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On June 15, we were excited to hear DHS's announcement on deferred action for eligible undocumented youth. This announcement is really important for undocumented young people and their families, and we stand with immigrant communities who consider this nation their home. Our goal is to ensure that community members receive information on deferred action in an accurate and efficient manner. As the leading immigration publisher and with more than 12 years of experience in the immigration law field, we can connect organizations, like yours, with top immigration lawyers that can educate your membership and community. We would like to hold a workshop on deferred action in your city and with your participation to ensure we reach as many undocumented immigrants as possible. This workshop will not be a sales pitch, but an educational experience for your community. This collaboration between ILW.COM and your organization will entail the following benefits and expectations for you:
Benefits for your organization:
o The participation of a verified and knowledgeable immigration attorney in a workshop that will include a lengthy Q&A session
o Support from ILW.COM in logistics and outreach (e.g. we can provide you help with finding a suitable venue, creating flyers, drafting email blasts, etc)
o Address the attendees about your upcoming events, programs and how to get involved in your organization and campaigns
o The attorney will provide all the reference materials
o A sponsorship fee - we recognize the value and impact of your work in the community. We will provide a sponsorship fee for your programs and to subsidize any expenses incurred due to the workshop.
Expectations from your organization:
o Your commitment to spread the word about the workshop through your social networks, email lists, flyering and any other efforts to maximize attendance
o Your collaboration on the running of the workshop
If you are interested in taking part of this collaboration or have further questions, please email us at firstname.lastname@example.org or call us at 212-545-0818.
We look forward to working together and helping undocumented youth and communities.
Of all the unexpected consequences of Arizona v USA, perhaps the least likely is the potential reshaping of licensure regulations for the immigration bar. So long as the states did not seek to regulate immigration, lawyers licensed in one state could practice immigration law in another, save for those jurisidctions such as California and Colorado that banned such practice. Relying on ABA Model Rule 5.5(d) and Supreme Court precedent in the case of Sperry v. Florida, 373 US 379, 383-84 (1963), immigration was a federal practice and any credentialed advocate could join in. That is why USCIS recognized this multi-jurisdiction bar in 8 CFR 292.1(a)(1) and 1.1(f). The State Department is no less courteous:
9 FAM 40.4 N12.3 Local or U.S.-Licensed Attorneys Practicing Abroad You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association or to a local attorney-at-law, the same courtesies in correspondence that are extended to an attorney practicing in the United States, provided you are satisfied that the required relationship exists.
This has never been without controversy. New York makes out of jurisdiction lawyers register every two years at a $375 fee. In Texas, a solo immigration practitioner from New York State moved to Houston but did not bother to sit for the Texas bar exam. She was not given a Texas-size welcome; the Unauthorized Practice of Law Committee of the Texas State Bar sued her, expressing a concern for the integrity of the Texas family and penal code as well as the potential harm to Texas residents. Ultimately, the case was dropped. See John Council, Out of Bounds: Lawyer Without Texas Bar Card Fights for Right to Practice, 18 Tex. Law. 24. (2002); Gregory Siskind, New York Immigration Lawyer Wins Battle to Practice in Texas, Immigration Daily available here. For those who want a deep dive into the delicacies of this controversy, see the wonderful article by Charles Kuck and Olesia Gorinshety as well as the masterful insights provided by Cyrus Mehta.
The exemption from state bar rules depends upon dealing exclusively with federal law. Can this easily or always be done? That is the concern voiced by Texas Ethics Opinion No. 516:
Without issuing an opinion on the subject of unauthorized practice of law, the committee assumes that the representation of clients in Texas by an out-of-state attorney solely on issues or matters of federallaw in the area of immigration and nationality law before the U.S. Immigration and NaturalizationService and in federal courts does not constitute the unauthorized practice of law in Texas. The committee further assumes sat this is incorrect regardless of whether the out-of-state attorney lives in or outside of Texas, maintains an office in Texas, or is employed by an attorney who is licensed to practice law in Texas, so long as the representation of clients in Texas by an out-of-state attorney is in fact limited only to issues or matters of federal law...However, the committee recognizes that the foregoing assumptions do not resolve all unauthorizedpractice of law problems presented in this question. As a practical matter, it simply may not be possibleto separate federal and state law issues when representing clients on matters under the U.S. Immigrationand Nationality Act. Representing clients on immigration and nationality law may require an out-of-stateattorney to know and advise such clients on issues and matters involving Texas law. For example, Texaslaw governing family matters such as marriage, divorce and adoption may be determinative in certainimmigration cases; likewise, immigration law questions may necessarily involve giving advice on Texascriminal law statutes, Texas employment laws, or other Texas law. Accordingly, the risk of engaging inthe unauthorized practice of law in Texas inevitably increases with the number of immigration andnationality cases handled by an out-of-state attorney. http://www.law.uh.edu/libraries/ethics/opinions/501-600/eo516.pdf
This is where SB 1070 comes in. If the Supreme Court finds that Arizona can use its retained police powers to regulate and punish conduct by and the presence of undocumented immigrants, then it will be much more difficult to separate state from federal law in the analysis of any immigration problem,whether in Arizona or in all the other States that either have their own state immigration laws already or will be encouraged to adopt them. No longer will immigration lawyers be able to refrain, if they can now, from state law questions. Should this happen, and the lines between state and federal jurisprudence between irretrievably blurred to the point where they cease to exist, it is hard to imagine how any immigration lawyer who is not licensed in the state where they practice can avoid engaging in the unauthorized practice of law. Do we really want this ? As Proverbs warns us, he " who troubleth his own house shall inherit the wind."
It has been a long time since the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") introduced the concept of "admission" now codified at INA Section 101(a)(13)(C) yet arguments have continued to rage as to what it means and who has the burden of proof when it comes to a returning permanent resident. Now, at long last, the Board of Immigration Appeals has brought clarity to this muddled picture, or so it seems. If the United States Supreme Court upsets this transquility, those charged with the responsibility of advising clients may once again find themselves searching for answers.
Before IIRIRA, the INA defined "entry" in these terms: " any coming of an alien into the United States...except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if...his departure to a foreign port or place...was not intended..." 8 USC Section 1101(a)(13). This is, to put it charitably, not the most artful or easily digestible drafting so it was not clear what Congress meant. Happily, the Supreme Court told us in Rosenberg v. Fleuti, 374 US 449 462 (1963) which held that a lawful permanent resident was not making an entry if his or her departure was "brief, casual and innocent." Comes along April 1, 1997 and "entry" a la Fleuti is no longer, replaced now by IIRIRA Section 101(a)(13)(C) "admission" pursuant to which an LPR shall not be regarded as seeking admission "unless" he or she met 6 specific criteria, including having been absent for a continuous period in excess of 180 days or having abandoned or relinquished LPR status while away. Not content to stop there, IIRIRA also introduced INA 240(c)(2), 8 USC Section 1229a(c)(2) that requires an applicant for admission to prove by "clear and convincing evidence" that he or she is "lawfully present in the US pursuant to a prior admission." The burden is on the applicant for admission to demosntrate "clearly and beyond doubt" that he or she is not inadmissible. At the same time, IIRIRA also lowered the burden on the government as the charging party in removal proceedings to establish deportability b y "clear and convincing" evidence replacing the "clear, unequivocal and convincing" evidence test articulated by the Supreme Court in Woodby v. INS, 385 US 276,286 (1966). Following hard on the heels of IIRIRA, which did not explicitly abrogate Fleuti, the Board of Immigration Appeals held in Matter of Collado-Munoz, 21 I&N Dec.1061, 1065(BIA 1997) that "the Fleuti doctrine, with its origins in the no longer existent definition of 'entry' in the Act , does not survive the enactment of the IIRIRA as judicial doctrine." Farewell Fleuti!
Has the burden of proof shifted after IIRIRA fora an LPR who seeks admission to the US? If so, what burden applied? It is true, after all, that Woodby was not a constitutional decision and did not create a separate law on abandonment as opposed to all deportation cases. As my learned colleague Cyrus Mehta and I wrote in "Home Is Where The Card Is: How to Preserve Lawful Permanent Status In A Global Economy," 13 Bender's Immigration Bulletin 849,856 notes 37-41 (July 1, 2008), even after IIRIRA, both the BIA and the Circuit Courts continued to place the traditional burden on the government when the applicant has a colorable claim to LPR status.
Enter Matter of Benno Rivens, 25 I&N Dec. 623,625(BIA Oct. 19, 2011) which settles the matter or should unless the Supreme Court unsettles it, but more on that disturbing possibility later. Keep reading! In Benno Rivens, the Board of Immigration Appeals tells us what we all wanted to hear ( unless of course we work for CBP!) : " As a matter of first impression with respect to the application of section 101(a)(13)(C) of the Act,we find no reason to depart from our longstanding case law holding that DHS bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident is to be regarded as seekind admission." Interestingly, the Board cites Matter of Huang, 19 I&N Dec. 749, 754(BIA 1988) which, in turn, had cited Woodby even though Congress eleced not to include the phrase " unequivocal" in IIRIRA INA 240(c)(3)(A). Did this omission mean a lesser standard? The BIA has " no occasion to determine whether, or to what degree, this has effected a substantive change." Benno Rivens, 25 I&N Dec. at 626. Now that is frustrating, maybe even a tad annoying. Would not we all like to know ?
So what's not to like? Isn't this enough even for a disgruntled yet zealous advocate? Allow me to introduce Vartelas V. Holder, 620 F.3d 108 (2d Cir. 2010), cert. granted Sept. 27, 2011 (No. 10-1211). Here, an LPR had pled guilty in 1994 to the crime of possessing or making counterfeit securities. At that time, IIRIRA had not yet been enacted. How is IIRIRA relevant here? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the 2nd Circuit both ruled that the application of the post-IIRIRA admission standard was not impermissibly retroactive. This was in conflict with the contrary conclusions on this same issue reached by the 9th Circuit in Camins v. Gonzales, 500 F. 3d 872 (9th Cir. 2007) and the 4th Circuit in Olatunji v. Ashcroft , 387 F.3d 383(4th Cir. 2004). Perhaps to resolve this conflict among the different circuits, the Supreme Court has granted certiorari to review this narrow question of whether the current INA 101(a)(13)(C)(v) can be applied retroactively. Doubtless, the conceptual framework that will shape its analysis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 US 244( 984). Since Congress did not expressly instruct on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a0(13)(C)(v) will contradict basic notions of proper notice and upset "settled expectations" on which the actor in question "reasonably relied." Interestingly, IIRIRA's temporal effect cannot be circumscribed simply because "it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law." Landgraf, 511 US at 269. When in doubt, retroactivity is not favored. Chang v United States, 327 F.3d 99,920 (9th Cir. 2003). The Supreme Court said it best: " Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expecations shoujld not be lightly disrupted." See Landgraf, 511 US at 265.
As that immortal baseball philosopher Leroy Satchell Paige so wisely said: "Don't look back. Something might be gaining on you."
A general pessimism has settled over the pro-immigration
community after the House GOP caucus failed to endorse a comprehensive
Senate-ish approach to immigration reform after meeting to talk about dealing
with immigration this year. But I'd argue that the news is a bit or a mix. *
House Republican Leaders issued the following statement
after the caucus meeting today:
Today House Republicans affirmed that rather than take up
the flawed legislation rushed through the Senate, House committees will
continue their work on a step-by-step, common-sense approach to fixing what has
long been a broken system.* The American
people want our border secured, our laws enforced, and the problems in our
immigration system fixed to strengthen our economy.* But they don't trust a Democratic-controlled
Washington, and they're alarmed by the president's ongoing insistence on
enacting a single, massive, Obamacare-like bill rather than pursuing a
step-by-step, common-sense approach to actually fix the problem.* The president has also demonstrated he is
willing to unilaterally delay or ignore significant portions of laws he himself
has signed, raising concerns among Americans that this administration cannot be
trusted to deliver on its promises to secure the border and enforce laws as
part of a single, massive bill like the one passed by the Senate.
So we know that the leadership is not a fan of a
comprehensive bill and wants individual bills. And they emphasized that they
want border security measures before a legalization program starts.
Other statements that emerged today from people like Raul
Labrador and Daryl Issa made it sound like a legalization program is not off
the table, but there should not be a special path to citizenship with the
exception of DREAMers.
So while many are assuming immigration reform is dead, I can
see the House - after the August recess - considering a legalization bill that
would create a legal status similar to the RPI status in the Senate bill but
which would not begin until after various border security triggers are met.
There would only be a special path to citizenship for DREAMers but others could
eventually get green cards through existing green card categories after more
triggers are hit.
The question would
then be whether Democrats would consider such a plan or simply ignore the
House.* Politically, the Democrats can do nothing and reap major rewards down the road since no matter what GOP members may be saying, the WILL be blamed for this failure and they will eventualy lose the House when gerrymandering can no longer disguise demographic realities. On the other hand, Democrats could take a deal like this and wait until they've retaken the House to get a better program. And they WILL retake the House. Even if an immigration bill passes, the GOP's handling of the issue has effectively branded them as the anti-immigrant party and that is suicidal in 21st century America.
Updated 07-12-2013 at 12:46 PM by GSiskind
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