ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

All Blog Entries

  1. What immigration enforcement measures is the Senate planning to legislate in 2017? By Nolan Rappaport


    AL.COM / JOHN SHARP
    Senator Jeff Sessions

    The chairman of the
    Immigration and the National Interest Subcommittee, Senator Jeff Sessions, provides an Immigration Handbook for his Republican colleagues on his website
    . It describes immigration problems that the Senate should address and suggests the following enforcement measures.

    The Obama Administration is leaving President Elect Donald Trump with an immigration court crisis that the handbook does not address. During the month of October, the court’s backlog reached 521,676 cases, which made the average wait for a hearing 675 days. Congress needs to address this crisis or assist President Elect Trump in forcing undocumented aliens out of the country without deportation proceedings, such as with the stipulated-removal program that President George W. Bush used in 2004.

    I suggest a legalization program to reduce the number of cases in immigration court and the population of deportable aliens generally. It could be limited to undocumented immigrants who pass extreme vetting.


    • Mandatory E-Verify to protect American jobs and wages.


    While it is not possible now to deport millions of undocumented aliens, it is possible to make staying here less desirable. For instance, most of them come because employment is available here. This is referred to as “the job magnet.” Employer sanctions were established in 1986 by the Immigration Reform and Control Act to make it more difficult for undocumented immigrants to find employers willing to hire them. E-Verify is a voluntary, Internet-based system for determining whether prospective foreign employees are authorized to work in the United States. It was established originally in 1997, as the Basic Pilot Program. These programs have never been implemented on a large-scale, nationwide basis, and I doubt that they ever will be.

    Prakash Khatri and I have proposed focusing on a different magnet, the fact that it is so easy for American employers to exploit undocumented foreign workers. That’s what draws unscrupulous employers to unauthorized workers. With additional resources, the Labor Department could address employee exploitation purely as a labor issue by targeting industries that are known to exploit undocumented foreign workers using its authority under the Fair Labor Standards Act.


    • Ending tax credit and welfare payments to illegal immigrants.


    This would make it difficult for undocumented immigrants who cannot find work to stay here, but I suspect that the failure to deal with these problems is due more to lack of funding to implement current legislation than it is to a need for additional legislation.


    • Closing asylum and refugee loopholes.


    One of the problems with asylum grants is that the immigration judges are not applying a uniform standard. TRAC’s report, Judge-by-Judge Asylum Decisions in Immigration Courts FY2009-2014, shows extreme discrepancies in the grant-rates of the immigration judges. An asylum seeker might have only a 15% change of being granted asylum all the way up to a 71% chance depending on the particular judge assigned to hear the case. The Board of Immigration Appeals is supposed to deal with such problems. If Senator Sessions becomes the Attorney General, he will have authority to replace current Board members with new ones who can ensure uniformity in asylum grants.

    President Elect Trump will have sole authority under section 207 of the Immigration and Nationality Act to set the number of refugees. He will be required to consult Congress, but he will not need its approval.


    • Cancelling federal funds to sanctuary cities.


    Senator Sessions is referring to cities that have adopted measures that seek to thwart federal efforts to identify and apprehend unlawfully present aliens within their jurisdictions. Sanctuary cities face the risk of losing billions of dollars. Consequently, the Trump Administration should be able to succeed in ending this practice with support from Congress.


    • Empowering local officials to coordinate with ICE officers.


    Unless the immigration court backlog crisis is resolved, this would just increase the number of apparently deportable aliens who cannot be deported.


    • Establishing criminal penalties for visa overstays.


    This would give aliens who overstay the right to counsel at government expense, which would be very expensive. Moreover, our federal criminal court system would not be able to accommodate such a large increase in its caseload. The latest available data show that prosecutions for illegal entry, illegal re-entry, and other criminal immigration violations accounted for 52% of all federal prosecutions in FY2016.


    • Ending catch-and-release on the border with mandatory detention and expedited deportations.


    This refers to the practice of processing undocumented aliens caught making illegal entries and then releasing them if they promise to return for their hearings. This is done because ICE does not have the facilities needed to detain them. Will the Republicans provide sufficient detention facilities? They have not been willing to do this in the past, and the numbers are much larger now with the present backlog in the immigration courts.


    • Suspension of visas to countries with high overstay rates or those that won’t repatriate criminal aliens.


    Overstay rates already are a basis for participation in the Visa Waiver Program(VWP). Nationals from non-VWP countries need visas, which are issued on a case-by-case basis. Although the visa overstay rate of an alien’s country may be a factor, other factors might make overstaying too unlikely to warrant denying the visa application on that basis.

    Section 243(d) of the Immigration and Nationality Act authorizes discontinuing visas to nationals of a country that does not accept or unreasonably delays the return of its nationals, but I do not think this authority has been used yet. And I do not think it would make much difference. In FY2015, ICE released 19,723 criminal aliens who were subject to final deportation orders and only 89 of these releases were the result of countries refusing to repatriate their criminal aliens.


    • Mandating completion of the exit-entry system.


    A fully implemented entry-exit tracking system would make it possible to compile lists of overstays, and this would be useful for determining whether Visa Waiver Program countries should be allowed to remain in the program. It, however, would not tell ICE where the overstays are located.


    Published originally on Huffington Post.
    http://www.huffingtonpost.com/entry/...=1481151544811

    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 12-07-2016 at 09:32 PM by ImmigrationLawBlogs

  2. Will Trump Be Able To Use Information From DACA Applications In Removal Proceedings? By Nolan Rappaport


    AMERICA BY THE NUMBERS
    Kids at DACA rally

    In 2012, President Barack Obama used his executive discretion to establish the Deferred Action for Childhood Arrivals (DACA) Program. It grants temporary lawful status and work authorization to certain undocumented immigrants who came to the United States as children. The status expires in two years unless it is renewed.


    I do not think that President Obama intended information from DACA applications to be used as a basis for finding DACA applicants deportable in removal proceedings, but there is reason to think that it can be used that way. Apparently, he failed to tell the agency charged with implementing the program that application information should not be used for enforcement purposes.


    Lack of protection in DACA Program.


    President Obama frequently cites this observation by Robert Gates, his first defense secretary, “One thing you should know, Mr. President, is that any given moment, on any given day, somebody in the federal government is screwing up.” President Obama adds: “Even if you’re firing at a 99.9 percent success rate, that still leaves a lot of opportunity for things not to go as planned.” This is illustrated by the following paragraphs from the Frequently asked Questions list on the U.S. Citizenship and Immigration Services website for the DACA program, which explicitly state that the promise not to use application information for immigration enforcement purposes can be “modified, superseded, or rescinded at any time without notice” and was not intended to be relied upon in any legal proceedings. This will make it extremely difficult to prevent the use of information from DACA applications in removal proceedings.


    Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes?

    A19: Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter. (Emphasis added.)

    Q20: If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?
    A20: If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

    This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. (Emphasis added.)

    Would the deportability of DACA participants be difficult to prove in removal proceedings?


    DACA participants have acknowledged that they are aliens, and this is sufficient to establish a rebuttable presumption of deportability under section 237(a)(1)(B) of the Immigration and Nationality Act (INA) for being in the United States in violation of law, unless they can prove lawful presence. See section 291 of the INA, the pertinent part of which reads as follows:


    Sec. 291of the INA .... In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, ... If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.

    A better way to fix our broken immigration system.



    Congress writes the immigration laws, not the president. The president does have discretion on how he implements the laws, but what one president does with an executive order, a subsequent president can undo with a new executive order. Only Congress can provide lasting protections for immigrants who participate in legalization programs. The last permanent legalization program was established by the Immigration Reform and Control Act of 1986, which included a confidentiality provision that prevented information from legalization applications from being used in removal proceedings. The pertinent part of the confidentiality provision reads as follows:


    (5) Confidentiality of information. —- Neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—

    “(A) use the information furnished pursuant to an application filed under this section for any purpose other than to make a determination on the application or for enforcement of paragraph (6), ....

    Anyone who uses, publishes, or permits information to be examined in violation of this paragraph shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both.

    (6) Penalties for false statements in applications....

    Will President Elect Donald Trump use information in DACA applications in removal proceedings?


    According to recent statements, he plans to focus deportations on convicted criminals, which basically is a continuation of President Obama’s enforcement priorities, and the backlog crisis in our immigration courts severely limits how many people he can put through removal proceedings.

    Published originally in Huffington Post.
    http://www.huffingtonpost.com/entry/...=1481150769288

    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.



  3. EOIR Announces New ALJ for OCAHO

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

Name:	eoir.jpg 
Views:	62 
Size:	17.1 KB 
ID:	1146

    The Executive Office for Immigration Review (EOIR) announced the appointment of James McHenry as an administrative law judge (ALJ) in EOIR’s Office of the Chief Administrative Hearing Officer (OCAHO), effective November 14, 2016. The arrival of ALJ McHenry will provide OCAHO with a permanent ALJ to replace one ALJ, Ellen Thomas, who retired, and another ALJ, who transferred out of OCAHO.

    OCAHO adjudicates cases of hiring of undocumented workers, I-9 verification violations, complaints of discrimination based on an individual’s citizenship status or national origin or overdocumentation in the employment eligibility verification process, and allegations of immigration*-related document fraud.

    ALJ McHenry earned a Bachelor of Science degree in 1997 from the Georgetown University School of Foreign Service and a Juris Doctor degree in 2003 from Vanderbilt University. Prior to his appointment to OCAHO, Mr. McHenry was an ALJ for the Social Security Administration. Before that, Mr. McHenry served in a variety of capacities with the Office of the Principal Legal Advisor, Immigration and Customs Enforcement (ICE) and the U.S. Attorney’s Office.
    Tags: alj, eoir, i-9, ocaho Add / Edit Tags
  4. Company Off the Hook for Over $1.4 Million in Penalties

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

Name:	ppluslogo400x102.jpg 
Views:	54 
Size:	10.5 KB 
ID:	1145

    In an unusual case, the Office of Chief Administrative Hearing Officer (OCAHO) granted a Motion for Summary Judgment filed by Personnel Plus, Inc. in U.S. v. Spectrum Technical Staffing Services and Personnel Plus, Inc., 12 OCAHO no. 1291 (Nov. 2016).

    Immigration and Customs Enforcement (ICE) issued a complaint against Spectrum alleging it committed 2,147 substantive and uncorrected technical errors and sought a penalty of over $1.4 million. A few months later, ICE filed a Motion to amend the Complaint to add Personnel Plus as a Respondent. OCAHO granted the motion.
    Personnel Plus filed an Answer to the Amended Complaint asserting it was not a successor or alter ego of Spectrum. Thereafter, Personnel Plus filed a Motion to Dismiss/Motion for Summary Judgment seeking to be removed from the case.

    The underlying legal arguments and facts were somewhat complicated and centered around any relationship between Spectrum and Personnel Plus, and if such existed, whether liability should attach to Personnel Plus. ICE asserted Personnel Plus was a “mere continuation” of Spectrum and thus met an exception to the general rule that a successor company does not acquire the liabilities and obligations of a predecessor company; thus, it cannot be found liable. ICE stated four factors should be considered: (1) continuity of ownership, (2) time lapse between dissolution and formation of the respective companies, (3) continuation of the business, and (4) the assumption of liabilities by the new entity.

    Concerning ownership, Ms. Goslin was the owner of Spectrum while her husband, Mr. McKay, who was divorcing Ms. Goslin, was the owner of Personnel Plus. Although Spectrum initially listed both Ms. Goslin and Mr. McKay as owners, OCAHO accepted corporate documents filed with the state which showed Mr. McKay was not an owner of Spectrum. Second, although Spectrum curtailed its operations after the formation of Personnel Plus, it did not cease to exist as an entity and continued on a scaled-down basis. Finally, there was no evidence of assumption of liabilities by Personnel Plus although ICE stated it was seeking that information in discovery.

    One fact that ICE attempted to use in its favor is that the couple’s divorce decree stated Mr. McKay would receive 55% and Ms. Goslin 45% of profits if either Spectrum or Personnel Plus was sold. However, OCAHO did not find this to constitute common ownership. Another fault cited by ICE was that for a short period of time, Spectrum and Personnel Plus shared office space. However, OCAHO did not find this evidence sufficient to find liability on behalf of Personnel Plus.

    Personnel Plus argued there was not any significant transfer of assets from Spectrum to Personnel Plus, which is required before addressing a “mere continuation” analysis. ICE asserted there was a transfer of assets, but it was unable to provide proof of such, although it felt its discovery requests would provide such proof.

    OCAHO concluded ICE failed to demonstrate a transfer of all or substantially all of Spectrum’s assets to Personnel Plus, which is a prerequisite to establishing corporate successor liability. Assuming arguendo there was a transfer, OCAHO found the record does not show any exception to the general rule that a successor does not acquire the liabilities of the predecessor.

    The case will continue with Spectrum as the only Respondent. I will keep you informed of further developments in this case.
  5. OSC Settles Two Immigration-Related Discrimination Claims

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

Name:	Department of Justice PNG.jpg 
Views:	33 
Size:	20.8 KB 
ID:	1144

    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, reached settlements resolving claims that the Denver Sheriff Department and the Aldine, Texas Independent School District discriminated against work-authorized immigrants in violation of the Immigration and Nationality Act (INA).

    The investigation found that from approximately January 1, 2015 until March 23, 2016, the Denver Sheriff Department discriminated based on citizenship status by requiring applicants for deputy sheriff positions to be U.S. citizens and publishing job postings with U.S. citizenship requirements, in violation of the INA. The INA’s anti-discrimination provision prohibits employers from limiting jobs to U.S. citizens except where the employer is required to do so by law, regulation, executive order or government contract. The Denver Sheriff Department was not subject to one of the INA’s exceptions.

    Under the settlement agreement, the Denver Sheriff Department will pay $10,000 in civil penalties; identify applicants who may have been disqualified from consideration for deputy sheriff positions due to the citizenship requirement and consider these applicants’ qualifications without regards to their citizenship; train its human resources staff on the anti-discrimination provision of the INA by attending an OSC webinar; provide the OSC every 6 months for the next three years the completed I-9 forms of all new hires and all recruiting advertisements; and review and revise its policies and procedures to comply with the requirements of the INA’s anti-discrimination provision.

    The other investigation found that Aldine School District required non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documents when reverifying their employment eligibility once their original documents expired. The INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship or national origin when verifying or reverifying an employee’s authorization to work.

    As part of the settlement agreement, Aldine School District will pay a $140,000 civil penalty, revise its policies and procedures, and train its human resources staff on the anti-discrimination provision of the INA by attending an OSC webinar.
    In a unique remedy, Aldine School District will implement a three-year program to train students and students’ parents on the requirements of the INA’s anti-discrimination provision. Specifically, the training program will be focused on educating adult participants in Aldine’s parent literacy/English as a Second Language (ESL) classes, 12th grade students enrolled in certain classes and the school district’s employees.
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: