IMMIGRATION

PRESENTED BY CATHOLIC CHARITIES OF THE ARCHDIOCESE OF

MILWAUKEE

IMMIGRATION CAN BE CONFUSING

We have had occasion to note the striking resemblance between some of the laws we are called upon to interpret and King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges. In this instance, Congress, pursuant to its virtually unfettered power to exclude or deport natives of other countries, and apparently confident of the aphorism that human skill, properly applied, can resolve any enigma that human inventiveness can create, has enacted a baffling skein of provisions for the I.N.S. and courts to disentangle. …Emboldened by Thesean courage and fortified by a close examination of the statutory language, we believe that the Board of Immigration appeals erred in denying the petitioner relief on the ground that it did, and remand for consideration on a proper basis." Tim Lok v. INS, 548 F.2nd 37 (2nd Cir. 1977).

IMMIGRATION IS NOT SELF-EVIDENT Whatever guidance the regulations furnish to

those cognoscenti familiar with INS procedures, this court, despite many years of legal experience, finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon. Tim Lok v. INS, 548 F.2nd 37 (2nd Cir. 1977).

IMMIGRATION IS NOT SELF-EVIDENT "This case vividly illustrates the labyrinthine character of modern

immigration law-a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike. The inscrutability of the current immigration law system, and the interplay of the numerous amendments and alterations to that system by Congress during the pendency of this case, have spawned years of litigation, generated two separate opinions by the District Court, and consumed significant resources of this Court. With regret and astonishment, we determine, as explained more fully below, that this case still cannot be decided definitively but must be remanded to the District Court, and then to the Board of Immigration Appeals ("BIA"), for further proceedings." Drax v. Reno, 338 F.3d 98, 99-100 (2d Cir. 2003)

UNDOCUMENTED IN WISCONSIN

2005 Current Population Survey reflects 11.1 million unauthorized people in the United States.

UNDOCUMENTED IN WISCONSIN

Paul Ryan 13,000 Tammy Baldwin 21,000 Ron Kind 4,000 Gwen Moore 27,000 F. James Sensenbrenner 4,000 Thomas Petri 7,000

PROCESS OF LAWFUL PERMANENT RESIDENCE Always a Two Part Process

Immigrant Visa

Residence Application

The Immigrant Visa

All visas are divided into two categories: immigrant and non immigrant visas. Common non immigrant visas are student visas and tourist visas. These visas do not lead to lawful permanent immigrant status.

THE IMMIGRANT VISA

Common Immigrant Visas

Diversity Visa Lottery Asylum Refugee Special Juvenile Immigrant Status Cancellation of Removal

PRACTICE POINTERS

Some immigrant visas are preferable to others because some immigrant visas allow access to waivers and exceptions that other immigrant visas do not. For example, an intending immigrant might qualify for an immigrant visa through a family member or through the Violence Against Women Act VAWA.

Lawful Permanent Residency

Lawful Permanent Residents are those who may live and work in the United States indefinitely.

They do not need employment authorization to work. They are eligible for unresticted social security

numbers. They may travel out of and into the United States as

they please.

Lawful Permanent Residency

Mechanisms to receive lawful Permanent Residency:

Adjustment of Status Consular Processing Immigration Court

Family-Based Immigration

Family-based immigration divides all immigrant visas into two, mutually exclusive categories: immediate relative petitions and those who fall into the priority system.

Family-Based Immigration

Immediate relative petitions are those filed by a USC for the USC’s

Parent, Spouse, or Child

Family-Based Immigration

Those in the Priority System: Spouses of lawful permanent residents. This

is the 2A preference category. Minor, unmarried children of lawful permanent

residents. This is the 2A preference category.

Family-Based Immigration

Adult, unmarried children of lawful permanent residents. This is the 2B preference category

Married sons and daughters of United States citizens, regardless of age. This is the 3d preference category.

Adult, unmarried sons and daughters of United States citizens. This is the 1st preference category.

Family-Based Immigration

Family All China India Mexico Philippines

1 15MAR02 15MAR02 15MAR02 22JUL92 15MAR93

2A 15JUL03 15JUL03 15JUL03 01MAY02 15JUL03

2B 01AUG99 15JUL03 15JUL03 08APR92 22FEB97

3 08JUN00 08JUN00 08JUN00 01AUG92 01APR91

4 22AUG97 01FEB97 01FEB97 15DEC94 08MAR86

Family-Based Immigration

There are two mechanisms for applying for residency:

Adjustment of status, and Consular processing. The are very different

mechanisms

Family-Based Immigration

Consular Processing:

The process of applying for and receiving an immigrant visa from a United States consular post overseas. After the visa has been approved, the individual travels to the United States and is admitted as a lawful permanent resident.

Family-Based Immigration

Adjustment of Status:

U.S. Citizenship & Immigration Services (USCIS) determines whether the individual is eligible for an immigrant visa and approves the applicant’s lawful permanent residence without requiring a departure from the United States.

Family-Based Immigration

Adjustment of Status:

As a general rule, eligibility for adjustment requires lawful admission and maintenance of legal status in the U.S., but there are several major exceptions. Applicants for adjustment of status are eligible for an employment authorization document (EAD) while the application is pending.

Family-Based Immigration

Before being admitted to the United States, each intending immigrant must be admissible. Admissible is not defined. However, inadmissible is defined at great length.

Family-Based Immigration

Common Grounds of Inadmissibility: Health-related grounds, e.g. communicable diseases

including HIV/AIDS, certain physical/mental disorders and behavior, some substance and alcohol abuse

Crime. Certain criminal convictions will make someone inadmissible to the United States. There are waivers for many but not for all.

Security and related Public charge

Family-Based Immigration

Grounds of Inadmissibility: Illegal entrants Immigration violations, False claim to U.S. citizenship Smuggling “Unlawful Presence” grounds: Common traps

for family-sponsored immigrants who leave the U.S. for consular visa processing based on an approved relative visa petition.

Family-Based Immigration

“Unlawful Presence” grounds: The Three-Year Bar: Anyone who has accrued

more than six months of unlawful presence within the U.S. and leaves, for whatever reason, is barred from readmission for three years.

The Ten-Year Bar. Anyone who has accrued more than one year of unlawful status in the U.S. and leaves is barred from readmission to U.S. for ten years.

Family-Based Immigration

Unlawful Presence Grounds:

Waivers: The only waiver available for the Three and Ten-Year Bars requires proof of extreme hardship to a U.S. citizen or LPR spouse or parent; waivers are not available based on extreme hardship to a U.S. citizen or LPR child.

Family-Based Immigration

Important to Remember:

Any lawful permanent resident with any criminal conviction should speak to an attorney and understand the risk of travel.

THE VIOLENCE AGAINST WOMEN ACT PROVIDES A MECHANISM FOR CERTAIN

IMMIGRANT VICTIMS OF DOMESTIC VIOLENCE TO SELF PETITION.

PROTECTS CERTAIN RELATIVES OF US CITIZENS AND LAWFUL PERMANENT RESIDENTS.

OFTEN PREFERABLE TO FAMILY-BASED IMMIGRATION.

ALLOWS VICTIMS TO LEAVE ABUSERS AND STAY WITH CHILDREN.

THE VIOLENCE AGAINST WOMEN ACT The VAWA self-petition helps

Those who are or reasonably believe they are married to USCs or LPRs.

Children of USCs or LPRs Parents of USC Other limited categories such as NACARA and

HRIFA.

“U” STATUS

“U” Generally: The Victims of Trafficking and Violence

Protection Act of 2000 Created the “U” status in order to encourage

people to report crime and to cooperate in criminal investigations.

It also afforded a remedy to those who were domestic violence victims but who were not married to either US citizens or lawful permanent residents.

“U” STATUS

Four Basic Requirements: The immigrant has suffered substantial physical or

mental abuse as a result of having been a victim of certain criminal activity. The harm may be proximate or direct to the victim.

The immigrant possesses information concerning that criminal activity;

The immigrant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution the criminal activity; and

The criminal activity described violated the laws of the United States or occurred in the United States.

SJIS

Special Juvenile Immigrant Status

Abandoned children may be eligible to self-petition for an immigrant visa through Special Juvenile Immigrant Status.

SJIS

Statutory Requirements: Court order declaring dependency on the juvenile court

or placing the juvenile under (or legally committing the juvenile to) the custody of an agency or department of a State, and

Court order deeming the juvenile eligible for long-term foster care due to abuse, neglect, or abandonment, and

Determination from an administrative or judicial proceeding that it is in the juvenile’s best interest not to be returned to his/her country of nationality or last habitual residence (or the juvenile’s parents’ country of nationality or last habitual residence and

Proof of the juvenile’s age.

SJIS

Often referred by child welfare agencies who realize that child has no social security number.

Child may apply for employment authorization while petition pending.

When employment authorization approved, child may apply for social security number.

FLAWS IN THE SYSTEM

THE IMMIGRATION COURT

215 IMMIGRATION JUDGES FY 2005 315,000 CASES CREATES AVERAGE OF 1,395 CASES PER

JUDGE PER YEAR TWO THIRDS OF IMMIGRANTS HAVE NO

LEGAL REPRESENTATION

IMMIGRATION APPEALS

Hearing before an Immigration Judge

Appeal to the Board of Immigration Appeals

Seventh Circuit Court of Appeals

BOARD OF IMMIGRATION APPEALS ONE JUDGE TEN MINUTES TO REVIEW

HUNDREDS OF PAGES OF TESTIMONY HUNDREDS OF PAGES OF EVIDENCE LAW AS IT APPLIES IN YOUR

JURISDICTON.

BOARD OF IMMIGRATION APPEALS

JUAN OSUNA, BIA CHAIR:

There is only one law clerk for every six judges.

When he joined the board, in 2000, Osuna said, the biggest shock was the "bad lawyering" immigrants up for removal had to put up with.

"Sometimes they are better off pro se."

IMMIGRATION AT CIRCUIT COURT LEVEL At a panel discussion before an audience at

the American Bar Association's annual meeting in New York City, 2nd circuit judge Robert Katzmann and 9th circuit judge M. Margaret McKeown made these comments:

"It's like a tsunami," McKeown said.

IMMIGRATION AT CIRCUIT COURT LEVEL At the 2nd Circuit, Katzmann said,

immigration cases six years ago amounted to only four percent of the docket, but now comprise 39 per cent of the court's cases. In many of the cases, the record is inadequate and shows signs of incompetent representation.

IMMIGRATION AT CIRCUIT COURT LEVEL

By the time we get the case, it's often too late," said Katzmann. "It's often hard to get a good night's sleep when you feel the lawyering in a case has not been good."

COMMENTS FROM THE 7TH CIRCUIT ON THE BIA

[t]his court reversed the Board of Immigration Appeals in whole or part in a staggering 40 percent…” Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005).

COMMENTS ON THE IMMIGRATION COURT The immigration judge's opinion is pervaded

by gross errors of fact and logic, and read in light of the hearing transcript is an embarrassment to American justice . . . the majority is wrong to think that [] a reviewing court should uphold immigration judges' incompetent findings of fact. For then an agency could insulate its decisions from judicial review simply by understaffing.

THE NEW I-9

The Law Behind the I-9. The Immigration Reform and Control Act of 1986

(IRCA) requires employers to verify the employment eligibility status of new employees. This is the same law that created what is commonly called the amnesty program in the late 80s.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) required that immigration (USCIS) change which documents would be accepted in order to completed the I-9.

THE NEW I-9

USCIS, however, did not update the form until last year.

The new I-9 form simply reflects the documentation which is acceptable pursuant to IIRIRA.

THE NEW I-9

Who has to complete the I-9?

All employees, citizens and noncitizens, hired after November 6, 1986

THE NEW I-9

Section One: Completed by the Employee on first day of

employment. Providing the Social Security number is voluntary,

except for employees hired by employers participating in the USCIS Electronic Employment Eligibility Verification Program (E-Verify).

Employee not required to submit any supporting documentation.

Employer’s only duty is to check for completeness.

THE NEW I-9

Section Two. Completed by Employer within first three day

of employment. However, if the intended employment is to be less than three days, then the I-9 must be completed on the first day of employment.

Must submit documentation sufficient to complete the I-9 form.

THE NEW I-9

Section Two continued: Employer must examine the documentation

which establishes identity and eligibility to work.

Employer is not required to take photocopies of the documentation. Employer may take copy but is not required to take a copy.

Employee chooses which of the accepted documentation he or she will submit to complete the I-9. The employer may not require anything else.

THE NEW I-9

Section Three: Updating and Reverification. Employer must update when the

documentation submitted expires. For example, if an employee offers a work permit which will expire in six months, then the employer must update the I-9 form in six months. Or if an employee offers a driver’s license which expires in two years, the employer must reverify in three years.

Again, the employee chooses which documents to submit.

THE NEW I-9

How long must an employer maintain the I-9?

Employers must retain completed Forms I-9 for three years after the date of hire or one year after the date employment ends, whichever is later.

THE NEW I-9

Penalties for Hiring knowingly employ unauthorized immigrants and failing to comply with the employment verification requirements (I-9 process) pursuant to INA Section 274A; not less than $250 and not more than $2,000 for each

unauthorized alien not less than $2,000 and not more than $5,000 for

each such alien in the case of a person or entity previously subject to one order under this paragraph, or

not less than $3,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to more than one order.

UNFAIR LABOR PRACTICE

EMPLOYERS MUST BALANCE COMPLYING SEVERAL THINGS WITH NEW HIRES.

COMPLYING WITH THE I-9 UNFAIR IMMIGRATION LABOR PRACTICES

UNFAIR LABOR PRACTICE

Employers with more than three employees may not discriminate of the basis of national origin or citizenship status except against unauthorized aliens. INA §274(B)(a)(1)

UNFAIR LABOR PRACTICE

Treatment of certain documentary practices as employment practices.-A person's or other entity's request, for purposes of satisfying the requirements of section 274A(b), for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration- related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph INA §274(B)(a)(6)

ICE WORK PLACE ENFORCEMENT Criminal Prosecutions:

25 in Fiscal Year 2002 compared with 716 in FY 2006.

Number of arrested on administrative immigration violations at worksites. 485 in Fiscal Year 2002 compared with

3,667 in FY 2006.

ICE WORK PLACE ENFORCEMENT TARGETING:

INDUSTRIES WHICH USE UNDOCUMENTED LABOR AS AN ECONOMIC MODEL.