In a Press Release, the White House announced that they would be changing the priorities of DHS to no longer actively seek the deportation of noncriminal aliens, with the announcement that it would halt potentially thousands of cases in federal immigration court if they do not involve criminals or people with flagrant immigration violations.
Homeland Security Secretary Janet Napolitano said today that the agency will launch a case-by-case review of 300,000 cases pending in immigration courts across the nation to focus on the federal government’s top priority, detaining and deporting criminals and serious violators of immigration law.
Immigrants classified as low-priority cases could receive a stay of deportation and the chance to apply for a work permit.
The following is the full text of the Press Release of today.
"President Obama is deeply committed to fixing our immigration laws and has been aggressively searching for partners in Congress who are willing to work with him to pass a new law. As he focuses on building a new 21st century immigration system that meets our nation’s economic and security needs, the President has a responsibility to enforce the existing laws in a smart and effective manner. This means making decisions that best focus the resources that Congress gives the Executive Branch to do this work. There are more than 10 million people who are in the U.S. illegally; it’s clear that we can’t deport such a large number. So the Administration has developed a strategy to make sure we use those resources in a way that puts public safety and national security first. If you were running a law enforcement agency anywhere in the world, you would target those who pose the greatest harm before those who do not. Our immigration enforcement work is focused the same way.
Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States. And they have succeeded; in 2010 DHS removed 79,000 more people who had been convicted of a crime compared to 2008. Today, they announced that they are strengthening their ability to target criminals even further by making sure they are not focusing our resources on deporting people who are low priorities for deportation. This includes individuals such as young people who were brought to this country as small children, and who know no other home. It also includes individuals such as military veterans and the spouses of active-duty military personnel. It makes no sense to spend our enforcement resources on these low-priority cases when they could be used with more impact on others, including individuals who have been convicted of serious crimes.
So DHS, along with the Department of Justice, will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place. They will be applying common sense guidelines to make these decisions, like a person’s ties and contributions to the community, their family relationships and military service record. In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn’t – that’s the smartest way to follow the law while we stay focused on working with the Congress to fix it."
Here is the Link to the Press Release
Thursday, August 18, 2011
Friday, August 12, 2011
General Zapata's Grandson is an Undocumented Alien Working as a Busboy in Texas
Amazing story on the wire today about the heroic Mexican Martyr, General Emiliano Zapata's grandson who has been working for the last 10-years as an undocumented illegal alien busboy in Dallas, Texas.
General Zapta is still revered to this day around the world for the ideals and principles he brought to the Mexican revolution, and for his passionate defense for the land and liberty of dispossessed peasants everywhere.
His cause was joined by millions of poor Mexicans, driven by their common belief that “la tierra es de quien la trabaja” -- the land is for the person who works it. They represented a fundamental challenge to the wealthy and powerful -- and ultimately led to President Venustiano Carranza’s order to assassinate Zapata in 1919.
The son of the revolutionary leader, Diego’s father did not see much of General Zapata during his childhood, as the patriarch was always participating in peasant organizations and campaigns. “I remember the day he took my three brothers and I to register, as an aunt kept insisting, since we did not have birth certificates and were only accepted in schools as observers,” recalled Diego, who is now 46 years old.
His brothers and mother now all live in the U.S. Two of them are also undocumented; Jorge Gabriel, who lives in North Carolina and works as a gardener, and Diego Emiliano, who makes sandwiches at a deli in New York City.
The third brother, Alex Eufemio, is a naturalized U.S. citizen and a chef at a French restaurant in Brooklyn. He was the only family member able to travel to Mexico for their father’s funeral in 2008. Through Eufemio, their mother, Gloria Cordero, acquired permanent U.S. residence and works in a chicken processing plant in North Carolina.
Like his grandfather Emiliano Zapata, Diego was born in Anenecuilco, in the state of Morelos in Mexico, where he lived until he was 13 and his parents separated.
The full story is here.
General Zapta is still revered to this day around the world for the ideals and principles he brought to the Mexican revolution, and for his passionate defense for the land and liberty of dispossessed peasants everywhere.
His cause was joined by millions of poor Mexicans, driven by their common belief that “la tierra es de quien la trabaja” -- the land is for the person who works it. They represented a fundamental challenge to the wealthy and powerful -- and ultimately led to President Venustiano Carranza’s order to assassinate Zapata in 1919.
The son of the revolutionary leader, Diego’s father did not see much of General Zapata during his childhood, as the patriarch was always participating in peasant organizations and campaigns. “I remember the day he took my three brothers and I to register, as an aunt kept insisting, since we did not have birth certificates and were only accepted in schools as observers,” recalled Diego, who is now 46 years old.
His brothers and mother now all live in the U.S. Two of them are also undocumented; Jorge Gabriel, who lives in North Carolina and works as a gardener, and Diego Emiliano, who makes sandwiches at a deli in New York City.
The third brother, Alex Eufemio, is a naturalized U.S. citizen and a chef at a French restaurant in Brooklyn. He was the only family member able to travel to Mexico for their father’s funeral in 2008. Through Eufemio, their mother, Gloria Cordero, acquired permanent U.S. residence and works in a chicken processing plant in North Carolina.
Like his grandfather Emiliano Zapata, Diego was born in Anenecuilco, in the state of Morelos in Mexico, where he lived until he was 13 and his parents separated.
The full story is here.
Monday, July 25, 2011
Ninth Circuit Overrules Lujan Exception
Last week, in an en banc decision, the Ninth Circuit Court of Appeals overrruled the court's previous decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) in extending the same equal protection afforded citizens under the Federal First Offender's Act (FFOA) to non-citizens when considering the immigration consequences of a simple first-time narcotics offense.
Prior to this ruling, in the Ninth Circuit, a non-citizen would not be deported for a simple, first-time narcotics offense, such as under the influence, paraphenalia, or a possession charge. This exception has now ended and any non-citizen will be subject to deportation for any narcotics conviction, even a Prop 36 offense in California.
The full text of the decision is below.
Nunez-Reyes v. Holder
Prior to this ruling, in the Ninth Circuit, a non-citizen would not be deported for a simple, first-time narcotics offense, such as under the influence, paraphenalia, or a possession charge. This exception has now ended and any non-citizen will be subject to deportation for any narcotics conviction, even a Prop 36 offense in California.
The full text of the decision is below.
Nunez-Reyes v. Holder
Thursday, July 7, 2011
U.S. Department of Labor - Administrative Law Judge Rules in Our Client's Favor and Awards $160,000 in Back Pay
Major win in one of our office's cases involving back pay for an H1-B non-immigrant foreign national employee. Our office filed an U.S. Department of Labor complaint, which was initially denied after the Sacramento Field Office Investigator, Sheila Creel, found no violation of federal immigration law. We appealed the decision to the DOL Office of Administrative Law Judge.
After a trial in early June, we received the written decision last week, which found all of our claims to be true and awarded our client around $160,000 in back pay, with interest.
Here is the link to the published decision
The ALJ ruled in our favor because the employer had never perfected a bona fide termination of our client and therefore remained liable for all back pay under the Labor Certificate Application they had signed under oath.
Here are the relevant CFR's and case law on this point.
Huang v. Ultimo Software Solutions, Inc., ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11, slip op. at 4 (March 31, 2011) (affirming the ALJ's finding that the employer \never effected a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii), as it must to be relieved of its obligation to pay [the beneficiary's] wages ); Amtel Group v. Yongmahapakorn (Rung), ARB No. 07-104, ALJ No. 04-LCA-006, slip op. at 2 & n. 4 (Jan. 29, 2008) [hereinafter Amtel II] (Order Denying Reconsideration); Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-039, slip op. at 5 6 (Mar. 30, 2007); Amtel Group of Florida, Inc. v. Yongmahapakorn (Rung), ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 9 12 (Sept. 29, 2006) [hereinafter Amtel I];see also 65 Fed. Reg. 80,171 (Dec. 20, 2000) (The Department agrees that an employer is no longer liable for payments for nonproductive status if there has been a bona fide termination of the employment relationship.
The Department would not likely consider it to be a bona fide termination for purposes of this provision unless INS has been notified that the employment relationship has been terminated pursuant to 8 CFR 241.2(h)(11)(i)(A) and the petition canceled, and the employee has been provided with payment for transportation home where required by section 214(E)(5)(A) of the INA and INS regulations at 8 CFR 214.2(h)(4)(iii)(E). (italics in original)).
But see, Administrator, Wage & Hour Division v. Ken Technologies, Inc., ARB No. 03-140, ALJ No. 2003-LCA-15, slip op. at 4 5 (Sept. 15, 2004) (indicating that failure to notify the immigration authorities is not conclusive on the issue whether the employee was terminated). The Board es more recent decisions such as Amtel I, slip op. at 11 12, can't be reconciled with the idea that a bona fide termination can occur without all three elements. Yet the Board hasn't explicitly receded from Ken Technologies. 31 8 C.F.R. § 214.2(h)(11).
A regulation of the Secretary of Labor repeats the requirement an employer with an approved labor condition application must inform the immigration authorities \that the employment relationship has been terminated so that the [H-1B] petition is cancelled, incorporating that same immigration regulation. See 20 C.F.R. § 655.731(c)(7)(ii).
After a trial in early June, we received the written decision last week, which found all of our claims to be true and awarded our client around $160,000 in back pay, with interest.
Here is the link to the published decision
The ALJ ruled in our favor because the employer had never perfected a bona fide termination of our client and therefore remained liable for all back pay under the Labor Certificate Application they had signed under oath.
Here are the relevant CFR's and case law on this point.
Huang v. Ultimo Software Solutions, Inc., ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11, slip op. at 4 (March 31, 2011) (affirming the ALJ's finding that the employer \never effected a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii), as it must to be relieved of its obligation to pay [the beneficiary's] wages ); Amtel Group v. Yongmahapakorn (Rung), ARB No. 07-104, ALJ No. 04-LCA-006, slip op. at 2 & n. 4 (Jan. 29, 2008) [hereinafter Amtel II] (Order Denying Reconsideration); Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-039, slip op. at 5 6 (Mar. 30, 2007); Amtel Group of Florida, Inc. v. Yongmahapakorn (Rung), ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 9 12 (Sept. 29, 2006) [hereinafter Amtel I];see also 65 Fed. Reg. 80,171 (Dec. 20, 2000) (The Department agrees that an employer is no longer liable for payments for nonproductive status if there has been a bona fide termination of the employment relationship.
The Department would not likely consider it to be a bona fide termination for purposes of this provision unless INS has been notified that the employment relationship has been terminated pursuant to 8 CFR 241.2(h)(11)(i)(A) and the petition canceled, and the employee has been provided with payment for transportation home where required by section 214(E)(5)(A) of the INA and INS regulations at 8 CFR 214.2(h)(4)(iii)(E). (italics in original)).
But see, Administrator, Wage & Hour Division v. Ken Technologies, Inc., ARB No. 03-140, ALJ No. 2003-LCA-15, slip op. at 4 5 (Sept. 15, 2004) (indicating that failure to notify the immigration authorities is not conclusive on the issue whether the employee was terminated). The Board es more recent decisions such as Amtel I, slip op. at 11 12, can't be reconciled with the idea that a bona fide termination can occur without all three elements. Yet the Board hasn't explicitly receded from Ken Technologies. 31 8 C.F.R. § 214.2(h)(11).
A regulation of the Secretary of Labor repeats the requirement an employer with an approved labor condition application must inform the immigration authorities \that the employment relationship has been terminated so that the [H-1B] petition is cancelled, incorporating that same immigration regulation. See 20 C.F.R. § 655.731(c)(7)(ii).
Wednesday, June 8, 2011
Hearing Before OALJ - DOL
Last Thursday, I represented the Prosecuting Party in a claim for an H1-B employment violation. Our office represented the foreign national who was the beneficiary of an I-129 petition for non-immigrant worker, status as an H1-B skilled professional.
The petition was approved for three years. However, before the employee's status as an H1-B began, the employer terminated the position. We filed a US Department of Labor complaint alleging the Respondent has impermissibly "benched" our client in violation of 20 C.F.R. § 655.731(c)(7)(i), as there was no bona fide termination because USCIS had never been notified and the H1-B status had not been cancelled.
The precedent decision on this question is Amtel Group of Florida v. Yongmahapakorn, ABR No. 04-087, ALJ No. 2004-LCA-006, 2006 WL 2821406 (ARB Sept. 29, 2006), at *7 (finding the Employer did not achieve bona fide termination within the meaning of the regulations and, therefore, did not terminate its liability for back wages when it fired an H1-B employee, but failed to notify INA of this termination in accordance with 8 C.F.R. § 214.2(h)(11).
We will receive the judge's decision within the next 30 days, but I am very hopeful of a win. The counsel for the Respondent Employer kept arguing for "offset" to the damage award.
The petition was approved for three years. However, before the employee's status as an H1-B began, the employer terminated the position. We filed a US Department of Labor complaint alleging the Respondent has impermissibly "benched" our client in violation of 20 C.F.R. § 655.731(c)(7)(i), as there was no bona fide termination because USCIS had never been notified and the H1-B status had not been cancelled.
The precedent decision on this question is Amtel Group of Florida v. Yongmahapakorn, ABR No. 04-087, ALJ No. 2004-LCA-006, 2006 WL 2821406 (ARB Sept. 29, 2006), at *7 (finding the Employer did not achieve bona fide termination within the meaning of the regulations and, therefore, did not terminate its liability for back wages when it fired an H1-B employee, but failed to notify INA of this termination in accordance with 8 C.F.R. § 214.2(h)(11).
We will receive the judge's decision within the next 30 days, but I am very hopeful of a win. The counsel for the Respondent Employer kept arguing for "offset" to the damage award.
Thursday, May 19, 2011
Kurt Miller, Esq. Asylum Fraud Case - Seeking INA § 212(i) Waiver
Our office took on the representation of a former Kurt Miller, Esq. client. The client had obtained asylee status sometime in 2000. Later the client married a USC and the couple has a child together.
When the spouse filed an I-130 petition, USCIS sat on the application and did not reach a decision for approximately 4 years. After being summoned to the Field Office for a frauds interview, the client admitted to the Officer that they did not supply any of the documents submitted in support of the I-589 application. They admitted that Kurt Miller had provided everything, including the declaration. which they were to memorize.
Obviously, USCIS held that person inadmissible for procuring an immigration benefit through fraud and/or material misrepresentation, under INA § 212(a)(6)(C)(i). The client had hired another attorney to file an I-601 Hardship Waiver petition under INA § 212(i) and the Field Office denied the application.
The client then came to our office and we filed both an I-290B Motion to Reopen / Reconsider, along with new documentary evidence to support the claim of Extreme Hardship for the qualifying USC relative. Also, in the abundance of caution, we filed an appeal to the AAO, Administrative Appeals Office in Washington, D.C.
Recently, we received the denial of our I-290B Motion to Reopen/Reconsider and today I finished the appellate brief of points and authorities to the AAO, arguing that the hardships must be considered in the aggregate, not singularly, and adjudicated in the totality of the circumstances.
I further moved the AAO to consolidate the two appeals presently pending.
I am cautiously optimistic about this appeal.
When the spouse filed an I-130 petition, USCIS sat on the application and did not reach a decision for approximately 4 years. After being summoned to the Field Office for a frauds interview, the client admitted to the Officer that they did not supply any of the documents submitted in support of the I-589 application. They admitted that Kurt Miller had provided everything, including the declaration. which they were to memorize.
Obviously, USCIS held that person inadmissible for procuring an immigration benefit through fraud and/or material misrepresentation, under INA § 212(a)(6)(C)(i). The client had hired another attorney to file an I-601 Hardship Waiver petition under INA § 212(i) and the Field Office denied the application.
The client then came to our office and we filed both an I-290B Motion to Reopen / Reconsider, along with new documentary evidence to support the claim of Extreme Hardship for the qualifying USC relative. Also, in the abundance of caution, we filed an appeal to the AAO, Administrative Appeals Office in Washington, D.C.
Recently, we received the denial of our I-290B Motion to Reopen/Reconsider and today I finished the appellate brief of points and authorities to the AAO, arguing that the hardships must be considered in the aggregate, not singularly, and adjudicated in the totality of the circumstances.
I further moved the AAO to consolidate the two appeals presently pending.
I am cautiously optimistic about this appeal.
Thursday, May 5, 2011
First Crack in Federal Immigration Bar to Same-Sex Partner Benefits
Today, Attorney General Eric Holder, Jr. vacated and remanded the Board of Immigration Appeals precedent decision barring any immigration benefits to same-sex partners. The decision is called Matter of Dorman 25 I&N Dec. 485 (A.G. 2011).
In this decision, the AG has remanded the decision back to the BIA for additional findings on the question of whether domestic partnership of same-sex relationship qualifies for cancellation of removal. This is the first crack in the once solid wall barring any immigration benefits to same-sex partners. As our law practice is in the San Francisco Bay Area, this decision is of especial importance to our office.
The full decision can be found here.
In this decision, the AG has remanded the decision back to the BIA for additional findings on the question of whether domestic partnership of same-sex relationship qualifies for cancellation of removal. This is the first crack in the once solid wall barring any immigration benefits to same-sex partners. As our law practice is in the San Francisco Bay Area, this decision is of especial importance to our office.
The full decision can be found here.
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