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| Special Immigrant Juvenile Status (SIJS) |  | SIJS is an available form of legal relief, primarily for undocumented children, to obtain a green card. A child is eligible for SIJS if they have been abused, abandoned or neglected by one or both of their parents and that reunification with one or both of their parents is not advisable or viable for the well-being of the child. Children are eligible for SIJS even if they are in removal proceedings.
Read more to find out if you are eligible.
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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.
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Recent Grants & Successes by BOILA
|  Grants by the Board of Immigration Appeals (BIA) and U.S. Court of Appeals for the Fourth Circuit
Mr. B, a citizen of Cameroon, had his case remanded by the Board of Immigration Appeals. BOILA had previously successfully appealed his case before the U.S. Court of Appeals for the Fourth Circuit, arguing that the Immigration Judge failed to view the totality of evidence that Mr. B suffered past persecution on account of his political opinion. Mr. B will now have another chance to present his case before the Immigration Judge in hopes of being granted political asylum.
BOILA congratulates Ms. M, a citizen of Honduras, who was recently granted Cancellation of Removal by the Arlington Immigration Court. Ms. M is the mother of three U.S. citizen children, the oldest of which passed away in a tragic fire in their apartment building. As a result of the fire, Ms. M's youngest daughter is a quadriplegic and suffers from numerous severe medical problems, including severe anoxic brain injury and requires a feeding tube to eat and a ventilator to breathe. After entering the U.S, over 13 years ago, Ms. M now has permanent residency. BOILA wishes her nothing but the best.
Ms. S.G, a native of Cameroon, has now finally been sworn in as a USC. Her application for naturalization was on HOLD for years despite numerous inquiries and infopasses with the USCIS. BOILA filed a successful writ of mandamus with the U.S. District Court for the District of Colombia against the U.S. Attorney General, Secretary of Homeland Security, and USCIS officials. The civil suit compels the officials to perform their duty to adjudicate naturalization applications in a timely manner. Ms. S.G's naturalization application has been pending for over 3 years and BOILA hopes she will soon be able to become a US citizen.
Ms. D, a native of Cameroon, was l also now finally able to have her application for naturalization adjudicated by USCIS. She is now a USC. BOILA filed a successful writ of mandamus with the U.S. District Court for the District of Colombia against the U.S. Attorney General, Secretary of Homeland Security, and USCIS officials, compelling the officials to perform their duty to adjudicate Ms. D's naturalization application. Ms. D's naturalization application has been pending for over year and a half.
Ms. W, a native of Ethiopia will also now finally be able to have her application for naturalization adjudicated by USCIS. She is now a U.S. citizen. BOILA filed a successful writ of mandamus with the U.S. District Court for the District of Colombia against the U.S. Attorney General, Secretary of Homeland Security, and USCIS officials, compelling the officials to perform their duty to adjudicate Ms. W's naturalization application. Ms. W's naturalization application has been pending for roughly 3 reasons without any justifiable cause as argued.
Mr. L, a native of Cameroon, was granted naturalization after BOILA filed a successful Writ of Mandamus with the U.S. District Court for the District of Columbia against the U.S. Attorney General, DHS and other USCIS officials compelling them to adjudicate his naturalization. He underwent a very detailed interview but is now a USCIS.
Mr. A, a native of the Ivory Coast, had his removal proceedings reopened and remanded to the immigration court based on changed country conditions in his country of removal. He has been here since 1995 and was previously denied by the BIA. With BOILA's help, Mr. A. established that because of his activism with the Ivorian Popular Front and the existence of political violence against IPF members in the Ivory Coast, he was entitled to present his eligibility for asylum before the immigration judge.
Grants by USCIS
Ms. K, a citizen of Great Britain came to us 9 days before her status expired. BOILA was able to file a National Interest Waiver and an EB2exceptional ability in writing grants for STEM that was approved along with her adjustment in just 5 months.
Ms. R, a citizen of Moldova, was granted a U visa. Ms. R was a victim of assault and suffered substantial physical and mental abuse at the hands of her husband, who assaulted her by hitting her repeatedly and breaking her finger and forearm. BOILA assisted Ms. R is receiving certification from the State Attorney's office and establishing that she assisted in the criminal prosecution of her husband. She is now able to live lawfully in the U.S. with her US citizen son.
Ms. A, a citizen of Cameroon, received her prima facie eligibility notice for her I-360 petition, filed under the Violence Against Women Act. BOILA assisted Ms. A in presenting evidence that she was a victim of physical abuse and emotional cruelty at the hands of her US citizen husband. BOILA is hopeful that the petition will soon be approved by USCIS and that she will be afforded permanent residency in the U.S.
Mrs. K, a native of Pakistan, who had previously been awarded derivative asylum, had her I-485 application approved and was granted permanent residency.
Mr. C, a native of Cameroon, was granted asylum nunc pro tunc by the Arlington Asylum Office. Mr. C was previously granted derivative asylum in October 2004 through his mother's asylum approval when he was under 21 years old. However, while awaiting legal permanent residency, Mr. C turned 21 and was no longer eligible to adjust his status. Based on the grant of asylum nunc pro tunc, Mr. C will now be able to seek permanent residency.
Ms. N, a native of Cameroon was granted asylum nunc pro tunc by the Arlington Asylum Office. She was previously granted derivative asylum through her mother's asylum approval when she was under 21 years old. However, while awaiting legal permanent residency, she turned 21 and was no longer eligible to adjust her status. Based on the grant of asylum nunc pro tunc, she will now be able to seek permanent residency.
Ms. C.A., a native of Guatemala and U.S. permanent resident, received the approval of her I-130 petition, which she filed on behalf of her 2 year old daughter and husband who had to return home as they were unable to obtain work and live here. They will now all be able to come back to the US.
Mr. T, a native of Cameroon, received the approval of his I-130 petition, filed on his behalf by his U.S. citizen wife. Mr. T's wife first came to BOILA when her husband was arrested by ICE and BOILA was able to help in getting Mr. T released from custody. BOILA will now be able to pursue Mr. T's adjustment of status before the Baltimore Immigration Court.
Mr. C, a native of Nigeria, received the approval of his I-130 petition, filed on his behalf by his US citizen wife. BOILA is now working with Mr. C to reopen his prior order of deportation in hopes that he will be able to remain in the U.S. with his family.
Mr. B, a native of Togo, received permanent residency through the approval of his I-130 and I-485 applications, filed on his behalf by his U.S. citizen wife. BOILA wishes the couple the best.
Mr. K, a native of Cameroon, received the approval of his I-130 petition, filed on his behalf by his US citizen wife. While represented by prior counsel, Mr. K's asylum application was denied and he was ordered deported. He was almost shipped out and put on a plane but BOILA is hopeful that we may be able to assist Mr. K is getting his prior order of removal reopened based on the approval of the I-130 petition.
Mr. T, a native of Cameroon, received permanent residency in the U.S. through his prior grant of asylum.
Mr. H, from Nigeria was granted removal of his conditional status and we are very happy for him and his family.
Ms. E, a native of Cameroon, received an extension of her conditional residence pending USCIS' adjudication of her I-751 petition. BOILA is hopeful that her I-751 will be approved and the conditions of her residence will be removed.
BOILA is pleased to have had the opportunity to help them in their immigration matters.
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| The Government Shutdown and Immigration | 
The current U.S. government shutdown is having adverse impacts on the immigration process for both immigrants in the U.S. and U.S. citizens. A brief discussion of how the immigration process is being impacted is detailed below.
Due to the fact that the fact that the Executive Office of Immigration Review (EOIR) is part of the Department of Justice and its annual budget is dependent on federal funds, EOIR is closed during the shutdown. This means that the majority of immigration courts across the country are closed. Those that remain open, or partially open, are only hearing detained cases. For example, the Arlington Immigration Court, where a majority of DC and Virginia immigration cases are heard, is partially closed. In the Arlington Court, only detained cases are being heard.
Immigration courts already have an extreme backlog, often times scheduling individual hearings for one to two years in the future. The current shutdown is further delaying thousands of cases that were scheduled to be heard during this time period. There has yet to be a discussion on how these cases will be rescheduled and if they will get priority in hearing dates. Many immigration cases, especially asylum cases, are time sensitive and require that asylum applications are filed within a one-year timeline. The current closure of immigration courts can have a potentially devastating effect on applicant's ability to file within the one year timeframe.
The United States Citizen and Immigration Services (USCIS) is part of the Department of Homeland Security and is one of the only agencies that remains almost entirely staffed and open during the shutdown. USCIS is able to remain open because it derives 95% of its annual budget from fees that applicants pay with their petitions. 97% of USCIS employees will remain working during the shutdown and should be able to keep pace with the volume of cases that are filed. One potential shutdown complication is the fact that USCIS often depends on other federal agencies, such as Immigration, Customs and Enforcement (ICE) and Customs and Border Protection and may not be able to collaborate with them during this period, thus causing delays in some cases.
E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, is a federally funded component of USCIS that is unavailable during the shutdown. Due to the fact that E-Verify is unavailable, employers are unable to enroll any company in E-Verify, verify employment eligibility, view or take action on any case, edit user information, run reports, view 'essential records', or terminate an account. In addition, employees are unable to resolve Tentative Nonconfirmations and employers may not take any adverse actions against an employee because of an E-Verify interim case status. The lack of a functioning E-Verify seriously impacts the operations and hiring processes for a substantial number of businesses throughout the U.S.
The shutdown is causing a serious level of confusion throughout the general population, specifically regarding immigration matters. Due to the fact that the courts are mainly closed but that USCIS is still functioning, many individuals are unsure how to proceed. Individuals are unsure if they have to go to their court hearings, biometrics appointments, naturalization interviews etc. and many are concerned about meeting specific deadlines. Those without legal counsel are relying on personal research and word of mouth for advice, which is often unreliable. A missed interview or biometrics appointment can have deleterious effects on one's immigration process.
Finally, the government shutdown is seriously halting the discussion on immigration reform. Substantial progress had been made in the Spring and Summer in pressuring Congress to discuss and pass legislation on comprehensive immigration reform. Unfortunately, the current situation is taking attention and pressure away from comprehensive immigration reform. A loss in momentum can seriously jeopardize the movement to achieve comprehensive reform.
Overall, the government shutdown has various negative impacts on the immigration system, particularly for those that are in non-detained court proceedings. Cancellation of court hearings during the shutdown can result in delays of months for individuals to be rescheduled for another court date. October is when numbers are issued for visas. Cancellation cases that have been waiting to be granted from prior hearings may now have to wait an additional year if the visa number runs out. Additionally, some cases being processed by USCIS may be delayed due to lack of USCIS's ability to collaborate with other federal agencies. E-Verify is shut down which will negatively impact the operations of U.S. businesses. A general state of confusion and lack of knowledge is impacting many individuals who are unsure how to proceed during this time and may adversely affect their case. Finally, the current shutdown is negatively impacting the discussion and movement for comprehensive immigration reform. A prolonged shutdown will only aggravate the situation. |
| DC Celebrates Hispanic Heritage Month |  By Samantha Howland
*Legal Assistant at BOILA PC
From September 15, 2013 to October 15, 2013, the District of Colombia, along with the rest of the United States celebrates Hispanic Heritage Month. This month is a time to celebrate the diverse cultures, traditions and heritages of Hispanics and Latinos in the United States. It is a time to reflect upon and enjoy diverse cultural practices, foods, languages, customs, art, literature, music etc. that originated in Mexico, Central America, South America and the Caribbean and that contribute to the richness and diversity of the United States.
Hispanic Heritage Month was first observed in 1968 as a week long celebration. In 1988 the observation period was expanded from one week to 30 days under President Reagan. The period of observation was set mid-September to mid-October to incorporate a variety of Latin America countries Independence Days. Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua all celebrate their Independence Days on September 15, Mexico's Independence Day is September 16 and Chile's Independence Day is September 18. Columbus Day or Dia de la Raza falls within this time period as well.
The District of Colombia's city government's Office on Latino Affairs states, "Hispanic Heritage Month represents a time when our office recognizes the valuable contributions of Latino's to our country's history, while advancing new trends in the District of Columbia." D.C. planned a jam packed schedule for Hispanic Heritage Month with a variety of events such as a Panamanian Folkloric Dance Group performance by the GRUFOLPAWA (October 4), the 8th Annual Hispanic LGBTQ Heritage Celebration (September 27) and a Hispanic Heritage Month Award Ceremony (October 16). For a complete listing of activities and events sponsored by the DC government Office on Latino Affairs please click here.
Prior to the government shutdown, the Smithsonians were also participating in Hispanic Heritage Month by having different events at various museums. On September 14 at the Museum of the American Indian there was a celebration to start Hispanic Heritage Month with the exhibition of "Cerámica de los Ancestros: Central America's Past Revealed" A variety of lectures, performances and family activities were held or scheduled to take place that celebrated Hispanic heritage. For example, on September 15 at the Smithsonian American Art Museum there was a demonstration by the Eileen Torres Dancers, salsa music and a salsa scavenger hunt for children. The events at the Smithsonians often featured Hispanic community, business and government leaders and were bilingual to celebrate successes in the Hispanic community and the Spanish language.
In addition, the Congressional Hispanic Caucus Institute held its 36th Annual Gala Awards on October 2 and hosted public policy conferences on September 30 and October 1. These conferences addressed public policy issues impacting Latino communities and the entire nation.
Hispanic Heritage Month is an enriching time for Latinos in the US to celebrate their culture and heritage and to share this with non-Latinos. It is an opportunity for all people to learn and share and grow as a community.
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Cold as ICE: Government Detainers
Failing to Target Serious Criminals
|  By: James Sellars
JD/MA Candidate, American University
In a 2010 agency-wide memo describing the Obama Administration's approach to immigration enforcement, former ICE director John Morton stated that "the removal of aliens who pose a danger to national security or a risk to public safety shall be ICE's highest immigration enforcement priority." Despite the Obama administration's consistent rhetoric in support of the aforementioned position, Immigration and Customs Enforcement (ICE) has repeatedly contradicted this assertion through the implementation of its detainer program. A recently published report by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University provides an in-depth analysis of ICE's detainer program and presents an entirely different reality from the one that the government has attempted to paint in its official statements. This article will briefly explore the components of an ICE detainer before discussing TRAC's recent in-depth analysis of more than 350,000 ICE detainers.
ICE Detainers and their Controversial Nature
An immigration detainer, or "immigration hold," is one of many tools used by ICE officials to identify potentially deportable individuals who are housed in jails and prisons across the nation. A detainer is essentially an official communication by ICE, requesting various local law enforcement agencies to notify ICE prior to releasing an individual from custody so that ICE can arrange an exchange of custody of said individual. Additionally, a detainer does not initiate deportation proceedings and is not entirely indicative of whether or not the detainee will be deported. The issuance and execution of a detainer merely means that an investigation has been initiated to determine whether that person is subject to removal from the United States.
One of the biggest misconceptions about detainers is that local law enforcement officials are bound to abide by the ICE's request for custody. However, there is absolutely no legal obligation for state and local law enforcement agencies to honor detainers issued by ICE since they are considered a request and not a command. Indeed, an increasing number of local jurisdictions have begun to ignore ICE detainers when an individual is taken into custody on a minor charge, or when they pose little or no risk to public safety. Detaining individuals at ICE's request is a relatively expensive endeavor for local law enforcement agencies to undertake. This stems from the fact that ICE does not reimburse local agencies for detaining an individual. Moreover, ICE does not begin subsuming costs until the individual is actually in ICE custody. A 2012 study by the ACLU found that Los Angeles County law enforcement agencies spend over $26 million annually on ICE detainers. Furthermore, local law enforcement expenses deriving from ICE detainers can accrue even after the individual has been transferred into ICE custody. In 2008, the city of New York was forced to pay $145,000 in a settlement agreement with a man who was wrongly held on an ICE detainer for 140 days. While economic considerations are extremely relevant to local law enforcement agencies given the modern commercial climate, there are other considerations to take into account when contemplating abiding by ICE detainers, including the individual rights of the person being detained.
TRAC Report
In a recent methodologically sound report, TRAC found that no more than 14 percent of detainers issued by ICE during the 2012 and 2013 fiscal years met the agency's stated goal of targeting individuals who pose a serious threat to public safety or national security. In fact, almost half of the 347,691 individuals who were subjected to ICE detainers had no record of prior criminal convictions and many had not even been cited for a traffic violation. Even when a detained individual did have a prior conviction, the TRAC report found that most of these convictions provide no indication that the individual poses a potential risk to public safety. Indeed, driving under the influence was the most frequently cited serious offense. The second most cited serious offenses were simple traffic offenses, followed by simple possession of marijuana and illegal entry itself. At least 50,000 of those detained at behest of an ICE detainer fell into one of those categories.
Given the fact that many of the individuals included in the TRAC report were already serving time in federal and state prisons at the time the detainer was placed, it was quite shocking to learn of the relatively low percentage of individuals who had no prior criminal convictions. When the detainers were classified by the seriousness of the "RC Threat Level," the TRAC report showed that in nearly half of all cases, the threat level was NA, meaning that the individual posed no threat since he or she had no criminal conviction. Additionally, the TRAC report found that only 23 percent of the detainers fell into a Level 1 classification, which is the most serious threat. According to ICE guidelines, a Level 1 classification is restricted to non-citizens "convicted of 'aggravated felonies,' as defined in Section 101(a)(43) of the Immigration and Nationality Act, or two or more crimes punishable by more than one year, commonly referred to as felonies." The TRAC report explains that this figure is larger than the 14 percent convicted of serious crimes since ICE also includes anyone convicted of two or more felonies in its level 1 category, whatever their nature.
TRAC's report was also able to uncover other troubling statistics regarding ICE's detainer program. According to the report, when ICE's threat levels based on convictions are tabulated and compared against the most serious convictions, it turns out that minor violations can sometimes lead to the placement of an individual in the highest threat level category. This information leads one to wonder whether ICE is targeting the wrong individuals because the enforcement information it receives is flawed, or whether the formulas used by ICE are assigning individuals incorrect threat levels? A list of the most common serious offenses that led ICE to place an individual in the highest threat category demonstrates these anomalies. The second most cited serious offense on the list is driving while intoxicated, and the sixth is simple possession of marijuana. Moreover, simple traffic violations were also relatively high on the list. In each of these situations, the listed offense is the most serious conviction the individual had received at the time of the issuance of the detainer. While reasonable minds may differ on like subjects, I think that most people could reasonably conclude that a list of the most serious offenses should not entail simple possession of marijuana and petty traffic offenses.
Conclusion
As the old maxim says, actions speak louder than words. If that is the case, then ICE's public remarks regarding the direction of the detainer program are being drowned out by the actual implementation of said program. Granted, Immigration and Customs Enforcement faces an admittedly difficult challenge of generating objective guidelines predicated on policy announcements of high level bureaucrats who are often disconnected from the realities on the ground. It is easy to concede that no standardized objective formula can fully encapsulate what constitutes a serious threat to public safety and what does not. However, it is important to remember that Congress has bestowed ICE with a substantial amount of financial and logistical capabilities. While it is reasonable to expect subtle variations in enforcement outcomes, the recent TRAC report sufficiently shows that ICE is failing miserably in their execution of the detainer program. The United States can ill-afford to allow such a powerful and important agency to shrug its shoulders at developing and implementing proximate guidelines regarding the operation of frontline troops. This Nation has continuously proven its dedication to upholding the rule of law and has sought to be as transparent as possible in the execution of those laws. Therefore, it is perfectly reasonable to conclude that ICE has an inherent obligation to develop a transparent, comprehensive detainer regime that comports with fundamental notions of fairness and the rule of law.
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| California Gov. Brown Signs Immigration Bills |  "I'm not waiting.""As advocates rally across the nation today to urge Congress to adopt comprehensive immigration reform, Governor Edmund G. Brown Jr. signed legislation to enhance school, workplace and civil protections for California's hardworking immigrants. "While Washington waffles on immigration, California's forging ahead," said Governor Brown. "I'm not waiting." Immigration reform advocates are rallying today in cities across the United States to call on the U.S. House of Representatives to give legal status to undocumented U.S. residents. While gridlock continues in Washington, California continues to move forward on immigration reform. On Thursday, Governor Brown signed AB 60, extending the legal right to drive on the state's roadways to millions of Californians and in October 2011, Governor Brown signed AB 131, the California Dream Act. The Governor signed the following bills today: * AB 4 by Assemblymember Tom Ammiano (D-San Francisco) - Prohibits a law enforcement official from detaining an individual on the basis of a United States Immigration and Customs Enforcement (ICE) hold after that individual becomes eligible for release from custody, unless specified conditions are met. * AB 35 by Assemblymember Roger Hernández (D-West Covina) - Provides that immigration consultants, attorneys, notaries public, and organizations accredited by the United States Board of Immigration Appeals are the only individuals authorized to charge a fee for providing services associated with filing an application under the U.S. Department of Homeland Security's deferred action program. * AB 524 by Assemblymember Kevin Mullin (D-South San Francisco) - Provides that a threat to report the immigration status or suspected immigration status of an individual or the individual's family may induce fear sufficient to constitute extortion. * AB 1024 by Assemblymember Lorena Gonzalez (D-San Diego) - Allows applicants, who are not lawfully present in the United States, to be admitted as an attorney at law. * AB 1159 by Assemblymember Lorena Gonzalez (D-San Diego) - Imposes various restrictions and obligations on persons who offer services related to comprehensive immigration reform. * SB 141 by Senator Lou Correa (D-Santa Ana) - Requires that the California Community Colleges and the California State University, and requests that the University of California, exempt a United States citizen who resides in a foreign country, and is in their first year as a matriculated student, from nonresident tuition if the student demonstrates financial need, has a parent or guardian who was deported or voluntarily departed from the U. S., lived in California immediately before moving abroad, and attended a secondary school in California for at least three years. * SB 150 by Senator Ricardo Lara (D-Bell Gardens) - Authorizes a community college district to exempt pupils attending community colleges as a special part-time student from paying nonresident tuition. * SB 666 by Senator Darrell Steinberg (D-Sacramento) - Provides for a suspension or revocation of an employer's business license for retaliation against employees and others on the basis of citizenship and immigration status, and establishes a civil penalty up to $10,000 per violation. ------------------------------------------------------------------------
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Newest Information on Immigration
Reform Bill (HR15) |
H.R. 15
October 24, 2013
Immigration reform is one of the most prominent discussions throughout the United States. Advocates are calling for a comprehensive plan that lays out a viable pathway towards citizenship for the roughly 11 million undocumented individuals that currently reside in the United States. One of the central issues for policy makers and conservatives has been the incorporation of stricter border control programs to stem the inflow of undocumented migrants and illicit goods such as drugs and arms. Given the competing goals of those in favor of immigration reform: citizenship and tighter border control, the proposed reform bills have made permanent residency contingent upon increased border security efforts and curbing illegal entry on the U.S./Mexico border.
On June 27, 2013 the Senate passed S.744 (Border Security, Economic Opportunity, and Immigration Modernization Act) a bipartisan bill addressing various components of immigration reform, including a pathway to legal status, changes and modifications to the current immigration system and incredibly strict changes to the U.S./Mexico border. Included in the Senate's bill was the harsh Corker-Hoeven border security amendment which mandated that before Registered Provisional Immigrants (RPIs) could receive a green card (legal permanent resident status) the Department of Homeland Security had to certify all of the following five conditions:
1. An increase of 20,000 Border Patrol Agents on the border;
2. At least 700 miles of fencing on the border;
3. The implementation of a mandatory E-Verity system
4. The implementation of an electronic exit/entry system at all international air and sea ports of entry
5. That a comprehensive Southern Border Security Strategy has been submitted to Congress.
This amendment has been criticized and critiqued by Democrats, Republicans, immigration advocates, conservatives and liberals for a variety of reasons. The most common complaint is the fact this is the indiscriminant "militarization" of the border. Other critiques from varying sides have included: that it lacks tangible markers and indicators of increased border security and that it is a frivolous waste of money, amongst others.
In a good faith effort to advance immigration reform, Democrats in the House of Representatives proposed a reform bill on October 2, 2013, H.R. 15. This bill is based on the Senate's S.744 but makes a substantial change by removing the Corker-Hoeven amendment and replacing it with the McCaul Bill (H.R. 1417.) For a complete guide on H.R. 15, please see The Immigration Policy Center's "A Guide to H.R. 15". The McCaul takes a more measured and pragmatic approach to measuring border security progress and effectively negates the contingency factor of success and implementation of the border security measures to the pathway to status for undocumented individuals.
A brief explanation and analysis of the main components of the proposed H.R. 15 will be discussed below.
Title I: Border Security
- The goal is to gain situational awareness and operational control of the border. Specifically, that 90% of illegal border crossings are deterred and that there is a substantial decrease in the trafficking of drugs and contraband Situational awareness is defined as knowledge and understanding of illicit cross-border activity.
- Once the plan has been submitted, the Department of Homeland Security has two years to certify that these two goals have been achieved in high-traffic areas and five years to certify that they have been achieved on the entire Southwest border.
- If either of these goals is not achieved, the Southern Border Security Commission will be formed to provide recommendations for how to achieve these goals.
- The bill increases border security investments with a proposed $3billion for the Border Security Results Strategy, $2 billion to carry out the Commission's recommendations, $1.5 billion for fencing, infrastructure and personal, amongst other expenses.
- In order to provide oversight, protection and monitoring a Department of Homeland Security Border Oversight Task Force will be created with members from the northern and southern border region.
- This proposal has more measureable ways to assess change in flows of illegal entries on the border. It offers several contingency plans if a proposed plan is shown ineffective or difficult to implement. There is significant oversight and monitoring which can help to ensure successful implementation.
TITLE II: Immigrant Visas
- To address the issue of a pathway to legal status for undocumented individuals, the bill creates a RPI status for individuals who have been in the U.S. since December 31, 2011 and have not been convicted of a felony of 3 or more misdemeanors. Even if an individual receives RPI status they are ineligible for federal means-tested public benefits.
- There will be a one-year delay time between when the bill becomes law and the implementation of the RPI program.
- The RPI status is valid for 6 years with the possibility of a 6 year renewal. To receive a green card an individual will have to have been in RPI status for 10 years, have paid all current and back taxes, possess English proficiency, are employed, have demonstrable financial resources, pass a background check and pay a penalty fee. Those who obtain RPI status will have to wait at least 13 years to obtain citizenship.
- For eligible DREAMers (those who received approved DACA petitions) will only have to have 5 years of RPI status to be eligible for a green card and then can immediately apply for citizenship after receiving their green card.
- A 'blue card' will be created for eligible undocumented agricultural workers. They must meet the same admissibility requirements as applicants for RPI and have worked 575 hours or 100 work days of agricultural work during a two-year period. They may apply for a green card after 5 years and have continued to work in the agricultural field and may apply for citizenship after 5 years of having their green card.
- A merit-based point system with two tiers will be created that allows foreign nationals to obtain a green card based on a points system for their skills, employment, family ties, age, nationality, civic involvement, English proficiency and education. There would be between 120,000 and 250,000 visas allocated each year based on a formula looking at visas requested the previous year and the unemployment rate. The first tier is for "skilled immigrants" and the second is for "less-skilled immigrants". The goal of the merit-based point system is to clear the tremendous backlog in the current immigrant visa system.
- The Office of Citizenship and New Americans, the Task Force on New Americans and the United States Citizenship Foundation will be created to help immigrants with integration into the larger U.S. society.
- Other changes are: The Diversity Visa (DV) and the immigrant visa categories for siblings and adult married children of US citizens will be eliminated. A W visa agricultural worker program will also be created to replace the H-2A agricultural worker program. There will no longer be country limits for employment based immigration visas, aiding applicants from countries like China, India and Mexico.
- Title II greatly impacts the current immigration system in favorable ways while simultaneously providing a viable way for undocumented individuals to achieve legal status. Eliminating country quotas will allow highly skilled workers from any country to contribute to U.S. based businesses. A reduction in the backlog will create a more equitable system in which families can be reunited and obtain the appropriate status in a timely fashion.
TITLE III: Interior Enforcement
- E-Verify will be expanded and made mandatory for all employers, making it extremely difficult for anyone to work 'illegally' in the U.S. Employers who do not comply with these changes can receive fines up to $25,000 and two years in prison for repeat offenders.
- The asylum system has been changed by eliminating the mandatory one-year bar in filing an asylum claim, lessens the barriers to family reunification and may designate persecuted groups with common characteristics in order to increase efficiency.
- There are more protections against human smuggling and trafficking, forcing employers who recruit aboard to register with the Secretary of Labor, disclose the conditions of the visa, work conditions and can no longer charge a recruitment fee. The number of U visas will be increased and a pilot program will be launched to prevent child trafficking.
- Certain immigrants such as unaccompanied child migrants and those with mental disabilities will be required to have a lawyer assigned to them. All individuals in court proceedings will have access to evidence in the government's files.
- Gang participation and membership will render an immigrant inadmissible or deportable. Criminal penalties for common immigration related errors are increased such as the use of fraudulent documents.
- Overall, these are also welcomed improvement and changes. A greater responsibility will be placed on employers to hire legal workers and there will be more concentrated efforts to protect the rights and well-being of migrants and to ensure that the spread of violent criminal gangs is curtailed.
TITLE IV: Reforms to Nonimmigrant Visa Programs
- A variety of new nonimmigrant visas are created and existed visas are improved. The H-1B cap will increase as well as the prevailing wage requirements for H-1B workers. There will be a requirement for U.S. employers to make more efforts to higher U.S. workers. A W nonimmigrant visa will be created for non-agricultural workers such as janitors. A new investor visa program will be created with the intention of attracting economic investment in the U.S. and stimulate job creation. There will be changes to the current F-1 student visa allowing students to enter with the intention of staying permanently. There will be modifications to the H-2B program.
- These changes will positively impact the business community in the U.S. A greater availability of H-1B visas will enable more skilled workers to enter the U.S. Additionally, employers will be required to do a more thorough assessment of the availability of U.S. workers, hopefully giving more jobs to U.S. workers.
The Senate and House of Representatives appear to be in accordance with many of the issues associated with immigration reform. Border security remains one of the most contentious factors and a solution needs to be reached that stops at militarizing the border since there is no active war but does implement effective and durable solutions to protect the U.S. border.
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DHS Softens the Blow of the False Claims to Citizenship Bar
|  With the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress introduced a permanent bar to visas, lawful permanent resident status, and naturalization for all noncitizens who make false claims to U.S. citizenship for the purposes of receiving immigration benefits. In the years since its enactment, the academic and legal communities have argued vehemently over the application and consequences of this new immigration bar. One of the more troubling consequences of this new ground of inadmissibility is the effect that it has on noncitizen children who have been led to believe that they are genuine U.S. citizens. Indeed, the immigration community has recently witnessed a drastic proliferation of naturalization and visa denials stemming from the fact that 17 and 18 year old LPR's were often registered and allowed to vote in the previous Presidential election.
Until recently, the only exception to the bar for false claims to citizenship was reserved for noncitizen children of U.S. citizens who permanently resided in the United States prior to reaching the age of 16. Additionally, in order to be eligible for the exception, the noncitizen had to reasonably believe that they were in fact a U.S. citizen when they made the false claim to citizenship. Unfortunately for noncitizens and practitioners alike, this exception was quite narrow, and it failed to cover noncitizen children whose parents were not citizens. Noncitizen children with only one U.S. citizen parent were also precluded from claiming the exception. Moreover, U.S. consular and DHS officers frequently misinterpreted the "reasonably believed" standard. Instead, many officers denied immigration benefits on the grounds that the individual "should have known" that the claim made on their behalf was false, often ignoring the age factor entirely. In effect, the law has been applied to deny lawful permanent residence and other immigration benefits to noncitizen children whose parents asserted a fraudulent claim to U.S. citizenship on their behalf.
Fortunately, the previously mentioned inequities, and indeed injustice, of the earlier interpretations have now been partially alleviated by new DHS agency guidelines. Under the recently clarified DHS agency guidance, only a "knowingly" false claim can support a finding of inadmissibility. This new exception allows all noncitizens a chance to rebut the evidence against them. Additionally, the guidance also provides for a separate, affirmative defense to the false claim to citizenship bar. This new exception pertains to minor noncitizens and creates a more relaxed standard for overcoming a claim to false citizenship. It states that at the time the false claim is made, if the noncitizen child can show that they "lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship," then they are still eligible to apply for and receive immigration benefits. However, the noncitizen still bears the burden of proof and must show "clearly and beyond doubt" that he or she did not know the claim was false at the time that it was made.
While this interpretation is now considered official government policy, DHS has yet to amend its Field Adjudicator's Manual. Additionally, the Department of State has failed to include this new rule of interpretation in its Foreign Affairs Manual. The slow rate of change is extremely significant given that these two manuals are used extensively by agency officials to interpret specific statutory provisions. However, both agencies have reassured the Senate that they plan to do so and have, in the interim, provided various guidance memorandums to field officers. As a welcomed additional step, both agencies have begun coordinating their efforts to harmonize the new rule and to apply the rule retroactively.
Hopefully, both agencies will continue to coordinate their efforts quickly and consistently so that noncitizens who have been barred from seeking immigration benefits in the past may now seek redress under this more logical and consistent standard. While this new policy shift is certainly welcome, it is important to note that the new "clearly and beyond doubt" standard may still leave considerable room for overly narrow and arbitrary interpretations by individual officers. For this reason, a thorough and careful review of noncitizen's complete immigration history remains the best strategy for adjudicating false claims to citizenship cases. |
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