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  1. ICE Closes Deportation Case Against Same Sex Spouse

    by , 08-22-2011 at 10:11 AM (Greg Siskind on Immigration Law and Policy)
    Some good news from Stop the Deportations - The DOMA Project reporting on a victory by my friend Lavi Soloway:

    Today, the government publicly announced it has dropped the deportation proceedings that threatened to tear apart Alex Benshimol and Douglas Gentry -- a married, gay, binational couple in California -- marking the second time in which Immigration and Customs Enforcement (ICE) has agreed to close a deportation case involving a married, same-sex couple.
    This victory for Benshimol and Gentry of Cathedral City, California -- the first same-sex deportation case to close following the June 17 prosecutorial discretion guidelines issued by ICE Director John Morton -- ends their personal nightmare and signifies a hopeful future for thousands of other same-sex binational couples facing deportation. After appearing before San Francisco Immigration Judge Marilyn Teeter for their deportation hearing on July 13, Judge Teeter instructed the government to respond within 60 days to a lengthy and detailed request for administrative closure from the couple's attorney, Lavi Soloway.
    Judge Teeter scheduled the next hearing for September 2013, postponing deportation proceedings for more than two years in the event that the government did not agree to close the case. On August 11, however, Judge Teeter received and granted the government's Motion to Administratively Close deportation proceedings against Benshimol.
    On August 18, Janet Napolitano, Secretary of Homeland Security, announced a case-by-case review of all current and future deportation cases - another milestone in the fight to repeal DOMA.
    "We are cautiously optimistic after the announcement this week by Secretary Napolitano that all 300,000 pending deportation cases will be reviewed for possible closure, including those impacting LGBT families," says Soloway. "However, we do not yet know the mechanics of that process, nor how long it will take for the government working group to carry out its mission. In the meantime, we must continue to fight for each couple and for an end to DOMA deportations across the board."
  2. AILA Report: Evidence that ICE and CBP approve of racial profiling

    by , 08-22-2011 at 07:54 AM (Matthew Kolken on Deportation And Removal)
    Last week the American Immigration Lawyers Association (AILA) released a report entitled "Immigration Enforcement Off Target -  Minor Offenses with Major Consequences"  that examines the Secure Communities program.  The report was written by Alexsa Alonzo, Associate Director of Advocacy; Kristin Macleod-Ball, Legal Intern; Greg Chen, Director of Advocacy; and Su Kim, Advocacy Associate.  
    The report reveals what I have suspected for quite some time now: racial profiling is a regular tool of local law enforcement agencies (LLEA) in the apprehension of the undocumented population, and ICE and CBP approve, if not engage in such methods.
    Here is an excerpt:

    Publicly, DHS has stated that racial profiling should play no role in immigration enforcement. Secretary Napolitano has referred to racial profiling as "illegal" and "repugnant to the law." ICE's written policy states that "[r]acial profiling is simply not something that will be tolerated." Despite these pronouncements, ICE and CBP initiated removal proceedings in cases where there was strong evidence suggesting the presence of racial profiling by LLEAs. By pursuing these kinds of cases, ICE and CBP signal tacit approval of the discriminatory and questionable practices that brought the individuals to DHS attention. DHS must send a clear and strong signal--one that goes beyond policy pronouncements--that racial profiling and other civil rights abuses by police will not be tolerated. Towards that end, DHS must stop accepting cases referred from jurisdictions under investigation by the Department of Justice for racial profiling.  DHS must also proactively review its programs and practices to identify those that might inadvertently lead to racial profiling and put in place safeguards to protect against this potential.  

    Click here to read the full report.
  3. New Deportation Review Policy is merely a Baby Step

    by , 08-22-2011 at 07:19 AM (Matthew Kolken on Deportation And Removal)
    I just read a great editorial on that questions the viability of the administration's new deportation review policy. It puts things in proper perspective:

    So the questions remain.
    Who is going to be carrying out this new case-by-case review? Is it going to be the ICE agents whose union doesn't want to use its discretionary power and calls this a  "back door amnesty?" What is their incentive to review cases fairly?
    And when the administration says that they will focus on "criminals", what do they mean? Isn't immigration policy the same set of laws that famously calls people "aggravated felons" for things that are neither aggravated nor felonies? Isn't ICE the same agency that deported thousands of suspected "terrorists" after 9/11 that were never really terrorists? And don't ICE's "worst of the worst" categories include a Baptist pastor with a 16 year old conviction from when he was homeless, a Gulf War Veteran with Post Traumatic Stress Disorder who was arrested for marijuana possession after his wife died, and a 36-year-old youth community worker who helps young people stay away from the mistakes he made as a 16 year old? If the Administration is really turning over a new leaf, does that mean ICE is turning over a new leaf?
    And then there is what the Obama Administration still refuses to do. It still refuses to create enforceable standards for how it treats immigrants in detention so that they don't die in custody. The administration still refuses to reign in the deputized powers it gives to bad sheriffs with long lists of civil rights complaints like the real-life Boss-Hog, Joe Arpaio. The Administration still refuses to call of its "creepy" Secure Communities program, which is looking more and more like the first step of a science fiction-like national database that may one day include everyone.

    I agree with the author, the administration is taking the first baby step towards a more humane and just deportation policy.  That being said, we are a long, long way from seeing any real reform.
    At least it is something to build on.
  4. Asylum for Women Who Can’t Get Abortions?

    In Nicaragua, abortions are illegal under all circumstances.* That includes cases of rape and incest, and when the life or health of the pregnant woman is at risk.* Women and girls who have abortions are subject to long terms of imprisonment.* Health professionals who perform abortions also face stiff criminal penalties.* Of course, with abortion (as with any remotely political subject these days), there are strong opinions on all sides of the issue, and little agreement on the facts.
    Amnesty International issued a report documenting the opposition to the law from Nicaraguan health care professionals, and documenting some unintended consequences of the law-certain treatments are now less available to pregnant women because the treatment might put the fetus at risk.* Amnesty also cites the case of a pregnant woman with cancer who could not get treatment because of the law.* On the other hand, a pro-life website called Life Site News claims that the maternal mortality rate in Nicaragua has dropped by almost 30% since the law went into effect (though I have not seen any evidence that the law actually caused the drop in mortality rates).

    Apparently, Nicaragua is not in the running this year.

    While I personally think this law is a bad idea, the morality or efficacy of the law is not my concern here.* Rather, I wonder whether women who are prevented from terminating their pregnancies, or health care professionals who perform abortions, might be eligible for asylum in the United States.
    Nicaraguan Women
    To obtain asylum, a woman would need to show a well-founded fear of persecution based on a protected ground.* The protected ground that might apply here is "particular social group."* I can think of two possible "particular social groups:" (1) women who have had an abortion, and who now face jail time, and (2) women who are pregnant and face risks to their life or health (physical or mental health) because they are not permitted to abort their pregnancies.
    While the first category seems to me a cognizable social group, such women would have a hard time demonstrating that the prison time they face rises to the level of "persecution," as that term is defined by case law.* I've actually spent some time in a Nicaraguan prison (long story), and what I saw would likely not qualify as persecution.* Of course, I am no expert, and if prison conditions are bad enough, they may be considered persecution. See, e.g., Phommasoukha v. Gonzales, 408 F.3d 1011, 1015 (8th Cir. 2005).
    The second category-pregnant women who face health problems because they are unable to obtain abortions-is more interesting.* Again, this is probably a cognizable particular social group.* The harm, which includes physical and mental harm, and even the possibility of death, could, I think, qualify as persecution.* The Board of Immigration Appeals has held that severe economic deprivation, including deprivation of liberty, food, housing, and other essentials of life may constitute persecution. See Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007).* Health care is certainly an "essential of life," and if a woman is denied the care she needs, she can demonstrate a possibility of persecution.
    So it seems to me that women in the second category-and perhaps also in the first-would qualify for asylum under the Immigration and Nationality Act.
    Nicaraguan Health Care Workers
    The law also provides for incarceration of health care workers who perform abortions, even so-called therapeutic abortions, which are done to protect the life or health of the mother.* As I discussed above, I doubt that prison time in Nicaragua would be considered "persecution," so the health care workers would have difficulty establishing this element of an asylum claim.* Even assuming they could demonstrate persecution, I think they would have a hard time showing that the persecution is based on a protected ground.
    One possible protected ground is political opinion, i.e., that women should be allowed to have abortions.* However, the Nicaraguan government does not arrest health care workers (or anyone else) on account of their opinion that women should be permitted to obtain abortions; the government arrests people who actually perform abortions.
    The other possible protected ground is particular social group-health care workers who have performed abortions.* The problem here is that the health care workers are seeking classification as a particular social group based on the criminal act that causes them to fear persecution.* In Bastanipour v. INS, 980 F.3d 1129 (7th Cir. 1992), the Seventh Circuit held:
    Whatever its precise scope, the term "particular social groups" surely was not intended for the protection of members of the criminal class... merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other....* We suppose there might be an exception for some class of minor or technical offenders... who were singled out for savage punishment in their native land. *
    Bastanipour does not completely close the door on the Nicaraguan health care workers, but it certainly presents a hurdle for them to demonstrate that they constitute a "particular social group."
    So far, I do not know of any United States asylum cases arising from Nicaragua's* abortion law (or similar abortion laws in other countries), but I would not be surprised if we see some soon.* If you are interested to learn more about this topic, check out Rights Undone, a blog about the "struggle to repeal the ban on life-saving abortions in Nicaragua."
    Originally posted on the Asylumist:
  5. Wadhwa: Skilled Worker Visa Reform Could Boost Housing Market

    by , 08-20-2011 at 07:49 PM (Greg Siskind on Immigration Law and Policy)
    Here's the gist of his plan:

    Our country needs to expand the numbers of EB-1, EB-2, and EB-3 visas available, remove the per-country limits, and tie the immediate issuance of these visas to the purchase of a home. I estimate that at the least 20% of qualified immigrants will take the government up on this offer. That amounts to more than 100,000 houses being sold within a short period of time--a roughly $25 billion potential boost to the anemic housing market. Plus these workers will furnish their new houses, buy new appliances, and buy new cars. That amounts to billions more in economic stimulus. 
    Unlike the bailouts and subsidies that our leaders have been debating, this will cost taxpayers practically nothing. It will also reduce the outflow of talent and allow these ambitious immigrants to start new businesses that create jobs. With the economy in the doldrums, lingering unemployment, and a political stalemate on how to deal with the nation's problems, we need some fresh, out-of-the-box thinking. A program like what I am proposing will appeal to both sides of the political spectrum and give our economy a badly needed boost.
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