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  1. CIS Ombudsman Holds First Annual Conference

    by , 10-20-2011 at 04:12 PM (Greg Siskind on Immigration Law and Policy)
    I'm on the flight home after an interesting and productive day attending a great conference organized by CIS Ombudsman January Contreras and her team. Ombudsman Contreras kicked off the program with an introduction to what her office handles and then she introduced Cecilia Munoz, the White House Director of Intergovernmental Affairs. Ms. Munoz has a lot to do with the President's immigration policies. Cecilia didn't get in to a lot of specifics, but my big takeaway was that she is interested in making USCIS operate as transparently as possible.
    Following this, I attended one of three break out programs. Mine was a panel on employment immigration featuring Lynn Shotwell of the American Council on International Personnel, Amy Nice of the US Chamber of Commerce and Linda Rahal, an immigration lawyer. Fred Troncone of the Ombudsman's office moderated. The common theme amongst the panelists was that the number of USCIS requests for evidence has skyrocketed, making the immigration system unpredictable and causing a great deal of harm to employers and their beneficiary employees. The questions were as interesting as the presentations, particularly because some senior USCIS folks were in the audience. My friend Angelo Paparelli asked about why examiners never seem to get fired even when they are not making quality adjudications. I asked a related question on whether examiners are properly being assigned to cases matched to their qualifications (for example, should an examiner with minimal education be adjudicating an O-1 petition for a top flight scientist). I asked the question because I've heard senior USCIS officials complain privately about problems of this nature. One USCIS official did come to the microphone and explained that this was an issue of concern to them and a new initiative has resulted in a substantial number of recent hires of bachelors degree holders in the adjudicator ranks. Also, more and better training is being provided. Still, it's a big problem. I also asked a question on whether there is a correlation between a pronounced drop in the number of cases handled per examiners and the dramatic rise in RFEs. In other words, idle hands are the devil's tools. Prakash Katri, the former Ombudsman suggested something similar arguing that more USCIS funds received from higher filing feees have had the opposite effect of what is intended. More money means the need to justify more employees and this has led to too much time being spent adjudicating cases by examiners who seek to unnecessarily drag out the process with unneccesary evidence requests.*
    Following lunch, we heard an address from USCIS Directory Alejandro Mayorkas. He made an interesting announcement regarding I-797s that pertained to lawyers no longer getting the approval notices for their clients. USCIS has backed down and will reverse that decision within a few weeks based on overwhelmingly negative feedback. He pointed out that the agency needed to do a better job getting feedback from the public before policies like this are changed rather than having to backtrack later. Here, here. He also indicated that the controversial use of the VIBE database was closely being studied to determine if it was helping or hindering adjudications. Director Mayorkas talked about the new EB-5 initiative that will allow examiners and applicants to discuss cases by email before decisions are issued rather than having to necessarily issue an RFE. The news here is that he would like to extend this to every product line, something that will potentially greatly approve the adjudication process. At question time, I asked about a pet cause of mine - the plight of individuals on visas who are laid off. USCIS used to be sympathetic to change of employer applications that might be filed a little late and they used to regularly approve B-1 visitor status applications for people who were laid off and needed to have a little time to find new employment or at least wrap up there affairs, allow kids to finish out the semester, etc. Now those cases are routinely denied. I noted that this is my third recession since becoming an immigration lawyer and in the other two, USCIS seemed to have a lot more of a heart than they do today. Director Mayorkas seemed genuinely surprised to hear about this subject and promised to look in to it.*
    After lunch, it was my turn to present. I was invited to speak on a panel of bloggers along with friends Jason Dzubow and Angelo Paparelli (both fellow bloggers at and my friend Eleanor Pelta, the current president of the American Immigration Lawyers Association. We spoke on the role of bloggers in influencing the public debate on immigration. I kicked off the panel with a talk on the history of immigration blogging going right back to my first blog in 1997 which happens to have been the first law related blog in history.

    The blog was devoted to the subject of a proposed increase in the number of H-1B visas, something that passed and from 1998 to 2001, we had an annual H-1B quota of 195,000. Incidentally, I didn't call my online diary a blog. That term was coined a few months later.
    Jason Dzubow talked about blogger ethics and the challenges we face. Angelo gave an eloquent talk about the importance of not being afraid to upset the agencies we blog about and gave a particularly interesting example of this when he showed a recent blog post on how the obsession with rooting out fraud at USCIS has seriously compromised the ability of the agency to function. The post itself is very interesting, but Angelo showed hit traffic for the post and it identified 618 page views from servers, indicating that a number of people at the agency saw what he had to write. Eleanor Pelta talked about the development of AILA's leadership blog and the variety of missions it serves including advocating on public policy, educating the public, calling out officials for doing the right thing as well as the wrong thing and also telling the stories of the people we represent who may not always be able to have their voices heard. She mentioned as an example a specific blog post I wrote for the blog regarding explaining the dangers of ending birthright citizenship.*
    Finally, I attended a great session providing a thorough overview of the rules surrounding priority dates. Charles Wheeler, a private practice lawyer kicked off with a comprehensive overview of how dates are established, lost and converted. He was followed by Charles Oppenheim, the Department of State official who for years has written the monthly Visa Bulletin that I know many who read this blog follow closely. Charles is the man who sets the cut off dates each month and he explained in great detail how that process works and what factors he considers. His overarching goal is to make sure that as many of the green cards allocated by Congress in each fiscal year are used because there are no provisions for numbers to spill over (something that Congress genuinely needs to address). This might mean, for example, *being careful to allocate numbers closer to the beginning of the fiscal year (October 1st) rather than the end since failing to get cases adjudicated in time over the summer could mean green card numbers are wasted. Mr. Oppenheim talked about looking at prior years to get a sense of historical patterns of usage, but noted that forecasting visa usage is not always easy and he's been really surprised in the past.*
    I'm en route home now, but did want to extend my thanks again to Ms. Contreras for the invitation as well as Director Mayorkas for his faithful efforts to turn the ship at USCIS and turn it in to the agency that helps stoke our economic engines rather than the reverse. Hopefully, Janet Napolitano recognizes that she's got two outstanding officials heading up both these organizations.*
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  2. Napolitano: Review of 300,000 Deportation Cases to "Begin Shortly"

    by , 10-20-2011 at 06:00 AM (Matthew Kolken on Deportation And Removal)
    CNN reports that the Obama administration will soon undertake a review of the 300,000 pending deportation cases separating "high priority" criminal cases from "low priority" non criminal cases.
    In practice, I have seen very little if any favorable exercise of prosecutorial discretion involving "low priority" noncriminal deportation cases.  The few cases that I have seen the Department moving to administratively close proceedings involve individuals whose cases have garnered media attention.  
    You certainly don't want any bad press in an election year.
    Needless to say, I predict that this most recent announcement will not add up to a hill of beans.
    Click here for more propaganda from the Obama administration.
  3. The BIA’s Ridiculous Deadline

    I once heard about an Admiral during WWII who described carrier warfare as hours of boredom punctuated by moments of terror.  That is a bit like how I think of appeals to the Board of Immigration Appeals.
    First, you file your appeal.  Nothing happens for a couple months.
    Then, the transcript arrives.  You theoretically have 21 days to write the brief.  However, by the time you receive the transcript, a few days have passed.  Plus, you have to make sure that the appeal brief is received by the Board no later than day 21, so you have to mail it early.  Thus, you actually have about 15 or 16 days to write the brief.  Of course, the transcript always arrives when you are about to leave for vacation or when you have three individual hearings to prepare for, so the 15 or 16 days is not enough.  You can ask for one extension (which seems to be granted as a matter of course), so you can realistically gain a total of about 36 or 37 days to prepare the brief.
    After the brief is filed, you will then wait one to two years for a decision.
    So my question is: Since these appeals take so long anyway, why are we given such little time to prepare a brief?  
    Perhaps limiting the time for the alien to submit a brief is a way of stopping her from dragging out her final removal date.  But given the one to two year (or more) time frame for these appeals, is another few weeks going to make much difference?
    There is, of course, a downside to limiting the time for the brief: Given most attorneys' busy schedules, it is difficult to do our best work when we have insufficient time to write the brief, particularly if we are unlucky enough to have the transcript and briefing schedule arrive at a bad time (which always seems to happen).
    The obvious solution is to extend the time for filing the brief.  Federal appeals courts (at least where I practice) generally give about 45 days to file the brief.  Lower courts usually give at least 30 days.  All these courts grant extensions where warranted.  At a minimum, the BIA should initially grant six weeks to file the brief; at least this would save lawyers the time and uncertainty of having to ask for a three-week extension.
    With more time, we can expect better briefs-not only from the private bar, but also from DHS.  I imagine this would result in better BIA decisions.  There is really no good reason for such short deadlines with the BIA.  The Board should consider extending the time for filing briefs.
    Originally posted on the Asylumist:
  4. Blogging: America's right turn from Nation of Immigrants to Deportation Nation; by Roger Algase

    As ID announced in its October 19 issue, ICE has deported almost 400,000 people this year, almost half with no criminal violations at all, and the other half possibly including many people without any criminal records other than ones related to immigration. There can be no doubt that many of the people deported had US citizen or lawful permanent resident spouses, children, parents or other close family members. Many were also, without any doubt, productive, hard-working tax-paying members of society.
    Many of those deported may also have had to endure intolerable and inhuman conditions in immigration jails which, as many have pointed out, seem to be run more for the private profit of well connected contractors than for the security or protection of the American people. Aside from the shame of turning away from being a Nation of Immigrants to becoming Deportation Nation, what are the implications of America's sharp turn to the right on immigration, where one presidential candidate is booed for suggesting that the country should "have a heart" toward immigrants and another is cheered for suggesting that they should be electrocuted?
    No matter how bad any situation might become, there is always a tendency to assume that the worst has already happened. History shows again and again that this assumption is often false. The Obama administration's deportation mania, evidently unaffected by any palliative Morton memos, may lead inevitably to the next step - closing our borders completely. The main ingredient for this poisonous concoction, anti-immigrant racism, is already in place.
  5. Latinos Disproportionately Targeted for Deportation by the Obama Administration

    by , 10-19-2011 at 08:30 AM (Matthew Kolken on Deportation And Removal)
    The Cal Berkeley Institute on Law and Social Policy has just released a report entitled: "Secure communities by the number: An Analysis of Demographics and Due Process."  The report was written by Aarti  Kohli, Peter l. Markowitz, and Lisa Chavez, who were motivated to action by the million plus people that have been deported since the beginning of the Obama administration, and the fact that almost 300,000 individuals are currently facing deportation.
    These staggering numbers are in large part a result of the Secure Communities program, which partners local law enforcement with immigration officials.  The report analyzes the data that was generated by the Federal Government from the program. The findings show systemic deprivation of due process, that a significant percentage of apprehended individuals should never have been placed in immigration custody, and the existence of racial profiling.
    Here are the key findings of the report:

    Approximately 3,600 United States citizens have been arrested by ice through the Secure communities program;
    More than one-third (39%) of individuals arrested through Secure Communities report that they have a U.S. citizen spouse or child, meaning that approximately 88,000 families with U.S. citizen members have been impacted by Secure communities;
    Latinos comprise 93% of individuals arrested through Secure communities though they only comprise 77% of the undocumented population in the United States;
    Only 52% of individuals arrested through Secure communities are slated to have a hearing before an immigration judge;
    Only 24% of individuals arrested through Secure communities and who had immigration hearings had an attorney compared to 40% of all immigration court respondents who have counsel;
    Only 2% of non-citizens arrested through Secure communities are granted relief from deportation by an immigration judge as compared to 14% of all immigration court respondents who are granted relief;
    A large majority (83%) of people arrested through Secure communities are placed in ICE detention as compared with an overall DHS immigration detention rate of 62%, and ICE does not appear to be exercising discretion based on its own prioritization system when deciding whether or not to detain an individual.

    What the authors found "most disturbing" is that 3,600 (1.6%) of the cases involved the apprehension and detention of United States citizens by ICE.
    This President certainly can't change the law with a sweep of his pen, but he certainly has the power to end a program within his jurisdiction that is clearly not working.
    Stop lying to us Mr. President.  You do have the power to change the way business is being done, and it is clear that you have no interest in doing so.
    Shame on you, and shame on anyone who votes for you.
    Click here to read the full report.
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