What's New in the World of Immigration?

07/24/2014 - AILA Press Release: Severe Due Process Violations at Children's Detention Center in New Mexico

On Tuesday, representatives from the American Immigration Lawyers Association (AILA) along with other immigration advocacy organizations visited the Artesia detention facility in New Mexico housing 400 Central American women and children. AILA observed such severe due process violations at the facility that AILA is now calling for the suspension of all deportations from there until fundamental improvements can be made.

"The lives of children and families are at risk. I was shocked to hear of immigrant families -- including mothers with young children, some still nursing, being sent right back into the danger from which they fled with no meaningful chance to contact a lawyer," said Karen Lucas, AILA Legislative Associate, who was on the site visit. "A woman who speaks no English and has no knowledge of the American legal system can't possibly make a successful asylum claim with no lawyer and no time even to get her bearings. This is truly heartbreaking and a travesty of justice that families are in effect being denied access to asylum and other protection."

Access to counsel at Artesia consists of little more than DHS handing out a single slip of paper with three names, as if these few service providers can represent hundreds of people. No thought has been given to how to provide access to counsel, even though planeloads of people already have been removed. Hundreds of AILA members stand ready to provide pro bono legal assistance. However, there is no effective way as of yet to match them with those who want representation but don't know how or where to ask.

"Women are being asked to share intimate details about past persecution and violence right in front of their children because DHS has not created a safe and separate interview space," said Lucas. "Years ago DHS learned a hard lesson that detention of families is unacceptable. It was sued for bad conditions and abuses at a Texas facility that ultimately was forced to shut down. It should not be going down this path again, and absolutely should not escalate family detention to the level of 6350 more beds that the president is requesting of Congress."

"This has to stop," said Crystal Williams, AILA's Executive Director. "We recognize that the government stood up this facility quickly, but it cannot deport people from it until due process has been provided. And Artesia is just not prepared for that. AILA calls upon the Administration and the Department of Homeland Security (DHS) to suspend these unconscionable and blanket deportation practices until they can ensure a fair and safe process."

More than 57,000 unaccompanied children and tens of thousands more Central Americans traveling as families have crossed the border since October with most fleeing from conditions of extreme violence and poverty. The Artesia Center was opened in barracks of the Federal Law Enforcement Training Center. It now holds about 400 people but eventually will hold about 700 women and children.

Link to the press release here

06/25/2014 - Want More Information on the Child Migrant Humanitarian Crisis? Hear it from the people who actually know what they are talking about!

Click here to watch the most informative video interviews I have seen on the child migrant issue (especially Segment 2).

Special thanks to Heather Axford of Central American Legal Assistance, Steven Choi of the New York Immigration Coalition, Lenni Benson of Safe Passage Project with New York Law School and Representative Hakeem Jeffries, who represents parts of Brooklyn and is putting forth legislation to respond to this growing crisis at the border.

06/20/2014 - AILA Press Release: Increasing Detention Won’t Solve Humanitarian Crisis

Leslie A. Holman, President of the American Immigration Lawyers Association (AILA) responded to the Obama Administration's announcement today that the Department of Homeland Security (DHS) plans to open additional detention facilities for families along with other steps intended to address the humanitarian crisis at our southern border with the following statement:

"We need to address the factors pushing children and families to make the incredibly dangerous journey northward. The current humanitarian crisis will only be solved when those factors are lessened, when gang violence is not an overriding fear, and when abuse and trafficking are not ever-present.

"However, this humanitarian crisis is not going to be solved by increasing the detention of families. Frankly, I'm surprised at this because I believe that our country's values center on protecting families, and these particular families are so very vulnerable. They deserve careful treatment because of their vulnerabilities and our nation's strong humanitarian and asylum principles.

"Putting families in detention is something that has been tried and just doesn't work. A few years ago, Immigration and Customs Enforcement shut down the T. Don Hutto family detention facility in Texas due to the harshness of conditions and abuses. These are families that include the young children we're talking about, who have come seeking safety. Putting them in a position that could lead to abuse is abhorrent to me.

"With this crisis, I can understand the desire to respond quickly and we should. But that shouldn't mean we rush decisions and try to remove people without due process. Already 70 percent of removals take place without ever coming before an immigration judge. I hope the U.S. will not further escalate the use of expedited removal that severely curtails the due process and fairness that are hallmarks of the American legal system. DHS has said they are going to send more judges which is a very good thing, but the immigration court system is still severely underfunded.

"Finally, why would we spend vast sums on detaining families when alternatives to detention are effective, far more humane, and cost far less to implement? Use of alternatives to detention that maintain legal custody such as electronic monitoring and intensive supervision should be greatly expanded instead of institutional detention. Offering a chance for bond and release should be the priority except in rare cases when these options are not suitable. Alternatives to detention would help DHS maintain its humanitarian commitment to protect families."

06/09/2014 - Supreme Court Tells Many 'Aged Out' Immigrants Waiting for Visas to Start Over

A divided Supreme Court sided with the Obama administration on Monday in a ruling that will effectively mean many "aged out" immigrants will have to wait several more years to obtain a visa. In other words, if a parent applies for a visa for their family, but one of their children turns 21 before they reach the front of the line (the wait can take years), that "aged out" child will probably have to start his or her wait all over again as an adult.

As the Associated Press explains, the case centered around the story of Rosalina Cuellar de Osorio, who applied for a visa with her then-13-year-old kid. When de Osorio finally got an available visa, her son had already turned 21, meaning that he could no longer go along for the ride on his mother's application. He was put at the back of the visa waiting list, and waited years before he was finally granted one. The Supreme Court decision reverses one from the 9th U.S. Circuit Court of Appeals in de Osorio's favor.

In her opinion for the court, Justice Elena Kagan determined that the court had to defer to the interpretation of the law by the Board of Immigration Appeals. That board only grants an exception for an "aged-out" child on a family visa application if, in Kagan's words, "those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent." That only applies to a small portion of "aged out" applicants.

This case is a bit confusing (and Kagan's decision appropriately complex) but here are the basics: there is, in fact, a law designed to protect immigrants from aging out of their own visa eligibility — the Child Status Protection Act — but Kagan's opinion finds that the law plausibly "halts the flow of time" for only some categories of visa applications. Under the formula used for those the BIA excludes from that protection, Kagan writes that time spent waiting for a visa to become available counts against the growing applicant: "Every day the alien stands in that line is a day he grows older, under the immigration laws no less than in life." There's a provision in the law that could require the government to "automatically convert" those petitions into ones that are more age appropriate, but the BIA has decided that this is not necessarily the case for most "aged out" applicants. Although the Obama administration admits that the law's application is ambiguous, it argued before the court that the BIA's interpretation was reasonable. Kagan agreed:

We might call the provision Janus-faced. Its first half looks in one direction, toward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family preference petition. But as the BIA recognized, and we will further explain, the section’s second half looks another way, to- ward a remedy that can apply to only a subset of those beneficiaries—and one not including the respondents’ offspring. The two faces of the statute do not easily cohere with each other: Read either most naturally, and the other appears to mean not what it says. That internal tension makes possible alternative reasonable constructions, bringing into correspondence in one way or another the section’s different parts. And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.

The 5-to-4 split on this case had kind of an unusual breakdown: Justices Kennedy and Ginsburg concurred with Kagan's opinion, and Chief Justice Roberts wrote a separate opinion agreeing that the 9th Circuit's decision should be reversed, but with a different reasoning. Scalia agreed with Roberts, making a majority. Justice Sotomayor wrote the dissent, joined by Justices Breyer and Thomas. Justice Alito wrote a separate dissent.

See full article here.

04/10/2014 - USCIS Reaches FY 2015 H-1B Cap

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced on April 7 that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All advanced degree petitions not selected then became part of the random selection process for the 65,000 limit. On March 25, USCIS announced that they would begin premium processing for H-1B cap cases no later than April 28. For more information on premium processing for FY 2015 cap-subject petitions, see the related USCIS Alert.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

- Extend the amount of time a current H-1B worker may remain in the United States;

- Change the terms of employment for current H-1B workers;

- Allow current H-1B workers to change employers; and

- Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.