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  1. Letters of the Week: June 23 - June 27

    Please email your letters to editor@ilw.com or post them directly as a comment below.
  2. Respecting the Rights of Children at the US Border: Pt. 2, by Roger Algase


    The following will continue and update my comments posted on June 22 concerning treatment of unaccompanied children arriving at the US border (referred to officially as "UAC's"). As mentioned in my previous post, the number of these children has markedly increased, to the point where an estimated 50,000 to 60,000 have been apprehended by the Border Patrol since October, 2013. As mentioned in my previous post, the average age of these children is only 14, and hundreds of those apprehended have been only 2 years old or younger. It is hard to argue with the administration's description of this as a "humanitarian crisis".

    Most of the children involved are from three poverty-stricken Central American counties, Guatemala, Honduras and El Salvador, which are also among the most violent in the world in terms of their homicide rates. Unlike children from Mexico, those from Central America cannot be immediately repatriated under US law because they are not from contiguous countries. Therefore they must remain in the US pending a determination of their legal rights, if any, to asylum or other relief from deportation.

    According to a June 13, 2014 Congressional Research Service (CRR) Report: Unaccompanied Alien Children: An Overview, 73 percent of the UAC's arriving at the US border in the first 8 months of FY 2014 (i.e. since October 2013), were from the above three central American countries; only 25 per cent were from Mexico.

    How do the law and current administration policies provide for the treatment of these children? On paper, their treatment would appear to be a significant improvement over the conditions under the "Legacy INS" regimen described in the 2010 Harvard Civil Rights-Civil Liberties Law Review article discussed in my previous post.

    As mentioned on that article, the 2002 Homeland Security Act made the Office of Refugee Resettlement (ORR) a division of Health and Human Services (HHS), responsible for the care of UAC's in custody pending determination of their rights. if any, to remain in the US.

    In addition, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) directs the DHS, in conjunction with other federal agencies, to develop policies and procedures to make sure that UAC's are adequately screened to see if the may have a right to remain in the the US or are safely repatriated if sent home.

    ICE also has to turn UAC's who are not from a contiguous country over to HHS-ORR within 72 hours after apprehension at the border, according to the TVPRA.

    Again, on paper, the responsibilities of the ORR appear to be child-friendly. The above CRR report states:

    "[The TVPRA], which made significant reforms to policies on UAC, directed that HHS ensure that the UAC 'be promptly placed in the least restrictive setting that is in the best interest of the child'. The HSA requires that ORR develop a plan to ensure the timely appointment of legal counsel for each UAC, ensure that the interests of the child are considered in decisions and actions related to the care and custody of a UAC and oversee the infrastructure and personnel of UAC residential facilities, among other responsibilities."

    However, how well does this work out in practice?

    The CRR report states:

    "To deal with the current influx of UAC, HSS/ORR has made use of a network of group homes operated by nonprofit organizations in Texas and other parts of the country. These nonprofit organizations have experience providing the types of services that UAC need (e.g., medical, nutritional, educational. In addition, HHS has reached out to the Department of Defense for additional assistance in housing UAC."

    However, when one looks at the numbers that the various DOD facilities which the CRR article mentions, the total numbers of UAC that all of them put together were expected to be able to accommodate as of June 6, 2014, were only 2,800 children, only about 5 per cent of the total who have arrived at the border during the current fiscal year!

    This would go a long way to explain the disturbing photos of young children being piled up like sardines in makeshift "warehousing" facilities which are now appearing in the news on daily basis.

    However, even this limited use of military facilities to provide temporary shelter to UAC's is attracting criticism from right wing politicians such as Senator James Inhofe (R-Oklahoma) in a recent statement concerning plans to house 600 children at Ft. Sill.

    Obviously more Congressional funding is need to deal with this crisis, but the CRR report concludes by showing that attempts to increase necessary funding have fallen far short up to now.

    Essentially, the UAC crisis is just one more part of the larger issue of where America's immigration policy priorities lie. Is policing our borders our highest priority, no matter how much suffering and hardship this may cause to thens of thousands of young children, the most vulnerable and least culpable immigrants of all, or are we a nation that honors basic civil rights and humanitarian considerations?

    More than 50,000 UAC's are now putting America to this test.
    ______________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College Harvard and Harvard Law School. He has been practicing business and family immigration law for more than 30 years.

    His interest in the legal rights of minors began more than half a century ago when his article The Right to a Fair Trial in Juvenile Court was published in 3 Journal of Family Law 292 (1963).






    Updated 06-23-2014 at 12:15 PM by ImmigrationLawBlogs

  3. Is the DHS Respecting the Legal Rights of Central American Children? By Roger Algase


    The news reports have been full of stories about the estimated up to 60,000 unaccompanied children from Central America who have arrived at the US border and cannot be returned immediately because they are not Mexican.

    These reports have focused on the fact that these children are now America's latest immigration political football, but little, if anything, has been written about the issue of whether they have any legal rights, and it so, whether the Department of Homeland Security is showing any awareness of or respect for these legal rights.

    See, for example, Immigrant children tread treacherous political landscape, CNN, June 18, (listed as a news item in the June 19 Immigration Daily), and US border patrol struggles to shelter thousands of unaccompanied children, The Guardian, June 18).

    The following comments will deal only with the neglected legal issues involved in this children's mass migration, not the political ones, and will suggest ways in which further discussion and action might help to resolve these legal issues.

    My comments are based on an excellent article in the Harvard Civil Rights-Civil Liberties Law Review by Wendy Young and MeganMcKenna of Kids in Need of Defense ("KIND") entitled: The Measure of a Society: The Treatment of Unaccompanied Refugee and Immigrant Children in the United States, 45 H.C.R.C.L. Law Review 247 (2010). This article should be the starting point for anyone interested in the legal rights of these children.

    The article begins with the description of a 15-year old girl from China who was put in a boat to the US by her own parents in the 1990's in order to flee that country's rigid family planning laws, under which she had no rights to citizenship, education or medical care.

    The article describes how upon arrival in the US, she was held in a juvenile jail for eight months and detained for an additional four months after being granted political asylum. At her asylum hearing, she could not wipe away her tears because her hands were chained to her waist.

    Young and McKenna state:

    "Although progress has been made since this young girl's case, the United States has a long way to go before its handling of these children truly takes into account their unique obstacles as children processed in a system that was designed for adults."

    One might think that the most basic concept of American law regarding the treatment of children, namely that their best interests should always be considered by officials charged with enforcing the law, would also apply to immigrant or would-be immigrant children who are in the United States.

    But this doctrine has been expressly ruled out, at least as far as immigration judges are concerned. Young and McKenna cite a May 22, 2007 DOJ memorandum entitled Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children which states:

    "The concept of 'best interest of the child' does not negate the statute or the regulatory delegation of the Attorney General's authority and cannot provide a basis for providing relief not sanctioned by law."

    In other words, elementary humanity toward the least powerful and most defenseless members of America's immigrant population is not part of our legal system.

    Granted, the above is a DOJ memorandum, not a DHS one, and it is meant by its terms to apply only in immigration court. The above two authors also point out that there has been a significant improvement in the current DHS system of treating unaccompanied immigrant children compared to the previous "Legacy INS" approach.

    The INS, according to the authors,

    "applied the same model of punitive detention to children as it did to adults, Children were often detained in criminal facilities, commingled with the juvenile delinquent population. Even if held in one of the INS's special children's centers, children faced detention-like conditions and had to contend with facility administrators more attuned to the priorities of the INS than the needs of the children."

    This harsh approach toward children in immigration detention was challenged in Flores v. Meese 681 F. Supp 665 (C. D. Cal. 1988), which ultimately led to a 1996 settlement agreement providing that all children in INS custody should be "treated with dignity, respect and special concern for their particular vulnerability as minors".

    The Flores settlement also provided that the INS would place each child in the "least restrictive setting appropriate" and, when appropriate, release the child to a person or organization able to ensure his or her well being and appearance in court.

    Unfortunately, as the above article also points out, the Flores settlement has never been enacted into law or codified by formal regulations, and its spirit has still not been put fully into effect, despite improvements made by the Homeland Security Act of 2002 when the Office of Refugee Resettlement (ORR), was given responsibility for developing placement options for unaccompanied children as an agency within the Department of Health and Human Services (HHS).

    But Young and McKenna state that even after Flores, unaccompanied children were still detained for long periods of time, and children, including those with mental health or behavioral problems, were detained in secure facilities, where accusations of abuse were rampant. And the involvement of ORR under the 2002 law, while making some improvements, has not solved all of these problems.

    Young and McKenna write:

    "The overarching obstacle to proper treatment for unaccompanied immigrant children is a system that was never designed to take children into account. For the most part, these immigrant programs continue to treat children and adults identically under US law."

    However, while there has been some improvement in the area of ensuring adequate care, custody and placement of unaccompanied immigrant children, providing them with adequate legal representation has proved even more challenging, according to the above authors.

    They point out that the US government does not provide appointed counsel for unaccompanied children in immigration proceedings and that more than half of these children do not have lawyers, even though they are bound by the same legal standards and burden of proof as adult immigrants.

    Despite a pilot pro bono program set up by ORR in 2005 for unaccompanied immigrant children, much more remains to be done to ensure that they have adequate legal representation. Young and McKenna state:

    "While these steps are positive and will result in greater numbers of represented children, the system remains inherently unfair and inconsistent with American principles of justice and due process, because it propels children through a complex immigration system without the guaranteed guidance of legal counsel."

    They also point out the inadequacy of relying only on pro bono legal assistance:

    "Immigration detainees are often located in rural areas where pro bono services are not readily available, such as along the Texas border where legal resources are scarce. In addition, some children's cases are not accepted by pro bono counsel either because their cases require swift and immediate action or because their cases involve considerable complexities."

    In addition to providing guaranteed legal representation, Young and McKenna also recommend providing unaccompanied children with child welfare experts to protect the child's best interests and provide as much information about the child's situation as possible in order to assist in the determination of eligibility for relief.

    In terms of procedure, the authors also recommend:

    "EOIR should systematically implement, through regulations, juvenile dockets in every immigration court that include the use of child-friendly procedures, as is recommended by the Operating Policies and Procedures Memorandum [see DOJ's May 22, 2007 memorandum referred to above] and Legacy INS's Guidelines for Children's Asylum Claims."

    In their conclusion, Young and McKenna write:

    "Progress has been made in recent years toward acknowledging the unique challenges that arise when a child arrives in the United States without his or her traditional caregiver. However, the question remains whether the immigration system as a whole will ever truly move away from enforcing U.S. immigration laws as if its only subjects were adults with the capacity to make immigration decisions of their own volition."

    As mentioned above, this article was written four years ago, when even though detention conditions were an issue, the main focus was on providing justice for unaccompanied children in immigration court. At that time, evidently, no one could have anticipated that over 50,000 unaccompanied children would arrive at the US border in the space of only nine months, and that some of them would be barely old enough to walk.

    But this is exactly what has happened, according to a June 20 article in Fusion, Hundreds of Toddlers Said to Be Taken Into Custody at the Border. This article reports that about 52,000 unaccompanied minors have been apprehended at the border since October 2013. 378 of them were children two years old or younger and 95 were less than a year old.

    The Fusion article quotes a spokesperson for the Border Patrol as saying:

    "Apprehending infants and children can be difficult for Border Patrol agents; our facilities are not designed with people that young in mind...We often have minimal amounts of diapers, formula and other items for the care of infants and toddlers."

    But unaccompanied infants and toddlers arriving at the border are part of America's immigration picture today, and, according to the above Fusion article the average age of unaccompanied children arriving at the US border is now only 14.
    Many of these children are now being detained in deplorable, inhuman conditions. Lack of access to lawyers or proper legal procedures is only part of the problem.

    America's leaders need to stop using these children in order to score political points, and instead come up with an immigration system which will provide them not only with the necessities of law, but the necessities of life.
    ________________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business and family immigration law for more than 30 years.

    His practice includes, in addition to other types of immigration cases, H-1B and O-1 work visas, and green cards based on labor certification and extraordinary ability as well as opposite or same sex marriages. His email address is algaselex@gmail.com





    Updated 06-23-2014 at 06:30 AM by ImmigrationLawBlogs

  4. What Rights Must USCIS Provide Before Making a Fraud Finding? By Roger Algase


    Few if any determinations by USCIS officers have more serious consequences than a finding that a petitioner or applicant for an immigration benefit has committed fraud or willfully misrepresented a material fact. Fraud or willful misrepresentation can be the immigration equivalent of a death sentence, except in the very limited circumstances where a waiver may be available based on extreme hardship to a USC or LPR spouse or parent of the person against whom a fraud/willful misrepresentation finding has been made.

    In my June 6, 8, and 10 posts, I discussed in some detail how a Texas Service Center adjudicator recently made a fraud or willful misrepresentation determination against one of my clients without giving her any prior notice of intent to make such a finding or opportunity to reply to the fraud charge, and by dismissing or inaccurately denying the existence of evidence of her veracity and truthfulness with regard to the facts at issue which was in the record and which the TSC had accepted as valid in at least two previous notices to the petitioner, neither of which made the slightest mention of any alleged fraud or willful misrepresentation.

    The following AAO decision will illustrate the type of notice and opportunity to reply which USCIS is required to give a petitioner or applicant before making a fraud finding. (I have no connection or involvement whatsoever with the following case.)

    In LIN 07 145 52475 (January 28, 2010), a case which originated with the USCIS Nebraska Service Center, an employer filed an I-140 petition on behalf of the beneficiary as an accountant after first obtaining an employment third preference (EB-3) labor certification. The labor certification and I-140 petition required at least a bachelor degree in accounting.

    The AAO found that the beneficiary had misrepresented and had used false documents in claiming that he had the degree.

    The AAO's finding was based on a statement that the beneficiary had previously made to an ICE officer admitting that he had used his brother's degree, altered to show the beneficiary's name, and that the beneficiary had only attended the school in question for one or two weeks, without ever graduating.

    Despite this clear evidence of fraud, the AAO was scrupulously careful in give all parties full and adequate notice of the fraud charge and the opportunity to rebut it. According to the above decision, the Nebraska Service Center had not denied the petition on the basis of fraud, but only for failure to meet the educational requirements.

    Therefore the fraud issue was raised for the first time by the AAO itself. First, the AAO reopened the NSC's denial decision on the AAO's own motion and issued a Notice of Intent to Deny (NOID) alleging fraud.

    The AAO then issued a second notice, of derogatory information (NDI) to both the petitioner and the beneficiary separately. The NDI described the beneficiary's above ICE interview in detail. Therefore both were given a full opportunity to rebut the fraud charge.

    They did not do so, and obviously, based on the beneficiary's previous admission to ICE that he had used a fraudulently altered degree certificate, neither was in a position to do so. But the important point is that even in an egregious case such as this one, where the beneficiary had clearly committed fraud and had no defense to this charge, and the employer withdrew the petition for this reason, they were both given every possible opportunity to rebut or dispute the fraud charge before the AAO entered its determination.

    Because of the seriousness and severe immigration (not to mention possible criminal) consequences of a USCIS fraud finding, the above high standard should be held to in every DHS and USCIS proceeding where fraud or willful misrepresentation is alleged.

    Does a person against whom USCIS makes a fraud finding without giving prior notice of the fraud charge or an opportunity to reply have a remedy against USCIS or its officers for official misconduct or denial of basic civil rights?

    This question will be explored in an upcoming post.
    ____________________________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business and family immigration law for more than 30 years.

    His practice includes, in addition to other types of immigration cases, H-1B and O-1 work visas, and green cards based on labor certification and extraordinary ability as well as opposite or same sex marriages. His email address is algaselex@gmail.com




    Updated 06-23-2014 at 05:27 AM by ImmigrationLawBlogs

  5. Canadian Investment Visa Program Cancelled By Gregory Finkelson

    Canadian Investment Visa Program Cancelled
    Where Will the Chinese Investors Go?


    Canada’s decision to cancel its Investment Visa Program could be a mixed blessing for the U.S. EB-5 program, at least in the short term. The rather obvious positive side is that the Chinese investors who were already in the middle of the Canadian process might generally be inclined to continue their quest to relocate somewhere. One of their most likely choices is the United States. Their original choice of Canada might be an indication of their desire to immigrate to the Western Hemisphere. Their original capital will become unencumbered, so they will have cash readily available that had been heretofore “invested” in the Canadian program.

    On the other hand, there are other considerations. One of the primary reasons given for the cancellation of the Canadian program was to “eliminate a large and longstanding backlog of applications.” Therefore, it is reasonable to assume that, whether the Canadian government processes those applications forward (which they are not going to do) or processes them backward (returning deposits to program applicants and close their files), it is going to take quite some time to complete either task. If they can’t get the applications out of the mire, it doesn’t matter direct they try to flow them, they are still stuck in the bureaucratic red tape. It will take time to process. For that reason, I do not see an impending tsunami of EB-5 investors hitting the U.S. west coast.

    Nonetheless, should Canada take an inordinately lengthy amount of time to implement a new program, the number of Chinese seeking to participate in the EB-5 program could increase substantially. To my previous point about the Western Hemisphere, it may equally be assumed that some may have chosen Canada, not for its location, but because it belongs to the British Commonwealth. If that was an investor preference, it is unlikely that they will seek residency in the U.S.

    It is also important to note that the EB-5 program puts their investments at risk. The Canadian program did not. That program required immigrants to invest in the Canadian economy at large by requiring a loan from applicants to the Canadian government. Exactly as it implies, the government would repay that loan to the immigrants after a period of time. The EB-5 Program requires a minimum $500,000 investment with no guaranteed return.

    None of us can know how significant that was for those Chinese investors choosing Canada over the U.S. in the beginning. It could have been significant to all of them. We need to remember that the number of applicants for the EB-5 program may not be as much of an issue in our case as the U.S. limitation on the number of visas we are willing to issue. There are, without a doubt, far more interest investors than there are visas available. Which leads us to remember our own bureaucratic backlog with processing EB-5 applications. That backlog alone has the power to make the question of whether or not more Chinese investors will be attracted to the U.S. through the EB-5 program a moot point.



    One of the biggest problems with government is that policy makers all too often do not count the costs of the programs that they birth. When a woman becomes pregnant, she and her husband do not plan just for the ensuing nine months. They plan for the next 18 to 20 years. Our government – indeed, most governments – should plan far into the future just as the expectant family does. We are already learning the primary lesson that the Canadians have learned. There is much more to the process than there are resources allocated to processing it.

    The EB-5 program represents a golden opportunity for both the U.S. economy and the Chinese EB-5 investors. It is truly a win-win program, but, if the processing remains as stagnated as it has been, neither the U.S. nor the Chinese investors will reap the full potential and benefits of the EB-5 program.

    The primary concern for the U.S. should be to get our EB-5 program operating with much more efficiency and integrity. We cannot afford to offer an incentive like EB-5 to foreign investors and then allow months to pass with little or no progress toward bringing their investment to fruition. Developers cannot afford to wait on EB-5 processing while they are trying to move forward expeditiously on their projects. And we can ill-afford to allow scamming of investors through EB-5 to continue. How the government addresses these issues is up to them. In the meantime, my focus will continue to be to help people involved in all aspects of the EB-5 program become highly successful.
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