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Yesterday, the ACLU and Cooley LLP filed a class-action law suit in California challenging what they characterize as "endemic abuses" stemming from Border Patrol and ICE officers employing "misinformation" and "deception" to coerce Mexican nationals to sign voluntary departure orders and forgo their right to a hearing before an immigration judge.
From the ACLU of Sandiego website:
The lawsuit, Lopez-Venegas v. Napolitano, alleges that as a matter of regular practice, Border Patrol agents and ICE officers pressure undocumented immigrants to sign what amounts to their own summary expulsion documents. The procedure is formally known as "voluntary departure," but it regularly results in the involuntary waiver of core due process rights. An individual who signs for voluntary departure immediately surrenders his or her rights to a hearing before an immigration judge and is usually expelled to Mexico within a matter of hours.
The lawsuit was filed by the ACLU of California, the ACLU Immigrants' Rights Project, and Cooley LLP. It includes seven individual plaintiffs that claim that their constitutional rights violated.
Anthony Stiegler, partner at Cooley LLP, provided the following comment:
"The policy and practice of misrepresenting an individual's legal rights to summarily deport them from this country is inconsistent with the fundamental notions of fairness and due process under our Constitution. The United States derives its core strength because we embrace these values and abide by the rule of law."
I couldn't have said it better myself Mr. Stiegler.
Click here for more information.
In my June 3 post, I compared the "No Amnesty" slogan which killed immigration reform in 2007 with the "Border Security" strategy which immigration opponents are now using as their main weapon to defeat CIR in 2013. Of the two, the "Border Security" scam (hereinafter "BS") is more dangerous to immigration reform precisely because, on the surface, it appears to be more legitimate.
"No Amnesty" is a cry of hate, pure and simple, No one in America can seriously believe that this phrase is anything more than racial buzzwords whose real meaning is "No Hispanics", in keeping with the spirit of their mid-19th century predecessor: "No Irish".
In 2007, transparent hate against Latinos and all immigrants of color was not only acceptable politically, but was mainstream. In 2002, the late Harvard professor Samuel Huntington, who was widely considered an expert on the "Clash of Civilizations", published his book "Who Are We?".
This book was no less full of anti-Latino racial slurs than the work of another bigot associated with Harvard (but with a far shorter career which has already ended), Jason Richwine. Huntington asserted, for example, that Latinos were lazier than whites for "cultural" reasons.
This kind of transparent bigotry helped to defeat immigration reform in 2007. But then came the 2012 election. Open anti-Latino hate had clearly outlived its political usefulness. It was time to look around for another strategy to defeat immigration reform. The solution was "Border Security"
The Obama administration has, arguably, done more and spent more money than any other administration in memory to protect America's borders against those who present a genuine threat to our security. It has also deported people at a faster rate than ever before in our history.
But reality has little to do with the anti-immigrant lobby's attempt to use BS a political tool in order to defeat CIR.
For CIR opponnents, "Border Security" is not about protecting America against criminals and terrorists. It is about spreading the lie that the Obama administration is doing little or nothing to control the Mexican border. It is also about exploiting fears that immigration reform will lead to more "waves" of Latino and other minority immigrants coming to the US in the future, with or without legal permission.
Most of all, using BS as a political scam means making impossible to fulfill border control demands as the price for support of CIR, or a means to render CIR totally ineffective. The June 4 Politico gives an example of this in a proposal by Senator John Cornyn (R-TX), no friend of immigration reform, in its article: John Cornyn's big ideas on immigration.
According to this article, Cornyn is asking for 100 per cent (!) operational control of the Mexican border, with a 100 per cent "border surveillance" rate and an 90 per cent illegal crossing apprehension rate before unauthorized immigrants in provisional status would be allowed to apply for green cards.
The waters of the Rio Grande are likely to turn into concrete before these goals are achieved. It is an even more ominous sign for reform that Senator Marco Rubio (R-FL) of the Gang of Eight, who has become the very face of CIR, appears to be buying into BS as well.
According to Politico: Marco Rubio: Immigration bill short of 60 votes (June 4), Rubio is now also preparing to blame the possible failure of CIR on the red herring of allegedly lax border control by the Obama administration: Politico quotes Rubio as follows:
"We don't want to be back here in two years, in five years, 10 years, dealing with another 5 or 10 million illegal immigrants... And people don't trust the Department of Homeland Security to do this job or come up with a plan that will do the job."
Will "Border Security" be enough to defeat CIR? If even Marco Rubio is buying into BS, he could be right in predicting that CIR may fall short of 60 votes in the Senate, as it did six years ago.
Or maybe Hamlet is a better comparison. Here's his interview with CNBC this morning. Hat tip to reader Beppe.
Not too many years ago Samuel Kooritzky, a Virginia immigration lawyer, sued the Department of Labor and argued successfully that employers should be able to substitute aliens in approved labor certification. Prior to the Kooritzky suit,DOL had usually held that a labor certification could only be used once for the alien named in the certification.
Kooritzky insisted that the labor certification did not attach to the alien or employer, but only established the fact that no qualified US workers were available at that time and place of recruitment to fill a position offered by a US employer. The language of the statute places the burden of proof on the Certifying Officer to prove that there are no US workers able, qualified, willing or available to perform the job duties, provided that the Employer proffers a properly executed application in accordance with the regulations.
Kooritzky enjoyed only limited success, however, because, he was subsequently indicted for fraudin labor certification proceedings, in which he was found to have created false job opportunities by forging signatures for recycled labor certifications. The plan is said to have involved approximately 2,700 fraudulent labor certification applications, some of which may have been sold to aliens for $20,000 or more so they could be substituted for the named beneficiary on approved labor certifications.
Following the Koortizky debacle, the DOL responded en suite by promulgating new rules prohibiting the sale, transfer or substitution of labor certifications.
A new betrayal of trust has now come to my attention. A paralegal-turned-attorney in New YorkCity created an advertising and recruitment business ostensibly to assist employers in placing ads for job opportunities in newspapers, journals and other forms of commercial media. Unbeknownst to his superiors, who are prominent lawyers with impeccable credentials, the crafty malfeasant created hisrecruitment firm without their knowledge and collected nearly $500,000.00 for labor certification recruitment ads, some of which were never published.
When the supervising attorney discovered this wrongdoing, he immediately fired the culprit, who has just been named as a defendant in violation of 1831 U.S.C. 1 & 2 in a federal indictment brought in the United States District Court of New Jersey.
Questions now arise about the immigration consequences for the victims, who abound in numbers. Specifically, what will become of the PERM applications, I-140's, and residency applicationswhich were processed in good faith by the parties who had no knowledge of the underlying deceit?
It appears that victims may fall into the following categories: (1) PERM applications in thepipeline; (2) Approved PERM applications with I-140 Petitions in the pipeline but not yet approved; (3) I-140 Petitions approved; (4) Applications for permanent residency pending at US Consulates abroad or at USCIS offices in the US; and (5) Aliens who have already been granted permanent residence.
Under the pre-PERM rule, approved labor certifications could be invalidated (but not revoked) by theDHS, a Consul or a Court, based on a finding of fraud or willful misrepresentation of a material fact involving the labor certification application. The finding of invalidation had to be made in ccordance with those agencies' procedures or by a court. Revocation did not exist as a separate action.
PERM has maintained the option of invalidation by DHS, a Consul or a Court, but has added that revocation is now permitted by the CO if the CO believes that the approval of an application was not justified.
The distinction between invalidation and revocation is that invalidation for fraud or willful misrepresentation involves wrongdoing with scienter, presumably by the parties who applied, while revocation is based on the CO's belief that the approval was simply not justified. Thus an invalidation under PERM should only occur when the attesting parties have deliberately sought to mislead, while revocation may occur, for example, when a mistake was made.
The difference between these two terms may sometimes become blurred when reference is made toregulations and interpretations of specific government agencies.
Given that labor certifications and I-140 immigrant petitions are two distinct applications filed for processing by DOL and DHS, stakeholders must consider invalidation for fraud or willful misrepresentation as a possibility for cases in the pipeline, as well as challenges by DOS and DHS if the immigrant petitions have already been approved and the aliens have residency applications pending at a US Consulate abroad.
Absent a showing of fraud or willful misrepresentation by the parties, the CO may revoke a labor certification approval upon the belief that approval was not justified. If that is true, the lack of a finding of fraud or willful misrepresentation might enable employers to file new applications and retain the original priority date for petitions that were already approved but not invalidated for fraud or willful misrepresentation.
The treatment of these terms of art by three agencies - DOL, DHS, and DOS - and the interplaybetween and among them is itself very complex and will be the subject of another blog.
The criminal complaint in this case was just filed in District Court and much is still unknown aboutthe details, but it may prove to be a ground-breaking case for the interpretation of legal rights and obligations under the PERM Rule and Section 204 of the INAwhich covers Immigrant Visa Petitions.
In the Kooritsky case, it has been reported that guidelines to determine the fate of the clients included the possibility of deferred action on a case by case basis; review of applications and petitions with no presumption of fraud, with the burden of proof being on the government to prove fraud; retention of appeal rights by the victims; the routing of legitimate applications to appropriateoffices for adjudication; and orders of supervision for aliens placed into removal proceedings.
Prosecutorial discretion includes the option not to disturb specific cases. Discretionary issues might include the broad and bona fide search for US workers documented by the Employer, notwithstanding the lack of adherence to specific advertising requirements. Each case would need to be examined with specificity to determine the recruitment efforts that occurred along with those that did not and the overall effect on the US Job Market.
The final bailout for the innocent victims who have already become permanent resident aliens might be found under Section 212(k) of the INA, which provides a waiver to immigrants who were unaware of their ineligibility for admission and who could not have discovered the ineligibility by exercise of reasonable diligence.
It appears that the establishment on the left is finally starting to take notice of President Obama's deportation record. On Sunday Arianna Huffington appeared on This Week with George Stephanopoulos where she called Obama's record deportations a "scandal" that nobody is talking about:
"More people have been deported over the Obama administration than over the whole two terms of George Bush. And we've had, for example, since 2010, 200,000 parents of American citizens being deported for minor offenses. This is a real tragedy. And if this were being done under George Bush, Democrats would have been up in arms."
She goes on saying that there is no accountability in the White House for their own actions calling the deportation and detention system a real nightmare.
Any of this sound familiar?
Here is a clip from the segment. You need to go to the 6:45 minute mark to hear her comments, and the typical response from the Obama apologist David Plouffe that DREAMers aren't being deported, which we all know isn't true. Thankfully, Ms. Huffington called him out on it.
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