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Spring/Summer 2002

The Immigrant Rights News Update; a publication of HEATHER L. POOLE, PC, Professional Law Corporation, © 2002-2004.

Spring/Summer 2002

Notarios Still Swindle Los Angeles Immigrants

In Mexico and Latin America, notarios – notaries public – are highly respected, government-appointed lawyers who command power. In the U.S., they refer to unaccredited immigration consultants who pass on legal advice or hold themselves out as immigration experts and attorneys to unsuspecting immigrants looking for low-cost immigration legal help. Notarios operate often without any professional liability insurance and have repeatedly taken clients’ money without following through on filing cases as promised, only to close up shop months later and disappear from the area with no legal recourse left to their now stranded immigration clients. To avoid being harmed financially and losing lawful immigration status, immigrants who request the assistance and services of those holding themselves out as experts and attorneys should verify that these service providers really are who they say they are.

Immigrants can verify whether a person claiming to be an EOIR (Executive Office of Immigration Review), accredited immigration representative or a licensed immigration attorney is truly who they purport to be before any money changes hands and any fee agreements are signed. To discover a person’s accredited immigration representative status (for those who are not immigration attorneys), the EOIR publishes a current “Recognition and Accreditation Roster” on its website at: www.usdoj.gov/eoir/statspub/raroster.htm. This list is updated quarterly and contains alphabetical listings of both recognized organizations and accredited individuals.

To verify whether a person is a licensed attorney, ask to see his/her bar card, a white card (in CA) indicating that the person is in active status with the State Bar. The State Bar (in CA, www.calbar.org) also lists active and licensed attorneys by name and indicates whether the attorney has been disciplined for any unethical conduct. Low cost immigration services are available through the assistance of trained, licensed immigration attorneys at the Los Angeles Legal Aid Society and the LA County Bar Association’s Immigration Assistance Project. In addition, a few private immigration attorneys, such as our office, offer discounted or sliding scale services – based on income, and even more often payment plans to make quality immigration help affordable.

Congress passes Sweeping Border Security and Visa Entry Reforms

The Enhanced Border Security and Visa Entry Reform Act of 2001 (H.R. 3525),was approved in April 2002 by the Senate, includes reforms that deter terrorism by developing layers of protection both outside and within the United States. In a recent summary of the Act, the American Immigration Lawyers Association noted the beneficial aspects of the bill including: (1) Helping provide people on the front line with the training, staff and funding they need to do the job. The bill authorizes increased staffing and funding at the Immigration and Naturalization Service (INS) and the State Department. It also provides necessary training for personnel at both agencies, (2) providing timely, accurate information to the people who decide who can enter our country. The bill mandates the sharing of intelligence and law enforcement data with the INS and State Department on a real-time basis so the agencies can identify high-risk individuals who seek to enter our country; and (3) Enhancing our security by working with Canada and Mexico to create a North American Security Perimeter. A North American Security Perimeter would bolster security through law enforcement coordination and intelligence sharing, reducing the chance that someone wishing to do us harm would travel to a neighboring country and then cross by land into the U.S.

The USA Patriot Act

Although the USA Patriot Act has some beneficial provisions for WTC victims and extensions of visas for those whose immigration cases were affected by the terrorist acts, with the signing of the “Patriot Act”, the federal government has given itself unprecedented new powers to detain and remove immigrants. The bill has many troubling provisions including empowering the U.S. Attorney General to detain – indefinitely in some cases – any non-citizen (documented or undocumented) suspected of being a terrorist based on vague, non-specific predictions of threats to national security. The detained person can be held up to seven days without any charges being filed. Even when eventually charged, these charges need not have anything to do with terrorism; they can be minor visa violations of the sort that would not previously have resulted in detention at ll.

In practice, the U.S. has detained over 1,000 non-citizens since September 11th on mere suspicion, without any charges being filed and with little information released, if at all, to the identity of those being held, much to the horror of family members trying to find those taken in vague suspicion-based raids. Some of these detainees have been mistreated, held without being able to communicate with any attorney or the outside world, and served diets inappropriate to their religious and cultural needs. Immigrants from Muslim countries, in particular, have faced a heightened risk of detention and abuse.

The Act also authorizes the Attorney General and the Secretary of State to designate domestic groups as “terrorist organizations” and to deport any non-citizen who belongs to one of them. Thus, mere membership or financial support of activist groups, particularly those that engage in direct action or minor acts of vandalism (such as posting political posters on city telephone poles), could subject a non-citizen to deportation. Even worse, non-citizens can be detained or deported for providing assistance to groups that are not designated as “terrorist organizations” at all, as long as the group’s activities satisfy a broad definition of terrorism that covers virtually any violent activity. It then falls on the non-citizen to prove that his or her assistance was not intended to further terrorism. The American Civil Liberties Union cites such groups as the World Trade Organization protestors, the Vieques protestors, and even People for the Ethical Treatment of Animals (PETA) as meeting this broad definition, on the basis of the groups’ minor acts of violence or vandalism. Non-citizens who pay membership dues or take part in demonstrations sponsored by groups that engage in acts not sanctioned by the government potentially risk detention and deportation. By sweeping so broadly, the new law’s definition of terrorism thus injures the most basic rights of immigrants, including freedoms of speech and assembly.   Source: NGLTF, www.ngltf.org

Limited version of 245i Passed by House but Senate stalling

If reinstated, Section 245(i) of the Immigration and Nationality Act would allow thousands of immigrants who are out of lawful immigrant status and are thus, residing in the U.S. illegally, a chance to obtain a green card. If Section 245(i) is exclusively for people who are already legally qualified for immigrant visas, based on a close family relationship or an offer of employment from a U.S. employer.

This provision merely addresses where these individuals can pick up their visas, once they become available. By paying an additional $1,000 over the standard application fees, immigrants can opt to retrieve these visas here in the U.S., instead of being required to do so in a U.S. consulate abroad. Section 245(i) is needed. Current law imposes bars to reentry for immigrants who have had visa status violations while in the United States. Therefore, some individuals who are legally qualified for immigrant visas but are required to retrieve these visas in U.S. consulates abroad will find themselves unable to re-enter the U.S. for a period of 3 or 10 years once they leave to pick up their visas. In recent news, Senator Tom Daschle introduced HB 2493, the Uniting Families Act of 2002, in early May 2002. This bill is aimed at extending the filing deadline for the special adjustment of status provisions of INA §245(i) to April 30, 2003.

INS Says No to Part-Time Canadian and Mexican Students

Canadian and Mexican students will no longer be allowed to enroll parttime in U.S. colleges under a government policy change that has taken schools and students by surprise” CNN reported on May 29, 2002. Under federal law, immigrants coming to the U.S. to study must be enrolled in 12 units or a full course load but for years, border patrol agents along the Canadian borders have made exceptions for part-time students. However, “since 9-11, there’s been a lot more stress on following the letter of the law,” according to Francis Holmes the Buffalo INS office’s district director.

Students already enrolled in courses that began before May 22 will be allowed to complete the summer session, Holmes said. But they will have to stop at INS offices to check in. The INS said it is working with Congress to allow an exemption for part-time commuter students residing in border countries.

New Security Checks Slow Processing of All Immigration Cases at INS’ Vermont Service Center

The Vermont Service Center of the Immigration and Naturalization Service (INS) indicated to the American Immigration Lawyers Association members that all cases must now undergo a security check, even those cases that have gone through processing and are at the approval stage. As of April, there were approximately 40,000 cases that required the security clearance before a final decision could be rendered. This will have a substantial impact on adjudication, probably resulting in at least an additional month in sending out approval notices. The VSC indicated that marriage immigrant visa cases are likely to be delayed the most as will marriage fraud cases, which are already backlogged.

These new added security checks are part of a zero tolerance policy that the INS has begun to institute at the Vermont Service Center. This policy holds that if people are out of status, adjudicators will not be exercising discretion to consider the status violation de minimis and approve the benefit being sought. This policy is in response to the added pressure put on the Bush administration, Congress, and the INS to ensure that the present state of the law is being followed precisely as a result of September 11th.

ASYLUM: Unaccompanied Minor Able to File for Asylum after 1-year Deadline

In March 2002, the Board of Immigration Appeals, which reviews denials for petitions for Asylum, among other cases, granted a 15 year old boy (“respondent”) who arrived from China unaccompanied by an adult, to file for asylum despite being in the U.S. for over a year when he first attempted to file. Meeting this one year filing deadline is crucial as under current immigration law, an asylum seeker must file for asylum within one year of entry into the U.S. The only exception to this rule is when an asylum seeker can show “extraordinary circumstances” in his or her inability to file within the first year period. One of the “extraordinary circumstances” listed in the regulations interpreting the rule is “legal disability.”

The Board, in this case, ruled that the respondent, under age and unaccompanied when he entered the U.S., had proven his legal disability and thus, his inability to file within the 1 year deadline was deemed “extraordinary.” The BIA held that the circumstances were also extraordinary since the respondent did not intentionally create the circumstances through his own action or inaction, and that the circumstances were directly related to his failure to meet the deadline.

Tourists from Argentina lose Visa Waiver Status

Argentine nationals who wish to travel to the U.S. must obtain a visitor’s visa from a U.S. consulate or embassy abroad prior to their arrival in the U.S. as of February 21, 2002. Previous law allowed Argentineans to enter the U.S. with a visa waiver stamp in their passport and to avoid the visa paperwork and waiting period for the approval. Argentina recently lost its status as a participant in the Visa Waiver Program which allows nationals from designated countries to apply for admission to the U.S. for up to 90 days as visitors without first obtaining a nonimmigrant visa (“visitor’s visa”).

Argentina was taken off the VWP list due to an increase of Argentine nationals attempting to use the program to live and work illegally in the U.S. and given the economic crisis in Argentina at present time, which the U.S. DOJ and the State Department believes has added to an increase of visa fraud in the U.S.

Targeting Poor Working Conditions for Immigrants;Source: www.sweatshopwatch.org

Anti-sweatshop advocates and workers launched a national boycott against Forever 2 l, a clothing manufacturer last fall — after workers had spent months attempting to resolve their grievances against Forever 21 through negotiation. Forever 21 rejected the workers’ demands that they be paid back wages and that Forever 21 ensure that the factories used to sew its clothing abide by labor laws. After Forever 21 refused to address their concerns, the workers filed a federal complaint, now up on appeal, with the help of the Asian Pacific  American Legal Center.

As alleged in that complaint, the 19 workers sewed, trimmed, and pressed Forever 21 clothing in sweatshop conditions, and were not paid the minimum wage and/or overtime due them under state and federal law. Factories which produced Forever 21 clothing were infested with rats and cockroaches, poorly ventilated, had blocked fire exits, and refused to provide rest breaks to workers, as also alleged. The Garment Worker Center, Sweatshop Watch, and the Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA) supported the workers in speaking out against these sweatshop practices.

On March 6, 2002, Forever 21 and its president Do Wong Chang sued anti-sweatshop advocates and 19 individual garment workers for libel, slander and other torts. This libel lawsuit arises from the workers’ and advocates’ truthful claims that Forever 21 clothing is manufactured in sweatshops and that Forever 21 should bear responsibility for the conditions of the workers who sew its clothing. The ACLU maintains that Forever 21′s lawsuit is a classic SLAPP–a bogus lawsuit brought by a well-financed entity to silence its critics. The purpose of a SLAPP is to chill free speech, by taking energy and resources away from grassroots advocacy. California’s anti-SLAPP law allows for such meritless lawsuits to be dismissed at an early stage.

In an interesting turn of events, Forever 21 dismissed the 19 individual garment workers from the lawsuit on April 5, 2002. Forever 21 nevertheless intends to press on with its SLAPP against anti-sweatshop advocates, in a transparent effort to chill their free speech. If you would like to join sweatshop watch in its protests, access www.sweatshop.org for more information and email sweatinfo@sweatshopwatch.org for a listing of upcoming protests.

Extension of Temporary Protected Status Granted for Eligible Hondurans and Nicaraguans

An extension of Temporary Protected Status (TPS), now effective until July 5, 2003, provides certain Nicaraguan and Honduran citizens currently in the U.S. permission to stay in the U.S over the next 12 months, as return to their country is either unsafe or unfeasible at the present time due to the economic and severe environmental damage caused by Hurricane Mitch.

Abused Immigrants Update:  New VAWA Liaison for LA District INS Office Appointed to adjudicate all

Violence Against Women Act-based green card interviews as of June 1, 2002. The Los Angeles District Office of INS has not yet released the name of the new adjudicating officer. Officer Maria Ballantyne, the former VAWA Liaison, was recently promoted and transferred to the San Bernardino INS Office.

How Service Providers Can Provide Cultural Competent Advocacy; By Denice Labertew, Director; Los Angeles Commission on Assaults Against Women – San Gabriel Valley Center; Office: (626) 585-9166; Hotline: (626) 793-3385

As VAWA makes it possible for more battered immigrants to come forward and seek help, it is important for advocates and counselors to be sensitive to their needs when providing support services.

Training for Cultural Competence

One of the first steps in culturally competent service provision is to examine some stereotypes that you or your agency may hold regarding immigrants. When training staff and volunteers it is important to address these myths, so as to minimize the assumptions made of immigrant clients.

Counseling and Advocacy

When counseling, or advocating on behalf of battered immigrants it is important to remember that violence in the family is not the norm in any culture. Avoid blaming their belief systems for the violence in the relationships they are in. It is difficult for anyone to leave a violent relationship, especially an immigrant woman who may have little experience with systems put in place to help her. Recognize that your client may be facing cultural conflicts in her decision whether or not to leave her batterer.

In the U.S. there is an assumption that women should be “independent”. However, our “independence” may immobilize an immigrant woman, not familiar with maneuvering through our system.

Providing Culturally Appropriate Services

Your agency’s ability to provide culturally appropriate services may be the one thing that helps your client begin her healing process. Consider adapting the following into your plan to best serve battered immigrant women.

1) Attempt to hire and recruit staff and volunteers that reflect the immigrant populations you work with. Know what populations exist in the areas you serve, and who the other service providers are.

2) Conduct ongoing training with staff and volunteers on new development in immigration (i.e. trends, laws). Invite guest speakers who can provide current, accurate and sensitive information.

3) When working with a client, never require her to disclose her immigration status. Often it is not a requirement in providing her effective service. Once trust is established she will likely tell you, and it may best suit her needs to keep it to herself.

4) If you feel that it is important to know her immigration status to provide effective service, remember that if you have counselor-client privilege, it attaches to immigration status disclosed to you in the context of counseling. Let her know it will remain confidential until she releases it.

5) Be careful not to identify her relationship as “domestic violence” unless she does. She may not be familiar with the term. Use the words that she does, to help her identify her own situation, and how, and if, she wants to change it.

6) Be sure to emphasize the action (“battering”, “abuse”) as what’s hurting her, and stay away from labeling her abusive partner as “bad” or “a batterer”. She may resist your help if she thinks her batterer will go to jail.

Statistically over 55% of immigrants entering this country (INS, 2001) are women, and more that 50% (Peachey, Ruth, 1988) of women in the United States are battered at least once in their lives. These overwhelming statistics require us to look more closely at how we can provide the best services possible to support these women as they begin their new lives here in the United States.

Family Reunification Act Could Stop Mandatory Detention and Deportation for Minor Crimes

The “Family Reunification Act” was introduced in April in the House to address the injustice of mandatory detention and deportation of legal permanent residents convicted of minor crimes. The bill would return to immigration judges the power to grant bail to immigrant detainees when appropriate and waive the mandatory deportation now required by law.

This legislation is in response to 1996 laws that had nothing to do with terrorism, but was instead directed at long-term lawful residents. These laws denied the right for immigrants fundamental due process rights afforded under the U.S. Constitution including be denied their day to be heard in court, given mandatory detention without bail, and forced those who committed a crime under one set of terms of punishment to be subject to new and harsher terms. The American Civil Liberties Union has more at: www aclu org/action/immigration.

President’s call for creation of national security agency to oversee INS flawed

The new homeland security agency that was proposed recently by the Bush administration has the primary goal of enforcement and security. As a result, it is unlikely that INS, which currently focuses on adjudicating visa petitions as well as border protection, will be able to properly function with regard to adjudications.

An enforcement mentality often inappropriately finds itself reflected in adjudication decisions. Even more troubling is the expedited removal authority, which grants immigration inspectors unfettered authority to deny someone entrance into the U.S. with no right of legal representation. Often individuals do not even understand what has happened to them once expedited removal authority is invoked. The American Immigration Lawyers Association aptly notes that many Americans are “troubled by the notion that the admission to the U.S. of their loved ones would be viewed only through the lens of security and enforcement, thereby equating immigration with terrorism.”

Terrorism and Temporary Visa Holders: Know your Rights !

The terrorism that occurred on September 11th has prompted the enhanced enforcement of the general prohibition of any immigrant in the U.S. on a  nonimmigrant visa from possessing and/or transferring firearms and ammunition. Waivers are available but limited. The Interim Rule was published by the Bureau of Alcohol, Tobacco and Firearms (AFT) and is effective as of February 19, 2002. Even more serious is a recent ruling by the Board of Immigration Appeals, holding that possession of a firearm by a felon in violation of California Penal Code 12021(a)(1) is an “aggravated felony” under the federal Immigration and Nationality Act (INA). A conviction of an aggravated felony under the INA is a ground for deportation.

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