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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+

You Can Go Home Again Why There's No Need For "Safe Departure" Border Checkpoints For Illegal Immigrants

Published on Thu, Jul 29, 2010

Explainer thanks Cheryl David of the American Immigration Lawyers Association, Benjamin Johnson of the American Immigration Council, Audrey Singer of the Brookings Institution, and Jessica Vaughan of the Center for Immigration Studies.

Published in the Slate

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...

Democrats Reach Out to Hispanics on Immigration Bill

Published on Thu, Sep 16, 2010

Latinos are now one-quarter of Nevada’s population and nearly 12 percent of voters, according to the Immigration Policy Center, a research group in Washington. Their strong turnout in 2008 swung the state for Mr. Obama. While Ms. Angle has not focused on Latinos, Senator Reid has been running Spanish-language ads and attending rallies, declaring his commitment to the immigration overhaul.

Published in the New York Times

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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State Representative Launches ‘Anchor Baby’ Task Force

Published on Tue, Oct 19, 2010

Wendy Sefsaf, communications director for the American Immigration Council, said there is no proof illegal immigrants come here to have children, only anecdotal stories in articles and newspapers.

“There’s no absolute proof someone would come here and have a baby,” said Ms. Sefsaf. “That baby couldn’t do anything for you until it’s 21 years old, and then sponsor you for permanent residence which could take 10 to 20 years. It’s an imagined problem.”

Ms. Sefsaf also questioned Mr. Metcalfe’s claim the 14th Amendment is being “misapplied” because the original debates around the amendment talked about both rights for African-Americans and for Chinese immigrants.

“It was very purposely passed and set up to take into account both African-Americans and immigrants,” she said. “It’s being applied exactly as it was intended.”

She said illegal immigrants primarily come to the United States for economic reasons, not to have children here.

“It’s almost invariably for economic reasons. We do have a broken immigration system, and we do need to address it comprehensively and fix it, but these patchwork solutions don’t get us anywhere near where we need to be to fix the system,” said Ms. Sefsaf.

Published in the Pennsylvania 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