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  1. Obama's New Executive Rule - What does it mean for the power of the Presidency? By Danielle Beach-Oswald


     
    Although his record on deportation might have led to a record number of deportations last year, President Obama is at least making  a paltry attempt worthy of some praise in trying to help those illegal immigrants who are the immediate relative of a US citizen receive their green card.  The New York Times announced on January 6 that the administration is trying to implement a new regulation that will allow illegal immigrants who are the immediate relatives of US Citizens to receive their green cards abroad without the 3 or 10 year bar of re-entering the country apply to them.  The 3 or 10 year bar has been in place because of the illegal presence of these individuals in the United States.  Previously, the only relief for such a bar was the 212i waiver of inadmissibility.  However, these waivers are often difficult to adjudicate as they require a case of "extreme hardship" to the US Citizen Immediate relative which is not only a very high standard but also can take extended periods of time over a year.  This new proposal would allow these illegal immigrants to receive the waiver from USCIS prior to departing to their respective home countries to receive their green cards. 
    Obviously, this is just a proposal and even if it were to pass would affect a small group of people as many are already out of the country and those here even if the waiver is granted would have no assurance of return.   This proposal of 240B (d)  also only applies for those who had left the country after an illegal stay in the U.S. of over 180 days or 365 days.
    "Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the United States for consular processing of their immigrant visa applications. An alien would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the alien as an ''immediate relative'' for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the alien's U.S. citizen spouse or parent ''qualifying relative.'' The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the alien relative's behalf." - Federal Register /Vol. 77, No. 5 /Monday, January 9, 2012
    This proposed change does not come without controversy.  Representative Lamar Smith, Chairman of the House Judiciary Committee,an d well-known for his harsh stance on immigration called this an abuse of administrative powers.  However, immigration lawyers, immigration advocacy groups, and Latino organizations are hailing this as a step in the right direction.
    This measure is certainly a step in the right direction as it will provide both shorter waiting times and more transparency in the process for illegal immigrants to receive their green card.  It will also ease the process for the Department of State and USCIS with 212(i) or I-212 (permissions to re-enter)  waivers as there will be fewer to adjudicate. 
    Although I do not agree with Representative Smith's statements, there are issues of administrative law that come into play here that cannot be ignored.  How much executive power should the President have over immigration regulation?  Although this new regulation is viewed favorably by immigration advocacy groups and attorneys, it could easily be repealed by a later president, or perhaps even this President.  Such a regulation is only temporary and may only provide a "quick fix."  Additionally, it also opens a Pandora box for this President and later Presidents  to try institute immigration regulations without   having the necessary research and testimony on Capitol Hill to truly understand the ramifications of such a decision.  While the President is technically allowed to implement such a regulation without the authorization of Congress, it  also still is possible for Congress to intervene and say that President Obama cannot pass such a measure.  It would be a travesty if Representative Smith or others on the Hill reversed this measure simply for political motives.
    On the broad perspective this executive rule  is much like using a fly swatter to  eliminate a swarm of bees on the immigration issue.
    Executive Rule making has always come with some controversy.  This is one area however that goes to the root of our immigration system and seeks to preserve family unity on a very limited scope.   Therefore, this is an executive rule that Lamar Smith shouldn't seek to oppose but rather incorporate into congressional legislation.  But more importantly, it points to the broader issue - how much direct control should the president have over immigration?
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  2. Jan 18 - Visualizing Migration Flows

    Comment: Visualizing Migration Flows - Here is an interesting way of visualizing migration flows throughout the world. To find out the sources of migration to a country, find the country on the right hand side bar and click on it. For example, when you select flows to Australia you can see that the top five countries Australia receives immigration from are United Kingdom, New Zealand, China, Italy and India. You can also click the bar on the left hand side to find migration flows out of a country. Top destinations for immigrants out of United States are Mexico, China, Philippines, India and Puerto Rico. Please let us know your thoughts by writing to us at editor@ilw.com.




    Article: The Planning Process: Navigation vs.White Water Rafting by Ed Poll


    Article: As Deportations Rise To Record Levels, Most Latinos Oppose Obama's Policy by Mark Hugo Lopez, Ana Gonzalez-Barrera and Seth Motel


    Bloggings: Obama Administration Employs New Strategy To Combat Illegal Border Crossing by Matthew Kolken


    Bloggings: The Problem With Immigration Lawyers And How To Fix It, Part 3: Notarios by Jason Dzubow




    News: ICE Releases October 2010 Memo Presenting Legal Arguments For Making Secure Communities Mandatory




    News: USCIS Releases Interim Memo For Comment On Role Of Private Attorneys



    News: USCIS Announces 58 Countries Whose Nationals Are Eligible For H-2A And H-2B Participation




    News: USCIS Releases Transcript Of Press Conference On Proposed Changing Of Process For Certain Waivers On Unlawful Presence





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    Headline: you can share professional announcements, free events or more (up to 100-words at no charge), email: editor@ilw.com





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    Headline: Why Romney's stance on immigration could cost him the White House immigration http://t.co/JcUIN4ni





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    Letters of the Week: Jim Roberts, Richard Y, Joe Whalen , Roger Algase, Donald Brenda Miller
















    ComingsNGoings: Immigration EventWashington, DC, Thursday, January 26, 2:00 pm (EST), The USCIS Asylum Division is pleased to invite you to a quarterly stakeholder meeting regarding asylum operations. If you wish to attend, please respond to Public.Engagement@uscis.dhs.gov "Asylum Quarterly" in the subject line.



    Readers can share professional announcements (up to 100-words at no charge), email: editor@ilw.com.







    An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Copyright 1995-2012 American Immigration LLC, ILW.COM. Send correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium. The views expressed in letters and articles do not necessarily represent the views of ILW.COM.






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  3. Where does the Republican Front Runner stand on Immigration? By Danielle Beach-Oswald


    With victories in both Iowa and New Hampshire, many political pundits are predicting that Mitt Romney will receive the Republican nomination for the Presidency.  Although Immigration is likely to be a hot topic and has been highlighted by many of Romney's GOP rivals including Texas Governor Perry, Romney has largely stayed silent on the issue.  This is changing with the upcoming South Carolina primary.
     Mitt Romney is now making immigration a central issue as his campaign moves to South Carolina.  Because South Carolina is being sued by the federal government for its crackdown on illegal immigrants, immigration remains a hot button issue in the state.  Therefore, Mitt Romney has no choice but to highlight the issue.
     
    Kris Kobach, the author of Arizona's controversial immigration bill, has recently endorsed Romney and stated that Romney "would be the candidate who will finally secure the borders and put a stop to the magnets, like in-state tuition, that encourage illegal aliens to remain in our country unlawfully." Given Governor Perry's history of allowing illegal immigrants in Texas to receive in-state tuition, this is a clear swipe at his Romney's rival.  Romney has repeatedly stated that he would veto the DREAM Act and also require any illegal immigrant who eventually obtain a green card to be forced to return to their home countries to receive their green cards at the respective US Embassy.  This shows no knowledge of the 10 and 3 year bar problems, along with the fact that families could be separated for years.   Romney however has tried to pander to Hispanic voters by touting his ties to Latin America.  At a rally last week, Romney mentioned how his great-grandfather brought the family to Mexico in 1885.  Romney also mentioned how his father was born in Mexico and immigrated to the United States when he was five years old. 
     
    Romney's proposals may lead to some problems in Florida.  As the GOP continues to try to court the Latino vote, his anti-immigrant stance is likely to lose him votes in heavily immigrant areas such as Miami-Dade county.  Hispanic voters in the GOP primary may be attracted to Gingrich's plan.  Gingrich seeks to create a proposal where by local panels would decide if illegal immigrants who have been in the country for over 25 years should be allowed to stay.  Gingrich has also indicated a friendly immigration approach for business employees and entrepreneurs to prevent the brain drain of bright immigrants in our schools.  Like Bush, he would like to set up a guest worker program and increase the number of certain employment visas.
     
    Meanwhile, the Obama administration has been instituting a new program to train ICE officers how to determine which immigrants are deemed serious enough to be put in removal proceedings. However, ICE has responded by merely stepping up the deportation of overstays and non-criminal final orders cases.   Some believe that Obama is now trying to court the Latino vote by only targeting high profile illegal immigrants.  However, it's hard to forget that the administration did deport over 400,000 illegal immigrants in 2011 which is by far the highest statistic of any president.
     Although questions remain as to where candidates stand on the issue of immigration, at the very least this issue is gaining momentum in the 2012 election.  There may be some flip-flopping, but flip-flopping discussion on immigration is better than no discussion at all. 
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  4. The DHS Inspector General Report on Fraud Detection at USCIS: Pious Immigration Baloney

    by , 01-17-2012 at 06:17 AM (Angelo Paparelli on Dysfunctional Government)
    The historian said to the venture capitalist, "Let's drop the pious baloney," as each sought the highest office in the land. No, this post is not the set-up to a joke, except perhaps a nod to the risible circular firing squad that the GOP presidential candidates have formed. And it's not about a sliced and packaged meat sausage, more accurately termed "bologna," a carnal creation of indeterminate provenance defined by federal law.  Nor is it about "holy baloney," a line from Haunted Honeymoon, a long-forgotten 1986 film.Rather, the reverential  "baloney" of which I blog is that unhealthful mixture concocted behind closed doors in legislative and administrative abatoirs, the one that comes to mind with the unverified quote attributed to Bismarck ("If you like laws and sausages, you should never watch either one being made").In particular, this post is about the multiple pages of sanctimonious hogwash (summarized here), served up last week by the Homeland Security Department's Office of Inspector General ("The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers"). This is apparently the same report as the draft version selectively excerpted for sensational effect by The Daily, critiqued last week on this blog ("Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders"). In essence, the IG reports that:"Immigration law is complex, and USCIS administers benefits of great value." "Benefit fraud detection is challenging and has always created difficulties for federal agencies. . . . Threats to the immigration benefit system have not abated. In the 2012 DHS Appropriations Bill, the House of Representatives described recent attempted terrorist attacks on the United States as 'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes.'"Immigration adjudicators, now dubbed "immigration service officers" (ISOs), and immigration fraud detection officers (IOs) don't have sufficient opportunity to exchange views and work together.  They should rub elbows more often, and ISOs need more fraud-detection training.Half of the annual performance evaluation of ISOs is based on the adjudicator's demonstrated ability to detect and report suspected immigration fraud and national-security threats (the other half is based on the quality of adjudications).  Still, pressure (whether self-imposed or from USCIS) to produce decisions in volume persists and adversely affects fraud detection and adjudication quality.USCIS guidance on when to request additional evidence is confusing.Some ISOs perceive that USCIS supervisors and managers interfere with or overrule their decisions or reassign cases to more approving adjudicators.There must be validity to these ISO concerns because the USCIS Administrative Appeals Office (AAO) "frequently supports the ISO's decision on appeal," as the AAO did in a case involving a former USCIS Chief Counsel who intervened on an O-1 extraordinary-ability-alien petition submitted by the University of Arizona. The IG is concerned "with those cases where [Office of USCIS Chief Counsel (OCC)] leaders may create pressure on the adjudications process so that improper approvals are or could be made." Thus, the IG believes that "[s]ome limitation on OCC’s ability to affect the adjudications process is necessary."The IG also worries that outside immigration lawyers may improperly influence USCIS management to pressure ISOs into approving undeserving cases or those where fraud is suspected. "ISOs and managers in some USCIS offices said that efforts to undercut some denial decisions waste USCIS resources and send an implicit message to approve petitions and eliminate outside complaints. We were informed that special treatment remains prevalent. . . . An ISO said that the American Immigration Lawyers Association 'owns' USCIS. USCIS is aware of this perception . . ." "USCIS has yet to find an effective balance between its interaction with the public, especially immigration attorneys, and the need to protect the integrity of the adjudications process. This is a dilemma, because many people have an interest in USCIS decisions, and public comment is vital to the regulatory process. USCIS should strive to recognize the differences between legitimate public opinions about its processes and requests to change individual case decisions. Those who gain a special review of their case essentially receive a second adjudication without having to file an appeal."The current standard of proof to establish immigration-benefits eligibility -- a preponderance of the evidence -- does not sufficiently achieve the DHS mission of preventing fraud. "To further protect the immigration system, Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions. . . . A relatively low standard of proof does not account for all societal interests involved in the issuance of immigration benefits. "   Just like most baloney, the IG's report is encased in a superficial shell, a shiny plastic wrap that presents its contents in the most favorable light. To understand the redolent bolognese features of the IG's report, however, readers should first recall key components from the tool kit for spotting falsehood offered by the late Carl Sagan in "The Fine Art of Baloney Detection":  Wherever possible there must be independent confirmation of the facts Encourage substantive debate on the evidence by knowledgeable proponents of all points of view. Arguments from authority carry little weight.Spin more than one hypothesis - don't simply run with the first idea that caught your fancy. Try not to get overly attached to a hypothesis just because it's yours. Quantify, wherever possible. The IG report fails on all of Sagan's points. It begins with a flawed premise, namely, that Congress (other than merely the instigator of the report, Sen. Charles Grassley) is very worried about lapses at USCIS in detecting fraud.  Rather the IG falsely premises the supposed Congressional concern about anti-fraud failings within USCIS by citing to a House report that referred solely to failures at U.S. consular posts and embassies abroad.  Here is the full quote from House Report 112-091 pp. 50-51 cited by the IG in referring to "'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes'":The Committee provides $32,489,000 for the ICE Visa Security Program, an increase of $3,000,000 above the amount requested. This program places ICE investigators overseas to review visa applications from high-risk countries and populations and to uncover ties to extremist or criminal groups. Recent attempted terrorist attacks on the United States have highlighted the ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes. The Committee believes that expanding the program to additional countries will reduce fraud and security risks in the issuance of visas and thereby reduce terrorist travel to the United States and international criminal activity. The Committee directs ICE to provide a classified briefing no later than November 1, 2011, on how it will utilize these additional funds to expand the program. (Bolding added.)Clearly, the House was worried about the Underwear Bomber and other applicants abroad seeking U.S. visas, and the IG has been caught with its pants down.The IG also erred when it extrapolated from a very small sample of USCIS employees 147 managers and staff, and received 256 responses to an online survey.  As AILA President Eleanor Pelta has noted:[This is a] total of 403 employees out of an 18,000 person workforce, or about 2 percent. Of that two percent, 63 individuals expressed a concern about pressure to approve cases. That is fewer than 25% of the individuals who responded to the online survey, and .03% of the total population of individuals who process applications for benefits for USCIS. I’m not a statistics expert, of course, but to my untrained eye this just doesn’t seem to be a valid sample size from which one could draw any useful conclusions whatsoever. To paraphrase something my mother might say, “From this you can make a report?”Aside from problems with the small sample size, the survey questionnaire was drafted in a manner that made it impossible to draw meaningful conclusions.  It poses compound questions that conflate legal ineligibility for an immigration benefit with concerns over suspected fraud:Have you personally ever been asked by management or a supervisor to ignore established policy or pressured to approve applications for benefits that should have been denied based on the Adjudicator Field Manual, other USCIS policy documents, or fraud/ineligibility concerns? (Bolding added.)The IG readily acknowledged that inferences drawn from its findings may be unjustified:[The] testimonial evidence that our interviewees provided may not be views shared by other employees. Quotations from our interviews and survey responses reflect the views and personal experiences of individuals, not necessarily the experience of most ISOs across the United States. . . . General employee concerns about the impact of production pressure on the quality of an ISO’s decisions do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats. No ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats to the United States.Although the IG report was limited to internal sources, investigators apparently did not interview anyone at the USCIS Office of the Ombudsman, the DHS unit "created by Congress in the Homeland Security Act of 2002 to help individuals and employers who need to resolve a problem with [USCIS] and to make recommendations to fix systemic problems and improve the quality of services provided by USCIS (although the IG snagged data from various Ombudsman's reports).Also absent from the IG report is any recognition that the benefits made available by Congress  to eligible petitioners and applicants under the legal immigration system provide innumerable opportunities of tremendous value to America. The IG also seems oblivious to the harm that an adjudication system rewarded by a 50% focus on fraud will cause, having forgotten the wisdom of Abraham Maslow ("If the only tool you have is a hammer, you tend to see every problem as a nail.")In addition, the IG assumes without investigation or evidence that ISOs know the immigration law (even though few are lawyers), that the AAO knows the immigration law (even though not all are lawyers), that the training provided to ISOs on substantive immigration law is adequate, or that outside lawyers and other stakeholders who bring problems to the attention of USCIS management are improperly pressuring ISOs to reverse their decisions.  It may be that these efforts are nothing more than quality assurance opportunities, or teachable moments. To its credit, the leadership at USCIS challenged the IG report on several grounds.  The most significant challenge goes to the heart of the IG's ill-conceived concern about perceived pressure on ISOs:The manner in which USCIS handles or addresses a stakeholder inquiry or complaint depends on the nature and complexity of the incoming information. Some inquiries are very straightforward and can be addressed quickly with readily available information. However, other inquiries or complaints are more complex and may involve allegations of case mishandling, inconsistency in USCIS decisions, or violations of privacy and civil rights or civil liberties. In such instances, USCIS’s review of the incoming information could lead to a substantive review of any decision associated with the allegation. While the adjudicator involved may subjectively perceive a request to review a decision as putting undue pressure to ensure a certain outcome, such is not the intention of the request. Rather, USCIS’s responsibility is to ensure that the decision was correct and that the allegations are addressed. . . . USCIS does not perceive any pervasive or systemic problem along the lines implied . . . (Bolding added.)Surprisingly, however, the IG does not address the very specific areas of Sen. Grassley's concern when commissioning the report:Please specifically review whether the leadership changes and internal managerial rotations made at the California Service Center in July/August 2010 led to pressure to approve more cases. Please review communication between Service Center Operations leadership and California Service Center leadership to determine if there was support, or lack of support, for addressing fraud and what, if anything, changed in July/August 2010.While the IG report does review the action of the former USCIS Chief Counsel, without naming Roxana Bacon, it merely presumes, as noted, that she must have been wrong because the AAO affirmed the adjudicator in the University of Arizona O-1 case.  Roxie Bacon, however, offered me a very different and revealing analysis of that matter:The CSC [California Service Center] which had run autonomously for so long was especially alarmed with efforts to formulate and adopt centralized standards and true accountability/transparency for the adjudications. Nowhere are guidelines and adjudicatory tools more needed than in the complex, difficult and subjective review of "O" petitions. The leadership at CSC threw up every type of defense to do things as they chose. . . . The U of A case, the inquiry of which came from DHS' central office staff, was a great example of the perils of having non-experts try to assess a case that had so many elements needing a good tool kit. And of course as we know a spirited disagreement about what the tools could and should be is healthy . . . Roxie's assessment, notwithstanding the AAO's apparent affirmance of the O-1 denial, is supported by a federal appellate court ruling, not cited by the IG, which rebuked both the AAO and the California Service Center in determining the proper standards of determining eligibility in EB1-1 extraordinary-ability immigrant-visa analogue to the O-1 category. The Ninth Circuit Court of Appeals in Kazarian v. U.S. Citizenship and Immigration Services, Case No. 07-56774, filed September 4, 2009, amended March 4, 2010, recently determined that the CSC and the AAO “may not unilaterally impose a novel evidentiary requirement” without support in the Immigraation and Nationality Act or agency regulations, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). Love Korean Church (at footnote 7) extended this principle to requests for evidence:It is of course true that "[i]n appropriate cases, [USCIS] may request appropriate additional evidence relating to [the statutory] eligibility . . . of the [petitioning] organization, the alien, or the affiliated organization." 8 C.F.R. § 204.5(m)(3)(iv). This provision, however, does not authorize [USCIS] to impose, as it did here, additional threshold requirements that are "plainly erroneous or inconsistent with the regulation[s]." Bassiri [v. Xerox Corp.], 463 F.3d [927, 930] (9th Cir. 2006) (internal quotation marks and citation omitted).”If the IG really wants to be fully responsive to Sen. Grassley and can the baloney, it should reopen its investigation, conduct a statistically valid review, and solicit the observations of external stakeholders, for as Carl Sagan observed:Finding the occasional straw of truth awash in a great ocean of confusion and bamboozle requires intelligence, vigilance, dedication and courage. But if we don't practice these tough habits of thought, we cannot hope to solve the truly serious problems that face us -- and we risk becoming a nation of suckers, up for grabs by the next charlatan who comes along.We are a Nation of Immigrators, not a nation of suckers.
  5. Obama Administration Employs New Strategy to Combat Illegal Border Crossing

    by , 01-17-2012 at 05:47 AM (Matthew Kolken on Deportation And Removal)
    The Obama administration has introduced a new strategy for combating the flow of undocumented immigrants across our borders, and the strategy appears to be working.
    Fox News Latino reports that the Border Patrol office in Tucson, Arizona has created a "Consequence Delivery System" that ranks offenders on a sliding scale of 1 to 5 using 15 different "yardsticks."  First time violators are treated differently than repeat offenders.  Factors for consideration include the amount of time that has elapsed since the last apprehension, as well as the cost to taxpayers for implementing penalties.
    Color-coded, wallet-sized cards and posters were created advising agents how to proceed once an offender is taken into custody.  
    Here are some examples of the penalties Border Patrol agents impose:

    First-time violators are typically charged criminally. After conviction, violators are flown to Mexico City, and given a one-way bus ticket to their hometown.
    Known smugglers are typically returned to Mexico for prosecution.
    Some individuals are transferred to a remote border city hundreds of miles away and then returned to Mexico.

    All of the options are punitive in nature, and replace the previous practice of giving an encountered immigrant a bologna sandwich and orange juice before simply returning them to Mexico.  Apprehensions in Tucson have decreased by 80 percent since the new strategy has been implemented.
    Click here to read the original source of this story.
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