Thursday, November 20, 2014

What Changes To Expect From President Obama's Executive Action

President Barack Obama announced sweeping executive actions he intends to take significantly altering current immigration laws and policies. The President's executive actions, while welcomed by advocates of immigration reform, are drawing sharp reaction from many members of Congress and state and local officials. Opponents of his action are already threatening legal action to overturn the proposed changes on the basis that he is exceeding his executive powers. Indiana's Gov. Mike Pence was highly critical of the President's announcement. He called it an "unacceptable end run around the democratic process." "The State of Indiana will carefully evaluate the details of the Executive Order and take any available legal actions necessary to restore the rule of law and proper balance to our constitutional system of government," Gov. Pence said.

Here is an overview of what the President's executive action will mean assuming the President is legally allowed to go forward his plans.


Deferred Action For 4.4 Million Undocumented Aliens
Previously, President Obama by executive action enacted Deferred Action for Childhood Arrivals ("DACA") which allowed undocumented aliens under the age of 31 as of June  15, 2012 who arrived in the country prior to their 16th birthday and had continuously resided in the U.S. for at least five years to apply for a deferred action benefit, which allowed eligible beneficiaries to remain in the country for a 2-year period with opportunity for extensions and to obtain authorization to work. The President's executive action will eliminate the age cap and extend DACA coverage from those arriving prior to June 15, 2007 to include those arriving on or before June 15, 2010. Previously, only persons under the age of 31 were eligible for deferred action. Now anyone who entered the U.S. prior to their 16th birthday is eligible. A person granted the DACA benefit under the new program will be afforded the benefit for a 3-year period, subject to renewal. This part of the expanded DACA benefit is expected to be up and running within 90 days.

The second and most profound change in the deferred action benefit is the expanded coverage the President intends to offer to an estimated 4.4 million undocumented aliens who are parents of U.S. citizen and lawful permanent resident children who have been continuously present in the country since January 1, 2010. If individuals in this so-called DAP category pass background checks and pay back taxes, they will be eligible for deferred action with work authorization for a period of 3-years subject to renewal just like DACA beneficiaries. This new deferred action category is expected to be up and running within 180 days.

I-601A Waiver Expansion
The I-601A conditional waiver program, which allows undocumented aliens applying for a family immigration benefit for an immediate relative to apply for the hardship waiver prior to departing the country for an immigrant visa interview at a consulate abroad, will be expanded to include spouses and children of lawful permanent residents. The President's action will also clarify and expand the definition what qualifies as an "extreme hardship."

Enforcement Priorities
Existing ICE memos regarding enforcement priorities and prosecutorial discretion are to be replaced with a priority on the following categories of immigrants: (1) suspected terrorists, convicted felons, convicted gang members and persons apprehended on the border; (2) persons convicted of multiple or serious misdemeanors and very recent border crossers (those entering after January 1, 2014; and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal. The revised memo will contain strong language on the use of prosecutorial discretion.

Employer-based Adjustment of Status
Individuals with an approved employment-based immigrant petition who are caught in the quota backlog for adjustment of status will be advanced to permit them to obtain the benefit of a pending adjustment. This change will affect about 410,000 petitions.

Business Immigration Changes
Changes are being proposed that are billed as improvements in business immigration such as those offered to investors or national interest waivers could be made available to entrepreneurs, inventors, researchers and founders. The length of optional practical training ("OPT") for STEM graduates is expected to be expanded.

Parole-in-Place
Parole-in-place will be expanded to include families of individuals trying to enlist in the armed forces.

Visa Modernization
Efforts will be made to modernize the current visa system. One such issue that may be addressed is whether derivative family members should be counted against the visa quota and whether past unused visa numbers can be recaptured.

State and Local Law Enforcement
The Secure Communities program will be replaced with the Priority Enforcement Program ("PEP"). Detainers are expected to be replaced by requests for notification to ICE when a law enforcement agency is about to release an alien from jail.

Friday, August 1, 2014

Bureau Of Motor Vehicles Now Offering Driver Test In 11 Languages

The Indiana Bureau of Motor Vehicles announced this past week that it will now be offering driver tests necessary to obtain an Indiana driver's license in 11 other languages. In addition to English, driver's license applicants will now have the choice of taking the exam in the following languages: Arabic, Burmese, Chin, German, Japanese, Korean, Punjabi, Russian, Simple Chinese, Spanish and Vietnamese.

Wednesday, July 16, 2014

Cancellation Of Removal And The Operation Of The Stop-Time Rule

An alien otherwise inadmissible can be eligible for cancellation of removal if, among other things, he establishes that he "has been physically present in the United States for a continuous period of at least ten (10) years immediately preceding the date of such application, among other requirements set forth at 8 U.S.C. 1229b. Under the so-called stop-time rule, continuous residence is deemed to end when an alien has been served a Notice to Appear under 8 U.S.C. 1229. In Wang v. Holder, the 7th Circuit Court of Appeals recently decided what form a Notice to Appear must take in order to trigger the stop-time rule.

Yi Di Wang was a Chinese national who was smuggled into the United States in 1999 through the Virgin Islands. Immigration authorities discovered Wang within two days of his arrival and took him into custody. He was personally served with a Notice to Appear and ordered to appear at a date and time to be later determined at the immigration court in New Orleans. While Wang was in custody in New Orleans, he was released on bond. He was later served two notices for subsequent hearings but failed to appear. The immigration court closed the case on the motion of the government. Wang remained in the U.S. continuously for a period of at least 10 years after his initial release and married a Chinese citizen in 2009 with whom he had two children. Wang voluntarily returned to the immigration court in 2010 wherein he announced he was an applicant for a U visa as a victim of human trafficking. The immigration judge granted continuances while the U visa was being adjudicated, but declined to grant any further continuances in 2012 after his U visa had been turned down.

Wang then sought cancellation of removal, but the immigration judge denied his petition, holding that the stop-time rule had been triggered when he was personally served a Notice to Appear two days after he entered the country without admission. Wang argued that the Notice to Appear did not include a date and time for his hearing as required under 8 U.S.C. 1229(a). The Board of Immigration Appeals denied Wang's appeal, holding that the stop-time rule only required receipt of a Notice to Appear to be triggered regardless of whether such notice included the time and date of hearing.

The 7th Circuit affirmed the Board of Immigration Appeals' decision. Applying the two-part Chevron test, the Court concluded that Congress had not addressed the precise question in the statute and left it to the administrative agency to fill in the gaps. It next applied the second part of the Chevron test to determine if the Board's construction of the statute was a permissible construction. Although the Court agreed that the best way to fill the gap might have been as Wang argued to require a Notice to Appear to comply with every detail of 1229(a) to trigger the stop-time rule, it afforded deference to the Board's conclusion that the stop-time rule only required the type of notice and not the specific content of the notice as a permissible construction of the statute.

Wednesday, July 9, 2014

Another Case Demonstrates Roadblock Convictions For Crimes Involving Moral Turpitude Pose For Cancellation Of Removal

Cancellation of removal is a valuable statutory remedy to save an otherwise removable undocumented alien from deportation, but proof of good moral character is an unavoidable necessity to securing it. Get a conviction for a crime of moral turpitude on your record or admit to committing acts that constitute the essential elements of a crime of moral turpitude, and the door slams shut. But what is a crime of moral turpitude? Like many terms in the Immigration & Naturalization Act, it's not defined. The Courts and the Board of Immigration Appeals defines the term to mean "conduct that shocks the public conscience as being 'inherently base, vile, or deprave, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." That's quite a mouthfull, but a recent 7th Circuit Court of Appeals decision in Sanchez v. Holder helps shed some light on its intricacies and the fact that a mere conviction under a criminal statute touching on moral turpitude alone doesn't always answer the question.

The case involved Fredy Arnoldo Sanchez, a 47-year old citizen of El Salvador who unlawfully entered the U.S. in 1987. Sanchez, who resides in Indianapolis, is married to a lawful permanent resident and has four children, all of whom are U.S. citizens. For reasons that are unclear, Sanchez' case languished in removal proceedings for many years after his initial asylum claim proved unsuccessful. At an initial appearance before an immigration judge in 2006, he conceded the government's contention that he was removable from the country. At his next hearing in 2007, Sanchez renewed his petition for cancellation of removal based on hardship to his U.S. citizen children, as well as the special rule for cancellation under the Nicaraguan and Central American Relief Act ("NACARA"). The government contended he wasn't eligible for NACARA relief because of acts he allegedly committed as a soldier in the El Salvadoran military. Sanchez was granted more time to respond to the government's allegations.

A new issue arose when Sanchez appeared at his next hearing in 2009. Since his last hearing, Sanchez had been arrested for leaving the scene of an accident where serious bodily injury occurred, a Class D felony under I.C. 9-26-1-8. Upon hearing the information for the first time, the government argued the crime with which Sanchez had been charged involved a crime of moral turpitude, rendering him ineligible for cancellation of removal. Sanchez was offered an alternative sentencing plea agreement under which he pleaded guilty to the felony charge but was sentenced as committing a Class A misdemeanor charge. He received a sentence of 365 days with 363 days suspended and one year of probation. The Court described a personal affidavit Sanchez submitted to the sentencing court describing his crime as follows:
Sanchez was driving at night on a road without any lights, that it was raining heavily, and that there was a lot of fog. He "heard a noise, which was an impact on [his] car." Unsure whether he could stop safely in traffic, and believing that he had merely hit "a post or a small object," Sanchez continued driving. The affidavit states that he only became aware that he had hit a person when police officers arrived at his residence the next day and told him.
Upon reviewing the facts, the immigration law judge hearing Sanchez' case concluded that he committed a crime of moral turpitude, was ineligible for cancellation of removal and ordered him removed to El Salvador. Sanchez appealed the decision to the Board of Immigration Appeals, which affirmed the immigration law judge's ruling. Sanchez appealed to the 7th Circuit Court of Appeals which held that the Board had failed to follow the required analytical examination required to determine that Sanchez' crime indeed involved a crime of moral turpitude. The Court went on to describe a 3-part examination courts have determined is necessary for ascertaining that fact based on Matter of Silva-Trevino.

The first part of the test requires the adjudicator to determine whether there is any realistic possibility that the statute under which a person has been convicted could be based on conduct not involving a crime of moral turpitude. If it is determined that the statute covers both turpitudinous and non-turpitudinous conduct, then the adjudicator moves to step two. At that stage, the adjudicator must ascertain whether the conduct with which the person's criminal conviction was based involved turpitudinous conduct from the criminal court records. If the criminal court records are insufficient to answer the question, then the adjudicator is required to move to a third step and conduct a further inquiry to more accurately make a determination. The burden rests on the moving party to prove his crime involved non-turpitudinous conduct. Because the Court found that the Board of Immigration Appeals had only mentioned the Silva-Trevino analysis in passing without actually employing it, the Court vacated its order and remanded it back for re-adjudication. The Court further noted that a person could be found guilty under I.C. 9-26-28-1 for crimes other than hit-and-run, allowing Sanchez to make it past the first part of the Silva-Trevino analysis. The Court noted the possibility that Sanchez' appeal still might fail in the event the evidence in the court record is inconclusive with the burden falling on him to prove otherwise, but the Board can't simply end the inquiry early until he's been given the opportunity to prove otherwise.

Monday, July 7, 2014

Recent Case Demontrates Good Moral Character Requirement For Cancellation Of Removal

Cancellation of removal is a statutory form of relief under 8 U.S.C. § 1229b(b) that allows aliens who enter and remain unlawfully in the United States continuously for a minimum period of ten years to petition for cancellation of removal from this country. In addition to satisfying the 10 years of continuous residence in the United States, an alien must also be able to demonstrate that he/she is a person of good moral character. A recent 7th Circuit Court of Appeals decision in Ortiz-Estrada v. Holder is a painful reminder of the consequences of flunking that latter requirement.

The petitioner in this case was 20 years old when he entered the United States from Mexico unlawfully. He is married and has five children, all of whom are U.S. citizens. When Ortiz-Estrada was placed in removal proceedings in 2010, the Court notes that he had already "accumulated an impressive string of sanctions for a variety of traffic offenses" committed during the prior 10-year period. In addition to numerous citations for driving without a valid driver's license and driving on a revoked driver's license, among other things, Ortiz-Estrada had also been arrested three times for driving while under the influence of alcohol.

In 2011, while his removal proceedings were still underway, he was arrested yet again and charged with numerous traffic offenses, including "aggravated driving under the influence." Ortiz-Estrada's attorney kept requesting continuances in his latest traffic arrest, hoping to get the charges dismissed or avoid a conviction before a ruling by the immigration judge on his petition for cancellation of removal. The immigration judge lost patience and denied a further continuance requested by his attorney in deciding his petition for cancellation of removal, citing lack of good moral character based on his past criminal record and ordered him removed from the country.

The Board of Immigration Appeals affirmed Ortiz-Estrada's order of removal; however, the Court of Appeals found that the immigration judge improperly stated prior 7th Circuit cases as standing for the proposition that "an individual with a record like yours lacks good moral character to qualify for residence through cancellation of removal." The Court noted that the Immigration & Nationality Act does not define "good moral character," thus a decision whether an alien has such character "is in an exercise of administrative discretion that a court cannot review." The Court then considered whether the immigration court judge had been allowed "a reasonable opportunity to present evidence on his own behalf" after refusing to grant additional time until Ortiz-Estrada's criminal case was decided. The person challenging an unfavorable decision is required not only to demonstrate that his reasonable opportunity was denied, but also that he was prejudiced the Court observed.

The attorney for Ortiz-Estrada argued that the immigration judge did not give proper consideration to the fact that none of his prior arrests resulted in any felony convictions or the possibility the charges in the pending felony case against him might be dismissed. The Court found his attorney's arguments immaterial and unpersuasive, noting that the attorney had the opportunity to make the same arguments to the judge who heard the case, and that his decision was based on his prior criminal history, not the pending criminal case against him. The Court concluded that both the immigration judge and the Board of Immigration Appeals had sufficient evidence to conclude that Ortiz-Estrada lacked good moral character. Accordingly, the Court found that the immigration judge's refusal to grant a continuance before reaching his decision did not prejudice Ortiz-Estrada. "The lawyer’s procedural argument amounts to a contention that as long as his client goes on violating the traffic laws, he can’t be removed—for even though his record gets worse and worse, there will always be some pending charges that the immigration judge must wait to see resolved before deciding whether to order him removed," the Court said. "Not a good argument."

Monday, June 9, 2014

Access Therapies Barred From Hiring New H-1B Workers For One Year

A troubled staffing company based in Indianapolis that provides physical therapy staffing to health care providers in Indiana and throughout the United States has been barred by the U.S. Department of Labor from hiring new H-1B workers for a period of one year. Access Therapies, Inc. has also been ordered to pay $81,454 in civil penalties and nearly $40,000 in back wages to six physical therapists for violations of the H-1B rules, including failure to pay workers the prevailing wage rate for both productive and non-productive time. It's unclear why the Department's administrative law judge lowered the size of the penalties and the number of back wages that were awarded against Access Therapies back in 2010 by administrative action, which ordered the company to pay over $200,000 in penalties and more than $1 million owed in back wages to more than 60 H-1B employees. Here's the text of the Department's press release:
Under terms of a court order, Indianapolis-based Access Therapies Inc. must pay $81,454 in civil money penalties and $39,946 in back wages to six physical therapists for violations of the H-1B provisions of the Immigration and Nationality Act. The H-1B program allows employers to employ foreign workers temporarily in the U.S. on a nonimmigrant basis in specialty occupations. Access Therapies will be debarred from participation in the H-1B program for a one-year period. 
“The rules governing the employment of nonimmigrant workers in specialty occupations are specific and must be followed completely. Failing to do so denies qualified workers an opportunity for meaningful employment in the American economy,” said Thomas Gauza, district director for the Wage and Hour Division in Chicago. “This case shows that the department will not hesitate to bring legal action against employers that continue to short their employees and violate the law.”  
An investigation by the U.S. Department of Labor’s Wage and Hour Division found, among other issues, that the company misrepresented facts on its application when petitioning for and employing H-1B nonimmigrant workers and, as a result, the division issued the company a determination letter seeking the back wages owed. Access Therapies contested those findings and requested a hearing before an Administrative Law Judge, who issued the order that required the company to pay back wages, civil money penalties and interest, and debarred it from the H-1B program for a one-year period. 
The investigation found employees were due back wages because they were not compensated with the required prevailing wages for productive work time or for preassignment and post-assignment time, as required. Access Therapies failed to withhold applicable employment taxes, such as payments to Medicare, FICA and federal and state income tax. The company is required to pay such taxes, plus interest and penalties, to the appropriate taxing authorities. 
Under the terms of the order, in addition to paying the back wages and penalties, Access Therapies has agreed to enhanced compliance procedures, including records review by the department for a two-year period, and agrees to comply with provisions of the Immigration and Nationality Act in the future.

As a word of caution to H-1B employees, the press release makes no mention of an affiliated company owned by the same two owners and operated by the same employees out of the offices where Access Therapies conducts business. That business is RN Staff, Inc. According to recent H-1B data, both Access Therapies and RN Staff are among the top ten companies in the state of Indiana employing H-1B workers.

I have represented in the past multiple employees who have been sued by Access Therapies and RN Staff, Inc. for allegedly breaching their employment contact with the companies. These companies have filed more than six dozen lawsuits against former employees seeking damages of $20,000 or more, plus attorney's fees, after employees became disillusioned and left their employment, often because they believed that they were not provided a full-time job at the wages they believed they were promised when they entered into a contract with the staffing companies. I have complained endlessly to the U.S. Department of Labor about their slow progress in prosecuting pending cases against Access Therapies. While I'm pleased to see the Department has finally acted, for too many harmed H-1B employees, it's too little too late. The company can simply skirt the one-year bar by using its affiliated company, RN Staff, Inc., to file new H-1B applications, effectively making the one-year bar meaningless. For dozens of other harmed workers, this order provides no relief.

If you don't listen to anything else I write, please listen to this. Never sign a contract to be employed as an H-1B employee in the United States without first obtaining advice from an attorney. Many H-1B employers don't require their employees to sign a written contract. A written employment contract can be a very good thing for an employee, but making sure the terms contained within the contract protect you as much as they protect the employer is essential. If you are asked to start off in an employment situation where it looks like you're paying off a large debt to the employer for the privilege of employment, you need to seriously reconsider your options.

UPDATE: WRTV's Kara Kenney, who has been the only local news reporter who has covered the issues with this problem staffing company, has a good story in follow up to her original investigative report, which you can view by clicking here.

Thursday, February 20, 2014

Word To The Wise: The Government Is Monitoring Your E-Mails And Cell Phone Calls

A troubling incident at a U.S. Customs and Border Patrol office in Indianapolis has resulted in the filing of a civil rights lawsuit by the American Civil Liberties Union of Indiana on behalf of a senior lecturer at Indiana University in Bloomington and raises concern about aggressive NSA spying on people's e-mail and cell phone communications.

According to the complaint filed in the U.S. District Court for the Southern District of Indiana, a childhood friend of Dr. Christine Von Der Haar, Dimitris Papatheodoropoloulos, who is a Greek national, made plans to travel to the United States during the summer of 2012 to visit Dr. Von Der Haar at her home in Bloomington, Indiana on a tourist visa. Papatheodoropoloulos, according to the complaint, is a successful transportation manager who was employed at two Olympic Games and also at the Arab Games in Qatar.

Prior to traveling to the U.S., Dr. Von Der Haar and Papatheodoropoulos communicated frequently via e-mail, the content of which were at times "flirtatious and romantic in nature." Papatheodoropoulos arrived at the Indianapolis International Airport in June, 2012 and was cleared through inspection with an intent of staying in the U.S. until October, 2012. He brought along with him a laptop and hard drives for a computer server to aid him in conducting business during his trip. The computer server to which the hard drives belonged was shipped after his arrival.

When the other items, including the computer server, arrived at the airport, Dr. Von Der Haar and Papatheodoropoulos returned to the airport to pick them up and were directed to the local Customs and Border Patrol office near the airport. When they arrived at the office, they were perplexed when an agent questioned them about whether they had intentions of getting married during Papatheodoropoulos' visit. Agents called Papatheodoropoulos back for questioning while Von Der Haar waited in the waiting area of the office. Before they concluded their questioning of Papatheodoropoulos, they asked to speak to Von Der Haar.

According to the complaint, Von Der Haar was taken to an enclosed office with two uniformed agents present who appeared to her to be armed. They began asking her questions about the nature of her relationship with Papatheodoropoulos and e-mails that she had exchanged with him. The agents asked her if she was having sex with Papatheodoropoulos. At one point, one of the agents acknowledged that they had read e-mail exchanges the two had sent to one another. She was also asked questions about why Papatheodoropoulos had so many cell phones and whether he had brought any with him to the U.S. At no point during the interview was Von Der Haar advised that she had a right to leave or not answer the questions. After they concluded their questioning of her, she waited until Papatheodoropoulos was released about 4 1/2 to 5 hours later.

Following the interview, Papatheodoropoulos was served with a notice that he was being removed from the United States because he had violated the terms of his visitor visa by entering with the intention of immigrating to the U.S. The complaint states that this allegation was untrue. After consulting with the Greek consulate and attorneys, Papatheodoropoulos departed the U.S. in August, 2012. The lawsuit contends that the agents' detention of Dr. Von Der Haar violated her Fourth Amendment Right to be free from unreasonable seizures carried out without probable cause or reasonable suspicion.

Many civil rights advocates have been very vocal after learning of the extent to which the NSA has been monitoring private e-mail and cell phone communications of U.S. citizens. While the government has defended its actions, arguing that its bulk e-mail data collection did not include the content of those exchanges, this case seems to suggest otherwise. Based on this case, one should be cautious and assume that e-mail exchanges with your friends and acquaintances outside this country are being monitored by the government.

Hat tip to Indiana Law Blog.