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Category Archives: Procedure

SCOTUS’ Arizona Smack Down: or Why Kobach is Wrong

Posted on August 3, 2012 by Angie Williams Posted in Anchor Baby is a Hate Word, attrition through enforcement, Birth Right Citizenship, Change in Regs, Comprehensive Immigration Reform, Constitution, Deportation, DREAM Act, Immigration, Immigration Discrimination, Immigration Myths, Kris Kobach (KS Secretary of State), Office News, Perspective, Procedure, Prosecutorial Discretion, Secured Communities, Self-Deportation, State Based Immigration Laws, State's Rights, Supremacy Clause .

Immigration is in the News again as the Supreme Court of the United States handed down its decision last week on Arizona’s controversial state-based immigration law, SB 1070.  Since Arizona’s law was passed in 2010, many other states have passed similar, and in some cases even harsher state-based laws.  Many others have tried and failed.  All of the laws that have passed have been almost immediately enjoined by Federal District Courts from taking effect starting the laborious process of litigating whether these laws are pre-empted by Federal Powers and are, thus unconstitutional.  The Decision in Arizona vs. US, 567 US_____(2012) will give some much needed guidance to those state lawmakers considering this type of legislation.

 

These laws are the brainchild of local boy and supposed Kansas Secretary of State, Kris Kobach, who has developed his own ideas of how to deal with our immigration problems.  Rather than actually fixing the problem or pushing Congress to do its job, he has developed a theory that many have blindly embraced, the policy of “enforcement through attrition.”  The Kobachian policy of “enforcement through attrition,” or as I like to call it the “treat-them-like-crap-and-maybe-they-will-just-go-away” theory of immigration reform involves states making laws that make life increasingly unequal, unfair, and unpleasant for immigrants, mostly for illegal immigrants, but if legal ones are effected, well that is just collateral damage.  Everyone’s talking about it as if it is the best solution ever to solving out immigration problem.  Kris Kobach loves to make speeches all over the place describing the concrete and easy-to-spot characteristics of those who are reasonably suspicious of being undocumented, immutable, non-racially charged characteristics like being unable to speak English, lacking ID, riding in an old car or a car that is “riding heavy,” cars with lots of passengers or are traveling on known trafficking corridors (the highway) and my personal favorite, people who are “dusty” as if just finishing a long trip through the desert.  He is getting paid millions to write laws for states each more inhumane and mean than the last.

 

Every state that has passed one of these laws has gotten sued and spent millions (going in many cases right into Mr. Kobach’s designer pockets) to defend the laws.  Similarly, many municipalities have bought Mr. Kobach’s Constitutionally dubious immigration-fix-all snake oil with similar results. (Farmers Branch, TX, Hazelton, PA,; Fremont, NE)   Millions spent defending these bills, with few, if any positive Constitutional seal of approvals from the courts.  They have all lost millions in taxes, revenue and production as immigrants of all kinds fled the increasingly unfriendly states for less hostile pastures.  Many other states have tried passing the same measures and have failed, including both Missouri and Kansas.

 

On Monday the Supremes, or SCOTUS, issued its opinion.  While both sides immediately claimed victory, here is what they actually said.  The Arizona law, SB1070, was enacted in 2010 and immediately enjoined from being enforced.  The Justice department filed a lawsuit enjoining the enforcement of the law on the basis that it was preempted by Federal Law, specifically by the Constitution in Article I section 8.4 that states that Congress shall have the power to establish a uniform rule of naturalization.  The lawsuit specifically challenged four provisions of the law:  Section 3 (Ariz. Rev. Stat. Ann 13—1509, which makes failure to comply with federal alien registration requirements a state misdemeanor; Section 5 (C)(13-2928 (c)) that makes it a state misdemeanor for an alien unauthorized to work to seek or engage in work within Arizona; Section 6 (13-3883(A)(5)) that gives specific authority to or officers to arrest without a warrant a person “the officer has probable cause to believe…has committed any public offense that makes the person removable from the United States; and Section 2(B) (11-1051(B)) that mandates that officers who conduct a stop, detention or arrest must make efforts to verify a person’s immigration status if they have reasonable suspicion to believe that they are undocumented.

 

The Court held that section 3 (state crime for failure to register or carry immigration documents) was unconstitutional because federal law preempts it. The Court reasoned that the Federal Government has “occupied the field of alien registration” (Decision page 9).  Such “field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” (Page 10)  The Court further shot down Arizona’s argument that it can survive preemption because the provision has the same aim as federal law.  The Court said that this argument  “ignores the basic premise of field preemption” and was “unpersuasive on its own terms.”  They reasoned that allowing states to make their own laws on alien registration and enforce them even where Federal officials have decided that enforcement in a particular situation frustrated federal policies.  Further the Court pointed out that the statute was not a mere mirror of federal law and substantive standards as Arizona claimed, and, in fact, treated potential violators in a manner different and harsher than someone prosecuted in federal court.  While the federal sentencing structure allows for probation, fines or imprisonment, the state structure rules out entirely the possibility of probation as well as the possibility of a later pardon.  Because of the comprehensive and exhaustive statutory scheme that occupies the entirety of the field, the Court concludes that congress intended to preclude the states from any part of these regulations.

 

The Court also held that section 5 (crime for unauthorized aliens to work or even seek employment in the state) was unconstitutional because of preemption.  The Court recognized that  “(w)hen there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own law.” (Page 12).  They cited a care from 1971 where a California law imposed civil penalties for employing unauthorized aliens was upheld against preemption because at that time there existed no comprehensive framework dealing with the issue. (DeCanas v. Bica, 424 US 351 (1976) However, in 1986 Congress enacted the Immigration Reform and Control Act (IRCA) which is a comprehensive framework “combating the employment of illegal aliens.” (Page 13).  This law proscribes a number of controls and both civil and criminal penalties on the employer for knowingly hiring, employing or recruiting unauthorized workers.  The Court further noted that IRCA specifically does not impose criminal penalties on the employee and further makes clear that
“any information employees submit to indicate their work status ‘may not be used’ for purposes other than prosecution under specific federal criminal statutes for fraud, perjury and related conduct (See 8 USC §§ 1324a(b)(5), (d)(2)(F)-(G).” (Page 13).  The Court further noted that whether to impose criminal sanctions on the employee was debated and discarded during the writing of IRCA.  They stated that “the ordinary principle of preemption include the well-settled proposition that a state law is preempted where it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Pages 14 & 15) Because Congress had the opportunity to include criminal sanctions on the employee and did not, the Court reasoned that it follows that any state law providing for the contrary is an obstacle to that federal regulation.

 

Section 6 (warrantless arrest of persons suspected to have committed an offense making them removable) was also found to be unconstitutional.  The Court starts with the recognition that, as a general rule it is not a crime for a removable alien to remain in the United States (INS v. Lopez-Mendoza, 468 US 1032, 1038(1984)).  (Page 15-16).  The Court also discusses the exhaustive and complicated process of initiating removal proceedings, how that notice may be served, when a federal warrant may be issued for the arrest of possibly removable aliens, which aliens are allowed to remain free on bond and those mandated to remain in custody.  The Court decided that if this state law were allowed to stand, a state officer could arrest anyone they wanted without input from the federal government, their issuance of a warrant the federal determination that the alien is likely to escape or whether the government felt that arrest was warranted and without regard to the discretion the federal government has to set it’s own enforcement policies and agenda.  The Court explicitly cites as an example of the government’s authority to use such discretion, the Morton Memo of June 2011 directing ICE and Federal Trial Attorneys to exercise prosecutorial discretion in cases with certain factors.  The Court reasoned that this kind of statute would allow states to set their own immigration policies and priorities that directly conflict with the Federal Government’s rights and authority to act in this arena.  The Court scoffed at Arizona’s argument that this section is authorized by a “federal statute permitting state officers to cooperate” in immigration enforcement.  The Court states “(t)here may be some ambiguity as to what constitutes cooperation under federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval or other instruction  from the Federal Government.”(Page 18)

 

The final section, 2(b)(the ‘reasonable suspicion of being illegal” provision, and probably the most controversial provision) was challenged on 2 grounds, its mandatory nature and its possibility for prolonged detention while immigration status is being verified with ICE.  The Court, using the principle that if a State statute can possibly be construed in a way to avoid unconstitutional questions it should be construed that way until it is shown to actually conflict with federal law, found that the mandate to investigate immigration status  after a lawful stop, and to always verify the immigration status of someone before they are released from custody is not per se unconstitutional.  Because the first clause of section 2(B) states that officers must make reasonable attempts to verify the immigration status during a lawful stop, and using the general rule that “a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission” (see page 22 citing Illinois v. Caballes, 543 US 405, 407 (2005)) and detaining someone solely to verify their immigration status would raise constitutional concerns, (see page 22 citing Arizona v. Johnson, 555 US 323,333 (2009), it is possible that a court could decide that  unless a person continues to be suspected of a crime for which he can be detained, officers cannot prolong a stop for the immigration inquiry.  The Court also said that according to Arizona’s brief, the verification would not even have to be completed during the actual stop.  Further, because it is possible that a state court would decide that the second sentence of this section that, all person who have been arrested shall have their immigration status verified, no matter the circumstances, it is still not clear that this requirement would require a prolonged detention that would run afoul of the 4th amendment.  Because of these ambiguities the Court could find nothing on the face of the statute that is contrary to federal law.

 

However, and this is a big however, that the Kobachian champions are failing to mention, the Court specifically decided this clause this way because “there is a basic uncertainty about what the law means and how it will be enforced” (page 24) because the challenge was brought before it ever took effect.  Without a provision in federal law that occupies the field, automatically preempting the state law or a provision clearly contradicting the proposed state law, the Court found nothing in the section that made it automatically preempted by Federal law, even the argument that it would allow states to detain people who were not enforcement priorities.  The Court, though clearly decided this with a caveat, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”  In other words, enact this with care.  They did not give this provision a SCOTUS Constitutional seal of approval and specifically left this provision open to further litigation both from individuals and how it was applied to that person as well as a general preemption challenge but the Federal Government after the law is implemented, if it is enforced in such a way that makes it preempted by some section of federal immigration or civil rights law.   Further they specifically did not decide if further detention beyond what was necessary to conduct the initial stop would be permissible if the officer came to suspect the person was undocumented during the course of the initial stop.

 

Honestly, this provision is detestable because of people such as Maricopa County Sheriff Joe Arpio and how they will undoubtedly apply it as well as what it represents: explicit and institutional justification of authorization of a hateful and wrongly reasoned policy of “attrition through enforcement,” in fact, the Arizona’s law says in its provisions are intended to establish this as a state policy.  (See opinion page 1).  I believe that the Majority recognized this and while they could not find this section unconstitutional on its face because of the supposed safe guards written into the statute, their specific statement that they were not deciding the issue of whether suspected unlawful presence would justify further detention and that the timing of the challenge gave them no way to assess how it would be implemented and that their decision this week specifically did not preclude both individual and governmental challenges indicate a deep concern for how this provision will be applied in practice.

 

This is decision has several very important lessons.  First, Mr. Kobach is not the infallible constitutional genius he has been claiming when he appears in the state legislatures promising these laws are constitutional and will be upheld.  The fact that most of his assertions on the constitutionality of his state and local laws have been blocked and been found unconstitutional by federal district and appellate courts all over the country seem not to have matter to his followers up to now, but maybe this SCOTUS bitch slap will wake up state legislatures all over the country to stop buying what he is selling.  It is long on promises and short on delivery and leaves those state and local coffers significantly emptier and his pockets significantly fatter than when he started.

 

The second important lesson is that even though the SCOTUS did not strike the “reasonable suspicion” provision on its face, it did not give the green light for wholesale copying and pasting of this provision either.   It expressed serious concerns as to how this law is going to shake out in practice and expressly invited further challenges to the application of this law both as to whether it is preempted in its application and to its constitutionality as it is applied to individuals.  In other words, the litigation is not over.  Any state legislators who use this provision verbatim are not doing so with a fresh stamp of unequivocal constitutional from the Bench. And those states that enact similar laws will not be protected from litigation, and the associated cost, by this opinion, a concern for more and more states that face deeper budget crises and growing debt.

 

States will still have to consider whether they should enact a “reasonable suspicion” statute like Arizona, even if it is not unconstitutional on its face.  Aside from the strain on local resources mandating a provision like this will cause, the potential lawsuits and millions of taxpayer dollars that will be spent litigating individual and governmental challenges, the provision is hateful and, simply just make the state look bad.  It kills me that so many people have drunk Kobach’s Poison Kool-aid on this issue.  The whole concept of “attrition by enforcement” is based on a serious fallacy.  Kobach is assuming that it is possible to create an environment through legislation that is bad enough to send the majority of the undocumented folks back to their countries.  He is assuming that these restrictions, these scare tactics, these roadblocks to getting your water turned on or registering your car or even registering your kids in school is going to be enough to send them packing up and sneaking back.  He assumes that a heightened risk that a cop will detain you when he finds you have no driver’s license or the difficulty one might have in renting an apartment is going to send them away.  He assumes that creating a legal second class status or a pervasive “you are less than” attitude toward all immigrants are going to make them huff in fury and say in righteous indignation “we will not be treated in such a way,” close their businesses, pack up their kids and leave a place they have lived for years.  He is assuming that because he is thinking like an upper-middle class, non-ethnic person.  And maybe he would be exactly right, if our undocumented population consisted of illegal Canadians, or French, or Swedes.  They would certainly not stand for laws making it legal to treat them badly and probably would pack up and return to there countries that are almost exactly like ours.

 

 

What he has failed to understand, however, is you do not pack up your entire family, leave your country, your home, your culture and history, and travel to our southern border where you pay all the money you and your entire family have to a coyote, who is equally as likely to kill you or rape your daughter or simply leave you in the desert as he is to actually deliver you to the other side, to smuggle you in to the United States in a shipping container, or in a hollowed out compartment in a truck or simply walking for days in the desert, and arrive in the US where you take dirty, difficult crap jobs and work 10 hours a day 6 ½ days a week and sleep on floors in rented rooms or in trailers or in cars and live in constant fear of being discovered because “home” is a great place.

 

To the vast majority of undocumented people “home” is in a dirt hut with no running water or doors or windows or school or doctor, or where your kids will grow up uneducated and your are barely able to feed yourself or your family; or a place where warring drug cartels forcibly recruit people to work for them and cut the heads off of people who refuse with machetes; or a city so over crowded and teeming with gangs that it is really MS13 that runs the city not the police or government; or a place where warring tribes like to go into villages and kill or maim the adults and kidnap and brain wash the kids into being soldiers by beating them and giving them drugs, and doing unspeakable things to them; or where oil companies hire mercenaries to kill and terrorize people who object to their pollution and corruption of the land; or where refusal to work in the diamond mines means your hand gets wacked off with a machete; or where your teenage daughter will be subject to female gentile mutilation; or you will be subjected to forced family planning; or you will be stoned in public for showing your ankle; or there are no jobs and no food and your living quarters are something out of Bleak House; or where being gay is punishable by death; or even a place you simply have no memory of and have not been to since you were a small child or where …I could go on and on.

 

The depth of cruelty and depravity that we humans are capable of inflicting on other human beings is staggering and astounding.  And no amount of legislated hatred is going to make conditions here bad enough for anyone to return to that.  There is a reason we do not have a problem with hordes of undocumented western Europeans.  It will make things uncomfortable and difficult for a while but people will adapt.  They will adapt because they cannot go back to the country of their birth and they will adapt because no matter how much Kobach may not like it, the United States is their home.  It will not send them home because whatever is legislated, unless Kobach starts proposing cutting off heads and hands or forcing children to be drugged out soldiers, it is still better than where they came from otherwise they would not have risked what they have to have done it.  They came here not to break laws, or to get a free ride or to steal jobs. They came here because their children were starving, or sick, or in danger or not getting an education.  They came here because America is the place where anyone can become something great with hard work.  Period.  It may sound hippy and liberal and bleeding heart, but it is the truth.  As someone who has spent her entire adult life working with “those people” I can tell you many of them embody the American dream and spirit far more than most Americans.

 

The Supreme Court’s decision in Arizona v. United States, hopefully, will begin to make it clear that state based cruelty and hate will only make the problem worse.  This is Congress’ job and the fact is that, like so many things, they have epically failed in this arena.   Hopefully this decision will show people that this issue is important enough that we need to start electing people who are politically brave enough to come to the table and compromise and try to fix this problem.  It is not the job of employers, or landlords, or local police or state legislatures, or governors, or Kris Kobach.  It is going to take listening and compromising and working together.   It is going to take ceasing to act like stubborn children who refuse to do anything unless they get all of their own way.  Maybe we ought to send a troop of kindergarten teachers into congress for a lesson on sharing and taking turns.  What I hope this decision does is push voters to elect people who are willing to fix the system and address some of the real problems and push Congress to see that they cannot pawn off their responsibilities anymore on the states and to show the states that, as frustrated as they are about this situation, rather than wasting time and money on hateful ideas from a dubious constitutional “expert” who is wrong the majority of the time, push their counterparts in Washington to act.  In any case, the Arizona decision was a game changer.  It, in dicta, approved of the concept of prosecutorial discretion and the broad executive power to make policy and enforcement decisions and priorities in an administration and it severely curtailed the future potency of state legislation.   While I wish the “reasonable suspicion” provision was found to be out right unconstitutional so there would be no need to discuss this further with the states, I cannot say I disagree with their reasoning and decision to a great degree, and I am placated by the fact that I am sure there will be more lawsuits to come, further providing a disincentive for states to enact these laws and, hopefully pushing congress to get off their collective backsides and do something.

 

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Tags: Arizona, Kris Kobach, Kris Kobach (KS Secretary of State), Preemption, SB1070, state based immigration, Supremacy Clause .

Who and Where the DREAMers Are | Immigration Policy Center

Posted on August 3, 2012 by Angie Williams Posted in DREAM Act, Immigration, Immigration Myths, Inspirational Thoughts, Job Creation, LGBT Issues, Notario Fraud, Office News, Perspective, Procedure, Prosecutorial Discretion .

Who and Where the DREAMers Are | Immigration Policy Center.

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Tags: Deferred Action News, DREAM Act .

USCIS – Consideration of Deferred Action for Childhood Arrivals Process

Posted on August 3, 2012 by Angie Williams Posted in Deportation, DREAM Act, Immigration, Immigration Myths, LGBT Issues, Notario Fraud, Office News, Perspective, Practice Pointers, Procedure, Prosecutorial Discretion .

USCIS – Consideration of Deferred Action for Childhood Arrivals Process.

 

There is more info re deferred action for DREAM act eligible kids.  Please contact my office for more info.  PLEASE NOTE THERE IS NOT ANY WAY TO APPLY FOR THIS YET>  THE FIRST DATE EXPECTED FOR THIS APPLICATION IS AUGUST 15.  THERE IS NO WAY IT CAN BE EXPEDITED.  BE AWARE OF SCAMS

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Tags: Comprehensive Immigration Reform, DACA, Deferred Actin for Childhood Arrivals, Immigration, Obama .

A Breakdown of DHS’s Deferred Action for DREAMers » Immigration Impact

Posted on June 18, 2012 by Angie Williams Posted in Deportation, DREAM Act, Immigration, Practice Pointers, Procedure, Prosecutorial Discretion .

A Breakdown of DHS’s Deferred Action for DREAMers » Immigration Impact.

 

DO NOT TURN YOUR SELF INTO IMMIGRATION, ICE OR CBP.  Please contact my office or another qualified IMMIGRATION LAWYER to discuss potential eligibility.  Not everyone is going to qualify and not everyone maybe should apply.  A decision to apply needs to be made after the program is clearly proposed and in place and after the potential benefits and risks are explained.

 

There is not anything to apply for yet if you are not already in removal proceedings.  If you are in removal, please contact your lawyer or an immigration lawyer regarding the options for applying.  If you already have a final order please contact your attorney or the hotlines listed at the bottom of the memo in the link to discuss your options.

This is not amnesty nor is is a permanent status. As of now it will not lead to any permanent benefits like residency or citizenship.  Please be wary of people who are not immigration lawyers giving advice on this or advertising that you can apply affirmatively now.  Notarios are not attorneys and should not be relied upon to make important decisions related to whether you or your family qualifies for any immigration benefit.

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Tags: deferred action, DREAM Act, Obama, Prosecutorial Discretion .

The New Text of SB590 as it will be introduced to the Senate…ANd he is still claiming that it won’t cost the schools any money?

Posted on January 25, 2012 by Angie Williams Posted in Bart Karman (R-MO House), Comprehensive Immigration Reform, Constitution, Immigration, Jason Smith (R-MO House), Kris Kobach (KS Secretary of State), List of Shame, Missouri House of Representatives, Missouri Senate, Other Appalling State Legislation, Politicians making things worse, Procedure, Sen. Brian Nieve (MO State Senate-R), Sen. Will Kraus (MO State-R), State Based Immigration Laws, State's Rights, Supremacy Clause, Wanda Brown (R-Mo House), Wasting Money .

Section A. Chapters 161 and 577, RSMo, are amended by adding thereto

  1. 2  three new sections, to be known as sections 161.245, 577.685, and 577.690, to
  2. 3  read as follows:

    161.245. 1. At the time of enrollment of a student in a public

  1. 2  elementary or secondary school in this state, such school shall
  2. 3  determine whether the student enrolling was born outside the
  3. 4  jurisdiction of the United States or is the child of an alien not lawfully
  4. 5  present in the United States and qualifies for assignment to an English
  5. 6  as second language class or other remedial program.
  6. 7  2. When making the determination required by subsection 1 of
  7. 8  this section, the school shall rely upon presentation of the student’s
  8. 9  original birth certificate or a certified copy thereof.
  9. 10  3. If it is determined that the student was born outside the
  10. 11  jurisdiction of the United States or is the child of an alien not lawfully
  11. 12  present in the United States upon review of the student’s birth
  12. 13  certificate or where such certificate is not available for any reason, the
  13. 14  parent, guardian, or legal custodian of the student shall notify the
  14. 15  school of the actual citizenship or immigration status of the student
  15. 16  under federal law within thirty days of the date of the student’s
  16. 17  enrollment.
  17. 18  4. Proper notification under subsection 3 of this section shall
  18. 19  consist of the following:
  19. 20  (1) Presenting official documentation establishing the citizenship
  1. 21  and, in the case of an alien, the immigration status of the student, or
  2. 22  alternatively by submitting a notarized copy of such documentation to
  3. 23  a school official designated for such purpose by the school district in
  4. 24  which the child is enrolled; and
  5. 25  (2) Attestation by the parent, guardian, or legal custodian, under
  6. 26  penalty of perjury, that the document states the true identity of the
  7. 27  child. If the student or his or her parent, guardian, or legal
  8. 28  representative possesses no such documentation but nevertheless
  9. 29  maintains that the student is either a United States citizen or an alien
  10. 30  lawfully present in the United States, the parent, guardian, or legal
  11. 31  representative of the student may sign a declaration so stating, under
  12. 32  penalty of perjury.
  13. 33  5. If no such documentation or declaration is presented, the
  14. 34  school official shall presume for the purposes of reporting under this
  15. 35  section that the student is an alien unlawfully present in the United
  16. 36  States.
  17. 37  (1) Each school district in this state shall collect and compile
  18. 38  data as required by this section.
  19. 39  (2) Each school district shall submit an annual report listing all
  20. 40  data obtained pursuant to this section to the state board of education.
  21. 41  6. (1) The state board of education shall compile and submit an
  22. 42  annual public report to the general assembly. The report shall provide
  23. 43  data, aggregated by school, regarding the numbers of United States
  24. 44  citizens, of lawfully present aliens by immigration classification, and
  25. 45  of aliens believed to be unlawfully present in the United States enrolled
  26. 46  at all primary and secondary public schools in this state. The report
  27. 47  shall also provide the number of students in each category
  28. 48  participating in English as a second language programs enrolled at
  29. 49  such schools.
  30. 50  (2) The report shall analyze and identify the effects upon the
  31. 51  standard or quality of education provided to students who are citizens
  32. 52  of the United States residing in Missouri that may have occurred, or
  33. 53  are expected to occur in the future, as a consequence of the enrollment
  34. 54  of students who are aliens not lawfully present in the United States.
  35. 55  (3) The report shall analyze and itemize the fiscal costs to the
  36. 56  state and its political subdivisions of providing educational instruction,
  37. 57  computers, textbooks and other supplies, free or discounted school
  1. 58  meals, and extracurricular activities to students who are aliens not
  2. 59  lawfully present in the United States.
  3. 60  (4) The state board of education shall prepare and issue
  4. 61  objective baseline criteria for identifying and assessing the other
  5. 62  educational impacts on the quality of education provided to students
  6. 63  who are citizens of the United States, due to the enrollment of aliens
  7. 64  who are not lawfully present in the United States, in addition to the
  8. 65  statistical data on citizenship and immigration status and English as a
  9. 66  second language enrollment required by this section. The state board
  10. 67  of education may contract with reputable scholars and research
  11. 68  institutions to identify and validate such criteria. The state board of
  12. 69  education shall assess such educational impact and include such
  13. 70  assessments in its reports to the general assembly.
  14. 71  7. Public disclosure by any person of information obtained
  15. 72  pursuant to this section which personally identifies any student shall
  16. 73  be unlawful, except for purposes permitted pursuant to 8 U.S.C.
  17. 74  Sections 1373 and 1644. Any person intending to make a public
  18. 75  disclosure of information that is classified as confidential under this
  19. 76  section, on the ground that such disclosure constitutes a use permitted
  20. 77  by federal law, shall first apply to the attorney general and receive a
  21. 78  waiver of confidentiality from the requirements of this subsection.
  22. 79  8. A student whose personal identity has been negligently or
  23. 80  intentionally disclosed in violation of this section shall be deemed to
  24. 81  have suffered an invasion of the student’s right to privacy. The student
  25. 82  shall have a civil remedy for such violation against the agency or
  26. 83  person that has made the unauthorized disclosure.
  27. 84  9. The state board of education shall construe all provisions of
  28. 85  this section in conformity with federal law.
  29. 86  10. This section shall be enforced without regard to race,
  30. 87  religion, gender, ethnicity, or national origin.

    577.685. 1. Upon any lawful stop, detention, or arrest made by a

  1. 2  state, county, or municipal law enforcement officer of this state in the
  2. 3  enforcement of any state law or ordinance of any political subdivision
  3. 4  thereof, where reasonable suspicion exists that the person is an alien
  4. 5  who is unlawfully present in the United States, a reasonable attempt
  5. 6  shall be made, when practicable, to determine the citizenship and
  6. 7  immigration status of the person, except if the determination may
  1. 8  hinder or obstruct an investigation. Such determination shall be made
  2. 9  by contacting the federal government pursuant to 8 U.S.C. Section
  3. 10  1373(c) and relying upon any verification provided by the federal
  4. 11  government.
  5. 12  2. A law enforcement officer shall not attempt to independently
  6. 13  make a final determination of whether an alien is lawfully present in
  7. 14  the United States. A law enforcement officer may not consider race,
  8. 15  color, or national origin in implementing the requirements of this
  9. 16  section except to the extent permitted by the United States Constitution
  10. 17  or the Constitution of Missouri.
  11. 18  3. A person is presumed to not be an alien who is unlawfully
  12. 19  present in the United States if the person provides any of the following
  13. 20  to the law enforcement officer:
  14. 21  (1) A valid, unexpired Missouri driver’s license;
  15. 22  (2) A valid, unexpired Missouri nondriver’s license;
  16. 23  (3) A valid tribal enrollment card or other form of tribal
  17. 24  identification bearing a photograph or other biometric identifier;
  18. 25  (4) Any valid United States federal or state government issued
  19. 26  identification document bearing a photograph or other biometric
  20. 27  identifier, if issued by an entity that requires proof of lawful presence
  21. 28  in the United States before issuance;
  22. 29  (5) A foreign passport with an unexpired United States visa and
  23. 30  a corresponding stamp or notation by the United States Department of
  24. 31  Homeland Security indicating the bearer’s admission to the United
  25. 32  States;
  26. 33  (6) A foreign passport issued by a visa waiver country with the
  27. 34  corresponding entry stamp and unexpired duration of stay annotation
  28. 35  or an I-94W form by the United States Department of Homeland
  29. 36  Security indicating the bearer’s admission to the United States.
  30. 37  4. If an alien is determined by the federal government to be an
  31. 38  alien who is unlawfully present in the United States pursuant to 8
  32. 39  U.S.C. Section 1373(c), the law enforcement agency shall cooperate in
  33. 40  the transfer of the alien to the custody of the federal government, if the
  34. 41  federal government so requests.

    577.690. 1. In addition to any violation of federal law, a person

  1. 2  is guilty of willful failure to complete or carry an alien registration
  2. 3  document if the person is in violation of 8 U.S.C. Section 1304(e) or 8
  1. 4  U.S.C. Section 1306(a), and the person is an alien unlawfully present in
  2. 5  the United States.
  3. 6  2. In the enforcement of this section, an alien’s immigration
  4. 7  status shall be determined by verification of the alien’s immigration
  5. 8  status with the federal government pursuant to 8 U.S.C. Section 1373(c).
  6. 9  A law enforcement officer shall not attempt to independently make a
  7. 10  final determination of whether an alien is lawfully present in the
  8. 11  United States.
  9. 12  3. A law enforcement official or agency of this state or a county,
  10. 13  city, or other political subdivision of this state may not consider race,
  11. 14  color, or national origin in the enforcement of this section except to the
  12. 15  extent permitted by the United States Constitution and the Constitution
  13. 16  of Missouri.
  14. 17  4. This section does not apply to a person who maintains
  15. 18  authorization from the federal government to be present in the United
  16. 19  States.
  17. 20  5. Any record that relates to the immigration status of a person
  18. 21  is admissible in any court of this state without further foundation or
  19. 22  testimony from a custodian of records if the record is certified as
  20. 23  authentic by the federal government agency that is responsible for
  21. 24  maintaining the record. A verification of an alien’s immigration status
  22. 25  received from the federal government pursuant to 8 U.S.C. Section
  23. 26  1373(c) shall constitute proof of that alien’s status. A court of this state
  24. 27  shall consider only the federal government’s verification in
  25. 28  determining whether an alien is lawfully present in the United States.
  26. 29  6. An alien unlawfully present in the United States who is in
  27. 30  violation of this section shall be guilty of a class C misdemeanor.

    „

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Tags: Immigraiton, Missouri Senate, Will Kraus .

KC lawyer: U.S. immigration policy helped murder my client | Missouri Lawyers Media

Posted on January 23, 2012 by Angie Williams Posted in Consular Processing, Deportation, Immigration, Perspective, Procedure, Waivers .

 

Jacobo Estrada Bautista

KC lawyer: U.S. immigration policy helped murder my client | Missouri Lawyers Media.

KC lawyer: U.S. immigration policy helped murder my client

Published: January 23, 2012
By Angela Williams
Special to Missouri Lawyers Weekly

But in light of the recent announcement from U.S. Citizens and Immigration Services that they are proposing a rule change that would allow certain immediate relatives to apply for and process their waiver applications in the United States and the predictable media storm of alarmists decrying “amnesty” I feel compelled to explain why this regulation change is an excellent step in the right direction and how it would have saved the life of my client, Jacobo Estrada Bautista.

I have been putting off writing this since right after Thanksgiving, frankly because it is so awful that it is hard to think about.

I am sure every lawyer has some of those cases that for whatever reason stick to you and haunt you like the Ghost of Christmas Past, rattling around the office like an omnipresent reminder that we are not, in fact magicians, and, despite our best efforts, there are some things we cannot fix.

The Monday afternoon after a great Thanksgiving, I was in my office answering the slew of emails that had arrived while I was enjoying the unseasonably warm November weather at the Lake of the Ozarks with my family. The phone rang, and I saw from the caller ID that it was Tiffany, the U.S. citizen wife of a Mexican national I have been representing for the last four years in first Jacobo’s removal proceedings and second in their consular processing case for Lawful Permanent Residency through his U.S. citizen spouse of five years.

I wasn’t particularly surprised to hear from Tiffany. She and I had been speaking in the past several weeks about some of the problems we had been encountering in their case and what she and Jacobo wanted to do to try to solve those problems to move forward or if they wanted to give up on their dream of a unified family after four years of struggle, separation and seemingly insurmountable hardship.

As soon as I answered the phone, Tiffany’s voice cracked saying my name and I knew something was wrong.

What I expected to hear was that the intense stress of their situation had finally gotten to be too big of a burden and they had decided to call it quits as a couple. The strain of deportation and the process of consular processing are tremendous and, frankly, more than many families can withstand.

I always tell couples who come to me how difficult it will be, and I always recommend that this process be accompanied by on-going marital and family therapy to deal with the stress and different experiences of the process. Hardly anyone actually does it, but everyone later tells me they wish they had.

In any case, Tiffany and Jacobo were having the same problems endemic to my clients in this situation. It was exacerbated by the fact that their case had been stalled for over a year, Jacobo was entering year two of being in Mexico, because soon after Jacobo left the United States, Tiffany’s father, who was going to act as Jacobo’s co-sponsor since Tiffany did not make enough money alone to be the only sponsor, lost his job and was unemployed for an extended period of time, making his income insufficient to sign an affidavit of support.

Try as they might they could not find someone else willing to act as the co-sponsor, so they had been stalled at that point for going on two years. To add to the stress of being away from his wife and three U.S. citizen kids, Jacobo could not find work in Mexico to be able to help send much money to the U.S. to try to help his family.

Tiffany then lost her job of several years because she could not afford childcare without Jacobo and was having to take too many days off work. They lost the house they had been renting to own, and Tiffany moved out of the Kansas City area, where she and Jacobo had lived for years, back to Oklahoma with her family hoping they could help during this hard time. She also had to quit school.

So working several minimum wage jobs, raising three kids on her own, forgoing her own dreams of finishing college to be an accountant, she pushed on hoping that her dad would get back on his feet to be the co-sponsor or that she would eke out enough money to qualify on her own. But the distance was getting to them. In early November she called me to discuss realistically their options. She talked about how hard it was to be apart, how the youngest kids didn’t remember Jacobo, how they would often fight because of the distance and stress, and that Jacobo’s guilt was overwhelming. But, no matter what, he called every single night to talk to the kids before they went to bed.

We discussed the options and exactly what needed to be done to move forward. The affidavit of support was the main obstacle, but looming in the not too distant future was the waiver Jacobo would need for having lived in the United States without authorization for over one year.

One year

Every single person who enters the United States and remains for one year or more without authorization and then departs is automatically barred from reentering for a period of 10 years. If that person has not incurred unlawful presence of over one year on more than one occasion (entered stayed for a year left and re-entered and stayed again for another year and leaves again) and that person has a “qualifying relative” (LPR or USC spouse or parent), he may be able to apply for a waiver under 212(a)(9)(B)(v) to waive that bar and return to the U.S. as a LPR.

They can obtain this waiver by proving to the satisfaction of the government that the citizen or LPR spouse or parent will suffer extreme hardship if the applicant is not given the waiver and the qualifying relative has to either stay in the U.S. without him or move to the country with the applicant. It is a monumental task and one that usually produces 30 or more hours of work and hundreds of pages of supporting evidence.

So I explained the hurdles we still had to jump. A week or so later she called to say they had decided that they were going to continue and were committed to trying to finish the process. She also had a lead on a possible alternate sponsor. She said she would call me soon with news or if the sponsor had questions about his responsibilities if he decided to do it.

So, when the phone rang, I was expecting news on the new sponsor. When her voice broke asking for me I expected to hear they were divorcing. What I got was quite different and much worse.

‘Jacobo’s dead’

She said in a voice that was shaking, “I wanted to tell you right away when I found out but I didn’t want to ruin your Thanksgiving. Jacobo’s dead.” What? Wait … what? I asked her to repeat.

“He’s dead. They killed him.”

I asked her what she meant. She started crying. My stomach dropped and I felt cold. She took a breath.

“He didn’t call me for several days. He always calls. Finally his family told me that Jacobo was out in the town where they live with another family. Some men kidnapped all of them at gunpoint but later let the women go with a ransom demand of 200,000 pesos for the father of the family, and $10,000 American dollars for Jacobo.

“It was the Cartels. It is a small town, and they are everywhere, and everyone knew Jacobo had been in the U.S. for a while and had family here and everyone thought that meant he had money or access to money from his rich American family.

“They found his body and the body of the other man on Sunday a bit out of town, beaten, no shirts, no shoes, hands bound behind their backs, shot in the head. … He’s dead. I thought you should know.”

I couldn’t even make a sound, tears were choking my throat. She was crying, and I could hear the kids in the background.

“Are you sure, are you sure it was him?” I managed.

“Yes. Look on the Internet.” I Googled his name and, because Mexican media has no problem showing dead bodies on the front page, I was quickly able to find several articles with graphic pictures that clearly show his face.

I had nothing for her except to tell her I am so sorry and to cry with her for a bit.

Waiver

We are more than our taxes, and our numbers and what we consume and contribute. Jacobo was a brother, and an uncle, a husband, a father, a son, a friend and a client.

Did he enter the country without a visa? Yes. Did he do it because he thought he could get a bunch of free public services, go on welfare, or get in-state tuition at the University of Kansas? Don’t be ridiculous.

Does that make him a criminal or a bad person? No, it does not; not legally and not morally. In fact he was put in removal proceedings after being the victim of a car accident. Someone else ran a light, and he went to jail. Is the blind act of making him go through all of this outside the country because that is what the rules say and there is no ability to apply any discretion or judgment worth the devastation it caused three families in two countries? I believe no.

This is why the regulation change that was proposed by USCIS is desperately needed, a great step in the right direction, but really does not go far enough.

You can find the actual Code of Federal Register Notice at https://s3.amazonaws.com/public-inspection.federalregister.gov/2012-00140.pdf

It is not “backdoor amnesty,” a term that quite frankly makes me want to scream for all its ignorance and purposeful hate-mongering. This rule gives people no new rights nor does it change any requirements for people obtaining legal status. It only changes the procedure by which immediate relatives (spouses, parents or unmarried under 21 children of U.S. citizens) go about applying for a waiver.

Here is a summary of who would potentially qualify to have their waiver adjudicated here in the U.S. prior to leaving for the consulate:

1. You must only be inadmissible because of unlawful presence of 180 or more days in the United States. If you have any other inadmissibility issue (fraud, misrepresentation, criminal, health), you are not eligible to apply here and must continue to do the whole process in your country of birth.

2. You must be an immediate relative. That is a spouse, the minor (under 21) unmarried son or daughter or the parent of a U.S. citizen. Realistically, the spouse of a U.S. citizen is going to be the category that is most helped by this change.

For waiver purposes a “qualifying relative” is only a U.S. citizen or permanent resident parent or spouse. A child is not a qualifying relative for purposes of the unlawful presence waiver. So a U.S. citizen child who is over 21 may apply for his or her parents. However, if the parents do not have either a U.S. citizen or LPR spouse or parent, they will not be eligible for a waiver.

What has not changed:

1. You must still qualify for the waiver, i.e. have the “qualifying relative,” prove exceptional and extremely unusual hardship to that qualifying relative, and show that your situation warrants a favorable exercise of discretion by the service.

2. You still have to leave the country and have an interview in the country of birth and get the visa issued there and return, making a lawful entry as a permanent resident.

3. Absolutely everything else about the process, applications, income requirements, filing fees, medical exams etc. is the same.

4. If you are not someone who is an immediate relative, you still must leave the country, so spouses and unmarried children of permanent residents, adult children of U.S. citizens, married children of U.S. citizens and their spouses and minor children and brothers and sisters and their spouses and minor children of U.S. citizens and all resident applications made on behalf of an employee by an employer may not take advantage of the new process.

Why this is good:

The time that someone is out of the country waiting on one of these waivers is the reason that most people who could apply do not. It is simply an unknown quantity that is potentially too big to risk. Best case it is six months and worst case is 10 years. When you are talking about a mother, father or child being away from his/her family that period of time is simply too long for many families to consider taking the risk. This change in procedure would encourage more people to try to legalize their status by taking some of the guesswork out of many cases. The immigrant could remain in the United States with his or her family while the waiver is being decided and only return to their countries for a brief trip. An absence of several weeks or even a month is manageable for most families. Similarly, there is a significant chance that people who are denied could be put in removal proceedings so they will have to continue with this process outside the country.

Streamline

Second, adjudicating these waivers is very labor and time intensive. There are many documents that are presented and often there is one lone consular officer looking at all the waivers. The new process would mean that there are fewer resources spent shipping documents between the consult and USCIS and more workers to review the applications quickly here than there are in the consults abroad. It would expedite and streamline this process immensely saving time and money in the Department of Homeland Security and the Department of State.

Finally it promotes family unity. The family gets to stay together during the majority of the process and can leave the county knowing that they get to come back after a reasonable amount of time, rather than after months or years or not at all.

Here is the bottom line: This change in procedure would promote more people becoming legal, would waste less government money and resources in processing the applications and promotes and values family unity.

This rule would literally have saved Jacobo’s life. He would be living with his kids and wife, probably still in Kansas City getting ready to apply for citizenship. They probably wouldn’t have lost their house, and Tiffany would probably have been done with college.

That could all be speculation, but he for sure would not have had to spend two years away from his kids and wife and he certainly would not have been kidnapped by drug cartels, and shot in the head and left in a ditch.

If preserving a family is not something you can get behind because one of the members is “illegal,” maybe you can at least get behind not being murdered.

While in my opinion this new policy doesn’t go far enough, it’s a start. And we have to start somewhere.

Angela L. Williams is a solo attorney specializing in immigration law in Kansas City.

 

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Tags: 601, Children, Deportation, Immigration, Jacobo Estrada Bautista, Long waits, Murder, US Citizen Kids, Waiver .

ILW.COM – immigration news: USCIS Releases Transcript Of Press Conference On Proposed Changing Of Process For Certain Waivers On Unlawful Presence

Posted on January 18, 2012 by Angie Williams Posted in Change in Regs, Consular Processing, Immigration, Procedure, Waivers .

ILW.COM – immigration news: USCIS Releases Transcript Of Press Conference On Proposed Changing Of Process For Certain Waivers On Unlawful Presence.

 

Interesting, More commentary later on this, but it is an explanation of why USCIS is proposing the change in processing Waivers in select cases.

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Tags: Change in Procedures, Consular Porcessing, Immigration, USCIS, Waivers .

Notice of intent to Implement Stateside Processing of Waivers for Unlawful Presence

Posted on January 10, 2012 by Angie Williams Posted in Anchor Baby is a Hate Word, Comprehensive Immigration Reform, Consular Processing, Deportation, Immigration, Immigration Myths, Job Creation, Practice Pointers, Procedure, Wasting Money .

I have pasted the wording of the proposed procedure change that is causing such a ruckus.  It is no “backdoor amnesty” a term that quite frankly makes me want to scream for all its ignorance and purposeful hate mongering.  This rule gives people no new rights nor does it change any requirements for people obtaining legal status.  It only changes the procedure by which immediate relatives (spouses, parents or unmarried under 21 children of US Citizens) go about applying for a waiver.  Even these 3 categories do not all qualify for this new processing.  Here is a summary on who qualifies to have their waiver adjudicated here in the US prior to leaving for the consulate:

1.  You must only be inadmissible because of unlawful presence of 180 or more in the United States.  If you have any other inadmissibility issue (fraud, misrepresentation, criminal, health) you are not eligible to apply here and must continue to do the whole process in your country of birth.

2.  You must be an immediate relative.  That is a spouse of a US Citizen, the minor (under 21) unmarried son or daughter of a US citizen or the parent of a US Citizen.  Realistically the spouse of a US Citizen is going to be the category that is most helped by this change.  Here is why:  children who are under 18 do not incur unlawful presence for the purposes of this waiver.  So a child entered without inspection at age 3 and when he is 15 his mom becomes a US Citizen and makes an application for him.  That child will have to go to his country of birth for the interview but will not need a waiver because he is under 18 and has not incurred “unlawful presence” yet.  Now a child of a US Citizen who is between 18 1/2 and under 21 will be helped by this provision because he will have “unlawful presence” of either between 6 months but less than 1 year (3 year bar) or over 1 year (10 year bar) depending on when he goes to the interview.  A Parent of a US Citizen will also qualify as an immediate relative.  However they still have to qualify for the waiver.  In order to get the waiver you have to show extreme hardship to a “qualifying relative.”  For waiver purposes a “qualifying relative” is ONLY a US Citizen or permanent resident PARENT or SPOUSE.  Children are not a qualifying relative for purposes of the unlawful presence waiver.  So a US citizen child who is over 21 may apply for his or her parents.  However if the parents do not have either a US Citizen or LPR spouse or Parent they will not be eligible for a waiver.  So the “anchor baby” scenario, once again debunked, Person who enters without inspection to the US and has a child here.  That child is a US Citizen.  That undocumented person manages to escape detection from immigration until the USC child turns 21, that undocumented will still not be able to become legal through a petition by his or her 21 year old  “anchor baby” because there is not a qualifying relative necessary for that person to get a waiver for the over 1 year of unlawful presence that he or she has incurred.  So the only Parents of US Citizen children that will be helped by this law are the ones who also have a US Citizen or LPR parent or spouse in addition to the US Citizen child who is making the application.

What has not changed

1.  You must still qualify for the waiver, i.e. have the “qualifying relative” (see above), prove exceptional and extremely unusual hardship to that qualifying relative, and show that your situation warrants a favorable exercise of discretion by the service.

2.  You still have to leave the country and have an interview in the country of birth and get the visa issued there and return, making a lawful entry as a permanent resident.

3.  Absolutely everything else about the process, applications, income requirements, filing fees, medical exams etc is the same.

4.  If you are not someone who is an immediate relative you must still leave the country, so Spouses and unmarried children of Permanent Residents, Adult children of US Citizens, Married Children of US Citizens and their spouses and minor children and brothers and sisters and their spouses and minor children of US citizens and all resident applications made on behalf of an employee by an employer may not take advantage of the new process.

Why this is good

The Vast majority of waivers processed abroad are for unlawful presence.  The time that someone is out of the country waiting on one of these waivers to be adjudicated is usually between 4 and 18 months if the waiver is approved.  if the waiver is not approved the wait can be much longer, several years to the full term of the bar (3 or 10 years).  When you are talking about a mother, father or child being away from his/her family that period of time is simply too long for many families to consider taking the risk.  it is actually a deterrent in “getting in line” and “doing things legally.”  Imagine the financial and emotional state of your family if you had to be away from you spouse or child for potentially 10 years but most probably a year or more.  This hurdle is simply too high for many families to bear.  This change in procedure would encourage more people to try to legalize their status by taking some of the guess work out of many cases.  The immigrant could remain in the United States with his or her family while the waiver is being decided and only return to their countries for a brief trip.  An absence of several weeks or even a month is manageable for most families.  If they are denied in the United States they will know why, they can apply again after fixing whatever problem arose, or they will know that applying here is not an option.  Similarly, while the proposed rule change does not say one way or the other, there is a significant chance that people who are denied could be put in removal proceedings so they will have to continue with this process outside the country doing it the long way.

Second, adjudicating these waivers is very labor intensive and time intensive.  There are many many documents that are presented (normally my waiver packets are between 200-400 pages of evidence) and often there is one lone consular officer looking at all the waivers.  It takes months and sometimes years for someone to even LOOK at the application and decide if there is enough evidence to make a decision.  This new process would mean that there is less resources spent shipping documents back and forth between the consult and USCIS int he US.  There are far more resources int he form of eyes looking at documents than there are in the consults abroad.  It would expedite and stream line this process immensely saving time and money in the Department of homeland Security and the Department of State.  Money ultimately that can be used for other things.

Finally it promotes family unity.  The fact that many republicans are all up in arms over this really astounds me seeing that they are suppose to be the party of less government waste and family values.  To be honest, despite the fact that I personally have never claimed to be a republican, I am pretty disgusted at what the party has become.  I think Reagan is probably rolling over in his grave at the appalling array of potential candidates for next election, nothing but crazy, hate mongering lunatics that for some reason value never changing one’s opinion during one’s political career to adjust for different times and situations over rationality, and the ability to adjust one’s view to changed circumstances.  Here is the bottom line.  This change in procedure would promote more people becoming legal, would waste less government money and resources in processing the applications and promotes and values family unity.  If you are too closed minded to see that than what you want is not reform you want closed borders and society.  You want isolationism and to hurt the United States culturally, economically and internationally.  You want families to be split apart and for children to grow up without a parent.  You value neither family nor children.  And you should stop lying to everyone, including yourself and start calling it what it is: Racism, Ignorance and Fear of other cultures.

Do something crazy.  Read something with an open mind from under the veil of ignorance and do the radical thing of changing your mind.

 

 

This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules.

—————————————

Federal Register / Vol. 77, No. 5 / Monday, January 9, 2012 / Proposed Rules

[[Page 1040]]

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

RIN 1615-ZB10

Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens

AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION: Notice of intent.

—————————————

SUMMARY: U.S. Citizenship and Immigration Services (USCIS) intends to change its current process for filing and adjudication of certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the United States for consular processing of their immigrant visa applications. An alien would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the alien as an “immediate relative” for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the alien’s U.S. citizen spouse or parent “qualifying relative.” The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the alien relative’s behalf.

FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529- 2099, telephone (202) 272-1470 (this is not a toll free number).

SUPPLEMENTARY INFORMATION:

I. Background

A. Overview

The proposed process is intended to reduce the time that U.S. citizens are separated from immediate relatives who are required to remain outside the United States for immigrant visa application processing and during the adjudication of waivers of inadmissibility. Through this change, USCIS does not intend to modify the standard for assessing eligibility for these waivers, including whether the denial of the waiver would result in extreme hardship to a U.S. citizen spouse or parent (“qualifying relative”). For purposes of the waiver under section 212(a)(9)(B)(v) of the Act, a “qualifying relative” is a U.S. citizen spouse or parent or a lawful permanent resident spouse or parent who would suffer extreme hardship if their relative were not allowed to immigrate. For purposes of this provisional waiver program, DHS intends to limit who may participate in this program to immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent. Even if they obtain a provisional waiver, eligible aliens who are required to obtain a visa through consular processing would still be required to depart from the United States to apply for an immigrant visa. The purpose of the new process is to reduce the time that U.S. families remain separated while their relative proceeds through the immigrant visa process.

Certain grounds of inadmissibility can bar aliens from being admitted to the United States or obtaining an immigrant visa, preventing U.S. citizens from reuniting with their immediate relatives. However, the Secretary of Homeland Security, through USCIS, may waive some of those grounds. An alien who is subject to one or more grounds of inadmissibility must obtain a waiver, if available, from USCIS before he or she may be issued an immigrant visa by a Department of State consular officer at a U.S. embassy or consulate overseas.

The bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the INA, 8 U.S.C. 1182(a)(9)(B)(i)(I) and (II), based on accrual of unlawful presence in the United States, comprise one such ground. Typically, under current processes, aliens who are immediate relatives of U.S. citizens applying for immigrant visas at Department of State consular posts must apply for waivers of unlawful presence while outside the United States after a finding of inadmissibility is made by a Department of State consular officer in conjunction with their immigrant visa applications. As a result, U.S. citizen petitioners are often separated for long periods of time from their immediate relatives who are applying for immigrant visas and have accrued a certain period of unlawful presence in the United States. This revised process, which eliminates the time-consuming interchange between the Department of State and USCIS, would significantly reduce the amount of time that American families will be separated from their immediate relatives. USCIS also believes that efficiencies can be gained through this revised process for both the U.S. Government and most applicants.

USCIS intends to limit consideration for the provisional waiver to aliens who qualify for classification as immediate relatives of U.S. citizens, who have a U.S. citizen spouse or parent who would suffer extreme hardship if the waiver were denied, and for whom the sole basis for inadmissibility is unlawful presence in the United States of more than 180 days. USCIS would grant a provisional waiver if the alien meets the eligibility requirements described in this Notice, including demonstrating that the applicant’s qualifying U.S. citizen spouse or parent would suffer extreme hardship and that the applicant warrants a favorable exercise of discretion. The provisional waiver would be granted before the alien leaves the United States to attend his or her immigrant visa interview with a consular officer. The provisional waiver, however, would not become effective unless and until the alien departs from the United States. If the alien is otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of the visa so that the alien may proceed to immigrate to the United States for permanent residence.

This notice of intent generally describes the proposal that USCIS is considering. USCIS will further develop, and ultimately finalize, this proposal through the rulemaking process. This effort is consistent with

[[Page 1041]]

Executive Order 13563’s call for agencies to “consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected, and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.

B. Authority

The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6 U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary of Homeland Security with administration and enforcement of the immigration and naturalization laws. The Secretary would effectuate these proposed changes under the broad authority to administer the Department of Homeland Security and the authorities provided under the Homeland Security Act of 2002, the immigration and nationality laws, and other delegated authority.

C. Grounds of Inadmissibility

U.S. immigration laws provide mechanisms for U.S. citizens to petition for certain family members for admission to the United States for purposes of family reunification. At the same time, however, the immigration laws prescribe acts, conditions, and conduct that bar aliens, including immediate relatives of U.S. citizens, from being admitted to the United States or obtaining an immigrant visa. Such acts, conditions, and conduct include certain criminal offenses, public health concerns, fraud, misrepresentation, failure to possess proper documents, accrual of more than 180 days of unlawful presence in the United States, and terrorism. The grounds of inadmissibility are set forth in section 212(a) of the INA, 8 U.S.C. 1182(a).

The Secretary of Homeland Security has the discretion to waive certain inadmissibility grounds, upon the filing of a request by an alien who meets the relevant statutory requirements. If the Secretary, through USCIS, grants such a waiver, the waived ground will no longer bar the alien’s admission, readmission, or immigrant visa eligibility based on that specific ground of inadmissibility.

One of the inadmissibility grounds is described in section 212(a)(9)(B)(i) of the Act, 8 U.S.C. 1182(a)(9)(B)(i). Under part (I) of this provision, an alien who was unlawfully present in the United States for more than 180 days but less than one year, and who then departs voluntarily from the United States before the commencement of removal proceedings, will be inadmissible for three years from the date of departure. Under part (II) of the same provision, an alien who was unlawfully present for one year or more and then departs before, during, or after removal proceedings, will be inadmissible for ten years from the date of the departure.

The three- and ten-year unlawful presence bars do not take effect unless and until an alien departs from the United States. By statute, aliens are not considered to be accruing unlawful presence for purposes of section 212(a)(9)(B)(i) if they fall into certain categories. For example, aliens do not accrue unlawful presence while they are under 18 years of age. See INA section 212(a)(9)(B)(iii)(I), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(I). Similarly, individuals with pending asylum claims generally are not considered to be accruing unlawful presence while their applications are pending. See INA section 212(a)(9)(B)(iii)(II), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(II). Battered women and children and victims of a severe form of trafficking in persons are not subject to the section 212(a)(9)(B)(i) ground of inadmissibility at all if they demonstrate that there was a substantial connection between their victimization and their unlawful presence. See INA 212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(IV)-(V). Aliens who are subject to the unlawful presence bars must apply for and be granted a waiver in order to receive an immigrant visa and be admitted to the United States.

The Secretary of Homeland Security has the discretion to waive the three- and ten-year unlawful presence bars if the alien is seeking admission as an immigrant and if the alien demonstrates that the denial of his or her admission to the United States would cause “extreme hardship” to the alien’s qualifying relative. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The qualifying relative for purposes of the waiver is not necessarily the relative who filed the immigrant visa petition on the alien relative’s behalf. For example, an alien applicant’s U.S. citizen spouse may have filed the immigrant visa petition on the applicant’s behalf, but the applicant’s unlawful presence waiver application may be based on extreme hardship to the applicant’s U.S. citizen parent. Because the granting of a waiver is discretionary, the alien also must establish that he or she merits a favorable exercise of discretion.

D. Current Process and Problems

An alien who must apply for permanent residence through consular immigrant visa processing outside the United States must appear for an interview with a Department of State consular officer abroad. Currently, if the consular officer determines that the alien is subject to the three- or ten-year bar, the consular officer advises the alien that he or she is eligible to apply for a section 212(a)(9)(B)(v) waiver by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS. Under current rules, an individual is not permitted to apply for the section 212(a)(9)(B)(v) waiver before the consular officer has made the inadmissibility determination.

Once the Form I-601 is filed, in most cases, the file is transferred from the Department of State to USCIS. USCIS adjudicates that waiver request while the alien remains outside the United States and awaits a decision. If USCIS approves the waiver, USCIS notifies the Department of State, and the Department of State may then issue the immigrant visa if the applicant is otherwise eligible. If the waiver is denied, the alien may appeal the decision to the USCIS Administrative Appeals Office and, if the denial is upheld, the alien must remain outside the United States for three or ten years before being able to reapply for an immigrant visa. However, a denial does not preclude the alien from filing another Form I-601 in the future.

The three- and ten-year unlawful presence bars under section 212(a)(9)(B)(i)(I) and (II) of the Act do not apply unless and until the applicant departs from the United States. At the same time, many aliens who would trigger these bars if they depart from the United States are, for other reasons, statutorily ineligible to apply for adjustment of status to lawful permanent residence while remaining in the United States. Consequently, they must depart to regularize their immigration status by applying for their immigrant visas at a U.S. embassy or consulate abroad. The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) inadmissibility that bars that alien from obtaining the immigrant visa.

[[Page 1042]]

II. Proposed Waiver Process

A. Proposed Process

The proposed change would create a more streamlined and efficient process for waiver applicants whose sole inadmissibility ground is unlawful presence, while simultaneously minimizing family separation. If the waiver determination, with respect to unlawful presence, were made in advance of the immigrant visa interview and the applicant otherwise were eligible for the immigrant visa, the consular officer could simply issue the immigrant visa at the time of the visa interview. The new process thus will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members. Additionally, the new process would reduce U.S. Government costs associated with the movement of cases, and provide a more efficient visa process overall.

B. Affected Visa Categories

USCIS intends to limit this process change to aliens who are immediate relatives of U.S. citizens, as defined in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must depart from the United States to obtain immigrant visas, and whose U.S. citizen spouse or parent would suffer extreme hardship if the applicant were denied admission to the United States. The term “immediate relative” means the spouse, parent or child (unmarried and under 21 years old) of a U.S. citizen, except that, in the case of a parent, the U.S. citizen son or daughter petitioning for an immigrant visa must be at least 21 years old. Certain self-petitioners (i.e., widows/widowers of U.S. citizen and their minor unmarried children) may also be considered immediate relatives. See INA 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). Individuals applying for a waiver must also establish that the grant of the provisional waiver is warranted as a matter of discretion.

Because the focus on family unification of U.S. citizens and their immediate relatives is consistent with Congress’ prioritization in the immigration laws, USCIS has identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change. In addition, Congress did not set an annual limitation for the number of immediate relatives of U.S. citizens admitted to the United States. Therefore, these relatives always have an immigrant visa immediately available, and the visa thus can be processed immediately upon approval.

C. Ground of Inadmissibility Considered for Provisional Waiver

USCIS intends to further limit this procedural change to waivers filed by immediate relatives of U.S. citizens whose only ground of inadmissibility is the three- or ten-year unlawful presence bar under section 212(a)(9)(B)(i)(I) or (II) of the Act, 8 U.S.C. 1182(a)(9)(B)(i)(I) or (II). Aliens who require waivers for one or more additional grounds of inadmissibility, such as fraud or willful misrepresentation (section 212(i) waiver) or certain criminal offenses (section 212(h) waiver), in conjunction with their immigrant visa applications must continue to file a Form I-601 while outside of the United States in accordance with the existing process.

To qualify for the provisional waiver process, an applicant must establish not only that he or she is the immediate relative of a U.S. citizen, but also that denial of the waiver would result in extreme hardship to a qualifying relative. The qualifying relative must be a U.S. citizen spouse or parent but does not need to be the U.S. citizen petitioner. Only extreme hardship from the denial of a waiver to a qualifying U.S. citizen relative makes an alien eligible for the provisional waiver process; extreme hardship to the alien himself or herself as a result of denial does not make the alien eligible. An alien whose waiver application is based on extreme hardship to a lawful permanent resident spouse or parent must continue to apply for the waiver from outside the United States in accordance with existing procedures. Eligible aliens, furthermore, must be the beneficiaries of petitions classifying them as immediate relatives of U.S. citizens, and thus have visas immediately available. Because the granting of a waiver is discretionary, eligible aliens also must establish that they merit a favorable exercise of discretion. The standard for assessing whether denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent of such aliens will remain unchanged.

D. Adjudication and Decisions

After filing the Form I-601 with USCIS, DHS envisions that an alien seeking a provisional waiver would be required to undergo biometrics collection. USCIS would deny the application for a provisional waiver if other possible grounds of inadmissibility are found or arise during adjudication.

If the application is approved, USCIS would notify the Department of State and the alien of the provisional approval. In all instances, a Department of State consular officer would make the formal inadmissibility finding during or following the immigrant visa interview abroad, and if no other grounds of inadmissibility arise, the provisional waiver under section 212(a)(9)(B)(v) of the Act granted by USCIS would facilitate immigrant visa issuance. If, however, the consular officer finds during adjudication of the immigrant visa application that the individual is subject to another ground of inadmissibility that can be waived, the alien would need to file another waiver application with USCIS.

This process would not alter the requirement that an alien depart from the United States to apply for an immigrant visa. An alien who receives a provisional waiver under section 212(a)(9)(B)(v) of the Act for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II) of the Act would not gain the benefit of such waiver unless he or she departs from the United States. The departure from the United States would have to take place to activate the provisional waiver under section 212(a)(9)(B)(v) of the Act.

E. Excluded Visa Categories

Aliens who would not be eligible for this provisional waiver adjudication process and aliens who are denied provisional approval of their waiver requests would continue to follow current agency processes for filing and adjudication of waiver requests. Aliens who fall under any other family- or employment-based or other visa category or whose section 212(a)(9)(B)(v) waiver eligibility would be based on extreme hardship to a lawful permanent resident alien relative would not be considered for provisional waivers. Aliens who are subject to other grounds of inadmissibility or removal also would not be considered for provisional waivers. Further, aliens with waiver applications under section 212(a)(9)(B)(v) of the Act currently pending in either administrative or judicial proceedings would not qualify for this new process.

III. Conclusion

This document outlines the key elements of USCIS’s proposed change to its current process for filing and adjudication of waivers of inadmissibility for unlawful presence for immediate relative of U.S. citizens. The focus on family unification of U.S. citizens and their immediate relatives is consistent with Congress’s prioritization

[[Page 1043]]

in the immigration laws; the new process will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members. The proposed change would affect only when and where certain aliens can apply for waivers of the unlawful presence grounds of inadmissibility; it would not change the extreme hardship standard for evaluating eligibility for the waiver nor would it change whether aliens subject to these grounds of inadmissibility must depart the U.S. to apply for their immigrant visas. USCIS plans to effectuate this proposal through the regulatory process. USCIS will issue a proposed rulemaking that will explain the proposal in further detail and that will invite comment from all interested parties. Note: Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.

Janet Napolitano,
Secretary of Homeland Security.
[FR Doc. 2012-140 Filed 1-6-12; 8:45 am]
BILLING CODE 9111-97-P

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Tags: Amnesty, Consular Processing, Consulates, Costs, Department of State, Embassy, Family Immigration, hardship, ICE, Immigration, Long wait times, New Procedure, Out of Country, US Consulates, USCIS, Waiver .

Path to Green Card for Illegal Immigrant Family Members of Americans – NYTimes.com

Posted on January 6, 2012 by Angie Williams Posted in Change in Regs, Comprehensive Immigration Reform, Consular Processing, Deportation, DREAM Act, Immigration, Practice Pointers, Procedure, Waivers .

Path to Green Card for Illegal Immigrant Family Members of Americans – NYTimes.com.

 

This is the hot news of the day.  I have not had a chance to read the proposed regs yet so be sure there will be more to come, but I wanted to put this out there so everyone could read it.  it is far from over, the regs still have to pass, which may or may not happen, but it would help out many of my clients if this would happen.

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Tags: CIR, Consular Processing, Fast-Track, Immigration, Long waits, Refor, Waiver, Waivers .

ILW.COM – immigration news: USCIS Announces Changes To I-130 Filing Locations

Posted on December 27, 2011 by Angie Williams Posted in Attorney-Client Relationships, Change in Regs, Immigration, Procedure .

ILW.COM – immigration news: USCIS Announces Changes To I-130 Filing Locations.

 

Be Sure to Look at the Instructions after January 1, 2012 to confirm the address for filing I-130s because they are changing.  In fact I would say look at the address each time you file an application, sometimes they sneak in a change of address and it isn’t publicized as well as it could be or, lets face it, maybe you ignored that email that day because of the zillion others you got from your various listservs.  Anyways, while usually filing in the wrong place isn’t the big of a deal, i.e., immigration sends you back your packet all out of order, stamped up and stapled in weird places, if you are trying to file by a deadline (client is turning 21 soon for example) that delay can be deadly.  Even when it is not a big deal, your client will get copies of the rejection letters too and it is  a little embarrassing to have to explain that you mailed them to the wrong address.  it undermines you as well even just a little bit, (IF she can’t even file the app in the right place how is she going to handle my case’s more complicated aspects is floating through the client’s head even if they do not say it.)

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Tags: Addresses of Filing, Changes to Procedure, I-130, Immigraiton, Location of filing .

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