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IMMIGRATION

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					   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
         15MAR02   15MAR02   15MAR02   22JUL92   15MAR93
1
         15JUL03   15JUL03   15JUL03   01MAY02   15JUL03
2A
         01AUG99   15JUL03   15JUL03   08APR92   22FEB97
2B
         08JUN00   08JUN00   08JUN00   01AUG92   01APR91
3
         22AUG97   01FEB97   01FEB97   15DEC94   08MAR86
4
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.

				
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