Greetings! Beach-Oswald Immigration Law Associates is committed to providing you with this newsletter to keep you up to date with information regarding immigration law and other issues that affect you! Read on for our October 2012 e-newsletter edition!
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IMMIGRATION THROUGH THE EYES OF ROMNEY AND OBAMA
Recently our nation's eyes turned to Hofstra University in Long Island, New York, where the two top presidential candidates sparred in a veritable battle of wits. The debate was held in a town hall style format with questions coming from undecided voters, and it got quite heated. Romney quotes regarding women went viral, with hundreds mocking a statement he made regarding "binder of women". Many also disapproved on the Alpha male attitude of President Obama.
Questions covered a variety of topics including the economy, energy, and even foreign policy. Perhaps the most critical takeaway from the debate, though, was both candidates seeming failure to address immigration in a comprehensive manner. When the question was raised, the candidates engaged in a lively back and forth. Romney accused Obama of failing to do anything about immigration over the last three years. At the same time, Obama claimed Romney would repeal the DREAM act, likened his plan to the controversial Arizona SB 1070, and accused Romney of encouraging self-deportation. This is from the same person who has encouraged deportation for over 400,000 which is twice as much as ever before.
It's hard to take what either of the candidates said seriously. Romney started out his pitch saying he wanted to "streamline" the system and then he said, "I don't think you have to -shouldn't have to hire a lawyer to figure out how to get into this country legally." Perhaps just a hopeful statement, but it really illustrates how much Romney is underestimating our problem and how little understanding he has of the complexity of immigration petitions. The system is broken in more ways than just its sheer complexity.
When moderator Candy Crowley, asked Romney to address the Obama accusations about self-deportation, he skirted the topic and did not deny it. The same went for an accusation that Romney's "top immigration adviser" was the author of the Arizona law. While Romney did not deny this, upon further investigation it seems that Kris Kobach, the author, has only been called an "informal adviser."
Sadly with the candidates jabbing back and forth, it's hard to get the big picture on immigration policy. Both candidates' claim to support keeping families together, increasing border security, and creating comprehensive legislation on reform. Mitt Romney maintains that he will not allow illegal immigrants to "cut the line" through amnesty or similar programs, perhaps a hint at opposition to the DREAM act.
Governor Romney stated that we are a "nation of immigrants. We welcome people coming to this country as immigrants. My father was born in Mexico of American parents; Ann's dad was born in Wales and is a first-generation American." This seems to suggest that is if you come in legally on a family or employment based visa for which you may have waited for years then you are welcome. However, if you are one of the 12 million plus illegals then you are not and you should chose to leave.
President Obama made a number of errors in his explanations that were factually incorrect. He stated in the debate, "the first thing we did was to streamline the legal immigration system to reduce the backlog, make it easier, simpler and cheaper for people who are waiting in line." Have you looked at the visa bulletin from the Department of State lately or the backlogs in Immigration court extending into 2015 for immigration hearings in this area, Mr. Obama? Clearly, he also hasn't looked at immigration fees that constantly are increasing including HIB fees that employers must pay and the $1490.00 fee that one person pays to USCIS to get a green card based on their US citizen spouse.
While Romney claims Obama has failed at immigration, he did enact a policy earlier this year DACA which allowed youth with characteristics matching DREAM act criteria to avoid deportation. At the debate, though, Obama really pushed the envelope, saying in reference to these youth that "we should make sure that we give them a pathway to citizenship. And that's what I've done administratively." While he has granted deferred action to these youth, the initiative does not actually grant a pathway to citizenship. In fact, it only might give to some of the applicants a work authority valid for 2 years if the can show an economic necessity. In other words, a 30 year old gainfully employed and making a good income would not qualify for the work permit.
What both Obama and Romney agreed on was that legal immigration should be simplified; that children of illegals /students should have a pathway to legal status; and that the deportation should focus more on the criminals. This is rather ironic considering that Obama has already in less than four years deported more than twice as many persons, most of which are non-criminals, just overstays in this country, than any other prior administration. To date over 420,000 persons have been physically removed by Immigration and Customs Enforcement (ICE).
The result is that at best we have a murky picture of their policies. Both candidates are vying for the Latino vote; a factor which many political analysts have said could decide the entire election. With the high importance of the vote, both candidates need to solidify their immigration experience and objectives. Sadly, with such inaccuracies riddling the public forum, we can expect that neither candidate seems to have to the necessary knowledge to truly reform our immigration system.
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MYTHS THAT COULD COST GOP AND DEMOCRATS THE ELECTION
During the election cycle the importance of Latino voters becomes even more apparent as either party attempts to garner Hispanic support. A recent Washington Post article outlined five myths about Latino voters. These myths include that Latinos:
- Do not vote.
- Are social conservatives who should lean Republican.
- Favor increased government services and therefore are reliable Democratic voters.
- Care most about immigration.
- Are swayed by the presence of a Latino candidate on the ballot.
A critical observation made in the piece concerns the importance this community places on certain policy issues, such as immigration. It is often assumed that immigration is consistently the single priority issue for the average Latino voter. The media often shape the immigration debate in terms of border issues with Mexico, continued persecution, rising deportation rates, and the high number of Latin immigrants. Interestingly enough, the Hispanic population is worried about many of the same things as the rest of the United States. Polls have indicated that registered Latino voters are most worried about job creation and fixing the economy. Even though immigration reform is second in significance, it is closely followed by education and healthcare.
Through all the myths identified, it appears that the common theme is that this key group is misunderstood, due to many incorrect assumptions. What is the significance of these myths? For one, if they are mistakenly considered facts the inaccuracies have the potential to substantially affect the political process. Latinos are voting in great numbers and therefore politicians must be aware of this fact and cater to their interests, in garnering the Hispanic vote. Although the Hispanic population typically leans more right on topics such as abortion and marriage, these two issues do not decide the final party affiliation. For this reason, both parties are presented with the challenge of fighting for this key constituency and trying to reach some kind of compromise. Hand in hand with this argument is the assumption that Latino voters are always going to vote for the Democratic party due to a need for government services. But this is incorrect, as in the end the party affiliation is dependent on a wide range of factors.
The final myth is that Latino voters vote for candidates of Hispanic descent alone. This is highly inaccurate, because just like any other group, the Latino voter considers the entire package and which policy initiatives most directly correspond to his concerns and desires.
This analysis of the misinterpretation of the Latino voter is insightful since such mistakes are common across ethnic and socioeconomic group divisions. Politicians may pay particular attention to individual constituencies, but cannot forget to consider the entire package. Misinterpretations are common among the African American group as well, and only with further analysis and actual statistics may these myths be eliminated.
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Improper Procedures in US Immigration Detainment Facilities
A recent report, titled "Invisible in Isolation," documents the growth of immigration detention facilities and investigates the nature and procedure of the confinement therein.
Facilities used for detaining immigrants in the United States are equivalent to facilities in which convicted criminals are housed. Many county jails and traditional detention centers are used for these purposes simply by contracting with ICE (Immigration and Customs Enforcement).
These complexes are characterized by the same features that we associate with traditional prisons - barbed wire and other security measures, confinement to a small area indoors, lack of outside contact, etcetera. While this has been public knowledge for some time, the new report release by The National Immigrant Justice Center and Physicians for Human Rights details the usage of solitary confinement and other strict confinement measures against immigrants.
The report shows that since 2006, Immigrant Detention rates have been on the rise. While detention was at about 20,000 immigrants at that time, it has since risen to about 33,000, an over 60% increase. This markedly significant increase in quantity of detainees prompted further investigation that has indicated mistreatment in many cases.
Many facilities restrict outside privileges of the detainees, some going to extremes such as a Facility in Cobb, GA which limits outdoors activity to once every thirty days, or the Fairfax County Jail which has completely restricted all outdoors activity.
The most troubling find of the report, however, is the usage of solitary confinement on detainees without appropriate justification. Solitary confinement, also commonly referred to as isolation, is when a prisoner is kept in a specific room and removed from all contact (even with fellow detainees and prison staff). This process can last for extended periods and is known to be extremely detrimental to the mental and physical health of prisoners.
The report details many instances of solitary confinement. In some cases, solitary confinement was even implemented on mentally ill detainees. In many examples usage was arbitrary or based on sexual orientation.
ICE, who is responsible for the detention of immigrants, has not provided consistent training or instruction for the facilities with which they have contracted. In fact, they have yet to develop clear regulations on isolation or segregated confinement in general. As a result, immigrants are being mistreated, and, in many cases, have to live in worse detention conditions than even dangerous criminals do. It is time that this unconscionable treatment of immigrants is put to a stop. Most of the immigrants in ICE's custody are not dangerous criminals, but disadvantaged people seeking to start a new life and to pursue the American Dream. Help to end the injustice. Click here to read the full report and to take action to change current conditions.
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WITH GOVERNMENT AT STANDSTILL, PRIVATE ENTERPRISE BEGINS TO TAKE ACTION
A recent report, titled "Invisible in Isolation," documents the growth of immigration detention facilities and investigates the nature and procedure of the confinement therein. It seems like when you hear immigration today, everyone is centered on migrant workers seeking unskilled jobs, but there is a huge section of immigration that is often overlooked. Take for instance, the American Scientist Shortage-that is to say, the lack of graduates for Science Technology Engineering and Mathematics (STEM) fields. While the American job market is not good for graduates, students in these fields are having no problem finding work, and that's because there is a huge shortage of viable candidates for these jobs.
With America short on skilled workers, many large tech firms seek immigrants to fill these positions, usually under an H1-B Visa. This visa allows companies to temporarily employ foreign workers for specialty positions. But Congress has the yearly limit set to 65,000, and that's not enough to satisfy the demand for STEM work. At the same time, Congress is at an impasse on immigration, and many openings remain vacant with viable candidates unable to enter the US.
With much of the federal government at a standstill on immigration legislation, some people are getting impatient. This has sparked some incredibly creative ideas. For example, a Silicon Valley Startup called Blueseed, is working to purchase and convert a large cruise ship to skirt the visa shortage. The ship would rest in international waters twelve miles off the coast of California, with residents working and living on board. This puts people close to the firms that desperately need STEM employees and are conveniently just out of the reach of United States Immigration and Customs Enforcement. (http://blueseed.co/)
Others have come up with less radical ideas; Microsoft hopes to influence action on the issue by presenting their own legislative framework for immigration reform. Microsoft currently has 6,000 job openings for high skilled computer positions and is the leading employer of workers with H1-B Visas.
The Microsoft plan calls for an increase of 20,000 in H1 - B visas, as well as an added 20,000 green cards extended to professionals in the STEM fields. Additionally, a raised filing cost of $10,000 is suggested. The added cost is intended to raise money for education reform in American schools, without which the STEM shortage will never go away.
While Microsoft cannot enact legislation on its own, the plan raises some important issues. America is in the middle of a scientist shortage and our government is doing nothing about it. Without education reform, America cannot produce more scientists, and without a change in immigration law, thousands of positions will remain vacant. Sadly, it seems like the government is willfully unaware of this growing void in the sector. Plans like Microsoft's might prompt a move in the right direction but as long as Congress neglects to act, the problem can only get worse.
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STATISTICS EMPHASIZE THE DANGERS OF OVER-SIMPLIFYING THE DEPORTATION PROCESS
The Transactional Records Access Clearinghouse (TRAC) recently released some striking information about U.S. federal immigration enforcement. The data is effectively broken up by nationality, geographic location, year and type of immigration charge. It provides a better understand of the deportation proceedings. Listening to media reports on deportation statistics under the Obama administration is one matter, but being able to see the exact breakdown allows for a more thorough analysis. For the average citizen with national security or terrorism concerns, the TRAC data provides solace in showing that these charges are amongst the lowest levels across the board. Furthermore, this data is useful in comparing how one state compares to the country as a whole or to states with more pressing immigration concerns such as California or Texas.
On the national level and individual state levels, in particular Maryland and Virginia the most common charge is entry without inspection, well over 50%. The entry without inspection charge (EWI) is most often applicable to those crossing the Mexican or Canadian border without having any contact with an immigration official. Why is it important to distinguish the different types of charges? Congress has provided funds to ICE for around 400,000 deportations annually, and the Obama administration aims at making sure those resources are directed at the high-priority cases primarily. A high-priority case is one which poses a threat to public safety whether due to national security concerns or criminal activity. Now, the TRAC data clearly shows that the majority of deportations are not these "high-priority cases". This does not mean that ICE is going against the Congressional initiative, rather EWI charges are more common and threats to public safety due to immigration are fortunately not widespread.
While the United Statesas a whole has Mexican immigrants as the majority; Virginiaand Maryland's most popular nationality comes from El Salvador. What is the significance of these results? National media often directs the immigration debate towards our neighbors in Mexico, but clearly this may not be the priority for each individual state. Consider that in New York the greatest nationality being deported (by a wide margin) is Chinese. In comparison, big states California and Texasface highest deportation rates for those individuals coming from Mexico, followed by three Central American countries (Honduras, El Salvador and Guatemala). What is the relevance of such statistics and categories, you may ask? Well, immigration concerns and policy directions may vary widely in these two states compared to for example, Florida where Caribbean deportations are more likely.
Recent reports demonstrate that as deportations are rising in 2012, the deportation orders have fallen. How can this be explained? Under the Freedom of Information Act, data has shown that in May of this year 39, 426 people were deported; with at least a third removed from the country and bypassing the immigration courts. This is possible from the 1996 Illegal Immigration and Immigrant Responsibility Act which established the expedited removal procedure.
Are more individuals indeed being deported without court review? How common are deportations through the Congress-granted administrative powers for the immigration enforcement agencies? Available data shows that although actual deportations are increasing, the decrease in court-ordered deportations suggests other categories. Only 25% of the total removals are court-ordered; the remaining are: 34.7% by reinstated order, 29.8% by expedited removal, and 10.1% voluntary return under safeguards. To clarify these different types of deportations, reinstated orders are those cases whereby an individual illegally returns after previous orders to leave U.S.soil. And these voluntary returns are those in which the person agrees to leave the country with ICE monitoring the departure and without any court-issued order.
The national media often comments on rising and falling levels of deportations but rarely analyzes the intricacies of the deportation process. An individual is not simply "deported". Leaving the country encompasses everything: his charge, his location and his nationality are dependent on the changing policies and statistics. So as not to risk over-simplifying a complicated process; consulting data and statistics such as TRAC is the first step in progress.
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AILA Member Since 1992
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Family Category Processing Times:
1st: 10/8/05
2A: 6/1/10
2B: 9/15/04
3rd: 5/22/02
4th: 3/15/01
Employment Category Processing Times:
1st: Current
2nd: 1/1/12
3rd: 10/22/06
Unskilled: 10/22/06
4th: Current
Religious: Unavailable
5th: Current
Targetet Employment Areas/Regional Centers: Current
5th Pilot Programs: Unavailable | |
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Important Immigration Programs Extended
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The EB - 5 Regional Center , E-Verify Program, Special Nonminister Religious Worker, and Conrad state 30 J-1 Visa programs were approved for a three year extension late on Friday, September28.
The EB - 5 Regional Center program allows immigrants who invest 500,000 -1,000,000 in 'regional centers' which provide at least 10 jobs direct or indirect to apply for an investors visa. Up to 10,000 are rewarded annually. The Regional Center program has been credited with boosting development in markets that have been hit hard by the US financial crisis. Expansion and construction of hotels for example, has gravitated towards EB - 5 funding over the past couple years. Marriot International has built 14 new hotels, for example, based completely on Investor Visa funding.
The E-Verify Program is an internet based government application that allows employers to check the work authorization statuses of potential employees. The program is intended to prevent the hiring of unauthorized workers. It is used by 387,000 human resources managersnationwide.
Special Nonminister Religious Worker Program allows 5,000 special visas for immigrants who are receiving a compensated full time position from a non-profitorganization. This program is separate from the visa process for ministerial religious workers.
The Conrad State 30 J-1 Visa Program is a special accommodation for a small amount of International Students yearly. The program grants 30 international medical students to stay to work in medically underserved areas of the United States.
The programs, which were slated to expire on September 30, will now continue through 2015. While some may be pleased witht the bill, it is actually a perfect picture of what is wrong with immigration reform in the US government. These are all successful programs that will almost certainly be extended again, and yet the best we could do was to pass a last-minute extension only immediately before they were to expire. If you consider what happened, this extension does not constitute any real effort for reform. Instead, it is indicative of congressional reluctance to upset the status quo on immigration - a status quo that is horribly broken.
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WHAT HAS DACA ACHIEVED SO FAR?
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In August 2012 Deferred Action for Childhood Arrivals (DACA) went into effect with USCIS to give 2 years of prosecutorial discretion for 16-31 year old who had been students and met certain requirements. To date out of 180,000 applications filed only 4500 have been approved according to USCIS Director Alejandro Mayorkas who spoke yesterday at the Annual Ombudsman Conference. Documents for the five year residency requirement will require proof on a yearly basis of presence. Those who do not show economic necessity will apparently be given an 821D approval but will not be approved for the work permit. Since the work permit for two years is the only benefit given by this program you should ensure that you see a knowledgeable attorney to document your case.
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WHAT IS NEW WITH THE DREAM ACT?
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We continue to follow the developments of the DREAM Act this year. The Obama Administration's pledge in June to stop deporting young undocumented immigrants, matching certain criteria was a critical step. In addition, August 2012 brought about the administration's new Deferred Action for Childhood Arrivals (DACA) program. This topic is being widely discussed on both the national and state levels.
The issue was brought closer to home in Maryland early this month as the Maryland DREAM Act was debated. 1,000 students and advocates participated in a march to the University of Maryland-College Park on October 6, 2012. Participants shouted slogans such as "Undocumented and unafraid" and "Si, se puede" (Yes, we can) advocating for legislation that would permit in-state tuition rates for the children of illegal immigrants. The proposal will appear on the ballot this November as Question 4 and applies to those young undocumented immigrants who: spent the final three years of high school in the Maryland public school system and can show that a state income-tax return was filed each year during that period.
The campaign in favor of the legislation has been led by Educating Maryland Kids, an alliance of immigration groups, unions and religious organizations that has been raising funds. Various polls show similar opinions of the DREAM Act: 58 percent in favor, 34 percent in opposition, and 8 percent undecided. Although the march on Sunday had a good showing, some argue that this immigration debate is not receiving nearly enough attention or funding from either side. Issues such as the upcoming gambling referendum and a ballot question concerning the legalization of gay marriage are simply garnering more attention in Maryland. Yet, continued activism and developments on the national level concerning the DREAM Act are sure to increase awareness and in turn financial support. Although Maryland may be facing several controversial ballot measures this November, the immigration debate is definitely on the table. A recent report by the Center for American Progress identifies the undeniable economic benefits of the DREAM Act. The findings are quite eye-opening and conclude: the passage of the DREAM Act would add $329 billion to the U.S. economy and create 1.4 million new jobs by 2030. Too often is the immigration debate framed in legal or ethical terms, but this information presents an alternative way of looking at new immigration legislation. The legislation grants legal immigration status to 2.1 million young people, which provides a greater incentive to pursue higher education. This in turn means that the DREAMers (as they are called) may now work legally. With this new status, they are more likely to be highly educated and increase their spending habits. As more spending occurs, this has a positive impact on the economy. The report found that this spending would create $181 billion in induced economic impact, 1.4 billion new jobs, and $10 billion in increased revenue. | |
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The recent emergence of voter identification laws across the country right before November elections is creating a stir. As the candidates discuss their sentiments on various policy issues on the national stage, the act of voting itself has come under fire. Before voting for the candidate that best represents one's views on issues of the economy or healthcare, one must be able to vote at the polls.
In a nation, where less than 70 percent of the eligible voting population actually casted its ballot during the last presidential election, any further measure to impede voting is worrisome. People have various reasons for not voting such as belief that their vote does not count, not having the time, or simply apathy. So when an individual finally does surpass the obstacles and gains the courage to vote, any change in the legislation can send them back to square one. Such a change is the recent move across the nation for voter identification legislation which places additional requirements on the voter before the ballot may be cast. Such legislation comes with the objective of eradicating voter fraud. Some allege that this perceived voter fraud is nonexistent and therefore the additional identification requirements are complicating the process.
Virginiaoffers more flexibility by allowing a non-photo identification. So valid identification can be a utility bill, insurance payment, social security or driver's license. Other states are much more stringent. The recent situation in Pennsylvaniais in comparison very stringent. It is believed to be enacting one of the strictest laws in the country. The only acceptable form of identification proposed was either a driver's license or the Penn DOT ID or "non-driver" ID. Many are concerned that due to the complications surrounding acquiring such an ID card, some people may not be able to get all the paperwork accomplished before Election Day this November.
Although such laws are more likely to have been supported by Republican members, objections still exist from both party. The common outcry among Democrats is that such legislation is meant to disenfranchise minority voters, the poor, elderly and students; key Democratic voters. Yet, Republicans also worry about crucial constituents in their base such as the elderly which may also be impacted negatively by this law. The additional requirement of having to get voter identification that they otherwise would not have may discourage their efforts to vote. Particularly, these critical groups may not have the time and resources to allocate their time to go through the often tedious process of acquiring this identification. In Pennsylvaniafor example, people complained of long lines and complications at finally receiving their voter identification cards at the Pennsylvania Department of State.
The Brennan Center recently conducted a survey on Americans' access to identification and discovered that 11 percent of United Statescitizens, which is more than 21 million individuals, do not possess government-issued photo identification. Here are some of the findings to see exactly which members of society are going to be potentially affected by these new measures:
- 18% of American citizens age 65 and above
- 25% of African-American voting-age citizens
- 16% of Hispanic voting-age citizens
- 15% of voting-age American citizens earning less than $35,000 per year
In addition to these statistics, 10% of voters with photo identification unfortunately have the incorrect legal name or address listed. It is evident that a substantial amount of people will be affected by such legislation, people that may have initially been cautious to cast their ballots. What remains to be seen is which candidate will be impacted negatively by this phenomenon. Whether or not this percentage of the population will even matter? Is it such a substantial concern that voter turn out will actually decline?
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Non-citizens Can Seek Reopening and Reconsideration of Their Cases from Outside the US
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The Legal Action Center ("LAC"), working with the National Immigration Project of the National Lawyers Guild, has challenged on multiple occasions the "departure bar," a regulation that precludes noncitizen aliens from filing a motion to reopen or reconsider a removal case by aliens after they have left the United States.
The problem with the "departure bar" is that it deprives immigration judges and the Board of Immigration Appeals of authority to adjudicate the motions to remedy wrongfully executed measures by DHS. It has been a long but successful litigation (in almost all Circuit courts for LAC) which supports statutory right to seek reopening and reconsidering by a noncitizen alien of a removal case no matter where the alien is located.
On October 1, 2012, U.S. Court of Appeals for the Fifth Circuit granted two petitions for review to eliminate the "departure bar" for aliens seeking to reopen and reconsider a removal case. The court held that it is unlawful to bar the noncitizen aliens from filing a motion to reopen (Garcia Carias v. Holder) or a motion to reconsider (Lari v. Holder). The reasoning is simple - the statutory text conferring the right to file a motion to reopen or to reconsider does not place a geographic restriction based on the location of the person applying. In Lari v. Holder, the court struck down the "departure bar" for submission of a motion to reconsider and in Garcia Carias v. Holder, the court struck down the "departure bar"for submission of a motion to reopen in immigration matters when the aliens were outside the US. Relying on Chevron and the plain meaning doctrine along with traditional tools of statutory interpretation, the court held that 8 U.S.C. Sec. 1229a (c)(6)(A) and 8 U.S.C. Sec. 1229a (c)(7)(A) have clear language regarding motions to reopen and reconsider. That statutory language does not distinguish between those aliens who are abroad and those who are in the US.
Garcia Carias v. Holder and Lari v. Holder are very important decisions that allow immigrants to pursue their rights in the US even after they have left or were deported from the US. To date nine circuit courts have rejected the "departure bar." However, the Board of Immigration Appeals continues to deny certain motions where ICE deported the noncitizen before the motion was decided.
Please see other decisions rejecting the "departure bar" made by other circuits listed in another article.
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