Archive for the ‘Legal Topics’ Category

Mexican Border apprehensions high

Thursday, November 29th, 2018

The Trump Administration is frustrated that illegal border crossing attempts, while much lower than in the 1990 – 2008 period, appear to be higher in 2018 than they have since 2012.

Apprehensions along the Mexican border are thought to reflect the total numbers of persons trying to cross the border illegally. There have been estimates that apprehensions are roughly half of the number of people attempt to cross illegally. Between 2012 and 2015, Border Patrol apprehensions along the Mexican border in October were around 30,000. In 2016, they rose to 40,000, apparently due to attempting to cross before the Trump Administration came to power. They dropped back to the 30,000 level in 2017, but now in October 2018 were about 51,000, the highest since 2012.

Pew Research estimates that There was an average of 386,000 annual arrivals of unauthorized persons for the 2011-16 period, compared with 715,000 for the 2002-07 period. That amounts to a 46% decline. (Source here).

The percentage of apprehensions involving families rather than single adults rose from 3.6% in 2013 to 24.9? in 2017. (Source here).

Another category are inadmissables – persons presenting themselves at legal ports of entry but being denied entry. The October 2018 number was about 7,500, which is consistent with past years.

From here and here.

 

Legal grounds for denying entry to US.

Wednesday, November 21st, 2018

This section of immigration law is fascinating. This section may be Trump’s best tool to radically restrict immigration flows without having to consult Congress. His just announced decision to refuse to hear certain asylum petitions, and his impending changes to public charge criteria, arise from this section.

The law is found in Title 8, Chapter 12, Subchapter II, Part II, § 1182.

1.Health issues (communicative disease, insanity, drug abuser)

2. Crime (including criminal convictions, drug trafficking, prostitution, money laundering)

3. Security and related grounds (including overthrow of government, terrorist activity, member of terrorist organization, “proposed activities…potentially serious adverse foreign policy consequences for the United States”, member of totalitarian organization, current member of Communist party, affiliation with Nazism.

4. Public Charge (“Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.”)

5. Labor certification (“(i) In general, Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that— (I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

6. Illegal entrants and immigration violators (including “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.”)

7. Without documentation

8. Ineligible for citizenship (“Any immigrant who is permanently ineligible to citizenship is inadmissible.”)

9. Those previously removed.

10. Miscellaneous (including polygamists)

Visa denial rate is up under Trump

Thursday, November 15th, 2018

In 2018, the D.H.S. turned away 10% of applicants for employment authorization documents compared with 6% in 2016, and it rejected applications for advanced parole — which gives temporary residents the authorization to travel internationally and return — at a clip of 18%, more than doubling the rate in 2016. Even skilled workers are being rejected at higher rates. The denial rate for petitions for temporary foreign workers shot to 23% from 17%. The application for permanent workers saw denials rise to 9% from 6%.

The largest increase in the denial rate for family-sponsored applications, for petitions for fiancés, rose to 21% from 14%.

A new analysis for the Cato Institute has found that the Department of Homeland Security rejected 11.3% of requests, including for work permits, travel documents and status applications, based on family reunification, employment and other grounds, in the first nine months of 2018. This is the highest rate of denial on record and means that by the end of the year, the United States government will have rejected around 620,000 people — about 155,000 more than in 2016.

This increase in denials cannot be credited to an overall rise in applications. In fact, the total number of applications so far this year is 2% lower than in 2016. It could be that the higher denial rate is also discouraging some people from applying at all.

From the NY Times

Migrant Justice Suit against ICE

Wednesday, November 14th, 2018

Federal immigration authorities used a civilian informant to infiltrate meetings of Migrant Justice, which advocates for Vermont’s immigrant farmworkers, the group contended as it filed a lawsuit in U.S. District Court in Burlington on Wednesday November 14, 2018.

Migrant Justice alleges that group members were targeted and detained as part of a national effort against immigrant rights advocates.

The Vermont Department of Motor Vehicles has been helping Immigration and Customs Enforcement and the Department of Homeland Security to engage in an “unlawful, multi-year operation to surveil, harass, arrest and detain” farm worker activists, Migrant Justice said in a statement. Its suit names ICE, DHS and the DMV as defendants.

Documents obtained through public records requests show that the DMV forwarded the plaintiffs’ personal information to ICE when they applied for the state’s driver privilege card, the group asserts. Immigration enforcement officers also engaged in the electronic surveillance of one Migrant Justice member, the suit alleges.

About 40 Migrant Justice members have been arrested in the last two years, and the majority of them have been deported, said Will Lambek, the group’s spokesman. At least 10 of those arrested are believed to have been targeted because of their activism, Lambek said.

The plaintiffs seek a federal injunction to stop the defendants from “targeting, surveilling, infiltrating, spreading misinformation, arresting and detaining Migrant Justice members,” as well as prohibiting DMV employees from sharing information with federal immigration enforcement agencies, according to a statement from Migrant Justice.

From Seven Days

 

Where non-citizens can vote

Tuesday, November 13th, 2018

My city of Montpelier Vermont voted this week to allow non-citizens to vote in local elections.

Early permissiveness. From 1776 to 1926, 40 states and federal territories permitted non-citizens to vote in local, state, and even federal elections. Non-citizens also held public office. In practice, immigrant voting promoted civic education and citizenship.

Retrenchment in late 19th – early 20th C. Noncitizen voting was abolished at the same time that other restrictive measures were also enacted by elites, including literacy tests, poll taxes, felony disenfranchisement laws, and restrictive residency and voter registration requirements—all of which combined to disenfranchise millions of voters. Efforts to “clean up” what were allegedly rampant “corrupt” practices in local government and electoral politics by big city “party machines” associated with immigrants culminated in a series of reform measures that were passed by state legislatures at the end of the nineteenth and beginning of the twentieth century.

A come back. Since 1988, Chicago permits non-citizens to vote in school board elections (as did New York City from 1969 until 2003 when school boards were eliminated for unrelated reasons), and non-citizens currently vote in six municipalities in Maryland. These jurisdictions make no distinction between documented and undocumented immigrants—all non-citizens are permitted to vote in these local elections (as was true in New York City). Since the 1990s, Cambridge, Amherst, Newton, and Brookline, Massachusetts, have extended the right for documented non-citizens in local elections.

In 2010, voters in San Francisco narrowly defeated a ballot proposal (Proposition D) that would have granted all parents and guardians of children in the public school system voting rights in school board elections, regardless of their immigrant status. In 2016, voters passed a similar proposal (Proposition N).

Republican attack.  The House passed on September 26, 2018 a resolution to rebuke cities that allow non-citizens to cast votes in certain local elections.

Content from here.

 

 

 

Examples of sanctuary city programs

Thursday, November 1st, 2018

Chicago’s July 2012 Welcoming City Ordinance, per a press release from the city, “builds on an existing ordinance and longtime City policy that prohibits agencies from inquiring about the immigration status of people seeking City services, and provides that the Chicago Police Department will not question crime victims, witnesses and other law-abiding
residents about their legal status.

Santa Clara County, in which San Jose is located, has a Rapid Response Network, to alert people about ICE raids. “Training is led by Pangea Legal Services, Sacred Heart Community Service and PACT: People Acting in Community Together. The Rapid Response Network aims to expand the community’s capacity to monitor and document ICE operations in real time.”

New York City enacted in December, 2017 a law (2017/228) “That would prohibit City agencies from partnering with the U.S. Department of Homeland Security to enforce federal immigration law, including through 287(g) agreements. Additionally, this bill would prohibit the use of City resources, property, and information obtained on behalf of the City in furtherance of federal immigration enforcement.”

San Francisco passed in 1989 the “City and County of Refuge” Ordinance (also known as the Sanctuary Ordinance). The Sanctuary Ordinance generally prohibits City employees from using City funds or resources to assist Immigration and Customs Enforcement (ICE) in the enforcement of Federal immigration law unless such assistance is required by federal or state law. In 2013, San Francisco passed the “Due Process for All” Ordinance. This ordinance limits when City law enforcement officers may give ICE advance notice of a person’s release from local jail. It also prohibits cooperation with ICE detainer requests, sometimes referred to as “ICE holds.”

(Source: here.)

Immigrants in the military

Wednesday, October 10th, 2018

Since Sept. 11, 2001, over 109,250 members of the Armed Forces have attained their citizenship by serving in the military. Today, about 5,000 legal permanent resident aliens (green card holders) enlist each year, eligible for citizenship after a year in the military.   The recent uproar has been about enrollees in a special program started in 2008 to recruit medical and language specialists.

As reported by National Immigrant Forum: “Earlier this summer the U.S. Army forcibly discharged over one hundred immigrant enlistees. The Military Accessions Vital to the National Interest program (MAVNI) promised highly-skilled immigrants an expedient path to citizenship in exchange for their service in the army. As of this week, over 30 recruits have been reinstated into the program, signaling an improving situation. However, more information recently came to light about why immigrant recruits were targeted for removal – recruits were reportedly red-flagged as a security risk for a variety of mundane activities, such as placing calls to their parents abroad and playing video games with noncitizens.”

Background:

Military Accessions Vital to the National Interest (MAVNI) began in 2008 as a pilot program. 10,000 troops have signed up to serve through MAVNI since 2008. New entrants have been suspended since 2016, leaving about 1,000 persons in still under review.

The program is restricted to healthcare professionals or experts in certain key languages with associated cultural backgrounds. Around 30% of MAVNI recruits were assigned to Special Operations units due to their language abilities, (go here).

MAVNI program applicants must be in a legal immigration status, with a valid temporary visa. The applicant must have been in valid status for at least two years prior to the enlistment date.

For a Defense Dept. fact sheet go here. It says that non-citizens have served in the military since the Revolutionary War. The Lodge Act of 1950 permitted non-citizen Eastern Europeans to enlist between 1950 and 1959. The United States officially began recruiting Filipino nationals into the Navy in the late 1940s.

 

Trump interior enforcement summarized

Tuesday, October 9th, 2018

The fortunes of an unauthorized immigrant are quite different in Texas, Tennessee and Georgia with the mere act of driving can result in an arrest and deportation, then in California, Chicago and New York where immigrants can be arrested for a variety of crimes and still not be taken into ICE custody.

This from a Migration Policy report, including the following:

The machinery of interior enforcement that had been dialed down during the final Obama years has been revved up by the Trump administration. ICE officers say that widening enforcement and ending prosecution discretion requirements have given ICE the leeway necessary to properly do which job.

The vast majority of arrests and removals (over 70%) arise from arresting persons who are already in local custody, under the 287(g) program. These actions are increasing significantly in cooperating jurisdictions, while the share of deportations due to criminal convictions is declining.

The most important constraint on increasing arrests lies in the limits of ICE cooperation imposed by growing numbers of states and localities that have large foreign-born populations. Transfer of arrested persons to ICE are below historic peaks due to lack of cooperation, for instance by law enforcement in California.

The character and unpredictability of ICE enforcement have generated an overarching climate of fear which is itself serving as an enforcement tool.

Networks of community based actors are responding and successfully providing legal services, know-your-rights, counselling, monitoring, rapid response assistance, and political advocacy in the opposition to iCE enforcement

Brett Kavanaugh’s court record on Immigration

Monday, September 10th, 2018

Because the federal D.C. Circuit rarely hears cases directly involving immigration law, Kavanaugh has only written three opinions in cases involving immigrants. All three opinions were dissents, where Kavanaugh stated that he believed the immigrant should have lost the case.

In 2008, Kavanaugh issued his first major dissent in a case involving immigrants. In Agri Processing Co. Inc, v. National Labor Relations Board, Kavanaugh declared that undocumented immigrants should not be entitled to labor-law protections because they were not legally permitted to be “employees.”

Even though the Supreme Court had years before declared that undocumented immigrants were “employees” for the purposes of labor law, Kavanaugh argued that a 1986 law making it a crime to employ undocumented immigrants had implicitly overruled the Supreme Court. The majority on the D.C. Circuit called his reasoning illogical and accused him of misapplying principles of statutory interpretation.

Next, in 2014, Kavanaugh wrote a dissenting opinion in Fogo de Chao Holdings Inc. v. U.S. Department of Homeland Security. In that case, Washington, DC restaurant Fogo de Chao applied for an L-1 visa to bring a chef from Brazil to the United States. Fogo de Chao argued that the chef had “specialized knowledge” in churrascaria cooking and methods, a form of Brazilian barbecue that the restaurant is known for.

The government initially denied the chef’s visa. In overturning the denial, the D.C. Circuit criticized the government’s “wooden refusal” to consider that specialized knowledge might come from a person’s upbringing, family, and community tradition.

However, Judge Kavanaugh dissented strongly. He framed the dispute as simply about the restaurant “want[ing] to employ Brazilian chefs rather than American chefs,” and suggested that hiring such chefs was just trying to “cut labor costs masquerading as specialized knowledge.”

Finally, Judge Kavanaugh dissented in the 2017 case of Garza v. Hargan, in which an undocumented teenager sued the Department of Health and Human Services Office of Refugee Resettlement for preventing her from obtaining an abortion. He accused the majority of a “radical” expansion of the law, suggesting that the D.C Circuit had created a “new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

From here.

Asylum seekers at border face stronger headwinds 8 21 18

Saturday, August 11th, 2018

The Washington Post reports that a judge threatened to hold Atty General Sessions in contempt over a court review of an asylum appeal by a El Salvadoran woman and her daughter.

Immigration Impact says that for border crosses, fewer are getting approvals for asylum. Per TRAC, the share of asylum requests being turned down by immigration judges has skyrocketed since mid-2017.

How it works

Here is what happens for border crossers without proper documentation. They are subjected to a fast-track deportation process called “expedited removal,” unless they express fear of returning to their home countries. These individuals must be referred to an asylum officer for a “credible fear interview” to assess the likelihood of making a successful asylum claim.

During the interview, if the asylum officer finds that there is not a “significant possibility” that the asylum seeker could establish eligibility for asylum, the asylum-seeker can appeal to an immigration judge for a Credible Fear Review (CFR). The judge’s decision on the matter is final. Currently about 500 CFR cases are decided each month, down from about 700 cases per month in 2015-2016.

The data analyzed by TRAC indicate that the share of positive outcomes nationwide from CFRs had fallen to 14.7% as of June 2018 which is less than half of what it was in June 2017 (32.7%).

Depending upon the particular Immigration Court undertaking the credible fear review, the proportion of asylum seekers passing this screening step varied from as little as 1% all the way up to 60%. Thus, whether or not asylum seekers receive favorable CFR court decisions appears to be largely driven by which Immigration Court and judge heard their cases.

Sessions’ remarks on October 12, 2017

The system is being gamed. The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.

Here are the shocking statistics: in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The number of these aliens placed in removal proceedings went from fewer than 4,000 in 2009 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving those with just claims buried.

The increase has been especially pronounced and abused at the border. From 2009 to 2016, the credible fear claims at the border went from approximately 3,000 cases to more than 69,000.