Immigration Visa Lawyer Blog

US Proposes Changes in F-1 & H-1B Visas to Attract More Foreign Skilled Workers

Fri, 03 Feb 2012 14:12:37 -0500

The United States Department of Homeland Security announced it will make changes in the F-1 and H-1B visa categories, which will likely benefit professionals from countries such as India. Changes would include providing work authorization for spouses of H-1B visa holders, 17-month extension of optional practical training (OPT) for certain F-1 international students, allow for additional part-time study for spouses of F-1 students, and allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

Under current immigration law, H-4 visa spouses of H-1B work visas holders are not permitted to work themselves. One of the proposed DHS regulations would change this. The new regulation would allow some spouses of H-1B visa holders to work legally while the H-1B visa holder spouses wait for their adjustment of status applications to be adjudicated. H-4 dependent spouses would be granted employment authorization when the principal H-1B visa holders begin the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the United States.

Currently, F-1 students may only work in optional practical training (OPT) for 12 months. DHS plans to provide 17 month extensions of OPT for those students with degrees in Science, Technology, Engineering and Mathematics (STEM).

Changes would also allow for additional part-time study for spouses of F-1 students, and would increase the number of Designated School Officials (DSOs) at DHS certified schools to enroll international students. Under current immigration regulation, spouses may only take part-time vocational or recreational classes. The proposed changes would permit spouses of F-1 students to enroll in additional academic classes on a part-time basis while the F-1 student is enrolled in full-time studies.

The DHS's stated purpose here is to reform administrative practices and ease the visa process for highly-skilled immigrants who want to come to the United States for work. This effort could help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

President Obama Plans to End Country-Specific Immigrant Caps

Thu, 02 Feb 2012 15:37:26 -0500

President Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. "If election-year politics keeps Congress from acting on a comprehensive plan, let's at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country," Obama said.

The Department of Homeland Security said it will implement several measures to simplify the process for immigrant entrepreneurs to do business in the United States, and also to keep more foreign nationals with science and technology degrees from U.S. universities.

Obama said the proposal was a "symbol of how important it is for us to spur entrepreneurship, to help start-ups, to move aggressively so that we can ensure more companies that create most jobs in our economy are getting a leg up from various programs that we have in our government."

Opponents of Obama's plan point to the high unemployment rate in the United States and question why the government would be extending nonimmigrant visas for highly skilled workers while many US citizens and permanent residents are unemployed and are seeking those jobs.

Obama told reporters on Tuesday that he expects Congress to pass a bill this year. However, some members of Congress are likely to oppose the proposal.

New Proposed Law Would Require Schools to Verify Students' Immigration Status

Thu, 02 Feb 2012 15:00:00 -0500

Missouri may join the list of states with their own immigration laws that rival the federal government's traditional enforcement role. A bill introduced in the Missouri Legislature by Republican State Senator Will Kraus would require state and local law enforcement to check the immigration status of anyone stopped by police with reasonable cause. The law would also make it a misdemeanor not to carry documentation of citizenship. These provisions are similar to the laws passed in Arizona and Alabama. The Missouri bill would also require school officials to verify students' immigration status. This has led to much criticism that the law would damage education and cause extensive racial profiling and harassment of children.

Laws currently on the books in Arizona and Alabama also make state and local law enforcement responsible for checking immigration statuses if they have reasonable suspicion that a person may not have legal status. Since immigration status is determined based on federal law, and immigration laws are principally enforced by federal agencies, this has created a conflict between state and federal law enforcement. Local police may not have the particular training and expertise to enforce federal immigration laws and regulations. Immigration regulations change on a regular basis. The state laws have also raised concerns that local police will engage in racial profiling, targeting individuals who, in essence, do not look "American."

Missouri's proposed law would add another layer to the confusion by putting school administrators and perhaps even teachers in the middle of the fray. Many immigrants and immigration attorneys know that immigration status is often not as simple as having a card or piece of paper. Federal law provides a vast number of forms of legal immigration status, and people who do not deal primarily with these issues may not know all of the available options.

Senator Kraus has stated that his bill was motivated by an effort to determine what "illegal immigration" costs the state, and whether Missouri could claim reimbursement from the federal government for its efforts in enforcing immigration law. He says that the bill would require the state's Board of Education to collect data and determine the cost to the state of educating undocumented immigrants. This is of course different from the cost of immigration enforcement. The United States Supreme Court has long held that children, regardless of immigration status, have a right to an education through the public school system. States have contributed to the cost of immigration enforcement in some ways. Cook County, Illinois, for example, recently addressed the issue of the cost of local cooperation with immigration detainers sent by federal officials, a story we covered in this immigration blog.

State Police Board Drops Immigration Screening Program in County Jails

Fri, 27 Jan 2012 19:46:26 -0500

At least one state has backed off from a plan to make local law enforcement handle immigration matters on top of their other duties. The Tennessee Peace Officer Standards and Training Commission dropped a policy that would require jail employees to ask about the birthplace and citizenship of suspects after they are booked. The state had only begun implementing the policy two weeks earlier. The decision, reached unanimously by the Commission on January 13, came after a Nashville immigration advocate threatened a lawsuit over various alleged open meetings violations during the process of formulating the policy. The rules allegedly grew out of meetings that were not open to the public and did not include input from county sheriffs' departments.

The program, which only took effect on January 1, simply required jail employees to ask two questions of people once they were booked into the jail: where they were born, and whether they were United States citizens. Tennessee legislators passed a law last year that ordered the Commission to develop guidelines for handling immigration issues in the state's county jails. This policy was the result.

Rather than face the lawsuit, the Commission decided to eliminate the program. The state will instead participate in the federal Secure Communities Program, which allows local law enforcement to share fingerprints and other biometric information with federal immigration authorities. Federal officials have access to multiple databases from various agencies containing criminal and immigration background information. Why the state of Tennessee initially opted to run its own program rather than use the existing federal system is not clear.

The Secure Communities Program has its own share of critics and detractors, of course. It has led to numerous allegations of inaccuracy and incorrect identifications, and it raises privacy concerns. Perhaps most notoriously, the program contributed to the accidental deportation of an American citizen to Colombia, as we previously reported in this immigration blog.

Sheriffs in Tennessee seem relieved by the Commission's decision, according to the Tennessean. At least some sheriffs viewed the program as an additional burden, and they welcome the chance to turn responsibility for enforcing immigration laws over to federal officials. Authority over immigration policy and enforcement is placed with the federal government by the U.S. Constitution, so it is not at all unusual for state law enforcement not to deal with such issues.

After Review of Pending Deportation Cases, One in Six Get a Reprieve

Thu, 26 Jan 2012 15:36:11 -0500

The Obama administration has adopted a policy of focusing immigration enforcement efforts on individuals with criminal records, particularly for violent crimes, and individuals believed to pose a threat to national security. They are therefore de-emphasizing cases against people who, despite allegedly lacking legal immigration status, have resided in the United States for a significant period of time, do not have criminal records, and have put down roots. This particularly includes people who have families in the United States, and who may have children who are themselves U.S. citizens.

The Department of Homeland Security (DHS), under the direction of the White House, recently undertook a review of all pending deportation cases in Denver. Of a total 7,900 cases, it found that 1,301, almost one of every six, should be closed under the Obama administration's guidelines. A similar review in Baltimore led to the closure of 366 of its 3,759 pending cases. "Closure" in this situation means that DHS and Immigration and Customs Enforcement (ICE) will no longer prosecute their claims against these particular individuals, and the immigration courts will suspend or dismiss the cases. Aside from dismissal of the deportation cases, this review does not confer any other benefits on any of the affected individuals. DHS hopes to conclude a nationwide review of pending cases by the end of this summer.

Critics of these reviews, and of the White House's policy in general, describe it as a form of "backdoor amnesty." This is a common criticism among those who seek stricter enforcement of our immigration laws, but it is not a fair way to characterise the reviews or the policy at all. Deportations and removals are complicated and costly proceedings, and the administration has made a decision to focus on the cases that could have the biggest benefit on society as a whole. Specifically, the benefit would be to seek to remove immigrants who have shown themselves to be violent or dangerous, and to leave the ones who are contributing to society alone. The people whose cases have been suspended or dismissed have not received any direct benefit from the government.

Bill Aimed at Streamlining the Immigration Process for Highly-Skilled Workers Meets with Controversy

Wed, 25 Jan 2012 14:08:25 -0500

Highly-skilled workers may immigrate to the United States with an EB visa, which offers them a path to permanent residence and perhaps citizenship. Workers already present in the U.S. with a temporary work visa, such as an H-1B, may also qualify to obtain a green card. Current U.S. immigration law only allows issuance of 140,000 green cards to people with temporary work visas. Additionally, every year immigration authorities can only grant seven percent of the total number of EB visas to applicants from any one country. This means that applicants from countries with few total applications may receive a visa quickly, while applicants from high-volume countries may wait years for approval.

A bill introduced in Congress last year, the Fairness for High-Skilled Immigrants Act, would remove the numerical caps on individual countries, significantly reducing the wait time for applicants from high-volume or "oversubscribed" countries like India. The bill passed the House of Representatives in November on a vote of 389 to 15, but it has stalled in the Senate. Critics point out that, while it may reduce wait times for applicants from some countries, in so doing it may substantially increase the wait time for others. It could potentially even exclude entire countries with low application rates. Critics also contend that the bill fails to provide for U.S. citizens who may also want high-tech jobs in a period of high unemployment.

The Washington Post profiled a couple living in suburban Washington, DC who came here from India seven years ago on temporary worker visas. Both work in high-tech jobs and have applied for permanent residence. Because of the high volume of applications from Indian nationals, they continue to wait. Under the terms of their temporary worker visas, they cannot change jobs or make significant changes to their living situations, and they must renew their visas every two years. They, and many other immigrants from countries like India and the Philippines, must live in a sort of suspended state while they wait for their applications to come up through the backlog.

The new bill would effectively eliminate the quota system established by current law. This could substantially benefit applicants from those large-volume countries, but applicants from lower-volume countries are less enthusiastic. The Post quotes an electrical engineer from Bangladesh, a country with far fewer visa applicants than neighboring India. He worries that the law would allow Indian applicants to "cut in line" in front of him, extending his wait time.

ICE Challenges Cook County, Illinois' Policy on Immigration Detainers

Tue, 24 Jan 2012 10:00:00 -0500

Cook County, Illinois, which includes the city of Chicago, is home to one of the country's largest jails. The county made headlines last fall when it decided to ignore requests from federal immigration authorities to detain certain inmates past their release date. The practice, known as an immigration detainer, describes a request by Immigration and Customs Enforcement (ICE) to local law enforcement to hold an inmate who may have immigration issues until ICE can take custody of the inmate. The Cook County Board of Commissioners approved an ordinance in September 2011 that prevents county jails from complying with ICE detainers unless ICE agrees to cover the cost of the extra detention. ICE generally does not compensate local jails for complying with detainers.

County officials, in addition to cost issues related to holding detainees longer in county facilities, point to due process concerns. Detainers, they argue, amount to additional imprisonment without the opportunity for hearing or review. This "erodes community trust in local police," they say.

The conflict between Cook County and ICE heated up in November with the case of Saul Chavez. Chavez was charged in a hit-and-run crash in Chicago that killed a pedestrian in the summer of 2011. ICE issued a detainer after his June arrest asking the county to notify them 48 hours before his release so ICE agents could take him into custody for alleged immigration violations. Chavez's family posted bond for him in November, after the ordinance had passed, so the county jail ignored the detainer and released Chavez. Chavez has not been seen since.

The same day that Chicago media reported on Chavez's case, January 4, 2012, ICE Director John Morton wrote a letter to Cook County Board President Toni Preckwinkle. Morton accuses the ordinance of "undermin[ing] public safety in Cook County" and possibly violating federal law. State and local law enforcement have little to no authority regarding immigration laws, and any obligation of local law enforcement to cooperate with ICE detainers is not well-defined. It is not entirely clear, therefore, how Cook County's ordinance violates federal law.

Critics of the ordinance had already alleged that it would eventually lead to violent and dangerous criminals being released from custody. Commissioner Timothy Schneider called it "our Willie Horton moment in Cook County." He has sponsored an ordinance that would allow the sheriff to communicate with ICE about specific detainers.

Afghan Water Polo Players Denied Visas, but Continue to Train

Thu, 19 Jan 2012 18:00:10 -0500

A water polo team assembled in the seemingly least likely of places, Afghanistan, suffered a defeat last month when the U.S. Embassy in Kabul denied visas to team members to come to California for training. The team plans to continue training at home, and they will be getting assistance from American and German coaches, who plan to go there in May to train the players and recruit new ones. Supporters of the team hope that, over time, U.S. immigration officials may be persuaded to grant visas to the players.

The water polo team is the brainchild of Marine Warrant Officer Jeremy Piasecki, who both played and coached the sport in California. He held tryouts for a team in 2008 when he discovered an abandoned swimming pool at an Afghan military base near Kabul. He recruited from the Afghan army, and after some training he has built up a team of several dozen players. Several years of fundraising led to their request for visas to spend three months training in the U.S. The team faced difficulties beyond training and fundraising. Three players died in combat, and another stepped on a land mine while guarding the pool. The entire country reportedly only has thirteen swimming pools.

The team had hoped to arrive in southern California on Christmas day. The U.S. Embassy, however, denied their visa applications in mid-December, citing concerns that the players would not leave when the visas expired and would remain in the country illegally. Media coverage does not specify which type of visa the players sought. The embassy did grant a visa to the one female player, who will learn about coaching and train with women's college players. Her plan is to return home to form Afghanistan's first national women's team.

Since the men's team cannot come to the United States to train, the trainers are going to them. The team announced in mid-January that it would send a group of coaches from the United States and Germany to Afghanistan from May through July. They will work with the current team, recruit new players for the team, and work on building a new "grass roots water polo team" in Kabul. Team leaders hope that this approach will convince U.S, officials of team members' intentions, and that they will therefore grant a future visa request.

Application of Prosecutorial Discretion in Ohio

Thu, 12 Jan 2012 09:30:35 -0500

What types of cases will qualify for prosecutorial discretion in Ohio?

At the Ohio AILA Chapter monthly meeting in December 2011 with Ohio Immigration lawyers, Immigration and Customs Enforceemnt ("ICE") Deputy Chief Counsel Victoria Christian discussed how the Cleveland office is applying prosecutorial discretion for respondents in removal proceedings. The Department of Homeland Security ("DHS") will consider exercising prosecutorial discretion only in the most sympathetic humanitarian cases. Top priority cases, high enforcement cases, and even borderline cases, will not be considered for prosecutorial discretion and will proceed to hearing. Cases involving detention are still a top priority for DHS and are not considered for prosecutorial discretion.

What is the most likely form of prosecutorial discretion that DHS will apply?

The form of prosecutorial discretion being applied in most cases is to stop removal proceedings by administrative closure. When a case is administratively closed, it is not dismissed or terminated. Rather, the case is postponed indefinitely. However, DHS will consider termination without prejudice and remanding to USCIS or motions to reopen in cases where a person becomes eligible for an immigration benefit, such as adjustment of status to permanent residence due to an approved I-130 family-based petition. A respondent may request a continuance in cases where DHS has not yet made a determination, and DHS may be willing to agree to a continuance if the respondent could potentially qualify for administrative closure.

Another form is deferred action, which puts the case on an indefinite delay. If a respondent has a pending relief application such as asylum or non-LPR cancellation, that person may not want to administratively close their case because the relief application may have merit. In this situation, DHS may consider a deferred action request if the respondent agrees to accept a final order of removal. DHS will not consider deferred action requests without a final order of removal.

Which cases will DHS review?

DHS is conducting an affirmative review of every case before the immigration court regarding prosecutorial discretion in the following priority order. New NTA's in non-detained cases are being reviewed by the duty attorney before filing with the court. All individual hearings scheduled within the next six months are being reviewed. All master hearings scheduled within the next six months are being reviewed. Cases before the BIA are not currently being reviewed because DHS states it does not have enough time. Once DHS determines that a case is being reviewed for prosecutorial discretion, DHS will contact the respondent's attorney to request more information or to make an offer to administratively close the case. The offer to administratively close should be responded to promptly since this is a one-time offer.

Controversial Arizona Sheriff Stripped of Authority to Conduct Immigration Screening

Wed, 11 Jan 2012 10:15:35 -0500

Advocates for fair and reasonable treatment of immigrants had cause to celebrate last month in Arizona. Maricopa County Sheriff Joe Arpaio has been a controversial figure in the national immigration debate for some time, but his office received a blow from the federal government last month after a report announced evidence of discriminatory and even unconstitutional conduct. The Department of Justice (DOJ) notified the Maricopa County Sheriff's Office (MCSO) on December 15, 2011 that it had to reach a voluntary agreement to cease practices of racial profiling and discrimination against Spanish-speaking detainees, or it would face a lawsuit for violations of the Civil Rights Act of 1964. The Department of Homeland Security (DHS) moved much more quickly, almost immediately revoking MCSO's authority to screen the immigration status of inmates in the county jails. Federal immigration authorities will handle that task for now.

Arpaio has been the subject of multiple investigations and inquiries in recent years, many directly related to how the MCSO handles immigration investigations and treats suspected undocumented immigrants. The DOJ began an investigation several years ago into allegations of discrimination and racial profiling, culminating in its December 2011 announcement. During the investigation, the DOJ threatened to sue the MCSO to compel its cooperation. Numerous lawsuits by groups like the American Civil Liberties Union and by individuals detained by the MCSO allege discriminatory or abusive acts.

A 2011 lawsuit, as one example, alleges that the MCSO kept a woman shackled during and after her delivery of a child by Caesarean section, causing injury and violating her rights. Authorities may have also violated state policies against shackling women in labor. The alleged incident occurred in 2009 after she had pleaded guilty to a forgery-related offense. She claims that guards at the jail ignored her cries for help because she was speaking Spanish. She had to find someone to translate for her.

The decision by DHS means that MCSO will have have full access to federal immigration databases under the Secure Communities program. Secure Communities is a program spearheaded by Immigration and Customs Enforcement (ICE), an agency of DHS, allowing local law enforcement to cooperate more easily with federal immigration officials by sharing information regarding detainees' immigration status and criminal records. The program is part of a policy of the Obama administration to focus immigration enforcement efforts on individuals with criminal records and those who pose a clear threat to public safety or national security.

Legal Issues Raised by Accidental ICE Deportation of Missing Teenager to Colombia

Mon, 09 Jan 2012 17:10:14 -0500

We recently blogged about Jakadrien Turner, who ran away from home in the fall of 2010, reportedly because she was upset over the death of her grandfather and her parents' divorce.

This case presents many questions, the most obvious of which is how ICE managed to arrest, detain, and deport an American teenager who does not speak Spanish to a Latin American country without even confirming her identity. ICE issued a statement earlier this week saying they are investigating the matter and take the allegations "very seriously." According to WFAA in Dallas, an ICE official also commented that individuals sometimes provide false information about identity and immigration status for "ulterior motives." How that relates to Jakadrien's case is anyone's guess at this point. The statement suggests two issues in immigration law that often present problems for immigrants and are certainly in play here: inaccurate information in government databases and use of false information by individuals.

Since the creation of the Department of Homeland Security (DHS) and the reorganization of federal immigration authorities into new agencies like ICE, much of the enforcement of immigration laws has increasingly relied on a series of databases of information on immigrants, their immigration history, and any criminal history. As with any large collection of information, it is prone to error. It has also led to multiple instances of people being incorrectly identified and detained, including both immigrants and United State citizens. People have spent days or longer in detention until a mistake is spotted, and they have little recourse after release. Perhaps it was only a matter of time before authorities actually deported a U.S. citizen in error.

Missing Dallas Teen accidentally Deported to Colombia despite being a U.S. Citizen

Sat, 07 Jan 2012 10:09:10 -0500

Federal immigration officials said Wednesday that a United States born teenager was erroneously deported to Colombia from Houston last year. Jakadrien Larise Turner ran away from home in the fall of 2010 when she was just 14 years old. When the teen ran away, her grandmother said, she could not speak Spanish. The Texas teenager used an assumed identity, reinventing herself as Tika Lanay Cortez. When she was arrested for shoplifting last year, Tika lied to police about her identity and gave the fake name, and she claimed to be 21 years old. She had no documents to establish her identity, and authorities never suspected she was anyone other than who she claimed to be.

Unfortunately, her fake identity was the real identity of a 22 year old Colombian citizen who was in the United States illegally. The girl was sentenced as an adult to eight days in jail for the theft charge. Houston police ran her alias through ICE's Secure Communities program, which is designed to identify people in the country illegally, the name was flagged as belonging to an undocumented immigrant.

ICE officials state that they were contacted first by Houston authorities who told them they had an undocumented immigrant in their custody. ICE agents arrested Tika, who still claimed she was from Colombia, and federal immigration proceedings were held to deport her.

ICE said criminal database and fingerprint checks it carried out during the deportation process had ''revealed no information to invalidate'' the girl's claimed identity. In the weeks that followed, no one suspected she was anyone other than who she claimed to be, including the lawyer at her trial and the Colombian diplomat who met her before her deportation. During proceedings to have her removed from the U.S., Colombian officials interviewed her. Once she was in that country, she was given full Colombian citizenship. It is unclear when she learned to speak Spanish.

According to USCIS spokeswoman Barbara Gonzalez, "As is standard protocol, criminal database searches and biometric verification [fingerprint checks] were conducted and revealed no information to invalidate her claims." Gonzalez said "She was ultimately ordered removed from the U.S. by a Department of Justice immigration judge."

Tika was then deported to Colombia, where she remains today. She is currently being held in a Colombian detention facility, and Colombian officials have refused to release her, even after the U.S. Embassy in Bagota asked police to return her to U.S. authorities. No reason for her detention was given.

USCIS to Ease Restrictions on Families Subject to 3 and 10 year bars

Fri, 06 Jan 2012 15:44:34 -0500

Many spouses and children of U.S. citizens qualify for legal immigration status, but are required to file the application overseas at their country of origin because they are unlawfully present in the U.S., also called "entering without inspection." If they were unlawfully present in the U.S. for more than 180 days, and then they go overseas, there is a law that bars them from reentering the U.S. for 3 years. This bar increases to 10 years if the illegal stay is longer than one year. This creates a catch-22 because if they leave the U.S. to apply for legal immigration status, they will be unable to reenter for 3 to 10 years. So, rather than go overseas to apply for legal status, many simply remain unlawfully in the U.S. to avoid being separated from their family for several years.

Many people who would be subject to the 3 or 10 year bar may be eligible for certain hardship waivers to allow them to return to the US after they apply for legal status overseas despite the 3 and 10 year bar. But critics say this process is lengthy and flawed. They are required to remain overseas until the waiver is granted before they can reenter the U.S., which is a process that can take from months to years, and there is no guarantee that the waiver will be granted. Therefore, many do not risk going overseas to apply for the waiver.

Even if a person has a legitimate relationship with a U.S. citizen, and is eligible to apply for legal immigration status, the current immigration law discourages that person from doing so. Instead, the current law actually encourages that person to remain in the United States illegally, or risk long term separation from the family.

Under the proposed rule change, announced today, foreign nationals in this situation could apply for the waiver while still in the United States. Then once the waiver is granted, they could depart and file for legal immigration status overseas at their country of origin, and then reenter the U.S. using the waiver.

This would eliminate the often prolonged wait faced by foreign nationals who are forced to wait overseas, and would encourage applicants to get legal status rather than remain unlawfully. "The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship," USCIS Director Alejandro Mayorkas said. This streamlined process would eliminate much of the economic and other hardships that result from long separation from the family.

Supreme Court Strikes Down "Abritrary and Capricious" Standards in Deportation Cases

Tue, 03 Jan 2012 15:14:52 -0500

A controversial procedure used by the Board of Immigration Appeals (BIA) and other immigration courts in deciding deportation cases did not withstand scrutiny by the Supreme Court. In a decision published on December 12, 2011 in Judulang v. Holder, a unanimous court ruled that the procedure used by the BIA in applying Section 212(c) of the Immigration and Nationality Act (INA) in certain deportation cases does not pass statutory scrutiny, and is improper and irrelevant to the process of determining whether a person should be deported. This is, of course, something that immigration attorneys have known for some time.

The INA, which contains most of the nation's immigration laws, establishes two categories of people who may be legally removed from the U.S., excludable (or inadmissible) aliens and deportable immigrants. Briefly stated, excludability affects people who allegedly did not have a legal basis for entering the country from the beginning, while deportation applies to people who have lost legal immigration status through a judicial process. Section 212(c) used to allow a person found to be excludable to request a waiver from the Attorney General, and the BIA long ago extended that relief to deportation cases as well. Congress repealed 212(c) in 1996, but it is still available to people whose deportation is based on criminal pleas entered before 1996.

Joel Judulang came to the U.S. from the Philippines at age 8 in 1974. He has lived here ever since. He pleaded guilty to voluntary manslaughter in 1988 because of his involvement in a fight where someone was killed. Prosecutors had charged him as an accessory to the killing. He later pleaded guilty to theft in 2005, and the Department of Homeland Security (DHS) sought to deport him based on the prior manslaughter plea. Because the plea was from before 212(c)'s repeal in 1996, Judulang could use it to request relief.

The BIA has applied a standard it calls "comparable grounds" in deciding whether to apply 212(c) in a deportation case. It reviews whether, in the statute defining grounds for deportability, there exists a ground that it deems sufficiently comparable to a ground for excludability found elsewhere in the INA. The immigration judge ordered Judulang deported, and the BIA affirmed, finding that the "crime of violence" ground of deportability did not have a comparable counterpart in the grounds for exclusion. The Supreme Court found the process used by the BIA to determine comparability to be arbitrary and meaningless. Justice Kagan, writing for the Court, held this standard to be "arbitrary and capricious," "irrelevant to the alien's fitness to reside in the country," and essentially a "sport of chance."

Arizona Sheriff Arpaio Mistreats Pregnant Mexican Foreign National Inmate

Fri, 30 Dec 2011 11:35:20 -0500

Miriam Mendiola-Martinez, a foreign national of Mexico, filed a lawsuit in Arizona last week against Maricopa County Sheriff, Joseph M. Arpaio alleging that she was mistreated while she was pregnant as an inmate in the Sheriff's jail. She was six months pregnant when she was arrested in 2009 on charges of identity theft. The suit states that her Eighth and Fourteenth Amendment rights were violated by the MCSO's infliction of cruel and unusual punishment, deliberate indifference to her serious medical needs, and disparate treatment. The lawsuit alleges that MCSO and Maricopa Medical Center's unconstitutional policies, practices, acts and omissions, Ms. Mendiola-Martinez suffered immediate and irreparable injury, including physical, psychological and emotional injury and risk of death.

According to the lawsuit, Ms. Mendiola-Martinez was undernourished at the jail due to what jail staff called a "special" pregnancy diet. These pregnancy meals consisted of items such as two slices of bread, two slices of cheese or ham, undistinguishable cooked vegetables, and an occasional piece of fruit. She was also given two small cartons of milk per day. This hardly seems to be enough food for a pregnant woman eating for two.

She was taken to the Maricopa Medical Center by MCSO officers when she began to go into labor. Ms. Mendiola-Martinez gave birth to her son via Cesarean section, and she was not allowed to nurse or even hold her son after he was delivered. Officers put shackles on her feet before and after the surgery, and she was shacked to the hospital bed. Wearing only a hospital gown, Ms. Mendiola-Martinez was forced to walk through the hospital, with her hands and feet shackled. She began to bleed and could do nothing about it. She was not provided with a breast pump to safely and hygienically remove the breast milk she produced while she was separated from her infant son.

When she was discharged from the hospital, Ms. Mendiola-Martinez was not given a wheelchair to assist her, even though she was in great pain and could hardly walk. A deputy took her so quickly from the hospital that she did not receive her pain medication and discharge paperwork. A deputy then chained Ms. Mendiola-Martinez again and forced her to walk back to the nurse's station. Then, while shackled at her hands and ankles, with a bleeding surgery wound, Ms. Mendiola-Martinez was returned to the Estrella Jail.

About September 2008, the Maricopa County jails lost their accreditation from the National Commission on Correctional Health Care. On October 22, 2008, the Honorable Neil V. Wake found that the food given to inmates in the Maricopa County Jails constituted "current and ongoing violation of pretrial detainees' federal right to adequate nutrition."

On December 15, 2011, the United States Department of Justice issued the findings of the investigation it began in June 2008 in a letter addressed to Maricopa County Attorney William Montgomery. In that, letter, the Justice Department stated: "MCSO operates its jails in a manner that discriminates against its limited English proficient ("LEP") Latino inmates. Specifically, we find that MCSO, through the actions of its deputies, detention officers, supervisory staff, and command staff, routinely punishes Latino LEP inmates for failing to understand commands given in English and denies them critical services provided to the other inmates, all in violation of Title VI and its implementing regulations." The Department of Justice also noted: "MCSO fosters and perpetuates discriminatory police and jail practices by failing to operate in accordance with basic policing and correctional practices and by failing to develop and implement policing and correctional safeguards against discrimination in such areas as training, supervision, and accountability systems."