Archive | June, 2012

What to do while waiting for the CIS to implement DREAM Act deferred action

30 Jun

On June 15, 2012, the Department of Homeland Security (DHS) announced its intention to give deferred action and employment authorization documents (EADs) for a period of two years to certain young people who came to the United States as children.  These individuals must demonstrate that they:

  • Entered the U.S. before the age of 16
  • Have continuously resided in the U.S. for at least five years prior to June 15, 2012
  • Were physically present in the U.S. on June 15, 2012
  • Are currently in school, have graduated from high school, have obtained a GED, or are honorably discharged veterans of the Armed Forces or Coast Guard.
  • Have not been convicted of a felony, a significant misdemeanor offense, multiple misdemeanors, or otherwise present a threat to national security or public safety
  • Were not above the age of 30 on June 15, 2012.

While individuals who are in removal proceedings or the subject of final orders of removal can seek deferred action from Immigration & Customs Enforcement starting immediately, those who have never been in removal proceedings must wait for the U.S. Citizenship & Immigration Service (CIS) to implement procedures to receive applications for deferred action.  The DHS announcement gave the CIS 60 days (August 14, 2012) to implement the process.  Applicants should not submit any applications before the process has been established as they will be rejected.

Although the CIS will not start accepting applications until at least August 15, 2012, individuals who may be eligible for DREAM Act deferred action can take certain steps that may require additional lead time while waiting for the process to become available:

  • Get a passport.  Contact Embassy in the U.S. and seek a passport.
  • Get your birth certificate.
  • Get documentation to prove entry before the age of 16, five years residence in the U.S., and presence on June 15, 2012: school records, medical records, church records, I-94 cards, immigration documents, bank statements, credit card bills, insurance records, dated receipts for purchases, utility bills, leases, tax returns, birth certificates of children born in U.S., marriage certificates in U.S., driving records,  letters from employers, ministers, or other organization ns confirming your presence in the U.S., or dated photos.  This is list is not exclusive and other reliable evidence may be considered.
  • Enroll to take the GED.  Take a GED class.
  • Obtain records of any arrests.  You will need certified dispositions of any arrests.  If you have any arrests, we strongly suggest that you consult counsel before applying for deferred action.

National Dream Graduation, Redux

27 Jun

Photo-op from the National DREAM graduation, with undocumented student organizers from 17 states

Every June for the past 12 years, undocumented students from around the country have traveled to Washington D.C.to urge Congress to pass the DREAM Act, holding a “mock graduation ceremony” followed by lobby visits to their respective Congresspersons. This year was no different, with The National Immigrant Youth Alliance bringing over 500 undocumented students from at least 17 states down to the Capitol. And this year, we also had Andres Benach from Benach Ragland LLP, talk to a self-selected group of students about Obama’s deferred action policy, clearing up some misconceptions and dishing out great legal information.

The ceremony was held at the Lutheran Church of the Reformation, blocks from the Supreme Court of the United States and Congress,  to send the message that while the deferred action policy may provide many of those in attendance a temporary protection, we have to continue to press Congress and the federal government to affirm human rights and find a permanent solution for the immigrant community

Graduation has historically been a bittersweet event for many undocumented youth, unable to move forward. The “mock graduation” – now called the National Dream Graduation – symbolizes the estimated 70,000 undocumented students who graduate from high school every year, unable to pursue higher education because they lack papers. This year was a bit different. Due to the hard organizing work of many young undocumented people around the country, President Obama has issued a directive to not deport undocumented youth, and instead, allowed us to come forward affirmatively and apply for deferred action, which would then enable people to get work permits and driver’s licenses. Yesterday, Andres told students at the graduation that there was little reason to not come forward and apply if they are eligible.

“If you are unafraid enough to sit in Senator McCain’s office, there is no reason that you should be afraid to apply [for deferred action],” he assured the young people in the room, answering their many intelligent questions with regards to the new policy.

While deferred action is certainly not enough, for the first time in history, many of these young people are graduating and will graduate with hope and dreams of a future. And even if they don’t graduate with high hopes and dreams of a future, I think Kemi Bello, a friend and undocumented youth from Texas, sums it up best:

“I urge you to challenge the traditional notion of the milestones we must meet in life in order to be successful. Whether it takes you 4 years or 7 to finish college, or you decide not to go at all, or are not able to go; whether you wear your “I Am Undocumented” shirt to the grocery store or have only told one person that you are undocumented; whether you are working 3 jobs or are organizing full-time – own your story, own your experience and never apologize for how different your life has turned out to be from some pre-determined ‘norm.’ For it is the uniqueness of our individual stories and experiences that makes our collective story as undocumented youth so powerful.”

Indeed, the event was one of a kind, with unique individual stories that did not fit the norm. Dulce Guerrero (GA), Viridiana Martinez (NC) and Cynthia Martinez did wonders MC-ing. Marco Saavedra from Ohio owned the room with his powerful rendition of Langston Hughes for the convocation. Alejandra Pimentel, a mother fighting her son’s deportation, shared some great words with us, telling us that her dream was our success and that we should never give up. Little J shared the poem he wrote for Michelle Obama that he couldn’t share it with her because he lacked a social security number. Alicia Torres had a vital message for everyone in the movement to nurture themselves so that they could be a source of positive energy. Even YOLO made it to the graduation, thanks to Vicko Alvaro from USAS.

Andres Benach talks to Dreamers about deferred action at the National DREAM Graduation

And of course, 10 minutes before the start of the event, I found out that I had the honor (and terrifying duty) of delivering the commencement speech to 500 people. I decided that jaded activist humor was the way to go. It seems to have worked, or at least, I don’t have any displeased emails. Even Pastor Wilker kindly told me later that he enjoyed my speech and that the Lutheran Church welcomes LGBT people.

Most of my friends were riled up and denouncing the Supreme Court, SB 1070 ruling, which actually is not a bad decision, but a pleasantly good one. President Obama’s policies like Secure Communities (S-COMM) and his record-breaking deportation of over 1 million people is what deserves continued denunciation even as we welcome his decision to grant deferred action to an estimated 1.4 million young people. We’ve made progress, but the work continues.

The National Dream Graduation is usually the one of the only times when undocumented youth activists from around the country who work together virtually get to be in the same room with one another. I remember meeting Walter Lara, Maria Marroquin, Kemi, Bello, Cintia Felix and so many other impressive young people for the first time at my first National Dream Graduation in Washington D.C. in 2009. It seems like such a long time ago, even though it has only been three years.

This year, I saw some old friends for the first time in ages. I also met some new people such as young South Asian American immigrant activists Yves Gomes and Ashwini Jaisingh from Casa de la Maryland. My own partner spoke on behalf of her Congressperson! And I had the pleasure of running into Tim, a U.S. citizen, whose partner is languishing in detention in Michigan, highlighting the need for immigration relief for same-sex bi-national couples. I hope we are able to get his partner the help he needs so that they can continue to stay together. That would certainly be the cherry on top of the icing of a truly great event.

(Crossposted here)

Author: Prerna Lal, a 3L at the George Washington University Law School, is a summer law clerk at Benach Ragland LLP.

National Dream Act Graduation

27 Jun

Yesterday, I had the privilege to speak to many DREAMers who came from all over the country to lobby Congress to pass the DREAM Act and comprehensive immigration reform.  And with activist glee and an appreciation for pageantry, the DREAMers held a mock graduation symbolizing their efforts to educate themselves and be a part of the American Dream.  They wore brightly colored T-shirts emblazoned with “Undocumented and unafraid,” and carried signs that quoted Martin Luther King, Jr.  They were there for a deeply serious purpose and seemed to be having a blast.  There was Mohammad Abdollahi with a megaphone in his face and Prerna Lal furiously tweeting, Instagramming and updating Facebook and hundreds of others taking photographs with their traveling companions and new friends.

The graduation was held at the Lutheran Church of the Reformation on Capitol Hill and I knew it was my kind of church when I saw the rainbow flag on the outside.  I had been asked to speak about the new policy announced by the Obama administration to provide deferred action to many people who fall within the general terms of the DREAM Act.  I was on guard and expected to hear a lot of skepticism about the policy.  After all, many DREAMers have quite reasonably grown guarded after years of being batted about like a political football.  But what I found were a group of magnificent young people who simply want to get on with their lives.  They were less concerned about the motives of the policy and the impact on Marco Rubio’s effort to get a scaled back version of the DREAM Act (a plan that was going nowhere- speaking of cynical), than they were on getting driver’s licenses, furthering their education, getting jobs and paying taxes.

I tried to encourage people to give the policy a chance.  There are a lot of people out there saying that applying for deferred action is a trap.  This argument goes something like this:  Obama did this for political reasons and not because he cares about undocumented youth.  Because it simple expedience, he is not invested in making it a success.  Without strong executive follow through, it will be left to the DHS officials on the ground, whose resistance to any pro-immigrant policy undermined the prosecutorial discretion memos from last year resulting in a dismal record of a failure to exercise prosecutorial discretion.  And since there is likely to be little follow through, the argument continues, immigrants are giving their data to DHS, which can, in turn, use that data to seek their removal.

I think this view is wrong.  I think that the administration desperately needs this program to work and has learned from the failure of prosecutorial discretion.  The administration has learned that such matters can not be left to the judgment of the DHS officials on the ground and that the administration and its appointees within DHS will place a very heavy hand on the field.  In addition, a failure to apply for deferred action due to a fear of removal seems antithetical to the immigrant spirit, particularly those of the DREAMers, whose t shirts state “undocumented and unafraid.”  Immigrants as a group are risk-takers, people who are willing to take risks in order to better their and their families’ lives.  They risk death in the desert or in the cargo hold of a ship to give themselves a chance to realize their potential.  DREAMers have engaged in civil disobedience and been arrested across the country agitating for their rights.  They have announced themselves as undocumented on the web.  This does not seem like a group of people that would be afraid of the potential for DHS to use the deferred action program as a means of identifying those illegally in the country.  Even if that were the intention of DHS, the impact of placing the over 1 million potential DREAMers into removal proceedings would grind the machinery of removal to a halt and create massive political and social turmoil.  Right now, final hearings in the Immigration Court in Arlington Virginia are being scheduled in late 2014.  The influx of thousands of additional people into removal proceedings will only exacerbate this serious problem.

By applying and receiving deferred action, DREAMers will further integrate themselves into the American community.  They will have driver’s licenses, social security numbers, and jobs.  They will be able to rent apartments, buy homes, pay more taxes, and will marry and have children.  As roots grow, DREAMers will be harder to pull up and the appetite for the social disruption of deporting this group of DREAMers will decrease exponentially.  Congress will have to act as it did with NACARA.  Dream Act deferred action will turn this amorphous movement into a political constituency and will make DREAMers harder to ignore in the coming years.

That all being said, there are some people who should not seek deferred action.  Anyone with any type of criminal conviction should see a competent immigration lawyer.  Individuals who have provided misinformation to the government at some point in their past should consult with a lawyer.  If in doubt, seek counsel.  The American Immigration Lawyers Association is a great place to start in finding good counsel.  Also, DreamACTivist will also be providing referrals.  Finally, pretty soon, Benach Ragland LLP will be launching www.dreamactdeferredaction.com to serve as a hub for all things related to deferred action for DREAMers and to provide timely and accurate information you can trust.

Big win at the Supreme Court

25 Jun

In what was surely the most anticipated decision of the Supreme Court’s term, Arizona v. United States came down today and not in the way anybody expected. In a 5-3 decision (Justice Kagan took no part), the Supreme Court rejected three of the four contested provisions and cast serious doubt on the viability of the fourth provision. What remains of SB 1070 is a hollow shell of the legislation promised and promoted by Russell Pearce, Jan Brewer, and the Mario Mendoza of immigration litigation, Kris Kobach.

SB 1070, of course, is the notorious Arizona law that sought to achieve “attrition through enforcement” by making life miserable for immigrants, and those that looked like immigrants. The law sought to criminalize unlawful presence in the U.S. and sought to prohibit undocumented immigrants from seeking employment in Arizona. Most noxiously, it sought to turn all law enforcement personnel in immigration agents.

The four challenged provisions relate to new crimes created by SB 1070 and the authority of Arizona law enforcement to make demands on individuals to provide proof of lawful immigration status. Section 2B requires police officers to communicate with Immigration & Customs Enforcement (ICE) to ascertain the immigration status of anyone they lawfully stop, arrest or detain, if reasonable suspicion exists that the person is a foreign national and is unlawfully present in the U.S. Section 6 allows a state officer to, without a warrant, arrest a person if the officer has probable cause to believe that the person has committed an offense that makes him removable from the U.S. Section 3 creates a new state misdemeanor criminalizing an individual’s willful failure to carry an appropriate immigration document. Finally Section 5C makes it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.”

In an opinion by Anthony Kennedy, the Court found that the federal government had “occupied the field” of immigration criminal violations and that states were preempted from adding their own crimes and penalties onto exclusively federal violations. Thus, Sections 3 and 5C can conflict with the “careful framework Congress adopted” and are preempted by federal law. The Court also rejected Section 6, which would have allowed an Arizona law enforcement agent to arrest an individual for a perceived immigration violation even where the federal government has not chosen to act. The Court was skeptical that Arizona agents would be able to master the increasingly complex set of rules that govern unlawful presence in the U.S. In addition, the Court found that “a decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States.”

The Court did not strike down Section 2B, which has led a lot of unsophisticated commentators to declare that the Supreme Court “upheld” the “papers, please” provision of 2B. Section 2B requires Arizona law enforcement agents to ascertain the immigration status of those lawfully stopped, arrested or otherwise detained for some other non-immigration related reason. The Court held that it was premature to believe that Arizona would execute this provision in an unconstitutional manner. The Court addressed the legitimate complaints that such power could lead to pretextual stops, racial profiling or “driving while brown.” However, the Court provided that the section “could be read to avoid these concerns.” The Court saved for another day the question “whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention.” Justice Kennedy also reminds Arizona and the world that the opinion “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” In his opinion concurring in the Court’s decision not to enjoin section 2B, Justice Alito recognized that serious constitutional concerns remain with 2B and that future litigation is all but guaranteed: “there is no denying that enforcement of 2B will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil liberties concerns, I take it, are at the heart of most objections to 2B. Close and difficult questions will inevitability arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally and there is a risk that citizens, permanent residents, and others who are lawfully present in this country will be detained.” The day of reckoning is coming for 2B.

Overall, this is a smashing victory for immigrants. SB 1070 stands repudiated soundly in the Supreme Court and the other states that have enacted terrible immigration laws, such as Alabama, South Carolina, Indiana, Georgia, and Utah, should be aware of the severe restrictions on their ability to operate in this sphere. Given the fiscal health of many state governments, it is a wonder that citizens of these states put up with the state spending millions to defend these doomed laws. The survival of 2B is temporary. Given the track record of Maricopa County Sheriff Joe Arpaio in persecuting immigrants, it is only a matter of time before a challenge to an action under 2B makes its way through the courts. And when it does, it will come with damages for the victim of racial profiling, wasting more of the state’s resources that are desperately needed to create a future for Arizona.

Dream Act Deferred Action Chart

20 Jun

Good news, but wait, don’t do anything yet!

18 Jun

The President’s announcement of deferred action for DREAMers has ignited the passions and imaginations of the immigrant community.  As it should have.  For an immigrant community that has suffered through over a decade of harsh and punitive immigration laws as well as draconian decision-making by the government officials in the Clinton, Bush and Obama administrations, the news that the President was instructing the Department of Homeland Security to exercise discretion favorably for a class of individuals known as DREAMers was like a basin full of water presented to a man dying of thirst.  It is hard to knock him for trying to drink the whole thing all at once.

However, as euphoria yields to reality, as it always does, DREAMers must come to grips with the fact that relief will not be immediate.  Or permanent.  Or guaranteed.  While the announcement of the new policy has provided a taste of a more hopeful future, such gratification must be delayed until the government can come up with a process to provide deferred action to the estimated 800,000 eligible individuals who will benefit from this new policy.  As the government works to establish procedures to implement the change in policy, potential beneficiaries must be on guard against the “notarios” and other scam artists who will take their money, promise the moon and the stars, and, when revealed as frauds, will disappear with the money and the trust.

Con artists are already setting their traps for the desperate and vulnerable.  Immigrants in need of work permits certainly can fit this description.  The con artists prey on ignorance, so the best defense is knowledge.  Here is what you need to know:

  • No procedures have been implemented.  This means that CIS will not yet accept applications for those seeking benefits as a DREAMer.  Any fees allegedly provided for CIS filing fees and being filed in the coming week are scams and not going to pay for an application.  CUIS will announce when they are ready to accept applications.  The June 15 memo from the Homeland Security Secretary says that CIS must have procedures in place in 60 days.
  • If you are in removal proceedings, see a lawyer about how to address this issue.  Find a lawyer who is a member of the American Immigration Lawyers Association.  Ask for references.  Google the lawyer.  A “notario” is not a lawyer.
  • Join listserves.  Blogs like this one, DreamActivist or AILA’s blog will provide current and up-to-date information as it becomes available.

In addition, you should be aware of the criteria established by the Department of Homeland Security (DHS) for DREAM Act deferred action:

  • You must have entered before the age of 16.
  • You must have been physically present in the U.S. on June 15, 2012.
  • You must have resided continuously in the U.S. for at least five years preceding June 15, 2012.
  • You must be in school, a high school graduate, obtained a GED, or honorably discharged from the Armed Forces of the US or the Coast Guard.
  • You must be no older than thirty
  • You must not have been convicted of a wide variety of criminal offenses.

These criteria leave a lot of questions- questions that will be answered in the coming weeks.  For example, the criminal exclusions are extremely broad and anyone with any contact with law enforcement should consult a reputable attorney before filing anything with the government.

Benach Ragland will keep you up-to date on the latest regarding deferred action.  So stay tuned and don’t do anything impulsive!

Relief for DREAMers

15 Jun

The adminisitration electrified the immigration world today by announcing a new policy offering discretionary relief to young undocumented immigrants as a group.  This announcement changes administration policy by moving from a de facto cases by case basis of providing relief for undocumeented young immigrants to a blanket grant of protection for those who fall within the broad DREAM Act categories.

Background

Since the failure of the DREAM Act in the U.S. Senate, the Administration has been under intense pressure to do something for the intended beneficiaires of the DREAM Act- undocumented individuals who came to the U.S. as children, through no fault of their own, and were educated and acculturated into the U.S. and run out of options when they became adults.  The administration has largely granted deferred action- a form of discretionary official indfference to removing a partiucular individual– to DREAMers with removal orders.  However, the DREAMer had to self-identify and mount a major campaign to persuade Immigration & Customs Enforcement (ICE) not to remove them and to grant deferred action.  Large scale public campaigns and protests have been common to help stop the removal of particular individuals.

What does the administration’s plan do?

The administration has announced a plan to provide deferred action with employment authorization for a period of two years to those who fall within the broad outline of intended DREAM Act beneficiaries.  Deferred action may be granted for a two year period, with work authorization, and subject to renewal to individuals who meet the following criteria:

  • Came to the US before the age of 16
  • Have resided in the U.S. for five years prior to June 15, 2012
  • Are currently in school, have graduated from high school, have obtained a GED or are an honorably discharged veteran of the Armed Forces or Coast Guard
  • Have not been convicted of a felony offense, a signficiant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety
  • Are not over the age of 30

The plan directs ICE to provide deferred action for people who fit within these criteria.  Those encountered by ICE are not supposed to be placed by ICE into removal proceedings.  Those already in removal proceedings are to be identified and provided with deferred action.

What the plan does that is really amazing, however, is that provides a means of obtaining a benefit for those individuals who are not on ICE’s radar at all.  Previously, the administration refused to consider deferred action for undocumented individuals who were not in removal proceedings or who had orders of removal.  ICE took the position that there was “nothing to defer” for people who had not yet been swept into the removal apparatus.

The new plan provides an opportunity for undocumented individuals to come forward and to seek deferred action.  This fact has the power to expand the universe of potential beneficiairies for deferred action well beyond the case-by-case post final order analysis performed now.

So, should I come forward and apply?

Not yet!!!  First, we are just figuring this out and a decision about whether to bring yourself to the attention of DHS requires a very careful analysis that should be done in consultation with counsel.  Second, remember that deferred action is an act of administrative grace that could be taken away by future administrations.  As Romney has not yet stated what he would do (we are not optimistic), this program can be stillborn by November.  Third, there is no procedure yet in place, so the government would not know what to do with applications and requests.  The memo instructs ICE and CIS to establish procedures and begin adjudicating within 60 days.

Why did the administration do this?

Politics?  Election? Hispanic voters?  Who cares???  This is a good thing.

This would not have happpened without the very courageous efforts of the Dream Act activists who have created a powerful political movement.  By coming out as undocumented and sharing their stories, by holding rallies, organizing online and in person, demonstrating, holding hunger strikes and occupying political offices, the Dream activists have made this an unavoidable issue and a large share of the credit for today’s announcement goes to them.  Like the civil rights movement of a previous generation, this struggle for rights was led by the children.

Benach Ragland heads to the Music City!

13 Jun

For the next four days, the partners at Benach Ragland will be at the 2012 Annual Conference of the American Immigration Lawyers Association (AILA) in Nashville, Tennessee.  Despite Nashville’s world class music scene, BR attorneys will be busy presenting to other immigration lawyers, attending strategy meetings, raising funds for immigrant defense and learning from other immigration attorneys instead of listening to the famous Nashville twang.  Thursday night, Benach Ragland partner Thomas Ragland will receive the President’s Commendation from AILA President Eleanor Pelta in recognition of his leadership of the newly created AILA Federal Litigation section, which provides ideas, support and inspiration to attorneys seeking to challenge agency action in federal court.  On Friday, Thomas will serve as discussion leader for a panel discussion entitled “Federal Court Litigation Masters,” which will focus on creative litigation strategies and solutions to the most vexing problems.  On Saturday, Andres Benach will serve as discussion leader for a panel discussion entitled “The Latest Developments in Crimmigration Law,” which will help attorneys navigate the shifting landscape of criminal removability issues.  In addition, throughout the meeting, BR attorneys Jennifer Cook and Dree Collopy will participate in strategy sessions on detention issues, asylum and other hot topics.  And, on Friday night, there is a fundraising event for the American Immigration Council, which provides advocacy services and legal support for immigrant rights.  If you can’t be there, please consider donating online.

Even with this busy schedule, you can be sure that we will take some time to catch up with old friends, find a good meal, and reflect on this amazing year.

High Stakes for Seasonal Stablehands

9 Jun

Horse racing fans held their breath this week over potential triumph and disaster – I’ll Have Another was poised to take the Belmont Stakes on Saturday to become the first Triple Crown champion since 1978, but the local chapter of the International Brotherhood of Electrical Workers , the union that represents 280 members at Belmont Park racetrack, including the starters who set the horses running when the gates open, was poised to shut down the race by striking over a contract battle with the New York Racing Association: no starters, no race.  But even though the racing industry’s hopes for a Triple Crown champion were crushed on Friday when I’ll Have Another withdrew from the Belmont Stakes with early stage tendinitis, the strike was averted and the race will go on, albeit without its brightest star.

After the crowds have placed their bets, cheered, collected their winnings, and left Belmont Park, the racetrack and those whose horses train and race there have a longer-term labor problem than negotiating with union-backed starters: no horses, no race.  Horse training – and the specific tasks of thoroughbred groomers, exercise riders, and hotwalkers – is tough, dirty, and often dangerous work, with low pay, early morning hours, and seven-day work weeks during the racing season.  Extensive knowledge of horses is essential.  New Yorkers rarely respond to trainers’ advertisements for such challenging seasonal jobs, and the positions are most often filled by Mexican and South Americans steeped in horse culture.  These temporary workers form the backbone of the racing industry, and their temporary worker petitions have been approved routinely for years.

However, last fall, several horse trainers based at Belmont Park – represented by Benach Ragland LLP partners Thomas Ragland and Jennifer Cook, at their former firm Duane Morris LLP – filed suit in federal district court seeking to overturn denials of H-2B (temporary non-agricultural worker) visas for their thoroughbred stablehands.  U.S. Citizenship and Immigration Services denied the visas, which previously had been routinely granted, on the ground that the stable work was not truly “seasonal” since the labor shifts to horse trainers’ stables in Florida during the non-racing winter.  USCIS and the trainers – whose suit was supported by the New York Thoroughbred Horsemen’s Association – ultimately reached a settlement, and the stablehands were permitted to continue working with the horses that run at Belmont Park this racing season, to the delight of New Yorkers and racing fans around the country.

But H-2B visas continue to pose challenges.  On April 26, 2012, a federal district court in Florida enjoined the Department of Labor from enforcing new rules revising the H-2B program, which would have imposed various bureaucratic filing and paperwork requirements on employers and decreased the number of months an employer may employ an H-2B worker – a negative factor for long-season (but clearly “seasonal”) work such as horse training.  These rules also would have required employers to pay round-trip airfare and subsistence costs of H-2B employees – a distinct benefit for stablehands, but not if trainers could no longer afford to hire stablehands and groomers from South America.

Until regulations governing nonimmigrant workers are revised to recognize seasonal industries dependent on specific skills found most often in workers outside the U.S., employers in those industries must continue to challenge those regulations and their interpretations in federal court.  As racing fans gear up to watch the Belmont Stakes this afternoon, let the horses themselves serve as a reminder that the unique skill sets that form everyday life – and special occasions like a horse race – in the United States are often performed by those whose livelihood hangs on a common-sense interpretation of our immigration laws and regulations.

“Good Moral Character” Triumphs In Federal Court

7 Jun

Last night, Mr. J.A. slept soundly for the first time in more than four years.  On June 5, 2012, Judge James C. Cacheris of the U.S. District Court for the Eastern District of Virginia issued a 90-page decision finding Mr. J.A. to be a person of “good moral character” who meets the requirements for naturalization under the Immigration and Nationality Act (INA). Abusamhadaneh v. Taylor, 2012 U.S. Dist. LEXIS 78195 (E.D. Va. June 5, 2012).  This rare federal court challenge to a denial by U.S. Citizenship and Immigration Services (USCIS) of a naturalization application was prepared and argued by Benach Ragland LLP partners Thomas K. Ragland and Jennifer D. Cook and Senior Paralegal Cyndy Ramirez Clark at their former firm, Duane Morris LLP.  Lead counsel in the case was Denyse Sabagh, a partner and head of the immigration practice group at Duane Morris.  The decision is a tremendous victory for Mr. J.A. and a stinging rebuke of the government’s relentless efforts to deny him U.S. citizenship.

In his decision, Judge Cacheris admonished USCIS for its inaccurate, incomplete, and biased decision-making and for its unfounded conclusion that Mr. J.A. provided false testimony during his naturalization interview. The Judge also denounced the government’s conduct during trial as deceptive, misleading, and wholly unpersuasive.

Background

Mr. J.A. was born in Jordan, a devout Muslim with more than a dozen siblings; a conservative, shy, and quiet former science teacher and computer technology expert who came to the United States in the early 1990s to visit, and then to study, and finally to work and build a life.  He married, fathered four children, and regularly attended the local mosque.  He worked for an organization supporting American Muslims, obtained his green card, and acquired a taste for Five Guys hamburgers.  Over the more than 20 years that he has lived here, Mr. J.A. has been a model member of society.  However, following the terrorist attacks on 9/11, tension levels were high for members of the Muslim community in Northern Virginia, as they were throughout the country.  Many perceived themselves as targets of unfair government scrutiny and needless delay in their immigration proceedings, among other injustices.  Mr. J.A.’s Muslim activist boss was indicted and sent to prison, and the Muslim organization he worked for was raided and shut down.  But Mr. J.A. is intelligent and resourceful, and he was able to find other technology jobs, including in a local police department.  In 2008, he and his wife decided to apply for naturalization.

Mr. J.A. and his wife consulted an attorney from their community to prepare the N-400 naturalization applications and file them with USCIS. The attorney advised Mr. J.A. that he was not required to list membership in any religious organizations on his application, and he followed that advice.  His wife was interviewed and naturalized without problems.  But Mr. J.A.’s application languished, despite repeated status inquiries.  Finally, his attorney filed a mandamus action in federal court to compel the agency to act on the application; it worked, and Mr. J.A. was finally scheduled for his naturalization interview.

In October 2009, Mr. J.A. and his attorney attended the N-400 interview, which was conducted by a senior officer and was videotaped.  During the interview, Mr. J.A. clarified several matters on his application and repeatedly stated that he was not a “member” of any organization, not even the mosque where he prayed.  After another lengthy delay, his application was denied.

In its decision, USCIS declared that Mr. J.A. was ineligible for naturalization as a person lacking in “good moral character,” because he allegedly gave false testimony during his N-400 interview to obtain an immigration benefit.  The government accused Mr. J.A. of misrepresenting his memberships and associations in the U.S. and in Jordan, his relationship with his former boss, and his past encounters with law enforcement.  Notably, the adjudicating officer relied on an unverified FBI report in the file, which contained a number of serious allegations from an unnamed source, including that Mr. J.A. belonged to the Muslim Brotherhood and certain other Muslim organizations.  The report was not shown to Mr. J.A. and he was not offered an opportunity to respond to these allegations.  The officer assumed the report was trustworthy, concluded that Mr. J.A.’s statements and clarifications were false testimony, and denied the N-400 on the basis that Mr. J.A. is “lacking in good moral character.”

Mr. J.A. filed an administrative “N-336” appeal and attended a second interview at USCIS, which was conducted by a different senior officer.  However, the appeal was denied in classic rubber-stamp fashion.  The government simply refused to admit a mistake – or even a misperception – and instead resolutely stood by the previous decision.  Frustrated by what they perceived to be a clear injustice, Mr. J.A. and his attorney sought the assistance of Denyse Sabagh and the law firm of Duane Morris.

Mr. J.A.’s new legal team launched an aggressive challenge to the government’s decision by filing a Petition for Rehearing on Naturalization Application, under 8 U.S.C. §1421(c), in the U.S. District Court for the Eastern District of Virginia and requested a de novo hearing on Mr. J.A.’s eligibility to naturalize. Attorneys from U.S. Department of Justice Office of Immigration Litigation (OIL) were assigned to defend USCIS’s decision.  The parties engaged in extensive pre-trial discovery, including interrogatories, document production, and several days of depositions, and each side presented its theory of case. However, the OIL attorneys were not content to simply defend the agency’s conclusion that Mr. J.A. gave false testimony to obtain an immigration benefit. Rather, under the guise of de novo proceedings, they launched a malicious campaign of character assassination, accusing Mr. J.A. of being not just a liar, but a terrorist and a criminal to boot – in the government’s words, a person who is “undeserving of United States citizenship.”

Judge Cacheris conducted a three-day bench trial. The government doggedly attacked Mr. J.A.’s character and his credibility, introducing witnesses and evidence designed to reveal his unsuitability for U.S. citizenship.  Among other witnesses, the DOJ attorneys transported Mr. J.A.’s former boss, Mr. A.A., from federal prison in Kentucky and attempted to elicit damning testimony from him. Instead, Mr. A.A. turned out to be a superb witness for Mr. J.A.’s side. He disputed the confidential FBI report for which he was allegedly the confidential source, disavowing the statements about Mr. J.A. that had been attributed to him. Like the other character witnesses who were introduced, he described Mr. J.A. as a reserved, hard-working, devout man who was well-liked and respected in his workplace and the community. The Court found Mr. A.A. credible and persuasive, and it concluded that his testimony actually corroborated Mr. J.A.’s account of events and “effectively impeached” the government’s claims.

In furtherance of its character assassination strategy, the government also sought to introduce rebuttal testimony from a police detective along with two police investigative reports that purportedly exposed Mr. J.A.’s criminal behavior and terrorist sympathies. Mr. J.A.’s legal team objected to the testimony and reports as inadmissible hearsay and conducted a withering cross-examination of the government’s witness. The Court ultimately excluded the proffered evidence in its entirety, finding the investigative reports “untrustworthy” and the detective’s testimony “inadequate and incomplete.” The Court bluntly criticized the government’s actions, noting that the detective’s statements suffered from “serious credibility issues” and “quite simply failed to contradict or challenge any of the prior testimony” offered by Mr. J.A. or his witnesses.

Nearly three months after the trial, and more than four years after Mr. J.A. filed his naturalization application, Judge Cacheris issued an order finding Mr. J.A.’s testimony and evidence credible on every count. According to the Judge, the USCIS officers who adjudicated his application fell “far short” of the required standard. The officer who conducted his N-400 examination “repeatedly mischaracterized the record of Mr. J.A.’s testimony,” offered imprecise statements during the trial, and failed to comply with published agency guidance. The Court found “significant errors” in her decision-making and voiced “substantial concerns about the credibility of [her] conclusions.” Moreover, the senior officer who adjudicated his N-336 appeal “did not undertake a thorough and careful review,” “failed to accurately understand Mr. J.A.’s testimony,” was “confused” and “persistently mischaracterized” Mr. J.A.’s statements, failed to review the file or conduct her own independent investigation, and was likewise criticized by the Court as “lacking in credibility.”

In sum, Judge Cacheris found the government’s case to be “deceptive” and “misleading,” and he rejected their central arguments as “simply in error.” In contrast, the Judge found Mr. J.A.’s testimony to be credible, consistent, and “entirely truthful.” The Court discerned “no evidence that Mr. J.A.’s answers [during his N-400 interview] were made with intent to deceive to obtain an immigration benefit.” Judge Cacheris concluded that Mr. J.A. proved by “clear and convincing evidence” that he is a person of good moral character and deserving of naturalization under U.S. law.

Mr. J.A. can now sleep soundly, secure in the knowledge that his moral character and reputation for truthfulness are no longer in question. He has been freed of the sort of unjust scrutiny that can lead to paralyzing self-doubt and a crisis of faith, emerging stronger for having fought to achieve justice. Pursuant to the Court’s order, within 30 days Judge Cacheris will administer the oath of naturalization and swear in Mr. J.A. as a United States citizen  … just in time for Independence Day.