Georgian Farmers Blame Labor Shortage on State's New Immigration Law

Georgia recently passed an Arizona-like bill that goes into effect on July 1. Among other things, Georgia House Bill 87 requires private employers to use an employment eligibility verification system and provides authority for law enforcement officers to enforce federal immigration laws and investigate the immigration status of Georgia residents.

As reported recently in the Atlanta Journal-Constitution, migrant farm workers are choosing not to settle in Georgia because of HB 87. This has created a severe labor shortage among fruit and vegetable growers and potentially puts millions of dollars of crops in jeopardy.

Prospects for resolving the shortage look grim. Farmers say they are unable to recruit Georgia residents to work in their fields, because "it is temporary, hot and physically demanding." The president of the Georgia Fruit and Vegetable Growers Association said his farm is struggling against the worker shortage even after boosting pay to attract more migrant workers.

As states continue to pass piecemeal immigration laws, the labor shortage in Georgia will undoubtedly repeat itself throughout the rest of the United States. Georgia's struggle to save its crops exposes the country's dependence on migrant workers and calls for a guest worker program, both for the sake of our economy and the protection of immigrant workers.

Read more here in the Atlanta Journal-Constitution.

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Denver Immigration Court Overloaded

An article in Sunday's Denver Post documents the overwhelming caseload at the Immigration Court in Denver, Colorado. According to the article, two of Denver's immigration judges have as many as 2,400 pending cases each at any given time.

Judge Dana Leigh Marks, president of the National Associate of Immigration Judges, is quoted as saying that the necessarily rushed nature of the proceedings with such an inundation of cases is akin to trying death penalty cases in a traffic court setting.

With the enactment of Secure Communities and other programs designed to sweep more and more people into removal proceedings, the court's caseload seems likely to get worse. In the midst of the current budget struggles, it is difficult to envision Congress passing funding for more immigration judges and court staff to ensure due process and meaningful hearings in immigration court.

To read the article in the Denver Post, click here.

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United States Citizenship & Immigration Service Extends Temporary Protected Status to Haiti

On May 17, 2011 the Department of Homeland Security (DHS) extended Temporary Protected Status (TPS) to Haitians who qualified and applied during the designated time and who received TPS from the government. This move is a welcome and much needed recognition of the tens of thousands of human beings present in the United States who remain in need of protection from return to Haiti, a country still suffering from the earthquake that occurred more than a year ago. The extension is valid from July 23, 2011 until January 22, 2013.

Additionally, DHS has re-designated Haiti for Temporary Protected Status, allowing Haitian Nationals who were not covered by the initial designation but whom were continually present in the United States since January 12, 2011 to make a filing for TPS now. This measure allows people who entered the United States during the year following the earthquake to apply for TPS.

http://aila.org/content/default.aspx?docid=35422

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The "A" Word

After previous failures to get any traction on comprehensive immigration reform or the DREAM Act, President Obama has again ramped up his efforts to call for reform. The outlines of the President's proposed plan are nothing new. He emphasized the need to pore further resources into securing the borders and prosecuting business owners who willfully employ undocumented workers. At the same time, those illegally in the country could begin a legalization process after they (1) admit to having broken the law, (2) pay taxes and a fine, (3) learn English, and (4) undergo background checks to ensure that they have no serious criminal history.

For opponents of reform, the broad outline of the plan will be immediately deemed as unacceptable because it amounts to an amnesty. With so much of the political debate centered on whether or not a given plan is an amnesty, it is probably worth looking at what the word amnesty means.

According to dictionary.com, the definition of "amnesty" is (1) a general pardon for offenses, especially political offenses, against a government, often granted before any trial or conviction; (2) an act of forgiveness for past offenses, especially to a class of persons as a whole; or (3) a forgetting or overlooking of any past offense.

The relevant definition word “pardon” is defined as (1) a release from the penalty of an offense; a remission of penalty, as by a governor; or (2) forgiveness of a serious offense or offender.

Would requiring offenders to (1) admit to having broken the law, (2) pay taxes and a fine, (3) learn English, and (4) undergo background checks to ensure no serious criminal history before they could start a legalization process really be an amnesty? Such requirements seem more akin a mass guilty plea and sanction (a presumably substantial fine and English classes) than a "release from the penalty of an offense" or a "forgetting or overlooking of any past offense."

When a person pleads guilty to DUI, he admits to having broken the law and then is required to pay court costs and fines and often agrees to take classes. DUI and other criminal offenders are not seen as having been granted amnesty.

A reform program should be envisioned as a mass guilty plea with serious sanctions attached. It would be to American society's benefit that fines will be paid, those who do not know English will be required to learn it, and 10 or so million people will no longer be living in the shadows.

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Colorado Springs-Based Immigration Scam Shut Down

The Denver Post reports that an immigration-help services company named "Simply Done Immigration" has been shut down after a settlement with the Colorado Attorney General's Office.

The company represented its staff members as being immigration document experts despite having no legal or immigration training. The company also inferred an affiliation with the U.S. government. In addition, it sold forms which can be obtained for free from government immigration offices or from the website www.uscis.gov. Simply Done Immigration will also be forced to pay $20,000 in consumer restitution.

The Attorney General's office deserves kudos for going after this company and others like it whose scams prey on the immigrant community and cause untold damage to people's lives when sometimes irreversible mistakes are made on immigration filings.

For more information, click on the below links:

-the Denver Post article on "Simply Done Immigration"

-the list of forms available for free from the official United States Citizenship and Immigration Services (USCIS) website

-the USCIS initiative to combat the unauthorized practice of law.

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White House Posts Blog Regarding Immigration Reform

Many in the immigration community have wondered when the current Administration was going to focus its attention on Immigration Reform. Immobilized by a flailing economy, war, an oil spill crisis, world wide natural disasters, health care reform, a budget crisis, etc., many have thought that there will be no change to the crippled United States immigration law for at least another two years.

Yesterday, the President reiterated his dedication to immigration reform and met with national leaders in government, faith and community based organization to discuss his intent and continue to press this as a priority, not just for him but for all of the people in the room. President Obama listened to the concerns of those present and requested and received input on how to advance legislative efforts. The President urged serious and civil discussions around the country to help create the space for congressional action.

As an immigration practitioner, we are every day firsthand witnesses to the frustration and inconsistencies of our broken immigration laws; human beings unable (but certainly not unwilling) to change their documentation status and come out of the shadows. The frustration is deepened by what feels and looks like a federal government turning its back and consciously choosing not to act. And as the debate rages on and security remains at risk. A part of any immigration reform debate needs to address the undocumented population and ensure those that are deserving are able to remain and eventually earn Lawful Permanent Resident status while allowing Immigration & Customs Enforcement to focus its energies and resources on those that are a true threat to our national security.


http://www.whitehouse.gov/blog/2011/04/20/working-together-create-21st-century-immigration-system

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Staunch Cold War Ally Faces Deportation from U.S.

General Eugenio Vides Casanova, a former defense minister from El Salvador, was found by a 1983 United States Department of State report to have "acquiesced" in the cover-up to the rape and murder of four Catholic nuns and the assassination of Archbishop Oscar Romero. He has also been found liable for the brutal and systematic torture of the detained Salvadorans during his time in power.

At the same time, Mr. Vides Casanova was a valued cold war ally of the United States who was praised for his iron-fisted approach to the battle with marxist guerillas. He was awarded the Legion of Merit award by President Reagan. He eventually retired to a coastal community in Miami, Florida.

Now, the Department of Homeland Security is seeking to deport this once valued ally for his role in torture and other human rights abuses. An immigration court in Florida is scheduled to hear Mr. Vides Casanova’s removal proceedings this week. Though normally removal proceedings take only a half-day, the immigration court has scheduled Mr. Vides Casanova’s case for a full week. Former U.S. ambassadors are supposed to both testify against Mr. Vides Casanova and in his defense.

This case involves a fascinating intersection between the U.S. history of realpolitik foreign policy in opposing leftists and Latin America and the Department of Homeland Security’s desire to deport a man responsible for severe human rights abuses. It will be interesting to see how it unfolds.

For more on the removal proceedings against General Eugenio Vides Casanova, click on the following links:

-article from the Florida Center for Investigative Reporting;

-article from The Guardian;

-article from The New York Times.

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Gay Immigrant Rights Activists Allege Civil and Human Rights Violations at Immigration & Customs Enforcement Detention Centers

As the current executive administration battles budget issues, economic crises and proves to the anti-immigration reform movement that it is tough on employers for hiring undocumented workers, another, arguably more marginalized group of immigrants comes forward asserting rights to fair treatment under the law. On March 4, 2011 the Obama Administration announced that it will not defend the Defense of Marriage Act. This statement gave same-sex partners across the country hope that they would have the opportunity to petition for their loved ones just like heterosexual United States citizens are allowed to petition for their spouses.

Now, a group of gay immigrants are alleging Human Rights Abuses at already beleaguered Immigration & Customs Enforcement Detention Facilities. The complaints have been filed with the Department of Homeland Security alleging civil and human rights abuses of lesbian, gay, bisexual and transgender immigrants being detained pending removal proceedings. The Heartland Alliance National Immigrant Justice Center wants the agency's Office of Civil Rights and Civil Liberties to investigate the treatment of sexual minorities in DHS custody, and to craft policies to address any violations and oversee their implementation.

http://legaltimes.typepad.com/blt/2011/04/gay-immigrants-allege-human-rights-abuses-in-ice-detention-centers.html

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Major Portions of Harsh Arizona Immigration Bill Remain Blocked

Today, the 9th Circuit Court of Appeals refused to lift a stay that blocks major sections of last year’s tough immigration enforcement bill, passed in Arizona. The law, SB-1070, was set to take effect last July 29, 2010. However, the U.S. Justice Department sued to block the law, arguing that the Arizona law violates the constitution because immigration is a federal issue. The day before the law was set to take effect, a federal judge ordered an injunction blocking the enforcement of many parts of the law. Arizona governor Jan Brewer filed an appeal of the judge’s ruling, which the 9th U.S. Circuit Court of Appeals denied today. You can see the full article here.

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2010 Census Results Could Affect 2012 Presidential Elections

With the Presidential Campaign season quickly descending upon us, candidates may find that a true discussion on immigration reform will be not only advantageous to their election; but required. Results from the 2010 Census are slowly trickling in, and some of the most astonishing numbers indicate a substantial growth in the Latina population. The 2010 Census has revealed that over the past decade the adult Latino population has almost doubled in Nevada, Virginia and North Carolina; but one of the most riveting statistics is the 60 percent or more increase in Indiana and Ohio, historically known as battleground states.

What does this mean for political hopefuls? That it truly is time to focus on Comprehensive Immigration Reform. It means that Conservatives cannot simply ignore the growing problem and that liberals need to truly focus on reform instead of mentioning it in a sound-bite and then glossing over the matter after a successful campaign and election.

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Motions to Reopen from Abroad

The Tenth Circuit Court of Appeals is being urged to reconsider its decision upholding a Board of Immigration Appeals regulation barring foreign nationals from filing motions to reopen from outside the United States. The Tenth Circuit's 2009 decision in Rosillo-Puga v. Holder is contrary to the position of the five other circuit courts to consider the issue. The case of Contreras-Bocanegra v. Holder is currently before the Tenth Circuit and the foreign national and amici curiae in that case are urging the court to grant en banc review of the case and then reverse course and recognize noncitizens' opportunity to seek review of unfavorable decisions from outside the United States.

For legal analysis of the Tenth Circuit's decision in Rosillo-Puga v. Holder, see my comment on the Denver University Law Review Online.

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Utah Governor Signs Four Immigration Measures into Law

Utah Governor Gary Herbert signed into law a package of four bills that will increase immigration enforcement but also implement a guest worker program. One of the bills is similar to that in Arizona by requiring police to check the immigration status of anyone stopped for a felony or serious misdemeanor. The bill does not sweep as broadly as Arizona's but could likewise lead to a landslide of unintended consequences. Another bill creates a guest worker program for illegal immigrants in the state. And the last set of bills allow businesses to recruit Mexican workers and American citizens to sponsor foreign residents who want to work or study in Utah.

With the signing, Governor Herbert urged the federal government to address immigration. Because his signing of the measures upset both anti and pro-immigrant groups, he made it known that his primary goal was to force the federal government to act.

Fortunately, Utah's package of bills is focused on more than enforcement measures by implementing a guest worker program. Nonetheless, the country's broken immigration system will not mend through the passage of piecemeal legislation, state-by-state. Hopefully the federal government will heed Utah's call to action.

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Extensions for Stranded Japanese & Pacific Travelers

Nationals of Japan and other Pacific based countries currently “stranded” in the United States due to the earthquakes and tsunamis in that region may be eligible for a 30 day extension of nonimmigrant or visa waiver program (VWP) status in the United States. On March 11, 2011, the United States Citizenship and Immigration Services (USCIS) announced that individuals in the US affected by the recent events in the Pacific who have expired or expiring status may extend his/her status in one of the following ways:

For Japanese nationals or foreign nationals of certain Pacific countries in VWP status:

• If you are at an airport, when your flight has been cancelled, you may request an extension from the Customs and Border Patrol (CBP); OR
• If you are NOT at an airport, you may request an extension from the local USCIS office.

For Japanese nationals or foreign nationals of certain Pacific countries in a nonimmigrant status:

• You may apply for the 30 day extension at a local USCIS office; AND
• You must bring your passport, I-94 Arrival Departure Record, and evidence that you are stranded in the United States (i.e., cancelled itinerary or tickets from the airline).

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USCIS Launches Plan to Crack Down on Illegitimate Immigration Practitioners

U.S. Citizenship and Immigration Services director Alejandro Mayorkas has asked the U.S. attorney generals to help him in the fight against individuals and businesses portraying themselves as immigration lawyers, despite not being authorized to practice law. These fake lawyers are sometimes known as “notarios,” and can charge extremely high fees and give fraudulent, inaccurate advice to people seeking immigration benefits. The campaign aims to track down and stop these practitioners, in addition to educating immigrants about how to recognize fake lawyers.

Last May, Colorado Attorney General John Suthers filed a complaint against a Colorado Springs-based business for defrauding hundreds of people who needed immigration assistance. The Colorado Springs Non-Profit Corporation, which also operated under the names Immigration Center, U.S. Immigration Center, ImmigrationHelpLine.org and U.S. Government Helpline, sold forms that are otherwise available for free on www.uscis.gov, and frequently sold the wrong forms. Further, employees of these businesses were paid on commission according to how many sales they made, and they falsely advertised themselves as “document specialists” who supposedly had a special, “inside relationship” with U.S. Citizenship and Immigration Services. However, none of these employees had prior government experience and were not authorized to give legal advice. The company was fined $2.5 million dollars for taking advantage of people who went to them for advice.

If you feel that you have been deceived by a fake immigration lawyer, you can make a complaint with the Colorado attorney general’s office on their website, located here: https://www.coloradoattorneygeneral.gov/departments/consumer_protection/file_consumer_complaint




To read more about USCIS’ campaign and the case against the Colorado Springs Non-Profit Corporation, please visit:
http://www.washingtonpost.com/wp-dyn/content/article/2011/03/09/AR2011030903015.html

http://www.walletpop.com/2010/05/18/colorado-immigrant-aid-business-penalized-2-5-million-in-fraud/

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A Welcome Call for Reform of the Federal Immigration Enforcement Programs in the United States

The University of California, Berkeley Law School produced a new report - "Borders, Jails, and Jobsites: An Overview of Federal Immigration Enforcement Programs in the U.S." - that analyzes the difficult policy issues surrounding immigration enforcement. The report focuses mainly on the two administrative agencies primarily responsible for immigration enforcement: Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), both under the umbrella of the Department of Homeland Security (DHS).

"Borders, Jails, and Jobsites" provides a broad overview of border enforcement, immigration enforcement in the interior, workplace enforcement and detention. Within each area, the report makes informed and intelligent recommendations for reform.

Perhaps most concerning are the unintended consequences of immigration enforcement programs in the United States. The root of the problem appears to be the lack of clarity regarding the states' role in implementing and enforcing federal immigration law. For example, in a policy reversal, the Office of Legal Counsel of the U.S. Department of Justice issued a memorandum in 2002 stating that states have "inherent authority" rather than "delegated power" to enforce federal law related to immigration. The memo has caused confusion, as some states - like Arizona - embrace their inherent authority, while others consider the memo flawed and unsupported in law. Until the role of states is clarified by the federal government, the majority of immigration enforcement programs will continue to foster distrust between immigrant communities and local law enforcement. Hopefully federal and local governments will begin to implement some of the recommendations suggested in this recent report.

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Mexican Police Chief to Seek Asylum in U.S.

Last October, Marisol Valles Garcia, a 20-year-old college student from Ciudad Juarez, Chihuahua, Mexico, was hired as police chief of the small border town, Praxedis Guadalupe Guerrero in Chihuahua; a town taken over by drug cartels and corruption. Marisol was studying criminology and was offered the job after two other job candidates stepped down when the town’s mayor and his son were killed. Now, after just five months on the job, Marisol has reportedly fled Praxedis for the United States. It is reported that after Marisol received death threats from a criminal group that wanted to force her to work with them, she fled to the U.S. last week with her husband and son to seek asylum.

Two months ago another Mexican border down was left without a police chief. Police chief and sole officer on the force in Guadalupe, Erika Gandara, was kidnapped. Erika’s fate is still unknown.

To read more on Marisol’s story and her quest for asylum, please visit http://www.msnbc.msn.com/id/41904784/ns/world_news-americas/?GT1=43001

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What Part of Unconstitutional Doesn't Arizona Understand?

The Arizona legislature continues to crank out anti-immigrant bills at a prolific rate. Here is a roundup of some of the latest lowlights with analysis below:

SB 1308 and SB 1309: Proposed as a challenge to the birthright citizenship clause of the 14th Amendment to the U.S. Constitution.

SB 1405: Requiring hospital employees to report anyone who seeks the use of an emergency room and cannot prove that they are in-country legally.

SB 1407: Requires schools to count children who cannot prove they are lawfully present in the country and report to state authorities.

SB 1611: Mandates that those convicted of "aggravated" theft of another's identity, which includes those who take the identity of a fictitious person invented only to obtain employment, serve six months in jail, even if the judge sentences them to probation. SB 1611 also makes it a crime for those unlawfully present to drive in Arizona, which leads to a minimum jail sentence of 30 days. [The fact that these bills would produce a huge spike in tax-payer funded incarceration of non-violent offenders is presumably not a great concern for some corporations who are heavy political donors to those crafting the legislation.].

SB 1611 also requires schools to require proof of citizenship or legal immigration status (purportedly to aid in the counting required in SB 1407). If a child does not produce documents, SB 1611 requires that the school refer the case to local law enforcement.

While there is much to criticize in the details of this bevy of anti-immigrant legislation [trying to check the immigration papers of people being rushed into the emergency room... really?], a general point of concern is the Arizona legislature's apparent indifference for the Constitution of the United States. Those who are trumpeting this legislation as necessary to enforce "the rule of law" do so while thumbing their noses at the foundational document of our legal system.

The 14th Amendment of the Constitution requires that children, even those without immigration status, have access to K-12 public education. Plyler v. Doe, 457 U.S. 202 (1982). The drafters of SB 1407 and SB 1611 are well aware of Plyler, but persist in choosing to propose legislation which has the very thinly veiled goal of keeping undocumented children out of public schools. They can still enroll, but their case will be turned over to local law enforcement when they cannot produce papers. Arizona local law enforcement, would then have reasonable suspicion about the family's immigration status and have to investigate under Arizona law and turn over the family for deportation proceedings. The takeaway is therefore, "Enroll your kids in school as guaranteed by the Constitution and we will use that information to deport you." The purpose of this legislation is to keep undocumented kids out of public schools despite it being well-settled law that the Constitution guarantees these children access to public education.

This should give us pause: Do the Arizona legislators swear to uphold the Constitution before beginning their public service? If so, how do they square that oath and commitment with their proposals for legislation that they know is undoubtedly unconstitutional?

Fact Sheet for SB 1407

Fact Sheet for SB 1611

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Departments Working Together to Ensure Timely Adjudication of Petitions for Immediate Relatives in Removal

The United States Citizenship & Immigration Service (USCIS) and Immigration & Customs Enforcement (ICE); both divisions of the United States Department of Homeland Security (DHS) have issued memoranda indicating a commitment to work together in the adjudication of Immediate Relative petitions for individuals in removal proceedings. USCIS has agreed to adjudicate petitions for individuals who are detained in 30 days, and 45 days for nondetained foreign nationals.

This move represents recognition between the departments that adjudication and completion of cases is an efficient, timely manner requires the participation of both divisions and that communication between the two is paramount to case completion. Since the Legacy Immigration & Naturalization Service was dissolved and the Department of Homeland Security formed there are now three different agencies that have authority over foreign nationals coming into the United States as well as their presence here. While this has served to decrease adjudication times in some instances, it has become more difficult in some instances for individuals in removal proceedings to complete their cases, causing considerable delays. USCIS has jurisdiction over all immigrant petitions, and the Executive Office for Immigration Review (EOIR) cannot adjudicate an adjustment of status application until the petition has been approved. Generally ICE will have the file because they are the enforcement division and therefore communication between ICE and USCIS is key in ensuring adjudication on these petitions.

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USCIS to Issue one Document to be Valid for Both Employment Authorization and Travel Permission

The Untied States Citizenship & Immigration Service (USCIS) announced today in an “Interim Memo for Comment” that it will eventually begin issuing one document to cover both employment authorization and travel permission, rather than an employment authorization card and a paper advance parole document. The comment period closes on February 28, 2011 and the memo is in effect “until further notice”.

The new card will be the current I-766 (Employment Authorization Document (EAD) and will have look like the current employment authorization card, but will have an endorsement indicating that reentry into the United States after international travel is also authorized.

This change in documentary procedures in no way changes the analysis of whether an individual is eligible for advance parole, and is remains extremely important to analyze whether an applicant for adjustment of status can, in fact, travel outside of the United States and be eligible to reenter given their personal immigration history. Hopefully, USCIS will continue to be as careful in adjudicating these applications and not inappropriately grant advance parole to someone who is ineligible.

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New Mexico Mandates Local Police to Inquire About Immigration Status Upon Arrest

The Santa Fe New Mexican reports today that Governor Susana Martinez has directed state police on Monday to start asking about the immigration status of people arrested for crimes. This follows a nation-wide movement toward using local law enforcement officials as lead enforcers of federal immigration law. At first glance, one might think that these laws make perfect sense. After all, what better time to figure out a person's immigration status than after she has been arrested for a crime?

The problem with mandatory directives like the one imposed by Governor Martinez is that it will cause a chilling effect between the local immigrant communities and the police. For instance, if a woman knows that her boyfriend does not have immigration status and they get into a volatile argument, might she be less likely to call the police when that argument starts to cross a line into abuse? Similarly, in some jurisdictions the police have mandatory arrest policies for domestic violence calls. If there has been a fight, many times both parties are arrested and the actual facts are sorted out later after the situation has been calmed. This possibility of a dual arrest could further dissuade domestic violence victims from contacting police. Our law enforcement officers rely on their relationship with the communities they serve in and we should think long and hard before enacting any policy which discourages victims and witnesses from reporting crime to police. As the country marches further and further toward using local law enforcement as the dragnet to round up and deport immigrants, such efforts in the name of the rule of law could actually come at the expense of the effectiveness of our local law enforcement.

To read the story about Governor Martinez ordering New Mexico Police Officers to inquire about immigration status on arrest, click here.

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