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A-V Rated

28 Years of Experience   

Volume 5, Issue 11


November 2010

Beach-Oswald is a full-service law firm, concentrating on immigration law. We have special expertise in work visas, family based visas, visa waivers, green cards through family and employment and asylum. We have staff members who speak many different languages to assist you. 

 
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If you have any comments on these articles that you wish to share, please email them to [email protected].
In This Issue - 16 New Articles:
WIN $150 TO GO TOWARD YOUR LEGAL FEES, OR A FREE CONSULTATION IF YOU ARE A NEW CLIENT
SIX QUESTIONS ON REFUGEE/ASYLEE STATUS
WHAT TO DO IF YOU ARE BEING ABUSED BY YOUR SPOUSE
FINAL RULE - CHANGES FOR J-1 VISITORS
"ELEPHANT" NO LONGER AN ENDANGERED SPECIES
SECURE COMMUNITIES PROGRAM SPREAD TO WEST VIRGINIA
SUMMARIES OF MS. BEACH'S PUBLISHED ARTICLES
REGRESSION FOR EMPLOYMENT PREFERENCE PETITIONS OR VISAS
QUOTE OF THE MONTH
ASYLUM DENIAL RATE DROPS TO TWENTY FIVE YEAR LOW
HOW DOES RECENT FEDERAL IMMIGRATION LEGISLATION AFFECT HOUSING AND EMPLOYMENT: LOZANO V. CITY OF HAZELTON
TPS FOR SOMALIA EXTENDED UNTIL SEPTEMBER 17, 2012
PRESIDENT OBAMA PRESSURING FOREIGN GOVERNMENTS TO REGULATE HUMAN TRAFFICKING
NEW EXECUTIVE OFFICE FOR IMMIGRATION REVIEW WEBSITE
USCIS TEXAS SERVICE CENTER SPECIAL PILOT INITIATIVE FOR EMPLOYMENT-BASED I-485
RECENT CONTRIBUTIONS OF IMMIGRANTS
IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS

 

WIN $150 TO GO TOWARD YOUR LEGAL FEES, OR A FREE CONSULTATION IF YOU ARE A NEW CLIENT.

 

 

Be the first person to solve our Thanksgiving crossword and send us the correct answers and you will win!

 

THANKSGIVING CROSSWORD

 By: Lusy Lisyanova

 

In 1620, 102 people from England first landed on the shores of what is today the United States of America.  They came on a boat called the ____7_____ and named the place where they landed ____6_____.  Their first ___5____ there was a very hard one - many died from disease, the bitter cold, and ___9_____.   Out of the 102 people who initially came, only 53 survived.  When spring arrived, The Native Americans showed the remaining survivors ____8_____ techniques, and showed them how to grow crops, especially ____12_____.  When it came time to gather the crops, the ____2____ was a very successful one.  As a result, the ____11_____ invited the Native Americans to join them for a feast of thanksgiving.  This feast was held in ____1_____ and the purpose of the feast was to give thanks to ____3_____ for all the wonderful crops.  To this day, we still celebrate Thanksgiving on the fourth ____10____ in November, and feast on ____4_____, just as they did in the times of old.

 

Thanksgiving Crossword

 

Word Bank

Turkey, pilgrims, Massachusetts, harvest, Thursday, God, Mayflower, farming, Plymouth, winter, starvation, corn

 

SIX QUESTIONS ON REFUGEE/ASYLEE STATUS

 

 

1. What is the exact time allowed out of the country in which your one year of residency will still be considered valid to obtain your Green Card?

  

Under the INA refugees and asylees adjust their status under INA � 209 and not under � 245. Refugees admitted into the U.S. can adjust their status to LPR after one year of continuous physical presence. INA 209(a)(1), 8 U.S.C. 1159(a)(1), 8 C.F.R. 209.1.

 

There is a presumption of abandonment of residency if a person is out for 6 months or more in a year which is rebuttable.  However one year outside the country is an abandonment subject to being put in removal proceedings and documentation may be insufficient ( such as job, taxes, home mortgage ) to show that residency was not abandoned.  UNDER NO CIRCUMSTANCES SHOULD AN ASYLEE RETURN TO HIS OR HER HOME COUNTRY AS THIS WILL BE CONSIDERED REAVAILMENT AND CAN LEAD TO REMOVAL PROCEEDINGS

  

I would recommend filing for LPR status immediately after the one year following the provisions below, and filing for a Form I-131 to travel.   

 

8 C.F.R. 209.1:

  

(b) Application. Upon admission to the United States, every refugee entrant shall be notified of the requirement to submit an application for permanent residence 1 year after entry. An application for the benefits of section 209(a) of the Act shall be filed on Form I-485, without fee, with the director of the appropriate Service office identified in the instructions which accompany the Form I-485.

 

Any travel outside the United States by refugees and asylees should be carefully analyzed before giving advice or assistance. Asylees and derivative asylees may not travel outside the United States unless they have been provided with a Refugee Travel Document, Form I-571. This is a passport-like, blue booklet that is valid for one year. The application for this document is made on Form I-131, Application for Travel Document. Send the completed form, along with proof of asylee status, two photos, and a filing fee of $165 to the NSC.

 

The asylee must not have intended to abandon asylee status and must have been outside the United States for less than one year. Even if the asylee is re-admitted with the travel document, he or she will be subject to examination and questioning regarding those grounds of inadmissibility that would also constitute grounds for termination of asylum, such as commission of an aggravated felony or being a national security threat.

 

Traveling While Application is Processed:

  

In order to travel outside of the U.S. while an LPR application is being processed, the alien may use a Form I-131, to apply for a refugee travel document.

 

Refugee Travel Document / Re-entry Permit:

 

LPR status as a result of admission as a refugee or a grant of asylum allows for the application of a Refugee Travel Document or a re-entry Permit.

 

Re-entry permits are required if you are a LPR and plan to travel outside the U.S. for more than one year. The permit allows LPRs to remain outside the U.S. for up to two years without impacting their status. If a re-entry permit is not obtained USCIS may consider your status abandoned. The traveler must contact the country of travel to check if a visa will be granted, and submit a Form I-131, Application for Travel Document.

 

2. Can you visit the embassy of your home country in the U.S. before getting your Green Card? Will this negatively affect your chances of becoming a LPR?

 

No, absolutely not as this is considered reavailment and thus abandonment of your refugee or asylee status.  It also can result in denial of your green card and even after your green card has been obtained returning home can result in denial of your citizenship in some circumstances. 

 

3. What can you do if you had a fear of claiming a spouse for your grant of asylum but want to claim her when applying to adjust your status?

 

If an asylee feared or forgot to claim their spouse when applying for asylum on the I-589 application, they can still claim the spouse as a derivative asylee. The principal asylee can still claim the spouse even if he/she is not currently in the United States. The principal must file a Form I-730, Refugee/Asylee Relative Petition, within two years of obtaining asylum. Petitions can also be filed after two years for extreme humanitarian reasons.

 

The asylee must have been married at the time he/she was granted asylum and the marriage must continue to exist until the I-730 is approved.

 

In practice however it is necessary to explain why this was not done and could result in a denial of the I-730 petition for a derivative spouse or child.  It is certainly best to consult an immigration attorney to respond on this as each case is different.

 

4. Can a refugee/asylee use a World Passport to travel out of the county/ as a form of identification before or after receiving their green card?

 

World Passport is not recognized by the United States as a proper form of identification or proper travel document. Around 150 nations have accepted, on at least one occasion, a World Passport on a "de facto" basis. Six nations offer official, "de jure", recognition of the World Passport.

 

The State Department mentions WSA World Passports in their Foreign Affairs Manual: "World Service Authority Passports are not acceptable as 'passports' for visa issuing purposes ... the document is a 40-page, passport-size document with a bright blue cover with gold lettering."

Only a refugee travel document issued by Homeland Security is the correct document to use for travel.  This must be applied for before departure from the US and must be used to reenter the US.  Again this should not be used for return to the country from which the asylum was granted. 

 

5. Can a refugee/asylee work for the U.S. government abroad, without affecting their continuous residence when applying for the Green Card or for citizenship?

 

Yes. Under section 316 of the INA, paragraph (b), any LPR who has been lawfully admitted and present in the U.S. uninterrupted for at least one year, "and who thereafter is employed by or under contract with the Government of the United States or an American institution of research recognized as such by the Attorney General...no period of absence from the United States shall break the continuity of residence if..."

 

Paragraph (f) waives the residence and physical presence requirements for naturalization if the alien is determined to have made an extraordinary contribution to the national security of the U.S. or to the conduct of the U.S. intelligence activities.

 

A reentry permit that looks like a passport would need to be applied for before leaving and would need to be used to reenter the country.  These can be issued in two year increments. However, again it is prudent to consult a lawyer as circumstances and job positions vary on this and expert advice for specifics is needed.

 

6. If a refugee/asylee has lost their I-94 card but has a copy, should they still apply for a replacement even after receiving their Green Card?

 

The I-94 is used to record the departure and arrival of aliens. Generally, in order to travel to a foreign nation you will need to present a refugee travel document or your foreign passport. Upon return to the United States the LPR can enter with a valid Green Card. It may still be of interest for the refugee/asylee to apply for a replacement even after receiving their Green Card if they have lost their Green Card or if it has expired.

 

In some instances the I-94 can be used as temporary proof of LPR status.

 

Quoting from Etuk v. Slattery, a Second Circuit case:

"Moreover, in our view, the "Arrival Record" possesses the same attributes as a passport stamped with the "Temporary I-551" legend. The district court expressed no concern about the adequacy of a stamped passport.

Indeed, in reference to the "Departure Record" (the form that has the inaccurate information printed on its reverse side), the district court stated:

 

The front of the I-94, when so stamped [with the Temporary I-551 legend], with a photograph obscuring the words "Departure Record", would satisfy the statutory requirements for an "alien registration card" or "resident alien card." 8 U.S.C. � 1324a (b)(1)(B)(v). A concern for fraudulent green card applications is a rational basis for limiting the card's validity to the interim period while INS processes and verifies applications." (Emphasis in original).  Etuk v. Slattery,936 F.2d 1433, 1446(2nd Cir. 1991).

 

Under 8 C.F.R. 264.1(h):

 

(h) Temporary evidence of registration. Form I-94, appropriately endorsed, may be issued as temporary evidence of registration and lawful admission for permanent residence to a lawful permanent resident alien who is departing temporarily from the United States and has applied on Form I-90 for issuance of Form I-551, if the district director is unable to issue and deliver the Form I-551 prior to the alien's contemplated return to the United States. The alien shall surrender such Form I-94 to the Service upon receipt of Form I-551.

 

Furthermore, under 8 C.F.R. 264.1 (i) the copies can be retained for use by attorneys and representatives for informational purposes.

 

In practice, it is best to send the attorney a copy of both the green card stamp ( I-551) and of the green card itself so that if they are lost in travel the attorney can pursue the matter with the Embassy or Consulate of the particular country.  The I-94 is NOT needed once the stamp or green card has been obtained and is normally retained by CBP or CIS. 

WHAT TO DO IF YOU ARE BEING ABUSED BY YOUR SPOUSE

 

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Unfortunately, many immigrants are abused by their spouses every day, but most are too afraid of the consequences of calling for help.  Many worry that, because they are illegal, they will be deported if they ever call the police on their spouse.  Yet, putting up with abuse  is too high a price to pay.  Everyone, regardless of their immigration status, has the right to seek help if they are being abused.  These rights include:

         The right to ask the court for a protection (or restraining) order for yourself and for your children;

         The right to divorce your spouse;

         The right to share your marital belongings, including money;

         The right to ask the court for custody of your children who are under the age of 21, and the right to ask for child support. 

         The right to hire a lawyer, or to be appointed a lawyer if you cannot afford one, and to defend yourself in court if your abusive spouse accuses you of committing a crime.

If you are the victim of domestic violence or sexual abuse, you can be provided with help, regardless of your immigration status.  This help can come from government and/or non-government organizations and  includes, but is not limited to, counseling, having an interpreter, advice in safety planning, emergency housing, and financial aid. 

As a victim of domestic violence, sexual abuse, or other crimes, you may be eligible for an immigration petition, such as:

         Self-Petitions under the Violence Against Women Act (VAWA), which is for immigrant spouses and children of US permanent residents or citizens (Form I-360);

         Battered Spouse Waivers under VAWA, which is for conditional permanent resident spouses who are victims of domestic abuse (Form I-751);

         Cancelation of Removal under VAWA in Immigration Court, which is for immigrant spouses and children who are in removal proceedings and who are victims of domestic abuse;

         U-nonimmigrant status, which is for immigrants who fall victim to domestic abuse and other physically abusive crimes (Form I-918);

         T-nonimmigrant status, which is for immigrants who are victims of human trafficking (Form I-914).

If you are an abused spouse, don't hold back any longer.  It is time to stand up for yourself.   The experienced lawyers at BOILA have been winning cases for victims of abuse for many years.   You need never doubt that we will always do our very best to take care of you. 

For more information and to see a list of hotlines that you can call if you are suffering from domestic or sexual abuse, please click here.

FINAL RULE - CHANGES FOR J-1 VISITORS

 

On September 9, 2010, the final rules for J-1 Trainee and Intern Programs went into effect.   The rule does not make many significant changes, but rather serves to clarify existing regulations.  The changes include:

         Clarification of previous rules on the required academic background of interns applying for a J-1.

         Elimination of the previous requirement of having sponsors of J-1 visitors secure a Dun & Bradstreet report on all of the host companies.

         Clarification of the previously somewhat ambiguous regulation that neither clinical social work nor social work that falls under the Public Administration and Social Service Professions is allowed for J-1 visitors.

         Clarification of the ambiguous regulation specifying that dental services are not allowed. 

         Elimination of training programs or internships for J-1 visitors for counter help positions.

         Clarification of the regulation that permits telephonic interviews with J-1 visitor applicants to test English proficiency skills in the case that a video conference is not available. 

Applicants who qualify for the J-1 visitor program must be enrolled in and actively pursuing a post-secondary education in a country other than the USA. If the applicant has already completed a post-secondary education, then they will only be eligible for a J-1 visa within 12 months of graduating.  If the applicant is approved for a J-1 and completes his or her internship in the US, they may apply to repeat the internship program if, and only if, they spend a minimum of two years outside of the United States upon completion of their initial internship.

To read the full article, please click here.

"ELEPHANT" NO LONGER AN ENDANGERED SPECIES

 

republican logo 

 

House- 239/188

Senate- 46/53

 

Gubernatorial- 10 new seats for Republicans

The May 2009 Time magazine cover page declared that Republicans were an "endangered species".  Last night, the new Majority Leader of the House John Boehner - who is replacing Nancy Pelosi - declared that it is a repudiation of democrats and Obama's policies.  He announced that it was time to "roll up our sleeves and do the people's business". 

 

President Obama visited Ohio twelve times to campaign for democrat Ted Strickland but the Republican John Kasich won.  Both Senate and gubernatorial positions went to the Republicans.  In Illinois, President Obama's former senate seat, again a republican won.

 

Harry Reid, however, did retain his seat against Sharron Angle despite a 14% unemployment rate in Nevada and thus he retains his Senate majority seat.  California and Hawaii kept the incumbent democrats.

Proposition 19 to legalize marijuana went down in flames as expected.  Historically, the Republican gains mark the biggest midterm election seat swap since 1938 when Democrats lost 71 House seats. It has already eclipsed the 1994 Republican tidal wave in which the GOP netted 52 seats.

 

Overall, the 2008 theme of Change now seems to have been rejected by the people and instead Change course was the message.  The Republican Party, however, will have to prove that its goals of 1) creating jobs and 2) cutting spending will effectuate results which will be difficult with a House majority but not a Senate majority.

 

In addition, Republicans do not want to increase taxes in a recession which makes it even more difficult.  Boehner, from a large family of working class men, is ready for the job and it will be interesting to follow his progress. 

The emerging star of Election night was Marco Rubio, a Cuban emigrant who is someone to watch in the future as a magnet for the Latino vote.  The still inchoate Tea Party movement played a major role in his advance.

 

For picture source, click here.

 

 

 

SECURE COMMUNITIES PROGRAM SPREAD TO WEST VIRGINIA

 

west va flag

On October 26, 2010, the U. S. Immigration and Customs Enforcement (ICE) implemented Secure Communities to all the counties of West Virginia this past October.   Secure Communities is ICE's new system of mainly using biometrics to identify immigrants that are in the U.S. illegally and/or are guilty of committing crimes.

 ICE is now working with the Department of Homeland Security (DHS) and the FBI to identify criminal immigrants.  For example, when someone gets fingerprinted for a crime and their fingerprints match the fingerprints that are in the DHS biometrics system, the DHS will report this to ICE.  ICE will then take action, regardless of whether the immigrant is legally or illegally present in the U.S.  Priority will be given to dealing with immigrants who have committed the worst offenses, such as murder, rape, and kidnapping. 

Secure Communities was first implemented in October of 2008 and, since then, has enabled ICE officers to deport 46,800 immigrants convicted of criminal offenses.  Now with Secure Communities extending to West Virginia, the program is active in 746 districts in 34 states.  ICE is expecting to have this program extended nationwide by 2013. 

Although ICE claims that this program is a great success that is subject to much debate.  It's a very controversial issue because it has no regard for family unity.  ICE officers are arresting and deporting immigrants who have committed minor and non-violent crimes.  This program has been abused and not monitored properly.  It is also alarmingly secretive - like something out of Gulag Archipelago.

ICE has repeatedly indicated that Secure Communities is not a mandatory program.  It has also indicated that it intends to implement the program in every jurisdiction by 2013. Those communities currently threatened by this program can choose to opt out of the program.

If you know someone who is being held in an ICE detention center as a result of being charged with a crime, please contact BOILA to see what types of relief may be available to that immigrant. 

To read the full article, please click here.   

 

For picture source, click here.


SUMMARIES OF MS. BEACH'S PUBLISHED ARTICLES

 

DBO

"What Do Clients Expect from Their Attorneys?," 87 No. 26 Interpreter Releases 1349 (June 12, 2010):

This article presents what is expected of a good attorney.  It makes note of the fact that clients often come from different cultural backgrounds and have different expectations of their attorneys.  Thereby, attorneys "must guide, encourage, and assist when possible to change the harsh realities that so often exist for the parent, child, or spouse."

This article which was published in 87 Interpreter Releases 1349 (June 12, 2010), � 2010 Thomson Reuters, is posted with  Thomson Reuter's permission.   For additional information on Interpreter Releases  visit http://west.thomson.com/store/product.

"'Twas the Season to be Jolly: The Immigration Consequences of Excessive Libations," 87 No. 17 Interpreter Releases 873 (April 26, 2010):           

This article talks about the recent crack down on drunk driving, underage drinking, and binge drinking.  Immigrants who are caught for engaging in such activities will face strict consequences, such as deportation. 

This article which was published in 87 Interpreter Releases 873 (April 26, 2010), � 2010 Thomson Reuters, is posted with  Thomson Reuter's permission.   For additional information on Interpreter Releases  visit http://west.thomson.com/store/product.

 For the portions of the three Immigration Briefings articles:

"Pecadillos of Persecution--Dire Immigration Consequences of Violence: Persecution of Others, Crimes, Terrorism, and National Security," 10-05 Immigr. Briefings 1 (May 2010):

 "Crimes of violence usually, but not always, trigger a mandatory disqualification for asylum and/or withholding of removal.  This Briefing examines five categories of criminal convictions or criminal-related conduct that mandate the denial of asylum and/or withholding of removal: persecution of others, particularly serious crimes, serious nonpolitical crimes, the terrorist bar, and the national security exception."

This except from the article "Pecadillos of Persecution--Dire Immigration Consequences of Violence: Persecution of Others, Crimes, Terrorism, and National Security," 10-05 Immigr. Briefings 1 (May 2010), � 2010 Thomson Reuters, is posted with Thomson Reuter's permission.   To access the full article, please visit www.westlaw.com.

 

"Battlefield of Gendercide: Forced Marriages and Gender-Based Grounds for Asylum and Related Relief," 09-12 Immigr. Briefings 1 (Dec. 2009):

 "This Briefing reviews the response by the international community and the United States to prevent violence against women.  It then highlights how the Immigration and Naturalization Service (INS), three separate Attorney Generals, the Board of Immigration Appeals, and the Department of Homeland Security (DHS) have grappled with the extent to which women fleeing gender-related violence should be provided refugee protection, if at all.  It then focuses on one aspect of domestic violence - forced marriage - and outlines for practitioners the common factual situations, relevant case law, and legal argument on which to support an asylum claim based on forced marriage.  The final portion of the Briefing is devoted to the law and practice of presenting a forced marriage asylum claim to an immigration court."

This except from the article "Battlefield of Gendercide: Forced Marriages and Gender-Based Grounds for Asylum and Related Relief," 09-12 Immigr. Briefings 1 (Dec. 2009), � 2009 Thomson Reuters, is posted with  Thomson Reuter's permission.   To access the full article, please visit www.westlaw.com.

 

"Naturalization: Tricks and Traps for the Unwary,"  10-09 Immigr. Briefings 1   (Sept. 2010):

"The purpose of this Briefing is to review the naturalization process and highlight some of the tricks, traps, and pitfalls that often lay hidden in the naturalization process."  Some of these issue that are covered are: loss of naturalization, going from naturalization to removal proceedings, the Child Status Protection Act, naturalization eligibility for persons born in the United States to foreign diplomats, derivative citizenship and adoptions.

This except from the article "Naturalization: Tricks and Traps for the Unwary,"  10-09 Immigr. Briefings 1 (Sept. 2010), � 2010 Thomson Reuters, is posted with  Thomson Reuter's permission.   To access the full article, please visit www.westlaw.com.


REGRESSION FOR EMPLOYMENT PREFERENCE PETITIONS OR VISAS

 

Department of State that issues Visa numbers have good news for family-based classifications but the news is bad for employment-based classifications.

In recent years the demand for visa numbers in family based categories has declined.  AILA-DC met with Charles Oppenheimer who works for the State Department Visa Control and Reporting Division responsible for producing the annual report to the Visa office and for issuing the Visa Bulletin.  He stated that most likely this decline in visas available for employment is reflective of the one million less immigrants entering the country compared to the usual one million increase per year in population.  This decline is most certainly a commentary on our economy as visa fees continue to increase even 10% again on November 23, 2010.  Yet jobs and employment prospects are unavailable.  The petitioners can no longer afford the Affidavit of Support (I-864) requirement either. However, this is not resulting in the flight of those unlawfully present as the three (3) and ten (10) year bars imposed for returning after departure make it an unlikely prospect of ever returning if they leave.  This leaves illegals extreme angst and a Sisyphus choice. 

Thus, priority dates of family-based categories are advancing quickly particularly for spouses and  minor children of lawful permanent residents (F-2A and F-2B)   By February 2011 it is projected that these categories would be close to current and National Visa Center ( NVC) is notifying hundreds of thousands of applicants to get their paperwork ready for visas. 

On the other hand, employment-based (EB-2 and EB-3) are oversubscribed.  Often families are involved in coming with the worker and thus even create a heavier toll on the categories.  The above categories for China are expected to move slowly over the next few months at the pace of one to two weeks for several months. 

In this climate, practitioners with adjustments at District Offices are highly encouraged to ensure visa has been requested immediately upon approval of the petition. 

The information contained on this email is for informational purposes only and does not constitute legal advice. The transmission of information to or from this email does not create an attorney-client relationship between the sender and receiver. We take our privacy policy seriously and will never sell, rent or share our email list. View our Privacy Policy here. To schedule a consultation with one of our immigration lawyers, please click here. Copyright 2010.
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HAPPY THANKSGIVING!
QUOTE OF THE MONTH
 
"The greatest discovery of my generation is that a human being can alter his life by altering his attitude."

~ William James

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ASYLUM DENIAL RATE DROPS TO TWENTY FIVE YEAR LOW
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Very timely Justice Department data shows that Immigration Judges are declining substantially fewer requests for asylum. Denial rates have reached the lowest level in the last quarter of a century according to a new analysis by the Transactional Records Access Clearinghouse (TRAC).

 

This was one of many new findings to emerge from TRAC's fifth annual monitoring report focusing on the processing of asylum requests by these specialized courts. In FY 1986, almost 9 out of 10 (89%) of such requests were declined. During the first nine months of FY 2010, only half (50%) were turned down.

 

The analysis of hundreds of thousands of case-by-case records also found that the total number of asylum requests has been falling, that a higher proportion of asylum seekers are now represented by counsel, and that judge-to-judge disparities in denial rates remain a pervasive problem. To read the complete report, please click here.

 

 Also available are 253 separate reports covering individual Immigration Judges, updated through June 2010. These reports examine each judge's asylum denial rate year-by-year, providing rankings and other comparisons with the denial rates of other judges. For judge-by-judge listings, please click here.

 

Over the past five years this report series has been primarily supported by Syracuse University, the Carnegie Corporation of New York, the Ford Foundation, the JEHT Foundation, the New York Times Company Foundation, Public Interest Projects, and the John S. and James L. Knight Foundation.

 

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC's ongoing efforts, please click here.  

HOW DOES RECENT FEDERAL IMMIGRATION LEGISLATION AFFECT HOUSING AND EMPLOYMENT: LOZANO V. CITY OF HAZELTON

house

As the nation continues to wait for comprehensive immigration reform from the federal government, state and local governments are attempting to regulate immigrants at an increasing rate.

 

Legislation has emerged nationwide in the form of local laws and ordinances regulating immigrant access to housing, employment, education, and health care.

 

On September 9, 2010 the Third Circuit decided Lozano v. City of Hazelton and held ordinances in the City of Hazelton, Pennsylvania attempting to regulate the employment and rental of housing to undocumented people were preempted by federal law and invalid under the Supremacy Clause.

 

The Hazelton ordinances prohibited businesses from hiring or continuing to employ undocumented workers, or from harboring undocumented tenants by leasing or renting to them. The ordinance would force landlords to evict undocumented tenants within five days, or face heavy daily fines.

 

Employers deemed to have hired two or more undocumented employees would be required to implement the E-Verify system in order to regain their business license and avoid further fines. The law also allowed city residents to file complaints if any landlord or employer was not complying with the ordinance.

 

In the decision, the Third Circuit held the Hazelton ordinances were pre-empted by federal immigration laws such as the Immigration Reform and Control Act (IRCA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

 

The court held the employment ordinance created a conflict pre-emption with IRCA, by creating more obstacles to the administration of IRCA regulations. The ordinance created broader regulations than IRCA and imposed stricter rules and penalties, directly conflicting with Congressional intent. The court also held the proper avenue for regulating the housing or residency of undocumented people was through the federal removal power.  

 

Thus, the Hazelton housing ordinance attempting to "regulate residency based solely on immigration status" was pre-empted by federal removal powers and the Supremacy Clause.

 

The proliferation of similar laws nationwide has led to an increase in litigation and adjudication. The Courts of Appeal are currently split 2-2 on the issue. In 2009, the Ninth Circuit in Chicanos Por La Causa, Inc. v. Napolitano, ruled the Legal Arizona Workers Act, mandating employer's use of E-Verify, was not pre-empted by federal law because it dealt with business licensing law. In Gray v. City of Valley Park, the Eighth Circuit held an ordinance, very similar to the City of Hazelton's, was not pre-empted and did not violate due process or equal protection.  Thus, allowing local government to control immigration.

Conversely, in Chamber of Commerce v. Edmondson, the Tenth Circuit cited two district court decisions in holding an Oklahoma law was pre-empted by federal law.

 

The Supreme Court has agreed to hear the Chicanos Por La Causa case as the consolidated case of Chamber of Commerce v. Candelaria during the 2010 term. This Supreme Court decision will have a large impact on state and local governments' attempts to pass anti-immigration laws in the form of housing and employment constraints.  

 

If the Supreme Court sides with the Third and Tenth Circuits by deciding the laws are pre-empted, local governments will have to wait for federal legislation for reform. If the Supreme Court upholds the decision in Chicanos Por La Causa, Inc., state and city legislatures can be expected to increase attempts at regulating immigration at the local level.

TPS FOR SOMALIA EXTENDED UNTIL SEPTEMBER 17, 2012

somalia flag

Somali nationals and aliens who do not have a nationality but habitually resided in Somalia have just been granted an extension of TPS for another 18 months, until September 17, 2012.  This is in result of ongoing armed conflict in Somalia, which has made the country too dangerous for anyone to return home to. 

The re-registration period for TPS begins on November 2, 2010 and will be open until January 3, 2011.  Please make sure you re-register for TPS during that time frame.  If you have questions about the TPS process, please call the TPS Operations Program Manager at 202-272-1533.  If you need help filing your application, come to BOILA and we will be happy to assist you. 

For more information, please click here. 

PRESIDENT OBAMA PRESSURING FOREIGN GOVERNMENTS TO REGULATE HUMAN TRAFFICKING

pres obama

In a memo issued on November 1, 2010, President Obama stated that the U.S. will not be providing financial assistance to Burma, Zimbabwe, Cuba, the Democratic People's Republic of North Korea, Eritrea or Iran until these countries begin to comply with the Trafficking Victims Protection Act of 2009.   As of right now, these countries are not doing much to put an end to human trafficking, and, by issuing this statement, President Obama has made it quite clear that the U.S. will not tolerate this behavior. 

 Until the countries make changes to solve the human trafficking problem, the U.S. will not give them any more money in aid.  The only exception to this, according to Mr. Obama, is a partial waiver that will allow funding for programs that help victims of human trafficking and for programs that work to stop human trafficking. 

By issuing this policy, Mr. Obama has once again demonstrated that the U.S. does not tolerate any violations of human rights.   To read the full Presidential Memo, click here. 

 

For picture source, click here.

NEW EXECUTIVE OFFICE FOR IMMIGRATION REVIEW WEBSITE

On October 20, 2010, the Executive Office for Immigration Review (EOIR) launched its new and improved website.  The site now not only looks better, but functions much better as well.  The new improvements include:

         An Action Center that helps one to find a representative, an immigration court, or a free attorney;

         A place to submit complaints about immigration judges;

         A list of statistics of already-filed complaints;

         A link to the practice manual for the Office of the Chief Immigration Judge;

         A link to the practice manual for the Board of Immigration Appeals;

         A list of immigration forms;

         The Immigration Judge Benchbook;

         The Virtual Law Library; and

         Links to the Department of Justice's website and to its agencies' websites.

To visit this new website, go to www.justice.gov/eoir.  To read the full news release, click here.

USCIS TEXAS SERVICE CENTER SPECIAL PILOT INITIATIVE FOR EMPLOYMENT-BASED I-485

An email address [email protected] has been provided to notify the TSC when an applicant is eligible for porting under AC21.  This pertains ONLY to applicants whose I-485's have been

 1)     pending for over 180 days

 2)     eligible for AC21 porting

Letter must include Alien number ( A#), old and new employer's names, copy of new employer's letter of employment including specific information as would normally be included and required in such a letter.

RECENT CONTRIBUTIONS OF IMMIGRANTS

Two immigrants from Africa have just recently completed marathons in incredibly mind-baffling amounts of time. 

Gebre Gebremariam, who is 26 years old and from Addis Ababa, Ethiopia.  He finished the New York City Marathon in 2 hours, 8 minutes, and 13 seconds - that means he ran over 1/3 of a mile per minute!

Edna Kiplagat, who is 31 and from Kenya finished the New York City Marathon in 2 hours, 28 minutes, and 19 seconds.  She ran an average of 2/5 of a mile per minute! She's also won three other marathons throughout 2010. 

BOILA congratulates both Mr. Gebremariam and Ms. Kiplagat on their accomplishments.  This is just one of the many examples of how much talent immigrants contribute to the U.S.  


IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS

Supreme Court decision in Padilla v. Kentucky (2010) states that defense counsel must inform a non-citizen of the risk of deportation that could arise from a guilty plea based on Sixth Amendment rights.  Failure to do so could constitute "ineffective assistance of counsel under Strickland v. Washington (1984) which could mean that either the conviction would be vacated or the guilty plea withdrawn. 

 

Since criminal crimes are often committed in different jurisdictions and under varying administrative and judicial precedents this becomes a complex situation.  In effect it requires criminal defense attorneys to consult with immigration attorneys to understand the possible consequences.  Also removal proceedings are often in yet different jurisdictions than the criminal sentencing.


This landmark case recognizes that immigration laws impose harsh mandatory deportation consequences on criminal convictions.  Congress eliminated 212 c relief which was a second chance to prove rehabilitation if statutorily eligible and thus government discretionary authority to cancel removal for meritorious cases became non-existent.

To read the full article, please click here.