Vandeventer Black Immigration Blog

Department of Justice Releases Investigative Findings on the Maricope County Sheriff's Office

2011-12-16T15:14:00.003-05:00

Please read the justice news from The Department of Justice here.

Immigration Crackdown also Snares Americans

2011-12-14T10:11:00.003-05:00

A growing number of United States citizens have been detained under Obama administration programs intended to detect illigal immigrants who are arrested by local police.

Read the New York Times for this news.

Justices Accept Arizona's Appeal over Controversial Immigration Law

2011-12-12T13:59:00.006-05:00

The Supreme Court has agreed to decide whether Arizona can enforce its controvercial immigration law, over the strong objections of the Obama administration.

The Arizona appeal could set important precedent on similar laws pending across the country.

For more, see here.

USCIS Redesigns Employment Authorization Document and Certificate of Citizenship

2011-10-25T13:24:00.000-04:00

USCIS Redesigns Employment Authorization Document and Certificate of Citizenship

More Deportations of "Criminals," and Fewer of "Undocumented People Who Are Merely Living Their Lives in the United States"

2011-09-10T18:16:00.005-04:00

That's how the Huffington Post summarizes statements made by Department of Homeland Security head, Janet Napolitano, last week about the new Obama Administration policy that reevaluates pending deportation cases to focus on aliens convicted of crimes. Of course, when immigration law sets the bar so low for defining an "aggravated felony" (including some actual misdemeanors with no active jail time) it begs the question who the government will consider a true "criminal" who is a danger to society.

Read more about Napolitano's comments here.

The Common Denominator Behind the Constant Opposition to Immigration Reform? The U.S. Congress.

2011-09-02T00:31:00.019-04:00

It is no secret -- everyone knows that our U.S. Immigration system is broken. It takes too long to get a green card through work. It is too hard to find a job -- it seems that employers are too eager to say "no visa sponsorship." STEM students are too under-served and forgotten: they need EVEN MORE help -- 17 extra months of OPT is ok, but it is not enough. It is a world-wide embarrassment that we have over 11 million undocumented workers in the United States, living in the shadows in the underground economy; suffering with each whim of unscrupulous employers. With so many millions of people classified as "illegal," it begs the question -- are these people really law breakers, or is the U.S. Immigration law itself broken?

MY VOTE: The U.S. Immigration law itself is broken.

It is also no secret that President Obama wants comprehensive immigration reform. Likewise, former President George W. Bush was equally eager to obtain comprehensive immigration reform. AND WHAT HAPPENED TO BOTH OF THESE WOULD-BE IMMIGRATION REFORMERS? The U.S. Congress blocked immigration reform under BOTH George W. Bush and Barack Obama. But Obama's heart, like Bush's, is in the right place on immigration.

The American Immigration Council has recently published an analysis which details the many ways that the Obama Administration can use, and is using, the existing laws -- already on the books and waiting for implementation by the executive branch -- to fix some parts of the broken immigration system. Other presidents in the recent past (when faced with a do-nothing Congress) have done this and have improved the lot of immigrants through the use of the many powers available at the executive level. And it appears that President Obama is doing likewise.

To read more about the American Immigration Council policy analysis, click here now!

Anti-Immigrant Sentiment Not Limited to U.S.

2011-08-21T12:06:00.003-04:00

The New York Times today highlights the case of an Angolan teenager named Antonio Bravo who is fighting to stay in Britain after his father committed suicide to give his son a better chance at asylum. The article shows the extent to which anti-immigrant sentiment in the U.K. has led to absurd, counterproductive rules for deportation and the inhumane treatment of many aliens. Let's hope it gets better here and in the U.K.

Read the full article here.

GREAT NEWS! Obama Administration Announces New Policy to Halt Deportation of Young Immigrants

2011-08-18T18:05:00.002-04:00

The New York Times reports that the "Obama administration announced [today] that it would generally not deport or expel illegal immigrants who had come to the United States as young children and graduated from high school or served in the armed forces." Immigration officials said they would exercise “prosecutorial discretion” to allow these people to stay in the country while the government focused its enforcement efforts on higher-priority cases involving criminals and people who had flagrantly violated immigration laws.

The new policy puts into practice many of the goals of the proposed Dream Act that Congress failed to pass last year.

Read the full Times article here.

Homeland Security Sued over Immigrant Detention

2011-08-15T09:30:00.005-04:00

The National Immigrant Justice Center in Chicago has filed a class-action suit challenging the use of immigration "detainers" -- requests by federal immigration authorities for local police to hold immigrants in jail while their status in investigated.

Read the Los Angeles Times for this news.

The Vandeventer Black Immigration Law Group: Immigration Art on campus! Photos from Staten Island, NY and Baltimore, Maryland!

2011-07-29T17:07:00.009-04:00

The Immigration Law Group at Vandeventer Black offers a full range of services nationwide, including:

(1) assisting international students with the transition from "student visa status" to an authorized temporary work status; obtaining authorized temporary work status for business men and women and international students; managing the permanent resident ("green card") application process for green cards based on family relationships, employment, or -- based on winning the DV (Diversity) Green Card Lottery! We also assist those immigrants who wish to seek U.S. Citizenship.

(2) We provide a full range of services related to deportation and removal cases; and the analysis of the consequences of criminal behavior on an individual's immigration status in the United States. Our group will make the very, very best out of a potentially very bad situation.

(3) The Immigration Law Group at Vandeventer Black was establish over 25 years ago. We started by helping international students on campus, and have grown to represent a wide range of clients across a wide spectrum -- from large corporations to small businesses; from college students to business leaders; from newlyweds beginning a life together in the United States to naturalized U.S. Citizen adult children sponsoring their aging parents for permanent residency.

We have handled cases in Norfolk, Virginia and all over the world. We have attended interviews in cities like Atlanta, GA; Detroit, MI; Philadelphia, PA; Washington, DC; Memphis, TN; Newark, NJ; Baltimore, MD; and Durham, NC. We have helped clients at U.S. Embassies in France, Vietnam, India, England, Ireland, Israel, Canada, Germany, China, and Brazil -- to name a few.

But no matter where we are, and no matter what we are doing, we will always remember where we started: with international students on campus -- first at Old Dominion University in Norfolk, Virginia, and then at colleges and universities all across the United States. Below is a scrapbook of some recent photos of attorney Art Serratelli (better known as "Immigration Art" on campus, and on Facebook, and even on Google!) doing one of the many things we enjoy -- meeting with students and helping untangle the seemingly endless web of U.S. immigration rules and regulations that could, perhaps, stand between those students and the American Dream (as they, and their families, envision it and pursue it). America still is that shining city on a hill. We see it reflected in the eager, hopeful faces of students each and every day.

IMMIGRATION ART ON CAMPUS:

Scrapbook Photos

If you have any questions or concerns about U.S. Immigration Law, please contact the Vandeventer Black Immigration Law Group at 757-446-8600 or feel free to contact Immigration Art directly on his cell at 757-235-4624.

We're here if you need us.

H-1B Fiscal Year (FY) 2012 Cap Season -- 7/15/2011 UPDATE BY USCIS

2011-07-18T19:13:00.009-04:00

The H-1B Program

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, business managers, engineers, financial planners, social workers, or computer programmers. This is a popular work authorization status (visa category) because any international worker with a MINIMUM of a 4 year college degree (or the equivalent), from any college anywhere in the world, may obtain permission to work for a U.S. Company on U.S. soil in the H-1B category. The "4 year college degree" requirement is what makes the occupation a "specialty" occupation. Also, the 4 year college degree must be required by, or strongly related to, the job being offered to the international worker. Put another way, if the worker is hired by your organization in the normal course of business, then, in all likelihood, that worker will be able to obtain the H-1B work authorization.

For more information about the H-1B program, follow this link to a terrific article from The Economist!

There is one small catch. The H-1B category is limited to 85,000 new workers for the entire United States of America per federal government fiscal year. This limit means that the amount -- 85,000 -- is the maximum number of slots available for every international worker seeking employment in the United States in any given year. The bulk of these "cap -covered" or "quota-covered" H-1Bs are obtained by international students who have been educated in U.S. Colleges and Universities. For example, Silicon Valley, and (as another example) science labs in all graduate programs across the United States, have H-1B workers as far as the eye can see!

USCIS Determines if an H-1B Petition is Subject to the FY 2012 Cap

The United States Citizenship and Immigration Service (USCIS) counts the current "cap-covered" H-1B amount of 85,00 for the federal government fiscal year which begins on 10/01/2011 and ends on 09/30/2012 (FY 2012). The 85,000 total number of H-1Bs available are divided into two pools: one pool of 65,000; another of 20,000.

USCIS determines whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap” as it is popularly known). Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. THE H-!B "CAP COUNT" AS OF 07/15/2011:

H-1B UPDATE (7/15/2011)
20,500 of the 65,000 have been approved by, or are pending at, USCIS
12,800 of the 20,000 have been approved by, or are pending at, USCIS
33,300 of the 85,000 GRAND TOTAL have been approved by, or are pending at, USCIS.

For further details, follow this link to the official USCIS website.

Feel free to contact an attorney in the Vandeventer Black LLP Immigration Law Group at 757-446-8600 for more information.

This posting is based primarily on the H-B Cap information published by USCIS at http://www.uscis.gov/.

Gay Couples in Legal Limbo with Immigration

2011-07-15T09:07:00.005-04:00

The July 14 Los Angeles Times has a good article about gay couples who are placed in legal limbo in the immigration process. Married same-sex couples find that their commitment has no standing in the eyes of immigration agents when one partner isn't a citizen. The Obama Administration suggests that these cases are a low priority for removal, but that provides little comfort and no guarantee against deportation.

Read the full article here.

ICE to Allow Some Undocumented Immgrants to Stay.

2011-07-06T09:44:00.005-04:00

Thousand of undocumented foreigners could qualify for more lenient treatment under an ICE policy change says Miami Herald.com. A memo issued June 17, 2011 by John Morton, the ICE director, laid down new guidlines that could enable immigrants to remain in the country. The memo, for the first time, permits ICE trial attorneys to exercise prosecutorial discretion to dismiss charges against foreign nationals facing deportation.

Read the article and the Morton memo.

BIA Sets Favorable Precedent for Children of Fiancées (K-2 Visa Holders)

2011-06-30T11:05:00.015-04:00

On June 23, 2011 the Board of Immigration Appeals issued its long-awaited decision in Matter of Le, 25 I&N Dec. 541 (BIA 2011) for advancing family unity. The Board's ruling favorably resolves the issue of whether the child of a fiancee of a U.S. citizen (a K-2 holder), who legally entered the U.S. when under age 21, is eligible for adjustment of status even after turning age 21. The Board concluded that the age of the child is "fixed" at the time the child is admitted to the United States. In doing so, it rejected the Department of Homeland Security's position that a K-2 visa holder is eligible only if he or she is under 21 at the time the adjustment of status application is adjudicated.

The Board's decision is consistent with the position that the American Immigration Council and the American Immigration Lawyers Association advocated in amicus briefs submitted to the Board in approximately a half dozen other cases where the child turned 21 after being admitted to the United States. The noncitizens in these and the many other cases before both Immigration Judges and U.S. Citizenship and Immigration Services offices throughout the country now will be able to become lawful permanent residents as Congress intended.

Read the case here.

Alabama Governor Signs Tough New Immigration Law

2011-06-10T11:17:00.009-04:00

On June 9, 2011, Alabama Gov. Robert Bentley signed into law a tough illigal immigration bill, requiring police to check the status of anyone they suspect may be in the country illigally when stopped for another reason. The bill is due to take effect on Sepetember 1, 2011.

For more, see http://www.cnn.com/2011/US/06/09/alabama.immigration/index.html

USCIS Issues Policy Memorandum on Requests to Expedite Adjudications of Form I-601

2011-06-09T16:10:00.019-04:00

On May 9, 2011, USCIS issued a Policy Memorandum on how it processes requests to expedite the adjudication of Form I-601 (Application for Waiver of Ground of Inadmissibility) filed by individuals outside the United States. For more details see:

http://www.uscis.gov/USCIS/Laws/Memoranda/2011/May/Expedited_I-601_PM_Approved_5-9-11.pdf

Immigrant Workforce Growing

2011-06-09T10:39:00.004-04:00

Here is an interesting article from the Wasghington Post about the growing immigrant workforce. Enjoy.

Link to article

BIA says K-1 visa holders remain eligble to adjust status despite subsequent termination of marriage.

2011-03-23T16:23:00.000-04:00

On March 17, the BIA handed down an important decision of K-1 fiancée visa holders. In Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), the BIA held that an alien who enters the United States on a K-1 visa and timely enters into a bona fide marriage with the petitioning spouse, remains eligible to adjust status under INA §245(a) even if the marriage later terminates.

The K-1 visa category allows an immigrant to enter the U.S. in order to marry his or her U.S. citizen fiancé(e). The marriage must take place within 90 days of entry. At that point the K-1 may adjust to conditional permanent resident status. The conditional nature of the status is removed approximately two years later. The catch is that K-1's can only adjust status on the basis of their marriage to the U.S. citizen spouse.

Before the BIA's decision in Matter of Sesay, when a K-1's marriage ended before filing to adjust status or while the adjustment of status was pending, the K-1 simply lost all rights to permanent resident status. The simple formula was: No marriage = No adjustment. With no alternatives available to adjust status, the K-1 was forced to return to his or her home country. The BIA's decision in Matter of Sesay changed this rule substantially. Now, where the K-1 enters into a bona fide marriage within the 90 day window ofter entry, the K-1 remains eligible to adjust status even if the marriage is terminated.

Read the opinion here.

Deportations to Haiti Resume

2011-03-15T16:59:00.006-04:00

In light of the earthquake in Japan, this post revisits another earthquake ravaged nation and its ongoing relationship to U.S. Immigration Policy.

One of the poorest countries in the world, Haiti was struck by a catastrophic quake on January 12, 2010. In the days after the disaster, the U.S. Government announced it was halting deportations to the country. In January of 2011, the U.S. Government resumed deportations to Haiti. DHS plans to deport some 700 persons back to the country this year.

Immigration advocates and those facing deportation to Haiti have pleaded for a halt to the deportations, citing “inhumane conditions” in Haiti. A cholera epidemic reportedly has killed more than 4,000 people since October. One of the 26 detainees sent to Haiti in the first wave of the resumed deportations was Wildrick Guerrier. Upon his return, he suffered choleralike symptoms and later died. Before being deported, he had participated in a hunger strike and stated that deportation to Haiti amounted to a death sentence.

U.S. Immigrations and Customs Enforcement is currently seeking feedback on its resumed deportation policy. The new draft policy was posted on March 7, 2011. The document, which is the first written policy issued regarding the resumption of deportations to Haiti, comes three months after DHS announced its plan to resume deportations and more than six weeks after deportations actually began.

Read an article regrading the deportations here.
Read an article regarding the earthquake here.
Read the draft policy here.

Long Awaited DHS Report Released

2011-03-05T08:00:00.004-05:00

Prince William County filed suit against the Department of Homeland Security ("DHS") on Tuesday over its refusal to provide information regarding Carlos Martinelly-Montano, an illegal immigrant charged with killing a nun in a alcohol related car crash last August.

DHS claimed that it could not release the information requested due to Immigration and Customs Enforcement privacy policies.

On Friday, however, DHS released a report of ICE's Inquiry into the matter to Judicial Watch, a conservative watchdog group, who along with others, also sued the DHS under the Freedom of Information Act. The report indicates that Mr. Martinelly-Montano had been released by immigration authorities while awaiting deportation because he had demonstrated that he was not a flight risk.

View the Report here.
Read Washington Post Article here.
Read Washington Examiner Blog Post here.

Immigration Court's Case Backlog Reaches Record High

2011-02-14T10:17:00.002-05:00

According to Transactional Records Access Clearinghouse, a non-partisan research organization that operates out of Syracuse University, the number of cases pending before Immigration courts reached a record high at the end of 2010. At the end of December, the number of cases awaiting resolution in Immigration courts was roughly 268,000. The backlog has increased by 44 percent since 2008 with cases pending 467 days on average.

Read the report here.
Read the article here.

Virginia General District Court Judge Refuses to Follow Va. Supreme Court

2011-02-11T10:35:00.001-05:00

In a recent decision, Loudon County General District Judge Worcester strongly disagreed with and declined to follow the Virginia Supreme Court's recent holding in Commonwealth v. Morris and Chan. The Supreme Court ruling, discussed in previous posts, denied the availability of certain writs, such as the writ of coram nobis (also called coram vobis), to aliens seeking post-conviction relief based on ineffective assistance of counsel.

Prior to the Virginia Supreme Court ruling, Judge Worchester had used the writ of error in four cases in which defendants had not been advised of deportation consequences.

In his opinion, Judge Worchester stated "[i]f this Court were to abide by the ruling [in Morris and Chan] ... a constitutional violation will stand uncorrected. . . . [t]he Court will not allow this to happen." Finding that the Virginia Supreme Court's ruling was "at odds with long-standing precedent and jurisprudence," the judge apparently decided to ignore it and granted relief using the writ of coram nobis anyway.

Read the opinion here.
Read an article from the Washington Post here.

ARBITRARY SEARCHES & SEIZURES IN THE "CONSTITUTION-FREE ZONE:" Far From Border, U.S. Detains Foreign Students

2011-02-09T19:48:00.009-05:00

Excerpt from The Chronicle of Higher Education, January 9, 2011 edition:

By Colin Woodard

Old Town, Me.

Six miles north of the University of Maine's flagship campus, on the only real highway in these parts, students and professors traveling south might encounter a surprise: a roadblock manned by armed Border Patrol agents, backed by drug-sniffing dogs, state policemen, and county sheriff's deputies.

Although the Canadian border is nearly 100 miles behind them—and Bangor, Maine's second-largest city, just 15 miles ahead—motorists are queried about their citizenship and immigration status. Those who raise an agent's suspicions are sent to an adjacent weigh station for further questioning and, sometimes, searches. Any foreign students or scholars unable to produce all of their original documentation are detained and could be arrested.

Thus far, nobody from the University of Maine has actually been arrested at this ephemeral checkpoint, which usually appears near the start of the academic year, when migrant laborers happen to be leaving eastern Maine's blueberry fields. One student had to wait at the roadblock until university authorities had satisfied agents that the individual was in the country legally, university officials say.

But elsewhere on the northern border, foreign students and scholars experience fear and uncertainty every time they leave campus, pick up a friend at the bus station, or board a domestic train or flight, even when they have all their documents with them.

U.S. Customs and Border Protection has greatly increased its manpower along the northern border, allowing for more-frequent use of roving patrols or surprise checkpoints on buses, trains, and highways far from the border itself. Students who failed to carry their original documents have been delayed and fined, apprehended even when they're just a few miles from campus.

"We used to tell students: When you get here, put your passport and I-90 form away so you don't lose it, because you don't need anything special when you travel around the country," says Thy Yang, director of international programs at Michigan Technological University, located a few miles from the shores of Lake Superior. "Now we tell them to carry it at all times.
. . .

'Temporary Permanent'

Customs and Border Protection officials did not make themselves available for an interview, despite repeated requests. A written statement ignored questions on the topic, instead providing general commentary on the purpose of internal checkpoints. "CBP Border Patrol agents conduct these types of operations periodically in key locations that serve as conduits for human and narcotics smuggling," the statement said. "These operations serve as a vital component to our overall border security efforts and help sustain security efforts implemented in recent years."

Customs and Border Protection also maintains that it can set up roadblocks—it prefers the term "temporary permanent checkpoints" for legal reasons—and question people on trains and buses or at transportation stations anywhere within 100 air miles of a U.S. border or seacoast. This broadly defined border zone encompasses most of the nation's major cities and the entirety of several states, including Florida, Michigan, Hawaii, Delaware, New Jersey, and five of the six New England states. The American Civil Liberties Union—concerned about the erosion of Fourth Amendment protections against arbitrary searches and seizures—has called it the "Constitution-Free Zone."

READ MORE AT:

http://chronicle.com/article/Far-From-Canada-Aggressive/125880/

Virginia U.S. District Court Rules Padilla is Not Retroactive

2011-02-09T09:38:00.001-05:00

Recently, the U.S. District Court in Alexandria, Virginia took up the issue of whether the U.S. Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively. The Court held that Padilla announced a "new" rule because the failure of counsel to advise the defendant of the risk of deportation would not have been unreasonable at the time the defendant's conviction became final. Additionally, the Court held that none of the retroactivity exceptions identified in Teague v. Lane, 489 U.S. 288 (1989), were applicable to Padilla.

Read the opinion here.

Federal courts across the country are grappling with this issue and reaching widely different conclusions:

Finding Padilla Retroactive:

United States v. Zhong Lin - Western District of Kentucky.
Read the opinion in its entirety here.

Martin v. United States - Central District of Illinois.
Read the opinion in its entirety here.

United States v. Chaidez - Northern District of Illinois.
Read the opinion in its entirety here.

Finding Padilla Not Retroactive:

United States v. Perez - District of Nebraska.
Read the opinion in its entirety here.

United States v. Shafeek - Eastern District of Michigan.
Read the opinion in its entirety here.

Virginia Supreme Court Denies Audita Querela & Coram Nobis Post-Conviction Relief

2011-02-09T08:47:00.003-05:00

In January, the Virginia Supreme Court issued its decision 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 were two ancient writs, the writ of audita querela and the writ of coram nobis, which Morris and Chan argued were available 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 Court held that the write of audita querela was simply not an available form of post-conviction relief in Virginia, despite its availability in a number of other jurisdictions. The Court also held that ineffective assistance of counsel did not constitute and error in fact for the purposes of the writ of coram nobis.

Read the opinion here.
Read Washington Post article here.

Fourth Circuit Ruling on Virginia's 1st Offender Deferred Adjudication (§18.2-251)

2011-01-13T19:06:00.000-05:00

Recently, the Fourth Circuit issued an opinion in which the court held that a disposition for possession of marijuana under Virginia Code §18.2-251, a first offender deferred adjudication statute, did not constitute a “conviction” under INA §101(a)(48) where the Defendant did not plead guilty.

The government argued that the judicial finding of facts sufficient to justify a finding of guilt made by the judge under § 18.2-251 was the functional equivalent of a judge finding the alien “guilty” as required under § 1101(a)(48)(A)(i). The court decided, however, that the plain language of the statute required an actual finding of guilt, not just a finding of facts sufficient to justify a finding of guilt.

This decision may be useful for planning purposes where a defendant must avoid a conviction but is eligible as a first offender.

Read the opinion here.

New Padilla Resources

2011-01-13T18:40:00.000-05:00

The ABA's Criminal Justice Section recently announced the establishment of a Padilla Task Force, in response to the decision in Padilla v. Kentucky. The task force aims to assist defense lawyers in fulfilling their counseling obligations under that decision. With that goal in mind, the ABA now has a Padilla Resource Page that provides access to a number of helpful vidoe discussions, powerpoints, and guides for practitioners.

Check out the ABA's Padilla Resource Page here.

Court Orders Government to Provide Counsel to Mentally Incapacitated Aliens in Deportation Proceedings

2011-01-06T15:52:00.000-05:00

As a general rule, aliens in deportation proceedings are not provided with legal counsel at taxpayer expense when they cannot afford to hire counsel on their own.

Recently, however, a Federal District Court Judge in California ordered the U.S. government to give a group of mentally incapacitated illegal immigrants legal representation to fight their deportations. In March, a group of attorneys and the ACLU of Southern California argued that the men's diminished mental capacities made them unable to represent their own interests.

The case involved a number of indigent, mentally incapacitated plaintiffs including Jose Franco-Gonzalez, 30, who spent nearly five years in immigration custody after pleading guilty to assault with a deadly weapon because authorities determined he was too mentally incompetent to represent himself in his own deportation hearings. The U.S. District Court Judge hearing the case ruled that Franco and another plaintiff be released and that additional plaintiffs in the case be given representation for their hearings.

Review the Complaint here.

2010 Virginia Immigration Review

2010-12-31T22:12:00.000-05:00

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.

Private Legislation

2010-12-16T12:29:00.000-05:00

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.

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

2010-11-10T19:22:00.000-05:00

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.

Virginia Supreme Court to Consider Post-Conviction Relief for Aliens

2010-10-25T12:11:00.000-04:00

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.

Supreme Court Says Courts May Review Motions to Reopen

2010-10-21T09:51:00.000-04:00

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.

Colbert Brings 'Truthiness' to Immigration Debate

2010-09-28T23:29:00.000-04:00

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.

Virginia DMV Ups Requirements for Immigrant Driver Licensing

2010-09-08T07:04:00.000-04:00

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

2010-09-08T02:16:00.000-04:00

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

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

2010-09-01T20:11:00.000-04:00

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.

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

2010-08-31T09:47:00.000-04:00

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.

ICE Announces Civil Enforcement Priorities

2010-08-23T17:46:00.000-04:00

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.

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

2010-08-22T22:19:00.000-04:00

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.

Padilla v. Kentucky

2010-08-18T10:40:00.000-04:00

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.

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

2010-08-12T23:29:00.000-04:00

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) agreements: City 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)).

Second Simple Possession Conviction is Not Necessarily an Aggravated Felony.

2010-08-10T18:42:00.000-04:00

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.

Virginia's Attorney General Issues Controversial Immigration Opinion.

2010-08-09T22:47:00.000-04:00

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.

Born in the USA!

2010-08-06T20:35:00.000-04:00

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:
http://www.npr.org/templates/story/story.php?storyId=127093634
http://www.npr.org/templates/story/story.php?storyId=128959291
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

2010-08-06T13:47:00.000-04:00

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

2010-08-06T13:19:00.000-04:00

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.