News Update - May 7, 2011

By Alan Lee, Esq.^†‡

Obama Increase in Popularity to Help His Immigration Push; CSPA News; Secure Communities Program Suffers a Setback.

With his popularity soaring following the successful mission to capture or kill Osama Bin Laden on May 1st, President Obama's chances of passing some type of immigration bill have to be said to be improved.  He showed no signs of slacking in his advocacy of Immigration Reform in meeting on May 3rd with the Congressional Hispanic Caucus.  When asked by Caucus members to consider administrative options, he said that his goal was to reform the law. On April 29th, he spoke to the graduates of Miami Dade College on his commitment to the DREAM Act saying, "I will keep fighting alongside many of you to make the Dream Act the law of the land."

In Child Status Protection Act (CSPA) news, the Second Circuit Court of Appeals in New York is scheduled to hear oral arguments in the case of Li & Cen v. Novak on May 12th in a case involving the "automatic conversion" clause of the CSPA as to whether the priority date of a parent who immigrated through the family based categories can be given to the subsequent I-130 petition that the parent files for an aged out child.  In an unrelated non-precedent case by New York Immigration Judge Gabriel Videla on February 16, 2011, Matter of Azam, the aged out child of a parent who immigrated under the employment based categories was allowed to count the time that the labor certification pended (five years) to bring his age under the age of 21, the court distinguishing it from the precedent case, Matter of Wang, not only because it pertained to the allocation of visas in the employment based rather than family based context, but also because it was arguably an emblematic case in which administrative processing delays directly resulted in the child's losing his eligibility as a derivative beneficiary. 

Secure Communities is a controversial program of immigration enforcement in which the government has been accused of deception in having states sign up for it.  The Administration aims for nationwide participation by 2013 and currently has more than 1200 community sign-ups in 42 states.  However, on May 4, 2011, the State of Illinois notified U.S.I.C.E., the program administrator, that it was terminating the Secure Communities Memorandum Of Agreement (MOA) between the Illinois State Police and U.S.I.C.E.  Under the program, states and communities are obliged to share fingerprints of those arrested with U.S.I.C.E.  In his notification letter, Gov. Pat Quinn reflected that the stated purpose of the program, as set forth in the MOA, was to identify, detain and remove from the United States aliens have been convicted of serious criminal offenses and are subject to removal, but that ICE's statistics through February 28, 2011, revealed that in Illinois, more than 30 percent of those deported have never been convicted of any crime, much less a serious one, and that less than 20 percent of those deported from Illinois had ever been convicted of a serious crime. 

† The author is a 30+ year practitioner of immigration law based in New York City. 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 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 Administration in the Intelligence Reform Act of 2004.

‡ This article © 2011 Alan Lee, Esq.

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