IMMIGRATION PRESENTED BY CATHOLIC CHARITIES OF THE ARCHDIOCESE OF MILWAUKEE
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 SELFEVIDENT
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
2A
2B
3
4
15MAR02
15MAR02
15MAR02
22JUL92
15MAR93
15JUL03
15JUL03
15JUL03
01MAY02
15JUL03
01AUG99
15JUL03
15JUL03
08APR92
22FEB97
08JUN00
08JUN00
08JUN00
01AUG92
01APR91
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 selfpetition 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.
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