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  1. Evaluating the Threat Posed by Refugees

    Last month, a Somali refugee and college student drove his car into a crowd at his university, jumped out, and started stabbing people. He was quickly shot dead by a campus police officer. The assailant, Abdul Razak Ali Artan, apparently left Somalia, lived for a time in Pakistan, and was resettled as a refugee in the United States in 2014. After the incident, Donald Trump tweeted that Mr. Artan "should not have been in our country."
    TV shows based on misunderstandings are hilarious; government policies, not so much.
    Incidents like this--where a refugee or asylee commits a (probable) terrorist act--are exceedingly rare. As far as I know, the only other successful attack involving "refugees" was the Boston Marathon bombing, perpetrated by two brothers who came to the U.S. as derivatives of their parents' asylum case. Since 2001, the U.S. has admitted approximately 785,000 refugees and roughly 400,000 asylum seekers. So if all these numbers are accurate (a big "if", as discussed below), then the odds that any given refugee or asylee is a terrorist is 1 in 395,000 or 0.0000844%.

    In looking at the question of refugees/asylees and terrorism, the main problem is that the numbers listed above are not accurate. First, there is no consistent way to count people entering and leaving the United States. The refugee numbers are probably more accurate (though it's unclear to me whether all aliens admitted for humanitarian reasons are included in the count), but asylum numbers are all over the map. Part of the problem is that different agencies (DHS and DOJ) deal with asylum applicants, and they seem to count people differently--sometimes derivative asylees are counted; other times, only the principal is counted. How do the agencies count people whose cases are pending? What about people granted other forms of relief (like Withholding of Removal or Torture Convention relief)? How are family members who "follow to join" the principal applicant counted? I have no idea about any of this, and there is no easily available data source to help. Not surprisingly, the dearth of data has opened the door to conspiracy theorists and anti-immigration advocates who claim we have an "open borders" immigration policy. But the absence of data also creates problems for fair-minded policy makers. How can we make appropriate decisions when we do not have a decent understanding of what is going on?


    A second problem is that we do not have reliable information about how many non-citizens are involved in terrorist activities. Last summer, Senators Jeff Sessions (Donald Trump's current nominee for Attorney General) and Ted Cruz sent a letter to the Obama Administration claiming that at least 380 of 580 people convicted of terrorism charges in the U.S. between September 11, 2001 and December 31, 2014 are foreign born. According to the Senators, "Of the 380 foreign-born, at least 24 were initially admitted to the United States as refugees, and at least 33 had overstayed their visas." The letter further claims that since early 2014, 131 individuals have been "implicated" in terrorist activities. Of those, "at least 16 were initially admitted to the United States as refugees, and at least 17... are the natural-born citizen children of immigrants." Using these numbers and the (admittedly questionable) refugee and asylee numbers listed above, the odds that any given refugee or asylee is involved in terrorist activities is still pretty low: One refugee/asyee out of every 28,902 will be involved in terrorist activities (or about 0.0035% of refugees/asylees).


    The Senators were only able to come up with their figures based on publicly-available sources (like news articles), since DHS did not release immigration information about the 580 individuals convicted of terrorist-related activities, or the 131 people "implicated" in such activities. Whether DHS's failure to release this information is prosaic (perhaps confidentiality or technical issues pose a challenge) or nefarious, we do not know, since apparently, the agency has not responded to the Senators' requests. The fact is, Senators Sessions and Cruz are correct: We need more data about the people who are entering our country, and we need to know whether refugees and asylees (and others) are committing crimes or becoming involved with terrorism. Not only will this better allow us to make appropriate policy decisions, but it will also help prevent the type of fake news that is currently filling—and exploiting—the information gap.


    But of course, the situation is more complex than any statistics alone might show. Some people who become involved in terrorism are mentally ill individuals exploited by terrorists (or--sometimes--by over-zealous law-enforcement officers). In other cases, people providing support to a "terrorist" group overseas do not know that the group is involved in harmful activities, or they do not understand that the U.S government views the group as dangerous. Also, as I have discussed previously, the “material support” provisions of our anti-terrorism legislation are extremely broad, and so people who seem far removed from terrorit activities can get caught up by our overly-broad laws.


    Nevertheless, we need to know more about foreign-born individuals--including asylum seekers and refugees--who are implicated in terrorist-related activities, and the basic starting point for any such analysis is the statistical data about who is coming here, how they are getting here, and whether they are accused or convicted of crimes or terrorist-related activities.


    Assuming we do get some accurate data, the question then becomes, How do we evaluate such information? How do we balance concrete examples of non-citizens engaged in criminal or terrorist activities, on the one hand, with the benefits of our refugee program, on the other?


    And by the way, despite what some anti-refugee advocates might argue, our refugee and asylum programs provide concrete benefits: They establish us as a world leader in the humanitarian realm, they demonstrate our fealty to those who have stood with us and who support our values (and thus encourage others to continue standing with us), they provide our country with diverse and energetic new residents who are grateful for our generosity and who contribute to our society. These programs also represent an expression of who we are as a people. As I have frequently argued, for us to abandon these programs--and the humanitarian ideals that they represent--due to our fear of terrorism is a victory for the terrorists.


    But we also need to balance our humanitarian policies and our national security. We need to better understand the issues--so that the public can be more well-informed and so policy makers have the information they need to make good decisions. I hope the new Administration will shine some light on these issues, so that any changes to our refugee and asylum policies are based on accurate information, and not on conjecture or fear.

    Originally posted on the Asylumist: www.Asylumist.com
  2. Asylum for DACA Recipients and Dreamers

    In 2012, President Obama's Administration created the Deferred Action for Childhood Arrivals--or DACA--program, which deferred removal and granted work permits to certain aliens who came to the United States prior to their 16th birthdays, who have no serious criminal issues, and who meet certain educational or military-service requirements. As usual, the statistics from the government are hard to understand, but it seems that about 730,000 individuals have benefited from the DACA program.
    Deporting her is a sure way to make America great again. As long as we don't get sick...
    But now that Mr. Obama is "out" and Donald Trump is "in", many DACA recipients fear that they will lose their tenuous status, and possibly face deportation. This concern is understandable. Mr. Trump has promised to "immediately terminate" the program, and since DACA beneficiaries have submitted their biographic information to USCIS, the government can more easily track them down and try to deport them. Also threatened with deportation are "Dreamers" - aliens who would benefit from the DREAM Act, which would have provided relief to a broader range of non-citizens than DACA, had it become law.

    So are there any defenses to deportation for DACA beneficiaries and Dreamers? What can these people do now to start protecting themselves?


    Assuming the new President ends the DACA program (which can be done by executive action, without Congressional involvement), DACA recipients would have a number of defenses to deportation (though this could change if the President and Congress modify the immigration laws). My primary focus here is asylum, but before we get to that, there are other possible defenses that DACA beneficiaries might consider: Claims to U.S. citizenship, improperly issued/served Notices to Appear, Cancellation of Removal, Adjustment of Status based on a family relationship or a job, residency applications based on being a victim of a crime or human trafficking. In short, there are many possibilities, and if you currently have DACA, it is worth thinking about whether any of them apply to you. This might entail researching the issues yourself or--if you can afford it--talking with a lawyer (if you cannot afford a lawyer, there might be free services available to you).


    For many DACA recipients and Dreamers, I imagine that asylum will be the only viable option. To win asylum, an applicant must demonstrate that she faces a well-founded fear of persecution on account of her race, religion, nationality, political opinion or particular social group. This means that in order to win your case, you will need to show that someone wants to harm you for one of these reasons. If you fear return because your country is generally crime-ridden or war-torn, that is probably not enough to win an asylum case. You need to show a specific threat based on a protected ground (I've written in more detail about this issue here).


    Most of the "protected grounds" are pretty obvious. If someone in your country wants to harm you because they do not like your religion or race or political opinion, that is easy to understand. But what is a "particular social group"? The law defining particular social group or PSG is complex, and different courts have reached different conclusions about what constitutes a PSG. For purposes of this blog post, it is easier to give some examples of PSGs, and then if you think you might fall into one of these categories (or something similar), you can talk to a lawyer to further develop your case. Some common PSGs include members of a family or tribal group, LGBT individuals, women victims of FGM (female genital mutilation) or women who fear FGM, and people who are HIV positive. Other groups of people that some courts--but not others--have found to constitute a PSG include members of a profession (doctors, journalists, etc.), former police officers, former gang members, former U.S. embassy workers, street children, people with certain disabilities, people who face domestic violence, union members, witnesses/informants, tattooed youth, perceived wealthy individuals returning from abroad, and "Americanized" people. These last two PSG groups might be of particular interest to DACA recipients and Dreamers.


    Creative lawyers (and asylum applicants) are coming up with new PSGs all the time, but if you can fit your case into a group that is already recognized as a PSG, that certainly increases the likelihood that your case will succeed.


    To win asylum, you also need to show that someone (either the government or someone who the government is unable or unwilling to control) wants to "persecute" you on account of one of the protected grounds. You will be shocked to know that the term "persecution" is not clearly defined by the law, and different courts have come up with different--and inconsistent--definitions. Persecution is usually physical harm, but it could be mental harm or even economic harm. An aggregation of different harmful events can constitute persecution.


    In addition to all this, an asylum applicant must show that he filed for asylum within one year of entering the U.S. or that he meets an exception to this rule. I expect that this will be a particular issue for DACA recipients and Dreamers, since they have been here for years. If you have not filed within a year of entry and you do not meet an exception, then you are not eligible for asylum. You may still qualify for other relief, which is similar to asylum but not as good: Withholding of Removal and Torture Convention relief.


    There are some exceptions to the one-year rule that may apply to DACA recipients and Dreamers. If a person is lawfully present in the U.S., that is considered an exception to the rule (technically, it is considered "exceptional circumstances" that excuses the missed deadline). For example, if a person is on a student visa for four years, and then she applies for asylum while still in lawful status, she meets an exception and is eligible for asylum. People with DACA could argue that DACA status constitutes an exception to the one-year rule. Whether or not this will work, I am not sure, but it is worth exploring. Another common exception is "legal disability," which includes being a minor. So if you file for asylum before you turn 18 years old, you will meet an exception to the one-year rule.


    Another exception to the one-year rule is "changed circumstances". Maybe it was safe for you in your country, but then something changed, and now it is unsafe. If that happens, you need to file within a "reasonable time" after the change--hopefully, within a month or two. If you wait too long after the change, you will not meet an exception to the one-year rule.


    For DACA recipients and Dreamers, asylum may be the last-ditch effort to remain in the U.S., and it may be difficult to win such a case. However, there are some advantages to seeking asylum. First, because it is written into the law (based on a treaty signed by the United States in 1968), Mr. Trump cannot eliminate asylum without the cooperation of Congress, and such a radical step seems unlikely. So asylum should remain an option for DACA beneficiaries and Dreamers. Second, 150 days after you file for asylum, you can file for a work permit. The Trump Administration could change this provision without Congressional action, but as the law now stands, asylum applicants can get work permits. Finally, the asylum process is slow. Normally, asylum delays are horrible for applicants (and for their attorneys), but if you are trying to delay your deportation until a new Administration comes along, asylum might do the trick. The process can take years, and if Mr. Trump follows through on his promises to deport even more people, the system may further slow down.


    Whether the new Administration will move to end DACA and deport Dreamers, we do not yet know. If the goal is really to deport as many "illegals" as possible, I believe that starting with DACA recipients is a strategic mistake: Such people are well-integrated into our society and starting with them will create fierce resistance. It would be easier to step up border enforcement, block refugees from entering, and broaden detention for criminal aliens. But my suspicion is that Mr. Trump is more concerned with the appearance of progress than with actual progress. If so, DACA recipients are an easy target--the government can harm them merely by taking away their status and work permits--and this will demonstrate visible progress to those who oppose immigrants. On the other hand, there are some positive signs coming from Congress. Either way, DACA beneficiaries cannot rely on hope, they should start planning now, so they are ready for whatever the new Administration has in store.

    Originally posted on the Asylumist: www.Asylumist.com
  3. HIGH-SKILLED WORKER REGULATION SUMMARY

    by , 12-15-2016 at 08:44 AM (Chris Musillo on Nurse and Allied Health Immigration)
    The USCIS recently finalized a new regulation to benefit high-skilled workers which will go into effect on January 17, 2017 – just three days before President-Elect Trump is inaugurated. The regulation was purposely timed to precede the new Trump administration. Opinions are mixed on whether the new regulation will stay in effect, or will be immediately revoked or rewritten when President Trump takes office.

    Some important highlights of the regulation are:


    • New 60 Day Grace Period. H-1Bs, L-1s, Es, TNs, and Os and their dependents will have a 60 day grace period in the event that the principal visa status holder loses his/her job. The grace period will allow these nonimmigrant visa holders to remain in the US and find a new job. The 60-day grace period may be provided to an individual only once per authorized validity period. An individual may be provided other such grace periods if he or she receives a new authorized validity period in one of the eligible nonimmigrant classifications.

    • Flexibility for H-1B licensed occupations. The USCIS will approve H-1B petitions for a validity period of up to one year where the applicant can prove that the H-1B employee does not have a US professional license due to the State’s requirement of a social security number, US employment authorization, or a similar technical requirement. This has been USCIS policy, but is now officially law. Unfortunately, the USCIS still has much discretion in this area to interpret local state licensure law.




    • EAD extensions. An EAD will automatically be extended for 180 days, as long as an EAD extension was filed before the expiration of the current EAD. This will provide needed certainty of continued work authorization.



    • Cap-Exempt Employers. The new rule reworks the H-1B cap-exempt employers rule for employers who are affiliated with an institute of higher education in two ways.


    o DHS is replacing the term ‘‘primary purpose’’ with ‘‘fundamental activity.” This is a less-restrictive standard than the current “primary purpose” rule. Going forward, ‘‘a fundamental activity’’ of the nonprofit entity must be to directly contribute to the research or education mission of the institution of higher education.

    o A non-profit that has a formal written agreement that establishes an “active working relationship” with a University, no longer has to have shared ownership and control. This is also a lesser standard than at present.


    • Retention of I-140 in almost all situations. This new rule clarifies existing USCIS policy that allows Beneficiaries to generally retain their I-140s even if the prior employer revokes the I-140. This will allow these Beneficiaries to (i) recapture the I-140 priority date in future green card applications and (ii) take advantage of spousal work authorization rules without fear of an underlying I-140 revocation.


    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at
    www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.

    Updated 01-07-2017 at 01:24 PM by CMusillo

  4. Deportation Cases Scheduled as far out as 2023 and 2024

    by , 12-14-2016 at 07:49 AM (Matthew Kolken on Deportation And Removal)
    Via Fox 5's Ronica Cleary:

    "A story first reported on FOX 5 found that there were a shocking number of individuals waiting for immigration hearings in Arlington Immigration Court. We found there were thousands of hearings waiting in the system, with 380 of them scheduled as far out as 2023 and 2024."

    Updated 12-16-2016 at 09:21 AM by MKolken

  5. OCAHO Substantially Reduces Employer’s Penalties

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In new ALJ James McHenry’s first decision, U.S. v. International Packaging, Inc., 12 OCAHO no. 1275a (Nov. 2016), the Office of Chief Administrative Hearing Officer (OCAHO) reduced the penalties proposed by Immigration & Customs Enforcement (ICE) from $88,825 to $38,050 for the 94 Form I-9 violations committed by International Packaging, Inc. (IPI).

    Notice of Inspection and NIF

    IPI was served with a Notice of Inspection and subpoena on February 17, 2011. On February 23, 2011, IPI produced some but not all its I-9 forms, inadvertently failing to produce 21 Form I-9s. ICE states it did not even learn of the existence of more employees until it examined IPI’s payroll records. After ICE requested nine of the 21 Form I-9s – all current employees – IPI complied.

    On August 16, 2011, ICE issued a Notice of Intent to Fine (NIF). ICE alleged in Count I that IPI failed to produce 21 Form I-9s, and in Count II alleged that on 73 occasions, the company failed to enter certain data, such as document title, identification number or expiration date, in Lists A, B or C of Section 2. IPI failed to present any documentation attached to the I-9 forms. Thus, ICE asserts these are substantive errors, not technical ones, citing the Virtue Memorandum. IPI asserts that the supporting documentation was requested in a cover letter, not a subpoena; thus, ICE had “insufficient process” to allege these violations where the documentation, if presented, would have established these errors were technical.

    For the 94 Form I-9 violations, ICE asserted a baseline penalty of $935 with a 5% mitigating factor due to IPI’s small size and a 5% aggravating factor for the seriousness of the offenses; the remaining three statutory factors were treated by ICE as neutral.

    Earlier OCAHO Decision

    In an earlier decision, U.S. v. International Packaging, Inc., 12 OCAHO no. 1275 (Apr. 2016), OCAHO sided with ICE and found nothing in the Virtue Memorandum requires an employer to copy and provide documents; rather, it is simply an affirmative defense. OCAHO found there was no conflict between 8 C.F.R. § 1324a.(b)(3) and the Virtue Memorandum. In this case, the employer did not provide the supporting documentation with the I-9 forms to ICE; therefore, the errors in Lists A, B and C were substantive. Furthermore, OCAHO found ICE is not required to ask for any supporting documentation; it is up to the employer to provide such and raise as an affirmative defense.

    IPI’s Defenses

    IPI asserted it demonstrated good faith before, during and after ICE’s audit. It specifically referenced IPI’s consultation with an immigration attorney several years before the audit on how to ensure compliance with the law. OCAHO found this reliance may have inadvertently caused subsequent confusion in ICE’s investigation – by failure to supply the backup supporting documentation for the I-9 Forms, which contributed to some of the violations. However, such reliance did demonstrate good-faith, which warrants some mitigation of the penalty.

    OCAHO’s Decision

    Furthermore, IPI asserted through affidavits and financial documents that it could not afford to pay the proposed penalties and remain in business. Despite unclear financial records regarding the company’s financial condition and conclusory testimony, ALJ McHenry took the company’s finances into account because calculation of penalties is to be sufficiently meaningful for future compliance, not to force an employer out of business. Finally, ALJ McHenry cited IPI’s small size and the public policy of leniency toward small businesses.

    Based upon these factors, OCAHO determined the penalty for failure to prepare and/or present I-9 Forms should be set at $500 per violation, rather than $935. As for the 73 substantive paperwork violations, OCAHO assessed those violations at $350 each.

    Takeaway

    IPI’s willingness to litigate the matter was advantageous from a financial perspective as it reduced the penalties by $50,000 or over 50%. This was despite losing on the initial legal issue of not being required to produce supporting documentation because it was not subpoenaed.
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