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  1. ABA President Calls for Restructuring of Immigration Courts to Increase Independence

    by , 04-19-2018 at 09:07 AM (Matthew Kolken on Deportation And Removal)


    Via The ABA Journal:

    ABA President Hilarie Bass called for an overhaul of the immigration court system in testimony Wednesday afternoon before a Senate subcommittee.

    ‘”We believe fundamental change is needed,” Bass said in her testimony before the Senate Judiciary Committee’s Subcommittee on Border Security and Immigration.

    Bass outlined the ABA proposal in a prepared statement submitted to the subcommittee. In the statement, Bass said immigration courts should be restructured as independent Article I courts, and immigrants should be given increased access to counsel and legal information. An ABA press release has a summary.


    Click here for more.
  2. How does ICE Calculate Fines in an I-9 Inspection

    By: Bruce Buchanan, Sebelist Buchanan Law


    As Immigration and Customs Enforcement (ICE) conducts more and more I-9 inspections (the ICE director stated they would be increasing by 400 to 500%), employers need to know how ICE calculates any fines assessed against employers. AILA’s I-9 Verification Committee, through Rick Gump and Eileen Momblanco, recently drafted a fine Practice Pointer, which I encourage AILA members to read. For non-AILA members, this article will discuss the same concepts.

    It begins for an employer when ICE serves a Notice of Inspection (NOI)/subpoena to review the employer’s I-9 forms as well as many other HR-related records. The NOI gives the employer three business days to provide the subpoenaed documents. The ability to receive an extension of time to provide the I-9 forms and other documents seems to vary with what ICE office you are dealing. I have been successful in receiving extensions in almost all NOIs, but I never ask for more than one week and usually only five days. After the ICE auditor reviews the I-9 forms, the employer will receive a series of notices – Notice of Suspect Documents and Notice of Technical and Procedural Failures are the most common notices.

    If substantive paperwork, hiring, or continuing to employ (H/CTE) violations are found, ICE normally issues a Notice of Intent to Fine (NIF), although if the errors are less than 10%, ICE usually only issues a Warning Notice without a penalty. The fine/penalty amount in the NIF is determined by ICE attorneys and special agents in charge. Fines can be challenged by requesting review by an Administrative Law Judge (ALJ) of the Office of Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF. If litigated, the ALJ can adjust the fine amount.

    In November 2008, ICE issued a Memorandum, “Revised Administrative Fine Policy Procedures”, which contained a set of matrixes and required ICE to follow specific procedures for calculating paperwork and H/CTE fines. The Policy Procedures state the following to determine the level of fine within each matrix:


    • Use the number of violations of each type (paperwork or H/CTE) as the numerator and the number of total employees as the denominator; and
    • The percentage calculated above would be used to determine the percentage box in the fine matrix to start, and then fines could be adjusted up or down five percent for each of the five factors - business size, good faith, seriousness, employment of unauthorized aliens, and prior history with ICE/INS.


    However, ALJs can consider any factors it deems necessary to calculate an appropriate fine based on the case at hand. Cases with both paperwork and H/CTE violations sometimes produce higher fines for a greater number of paperwork violations compared to fines for a fewer number of H/CTE violations.

    To increase the level of penalties, ICE has begun to create a higher level of fine on each matrix by adding the number of paperwork violations to the number of H/CTE violations as the numerator, which in some cases dramatically increases the level of the fine in each matrix. Here are two examples:


    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10 + 20 = 30 to calculate 30% violations for each matrix. This would lead to a fine of $60,270 using the 2017 matrixes.
    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10/100 = 10% for paperwork and 20/100 = 20% for H/CTE violations for each matrix. This would lead to a fine of $40,560 without any aggravating or mitigating factors applied.


    In other words, instead of taking the number of paperwork violations and dividing them by the
    number of employees, and then calculating the H/CTE violations the same way, ICE adds the
    number of paperwork violations to the number of H/CTE violations when calculating the
    violation percentage from each matrix. This is resulting in a higher fine based on the matrix
    percentage of violations for each of the paperwork and H/CTE violations.

    ICE has defended this calculation method by pointing to language in the 2008 fine policy procedures, “The recommended base fine amount is determined by dividing the number of ‘knowing hire,’ ‘continuing to employ,’ and substantive verification violations by the total number of Forms I-9 presented for inspection to determine a violation percentage.”

    However, as the Practice Pointer states:
    On the next two pages, ICE instructs agents to “divide the number of ‘knowing hire’ and ‘continuing to employ’ violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage” and to “divide the number of substantive violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage.” Each instruction is paired with a separate fine matrix and no other ICE issued documentation instructs agents or attorneys to add the violations together. ICE’s I-9 inspection webpage also makes no mention of the double-dipping method of fine calculation.

    In evaluating NIFs, attorneys for employers should ask these questions:
    1. Are the fines calculated within the confines of the statute as updated by DOJ?
    2. What baseline and method did ICE use to calculate the fine in the instant case?
    3. What factors were used to aggravate or reduce the level of the fine?
    4. Were the factors appropriately used?
    5. Did ICE apply the 5% enhancement for employment of unauthorized aliens to only those violations as opposed to across the board?
    6. Did the NIF miscalculate the fines by double-counting violations? And
    7. Did ICE make other errors in its calculations?

    After evaluating these issues and trying to negotiate a settlement, one must assess the propriety of settling with ICE versus challenging the fine with an OCAHO ALJ.

    If you want to know more information on I-9 penalties/fines, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  3. Detained Immigrants Sue For Profit Detention Center Over Forced Labor

    by , 04-18-2018 at 09:18 AM (Matthew Kolken on Deportation And Removal)
    Immigrants detained at the Stewart Detention Center located in Lumpkin,Georgia have filed a class action lawsuit against a private for profit prison corporation that has contracted with the U.S. government to operate the facility. The lawsuit alleged that immigrants detained for civil immigration law violations are subject to compulsory labor. The corporation is called, CoreCivic Inc., and is a billion-dollar private prison corporation.

    The complaint alleges that CoreCivic:

    ...maintains a deprivation scheme intended to force detained immigrants to work for nearly free. CoreCivic deprives detained immigrants of basic necessities like food, toothpaste, toilet paper,and soap, and contact with loved ones, so that they have to work in order to purchase those items and costly phone cards at CoreCivic’s commissary. CoreCivic then threatens detained immigrants who refuse to work with serious harm, including the deprivation of privacy and safety in open living quarters, referral for criminal prosecution, and, ultimately, the sensory and psychological deprivation of their humanity resulting from solitary confinement. Under these circumstances, no labor is voluntary – it is forced.

    CoreCivic operates a so-called Voluntary Work Program (“Work Program”) at Stewart. Through this program, CoreCivic uses detained immigrants to perform work that directly contributes to institutional operations. CoreCivic pays detained immigrants who participate in the Work Program generally between $1 and $4 per day. CoreCivic occasionally increases the wage rate it pays to kitchen workers to up to $8 per day when it needs workers to work twelve hours or more per day.Under no circumstances does CoreCivic pay the detained immigrants the federal minimum wage of $7.25 per hour, or the Service Contract Act wages governing the jobs they perform.

    In fact, the detained immigrants’ wages generally are well under $1 per hour.32. The Work Program allows CoreCivic to avoid recruiting from the local labor market, paying minimum wages, providing detained immigrants in the Work Program with any benefits, paying the costs of potential unionization, and paying federal and state payroll taxes, like Medicare, thereby reducing operational costs and increasing its own profits. Further, it reduces the likelihood of former employees acting as whistleblowers regarding the deplorable and unsafe conditions inside Stewart.


    Click here
    to read the complaint.

    Also see this article that reveals the private prison industry's connection to Democratic lawmakers.

    Updated 04-18-2018 at 09:25 AM by MKolken

  4. The Prevalence of Evidence

    If the asylum seeker's affidavit is the heart of her application, evidence might be considered the lungs: It provides the oxygen that allows the heart to function. Or maybe anatomical analogies are just weird. The point is, evidence in support of an asylum application is crucial to the application's success. But what is evidence? And what happens if you can't get it?


    An asylum attorney prepares to file evidence in his case.


    Let's start with a bit about the law. The REAL ID Act of 2005 provides--
    The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

    See
    INA 208(b)(1)(B) (emphasis added). In other words, if you claim that something happened (you were unlawfully detained), you are required to provide evidence about it (a police document), and if you are unable to provide such evidence, you should be prepared to explain why you could not get the evidence (maybe the police in your country don't issue receipts for illegally arresting people).

    What this means is that you should try to get evidence supporting your case. Different lawyers may have different views on this, but I think you should get evidence for every claim you make in your affidavit and I-589. That includes evidence not directly related to the asylum claims, such as evidence of education, employment, awards and certificates, membership in organizations and religious institutions, travel to third countries, documents used to obtain your U.S. visa(s), birth certificates for you and your immediate family members, all passports for you and your immediate family members, marriage and divorce documents, national ID cards, military service records, arrest records, and general medical records. In other words, evidence about who you are and what you've been doing with your life.

    Of course, you also need to get evidence related to your asylum claim. So if you were arrested, harmed or threatened, get evidence about what happened: Police and court documents, medical records and photos of injuries/scars, copies of any threats. If your case involves political activity in your country or elsewhere (including the U.S.), get party membership cards, receipts, letters from the party, and photos at political events. If it is a religious case, get evidence of your religion: Letters from church leaders and/or members, photos at religious events, certificates, membership documents, and government IDs, which sometimes list religion. If the case is based on nationality, ethnicity or race, get evidence that you belong to the group in question, such as identity documents.

    For people claiming asylum based on membership in a particular social group ("PSG"), the evidence needed depends on the group. For LGBT cases, get evidence of sexual orientation, such as membership in gay rights groups and evidence of past relationships. If your PSG involves family members, get evidence of familial relationships--birth and marriage certificates, photos, and other family documents, including evidence that other members of your family were harmed or threatened. If you have a domestic violence case, get evidence of the relationship (marriage certificate, birth certificates of children, photos together, other documentation that you were in a relationship) and of the harm.

    If there are newspaper or magazine articles, country reports or human rights reports--or even blog posts or Facebook posts--that support your asylum claim, include those. If you are using a newspaper or magazine, make sure to include the cover page of the newspaper, and the entire article. If you are using an on-line resource, make sure to include the website address.

    You should also get letters from family members, friends, and colleagues who can attest to your problems (I've posted about how to write a good letter here). In many cases, it is impossible to get direct evidence of harm, and so letters from people attesting to your problems is all that you can get. While letters from family members and friends are not as valuable as more direct evidence, they are still valuable, and we always include such letters if we can get them.

    Some people have scars or other evidence of physical harm (including FGM). In such cases, you should get a forensic medical report to help bolster your claim about how you received the scar (in other words, that the scar was caused by torture as opposed to a car accident or disease). Of course, the doctors who write such reports do not know for sure how you received a particular scar. But they can state that the scar is consistent with your explanation of how it was received. If you cannot afford a forensic exam (or find a doctor to do the exam pro bono), at least take photos of the scars and include them with your evidence. Normally, we have our clients take a close-up of the scar and also a photo from further away, so we can see the person's face (so we know the scar is on that particular person's body).

    We also sometimes submit other types of expert reports. The most common are psychological reports (that indicate PTSD, for example). In my opinion, the most effective reports are the ones created in the course of treatment. The less effective reports are created after one or two meetings with the asylum seeker, and were clearly created for purposes of the asylum case. Sometimes, we also use expert reports related to country conditions, though these days, we can usually find what we need on the internet.

    If any of your close family members applied for or received asylum, refugee or other humanitarian status (including SIV status) in the U.S. or abroad, try to get evidence of that status. In general, it is very helpful to show that other family members, who are often similarly situated, have been persecuted or have already received asylum. Indeed, we recently did a case in Texas where our client's close family members all had SIV status (meaning that the U.S. government determined those family members faced a threat in the home country due to their cooperation with the U.S.). This evidence alone was enough to convince the Judge to grant asylum to our client.

    You should also submit country condition information. Some lawyers submits lots of country condition information. I am not one of those lawyers. I think that redundant reports are counterproductive and distracting. It is standard procedure to submit the U.S. State Department Report on Human Rights Practices (or at least an excerpt of the relevant portions). Also, if applicable, we submit the State Department Report on International Religious Freedom. If those reports are not sufficient, we submits reports from other credible organizations, like Human Rights Watch or Amnesty International. There are also lots of issue-specific reports from groups like the Committee to Protect Journalists, Doctors Without Borders, and International Christian Concern, to name a few. If there are news articles from credible sources, we submit those too (if they are relevant and not redundant). Finally, if there are specific articles or reports from less-reliable sources that speak directly to the issues in the case, we submit those as well.

    Of course, any documents not in English need to be properly translated.

    Finally, it is important to review all the evidence to ensure that it is consistent with your statement and with the other evidence submitted (for example, if your statement says that you lived in a red house, your witness letters should not say that you lived in a blue house). Inconsistent evidence can lead to a determination that you are not credible, so be careful about this.

    The evidence for each applicant is case specific. If you have an attorney, one of the attorney's jobs is to evaluate your case and determine what evidence is helpful. If you do not have an attorney, you should still do your best to obtain as much evidence as possible. This will help increase your chances for a successful outcome.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, evidence Add / Edit Tags
  5. Donald Trump is Poisoning the Well for Legal Immigration, as America Moves Away From "Yes, We Can" toward "No, We Ban". Roger Algase

    Update, April 18 at 12:05 pm:

    On April 23, 2017, almost exactly a year ago, I wrote an Immigration Daily comment predicting the kinds of attempts to dismantle America's legal immigration system which Donald Trump is now engaging in through his speeches, as described below, and administrative action, to be discussed in a forthcoming comment.

    I also predicted that Trump might be disappointed if he expected his appointed Supreme Court Justice Neil Gorsuch to rubber-stamp Trump's immigration policies. This prediction turns out to have been justified by Justice Gorsuch's choosing to vote with the liberal Justices on April 17 in the deportation case of Sessions v. Dimaya.

    For my comment from April of last year, see:

    http://blogs.ilw.com/entry.php?9862

    My comment from earlier today follows below:

    Sometimes I am asked why my comments on this site focus so much on Donald Trump's immigration policies, even though, according to one perspective, Trump is only a part of the overall immigration picture, and allegedly only a small part at that.

    According to this argument, despite Trump's unrelenting anti-immigrant rhetoric and attempts to demonize Hispanic, Muslim, African and Asian immigrants as "criminals", "terrorists", "hut dwellers" and "job stealers" respectively, not to mention the use of harsher language such as "snakes" and, most notoriously of all, citizens of "shithole countries"; and his many calls to change the immigration laws to eliminate visa categories which have been helpful to areas of the world which do not contain "countries like Norway"; there have in fact been no significant changes in the immigration laws in the "Trump Era" so far, and the legal immigration system continues to operate in basically the same way as it did under previous administrations.

    According to this view, much, if admittedly not all, of the legal immigration system is still functioning without any major damage or impairment. EB-5 still lives on; parents of US citizens (including those of First Lady Melania Trump) are still arriving in the US with green cards even though Trump has vigorously called for abolishing this and some other family visa categories; the H-1B lottery is still taking place, even as Trump tries to make these visas more complicated and difficult to obtain than before; and most of the employment-based green card system is still intact.

    Foreign visitors and students are still coming to the US in large numbers from every part of the world, even if those numbers, according to some figures, are reduced from previous years.

    Certainly, on the unauthorized side of the immigration ledger, people who entered the country without permission or overstayed their visas are having a harder time in the "Trump Era", but hey - they aren't supposed to be here anyway! So if a 7 year old child is incarcerated by ICE two thousand miles away from her mother, or non-criminal immigrants are arrested by ICE on their way to court or to the hospital, who do they have to blame but themselves? At least so the argument runs.

    Besides, isn't the all-time US record for deportations still held by a Democratic president, Barack Obama? And wasn't the harsh IIRIRA immigration law of 1996 signed by another Democratic president, Bill Clinton (who also blockaded Haiti to stop refugees from leaving that country - something that arguably goes far beyond Trump's Muslim ban - which itself has been considerably watered down from what was originally intended)?

    Certainly there is an argument to be made that focusing on Trump is one sided and limited - there is much more to immigration in America than only the speeches and actions of this one US president.

    But for the reasons I will explain below, I believe that this is a narrow and shortsighted view, one which overlooks or soft pedals the very real dangers to America's legal immigration system from a president who is openly committed to making drastic changes in, or even destroying, many of its most important and fundamental features.

    First, there is the immense power of the president of the United States to set the national mood toward just about any issue. Under President Obama, even with his record high number of deportations, immigration detention abuses and other many shortcomings in the administration of the immigration system, the general approach to legal immigration was one of welcome - from every part of the world.

    One might even say the this was part of Obama's overall optimistic"Yes, we can!" philosophy.

    In contrast, one could say that Trump's basic attitude toward legal immigration, especially from outside Europe, is rooted in a fundamentally dark view of immigration, if not the world in general (and I am not referring only to the skin color of the people whom Trump wants so much to keep out) which could be summed up in the words:"No, we ban."

    The power of the president to set the climate in which the details of any given issue or set of policies are determined is immense. This used to be known once upon a time as the "bully pulpit" and it is now known as the tweet.

    It is hard to deny that Donald Trump is radically changing the immigration climate in America (even as he is very arguably putting the entire planet in danger by doing everything possible to advance climate change in the atmosphere and oceans, and turn the EPA into a polluters agency, not an environmental protection one - but this beyond the scope of these comments).

    Every US president and administration for the past half century, ever since the landmark civil rights era reform of 1965 which was intended to end 40 years of open racism and white supremacy in our immigration laws embodied in the "Nordics"-only immigration quotas of the 1924 law, has distinguished between legal immigration, which has been supported as being one of America's most fundamental values, and illegal immigration, which has of course been opposed.

    Donald Trump, however, is very arguably the first US president since Calvin Coolidge openly to condemn legal immigration as well as illegal immigration as a danger to America, and to call for drastic changes in the immigration laws aimed at not only cutting down on overall legal immigration numbers, but making it harder for immigrants from outside Europe to come to or stay in America legally.

    This is most evident in his support for the RAISE Act, which would be a major step back toward the white supremacist 1924 law; and in Trump's own "framework" for, inter alia, eliminating extended family immigration - falsely and maliciously referred to by restrictionists by the term "chain migration"; as well as eliminating the diversity visa lottery - which no politicians in either party had a problem with in its original ("AA-1") whites (almost) only form before 1994, but which Trump now condemns without any evidence as dangerous to national security when most of the beneficiaries come from Africa and other places outside Europe.

    Anyone who thinks that Trump can continue to attack legal as well as unauthorized immigrants, week after week, in speech after speech, rally after rally and tweet after tweet, as "criminals", "rapists", "drug dealers", "'gang members" "terrorists", "cheap labor" and people who do not "love America" or "share our values", while appointing people with ties to restrictionist groups which the Southern Poverty Law Center (SPLC) has labeled as "hate organizations" to key positions in the administration or the immigration bureaucracy - see my forthcoming comments on this point - without this leading to major changes in many different aspects of our legal immigration system is simply putting on the blinders and engaging in self-delusion.

    In my next comment on this topic I will show how Trump is using the vast administrative power over immigration which the federal courts originally bestowed on the executive branch in an earlier, openly white supremacist, era dating back to the notorious Chinese exclusion laws of the late 19th century, to dismantle key parts of, if not totally destroy, America's legal immigration system as we now know it without needing or receiving Congressional approval.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com


    Updated 04-18-2018 at 11:05 AM by ImmigrationLawBlogs

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