Join Our List
|
| CRS' Summary of Comprehensive Immigration Reform in the 113th Congress |  | Congressional Research Service's (CRS) July 10, 2013 publication, Comprehensive Immigration Reform in the 113th Congress: Short Summary of Senate-Passed S. 744, which briefly outlines major provisions of the CIR bill amended and passed by the Senate on June 27, 2013.
|
|
|
Beach-Oswald Immigration Law Associates, PC are Washington, DC immigration attorneys. Our law firm is devoted exclusively to immigration law. We have an AV rating (highest possible rating for lawyers for legal acumen and ethical standards). Practicing law since 1981.
For a second year in a row, Danielle Beach-Oswald has been nominated as a SuperLawyer by The Washington Post! Thank you to all of our supporters!
We ask that you complete a Client Data Form prior to your consultation. We have forms in English, French, Spanish, Korean, Arabic and Russian. If you require a form in another language, please call us at (202) 331-3074.
Read on!
|
Recent Grants & Successes by BOILA
|  Grants by the Board of Immigration Appeals (BIA) and U.S. Court of Appeals for the Fourth Circuit
Mr. T, a native of Cameroon, was granted relief under the Convention Against Torture by the Baltimore Immigration Court, thereby allowing him to remain in the US with his wife. While represented by another attorney, Mr. T had previously been denied political asylum by the Court, which had found that he presented a frivolous asylum claim. He then came to BOILA, which filed a successful appeal on his behalf with the BIA. Despite the Court's previous decision, BOILA was able to establish that he had past persecution and possessed a well-founded fear of future persecution based on his political opinion.
Mr. N, a native of Cameroon, was granted asylum by the Baltimore Immigration Court. Mr. N has been an active member of the SCNC since 2004, and he utilized his artistic skills to design clothing for the SCNC to spread the group's message throughout Cameroon. BOILA assisted Mr. N in establishing that he had been arrested, detained and tortured on two separate occasions by the Cameroonian government as a result of his political views and activism. BOILA wishes him the best in his future endeavors.
Ms. N, a native of Cameroon, had her prior order of removal reopened by the Baltimore Immigration Court. While represented by prior counsel, Ms. M was ordered deported in absentia, after she missed her court hearing due to medical illness. BOILA established that exceptional circumstances warranted reopening of her case. She will now be able to present her eligibility for asylum based on her membership in a particular social group, as Ms. M is a victim of forces marriage and domestic violence. BOILA looks forward to assisting her in her reopened removal proceedings.
Grants by USCIS
Ms. N, a native of Cameroon, was granted asylum nunc pro tunc by the Arlington Asylum Office. Ms. N was previously granted derivative asylum in 2010 through her father when she was under 21 years old, however, she was unable to obtain permanent residence because at the time of filing for adjustment of status, she was no longer under 21 and no longer a "child." BOILA successfully assisted Ms. N establish that she possessed a well-founded fear of future persecution based on her political opinion and membership in a particular social group, comprised of her family. She now has asylum in her own right and will be able to seek permanent residency.
Ms. D, a citizen of Ghana, was granted adjustment of status through an approved I-360 petition thanks to the Violence Against Women Act. BOILA assisted Ms. D in establishing that she was a victim of physical abuse and emotional cruelty at the hands of her US citizen husband.
Ms. E, a native of Nigeria, received the approval of her I-360 Abused Spouse Petition. Ms. E was married to her US citizen husband for 6 years,
Throughout the course of their marriage, Ms. E's husband subjected her to repeated physical and emotional abuse as well as repeatedly threatened her, using her immigration status in this country as a means of exerting his control over her. BOILA worked hard to overcome a prior denial of an I-130 petition and allegations by USCIS that the marriage was not bona fide. BOILA is now able to assist Ms. E is seeking her green card before the Baltimore Immigration Court.
Mr. Tr, a native of Vietnam, received his green card as a removal of condition after having been previously denied. BOILA has assisted Mr. Tr in responding to a request for evidence that he entered into his marriage to his US citizen wife in good faith.
Ms. E, a citizen of Sweden received her approved Form I-751, removing the conditions on her residence and allowing her to gain permanent residency in the US through her bona fide marriage to her US citizen husband.
Mr. E, a native of Cameroon received the approval of his I-130 petition, filed on his behalf by his US citizen wife. Based on the approval, BOILA also congratulates him on the grant of his green card.
Mr. K, a native citizen of Cameroon, had his I-130 approval reinstated. Mr. K consulted with BOILA after receiving a Notice of Intent to Revoke his approved I-130 petition, filed on his behalf by his spouse. BOILA successfully assisted Mr. K in responding to USCIS' concerns regarding the validity of his marriage.
Four children of Ms. C, who are natives of Guinea, received their permanent residency. BOILA had previously assisted their mother in her efforts to gain asylum and had also helped the children acquire derivative asylum in the US.
Mr. M, a native of Cameroon, received the approval of his I-130 petition, filed on his behalf by his lawful permanent resident wife. Mr. M is currently in removal proceedings , seeking political asylum based on a Motion to Reopen after removal proceedings which was granted.
Finally, BOILA is pleased to announce that 2 of our clients were recently naturalized and became US citizens. BOILA congratulates Ms. Anne Tabi and Ms. Daniella Anye, who are both natives of Cameroon on their US citizenship. BOILA is pleased to have had the opportunity to help them in their immigration matters.
BOILA is pleased to have had the opportunity to help them in their immigration matters.
|
Special Immigrant Visa Program Set to Expire Sept. 30, 2013
| 
Special Immigrant Visa Program for Iraqi Nationals Who Worked For or On Behalf Of the U.S. Government to Expire Sept. 30, 2013
On Sept. 30, 2013, authorization for the Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the United States government will expire.
The program was created by Section 1244 of Public Law 110-181, as amended by Public Law 110-242. It covers Iraqi nationals who-during the period between March 20, 2003, and the present-have been employed by or on behalf of the United States government in Iraq for a period of not less than one year. The expiration date does not apply to spouses and unmarried children who are following to join a principal applicant.
As announced at its inception, the Iraqi SIV program will expire on Sept. 30, 2013, at 11:59 p.m. EDT unless Congress extends the program. After Sept. 30, 2013, USCIS will reject any Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or Form I-485, Application to Register Permanent Residence or Adjust Status, filed by a principal applicant based on the Iraqi SIV program. Beginning Oct. 1, 2013, USCIS will suspend processing of any pending Form I-360 or Form I-485 filed by a principal applicant based on the Iraqi SIV program. USCIS will continue to provide updates.
For the latest information on the SIV program, please check their website at www.uscis.gov. You can also find useful information on the U.S Embassy in Iraq's website at http://iraq.usembassy.gov/siv-special.html.
|
|
| USCIS to Welcome More Than 18,000 New Citizens During Annual Constitution Day and Citizenship Day Celebration |  U.S. Citizenship and Immigration Services (USCIS) will welcome more than 18,000 new citizens during more than 180 naturalization ceremonies from Sept. 16 to Sept. 23 in honor of Constitution Day and Citizenship Day. Museums, historic libraries, government landmarks and national park sites will provide the backdrop for this week-long celebration of citizenship and the achievements of our newest citizens. USCIS's ongoing partnership with the National Park Service and a recent agreement with the Institute of Museum and Library Services allow USCIS to showcase some of the nation's prominent landmarks and important community institutions during this year's Constitution Day and Citizenship Day celebration. To read the entire news release, visit http://www.uscis.gov/news. |
| Deciphering the SAFE Act: A Continuation of Unproven Methods | By: James Sellars
The "Strengthen and Fortify Enforcement" (SAFE) Act is one of several bills that the House leadership has proposed as part of its incremental approach to immigration reform. The bill, introduced by House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Immigration Subcommittee Chairman Trey Gowdy (R-SC), was the subject of a contentious committee markup, ending in its passage out of committee on a straight party line vote of 20-15. The SAFE Act is an expansive immigration enforcement bill that would greatly expand the detention of immigrants, make unlawful presence in the United States a criminal act punishable with jail time, and would authorize individual states and local governments to create their own immigration enforcement laws. This article explores the central facets of various SAFE Act provisions before arguing that the SAFE Act's attrition-through-enforcement approach to immigration is ineffective and runs contrary to the main objectives of immigration reform.
Key Provisions of the SAFE Act
The Safe Act seeks to redefine the federal enforcement landscape by shifting prosecutions of immigration cases from the civil, to the criminal arena. While illegal entry into the United States has already been criminalized, this rule generally only applies if an individual is apprehended at the time of an illegal border crossing. Currently, unlawful presence is a civil, not a criminal violation and is not punishable by incarceration. However, the SAFE Act would change that by making every unauthorized immigrant subject to arrest, fines, and/or six months of jail time. Additionally, subsequent offenders would be classified as felons and subject to two years in prison. These provisions would also apply to legal visa holders who overstay their visas by one day, such as a foreign executive whose flight home is delayed. They would also apply to visa holders who violate the terms of their visa for technical reasons, such as a student who fails to maintain a full course load due to a medical complication.
The SAFE Act also seeks to redefine certain aspects of federalism by resurrecting certain state immigration statutes that have previously been held unconstitutional by the Supreme Court. The most controversial provisions of the SAFE Act are those that give state and local jurisdictions the power to create and enforce immigration law. Under the SAFE act, state and local governments would not only be allowed to enforce federal immigration laws, but they would also be empowered to create their own immigration laws that penalize the same behavior as federal law. Historically, these types of laws, such as Arizona's SB 1070, have been frequently struck down by courts as conflicting with the federal government's exclusive jurisdiction over immigration. Just last year, in Arizona v. U.S., the United States Supreme Court held that states have a limited ability to enact their own immigration laws because immigration is in the sole domain of the federal government. Moreover, states that have attempted to implement their own local immigration statutes have encountered a whole host of problems. For example, when Arizona began implementing SB 1070, there were numerous reports that law enforcement officials engaged in widespread campaign of racial profiling and prolonged arbitrary detention. Most immigration experts agree that the majority the previously mentioned incidents do not reflect malice or ill-will, but are the result of undertrained and inexperienced law enforcement officials. Under the SAFE Act, the federal government would be required to provide training materials to local law enforcement agencies. However, state and local law enforcement agencies would not be required to complete the training which opens the door for potential violations of due process and abuse of discretion. These provisions of the SAFE Act present intriguing constitutional law questions that legislators have failed to adequately address.
Some other controversial provisions of the SAFE Act include permitting the unlimited detention of immigrants who have been ordered removed, but cannot be repatriated. In Zadvydas v. Davis, the United States Supreme Court held this practice to be unconstitutional. Furthermore, the SAFE Act would broaden the range of behaviors that are subject to immigration penalties and would reduce the standard of evidence necessary to find someone inadmissible, removable, or ineligible for a benefit. Some situations would allow removal based on mere suspicion of criminal behavior instead of actual convictions. For example, a reasonable belief that someone may be or may have been a member of a gang that perpetrated a crime would be sufficient to constitute grounds for removal. While only a few of the provisions have been mentioned here, the spirit of the SAFE Act has been properly encapsulated.
The Continuation of Unproven Methods
The SAFE Act is representative of an attrition-through-enforcement approach to unauthorized immigration that is contrary to many of the objectives of immigration reform and employs methods that have proven largely ineffective. The bill is premised on the notion that punitive enforcement measures alone can address the inadequacies of our deeply flawed immigration system. However, the federal government has been pursuing an enforcement-only approach for decades. These methods have yet to yield any concrete results in achieving its objectives and have proven extremely costly.
Contrary to the impression created by proponents of the SAFE Act, federal spending on immigration enforcement has grown exponentially in recent years and is currently at an all-time high. Since the creation of the Department of Homeland Security in 2003, the annual budget of the U.S. Customs and border Protection (CBP) has increased from $5.9 billion to more than $12 billion and the budget of Immigration and Customs Enforcement (ICE) has risen from $3.3 billion to $5.6 billion. The significant rise in the budgets of immigration enforcement agencies has been accompanied by an even more remarkable rise in the number of enforcement personnel. Since 2003, the number of border patrol agents has more than doubled and today, the number of border and interior enforcement personnel totals more than 49,000.
However, this dramatic increase in agency resource allocations and personnel has seemingly failed to bring about any definitive results. Numerous empirical studies suggest that the creation of a sensible, coherent, forward-looking immigration system is incompatible with measures that eliminate the ability to make sensible individualized decisions on immigration cases, expand expensive and arbitrary mandatory detention and deportation, create a burdensome patchwork of potentially conflicting and unconstitutional state and local immigration laws, and criminalize the entire unauthorized population which consists of approximately 12 million individuals. To put that last number into perspective, the current population of our Nation's overcrowded prison system stands at approximately two million inmates. Instead of continuing on the attrition-through-enforcement path, empirical data supports expanding legal immigration, legalizing the unauthorized population, and the smart use of immigration enforcement measures. Therefore, the House Judiciary's endorsement of an outdated philosophy that touts more enforcement, more detention, more penalties, and a more complicated, expensive, and decentralized immigration enforcement system flies in the face of the House leadership's repeated pledge to fix that very system.
|
| Plenary, Let it Be? Revisiting the Constitutionality of Congressional Control Over Immigration Law | 
An esteemed immigration law professor at the American University Washington College of Law begins every semester by having his students sing a parody about Congress' plenary power over immigration to the tune of "Let it Be" by the Beatles. The song effectively grapples with questions regarding the constitutionality of the doctrine and although the exercise comes across as a bit elementary at first, the song serves as an effective reminder that basis of our entire immigration system is primarily built upon an implied congressional power that the Constitution did not explicitly delegate to any of the three branches of government. In honor of Constitution week, this article retraces some of the foundational Supreme Court cases establishing the "plenary power doctrine" in immigration law before describing some of the enumerated Constitutional justifications for granting sole power of immigration to Congress.
Plenary: The Foundation of an Implied Constitutional Power Over Immigration
Outside of Congress' power over naturalization, the United States Constitution fails to provide explicit directions on which branch of government is entitled to oversee the country's immigration policy. Until the latter part of the 19th Century, the Federal government had largely refrained from exerting control over immigration issues. One of the earliest and most significant immigration cases in Supreme Court history is Chae Chan Ping v. United States (1889). In this case, the Court was faced with determining whether an 1882 law, barring all future immigration of Chinese laborers, should exclude a Chinese immigrant residing in the United States who had left in 1887 for what he thought would be a brief visit to China. While the 1882 Chinese Exclusion Act did contain a waiver provision designed to allow previously-admitted Chinese laborers like Chae Chan Ping to leave and return, that provision was discontinued by a new act of Congress in 1888 while he was on his return voyage to the United States. In upholding his exclusion, the Court recognized for the first time an inherent federal power to exclude non-citizens, even though no such power is granted by the Constitution. The Court relied on traditional notions of sovereignty to support their reasoning while utterly failing to address how the Constitution grants those powers to the political branches. More importantly, the Court held that decisions by the legislative department to exclude aliens are conclusive upon the judiciary. The seminal importance of this case in immigration law stems from the Court signaling its unwillingness to second-guess what it considered to be policy-based decisions while giving substantial deference to both the legislative and executive branches in the area of immigration, thus forming the basis of the plenary power doctrine.
Three years later, the Supreme Court rejected the right of an alien to appeal the Executive branch's immigration decision in Nishimura Ekiu v. United States. In that case, Mrs. Ekiu, a citizen of Japan, arrived in the U.S. by boat and claimed that she was to meet up with her husband. For various reasons the immigration officer did not believe Mrs. Ekiu and denied her entry under a federal statute that directed immigration officer to deny admission to anyone likely to become a public charge. Mrs. Ekiu appealed her case to the Supreme Court arguing that complete judicial deference to immigration decisions made by agents of the executive branch amounted to the denial of due process. The Supreme Court disagreed and reaffirmed their previous decision by holding that the judicial branch was not to second-guess the political questions inherent in any immigration decision. In regards to due process, the Court reasoned that the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are sufficient to constitute due process of law.
The following year, the Supreme Court extended the principles of the two aforementioned cases to the issue of deportation in Fong Yue Ting v. United States. Taken together, Chae Chan Ping, Ekiu, and Fong Yue Ting represent the foundational pillars of the political branches' plenary power over immigration. The principles in these cases have since been reiterated by the courts on numerous occasions and while the Supreme Court has sought to place some restraints on the political branches' plenary power over immigration, the holdings in these cases have never been overturned.
Enumerated Justifications for Congressional Power Over Immigration
The Federal government generally only possesses those powers that are enumerated in the Constitution or those that are "necessary and proper" for executing those enumerated powers. While it is undeniable that the text of the Constitution fails to expressly authorize the Federal government to regulate immigration, proponents of political branch control over immigration have advanced many theories in support of their claim. The first and most advanced theory in support of political branch control over immigration is that the Commerce clause gives Congress the power to regulate immigration. Although Article 1, Section 8, Clause 3 of the Constitution does give Congress the explicit power to "regulate commerce with foreign nations," an important question that arises is whether the regulation of immigration falls within the purview of commerce? In the Head Money Cases in 1884, the Supreme Court answered this question in the affirmative by holding that a federal statute regulating immigration was a valid exercise of congressional power to regulate commerce with other nations. While some pundits have argued that immigration fails to constitute commerce per se, the Supreme Court has consistently held that the interstate commerce clause permits Congress to regulate activities "substantially affecting" interstate commerce, even if those effects are indirect.
While the commerce clause argument is relatively strong, other proponents of congressional control over immigration policies have pointed to Article 1, Section 8, Clause 4 of the Constitution which authorizes congress to establish a uniform rule of naturalization. However, naturalization is only one facet of immigration law and the provision fails to address the exclusion and expulsion of foreign immigrants. Nevertheless, Congress and various commentators have argued that the necessary and proper clause allows Congress substantial leeway and deference to implement a uniform rule of naturalization that includes rules pertaining to the exclusion and expulsion of foreign immigrants. In fact, through the passage of Section 316 of the 1952 Immigration and Nationality Act, Congress made lawful admission as a permanent resident a prerequisite of naturalization. This illustrates how Congress has used the Naturalization Clause to further exert its power over the realm of immigration law.
Some commentators have looked to the Migration or Exportation Clause as a potential source of congressional immigration power. However, this clause was only meant to apply to the slave trade and has been universally dismissed as a legitimate justification. The final enumerated Constitutional source that some have looked to is the War Clause which allows Congress to regulate "enemy aliens." Questions surrounding this provision have proliferated since the commencement of the War on Terror through the Authorization for the Use of Military Force Act of 2001. Unfortunately, many of these questions have remained unanswered.
Conclusion
It is important to remember that U.S. immigration policy was not founded on any specific Constitutional provision, but rather the judicially created "plenary power doctrine." Despite the fact that the courts have affirmed the plenary doctrine countless times since the 19th century, there is a growing movement underway to erode political-branch control over immigration in favor of a judge administered system based on the implicit idea that foreigners have a "right" to immigrate. This movement has been spurred on, in large part, by more recent Supreme Court decisions that have chipped away at the Plenary Congressional Power by establishing various due process guarantees and administrative safeguards for immigration proceedings. In cases such as Shaughnessy v. United States ex rel. Mezei, INS v. Chadha, and Zadvydas v. Davis, the Supreme Court has made it abundantly clear that the "plenary power doctrine" is not an all-inclusive Congressional grant of power over immigration. Thus, it is evident that Constitutional interpretation will continue to play an important role in immigration law for the foreseeable future.
|
|
|
