ICE is in damage-control mode right now after an embarrassing internal memo was discussed in the Washington Post. That memo, sent from ICE Detention and Removal Operations Director James M. Chaparro on February 22, 2010, spelled out the agency’s goals in excruciating detail. The overall goal is apparently 400,000 removals for Fiscal Year 2010. Of those, 150,000 are to be removals of criminal aliens, leaving a goal of 250,000 removals for non-criminal aliens. In order to make this happen, Director Chaparro suggested that field offices ”maximize the use of funded beds in your field office or the reallocation of funds from those field offices that maximized this as much as possible to those with detention needs that are in excess of funding currently available to them,” identify criminal aliens that will be released within 90-120 days and begin travel document processing for them early, maximize ICE participation in the Mexican Internal Repatriation Program, and more. Mr. Chaparro ends this memo with the ominous sub-heading “these efforts must be sustained and will be closely monitored.”
The only problem with Mr. Chaparro’s memo is that ICE has an official policy of NO QUOTAS. ICE sets agency “goals” each fiscal year, but moved away from a strict system of quotas because of both the Bush Administration’s unpopular and much-criticized immigration raids and the simple fact that ICE employees don’t seem to like quotas very much. The Washington Post even quoted Chris Crane, spokesman for the American Federation of Government Employees, Council 118, which represents ICE workers, as saying that “[f]or ICE leadership, it’s not about keeping the community safe. It’s all about chasing this 400,000 number.” In response to the Post’s article, ICE Secretary John Morton gently explained on the agency’s website that “[s]ignificant portions of the memo cited in the Washington Post…did not reflect our policies, was sent without my authorization, and has since been withdrawn and corrected.”
I take Secretary Morton’s at his word, but I still have questions about the atmosphere within which ICE operates. Are officers unofficially “encouraged” to still meet that magic number 400,000? Are they skipping the cases of dangerous criminal aliens because they might be too long to process, prioritizing the easier-to-process cases of less-dangerous non-citizens instead? Will ICE allow conditions at detention facilities to deteriorate further because money is being spent on more DRO-type activities above all else? I think that this incident – let’s call it Chaparrogate - provides a fascinating if not cautionary insight into how ICE operates, and shows that there is a need for much more oversight and scrutiny of how this agency’s activities.
I was just reading through the minutes of a meeting between the American Immigration Lawyers Association (AILA) and the Department of Labor’s Wage and Hour Division (WHD), and realized for the first time just what an important force the WHD is for immigrant workers in the United States. The WHD investigates, among other things, violations of the terms of a foreign national’s employment in the U.S. with respect to specific immigration benefits. Anyone that wants to petition for a foreign worker has to either submit a Labor Condition Application (for H-1Bs and some other nonimmigrant categories) or a Labor Certification (for green cards). Labor Certifications and Labor Condition Applications contain an employer’s promises to both the U.S. government and the foreign worker, and violations of any of the terms in those applications are potentially very serious for the petitioning employer. The WHD can step in whenever a violation has occurred, using its investigative and enforcements powers to levy a wide range of sanctions on U.S. employers, including the recovery of back wages owed to foreign workers. According to the minutes I was reading, the WHD recovered $8.3 million in back wages over the course of 189 investigations in 2008, the last year for which data is available.
Some things to keep in mind about using the WHD: there is a 12-month window from the date of occurrence in which to complain about violations of the H-1B program. Also, if employees have fallen out of status because they were “benched” after complaining about wage or other labor violations, the WHD can issue a letter acknowledging that a complaint has been filed, which is usually required for a petition to transfer their H-1B status to another employer.
Employees with bona fide employment abuse complaints should not hesitate to contact the WHD. This is one of those agencies that is on the side of employees, not employers. If you, as an employee, are following the law, but your employer is not, the WHD seems like an effective and under-utilized means of solving your work problems once and for all.
I watched a great documentary on PBS yesterday – “Animas Perdidas,” or “Lost Souls” – about a family divided by the deportations of two brothers to Mexico (and I don’t want to ruin it for anyone by saying more). I highly recommend watching this film. It does a great job of putting a human face to the far too often abstracted concept of deportation, showing that deportees really aren’t so different from you and I. Check out the film’s website for more information.
I put together an application for LPR Cancellation of Removal yesterday. In case you don’t know, LPR Cancellation of Removal is a remedy for certain Lawful Permanent Residents that have certain criminal convictions. LPRs that qualify for cancellation have to show that, on balance, the equities in their case weigh in favor of them remaining in the United States. These equities will always include the nature of the crime(s) committed, whether or not there has been rehabilitation, family ties in the United States, and other factors that show why the Immigration Judge should exercise discretion favorably. Interesting as it might be, this post is not about LPR Cancellation. It is about the extraordinary volume of paper that cases such as LPR Cancellation generate. My finished application – containing evidence of the equities in this case – was 162 pages, and I had to create two copies: one for the Immigration Judge and one for the Department of Homeland Security Trial Attorney. Normally, I would have also needed a third copy for the client’s file, but fortunately my colleague was able to scan a complete copy of the application onto his computer, which can be printed out later (or presumably brought to court on a laptop, for reference).
So there you go – 324 pages of material for one court case. In this age of connectivity and rapid technological advances, I fail to see why all of this paper is still necessary. Any court matter can be done without paper. Any Respondent’s file can be scanned and available on the Judge’s computer or on a Trial Attorney’s laptop. Anything can be emailed, and proof of having sent the email can be obtained fairly easily (since proof of service on the government is required for all Immigration Court cases). True, some items need to be submitted in hard copy – medical examinations, for example, or proof of Biometrics – but these can always been submitted in addition to a soft copy. Advances in Information Technology can change the way government and the courts operate, improving the quality of the service we receive and conserving resources in the process. There is already limited e-filing of certain applications with USCIS, yet many other petitions should also be available for e-filing. The EOIR should take a hint from USCIS and provide for e-filing as well, and eventually move to an exclusive e-filing format for all immigration matters. I know that funding to create such a system is limited, but this would be an expenditure of funds now to save a tremendous amount of money down the road in material and personnel costs. It’s time for immigration to move firmly into the 21st century, once and for all. There is no reason why this can’t happen right now.
Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) wrote an op-ed in the Washington Post outlining their prospective immigration reform legislation. I thought I’d just reproduce the editorial in its entireity here – judge for yourself whether the Senators are on the right track:
“Our immigration system is badly broken. Although our borders have become far more secure in recent years, too many people seeking illegal entry get through. We have no way to track whether the millions who enter the United States on valid visas each year leave when they are supposed to. And employers are burdened by a complicated system for verifying workers’ immigration status.
Last week we met with President Obama to discuss our draft framework for action on immigration. We expressed our belief that America’s security and economic well-being depend on enacting sensible immigration policies.
The answer is simple: Americans overwhelmingly oppose illegal immigration and support legal immigration. Throughout our history, immigrants have contributed to making this country more vibrant and economically dynamic. Once it is clear that in 20 years our nation will not again confront the specter of another 11 million people coming here illegally, Americans will embrace more welcoming immigration policies.
Our plan has four pillars: requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.
Besides border security, ending illegal immigration will also require an effective employment verification system that holds employers accountable for hiring illegal workers. A tamper-proof ID system would dramatically decrease illegal immigration, experts have said, and would reduce the government revenue lost when employers and workers here illegally fail to pay taxes.
We would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card. Each card’s unique biometric identifier would be stored only on the card; no government database would house everyone’s information. The cards would not contain any private information, medical information or tracking devices. The card would be a high-tech version of the Social Security card that citizens already have.
Prospective employers would be responsible for swiping the cards through a machine to confirm a person’s identity and immigration status. Employers who refused to swipe the card or who otherwise knowingly hired unauthorized workers would face stiff fines and, for repeat offenses, prison sentences.
We propose a zero-tolerance policy for gang members, smugglers, terrorists and those who commit other felonies after coming here illegally. We would bolster recent efforts to secure our borders by increasing the Border Patrol’s staffing and funding for infrastructure and technology. More personnel would be deployed to the border immediately to fill gaps in apprehension capabilities.
Other steps include expanding domestic enforcement to better apprehend and deport those who commit crimes and completing an entry-exit system that tracks people who enter the United States on legal visas and reports those who overstay their visas to law enforcement databases.
Ending illegal immigration, however, cannot be the sole objective of reform. Developing a rational legal immigration system is essential to ensuring America’s future economic prosperity.
Ensuring economic prosperity requires attracting the world’s best and brightest. Our legislation would award green cards to immigrants who receive a PhD or master’s degree in science, technology, engineering or math from a U.S. university. It makes no sense to educate the world’s future inventors and entrepreneurs and then force them to leave when they are able to contribute to our economy.
Our blueprint also creates a rational system for admitting lower-skilled workers. Our current system prohibits lower-skilled immigrants from coming here to earn money and then returning home. Our framework would facilitate this desired circular migration by allowing employers to hire immigrants if they can show they were unsuccessful in recruiting an American to fill an open position; allowing more lower-skilled immigrants to come here when our economy is creating jobs and fewer in a recession; and permitting workers who have succeeded in the workplace, and contributed to their communities over many years, the chance to earn a green card.
For the 11 million immigrants already in this country illegally, we would provide a tough but fair path forward. They would be required to admit they broke the law and to pay their debt to society by performing community service and paying fines and back taxes. These people would be required to pass background checks and be proficient in English before going to the back of the line of prospective immigrants to earn the opportunity to work toward lawful permanent residence.
The American people deserve more than empty rhetoric and impractical calls for mass deportation. We urge the public and our colleagues to join our bipartisan efforts in enacting these reforms.”
© 2010 The Washington Post Company
U.S. Secretary of Labor Hilda Solis announced on Monday that the Department of Labor would begin certifying applicants for U-visas, allowing them to remain in the United States legally if they assist with a criminal investigation or prosecution. The law requires that a law enforcement agency or official certify that a potential applicant “has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution” of criminal activity. When I first read that the DOL was certifying U-visa applicants, my thoughts immediately turned to Labor Certifications and LCAs, and I became very confused. I had to read the DOL’s press release to realize that it actually does have an investigative wing as well – the Wage and Hour Division – and that it does qualify as a “law enforcement agency,” albeit an obviously less-appreciated one. Secretary Solis said that “regardless of immigration status, no one should have to suffer criminal abuse silently.” I commend her decision to become involved in qualifying U-visa cases, and hope that it leads other federal agencies to follow suit.
I saw this disturbing story today about three murders in Ciudad Juarez, Mexico – the victims of which were connected in some way to the U.S. Consulate there. According to a story on CNN, one of the victims worked at the Consulate, another was her husband, and a third was the husband of another Consulate employee. A motive for these crimes is not known yet, but Mexican authorities and the FBI apparently think it’s related to one of the drug cartels currently operating in Juarez, which is one of the most dangerous cities on the planet.
Why, you might ask, am I writing about this incident in Got Immigration? The U.S. Consulate in Ciudad Juarez is one of the busiest in the world, handling an incredible amount of immigration cases, including most of the I-601 waivers for Mexican nationals. Aside from being a terrible tragedy for anyone connected to these victims, the murders of a consular employee and relatives of consular employees will almost certainly lead to tighter security at the Consulate, which in turn will make an already stressful and difficult post that much tougher to navigate for many thousands of Mexicans. I also wonder whether the attitude of consular employees will change as a result of these murders. Will they wonder, if I deny this visa, will I be murdered after work too? Will my family members be murdered instead? Although these crimes seem connected to the drug violence that plagues Ciudad Juarez, I would wonder whether, in a city in which life is seemingly so cheap, a decision to deny an immigration case might provide a good excuse for someone to end my life as well. Will adjudicators become more generous when they shouldn’t be, or tougher when they needn’t be? Only time will tell. I just hope that the countless Mexican nationals that pass through the U.S. Consulate in Ciudad Juarez don’t become victims of these brutal and senseless murders too.
The Transactional Records Access Clearinghouse (TRAC) released another report about immigration this week, this time about the volume of cases in the Immigration Court system. The report found that a record 228,421 cases are currently pending at the Immigration Court, also known by its more official name the Executive Office for Immigration Review, or EOIR. Worse yet, the average amount of time these cases pend before an Immigration Judge is now 439 days – a new high. The report goes on to show how the pace of hiring new Immigration Judges has not kept up with an increasing caseload, leading to progressively longer wait times, and that the situation is most dire in California – more specifically, in Los Angeles. Respondents in the jurisdiction of the Los Angeles Immigration Court can expect an average wait of 713 days before their cases are adjudicated, an astronomically high number compared to the Immigration Courts in a state such as Louisiana, which have an average wait time of 195 days.
The EOIR wasted no time responding to the TRAC report, saying in a rather snippy letter that ”[t]he report is unbalanced and fails to acknowledge the effort and progress that the Executive Office for Immigration Review (EOIR) has made, and continues to make, to address the immigration caseload.” The letter cites an unprecedented effort by the EOIR to hire more Immigration Judges – 28 new positions with the FY2010 budget, plus an additional 19 from before - which would bring the total number of Judges to 280 by the end of 2010.
So who is right? I think that TRAC’s data speaks for itself – at least for now. Although the situation might improve with the EOIR’s new hiring initiative, the fact remains that, at this particular moment in time, Respondents in the Immigration Court system face very long waits. That might change in the near future, but if the volume of immigration apprehensions keeps increasing, as it has been for the past several years under both the Bush and Obama administrations, the EOIR’s caseload can’t help but increase as well, 280 Judges or not.
There was a huge victory this week in New York City for anyone concerned about immigrants getting ripped off. According to the Associated Press, a businesswoman in Queens was ordered to pay more than $3 million for defrauding undocumented immigrants. The State Supreme Court in Manhattan ordered Miriam Mercedes Hernandez to pay full restitution to 37 Latino immigrants and $2.8 million in penalties. In a civil suit filed in May 2009, New York Attorney General Andrew Cuomo alleged that Hernandez told undocumented immigrants that she could get them legal U.S. residency, including social security cards and passports. She demanded $15,000 for the documents. Clearly, Ms. Hernandez could not, and her lies are going to now cost her a whole lot of money.
I’m esctatic that somone, somewhere, is finally taking action against these immigration “consultants,” more commonly known by the Spanish appellation (or epithet, depending on your perspective) “notarios.” These people have been described as the “cancer” of the immigration system, dooping unsuspecting immigrants into spending thousands of dollars on cases that are usually 100% fraudulent. Needless to say, this only harms the immigrants in the end, even if they otherwise qualify for bona fide immigration relief. Although immigration consultants are essentially practicing law without a license, most states have been hesitant to go after them, namely because victims are hard to find and frankly don’t have the political clout needed to really press the issue with state officials. New York shows that states can combat this type of abuse, even if doing so means standing up for a politically unpopular segment of the population. Right is right, no matter who you are or where you come from – and combatting fraud is always the right thing to do.
The 9th Circuit Court of Appeals issued a truly incredible decision last week. In Kazarian v. USCIS, the Court held that the Immigration Service cannot unilateral create additional evidentiary requirements for first-preference (EB-1) immigrant petitions. In other words, the 9th Circuit told USCIS – “don’t make up law on your own.” This might sound like a no-brainer, but USCIS has been doing just that sort of do-it-yourself lawmaking for years. I don’t know whether it’s a conscious effort on USCIS’s part to restrict certain visa categories, whether it’s a bona fide interpretation of a particular evidentiary standard, or whether something even more nefarious (or more innocuous?) is at work here - but whatever the reason is, USCIS’s lawmaking efforts are over for the time being. This case is a tremendous victory for all my immigration attorney brothers and sisters out there who are sick and tired of USCIS blatantly disregarding the law; in that sense, the Kazarian case represents a much-needed – and long-overdue – wake-up call from the 9th Circuit.
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