Archive for the ‘Legal Topics’ Category

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.

Mass Supreme Court: Detaining is unconstitutional

Tuesday, July 25th, 2017

Per the Boston Globe, The state’s highest court ruled Monday that under Massachusetts law, local law enforcement officials cannot hold a person who is wanted solely for immigration violations, a ruling that provides a legal basis for sanctuary cities to refuse to cooperate with federal officials.

The Supreme Judicial Court ruling is believed to be the first court decision in the country to forbid local authorities from enforcing federal immigration laws, unless the state Legislature passes a law that specifically allows it.

Since, State Police have held 27 people on detainers from Immigration and Customs Enforcement, or ICE. Other agencies have refused to honor the requests.

“Conspicuously absent from our common law is any authority . . . for police officers to arrest generally for civil matters, let alone authority to arrest specifically for civil immigration matters,” the court ruled.

ICE issues hundreds of detainers in Massachusetts each year. Local municipalities including Boston, Cambridge, and Somerville, and some states, including California and Connecticut, have established policies that forbid law enforcement officials from assisting their federal counterparts in enforcing immigration laws. But Monday’s decision was believed to be the first by a state’s high court to forbid officers from arresting or holding someone based on an immigration violation.

Attorney General Maura Healey praised the decision. She had asked the court to find that federal authorities cannot force local officials to hold someone on a detainer under state law. Lawyers for Healey’s office had argued in court filings that local law enforcement officials can still play a role in helping federal officials when an immigrant wanted for deportation poses a public safety risk — for instance by alerting authorities of a suspect’s whereabouts. But they argued that those decisions should be left to local agencies.

In its ruling, the Supreme Judicial Court said that the Legislature could consider passing a law that would regulate how local law enforcement officials can assist federal authorities but left that consideration to lawmakers. “State law must affirmatively grant authority to state and local officers to enforce federal immigration law before arrest can be made on that basis,” the court said.

Do non-citizens vote in American elections? Recent evidence says no.

Tuesday, July 4th, 2017

The evidence available, drawing from extremely little legal enforcement action (mostly tied to local scandal) and from a recent study (by voting fraud allegers) of Virginia, is that the number of non-citizens voting is infinitesimally small, under one tenth of one percent of actual voters, and probably that is a gross over-estimate. In contrast, the allegers of voting fraud are saying that somewhere around 10% of non-citizens voted and that somewhere around 2% of all voters were non-citizens.

For my state of Vermont, which is subject as all other states to Kobach’s demand for voter data, a high estimate of non-citizens registered (per the analysis below) is a total of 39.

Background: Kobach

Kansas Secretary of State Kris Kobach, who co-chairs the Trump Administration’s Presidential Advisory Commission on Election Integrity (VP Pence is chair) announced on November 30, 2016 that it was a “reasonable estimate” that 3.2 million people could have voted illegally based off a survey of the 2008 presidential election.

The Kansas secretary of state said data showed that 11.3% of non-citizens in the United States said they had voted in that year’s election. He pulled this figure from the heavens. There are 43 million immigrants of which 95% are 18 and older . About half are naturalized. Kobach is in effect alleging that of about 20 million non-citizens 18 or old, 11.3% or 2.3 million voted illegally. (If all of Kobach’s 3.2 million voted illegally and were non-citizens 18 or over, that implies that 16% of non-citizens voted.

On the face of it, this allegation implies national. massive, orchestrated campaigns of voter fraud. Actual systemic voting fraud cases of late involve at most dozens of voters and are local in nature.

A disputed 2014 research article

Kobach and allies have leaned on a 2014 article authored by Old Dominion University researchers that “6.4 percent of non-citizens voted in 2008 and 2.2 percent of non-citizens voted in 2010.”

The article was based on no original inspection of records or surveying but rather on a study by the Cooperative Congressional Election Study of surveys done in 2008 and 2012. The CCES researchers disparaged the Old Dominion article asserting that is drew unwarranted inferences from a very small sample size (such as under 200 positive results from a total survey population of 19,000). The title of the CCES December 2015 refutation: “The perils of cherry picking low frequency events in large sample surveys.”

The Virginia allegations

In May of this year a Public Interest Legal Foundation – sponsored report, “Alien Invasion,” produced figures of what it called non-citizens with Virginia driver licenses who voted. If you examine its figures, and compare them with Virginia population and voting numbers, these non-citizen estimates come to one third of one percent of adult non-citizens, and an infinitesimally small percentage of total voting in Virginia.

The Virginia report compared motor vehicle registration data (which has a field for citizen status), registration rolls, and actual voter counts. I have grossed up the figures, which covered most but not all voter districts, in order to show complete statewide estimates. The adjusted figures indicate that over a six year recent period 2,415 non-citizens were registered to vote and that they voted 9,745 times. These are definitely not the figures that Kobach and allies want to hear about. The reason is that the 2,415 is an extremely tiny share of the approximately 400,000 non citizen adults living in Virginia at the time.

The reasonable explanation is that many or most of the 2,415 persons either became citizens later or mistakenly listed themselves as citizens (consistent with survey errors found by CCES). Also, the 9,745 votes over a six year period is a vanishingly small share of the roughly 18 million times people voted in Virginia over the six year period.

Sanctuary Cities: the legal battle

Saturday, February 25th, 2017

Does the Trump administration have the legal power to withhold federal funds from sanctuary cities? Below is an analysis of the legal battle. In sum, the battle is partly over whether sanctuary cities are in violation of federal statute for failing to detain persons arrested  (San Francisco says no), and whether all federal funds or only a very small segment of them is at risk.

The details:

On January 25, President Trump said, “And finally, at long last, cracking down on Sanctuary Cities. It’s time to restore the civil rights of Americans to protect their jobs, their hopes, and their dreams for a much better future. Congress passed these laws to serve our citizens. It is about time those laws were properly enforced. They are not enforced.”

A law suit by San Francisco filed on January 31, in response to a Trump Administration executive order signed on January 25 sets out the legal parameters of the sanctuary city issue. The suit says that the Executive Order threatens the loss of $1.2 billion in Federal funds, 13% of the city’s annual budget.

“Sanctuary city” is an informal term with no legal meaning The SF suit describes what local orders generally do: “They specifically prohibit local law enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer requests, which are voluntary, and limit when local law enforcement officers may give ICE advance notice of a person’s release from local jail.” SF is referring to its Administrative Code, Chapters 12H and 12I. A detainer request is a request by the federal government that a city detain in custody persons who have been arrested.

The Executive order says that sanctuary cites are in violation of Title 8, Section 1373 of the United States Code, “which provides that local governments may not prohibit or restrict any government entity or official from “sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual.”

The SF suit says that it and other sanctuary cities are not in violation of this law. It cites a May 31, 2016 report by the Inspector General of the Justice Department on what constitutes a violation of Section 1373. The IG’s report includes examples of sanctuary city ordinances. It suggests that violation of Section 1373 puts at risk State Criminal Alien Assistance Program (SCAAP), which for the top ten sanctuary jurisdictions came to $342 million in 2015.

The SF suit says that Section 1373 does not require cities to respond to requests by the federal government to detain persons. Further it says that “No federal funds received by San Francisco have statutory conditions specifically requiring compliance with Section 1373.”

 

Trump re-setting expectations about unauthorized population

Sunday, February 19th, 2017

The Trump administration appears to have a strategy to change public expectations about the future of the 11 million unauthorized persons in the country.

Coming into 2017, the public appears to strongly favor a policy of eventual citizenship for these persons, based on a poll published in the Atlantic. Such a policy is apparently supported even by conservative Republicans. Thus, the default position of Americans has been light on deportation and heavy on normalization, with an expectation that legalization is the assumed solution.

The Trump administration is trying to reverse the expectations, to induce the public to expect mounting deportation as the default approach, with legalization being the exception.

An Executive Order on January 25 basically criminalizes the eight million illegal workers, the vast majority of whom do not have a felony or major misdemeanor record, for abuse of social security card identification.

The arrest in Phoenix on February 8 and deportation of Guadalupe Garcia de Rayos marks the start of what I expect to be a pattern of strict enforcement of this Executive Order. De Rayos, who illegally entered in the 1990s with her parents when she was 14, was convicted in 2009 for felony criminal impersonation – using another person’s social security card. Federal felony categories are here. De Rayos’ conviction was a Level 6 felony in Arizona – the mildest in the state’s categories.

In 2013 she was the subject of a removal order, but she also was the subject of court-ordered supervision, which meant she wouldn’t be immediately deported. De Rayos is the mother of two children born in the United States.

Daniel Ramirez Medina, a 23-year-old man who arrived in the U.S. at age 7 and had DREAMER (DACA) permission to stay in the country, was arrested who authorities say he violated DACA standards due to his being a gang member. DACA deferment is not allowed for those who “have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.”

Department of Homeland Security and the Justice Department will, I expect, repeat many times these kinds of arrest and deportation, first taking on cases that allow for immediate deportation without chance of a check by a court.

It will then probably expand the scope of its arrests to include those for whom a check by a court is possible. The January 25 EO (“Enhancing Public Safety in the Interior of the United States”) included persons with criminal charges, persons who “committed acts that constitute a chargeable criminal offense, persons who “ have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency”, and person who “have abused any program related to receipt of public benefits.”

 

Trump Administration greatly expands scope of unauthorized persons to be targeted.

Sunday, January 29th, 2017

With so many initiatives by the Trump Administration since January 25, one has to be selective about which to focus on. Here I describe an order which in effect increases the number of unauthorized persons in a priority status for deportation from about 820,000 to at least 4 million, and probably several million more out of a total of 11 million.

The NY Times addressed it. David A. Martin principal deputy general counsel of the Department of Homeland Security from January 2009 to December 2010 analyzes the Order here.

The order is Executive Order: Enhancing Public Safety in the Interior of the United States.

The January 25 order greatly expanded the criteria to include:

(b) Have been charged with any criminal offense, where such charge has not been resolved [thus not yet brought to trial]

(c) Have committed acts that constitute a chargeable criminal offense [thus not even indicted]

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency [thus using borrowed or stolen social security number. About half of the 8 million unauthorized workers in regular employment. Almost by definition these 4 million meet this criterion.]

(e) Have abused any program related to receipt of public benefits [very broad, may include school lunch and other food aid programs]

(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States [this suggests that cases under appeal will be included]

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Re-activation of Section 287(g)

The order brings back this section which “authorize[s] State and local law enforcement officials to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary.”

How will police departments respond to more aggressive deportation?

Saturday, November 26th, 2016

Charlotte, North Carolina, provides an example of the issues facing police departments, which may conflict with local sheriffs and corrections departments.

According to the Charlotte Observer, “In the summer of 2015, then-Charlotte police chief Rodney Monroe told City Council that enforcing federal immigration law was not part of CMPD’s [Charlotte-Mecklenburg Police Dept.] mission.”

It goes on:

Monroe was discussing a civil rights resolution, which stated that CMPD officers would not ask about a suspect’s immigration status during routine police work. The resolution went further: During the course of an investigation, an officer might be told or learn a person is in the country illegally. CMPD’s position was to refrain from reporting them to U.S. Immigration and Customs Enforcement, except in cases of a gang or terrorism.

The department’s policy – which was approved by the City Council – led some to designate Charlotte a “sanctuary city,” a moniker the city disputed.

At the time, Monroe said it was important for people to feel comfortable talking with police as witnesses or people with information. Kerr Putney, the current chief, also agreed with that approach. Monroe said it wasn’t CMPD’s job to enforce federal tax laws, and he said it wasn’t the department’s job to enforce immigration laws either.

CMPD’s more lenient position differs from that of the Mecklenburg Sheriff’s Office, which administers the county’s jail. Ten years ago, the sheriff’s office became the first law enforcement agency east of Phoenix to participate in the Department of Homeland Security’s 287(g) program, in which all non-U.S. born arrestees are checked for being a “potentially removable alien.” Four other N.C. counties have similar agreements with ICE – Wake, Cabarrus, Gaston and Henderson counties. “We have no reason to believe there will be any changes to the 287(g) program in the short term,” said Mecklenburg Sheriff Irwin Carmichael in a statement last week. “We will have to wait and see how the Trump administration impacts 287(g).”

Thanks to David for pointing this out.

 

A graph showing the Obama administration’s enforcement of immigration law

Monday, September 19th, 2016

If anyone thinks with Donald Trump that the administration has been lax in enforcing the laws, this page shows that enforcement is so high that there is a backlog of a half million cases at immigration courts.

More details:

The number of judges continue to prove insufficient to handle the growing backlog in the Immigration Courts. The problems are particularly acute for handling even priority cases like those involving unaccompanied children and women with children according to the latest court data updated through the end of August 2016 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

The backlog of pending cases involving unaccompanied children reached 73,649 at the August 2016, while the backlog of cases involving women with children is even larger and rose to 83,949 last month. Together they now account for nearly one third (31%) of the court’s overall backlog of a record 512,190 cases.

Pew Research Center reported in August, 2016, that The Obama administration deported 414,481 unauthorized immigrants in fiscal year 2014, a drop of about 20,000 (or 5%) from the prior year, newly released Department of Homeland Security data show. A total 2.4 million were deported under the administration from fiscal 2009 to 2014, including a record 435,000 in 2013, according to a Pew Research Center analysis of the data. 2014 is the latest year for summary statistics, apparently.

The Bush Administration averaged somewhat over 200,000 deportations per year.