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  1. The Immigration Star Chamber's Star-Crossed Stakeholders

    by , 10-24-2010 at 07:44 PM (Angelo Paparelli on Dysfunctional Government)
    Trouble, we got trouble, right here in Immigration Country (apologies to Meredith Wilson, lyricist for The Music Man). As the song goes, "either you're closing your eyes to a situation you do not wish to acknowledge or you are not aware of the caliber of disaster indicated."  I refer not to the ersatz "professor" Harold Hill's remonstration against the game of pool but rather to the mock justice that masquerades as an adjudication system at U.S. Citizenship and Immigration Services (USCIS).
    As this is written, Sen. Chuck Grassley has called on the carpet Department of Homeland Security Secretary, Janet Napolitano, and asked the DHS inspector general to investigate pressures by the leadership at the USCIS's DC headquarters (USCIS HQ) allegedly exerted against adjudicators at the agency's California Service Center (CSC).  The pressures reputedly imposed, the senator asserts, have attempted to foster a "culture of yes" and to require approval of requests for immigration benefits submitted by or for fraudulently conniving or legally undeserving parties. 
    The senator's ire had already been raised by a draft USCIS HQ memorandum leaked last July.  The memo offered what appeared as a brainstorming session to outline ways to address dysfunctional elements of the immigration system (including temporary status for unauthorized migrants) if -- as appears likely -- Congress were to fail to enact comprehensive immigration reform legislation. After President Obama confirmed that there would be no back-door legalization plan, the noise generally subsided, except for the outraged grumblings of Sen. Grassley.
    Over the summer two senior CSC officials were reassigned and a new CSC director appointed following recurrent stakeholder complaints that the CSC repeatedly and improperly had issued numerous, highly burdensome requests for evidence and flouted USCIS HQ policies in denying approvable cases, particularly in employment-based immigration cases.  Sen. Grassley's staff has interviewed seven CSC adjudicators who regaled the staff with horror stories of allegedly improper actions by USCIS Director, Alejandro Majorkas.  In the view of many lawyers, however, the charges against Mr. Mayorkas are a sham perpetrated by the inmates running the lower depths of the agency asylum who don't want their unaccountable antics, their "culture of no," to end.  Early reports of stakeholders give Director Mayorkas high marks.
    The problem with the Grassley charges, as AILA President David Leopold correctly observes, is that the senator is listening to a narrow group of complainers, in my view, an amen-chorus of wolves howling in the henhouse.  The CSC grousers are no doubt the same ones who have stymied justice for years by writing outrageous kitchen-sink demands for documents (RFEs or Requests for Evidence), and issuing denial notices, notices of intent to deny petitions and revocations of prior petition approvals founded on specious and illegal grounds.  If the DHS Inspector General, and better yet, Congressional oversight committees and the USCIS Office of the Ombudsman, are to investigate the adjudication system, then let's open the inquiry and solicit the views of knowledgeable stakeholders -- the individuals, businesses, community-based organizations and immigration lawyers with in-depth experience of USCIS and CSC abuse.
    The situation, alas, is likely to get much worse before any improvement can be expected.  This week USCIS convened an Administrative Appeals Office (AAO) "Listening Session" which offered the following highlights [with my response in brackets]:

    The practice of filing one or more petitions after the initial request is denied constitutes an "abuse" of process, according to USCIS. [If the AAO did not take years to decide petitions, and the economy could be held in suspended animation while an appeal wends its way to its dilatory conclusion, there would be little need to pursue a legitimate practice, not prohibited by current regulations, to file a second or subsequent petition seeking to resolve perceived deficiencies cited by the adjudicator.]
    The AAO engages in de novo review of facts and law and will deny petitions on grounds never asserted by the initial USCIS adjudicator.  [The Board of Immigration Appeals, unlike the AAO, has issued detailed regulations to govern its proceedings, including a regulation, 8 C.F.R. ß 1003.1(d)(3), that eschews fact finding and only considers de novo "questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges."  Although the AAO conceivably could give appealing parties a chance to argue issues not raised in the first instance below, it rarely does.]
    The AAO intends to issue many more precedent decisions but will not make USCIS policy, although it does claim the authority to follow the reasoning of non-precedent decisions. [The problem with this approach is that development of the law is not advanced through notice-and-comment rulemaking as the Administrative Procedures Act contemplates, but by the advocacy skills of the single lawyer raising the appeal for the single party who appeals.  Increasingly, however, multiple parties have tangible legal interests that are adversely affected even though USCIS regulations provides no right to appeal and requires the loss of interim legal rights as the cost of an appeal.]
    The AAO regularly consults with the Office of the Chief Legal Counsel on issues raised in appellate cases. [In tribunals that follow the rule of law, canons of legal and judicial ethics bar such unilateral contacts without notice and an opportunity for a hearing in which all parties and the court participate and the proceedings are transcribed for the sake of further legal proceedings.]
    The AAO adheres to USCIS policy but could not precisely define the sources of authority that constitute agency policy. [When a caller asked during the Listening Session to clarify, e.g., whether any of the many Neufeld Memorandums stand as USCIS policy, she was given no clear answer.  Instead, she was asked to send in samples of agency documents to determine if the documents constituted policy, to which she replied that she would send in the documents once the agency defined what constitutes agency "policy."]
    Although the AAO considers itself a tribunal, not all of its "jurists" are lawyers.  [While, as was claimed during the Listening Session, non-lawyer decision-makers can issue opinions as solidly as their attorney counterparts, persons not licensed as lawyers are not subject to discipline under the rules governing judges and lawyers.]

    With its current configuration and mode of operation, the AAO, not unfairly, could be likened to the Star Chamber, but on closer observation, that would be improper and defamatory because the Star Chamber, as the U.S. Supreme Court has noted, at least offered swift and efficient, if unfair, rulings: 
    'The court of star chamber was an efficient, somewhat arbitrary arm of royal power. It was at the height of its career in the days of the Tudor and Stuart kings. Star chamber stood for swiftness and power; it was not a competitor of the common law so much as a limitation on it - a reminder that high state policy could not safely be entrusted to a system so chancy as English law. . . .' L. Friedman, A History of American Law 23 (1973). See generally 5 W. Holdsworth, A History of English Law 155-214 (1927). [Footnote 17 in Faretta v. California.]
    The many-faceted flaws of the AAO, like the comparable deficiencies of the USCIS as an agency, and its predecessor, the Immigration and Naturalization Service, if not as longstanding as the Star Chamber, nonetheless bear some similarity to that ancient British court.  As the conjoined  history of INS and USCIS teaches us, "high state policy [cannot] be entrusted to a system so chancy as [the immigration law]."
    The fundamental problems that plagued INS have persisted in the first seven years of USCIS, namely, the irreconcilable tensions between the enforcement mentality of so many in the agency and the customer-service mindset that would willingly grant immigration-related legal benefits to those supplicants who demonstrate -- based on a fair and reasonable review of the evidence and of existing eligibility criteria -- that they deserve to have their petitions granted.   This problem was supposed to go away with the passage of the Homeland Security Act, which separated the benefits function from enforcement.  Regrettably, the first major directive of the DHS Secretary, Delegation No. 0150, delegating duties to USCIS included police functions that predictably served to perpetuate the historic tensions, namely:  
    Authority to investigate alleged civil and criminal violations of the immigration laws, including but not limited to alleged fraud with respect to applications or determinations within the [USCIS] and make recommendations for prosecutions, or other appropriate action when deemed advisable.
    Like I said, "we've got trouble in Immigration Country."  Let the investigations begin.  Let's become fully "aware of the caliber of disaster indicated." Let's fix this dysfunctional system once and for all. 
  2. Is PERM Experience, Education, and Training Conjunctive or Disjunctive?

    by , 10-22-2010 at 03:16 PM (Joel Stewart on PERM Labor Certification)
    Last week an employer wrote that he received a denial, because he did not know the best way to fill out the PERM 9089 form, when its requirements for the position were described in the disjunctive (2 years experience, education or training) and not in the conjunctive (2 years experience, education and training).
    The employer correctly deduced that the PERM form 9089 is defective in this regard, because the form provides boxes to put requirements such as experience, education or training, but does not have any way to indicate that they are not cumulative.
    The employer also noted that it could not explain these  requirements under the heading "Alternate Requirements" or "Alternate Occupation."
    The "Alternate Requirements" part of the form only provides boxes for education and experience, but not for training, so the Employer could not use this box to put all three options.
    And the Alternate Occupation box does not distinguish between education, experience or training.
    The employer came to the conclusion that that since there was no way to put "or" between the items,  if all three were filled in, they would have totaled six years, instead of two, and this would have exceeded the permissible SVP of two years total education, experience and training. Therefore, the employer opted to leave the first three boxes blank.
    The Employer then wrote  in box H-14 that the two years could be education, OR experience, OR training.
    I asked several colleagues how they would have filled out the form, and there was some disagreement among them, but I think the best advice to the employer would have been to put two years experience in the experience box instead of leaving it blank, and to put nothing in the training and education boxex, and then skip to H-14 where the employer could have written "Any combination of education, training or experience totaling two years is acceptable." 
    Another option would have been to put two years in each of the three boxes (education, training and experience) and then explain the "or" in H-14 by using the same language indicated above.
    This option would be "safer" in the sense that the additional "or" requirements of training and education would have been more clearly stated on the form, but this approach might have resulted in an audit, due to the initial reading by the computer that the total requirements listed were six years SVP. Only after closely examining the form, would it have  become apparent in H-14 that the requirements  actually totaled two years of SVP, not six.
    Although the phrase  "Any combination of education, training or experience totaling two years is acceptable" is the gist of the Kellogg rationale and is codified in the Magic language, in this case the phrase also serves the purpose of stipulating the "or" option, which is otherwise unavailable on the Form 9089.
    Of course, the new PERM Form is on its way (not yet approved for use), and should resolve the situation, since it has more options for "training" than the original form, which is still in use!
     
  3. Oct 22 - We Want Your Letters

    -----------------IMMIGRATION DAILY FROM ILW.COM------------------
    October 22, 2010
    http://www.ilw.com/immigrationdaily/digest/2010,1022.shtm
    ITEMS
    1. Comment: We Want Your Letters - We ran a Letters to Editor
    Section in Immigration Daily for many years. We published the
    letters we received, regardless of whether they were laudatory or
    excoriating, and regardless of whether they were pro-immigration
    or anti-immigration. We had set a 300-word limit for letters
    designed to keep the length of the Immigration Daily emails
    reasonable. Editing letters down to 300 words, while preserving
    their meaning, was taking an inordinate amount of time and
    effort. To provide instant turnaround time for our letter writers
    while saving editorial effort, we replaced the Letters to Editor
    Section with the Immigration Daily Blog comments earlier this
    year. We would love to hear back from more of our readers. To
    comment on this comment or any other immigration related issue
    please do so here
    http://blogs.ilw.com/immigrationdaily/
    or send an email at mailto:editor@ilw.com.
    2. Article: Agents and Intermediaries by Paula N. Singer, Esq.
    http://www.ilw.com/articles/2010,1022-singer.shtm
    3. Article: BIA Finds DHS Counsel's Conduct "Intemperate,
    Disrespectful, and Unprofessional" by Matthew Kolken
    http://www.ilw.com/articles/2010,1022-kolken.shtm
    4. Article: Missouri GOP Senatorial Candidate Has An Illegal
    Worker Problem by Greg Siskind
    http://www.ilw.com/articles/2010,1022-siskind.shtm
    5. Article: MU as AILA Faculty by Christopher T. Musillo
    http://www.ilw.com/articles/2010,1022-musillo.shtm
    6. News: ICE Updates List Of SEVP Approved Schools
    http://www.ilw.com/immigrationdaily/news/2010,1022-sevp.pdf
    7. News: DHS Releases Fact Sheet On Southwest Border Overview
    http://www.ilw.com/immigrationdaily/news/2010,1022-factsheet.shtm
    8. News: Morton Memo Outlines Civil Immigration Enforcement:
    Priorities For The Apprehension, Detention, And Removal Of Aliens
    http://www.ilw.com/immigrationdaily/news/2010,1022-memo.pdf
    9. News: CRS Report On The Effects On US Farm Workers Of An
    Agricultural Guest Worker Program
    http://www.ilw.com/immigrationdaily/news/2010,1022-crs.pdf
    10. Focus: Employer Compliance For Experts
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    12. Headline: Politico Opinion: GOP's Latino woes not immigration
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    13. Headline: GOP Calif Gov candidate Whitman playing both sides
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    14. Headline: DePosada's latest: Vote Democrat, just not yet, to
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    15. Headline: RT @Finane FAIR: Illegal Immigration is a Crime
    http://goo.gl/aVcb
    16. Headline: Democratic BigWigs incl Bill Clinton rally for
    anti-#immigrant bigot in close House race http://ow.ly/2XoeF
    Shuler wants enforcement-only
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    18. Headline: Report: Asylum Denied to Those Who Need It
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    19. Headline: Santa Clara Plans to Push Back on Immigration
    Enforcement Program http://ow.ly/2Xj50
    20. Headline: State legislators to challenge 'anchor babies'
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    21. Headline: Lawmakers join to create anti-loophole legislation
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    22. Headline: "Don't Vote" ad denounced http://ow.ly/2XiCl
    To submit an Article or a news item to Immigration Daily, write
    to mailto:editor@ilw.com. Follow ILW.COM on Twitter:
    http://www.twitter.com/ilwcom
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    To place a classifieds ad in Immigration Daily, see here
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    _________________________________________________________________
    ReadersWrite
    1. ReadersWrite: Yesterday's Discussion
    http://blogs.ilw.com/immigrationdaily/2010/10/21_democratic_leadership_change.html#comments
    2. ReadersWrite: Today's Discussion
    http://blogs.ilw.com/immigrationdaily/2010/10/22_we_want_your_letters.html#comments
    To submit an Article for consideration, write to
    mailto:editor@ilw.com
    _________________________________________________________________
    ComingsNGoings
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    Readers can share professional announcements (up to 100-words at
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    _________________________________________________________________
    The first daily in the field of immigration. Forward this to a
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  4. Immigration Judge J. Dan Pelletier runs "Lawless Court"

    by , 10-22-2010 at 07:23 AM (Matthew Kolken on Deportation And Removal)
    The Nation has published an article entitled "Lawless Courts" that chronicles alleged pervasive deprivation of due process in the Atlanta Immigration Court.

    The scathing article reports that: "[Immigration Judge] Pelletier and his colleagues are able to run roughshod over the rights of US residents because the agency that runs immigration hearings, the pompous and obscurely titled Executive Office of Immigration Review (EOIR), headquartered in Falls Church, Virginia, is a paranoid bureaucratic backwater that shields immigration judges from accountability. As long as adjudicators process a high volume of cases, the agency will ignore and even cover up serious misconduct, including deportations of US citizens or people who have other avenues of relief."

    The article quotes an unidentified Immigration Judge who stated that: "I'm afraid there's a premium on quotas and productivity, and not the truth."

    Click here to read the article. It is an eye opener.

    Updated 10-15-2014 at 11:15 PM by MKolken

  5. Oct 21 - Democratic Leadership Change

    -----------------IMMIGRATION DAILY FROM ILW.COM------------------
    October 21, 2010
    http://www.ilw.com/immigrationdaily/digest/2010,1021.shtm
    ITEMS
    1. Comment: Democratic Leadership Change -  CQ Politics
    http://www.cqpolitics.com/wmspage.cfm?docID=news-000003747207
    points out that almost all the members of the Congressional
    Hispanic Caucus have held back their dues to Democratic
    Congressional Campaign Committee.
    "Others said they are frustrated with the lack of progress on
    comprehensive immigration reform. Those Members said they don't
    want their campaign dollars funding Democrats who have blocked
    progress on an overhaul. "I want to make sure that the money goes
    where I think it's most appropriate, to individuals who are very
    supportive," said Rep. Joe Baca (Calif.), who chaired the CHC in
    2007-08. Baca said he wanted to ensure his money went directly to
    those candidates and incumbents who support comprehensive
    reform."
    The current Democratic leadership has taken the Congressional
    Hispanic Caucus (and the entire pro-immigration movement) for
    granted, and has paid lip-service to their priorities while
    blocking them in action. The November election is an opportunity
    for changing the Democratic Congressional leadership so that it
    is true to the cause of immigration reform once more.
    2. Article: Missouri Senate Candidates Vie for Who Hates Asylum
    Seekers More by Jason Dzubow
    http://www.ilw.com/articles/2010,1021-dzubow.shtm
    3. Article: What Is Going On In Nevada With Immigration? by
    Charles Kuck
    http://www.ilw.com/articles/2010,1021-kuck.shtm
    4. Article: US Unauthorized Immigration Flows Are Down Sharply
    Since Mid-Decade by Jeffrey S. Passel and D'Vera Cohn for the Pew
    Hispanic Center
    http://www.ilw.com/articles/2010,1021-passel.shtm
    5. News: USCIS Issues Two Precedent Appeals Decisions
    http://www.ilw.com/immigrationdaily/news/2010,1021-uscis.shtm
    6. News: CRS Memo On Legal Analysis of Proposed City of Hazleton
    Illegal Immigration Relief Act Ordinance
    http://www.ilw.com/immigrationdaily/news/2010,1021-memo.pdf
    7. Focus: Immigration Practice By Robert C. Divine
    Immigration Practice by Robert C. Divine & R. Blake Chisam is
    an invaluable supplement to Kurzban's with a different approach.
    It is also useful to newer practitioners and paralegals
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    http://www.ilw.com/books/immigrationpractice.shtm
    To order by fax, see here.
    http://www.ilw.com/books/immigrationpractice.pdf
    8. Headline: Lugar talks immigration: Until there is reasonable
    hope of bipartisanship, DREAM Act will not move faster than rest
    http://ow.ly/2Xhq6
    9. Headline: Opting out of Secure Communities: Santa Clara Plans
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    11. Headline: RT @SgBz Latinos only? Fla. immigration law exempts
    Canadians, Europeans http://bit.ly/93AKTr
    12. Headline: Cut deportation business ties, protesters tell
    Mayor Bloomberg http://ow.ly/2XaV1
    13. Headline: Immigration Refoorm: The Newest Wrinkle in
    Immigration Reform http://ow.ly/2XafR
    14. Headline: As FY 2010 Ends, Immigration Case Backlog Still
    Growing http://ow.ly/2Xa7A
    15. Headline: Racial profiling coming to Florida
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    17. Headline: For family of high-achieving kids, only one holds
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    18. Headline: Candidates Use Immigration As Political Weapon
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    19. Headline: Immigration Conference Long Overdue
    http://ow.ly/2WFVS
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    CLASSIFIEDS
    1. Help Wanted: Immigration Paralegal
    New York, NY - Midtown Manhattan immigration law firm seeks
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    Boston, MA - Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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    seeks immigration legal assistant who will report to immigration
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    3. Help Wanted: Immigration Attorney
    San Francisco, CA - Morgan, Lewis & Bockius LLP
    http://www.morganlewis.com/
    seeks a highly motivated contract/temporary attorney for a several
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    Morgan, Lewis & Bockius LLP offers a challenging work environment
    and business casual dress code. Please apply online here.
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    4. Case Management TechnologyUse technology to leverage your
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    5. Immigrant Tax Services
    Are you worried that your clients' tax returns might hurt their
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    principal of the Rock Law Group, specializes in taxes for
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    Educating Haitian nationals
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    This is an advertisement by an attorney.
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    ReadersWrite
    1. ReadersWrite: Yesterday's Discussion
    http://blogs.ilw.com/immigrationdaily/2010/10/20_search_us.html#comments
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    http://blogs.ilw.com/immigrationdaily/2010/10/21_democratic_leadership_change.html#comments
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    ComingsNGoings
    ComingsNGoings: Immigration Book Asylum, Migration and Community
    By Maggie O'Neill, Policy Press, 312 pp., Paperback, ISBN:
    1847422225, $39.95
    http://www.amazon.com/exec/obidos/ASIN/1847422225
    Readers can share professional announcements (up to 100-words at
    no charge), email: mailto:editor@ilw.com.
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    The first daily in the field of immigration. Forward this to a
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    Publisher: Sam Udani   Legal Editor: Michele Kim   ISSN:1930-062X
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