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Spring 2003

The Immigrant Rights News Update; a publication of HEATHER L. POOLE, PC, Professional Law Corporation, © 2003-2004.

Spring 2003

Post 9/11 Special Registration Program That Led to Widespread Arrests by INS, Finally Ends

Under the newly created Special Registration program, nonimmigrant men, 16 and over, mainly from Middle Eastern countries, identified as “presenting elevated national security concerns,” were required to register with the INS (now BCIS), pursuant to an expansion of the National Security Entry-Exit Registration System, put in place after the September 11th

The rules applied to temporary visitors such as tourists and business travelers from those nations – but also affected foreign students who already face extra scrutiny under a new foreign-student tracking system in force since January 2003.

Those with pending green cards also arrested

Instead of merely registering, hundreds of foreign nationals found themselves being arrested. The Iranian American Lawyers Association reported that more than 500 people were detained in one day alone. About 200 were housed in the basement of the downtown federal building, deprived of food, medication and blankets. Others were transported to surrounding jails and detention centers. Even worse, many of those arrested had pending green card applications or were married to U.S. citizens or have US citizen relatives, if they had no other underlying immigration status. Immigration advocates and attorneys are still upset about the logic of this program and the senseless detentions of immigrants who tried to comply with the law by reporting their whereabouts, which a terrorist would certainly not do – the supposed aim of the program. Yet law-abiding immigrants were being arrested upon their appearance at the local INS office when trying to comply with the law, even though they have existing permanent residency applications on the books.

The double-edged sword created was that if these immigrants failed to show up, even with pending green cards, they would not obtain their green cards. The American Immigration Lawyers Association has released one of the most compelling statements against this measure, calling it “another false solution to a real problem.”
 
Call-in registration offers us little protection because it targets people based on national origin, race and religion, rather than on intelligence information, and alienates the very communities whose cooperation we need.
 
During the duration of the program, legal attempts to stop the registration program and the mass arrests and civil liberty violations largely failed. A federal judge in Santa Ana, Calif. dismissed a lawsuit seeking to end the registration program, stating that the plaintiffs, who were accusing the Immigration and Naturalization Service of detaining people without notice of charges, a speedy arraignment or bond hearings, “had not met a burden of proof and that the court should not interfere with the duties vested in the immigration agency”, The New York Times reports. According to BCIS Headquarters, willful failure to register will be punishable by deportation and the alien will be removed from the U.S. Failure to register is also punishable by a $1000 fine and imprisonment for up to 6 months. Failure to provide a change of address or other specified information at the time of required registration is punishable by fine of up to $200 and imprisonment for 30 days.
 
Now that the registration program has completed for this round for the 26 designated countries, the BCIS California Service Center is sending RFEs (Requests for Further Evidence) on pending visa petitions for nonimmigrants from these countries, requesting proof of compliance with the Special Registration program. There is no legal guidance or authority issued by Headquarters for such an unprecedented action by the CSC and at least, the Los Angeles District Office is not issuing RFEs until such guidelines are issued.
 
Latest Los Angeles Airport (LAX) Procedures for Immigrant Processing Released
 
Before lawful entry to U.S., immigrants have no right to attorney representation at the port of entry, in this case, the Los Angeles International Airport. The Standard to be met by U.S. government before deciding to refuse admission to an alien is “reasonable belief”. The alien always has the burden of proof at the port of entry in questions of visa fraud and lawful entry issues.
 
Once in the U.S., immigrants have the right to be represented by an attorney. A U.S. government official cannot deport an alien before deciding there is “probable cause” to do so (a higher standard than “reasonable belief”) and the government has the burden of proof in providing why the alien should be excluded from the U.S.
New data is being input into their systems, especially overstays. I-94 information is shipped to the data entry facility at the NSC within 72 hours of the inspection. This information is at least 8 years old so that an overstay in 1994 would today be picked up. Clients should keep all records of extension requests (I-539), receipt notices (I-797) and any other correspondence to support the alien’s legal status for the duration of each stay here. LAX also has a new database system, the FIS III, which contains data on crimes and aliens. The Fingerprinting system is tied up to the FBI system, so they can tell if there is a criminal record on the person.
 
Immigration Non-Lawyer Consultant Practicing Immigration Law Arrested
 
Roberto Lemus, from “Aztec Immigration Services”, formerly “Bell Services”, has been arrested and charged with Grand Theft for immigration consultant work. If you know of anyone that feels they have been defrauded by Mr. Lemus, please contact the Los Angeles District Attorney Consumer Affairs Division at (213) 580-3273.
 
Checkpoints Added to Michigan’s Canadian-US border
 
The Border Patrol has had permanent and roaming checkpoints within 100 miles of the U.S.-Mexican frontier in an attempt to stop waves of illegal immigrants walking north. Mexican citizens are allowed to travel within the first 25 miles of the United States without a visa. Smuggled aliens are arrested and drugs are seized regularly at the checkpoints. For the first time in Michigan, however, federal agents are following the southwest border protocol and are setting up random checkpoints in the section of southeast Michigan that is within 25 miles of the U.S.-Canadian border.
 
At these checkpoints, immigrants will be asked for proof of their status and it is advisable for even US citizens traveling across this border to bring their passport or birth certificate with them as proof of identity. The Detroit News reported that these measures have been a long time coming, as this largely unguarded border in Michigan is the scene of some risky smuggling attempts.
 
Undocumented Aliens Can Be Held Indefinitely, Ashcroft Says
 
Attorney General John Ashcroft has ruled that undocumented
immigrants who have no known links to terrorist groups can be detained indefinitely to address national security concerns. Mr. Ashcroft was ruling in the case of a Haitian immigrant who had won the right to be released on bail while awaiting a decision on his asylum claim.
 
Mr. Ashcroft did not argue that the man was a security threat, but said that his release and that of others like him “would tend to encourage further surges of mass migration from Haiti by sea, with attendant strains on national security and homeland security resources.” Because immigration judges are part of the Justice Department, rulings made by Mr. Ashcroft must serve as the basis for any decisions. It was unclear how widely the policy would be enforced. But outraged advocates for immigrants said it would impose unnecessary hardships on immigrants and asylum seekers who pose no security risk.
 
This policy shift is just one more sign of the Bush administration’s escalating attempts to weaken the rights of immigrants. Ashcroft recently applauded the Third Circuit Court of Appeal’s decision to uphold the closure of deportation hearings to the public, allowing sensitive hearings to be held behind closed doors with no accountability for arbitrary decisions, due to widespread skepticism of immigrants and broad “security interests” rational instituted since Sept 11th.
 

Abused Immigrants Update:

 
Domestic Violence Survivors Win Key Workplace Protection
 
In a precedent-setting decision, a Massachusetts Superior Court recognized that a domestic violence victim may sue her employer if she is fired because of an absence from work to ensure her safety. The case is Apessos v. Memorial Press Group, No. 01-1474-A, 2002 Mass. Super. LEXIS 404 (Mass. Super. Ct. Sep. 30, 2002).
 
Practice Pointer: The 3 vs. 5 year Citizenship Rules for Abused Immigrants
 
Under the Immigration and Nationality Act, a person who obtained their green card through marriage to a U.S. citizen, may apply for citizenship after 3 years in green card status, if that person still resides in “marital union” with their U.S. spouse. However, this is a long time to wait and physically reside with a U.S. citizen spouse if s/he is abusing you.
 
Congress amended the Violence Against Women Act in 2001 to provide a way out for the abused immigrant. Here’s where it gets tricky and unfortunately, arbitrary: Congress created an exception to the “living together in marital union” requirement for the abused spouse, provided that the abused spouse obtained her green card through the Violence Against Women Act Self-Petitioning process. That immigrant would be able to file for citizenship in 3 years, regardless of whether s/he still lived with the abuser.
 
However, if BCIS knew nothing about the abuse until after the green card was granted, i.e., when the immigrant waited to file for protection only after s/he received her conditional green card, odds are she will have to wait for 5 years to be eligible to file for U.S. citizenship, if she leaves her husband after she receives her green card. Under current law, if a couple is married for less than 2 years by the time the initial green card in granted, the green card will be “conditional.” When a green card is conditional, it is usually required that the couple file jointly within a 3 month period two years after the green card is initially approved, to release the condition.
 
The problem for many abused immigrants is that they do not wish to stay in an abusive relationship and thus, Congress created a waiver process, allowing the abused immigrant to file to have the condition removed on the green card both earlier and without his/her spouse’s involvement. Congress unfortunately did not provide the same exception for abused immigrants who filed to release the condition on their green card based on the abuse in the marriage, to be able to leave their husband and not live in marital union for purposes of establishing eligibility for citizenship within 3 years. The INA code is extremely vague about granting this group of immigrants the exception and advocates generally agree that immigrants who filed for waivers have to wait the full 5 years in green card status, if the immigrant leaves the abusive marriage. Advocates hope that some abused immigrants in this situation will challenge the law and BCIS policy to bring forth Congressional attention to amending the regulations to explicitly allow all abused immigrants to not be penalized for leaving their abusers.
 
Practice Pointer: Asylum Interviews for Female Victims of Violence
 
Many clients, particularly survivors of domestic or sexual violence, have an extremely difficult time discussing what they have suffered, even with their attorneys or domestic violence shelter advocates. Some face added cultural barriers to speaking honestly about their experiences, as rape victims in particular are stigmatized and harassed in many countries of the world. Many women cannot speak to a man about the sexual violence they have endured, and an inability to speak about this aspect of their torture may damage their credibility before an asylum interviewer. If your client is a female survivor of sexual or domestic violence who cannot or will not speak to a man about what has happened to her, you may be able to request special consideration from the Immigration Office and have your case assigned to a female agent. If you choose to request a female interviewer, you can include the request in the cover letter and specify that you are doing so; thus, the issue will be on record in a credibility situation.
 

Immigration Soundbites:

 
Dept of Justice Withdraws Rule Finalizing Regulation that would limit Visitor Visa holder’s stay and ability to change to another visa status;
 
Commuter Students from Mexico and Canada Now Subject to Same Reporting Requirements as other Foreign Students
 
U.S. to Fingerprint Most Foreign Visitors under new VISIT system. The Dept of Homeland Security has created a system whereby all visitors arriving with visas at U.S. airports or seaports as of Jan 1, 2004 will have their travel documents scanned, their fingerprints and photos taken and their identification checked against terrorist watch lists. Under the U.S. VISIT system, a visa carrier will be required to provide immigrant and citizenship nationality, country of residence and an address where the visitor will be staying in the United States and their exit from the country will be tracked and logged into the VISIT system.
 
The Social Security Administration (SSA) limiting number of “no-match” letters sent to employers when a name or a Social Security Number (SSN)on a W-2 form does not match SSA records for the employee. This year, thSSA will only send letters to employerabout suspect employees for employerswith more than 10 employees mismatched information or for whom mismatched employees represented ½ of e s with 1 percent of the W-2 forms filed with the SSA.
 
The New York Times reports that the State Dept. Will Open Its Database toPolice Officers (01/31/03) P. A12; Lee, Jennifer 8. The State Dept is planning to open its database of 50 million overseas applications for U.S. visas, including photographs of 20 million applicants, to law enforcement officials nationwide. The computer system link-up proviinformation that includes the applicant’s home address, date of birth, passport number, and names of relatives. The new system will set the precedent of foreign-intelligence sharing with local law enforcement through the Open Source Information System and has been challenged by civil libertarians, fearing that private personal information cannot be des guarded adequately with expansion.

 
BCIS Limits Conditional Green Cards Waivers based on Good Faith Marriage
 
BCIS issued a policy memorandum in April 2003, limiting the scope of those who qualify for a waiver to release the condition on a green card obtained through marriage based on the “good faith marriage” ground. A departure from established practice at many BCIS offices, BCIS is now only allowing applicants who are able to provide proof of the marriage’s termination at the time of filing the waiver, to benefit from this ground. Previously, BCIS accepted the waiver applications as long as the divorce was finalized and a judgment/decree issued by the time of the interview or adjudication of the waiver if an interview was not scheduled.

Government Planning Airline Passenger Profiling System
The government is developing an airline passenger profiling system called CAPPS II that will use credit information and secret databases to assess your security risk level each time you fly. These secret databases could include a great deal of personal information, pulled from both commercial and government sources. Not only would CAPPS II invade your privacy, but if there is a mistake in any of the many databases used for the system you may find yourself detained, delayed or even banned from flying. Innocent people have already been stopped and banned from flying because their name appeared on government “no fly” lists. And most have been unable to clear their names once they were swept into the federal bureaucracy. In addition, experts have said that terrorists will inevitably learn how to circumvent the system. Identity thieves could easily sidestep this check by presenting a false driver’s license or passport, undercutting the system’s entire mission. This system will invade your privacy but not make you safe. .
Courtesy of the aclu.org
 
LIFE Legalization Application Deadline is June 4
Posted on AILA InfoNet at Doc. No. 03051246 (May 12, 2003)
LIFE Legalization allows certain undocumented immigrants to obtain permanent residency. To be eligible for this LIFE Act benefit (known as “LIFE Legalization”), an individual must have entered the United States before January 1, 1982 and resided in continuous unlawful status through May 4, 1988, including being physically present in the United States from November 6, 1986 until May 4, 1988. Among other requirements, they must also have filed a written claim for class membership in one of three class action lawsuits arising from the 1986 Legalization, or Amnesty, program for illegal immigrants. The three lawsuits are entitled Catholic Social Services, Inc. (CSS) v. Meese, the League of United Latin American Citizens (LULAC) v. INS, and Zambrano v. INS.
 
Individuals who meet the U.S. residency requirements and who, before October 1, 2000, filed a written claim for class membership in any of the lawsuits, are eligible to apply for adjustment of their legal status under the LIFE Act Legalization provision.
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