Friday, January 22, 2016

DHS Implementing New Visa Waiver Restrictions

The Department of Homeland Security ("DHS") announced the implementation of new visa waiver restrictions resulting from the passage of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. Under the new restrictions, travelers in the following categories will no longer be able to travel to the U.S. under the visa waiver program:
  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.
Persons falling within these categories are not blocked entirely from entering the United States. They may still apply for a tourist visa to enter the United States through the normal process that applies for travelers from countries which are not part of the visa waiver program. The more severe restriction applies to persons from Iran, Iraq, Sudan and Syria who hold dual nationality and are currently qualified for the Electronic System for Travel Authorizations ("ESTA"). Persons who fall within this category will have to apply for a waiver on a case-by-case basis if DHS determines that such a waiver is in the law enforcement or national security interests of the United States.  As a general matter, the following categories are eligible for a waiver:
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and subnational governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business related purposes.

Saturday, January 9, 2016

State Legislation Aimed At Punishing Employers Who Hire Undocumented Aliens

Sen. Mike Delph (R-Carmel) has introduced SB 285 in an effort to block some employers in Indiana which employ undocumented aliens from doing business within the state. I say some employers because the bill expressly exempts the following employers: public utilities; hospitals; nonprofit corporations; and ambulance providers. An employer may be barred from doing business in the state if it: (1) transacts business in Indiana; (2) has a license issued by an Indiana agency; and (3) employs one or more individuals who perform services in Indiana. So if you can operate a business without the need to obtain a license from the state, you are exempt from it as well.

The enforcement provisions of this law make its constitutionality suspect. The U.S. Constitution empowers only Congress to regulate immigration, although the U.S. Supreme Court upheld the constitutionality of a similar Arizona law. Delph's legislation makes Indiana's attorney general responsible for enforcing the law based on complaints it receives. If the attorney general's investigation of a complaint determines an employer violated the law, he is required to notify the following: USCIS; local law enforcement agencies; and the prosecuting attorney's office. The legislation says the prosecuting attorney may bring a civil action requesting a hearing be conducted to determine if the employer broke the law. The permissive nature of this enforcement mechanism suggests to me that many prosecuting attorneys would elect against bringing enforcement actions, thereby creating a disparity across the state in prosecuting violations under the law.

A court hearing an enforcement action that finds against an employer can: (1) order the employer to terminate the employment of all unauthorized aliens; (2) place the employer on probation for a 3-year period during which it is required to file quarterly reports showing compliance with the order with the attorney general; and require the employer to sign a sworn affidavit within 30 days of the order stating it has complied with the order. If an employer is found to have violated the law a second chance, a court can place it on probation for a period of up to 10 years. Get caught a third time and the court can order the appropriate state agencies to revoke the employer's license or licences to conduct business in Indiana. Businesses that use E-Verify to verify their employees' status would be immune from prosecution under the law.

The proposed law would clearly put Indiana law in conflict with current enforcement guidelines of federal agencies responsible for enforcement of immigration laws adopted by the Obama administration, which send very mixed signals to employers. Employers would run the risk of either complying with the state law or face the wrath of the federal government for discriminating against alien workers. Not surprisingly, the Indiana Chamber of Commerce tells the Indianapolis Star it vehemently opposes the legislation. Indiana already has a law that permits the state to deny tax breaks to employers which employ undocumented aliens, although I'm unaware of any employers who have been sanctioned under that law.

Speaking of immigration, I had the opportunity to view the oral argument in a case I previously discussed, Escamilla v. Shiel Sexton Co., a case involving an undocumented employee of a subcontractor working on one of the general contractor's work sites who sustained a permanent injury while on the job. As general contractor, Shiel Sexton assumed responsibility for all employee's safety who worked at the job site. It wants to offer evidence of Escamilla's immigration status to limit any potential recovery he might have for lost wages, assuming he is ever ordered removed to Mexico where his potential earning capacity would be much less than if he remained in the U.S. permanently. Escamilla's attorneys believe allowing the jury to hear his evidence of his immigration status would be prejudicial, and a public policy argument against rewarding employers who knowingly employ undocumented workers.

Attorneys for Shiel Sexton indicated that Escamilla had provided only a Mexican driver's license and a social security number belonging to someone else when he started working for its subcontractor. The facts presented by Escamilla's attorney indicated a strong likelihood that he is on a path to legalized status. He was brought to this country when he was only 14 years old, is married to a U.S. citizen and has three U.S. citizen children. Escamilla's immigration attorney had presented evidence that his wife has filed to sponsor him for an immigration benefit. Escamilla had not yet obtained work authorization. The Obama administration has administratively permitted certain early childhood arrivals like Escamilla to obtain work authorization under a program known as Deferred Action for Childhood Arrivals ("DACA"). It wasn't clear from the discussion whether Escamilla was eligible for that program, or whether he just didn't want to spend the money to pay the filing fee for work authorization.

I was a bit confused by the evidence, which claimed his attorney had a pending I-485 adjustment of status petition on file for him. Based on these facts, Escamilla would not be eligible to file an I-485 and adjust status within the U.S.; rather, his wife could file an I-130 immigrant petition to sponsor him, and upon approval of that petition, he could file for a provisional hardship waiver on a Form I-601(A) that would permit him to apply to immigrate to this country, notwithstanding his unauthorized entry and period of stay in the U.S. Once his hardship waiver is approved, which is more than likely under these circumstance, he would be eligible to file an immigrant visa application (Form DS-260) for consular processing. Escamilla would be required to exit the country for his immigrant visa interview and then be allowed to re-enter the country lawfully as a permanent resident if his application is approved.

It's difficult to predict how the Court of Appeals will rule. It didn't sound like either Judge May or Judge Bradford were very sympathetic to Escamilla's arguments. Judge Baker seemed more receptive to his attorney's arguments. If they don't rule in favor of Escamilla, there will be an anomaly in Indiana law where his immigration status for purposes of calculating the extent of his damages would be deemed prejudicial in a personal injury action and kept from the jury but not in a work-related injury case where the employer would seem to get its cake and eat it too.

Tuesday, December 1, 2015

Office Of Refugee Resettlement Sends Warning Letter To State's Governors On Syrian Refugees

The Obama administration recently announced the United States would be accepting approximately 10,000 refugees from Syria over the next year. In the wake of the terrorist attacks in Paris, France, a majority of the state's governors announced they would take steps to halt the resettlement of refugees from Syria in their respective states. Indiana's Gov. Mike Pence is among the governors calling for a halt to refugees, an announcement that triggered the filing of a lawsuit by Exodus Refugees and the American Civil Liberties Union of Indiana against Gov. Pence and the state's Family & Social Services Administration, the state agency designated to administer federal programs benefitting refugees.

Director Robert Carey of the Office of Refugee Resettlement sent a letter to the states this past week warning them that federal does not allow states to refuse to accept refugees from Syria. The Refugee Act of 1980, according to Carey's letter, requires states to provide "assistance and services . . . to refugees without regard to race, religion, nationality, sex or political opinion. 8 U.S.C. 1522(a)(5). ORR helps in the resettlement of refugees in the respective states through a state plan process.

Federal funding for state plans are tied to certifications by the states that they are in compliance with Section 1522(a)(5) under federal regulations. 45 C.F.R. 400.4. Carey's letter warns the states that their state plans cannot categorically deny ORR-funded benefits and services to refugees from Syria. States which deny ORR-funded benefits and services face suspension or termination according to Carey's letter. His letter further warns the states that they are not permitted to deny Medicaid or TANF benefits under Section 2000(d) of the Civil Rights Act of 1964 to Syrian refugees in their states as well.

Wednesday, September 23, 2015

Indiana Senate Democrats Proposing State Law Changes To Benefit Undocumented Aliens

Indiana Senate Democrats announced several state law changes they propose making during the 2016 legislative session related to education, driver's licenses and health care for the benefit of undocumented aliens. Among the items to be considered are the following:

  • Permitting undocumented aliens who qualify for the federal Deferred Action for Childhood Arrivals ("DACA") benefit to receive in-state tuition rates at state universities after three years of continuous attendance;
  • Allowing the Bureau of Motor Vehicles to issue driver's licenses to anyone regardless of their citizenship status or legal status in this country as 10 other states, including neighboring Illinois already do; and
  • Providing undocumented aliens access to kidney dialysis care through the state's Medicaid program instead of waiting for end-stage renal disease to take hold before qualifying for assistance.

Wednesday, September 16, 2015

Temporary Protected Status Designation For Yemen Nationals

The Department of Homeland Security announced that nationals of Yemen are eligible to apply for temporary protected status ("TPS") as of September 3, 2015 due to widespread conflict and a resulting severe humanitarian emergency. Applications for TPS status will be open through March 3, 2017.

Any Yemeni nationals currently in the United States are eligible to apply for TPS. Eligible applicants are allowed to remain legally in the United States and obtain permission to work. Continuous physical presence in the United States since September 3, 2015 is required to obtain the benefit of the designation. Applicants are subject to a background check. Persons with certain criminal records or deemed national security threats are not eligible for the benefit.

Thursday, August 20, 2015

Birth On Military Base Does Not Make One A U.S. Citizen At Birth

A recent 5th Circuit Court of Appeals, Thomas v. Lynch, provided an interesting discussion of the legal status of children of U.S. soldiers born on military bases abroad. Jermaine Amani Thomas fought an immigration judge's determination that he was removable from the country based on three prior criminal convictions, claiming he acquired U.S. citizenship at birth under the 14th Amendment because his birth took place on a U.S. military hospital at a base in Germany. The 5th Circuit rejected his argument of birthright citizenship.

Thomas' father immigrated to the United States in 1977 and enlisted in the U.S. Army in 1979. In 1984, he became a naturalized citizen. Thomas' mother, a Kenyan citizen, gave birth to him at a military hospital in Frankfurt, Germany in 1986. Although his father was a U.S. citizen at the time, the immigration court found Thomas' father had not resided in the U.S. for the minimum 10-year residency period (current law requires 5-year minimum) required at the time of his birth under 8 U.S.C. 1401(g) to enable his son to acquire citizenship at birth under the statute, even after crediting his father's time spent abroad in the military. Nonetheless, Thomas argued the military base where he was born allowed him to claim birth within the U.S. under the 14th Amendment despite statutory language and Foreign Affairs Manual policies to the contrary.

The 14th Amendment provides that "[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof," are citizens. The Court explained there are only two sources of citizenship: birth and naturalization. “Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person ‘born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization," the Court stated, quoting the U.S. Supreme Court's decision in United States v. Wong Kim Ark. “Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” The Court observed that if Thomas' father had satisfied the residency requirement set forth in 8 U.S.C. 1401(g), he would have acquired citizenship at birth by statute despite being born abroad and having one parent who was not a U.S. citizen.

Whether birth on a military base abroad satisfied the 14th Amendment birthright citizenship was a case of first impression for the 5th Circuit. The Court cited other appellate court decisions which held that persons born in U.S. territories did not constitute birth in the U.S. for purposes of the 14th Amendment's citizenship clause. In each of those cases, the circuit court opinions relied on the Supreme Court's holding in the so-called Insular Cases where the Supreme Court distinguished between incorporated and unincorporated territories. Incorporated territories are those territories that were destined for statehood at the time of their acquisition as opposed to unincorporated territories like the Philippines once was that were not destined for statehood. While persons within the unincorporated territories are afforded "fundamental constitutional rights," birthright citizenship is not a right the inhabitants of such areas acquire because of their status.

Thomas argued that the decision in Wong Kim Ark supported his contention he was within the United States for purposes of the 14th Amendment since Ark was born to Chinese nationals in San Francisco before California had been admitted to the Union as a state. The 5th Circuit found the case inapposite because the question of the territorial scope of the citizenship clause was not before the Supreme Court in Wong Kim Ark.  The Court found that a military base abroad was in the nature of an unincorporated territory and declined to extend the citizenship clause's reach to Thomas despite his insistence that such a ruling effectively left him stateless. According to the facts of the case, Thomas had been admitted to the U.S. in 1989 on a visa that listed his nationality as Jamaican. It's unclear how he wound up there, but presumably his Kenyan mother, a lawful permanent resident of the United States, took him there to reside at some time following his birth without making any effort to naturalize him as a U.S. citizen.

Monday, June 1, 2015

Supreme Court Holds That State Conviction For Drug Paraphernalia Is Not Removable Offense

A lawful permanent resident, Moones Mellouli, found himself in immigration court facing removal from the country after he pleaded guilty to a misdemeanor offense in the state of Kansas for possession of drug paraphernalia to store or conceal a controlled substance. An immigration judge ordered Mellouli deported under 8 U. S. C. §1227(a)(2)(B)(i), which authorizes the deportation (removal) of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” The sole “paraphernalia” Mellouli was charged with possessing was a sock in which he had placed four unidentified orange tablets. Mellouli admitted the pills contained in the sock were Adderall; however, the crime for which he was convicted was not tied to a specific type of substance. In a ruling today, the Supreme Court of the United States has reversed the immigration court's decision, holding that Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i).

The Supreme Court in Mellouli v. Lynch applied the categorical approach in determining whether a state conviction renders an alien removable. The categorical approach looks to the statutory definition of the offense of the conviction, not to the particulars of the alien's conduct. The state conviction can only trigger removal if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. Kansas' law defined "controlled substances" as any drug listed on its own schedules without reference to Section 802 of the federal law. Here, Mellouli was removable for the crime of using a sock to contain a controlled substance, not for possessing a substance controlled under Kansas law. No controlled substance as defined under section 802 figured as an element of the offense under which Mellouli was convicted. The Supreme Court interprets the federal law to limit the meaning of "controlled substance" for removal purposes to substances controlled under section 802. "Accordingly, to trigger removal under §1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§802]," the Court held.