Immigrant succeeds on civil rights claim

A Nashville woman will receive a substantial settlement after being shackled to her hospital bed while giving birth.

Nobody likes a traffic ticket.
Photo credit @woodleywonderworks on Flickr; used under Creative Commons license.

Ms. Juana Villegas was taken into custody during a 2008 traffic stop. As part of an agreement between Tennessee law enforcement officials and federal immigration enforcement, local police had the power to detain people whose immigration status was in question. At the time, Ms. Villegas was nine months pregnant. She went into labor during her six-day stay in immigration detention. While she gave birth, she was kept in handcuffs and leg chains. After she delivered her child, she was denied the use of a breast pump, which caused an infection.

Ms. Villegas filed suit to protest this treatment. A federal judge ruled in 2011 that the jail officials had shown "deliberate indifference" to Ms. Villegas' medical needs. In an unusual step, the judge also recommended that Ms. Villegas be given immigration status, under a visa type for crime victims. Appeals ensued, but the city settled with Ms. Villegas to avoid further litigation.

Ms. Villegas' case has clarified rights for immigration detainees, and also opened a new possible route to legal status for people whose civil rights have been violated.

If someone you know is in immigration detention, or if you have questions about which visas you might be eligible for, please contact us to see if we are able to help.
 

Quotas aren't just for traffic tickets

It's a full house... by law.
Photo credit @ChodHound, Flickr; used under CC License.

A Congressional quota requires that U.S. Immigration and Customs Enforcement (ICE) keep roughly 34,000 detainees in custody per day -- whether ICE wants to detain that many people, or not. This policy dates from 2006, when some legislators wanted to make sure that the federal government didn't get lazy on enforcing the immigration laws.

Years ago, ICE filled those spots easily, with the huge number of people it caught at border crossings. Now there are fewer people coming over the border, and ICE cannot meet its quota. So the government searches for legally present immigrants who have criminal records, and also focuses on undocumented immigrants taken into custody during traffic stops by local police.

A large number of these people --as many as half of them --will appear before immigration judges and eventually be approved to stay in the United States. In the meantime, however, they have to spend months in costly federal custody. This also feeds the pockets of private prison companies, such as the GEO Group and CCA. These companies, in turn, spend money lobbying Congress on immigration issues.

Immigration advocates point out that other, less costly forms of supervision are available, such as GPS ankle bracelet monitoring. The alternatives cost less than one-tenth of the price of keeping a person in detention, and research shows there is nearly full compliance with them.

While a quota, in theory, may seem like a way to ensure that immigration laws are enforced, in practice it just means that people are locked up unnecessarily.

Read more at the Washington Post.

Iraqi Visa Program Temporarily Renewed Despite Government Shutdown

The Special Immigrant Visa Program (SIV Program) was created as part of the Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, which was signed into law on January 28, 2008.  The legislation authorized 5,000 Special Immigrant Visas per year for Iraqis who provided valuable service to the U.S. government while employed by or on behalf of the U.S. government in Iraq, for not less than one year after March 20, 2003, and who have experienced or are experiencing ongoing serious threat as a consequence of that employment.  Many translators fall into this category. 

The program would have expired on September 30, 2013, but fortunately, Congress approved a three-month extension of the program.  This short-term solution was seen as a significant accomplishment in the midst of the tumultuous government shutdown.

Unfortunately, the bill does not resolve the substantial backlog that currently exists with this visa program.  Thousands of applicants are still waiting for adjudication of their applications.

For more information on this subject, check out this recent article in the New York Times, this wonderful podcast from This American Life, and this website The List Project. 

Fall has come to Faneuil Hall

Beautiful fall colors can be seen around Faneuil Hall!  This picture was taken from our new location at 1 South Market Building, 4th floor, Boston, MA.

First Circuit rejects "post-departure bar"

The First Circuit in Perez Santana v. Holder rejected the "post-departure bar" to motions to reopen immigration proceedings.  The phrase “post-departure bar” refers to an immigration regulation that precludes a noncitizen from filing a motion to reopen their proceedings once they have been deported.  The problem often arises in cases where the person files their motion to reopen while they are still in the U.S., but then gets deported before the motion to reopen is decided.  Once the person is deported, the government treats the motion as if it is "withdrawn" and rejects it. 

In Perez Santana, DHS ordered the petitioner, a lawful permanent resident, removed after he pled guilty in state court to possession of a controlled substance with intent to distribute.  Perez Santana was able to vacate his criminal conviction, but by the time he filed his motion to reopen he had already been removed to the Dominican Republic . The Board of Immigration Appeals (BIA) denied the motion, invoking the "post-departure bar."

The First Circuit Court of Appeals granted Petitioner's petition for review, holding that the “post-departure bar” cannot prevent a noncitzen from invoking his statutory right to file a motion to reopen.  Importantly, the statute allowing motions to reopen does not require a physical presence or indicate a geographic limitation in its general provisions.

In a companion case, Bolieiro v. Holder, the Court held that the “post-departure bar” could not prevent a noncitizen from invoking her statutory right to file a motion to reopen, even where the motion was filed outside the ninety-day deadline set forth in the statute.  

Government relies on nonexistent Mexican law to deny U.S. Citizenship for over 20 years

Well, this is interesting.  For over twenty years, Sigifredo Saldana Iracheta insisted he was a U.S. citizen because he was born to an American father and a Mexican mother in a city just south of the Texas border. The federal government rejected his claims over and over again, deporting him at least four times and at one point detaining him for nearly two years as he sought permission to join his wife and three children in South Texas.  The government argued that the only way for Saldana to gain legal legitimacy would have been for his parents to marry, which they never did. 

In its September 11^th decision, the Fifth Circuit Judge Jennifer Walker Elrod disagreed with the government finding that Saldana acquired citizenship through his U.S. Citizen father, met the U.S. citizenship requirements of INA §§ 301 and 309, and remanded with instructions to vacate or terminate the order of removal.

The problem with the government’s argument, the Judge Elrod point out, was that it relied on provisions of the Mexican Constitution that either never existed or do not say what DHS claimed they said.  In rejecting Saldana's claim to citizenship, the government had applied case law from 1978 that cited Article 314 of the Mexican Constitution, which supposedly dealt with legitimizing out-of-wedlock births. This provision never existed.  

Most recently, the government had cited to a different provision of the Mexican Constitution, Article 130, to deny Saldana’s claim in 2004. While this provision does exist, it only states that marriage is a civil contract, as opposed to a religious one and says nothing about legitimation or children.  Under the law applicable at the time, even though he was born out of wedlock, Saldana was formally acknowledged (or “legitimated”) by his father when his father placed his name on Saldana’s birth certificate before the official registry.

At oral arguments last month in Houston, Judge Elrod was incredulous: “These people are citizens by their birth, and for 35 years the government has been telling them you are not citizens because of this law that doesn't exist.”  Most denials such as Saldana’s are never appealed, often because the people involved do not have the money to pursue the matter to higher courts.  This crucial break-through in the law is a testament to Saldana’s persistence.  

IRS Releases Guidance for Employers and Same Sex Couples post DOMA

The Internal Revenue Service has just released guidance for recovering excess taxes paid by employers and taxpayers in light of the Windsor decision.  Windsor was the decision in which the Supreme Court held that the federal government cannot treat same sex married couples differently than opposite sex married couples. See United States v. Windsor, 570 U.S. ___, 133 S.Ct. 265 (2013). In Tax Notice 2013-61 the IRS provides special administrative procedures that can be used by employers to claim refunds or make adjustments of overpayments of employment taxes paid with respect to same-sex spouse benefits for 2013, and also a special administrative procedure that can be used with respect to overpayments of FICA taxes for years before 2013. It also informs taxpayers that they can file Form 1040X to make claims for overpayment of income taxes in past tax years.  Note that not all married same sex couples will be better off.  Tax savings will likely only benefit those couples in which one spouse earns significantly more income than the other.