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Scenes from the Immigration Bar: An Immigration Reform Carol

24 Dec

Immigration Reform Carol

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Scenes From the Immigration Bar: Happy October!

3 Oct

Happy October!

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Scenes from the Immigration Bar: Never Too Cool for School

4 Sep

Back to School

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Scenes from the Immigration Bar: Wonder Woman, can I borrow your lasso?

5 Aug

Lasso of truth

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Scenes from the Immigration Bar: “I hope this isn’t offensive…”

23 Jul

I hope this isn't offensive

Ten Things You Can Do To Assist Unaccompanied Children

10 Jul

1.  Educate yourself and others.  It is crucial to understand why so many unaccompanied children are making the treacherous journey to the US. Learn the facts first.

2.  Words mean nothing without actions. By all means keep talking and writing and educating others about legal issues, the sincerity of politicians and talk show hosts, and how bad things are and how they got this way. But take a minute to stop and do something concrete and constructive: take a case, visit your elected officials, send an email, open your wallet… fill a tractor trailer with teddy bears and soccer balls and drive it to a detention center. But do something other than just talking.

3.  But words matter.  Notwithstanding #2, find a better word than “surge” or “flood” to describe the numbers of children seeking refuge in the United States.  These kids are not a natural disaster or an attacking military enemy, and the population did not accumulate overnight – describing the situation in terms of warfare or disaster dehumanizes the individuals seeking aid, and encourages an inappropriate public response.  Anyone who has struggled with labeling and terminology knows that words matter – “surge” and “flood” are just as problematic as “illegal.”  The words “many thousands” are an appropriate alternative.

4.  Money talks…and then files suit.  Make a donation to the American Immigration Council, the ACLU, the Northwest Immigrant Rights Project, or Public Counsel, which – among other for-profit entities – brought a class action suit against the federal government on behalf of unaccompanied minors in an effort to ensure legal representation on their behalf.

5.  It’s an election year.  Contact your elected officials and let them know how you feel.  There are plenty of scripted letters – many allow you to just type in your ZIP code and hit send.  Better yet, contribute time to a campaign you support.

6. Remember the big picture.  Find an organization that works on cross-border initiatives and humanitarian relief – there are many, enough to suit sensibilities left, right, and neutral – and make a donation of time or money to that organization’s mission.

7.  Open your home. Become a foster parent for a child awaiting a court date.  It’s a big commitment, but may be the right choice for those who desire to have a very significant impact. Unaccompanied Refugee Minor foster care programs are available in 14 states and the District of Columbia.

8. Take a case (Texas version).

9. Take a case (the rest of the US).  Look around.  Unaccompanied minors are in your community too.

10. Feed the hungry, clothe the naked, shelter strangers. Find a local organization that works with refugee kids and families, and make a donation of food, clothing, or supplies.

 

You may not be able to abandon your work and your own families to provide goods or services at the US/Mexico border, but neither are you helpless to assist.  A few clicks is better than nothing.  Take a minute to consider the options above, and then do something.

 

“Social Group” Victory in Martinez v. Holder

24 Jan

Yesterday the U.S. Court of Appeals for the 4th Circuit issued its decision in Martinez v. Holder, a case that has been discussed at various times on this blog for its relevance in defining the contours of the protected ground of “particular social group.”

Asylum may be granted to an individual who can demonstrate that he or she has suffered persecution or has a well-founded fear of persecution in his or her home country on account of his or her race, religion, nationality, political opinion, or membership in a particular social group.  These five bases for asylum are known as “protected grounds.”  Whereas political opinion, race, religion, and nationality are all fairly intuitive, U.S. law has had to define “particular social group” on a case-by-case basis.

The watershed decision establishing what constitutes a particular social group is a 1985 decision by the Board of Immigration Appeals, Matter of Acosta In Acosta, the Board defined a particular social group as a group of individuals who share a certain immutable characteristic that can not be changed or is so fundamental to their identity that they should not be required to change.  In the two decades since Acosta, homosexuals, members of clans, family relationships, women opposed to female genital mutilation, women who refuse to conform to strict religious codes, and women seeking escape from domestic violence have all been recognized as social groups for the purposes of asylum.

In Martinez, the 4th Circuit considered whether a young man who was conscripted into a gang and who subsequently left the gang can obtain protection under U.S. asylum law.  Mr. Martinez was attacked on multiple occasions and was aware that gang leaders had given the “green light” to other gang members that they were free to murder their former compatriot.  In the underlying Board of Immigration Appeals (BIA) decision, the BIA decided that Congress could not have intended gang membership (and therefore former gang membership) to create an opportunity for protection under U.S. law – that Congress could not have intended for criminal gangs to be social groups worthy of protections of U.S. law.  The 4th Circuit was required to decide whether former gang membership is an “immutable” characteristic that warrants such protection.  On January 23, 2014, the court did just that:

We conclude that Martinez’s proposed particular social group of former MS-13 members from El Salvador is immutable for withholding of removal purposes in that the only way that Martinez could change his membership in the group would be to rejoin MS-13. We hold therefore that the BIA erred in its
ruling declining — on immutability grounds — to recognize the particular social group of former members of MS-13 who have renounced their membership in the gang.

***

The government argues that the INA disqualifies groups whose members had formerly participated in antisocial or criminal conduct. Attaching this condition to qualification as a “particular social group,” however, is untenable as a matter of statutory interpretation and logic.

This decision has major implications for former gang members seeking asylum in the U.S., and equally major congratulations are due to Maureen Sweeney at the University of Maryland College of Law Immigration Clinic, who argued for Mr. Martinez, and FOBR Ben Casper, who argued for the American Immigration Lawyers Association, which filed a brief supporting Mr. Martinez’s claim to protection, for their excellent work on this case. Our very own Andres Benach also was on brief as amicus, and both Andres and Dree Collopy helped prepare oral argument.  As Maureen Sweeney put it in her racap of oral argument:

…I will say that two of our 3 judges seemed to really get what the case was about. …Judges seemed uninterested in whether initial membership in the gang was voluntary or not – they seemed to get that once the person left, that became the defining characteristic. And they didn’t seem particularly worried about letting in a bunch of bad guys. As Judge Neimeyer said, “That’s what you have all those bars in the statute for.” 

Congratulations to all for your part in securing the protection for former gang members seeking asylum in the U.S.

In Other News: CLINIC’s Update on Provisional Waivers

4 Oct

Despite the government shutdown, USCIS carries on processing applications and petitions at its glacial pace as usual, including the large number of provisional unlawful presence waiver applications (I-601As) that have been filed since they were first accepted in March 2013, and a corresponding high number of I-130 Immediate Relative Petitions pending approval.

We have written on the unlawful presence waiver topic many times, but have been thirsty for statistics and helpful information on the process. Our thirst has been quenched! Last week the Catholic Legal Immigration Network, Inc. (CLINIC) conducted an intensive training on provisional unlawful presence waivers, including an update and presentation by Robert Blackwood, the Assistant Section Director for Adjudications at the National Benefits Center (NBC), which serves as a pre-processing center for applications adjudicated at USCIS field offices, including I-130 immediate relative petitions and I-601A applications for provisional waivers. CLINIC generously has circulated the update on the NBC’s I-601A process, and we share portions of it with you here.

I-601A Adjudication Process

All I-601As are filed at the Chicago Lockbox, which reviews submissions under rules that address document sufficiency. If an application is rejected for sufficiency reasons, the rejection should be accompanied by an explanation of deficiency. If the application is accepted, the Chicago Lockbox creates a case receipt file and forwards it to the NBC. Division 1 (of eight divisions) at NBC is responsible for I-601A adjudications and currently is staffed with between 45-50 adjudicators and 5 supervisors. Once a forwarded application is received at the NBC, the NBC goes through its own initial processing checklist to determine if the application is complete. If NBC staff determines documents are missing, it issues a Request for Evidence (RFE); otherwise, it will schedule the applicant for a biometrics appointment. When the biometrics and the name check results come back, the application is transferred to the “JIT” (“Just in Time”) shelves and is considered ready to be adjudicated.

Division 1 Supervisors assign cases to adjudicators when they are ready to be adjudicated. When an adjudicator receives a file, he or she first looks for basic eligibility – name check and biometrics response, national security issues – and if there is a “hit,” the file is forwarded to a security clearance team for resolution. For cases that pass security clearance or do not have “hits,” the adjudicators follow a “processing checklist” sheet, which guides them through the process of determining statutory eligibility for the waiver (e.g., USC qualifying relative) and whether the applicant has satisfied the extreme hardship standard. The adjudicator makes notes on the processing checklist, for purposes of decisionmaking and supervisor review. If the case is denied, the file is sent to the National Records Center, where it will be stored. If it is approved, the file will be sent to the Texas Service Center (TSC). The TSC holds on to the case files so they can be matched up after the applicant immigrates. The NBC sends the applicant and the representative the written approval or denial decision.

The NBC sends the National Visa Center (NVC) an electronic data report on I-601A receipts on a daily basis, so that the NVC can stop processing the immigrant visa (IV) application until there is a decision on the waiver application. A “decisions” report is sent to the NVC every week, to inform the NVC of waiver application outcomes so that the NVC can then proceed with IV processing. The NBC does not send the actual I-601A decision to the NVC; it only sends notification of whether the I-601A was approved or denied. If the NBC denies the application because it has a “reason to believe” the applicant might be inadmissible under another ground, it only informs the NVC that the waiver application was denied.

For the first two months of provisional waiver adjudication, all applications were reviewed by division supervisors to ensure that the appropriate decisions were being made. Now, all denials are reviewed by the supervisor and approvals are only spot-checked. If a supervisor has questions or concerns about a particular decision, the encourages a dialogue with the adjudicator to find out more about the decision recommendation, but does not instruct the adjudicator on how to rule in a particular case. If there is still disagreement as to whether the application should have been approved or denied, the supervisor may seek further guidance from one of the section chiefs.

Every week a report is generated indicating how many applications were adjudicated. The NBC communicates and shares data with the State Department to determine whether I-601A applicants who were denied were later approved by the consulate through an I-601 waiver, and whether applicants whose I-601As were approved were later denied by the consulate due to a finding of inadmissibility on a ground other than unlawful presence. The statistical evidence is not yet meaningful to draw any conclusions on these issues.
If an I-601A applicant who is denied elects to re-file, the NBC will pull the original application and check it against the new application.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23, 949 applications were sent to Lockbox
17,996 applications were accepted by Lockbox
5,953 applications were rejected by Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17. The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.

The NBC currently has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate. With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day. Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)
2,292 denials (39%)
103 administrative closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for “reason to believe.” That is, the adjudicator has reason to believe that the applicant is inadmissible for reasons other than unlawful presence. The second highest number – 937, or 41% of all denials – is for failure to establish extreme hardship. Other reasons for denial include: abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.
At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days. The goal is to reduce the adjudication time to 90 days, the pace at which NBC adjudicators were working until “reason to believe” denials became a controversial issue.

Reason to Believe

USCIS has no authority to determine admissibility in a case to be decided by the consulate after the applicant has left the United States and appeared for the interview. Mr. Blackwood explained that the provisional waivers working group developing the I-601A regulations and procedures for processing wanted USCIS officers to limit their consideration to waiver adjudication, leaving inadmissibility determinations as a function of the Department of State. In other words, the USCIS did not want its adjudicators analyzing whether the applicant was inadmissible on grounds other than unlawful presence, but at the same time, the USCIS did not want to approve I-601As and have the applicant be denied at the consulate for another ground of inadmissibility.

That was the rationale for developing the “reason to believe” standard, where the adjudicators make a quick assessment as to whether the applicant might be inadmissible on a ground other than unlawful presence, based on the name check and biometrics results. Under this standard, adjudicators are instructed to deny all applications involving a criminal conviction, regardless of the type of conviction, when it occurred, or whether it fell within a recognized exception to inadmissibility, like a petty offense. If the fingerprint check resulted in a “hit” that revealed a conviction, then the application was denied under the “reason to believe” standard. Similarly, if there was an inconsistency in the name or date of birth of the applicant and that provided during CBP processing for voluntary departure after an arrest at the border, the applicant was denied for “reason to believe.”

The NBC staff soon realized that this broad application of the “reason to believe” standard led to a high denial rate. Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any “reason to believe” denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future. During this time, the 1300 pending cases that involve a potential “reason to believe” concern are being held in abeyance, and will not be adjudicated until there is further guidance. Mr. Blackwood noted that if the “reason to believe” standard is changed so that not all of the denied cases would warrant denial under revised interpretation, the NBC will consider whether to apply any new policy retroactively and reopen denied cases sua sponte.

While there is no mechanism to appeal a denial or seek reconsideration, the NBC can reopen a case on its own if it believes a denial was made incorrectly based on misapplication of the reason to believe standard, including, for example, cases where the applicant’s name and date of birth appear inconsistent as a result of clerical or insignificant error, but not including cases containing criminal convictions. Mr. Blackwood indicated during his presentation that denials made under the reason to believe standard that seem clearly wrong could be brought to his attention, and he would pull the file to see if the agency made a mistake. To bring those cases to Mr. Blackwood’s attention, applicants were directed to send an e-mail to CLINIC training leaders at sschreiber@cliniclegal.org or cwheeler@cliniclegal.org, and to include the name of the applicant, the waiver receipt number, and the “A” number, as well as a brief description of the issue (e.g., month and day of applicant’s date of birth were transposed; applicant’s name recorded incorrectly).

Adjudication of Extreme Hardship and RFEs

Current policy does not mandate that the agency issue a Request for Evidence (RFE) before issuing a denial, but NBC adjudicators typically will issue an RFE if they believe additional documentation will help them reach a decision in a case. (For example, if an applicant claims a health-related hardship, but only submits financial evidence, or if the applicant claims multiple hardships but submits evidence supporting only one claimed hardship, or weak evidence of hardship.) If the applicant claims hardship and the officer believes sufficient evidence was presented but that the extreme hardship standard was not met, then the adjudicator can simply issue a denial without issuing an RFE. In other words, if additional documentation would not add any value to the hardship claim, the NBC will forgo issuing an RFE. Mr. Blackwood noted again that all denials are reviewed by a supervisor.

RFE response times are set at 30 days so that consular processing is not delayed. A request for an extension may be considered if there are compelling reasons warranting additional time to respond to the RFE.

Comparison with NSC Adjudications of I-601

Mr. Blackwood explained that NBC staff made adjustments to their standards for evaluating “extreme hardship,” in the wake of exchanging information and statistical data with the NSC regarding its adjudication of I-601 waivers, as well as reviewing AAO waiver denial reversals. Adjudicators are now assessing extreme hardship to the qualifying relative as impacted by hardships to other family members. As a result, the denial rate has come down and the NBC is approving more applications. Mr. Blackwood anticipates that the denial rate will continue to go down as adjudicators gain more experience.
Mr. Blackwood also noted that the provisional waiver is more challenging for the applicant, because the hardship to the qualifying relative is prospective, as opposed to the I-601 applicant who has left the United States and whose qualifying relative is already experiencing the hardship. For this reason, the denial rates will not necessarily be comparable.

Waiver Submission Format

Mr. Blackwood encourages applicants to submit a cover letter or brief that summarizes the hardships and helps the adjudicator understand the theory of the case, and all supporting evidence that is pertinent, such as a doctor’s letter summarizing medical conditions. The Chicago Lockbox removes all tabs and bindings, so applicants are encouraged to use some kind of pagination system to help identify and segregate supporting documentation. The original submission is sent to the NBC – any highlighting of important documentation or color dividers separating exhibits will be retained.

If submitting supplemental information after the application has already been submitted, make sure to include the receipt number and the A#. Avoid sending multiple pages from the Internet on a specific medical condition (e.g., definition of diabetes) or DOS country conditions reports.


In the coming months…

Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the “reason to believe” standard. Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.

Many thanks to CLINIC for this thorough and helpful information!

No Parking: Immigration Reform in a Lot on Adephi Road

28 Apr

Some of the most contentious issues raised in recent immigration reform discussions – prioritizing business over family, the exercise of prosecutorial discretion, the reach and responsibilities of law enforcement – were played out in a parking lot in Hyattsville, Maryland yesterday. The specific debate was about parking, but the arguments and proposals for resolution may as well have been about how U.S. legislators, courts, and law enforcement decide to permit non-native-born men, women, and children to enter and remain in the United States.

Every Saturday, Northwestern High School hosts a very popular Flea Market run by the International Studies Program. This Flea Market takes place in the main school parking lot – vendors sell everything from bananas to bandanas to barbecue. Several Saturdays in the spring, Northwestern High School also hosts track and field meets for schools in the Catholic Youth Organization of the Archdiocese of Washington. Several hundred students from dozens of schools in the area participate in these meets – well over a thousand athletes and their families attend the track and field events every Saturday. Parking is always a problem at these meets, and especially so at Northwestern, when the main lot is filled with vendors who have been there since dawn setting up their stands. Families arrive to the track meet and – finding no legitimate parking spots left – resort to parking along the curbs and on the hillside behind the bleachers.

Yesterday, the track meet organizers announced that cars parked on the hillside would be ticketed and towed. Grumbling parents and grandparents trudged out of the bleachers to move their cars, some loudly claiming that the school should cancel the flea market on weekends when track meets or other high attendance events are held – why ruin the goodwill gained by hosting the meets in the first place? A young gentleman with a hand-held electronic ticketing device was citing certain cars, vans, and trucks parked haphazardly along the curb. He was clearly employed by an agency authorized to issue parking tickets at the school, but his weekend-casual uniform also indicated he was not a member of the Prince George’s County police force. He spoke to the parents: “I am only ticketing those vehicles blocking the fire and emergency vehicle access lanes. I am not going to ticket those cars parked along the yellow curb that are not blocking access to the school or fields. I cannot guarantee the police will not come and ticket your cars, but it is a weekend and a big hassle for them to write out individual tickets by hand when I can do it faster and easier on my device here – and I am solving the emergency access problem. But I promise you I am only ticketing the most egregious offenders.” Pleased by this reasonable response, families made their way back to the meet. However, an hour later the meet organizers announced that the police were ticketing and towing any cars parked along the yellow curbs. Hundreds of parents who had been assured that only the most dangerously-parked vehicles would be cited left the bleachers to move their cars into the surrounding neighborhood. “But you promised!” and “Cancel the stupid flea market!” they cried. The consequences were financial and emotional – some were ticketed, some missed their kids placing in a photo-finish 400 meter dash. Some simply reparked their cars and purchased barbecue from the flea market vendors.

Northwestern should not have to cancel a long-standing and popular flea market because of a special event, nor should it discontinue hosting middle school sporting events because of lack of ample parking – both the ongoing commercial enterprise and the family events contribute to community goodwill and raise the profile of the school as long as law enforcement is clear on – and willing to cooperate with – the school’s priorities. Business and family can coexist. Lower-rung authorities are capable of quick and reasonable decisionmaking. Law enforcement authorities with overlapping jurisdiction should communicate to avoid giving conflicting information to the affected public. Enforcement zealotry eviscerates goodwill and secures nothing. Perhaps the legislators, policy makers, and attorneys who are shaping immigration reform will lift their heads from the minutiae of 844-page proposals and gain insight into the broader issues at play during a seemingly unrelated event. Northwestern is hosting three more Saturday track meets this season.

STEM Sells: But the U.S. Economy Depends on the Arts and Humanities Too

22 Mar

Increasing the number of immigrant and non-immigrant visas available to highly-skilled workers – particularly in the fields of science, technology, engineering and math (STEM) – currently appears to be the least controversial and most bipartisan aspect of the various immigration reform proposals being discussed, debated, and leaked to the public, even if the discussion about how to increase the number of STEM visas remains unclear. If certain U.S. industries – particularly tech industries that could easily pull the plug and set up shop elsewhere – contend that they cannot hire enough qualified workers because of visa limits, who is to argue in response that the U.S. does not need more engineers and rocket scientists? Everyone can get behind increasing STEM jobs. However, when we propose stapling a green card only to those diplomas earned in STEM fields, and when visas available to artists, writers, educators, historians, and musicians are limited to those who demonstrate “extraordinary” ability in their field, we risk losing the contributions of those who can demonstrate only “high skill” in non-STEM fields. We risk the imbalance that comes with planning to “overbuild” in one area only.

The focus on highly-skilled STEM workers, to the exclusion of those highly skilled in the arts and humanities, misses a critical component of a lasting healthy economy: across a range of industries, long-term career success requires both in-depth knowledge and skills that apply to a specific field or position and a broad range of skills and knowledge that apply to a range of fields and positions. A 2009 survey of more than 300 employers (conducted by Hart Research Associates on behalf of the Association of American Colleges and Universities) demonstrates that a high percentage of employers want colleges and universities to place more emphasis on written and oral communication (89%), critical thinking and analytic reasoning (81%), complex problem solving (75%), teamwork skills in diverse groups (71%), creativity and innovation (70%), information literacy (68%), and quantitative reasoning (63%) – the skills that are the hallmarks of a liberal arts education.

There is no doubt that American culture benefits from the contributions of those foreign-born workers educated and skilled in the arts and humanities, but the U.S. economy benefits as well, not only in the arts and entertainment industries, but even in STEM fields. In a September 21, 2011 opinion piece in the Wall Street Journal, Norm Augustine, the former CEO of Lockheed Martin, argued that the long-term success of the U.S. economy requires those educated in historical literacy: “In my position as CEO of a firm employing over 80,000 engineers, I can testify that most were excellent engineers — but the factor that most distinguished those who advanced in the organization was the ability to think broadly and read and write clearly.”

In an acceptance speech at the Academy Awards in 1988, the Austrian-born screenwriter, producer, filmmaker, artist, and journalist Billy Wilder thanked the unnamed American consul officer in Mexicali, Mexico who permitted Wilder to enter the United States in 1934 despite a lack of proper documentation – because Wilder told the officer that he wrote movies – stating simply “write some good ones.” Wilder became one of the most successful filmmakers in the entertainment industry, in addition to shaping American film culture. Immigration reform of course must prioritize the needs of certain growing U.S. industries, but those industries in turn must recognize that the long-term success of the U.S. economy depends on a broader spectrum of qualifications than the singular focus on highly-skilled STEM workers permits. Like Billy Wilder’s consul officer, immigration reform must have the foresight to recognize that those who enrich our lives through the arts and humanities contribute to both the culture and to the economy.