By Danielle E. Huntley, Esq.

President Obama and Governor Romney addressed immigration in a debate setting for the first time Tuesday night. The transcript of their remarks can be found at ABC News Univision , and further coverage and commentary can be found from the New York Times, Washington Post, ImmigrationProf Blog, Colorlines, Greg Siskind, and the Huffington Post.

The National Journal reports that of all the topics hitting twitter during the debate immigration had the largest response. This is not surprising given the lack of attention the issue has gotten in the current election cycle. However, I hardly think this is surprising due to the rather sad state of the U.S. economy.

At any rate, I didn’t find anything either candidate said that surprising or compelling. Both began with the oft used “we are a nation of immigrants” and touted their desire to streamline the system, secure the border, and fix illegal immigration.

I would be impressed if either candidate presented a vision for an immigration system that is compatible with today’s global reality.

Missing from the immigration conversation is that the US is bleeding entrepreneurs due to the byzantine labyrinthine immigration system. Missing was attention paid to legal immigrants who have spent thousands of dollars on filing fees, legal fees and played the immigration waiting game for years in order to come here legally. Missing was acknowledgement that Americans do not have a desire to live in a society where we are constantly asked for our “papers.” Anyone who thinks this burden would not fall disproportionately on Latinos and other minority groups are kidding themselves – perpetual paper showing is not a hallmark of a free society. The headaches this mentality causes is on display in Georgia where residents in need of professional licenses are experiencing massive delays in renewing and obtaining new licenses due to new proof of legal presence in the U.S. requirements.

Victor Johnson at NAFSA sums it up well:

The truth is, today’s world of global mobility bears little resemblance to where we were generations ago when the basic structure of U.S. immigration law was created. We need a new, sustainable national policy now. NAFSA supports comprehensive immigration reform that is based on facts, fairness, and a shared future. True comprehensive reform must address the three pillars of border security and enforcement, broad visa reform, and resolution of undocumented persons.

I hope whoever is elected in November is able to move beyond talking points and craft a practical and just solution.

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By: Danielle E. Huntley, Esq.

As I said in my last post on discretion and DREAMers, our current immigration system is unstable and flawed because it is wholly dependent on the whims of whoever is in charge of the executive branch. Mitt Romney’s latest statements that, if elected, he would end the Deferred Action for Childhood Arrivals (DACA) program illustrates this point perfectly.

Romney stated first in the Denver Post:

“The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I’m not going to take something that they’ve purchased,” Romney said. “Before those visas have expired we will have the full immigration reform plan that I’ve proposed.”

His campaign then clarified his statements following a request by the Boston Globe:

Responding to a Globe request to clarify Romney’s statement to the Denver Post, Romney’s campaign said he would honor deportation exemptions issued by the Obama administration before his inauguration but would not grant new ones after taking office.

The DACA program rests not in a statutory or even a regulatory framework it exists with the stroke of an executive pen and can die by the same. Coverage of Romney’s remarks can be found here, here, here and here.

The discretion problem is further illustrated by three different illegal immigrants in the news: Jose Antonio Vargas, Praq Rado and Qing Xiong Liu. Mr. Vargas, a Pulitzer Prize-winning journalist turned undocumented immigrant activist, was arrested in Minnesota for driving without a valid license.  ICE declined to detain him or initiate proceedings against him. Mr. Rado was arrested by ICE on a train en route to the East Hampton Film Festival for a screening of a short film about his experience of coming to America. He was apparently ordered removed in 2007. Mr. Liu, a Brooklyn father of two small children, was on a bus to Indianapolis in search of work when his ID was checked by ICE who had pulled over the bus Mr. Liu was riding in for speeding. ICE detained him in an Ohio facility because he had not complied with a prior order of removal. Mr. Liu was recently released from custody and has been reunited with his family in Brooklyn.

Assuming that all three of these men have no criminal records or other mitigating factors against them, their disparate treatment is a result of which particular bureaucrat reviews their case. It creates a system that does not uphold the rule of law and is unfair to the immigrants, legal and otherwise, who interact with it.

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By: Danielle Huntley, Esq.

On September 14, 2012 the Ninth Circuit decided a case called U.S. v. Leal-Del Carmen in which the government (the prosecution) deported a witness who could provide exculpatory evidence for criminal defendant Jonathan Leal-Del Carmen. Exculpatory evidence is evidence that tends to clear the defendant from alleged fault or guilt. It is a very big deal for the government to withhold or block access to this type of evidence.

The Ninth Circuit was less than impressed with the government’s actions. Chief Judge Kozinski, writing for the court, held that the government violated the defendant’s constitutional rights when it deported a witness who could have helped exonerate him.

Here’s what happened in the case.

On March 25, 2010 border patrol agents found 12 illegal immigrants hiding in the brush in Smith Canyon an unfenced area along the United States-Mexico border. They arrested the defendant and another man later that same day on suspicion of alien smuggling.  The border patrol agents questioned at least four of the illegal immigrants – three identified the defendant as a lead smuggler the fourth, Ana Maria Garcia-Garcia said three times that the defendant was not a leader. That’s your exculpatory evidence. The defendant could only be found guilty if the jury believed he was leading the group and her testimony would suggest the opposite. Border patrol recorded the four interviews on tape and then deported Garcia-Garcia and the eight other illegal immigrants they had picked up.

Chief Judge Kozinski in a lengthy footnote (sometimes the best part of a judicial opinion) calls into question the government’s story about what happened when Garcia-Garcia and the other illegal immigrants were interviewed. I am going to quote from it at length, because I think it’s interesting and Chief Judge Kozinski points out other potential shenanigans:

FN3 “It’s not clear from the record whether border agents interviewed the eight other aliens in the group. At a motion hearing, [the defendant’s] attorney asked the government to produce any statements taken from those witnesses: “I can’t tell whether there was actually a statement taken, even if it was unrecorded, for the other eight material witnesses…. I have no statements from these eight individuals at all.” The Assistant United States Attorney represented that he was not aware of any statements but would turn them over if they could be found. Defense counsel apparently never received any statements, because in his jury summation he argued, “And for the nine other witnesses we have no idea because nobody bothered to question them, or ask them or see what they knew.”

We find it suspicious that the government would interview some of the witnesses but not the others. It’s also curious that the testimony of the single exculpatory witness happened to be included on the tape with the inculpatory witnesses. The government argued before the district court that a border agent made the video of Garcia–Garcia’s interview because he believed her testimony wasn’t exculpatory and wanted to show he wasn’t “hiding anything.” But the agent couldn’t have known what Garcia–Garcia would say before she said it. Either the agent made videos of all the witnesses but preserved only some, or he first interviewed them without a video recorder and then replicated some of the interviews on tape. Either alternative leaves us skeptical that the government did not question the eight other aliens it apprehended.

The Assistant United States Attorney disavowed that there were audio or video recordings of the eight others, saying he ”inquired about that specific point,” but he produced no sworn statement to that effect from any of the agents involved. Nor does the record disclose any evidence as to notes the agents may have taken in connection with the witness interviews. It’s possible that the agents made such notes but did not produce them because they did not believe them to be exculpatory.

The defendant had not been arraigned and had no attorney when Garcia-Garcia was deported, meaning his attorney never had an opportunity to interview her. Defense counsel was forced to submit multiple discovery requests to force the government to turn over the video recordings of the interview – which the court took issue with.

You may be thinking, well they got to play the video of the testimony at trial so not that troubling – wrong, the district court denied use of the video at trial. The Ninth Circuit stated that the district court abused its discretion by blocking the video or any mention of the missing witness.

The Ninth Circuit further held that the video recording should be admissible because the government engaged in conduct (deportation) designed to prevent Garcia-Garcia from testifying. Furthermore, the district court should have given the jury a missing-witness instruction which would tell the jury that Garcia-Garcia existed; they should presume that she would testify unfavorably against the government, and that the government prevented her from testifying.

The court had no patience for the government’s argument that Garcia-Garcia was not in its control:

The government quibbles…that Garcia–Garcia is not “peculiarly” within its power, given that it has no knowledge of where she is in Mexico and therefore has no better chance of finding her than [the defendant] does. But it’s the government’s fault that no one knows where she is. The government removed Garcia–Garcia from the country and thus put her beyond the reach of the court and defense counsel. It also failed to obtain and keep her contact information, which would at least have made it possible to seek her voluntary return.

Because Garcia–Garcia is an alien lacking a lawful immigration status, the federal government had exclusive authority to parole her into the country to testify. For the government to say that it isn’t responsible for her absence because it no longer knows where to find her comes close to the classic definition of chutzpah. (internal citations omitted)

It sounds like chutzpah to me.

Criminal prosecution is a powerful tool of the state and it is deeply troubling when it abuses that power through getting rid of unfavorable witnesses.

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By: Danielle Huntley, Esq.

The most frequent questions I get asked when a new person finds out I am an immigration lawyer is “so what do you think we should do about illegal immigration, why can’t we just send them home?” The second most frequent question I get asked is what I think of President Obama’s record number of removals. He has removed so many illegal aliens he is sometimes colloquially referred to as the “deporter-in-chief.” My follow-up question to both inquiries is to ask what they think the removal process looks like. I hear variations on this theme: “the illegal alien gets picked up by Immigration and put on a plane back to their home country.”

This prompts me to begin a series of posts on removal proceedings and how the process actually works.

Today, I will start with grounds for removal from the United States. An alien is deemed removable under six broad categories [8 U.S.C. 1227(a)(1)-(6) – I’m including the statutory cite because it drives me crazy when they are not included in a blog entry]. The six categories are:

1. Aliens who were not admissible to the U.S. at the time they entered the U.S., when they applied for the green card, or have violated their status in some other way. Included in this category are aliens who do not leave after their visa has expired, and aliens who enter the country illegally.
2. Aliens convicted of certain criminal offenses;
3. Aliens who fail to register or use false documents;
4. Aliens who trigger certain national security issues;
5. Aliens who have become public charges, and cannot show that the cause of becoming a public charge arose after entering the U.S.; and,
6. Aliens who unlawfully vote.

These categories apply to all aliens in the U.S. from those present in the U.S. with a tourist visa to legal permanent residents who hold the green card.

In my next post in this series I will discuss how an alien who falls into one of the six categories above comes to the attention of the appropriate immigration authorities.

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By: Danielle Huntley, Esq.

I have heard many times from folks on the left and the right that foreigners who wish to immigrate to the U.S. should ideally wait in line for a visa or a green card. I have also heard that illegal aliens should go to the back of the line if they are granted some type of amnesty. But, when pressed, very few can articulate what exactly the line is and who waits in it. Here I am hoping to help, by explaining the mythical line in layman’s terms.

First, some initial definitions are important. All foreigners who come to the U.S. on a visa are divided into one of two categories: immigrants and non-immigrants. An immigrant holds the immigrant visa or, as it is commonly known, the green card. They are legal permanent residents of the U.S. Non-immigrants hold non-immigrant temporary visas like tourist visas, work visas and student visas.

With that out of the way, back to my original question –what exactly is the line and who waits in it?

The line refers to foreigners waiting for the green card. While there are restrictions on certain types of non-immigrant visas they are better understood as quotas, rather than a line.

An immigrant’s place in line for a green card is determined by the date an immigrant petition is filed on their behalf by either a family member, an employer or, in limited instances, for themselves.  The date the petition is filed gives the immigrant their priority date which controls their place in the line.

The line is controlled by the Visa Bulletin put out monthly by the State Department.  Here’s where one of the biggest misconceptions about the line falls apart– there is not a singular line. There are at least 65 different lines for different categories of immigrants.

Each category of immigrant listed in the Visa Bulletin has a cutoff date, which means that USCIS is issuing green cards for immigrant petitions filed in that category before that date. If the Visa Bulletin’s cutoff date in a category is January 1, 2005 then all immigrants in that category with a priority date before January 1, 2005 can be issued green cards.

These lines move at vastly different paces. For some immigrants their time in line lasts as long as it takes USCIS to process the petition, for others the wait can be decades long.

Who has the longest wait for family based petitions? According to the October 2012 Visa Bulletin immigrants in these four categories have the longest wait times:

1. Siblings of U.S. Citizens from the Philippines have the longest wait, a whopping 23 years long.  Their cutoff date is February 8, 1989. (I was in preschool when these petitions were filed).
2. Married children of U.S. Citizens from the Philippines come in at second place with just more than a 20 year wait. Their cutoff date is July 22, 1992.
3. Unmarried children of Permanent Residents who are 21 years of age or older from Mexico come in at third place with just under a 20 year wait. Their cutoff date is October 1, 1992.
4. Married Children of U.S. Citizens from Mexico come in at fourth place with a 19 year wait. Their cutoff date is February 8, 1993.

The wait times calculated above are just estimates. The line does not necessarily advance a month with each monthly bulletin. This highlights how unpredictable and complicated our system is. If comprehensive immigration reform does come to fruition and some type of amnesty is granted, should illegal aliens be able to jump ahead of individuals who have been waiting to immigrate legally to the U.S. for years? If they are to go to the back of the line, which line should they go to the back of? If the wait is decades long is that workable?

In the coming weeks I plan on posting more details on how the Visa Bulletin works and how immigrants are categorized.

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By: Danielle Huntley, Esq.

The coverage of the Obama administration’s policy change towards so-called DREAMers, illegal aliens who were brought here as children, has garnered significant media coverage. Coverage here, here and here.

In my view, what has been missing from the discussion is how a change like this is emblematic of an inherent problem in our system. It continues a trend of the government creating immigration “law” through executive orders, policy memorandums and updates to various operational manuals; none of which are subject to meaningful legislative review or the regulation making process.

What are the limits of presidential power and prosecutorial discretion? On the one hand this program could be stopped at any time – it is wholly within the whim of the executive branch to maintain it. It creates no affirmative rights, only a process to ask the government to ask for its discretion. Conversely, if a DREAMer is under a final order of removal and they benefit from this program, how is that action different from a warden releasing a prisoner from prison after she has been found guilty by a court and sentenced?

This policy change is beneficial for this subset of illegal aliens, but it stands in stark contrast to the many policy changes that have created burdens where none is legislatively authorized.

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By: Danielle Huntley, Esq.

USCIS offers permanent residency, the green card, to foreign nationals who invest either $500,000.00 or $1,000,000.00 in U.S. businesses that create jobs for at least 10 U.S. workers within a 2 year period. This special immigration program, known as the EB-5 visa, can benefit both foreign nationals seeking a way to obtain permanent residency in the U.S., and businesses looking for foreign investment in their projects. These opportunities are available throughout the U.S.

The EB-5 program’s reach and use is only limited by the creativity of those wishing to utilize it.  It is a useful tool because it enables high net worth individuals to obtain permanent residency in the U.S. with no requirement of taking an active role in the business, and enables U.S. companies to obtain job creating capital.  Normally, an investment of $1,000,000.00 is required. However, this investment amount is reduced to $500,000.00 when the investment is made in either a troubled business or in an area of high unemployment.

Under the EB-5 investor program regulations, there are three ways to obtain the benefits of the program:

1. A direct application by one or more foreign nationals who have invested in a qualifying investment.
2. A passive investment by an individual foreigner in a Regional Center which has been pre-approved by USCIS.
3. On or more business entities can apply to USCIS for approval of an entity that would qualify as a Regional Center.

A Regional Center is any economic unit, public or private, which is involved with the promotion of economic growth, including increased exports sales, improved regional productivity, job creation, and increased domestic capital investment. Under the EB-5 regulations, Regional Centers are also referred to generically as the Immigrant Investor Pilot Program. There are currently 160 approved Regional Centers in the U.S.

Our next entry will describe what is required of a foreign investor to participate in this program.

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By: Lawrence P. Lataif

Most people are aware from the news that federal lawsuits are often filed in connection with attempts by individual states to regulate immigration, and by individuals seeking to avoid deportation (now called removal) when found guilty of crimes, denied political asylum, or found to be removable based on other grounds.

Much less known is that federal lawsuits are available for immigration benefits which have been wrongfully denied or unreasonably delayed. Such suits, which represent only a small percentage of federal court lawsuits, can be filed by individuals or employers who are aggrieved or prejudiced by USCIS (United States Citizenship and Immigration Services) action (or inaction) in individual cases. While a federal lawsuit is not feasible or advisable in every situation, it can be very effective when a federal district court judge has become, literally, the court of last resort.

What actions can be brought to Federal Court?

Lawsuits for denied or delayed immigration benefits can include claims for:

1. Declaratory Judgment
2. Injunctive Relief
3. Constitutional Violations – Due Process and Equal Protection
4. Administrative Procedures Act Violations
5. Mandamus Actions
6. De Novo Review of Naturalization Denials
7. Monetary Damages
8. §1983 Civil Rights Actions

Practical Benefits of Filing Suit

Any litigant or lawyer who files a federal court lawsuit must be prepared for lengthy litigation, even though 98.5% of all lawsuits do not go to trial. However, there are practical benefits that accrue to virtually every litigant once a federal court lawsuit has been filed. Among these are:

1. Case gets immediate review by U.S. Attorney’s Office
2. Case gets reviewed by lawyers from OIL (Office of Immigration Litigation)
3. Case gets high level administrative review by USCIS
4. Where the issue is unreasonable administrative delay the case is often won without the government ever filing an answer

When Does Litigation Make Sense?

Federal court litigation can be appropriate in any one or more of the following situations:

1. CIS policy violates statute or regulations
2. CIS policy or regulations are unconstitutional
3. Statutes conflict with each other
4. USCIS ignores favorable evidence to justify denial

Yet, even in these cases, there are important considerations to address before taking the significant step of filing a federal court action. Exhaustion of administrative remedies must be done, unless there is a very compelling reason against it. The costs involved, including legal fees, third party costs and the substantial commitment of time, must be carefully evaluated. Thought must also be given to whether other relief is available to fix the problem, such as a different immigration filing strategy or Congressional action that may change the applicable law.

Helpful Research Resources

Examples of federal court litigation addressed above can be found at the following research resources:

1. Immigration LexisNexis Community (formerly Bender’s Immigration Bulletin – Daily Edition) – www.lexisnexis.com/community/portal/
2. Immigration Daily – www.ilw.com
3. Interpreter Releases – Federal Case Summaries by Gerald Seipp
4. WSJ Law Blog – blogs.wsj.com/law
5. SCOTUSblog -  www.scotusblog.com

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By: Danielle E. Huntley, Esq.

It is only in Wonderland that a state actor can say that they have prosecutorial discretion when they are not a prosecutor and have no statutory authority for discretion. Yet, as we see again, our current immigration system seems stuck in it.

Prosecutorial discretion is a valuable necessity for state and local District Attorneys, and federal prosecutors charged with prosecuting crimes.  It means that a prosecutor can choose not to prosecute someone, negotiate a plea bargain and drop charges among other actions. Prosecutorial discretion recognizes the need for flexibility when enforcing state or federal laws. If you have ever seen an episode of Law & Order where the prosecutor makes a deal with a defendant for their testimony against another defendant, you have witnessed prosecutorial discretion in action. Or if you hear on the news that the District Attorney has decided not to press charges against an individual, that is an exercise of prosecutorial discretion. Prosecutorial discretion is at its broadest at the beginning of the criminal process, and, ceases to exist once an individual has plead guilty or been convicted. This ending of prosecutorial discretion is vital in our democracy, because if prosecutorial discretion is unfettered, the rule of law becomes solely dependent upon the whims of individual state actors.

There is a great deal of confusion surrounding prosecutorial discretion in the enforcement of immigration law. The director of ICE, John Morton, released a memorandum on June 17, 2011 (the Morton memo) that instructs ICE personnel how to exercise prosecutorial discretion in the following situations – which the memo clearly states is not exhaustive:

• deciding to issue or cancel a notice of detainer;
• deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
• focusing enforcement resources on particular administrative violations or conduct;
• deciding who to stop, question, or arrest for an administrative violation;
• deciding whom to detain or to release on bond, supervision, personal recognizance, or other condition;
• seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court;
• settling or dismissing a proceeding;
• granting deferred action, granting parole, or staying a final order of removal;
• agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal;
• pursuing an appeal;
• executing a removal order; and
• responding to or joining in a motion to reopen removal proceedings and to consider joining a motion to grant relief or a benefit.

Furthermore, the criteria used to decide whether to exercise prosecutorial discretion is neatly summarized in the first footnote of the Morton memo. It states:

“The Meissner memorandum’s standard for prosecutorial discretion in a given case turned principally on whether a substantial federal interest was present. Under this memorandum, the standard is principally one of pursuing those cases that meet the agency’s priorities for federal immigration enforcement generally.”

The memo goes on to give a long list of 19 broad, subjective factors that an ICE agent should use to determine whether to exercise prosecutorial discretion. These factors are so broad that it would not be difficult for most aliens in removal proceedings to make a colorable claim under one or several of the factors. The broadness of when prosecutorial discretion can be invoked, and what policies support its invocation, is so vast that it renders the rule of law in immigration enforcement tenuous at best.

This is particularly true when prosecutorial discretion can be exercised when the alien is under a final order of removal. If the alien is under a final order of removal, they have undergone a trial in immigration court in front of an immigration judge, and they have exhausted their administrative appeals and judicial remedies in federal court. Imagine if a criminal prosecutor could decide to drop all charges against a defendant who has been convicted by a jury of his peers and after all appeals had been exhausted– the rule of law would be meaningless. The prosecutorial discretion granted to ICE agents is that broad.

Prosecutorial discretion in immigration enforcement needs to be limited in the same way that it is limited for criminal prosecutors. Otherwise, the fair administration of the immigration laws of this country is rendered impossible. Unfettered “prosecutorial” discretion that can be exercised even after a final order of removal,  results in arbitrary decisions, wasted taxpayer dollars and utter dependence on bureaucratic whim.

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