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  1. Circuit Courts and State Courts are Split Regarding Padilla v. Kentucky

    The U.S. Supreme Court case Padilla v. Kentucky (2010) was an important ruling for many aliens facing deportation. In that case, the U.S. Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation. The problem with the ruling is that the U.S. Supreme Court failed to clarify whether this decision could apply retroactively with regards to direct and collateral appeals. The main concern is whether the decision announced a new constitutional rule and should not be applied retroactively, unless an exception applies, or whether it is not a new constitutional rule and could therefore be applied retroactively. This distinction has been critical for many Circuits in its decisions on whether to apply Padilla to other cases in their jurisdictions.
    Recently, the Seventh Circuit held that Padilla does not apply retroactively. The Court concluded that because Padilla announced a new constitutional rule, that unless there is an exception to retroactively applying the case, Padilla will not apply to cases already resolved on appeal. The Tenth Circuit has also held that Padilla does not apply retroactively for the same reason. In addition, the Third District Court of Appeal of the State of Florida has sided with the Seventh and Tenth Circuits on the issue, leaving it open for the Eleventh Circuit to make a decision on the case if it goes up on appeal to that court.
    While these Circuit Courts have decided against applying Padilla retroactively, other district courts have applied the case retroactively. The State Court of Minnesota Court of Appeals concluded that Padilla applies retroactively under an old rule of constitutional law. The Minnesota Court concluded that Padilla falls under the Constitutional rule under Strickland v. Washington. The court decided that Padilla was an extension of Strickland regarding the rules of ineffective assistance of counsel. The Strickland rule states that: (1) that the counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the counsel's errors, the outcome of the proceedings would have been different. The Minnesota court determined from the majority decision in Padilla that the Strickland rule was being extended by this recent decision. The State Court of Texas First Court of Appeals also ruled that Padilla applies retroactively on the same grounds.
    Although the Fifth and Eighth Circuit Court of Appeals have not weighed in on the matter, with cases being decided in their jurisdictions (Texas and Minnesota), it is only a matter of time until those Circuits decide whether to follow their Sister Circuits in not applying the rule retroactively, or deciding that Strickland must be applied. It will be interesting to see how the other courts decide on the matter, and whether the U.S. Supreme Court will then have to step in and make a final ruling on the application of Padilla as a constitutional rule of law.
  2. Bloggings: America's 2012 immigration battle is shaping up as an epic struggle between racism and cowardice. By Roger Algase

    A September 2 news story in the Washington Post "Illegal immigration is flashpoint for Republican White House hopefuls" makes it clear that any kind of reason or respect for facts about immigration policy has been thrown out the window by the leading Republican presidential candidates, to be replaced by the vilest anti-immigrant and anti-Latino demagoguery.
    The leading Republican candidates appear to agree on three basic lies:
    1) Obama, who has deported more than twice as many immigrants as the last Republican president, and, according to reports, more than any other president in US history in the same period, and who has made Orwellian police-state measures such as E-verify and "Secure Communities" into household words, is doing nothing to enforce the immigration laws;
    2) Latino and other minority immigrants, legal and illegal, are creating unemployment and making the recession worse by taking jobs away from Americans, and
    3) Latinos and other minorities, including US citizens, contribute nothing to our economy, but are a drain on our resources because they are unwilling to work and are dependent on welfare.
    This latest WaPo article, like many others before it which have also tried to inject a few notes of reason and respect for fact into the immigration discussion,  is also accompanied by several hundred blog comments as of this writing, which will probably amount to several thousand by the time today's ID issue appears. All but a few of them are simply racist diatribes about how Latinos and other minority immigrants, legal and illegal, are allegedly destroying America.
    In the face of a weak economy, it is clear how the battle lines for next year's presidential campaign will be drawn. On the one hand, there will be an open appeal to the worst kind of bigotry and hatred against immigrants, reminiscent not only of past episodes of hate directed against various unpopular minorities throughout US history, from the anti-Irish Know Nothing movement, to the Chinese exclusion laws,  the anti-semitic, anti-Italian and anti-Eastern European "national origin" quotas of the 1924 immigration law,  the internment of Japanese-Americans during WW2, and, of course, the racial segregation laws directed against American-American US citizens.
    On the other hand, there will be a reponse by a weak, cowardly president along the lines of a pathetic: "but I really am trying to kick them out too - can't you give me at least a little credit for all the American families I have broken up, all the US citizen children left without one or both parents, and especially, the students brought here as children whom I am also (at least in some cases) trying to deport?"
    Of course, neither approach will do anything whatsoever to create jobs or pull America out of recession. The only way to do that would be to liberalize the immigration laws to harness the spending and job creating power of America's fastest growing ethnic groups, Latinos and Asians, and to bring more young, educated, skilled workers and entrepreneurs to our shores (without gutting family reunion, which has always been at the heart of America's greatness as a nation of immigrants). But don't look for reason in this battle between prejudice and cowardice.
    Instead, what we are likely to get, regardless of who wins next year's election, will be an unprecedented round of ethnic cleansing and exclusion in the form of multi-billion dollar border fences (supported by the Tea Party "small government" hypocrites), and internal racial persecution against Spanish-speaking and dark skinned immigrants and Americans alike that will bring back uncomfortable memories of the attempts to blame the Jews for Europe's economic problems in the run-up to Hitler and WW2. 
    Is there any way to stop this descent into racist madness which began with the craven surrender to white bigotry by America's current president and Deporter in Chief, and is continuing any time one of the Republican presidential contenders opens his (or, in the case of Michele Bachmann, who is taking anti-immigtant hate to a new low, her) mouth? Only if members of America's Latino, Asian and other immigrant communities flex their muscles, speak out and start to make their political and economic presence felt. This could mean marches, demonstrations, economic boycotts, primary challenges (especially to you know whom in the White House) and a third party. 
    Immigrants and their American citizen supporters can no longer sit on the sidelines in this battle. The sidelines may turn out one day soon to be on the opposite side of the Rio Grande. I wish all ID readers a happy Labor Day holiday weekend.
     
     
     
  3. Conflict in the Middle East - How should Immigration Authorities Respond? By Danielle Beach-Oswald

     
    Although Qaddafi's regime may have fallen, the fate of the mysterious Libyan leader remains uncertain as rebel leaders continue their search for the 69 year old former Libyan president. Qaddafi has shown that he is unwilling to go down without a struggle and taunted the Libyan opposition in a radio message stating that he was going to purify the Libyan capital of Tripoli of rebel forces. As Libya makes this transition after over 40 years of Qaddafi in power, many are fearful of the potential for instability as the Libyan opposition is neither unified or under a central command.
     
    Despite the conflict that rages in Libya, Syria's President Bashar Al-Assad has pledged to remain steadfast in his opposition to Syrian democratic protests. Although President Obama and other world leaders called on the Syrian President to step down last week, President Assad stated that he is "not worried" about the increasingly powerful opposition. An estimated 2,000 Syrians have died since the start of the uprising in March, and media reports remain unverified as the Syrian government has expelled most foreign media outlets.
     
    It is now time for Immigration Authorities to try to lay a cohesive policy towards Syrian and Libyan nationals given the political instability that impacts nationals of both countries. In 2010, USCIS admitted 8,904 Syrian citizens as nonimmigrants. Additionally, 41 Syrians were either granted asylum by the USCIS Asylum Office or defensively by the EOIR. 4,956 Libyan citizens were admitted as nonimmigrants. Although 11 Libyans received affirmative asylum through USCIS in 2010, in the past 10 years, no Libyans have received defensive asylum through the EOIR.  For these statistics, please see DHS Yearbook of Immigration Statistics.
     
    Although INA 244 allows for the Secretary of Homeland Security to designate certain countries for Temporary Protected Status if requiring the aliens to return to their home countries would pose a serious threat to their safety, it's time for Syrian and Libyan nationals residing in the United States to receive such a benefit. The Obama Administration has spoken in favor of democratic revolutions in Libya and Syria and yet Libyans and Syrians have yet to receive any TPS benefits. Those that fall out of status are threatened with the possibility of facing severe hardship upon their return to Syria or Libya because of the continuing on-going political conflicts. Although many may be fearful of National Security concerns from the government of Syria's inclusion on the Department of State's State Sponsor of Terror list, Sudanese citizens were granted TPS in 2004 in spite of their government's inclusion on the DOS State Sponsor of Terror list.
     
    This administration may support the foreign policy objectives of democratization of the opposition movements in Syria and Libya, but it must also realize the humanitarian concerns of its people. If forced to return to Syria or Libya, Syrians and Libyans would face life threatening dangerous consequences. It is therefore time for TPS to be granted until there is peace and stability in both Arab countries.

     
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  4. Do Computers Run the PERM Program?

    by Richard M. Green
    On March 9, 2010 Nathan Littauer Hospital & Nursing Home filed a PERM application on behalf of an employee. PERM is the usual first step in employment based immigration. It involves a test of the labor market and attestation that there are no US citizens or permanent residents ready, willing, and qualified to do the job offered to the non-citizen.
    The employer (or more probably their attorney) made one little mistake on the PERM ETA 9089 form. The employer failed to answer question J-23 which indicates if the Employer is presently employing the beneficiary. The employer did complete section K where they indicated that the beneficiary was presently employed by the employer and that the beneficiary had been employed by the employer since 2005.
    On April 26, 2010 the Department of Labor's [DOL] computers analyzed and denied the Employer's application. In the denial, the DOL cited the sole reason for denial was the failure to answer question J-23. Under the Department of Labor's regulations, failure to complete all the questions on the PERM application is grounds for a denial of a PERM application.
    On May 6, 2010, the Employer asked the Certifying Officer to reconsider his denial. In this request, the Employer stated that the failure to answer question J-23 is a typographical error, and the answer to question J-23 can be found in the employment history (section K -6 and K-7) of the form. This was the first opportunity for the Department of Labor to exercise common sense. They missed it. On June 29, 2010 the Department of Labor forwarded this file to the Board of Alien Labor Certification Appeals (BALCA) and requested their denial be affirmed.
    On August 16, 2011 the BALCA vacated the DOL's decision in this case. BALCA observed that the folks at the DOL did not have to look beyond the same page of the original application to determine the response to the inadvertently omitted section of the application. "We find that the [DOL's] denial based on a pro forma computer check was arbitrary and capricious." BALCA remanded the application to the DOL for further processing.
    This is not the first such BALCA remand. Similar remands for silly mistakes made by immigration lawyers include Matter of Yesmeena Corp (Failure of attorney to date box N-3), Matter of Heso Electric (Failure of preparer to answer question M-1 but suppled preparer information in box M and signed applicaiton) and matter of Shastriji Penn. Donuts Corp. (Question M-3 preparer's title left blank). I wish the people at the Department of Labor's Employment & Training Administration would realize that people make mistakes, and that some mistakes are harmless. I also wish that they would realize that policy decision to eschew common sense and litigate every possible grounds of denial of a PERM application all the way to the Board of Alien Labor Certification Appeal serves only to drive up the costs for employers and delay the final determination of an otherwise meritorious PERM application.
  5. A New Spin on INA 340 – Charges against naturalized Burundian Man Dropped; By Danielle Beach-Oswald

    INA 340 allows federal prosecutors of the Justice Department to begin proceedings of a revocation of citizenship against any naturalized US Citizen who may have obtained immigration or naturalization benefits through fraud or misrepresentation.
    Three months ago, jurors in Kansas found that a naturalized United States Citizen, Lazare Kobagaya, lied on immigration documents regarding his whereabouts during the 1994 Rwandan genocide that left an estimated 800,000 Rwandans dead. The jury was unsure as to whether Kobagaya actually participated in the atrocities. The jury was deadlocked on the second issue of whether Kobagaya lied during his naturalization proceedings, and therefore federal prosecutors decided to re-try the case.
    Although the government spent an estimated $1 million trying to convict Kobagaya, federal prosecutors on Thursday asked the federal judge to dismiss the conviction of visa fraud and dismiss the charge of misrepresenting himself during his naturalization proceedings. After federal prosecutors failed to disclose important information to Kobagaya's counsel regarding information from a consular official in Kenya who told federal prosecutors that she would not have inquired about Kobagaya's whereabouts during the 1994 Rwandan genocide because of his Burundian citizenship, federal prosecutors had no choice but to drop the case. This information from the Consular Official would have been particularly important to Kobagaya's counsel as part of their case rested on how Kobagaya's location during the Rwandan genocide would not have led to keeping him out of the United States by being denied a visa from the Consular Official in Kenya.
    Many believe that the government's decision to drop the case came from a letter that Kobagaya's Attorney wrote to the Justice Department expressing her desire for sanctions against federal prosecutors for failing to disclose the information from the Consular Official.
    Kobagaya's involvement in the 1994 Rwandan genocide remains an issue of uncertainty. His family believes that all accusations against him stemmed from him testifying in a war crimes trial in Finland.
    Given that the Justice Department spent $1 million on this case, with even one juror claiming that it was a waste of money, it shows the necessity for better transparency between government officials and private attorneys in all issues regarding immigration. This has not only led to unnecessary embarrassment for the government, but has shown that attorneys working on important immigration matters should have more comprehensive access to important government records that may not be available from a FOIA (Freedom of Information Act) Request.
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