Archive for the ‘Legal Topics’ Category

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.

How long in US before deported?

Sunday, May 6th, 2018

 

Immigration court cases now involve more long-time residents, according to this report.

The latest available data from the Immigration Court reveals a sharp uptick in the proportion of immigration court cases involving immigrants who have been living in the U.S. for years. During March 2018, for example, court records show that only 10% of immigrants in new cases brought by the Department of Homeland Security had just arrived in this country while 43% had arrived two or more years ago, and 25% at least four years ago,

In contrast, the proportion of individuals who had just arrived in new filings during the last full month of the Obama Administration (December 2016) made up 72%, and only 6% had been here at least two years. During the period between May 2013 and February 2017 over 75% of all court cases involved those who had only recently arrived. During this period the Obama Administration had prioritized recent illegal entrants to the country. Faced with a growing court backlog and not enough judges to hear and decide new cases, DHS believed this focus would serve as a more effective deterrent. Concentrating limited resources in this manner naturally increased the odds that recent illegal entrants and over-stayers would be promptly deported.

The top 25% of cases in terms of length in the U.S. were about this long in the U.S. at a minimum:

2000 – 2003 about 6 years

2004 – 2005 about 3 years

2006 – 2012 8 years or higher

2013 – 2016 rapidly descended to and stayed at zero years.

TheMigration Policy Institute wrote, “the Obama-era policies represented the culmination of a gradual but consistent effort to narrow its enforcement focus to two key groups: The deportation of criminals and recent unauthorized border crossers. Eighty-five percent of all removals and returns during fiscal year (FY) 2016 were of noncitizens who had recently crossed the U.S. border unlawfully. Of the remainder, who were removed from the U.S. interior, more than 90 percent had been convicted of what DHS defines as serious crimes.”

2017 rapidly rose to 4 years.

Note that these figure are not for deportations but for being brought before an immigration court.

Federal judge defends DACA

Thursday, April 26th, 2018

John Bates, judge in the federal district court of the District of Columbia, and a Republican appointee, struck down on April 24 the administration’s rescission of the DACA program. He gave the administration 90 days to come up with a better justification for ending DACA. If it fails to do so, Bates will order the government to open up DACA for any new applicant as well as protect those already awarded DACA status.

As noted by the Washington Post, The program has transformed the lives of hundreds of thousands of immigrants, allowing them to get driver’s licenses, qualify for in-state tuition, buy homes and attend college and graduate school. They must meet educational and residency requirements and cannot have serious criminal records.

From the conclusion of Bates’ opinion:

the Department’s decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision. And although the government suggests that DACA’s rescission was also predicated on the Department’s assessment of litigation risk, this consideration is insufficiently distinct from the agency’s legal judgment to alter the reviewability analysis. It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency’s action. For these reasons, DACA’s rescission was unlawful and must be set aside.

For the reasons given above, then, the Court will vacate the Department’s September 5, 2017 decision to rescind the DACA program. The Court will stay its order of vacatur for 90 days, however, to afford DHS an opportunity to better explain its view that DACA is unlawful.

Also, in the body of his opinion, Bates wrote:

The Rescission Memo made no mention of the fact that DACA had been in place for five years and had engendered the reliance of hundreds of thousands of beneficiaries, many of whom had structured their education, employment, and other life activities on the assumption that they would be able to renew their DACA benefits. 24 The Supreme Court has set aside changes in agency policy for failure to consider reliance interests that pale in comparison to the ones at stake here. See, e.g., Encino Motorcars, 136 S. Ct. at 2126 (setting aside the Department of Labor’s interpretation of a statutory exemption from the Fair Labor Standards Act’s overtime-pay requirements, in part because the agency had failed to address “decades of industry reliance” on its prior view that the exemption applied to a particular class of employees). Because DHS failed to even acknowledge how heavily DACA beneficiaries had come to rely on the expectation that they would be able to renew their DACA benefits, its barebones legal interpretation was doubly insufficient and cannot support DACA’s rescission.

 

The end of discretion in ICE enforcement

Thursday, March 15th, 2018

The American Immigration Council comments on how the Trump administration has toughened ICE removal of unauthorized persons in two ways. One is to expand the scope to include all persons:

“the Trump administration expanded “enforcement priorities” so broadly as to render the term meaningless. As U.S. Immigration and Customs Enforcement (ICE) stated in a year-end report, ICE no longer exempts groups of removable [noncitizens] from enforcement. In other words, all undocumented immigrants have become targets—even if they have lived in the United States for many years, have U.S.-born children, and have never had a run-in with law enforcement.

The second way is to tighten discretion:  On February 20, 2017 “Department of Homeland Security (DHS) memorandum implementing A Trump executive order severely curtailed the ability of immigration-enforcement personnel to assess an individual’s equities when making case decisions. In the words of the memo: “prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of [noncitizens] from enforcement of the immigration laws.” Put differently, all DHS personnel “shall faithfully execute the immigration laws of the United States against all removable [individuals].”

The Council notes, “One of the crucial mechanisms in the enforcement of U.S. immigration law and criminal law is the exercise of discretion—and not just prosecutorial discretion. At the broadest level, discretion refers to the decision by a law-enforcement officer, prosecutor, or some other government official to pursue (or not pursue) the enforcement of certain laws against a person, or group of people, who may have violated those laws.

Also go here.

 

Executive Branch tightens up legal immigration

Thursday, November 23rd, 2017

 

The Customs and Immigration Service has been tightening up the flow of legal immigration. This from Bernard Wolfsdorf, past national president of the 14,000-member American Immigration Lawyers Association (AILA), Joseph Barnett, both of Wolfsdorf Rosenthal LLP:

“USCIS is now issuing lengthy detailed requests for evidence contesting every issue and requiring unreasonable quantities of proof in regard to any application for an immigrant or non-immigrant visa or adjustment of status.

“USCIS is adjudicating nonimmigrant visa applications with the goal to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” Immigration petitions should include an argument on how the issuance of a visa or other immigration benefit promotes these policy goals.”

The Wall Street Journal adds, “H-1B applications for positions at the lowest pay level are getting particular scrutiny, with the government questioning whether the foreigner holds required specialized skills, according to several immigration attorneys. A directive from the agency specifically questions whether a computer programmer is a specialty occupation that qualifies for the visa. Many of these applications are being denied, attorneys say.”

The WSJ cites the following other changes in administrative practice:

*Eliminate a provision that spouses of H-1B workers have the right to work.

*Kill the Optional Practical Training program, which allows foreign graduates from U.S. colleges in science and technology an extra two years of work authorization, giving them time to win an H-1B visa.

*USCIS directed last month that adjudicators no longer pay “deference” to past determinations for renewal applications. This means an applicant’s past approval won’t carry any weight if he or she applies for a renewal.

*The agency is conducting more applicant interviews, which critics say slows the system. The agency spokesman said this process will ramp up over several years and is needed to detect fraud and make accurate decisions.

*In the spring, the agency suspended premium processing, which allowed for fast-track consideration to those who paid an extra fee. This option wasn’t resumed until October, meaning many workers who qualified for a coveted H-1B visa had to wait months for a decision.

Biggest settlement ever for hiring undocumented workers

Tuesday, November 21st, 2017

The government settled in September with a company for $95 million over past used of undocumented workers. This is the largest settlement ever with an employer over illegal employment.

The Trump administration is, in effect, going after employers with the threat of huge fines, and avoiding the worksite raids which, around 2006, caused terrible press. This strategy is consistent with my prior comments that this administration will drive as far as possible to throttle immigration through Executive Branch initiatives that do not require the participation of Congress.

The government’s press release includes: “Asplundh Tree Experts, Co., one of the largest privately-held companies in the United States, headquartered in Willow Grove, Pennsylvania pleaded guilty today [Sept. 29, 2017] to unlawfully employing aliens, in connection with a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States.

“The $95,000,000.00 recovery, including $80,000,000.00 criminal forfeiture money judgment and $15,000,000.00 in civil payment, represents the largest payment ever levied in an immigration case.

“According to court documents, from 2010 until December 2014, Asplundh, an industry leader in tree trimming and brush clearance for power and gas lines, hired and rehired employees in many regions in the United States accepting identification documents it knew to be false and fraudulent. A six-year HSI audit and investigation revealed that the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.

“This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit. With a motivated work force, including unauthorized aliens willing to be relocated and respond to weather related events around the nation, Asplundh had crews which were easily mobilized that enabled them to dominate the market. Asplundh provided all the incentives to managers to skirt immigration law.”

Illegal border crossings declined by less than reported

Friday, September 29th, 2017

 

The media has been mis-reporting the pace of illegal entry when it gives the impression that the arrival of the Trump administration led to a drastic reduction in illegal crossings, based on apprehension volume. Media reports tend to cite a 40% or greater reduction. A more accurate decline is 25%, and the monthly trend through August shows shrinking of the amount of decline.

Apprehensions rose strongly during May – October 2016, before the election, to a peak of 68,000, well above the monthly average in the past five years of about 45,000. Apprehensions Nov 2015 through August 2016 were a 462,000 vs 320,000 the Nov. 2016 – August 2017. That is a 27% reduction.

From November 2016 through April, 2017, the monthly rate did drop precipitously to about 15,000. Since then it has risen every month to 31,000 in August. After one excludes the very high August of 2016, the August average of the prior four years is 39,000. This indicates a 25% reduction. Trend lines suggest that the reduction since the election will decline.  The next 12 months may be about 350,000 vs an average of about 400,000 if one leaves out the particularly high year of 2016.

Source is here.