Friday, December 21, 2012

Los Angeles-area man admits operating websites that sold nearly $2 million worth of false identity documents

Two days ago, Immigration and Customs Enforcement announced they had successfully completed an investigation and prosecution of a Los Angeles-area man who admitted operating two websites that sold counterfeit IDs pleaded guilty in federal court Tuesday to transferring false identification document. This announcement followed a joint task force probe conducted by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and the HSI-led multi-agency Document and Benefit Fraud Task Force. This case was prosecuted by the Computer Hacking and Intellectual Property Section.

Ramin Bibian, 47, or Tarzana, admitted that, from approximately November 2005 to approximately August 2012, he operated two websites that sold false identification documents, specifically state driver's licenses, identification cards and international driver's licenses.

Through, Bibian offered state driver's licenses and identification cards for prices ranging from $135 to more than $250. For an additional fee, customers could add special features to their identification cards, such as holograms, magnetic encoded strips and high definition printing similar to that used by state agencies. Although he advertised his products as novelty items, Bibian admitted he was well aware the identification cards were similar to legitimately-issued state identification and that his customers intended to use them as substitutes for such.

In addition, Bibian sold invalid international driver's licenses on another website he operated – An international driver's permit provides an official translated copy of an individual's home country driver's license for use abroad. The U.S. government has authorized only two entities, the American Automobile Association and the National Automobile Club, to issue such permits. Bibian admitted using false names, including Ray Fray, Arya Jahan and Tova Godsi, in connection with the offense. He also agreed to forfeit $1.9 million to the federal government, which represents the proceeds from the sale of the false identification documents.

Bibian was indicted by a federal grand jury Aug. 16. He was charged with three counts of transferring false identification documents. Under the plea agreement, Bibian pleaded guilty to one of those counts.

Bibian has been in custody since his arrest Aug. 28. His sentencing is scheduled for March 19, 2013, before District Judge Richard Seeborg in San Francisco. He faces a maximum statutory penalty of 15 years in prison and a $250,000 fine.

Friday, November 30, 2012

CBP "Self-Deportation" Program Ends After Only Two Months

A U.S. pilot program, operated by Customs and Border Protection ("CBP") designed to deport illegal immigrants by flying them to Mexico City will operate for only two months this year and involve 20 flights, a significant scaling-back of what was billed as a humanitarian effort to avoid deporting people to violent border regions, or the Romney "Self-Deportation" Plan.

The first flight, which carried 131 immigrants, on October 2012, landed in Mexico City, six months after the originally scheduled start date of the program. Slated to run from April through November, the Interior Repatriation Initiative will operate only in October and November.

When the program was announced in February, Mexico's interior secretary, Alejandro Poire, said the flights would improve border security and make it easier for illegal immigrants to return to their hometowns by taking buses from the capital.

Deportees also would no longer be "systematically placed at the mercy of criminal groups in border areas," Poire said in a statement. The flights serve U.S. interests by making it harder for deportees to cross back into the U.S.

Under terms of the agreement, the U.S. pays for the flights, which depart from El Paso, and the Mexican government provides bus fares for the migrants' trips home.

U.S. and Mexican officials did not give specific reasons for the initiative's delay and limited duration.

"Given the complexities and logistics involved with this initiative, the length of time needed to launch the inaugural flight was not unreasonable," the Department of Homeland Security said in a statement.

The Mexican Interior Ministry confirmed the arrival of the first flight at Mexico City's international airport in October, and said the program would continue through Nov. 29, transporting more than 2,400 people.

"Once in national territory, they will be given food and ground transportation to their communities of origin and-or residence in Mexico," the ministry and the National Migration Institute said in a statement. It said the arriving Mexicans would be given a list of social services available to them and allowed to request medical attention, as well as a phone call to their families.

If there are outstanding criminal charges in Mexico against any of the passengers, they will be investigated for possible prosecution, the ministry said.

Repatriating illegal immigrants has become problematic in recent years as deportations reach record highs and besieged border areas struggle to provide security and housing for people who often arrive penniless and without any contacts.

In the northeastern state of Tamaulipas, where deportations have surged fivefold in recent years, criminals prey on deportees, sometimes abducting them from streets, bus stations and migrant shelters. Many are held for ransom, and others are recruited into criminal networks that have seized control of much of the region.

Monday, November 26, 2012

Settled Foreign Worker LCA Complaint Against Former Employer

I recently negotiated a nice settlement agreement for a foreign employee based upon an alleged violation of his employer’s Labor Condition Agreement submitted on behalf of his I-129 application for H-1B status under the Immigration and Nationality Act, section 101(a)(15)(H). In the Labor Condition Application (LCA) Form ETA-9035 submitted to the U.S. Department of Labor, the petitioning employer certifies that they will pay the prevailing wage for the specialty occupation until they achieve a bona fide termination, which includes three elements as defined by the U.S. Department of Labor, Office of the Administrative Law Judges. To effect a "bona fide" termination of an H-1B employee, the employer must: (1) properly terminate the employee under state law; (2) offer the employee return transportation costs home; and (3) notify the USCIS of the H-1B termination. In my complaint, the specialty worker alleged that he was not notified of his termination until he received actual notice of his H-1B status termination, thus Step 1 was never accomplished. The foreign national was assigned to a remote work site and was not notified that his status was being terminated until he was mailed the termination notification from USCIS. This case was very similar to another LCA violation claim that I prevailed in during our administrative hearing in front of the ALJ in the San Francisco Office. This case is presently on appeal to the ARB in Washington DC, but I fully expect to prevail on appeal. The ALJ’s decision can be found here.

Thursday, November 15, 2012

Origin of the Term "Immigrant" In American Public Discourse

After the recent presidential election, the question of immigration reform has become one of the top issues that seems to have any likelihood of achieving legislative success. I personally hope there is some consensus reached between the parties that can achieve a favorable outcome.

This discussion however, started me thinking about how these terms originated, such as "immigrant." It seems that at the time of the founding of the United States, the more common words to describe recent entrants were words such as "alien," "foreigner," and "newcomer."

The Oxford English Dictionary reports that the pioneering American historian Jeremy Belknap was one of the first to use "immigrant" and its cognates in print. In his History of New Hampshire (1792), vol. 3, preface, 6, Belknap wrote, "There is another deviation from the strict letter of the English which is found extremely convenient in our discourses on population . . . The verb immigrate and the nouns immigrant and immigration are used without scruple in some parts of this volume."

The used of "immigrant" appears to have become frequent only after the heavy transatlantic movements of people to North America. After the onset of mass immigration to the United States, which began in the 1840s, the term became routine.

Friday, October 26, 2012

Interesting Question - Can Someone With an Approved U visa and I-192, But also Married to USC, Adjust Their Status Under INA 245(a)?

We have had several U-Visa Holders, who initially entered the US without inspection (EWI), but have been an approved I-918 and I-192, with an I-94 showing their admission date and they are married to United States citizen spouses who have filed and have approved I-130 Immediate Relative Visa Petitions, but have been denied adjustment of status.

There is seemingly some confusion about this issue of adjustment under INA section 245(a) as our USCIS denial letters quote the alien's ineligibly under 245(i). There is no question that after three years the U-Visa holder can adjust under 245(m), but then they must wait another 5 years before becoming eligible for naturalization.

However, there are valid legal arguments to support a 245(a) adjustment for an immediate relative, as the 245(c) & 245(k) bars are waived for immediate relatives.

I think the issue is not something that the Vermont Service Center has exclusive jurisdiction to decide, as it is their sole determination that no U-Visa holder can adjust under 245(a). As some U visa grantees first entered EWI, however the regulations state that they were lawfully admitted to the United States on the date the U visa is granted. This is aside from other inadmissibility issues that may arise.

I focus this response on an EWI granted U visa status that has not left the United States after the initial EWI. I'm in the 9th Circuit and we have Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), where the 9th Circuit held that the family unity grant rendered Garcia-Quintero admitted for calculation of the seven years for cancellation of removal for legal permanent residents. "Our decision focused on the aliens’ acceptance into the Family Unity Program”. Id. at 1015. As part of that acceptance, we looked at Garcia-Quintero’s enrollment in the program, specifically noting that it provided protection from deportation and that FUP beneficiaries “shall be inspected and admitted in the same immigration status as the alien had at the time of departure.” Id. at 1017-18. A U visa grantee received employment authorization, is protected from deportation and the language of the regulation states that they are lawfully admitted. Same benefits as that received by a family unity beneficiary. We deal with legal fictions all the time.

Wednesday, October 17, 2012

Los Angeles City Council OK's Service ID Cards for Undocumented Aliens

According to a LA Times Report, a plan to provide official photo identification cards for illegal immigrants in Los Angeles appears to be winning wide support. This plan would help the many residents of the city in obtaining services and access to governmental agencies, such as the school district or in opening a bank account.

A Los Angeles City Council committee Tuesday approved the concept after hearing from a wide array of supporters who said it was a practical way to incorporate into civic life the area's large undocumented population.

Opposition to the so-called City Services Card is inevitable because it touches on the hot-button issue of illegal immigration, Councilman Ed Reyes said. But in the end "cooler heads will prevail and understand the humanity of the suggestion," he said.

The committee voted unanimously to begin soliciting proposals from potential vendors who would implement the program, backed by Mayor Antonio Villaraigosa and Councilman Richard Alarcon. That won't happen, however, until a draft proposal is brought before the full council in about three weeks, officials said.

Although no one opposed to the ID cards spoke at Tuesday's committee hearing, the Granada Hills North Neighborhood Council sent a letter stating that it had voted against the proposal.

Reyes, a member of the Arts, Parks, Health and Aging Committee, said it's "about time" that Los Angeles residents, regardless of immigration status, have the ability to easily open bank accounts and access city services.

Los Angeles is a cosmopolitan city with an international economy, Reyes said, and "this card allows people who have been living in the shadows to be out in the light of day." The photo ID would include the user's name, address, date of birth and possibly other identifying information. It could be used by any resident who lacks acceptable documentation to open a bank account or access city services, such as libraries or work-training programs, officials said.

Besides undocumented immigrants, seniors who no longer drive, the homeless and transgender people would also benefit, officials said, because they often lack official ID as well. City staff said the program won't cost taxpayers anything because the third-party vendor would charge from $10 to $20 per card, and would also charge a few dollars a month if an applicant chooses to activate a debit card feature.

Holders would be able to load the card with money, pay bills, make reservations and make purchases via debit transaction at ATM locations, city staff said. San Francisco, Oakland and Richmond are among 10 cities nationwide that already offer such a card or are getting ready to roll one out, said Larry Frank, the mayor's deputy chief of staff.

It would be up to Los Angeles Police Chief Charlie Beck to decide whether patrol officers would accept it as an acceptable form of ID.

Representatives of labor, banks, business groups and librarians uniformly expressed support for the ID cards at Tuesday's council committee hearing.

Jesse Torres, chief executive of Pan American Bank in East Los Angeles, said the card would bring security and "peace of mind" to undocumented residents who are forced to carry large amounts of cash on them because they don't have an account.

He said some workers have no choice but to pay up to $1,000 a year in fees to check cashers and payday lenders. Antonio Bernabe, who organizes day laborers, said his workers deal with those issues on a daily basis.

"They are afraid to go into a bank to deposit money," he said. "They are afraid to go into a city building."

Betty Hung, of the Asian Pacific American Legal Center, said an ID would bring psychological as well as practical benefits to hundreds of thousands of undocumented immigrants who live in the shadows because they're fearful of deportation.

"It sends the message that we are one city," she said. "We are all Angelenos."

Friday, October 5, 2012

LAPD Chief Says Illegal Immigrants Arrested In Petty Crimes Won't Be Placed on ICE Holds

LAPD Police Chief, Charlie Beck, on Thursday unveiled plans to stop handing over undocumented immigrants arrested for low-level offenses to Immigration and Customs Enforcement (ICE) for potential deportation. The move by Chief Beck represented a victory for immigrant rights activists just days after California Governor Jerry Brown vetoed the TRUST ACT bill that would have extended statewide an approach similar to what Beck is proposing. Under a federal program launched in 2008 called Secure Communities, U.S. Immigration and Customs Enforcement officials work in partnership with local law enforcement agencies to deport undocumented immigrants arrested for crimes. The program helped the federal government to deport a record high of about 400,000 undocumented immigrants last year. Beck told reporters he does not believe federal detentions under the program should apply to undocumented immigrants arrested for "low-grade misdemeanor offenses" and similar crimes. "The LAPD is proposing to no longer grant an ICE hold requests without first reviewing the seriousness of the offense for which the person is being held, as well as their prior arrest history and gang involvement," Beck said. Beck said he believes in some cases the detention of illegal immigrants has unnecessarily split up families. "Community trust is extremely important," he said. "It's my intent that we gain that trust back." Beck said his department arrests about 105,000 people per year and receives ICE holds for about 3,400 of them. About half of those requests are for misdemeanor crimes, which include everything from vandalism to driving offenses, and Beck said he believes about 400 of those requests would be denied by his department if his proposed policy goes into effect. Beck said his department would still honor ICE detention requests on all felonies, which include crimes of violence such as murder and assault, and that his goal was to implement the new protocols by Jan. 1. The proposal, which has the support of Los Angeles Mayor Antonio Villaraigosa, will have to be presented to the Los Angeles Board of Police Commissioners for their review. The law vetoed by Brown on Sunday would have made California the first state to bar local authorities from honoring federal detention requests on undocumented immigrants, unless those individuals were charged or convicted of a serious or violent felony. Brown faulted the bill for not exempting individuals who had committed crimes such as child abuse, drug trafficking and selling weapons. Law enforcement officials had opposed the bill, including Los Angeles County Sheriff Lee Baca.

Thursday, October 4, 2012

ICE Director John Morton Kills California's TRUST Act

In a report issued today by the Immigrant Youth Coalition, IYC accused ICE Director John Morton of single-handedly sabotaging the efforts of the California Legislature to mitigate the harsh effects of the "Secure Communities" by the passage of the TRUST Act. In order to stop the California TRUST Act which had gained widespread support, Immigration Customs Enforcement's Director John Morton went as far as to blackmail the Governor of California into vetoing the TRUST Act. When advocates asked the governors office why Brown vetoed the bill, the staff responded that they had received a call from John Morton Director of ICE saying that if Brown doesn't veto the TRUST Act that California would essentially go back to the old days in reference to immigration raids and more overt enforcement. California would have been the first state in which the impact of "Secure Communities" would be significantly reduced by not honoring immigration detainers. California holds one of the largest undocumented immigrant population in the nation, and deports about 80,000 undocumented immigrants about one fourth of the yearly quota for deportations that the Department of homeland security set in 2010. John Morton could not allow for the TRUST Act to pass, with the Deferred Action for Childhood arrivals now being implemented the pool of deportable immigrants shrunk by almost a million. ICE needed to make sure they meet their 400,000 a year quota for deportations and so they intervened in state politics to ensure the survival of "Secure Communities" If the "Prosecutorial Discretion" memo were actually implemented, laws like the TRUST Act wouldn't be necessary. The TRUST Act would ensure that people with minor or no offenses would be let go without any immigration consequences; it was California's way of holding the Federal Government accountable.

Wednesday, October 3, 2012

Started at a New Law Practice This Week

On Monday October 1, 2012, I began my association with a great group of attorneys in Oakland, California, leaving behind the Law Offices of Haitham Ballout, where I practice for the last five years. The incentive in making this change is the intention of the group to form a partnership with myself as one of the named partners. This is an exciting and challenging moment, but in the long run, I firmly believe this is the right move professionally. In my former position at Mr. Ballout's Office, a very capable young attorney as accepted the offer and she will fill my post. The new practice will focus on removal and deportation cases, along with Mr. Dae Hee Kim, Esq. as the experienced criminal defense counsel. I have many years of experience in handling both immigration and criminal appellate cases. My experience also includes many administrative appeals to both the Board of Immigration Appeals (BIA) and the Administrative Appeals Office (AAO)in humanitarian cases, removal defense, and visa petitions, which involves Walsh Act cases and waivers of all types.

Wednesday, September 12, 2012

First Group of Approval Notices for "Dreamers" Sent

After approximately three weeks of accepting applications from young undocumented immigrants seeking to avoid deportation and get a work permit, ("Dreamers") the government already has approved some of the roughly 72,000 applications the government has received. The Homeland Security Department said Tuesday that a small group of applications has been approved and those immigrants are being notified this week about the decision. The department did not say how many applications had been approved. The first wave of approvals comes months head of DHS' own internal estimates of how long the application process for the administration's Deferred Action for Childhood Arrivals program could take – and less than 60 days before the Nov. 6 elections. According to an internal DHS document obtained by The Associated Press, the department's Citizenship and Immigration Services had estimated that each application could take several months to be completed. "Following a thorough, individualized case review, USCIS has now begun notifying individuals of the determination on their deferral requests," DHS spokesman Peter Boogaard said in a statement. He said about 72,000 applications have been received since the program's Aug. 15 start. DHS said background checks, including finger prints checks, are being conducted on each immigrant before an application can be approved. The average wait time for approval is expected to be about four months to six months. Most applications for immigration benefits take several months for to process. In certain circumstances, people can pay extra fees to speed up the process. There currently is no such option for deferred action applications. President Barack Obama and Homeland Security Secretary Janet Napolitano announced on June 15 that young undocumented immigrants who came to the U.S. before they turned 16, are 30 or younger, are high school graduates or are in college or have served in the military would be eligible to apply to avoid deportation for up to two years and get a work permit. The immigrants also could not have a serious criminal record. Applicants for deferred deportation must pay a $465 paperwork fee that is expected to cover the cost of processing the work permit and for finger printing. DHS has estimated that as many as 1.04 million immigrants could apply to avoid being deported in the program's first year, with about 890,000 being eligible immediately. According to the DHS document, it could cost between $467 million and $585 million to process applications in the first two years of the program, with revenues from fees estimate at $484 million. That means the cost to the government could range from a gain of $17 million to a loss of more than $101 million.

Friday, August 3, 2012

DHS Secretary Napolitano Announces "Dream Act" Defered Action Process

Today, DHS Secretary Janet Napolitano announced the broad outlines of the deferred action program for "Dream Act" eligible aliens. The Press Release is attached below, however, the announcement is shy of specific details. More will be forthcoming from DHS.

USCIS to begin accepting requests for consideration of deferred action on August 15, 2012.

WASHINGTON—The Department of Homeland Security today provided additional information on the deferred action for childhood arrivals process during a national media call in preparation for the August 15 implementation date.

On June 15, Secretary of Homeland Security Janet Napolitano announced that certain young people who came to the United States as children and meet other key guidelines may be eligible, on a case-by-case basis, to receive deferred action. U.S. Citizenship and Immigration Services (USCIS) is finalizing a process by which potentially eligible individuals may request consideration of deferred action for childhood arrivals.

USCIS expects to make all forms, instructions, and additional information relevant to the deferred action for childhood arrivals process available on August 15, 2012. USCIS will then immediately begin accepting requests for consideration of deferred action for childhood arrivals.

Information shared during today’s call includes the following highlights:

Requestors – those in removal proceedings, those with final orders, and those who have never been in removal proceedings – will be able to affirmatively request consideration of deferred action for childhood arrivals with USCIS. Requestors will use a form developed for this specific purpose. Requestors will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox. All requestors must provide biometrics and undergo background checks. Fee waivers cannot be requested for the application for employment authorization and biometric collection. However, fee exemptions will be available in limited circumstances.

The four USCIS Service Centers will review requests.

It is important to note that this process is not yet in effect and individuals who believe they meet the guidelines of this new process should not request consideration of deferred action before August 15, 2012. Requests submitted before August 15, 2012 will be rejected.

Friday, July 13, 2012

California Legislature Contemplates the TRUST ACT

The California Legislature recently passed the TRUST Act and the bill has been sent to the Governor so signature. The bill aims to correct the inherent flaws of the federal Secure Communities program.

For nearly three years, the Obama administration has advertised the Secure Communities program as a targeted enforcement tool that identifies "dangerous criminal aliens" for deportation. Over and over, federal officials have insisted that the program's focus would be chiefly limited to those immigrants whose criminal convictions show that they pose a danger to public safety.

But that's not the case. In practice, Secure Communities is a dragnet that fails to distinguish between felons convicted of serious crimes and nonviolent arrestees facing civil immigration violations. In California alone, more than half of the 75,000 people deported under the program since it began in 2009 had no criminal history or had only misdemeanor convictions.

Under the program, local law enforcement agencies are required to send the fingerprints of everyone booked into local jails to the FBI, which checks them against criminal databases. Department of Homeland Security officials then check the prints against immigration records and issue requests, known as "detainers," to local authorities asking them to hold particular individuals for 48 hours. As a result, immigrants arrested for illegal street vending or driving without a license who would ordinarily be released have to sit in jail for two days. After that, they are either transferred to federal custody or released, although some end up in jail for longer.

Local officials across the country are deeply concerned about having to spend their scarce resources filling already overcrowded jails with non-dangerous arrestees, and are also concerned that the program will undermine law enforcement by deterring immigrants from cooperating with police. So California lawmakers have passed the Trust Act, which would require police to release those who have posted bail, face no serious charges and have no prior serious criminal convictions, despite federal detainers. Officials in New York, the District of Columbia and Cook County, Ill., already have similar rules in place.

Tuesday, July 10, 2012

Prosecutorial Discretion Clinic in San Francisco on July 14, 2012

Our office has received many phone calls of the last few weeks asking about the June 15, 2012 announcement from President Obama that his administration will grant temporary relief in the form of prosecutorial discretion to any "Dream Act" eligible young person.

It is my understanding that this relief is temporary, for a two-year period, and anyone granted discretion will be eligible for an EAD Card, or work authorization. As there has been a tremendous amount of interest, many San Francisco Immigration Service Providers have joined together for a workshop on July 15, 2012, at Golden Gate University in San Francisco to help provide information to the public.

Here is the pertient information:

The San Francisco Immigrant Legal and Educational Network (a coalition of immigrant legal and education service providers which includes the African Advocacy Network, Arab Resource and Organizing Center, Asian Law Caucus, Asian Pacific Islander Legal Outreach, Causa Justa: Just Cause, Central American Resource Center, Chinese for Affirmative Action, Dolores Street Community Services, Filipino Community Center, La Raza Centro Legal, La Raza Community Resource Center, Mujeres Unidas y Activas, and People Organized to Demand Environmental and Economic Rights) and the Lawyers' Committee for Civil Rights, along with the American Immigration Lawyers Association (AILA), Immigrant Legal Resource Center (ILRC), Centro Legal de la Raza, Community Legal Services of East Palo Alto (CLSEPA), East Bay Community Law Center, GGU Asian Pacific American Law Students Association, GGU La Raza Law Students Association, and GGU Law Career Services, will be hosting a two part free legal clinic on prosecutorial discretion for pro se (unrepresented) individuals currently in removal proceedings.

 Part I (July 14, 2012): We will provide an overview of prosecutorial discretion, distribute and review a pro se guide for those individuals interested in applying, and provide free legal screenings to evaluate other immigration relief and whether prosecutorial discretion should be pursued. We will ask pro se individuals interested in applying for PD to return to part two of the clinic Saturday, July 28, 2012, with their completed packets so that they may be reviewed by an immigration attorney prior to being submitted. We have a higher need for experienced immigration attorneys for this first part of the clinic.  

Part II (July 28, 2012): We will review prosecutorial discretion requests prepared by individuals using the pro se guide distributed during Part I to make sure they are ready for submission. We will also assist those individuals who are unable to complete a request on their own.

*Due to the Obama administration's June 15, 2012 announcement regarding deferred action for undocumented youth, we will also conduct a brief Know Your Rights presentation during Part I and provide consultations to individuals in proceedings who might qualify for temporary relief under the new guidelines. Clinic info:

 Where: Golden Gate University 536 Mission Street, San Francisco, CA 94105

When: July 14, 2012, 11:00 – 4:00


July 28, 2012, 11:00 – 4:00

Victory in my Latest Criminal Appeal

The First District Court of Appeal, Division Four, recently issued an opinion in a criminal appeal of a conviction for California Vehicle Code section 10851(a) - Unlawful Driving of a Vehicle. The case name was People v. Martinez and the jury trial took place in Contra Costa County. I was appointed to represent the appellant in the case.

On appeal, I raise one issue, that the trial judge inserted an variant jury instruction that confused the jury and impermissibly lessened the burden of proof for the prosecution. After oral arguments, the court of appeal agreed with my argument and reversed the verdict and remanded the case back to the trial court.

The opinion is presently unpublished, however, I requested that the court consider publishing the opinion to discourage other District Attorneys from seeking to insert variant language into the standard CALCRIM instructions.

The opinion can be seen here

Friday, June 1, 2012

Board of Immigration Appeals Remanded One of Our Adam Walsh Cases Back to USCIS For Further Proceedings

Last month, our office received the decision from the Board of Immigration Appeals in an Adam Walsh Case. We argued to the Board that USCIS improperly imposed the "Beyond a Reasonable Doubt Standard" in determining whether the petition poses a risk to the intended beneficiary. My contention was that this standard had no underlying basis as Congress never intended to require this criminal law threshold. In most immigration matters the standard is more probable than not.

In the decision, the Board specifically asked USCIS to explain 8 items in how they reached their conclusion to deny our client's I-130 visa petition. It is my belief that this is a milestone in adjudication of these petitions because the entire process has not be thoroughly thought through and the Board is asking USCIS to do so.

Board of Immigration Appeals Decision in Walsh Act Case

Monday, May 14, 2012

Facebook co-Founder, Eduardo Saverin, Renounces U.S. Citizenship to Avoid Paying Taxes

Facebook co-Founder, Eduardo Saverin, whose family fled from Brazil to the United States seeking asylum protection, has just renounced his U.S. citizenship to avoid paying approximately $600 million dollars in taxes from his expected windfall from the Facebook IPO. It seems the 1% again clearly demonstrate that they owe no obligations to the 99%. As someone who works in the trenches day in and day out, fighting for asylees fleeing from persecution around the globe, I am deeply saddened by someone who takes advantage of the largeness and generosity of the United States, and then absconds with the loot when it is not longer convenient for that person.

Here is the full story as reported.

When Eduardo Saverin was 13, his family discovered that his name had turned up on a list of victims to be kidnapped by Brazilian gangs. Saverin’s father was a wealthy businessman in São Paulo, and it was inevitable that he’d attract this kind of unwanted attention. Now the family had to make a permanent decision. They hastily arranged a move out of the country. And of all the places in the world they could move to, the Saverin family saw only one option. They took their talents to Miami.

Would it be too much to say that America saved Eduardo Saverin? Probably. Maybe that’s just too overwrought. The Saverins were just another in a long line of immigrants who’d come to America for the opportunity it affords—the opportunity, among other things, to not have to worry that your child will be kidnapped just because you’ve become wealthy.

Just because his parents moved here doesn’t mean Eduardo Saverin owes America anything, right?

Yet if you study the trajectory of Saverin’s life—the path that took him from being an immigrant kid to a Harvard student to an instant billionaire to the subject of an Oscar-winning motion picture—it emerges as a uniquely American story. At just about every step between his landing in Miami and his becoming a co-founder of Facebook, you find American institutions and inventions playing a significant part in his success.

Would Eduardo Saverin have been successful anywhere else? Maybe, but not as quickly, and not as spectacularly. It was only thanks to America—thanks to the American government’s direct and indirect investments in science and technology; thanks to the U.S. justice system; the relatively safe and fair investment climate made possible by that justice system; the education system that educated all of Facebook’s workers, and on and on—it was only thanks to all of this that you know anything at all about Eduardo Saverin today.

Now comes news that Saverin has decided to renounce his U.S. citizenship, most likely to avoid a large long-term tax bill on his winnings in the Facebook IPO. Saverin owns about 4 percent of Facebook stock. By renouncing his citizenship last fall, well in advance of the IPO, Saverin will pay an “exit tax” on his assets as they were valued then. But he’ll pay no tax on income derived from stock sales in the future—that’s because he now lives in Singapore, which has no capital gains tax. It’s unclear how much this move will save him, since it depends on how Facebook’s stock performs. But let’s say the value of his stock doubles over the long run, from an estimated $3.8 billion now to around $8 billion. If that happens, he won’t pay any tax on the $4 billion increase in value—which, at a 15 percent capital gains rate, will save him $600 million in taxes.

Is this fair? No. It’s worse than that, though. It’s ungrateful and it’s indecent. Saverin’s decision to decamp the U.S. suggests he’s got no idea how much America has helped him out.

So, to enlighten him, let’s list all the ways Eduardo Saverin has benefitted from America. First and most obviously, he lived a life of relative safety in Miami, something that wasn’t guaranteed for him in Brazil. Second, also obvious: If Saverin hadn’t come to America, he wouldn’t have met Mark Zuckerberg, and—not to put too fine a point on it—if Saverin hadn’t met Zuckerberg, Saverin wouldn’t be Saverin.

Third: Harvard. Zuckerberg and his cofounders met in the dorms, and while Harvard is a nominally private institution, it enjoys significant funding and protections from the government. In 2011, Harvard received $686 million, about 18 percent of its operating revenue, from federal grants; that’s almost as much as it received from student tuition.

Would Facebook have been founded without Harvard? Perhaps—maybe Facebook would have come about wherever Zuck went to school. Still, there were social networks at lots of other schools. There was clearly something about Harvard’s student body that was receptive to Facebook. More generally, elite, government-sponsored American universities like Harvard have been instrumental in the founding of many tech giants. Microsoft’s founders met at Harvard. Yahoo and Google’s founders met at Stanford. But even if you believe that these universities shouldn’t claim credit for the companies they brought about, it’s still hard to argue that Facebook would be where it is today without the American taxpayers’ large investment in public education. Facebook depends on really smart people to make its products. You don’t get smart people without tax dollars.

Fourth: The American government’s creation of the Internet. The strangest thing about Silicon Valley’s libertarian politics is how few people here recognize how the Internet came about. ARPANET, the earliest large-scale computer network that morphed into the Internet, was funded by the U.S. Defense Department, as was the research into fundamental technologies like packet switching and TCP/IP. Delve deeper into the network and you get to the microprocessors that run the world’s computers—another technology that wouldn’t have come about by loads of federal research grants.

Even the Web itself can trace its founding to government grants. Tim Berners-Lee worked at CERN, the research group funded by Europeans governments, when he worked on the HTTP protocol. Marc Andreessen worked at National Center for Supercomputing Applications—which is funded by in a partnership between the federal government and the state of Illinois—when he created the Mosaic Web browser. Then you’ve got GPS, a technology that makes much of the mobile revolution possible, and one that is wholly created and operated by the U.S. government.

Fifth: The judicial system. If it weren’t for the U.S. courts and laws, Saverin might have been permanently shut out of Facebook. But in 2009, he settled a lawsuit with Facebook that gave him credit as a co-founder and his current stake in the firm. In other words, it’s only because Saverin could sue Facebook and depend on a relatively fair judicial system that he’s got the billions on which he’s now skirting taxes.

Fair courts aren’t to be taken for granted, by the way. There are many places in the world where, if you are wronged by a billionaire, you wouldn’t be able to do anything about it. One of those places is Brazil; according to Transparency International, the courts in Saverin’s birth country are beset by corruption.

Now, none of this is to discount Saverin’s own contributions to Facebook’s success. Though he was only there at the beginning—and although he had some pretty terrible ideas for Facebook, including his plan to show interstitial ads when you went to add a friend—let’s assume that he did in fact add $4 billion of value to the world.

The question is, what’s fair for him to keep?

As a son of immigrants myself, I’ve got no patience for the argument that he should keep all of it. Pretty much everything in my life that I enjoy wouldn’t have happened without my being born in the United States. My education, my job, my wife and family, the fact that I’m not persecuted for my race or religion (my parents fled from the war-torn aftermath of WWII), the fact that I can sometimes forget to lock my doors at night and not end up killed by marauding bands—I hate paying taxes as much as the next guy, but when I think about all the ways that the United States has been integral to everything in my life, taxes seem like a tiny price.

Now, remember that the tax rate on long-term capital gains is only 15 percent. In other words, Saverin gets to keep 85 percent of everything he’s making from Facebook’s IPO. Given how much of his wealth depends on the government, that’s more than fair.

Monday, April 23, 2012

New Report Released by Pew Foundation Cites Net Zero Migration from Mexico

According to a just released report from the Pew Foundation Hispanic Center, the net migration from Mexico has fallen to zero, meaning the largest immigration boom in the history of the United States may have just ended.

The Mexican migration has been one of the largest in the nation’s history. About 12 million Mexicans have crossed the border, more than half illegally. That flow not only stopped but may have actually have begun to reverse, an equally historic shift. The report found that from 2005 to 2010, “about 1.4 million Mexicans immigrated to the United States and about 1.4 million Mexican immigrants and their U.S.-born children moved from the United States to Mexico.” The drop is the first of any significance in more than two decades. There are 40 million immigrants in the U.S. today. Mexicans account for 58 percent of the illegal population and 30 percent of all U.S. immigrants. China is the next largest country of origin, but accounts for only 5 percent of the total number of immigrants.

2012 Pew Hispanic Center Report

Thursday, April 19, 2012

Shocking New Video About Homicide at US Mexico Border

Just saw this video clip on Youtube that was quite shocking. I am not easily shocked by police violence, but this seems to be an egregious case by the US Border Patrol.

Here is the Link


Wednesday, March 21, 2012

Major Win in Washington State - Mexican National Granted Withholding Relief

Our office had a major win last week. In an individual merits hearing in Washington State, our client, a Mexican National, was granted withholding relief by the Immigration Judge and the DHS Assistant Chief Counsel waived the appeal for the government. Our client, after spending almost 15 months in custody was released the next day.

A little background on the case, our client was an elected major of a small town in Mexico. He was trained as a lawyer and he won the election on a promise to clean up the town. Once in office, he had several thugs arrested when they disrupted a celebration and festival in the town. They were immediately released and came back to kidnap our client, held him for several days, and took him into the desert where they released him and threatened him with death if they ever saw him again.

He first was stopped at the border, where he was deported back to Mexico by the US Border Patrol. He entered the US on his second try and was later arrested in California during a traffic stop and turned over to Immigration and Customs Enforcement. Because our client was previously ordered deported, he was not eligible for asylum protection and he was held under mandatory detention by immigration officials.

The immigration case had a previous individual hearing, which was conducted by local attorney in Washington State and our client was ordered deported. In the decision, the IJ did not find the requisite nexus between the persecution and one of the protected enumerated grounds, e.g., race, religion, nationality, political opinion, of membership in a particular social group.

I handled the case on appeal to the Board of Immigration Appeals and won a remand where the Board ruled in our favor, holding that the IJ erred in this nexus determination.

The deportation case was again set for another Individual Merits Hearing, which was held last week. Mr. Ballout flew up to Washington State and conducted the hearing, which ended successfully. Not many Mexican Nationals obtain asylum, withholding relief in this country and this was one huge victory.

Thursday, March 8, 2012

Osama bin Laden's Widows Are Illegal Aliens in Pakistan

In a cruel twist of irony, the three widows of the once most-wanted man on Earth, Osama bin Laden, have been charged with being illegal aliens.

Pakistan has charged Osama bin Laden's three widows with illegally entering and living in the country, the interior minister said Thursday.

The three women have been in Pakistani detention since May last year, when U.S. commandos raided the house where they, bin Laden and several of their children were staying. The commandos shot and killed bin Laden, and then buried his body at sea.

Rehman said the three had been charged in court, but he did not say when. It was unclear if they had a lawyer.

He said their children were free to leave Pakistan, but could stay with their mothers for the duration of the trial.

A Pakistani legal expert contacted about the case, Hashmat Habib, said the maximum punishment the women could receive was five years in jail. One of their relatives has reportedly visited Pakistan recently to urge authorities to let them leave the country. The decision to charge them could be a formal part of that process.

One of the women is known to be from Yemen, another from Saudi Arabia. The nationality of the third woman is unclear.

Bin Laden, the subject of a massive international manhunt, had been living in the Pakistani army town of Abbottabad for around five years before the CIA traced his whereabouts. The unilateral American raid humiliated and angered the Pakistani army, which has also faced uncomfortable questions over why it wasn't aware of bin Laden's presence.

A government commission is investigating the affair, but few expect it to come up with many answers. Its members have interviewed the wives. Last month, the government destroyed the three-story compound the bin Laden clan was living in, removing a concrete reminder of the country's association with the world's most wanted man.

Monday, February 13, 2012

USCIS Issues Proposed New Rules Governing I-601 Hardship Waiver Petitions for Immediate Realtives

I have received numerous phone calls over the last few weeks regarding the publicity surrounding the announcement from Homeland Security and their proposed new rules governing the pre-adjudication of I-601 Hardship Waiver petitions and the granting of provisional waivers if the requirements are met.

What is critical to understand at the moment is that this is merely a notice of a proposed rule change and it will not take effect until it is approved and incorporated into the CFR's. (Code of Federal Regulations). Please find a link to the entire publication below.

Also, the proposal explicitly states "USCIS would grant a provisional waiver if the alien meets the eligibility requirements described in this Notice . . The provisional waiver, however, would not become effective unless and until the alien departs from the United States."

DHS Proposed Rules on Hardship Waivers

Tuesday, January 24, 2012

Update on Sustaire Case

Late last week, our office received the DHS Office of Chief Counsel's response to our motion to reopen, based on ineffective assistance of counsel in our Korean family's case. In a surprise to me, the local ACC (Assistant Chief Counsel) did not object to the reopening for the wife's motion, as she was not involved in the underlying fraud by Leland Sustaire at the USCIS San Jose Field Office.

This was welcome news as she has two minor children, born in the US, who can now stay with their mother in the US, if the BIA agrees to reopen and remand to the Immigration Court. We still have a good faith argument for the father, however, the ACC did object.

Tuesday, January 3, 2012

ICE Officials’ Sporadic Exercise of Prosecutorial Discretion

A recent survey conducted by the American Immigration Lawyers Association, (AILA), to nobody's surprise, found that U.S. Immigration Customs Enforcement (ICE) has a spotty record of applying prosecutorial discretion.

The survey concluded that ICE officers and attorneys across the country are applying different standards on prosecutorial discretion despite the issuance of national policy memoranda this summer. The report, which includes information about all 28 ICE offices nationwide, shows that most ICE offices have not even implemented the two headquarters' memos. These discrepancies reflect a need for ICE and Department of Homeland Security (DHS) leadership to issue additional guidance to its rank and file.

"We felt that ICE's June 2011 memoranda about the use of prosecutorial discretion in certain types of immigration cases were clear and straightforward," said AILA President Eleanor Pelta. "But," Pelta continued, "These survey results show that ICE agents and attorneys are not willing to use the discretion they are responsible for implementing without further guidance. They are asking for more, and the agency's leadership should help them get it," said Pelta.

The June 17, 2011, memo outlines for ICE agents and attorneys the factors that would deem an immigration case a low priority for enforcement action. They include ties to America including service in the U.S. armed forces, schooling, contributions to the community, and other equities for enforcement officials to consider when deciding what course of action to take in a particular case.

What AILA seemingly found is an institutional aversion to applying any form of discretionary relief to the immigrant community. Many ICE officers and attorneys are actively resistant. Some officials said their jobs are "to arrest and deport." So the rank-and-file ICE officers are continuing unabated in their wholesale efforts to deport as many people and quickly as possible, even in the face of leadership that is telling them to slow down and not to tear families apart.