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The following excerpt is from a summary order issued by the Second Circuit Court of Appeals.
This is not the first time IJ Michael W. Straus has erred in adjudicating an application for deferral of removal by a gay or bisexual Jamaican man. See, e.g., Walker v. Lynch, No. 15‐184, 2016 WL 4191844, at *3 (2d Cir. Aug. 9, 2016) (granting the petition for review on the grounds that IJ Straus “totally overlook[ed]” the record evidence that the Jamaican government acquiesces in the torture of gay and bisexual men). The record in this case also contains examples of conduct potentially indicative of bias. For example, IJ Straus permitted the government to engage in a line of cross‐examination asking Brown irrelevant, demeaning questions about, among other things, his genitalia and sexual performance. The BIA might consider, on remand, whether justice, or the appearance of justice, would be served by reassigning the remand to a different IJ. See Huang v. Gonzales, 453 F.3d 142, 151 (2d Cir. 2006) (reassignment is appropriate to avoid bias or the appearance of substantial injustice).
I've never appeared before Judge Straus. If you have please put your experiences in a comment below.
Updated 09-29-2016 at 11:33 AM by MKolken
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether a website advertisement that did not list the location of employment failed to apprise U.S. workers of the nature of the role. In Matter of VLS It Consulting, Inc., the employer submitted a labor certification for the position of “Computer Systems Manager/ Training Division Manager.” The case was audited and denied on the basis that the website advertisement did not list the geographic area of employment. The Certifying Officer argued that the lack of worksite location information violated 20 C.F.R. §656.17(f)(4). The employer appealed and argued that its corporate address was ‘listed on the homepage and the ‘contact us’ portion of the website.” BALCA reviewed the case and reminded the Department of Labor that 20 C.F.R. §656.17(f)(4) only applies to advertisements placed in newspapers of general circulation. Thus, this statutory section could not serve as a basis for denial. Furthermore, BALCA determined that since the employer’s address was listed on other sections of its website, no U.S. worker was misinformed of the nature of the job opportunity. BALCA reiterated that “when relevant information on a website advertisement is a ‘simple mouse click’ away, denial of certification is not supported by the regulations.” While this case does support the idea that the location of employment is not required to be listed on website advertisements, the Hammond Law Group suggests that all advertisements include the location of employment to avoid improper denials by the Department of Labor. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/
Those who cannot remember the past are condemned to repeat it. While the possibility of internment camps for Muslim Americans may sound farfetched, it happened to Japanese Americans in World War II. Understanding how it happened to the Japanese Americans might help us to prevent it from happening again.
A series of attacks by radical jihadist terrorists like the ones in Europe probably would not result in the internment of Muslim Americans, but an ongoing series of attacks as horrific as 9/11 would be a different matter. The fear and anger that would produce would be hard to control.
The events leading to the internment of Japanese Americans began at 7:55 a.m. on December 7, 1941, when hundreds of Japanese fighter planes attacked the American naval base at Pearl Harbor near Honolulu, Hawaii. The Japanese fighter planes destroyed almost 20 American naval vessels, including eight large battleships, and more than 300 airplanes. They also killed more than 2,000 Americans soldiers and sailors, and wounded another 1,000. Later that day, President Franklin D. Roosevelt issued a proclamation authorizing the removal of Japanese enemy aliens from the United States. The next day, he declared war on Japan. And four months later, he sent 16 B25 bombers on a secret mission to show that we could strike the interior of Japan. They bombed factory areas, oil storage facilities, and military installations in Tokyo.
The Japanese American interments were not directed at the entire Japanese American population. Approximately 275,000 Japanese immigrants settled in Hawaii and on the mainland of the United States between 1861 and 1940, but the Japanese in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast. Although the Japanese farmers worked less than 4% of California’s farmland in 1940, they produced more than 10% of the total value of the state’s farm resources, which I think explains why civilian lobbyists from California joined the American military leaders in pressuring Congress and President Roosevelt to remove the Japanese Americans from the West Coast. The military leaders expected a Japanese invasion on the West Coast and were afraid that the Japanese Americans would provide behind the lines assistance to the invading army. Their views prevailed. On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which forced all Japanese Americans, regardless of loyalty or citizenship, to leave the West Coast. Congress implemented the order on March 21, 1942, by passing Public Law 503.
The government relocated more than 120,000 people to internment camps located across the country. Approximately 70,000 of them were American citizens. The government made no charges against them, and they could not appeal their incarcerations. All of them lost their personal liberties; most also lost homes and property. The internments included more than 300 Italian Americans and more than 5,000 German residents.
The internments were challenged in court and the case ultimately was heard by the U.S. Supreme Court. In Korematsu v. United States, 323 U.S. 214 (1944), Fred Korematsu, a United States citizen, argued that he had been imprisoned in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty or disposition towards the United States. The Court found that to cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the West Coast because of hostility towards him or his race. He was excluded because we were at war with the Japanese Empire, and American military authorities feared an invasion of our West Coast. They decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be removed from the West Coast temporarily, and Congress, reposing its confidence in this time of war in our military leaders, determined that they should have the power to do it.
It is conceivable that a similar argument could be made to put Muslim Americans in internment camps in the midst of an ongoing series of horrific terrorist attacks, but it seems extremely unlikely that the internments would be directed at the entire Muslim population.
The Japanese American interments were not directed at the entire Japanese population. The Japanese Americans in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base at Pearl Harbor near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast, which is where the perceived invasion threat existed.
In contrast, putting the entire population of Muslim Americans in internment camps on the basis of a threat from a few terrorist organizations probably would be viewed by the courts as racism. It would be farfetched to claim that most or even many Muslim Americans would actively support terrorist attacks on America.
The interments almost certainly would have to be limited to Muslim Americans who might actually be terrorists or terrorist supporters. This would be similar to the way our Justice Department limited the National Security Entry-Exit Registration System (NSEERS) program, which was established after 9/11 to identify terrorists as quickly as possible. NSEERS only applied to males 16 years of age or older who were nationals or citizens of specified countries. Nevertheless, even the interment of a relatively small number of Muslim Americans without evidence of terrorist involvement would run counter to American values. Moreover, it could alienate the Muslim community, and their help would be needed to identify and locate the terrorists.
Published originally in Huffington Post
About the Author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
Updated 10-01-2016 at 04:05 PM by ImmigrationLawBlogs
Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (“BIA”) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.
ASYLUMIST: How did you get started in the field of immigration?
Since he retired, Judge Schmidt has been doing a lot of this (eat your heart out, Burmanator!).
PWS: My wife, Cathy, and I had both spent our whole lives in Wisconsin. After I graduated from law school, we wanted to go somewhere else. Because I went to law school in Wisconsin, I did not have to take the bar—I was granted automatic admission to the Wisconsin bar. I’ve actually never taken a bar exam. I knew if I got a job with the federal government, I would not have to take a bar, so I was interested in working for the feds. Also, I had an uncle from Wisconsin who went to DC to work for the Roosevelt Administration and stayed for an entire career, and that also attracted me to federal service.
I applied to the Department of Justice through the Honors Program, but they rejected me. At the time, the Board did not actively recruit from the Honors Program, but they looked at the pool of applicants, liked my writing experience, and asked me to apply. I didn’t know anything about immigration, so the first thing I did was to go to the law school library and learn about immigration law. Then, we drove to Washington, DC for the interview. I met the Chairman, Board Members, and the Executive Assistant. Following an afternoon of interviews, the Chairman, Maurice A. “Maury” Roberts, a legendary immigration “guru,” called me in and said, “We discussed it at conference, and you’ll do.” With that auspicious beginning, I was hired. It was 1973. At the time, the BIA had nine staff attorneys and five Board Members.
I liked the job. It was a great group of people, and I learned a lot about the law. Chairman Roberts was a mentor to me and my office-mate. I also worked with the late Lauri Steven Filppu, who became a close friend, and who went on to become a Deputy Director of the Office of Immigration Litigation and then served with me on the BIA.I liked the human interest element and that it involved creative thinking. However, there was an ideological divide among the Board Members. At that time, Board Members were political appointees, rather than career appointments as they are today. The most senior Board Member had been appointed by President Truman. Chairman Roberts was appointed at the end of the Johnson Administration. I believe the other three Board Members were appointed during the Nixon Administration and did not have prior immigration backgrounds. Also, in those days, oral argument was a right, and the Board had four days of oral argument each week.
While I was there, Lauri Filppu and I helped form the BIA employees union, which was led by our friend and colleague Joan Churchill. She later became an Immigration Judge in Arlington and served with me there for several years before her retirement. One impetus for forming the union was an incident where the Board librarian was fired in the middle of our Christmas party. We thought that was harsh. The union still exists today. Indeed, as Chairman, I later had to go “head to head” with the union on an arbitration relating to the assignment of offices.
ASYLUMIST: You started as BIA staff. How did you get to be Chairman of the Board of Immigration Appeals?
PWS: I left the BIA at the end of 1975. I felt I had done what I could do there, and the work was getting repetitive. I was ready for something new, and so I moved to the General Counsel’s office at INS. At the time, Sam Bernsen was General Counsel. He was an amazing guy, who started as a messenger on Ellis Island when he was 17 and worked his way up to the top ranks of the Civil Service. He was also a good friend of Chairman Roberts. I advanced in the General Counsel’s office, and by the end of the Carter Administration, I was the Deputy General Counsel and the Acting General Counsel.
The Deputy General Counsel basically ran the day-to-day operations of the INS’s nationwide legal program. The General Counsel during the Carter Administration, David Crosland (now an Immigration Judge in Baltimore) was the Acting Commissioner of the INS for about the last half of the Administration. At the time, I was only 31 or 32 years old.
In that period, we were re-organizing the legal program. The GC took over supervision of Trial Attorneys (they were previously supervised by the District Directors – they now are called “Assistant Chief Counsels”). We also replaced Naturalization Attorneys with paralegals. Some of these changes were controversial within the INS. I got yelled at a lot by some of the District Directors. But, I can yell pretty loud too. This was really the beginning of what today are the Offices of Chief Counsel at the DHS. And, I worked on legislation, including the Refugee Act of 1980, which brought me into contact with David Martin and Alex Aleinikoff who later became well known in the immigration and refugee world. Other big issues I worked on were the so-called Cuban Boatlift and the Iranian Hostage Crisis.
I continued as Deputy GC during the Reagan Administration. I served under General Counsel Maurice C. Inman, Jr., known as “Iron Mike.” He was a real character, but we got a tremendous amount accomplished together. It was more or less a “bad cop, good cop” situation. We completed the legal program reorganization, and I also helped plan and execute the transfer of the Immigration Judges out of INS and into a separate entity, which was the “birth of EOIR” in 1983. Mike left in 1986, and I became the Acting GC again, right at the time that IRCA was enacted. But, I felt like I had reached a dead end.
I applied for jobs at law schools, and I found a head-hunter. However, it was the “Old Girl Network” through Cathy, who was then the president of our co-op preschool, which led to my next job. I was offered a senior associate position at Jones Day, which was just starting an immigration practice. At that point, the Commissioner, Al Nelson, and the Attorney General, Ed Meese, offered me the GC job, which I had always wanted. But, I turned it down. I moved over to Jones Day, and remained there as a partner until 1992.
It was difficult to be an immigration attorney in a general practice firm, and so I eventually went to Fragomen, Del Rey, and Bernsen, where I succeeded my mentor Sam Bernsen as Managing Partner of the DC Office. I did mostly business immigration. While I liked private practice, and learned much that has been helpful in making me a better judge, I felt that business immigration was like working at a well-baby clinic: Highly stressful, but fundamentally routine. We had to do as many cases as we could, as quickly as possible, which made it challenging to take on interesting cases that did not generate significant fees or repeat business. The clients wanted more for less, and there was always pressure to charge more and more money to contribute to the success of the firm. In the end, I suppose my heart was not in business immigration. I liked my clients, my colleagues, and making more money for our family than I had in government, but eventually it was not as satisfying as government work.
Around this time, the BIA Chair position opened up. I liked the idea of being in charge, and I felt there were opportunities to be creative. But, there was a lot of competition for the job. I lobbied the people I knew for their support, and in the end, I was offered the position. I began work in February 1995. I definitely think my experience in the private sector was a significant factor in my getting the job.
The goal when I started was to make the Board into the “13th Circuit,” to make it more like a court, to expand the diversity and the number of Board Members, to publish more opinions, and to develop a more humane and realistic view of asylum law. There was a big backlog, and we needed more Board Members. Up until then, different Immigration Judges were being detailed to the BIA to help with the work, but this system was cumbersome and it was very expensive. The original plan was to expand the Board from five to nine Members, but with then Director Tony Moscato’s help, we managed to expand it to twelve Board Members (four panels of three Members each). Attorney General Janet Reno was receptive to expanding the BIA, and we also increased the staff significantly and set up a team structure with senior supervisors. While I was there, we also changed the appeals filing system so that people could file directly with the Board (instead of filing appeals with the local court), and we added bar codes to help organize the files (up until that time, staff spent a lot of time looking for lost files). All these changes required us to expand the legal and clerical staff. And, the BIA itself kept on growing, reaching a membership of more than 20 just before the Ashcroft purge.
The expanded Board also became more polarized. Essentially, the middle fell out of the Board shortly after the Kasinga case in 1996. Before then, I was often in the majority, but after that time, I was out-voted in most precedential decisions. I think the enactment of the IIRIRA at the end of 1996 also had something to do with it. By the time of the R-A- decision in 1999—one of the most disappointing cases of my tenure because the majority squandered the chance to show real judicial leadership, take the next logical step following Kasinga, and “do the right thing” for domestic violence victims—I was pretty firmly entrenched in the minority for en banc decisions. I therefore often had to write or join separate dissenting opinions, known as “SOPs” in BIA lingo.
ASYLUMIST: This brings up an interesting point. I’ve long felt that the BIA should issue more precedent decisions, to provide more guidance to Immigration Judges. Why doesn’t the Board publish more decisions? And how does the Board decide which cases will be published?
PWS: I think that following the “Ashcroft purge,” the BIA has become hesitant to delve into controversial issues, particularly those that might provoke dissent. During my time at the Board, we did publish more decisions. Indeed, in my first full year as Chair, in 1996, we published approximately 40 opinions, many with separate dissents and concurrences, on cutting edge issues like particular social group, credibility, AEDPA, and IIRIRA. By contrast, in 2015, the BIA published approximately 33 decisions, and neither the dialogue nor the range of issues was nearly as extensive. Even with a greatly expanded and often divided Board, in 1999, one of my last full years as Chairman, we published 50 precedents, many dealing with extraordinarily difficult and complex issues.
The idea later promoted by the “Ashcroft crowd”—that a very large, diverse, and often divided Board cannot produce timely, important guidance–is ridiculous. Any party could request that a case be designated as a precedent decision. But generally, the Board was not receptive to party requests. The Chair or the Attorney General could also designate a decision as precedential. In addition, by majority vote, any panel could recommend a case for en banc consideration, and a majority vote of the Board could designate a decision as precedential. Almost all of the precedents were the result of the en banc process.
Ironically, one the most common reasons for publication was because the majority wanted to “slam” the dissenters’ position. These tended to be cases that illustrated important points or new interpretations of the law. Also, when new laws went into effect, and we had to interpret new statutory provisions, we were more likely to issue a precedent decision. In fact, there was a lot of controversy on the Board surrounding the dissenting positions. The Members generally got along with each other, but there was a lot of stress related to differing viewpoints. Some Members felt that dissenters were attacking the BIA as an institution. My being in the dissent in a number of precedents strained my relationship with some of my colleagues who were almost always in the majority.
Perhaps this was a consequence of my decision to change the format of BIA decisions so they looked more like court decisions. Therefore, Board Members had personal responsibility for their decisions. This made Board Members more accountable for their decisions, but it also gave them more of a personal stake in each decision.
Unfortunately, the BIA today has abandoned one of its primary functions—to provide timely expert guidance on the INA. Instead, it now publishes mostly non-controversial stuff, unless a Federal Circuit Court orders the Board to enter a precedential decision (I call this, “Go fetch me a precedent”). The initiative for shaping immigration law has gone from the BIA to the Federal Courts. There needs to be reform. I think the Board should function like the 13th Circuit; instead, it is more like the Falls Church Service Center. There are far too many single Member decisions, and the single-Member decisions are all over the place. The Board should use three Member panels in all cases where the IJ decision is not suitable for summary affirmance. That’s the “original streamlining” that I instituted, and it was intended to increase dialogue and careful deliberation, not eliminate it, as has been the case under the misguided “Ashcroft reforms.”
The Board also needs to be independent, but I do not see the willingness in the DOJ to make that necessary change, which would require legislation. When the DOJ wants to resist the Circuit Courts, Congress or public scrutiny, they talk about the Board’s expertise. But when the DOJ addresses IJs and Board Members, they refer to them as just “DOJ Attorneys” -- employees who should follow the Attorney General. In other words, the DOJ’s external message is, “The BIA is like a court, so due process is provided and you should not intervene,” but the internal message to Immigration Judges and Board Members is, “You exist to implement the power of the Attorney General, you aren’t ‘real’ independent Federal Judges.”
ASYLUMIST: What other changes did you make at the Board while you were Chair?
PWS: We started doing more oral arguments, including oral arguments on the road (this is now prohibited by regulation). I thought if we were to function as an appellate court, we should be seen in the different places. Some Members liked this; others did not. Some thought oral argument was a waste of time. However, once I became an Immigration Judge, as you know, I was able to have oral argument in every case.
The BIA Pro Bono Project also started during my time as Chair. Under the Pro Bono Project, volunteer attorneys come to the Board office, review appeals of unrepresented immigrants, and then assign meritorious appeals to volunteer attorneys for representation. There was a lot of internal opposition to the Project because it was seen as the BIA deciding who gets represented and who does not. We had not done anything like this before. But, it has been highly successful.
The Virtual Law Library was also started under my tenure, with strong support and encouragement from Director Moscato. Also, we instituted an “electronic en banc voting system.” We also eliminated the position of “Chief Attorney Examiner/Alternate Board Member” and gave the duties of overseeing BIA staff to the two Vice Chairs who assisted me. That was after the last Chief Attorney Examiner, Neil Miller, who recently retired, was appointed to the Board by Attorney General Reno.
ASYLUMIST: Let's take a break. In next week's installment, Judge Schmidt discusses the "purge," his prescription for fixing what ails the Board, and other controversial stuff. Stay tuned...
Originally posted on the Asylumist: www.Asylumist.com.
By: Bruce Buchanan, Sebelist Buchanan Law
IT companies, SCM Data, Inc., MMC Systems, Inc., their owner, Sowrabh Sharma, and an employee, Shikha Mohta, have been indicted for fraud in federal court, accused of conspiring to lie on applications for H-1B visas for temporary immigrant employees. The falsehoods were promises of full-time, in-house salaried jobs to foreign workers when the truth is they contracted the employees out, did not always pay them their wages and falsified pay stubs to cover-up their unlawful actions.
The defendants “benched” employees, meaning they did not pay them when there was not work for them, which is a violation of the law, and created false pay stubs to cover up their actions. According to the indictment, the workers were pressured into paying Sharma to create the fake documents that indicated they were getting full-time wages, and were told if they did not do this, they would not be allowed to stay in the United States.
The visa fraud and obstruction of justice conspiracy charge carries a potential penalty of five years in prison and a $250,000 fine. The alien harboring conspiracy charge carries a potential penalty of 10 years in prison and a $250,000 fine.
Stay tuned for further developments in this matter – guilty pleas, trial, etc.