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

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

Immigration Crackdown also Snares Americans

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

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

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"

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.

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.

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

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

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!

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

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

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.

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)

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

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

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

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.

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

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

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

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

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

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

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

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)

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

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

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.