for five years concerning the government’s failure to provide evidence of my client’s alleged “false testimony” in a naturalization case, the district court has awarded $321,000 in attorneys’ fees under the FOIA. The Court said that “Defendants’ delays and withholding may not have been in good faith” and “the evidence suggests its actions teeter on the edge of obduracy.”
In the underlying case, the Court had found that USCIS improperly withheld non-exempt documents; engaged in a pattern and practice of violating FOIA’s time limit provisions; and promulgated Track Three FOIA processing in violation of the Mayock Settlement Agreement and the APA. The Court issued a permanent injunction ordering USCIS to provide a copy of an “A” file for all requestors within the 20 day period mandated by the FOIA and to give written notice if a 10 day extension of time is needed due to “unusual circumstances”. The government has appealed the underlying case to the Ninth Circuit.
Note: This is the fifth district court opinion related to this litigation. In case anyone is interested, the citations are:
2011 WL 2118602 (MSJ/Natz)
849 F. Supp. 2d 945 (Natz Order)
2012 WL 4113203 ( $66,764 in Atty Fees/Natz)
832 F. Supp 2d. 1095 (MSJ/FOIA)
2012 WL 4903475 (Atty Fees/FOIA)
Immigration Staff Attorney Opening: Asian Law Caucus in San FranciscoFrom the Asian Law Caucus:
The Asian Law Caucus, in San Francisco, is currently hiring for a staff attorney to focus on immigrants' rights issues. The position offers a unique opportunity to both work closely with low-income, immigrant communities and to engage in impact litigation on immigrants' rights issues. The ALC is one of the few organizations in the Bay Area providing removal defense for low-income immigrants, and its impact litigation docket includes, for example, the challenges to the anti-immigrant laws in Georgia and Alabama. Click here for the full job announcement.
John Lennon and George McGovern: Another Side of the 1972 Campaign
Senator George McGovern, 1972 Democratic Presidential candidate, died this weekend at age 90. Jon Wiener's blog post at The Nation tells an old story of immigration court, the INS, John Lennon, and Senator McGovern.
From the Bookshelves: WITHOUT SIN: A Novel By David S. McCabe
As a U.S. Border Patrol Agent and a former Navy Seal, Garrett Harrison is intimately familiar with the notion of duty and the necessity of upholding the law. However, his world is forever changed when he discovers two women brutally murdered and one man clinging to life in the desert wilderness of Otay Mesa. At the same time, Angelina Marguerite, an ill-starred seventeen-year-old prostitute working in a brothel in Tecate, Mexico desperately clings to her faith in God. She hopes for deliverance from the cruel, ambitious drug dealer known as El Cacique who lured her to el norte with the promise of marriage and prosperity, only to force her into prostitution. Meanwhile, the director of a parochial school serving primarily children from migrant families accepts donations from a priest that she suspects molests children. Amidst this corruption and exploitation, Garrett and Angelina fall in love and soon discover that the pursuit of opportunity, liberty and true love comes with a price.
David McCabe is the Coordinator of the Teacher Preparation Program at Pasadena City College and has been an educator in Southern California for twenty years where he has worked closely with migrant children and their families. During his career he has had to confront such serious issues as child abuse, drug use and molestation as well as help families gain access to the services they needed while coping with fears surrounding their immigration status. He currently serves as the advisor for Students Beyond Boundaries, a student organization advocating for the rights of all people. David lives with his wife and son on their small ranch in Southern California.
October 21, 2012
Good News on the Horizon? ICE Scaling Back 287(g) Program
Michelle Waslin on Immigration Impact reports that the 287(g) program has been controversial and criticized for years, and immigrant advocates have demanded that Immigration and Customs Enforcement (ICE) terminate the program. Section 287(g) of the Immigrtaion & Nationality Act allows the Secretary of Homeland Security to enter into agreements that delegate immigration powers to local police. A new development raises questions about the future of the program.
ICE recently sent letters to all jurisdictions that have 287(g) partnerships informing them that their Memoranda of Understandings (MOAs) – which expired on September 30 – have been extended through December 31, 2012. Additionally, ICE stated that they are phasing out the 287(g) task force models because they “have proven to be a less efficient means of identifying priority individuals subject to removal compared to other enforcement programs.” It is unclear whether task force models will be ended after December 31, or whether a more gradual phasing out is planned. Apparently ICE is phasing out the task force model in favor of Secure Communities, which is already activated in most jurisdictions across the country.
Jeremy Redmon of the the Atlanta Journal-Constitution reports on an interesting coincidence facing actor Tony Guerrero. In “Undocumented Executive,” a low-budget comedy, Guerrero plays an undocumented immigrant from Mexico who lands a top corporate job. Like his character, Guerrero is an undocumented immigrant from Mexico. However, a happy ending is not in sight. Guerrero must leave the United States by January 24 or face deportation. "So Saturday night’s film premiere at the Plaza Theatre will also serve as a going away party."