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Warrantless Arrests and the Timing of Right to Counsel Advisals

In Matter of E-R-M-F- & A-S-M-, 25 I. & N. Dec. 580 (BIA 2011), the Board of Immigration Appeals severely undermined the protections provided by 8 C.F.R. § 287.3(c), holding that certain noncitizens arrested without a warrant need not be advised of their rights, including the right to counsel, prior to post-arrest examinations. This practice advisory highlights flaws in the E-R-M-F- decision and suggests strategies for challenging the BIA’s reading of § 287.3(c) and moving to suppress evidence obtained in violation of the regulation.

The Legal Action Center encourages attorneys with ongoing cases involving the timing of the 8 C.F.R. § 287.3(c) advisals to contact clearinghouse@immcouncil.org for further information.

Published On: Friday, November 2, 2012 | Download File

8 Tips for Teaching How to Write a Digital Story on Immigration

This is part one of a series dedicated to the art of teaching the digital story on immigration. The second part is accessible here. Digital storytelling about immigrant heritage is a way to access a shared past and present, however distinct the individual stories are, develop reading and writing skills, and most importantly, build empathy while thoroughly engaging students. It can, however, be challenging to teach for a number of reasons: 1) uncertainty in the writing process when there may be unknown variables in immigration experiences 2) fears of technology 3) relevancy within what may be a restrictive curriculum.

The American Immigration Council’s “Crossing Borders with Digital Storytelling” is a comprehensive guide adaptable for any grade level and aligned to Common Core, but best practice often involves learning from other teachers to improve.  Middle school teacher Brian Kelley has been developing family heritage podcasting and digital storytelling with his students for several years and has shared some of his methods for working with students in writing about their immigration journeys.  His tips connect well with our curriculum.Read more...

Year Released: 2015

9-12+

Arizona Sheriff Not Relenting After Court Ruling

Published on Fri, Jul 30, 2010

"Sheriff Joe Arpaio and some other folks there decided they can make a name for themselves in terms of the intensity of the efforts they're using," said Benjamin Johnson, executive director of the pro-immigrant American Immigration Council. "There's no way to deny that. There are a lot of people getting caught up in these efforts."

Published in the CBS News

Immigration Judge Jurisdiction over INA § 204(j) Portability

Because the process for an immigrant worker to become a lawful permanent resident can be quite lengthy, Congress enacted a provision in 2001 that gives immigrant workers needed job flexibility. A worker with an approved visa petition and a pending application for permanent residence can change jobs during the transition period if the new job is the same or similar to the job for which the original visa was approved.  In a precedent decision issued in 2005, the BIA ruled that an immigration judge did not have jurisdiction to decide whether an applicant’s new job was the same or similar to the prior job. Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2005).  This effectively prevented many noncitizen workers who had changed jobs in accordance with the law from having their permanent resident applications approved.   

The Legal Action Center successfully challenged this decision in several courts of appeals. These decisions and our arguments, in turn, persuaded the BIA to withdraw Matter of Perez-Vargas and issue a new decision finding that immigration judges do have jurisdiction to decide this issue.

CASES

Ahmad v. Mukasey, No. 08-4081 (2d Cir. amicus brief filed Jan. 16, 2009) (remanding case to BIA for new decision in light of the Board’s decision in Matter of Neto).

Matter of Neto, No. A095-861-144 (BIA amicus brief filed Aug. 27, 2009).  In a precedent decision, the BIA adopted the position of the Legal Action Center and vacated Matter of Perez VargasMatter of Neto, 25 I&N Dec. 169 (BIA 2010).Read more...

What the Drop in Illegal Residency Means for Immigration Reform

Published on Fri, Sep 03, 2010

But Mary Giovagnoli, director of the more liberal Immigration Policy Institute, sees the Pew study as extra motivation to pass comprehensive immigration reform, including a legalization program for those already in the country. "I think it overall provides us with a healthy reality check on the fact that despite the claims that the country's being overrun and that all of these problems are the result of illegal immigrants, the amount of illegal immigration is, in proportion to the overall population and even in terms of overall numbers, declining," she says. "We need to seize upon that and build a smart immigration overhaul where now, with these statistics in play, we can figure out how to get it right."

The number of illegal immigrants has historically vacillated alongside the country's economic fortunes, Giovagnoli points out. "One of the overall best ways to ensure that we don't have continued loops of illegal immigration is to ensure that we have a combination of improvements to our permanent legal system and to our guest worker programs," she says. "We know that enforcement alone can't handle the situation."

Published in the Atlantic Monthly

Relevant Decisions

In contrast with criminalproceedings, removal proceedings include only minimal safeguards for respondents with mental disabilities. This page contains summaries of select cases addressing the rights of noncitizens with mental disabilities.

Federal Court Decisions

Franco-Gonzalez v. Holder, No. 10-02211 (C.D. Cal. Apr. 24, 2013): Federal Judge Orders Government to Provide Counsel to Detained Immigrants with Mental Disabilities Facing Deportation

In March 2010, attorneys from the ACLU of Southern California filed a petition for writ of habeas corpus in a California federal district court on behalf of Jose Antonio Franco-Gonzalez, a Mexican citizen with a cognitive disability who had been in immigration detention for more than five years. Several months later, the ACLU and other organizations and attorneys filed a class action lawsuit on behalf of Mr. Franco-Gonzalez and other detained unrepresented individuals with serious mental disorders in removal proceedings in California, Arizona, and Washington. The complaint stated that the government was required to 1) conduct competency evaluations for all those who the government knows or should know may be incompetent to represent themselves, 2) appoint attorneys for those found in need of counsel as a result of the evaluations, and 3) conduct custody hearings for those who face prolonged detention as a result of the delays caused by their mental disabilities. As a result of the habeas petition, ICE released Mr. Franco-Gonzalez from custody.Read more...

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The Next Arizona

Published on Thu, Oct 28, 2010

After Arizona passed its crackdown law on illegal immigration, SB 1070, politicians across the country said they planned to introduce similar legislation in their states — even after the Justice Department sued Arizona for overstepping its authority to police immigration. Via Immigration Impact, pro-immigration business coalition Immigration Works USA released a report on which states are most likely to go through with their plans. Based on past enforcement policies and Republican support, four states were deemed likely to pass copycat laws: Georgia, Mississippi, Oklahoma and South Carolina.

Published in the The Washington Independent

Litigation Clearinghouse Newsletter Vol. 2, No. 13

This issue covers natz delay class actions, challenges to Matter of Perez-Vargas, potential religious worker litigation, and LAC news.

Published On: Monday, November 19, 2007 | Download File