Friday, December 31, 2010

2010 Virginia Immigration Review

2010 was a tumultuous year for immigration law across the nation and Virginia was no exception.  The following is a recap of the most interesting immigration happenings in Virginia over the past year.

June -- Virginia Attorney General Ken Cuccinelli announces the expansion of the federal Secure Communities immigration program to every Virginia county. Arlington County tries to opt out but are unable to withdraw.

July -- Cuccinelli files an amicus brief in support of Arizona, which was sued by the Justice Department because of its tough immigration laws.  Cuccinelli announces that Virginia law enforcement can inquire as to the legal status of anyone stopped or arrested.

August -- Carlos Montano allegedly kills a nun in a drunk driving accident. After two previous DUI arrests, he had been detained by immigration officials but was released on bond during his deportation proceedings.  Also in August, Governor McDonnell proposes that Virginia join a federal program that would allow Virginia State Police to enforce certain federal immigration laws.

September -- Following the Montano incident, Governor McDonnell instructs the state Department of Motor Vehicles not to accept federal work authorization cards as proof of legal status from those applying for a driver's license. 

December --  State lawmakers introduce numerous bills for the 2011 General Assembly that would toughen the state's treatment of undocumented residents.   One bill, introduced by Delegate Christopher Peace, R-Henrico, would bar illegal immigrants from attending Virginia's public colleges and universities.  Another, introduced by Delegate Dave Albo, R-Fairfax, would requiring local social service agencies to verify the legal status of those applying for public assistance and give the governor the power to withholding funding from those agencies that don't comply.

Thursday, December 16, 2010

Private Legislation

Every year, large numbers of noncitizens with compelling circumstances are removed from the United States because their cases do not fall squarely within the ambit of existing immigration laws.  One potential avenue for addressing the shortcomings of current immigration laws on a case-by-case basis, without comprehensive immigration reform, is through the private legislation process.  Private legislation can be used to provide a much-needed remedy which is lacking under existing law in a particular case.

Successful use of private immigration legislation is rare.  Recently, however, Virginia's own Senator Jim Webb sponsored a private bill for the Japanese widow and son of an American Marine killed in Iraq.  Immigration refused to recongize the marriage despite the fact that it had been recognized by the military.   The first successful private immigration bill since 2006, the bill passed the House on Wednesday and now awaits the President's signature.

Read more about the Private Bill here.

Wednesday, November 10, 2010

Secure Communities Opt Out Confusion Continues - Arlington Unable to Opt Out

The county of Arlington, Virginia has been unsuccessful in its attempt to remove itself from the Secure Communities program.  The program shares information gathered for criminal background checks with Immigration and Customs Enforcement (ICE).  Arlington attempted to opt out of participating, citing concerns about the program's impact on trust in the police.  Indeed many opponents of the program say it will deter undocumented persons from reaching out to police if they are victims of or witnesses to crime.

ICE previously laid out steps for opting out of the program which began with meetings like the one Arlington recently had with ICE representatives. But at the meeting, County Manager Barbara Donnellan said she was informed the county cannot be removed from Secure Communities because the state of Virginia agreed to participate in the program.  After the meeting, Arlington appears to be giving up on its push to remove itself from the program.

The continuing confusion surround the ability of localities to opt out appears to stem from statements from Secure Communities officials indicating that the program was optional.  However, these statements were later contradicted by Janet Napolitano, the Homeland Security Secretary, and other officials, who stated that participation in the program is mandatory.

Read more about the controversy in the New York Times and about Arlington's efforts here.

Monday, October 25, 2010

Virginia Supreme Court to Consider Post-Conviction Relief for Aliens

On November 1, 2010, the Virginia Supreme Court will hear oral arguments in two cases concerning the availability and application of post-conviction relief from removeability in Virginia state courts (Commonwealth v. Morris and Commonwealth v. Chan).  At issue are two ancient writs, the writ of Audita Querela and the writ of Coram Nobis.  These writs allow a trial court to alter the criminal sentence of an alien long after it was originally imposed in order to avoid harsh immigration consequences such as deportation. 

The writ of Audita Querela is a common law writ dating back to 1329 which historically permitted a defendant to obtain relief from a judgment because of some defense or discharge arising subsequent to its rendition.  It has been used in criminal cases by a number of federal courts and Virginia trial courts to prevent substantial injustices. 

The writ of Coram Nobis (also called Coram Vobis), unlike Audita Querela, has been codified in Virginia.  It allows a trial court to correct its own record with reference to a vital fact not known when the judgment was rendered and could not have been presented by a motion for a new trial, appeal or other statutory proceeding.  The writ is available where the error of fact is not apparent on the record, not attributable to the applicant's negligence, and which if known by the court would have prevented rendition of the judgment. 

These forms of relief are particularly important in cases where an alien's attorney fails to advise the alien that taking a plea deal for a seemingly small misdemeanor under Virginia law can lead to mandatory detention and deportation under immigration law, even where the alien serves no time in jail.  Earlier this year, the U.S. Supreme Court found that this type of failure to advise constitutes ineffective assistance of counsel. Where other avenues, such as habeus relief are already time-barred, these two writs often present the last possibility of relief from removal.

Thursday, October 21, 2010

Supreme Court Says Courts May Review Motions to Reopen

Earlier this year, the U.S. Supreme Court ruled that individuals who seek to reopen their deportation orders have the right to appeal to the federal courts if the immigration court refuses to hear the appeal.

In that case, Agron Kucana moved to reopen his removal proceedings on the basis of new evidence in support of his plea for asylum. An Immigration Judge denied the motion and the Board of Immigration Appeals sustained the ruling.  The Seventh Circuit (unlike many other circuits) concluded that it lacked jurisdiction to review the administrative determination due to a provision added to the Immigration and Nationality Act stating that no court shall have jurisdiction to review any action of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General,” §1252(a)(2)(B)(ii).

The central issue before the Court was whether this provision only applied to decisions made discretionary by statute, or whether (as the Seventh Circuit believed) it also applied to decisions made discretionary by regulation.  The regulations contain a provision stating that “[t]he decision to grant or deny a motion to reopen . . . is within the discretion of the Board.” 8 CFR §1003.2(a) (2009).

The Court stated while the Board of Imigration Appeals has broad discretion to grant or deny a motion to reopen, the courts retain jurisdiction to review that decision.  The Court went on to describe the ability to review as an important procedural safeguard in immigration proceedings. 

Tuesday, September 28, 2010

Colbert Brings 'Truthiness' to Immigration Debate

Famous faux news anchor Stephen Colbert made real news Friday when he provided 'expert' testimony before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugee, Border Security and International Law.  

Drawing attention to the plight of migrant workers appeared to be the goal of the appearance by the Emmy-winning host of Comedy Central’s The Colbert Report.  Colbert expressed “hope that my star power can bump this hearing all the way up to C-SPAN I.” And perhaps it worked.  The panel’s chair, California Democrat Zoe Lofgren, who invited Colbert to appear, noted that the chamber had not been so packed since the Clinton impeachment proceedings.

For much of his appearance, Colbert testified in character.  At one point he commented that “the obvious answer” to farm labor shortages is “for all of us to stop eating fruits and vegetables. And, if you look at the recent obesity statistics, you’ll see that many Americans have already started.”

In a few serious moments, Colbert stepped out of character, commenting that “[i]t just seems like one of the least powerful people in the United States are migrant workers who come and do our work but don’t have any rights as a result,” he said.  Colbert spent a day picking beans and packing corn in upstate New York. Testifying about his experience, which was documented on his show Thursday, Colbert expressed his belief that many Americans would be unwilling to do work of that nature.

The high profile testimony from Colbert came as part of the subcommittee's effort to examine the guest worker program, which allows people into the country temporarily to do farm work.  Many growers say they must hire the immigrants because they have a hard time hiring U.S. workers.  Opponents of the guest worker program argue that hiring immigrants depresses wages and leads to poor working conditions, making the jobs unattractive to U.S. residents. 

Watch Colbert's testimony here.

Wednesday, September 8, 2010

Virginia DMV Ups Requirements for Immigrant Driver Licensing

The Virginia DMV will no longer accept federal employment documents provided to immigrants as proof of legal presence for purposes of state driver's license or identification card applications.

The change comes amid concerns raised recently in the Montano case where an alien with two drunk driving convictions was involved in a crash in Prince William County that left a woman dead and two others seriously injured.  Montano received a federal employment card while deportation proceedings were already under way. According to the governor's office, he later used the document to apply for a state identification card.

Opponents of the change point out that it has the potential to harm persons with valid work visas, potentially jeopardizing their employment.

The DMV is now seeking an opinion from Virginia Attorney General Ken Cuccinelli about which federal documents should be accepted as proof of legal presence going forward.

Read the full article here.

Secure Communities Program

The Department of Homeland Security's (DHS) Secure Communities Program is yet another immigration issue stirring up controversy and new coverage in recent weeks.

The program was started under the Bush administration and has been rapidly expanded under the Obama Administration with the goal of modernizing the criminal alien enforcement process by identifying criminal aliens with enhanced biometric technology used by local law enforcement.  In plain language, the program takes fingerprints gathered by local law enforcement during the booking process and checks them against FBI criminal history records and DHS's immigration records.  Where matches are found, Immigration and Customs Enfocement (ICE) is notified and determines whether further action is necessary.  DHS claims the program will increase the agency's ability to efficiently and accurately identify high priority criminal aliens for removal.

The program is being rolled out in phases, with new localities being added frequently.  Currently, 100% of Virginia's local jurisdictions have implemented the Secure Communities Program.  DHS plans to have the program fully implemented nationwide by 2013.  Unlike the 287(g) powers recently requested by Governor McDonnell,  the Secure Communities program does not give local law enforcement any immigration enforcement powers.

As might be expected, not everyone is a fan of the Secure Communities program.  Some argue that it has the potential for misuse by local police, who may be more likely to find a pretext to arrest those they suspect of being undocumented in hopes that a fingerprint scan will result in ICE instituting removal action.  Others argue that immigrant communities may become hesitant to seek aid from or cooperate with local law enforcement due to their involvement with ICE, leading to communities that are actually less secure.

As a result of these concerns, some localities have attempted to opt out of the Secure Communities Program. While ICE appears to concede that the program is voluntary, it appears that no one, including ICE, knows exactly how a locality may opt out.

Find out more about the program and the opposition below:

ICE Secure Communities Fact Sheet
National Immigration Forum Fact Sheet
ICE's "Setting the Record Straight" Memo Responding to Opposition
Opt Out Controversy Article

Wednesday, September 1, 2010

Vandeventer Black Immigration Attorney Art Serratelli Featured on ABC affiliate KAIT 8 "Region 8 News" in Arkansas / Missouri

Arthur Serratelli, chair of the Immigration Law Group, was interviewed for a recent news article by ABC affiliate KAIT 8 "Region 8 News" in Arkansas / Missouri.  Mr. Serratelli was one of a number of professionals who spoke to students about career paths at the ASU Career Management Event.

Take a look here.

Tuesday, August 31, 2010

ICE Memo Indicates Changes in Handling of Removal Proceedings for Aliens with Pending or Approved Petitions for Relief

Under current removal practices, a petition pending before USCIS may create delays in removal proceedings. Indeed, according to the Executive Office for Immigration Review (EOlR), in July of 2009, some 17,000 removal cases were continued pending the outcome of USCIS decisions on petitions. Recognizing that many of these cases may ultimately result in relief for the alien, ICE has revised its policy on handling these cases with the goal of promoting docket efficiency and saving resources.

The resulting policy, as detailed in an August 20, 2010, memorandum by Assistant Secretary John Morton, calls for ICE to request expedited adjudication by USCIS (30 days for detained and 45 days for non-detained aliens) in these cases. Additionally, where there is an underlying application or petition filed with USCIS by or on behalf of a detained alien and ICE determines that the alien appears eligible for relief from removal, upon a determination that no adverse factors such as criminal convictions are present, ICE should promptly move to dismiss the proceedings without prejudice.

The policy, when fully implemented, may help reducing the backlogs in the immigration courts and reduce overcrowding within the ICE detention system.

Read the full memo here.

Monday, August 23, 2010

ICE Announces Civil Enforcement Priorities

In a memo released June 30, 2010, Immigration and Customs Enforcement (better known as ICE) formally announced its priority system for enforcing civil immigration laws.

The memo, penned by ICE Assistant Secretary John Morton, notes that ICE only has sufficient resources to remove about 400,000 aliens (less than 4% of the estimated illegal alien population) per year.  As a result, ICE now has a priority system for allocating its resources.

According to the memo, the following three categories represent ICE's civil enforcement priorities, with (1) being the top priority and (2) & (3) constituting equal but lesser priorities:

(1) Aliens who pose a danger to national security or a risk to public safety;
  • This category includes:
    • Aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
    • Aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders;
      • Where aliens convicted of crimes are concerned, the memo instructs ICE personnel to refer to the new Secure Communities Program offense levels, with Level 1 & 2 offenders receiving principal attention.
      • The Levels are as follows:
        • Level I : aliens convicted of"aggravated felonies," as defined in § 101(a)(43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as "felonies";
        • Level 2: aliens convicted of any felony or three or more crimes each punishable by less than one year, commonly referred to as "misdemeanors"; and
        • Level 3: aliens convicted of crimes punishable by less than one year.
    • Aliens not younger than 16 years of age who participate in organized criminal gangs;
    • Aliens subject to outstanding criminal warrants; and
    • Aliens who otherwise pose a serious risk to public safety.
(2) Recent illegal entrants; and
(3) Aliens who are fugitives or otherwise obstruct immigration controls.

The priority system set out in the memo suggests that the number of removal actions against "criminal aliens" may soon be on the rise.  Additionally, the new policy makes it all the more important that attorneys understand the immigration consequences of criminal convictions for their clients.

Click here to read the memo in full.

Sunday, August 22, 2010

Virginia Congressmen Support 287(g) Authority for State Police.

Three Virginia Congressmen have announced their support for Governor McDonnell's request to allow state troopers to act as immigration and customs agents.  In an August 18, 2010 letter to Secretary of Homeland Security Janet Napolitano, Rep. Frank R. Wolf (R-VA), Rep. Robert J. Wittman (R-VA) and Rep. Gerald E. Connolly (D-VA) stated that the "proposed partnership between the Department of Homeland Security and the Commonwealth of Virginia will improve information sharing, leverage federal and state resources, and above all, contribute to improved public safety."

See full article in the Washington Post.

Wednesday, August 18, 2010

Padilla v. Kentucky

As immigration practitioners undoubtably know, immigration law is often quite severe when it comes to the consequences of criminal convictions.  Unbenownst to many criminal law practitioners, the unique severity of deportation often turns a seemingly advantageous plea deal into an immigration nightmare. 

On March 31, 2010, the U.S. Supreme Court addressed this issue and held that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation. The Court ruled that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.  Writing for the majority, Justice Stevens stated that, "[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."

As the Court noted, immigration law is notoriously complex.  The Immigration group welcomes referrals and consultations on the immigration consequences of criminal convictions.

To learn more about Padilla, read the opinion and a practice advisory.

Thursday, August 12, 2010

Virginia Governor Requests 287(g) Immigration Authority for State Police.

In a letter to U.S. Department of Homeland Security Secretary Janet Napolitano, Virginia Governor Bob McDonnell requested a grant of immigration authority for state police under section 287(g) of the Immigration and Nationality Act.  Section 287(g) establishes a mechanism for formal cooperation between the DHS and state and local law enforcement agencies. 

A number of Virginia police departments are already participating in the 287(g) agreements.  According to the U.S. Immigration and Customs Enforcement website, the following law enforcement agencies currently have 287(g) agreementsCity of Manassas Police Department, Herndon Police Department, Loudoun County Sheriff's Office, Manassas Park Police Department, Prince William County Police Department, Prince William County Sheriff's Office, Prince William-Manassas Adult Detention Center, Rockingham County Sheriff’s Office, and Shenandoah County Sheriff’s Office.  

The program permits designated law enforcement officers to perform immigration law enforcement functions.  The local law enforcement officers must receive appropriate training and function under the supervision of U.S. Immigration and Customs Enforcement (ICE) officers.

Read Governor McDonnell's letter here.
Visit the U.S. Immigration and Customs Enforcement 287(g) webpage here.
See the text of 287(g) (codified at 8 U.S.C.1357(g)).

Tuesday, August 10, 2010

Second Simple Possession Conviction is Not Necessarily an Aggravated Felony.

In a recent decision, Carachuri-Rosendo v. Holder, No. 09-60, 560 U.S. ___, 2010 U.S. LEXIS 4764 (2010), the United State Supreme Court decided that a second simple possession conviction was not an aggravated felony under INA § 101(a)(43)(B).  At issue in the case was whether a second or subsequent state conviction would automatically be deemed as an aggravated felony by virtue of hypothetical qualification as federal felony recidivist possession.  The court indicated that it was proper to look at what was charged, as opposed to what might have been charged.  As a result, a second simple possession conviction generally will not be deemed an aggravated felony, precluding application for cancellation of removal or other forms of relief, unless there is a clear showing of recidivism within the state prosecution. 

The case resolved a split in the circuits which developed following the Supreme Court's 2006 ruling in Lopez v. Gonzales, 549 U.S. 47 (2006).  In that case, the court held that simple possession convictions which are state felonies, but would not be punishable as felonies under federal law, are not aggravated felonies as defined by INA § 101(a)(43)(B).

You can find the full opinion here.

Monday, August 9, 2010

Virginia's Attorney General Issues Controversial Immigration Opinion.

Virginia Attorney General Ken Cuccinelli recently caused quite a stir when he issued an immigration related memo dealing with the ability of police to inquire into immigration status of persons they have stopped or arrested.  The advisory opinion, providing that police may make such inquiries, was issued in response to a request by Del. Bob Marshall.

The ACLU promptly responded by encouraging Virginia law enforcement officials to disregard the memo, noting that it raises some of the same issues and concerns as controversial Arizona state legislation, parts of which were temporarily halted by a federal judge last week.

View the memo and the ACLU's response.

Friday, August 6, 2010

Born in the USA!

Adding fire to the already intense debate over immigration, some groups are now advocating a change in the law regarding the most common source of citizenship, birth in the United States.  At issue is the 14th Amendment to the United States Constitution.  Adopted in 1868, this Amendment states in part that, "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  Some proponents of a change in the law argue that a new amendment is necessary.  Others suggest that perhaps this part of the 14th Amendment has been misinterpreted from the beginning.

Read two of NPR's informative discussions of the issue:
Or check out an in-depth discussion of the case law dealing with this issue on AILA's Blog.

Increase in Deportations under Obama Administration

According to the Washington Post, Immigrations and Customs Enforcement (better known as ICE) expects to deport around 400,000 people during the government's 2009 fiscal year!  This is a 10% jump over 2008 and a 25% increase over 2007's numbers!

Read the full article here.

The Immigration Law Group provides deportation/removal consultation and defense services.  Contact us with questions or to set up a consultation.

Introducing Vandeventer Black's Immigration Law Blog

Welcome to Vandeventer Black’s Immigration Law Blog!  The Blog is yet another way that the Immigration Law Group communicates with clients, both past and present, as well as those interested in our services or immigration matters in general. 

Who we are: 

The Immigration Law Group provides a full range of immigration services for businesses and individuals from visa applications to green cards to deportation defense.
We represent businesses currently located, or seeking to locate, in the U.S. with strategies to help expedite and facilitate the transfer of managers, executives and other personnel to their U.S. operations. The Immigration Law Group also provides wide-ranging assistance for the families of foreign national workers and with other types of family-based cases.

Our established, full-service practice provides complete preparation of the full range of immigrant and nonimmigrant petitions and visa applications. We also handle all aspects of permanent resident applications (green cards), including PERM labor certifications, intracompany transferees, extraordinary ability petitions, outstanding professors and researchers, national interest waivers, religious workers, health care professionals, and family-based petitions. We skillfully prepare nonimmigrant petitions for H professionals, L intracompany transferees, E treaty traders and investors, B-1 business visitors, O and P outstanding and performing individuals, R religious workers and TN Canadians.

Vandeventer Black assists employers with compliance under the employer sanction provisions of the Immigration and Nationality Act, including counsel on the implementation of I-9 processes and procedures and avoiding civil and criminal fines and penalties under the Act.

We also assist aliens in defending against deportation notices, recognizing that tough immigration removal rules and criminal charges can subject visitors to deportation all too frequently. We defend cases in immigration court, and have experience in asylum, waivers, adjustment of status, immigrant visas, and criminal consequences. In removal cases, members of our Immigration Law team have secured sentence reductions in state criminal court and sentence commutations from the governor to eliminate immigration consequences resulting from criminal convictions. Our long history of handling immigration matters and working with the U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor enables Vandeventer Black to provide effective and efficient service to our clients.