by Moses Apsan, Esq.
New York - February 9, 2011 - Arizona, the center of the anti- immigrant network and it's head henchman, Senator Russell Pierce are at it again with an attack at a segment of u.s born children by trying to strip away their citizenship; in an apparent effort to create an underclass. Pierce and his loyalist know that their battle is futile and un- Americanizing U.S. children will never happen, but they want to make a statement that is loud and clear. From their vantage point any one that is illegal the United States, no matter how long they have resided here, no matter the extent of their family, whether they are criminals or priests, are not welcome in this country under any condition. He wants them out, but if that is not possible, at least relegated to lower class, similar to the infamous "untouchables" in India's past.
Pierce, the architect of Arizona’s infamous and controversial immigration law, SB 1070, which, among other things, allows police to profile with impunity, is a sponsor of the citizenship legislation.
Just a few months ago, Pearce said that the U.S. Constitution’s 14th Amendment, which addresses citizenship, was never meant to include he children of people who live in the United States illegally.
“This is a battle of epic proportions,” Pearce, a Republican, commented at a press conference in Arizona. "We’ve allowed the hijacking of the 14th Amendment.”
The bill, SB1309 creates and defines an “Arizona citizenship.” A second bill, SB1308, will require that the Arizona’s governor to enter the state into agreements with other states to basically create two sets of birth certificates, one for children whose parents are here illegally, and another for those whose parents are citizens or who are legally in the country.
The legislative effort is part of a national strategy by anti-immigrant politicians desirous of finding a way to "ged rid of" illegal immigration by getting the US Supreme Court to review and opine on the issue of American citizenship. But the debate is deeper, it seeks to redefine who is an American citizen.
The bid to deny citizenship to the children of illegal immigrants failed to flourish on Monday when advocates could not get the votes of a Senate panel.
The central issue can be described as a disagreement of interpretation over whether jus soli, a legal concept that grants citizenship to those who are born within a territory, also extends to the 14th Amendment. The bills’ backers say it doesn’t while the bill’s opponents said it does.
After three hours or more of testimony at the Senate Judiciary Committee, Sen. Ron Gould, R-Lake Havasu City, pulled measures. Gould lacked the backing of four other members of the Republican-controlled panel, which he is the chairman.
Interesting enough, the drafting of the legislation would apply to Arizona residents and U.S. citizens who hold a dual citizenship, such as children born to U.S. soldiers in bases overseas.
What have these anti-immigrant, and some even call them anti-Americans created? Kevin Sandler, president of Exhibit One, said "We've created a toxic environment,"…"Businesses don't want to move here."
"What we've really done is create a not-open-for-business environment here."
Most all of the testimony at the hearing was in opposition. Activist Salvador Reza likened the debate over the children citizenship s "not very dissimilar to the debate that happened in South Africa not too long ago." "Young kids like this were denied citizenship for whatever reasons," Reza said.
Jennifer Allen, executive director of the Border Action Network, said that in essence, denying citizenship to children born in this country based on a parent's citizenship would create "a permanent underclass" of people in the state
The U.S. may soon find itself in a civil war when it comes to the issues surrounding U.S. immigration laws. No other topic of discussion can create such antagonism between man and woman, brother and sister, neighbors and friends, then a discussion of the 12 million illegal aliens in the U.S. The US seems to be revisiting the civil war were the nation practically split in two because of the issue of slavery. Now, with the federal government ‘s failure to take charge of the immigration issue, each state has decided to resolve it on their own leading to a checkered countryside of pro and anti immigrant cities and states.
Most recently cities and states have been staking their sides by providing some sanctuary to the illegal aliens living in their community.
A Sanctuary city protects illegal aliens through local resolutions, executive orders or city ordinances. City police departments may also issue their own special orders, policies and general orders to the similar effect. Some cities have formal sanctuary policies. Others have informal sanctuary policy that does not exist on paper but none-the-less is carried out by the actions of government workers (administrative, service, or safety).
As of this writing the following cities are considered Sanctuary Cities.
Sanctuary Cities, USA
· Anchorage, AK (6/13/07 Congressional Research Service) (7-29-10 The Municipality of Anchorage disputes the listing. See notes at bottom of page for details.)
· Chandler, AZ (Added 5/30/07, Congressional Research Service Report, 2006 )
· Mesa, AZ (Added 10-18-09, Sources: Judicial Watch; East Valley Tribune article,1-4-2008)*
· DeLeon Springs, FL
· Deltona, FL
· Jupiter, FL (Added 4-13-09. Previously on watch list.)
· Lake Worth, FL (Added 4-13-09.)
· Ann Arbor, MI (6/13/07 Congressional Research Service)
· Detroit, MI (6/13/07 Congressional Research Service)
· Albuquerque, NM (6/13/07 Congressional Research Service; 8-14-07 KOB-TV 4 Eyewitness News report)
· Aztec, NM (Added 5-8-10, Identified by CRS in 2006 report to Congress)
· Rio Ariba County, NM (6/13/07 Congressional Research Service)
· Santa Fe, NM (6/13/07 Congressional Research Service)
· Albany, NY (Added 7-22-09 Source: Council adopts don't ask policy, Times Union report by Jordan Carleo-Evangelist)
· Carrboro, NC (Added 11-12-07 Source: Towns differ on illegal aliens by Patrick Winn, The News & Observer)
· Chapel Hill, NC (Added 11-12-07 Source: Towns differ on illegal aliens by Patrick Winn, The News & Observer)
· Columbus, OH (7/5/07 Source: 5/10/07 Columbus Dispatch article stating illegal aliens in misdemeanor cases are not reported to ICE)
· Dayton, OH (Added 1-11-10 Source: Dayton Daily News story by Lucas Sullivan. Police chief prohibits officers from asking about immigration status.
· Lima, OH (Added 10-28-08 Note: City administration opposes County Sheriff's efforts to remove illegal aliens.)
· Oberlin, OH (Added 1-25-09. Source: City Resolution adopted January 20, 2009)
· Painesville, OH (7-19-07 Source: 7-18-07 Cleveland Scene article)
· Oklahoma City (de facto)
· State of Oregon * (8-9-07 Congressional Research Service) *(See note below)
· Philadelphia, PA* (7-15-10 Source: Mayor Nutter's, November, 2009 Executive order: Policy Concerning Access of Immigrants to City Services .)
Salt Lake City, UT
· Alexandria, VA* (Added 10-6-08, Source: City Resolution No. 2246 adopted 10-9-07)
· Madison, WI (Congressional Research Service) Update: In June, 2010, the city council passed a resolution reaffirming its policy.
Washington, D.C. (Update: The Washington D. C. city council has voted to prohibit its police department from participating in the Secure Communities program in July, 2010 according to an AP story by Ivan Moreno dated 7-26-10.)
Cities under review
Diamond Bar, CA (6/26/07 Disputed by city. Currently being researched to verify.)
DesMoines, IA (Added 11-28-07 Source: Proposal seeks banning immigration raids in D.M., by Nigel Duara, DesMoines-Register)
Bridgeton, NJ (Added 6-3-07) [7-27-07 Disputed by a reputed farm worker advocate, see note below.]
Peekskill, NY [Disputed, being researched]
San Antonio, TX [Note: The Sanctuary status of San Antonio is disputed, being researched.]
Watch List Cities Note: This is a new list started 8-14-07 and was updated on 12-2-10.
Sanctuary Cities, USA: Additional Notes
The Municipality of Anchorage sent OJJPAC a letter disputing the city's listing postmarked July 29, 2010. It claims that the Congressional Research Service's listing of the city as a "sanctuary" was based on a Resolution adopted by its Assembly (AR 2003-223) in 2003. The Municipal Attorney Dennis Wheeler says that that Resolution was rescinded on December 18, 2007.
Mesa Arizona has been added as a sanctuary city list because of its reported "don't ask don't tell policy" and criticism by the local sheriff that the city is not enforcing the law. The sheriff has arrested illegal aliens working in city buildings (as contract workers for a private cleaning company), reportedly after the city police department refused to investigate complaints of illegal hires by a whistleblower.
Philadelphia's Mayor signed an Executive Order in November 2009 that provided additional protections to illegal aliens in the city. However, the City of Philadelphia does have an existing Preliminary Arraignment Reporting System (PARS) agreement with ICE. Mayor Nutter objects to the PARS computer technology agreement which is now up for renewal. The Mayor apparently believes that the access of data by ICE will result in increased immigration violation investigations and deportations. Here is an article by the Philadelphia Inquirer.
Tucson Arizona has been added to the sanctuary city list because the Tucson police have instituted a new policy which prevents their officers from calling Immigration and Customs Enforcement to schools and churches.
Tulsa city councilor Jim Mautino was quoted in a Tulsa World article by P.J. Lassek, that he believes Tulsa is a sanctuary city and that the Police don't verify legal presense during traffic stops. Mautino wants to crack down on illegal aliens and introduce an ordinance mandating the use of E-Verify because the resolution that was passed cannot be enforced.
State of Oregon
According to a CRS report (October, 2005), Oregon passed a law in 1987 that prohibits local and state law enforcement from using state resources for locating and capturing illegal aliens. Law enforcement was permitted [but not required] to "exchange information" with federal immigration agents if an illegal alien was arrested for a crime.
San Bernardino, CA.
San Bernardino was added to the list on June 6th of 2007 as a result of a readers submission. On September 5th 2008, the city administration contacted me to dispute its listing. OJJPAC has asked the city's law department to forward copies of the city's policies regarding its processes when illegal aliens are encountered in its city.
Bridgeton, NJ 7-27-07 Disputed by a reputed farm worker advocate who sent me this email:
"I just wanted to point out an inaccuracy on your website's listing of sanctuary cities. You have Bridgeton, NJ listed as a sanctuary city, and indeed it is most definitely not. I work with CATA - The Farm workers' Support committee (www.cata-farmworkers.org) and we have an organized group of membership in this town. One of our goals is working towards making Bridgeton an sanctuary city, but the local government is quite unfriendly towards the immig
by Moses Apsan, Esq.
New York, NY - December 24, 2010. Steve Fischbein, a legal resident of the United States traveled to England to take care of the estate of his deceased mother. He planned on returning within six months, but because of unforeseen legal problems, he had to stay 18 months until everything was resolved. During these months he never returned to this home in New York City. On Christmas eve his plane finaly landed in Kennedy Airport.
He waited on the line to show his passport, but to his dismay, an immigration officer pulled him aside into a special room were he was interrogated and given a notice to see an immigration judge; they wanted to take away his Green card.
It can happen to anyone. A family emergency and you are flying back home to be with relatives. The trip should have been a quick one, but one thing led to another and you were obliged to remain out of the U.S. for over one year. And, when you return and least expect it, you find yourself in a position that may cost you your green card. The trip ends with a frightening note as you enter the U.S. A USCIS (immigration service) official tells you that you have abandoned your lawful permanent residence (LPR) status and sends you to see a judge, who will decide if you are to keep your green card.
While an extended absence alone is not good enough reason for revoking permanent residence, it is one factor the USCIS considers very important. So, when planning a long trip abroad, it is necessary to plan ahead to avoid abandonment.
Among the many factors that influence the decision on abandonment are the length and reason for the absence as well as the number and type of connections you maintain in the US. There are many steps you can take to show your intention to maintain their status in the US.
It is a commonly mistakenly belief that a visit every year to the US will preserve LPR status. While an LPR needs only the green card to reenter the US after an absence of less than one year, this is not enough to indicate the requisite intention to remain a resident of the US. The LPR must take additional steps to preserve their status.
A most important factor in preserving permanent residence is to continue filing tax returns in the US. Due to international tax laws, in most cases, there will often be no tax owed to the US government. Failure to file a return, on the other hand, is almost always considered a sign that LPR status has been abandoned. Bank accounts also play an important role making the maintenance of a bank account practically a requirement. Credit cards are also a factor to consider. Every LPR should maintain a US credit card. These accounts should be as active as possible. For example, if the LPR is employed abroad, the salary should be deposited in the US account. The LPR should continue to renew their US driver’s license. Ownership of real estate helps in establishes the requisite connection with the US.
If the LPR’s absence is due to employment, a letter from the employer detailing the terms and length of employment is very important. If the absence is for family or personal reasons, proof of the illness should be obtained. These reason are, however easy to manufacture, so good documentation is most important.
If you know for sure that you will be staying out over one year, a reentry permit is advisable. (Form I-131) However, many of these same factors are involved in the decision of whether to issue such a permit, and even with a reentry permit the LPR can still be deemed to have abandoned status.
It is important that the LPR traveling abroad for an extended period is prepared to document their intent to remain a US resident if questioned by immigration or consular officials. It is wise to carry copies of relevant documents in a single location that can easily be presented to officials. Among these documents should be copies of past tax returns, deeds showing property ownership, records of bank account activity, relevant letters from employers, and letters explaining the purpose of the extended absence.
A caveat – Congress changed the law a few years ago to hold that permanent residents who leave the US for more than six months can be held inadmissible if there is something in their background now that would bar them from getting a green card . This can happen if you were convicted of a crime before the changes in the immigration laws occurring in 1997. Therefore it is imperative that anyone with a prior conviction should consult with an attorney before traveling.
For everyone else, bon voyage.
by Moses Apsan, Esq.
Washington- December 18, 2010 - When the Senate failed to approve the Dream Act the "baby was thrown out with the bathwater." The DREAM (Development, Relief, and Education for Alien Minors) Act would have granted illegal immigrants under the age of 30 who entered the United States before the age of 16 and graduated high school, the right to apply for conditional legal status and if they complete two years of service in the military or two years of college they would be able to apply for permanent legal status.
But for no logical reason, those that opposed the Dream argued successfully that the bill is an amnesty and that it's approval would oppose enforcement of immigration laws and failed to include a resolution to the problem of border security. Sen. Jeff Sessions, R-Ala., on the Senate floor said that “this bill is a law that at its fundamental core is a reward for illegal activity.”
In the end, the vote was 55 to 41; five votes short of the 60 votes required to take the DREAM Act from bill to law. And even though many blame the republicans for the loss, five democrats voted against it's passage while three Republicans backed the bill. The defeat was a loud victory for conservatives who have worked successfully to label the bill as an amnesty. It was a blow to the Obama administration and for the democratic party in general and a continuation of the republican strategy to vote against any Obama legislation, no matter if it is, in reality, good for our country or economy.
Democratic Sens. Mark Pryor of Arkansas, Jon Tester of Montana, Max Baucus of Montana, Kay Hagan of North Carolina, and Ben Nelson of Nebraska , whose no vote made the difference between life in the shadows or life as an American to over 2 million children will now join those to blame for this nightmare.
Sens.Robert Bennett of Utah, Dick Lugar of Indiana and Lisa Murkowski of Alaska voted in favor of the Dream Act; displaying a glimmer of hope that the republican controlled congress of 2011 may yet provide some relief for these children and perhaps for the 12 million illegal aliens residing in the U.S.
Earlier this month the House's passed a similar bill and paved the way for today’s vote in the Senate. Along with Don't Ask Don't Tell it was an eleventh-hour effort to pass the measure before Republicans and the Tea Party take control of the House and seats in the Senate come the 112th Congress in January.
Advocates for the Dream Act aimed their arguments to senators from states with high Latino populations, saying that passage of the DREAM Act only rewards the hard work these young adults have displayed; children who were brought to the United States by their parents with no fault of their own.
Democrat Dick Durbin, the Senate Majority Whip tried to no avail to convince the holdouts that the law would have helped millions of young immigrants. “This is the only country they have ever known and all they’re asking for is a chance to serve this nation… that is what the DREAM Act is all about,” Durbin Said. “To say that we’re pushing and rushing a vote for them … it can’t come too soon! Their lives hang in the balance.” In the end he stated that “I’ve known the names of most people and how they would vote for a long, long time … we’d hope for a few more on our side of the aisle, but we didn’t achieve it today.”
After ten years of frustrating attempts to pass the Dream Act immigration activists and Hispanic leaders vowed to get even with the senators who voted against the Dream in the 2012 election and in the future.
by Moses Apsan, Esq.
A young couple came to my office recently with a familiar story. The husband, a United States citizen, sponsored his wife for the Green Card. As she entered the U.S properly, with a visa, she was allowed to "adjust her status" in the United States. Basically this means that she would be receiving her Green Card without having to leave the country. An application was filed, and an interview date scheduled.
At the interview however, some problems developed. In a short while the interview was over. Apparently the immigration official suspected that this was marriage of convenience. The official took the passport and stamped it. The stamp read "245 interview." The applicants were escorted out.
As a parting word the interviewer said, "You will be notified through the mail." Months passed and finally a letter arrived directing them to appear for a second interview.
They show me the notice and asked me what to do, what to say, what is going on. And I explain: The first interview is the standard interview and should have been their last but obviously the examiner was not satisfied. Instead of denying the application on the spot, which they have been known to do, the case was forwarded to the investigations unit of the U.S. Citizenship & Immigration Service (USCIS) for a second interview called a "Stokes" interview.
A Stokes interview is taped. The USCIS. official will thoroughly scrutinized the husband and wife in an attempt to arrive at the "truth." After all persons, including the attorney states his name and address the examiner asks whether any documents are being submitted in support of the petition. This is a good opportunity to "stuff" the record with documents in your favor.
Remember that the decision to deny or approve can only be based on the evidence in the record of proceeding. Examples of appropriate documents are: birth certificate of children, leases for apartments which indicate both names along with rent receipts, life insurance policy showing the spouse as beneficiary, joint bank account, cancelled checks showing both parties use the checkbook, joint credit cards, family medical insurance, letters from the employer (on their letterhead, signed by an official of the firm stating date employment began, marital status, and whom to notify in case of emergency), copy of income taxes (filed jointly if they were married at the time filing is required), and photographs of the wedding and other photographs since marriage.
Once the documents are submitted, the actual interrogation of the couple really begins. First, one is taken into a room with only the examiner and lawyer present. The examiner begins by initially asking innocuous and simple questions. Eventually the questions become more detailed, more personal delving into all aspects of the couples relationship. Questions range from who woke up first this morning to what side of the bed you sleep on. Questions about other family members, such as mother, father, sisters and brothers are common. They may even ask to see the keys in your pocket and ask what each key is used for. They may ask that you empty your wallet and look at the papers and documents you carry. They are always searching for discrepancies, such as a driver s license with a different address. When the inquisition is completed then the other spouse is questioned in the same fashion.
Again, with the lawyer present. The identical questions are asked again. This time to see if the answers are substantially the same. The attorney listens carefully for any inconsistency and if necessary, re-words the question or clarifies it in order to assist his client. The attorney is there to take notes in preparation of a future appeal should it become necessary. Once the second spouse has been questioned then both people are brought together.
If there were discrepancies or inconsistencies in the individual answers the parties are asked to explain. Here again the lawyer may be able to assist in clarifying the questions and answers given.
If all the doubts of the official are satisfied then the petition should be approved. If the examiner still believes that the couple only got married to get a green card they are sent home without an approval and will eventually get a notice of intent to deny in the mail. The parties have another chance to explain the discrepancies to the USCIS. If they are satisfied with the answers, they may either approve the case or send it back for another interview.
If it is denied ,an appeal can be made. If the appeal is denied, many cases are forwarded to the deportation unit to commence deportation proceeding. And during the deportation proceeding the couple has yet another opportunity to present their case to the judge and be granted the Green card. It is important to remember never make anything up at the Stokes hearing. If you forget or don t know tell the examiner just that. For example, if you forgot what your wife gave you for Christmas say that you don t remember. Because if you make up something you spouse s answer will be different and your case may be denied.
Let those who want to apply for a Green Card through marriage take note; Proper preparation is the key to success. Many a cases of real marriages have been lost because of improper preparation. Just because you have a good marriage does not mean that you will be able to answer all the questions properly. You must always prepare.
by Moses Apsan, Esq.
New York - December 4,2010 - The final moments of the battle to approve the Dream Act are coming near as Democrats and even Republicans brace themselves to survive the almost inevitable Republican filibuster.
The White House has finally drawn the line in the sand and has taken an aggressive stance on approval of the law during the remaining days of the lame duck congress before a more conservative Congress takes over in January.
On Monday, the White House held a Web chat on the DREAM Act with Cecilia Munoz, the director of Intergovernmental Affairs.
"We have engaged members of the president's cabinet," Munoz said, rattling off people and agencies like Secretary of Education Arne Duncan and the Department of Homeland Security and the Department of Defense, each of which has said the DREAM Act is crucial to their missions." It's kind of an all hands on deck moment here in the administration, involving multiple agencies," Munoz said. "The president himself is engaged.
"We're going to do everything we can to lay the groundwork and create the space for people who know this population of students to do what they know is the right thing to do," Munoz said.
During the short window of opportunity before the 112th congress begins, some Latino Republicans are taking the bold step and crossing the aisle in order to help pass the DREAM act. Along with President Obama and thousands of religious and educational organizations, they want to bring the tragedy these children suffer to a close.
Although Reid vowed earlier this month to bring a vote on a stand-alone Dream Act bill during the lame-duck session, he has been unable to keep in line his 58-member caucus. It's in doubt if he'll be able to get the 60 votes needed to defeat a GOP filibuster.
Senate Majority Leader Reid has fought tirelessly for the Dream Act, even during his difficult campaign against Sharron Angle, an anti-immigration candidate. Were it not for the Latino votes, he might have lost the election. Reid released a statement that spoke to Republicans directly:
"Last time we sought to bring up this bill, all Republicans blocked our effort, even though many have been supporters of the DREAM Act in the past. I hope that our Republican colleagues will join me, Sen. Durbin and Democrats in passing this important piece of legislation, now that we have a stand-alone version and that political season is over."
At the same time, in the House, there is an almost frenetic movement toward passage of a Dream Act-type bill. According to the DREAM Act's most vocal congressional advocates, they are positive but cautious.
"The core group of House members who support immigration reform and the DREAM Act have been reaching out throughout the Democratic House caucus," Illinois Rep. Luis Gutierrez told ColorLines "From what we are hearing back, I am encouraged by the breadth of Democratic support."
Rep. Gutierrez has been the loudest voice in the fight for comprehensive immigration reform. He is the Chair of the Democratic Caucus Immigration Task Force, and is the Party's leading strategist and spokesperson on immigration issues. Gutierrez has long fought for a comprehensive immigration reform solution, and has emerged as the DREAM Act's most active advocate.
((Republican are moving toward support of the Dream Act. Reps. Lincoln Diaz-Balart (FL) and Ileana Ros-Lehtinen (FL) contacted House Speaker Nancy Pelosi in support of the Dream Act)). Another Republican congressman-elect, David Rivera of Miami, also supports the DREAM act, according to the Sun-Sentinel.
"The drumbeat is getting louder," Frank Sharry , executive director of America's Voice told the Sun Sentinel. "Now is the time for Congress to step up to the plate and secure America's future with the extremely popular, bipartisan DREAM Act."
It is expected that a version of the DREAM Act could be on the floor for a vote in the House Wednesday or Thursday this week, where it appears that there is greater support than in the Senate. House Democrats are conducting a study to determine the bill's exact numbers. 218 is needed to pass the Act in the House, but insiders say that the numbers look good so far.
Will the White House support, Gutierrez's mania and the diligent work of Sen. Harry Reid surmount the anti-immigrant attitude of the Republicans? It's impossible to foretell. Most Republicans want complete security of the border before any type of aid for these undocumented children, a goal that simply is unreachable -- and they know it.
by Moses Apsan, Esq.
It's happening all over the country, thousand of students are lobbying congress for support of the Dream Act, which would legalize up to 2 million children that entered the U.S. before the age of sixteen.
Support for the Dream Act is snowballing into a possible vote in the Senate coming up next week. Not only are students, educators and religious organizations driving hard the value of legalizing these kids but so are politicians; perhaps even from both parties.
Nevada Senate Majority Leader Harry M. Reid (D), who without Latino vote would perhaps, not been reelected in his uphill battle against Sharon Angle and soon to be ex-House Speaker Nancy Pelosi (D-Calif.) have made it clear that they will move on the Dream Act ( Development, Relief and Education for Alien Minors Act) in the lame-duck session of Congress.
Reid stated that "Currently, ((individuals who were brought to the U.S. illegally years ago through no fault of their own have no way to legalize their immigration status and go to college to improve their lives))," Reid said in a statement. "The DREAM Act would address this problem by providing that upon graduation from high school, young people who have stayed in school and out of trouble would be able to apply for conditional legal immigration status. This status would be made permanent if they continue on to college or serve in the military."
Even President Obama has finally joined in and after a recent meeting, the White House released a statement reasserting the president's backing for the bill. President Obama called on lawmakers to vote before this session expires.
Although Obama has been a fervent DREAM Act supporter,he has done little to move the act forward and in fact, has taken a hard line on immigration violations by having Homeland Security work methodically to locate and deport immigration violators and has simultaneously shored up the Mexican border.
Now Obama wants the DREAM Act passed in the lame duck session as a "down payment" on future comprehensive immigration reform.
The frenetic movement towards a vote is due to the limited time period before the Republicans take over the House and some seats in the Senate in January. With only 15 legislative days left in this session; time is of the essence. Comes January, the power shifts and the new republican congresses' focus will like be on "Bush tax cuts" and other pro corporate measures. The new congress will,undoubtedly have different priorities than the democratic congress of the last two years. The Dream Act will not be at the apex of their agenda.
We can be quite sure that republicans elected this midterms will join their colleagues and when it comes to comprehensive immigration reform. They will focus, instead to border enforcement, employer sanctions and temporary foreign work visas.
There were eleven republicans that voted for DREAM in 2007, but some have moved on , either replaced or retired. The new members will most likely may be unsympathetic to the any bill that legalizes illegal aliens, even if these aliens were innocently brought into the United States by their parents.
The Problem: To move forward comfortably in the Senate, there must be cloture which required 60 votes. The Democrats are still in control of the Senate in the next Congress, but they will not be able to do anything without the approval of Minority Leader Mitch McConnell. Without the 60 votes they cannot control Republican filibuster, which will tie up the Senate until January.
In other words, Senator Reid and his team will need "a few good republicans" to join them, Who knows how even democrats will eventually vote.
The DREAM Act is a bipartisan legislation pioneered by Sen. Orin Hatch [R-UT] and Sen. Richard Durbin [D-IL] that can solve this injustice in our society. Under the though provisions of the DREAM Act, qualifying undocumented youths would be eligible for a 6 year long conditional path to citizenship that requires completion of a college degree or two years of military service. Conditional Permanent Residency is similar to Legal Permanent Residency in that you would be able to live legally in the U.S. , go to college, work, drive and travel. But it lasts for only 6 years. Students would be eligible for student loans and federal work-study programs, but will not be eligible for federal financial aid such as Pell Grants.
Who would Qualify for the Dream Act?
The following is a list of specific requirements one would need in order to qualify for the current version of the DREAM Act:
• Have proof of having arrived in the United States before age 16.
• Have proof of residence in the United States for a least five consecutive years since their date of arrival, compliance with Selective Service.
• Be between the ages of 12 and 35 at the time of bill enactment.
• Have graduated from an American high school or obtained a GED.
• Be of "good moral character"
How it works:
• "conditional" status would be granted during the first six years.
• the youth would be required to graduate from a two-year community college or complete at least two years towards a 4-year degree, or serve two years in the U.S. military.
• After the six year period, an youth who met at least one of these three conditions would be eligible to apply for legal permanent resident status.
• During this six year conditional period, these students would not be eligible for federal higher education grants such as Pell grants, but they would be able to apply for student loans and work study.
• If the youth did not meet the educational or military service requirement within the six year time period, their temporary residence would be revoked and they would be removable (deportable).
• They must not commit any crimes other than those considered non-drug related misdemeanors. Being convicted of a felony or drug-related infraction would automatically remove the six year temporary residence status and they would be subject to deportation.
• If the youth met all of these requirements at the completion of the 6-year conditional period, they would be granted permanent residency, and eventually will be eligible for U.S. citizenship.
The DREAM Act, which has been unable to clear republican filibuster threats for years, is fighting for its life to become law before the republican takeover of the Congress in January. Fear of the Tea Party anti-immigrant republicans and some say racist attitudes have fueled this final push during the lame duck session.
A statement from the National Immigration Law Center, which helps immigrants gain citizenship, said, "By bringing the long-overdue DREAM Act to a vote, Senator Reid has shown that he agrees with 70 percent of Americans who want to provide undocumented young men and women a chance to apply their full potential to making our country a better place to live."
by Moses Apsan, Esq.
November 18, 2010 - Fear is a powerful motivator. Adrenaline rushes throughout the body and man is capable of doing almost super human acts. Such is what may happen on November 29th when the Dream Act has been set for a vote in the House of Representatives.
Following a meeting between President Obama and Congressional Hispanic Caucus leadership, New York Rep. Nydia Velasquez announced that Speaker Nancy Pelosi has tentatively set Nov. 29 as the date to bring the DREAM Act up for a vote.
President Obama has been a diligent DREAM Act supporter, but has done little to move the act forward and in fact ,has taken a hard line on immigration violations by having Homeland Security work methodically to locate and deport immigration violators and has simultaneously shored up the Mexican border.
Now Obama wants the DREAM Act passed in the lame duck session as a “down payment” on future comprehensive immigration reform.
According to a White House statement “[t]he President and the CHC leaders believe that, before adjourning, Congress should approve the DREAM Act. This legislation has traditionally enjoyed support from Democratic and Republican lawmakers and would give young people who were brought as minors to the United States by their parents the opportunity to earn their citizenship by pursuing a college degree or through military service.”
Both New Jersey Sen. Robert Menendez and Illinois Rep. Luis Gutierrez, proponents of a more comprehensive immigration reform bill, were also in the White House meeting, which led to Gutierrez commenting that “Passage of the DREAM Act is achievable right now.” … “With the White House, Majority Leader Harry Reid, Speaker Nancy Pelosi and every Democratic Leader in the House and Senate pulling in the same direction, we can pass the DREAM Act before the end of the 111th Congress.”
The fight for the Dream Act has been building up to a crescendo. Recent activities by students remind us of the anti-war vietnam rallies in the sixties.
For eight days students at the University of Texas at San Antonio staged a hunger strike in support of immigration reform. The students would not not eat until U.S. Sen. Kay Bailey Hutchison votes in support of the DREAM Act. Lisette Mondello, a Hutchison spokeswoman told the students that “The senator has consistently stated that she cannot support the current DREAM Act legislation in its present form, but that she was willing to work toward an acceptable legislative product,” making it appear that she would support the bill with some modifications.
Just last month a group of college students appeared at the state Capitol to looking for support for the DREAM Act. They called themselves the Dream Army and they hoped to the persuade Sen. John McCain, R-Ariz., to vote for the bill.
This Saturday, there will be an all-day Connecticut DREAM Summit at Dwight Hall at Yale University. On Wednesday at 4:30 p.m., there will be a program on undocumented students at the Western Connecticut State University's midtown student center theater.
And Students from all parts of Los Angeles area held several events last week to push Congress to pass the DREAM Act.
Events such as these are happening thoughout the country and more is expected as we near November 29.
Majority Leader Harry Reid who recently struggled though a election with opponent Sharron Angle, a Tea Party nominee, thankful for the hispanic vote that pushed him through the finish line, vowed to move the immigration bill to the floor during the lame-duck session. Angle's attitude is similar to many of the Tea Party republicans when she stated during an election debate that "the solution is simple: Secure the borders, enforce the laws. I think every state should have a sheriff like Joe Arpaio, and I think we should be supporting states like Arizona."
The DREAM Act, which has been unable to clear republican filibuster threats for years, is fighting for its life to become law before the republican takeover of the Congress in January. Fear of the Tea Party anti-immigrant republicans and some say racist attitudes have fueled this final push during the lame duck session.
More than 3 million students graduate from U.S. high schools every year, and about 65,000 are illegal immigrants who entered the U.S. as children. 'There are approximately 825,000 young immigrants that would benefit form the Dream Act. The overwhelming majority under the age of 35, according to the Migration Policy Institute.
Critics call the Dream Act an amnesty and argue the border has to be secured before passing any law that would benefit those illegal in the country.
The critics, for reasons of their own, have failed to understand that the Immigration and Customs Enforcement agency expects to deport about 400,000 people this year, nearly 10 percent above the Bush administration's 2008 total and will also penalize employers who hire undocumented workers. Company audits has almost quadrupled since President George W. Bush's final year in office.
by Moses Apsan, Esq.
Immigration attorneys, like most of the country are occupied with the economy and the bottom line in their practice. Meanwhile the immigration environment in the United States is set for a major modification following the Republican wave in the recent election which caused a switch in party control in the House, and a reduction in the Democratic majority in the Senate. This event will likely cause a major shift in the immigration bar's current practice.
At a first glance it seems that talks of legalization or even a temporary worker program will move to the back-burner. Just like the year McCain-Kennedy bill passed the Senate, the new tea bagging Republican House will most like continuing their "NO" approach to any immigration benefits. Additionally more enforcement legislation is likely to pass Congress. Perhaps a reduction in immigration benefits will follow. It is possible that the Obama Administration may increase enforcement both in the interior and the Mexican border even further than their current record breaking deportations, that statistics reflect.
What this could mean for immigration lawyers is that business from ICE roundups will likely geometrically increase while family-immigration and employment-immigration based practices will most likely experience a slow down. Deportation (Removal) work will likely increase steadily. The greatest fear is that the anti-immigrant representatives are getting poised to attempt at controlling the national conversation on immigration reform.
America's immigration story continues, but meanwhile let's take a look at what defenses are available to an illegal alien place in deportation proceedings under current immigration laws.
The Deportation or Removal Proceeding
When an Immigration Judge has found that an alien is illegally present in the United States, it does not necessarily mean that the person must be deported. The Immigration Laws provides many types of ways to prevent Removal (deportation). The most commonly used are (1) waivers of excludability and deportability; (2) cancellation of removal for permanent residents; (3) cancellation of removal for non-permanent residents; (4) suspension of deportation; (5) adjustment of status to permanent residence; (5) asylum and withholding of deportation; (6) legalization and registry and, (7) voluntary departure.
The immigration law lists various grounds by which an person in the middle of a deportation proceeding may apply for a Waiver. All the waivers available require that the alien’s establish hardship to himself or to his close family members if he were to be removed from the U.S. For example a person who is being deported for certain criminal grounds may be eligible for a waiver under §212(h) if the failure to admit him to the U.S. would result in "extreme hardship" to his LPR or USC spouse, parent(s), son(s) or daughter(s)., Similarly a person who has committed fraud or a material misrepresentation may apply for a waiver under §212(i) if his deportation from the U.S. would result in "extreme hardship" to his lawful permanent resident (LPR) or U.S. citizen (USC) spouse or parents.
Cancellation of Removal for Permanent Residents
A grant of an Application for Cancellation Removal has the effect of "pardoning" or "forgiving" the basis for the alien's deportability and returning his status to that of a lawful permanent resident. Only certain grounds of deportability may be waived by a grant of Cancellation of Removal. Moreover, under new immigration laws, an alien is only eligible for one (1) grant of such relief in a lifetime. A denial of an Application for Cancellation of Removal results in an administrative order returning the alien to his country of designation (citizenship, nationality, or last residence) through a forcible order effectuating his removal or deportation from the United States
Note that an Immigration Judge will balance certain positive factors against negative factors in determining whether an alien should be permitted to remain in the United States. In the case of Permanent Residents, a granted application will have the effect of allowing the lawful permanent resident to maintain his status and remain in the United States. In the case of Illegal Aliens, a granted application will have the effect of allowing an undocumented alien or nonimmigrant to become a permanent resident of the United States. An Immigration Judge will consider such factors as family ties, history of employment, community service, long residency in the United States, property & assets, criminal record, immigration violations, rehabilitation & remorse, etc. Both types of applications for Cancellation of Removal are discretionary in nature, permitting an Immigration Judge to grant or deny the application as he deems fit. Even if an alien can demonstrate all of the above factors, this does not mean that an application will be granted, only that he has demonstrated prima facie (minimum standards for eligibility) eligibility.
This section of the law allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a lawful permanent resident from the U.S. if:
1. He has been a Lawful Permanent Resident for a minimum of five years;
2. Has resided continuously in the U.S. for a minimum of seven years after being admitted to the U.S. in any status (prior to the institution of removal proceedings);
3. He has not been convicted of an aggravated felony;
4. He is not inadmissible from the U.S. on security grounds.
The following classes of persons are ineligible for cancellation of removal:(1) Certain crewmen; (2) Exchange visitors (in "J" status) who received medical training in the U.S.; (3) Persons who have persecuted others; (4) Persons who have previously been granted cancellation of removal, suspension of deportation (See below.) or relief under §212(c); and (5) Persons who committed certain criminal offenses prior to the accrual of the required seven years.
Positive factors include: (1) Close family ties within the U.S.; (2) Long time residency in the U.S.; (3) deep roots in the community (4) ill child (5) Hardship to person and immediate family; (6) Service in U.S. Armed Forces; (7) Employment history; (8) Ownership of property and business; (9) Service to the community; (9) payment of taxes (8) Rehabilitation (if criminal record exists).
Negative factors include: (1) failure to pay taxes (misrepresentation to the court (3) the nature and circumstances of the removal grounds; (4) Criminal record; and (4) other evidence of bad character.
Cancellation of Removal for Non Permanent Residents
Many people know this as the “10 year law.” It allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a non-permanent resident from the U.S. if:
1. He has been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable to persons who have served a minimum of 24 months in the U.S. Armed Forces, was present in the U.S. during his enlistment or induction, and is either serving honorably or has received an honorable discharge.) "Continuous" means that the person can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
2. He has been a person of good moral character for ten years;
3. He cannot be inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
4. He established exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident spouse, parent or child. (Note: not hardship to the applicant).
Cancellation of Removal for Battered Spouse
A battered spouse must firstly be put into deportation (or "removal" under the new law) proceedings. She must demonstrate three years of continuous physical presence in the United States, instead of ten years as applicable to other individuals. Time toward the three-year period would accrue even after she received the notice to appear for the removal hearing. This is different than the one that applies to other individuals where physical presence in the United States terminates upon service of notice or commission of a criminal act.
The applicant for cancellation must demonstrate good moral character and must not be inadmissible under:
1. Section 212(a)(2) - criminal and related grounds
2. Section 212(a)(3) - security and related grounds
3. Section 237(a)(1)(G) - marriage fraud
4. Section 237(a)(2) - criminal offenses
5. Section 237(a)(3) - document fraud
6. Section 237(a)(4) - security and related grounds
The applicant, furthermore, must not have been convicted of an aggravated felony.
Most difficult is the requirement that the applicant demonstrate that removal would result in extreme hardship. While the battered spouse or child has to demonstrate "extreme hardship", others need to show "extreme and unusual hardship." Unlike in the cancellation of removal for other individuals who have to show "extreme and unusual hardship" to a citizen or resident relative, extreme hardship alone to the battered applicant would suffice.
Suspension of Deportation
Any deportation proceedings commenced on or after April 1, 1997 are removal proceedings rather than deportation or exclusion proceedings.
However, persons who were placed in deportation proceedings prior to April 1, 1997 as well as NACARA applicants may still be eligible for suspension of deportation. The “seven year law” is more generous than Cancellation of Removal.
A deportable alien may apply for permanent residence through suspension of deportation if he is able to fulfill the following 3 conditions:
1. He must have been continuously physically present in the U.S. for at least seven years. Absences, which are “brief, casual and innocent”, do not interrupt the continuity of the alien's physical presence.
2. He must be a person of good moral character.
3. It must be an extreme hardship upon the alien, or his spouse, children or parents who are citizens or residents of the United States if he were deported.
Adjustment of Status
A deportable alien who is the parent, spouse, widow or child of a U.S. citizen may be eligible to apply to the Judge to adjust his status to that of a lawful permanent resident (Green Card). Also qualified to apply for adjustment of status are many aliens whose priority dates for permanent residence are "current". Aliens who obtained conditional permanent residence based upon their marriage, or the marriage of their alien parent, to a U.S. citizen who were unable to have their status adjusted from Conditional (temporary) resident to Permanent Resident may, once INS places them under deportation proceedings, have their application renewed before an Immigration Judge
Asylum and Withholding of Deportation
Those who have a well-founded fear of persecution if they return to their home country may apply for asylum if their fear is based on any of the following grounds:
1. Political opinion
2. Religious belief
5. Membership in a particular social group
If a person is granted asylum, after one year they may apply for permanent resident status.
Withholding of deportation is similar to asylum. However, it differs in 2 important respects: (1) It does not permit the alien to apply for permanent residence, and (2) it only prohibits the INS from deporting the alien to one particular country.
Legalization and Amnesty
Once an illegal alien has been found qualified for legalization or "amnesty" by the INS, the deportation hearing will typically be closed since the alien will have attained the legal right to remain in the United States. Those who have filed for LULAC or Meese (Late Amnesty) may have their cases terminated.
Registry is another means of attaining lawful permanent residence in the United States. It is available to aliens who have resided continuously in the U.S. since prior to January 1, 1972, who are persons of good moral character, who are not deportable on certain aggravated grounds, and who are not ineligible to citizenship. This is very similar to Amnesty and still is available to this day.
Anyone that has fulfilled the requirements for naturalization may request that the case be either terminated or held in abeyance pending the results of the citizenship application.
In most case, if there is no special relief available that would stop the deportation, the alien may apply for Voluntary Departure. Once it is granted the alien will have 4 months to leave the United States. During this time they can get their life in order and prepare for their departure. Voluntary Departure avoids both the problems associated with a deportation and enable to enable the alien, in many cases, to eventually return to the U.S.
Voluntary departure is available to aliens who are not deportable on aggravated grounds, who have the ability to pay for their own airplane tickets, who agree to depart within a period of time granted by the Immigration Judge, and who can establish good moral character during the previous five-year period. The IIRIRA limited voluntary departure in several important ways. Extensions of voluntary departure are no longer possible. Nor may an alien granted voluntary departure obtain work authorization. This limits the usefulness of voluntary departure.
Understand that every application for relief from deportation is decided at the discretion of the Immigration Judge, except for Withholding of Deportation. A final order of an Immigration Judge may be appealed to the Board of Immigration Appeals, and in some cases to the appropriate U.S. Court of Appeals.
Moses Apsan is the author of the web site DeportationDefense.com.
by Moses Apsan, Esq.
During the 2008 presidential election, Barak Obama made what is now, a broken promise to immigrant supporters that he would enact comprehensive immigration reform during his first year in office. But that was yesterday and today things have changed. Following the republican victory in the house, Obama, in a recent press conference failed to include any comment regarding his plans for immigration reform.
There still is a short window of opportunity to pass some type of immigration reform during the lame-duck congress. The democrats are still in charge during this transient period. Both Senator Harry Reid (D-Nev) and Sen. Dick Durbin (D-Ill.), hope to pass the Dream Act before the new congress takes over in January.
After January, when many anti-immigrant republicans take their position in the House and Senate, immigration reform efforts that include a path to citizenship for the estimated 11 million illegal immigrants living in the United States appears next to impossible.
In recent months there has been a strong lobby, composed of immigration reform advocates and students, for enactment of the Dream Act. Senator Reid inserted the act into the defense authorization bill along with a controversial repeal of “Don’t Ask, Don’t Tell," but(( Republican filibuster killed off chances of passing the DREAM Act before the November election)).
Sen. Dick Durbin (D-Ill.), the bill’s primary sponsor, re-introduced the act the day following the defense authorization bill filibuster. He said he hoped it could pass during a lame-duck session. “Some members of the Senate who are not going to return may vote in our favor,” he said. “I hope that’s the case.” At a Dream Act event he told supporters that “We’re not giving up,” … “This is not the end of the fight, it’s just the beginning.”
If all else fails, it's up to Obama to keep his promise of immigration reform and he has a way to do this; Executive Order. An Executive Order can provide immediate relief to certain Draconian provisions of the current immigration laws even while waiting for a comprehensive immigration reform. "[They] have been used to manipulate federal agencies in directions contrary to congressional intent"
Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Generally EO’s are used to direct federal agencies and officials in their execution of Congressional established laws or policies. However, there have been many instances that EO’s have been used to manipulate federal agencies in directions contrary to congressional intent.
For example on July 3, 2002, President George W. Bush signed Executive Order (EO) 13,269. The EO expedited the naturalization of soldiers in active duty by making them immediately eligible to apply for naturalization. For those soldiers were recently married it also extended their spouses conditional status (Green Card) for one year, and in six-month increments thereafter, until their spouses return from abroad.
Executive Orders are very powerful. They do not require Congressional approval to take effect but they have the same legal weight as laws passed by Congress. The President's source of authority to issue Executive Orders can be found in the Article II, Section 1 of the Constitution which grants to the President the "executive Power." Section 3 of Article II goes further and directs the President to "take Care that the Laws be faithfully executed." To implement or execute the laws of the land, Presidents give direction and guidance to Executive Branch agencies and departments, often in the form of Executive Orders.
If Congress is unable or unwilling to pass Comprehensive Immigration Reform this year, the President could issue sections of its content (such as the Dream Act) as a series of Executive Orders. In this way he would provideimmediate relief from the sections of the immigration laws that are creating the most problems. The Senate conservatives would find difficulty in blocking these orders as 2/3 majority would have to vote against it; which is unlikely. The Executive Orders could be challenged in court, but that would take a very long time, and in the meantime, enough relief would be given to the millions illegal immigrants in this country until a Comprehensive Immigration bill is finally made into law.