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For several years, USCIS has been moving more and more to a secretive style of carrying out its role. Gone are the days when rules were published for comment. Examiners operate in anonymity. A two year appeals process and expensive fees mean that most people simply give up when their cases are denied. Examiners more and more frequently seem to be deciding cases based on their own made up standards rather than what the law requires.
I'm happy to report that the American Immigration Lawyers Association is taking the agency to court. Director Mayorkas all but begged AILA to do this when he suggested at its recent annual meeting that the bar and individual lawyers sue the agency when problems are not resolved. It's as if he needs the help of outsiders to help reign in an agency that is seemingly ungovernable.
Here is the press release:
Today the American Immigration Council's Legal Action Center filed a lawsuit against the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) on behalf of the American Immigration Lawyers Association (AILA) seeking the public release of records concerning agency policies and procedures for the "H-1B" visa program - a program which allows U.S. businesses to temporarily employ highly-skilled foreign workers.
AILA had pursued disclosure of the documents through two separate Freedom of Information Act (FOIA) requests, both of which were denied in full by the government. In its complaint filed in U.S. District Court for the District of Columbia, AILA seeks the court's intervention to compel the government to release the requested records.
The FOIA litigation centers on the government's H-1B visa review and processing procedures. The H-1B program, administered by USCIS, allows U.S. businesses to temporarily employ foreign workers - such as scientists, engineers, and computer programmers - in occupations that require theoretical or technical expertise in specialized fields. Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections - expected to reach 25,000 visits in 2010 alone - in connection with H-1B cases. Yet USCIS has kept secret the rules and guidelines related to the review process. The dearth of publicly available information on the government's heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.
"The requested documents are the kind that a government agency should release as a matter of course," said Crystal Williams, Executive Director of the American Immigration Lawyers Association. "That we had to file a FOIA request, and that the request was denied, is counter to the President's directives for a more open and transparent government. This lawsuit seeks to require the agency to be true to the open government directives of the Obama administration."
"It is in the public and the agency's interest to release the documents sought by AILA," said Mary Kenney, attorney at the American Immigration Council's Legal Action Center. "The documents will help employers and foreign workers who seek immigration benefits comply with the law. Further, the agency violated FOIA when it issued wholesale denials of AILA's FOIA requests."
AILA is also represented in the litigation by Steptoe & Johnson LLP.
The Arizona Republic discusses the intriguing question of what happens if Immigration and Customs Enforcement simply says no thanks when Arizona police call them:
Arizona's tough new immigration law is slated to take effect Thursday, but the nation's immigration enforcement agency has not indicated whether it will cooperate with police who are trying to enforce it.
Without cooperation from Immigration and Customs Enforcement, much of the law would become unenforceable: Police would have no way of determining, from federal authorities, the legal status of suspected illegal immigrants as the state law requires. And that would severely hamper efforts to arrest them for violations of the law.
As a result, local police officers might have to release suspected illegal immigrants if they can't determine their status.
"If the Department of Homeland Security says, 'SB 1070 is unconstitutional, don't cooperate,' . . . then much of what is going on here shuts down. Not necessarily all of it, but a lot of it," said Gabriel Jack Chin, a University of Arizona criminal-law professor who co-authored a legal analysis of the law.
Not to many immigration lawyers have their books reviewed by Oprah Winfrey, but Colombian-born Iris Gomez has. That's probably because she's written the hot-selling novel "Try to Remember" about a teenage teenage Colombian immigrants struggles in her new country. I had the opportunity to meet Iris recently and am enjoying the book (along with various other folks at my office). Click on the book cover to go to the Amazon page where you can order your copy.
OK, the hiatus of Immigrant of the Day is officially over. Send me your suggestions and I look forward to highlighting the accomplishments of immigrants contributing to America in many ways.
Congrats to Mexican-born Ignacia Moya who at 106 years old has become a naturalized American. She immigrated to the US nearly 40 years ago already in her 70s. Despite her blindness and deafness, Ms. Moya has persevered in seeking citizenship and is realizing her dream after nearly a quarter century of waiting.
All of Ms. Moya's children, grandchildren and great-children are in the US including her great-grandson George Bojorquez, a US Marine. Ms. Moya is the third oldest person ever to naturalize. The oldest, incidentally, was a Turkish native who was sworn in at the age of 117.
From the ACLU which is part of the coalition that is behind this suit:
Implementation Of Arizona's Racial Profiling Law
July 22, 2010
PHOENIX – At a hearing today in a federal court in Phoenix, the American Civil Liberties Union and a coalition of civil rights groups argued that Arizona's discriminatory new law, known as SB 1070, should be blocked pending a final court ruling on its constitutionality. The law, scheduled to go into effect on July 29, requires police to demand "papers" from people they stop who they suspect are "unlawfully present" in the U.S. According to the coalition, the law would subject massive numbers of people – both citizens and non-citizens – to racial profiling, improper investigations and detention.
The U.S. Department of Justice, in a separate lawsuit, will also ask the court to block SB 1070 in a hearing later today. The court, in the civil rights coalition's case, will also hear arguments on the state of Arizona's motion to dismiss the case.
The civil rights coalition includes the ACLU, MALDEF, National Immigration Law Center (NILC), Asian Pacific American Legal Center (APALC) – a member of the Asian American Center for Advancing Justice – ACLU of Arizona, National Day Laborer Organizing Network (NDLON) and the National Association for the Advancement of Colored People (NAACP). The law firm of Munger, Tolles & Olson LLP is acting as co-counsel in the case.
Omar Jadwat, staff attorney with the ACLU Immigrants' Rights Project and Nina Perales, Southwest Regional Counsel for MALDEF, argued the case on behalf of the civil rights groups.
In May, the coalition filed a lawsuit challenging the extreme law charging that it invites the racial profiling of people of color, violates the First Amendment and interferes with federal law. Friday's filing seeks to halt implementation of the law while the case is litigated.
The following quotes can be attributed to members of the coalition, as listed below.
Omar Jadwat, staff attorney with the ACLU Immigrants' Rights Project:
"We are asking the court to block SB 1070 right now because if this discriminatory law went into effect for even one day, it would be one day too many. Any law that requires law enforcement to ask people they stop and suspect of being undocumented for their 'papers' violates the U.S. Constitution and the American values of fairness and equality. This law is a clear invitation for racial profiling, and we're confident that the court will understand the importance of preventing it from ever taking effect."
Linton Joaquin, General Counsel of NILC:
"Judge Bolton heard from lawyers representing organizations ranging from small non-profit service providers to the federal government, asking her to block the implementation of this pernicious law. Inaction on SB 1070 will lead to widespread fear and threatens the constitutional rights and societal values of all Arizonans. Unified voices of civil rights leaders, law enforcement officers and interested citizens are fighting to keep this unconstitutional law from hurting countless Arizonans and undermining our nation's values of fair treatment under the law."
Julie Su, Litigation Director of APALC:
"We are here today in Arizona to ensure that SB 1070 does not take effect next week, as this fundamentally unconstitutional law opens the door for law enforcement to discriminate against Asian Americans, Pacific Islanders and other people of color who look or sound 'foreign.' We have faith the court understands that immigration enforcement is solely the responsibility of the federal government and that it will block this modern-day version of the Chinese Exclusion Act."
Alessandra Soler Meetze, Executive Director of the ACLU of Arizona:
"While proponents of SB 1070 would have us believe that they have a monopoly on the rule of law, the federal court remains the arbiter of justice in this case. The courageous plaintiffs who have come forward to challenge this unconstitutional racial profiling law are optimistic that the judge will strike down this discriminatory law, which has already resulted in the harassment of innocent people."
Organizations and attorneys on the case, Friendly House et al. v. Whiting et al., include:
• ACLU Immigrants' Rights Project: Jadwat, Lucas Guttentag, Cecillia Wang, Tanaz Moghadam and Harini P. Raghupathi;
• MALDEF: Perales, Thomas A. Saenz, Cynthia Valenzuela Dixon, Victor Viramontes, Gladys Limón, Nicholás Espiritu and Ivan Espinoza-Madrigal;
• NILC: Joaquin, Karen Tumlin, Nora A. Preciado, Melissa S. Keaney, Vivek Mittal and Ghazal Tajmiri;
• ACLU Foundation of Arizona: Dan Pochoda and Annie Lai;
• APALC: Su, Ronald Lee, Yungsuhn Park, Connie Choi and Carmina Ocampo;
• NDLON: Chris Newman;
• NAACP: Laura Blackburne;
• Munger Tolles & Olson LLP: Bradley S. Phillips, Paul J. Watford, Joseph J. Ybarra, Susan T. Boyd, Yuval Miller, Elisabeth J. Neubauer and Benjamin Maro;
• Roush, McCracken, Guerrero, Miller & Ortega: Daniel R. Ortega, Jr.
The motion for a preliminary injunction can be found at: www.aclu.org/immigrants-rights-racial-justice/friendly-house-et-al-v-whiting-et-al-plaintiffs-motion-preliminary-
A new ACLU video about how the SB 1070 invites racial profiling can be found at: www.aclu.org/immigrants-rights-racial-justice/would-you-ask-man-his-papers
More information about the Arizona law can be found at: www.aclu.org/what-happens-arizona-stops-arizona