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  1. GOP Candidates on Immigration - Where Do they Stand? By Danielle Beach-Oswald

    Although political pundits believe that this election focuses largely on the economy, the Washington Posted noted on September 1 that "immigration is an issue that voters won't let the GOP hopefuls escape." At a town hall meeting in New Hampshire on August 24, Mitt Romney began the discussion with talks about jobs and the economy. The first question asked to him was about his stance on border security. At an August 26 event in South Carolina, Michele Bachmann's biggest praise came from comments about her stance on illegal immigration rather than her views on the health care overhaul or the economy. After President Bush's 2006 bill that was criticized by many Republicans for its legalization proposal, the Republican party has moved further to the right on the issue of illegal immigration but many are asking where each of the candidates stand.
    Current Republican front-runner Rick Perry remains a strong advocate of border security and believes that securing the border must happen before any discussion on illegal immigration. However, as Governor of Texas, Rick Perry was a staunch advocate of close business ties between Mexico and the United States and criticized the construction of a border security fence. Additionally, other Republicans have criticized Rick Perry's signing of a Texas bill that allowed all Texans who lived in the state for three years to be eligible for in-state tuition rates regardless of their legal status. Perry has also remained critical of Arizona's immigration position.
    Mitt Romney's priority rests on cracking down on employers who hire illegal immigrants. He believes that only after employers are punished for hiring illegal immigrants should the country proceed with any form of immigration reform. Although Michelle Bachmann believes in building a border security fence on "every inch" of the US-Mexico border, she has failed to provide any real details with regards to her stance on immigration reform. Perhaps the most controversial stance on immigration comes from Ron Paul who believes in eliminating birthright citizenship which would change the 14th Amendment. He views birthright citizenship as a major encouragement of illegal immigration.
    It's time for the GOP candidates to lay out their plans on immigration reform. There has been a lot of rhetoric, but little substance added. Although jobs and the economy may be an important issue in this election season, the Pew Research Center noted on May 4, 2011 that 72% of all Americans support a pathway to citizenship program. It's time for the Republican candidates to keep this in mind and draft a cohesive policy towards immigration reform.
  2. 5th Circuit Rules on CSPA: Why Wang Got It Wrong


    http://mediad.publicbroadcasting.net/p/kut/files/201310/fifth_circuit.jpg On September 8, the U.S. Circuit of Appeals for the 5th Circuit, in a unanimous decision, ruled that "contrary to the BIA's interpretation in Matter of Wang, the benefits of 8 U.S.C. section 1153(h)(3) unambiguously apply to all petitions described in section 1153(h)(2)..."

    Thus, in the clearest and most persuasive Federal Court decision discussing CSPA's "automatic conversion" clause, the 5th Circuit ruled that this clause applies to all derivative beneficiaries.

    The petitioner in the case of Khalid v. Holder, is a native of Pakistan who entered the U.S. as a ten-year-old visitor in June 1996. In January 1996, his aunt, a U.S. citizen, had submitted a visa petition under the 4th preference family category sponsoring his mother and her family for green cards. However, by the time that the petition became current in February 2007, Khalid was 22 years of age. The petition was pending so short a time, that even after performing the mathematical calculation, Khalid had aged-out and was no longer a child.

    Later in 2007, Khalid's mother filed a 2B visa petition and requested that her son be granted the June 1996 priority date under CSPA's automatic conversion clause. Simultaneously, Khalid applied for adjustment of status under section 245i. The USCIS denied both his mother's request and Khalid's application for adjustment of status. The government then placed him under removal proceedings. Without the earlier priority date, Khalid would have to leave the U.S. and would not become eligible for an immigrant visa until at least 2015.

    Before the Immigration Judge, Khalid renewed his application for adjustment of status. However, the Judge relied on the BIA's recent decision in Matter of Wang and denied his application, as did the Board of Immigration Appeals. Khalid then filed a petition for review with the 5th Circuit.

    The 5th Circuit, in its decision, quoted Ochoa-Amaya v.Gonzales, 479 F.3d 989, 992 (9th Cir. 2007) which states that the purpose of CSPA is to "provide age-out protection for aliens who were children (under 21) at the time that a petition for permanent resident status was filed on their behalf." The panel also quoted Padash v. INS, 358 F.3d 1161, 1173 (9th Cir. 2004) for the proposition that CSPA addresses "the often harsh and arbitrary effects of the age-out provisions under the previously existing statute."

    The Court held that the statute is clear and unambiguous with respect to which petitions that the automatic conversion clause applies to. There is general agreement that the petitions subject to subsection (h)(1) of section 1153 are those described in subsection (h)(2) which includes all derivative beneficiaries. However, the Court found that the Board erred in Matter of Wang when they held that the matter of which petitions were subject to subsection (h)(3), the automatic conversion clause, was ambiguous. The Court criticized the Board for reading subsection (h)(3) outside of the "statutory context":


    "The BIA discounted subsection (h)(2) because (h)(3), unlike (h)(1), does not expressly reference it. Yet, the BIA's analysis ignores the fact that (h)(3) expressly references (h)(1), which in turn expressly references (h)(2). The benefits of automatic conversion and priority date retention are explicitly conditioned on a particular outcome from the formula in (h)(1) - that the alien's "age" is at least 21...In light of the interrelated nature of the three provisions, reading the subsection as a whole confirms that Congress intended (h)(3) to apply to any alien who 'aged-out' under the formula is (h)(1) with respect to the universe of petitions described in (h)(2)."


    In addition, the Court's decision offers a convincing rebuttal to the 2nd Circuit's "restrictive reading" of CSPA's automatic clause in Li v. Renaud:


    "Nothing in subsection (h)(3) states or implies that the petitioner cannot change as a result of a conversion, and...certainly nothing prevents Congress from allowing for such conversions..."


    The Court concluded by granting Khalid's petition for review and remanding his case to the BIA for further proceedings.

    The simple and compelling logic of the Court's analysis and holding in Khalid v. Holder provides ample reason for both the 2nd and 9th Circuits to reconsider their restrictive interpretations of CSPA's automatic conversion clause. At the very least, the split in the Circuits will elevate this important issue to the Supreme Court to decide which Circuit's interpretation is correct.

    On August 15, a Motion for a Rehearing was filed with the U.S. Court of Appeals for the 2nd Circuit.

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    Updated 12-02-2013 at 02:48 PM by CShusterman

  3. Report: 160,000 Immigrants Deported without Ever Appearing Before an Immigration Judge

    by , 09-10-2011 at 06:38 AM (Matthew Kolken on Deportation And Removal)
    A report entitled "Deportation without Due Process" reveals that over the past ten years the United States government has deported over 160,000 immigrants by having them stipulate to their own removal, thereby stripping them of their right to appear before an immigration judge.
    The government has been regularly using stipulated removal against people being held in immigration detention that are unrepresented by counsel and who face deportation as a result of minor non-criminal immigration violations.  
    The government is basically giving these people an option: agree to be deported now, or stay in detention for what could be years while you fight your case.
    Not cool.  Not cool at all.
    The report reveals that government officials:

    Provide immigrant detainees with inaccurate, misleading, and confusing information about the law and removal process.  
    Overemphasized the length of time detainees would spend in detention if they chose to fight their cases and see a judge, 
    Fail to tell detainees that they could secure release from detention on bond while fighting their cases, or that some might win the right to remain legally in the country.  

    The immigrant detainees are regularly not afforded an opportunity to have the consequences of signing stipulated removal translated into their native language, or explained by an attorney.
    What is more troubling is that immigration judges have voiced their opinion that the stipulated removal program violates an individual's right to due process, and yet the practice continues.  Some immigration judges have refused to sign stipulated removal orders as a result of the constitutional deficiency of the stipulation.
    The report issues the following recommendations:

    ? The Executive Office for Immigration Review (EOIR), the sub-agency of the U.S. Department of Justice that oversees the immigration court system, should require immigration judges to hold brief, in-person hearings before signing off on stipulated removal orders for noncitizens who are not represented by attorneys.  These should be individual hearings, similar in scope to plea colloquies in the criminal context. 
    ? EOIR should expand access to counsel and legal information for noncitizen detainees, especially those whom the U.S. Department of Homeland Security (DHS) targets for stipulated removal.  In detention facilities that offer legal rights presentations, U.S. Immigration and Customs Enforcement (ICE) agents should be barred from offering a detainee the option of a stipulated removal order until the person has had the opportunity to attend a legal rights presentation.  ICE and EOIR should also require a 72-hour waiting period between when a detainee signs a stipulated  removal order and when an immigration judge approves the order, to permit the detainee the opportunity to consult with an attorney.  ICE should give detainees notice of this 72-hour period and provide them a list of local no-cost or low-cost legal service providers prior to obtaining their signature on a stipulated removal order.  
    ? DHS should develop and institute training that is specifically  aimed at preventing coercion and manipulation by ICE or U.S. Customs and Border Protection (CBP) agents in the stipulated removal process.  
    ? DHS should ensure that language barriers do not jeopardize the integrity of the stipulated removal process.  Stipulated removal forms must be competently translated into multiple languages, and detainees who do not speak English well should never be offered a stipulated removal without a qualified interpreter  being present to help them understand exactly what they would be accepting if they signed the form.  
    ? If any immigration judge in a given district raises concerns about the local process for offering stipulated removal to noncitizens, the chief immigration judge in that district should place a moratorium on the use of stipulated removals in that district until the chief judge and his/hercounterpart at ICE headquarters have resolved the concerns that have arisen in the district. 
    ? ICE should be prohibited from using stipulated removal on vulnerable noncitizens and those with strong ties to the  U.S.   These include, at  a minimum, children,  people  with mental disabilities, and lawful permanent residents.  
    ? ICE should inform the public when it intends to use stipulated removal in a particular jurisdiction.   
    ? ICE should publish statistics on its use of stipulated removal, at both the national and local levels, on an annual basis. 
    ? Detainees (or their representatives) who call EOIR's toll-free (800) number for information about their immigration cases should be told whether or not they have signed a stipulated order of removal request. 
    ? Instead of expanding stipulated removal, Congress and ICE should halt the expansion of immigration detention, provide for more alternatives to detention, and consider developing broader solutions to the nation's broken immigration system.

    Click here to read the full report.
  4. Sick Immigrant Workers from Ground Zero Afraid to Seek Help

    by , 09-09-2011 at 09:52 AM (Greg Siskind on Immigration Law and Policy)
    If we ever needed an illustration of immigrants doing jobs Americans simply won't do, here is the quintessential example. The Wall Street Journal reports

    In the months after the Sept. 11 attacks, Nayibe Padredin cleaned offices around ground zero, clearing thick layers of dust so lower Manhattan could get back to work. Three months into the job, she began to have coughing attacks and headaches, struggled to get air and found herself easily fatigued. But she kept working, reasoning that she needed the money.

    Hundreds of low-paid cleaners toiled alongside her, many of them also Spanish-speaking immigrants. Now Padredin and many of her colleagues say they're sick from the time they spent cleaning without adequate protective gear. They haven't been nearly as visible as those who worked at the site  itself, but they are struggling to cope with how their time on the perimeter of the disaster site has transformed their lives.

    Ten years after the attacks, their symptoms are the same as those reported by many others exposed to the dust, primarily respiratory and digestive illnesses like asthma and acid reflux. Programs offer medical assistance to anyone who spent time at the site after the attacks and is diagnose with those conditions, but for reasons ranging from ignorance of the application process to fear of being deported, some of the cleanup workers did not immediately seek treatment or compensation.

    'They are hesitant to seek health care because they are afraid,' said Dr. Jaime Carcamo, a
    psychologist who treats about 90 Hispanic cleanup workers in Queens some of who are illegal immigrants.
  5. 9/11 Victims Families Still Waiting in Immigration Limbo

    by , 09-09-2011 at 09:24 AM (Greg Siskind on Immigration Law and Policy)
    The terror attacks on 9/11 claimed victims from many backgrounds. One group we don't hear much about are those who were working without authorization - many at the Windows on the World restaurant. Twelve family members of those killed have been in an uncertain immigration status in the years since.  In 2008, they won the right to work legally here. But they have no path to anything resembling permanent residence status. Like immediate relatives of soldiers killed in the wars that resulted from 9/11, this is a group of individuals who deserve special consideration. Congress could pass a private bill granting them permanent residency and it would be the decent thing to do. Hopefully, this will be the last anniversary of the tragedy that will pass without resolving this.
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