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  1. Give DREAMers a break, hardliners a bone with GOP immigration bill. By Nolan Rappaport


    It has been more than 30 years since the passage of the last comprehensive immigration reform bill, the Immigration Reform and Control Act of 1986 (IRCA). The main reason for this, probably, is the fact that the Democrats have refused to go along with the Republican demand for effective interior enforcement of our immigration laws.

    IRCA was based on an agreement to create a legalization program for undocumented immigrants who already were in the country in return for interior enforcement measures that would prevent a new group of undocumented immigrants from taking the place of the ones being legalized.

    The Democrats got a legalization program, but the enforcement measures the Republicans were supposed to get were never fully implemented.

    …..

    Senator Jeff Flake (R-Ariz.) has provided the Democrats with a chance to show that they are ready again to accept a bill that includes effective enforcement measures. He has introduced a bill that combines serious enforcement provisions the Republicans want with benefit provisions the Democrats want.

    To read the rest of the article, go to –
    http://thehill.com/blogs/pundits-blo...dliners-a-bone

    Published originally on The Hill.

    _____________________________________________________________________________________

    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 01-12-2017 at 09:19 PM by ImmigrationLawBlogs

  2. Mothers Held in Deportation Jail for 17 Months Pen Letter to Obama

    by , 01-12-2017 at 09:20 AM (Matthew Kolken on Deportation And Removal)
    Dear Mr. BARACK OBAMA, we are addressing you as a group of mothers who have been locked up for 17 months at BERKS COUNTY RESIDENTIAL CENTER in LEESPORT, PENNSYLVANIA.

    We are 16 families who have come for refuge, protection and help to the United States of America, but we are in a situation where we do not know what is going to happen to us, especially in this new phase of government transition. So we ask you to take conscience and give us the opportunity to finally be free.


    The only offense we committed was to enter without permission to the United States, for the sole reason of protecting the lives of our children from the extreme violence that we live in our countries. We are in a desperate situation.


    The federal court has granted us a stay while our lawyers request the Supreme Court to evaluate our case. Until this Court makes a final decision, we cannot be deported. While we expect the Supreme Court to give fair consideration to the fundamental rights of persons seeking refuge and asylum, we also urge you and your administration to consider the harm that this prolonged detention has caused us, the mothers and children who have lived detained for so long.


    It is not fair to spend 2 Christmases with our children in prison. They are psychologically ill and need specialized medical attention. With our children detained for so long, we, their mothers, feel powerless because they cry and ask us "When will we leave this JAIL?" "When can we have a NORMAL life?"


    All we ask for is an opportunity to present our asylum cases in order to stay in this country. We feel we can not return to our countries of origin. The conditions for women and children in our countries are getting worse every day, and because of this, every day we fear more for our lives and the lives of our children. Besides, we have families and legal advisers in this country ready to support us at every step of this process. We just ask for one opportunity.


    In previous days, we have seen in the news that you pardoned a group of people with criminal records, and we want to emphasize that the only "illegal" thing we have done is to have crossed the Rio Bravo without permission (which we believe we have already paid for, given the long time we have been in detention), to ask for protection for our families.


    The only thing we ask is that you pardon us, just as you did with these other people, you who still have the power to do so, and allow us to reunite with our families, who are waiting for us since 2015.


    We expect a prompt response, thank you in advance.


    Sincerely.


    MADRES BERKS
  3. OCAHO Finds No Jurisdiction Over Case

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    Office of Chief Administrative Hearing Officer (OCAHO) found it did not have jurisdiction concerning alleging allegations of national origin discrimination and retaliation against a U.S. Army captain. See Windsor v. Captain Landeen, 12 OCAHO no. 1294 (Dec. 2016).

    Washington Younggil Kim Jung Windsor (“Windsor”) sought employment as a recruiter at the U.S. Army Recruiting Command in New York. Windsor was not hired and alleged in a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) that it was because he is from South Korea. (At this time, Widsor was a lawful permanent resident. He later became a U. S. citizen).

    The OSC dismissed Windsor’s charge because it determined it did not have jurisdiction over the U.S. Army. However, the OSC told Windsor that he could pursue a complaint with OCAHO against the U.S. Army and Captain Landeen. Thereafter, Windsor filed a complaint before OCAHO alleging the same facts as he did in his charge with the OSC.

    OCAHO initially determined that despite the complaint being filed against Captain Landeen, it alleged acts of Captain Landeen in his official capacity with U.S. Army. Thus, it reviewed whether a complaint can be brought against the U.S. Army under the Immigration and Nationality Act.

    OCAHO found the U.S. Army was a part of the U.S. Department of Defense, a federal agency. Based upon that finding, it determined “absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” OCAHO found no such waiver existed under the INA. Thus, it followed OCAHO caselaw which has held “federal government agencies are not amenable to suit under 8 U.S.C. § 1324b” (cases alleging discrimination due to citizenship status, national origin, retaliation or document abuse). Based upon this analysis, OCAHO dismissed Windsor’s complaint.
  4. FEBRUARY 2017 VISA BULLETIN: ANALYSIS

    by , 01-11-2017 at 08:14 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The Department of State has just issued the February 2017 Visa Bulletin. This is the fifth Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month's Visa Bulletin.

    February 2017 Visa Bulletin


    Final Action Dates

    Applications with these dates may be approved for their Green Card (Permanent Residency card).

    Employ-
    ment
    based

    All Charge-
    ability
    Areas Except
    Those Listed

    CHINA-
    mainland
    born

    INDIA
    MEXICO
    PHILIPPINES
    1st
    C
    C
    C
    C
    C
    2nd
    C
    15NOV12
    15APR08
    C
    C
    3rd
    01OCT16
    01OCT13
    22MAR05
    01OCT16
    15OCT11


    MU Law Analysis

    All Other: The EB-2 has been current for many years. The EB-3 progression continues. Consular processed EB-3 are effectively current.

    China: The China EB-2 date moved up one month. The China EB-3 date also progressed about one month. The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

    India: EB-2 India and EB-3 India stayed virtually the same, unfortunately.

    Mexico: Mirrors All Other in all aspects.

    Philippines: EB-3 moved ahead by another three months. The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and much of the 2011 EB-2 visas in just five months. This is what we have expected. (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
  5. The Harm That Confirmation of Jeff Sessions as Attorney General Can Do to Immigration Law and Due Process.


    Claiming a "cycle of amnesty" as justification for opposing all immigration reform ever proposed in Congress during his tenure, including the Dream Act, nominee Jeff Sessions responded to Senator Dick Durbin that by electing Trump as President, "the people have spoken."

    Sessions argued in his confirmation hearing on January 10, 2017, that we should "fix this system" by passing immigration reform in Congress - reform that he opposed consistently while serving as a Senator. He refused to acknowledge the importance of protecting the status of those protected currently by DACA, President Obama's executive order, and gave no guarantees about the fate of these individuals once Trump assumes the Presidency or during any extended period while reform legislation would be pending.

    Sessions' alarming refusal to acknowledge either his past or currently objectionable attitudes and actions as a Senator and a state official is made only more dismal by the Republican apologists on the Senate Judiciary Committee, who are attempting to paint Sessions' history as irrelevant or nothing more than one reflecting permissibly different views on policy.

    If (when) he is confirmed as Attorney General, Jeff Sessions will have an exclusive level of authority over the course of immigration law and policy, as well as its impact on those subject to the immigration laws. This power will manifest in 2 principal ways:


    • in hiring and removing Immigration Judges and Board Members on the Board of Immigration Appeals
    • in certifying and deciding immigration decisions made by the Board of Immigration Appeals


    The Attorney General, as head of the Department of Justice (DOJ) in which the Executive Office of Immigration Review (EOIR) is housed, selects and appoints all of the individual Immigration Judges (IJ) and the members of the Board of Immigration Appeals (BIA). The situation of Immigration Judges and appellate Board Members within an Executive Branch agency such as the DOJ presents an inherent institutional tension, even apart from the ideological or political leanings of the individual in the Attorney General position.

    A.G. Control Over Immigration Judge and Board Member Hiring

    Indeed, as the BIA is a creature of regulation and not of statute, the members of the BIA serve "at the pleasure" of the Attorney General. This unfettered authority has been exercised abusively in the all too recent past, when former Attorney General John Ashcroft removed several BIA members from their positions in 2002-2003, reportedly because they were considered "too liberal" in exercising their responsibilities of impartially and independently deciding appeals from removal decisions. 1/

    The President of the National Association of Immigration Judges, Hon. Dana Marks, has observed that, "The current court structure is marked by the absence of traditional checks and balances, a concept fundamental to the separation of powers doctrine. This structural flaw is readily apparent to lawyers, scholars and jurists. At present, the Attorney General, our nation’s chief prosecutor in terrorism cases, acts as the boss of the judges who decide whether an accused non-citizen should be removed from the United States." 2/

    Moreover, EOIR continues to be subject to criticism for the apparently preferential treatment given in hiring IJ applicants employed by the federal government to the exclusion of a fair representation of IJ candidates from the non-profit and private sector. The population of the IJ corps by persons who have served primarily as prosecutors of immigrants and refugees, with little or no exposure to the representation of and advocacy for these persons, tends to perpetuate a culture in favor of enforcement objectives no matter what the equities or how well-intentioned an IJ may be.

    A.G. Power To Certify and Review BIA Decisions

    Furthermore, the Attorney General has certification authority over all appellate decisions by the BIA -- authority to declare precedent that is reviewable only by the federal circuit courts of appeal.3/ The decision of the A.G. upon certification is binding on all lower bodies, and the impact of this authority is often disruptive, having unnecessarily adverse consequences on litigants and delaying hearings and the issuance of individual decisions nationwide. Although it is possible that a decision by the A.G. on certification can have a beneficial impact, the all-too-common prosecutorial, enforcement-oriented bent of many Attorneys General often results in undesirable, misguided, and even legally erroneous precedent.


    An example of this disruption is the case of Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), in which former A.G. Michael B. Mukasey reversed upon certification a decision made by the BIA concerning the construction of section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA). The A.G. ruled that IJs were permitted to inquire into the conduct of a respondent if it was not possible to determine that a conviction was for a crime involving moral turpitude (CIMT) under either the categorical or modified categorical approach.

    As a result, for the past 8 years, IJs and the BIA were bound by this A.G. precedent. Countless respondents in removal proceedings were found to be deportable or ineligible for relief from removal on the basis that a conviction in their records amounted to a CIMT due to consideration of factors beyond the elements of the crime as defined in the criminal statute.

    Following 7 years of litigation and the involvement of numerous federal circuit courts of appeal, the Mukasey approach was rejected by A.G. Eric H. Holder Jr. See Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (A.G. 2015)(vacating Matter of Silva-Trevino (“Silva-Trevino I”), 24 I. & N. Dec. 687 (A.G. 2008) and remanding the record to the BIA for a new decision).
    Too late for some, this odyssey resulted in a 2016 decision in which the BIA declared a uniform standard for the proper construction and application of the INA -- one that did not involve an inquiry into what the defendant had done -- consistent with the categorical approach as repeatedly articulated and affirmed by the U.S. Supreme Court. See Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016).

    Placing the power in the Attorney General to appoint the Board Members on the BIA and the IJs, and to review BIA decisions on certification, has the potential for harm that goes well beyond the implicit bias that accompanies all decision making. Simply stated, the policy making functions of an Executive Branch agency such as the DOJ simply do not facilitate the impartial decision making expected of a judicial body. This situation only is exacerbated when an Attorney General who has a racially biased history and a documented anti-immigrant agenda is confirmed.



    _________________

    1. See
    Peter J. Levinson, The Façade of QuasiJudicialIndependence in Immigration Appellate Adjudications 15 (2004) (conference paper delivered at the 2004 Annual Meeting of the American Political Science Association), 9 Bender’s Immigr. Bull. 1154 (Oct. 1, 2004). The existence of ideological bias also is established by the testimony of former government attorney and Republican staffer Monica Goodling before the Senate Judiciary Committee on May 23, 2007, admitting that political considerations influenced the hiringdecisions for the career position of Immigration Judge. See e.g., Susan Crabtree, Goodling Asked DoJ Applicants PoliticalQuestions, TheHill.com, May, 23, 2007; Sandra Hernandez & Lawrence Hurley, Goodling Weighed Politics inRecommendations, Daily J., May 24, 2007.

    2.
    Hon. Dana Leigh Marks, 13 Benders Immigration Bulletin 3, "An Urgent Priority:Why Congress Should Establish an Article I Immigration Court" (January 2008).

    3. 8 CFR 1003.1(h) provides for referral to the Attorney General for review all cases (1) that are directed by the AG for referral, (2) that the BIA Chairman or a majority of the Board Members believe should be referred, or (3) that the Secretary of DHS or specific DHS officials in concurrence with the AG, believe should be referred for review.

    Updated 01-13-2017 at 12:34 PM by Lrosenberg

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