Tuesday, November 12, 2013

Pro Bono Asylum Cases - Lawyers' Committee for Civil Rights

Last week, I received an email from the new asylum coordinator at the Lawyers' Committee for Civil Rights in San Francisco. Contained in the text of the message were the brief synopsis of the cases that need a pro bono attorney to take over the client's representation. Currently, I am swamped with work in my practice as well as the appointed criminal appellate cases I take from the Court of Appeal.

But just to give you a sampling of the horrific cases floating around in the immigration courts, refugees crying out for justice and relief, here are a few of the cases.


Honduran woman, 29, as teenager became partner to violently possessive man in his 40s who threatened to kill her if she left. She fled to Mexico, but her partner found her and took her back to Honduras, where he continued to abuse her and threatened to kill her family. In Mexico, she was also raped by a police officer. Must qualify for exception to one-year application deadline. Master Calendar hearing January 23, 2014.

Client is a Mayan Guatemalan woman, 20. Her alcoholic partner beat her even when she was pregnant, and would call her an “ugly hag.” When he got a new woman, he forced her from home. She returned to parents with her newborn son. Her partner, having joined a gang, tried to claim the son, cursing her and firing a gun at her. His gang member friends then molested her and told her that her partner had said they could kill her at any time. On their most recent encounter, her partner told her that he would not leave her alone until he killed her. Stockton resident. Must ask Immigration Judge to advance master calendar (preliminary) hearing to on or before June 8, 2014, for timely filing of asylum application.

Client is a Guatemalan survivor of domestic violence who met and married a man when she was 15-years old. He began abusing her, continuing when she became pregnant and she miscarried as a result. His family, whom they lived with, was also emotionally abusive towards her. After becoming pregnant again, she left to stay with family members but he found her and beat her for it. Her partner later left for the United States after which her father-in-law began sexually abusing her. Her partner then came back from the United States and raped her, from which she got pregnant, and continued to beat her even threatening her with a machete. He threatened her life and that of her mother. She decided to come to the United States and fears for her life, especially because her partner has also sometimes come to the United States. The asylum application is largely prepared and the case just needs to be advanced so that the client may file in court.

Client is a gay Jordanian man who comes from a fairly well-off religious family; his father would sometimes beat him when he made mistakes. In August 2013, his family found out he was gay through a Facebook message a friend posted on his wall. His father hit him on two separate occasions, threatened future punishment, and threw him out of the house. He stayed with a friend for three weeks, then raised money from friends and flew to the United States, where he had a visa from a previous work trip. He fears that his father and possibly other extended family members will further harm him if he returns, and that the police will not help him, because they do not protect gay people or involve themselves in internal family matters of honor. His deadline for an affirmative asylum application is November 4, 2014.

Client is a 30-year old Peruvian woman who endured almost a decade of abuse at the hands of her domestic partner, who would beat her and allowed his cousin to molest their 4-year old daughter. Afraid, she left moved to another town, where she was tracked down by the partner. When she went to the police to report him, they discouraged her and said they did not have paper to take a report. The client continued to be harassed by her partner, and decided to come to the United States. Her partner has told her recently that if she does not return to him, he will find her and he will kill her. Her Master Calendar hearing is scheduled for May 19, 2015, but this must be advanced to meet a filing deadline of August 4, 2014 to meet the one-year filing deadline.

Wednesday, October 9, 2013

California Governor Brown Signs TRUST Act

California Gov. Jerry Brown signed a bill on Saturday limiting the state's cooperation with federal immigration authorities, a direct indictment and rebuke of the Obama administration's enforcement policy that has led to record deportations from the state.

As the Congress stalls on immigration reform, action continues in the states, and advocates and politicians in California hope they can serve as an example of how to do it right.

“While Washington waffles on immigration, California’s forging ahead,” Brown said in a press release after signing the legislation into law. "I’m not waiting.”

The new California law, known as the Trust Act, limits the state's cooperation with Secure Communities, a federal program that allows the Department of Homeland Security to access fingerprints taken by local police, to screen detained individuals for immigration status and to request that law enforcement agencies hold them if they're found to be undocumented.

Democratic Assemblymember Tom Ammiano, the top sponsor of the Trust Act, said before Brown's signature that he hopes state actions like California's will put more pressure on Congress, rather than drawing attention to the legislative fights there.

"It makes it all the more important that California be on the lead on this," he said. "If we get the governor's signature, it will be really a benchmark. It will be one of the first states that has gone on record about this program. ... And hopefully, it will signal to D.C. that they need to start moving."

Advocates have been pushing for the Trust Act for years, and finally succeeded in getting the bill to limit Secure Communities past both houses in 2012.

But Brown vetoed last year's version of the legislation, calling the bill “fatally flawed.” Brown faulted the earlier version of the Trust Act for barring the state from detaining individuals on behalf of Immigration and Customs Enforcement even when they were charged with or convicted of significant crimes, including offenses involving child abuse, drug trafficking and gang activity. This year’s version of the Trust Act addressed those concerns by making the list of crimes classified as serious offenses more extensive.

Former Homeland Security Secretary Janet Napolitano, who recently because president of the University of California system, shifted on the Trust Act and urged Brown earlier this week to support it -- even though the Secure Communities expanded across the country under her watch.

California isn't the typical state on immigration and the population is now about 38 percent Latino, compared to the roughly 17 percent of the population made up by Latinos nationwide. California is also among the most immigrant-friendly states in the country. The legislature passed a bill last month to allow undocumented immigrants to obtain driver's licenses, following steps taken by 10 other states.

Yet California isn't the only state or locality that has at least attempted to limit the scope of Secure Communities. Massachusetts, New York, Illinois and the District of Columbia either attempted to opt-out of the program or passed laws instructing law enforcement to ignore orders to hold individuals. But no area was exempted from the program -- Secure Communities is now implemented nationwide, in 3,181 jurisdictions.

ICE spokeswoman Gillian Christensen previously declined to comment on the California legislation while it was pending, but said the agency has made identifying and removing criminal offenders its "highest priority" and has implemented reforms toward that end. ICE did not immediately respond to a request for comment on Saturday.

Supporters of the Trust Act say Secure Communities makes immigrant communities fearful of police and less likely to report crime, in case in doing so they reveal their undocumented status and get into trouble.

"This is more a law enforcement issue than an immigration issue," Rep. Zoe Lofgren (D-Calif.), who has criticized Secure Communities, recently told HuffPost in an interview. "What this will do for law enforcement in California is that it will ensure that immigrants collaborate with law enforcement."

Secure Communities -- or S-Comm, as its opponents refer to it -- isn't designed to ensnare people without criminal records who get into fender benders. Despite reforms aimed at limiting holds for non-serious offenders, a report released Tuesday by Transactional Records Access Clearinghouse at Syracuse University found that plenty of people were held even when it was against ICE policy to do so.

The program is also expensive when used on a broader basis, beyond serious criminals. Requests to detain are supposed to last 48 hours at most, but law enforcement officials sometimes keep people longer, according to reports. A report from Justice Strategies in August 2012 found that Los Angeles County was spending more than $26 million a year to hold undocumented immigrants who it would otherwise release if it weren't for ICE requests to hold them. Justice Strategies estimated that California taxpayers were spending $65 million each year to hold immigrants for ICE.

National groups opposed to comprehensive immigration reform, such as the Federation for American Immigration Reform, a national group against legalization for undocumented immigrants, urged supporters to contact California lawmakers and ask them to oppose the Trust Act. "This bill would undermine public safety in my community and impede the federal government’s ability to enforce immigration law," the group's suggested script read.

But advocates of the bill said it is a major step forward toward broader immigration reform in the U.S., and applauded its passage.

Tuesday, October 1, 2013

Jorge Sosa, Ex-Guatemala Soldier, Found Guilty In Denaturalization Case Today in Federal Court

As being reported out of Riverside, California today, A former Guatemalan soldier was convicted Tuesday of lying on his application to become an American citizen about his role in the massacre of at least 160 people more than three decades ago.

A federal court jury found former Guatemalan army officer Jorge Sosa guilty of making false statements and obtaining citizenship unlawfully. The 55-year-old former second lieutenant could face both a prison sentence and loss of his U.S. citizenship when he is sentenced.

Prosecutors said Sosa was a member of a special forces patrol that went to the village of Dos Erres in December 1982 on a search for weapons believed stolen by guerrillas. The weapons were never found and prosecutors say the patrol decided to kill the villagers, throwing their bodies into a well, after some of the soldiers began raping the women.

More than two decades later, Sosa failed to mention his military service or role in the massacre on his application to become an American citizen even though the paperwork inquired about affiliations and past crimes, prosecutors said.

Sosa's lawyer, Shashi Kewalramani, said authorities knew Sosa was in the military because he told them about his service when he unsuccessfully sought asylum in 1985, and referred to this application when he later sought to naturalize. He said prosecutors failed to prove Sosa knew other former soldiers were being tried in Guatemala for the killings in Dos Erres.

While not a war crimes trial, the case brought haunting accounts of the 36-year long civil war that claimed 200,000 lives in Guatemala to the courtroom in Riverside County, where Sosa previously lived and taught martial arts classes.

During the trial, two former soldiers testified they saw Sosa standing near the well in Dos Erres where they were ordered to bring villagers to be killed and that he fired his rifle at the screaming, dying victims inside. One of the few survivors of the massacre recounted the horror of watching soldiers bash small children into a tree and toss their bodies into the well and seeing his mother yanked from the family as she pleaded for her life.

Sosa listened to a Spanish translation of the testimony through headphones and appeared to take notes.

Sosa left Guatemala in 1985 and sought asylum in the United States, claiming he was fleeing Guatemalan guerrillas. When he was denied, he went to Canada, where he became a citizen. He later married an American and got a green card, and applied to naturalize in 2007.

Sosa is one of four former soldiers allegedly involved in the Dos Erres massacre who have been arrested by U.S. homeland security officials. One of them is serving time for lying on his naturalization application about the killings while another has been held as a material witness in the case against Sosa.

A fourth was deported from the U.S. and prosecuted in Guatemala. He is one of five former members of the special forces who have been sentenced there to more than 6,000 years in prison for the killings.

Guatemalan authorities say they hope Sosa will be extradited to face similar charges.

In 1994, Guatemala opened an investigation into the Dos Erres massacre and several years later authorities issued arrest warrants for more than a dozen former soldiers. But the cases languished until the Inter-American Court of Human Rights in 2009 ordered Guatemala to prosecute the perpetrators of the killings.

The following year, the U.S. – which had supported Guatemala's military governments during the country's civil war – arrested three former soldiers and searched Sosa's home before he left for Mexico and later Canada. He was arrested there and extradited to the U.S. last year.

Tuesday, September 24, 2013

High rate of deportations continue under Obama

In an interview with Telemundo’s Jose Diaz-Balart on Tuesday, President Obama said that it would be difficult to halt the deportation of immigrants living in the country illegally without the approval of Congress.

Immigration rights advocates have pushed the president to halt deportations through an executive order, especially of immigrants who haven’t committed any serious crimes.

Last summer the administration did just this for young unauthorized immigrants brought to the country illegally as children with the creation of the “Deferred Action for Childhood Arrivals” program. Known as DREAMers, more than 500,000 young unauthorized immigrants have taken advantage of the administration’s program. Our 2012 survey of Hispanic adults found wide approval (89% approved of this new policy). A Pew Research Center survey of the general U.S. public found that 63% of U.S. adults approved of this program as well.

But deportations of unauthorized immigrants continue at record levels. In 2011 some 392,000 immigrants were removed from the U.S., according to the Department of Homeland Security. Among them, 48% were deported for breaking U.S. laws, such as drug trafficking, driving under the influence and entering the country illegally.

The Obama Administration has deported more immigrants annually than the George W. Bush Administration.

Most Hispanics disapprove. When asked about the Obama administration’s handling of deportations in a late 2011 Pew Research Center survey, 59% said they disapproved while 27% said they approved. According to the same survey, 41% of all Hispanics, and 55% of Hispanic immigrants, were aware that more immigrants had been deported under the Obama Administration than the Bush Administration.

The Latino vote played an important role in the 2012 presidential election. A record 11.2 million Hispanics voted, supporting the president over challenger Mitt Romney 71% to 27%, according to exit polls. For Latino voters, the issue of immigration ranks as an important issue (though in 2012 it trailed others such as the economy, education and health care).

Tuesday, September 17, 2013

California Assembly Bill Will Burden Immigration Attorneys With New Requirements 1159 (AB 1159)

Assemblywoman Lorena Gonzalez recently introduced Assembly Bill 1159 (AB 1159) in February 2013, which has raised the ire of many immigration attorneys because of several drastic new provisions. The bill, initially introduced earlier this year, contained language on Education but was (entirely) amended instead in July 2013 to regulate immigration services in the State of California.

While controversial bills affecting immigration attorneys aren’t entirely new, it is the way in which AB 1159 (in its current incarnation) has evolved that raises many questions. The effect of this bill would be to encumber legitimate immigration practioners with regulatory burdens which would only raise the costs for those attorneys complying with the law, but would do little to deter people acting outside the law.

The national organization for immigration attorneys, American Immigration Lawyers Association, "AILA" has released a public statement in opposition, which is quoted below.

By contrast, gratuitous measures contained in the proposed legislation will only deplete the number of well-intentioned, competent professionals from one of the most humanitarian areas of the practice of law.

The misplaced focus on unprincipled lawyers already operating in violation of the existing regulatory scheme misses addressing the real threat: the victimization of vulnerable immigrants by notarios and unscrupulous immigration form-preparers (a fact which is of great concern to law enforcement and borne out by the Bar’s own reports). The bill places onerous business and procedural requirements on immigration lawyers far in excess of what is imposed on other attorneys in California. The attempt to micro-manage the attorney-client relationship impedes the immigration attorneys’ effective representation while the non-attorney perpetrators go undetected and continue to scam immigrants with impunity.

As noted above these requirements are at best redundant and at worst unnecessary, increasing the costs compliant attorneys will face. Rushing into short-sighted proposals to address very real concerns about the potential for large-scale immigration fraud will severely hinder the ability of the private bar and community-based legal assistance providers to serve the legal needs of immigrant communities. An inevitable result of the proposed requirements would make hiring qualified legal help so cumbersome and costly that it will actually drive people away from qualified lawyers and legitimate service providers and into the arms of fraudulent practitioners. Nonprofits who rely on outside attorneys to provide assistance will find fewer lawyers able or willing to provide pro bono and low bono services.

What concerns me the most personally, is the fact that the immigration courts are a federal court, meaning that any attorney licensed in any state has the right to practice before the court. The regulation proposed in this bill would only apply to California licensed attorneys and anyone from outside the state would not be subject to these news rules.

Tuesday, August 13, 2013

Sponsoring a Legal Immigrant by Signing an Affidavit of Support, USCIS Form I-864, Could Leave You Vulnerable to Support the Immigrant Indefinitely

Great story out of Texas as reported by Bret Crandall of valleycentral.com. A Lawful Permanent Resident ("LPR" or "Green Card" Holder) sued her former husband for spousal support. The former husband was the person who signed the USCIS Form I-864 Affidavit of Support agreeing under a binding contract with the U.S. government that he would support his intending immigrant.

Here Is the Story

Steve Summers is being sued in federal court by his ex-wife Evangelina Zapata de Summers.

After six years of marriage they divorced in 2009.

Now, she is taking her ex back to court for breaking his contract with her and the U.S. government.

Since the mid-90's the law has required U.S. citizens like Summers to sign the I-864 affidavit to bring a non-U.S. citizen, like a spouse, into the country.

To ensure immigrants do not become a burden on social welfare programs, the sponsor must sign the document in which they essentially agree to support the immigrant at 125 percent of the federal poverty level if they have no income. But if the two parties divorce --- the affidavit of support still stands.

A U.S. citizen can really get screwed under these circumstances," Summers said.

Zapata is suing to obtain alimony for the rest of her life.

Summers' attorney Marcus Barrera tells Action 4 even though they are divorced, and she's lived in the U.S. for about a decade, he may still have to pay up.

"The problem is these permanent residents come back and sue their sponsors and they sit at home and do nothing and the law makes it pretty clear that you have to support them at 125 percent of poverty,” Barrera said. “There is no mechanism built into this situation that forces the person to get a job as a permanent resident and become a citizen or you will be deported."

According to Summers, his wife can work, but she doesn't.

The only way to nullify the I-864 affidavit is if the immigrant becomes a U.S. citizen, works for 10 years, fails to keep permanent residency status or dies.

Even though Zapata has remarried and divorced, the contract remains.

"There is no incentive for them to become a U.S. citizen, no incentive to work. There is nothing where I can get out of that contract,” Summers said.

"So they stay here in limbo and basically become a parasite to the original person that signs the affidavit of support,” Barrera said.

Summers says he is doing all he can to bring attention to this part of immigration reform that is rarely spoken about and often misunderstood by lawmakers and attorneys.

"I had a very hard time finding an attorney. I went to attorneys who specialize in immigration and I was told this was a figment of my imagination -- 'you don't have anything to worry, Steve' -- only to find out that it has started to happen,” Summers said.

The law is fairly ambiguous and I think there is some clarification that could be made,” Summers said.

"Any immigration bill should have something in there that forces a permanent resident, if they aren't going to work to become a permanent, productive member of U.S society they need to be deported back to where they came from or the rest of the U.S. citizens, including the sponsor, will have to continue supporting them and we just can't continue that,” Barrera said.

Saturday, July 27, 2013

The Constitution Has An Asterisk on It - The New War To Replace Iraq and Afganistan

The U.S. borderlands are today ground zero for the rise, growth, and spread of a domestic surveillance state. On June 27th, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act. Along with the claim that it offers a path to citizenship to millions of the undocumented living in the United States (with many stringent requirements), in its more than 1 ,000 pages it promises to build the largest border-policing and surveillance apparatus ever seen in the United States. The result, Senator John McCain proudly said, will be the “most militarized border since the fall of the Berlin Wall.”

This “border surge,” a phrase coined by Senator Chuck Schumer, is also a surveillance surge. The Senate bill provides for the hiring of almost 19,000 new Border Patrol agents, the building of 7 00 additional miles of walls, fences, and barriers, and an investment of billions of dollars in the latest surveillance technologies, including drones.

In this, the bill only continues in a post-9/11 tradition in which our southern divide has become an on-the ground laboratory for the development of a surveillance state whose mission is already moving well beyond those borderlands. Calling this “immigration reform” is like calling the National Security Agency ’s expanding global surveillance system a domestic telecommunications upgrade. It’s really all about the country that the United States is becoming — one of the police and the policed.

Low-Intensity War Zone

The $46 billion border security price tag in the immigration reform bill will simply expand on what has already been built. After all, $100 billion was spenton border “enforcement” in the first decade after 9/1 1 . To that must be added the annual $18 billion budget for border and immigration enforcement, money that outpaces the combined budgets of all other federal law enforcement agencies. In fact, since Operation Blockade in the 1990s, the U.S.-Mexico border has gone through so many surges that a time when simple chain link fences separated two friendly countries is now unimaginable.

To witness the widespread presence of Department of Homeland Security agents on the southern border, just visit that international boundary 100 miles south of Border Security Expo. Approximately 7 00 miles of walls, fences, and barriers already cut off the two countries at its major urban crossings and many rural ones as well. Emplaced everywhere are cameras that can follow you — or your body heat — day or night. Overhead, as in Afghanistan, a Predator B drone may hover. Y ou can’t hear its incessant buzzing only because it flies so high, nor can you see the crew in charge of flying it and analyzing your movements from possibly hundreds of miles away.

As you walk, perhaps you step on implanted sensors, creating a beeping noise in some distant monitoring room. Meanwhile, green-striped Border Patrol vehicles rush by constantly . On the U.S.-Mexican border, there are already more than 18,500 agents (and approximately 2,300 more on the Canadian border). In counter terrorism mode, they are paid to be suspicious of every thing and everybody . Some Homeland Security vehicles sport trailers carrying All Terrain Vehicles. Some have mounted surveillance cameras, others cages to detain captured migrants. Some borderlanders like Mike Wilson of the Tucson-based Border Action Network, a member of the Tohono O'odham Nation (a Native American people and the original inhabitants of the Arizona borderlands), call the border security operatives an “occupying army .”

Checkpoints — normally located 20-50 miles from the international boundary — serve as a second lay er of border enforcement. Stopped at one of them, you will be interrogated by armed agents in green, most likely with drug-sniffing dogs. If you are near the international divide, it’s hard to avoid such checkpoints where you will be asked about your citizenship — and much more if any thing you say or do, or simply the way you look, raises suspicions. Even outside of the checkpoints, agents of the Department of Homeland Security canpull you over for any reason — without probable cause or a warrant — and do what is termed a “routine search.” As a U.S. Border Patrol agent told journalist Margaret Regan, within a hundred miles of the international divide, “there’s an asterisk on the Constitution.”

Friday, June 7, 2013

House Republicans Vote to Deport "Dreamers" Covered by Obama Amnesty in DACA

In a mostly symbolic vote, the Republican-controlled House voted Thursday to resume the deportation of hundreds of thousands of immigrants brought illegally to the United States as children, a move in the first immigration-related vote in either chamber of Congress this year and a measure of the daunting challenge facing supporters of a sweeping overhaul of existing law on the subject.

The party-line vote of 224-201 was aimed at blocking implementation of President Barack Obama's 2012 election-year order to stop deportations of many so-called DREAM Act individuals. Democrats on the House floor reacted with boos when the provision was added to a routine spending bill for the Department of Homeland Security.

The administration has threatened to veto the overall legislation on budgetary grounds. It nevertheless stood as a stark warning from conservatives who dominate the ranks of the Republican House majority about attempts in the Senate to grant a chance at citizenship to an estimated 11 million immigrants residing in the country illegally.

And the White House reacted sharply, saying the House-passed measure would affect "Dreamers" who are "productive members of society who were brought here as young children, grew up in our communities, and became American in every way but on paper."

Rep. Steve King, R-Iowa, said in a statement that the vote prohibits the administration "from implementing executive amnesty" without congressional action. "Bipartisan support for my amendment is the first test of the 113th Congress in the House of Representatives on immigration. My amendment blocks many of the provisions that are mirrored in the Senate's 'Gang of Eight' bill. If this position holds, no amnesty will reach the President's desk," he said. The vote took place as Senate leaders set Friday for the opening of debate on White House-backed legislation that would create a chance at citizenship for those in the country unlawfully, at the same time it takes steps to assure the borders are secure against future illegal immigration.

The measure was drafted by a bipartisan group of eight senators, then approved by the Senate Judiciary Committee last month on a vote of 13-8. It also creates a new low-skilled guest-worker program, expands the number of visas available for high-tech industry workers and reorders the system for legal immigration that has been in place for decades.

In the House, 221 Republicans and three Democrats voted for King's proposal, while 195 Democrats and six Republicans opposed it. "I can't believe they just did that," said Sen. Dick Durbin, D-Ill., a leading supporter of the DREAM Act. Ana Avendano of the AFL-CIO, said in a statement that King and his allies are playing to "a dwindling base of anti-immigrant Republican primary voters. We hope and expect that the leadership of the Republican party will understand that this is not only abhorrent policy but suicidal politics."

Speaking to a group of reporters, a White House official, Cecilia Munoz, said, "If part of what is driving this debate is a recognition, particularly on the Republican side, that they need to do better with the Latino community, this is really not the right way." Obama announced a new policy in June 2012 that puts off deportation for two years for many of those brought to the United States as children, specifically if they were under 16 at the time and are no older than 31 now. They also must be in school, graduated from high school or have served in the military and have no criminal record. The order offers relief from deportation from many young immigrants who would be covered by the so-called DREAM Act, which has repeatedly failed in Congress.

Democrats argued vociferously against King's proposal when it was debated Wednesday evening. "We should not hold children responsible for the actions of adults and their parents. We should give them an opportunity," said Rep. Luis Gutierrez, an Illinois Democrat who has been involved in a sputtering attempt to produce a compromise immigration bill in the House.

For most Americans who thought some form on immigration reform was a shoe-in, this should serve as a wake-up call that the House Republicans are not going to roll over just because of the 2012 election results.

Friday, May 31, 2013

Recent Ninth Circuit en banc Decision on Social Groups Cited My Research

The Ninth Circuit Court of Appeals certified the case of an El Salvadorian national who filed a claim for asylum relief based upon her fear of persecution on account of her testifying against gang-members who killed her father. Under asylum law, her claim fell within the nebulous group of membership in a particular social group. The case was rehear en banc with the intention of clarifying how such a claim of membership would be adjudicated, especially since any formulation of a particular social group fearing gang violence, retaliation, of coercion into a gang has been held not to constitute a social group. (See Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008).)[The presented social group of “a young man in El Salvador resisting gang violence unstoppable by the police,” did not have sufficient social visibility and particularity.]

In this case, the asylum seeker fled El Salvador after witnessing the murder of her father at the hands of M-18 street gang. She identified the two men who murdered her father and then testified in open court against them. At the conclusion of her Individual Hearing before the Immigration Judge, the IJ held that she had suffered past persecution and she did have a reasonable fear of future persecution if returned to her native country and that she was a member of a particular social group, "people testifying against or otherwise opposing gang members."

The government appealed the IJ's Oral Decision and the Board of Immigration Appeals reversed the IJ's decision. Henriquez-Rivas en banc review, which was granted.

In the decision, the Ninth Circuit rendered a very narrow opinion that held the BIA misapplied its own precedent in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006) in holding that witnesses who testify against gang-members may not constitute a particular social group due to a lack of social visibility.

In the dissent, Chief Justice Kozinski, joined by Justice Bybee, cited my research on what constitutes membership in a particular social group. Defining a Core Zone of Protection in Asylum Law, 10 J.L. & Soc. Challenges 22 (2008) twice on page 11 of the decision.

Here is the full decision:

Henriquez-Rivas v. Holder -

Friday, May 10, 2013

A New Immigration Fraud Ring Busted in Los Angeles - Charges Include Fraud and Bribery

The Los Angeles Time reported yesterday that Attorney Kwang Man "John" Lee was arrested for being the ring leader of an immigration fraud ring. The authorities reported that he was a man who could make things happen — for a price. For a pound of marijuana and $44,000, the Koreatown attorney allegedly said, he could get an immigrant client a U.S. citizenship. "Price is OK for the risk," Lee told an associate, according to federal authorities.

Mr. Lee was a silver-Corvette-driving attorney, also a former Immigration and Naturalization Service agent. He allegedly had associates at various stages of the immigration process willing to take bribes and provide favors for his clients. At Los Angeles International Airport, he had Customs and Border Protection officer Michael Anders, according to prosecutors. At Citizenship and Immigration Services, they alleged, he had officers Jesus Figueroa and Paul Lovingood. At Immigration and Customs Enforcement, he had special agent James Dominguez, according to court documents.

And he apparently had a long list of clients from across the globe, from Japan to Morocco to the Czech Republic, willing to pay the tens of thousands to cut a corner or two in the process for a permanent residency or citizenship in the U.S.

On May 8th, federal prosecutors announced charges against Anders, Figueroa, Lovingood, Dominguez and a client of Lee's, Mirei Gia Hofmann. The current and former immigration officials were indicted May 7th on charges including conspiracy, bribery, fraud and misuse of government seals. Hofmann faces a single count of immigration fraud.

Lee, who became an attorney in 1997, was previously charged in a separate criminal complaint of conspiring to defraud the U.S. government.

According to affidavits filed in the case, Lee plied the officials with lavish gifts and cash bribes in exchange for immigration benefits including forged admission stamps with a false date of entry into the U.S. and rubber-stamping fraudulent permanent residency or citizenship applications. Anders, who at one point lived with Lee, provided the attorney with a specialized security ink used by Border Patrol officials to stamp passports at airports, according to court papers.

In exchange, Lee bought round-trip tickets to Thailand for Dominguez and a 47-inch flat-screen TV and a computer for Lovingood, and gave thousands of dollars in cash to Figueroa, authorities allege. Anders was paid $50 each time he falsified an entry record, according to the indictment.

Lee complained to a confidential informant that he gets "headaches entertaining them, taking them out to dinner," according to an affidavit. He secured illegal immigration benefits for at least several dozen clients over the years, prosecutors said.

"It looks like this goes back at least 20 years," Assistant U.S. Atty. Meghan Blanco said. "By and large, it involves people who entered the country legally and then overstayed their visa."

Tuesday, April 16, 2013

New Report from Florida International University Finds DHS Secure Communities Not Targeting "Dangerous Criminals" As Directed By Obama Administration

Federal Immigration and Customs Enforcement agents in South Florida are failing to abide by an Obama administration directive to focus deportation efforts on dangerous criminals, according to a report Monday by a Miami-based immigration advocacy group and researchers from a Florida university.

A majority of undocumented immigrants detained for deportation in Miami-Dade County under a Department of Homeland Security (DHS) initiative known as the Secure Communities program were not serious criminals, the report by Americans for Immigrant Justice (AIJ) and researchers at Florida International University said.

This is a pattern that is repeated across the country and the San Francisco Bay Area is no exception. Many of the deportations involve people who likely would be covered under proposals for an immigration reform bill currently being thrashed out by members of Congress.

The actions of ICE agents are at odds with guidance issued in June 2011 by the head of ICE, John Morton, who sought to prioritize the removal of convicted undocumented immigrants who posed a danger to national security or public safety, as well as those who game the system by dodging immigration hearings.

In a statement, ICE said it had received guidance restricting the detention of immigrants for minor misdemeanor offenses such as traffic infractions and other petty crimes. The guideline gives ICE discretion on how it is implemented.

See the entire report below.

False Promises: The Failure of Secure Communities


Friday, April 5, 2013

Corrections Corporation of America (CCA) And Its Allies Profit From the Human Misery In the American Gulag System

CCA directly profits from the human misery involved in the crackdown on "illegal immigrants." CCA is the largest prison corporation and a member of ALEC,American Legislative Executive Council (ALEC), and has negotiated contracts with states that guarantee 90 percent occupancy rates for the length of the contract, some of which are 20 to 30 years. ALEC has been behind laws that allow prison labor at private prisons, paying inmates as little as 17 cents per hour. The demand for prison labor by corporations such as IBM, AT&T and 3M creates a greater incentive to incarcerate. CCA is also known for human rights violations, cutting services to save money and increase profits. On March 27, hundreds of inmates at the Cibola County Correctional Center in New Mexico staged a 12-hour protest over prison conditions. Last year, prisoners in Mississippi violently rioted over lack of health care and abusive conditions, as did inmates at another CCA prison in Texas in 2010. A September 2012 report found private prisons to be unsafe, unnecessary and expensive. This week immigrant activists held protests outside of Senator Chuck Schumer’s (D – New York) office to draw attention to the support he has received over the years from the private prison industry. Schumer is a member of the gang of eight in the Senate, the group that is tasked with crafting an immigration reform bill. He also is the recipient of thousands of dollars in campaign contributions from the GEO Group and the Corrections Corporation of America (CCA). Note that one of Schumer’s biggest donors is Akin Gump Strauss Hauer & Feld, which lobbies for CCA. Activists are highlighting the Senator’s efforts to prioritize enforcement and punitive measures over policies to unite families. Some of the things that Schumer has done that activists are take issue with include: advocating for more border security at a time when the border is supposed to be the most secure, supporting the implementation of a national I.D. card, and calling the undocumented “illegals.“ The CEO of CCA has even admitted recently to investors that the impact of any immigration reform would be positive because “There’s always going to be a demand for beds.” Just this past Sunday on Meet the Press, Senator Schumer expressed optimism that an immigration bill would be introduced soon, saying, “With the agreement between business and labor, every major policy issue has been resolved on the gang of eight. Now everyone, we’ve all agreed that we’re not going to come to a final agreement until we see draft legislative language and we all agree on that. We’ve drafted some of it already, the rest will be drafted this week. So I’m very optimistic that we will have an agreement among the eight of us next week.” Aside from the protests in New York, there were protests in other cities including Los Angeles outside of a downtown federal building, where protesters held signs that said, “Senator Schumer: you have a Latino problem.”

Wednesday, February 20, 2013

United States Supreme Court Slams Door Today on Post-Conviction Relief Under Padilla

SCOTUS issued a 7-2 decision today in Chaidez v. United States, Slip Opinion No.: 11-820, from the 7th Circuit holding that their prior decision in Padilla v. Commonwealth of Kentucky 559 U.S. _____, does not apply retroactively under the Teague Rule 489 U.S. 288 (1989).

As the decision states, "We conclude that, under the principles set out in Teague v. Lane, Padilladoes not have retroactive effect." Unfortunately, this means that any decision that was final before Padilla will not have the benefit of that decision. Here is the decision: Chaidez v. United States

Thursday, February 14, 2013

Recently Release Report Finds Over 5,000 Children Of Deported Aliens Are Being Placed Into Foster Care

In fiscal year 2011, the United States deported a record-breaking 397,000 people and detained nearly that many. According to federal data released to the Applied Research Center, through a Freedom of Information Act request, a growing number and proportion of deportees are parents. In the first six months of 2011, the federal government removed more than 46,000 mothers and fathers of U.S.-citizen children. These deportations shatter families and endanger the children left behind.

This “Shattered Families” report is the first to provide evidence on the national scope and scale of the problem. As more noncitizens are detained, the number of children in foster care with parents removed by ICE is expected to grow. Without explicit policies and guidelines to protect families, children will continue to lose their families at alarming rates.

Among the Key Finding In the Report:

• That there are at least 5,100 children currently living in foster care whose parents have been either detained or deported (this projection is based on data collected from six key states and an analysis of trends in 14 additional states with similarly high numbers of foster care and foreign-born populations). This is approximately 1.25 percent of the total children in foster care. If the same rate holds true for new cases, in the next five years, at least 15,000 more children will face these threats to reunification with their detained and deported mothers and fathers. These children face formidable barriers to reunification with their families.

• In areas where local police aggressively participate in immigration enforcement, children of noncitizens are more likely to be separated from their parents and face barriers to reunification. For example, in counties where local police have signed 287(g) agreements with ICE, children in foster care were, on average, about 29 percent more likely to have a detained or deported parent than in other counties. The impact of aggressive immigration enforcement remains statistically significant when our research controls for the size of a county’s foreign-born population and a county’s proximity to the border.

• Immigrant victims of domestic violence and other forms of gender-based violence are at particular risk of losing their children. Approximately one in nine of the stories recounted to ARC in interviews and focus groups involved domestic violence. As a result of ICE’s increased use of local police and jails to enforce immigration laws, when victims of violence are arrested, ICE too often detains them and their children enter foster care. Many immigrant victims face an impossible choice: remain with an abuser or risk detention and the loss of their children.

• ARC has identified at least 22 states where these cases have emerged in the last two years. This is a growing national problem, not one confined to border jurisdictions or states. Across the 400 counties included in our projections, more than one in four (28.8 percent) of the foster care children with detained or deported parents are from non-border states. Whether children enter foster care as a direct result of their parents’ detention or deportation, or they were already in the child welfare system, immigration enforcement systems erect often-insurmountable barriers to family unity.

Wednesday, January 23, 2013

Immigration Judge Granted Withholding to Our Mexican National Client

Great win for our client in the San Francisco Immigration Court. The IJ granted withholding for a Mexican National based upon membership in a particular social group, namely kinship.

The sticking point for the DHS Assistant Chief Counsel was safe relocation within Mexico. We argued that the client could not safely relocate anywhere in Mexico that her persecutor would not be able to locate her. Our office retained two wonderful expert witnesses that gave testimony and provided written declarations to the Court explaining why the persecutor could find her anywhere inside of Mexico.

DHS has reserved appeal and we will need to wait the 30-days to see what the Service is going to do. I am optimistic that we can prevail on any appeal because the record before the Court is so strong.

Monday, January 7, 2013

DHS Secretary Napolitano Announces Final Rule in Permitting Aliens With Unlawful Presence to File I-601 Hardship Waivers Before Leaving US

WASHINGTON—Secretary of Homeland Security Janet Napolitano today announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013.

One of the more contentious aspects of this Final Rule involves aliens who are in removal proceedings. As written, anyone in deportation is not eligible for having their I-601 Hardship Waiver adjudicated before having to leave the U.S. to complete consular processing unless their case is administratively closed. Given the lack of action under the Prosecutorial Discretion guidelines by DHS local counsel, relief for aliens in removal under this Final Rule may be illusory.

Provisional Unlawful Presence Waivers of Inadmissiblity

“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives