News Update - December 20, 2011Some Bad Immigration Lawyering in New York City; Status on Filing I-601 Waiver Applications Before Leaving Status For Consular Interviews, H.R. 3012 (China/India More Employment Visas Bill), SB 1070 and HB 56 (Arizona and Alabama Restrictive Immigration Laws)The New York Times on December 18, 2011, reported on the performance of lawyers as noted by Immigration judges in N.Y. that immigrants received inadequate legal assistance in 33% of the cases between mid 2010 and mid 2011 and grossly inadequate assistance in 14% of the cases. Statistics were compiled by a group of lawyers and researchers under Judge Robert A. Katzman of the Second Circuit Court of Appeals in New York City. The judges said that the lawyers were often poorly prepared and made incoherent arguments in court; that some failed to present key evidence or witnesses; and others simply did not show up. They gave private lawyers the lowest grades while generally awarding higher marks to pro bono counsel and those from nonprofit organizations and law school clinics. The judges were polled in 5 immigration courts, three in New York City and two in the northern suburbs. 31 judges participated in the investigation. A word to the wise would be to choose lawyers more carefully in light of these findings. We earlier reported that U.S.C.I.S. was considering the idea of allowing undocumented immigrants (who were not eligible for adjustment of status to permanent residence in the States, but could consular process their applications for permanent residence except for fear of being barred from reentry to the States) to file waiver applications in the States prior to having to decide to go overseas for interview. (See "Motions to reopen requiring exercise of prosecutorial discretion - should they be treated more kindly under administration's new policy? Filing I-130 petitions overseas with U.S.C.I.S. now; entry without inspection (EWI) with inability to immigrate may have a solution," Immigration Daily, 10/5/11). The latest news on the topic is in the December 8, 2011, status report on the DHS Ombudsman's recommendations on waivers of inadmissibility: Hopefully U.S.C.I.S. will make a favorable decision on the Ombudsman's recommendations as such would engender hope on the part of otherwise desirable immigrants who are stymied from immigrating by virtue of their not having been inspected nor paroled in coming to the United States. The status of H.R. 3012 (The Fairness for High Skilled Immigrants Act) is still on hold as Senator Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee, offered an unpalatable amendment on December 15, 2011, to include elimination of the family per country limit increases and reduction of the employment based per country limit to 15%. As originally conceived, the bill would lift the per country quotas on the employment based categories, providing relief for natives of China and India, whose immigration in these categories is severely backlogged. (See our article, "H.R. 3012 still on hold, but China and India EB-2 visas nevertheless advance through current visa scheme," Immigration Daily, 12/15/11). Grassley's proposed amendment would also eliminate the lottery program and add in provisions to drastically increase enforcement and U.S. worker protections to the H-1B and L-1 visa programs. His amendment was objected to, and therefore his hold on the bill remains. In reading the list of proposed changes to the bill, it is clear that Senator Grassley knew that he was placing a "poison-pill" in the legislation which most in Congress would not accept. We would venture a guess that he will filibuster the bill if a motion to proceed and motion for cloture are presented. The chances of passage into law of the bill which was passed in the House by a vote of 389-15 are not good at this point - but stay tuned. The Supreme Court on December 12, 2011, agreed to hear Arizona v. United States, the case involving Arizona's restrictive immigration legislation SB 1070, in which the state of Arizona was on the losing end of lower court rulings. The Obama administration had opposed Supreme Court review. The law requires local police to determine the immigration status of people they detain during a traffic stop or for questioning if there is reasonable suspicion that the individuals are in the United States illegally. Argument is expected to be heard by April and a decision issued before July. The newest Court member Justice Elena Kagan will not take part in the decision as she was Solicitor General when the Arizona law was being fought in the lower courts. (See our website (www.AlanLeeLaw.com) news articles, "Arizona law making illegal status a crime forcing the Administration to act on Immigration Reform" (4/24/10); "Obama re-energizes political base in suing Arizona over SB 1070" (8/3/10); "Supreme Court upholds Arizona law on mandatory E-Verify and illegal hiring licensing penalties, etc." (5/28/11)). Huge holes are now appearing in Alabama's restrictive immigration law, HB 56, as the ramifications of the impracticality of enforcing it become apparent. U.S. District Judge Myron Thompson temporarily enjoined Section 30 of the restrictive Alabama immigration law, HB 56, as applied to mobile homes, that anyone applying for an annual mobile home registration tag or a tag renewal is required to produce papers proving their citizenship or legal status in order to continue living in their mobile home. The ruling has implications far beyond just mobile homes. Alabama Attorney General Luther Strange sent a letter to legislative leaders suggesting that they drop whole sections of the law including the requirement that schools collect immigration data on children and parents because the cost would far outweigh the benefits; the part making it a crime for immigrants not to carry their papers, which is already illegal under federal law; the part barring people from college if they did not have documents because some people like certain refugees could be here illegally; and the sections allowing Alabama residents to sue officials they believe are not adequately enforcing the law, because of conflicts with the state constitution. Gov. Robert Bentley and the leaders of both the Alabama House and Senate released their own statements acknowledging major flaws in the law and promising that they would fix them in next year's legislative session. (For further information, see our articles "U.S. government files for emergency stay of Alabama immigration law; visa chart shows three months + gain for China and India in the EB-2 category," Immigration Daily, 10/11/11, and "Alabama law only partially blocked - multiple harmful parts to be enforced; H-1B cap usage advancing rapidly - exhaustion soon a possibility," Immigration Daily,10/20/11). However much the state of Alabama and its officials wish to "fix" the law, it is incapable of being fixed where undocumented aliens who enter into or attempt to enter into business transactions such as applying for or renewing driver's licenses, non-driver identification cards, business licenses, or license plates (other than mobile home registration tags), are committing a FELONY under state law. The only practical solution is to repeal the law.
† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004. ‡ This article © 2011 Alan Lee, Esq.
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