Discretion for Immigration Judges for Employment-Based Visa Holders

Immigration Judges Given Needed Discretion in Deportation of Employment-Based Visa Holders

Washington D.C. – The American Immigration Council (AIC) applauds a decision issued [on January 21] by the Board of Immigration Appeals (BIA) in Matter of Neto, which empowers immigration judges who are considering deportation of individuals with approved work-related visa petitions and pending permanent residence applications. The issue at stake is whether an immigration judge has the authority to decide whether the approved visa petition – issued for one job – remains valid when the individual changes jobs. Without a valid visa petition, the individual will not be eligible for permanent residence.

In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act, which allowed applicants for permanent residence based on approved visa petitions the flexibility to change jobs. However, in 2005, the BIA decided in Matter of Perez-Vargas that an immigration judge had no authority to decide whether a new job was the same as or similar to the old job, which determines validity of their visa petition.  This left these applicants for permanent residence in limbo, stripping them of the ability to benefit from the 2000 law while in removal proceedings because the judges couldn’t, and the United States Citizenship and Immigration Service wouldn’t, determine the validity of their visa petition.

Today, in Matter of Neto, the BIA overruled its own earlier decision that denied judges this authority and will now allow them to decide whether a new job is acceptable, thus keeping the individual’s eligibility for permanent residence intact. In which case, the visa petition remains valid and the immigrant worker can proceed with an application to become a lawful permanent resident – potentially saving them from deportation.

AIC’s Legal Action Center filed an amicus brief in support of the applicant for permanent residence in the case. “Today’s decision will impact hundreds if not thousands of individuals in removal proceedings and will ensure that they have a full and fair opportunity to demonstrate to an immigration judge that they are eligible to become legal permanent residents” said Mary Kenney, attorney with the American Immigration Council’s Legal Action Center.

Read the amicus brief filed by the Legal Action Center here.

DREAM Act Summit in Sacramento

The College Board Advocacy & Policy Center and The California Legislative Tri-Caucus (The Asian Pacific Islander Legislative Caucus, the California Latino Legislative Caucus, and the Legislative Black Caucus)

Invite you to

Stand Up for the DREAM
February 3, 2010
9:30 – 11:30 am
State Capitol, Room 3191
Sacramento, CA

A summit to raise awareness about the plight of undocumented students and promote the DREAM Act as an effective, bipartisan solution. Distinguished panelists will include representatives from the legislative caucuses, scholars, educators representing K-12 and higher education, community activists and students.

Speakers include:

Senator Gilbert Cedillo, Chair, The California Latino Legislative Caucus

Assemblymember Warren Furutani, Chair, Asian Pacific Islander Legislative Caucus

Assemblymember Sandré Swanson, Chair, Legislative Black Caucus (invited)

Edward Hernandez, Chancellor, Rancho Santiago Community College District

Al Mijares, Vice President Western Region, The College Board

Save the date and register early to reserve your space for this free event.

To register, please email jdonovan@collegeboard.org

with your name, affiliation, and email address.

To learn more, visit www.collegeboard.com/dreamact.

Schwarzenegger: Send illegal immigrant inmates to Mexico

California Governor Arnold Schwarzenegger on Monday January 25th “offered yet another way California can save on incarcerating illegal immigrants: send them to Mexico. . . . Schwarzenegger’s budget plan calls for an $880 million infusion from the federal government to pay for housing illegal immigrant prisoners who have committed crimes in California. . . . But he later gave an off-the-cuff suggestion that California should send its undocumented inmates to Mexico and help our southern neighbor build a new prison to house them. `In the prison system alone, we can go and take inmates, for instance, the 20,000 inmates that are illegal immigrants that are here, and get them to Mexico,’ Schwarzenegger said.”

Guantanamo for Haitian Earthquake Victims?

Mike Levine and Justin Fishel write for Fox News:

Haitians left homeless or without food and water by Tuesday’s major earthquake may be sent to live temporarily at Guantanamo Bay, according to two Defense Department officials.

Military planners are considering housing Haitian refugees at the Naval base in Cuba, the officials told FOX News.

“We are certainly keeping that option open,” one official said. “Of course no final determinations have been made as the military is still in its ‘assessment’ mode.”

Guantanamo Bay has a long history of housing refugees from the Caribbean, particularly Haitian refugees.

In 1991, after a military coup ignited a violent power struggle in Haiti, more than 30,000 Haitian refugees passed through Guantanamo Bay, according to GlobalSecurity.org.

If refugees from Tuesday’s earthquake are brought to Guantanamo Bay, they would likely be housed at Camp Justice, where reporters and other visitors have stayed when covering the military trials of terror suspects. Click here for the rest of the story.

New SSRN Immigration Publications

Here is the latest immigration publications from the Social Science Research Network (www.ssrn.com):

Women’s Unequal Citizenship at the Border: Lessons from Three Nonfiction Films about the Women of Juárez” in GENDER EQUALITY: DIMENSIONS OF WOMEN’S EQUAL CITIZENSHIP (Linda C. McClain, Johanna L. Grossman, eds., Cambridge University Press, 2009) by REGINA AUSTIN, University of Pennsylvania Law School.  ABSTRACT:  There is no better illustration of the impact of borders on women’s equal citizenship than the three documentaries reviewed in this essay. All three deal with the femicides that befell the young women of Ciudad Juárez, Mexico between 1993 and 2005. Juarez is just across the border from El Paso, Texas. Performing the Border (1999) stimulates the viewer’s imagination regarding the ephemeral nature of borders and their impact on the citizenship of women who live at the intersection of local, regional, national and international legal regimes. Señorita Extraviada (2001) is an intimate portrait of the victims which illustrates why the private grief of their survivors should have been a cause for public national mourning. Finally, Battle of the Crosses (2005), the work of social scientists, offers a panoramic description of the complicated social terrain on which the Juárez femicides occurred and their meaning was fought over. Together, the films suggest how borders are constructed and “performed” through law and law enforcement in ways that jeopardize women’s rights as citizens. The films also show how women in turn challenge law and law enforcement to transcend the limitations of social, political, and economic borders and assert their right to equal citizenship. Confronted with state intransigence in the face of the murders of dozens of young females, the women of Juárez used their traditional female roles as a springboard to political engagement. Overcoming the debilitating effect of class and ethnic marginality, patriarchal mass violence, and governmental corruption and lack of accountability, the women turned back the state’s effort to belittle the murders as private matters and the victims as deserving of their fate. The documentaries together provide a vivid case study that proves the importance of understanding the synthetic quality of borders and their relationship to women’s equal citizenship in a globalizing world where borders can pop up anywhere and at anytime.

“INA – 242(g): The Government’s Attempt to Bar Immigration-Related Damages Claims” Yale Law Journal, Vol. 119 SAMEER AHMED.  ABSTRACT:  Ever since the jurisdiction-stripping provision was enacted in 1996, federal courts have struggled over whether – 242(g) prohibits damages claims. On the one hand, the Third, Fifth, and Ninth Circuits have precluded damages claims under – 242(g), holding that the conduct alleged arose from the three actions mentioned in the provision: to commence proceedings, adjudicate cases, or execute removal orders. On the other hand, the Tenth Circuit, and district courts in the Second, Sixth, and Fourth Circuits have rejected the applicability of – 242(g), construing the provision narrowly and permitting the claims in order to avoid “grave constitutional issues.” This Comment argues that the government’s reading of – 242(g), supported by some federal courts, not only contravenes Congressional intent, but also contradicts the Supreme Court’s ruling in Reno v. American-Arab Anti-Discrimination Committee (“AADC”) to interpret the provision narrowly. Because – 242(g) does not bar constitutional and legal challenges to non-discretionary government action as well as challenges collateral to removal proceedings, courts must have jurisdiction to hear monetary damages claims brought by foreign nationals against immigration enforcement agents.

Making Sure that Help is on the Way to Haiti

By now, many of you have seen on the news the devastation and destruction wrought by the eathquake in Haiti.  We will know the magnitude of the human loss for weeks but it appears that tens of thousands of people have died.  Humanitarian assistance is much-needed.  Here is some information about aid efforts:

President Obama’s Remarks on Humanitarian Relief to Haiti

State Department Briefing on Earthquake Response Efforts in Haiti

USAID Responds Immediately to Haiti Earthquake

Here is a short list of charities that long have been involved In Haiti:

Direct Relief

Save the Children


Doctors Without Borders


International Relief Teams

World Hope International


Mennonite Central Committee

Plan USA

The Washington Post has a longer list.

Immigration legislation plans heating up

The article below describes the behind-the-scenes efforts in the U.S. Senate to craft a compromise bill on comprehensive immigration reform, which undoubtedly will include the AgJOBS farmworker immigration legislation.

From CongressDaily today:


By Chris Strohm and Dan Friedman

Senate Democrats have moved up immigration reform on their to-do list, tentatively moving the measure ahead of climate change legislation on the chamber’s timetable. Backers said it remains to be seen how serious the push for passage this year will be, but a key meeting was held Monday with staff from Sens. Charles Schumer, D-N.Y., and Lindsey Graham, R-S.C., and representatives from business and labor groups.

Participants said the meeting represented the start of a push to get the competing sides to find common ground in order to produce a bipartisan bill in the coming months. A spokeswoman said Senate Majority Leader Reid wants to move an immigration bill by July.

“I think that this is going to be the start of a process,” said Sonia Ramirez, legislative representative for the AFL-CIO, who attended the meeting.

“I think that our priorities and our requirements for reform were laid out and the challenge now stands with the senators to propose language that would achieve those things and for both sides to make assessments on how it matches their criteria,” she added.

In a step that could speed movement of a bill, Schumer — the Senate’s third ranking Democrat and chairman of the Senate Judiciary Immigration Subcommittee — plans to waive his right to hold a subcommittee markup and allow a bill to move straight to a full Judiciary Committee markup, Democratic aides said.

At this point, Schumer and Graham are trying to bridge differences between business and labor organizations. Those groups remain deeply divided on certain aspects of immigration reform, most notably over how to create a system to give U.S. employers access to foreign temporary workers.

Representatives from the U.S. Chamber of Commerce also attended Monday’s meeting.

The Chamber viewed the meeting as a positive, albeit initial, step. It awaits proposed language from the offices of Schumer and Graham that could come by the end of the week, said Randel Johnson, the group’s senior vice president for labor and immigration.

Some advocates of reform believe Schumer and Graham are beginning to ramp up pressure on the interest groups to find common ground.

“From my point of view, Schumer and Graham have a very good instinct for how to keep constituencies happy enough while putting together a bill that will have broad appeal,” said Frank Sharry, executive director of America’s Voice.

“If there’s going to be a bipartisan agreement announced, we’d like to see it in early February. And if either side delays that’s as good as saying no,” Sharry added.

Aides on both sides of the aisle said that while the Judiciary Committee may consider the bill this spring, the fate of the bill on the Senate floor will depend on the priority given to it by the White House.

“Democrats know that this isn’t going anywhere without presidential leadership and despite campaign promises we haven’t seen any presidential leadership thus far,” said a spokesman for Immigration Subcommittee ranking member John Cornyn, R-Texas.

Republican aides downplayed the chance of floor action on a comprehensive bill, saying they expect Democrats to push legislation to appease key constituent groups, but to move at most a limited bill on the floor due to the political risks associated with the issue in an election year.

GOP aides noted that Reid did not mention immigration reform Monday in an op-ed piece citing his 2010 legislative plans — an omission they said suggests the bill is not a priority.

Farmworker Justice

LA Times: Grand Jury Investigating America’s Toughest Sheriff

The L.A. Times reports that “A federal grand jury is investigating Joe Arpaio, the Arizona sheriff known for his aggressive stance on illegal immigration, for possible abuses of power in launching investigations of local officials who disagree with him, authorities said Friday.”

No stranger to controversy, Sheriff Joe often flirts with disaster. We will see where this investigation goes.

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