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  1. Federal Court to Obama Administration: Stop Deporting Defense Witnesses

    by , 09-19-2012 at 05:34 AM (Matthew Kolken on Deportation And Removal)
    It looks like you can add defense witnesses to the list of immigrants that are a deportation priority of the Obama administration.  Sandra Hernandez of the L.A. Times has reported that the 9th Circuit Court of Appeals issued a stern warning to the federal government, who apparently has made a habit of deporting witnesses that are able to provide material testimony that would assist in the defense of defendants in criminal proceedings.
    The case involves an individual that was ultimately convicted of the crime of alien smuggling under 8 U.S.C. § 1324(a)(2)(B)(iii).  There were four immigrants that were willing to be potential witnesses.  The three immigrants that were willing to testify in a way that was favorable to the prosecution were permitted to remain in the United States.  The one immigrant that gave statements on multiple occasions exonerating the defendant was deported.
    Judge Alex Kozinski issued the following decision:

    May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has even been appointed? We believe the answer is self-evident, as the government recognized in an earlier case where it moved to vacate a conviction after it deported witnesses whose testimony would have exculpated defendant.

    This is not the first time that the government admitted to deporting defense witnesses.

    We had assumed... that the government would refrain from putting aliens who
    could provide exculpatory evidence beyond the reach of the
    court and defense counsel. But whatever wisdom the United
    States Attorney for the Southern District of California gained
    in Ramirez-Lopez appears to have applied to that case and that
    defendant only. We change that today.

    Needless to say the 9th reversed the conviction, and remanded the case back to the lower Court to decide whether to dismiss charges with prejudice as a consequence of the Government's (mis)conduct.
    This is not the first time I have seen deportation used as a weapon against defense witnesses.  In one of my own cases a Special Agent from ICE testified under oath that he threatened my defense witness with deportation if he wasn't willing to testify for the Government.
    Apparently, the government has forgotten that their duty is not to win at any cost, but to ensure that justice is done.
    Thankfully, we have the 9th Circuit Court of Appeals to remind them.
    Click here to read the full opinion of the Court.
  2. Integrity and Intensity

    The following DACA field report comes from Carmen Cornejo of Dream Act Arizona:
    GED seekers are confronting serious obstacles in Arizona. 
    The State Legislature has been cutting Adult Education budgets to the point of
    starvation and Prop.300 denied public funding for undocumented youth since
    2007.  The remedial high school certification landscape is a difficult one
    for citizen and undocumented immigrants alike.
    Many persons who are reaching out to me seeking information for
    GED instruction are young mothers in their early 20s who dropped out of high
    school due to pregnancy and now find difficult to find GED instruction to
    re-enter education.  USCIS willingness to accept enrollment to GED
    programs for Deferred Action for Childhood Arrivals (DACA) applicants without a
    High School diploma is suddenly increasing the demand and urgency for GED
    classes by these individuals.
    Here is a list of challenges GED seekers are finding in Arizona
    and specially Maricopa County:
    Decreased funding. GED instruction has been
    severely de-funded. In 2010, Governor Brewer signed a budget that eliminated
    the $4.5 million appropriation for Adult Education and GED Testing.  When
    Arizona eliminated this GED funding, it also lost $11 million in matching
    funds from the Federal government.
    On line classes. Some GED outlets at Community
    Colleges only offer on-line classes to undocumented youth which may be a
    challenging setting for low proficiency students.
    Students with different levels of proficiency.
    GED  instructors need to assess different levels of proficiency. It
    may take real commitment and monetary investment 

    from some students to make up for lost time, acquire a GED
    certification and then apply for DACA.
    Bureaucratic barriers. Community colleges in
    Maricopa County (one of the largest in the nation) took time to implement new
    Arizona Department of Education's ID policies and their own internal guidelines
    and denied GED instruction to some, especially during the first weeks after
    August the 15th.  Some Community Colleges' personnel in
    Maricopa County are not properly trained to offer consistent, non-intrusive
    enrollment procedures and question about immigration status, SS#.
    Different programs, funding and models create confusion. 
    Non-profits are creating their own models to offer tuition based GED programs
    for people seeking to apply to DACA and comply with Prop. 300 at the same
    Potential for fraud. Some organizations, charter
    schools are charging up to 4,500 for "High School Diplomas"; others offer "too
    good to be true" on-line classes. It may be difficult for immigrant youth to
    assess the adequate "intensity and integrity" of a GED, High School competition
    program, putting the burden of proof on the undocumented youth for DACA
    Uneven production of enrollment documents to apply for DACA. GED
    outlets are still figuring out the production of documentation and receipts
    helpful for DACA applicants.
    DREAM ActVolunteer non-profit organizations, CADENA, The Arizona
    DREAM Act Coalition  and Tucson based Scholarships A-Z are taking the task
    to guide GED seekers in order to have a better educated workforce for the state
    and to have  young immigrants, so many times forgotten, applying for DACA.
    Carmen Cornejo
    CADENA-ADAC Arizona
  3. USCIS Issues Guidance on Whether or Not to Disclose Fraudulent Use of a Social Security Number on Employment Authorization Application

    by , 09-18-2012 at 07:55 AM (Matthew Kolken on Deportation And Removal)
    On September 14, 2012, USCIS issued an update to their Deferred Action for Childhood Arrival (DACA) frequently asked questions page. One of the updates is of significant importance, as it answers the big question that we have all been asking: should a DACA applicant disclose ALL social security numbers used, real or otherwise, on the Form I-765, Application for Employment Authorization.
    I'm specifically referring to Question 9 on the I-765 that asks the applicant to provide your social security number and then followed in parentheses states: "include all numbers you have ever used. If any."
    Many of us have voiced concerned about this question because the DACA FAQ also contains the following warning: 

    "USCIS is committed to safeguarding the integrity of the immigration process. If individuals knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to have their case deferred or obtain work authorization through this process, they will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States." [Emphasis added]

    The updated FAQ adresses these concerns by issuing guidance relating to the disclosure of social security numbers:

    "New - Q9. How should I fill out question nine (9) on the Form I-765, Application for Employment Authorization? 
    A9. When you are filing a Form I-765 as part of a Deferred Action Childhood Arrivals request, question nine (9) is asking you to list those Social Security numbers that were officially issued to you by the Social Security Administration."
    Here are my first glance concerns.  
    The USCIS FAQ does not have the full force of law, is unsigned by any USCIS official, and is subject to change at any time.  Equitable estoppel does not generally apply in the immigration context, and as a result if an individual detrimentally relies on the current guidance, and if that guidance is later revoked or altered, it is feasible that a future administration may negatively interpret any failure to disclose "all social security numbers used." 
    There is an entire line of case law that specifically deals with failure to disclose material facts. Generally, if the concealment of material facts constitutes a misrepresentation it may subject an individual to deportation.
    I'm not saying that a change in the current interpretation of Question 9 is imminent, or even likely to occur, but I do see the red flag, so I am mentioning it for consideration.
    The bottom line is that I would feel a whole lot more comfortable if USCIS amended the actual Form I-765 rather than just the FAQ.  In a perfect world the question would read: "include all social security numbers ever used that have been assigned to you by the Social Security Administration."
    Unfortunately, the world of immigration law is anything BUT perfect.
  4. Schumer Introduces STEM Bill to Match House

    by , 09-18-2012 at 04:53 AM (Greg Siskind on Immigration Law and Policy)
    A good sign, but let's see the language.
  5. Romney: I'll Fix the Immigration System!

    by , 09-17-2012 at 01:06 PM (Greg Siskind on Immigration Law and Policy)
    Uh, okay. No new ideas. Let's see - we know he opposes the DREAM Act and anything that smells like amnesty and except for supporting liberalizing immigration rules for STEM (science, technology, engineering and math) professionals - something also stated in the Democratic platform - it's not really clear what he'll offer that's different than what we've gotten from hardliners in the GOP for the last several years.
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