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.

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.

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

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 www.newidcards.com, 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 – www.idriverlicense.com. 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.

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.

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.

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.