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  1. In the Presidential Election the Lesser of Two Evils is Still Evil

    by , 03-28-2012 at 08:43 AM (Matthew Kolken on Deportation And Removal)
    I had a very spirited exchange in the comment section to my friend and colleague Roger Algase's recent blog.  Roger is an excellent attorney, and much smarter than I, so I appreciate the opportunity to voice a response to his always well written blogs.  We mostly agree on both the facts and the law, but there appears to be one sticking point where we simply can't get over the hump.  It relates to the upcoming Presidential election.
    I'll take the liberty of paraphrasing Mr. Algase, and Roger please feel free to chime in with a response, as your thoughts are always welcomed and appreciated.  In sum, Mr. Algase is throwing his support behind President Obama's reelection campaign as a result of his justifiable fears that the eventual Republican nominee will be adversely detrimental to the cause of immigration reform, and most importantly, immigrant rights.  Of this there is no disagreement.
    Our disagreement is principally over whether it is short sighted to turn our backs to President Obama, akin to throwing the baby out with the bathwater.  I argue that, to the contrary, supporting President Obama's reelection will in the long term retard the advancement of immigration reform and immigrant rights, that President Obama's administration is the one making the water dirty, and that they all need to be thrown out, dirty suds and all.  
    Although Mr. Algase points out that President Obama is the lesser of two evils (this point is debatable), this does not in any way detract from the fact that Obama's immigration enforcement and deportation policies ARE EVIL.  
    Should Obama win reelection immigration reform will continue to be ignored, and the Administration will deport another million immigrants. As such, supporting Obama's campaign for his second term sends the message to the Democratic party that they can continue to turn their back to immigration reform, while ignoring the torture, rape, abuse, and in some instances murder of immigrants unlawfully detained in immigration detention, while the Administration advances the goal of deporting more immigrants than at any time in history, enforcing racist and homophobic policy positions in the process.
    Because the Democrats (rightly) believe that the immigration reform vote will come regardless of their (in)action(s), there is no motivation for the party to champion the issue after the election.  The only way that this reality will change is if the Democrats lose the CIR vote to a third party candidate, and subsequently the Presidency in 2012.  If this does happen, in 2016 the Democrats will finally be forced to understand the significance of effectuating fair and humane immigration reform, championing the issue, and putting an end to the destruction of hundreds of thousands (millions) of families through deportation, while taking meaningful steps to clean up the abuses permeating the immigration enforcement and detention system.
    That is called foresight.
    If Obama wins reelection while garnering the immigration reform electorate, I can tell you with 100% certainty that there will be another million+ immigrants deported, and we will be no closer to immigration reform than when he promised to address the issue in his first 100 days in office.
    The point being, supporting the Deporter in Chief enables this President, and his party to ignore the very issue that he absolutely needs to maintain the office.
    Respectfully, I implore all of you to stop being the enabler.  Do not support this President.
    If it means that we will see no immigration reform in the next four years under a Republican administration, so be it, because I guarantee you one thing, we won't ever see it in an Obama Presidency, and there is no possible way that a Republican can do worse than what we have seen under Obama.
    To be blunt, Obama has done more damage to immigrants, the cause of immigration reform, and to the Constitution than any President in history, and that specifically includes George W. Bush.
    Needless to say, labeling Obama as a disappointment, or a failure, is the understatement of the millennium.
    So I ask you this, how many immigrants need to be rounded up, and thrown into solitary confinement, where they are raped, tortured, abused, and murdered before the issue is no longer an inconvenience to the goal of reelecting a man merely because he is the lesser of two evils.
    Vote third party in 2012, and give a voice to the voiceless.
  2. Report: Obama Administration Fails to Clean-Up Deeply Flawed Immigration Detention System

    by , 03-27-2012 at 07:31 AM (Matthew Kolken on Deportation And Removal)
    NYU's School of Law Immigrant Rights Clinic in cooperation with the New Jersey Advocates for Immigrant Detainees has issued a report about the Obama administration's failed efforts to reform the immigration detention system in Essex County New Jersey.  They reviewed two facilities, Delaney Hall and the Essex County Correctional Facility (ECCF).  They found that both detention facilities fail to meet the bare minimum of humane treatment and due process. 
    The report also found that not only has the Administration broken their 2009 promise to meaningful review the system, they have taken steps to expand it.
    Here are the key findings of the report:

    The current conditions for immigrant detainees in Delaney Hall and ECCF do not fully comply with the ICE Performance-Based National Standards for 2008 or for 2011.  


    Although the purported purpose of immigration detention is not punishment but rather ensuring the appearance of immigrants at removal proceedings, the lack of liberty and conditions of immigrant detainees in Essex County, NJ mirror those of inmates in prison facilities for serious crimes.


    In 2011, the number of immigration detention beds in Essex County increased by 150 percent from 500 to 1,250 detainees per day. Essex County now holds over half of all immigrant detainees in New Jersey.


    Immigrant detainees in Delaney Hall and ECCF are not treated with the human dignity and respect they deserve. Many reported verbal abuse and mistreatment from guards and jail staff.


    During 2011, immigration detainees in ECCF filed 158 written grievances. These grievances included allegations of mistreatment from ECCF staff, inadequate access to special diet meals, and delayed or unanswered requests for medical attention.


    According to written grievance records, ECCF has been in violation of at least five detention standards in 2011 concerning medical attention, food service, religious services, access to legal counsel, and visitation services.


    From October 2011 through December 2011, detainees in Delaney Hall filed 46 written grievances. These included allegations of mistreatment from Delaney Hall staff, cold dormitories and inadequate blankets during the winter, and unacceptable food quality. 


    According to written grievance records, Delaney Hall has been in violation of at least five detention standards in 2011 concerning medical attention, food service, religious services, access to legal counsel, and visitation services.


    In both ECCF and Delaney Hall, violations of detainees' rights to due process and access to justice were reported including obstacles to detainees contacting their attorneys after transfers and the negative impact of video conferencing on attorney-client confidentiality and due process rights.


    These conditions underscore the need for oversight of ECCF and Delaney Hall, and lend support to the community's criticism of the lack of transparency through which ICE, Essex County, and Community Education Centers contracted to expand detention in these facilities.

    So here is the bottom line, not only has the Obama administration completely failed to address the acknowledged problem that immigrants are being abused in substandard detention facilities, but their deportation policies have jammed more immigrants into the system than at any time in history. It should be noted that a significant percentage of the individuals being detained by the Administration have no criminal grounds of removability, and have been merely charged with civil immigration violations.
    Another epic fail from the office of the Deporter in Chief.
  3. Bloggings: Where is the outrage? Where are the demonstrations? Where are the protests against America's treatment of minority immigrants? By Roger Algase

    For the past week or more, America's airwaves, TV screens and newspapers have been filled with justified outrage against the failure of law enforcement to take action against the killer of Trayvon Martin, an unarmed African-American teenager in Florida. There have been many demonstrations and protests, and most other news items have been pushed to the background. Indeed, there has been so much media publicity over the case that if the killer, George Zimmerman, is ever actually arrested and charged, his lawyers will undoubtedly claim inability to receive a fair trial in any part of the US as a defense.
    The killing, with apparent impunity, of a young man who, based on information that has been released so far, committed no offense other than the "crime" of being black, is without doubt, a terrible indictment of racial attitudes in 21st Century America. However, there is another ongoing racial injustice in America, one that affects many more people. It is one that has caused the deaths of dozens immigrants in detention facilities and thousands of people at the Mexican border.
    Using America's immigration laws as a weapon against brown skinned people from every part of the world has broken up thousands of American families, forced tens or hundreds of thousands of people to submit to being rounded up like animals, locked up in inhuman conditions and, in places such as Maricopa County, Arizona and many others, to be humiliated and treated with deliberate sadism. It has created fear and terror in minority communities in every part of this country, but especially in states such as Alabama and Arizona. Above all, it has resulted in the deportation of as many as 400,000 brown- skinned immigrants each year by a brown -skinned president who claims to be sympathetic to the very people whom he is locking up and kicking out of America.
    It has also resulted in promises by all of President Obama's Republican opponents, especially Mitt Romney, the most likely GOP presidential candidate, to take even harsher action against Hispanic and other non-white immigrants, unless they "deport themselves". If he is elected president, every state in the union will be free to become its own Alabama, Arizona, or South Carolina toward immigrants. An even more draconian law, one modeled after H.R. 3447, passed by the Republican House of Representatives in late 2005, could easily become the law of the land.
    For those with short memories, one of the provisions of H.R. 3447 would have made even the most trivial and technical immigration infraction, such as walking outside one's home without carrying one's alien registration card, a felony punishable by up to 5 years in prison. Giving any "assistance" to an unauthorized immigrant (religious counseling? legal advice? medical treatment?) would also have been a federal felony with the same punishment.
    By all means, let there be more protests, demonstrations, and expressions of outrage until justice is done in the Trayvon Martin case. But where are the protests, the demonstrations and the outrage over America's treatment of minority immigrants?
  4. MAY VISA BULLETIN WILL RETROGRESS FOR SOME EB-2

    by , 03-26-2012 at 07:59 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo
    The Department of State's point man on the Visa Bulletin has confirmed for AILA that India and China EB-2 will retrogress to August 15, 2007, a dramatic retrogression from the recent progression of China and India EB-2 number. Charlie Oppenheim, Chief, DOS Immigrant Visa Control & Reporting, says that demand for the EB-2 numbers is high due to the progression of EB-2 dates from November 2011 - April 2012.
    USCIS has informed Mr. Oppenheim that they will continue to "preadjudicate" adjustment applications received through April. The "preadjudicated" cases will be held by the State Department in the "pending" demand file. That way, the cases will be ready in October, or earlier, if the current number use pattern changes, and they are needed at the end of this fiscal year to assure utilization of the full employment-based permanent resident visa allocation.
    The Department of State historically has progressed dates to stimulate demand in the visa numbers. That practice came under some criticism during the Summer 2007 "VisaGate" incident when the DOS progressed to 'current' all categories in response to the USCIS' inability to approve any I-485, Applications for Adjustment of Status. This flooded the USCIS with 300,000 Applications in the Summer 2007, forcing USCIS to begin approving I-485 Applications. Since VisaGate the progression of visa number has been measured, until this accelerated EB-2 progression began in November 2011.
    Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.
  5. Supreme Court Reaffirms Right to Competent Counsel During Plea Negotiations

    by , 03-26-2012 at 07:56 AM (Matthew Kolken on Deportation And Removal)
    The United States Supreme Court has issued two decisions (Missouri v. Fry, and Lafler v. Cooper) that reaffirm the constitutionally protected right to effective assistance of counsel in the criminal context during plea negotiations.
    Both cases cite Padilla v. Kentucky, where the Court ruled that an attorney must inform their non-citizen client of the risk of deportation for consideration in taking a criminal plea, or the plea will be rendered constitutionally deficient.  
    In Missouri v. Fry the Court held that: "The Sixth Amendment right to effective assistance of counsel ex*tends to the consideration of plea offers that lapse or are rejected and that that right applies to "all 'critical' stages of the criminal proceedings." No. 10-444. Decided March 21, 2012.
    In Lafler v. Cooper the Court held that: "Where counsel's ineffective advice led to an offer's rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the actual judgment and sentence imposed." No. 10-209. Decided March 21, 2012.
    We are coming up on the two-year anniversary of the Court's decision decision in Padilla v. Kentucky (March 31, 2010).  Since the decision, there has been a split in the Circuits over whether the Court's ruling applies retroactively.  
    The Court addresses retroactivity in Lafler stating that the decision will not open the "floodgates to litigation," that the system will not be "overwhelmed," and that defendants will not receive "windfalls" as a result of the decision citing Padilla.
    The Tenth Circuit and Seventh Circuit have ruled that Padilla doers not apply retroactively.
    The Third Circuit has ruled that Padilla does apply retroactively.
    Due to the fact that the Court's most recent decisions prominently cite Padilla, I think it is safe to say that the Court will ultimately clarify their position by finding that a non-citizen has a guaranteed right to effective assistance of counsel during plea negotiation, and that a constitutional violation cannot stand regardless of when it occurred.
    What I find amazing is the length that certain Courts will go to undermine a non-citizen's Constitutionally protected right to counsel.
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