For many years, the issue of detaining children has been scrutinized. In 1985, in the landmark case of Flores v. Reno, a class action lawsuit was filed against the Immigration & Naturalization Services (INS) challenging the way the agency processed, apprehended, detained, and released children in its custody.  The case established the national policy regarding the detention, release, and treatment of children in INS custody. In 1997, a California federal court approved the Flores agreement, and many of the agreement’s provisions have been codified at 8 CFR §§ 236.3, 1236.3.

Under the Flores agreement, a juvenile is defined as a person under the age of 18 who is not emancipated by a state court or convicted and incarcerated due to a conviction for a criminal offense as an adult.  The agreement also requires that juveniles be held in the least restrictive setting appropriate for their age and that special needs are considered to ensure their protection and wellbeing. Additionally, juveniles must be released from custody without unnecessary delay to a parent, legal guardian, adult relative, individual specifically designated by the parent, licensed program, or an adult who seeks custody who DHS deems appropriate. Under the Flores agreement and INS policy, it is unlawful to detain juveniles with an unrelated adult for more than 24 hours. The Flores agreement applies to all children apprehended by DHS.

In 2003, the laws pertaining to the detention of children changed.  Prior to 2003, children were detained and prosecuted solely by INS. However, now, DHS must first determine if the child is “unaccompanied” before they assign the child’s care and custody to a federal agency. Children who are declared “unaccompanied” are transferred to the care and custody of the Office of Refugee Resettlement (“ORR”).  ORR contracts with child welfare agencies around the country where children receive legal and social services, and have access to education, health care, and other services.  These shelters have specific procedures to ensure compliance with the law. Children who are not “unaccompanied” remain in DHS custody. DHS can only legally detain children if they are held in child-appropriate facilities.

In 2010, the National Immigrant Justice Center (“NIJC”) grew suspicious of DHS and filed a Freedom of Information Act (FOIA) lawsuit against the agency seeking information about children being detained under their control. Eventually, DHS provided the data being asked for. According to this data, DHS detained children under the age of 18 for a combined total of 36,598 days in 30 adult detention facilities around the country. More than 1,300 of these children were detained in violation of the Flores agreement. Moreover, the data DHS provided likely underreports how many children were actually affected, because the terms of the legal settlement limited the scope of their data to only 30 of the approximately 250 adult detention facilities which DHS had contracts with.

DHS cannot continue to disregard the law and detain these vulnerable children in adult prisons. As members of our communities, we must come together and pressure Congress to hold DHS accountable and to ensure that they cease their unlawful practices. Congress must make amendments to the current law to ensure that there are safekeeping provisions to protect these vulnerable children who are being detained in the immigration system. Congress should also amend the law to require DHS to immediately transfer all children it apprehends, both accompanied and unaccompanied, into the care and custody of ORR. Congress should also add a provision requiring DHS to submit an annual report to the House and Senate Judiciary Committees, reflecting the number of children apprehended and the length of time those children were detained in DHS custody.  Lastly, Congress should amend the law to provide appointed counsel to all children in immigration proceedings. These amendments are necessary to ensure DHS is following the law and ensuring the protection of children being detained through the immigration system.

Immigrants, both authorized and unauthorized, contribute greatly to the economies of the District of Columbia, Virginia, and Maryland. With close to 1.8 million immigrants in the DC-VA-MD[1] area, immigrants are helping to revitalize the economy through entrepreneurship, consumer spending, and by contributing to the tax base.

Economic activity, consumer spending, and job creation are extremely important as the nation recovers from the economic crisis. The DC-VA-MD area is on a path to recovery, due in large part to the immigrant population and their economic activity. It is not just authorized immigrants who are leading the economy’s revitalization, but also unauthorized immigrants are playing a significant role. If unauthorized immigrants were removed from the DC-VA-MD area, the area would lose $27.6 billion in economic activity, $12.3 billion in gross state product, and 141,585 jobs. Immigrants also contribute greatly to the area’s tax base. In the Washington, DC metropolitan area alone, immigrants contributed $9.8 billion in taxes in 2000. And in Maryland, immigrants contributed $4.0 billion in federal, state, and local taxes in 2000. And with an ever increasing immigrant population, taxes paid by immigrants will continue to rise. Due to the immigrant population and their activities in the DC-VA-MD area, the area has been greatly benefited and it will continue to benefit from the presence of immigrants if permitted.

Furthermore, immigrants who call the District, Virginia, and Maryland home are well educated and highly skilled. Accordingly, immigrants greatly benefit the area’s economy and they are helping contribute to the economy’s revitalization. In the District, 51.5% of foreign born naturalized citizens and 47.2% of non-citizens hold a bachelor’s or higher degree, which is only slightly less than Census Bureau’s 2011 estimates for the whole of the District, at 52.5%. Thus, immigrants residing in the District are just as educated as non-immigrants and are therefore they are able to significantly contribute to the District’s tax base and economic activity.

In Maryland and Virginia, the rate of immigrants who hold Bachelor’s or higher degrees is significantly higher than the estimates for the whole of these two states. Immigrants here are more educated that the domestic born population. In Virginia, 40.7% of all immigrants have a bachelor’s or higher degree, while only a little more than one third of Virginia’s entire population has a bachelor’s or higher degree. Thus, immigrants make up 16.6% of all bachelor’s or higher degrees held in Virginia.  Similarly, 40.3% of all immigrants in Maryland have a bachelor’s or higher degree, while the state rate of bachelor’s or higher degree is 36.9%. Therefore, almost one fifth of all bachelor’s or higher degrees in Maryland are held by immigrants. While statistically, the DC-VA-MD area has a higher rate of bachelor’s or higher degrees compared to the national average, which only hit 30% this year, immigrants contribute greatly to this higher than average rate. And with such a significant percentage of immigrants holding Bachelor’s or higher degrees, these states’ economies can’t help but be benefited.

With a highly educated immigrant work force, immigrants are playing an important role in areas that greatly impact society and the economy. In Maryland, the sciences and healthcare are greatly benefited by the local immigrant population. A 2006 study found that over one-quarter of all scientists, that over one-fifth of all healthcare providers, and that one-fifth of mathematicians and computer specialists working in Maryland are foreign born. Thus, the District, Virginia, and Maryland can ill afford to lose their immigrants as they play a vital role in maintaining a stable economy in the area.

Additionally, the DC-VA-MD area has one of the largest immigrant communities in the country; only California, the Tri-State area, Texas, Hawaii, and Florida have larger immigrant populations. Immigrants in the DC-VA-MD area do not only benefit the area’s economy, but also they greatly influence politics and government affairs. Many of the immigrants in the DC-VA-MD area are naturalized U.S. citizens. While only a third of the immigrants living in the District have become naturalized U.S. citizens, nearly half of all immigrants in Virginia and Maryland have obtained this status. As naturalized U.S. citizens, these immigrants have obtained the right to vote. Thus, many immigrants in the District, Virginia, and Maryland are helping influence and shape the area’s and the nation’s political landscape. And as seen in the last election, naturalized U.S. citizens are overwhelmingly using their right to vote now, more than ever before.

All immigrants, both authorized and unauthorized, are extremely important to the DC-VA-MD area. They are playing a role in revitalizing the economy, they are greatly contributing to the tax base and they are helping shape the nation’s politics. With a highly educated and skilled immigrant population, DC-VA-MD immigrants will only continue to see success as they help boost the area’s economy and make breakthroughs in their chosen fields. And with the number of immigrants residing in the DC-VA-MD area that are eligible to vote, immigrants are also shaping the political community and influencing political change. The DC-VA-MD area needs immigrants to remain a strong, economically vibrant, and racially diverse community.

Last Thursday, the Justice Department’s settlement with a leading facility services company proved that the INA’s anti-discrimination provision prohibiting employers from discrimination against noncitizens is a necessary and enforceable doctrine. ISS Facility Services Company is headquartered in San Antonio, Texas and employs approximately 15,000 employees in the United States.

Based on a referral from the U.S. Citizenship and Immigration Services (USCIS), the Justice Department began an investigation on the company. The issue was whether the ISS offices in Dallas and Houston were requiring non-citizens to present specific U.S. Department of Homeland Security-issued documents to establish their identity and work-authority while not having the same requirements for U.S. citizens. The INA includes an anti-discrimination provision which makes it illegal for employers to discriminate against noncitizens by demanding more or different documents than U.S. citizens would be required to present.

Pursuant to this provision, the Justice Department and ISS reached a settlement where ISS agreed to ensure that all its offices would provide training and comply with the INA’s anti-discrimination provision. ISS also agreed to pay $49,800 to the United States to identify and compensate any individuals who may have suffered economic injuries as a result of its practices. Additionally, ISS agreed to have their employment eligibility verification practices monitored by the department for the next two years.

As Gregory Friel, Deputy Assistant Attorney General for the Civil Rights Division, noted: “We commend ISS for its exemplary cooperation in working with the department to identify the source of the problems in its employment eligibility verification process at two of its offices and to work with the department in addressing those problems.” ISS’ settlement sends a message to employers that they must comply with the INA’s anti-discrimination provision, and companies that fail to do so will be held accountable for their unjust actions.

Victor Hugo Tapia Madrigal (“Mr. Madrigal”) is a citizen of Mexico and a member of the Mexican army. In 2007, 10 members of the Los Zetas drug were arrested, including one high-ranking member. Mr. Madrigal assisted in transferring the arrestees from the small town where they were apprehended to authorities in Guadalajara.

A few months after, Mr. Madrigal learned that all the soldiers who had arrested the 10 members of Los Zetas had been beheaded. Fearing for his safety, he decided to leave the army. He was living at his family’s home for a few months until he found out his commander had also been killed. At that point, Mr. Madrigal decided to leave his family’s house and move to a small town. After living in his new town for a few months, a group of unknown individuals shot at Mr. Madrigal while he was walking down the street. Mr. Madrigal was able to escape the bullets, but after this experience, he decided he needed to leave Mexico.

Mr. Madrigal entered the United States in 2008, to seek protection from Los Zetas. Shortly thereafter, Mr. Madrigal’s mother received an anonymous letter that threatened Mr. Madrigal’s life and stated that he had been located. His mother also said that unknown people had been asking his relatives where he had gone. In 2009, the government initiated removal proceedings against Mr. Madrigal. Mr. Madrigal sought asylum, withholding of removal, and CAT relief. However, an immigration judge found him ineligible for asylum and the BIA dismissed his appeal.

However, the 9th Circuit granted Mr. Madrigal’s petition for social group-based asylum for both past persecution and well-founded fear of future persecution. The Court rejected BIA’s finding that no evidence supported the belief that Los Zetas were responsible for Mr. Madrigal’s past persecution. Judge Raymond Fisher writing for a three-judge panel stated: “The BIA appears to have reached this conclusion by viewing each incident in isolation, instead of examining the totality of the circumstances. This was error because post-military incidents took place in the context of a larger pattern of conduct.” When assessing the totality of the circumstances, the Court found that there was a very distinct possibility that Los Zetas were responsible for the harm Mr. Madrigal experienced post-military.

Further, the Court found that BIA erroneously concluded that the lack of nexus between Mr. Madrigal’s persecution and a protected ground precluded a grant of asylum. The Court explained: “[I]f Tapia Madrigal can establish that Los Zetas are responsible for his post-military … then the record compels the conclusion that such persecution was on the basis of his membership in the particular social group of ‘former Mexican army soldiers who participated in anti-drug activity.” In other words, if Mr. Madrigal can show that he was mistreated because of his affiliation with the Mexican army, then he will be able to obtain asylum on account of being a former military member, which is recognized a valid social group. This case is significant because the 9th Circuit’s approach allows asylees a chance to argue eligibility based on the totality of the circumstanced and nexus between the harm suffered and the protection sought.

The analysis below draws largely from an extensive summary of the bill’s contents provided by the Democratic Policy and Communications Center (DPCC).[ As of this writing, the bill has not yet been voted on in the Senate or taken up in the House of Representatives and so its contents are still subject to change.  However, an analysis of the bill in its current form is warranted, as it is the clearest and most comprehensive indication of the future of immigration law in the United States.

Major Changes

As it is currently written, the legalization of currently-undocumented immigrants (who would acquire legal status) is contingent upon several “triggers,” not least of which would be expanded resources and enforcement measures in the area of border security. To that end, the proposed bill would allocate $3 billion to fund enhanced border and immigration security measures, including the development of a border security fencing plan by the Secretary of Homeland Security, a “mandatory and operational” Electronic Employment Verification System (EEVS, more commonly known as E-Verify), and the implementation of “a biographic entry-exit system at air and seaports.”

Registered Provisional Immigrant Status

The law would provide a new form of relief called Registered Provisional Immigrant (RPI) Status.  Undocumented immigrants who came to the U.S. before December 31, 2011 and have continued to reside in the U.S. would be able to apply for RPI status.  In the long march towards permanent residency and eventual citizenship, RPI applicants would be required to pay multiple fines and fees and any back taxes, pass multiple background checks, show that they are working to learn English (if they do not speak it already), and be able to demonstrate economic self-sufficiency.  Once RPI status is approved, persons with RPI status would retain such status for six years and be given employment authorization as well as travel authorization, both of which would be significant benefits for many people who have long been unable to legally seek gainful employment or travel to their native countries.  After six years, RPIs would need to file to renew their status, showing they still meet all the eligibility criteria and paying additional filing fees.

Roughly 10 years after acquiring RPI status, individuals would be able to apply for permanent residence. Such applicants would be required to wait until the existing backlog of applicants had been processed before adjustment of their status would be reviewed.  Three years after attaining permanent residency, former RPIs could then apply for naturalization to become U.S. citizens.  All told, the time from granting of RPI status to citizenship would come to at least 13 years.

The long wait before acquiring permanent residency seems somewhat arbitrary, especially when applied to individuals who have already been living in the United States for decades.  Moreover, throughout the entire process, immigrants would have to pay at least $2,000 in fines and hundreds more in fees along the 13-year path to citizenship, thereby potentially excluding those unable to pay the fees. The employment or income requirements for both RPI status and permanent residency through RPI status also seem highly problematic, absent further guidance on how such requirements would be enforced in actuality, as it seems that low-income immigrants could be deprived of the benefits offered through the legislation.  Moreover, even though the proposed legislation aims to eliminate the creation of future backlogs, it is questionable whether the existing backlogs could be cleared in the timeframe allotted such that RPIs could in fact seek adjustment of status 10 years after becoming RPIs.

While the bill would offer previously unavailable relief to many millions of individuals, it can also be criticized for the people it excludes.  For instance, persons who entered the United States after December 31, 2011 would be unable to benefit from the bill’s provisions.  In addition, many individuals may likely be barred by acquiring RPI status because of expansive definitions of certain criminal acts under existing immigration law.  For instance, if a person has committed three relatively minor misdemeanor offenses, they may be ineligible for RPI status.  Finally, the English language requirement for adjustment of status could pose further barriers to otherwise deserving immigrants.

On the positive side, the bill as currently written would codify many important parts of the long-dormant DREAM Act, allowing RPIs who came to the U.S. before age 16 and earned a GED or high school diploma to apply for permanent residency.  Moreover, the law would also so-called ‘DREAMers’ to apply for naturalization after five years as an RPI (rather than ten).  Although the passage of Deferred Action for Childhood Arrivals (DACA) was a step in the right direction, the proposed bill offers a permanent solution and path to citizenship for the millions of individuals who came to this country as children and have made the United States their home.

Family Unity and Employment-Based Immigration

Aside from the creation of RPI status, the proposed legislation contains broad changes to the existing family- and employment-based immigration system.  Legal immigrants who have been in the United States continuously for ten years or longer would be eligible to seek permanent residency, and permanent residents would be able to “immediately” sponsor their spouses or children for permanent residency. This would be a huge improvement in the current family-based immigration system, as it would eliminate the grossly long wait that permanent residents have to endure for their spouses and children to obtain legal status.  The bill would also enable “families with approved petitions to work and live in the U.S. while waiting for their green card” and would allow siblings short-term visitation periods.

Despite all of the positive aspects of the proposed legislation, there are several negative aspects that would potentially hinder family unity.  For instance, sponsorship of siblings for permanent residency would be eliminated, and children at or over 31 years of age would also be ineligible for sponsorship from their US citizen parents.  While previously-filed petitions would seemingly not be impacted, this would deprive many individuals of the right to be reunited with their adult children (over age 31) and/or siblings, and potentially leave recently-naturalized elderly individuals without family care takers to assist them as they age.

The bill also seeks to introduce a new merit-based system to the processing of immigrant visas. It is a complicated point-based system, wherein prospective applicants for a so-called ‘Track One’ visa would be prioritized based on “various factors, including educational degrees, employment experience, and needs of U.S. employers, U.S. citizen relatives, and age,” as well as how long the applicant has been living in the U.S., while ‘Track Two’ visas would be granted to backlogged family-or employment-sponsored applicants (waiting five years or longer) and to individuals who have been legal permanent residents for at least ten years.

One problem with the point system is the clear prioritization it gives to those immigrants who are already likely to benefit the most from their training and economic resources, leaving low-wage and low-skilled workers in a potentially indefinite wait period while their better-educated and wealthier counterparts skipped to the head of the line.

Despite my skepticism about the points-based merit system contained in the proposed legislation, there are numerous improvements with relation to the availability of certain employment-based visas.  For instance, it would increase the number of H1B visas available each year, as well as increase the availability of visas for certain low-skilled labor positions through the creation of a new “W” visa category.

Many concerns are being raised over bill’s provisions mandating the national implementation of the Electronic Employment Verification System (EEVS), commonly known as E-Verify.  While government officials report that E-Verify’s accuracy has improved in the years since its introduction, the remaining possibility for error means that some individuals will undoubtedly be wrongfully denied employment to which they should be entitled.  Additionally, the system would potentially be expensive to maintain, and civil liberties advocates, such as the American Civil Liberties Union (ACLU) have expressed concerns that the centralization of personally identifiable information (PII) poses risks to Americans’ privacy and increases the risk of identity theft.

Asylum Applicants

In my opinion, there would be at least two highly significant improvements in the law governing asylum if the proposed legislation is passed.  First and foremost, S. 744 seeks to eliminate the one-year filing deadline by which all asylum applicants must file their applications in order to be deemed eligible for asylum.  For many years, the requirement that an individual must file for asylum within one year of entering the U.S. has deprived many individuals from being granted asylum.  Often, individuals fleeing their countries with genuine claims of past persecution suffer from severe trauma, may not have had a formal education, or are unknowledgeable about the legal requirements for asylum.  Elimination of the one-year filing requirement would mean that such individuals would no longer be prejudiced based on their lack of knowledge of U.S. immigration laws.  Secondly, there would be cause for celebration if the proposed legislation were passed because it would provide certain at-risk persons in removal proceedings with legal counsel.  At present, while there is a right to counsel, there is no right to have counsel provided for those in need, which deprives many people facing deportation from relief from removal.

As summed up especially well in a recent Op-Ed by Bill Frelick of Human Rights Watch and law student Brian Jacek, a major challenge faced by many asylum seekers, and one that the proposed Senate bill fails to fully address, is the difficulty asylum applicants have supporting themselves economically while their cases are being reviewed.  Many asylum applicants are denied the right to employment while their applications for asylum remain pending, thereby depriving them of the opportunity to support themselves.  As Frelick and Jacek explain, the inability to work legally means that many asylum-seekers not only cannot afford attorneys to assist with their cases, but they also are pushed into the informal work sector, rely on assistance from friends or family, or may even end up living on the streets.  Unfortunately, S. 744 in its current form would not modify the existing regulations on employment authorization for prospective asylees.

Politics

Supporters: Business, Labor, Religious Groups.  A striking element of the recent push for immigration reform has been the broad support it has received from many disparate sectors of the American political spectrum.  Many sectors such as the hospitality (restaurants, hotels, etc.) and agriculture industries rely heavily on low-wage workers, many of them undocumented, and would benefit from a normalization of their workforce as well as the ability to bring in additional part-time or seasonal workers from abroad.  The technology sector, including industry leaders such as Facebook CEO Mark Zuckerberg, has lobbied for increased opportunities to fill positions that they contend are currently vacant due to a lack of qualified American workers. Many labor unions, meanwhile, view the normalization of undocumented workers’ status as an opportunity to increase union membership by organizing newly-legalized RPIs.  Such organizers believe that legalization would stem the so-called ‘race to the bottom’ in which U.S. citizens and legal immigrants continually accept cuts to wages and benefits in order not to lose out to their undocumented counterparts.  Many religious organizations have also lent their support to the immigration reform push, though (as discussed below) that support could waver if the bill is amended to include extension of sponsorship privileges to bi-national same-sex partners.  Finally, comprehensive immigration reform that includes a path to citizenship stands to benefit elected representatives from both major parties, helping to appeal to Latino voters while demonstrating that bipartisan compromise is still possible in a political climate that is often described as just as dysfunctional, ineffective, and broken as the current immigration system itself.

Immigration Restriction Advocates.  Immigration restriction and border enforcement advocates such as Jim DeMint and conservative think tank the Heritage Foundation have derided what they refer to as “amnesty,” or any attempt to provide currently undocumented immigrants living in the United States.  While it s strongly contested, the Heritage Foundation recently released a report arguing that legalizing the status of the 11.5 million undocumented immigrants currently in the United States will cost the country over $6 trillion over those immigrants’ lifetimes.  Because the public’s attention is not yet fully focused on the proposed law, it remains to be seen whether these arguments will gain traction, though a recent reporting suggests that the majority of Americans (76% percent) favor passage of the proposed immigration legislation.  If such polling is accurate, it would suggest that there is sufficient bipartisan support to overcome concerns raised by the outspoken critics of immigration reform.

Same-Sex Couples.  One of the biggest question marks currently hanging over the current reform effort relates to the status of binational same-sex couples.  As reported in Politico, Vermont Senator Patrick Leahy, a Democrat and member of the ‘Gang of Eight,’ has promised to introduce an amendment to the proposed bill that would allow U.S. nationals to sponsor their same-sex partners for permanent residency (a move for which President Obama has also voiced support).  In response, according to Politico, Florida Republican Senator Marco Rubio claimed that the amendment “will virtually guarantee that [the bill] won’t pass,” though many Democrats reportedly remain skeptical of that assertion.  This, the article continues, is because support might waver or drop off entirely from the Republicans and religious groups upon whose success the bill depends (if the bill fails or only narrowly passes in the Senate, its chances in the House of Representatives are greatly diminished).

The entire question of the status of binational same-sex couples could, however, become irrelevant if the Supreme Court rules that the relevant portions of the Defense of Marriage Act (DOMA) are unconstitutional.  In that case, binational same-sex married couples would be entitled to the same federal protections and benefits currently available only to heterosexual couples.  In my opinion, failure to include rights for same-sex couples would represent a major flaw in the legislation.  Truly comprehensive immigration reform should not exclude U.S. citizens and permanent residents in same sex-relationships from having the right to file petitions on behalf of their spouses.

In summary . . .

There is still a long way to go before S.744 becomes law and some lawmakers, such as Sen. Rubio, are skeptical as to whether or not it will ever be passed as it is currently written.  While the proposed bill contains several areas for concern, overall the enactment of S.744 would be an enormous success for immigrants and immigrant rights advocates.  Immigrants to the United States have continuously contributed to this country culturally, politically, socially, and economically.  Unfortunately, the current immigration system has long been broken, and has not adapted to evolving economic, familial, and humanitarian needs. Immigration reform is in our country’s best interests economically and reform would address the harm and suffering of so many deserving immigrants who seek to remain united with their families or otherwise wish to contribute to the nation in positive ways.  The time is long overdue for Congress to enact meaningful immigration reform, and the majority of the provisions contained in the proposed bill would be a huge step in the right direction

Just to barely scratch the surface, here are but a few things S.744 would do:

1. Legalization: Allow noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to adjust status to that of Registered Provisional Immigrant (RPI). Eligible applicants would be required to pay a penalty and back taxes. Individuals in RPI status would receive work authorization and may travel abroad. They would also become eligible to apply for LPR status after 10 years, and can apply for naturalization 3 years after acquiring a green card. Includes generous provisions for DREAMers and agricultural workers.

——————————————————————————–

2. Family-Based Immigrants: Move the current FB-2A category into the immediate relative classification, allow for derivatives of immediate relatives, eliminate the FB-4 category, cap the age of eligibility of married sons and daughters of U.S. citizens at 31, and bring back the V visa.

——————————————————————————–

3. Employment-Based Immigrants: Exempt the following categories from the quota: EB-1 immigrants, doctoral degree holders, physicians who have completed the foreign residency requirement, and derivatives. Add a new “EB-6″ category for certain entrepreneurs.

——————————————————————————–

4. Temporary Workers: Create a W-1 visa for lesser-skilled workers, a W-2 visa for aliens coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a W-3 visa for “at-will” workers with an offer of full-time employment in an agricultural occupation. The W-2 and W-3 visas would replace the current H-2A agricultural worker program.

——————————————————————————–

5. Asylum: Eliminate the one-year filing deadline and authorize asylum officers to grant asylum during credible fear interviews.

——————————————————————————–

6. E-Verify: Require all employers to be on the system after 5 years.

——————————————————————————–

7. H-1Bs: Increase the quota to a floor of 110,000 and a ceiling of 180,000, increase the U.S. advanced degree exemption to 25,000 but limit it to STEM graduates, add a recruitment requirement for all H-1B labor condition applications involving a detailed posting on an Internet site designed by the Labor Department, add a non-displacement attestation, change the prevailing wage formula, provide EADs for spouses, and add a 60-day grace period after an H-1B has been terminated from his or her job.

——————————————————————————–

8. Fraud: Make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or BIA accredited representative when one is not authorized to do so. Require the identification of individuals who assist immigrants with the completion of forms and empower the Attorney General with injunctive authority to act against an unscrupulous “immigration service provider” at the federal level.

CONTENT COPIED DIRECTLY FROM THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION – www.aila.org

“Washington D.C. – The Department of Justice and the Department of Homeland Security have agreed to settle a nationwide class action lawsuit challenging the denial of work authorization to asylum seekers who have been waiting six months or more for a decision on their asylum applications. If approved by a federal judge, this agreement will help ensure that asylum seekers, who have fled persecution in their home countries, are not unlawfully prevented from working and supporting their families while the government adjudicates their cases. The settlement agreement represents the culmination of years of advocacy by the American Immigration Council’s Legal Action Center (LAC) and other groups on behalf of deserving asylum seekers.

The agreement stems from a case filed in December 2011 by the LAC and the Northwest Immigrant Rights Project (NWIRP), with co-counsel from the Massachusetts Law Reform Institute and the Seattle law firm Gibbs Houston Pauw. The complaint challenged widespread problems with the “asylum clock”—the system government agencies use to determine when immigrants who have applied for asylum may obtain permission to work lawfully in the United States.

The case, filed on behalf of asylum-seekers around the country, alleged that the current system unlawfully denies asylum applicants the opportunity to obtain employment authorization if their asylum application has been pending for six months or more. Some end up waiting several months or years for the government to make a decision on their asylum application. Indeed, one plaintiff from China has been waiting nearly 10 years for his case to be resolved. Employment authorization is critical given that most applicants have fled their home countries without any resources, and thus have no means to support themselves.

“The settlement agreement includes significant changes to ensure that vulnerable asylum-seekers are no longer arbitrarily deprived of the ability to work while the government decides their cases,” according to Mary Kenney, Senior Staff Attorney with the Legal Action Center.

“We are extremely pleased that we were able to achieve a solution that we believe will help hundreds, if not thousands, of people seeking asylum,” said Chris Strawn, director of the asylum unit at NWIRP. “Many asylum seekers who were stuck in limbo, without any way to support themselves or their family members while waiting for their asylum applications to be resolved, will now be able to obtain employment authorization.”

“Getting work authorization has been a huge benefit to me and my family, allowing us to sustain ourselves while waiting for a decision on my asylum application,” said B.H., one of the named Plaintiffs in the suit.

Because the suit involves a class action, the settlement agreement, filed April 12, 2013 in a federal district court in Washington State, will have to be approved by Judge Richard Jones, the judge overseeing the case.”

###

SOURCE – American Immigration Council Legal Action Center

“WASHINGTON—Secretary of Homeland Security Janet Napolitano has extended Temporary Protected Status (TPS) for eligible nationals of Honduras for an additional 18 months, beginning July 6, 2013, and ending Jan. 5, 2015.

Current Honduran beneficiaries seeking to extend their TPS status must re-register during the 60-day re-registration period that runs from April 3, 2013, through June 3, 2003. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to register as soon as possible once the 60-day re-registration period begins. Applications will not be accepted before April 3, 2013.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Honduran TPS beneficiaries who request an EAD and meet the re-registration deadline will receive a new EAD with an expiration date of Jan. 5, 2015. USCIS recognizes that some re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is automatically extending current TPS Honduras EADs that have a July 5, 2013, expiration date for an additional six months. These existing EADs are now valid through Jan. 5, 2014.”

For the complete article – please visit Temporary Protected Status Extended for Hondurans on the uscis.gov website.

Solitary confinement is one of the most severe punishments that can be levied against a prisoner or detainee. Yet “any given day,” according to a recent article in the New York Times, approximately 300 immigrants are held in solitary confinement at Immigration and Customs Enforcement (ICE) detention centers across the country. Of those held in solitary, the Times continues, “Nearly half are isolated for 15 days or more, the point at which psychiatric experts say they are at risk for severe mental harm, with about 35 detainees kept for more than 75 days.” (Emphasis added.) While the conditions of confinement vary, detainees facing solitary confinement have reported to being locked up alone for 22-23 hours a day, in windowless 6-foot-by-13-foot cells. The reasons given for detainees’ isolation range from a belief that they pose a threat to other detainees, to minor “disciplinary infractions,” to protection from potential violence by other inmates.

Based on oral accounts from prisoners, it seems that in many cases the practice of solitary confinement is unwarranted, excessive, and may amount to torture. Because of the lack of a independent, transparent monitoring system for the detention of immigrants, there are serious questions regarding accountability for detainee abuse. The reported effects of solitary confinement include: post-traumatic stress disorder, paranoia, depression, difficulty sleeping, and nightmares. In addition, according to the Times, detainees in solitary often suffer mental breakdowns that can include self-mutilation and even suicide as a result of prisoners’ deprivation of meaningful human contacts with others. Such conditions are likely to be especially traumatic for immigrants, especially victims of human trafficking and detainee asylum-seekers who have already suffered or fear future torture from authorities in their countries of origin. The immigrant population is in many ways the most vulnerable to abuse, especially because they often have family members who are illegal and afraid to complain or seek assistance. Moreover, unlike criminal detainees, immigrants do not have a right to free legal counsel, and many detainees cannot afford legal assistance.

According to a September 2012 report by the National Immigrant Justice Center (NIJC) and Physicians for Human Rights (PHR), part of the problem with respect to immigrant detainees stems from the fact that, “Most immigration detention centers are not dedicated facilities, meaning they hold both immigrants and criminally sentenced individuals,” leading detention center officials to rely on “local correctional policies” regardless of whether a detainee is considered dangerous or has been accused of any crime. Describing the use of solitary confinement as “often arbitrarily applied, significantly overused, harmful to detainees’ health, and inadequately monitored,” the NIJC and PHR report note that detainees frequently have little to no access to legal counsel or their families and often do not speak English, leaving them few if any means by which to appeal their treatment.

Because many immigrant detainees are being held under administrative and not criminal justifications, it is reasonable to question the need for many immigrant detainees to be held in detention centers at all. Because such immigrants are being held under civil and not criminal charges, they are not supposed to be punished, yet they languish in prisons for indefinite amounts of time, isolated from family members or legal counsel. The “supervised” release of hundreds of “low-risk” immigrant detainees due to budget cutbacks resulting from the federal sequester, for example, has raised the question in some quarters of whether those individuals’ detentions were necessary or justified to begin with. In this context, the widespread use of detention is itself frequently unnecessary, inhumane, and expensive, especially because of the availability of other reliable, affordable, and compassionate alternatives. Key recommendations of the NIJC-PHR report, for example, include a call on Congress to prohibit solitary confinement of immigrant detainees as well as “end” or strictly curtail “mandatory detention laws.”

As the Obama administration has increased enforcement, the immigration detention population has swelled; it has increased by nearly 85 percent since 2005. Once detained, there is no set date of release and detainees are transferred across state lines, often leaving family members without access to their loved ones.

Encouragingly, the renewed focus on solitary confinement has drawn the attention of Homeland Secretary Janet Napolitano, who affirmed earlier this week that “solitary confinement should be the exception, not the rule” and stated that she planned to undertake a review of the process. As of today, it remains unclear when such a review will take place or when any changes will be made in the existing scheme of solitary confinement and detention of immigrants. While Congress has legitimate goals of increasing enforcement of its immigration laws, such prioritizes should no longer curtail the rights of illegal immigrants facing detention.

*Maureen Johnson is Of Counsel to BOILA PC

By: Maureen Johnson*

Recent polls and statements by political leaders including President Obama demonstrate a growing trend in favor of legalizing same-sex marriage. As of this writing, same-sex marriages are nationally recognized in 13 countries worldwide. Nine states and the District of Columbia allow gay marriage. Nevertheless, current laws in the majority of U.S. states and at the federal level continue to deny same-sex married couples a wide range of rights and privileges enjoyed by couples in ‘traditional’ opposite-sex marriages. In this context, this week the United States Supreme Court heard two cases challenging the constitutionality of state and federal prohibitions on recognizing same-sex marriage, the outcomes of which will have major implications for bi-national same-sex spouses.

On March 26, the Court heard oral arguments in the case of Hollingsworth v. Perry, which challenges California’s Proposition 8. In 2008, California voters’ passage of Proposition 8 overturned a State Supreme Court ruling legalizing same-sex marriage and briefly allowing same-sex couples to marry in California. Later federal rulings overturned Proposition 8, but same-sex marriages have so far not been reinstated, pending a decision by the nation’s highest court. The Supreme Court could rule that same-sex couples have a right to marriage equal to that of opposite-sex couples, thus potentially overturning anti-same-sex-marriage laws in every state across the country. This approach, if taken, would be a huge success for marriage equality, thereby creating uniformity amongst states in granting same-sex couples equal rights under the law. However, the Court could also issue a more narrow ruling limiting the right to marry only to California, or more broadly to states including California that allow civil unions granting every right conferred by marriage without the title itself. Alternately, the court could deny standing to Proposition 8’s proponents (California’s governor declined to appeal the lower court ruling) on the grounds that they are not directly harmed by the legalization of same-sex marriage and therefore are ineligible to bring the case to begin with, in which case same-sex marriage could be legalized in California but would not be extended to any other state. Lastly, the court could deem Proposition 8 legal, thereby reinstating the law’s ban on same-sex marriage in California.

On March 27, the Court heard the second of the two marriage equality cases. United States v. Windsor was brought as a challenge to the federal Defense of Marriage Act (DOMA), which was signed into law by President Bill Clinton, who recently argued in a Washington Post op-ed that he now believes the law is unconstitutional and should be struck down. The main argument against DOMA in the Windsor case is that the federal government is denying same-sex couples equal protection under the law by its failure to grant federal recognition and benefits to same-sex spouses who were wed in states where same-sex marriage is legal. Just as California’s governor has opted not to defend Proposition 8, the Obama Administration has stated that it believes DOMA (and Proposition 8) unconstitutional and has opted not to defend the law, but nevertheless requested that the issue was important enough that the Supreme Court should review the case. As a result there is a question of standing in United States v. Windsor as well, but most observers believe that the Court will make a ruling one way or the other in this case.

According to the gay rights organization Immigration Equality, current regulations under DOMA mean that more than 1,100 federal programs and benefits are unavailable to married same-sex couples in the United States. The most important issue at stake from an immigration standpoint, however, is that citizenship rights cannot currently be extended to a non-citizen by virtue of his/her marriage to a same-sex American spouse. In effect, U.S. citizens with same-sex partners have been denied the right of petitioning for their spouses and have been largely powerless when their spouses face deportation. Such citizens have had to choose between remaining in the States without their husband or wife or leaving the U.S. in order to stay together. Should the Court strike down the section of DOMA currently under review, Americans in same-sex marriages with non-citizens would for the first time be able to sponsor their husbands and wives for legal status and eventual American citizenship. A narrow ruling by the Supreme Court striking down DOMA would allow same-sex marriage only in those states where courts have also deemed its prohibition unconstitutional, but a broader decision could void the unjust effects of DOMA countrywide.

Assuming the justices grant standing in either Hollingsworth v. Perry or United States v. Windsor, the ideologically divided court’s deciding vote in both cases is expected to rest with Justice Anthony Kennedy. The outcome of the cases will not be known until the Court’s decisions are released (likely sometime in June). However, media reports based on this week’s proceedings have suggested that Kennedy, along with the Court’s ‘liberal wing,’ appears ready to strike down the portion of DOMA currently being challenged, ruling it unconstitutional on equal protection grounds. I remain hopeful that the day will soon come when U.S. citizens in same-sex partnerships will be allowed equal rights under federal law and finally be able to petition for their non-citizen husbands and wives. It has been long overdue, but until DOMA’s ban is overturned, family-based immigration laws will continue to be unjustly denied to U.S. citizens in same-sex partnerships.

image source

*Maureen Johnson is of Counsel to BOILA PC