Musings on Immigration

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ICE ERO To No Longer Require Detainees’ Signatures on G-28s

The American Immigration Lawyers Association announced yesterday that ICE will no longer require a detained foreign national’s signature on Form G-28s, Notice of Entry of Appearance as Attorney or Accredited Representative. This is a welcome announcement as some local offices were refusing to speak to a detained individual’s attorney under the excuse that the detained individual had not signed a Form G-28. 

Detained foreign nationals are routinely moved during their first few days of detention with no notice to their families. For example, in Georgia, detained foreign nationals are commonly moved between two rural locations (Lumpkin, Georgia, and Irwin, Georgia). This constant movement, combined with the rural locations and lack of notice, made it effectively impossible to obtain a signed G-28 in the first few days of a foreign national’s detention. Thus, detained foreign nationals were denied the benefit of an attorney and their families were unable to obtain legal updates on the case for several days.

Bieber Update – Back By Popular Demand

Justin Bieber can finally stop holding his breath.  The White House has finally responded to the “Deport Justin Bieber and Revoke His Green Card” petition.  As I’m sure you all remember from my previous post, “angry” citizens had petitioned the White House to have Bieber deported following his arrest in Miami on DUI and resisting arrest charges.  As I pointed out in that post, the petition was misguided in that Bieber is in the United States on an O visa, not as a green card holder.  I also boldly predicted the White House would pass the buck saying they don’t comment on specific cases.  I don’t get tired of saying, “I was right.”
Though the White House statement was a typical non-answer, it was at least amusing, which is not typical of the White House.  After saying that they were “sorry to disappoint, but [they] won’t be commenting on this one,” referring to the petition, the White House used the opportunity to push for immigration reform.  This is where the White House got witty.  In support of the call for immigration reform, the post points out that reform will “grow our economy and shrink our deficits by almost $1 trillion in the next 20 years.  For those of you counting at home, that’s 12.5 billion concert tickets – or 100 billion copies of Mr. Bieber’s debut album.” The White House, I’m guessing for the first time in history, then quoted Bieber lyrics in calling on Republicans to schedule a vote on reform saying “never say never – House Republicans could do this tomorrow.” 
So to recap: I was right, the White House made essentially no comment on Bieber’s case; the Obama Administration is witty or at least amusing, if not cheesy; and the White House call for reform continues. 

Just When You Thought Your Old Conviction After a Jury Trial Would Leave You with a Permanent Inability to Seek Relief in Removal Proceedings, Think Again!

On February 28, 2014, the Board of Immigration Appeals issued a precedent decision opening new avenues of relief for many individuals with old criminal convictions they otherwise
thought would forever prevent them from seeking relief before an Immigration Judge.  See
Matter of Ezzat H. Abdelghany, 26 I&N Dec. 254 (BIA 2014).  This BIA Decision held that "[a] lawful permanent resident who is otherwise eligible for relief under former section
212(c) of the Act may apply for such relief in removal or deportation proceedings
without regard to whether the relevant conviction resulted from a plea agreement or a
trial and without regard to whether he or she was removable or deportable under the
law in effect when the conviction was entered".  Id.
Until this Decision was issued, those who were found guilty of a crime after a jury trial entered before April 24, 1996, were not eligible to apply for discretionary relief under former section 212(c) of the Act.  Former 212(c) relief is a section of the law that has since been repealed, but remains available to those in removal proceedings with a conviction that pre-dates April 24, 1996.  Now, even those who requested a jury trial and were then found guilty can apply for this relief in removal proceedings.  This new case not only assists those who are currently in removal proceedings, but also those who currently have an order of removal. 
If this applies to you, you need to speak with an experienced immigration attorney as soon as possible to discuss your options, whether you're currently in removal proceedings or you have already lost your green card as a result of an order of removal.  Please contact me directly at 404.949.8151
to schedule an appointment. 

Yasiel Puig’s Exceptional Yet Typical Immigrant Story

A story recently came out about Los Angeles Dodger star Yasiel Puig, detailing his defection from Cuba and immigration to the United States.  The account details how Puig escaped Cuba with the help of Los Zetas, one of the most well-known narco-trafficking organized crime groups in the world, how he was held captive in a shady hotel in Mexico and threatened with dismemberment by machete by the Zetas while the group negotiated a ransom with a corrupt businessman in the U.S.  The U.S. businessman purportedly arranged Puig’s defection with the help of the Zetas in exchange for twenty percent of all of Puig’s future earnings.
A couple of things about the story stood out to me.  First, the story of Puig is not news in the sense that this is typical of many people who immigrate to the U.S. from different countries every year.  Nearly everyone who tries to immigrate to the U.S. without authorization employs what are commonly known as “coyotes,” smugglers connected to organized crime groups (like the Zetas) who prey on people who are desperate to improve the lives of themselves and their families by risking everything to come to the U.S.  What happened to Yasiel Puig happens to many people every day, people are kidnapped, raped, tortured, killed or held for ransom.  This story is garnering so much attention is because it is about a person with exceptional baseball skills, but I sincerely hope that people realize this is not unique situation.
Second, I think the Puig story illustrates just how desperate people are to come to the U.S.  When you stop and think about it, how bad must it be in immigrants’ home countries that they are willing to risk life and limb to leave and seek even a sliver of opportunity?  Contrary to anti-immigrant belief, people generally do not come to the U.S. just to piss the anti-immigrant off personally.  People immigrate to the U.S. for many reasons: escape communism; avoid starvation; avoid torture and persecution; and to try and give their families a future.  If nothing else, I hope the Puig story helps everyone to look on immigration with an empathetic eye, understanding the truly human elements that spark people to seek better lives.

USCIS Announces new DACA Renewal Rules and Form . . . Are Coming Soon!

USCIS has finally posted an update on the renewal process for the Deferred Action for Childhood Arrivals program. The notice is preliminary and subject to change, but it does  it offers over half a million DACA recipients vital information about what they should do to prepare for the road ahead.
The update clarifies DACA renewal issues regarding adjudication procedure, evidence and timing. USCIS will release the updated DACA application form in late May.  No one may file a renewal before that date on the current form (other than those granted Deferred Action by ICE).  As it pertains to required evidence for the renewal, applicants will only be required to submit new documents pertaining to removal proceedings or criminal history that were not been previously submitted to USCIS. 
Because USCIS anticipates adjudicating renewal requests within 120 days, we recommend DACA recipients file for renewal approximately 120 days before the expiration date of their initial DACA grant, but no earlier than 150 days (five months) prior to expiration. USCIS states that it will not accept DACA applications filed more than 150 days in advance of a DACA expiration date.  USCIS states that it “may” provide an automatic extension of the original DACA grant, but appears to limit the automatic extension to individuals who file between 150 and 120 days before their DACA expiration date.
With the release of the updated DACA application form in late May, USCIS will finalize the details of the renewal process.

Good News - Potential Employment Authorization for Spouses of H-1B Workers

On April 7, 2014, the White House announced that “The Department of Homeland Security will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness.  These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers.”

This is big news for the spouses of H-1B employees who are in the United States.  Under current rules, spouses of H-1B workers are allowed to accompany their husband or wife but cannot work in the United States.  This lack of work authorization for spouses has long been a complaint of high-skilled H-1B employees, particularly as H-1B employment can last up to 6 years (and in certain cases, even longer).  Many talented workers are put off by the fact that their spouses will have to put their careers on hold during their time in the United States.  

In short, this is a welcome change that will indeed help America continue to attract the brightest and the best. 

Ignorance on Both Sides of the Debate

     With deportations at record levels, both sides of the immigration debate are blaming each other. Congress is accusing the president of ignoring the law, while the President and his advisers maintain their hands are tied because of Congress. Both sides are talking at each other when they should be talking to each other. Several quotes in a recent New York Times article are perfect examples of the ignorance that plagues those who should be the most informed on the issue and demonstrate why it is just so hard to get something done.

     This, from one of the more powerful Republican senators running off at the mouth demonstrating how ignorant he is on one of the more important economic issues of our day:
“The administration has carried out a dramatic nullification of federal law. Under the guise of setting ‘priorities’, the administration has determined that almost anyone in the world who can enter the United States is free to illegally live, work and claim benefits here as long as they are not caught committing a felony or other serious crime.” - Senator Jeff Sessions

     What is wrong with this guy? First, nullifying federal law…what! I know he went to law school a few decades back, but I don’t think he is fully familiar with the definition of nullification. There is nothing about setting enforcement priorities that violates the law, much less nullifies it. Under the Immigration and Nationality Act the executive branch has wide discretion in how it enforces the law. If Mr. Sessions doesn't like the way the executive branch is exercising its discretion then maybe he and his colleagues should change the law. Disagreement with a policy decision is one thing, but to label it nullification is a bit of a stretch. Second, when are people going to get it through their heads that undocumented people cannot avail themselves of the benefits of the welfare state? As I have mentioned in previous posts, there are some negative externalities associated with the social welfare system when it comes to the issue of immigration, but the proper forum for those issues is a debate about the social welfare system, not the immigration system. I hope that he doesn't actually believe this nonsense and it’s just political pandering…at least that wouldn't be as embarrassing.

Next one is from a White House domestic policy adviser:
“The president is concerned about the human cost of separating families, but it’s also true that you can’t just flip a switch and make it stop.” - Cecilia Muñoz

     Actually Ms. Munoz, the president could flip a switch and make it stop. He has the discretionary authority to defer enforcement action on cases for humanitarian reasons, whether he has the moral and political courage to actually do it has yet to be seen.  There is nothing humane about the removal of a person from the United States, especially when that person has lived most of their life here or has kids who were born here. If the president really wanted to stop all this madness he could simply tell ICE to stop placing people in removal proceedings that meet certain criteria. It is that simple and the switch can be flipped…all it takes is a bit of character and courage.

     I am still optimistic that we will see some sort of change in the law in the near future, but is it any wonder that we don’t have something yet when the very people who should be the most informed are this ignorant?

Asylum Backlog - Tips While You Wait

The most common question that clients ask when they are considering filing an application for asylum is how long the process takes.  The response to this question has changed over the years.  Most recently, however, my response has been:  I wish I knew.  Two or three years ago my estimate of 9-12 months was fairly accurate and consistent. However the processing times of recently filed asylum applications have ranged widely, some taking as little as several months for a decision and others have taken years.  Currently there is a documented backlog in affirmative asylum applications of around 40,000 cases and the numbers continue to increase.  A majority of these backlogged cases were filed last year alone.  

The main reason for the backlog is simply an issue of supply and demand. Beginning in Fiscal Year 2012, the number of credible fear and reasonable fear interviews, which take priority in scheduling over asylum interviews, began to increase exponentially. Meanwhile, affirmative asylum applications have increased as well. And while demand has increased, and theasylum offices are working to keep up with the supply by training new officers that can adjudicate casesthe demand still outweighs the supply.

Some tips if you are among those in the backlog:

    If you get scheduled for an interview, try and avoid rescheduling;
    If you have a serious need to expedite your case, you may submit a request to expedite with a proof of your need for it. It is possible for an asylum office to override their system and schedule an interview expeditiously if the situation warrants;
    Any address changes must be made in writing to the asylum office where the case is pending, cannot be made online with regard to a pending I-589 application. Changes in address within the jurisdiction of your current asylum office does not stop the work authorization clock (However if the new address is under the jurisdiction of a different asylum office the system will automatically change the jurisdiction of the case to the new asylum office, and will stop the EAD clock);
    Continue to collect any documents in support of your claim for asylum that you come across, or have the ability to obtain, while you wait for your interview and keep abreast of any possible changes in your country’s conditions and be prepared to address them at your interview, particularly if they could appear to have improved

It can be extremely frustrating and unsettling for an individual to make the difficult choice to flee their homes in pursuit of stability and security then have to wait for months and years to know whether they really are stable in the United StatesI often try and comfort applicants with the knowledge that they wouldbe eligible to file applications for employment authorization cards that will permit them to work, get driver’s licenses.  Also I have seen many clients have a change in life circumstances that open up different (read: faster) doors to immigrating to the U.S.  If you have a long pending asylum application and are wondering if you’ll ever be interviewed, you can take comfort in the fact that, at the very least, you are not alone.  

"SAVE" me. How USCIS Corrects Errors In Its Database to Permit Legal Foreign National to Obtain Driver's Licenses

If I have heard it once, I have heard it 50 times in the last year.  A foreign national is denied a driver's license at the Department of Driver's Services ("DDS") because their immigration status cannot be confirmed through the "SAVE" database.  SAVE is the Systematic Alien Verification for Entitlements program run and administered by USCIS. In Georgia, all public benefit applications, like a Driver's License, must be verified as properly given only to legal and documented foreign nationals.   Even though an applicant has presented a valid document, like a permanent resident card, work permit, or a valid visa and I-94 card, sometimes the "SAVE" database does not show the person as properly documented.  Usually, this is because of a USCIS error in their database.  Most times DDS tell the foreign national to "go to USCIS to "fix" the problem."  Not exactly the most helpful advise.  So, how does a person actually fix this problem in the USCIS database that is stopping them from getting a driver's license?

Here is a summary of the process to correct the "SAVE' database, courtesy of the USCIS's Denver Field Office.  After setting up an "Infopass" with your local USCIS office, you talk to the USCIS Infopass officer that calls your assigned appointment number. She or he will ask you for your "SAVE" number.  According to USCIS:
The SAVE Program requires that the DMV (or other benefit granting agency) provide applicants who are not verified with SAVE, after the agencies have followed all three verification steps, with a records correction fact sheet and a SAVE verification number. The fact sheet advises applicants on how to correct their records with USCIS and specifies that they can schedule an appointment using InfoPass. When the applicant/customer comes in with an issue related to a SAVE Program verification, we ask for the SAVE verification number. If the customer does not have a SAVE verification number, we provide the customer with a SAVE letter and ask them to go back to the DMV (or other benefit granting agency) to get the number. Once the customer provides us with the verification number, we contact SAVE regarding the verification using an internal helpline. In cases where SAVE advises that the customer was verified, SAVE tells us to have the customer go back to the DMV (or other benefit granting agency) to complete his or her application process. In cases where the SAVE Program could not verify the customer’s current immigration status, we have to order the A-file to identify and resolve the issue. Usually, it is a name or date of birth issue, which we can normally fix locally. It is important to note that USCIS does not correct information in SAVE. Rather, USCIS corrects information in an individual’s USCIS immigration record that can then be accessed by SAVE.
From experience, it can take 30-90 days to correct a SAVE database error.  

Should you have an issue with your Driver's License or any other public benefit for you are qualified, follow this guidance to get the USCIS database corrected, and return and get your Driver's License issued.   

Stop Blaming the Undocumented

I'm relatively new to the social media game so I'm still surprised by some of the nonsense that permeates the twittosphere. It's easy to see how public ignorance is perpetuated with all the obfuscation out there. Nowhere was this more apparent than on the Facebook page of a politician who shall remain nameless. Note - If you really want to know who it is, Google "Florida politician Iraq interrogation incident" and read up on him.

Anyway, he posted a picture to his page that showed some colorful text written on the back of a van. The text was in Spanish and urged people to sign up for the Affordable Care Act (also known as Obamacare); informing them that it was totally free. The post was accompanied by the following:

Unbelievable. Guess where Obamacare navigators are signing up enrollees now. Who needs amnesty when you can get free healthcare anyway?

There are so many things wrong with this that I don’t even know where to start. First, just because an advertisement or public announcement is in Spanish doesn't mean that its target is the undocumented immigrant community. Last time I checked you can still be a citizen and speak primarily Spanish. Second, if you are an undocumented immigrant or a lawful permanent resident within the first five years of your residency, you are not eligible for any means tested public benefit. For those that don’t believe me, take a look at the affidavit of affidavit of support that must be signed on behalf of any intending immigrant. Divorce won’t even wipe out that obligation!

Now if you point this out to anybody associated with the anti-immigrant crowd, the first response you’ll get will be something like, “…yeah, but even if they can’t get welfare, they have anchor babies and they get all kinds of welfare for them.” True, but the law does not distinguish between citizens who are “anchor babies” and those who are not…yet! I am no fan of the welfare state, but to attribute its negative externalities to the millions of undocumented immigrants in our country is intellectually dishonest.
If you want to hear more about this or any other immigration related topic, you can listen to @ckuck and @rockyrawcliffe discussing it here and here on @theimmhour.