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Winter 2003

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

Winter 2003

Applicants for the Green Card Lottery Now Restricted to Internet Filing

In a rule effective August 18, 2003, the U.S. State Department changed the manner in which immigrants may petition for the opportunity to participate in the Diversity Visa Program from its system allowing for entries to be mailed in, to an entirely electronic system that requires all applicants apply for the lottery over the Internet.  The State Department claims the new electronic filing system will make the process less prone to fraud and will improve efficiency in the diversity visa petition process, among other reasons.   Advocates oppose the measure, among other reasons, as it excludes those immigrants who cannot afford internet access or do not have access to a computer, from participating in the program. 

Immigrants with Sex Offense History Now Targeted for Detention Without Bond and Removal

ICE’s Detention and Removal Division of the Department of Homeland Security has been prioritizing for removal those immigrants with a criminal record listing a sex offense(s). Foreign nationals who have been convicted of sex offenses, served their sentences, but have subsequently not been removed from the country will now be subject to arrest and removal. Upon apprehension, these individuals will be held without bond. To help track down these immigrants, ICE has posted a “Most Wanted” List on its website at  http://www.bice.immigration.gov, enabling the public to see photographs of wanted individuals and to call in tips. ICE has created a toll free tip line, that is staffed seven days a week, 24 hours per day, to receive information from the public.

ICE will also be partnering with governors around the country to help state and local prisons identify immigrant inmates at prisons who are subject to removal from the country upon completion of their sentences.

Under federal immigration law, any immigrant convicted of a criminal sexual act under state or federal law involving a minor may be automatically deported upon arrest, regardless of whether the conviction is for a misdemeanor or felony.  Such immigrants face a life-time bar of re-entry; they can never lawfully re-enter the U.S. upon removal.

Abused Immigrants Update:

U Visa Interim Relief and Eventual Issuance Moves to VAWA unit at the Vermont Service Center

With the help of Senator Leahy (Vermont), BCIS has agreed to do move both interim relief and adjudication of U visas to the Violence Against Women Act (VAWA) Unit at the Vermont Service Center.  Leahy addressed the Senate judiciary’s sub committee on Crime, Corrections, and Victims’ Rights, stating, “The U visa will be available to immigrants who were the victims of certain listed crimes, most of which are gender-related. To receive a U visa, aliens must show that they have been helpful, are being helpful, or are likely to be helpful to law enforcement. Unfortunately, the processing of the U visas has been disorderly at best. First, although the visa took effect upon enactment of the law, implementing regulations have still not been issued. Second, adjudications of U visa petitions have not been centralized, unlike petitions for T visas or immigration relief under the Violence Against Women Act”, until this victory. 

SSA clarifies Social Security Card Attainment Procedure

There are three types of Social Security Cards that SSA issues depending on an individual’s citizen or non-citizen status and whether or not a non-citizen is authorized by the Department of Homeland Security (DHS) to work in the United States.

1. The first type of card shows the individual’s name and Social Security number only. This is the card most people have and reflects the fact that the holder can work in the U.S. without restriction. The card is issued to:

– U.S. citizens, or
– Non-citizens who are lawfully admitted to the U.S. for permanent residence, or who have permission from the Department of Homeland Security (DHS) record to work permanently in the U.S., such as refugees, asylees and
citizens of Compact of Free Association countries.

2. The second type of card bears, in addition to the individual’s name and Social Security number, the legend, “NOT VALID FOR EMPLOYMENT”. This card is issued to non-citizens who:

– are receiving a federally-funded benefit; or
– are legally in the U.S. and don’t have DHS permission to work but, are subject to a state or local law which requires him or her to provide a SSN to get general assistance benefits or a State driver’s license for which all other requirements have been met.

3. The third type of card bears, in addition to the individual’s name and Social Security number, the legend, “VALID FOR WORK ONLY WITH INS AUTHORIZATION.” The SSA issues this card to people who have DHS permission to work temporarily in the U.S.

If you’re a noncitizen, SSA must verify your documents with DHS before SSA issue a SSN card. SSA will issue the card within two days of receiving verification from DHS. Most of the time, SSA can quickly verify an immigrant’s documents online with DHS. If DHS can’t verify the immigrant’s documents online, another check will be automatically conducted within 24 hours.  If the immigrant’s documents cannot be verified by this second search, the SSA will conduct another inquiry in 10 days.  However, it may take DHS several weeks or up to three months to respond to Social Security’s request and there is no way to expedite the request within SSHS.

How to Pay Taxes without a Social Security Number

Many immigrants who are unlawfully employed but would like to pay U.S. taxes so that it is not “held against” them at a later point when they could qualify and apply for U.S. legal permanent residency, should obtain a federal Tax I.D. number (“ITIN”) instead of using a false social security number for filing taxes.

To obtain an ITIN, the immigrant must submit a completed W7 form, which may be obtained from: http://www.irs.gov/pubs/irs-pdf/fw7.pdf.

Notarized supporting copies of documents (such as a birth certificate and passport) must be submitted with the completed W7 form, by visiting a local tax office or through the mail.    

CLEAR Act Introduced Sends Mandate to Local Police: Enforce civil immigration violations  or lose funding

The sweeping statements by Attorney General Ashcroft earlier in the year demanding local law enforcement enforce violations of federal immigration law involving criminal offenses, has already garnered the opposition of many police departments due to the concern that the communities they serve will no longer trust law enforcement and come forward or aid in investigations of criminal activities in their neighborhoods.  As Los Angeles (CA) Police Department, Sgt. John Pasquariello stated in an April 2002 LA Times article, “Because of our immigrant population here and our diverse communities, we don’t want to alienate anybody, or give anybody fear…That’s just not our policy.  Hasn’t been for twenty years.”

The CLEAR Act would exacerbate the current climate of mistrust that’s arisen as a result of Ashcroft’s statements.  The bill, which was introduced in July 2003, legislates the legal authority of police to enforce federal civil immigration laws (currently state and local police may only enforce criminal immigration laws, except in very specific circumstances).  If a police department refuses to enforce immigration laws, the bill will allow Congress to strip the department of certain federal funds.  The bill dangerously invades civil liberties of immigrants, further encouraging police participation by awarding them assets seized from undocumented immigrants, permitting them to seek funds from the federal government for failure to pick up undocumented immigrants, and granting them limited immunity from lawsuits. 

Anticipating this, the bill grants civil immunity from lawsuits for officers who enforce immigration laws.  This would set the U.S. civil rights movement back decades, and introduces a slippery slope in the quest to eradicate racial profiling from U.S. law enforcement.   

The bill goes several steps further by mandating the entry of civil immigration information into the National Crime Information Center (NCIC) database (a database of wanted persons maintained by the FBI for local law enforcement use).  The bill also increases penalties for immigration status violations.  Finally, the bill makes visa applicants foot the bill, diverting 33% of their processing fees to pay for local police enforcement of immigration laws. 

The CLEAR Act Forgets An Important Fact: You Can’t Tell By Looking
Who Is Legally Here and Who Isn’t

There are nearly eleven million naturalized U.S. citizens, and more than twenty-five million native-born Americans of Latin American and Asian descent.  In this free nation we are not required to carry “papers” to prove our citizenship status,  and few of us do.  If enacted, the CLEAR Act would encourage race- and ethnicity-based profiling.  Because police are ill-equipped to determine who has violated a civil immigration law (due to the administrative nature of the violations), some will inevitably stop and question people of certain ethnic backgrounds, who speak certain languages, or who have accents.

The CLEAR Act jeopardizes public safety, undermines local police roles in enhancing national security and federal law enforcement priorities, and clearly piles more onto state and local police officer’s already full platters. National Immigration Project Contributed to this article.

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