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  1. What is "propensity" and what is "widespread"?

    by , 09-23-2010 at 09:17 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo
    The FSBPT's September 22, 2010 update to their blog attempts to answer the question, "Why didn't you stop testing for all candidates?" Their answer, however, should raise significant issues about the logic behind their policy and their standard of review.

    The blog posting says that graduates from universities from the four restricted countries - India, Philippines, Pakistan, and Egypt -- have apparently shown a "propensity" toward "widespread" sharing of NPTE questions. The FSBPT has yet to define "propensity" and "widespread" in any dialogue with members of the public and state boards of Physical Therapy. Every time the FSBPT hides behind these vague words, it calls into serious question the FSBPT's rationale and raises questions of this policy's true intent.

    The FSBPT also says that "the exam itself has not been compromised by any groups beyond the restricted groups". This of course, does not mean that it hasn't been compromised by any individuals within those groups. If compromised questions were exposed to the internet (and every indication is that they were), then individuals beyond the restricted groups have cheated. To say otherwise is disingenuous.

    Moreover, since there are many more individuals in non-restricted groups, the standard of review for these groups should be greater because the damage would be far greater. For instance, if there are 1,500 restricted country test takers and 10 percent have cheated, then there are 150 restricted country cheaters.

    On the other hand, if there are 15,000 non-restricted country test takers and just 1 percent has cheated, then there are 150 additional cheaters. American patients don't care about the nationality of the cheaters; they just want all 300 cheaters to be banned from the test. The FSBPT's program catches the first 150, but does nothing about the second 150.
    Read the full Healthcare and Immigration Law Blog at or
  2. The Silence Between the Notes Makes the Music

    I was never quite sure what that meant, but it somehow seems appropriate to preparing asylum cases.  There is a temptation when preparing a case to include everything the applicant brings you: school and work records, letters from witnesses, police documents, medical documents, news articles.  But sometimes in asylum, less is more, and the more asylum cases I do, the more I feel comfortable leaving things out. 

    Zen and the art of asylum application.
    For one thing, I've seen too many cases where the client included a piece of unnecessary evidence, only to have that piece of evidence create problems.  For example, I worked on an Ethiopian asylum case that was well supported with letters and other evidence.  The client also included a hospital receipt showing that she was treated for stomach illness shortly after her release from prison.  The document supported her assertion that she was sick while in prison, but we had other evidence for that, including letters from people who saw her after she was released.  DHS investigated the document and found that it was fraudulent.  Ultimately, the client was granted asylum, but not without a whole lot of difficulty and expense that could have been avoided if we left out the hospital receipt. 
    The hard part, of course, is how to know what to leave out.  Generally, if I have a document that solidly supports one aspect of the applicant's claim, I feel comfortable leaving out other documents that do the same thing.  For example, I am representing an Afghan asylum seeker who worked with a well known NATO General in Afghanistan.  We have photos of the two men together, a letter from the General, and letters from other people attesting to the relationship.  If my client's claim is that the Taliban threatened to harm him because he was seen together with the NATO General, then it would be helpful to prove that my client and the General were actually together (I do not need to prove the substance of their meeting, only that they were together).  The photos alone are enough to prove that the two men met; the remaining evidence is extraneous and has the potential to create problems-maybe a letter is incorrectly dated or the government will suspect that the General's letter is fraudulent and send it for a time-consuming investigation.  In this scenario, when I submit the additional evidence, I gain nothing for my client and we potentially create problems.  So why submit this additional evidence?
    The REAL ID Act requires an asylum applicant to submit supporting evidence or explain the absence of that evidence, so I am not advocating not submitting pertinent evidence.  I merely suggest that an asylum applicant does not need to submit redundant evidence once he has submitted sufficient evidence to prove an aspect of his story.  Submitting the additional evidence may "bulk up" the asylum application, but it also creates the risk of an inconsistency-and inconsistencies can pop up where you'd least expect them.
    I think this principle holds true for general country condition information as well.  I've worked on several appeals where the underlying case was litigated by someone who submitted copious evidence of country conditions.  Why?  If the New York Times has an article about a particular political rally, you don't need an additional article from the BBC to prove that the rally occurred.  The second (or fifth) article is completely redundant and so it adds nothing to the case.  However, it does serve to burden the fact-finder.  And worse, it creates the risk of an inconsistency.
    I guess the lesson for today is: Prove your case, but not too much.

    by , 09-22-2010 at 09:47 PM (Greg Siskind on Immigration Law and Policy)
    Not that we got our hopes too high, but when you hear something like this, it's hard to argue with Latino voters who ask whether it really makes a difference whether Republicans or Democrats are in charge.
  4. Private Bill Saves Family from Deportation
    Jessica Duran and her family had a big immigration problem when they visited me in my office a couple of months ago. The U.S. Court of the Appeals had dismissed their appeal, and they were under a final order of deportation. The only thing keeping ICE from deporting them was that court had yet to issue the mandate in their case.

    I looked at their paperwork, and told them that there was nothing an immigration lawyer could do to help them, and to save their money for their new lives in Mexico.

    I expected an explosion of anger or of tears. Instead, Jessica calmly explained that her parents had brought her and her two brothers to the U.S. on visitors visas when they were toddlers, that they had grown up in the housing projects and spent hours each day being bussed to schools in the suburbs where they had excelled. Now, the three of them were university graduates and professionals who little or no memory of Mexico. The government had denied their father's late amnesty application in 1990 only to reverse themselves and grant him a green card in 2005. Although, he immediately filed I-130s for them and their mother, by that time their order of voluntary departure have turned into an order of deportation making it impossible to reopen their cases.

    The reason that they were consulting me was that they read that one of my clients, a Canadian orphan, had received a green card through a private bill, and they wondered if they could do the same.

    I explained to Jessica that the case she was referring to occurred in 2000, and that even though I had a few other clients who had private bills introduced on their behalf since then, I very much doubted whether any of these private bills would be signed into law in the near future. On the bright side, ICE was taking no action to remove any of these clients from the U.S.

    Jessica told me that she understood and asked me if I would be willing to try to get a private bill introduced on behalf of her family. I explained that even getting a private bill introduced was a long shot, but as long that they understood that, I was willing to try. They agreed.

    Jessica had already taken the initiative and had spoken to her Congresswoman's office, and also to the office of Senator Durbin (D-IL), the sponsor of the DREAM Act. So I took up where she left off.

    Her Congresswoman is Lucille Roybal-Allard (D-CA), a member of the Congressional Hispanic Caucus and a strong proponent of immigrants rights. A few years ago, the Congresswoman had sponsored a private bill of behalf of another family that I represented. I spoke with her local immigration caseworkers, and they told me that the Congresswoman was open to sponsoring a private bill for Jessica and her family, but only as a last resort. I thanked them, and proceeded to contact Senator Durbin's office.

    Senator Durbin's immigration aide in Washington, D.C. informed me that she had already contacted ICE about placing Jessica and her two brothers in deferred action status, and she was waiting for an answer. She told me that ICE was open to doing this for a number of DREAM Act students, but was unsure whether they would so do for Jessica and her family.

    Then, a couple of weeks ago, Jessica informed that the 9th Circuit had issued the mandate in her family's case. Now there was nothing stopping ICE from enforcing the deportation order. Would ICE do so? Would agents come to their house and arrest them? It was possible that they would.

    I called Jessica from my home to discuss what to do if ICE agents came to her house. She asked me a lot of questions, and I tried my best to provide her with answers. It was a very tense conversation. However, less than a minute after our conversation, I received an e-mail message from Jessica. While we had been on the phone together, someone from Congresswoman Roybal-Allard's office had left a message for her. The Congresswoman had decided to introduce a bill on behalf of her family after the Labor Day recess.

    I started conferring with Congresswoman Roybal-Allard's immigration aide in Washington, D.C. He requested a summary of their case and a number of other documents, all of which we supplied.

    And, on September 21, he informed me that Congresswoman Roybal-Allard had introduced H.R.6158, a bill to provide for immigration relief for Jessica and her family!

    I called Jessica who was close to tears. She thanked me over and over again. At the same time, I apologized many times for telling her at the outset that there was nothing that I, or any other immigration attorney, could do to help her and her family. By the end our conversation, there was nothing to do but laugh together. I am still talking with ICE through Senator Durbin's office. A reporter from a national wire service has spoken with me and with Jessica about her family's case.

    We are very thankful that Congresswoman Roybal-Allard has stepped in to keep this fine family together.

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    Updated 12-02-2013 at 05:27 PM by CShusterman

  5. ABC News Report: McCain, Napolitano Spar Over Draft Immigration Policy Memos

    by , 09-22-2010 at 12:59 PM (Matthew Kolken on Deportation And Removal)
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