Beth Werlin, Deputy Legal Director for the American Immigration Council, discusses the recent...
The LAC Docket | Volume I, Issue 1
The Newsletter of the American Immigration Council’s Legal Action Center
December 17, 2010
Amicus brief seeks redress for H-1B employee arrested while extension request remained pending
El Badrawi v. DHS, No. 07-01074 (D. Conn.)
Immigration attorneys routinely file requests on behalf of employers seeking to extend the employment of nonimmigrant personnel. But few may realize that ICE claims the authority to detain a nonimmigrant employee whose initial period of authorized stay ends before USCIS adjudicates a pending extension application filed on his behalf. Indeed, the government has put forth precisely that claim in the case of a Lebanese national arrested and detained as an alleged H-1B “overstay.” Condemning ICE’s arbitrary use of its enforcement authority, the LAC argued in an amicus brief that both federal law and practical considerations dictate that beneficiaries of pending timely filed H-1B extension requests are entitled to remain in the United States until those requests have been adjudicated.
The plaintiff, a medical researcher, was working in H-1B status at the University of Connecticut in early 2004 when his employer filed an extension request more than a month before the deadline. Despite a request for premium processing, USCIS neither approved nor denied the application and failed to answer requests for information. Instead, approximately six months after the plaintiff’s original period of authorized stay expired, ICE agents arrested him for an alleged overstay. After accepting voluntary departure to Lebanon, the plaintiff, with the help of the Worker and Immigrant Rights Advocacy Clinic at Yale Law School and the Asian American Legal Defense and Education Fund, later filed a damages claim for false arrest under the Federal Tort Claims Act.
In addition to chronicling the history of the H-1B program, the LAC’s amicus brief detailed the legal and practical problems with the government’s position. It noted that the government’s position is inconsistent with federal regulations that specifically permit H-1B employees (among many other nonimmigrants), whose employers have timely filed petition and status extensions, to continue working for 240 additional days beyond the expiration of the period for which extensions are being sought. The brief also included declarations from prominent companies that employ H-1B workers, which contend that permitting such arrests would disrupt key sectors of the U.S. economy and thereby undermine the purpose of the program.
Access to Counsel
At the request of the Board of Immigration Appeals, the LAC filed an amicus brief urging the government to protect the rights of immigrants whose mental disabilities prevent them from participating meaningfully in their own removal hearings. The brief argued that adequate protection must include appointed counsel, and that additional safeguards—including the appointment of a guardian, friend or relative—may also be required for immigrants whose disabilities are so severe that they cannot communicate with their attorneys. If the requisite safeguards are unavailable, the LAC emphasized that termination of proceedings would be appropriate. Following DHS’s withdrawal of its appeal, the Board dismissed the case in November 2010, rendering final the Immigration Judge’s decision to terminate the case due to concerns about the respondent’s competence.
To provide a comprehensive picture of the litigation in this area, the LAC posted a Litigation Issue Page containing summaries of recent and ongoing cases regarding the rights of immigrants with mental disabilities. Together with other immigration and disability rights groups, the LAC is also engaged in administrative advocacy (see letters to Department of Homeland Security officials and Department of Justice officials) to attain greater procedural safeguards in removal proceedings for immigrants with mental disabilities.
Immigration attorneys have long lamented the various ways that USCIS, CBP and ICE limit their ability to represent their clients—whether by relegating them to a particular place in the room during an I-130 interview, preventing them from attending a deferred inspection interview, or forbidding them from speaking during an NSEERS interview. In response to these reports, the LAC and AILA developed a detailed survey to collect specific information about individual attorneys’ encounters with agency officials.
Survey responses and follow-up interviews are revealing the nationwide scope of the problem. According to the preliminary findings, more than half of the 161 survey respondents experienced problems with one or more of the agencies, and numerous lawyers were told that their clients were not entitled to representation. Information collected through the survey will be critical to future administrative advocacy efforts to improve access to counsel in agency settings. If you have not already done so, please complete the Right to Counsel survey, available on InfoNet until December 24.
BIA agrees with amicus brief, interprets Child Status Protection Act liberally
In re Murillo, A099 252 007 (BIA Oct. 6, 2010)
Adopting the arguments put forth in an LAC amicus brief, the Board of Immigration Appeals ruled in October that the son of a lawful permanent resident preserved his “child” status by taking “substantial steps” toward becoming an LPR, even though he had failed to file his adjustment application within one year of a visa becoming available. In In re Murillo, the Board interpreted the requirement in the Child Status Protection Act that aged-out beneficiaries must have “sought to acquire” LPR status within one year of visa availability. The Board ruled that Congress did not intend to require the filing of an application to satisfy the standard. Instead, it concluded that otherwise aged-out beneficiaries could maintain “child” status by taking “substantial steps” toward filing an application.
Though the Board did not list any specific actions that applicants must take, it noted that the respondent had hired an attorney and obtained a money order for the filing fee. The decision is unpublished and thus not precedential. However, it can be used as support in other cases where a beneficiary took steps toward applying for permanent residency short of filing an application. The respondent, José Jesus Murillo, was represented by Phillip Weisz.
- The LAC is closely monitoring implementation of the Ninth Circuit’s recent decision in Dent v. Holder, No. 09-71987 (9th Cir. Nov. 9, 2010), which construed INA § 240(c)(2)(B) to require the government to provide respondents in removal proceedings with a copy of their alien files (A-files). Given the processing delays for FOIA requests and the discretionary nature of continuances, the panel noted that a respondent could be removed before receiving his A-file, which could raise a "serious due process problem." Although Dent had requested assistance from the BIA in obtaining records, the Ninth Circuit strongly implied that such a request was not a prerequisite for obtaining an A-file. The LAC is developing guidance on Dent and encourages lawyers from all circuits to send reports of their experiences to email@example.com. For more information on the ruling, read this blog post from LAC Director Melissa Crow.
- The LAC is drafting a series of practice advisories for immigration lawyers on the use of motions to suppress in removal proceedings. We encourage attorneys who have filed motions to suppress based on unlawful conduct of state or local police officers to send reports of their experiences to firstname.lastname@example.org. Attorneys who have filed motions to suppress based on unlawful conduct of CBP officers should send reports to email@example.com.
- Senior Attorney Mary Kenney authored a Practice Advisory entitled “Prosecutorial Discretion: How to Get DHS to Act in Favor of Your Client.”
- Staff Attorney Emily Creighton co-authored comments signed by more than two dozen advocates and organizations on ICE’s proposed detainer policy.
- The LAC has a new Issue Page on the rights of immigrants with mental disabilities in removal proceedings.
- Law Fellow Ben Winograd recapped the Supreme Court’s oral argument in Chamber of Commerce v. Whiting. (Immigration Impact, “Win, Lose or…Draw? The Supreme Court Tackles Arizona’s Employer Sanctions Law,” Dec. 10, 2010).
- LAC Director Melissa Crow discussed the Ninth Circuit’s recent decision in Dent v. Holder, which recognized respondents’ right to access their A-files in removal proceedings. (Immigration Impact, “Kafka Revisited: Ninth Circuit Decision Protects Due Process Rights for Noncitizens,” Nov. 30, 2010).
- Law Fellow Ben Winograd analyzed the oral argument before the Ninth Circuit in United States v. Arizona, the Obama Administration’s challenge to SB 1070. (Immigration Impact, “Will the Fate of Arizona’s SB 1070 Hinge on the Law that Created the 287(g) Program?” Nov. 2, 2010).
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