Nation of Immigrants

"New" EOIR Website: What's New Except the Design?

On October 20, the Executive Office for Immigration Review (EOIR) rolled out its new website.

The EOIR is composed of the (1) Immigration Courts; (2) Board of Immigration Appeals (BIA) and the (3) Office of the Chief Administrative Hearing Officer (OCAHO).

The EOIR announced the coming of the new website in a press release dated October 19.  The agency stated as follows:

 

"The EOIR website has been a prominent site for respondents, representatives, nongovernmental organizations, the press, and the public to gain updated information about the agency. The new site offers a clean design that mirrors the look and feel of the U.S. Department of Justice's website and offers significant improvement in regard to navigation and functionality.

 Features include an Action Center with tools for visitors to find a representative, an immigration court, and a free legal service provider. The public may also submit a complaint regarding an immigration judge online and review statistics related to all complaints received. The new site also provides prominently placed links to the practice manuals for the Office of the Chief Immigration Judge and Board of Immigration Appeals, immigration-related forms, the Immigration Judge Benchbook, and the Virtual Law Library."  

 

The look of the new website mirrors that of the Justice Department's website, of which the EOIR website is a subsection. 

The content of the website is largely the same as the old EOIR website.  It contains such helpful features as the:

1) Immigration Courts Practice Manual - This is a useful guide for persons who practice in the Immigration Courts;

2) The BIA Practice Manual - This guides persons who practice before the BIA;

3) The Virtual Law Library - This useful feature contains links to both of the above guides as well as to the latest precedent decisions, Federal Register notices, Immigration Judge Benchbook and much more.  One can subscribe and receive e-mails from the EOIR whenever there is a new precedent decision, a new Immigration Judge is sworn-in or presides over a naturalization ceremony, or the list of disciplined private practitioners is updated.

Unfortunately, despite the new website, it appears that the EOIR webmaster does not regularly check to see that all of the links are working and are up-to-date.  For example, click on "Related Links" in the upper right hand corner of the Virtual Law Library and you will see that the link to the State Department's Visa Bulletin is broken.  Also,  there is a link to the State Department's "2008 Human Rights Report" even though the 2009 version of the report has been online since last March. The same applies to the link to the State Department's 2008 Report on International Religious Freedom.

The site allows readers to download copies of EOIR forms and instructions for free and provides contact information for Immigration Courts across the country as well as to EOIR headquarters.

The EOIR Action Center allows readers to:

1) File Complaints Against individual Immigration Judges;

2) Find a Representative;

3) Find an Immigration Court; and

4) Find a Free Immigration Provider.

Some of the above information is misleading.  For example, the reference to "free" immigration providers is misleading since the providers listed are not free, and there is no real quality control over who is listed. 

One new feature is a slide show regarding Immigration Judge Complaint statistics received from October 1, 2009 and September 30, 2010.  EOIR received 166 complaints concerning 88 Judges.  Of the 152 complaints which have been resolved, 52 was dismissed, 21 were "concluded" due to the Judge's retirement or resignation, 78 resulted in unspecified "Informal Actions" and only 2 involved "Disciplinary Actions" which include reprimands, suspensions and removals.

In the past, we have noted the EOIR website is difficult to navigate because it has no site map or search engine.  Unfortunately, the new site does little to resolve these issues.  Since the search engine is for the entire Justice Department website, it is less than helpful for finding specific information on the EOIR subsection of the site. Likewise, the site map applies to the entire Justice Department website.

The Justice Department has its own Facebook, MySpace, YouTube and Twitter pages, but if any of these pages contain any information about the EOIR, we were unable to find it.

All in all, despite the new and improved look, the content on the new EOIR website remains largely the same. 

 

USCIS Should Follow BALCA on Posting Requirement

Can a Saturday or a Sunday be a "business day"? 

It depends on who you ask.  The U.S. Department of Labor says yes, while the Department of Homeland Security thinks otherwise.  What's an employer to do?

On October 12, the Board of Alien Labor Certification Appeals (BALCA) issued a decision "In the Matter of Il Cortile Restaurant".  This case involves a PERM application for a chef, and has been bouncing around in the Labor Department (DOL) for three years.

In May 2007, the employer posted a Notice of Filing (NOF) of a PERM application for ten consecutive days.  The Certifying Officer (CO) denied the PERM application citing a DOL regulation which requires Notices of Filing to be posted for ten consecutive "business" days.  The restaurant explained to the CO that it was open for business every Saturday and Sunday, that these days were the busiest times of the week and that all employees are required to work on weekends.

However, the CO was not persuaded.  He denied the PERM application on the ground that "for the purposes of the Permanent Labor Certification program, business days as related to the posting of the NOF are defined as Monday through Friday, excluding weekends and Federal holidays."

The CO forwarded the case to BALCA, arguing that defining business days as actual days that the employer is open would make the administration of the NOF provision unfeasible.

BALCA started, wisely enough, by examining the DOL regulation, 20 C.F.R. 656.10(d)(1)(ii), which imposes the requirement that the NOF be posted for ten consecutive business days.  Does the regulation define the term "business days"?  No.

Next, BALCA examined the purpose of the regulation. Here, they looked to the Federal Register notice which announced the publication of the regulation, and concluded that "the purpose of the Notice of Filing requirement is to ensure that the employer's employees and other interested persons are notified that it is filing an application for a permanent alien labor certification."

BALCA went on to consider whether the purpose of the regulation would be accomplished by considering Saturdays and Sundays to be business days: "If the Notice of Filing is posted for ten consecutive days when employees are on the worksite and are able to see the Notice of Filing, the purpose of the Notice of Filing requirement is fulfilled.  As long as an employer has employees working on the premises on a Saturday, Sunday or holiday, those days are business days for the purposes of complying with the Notice of Filing posting."

Based on this reasoning, BALCA vacated the CO's denial of the PERM application on the ground that "fundamental fairness" requires that the employer be given the opportunity to demonstrate that Saturdays and Sunday are business days for the restaurant.

All of which brings us to the DHS, specifically the USCIS.

Not all occupations are subject to the general requirement that employers must submit a PERM application.  Specifically, according to a DOL regulation, when an employee is a member of a shortage (aka "Schedule A") occupation, no PERM application is required.  There are only two Schedule A occupations, Registered Nurses and Physical Therapists. When sponsoring an RN or a PT for permanent residence, an employer skips the DOL and submits a visa petition to the USCIS.  The employer is subject to the same requirement that a Notice of Filing be posted for ten consecutive business days. 

Here is the rub: The USCIS, like the CO in "In the Matter of Il Cortile Restaurant" has always maintained that weekend days were not business days for purposes of ten consecutive business day regulation.  Now that the BALCA has ruled that if the employer is open for business on weekends, Saturdays and Sundays are business days, the USCIS should conform its interpretation of the DOL regulation with BALCA's.

For years, the USCIS has denied visa petitions submitted by hospitals (which are open seven days a week, 52 weeks a year) on behalf of Registered Nurses and Physical Therapists on the ground that weekend days do not count as business days.

This policy has had serious negative immigration implications particularly for RNs since, for the most part, RNs have no underlying nonimmigrant status.  When USCIS denied their I-140s, the agency also denied their I-485s leaving all of them unlawfully in the U.S.  or placing them in removal proceedings.  Further, the USCIS maintains that the RNs affected may not reapply for adjustment of status under section 245(k).  This is because the agency interprets the word "status" in section 245(k) to mean "nonimmigrant status", and most RNs lack any underlying nonimmigrant status.

Therefore, it is a matter of "fundamental fairness" that the USCIS not only change its policy toward what constitutes a "business day" for NOF purposes, but that the agency, on its own motion, reopen all improperly denied I-140 visa petitions and I-485 applications for adjustment of status for RNs, PTs and their family members who were prejudiced by the USCIS' improper application of the law.

New BIA CSPA Decision

Being involved in a pending nationwide class action lawsuit regarding the Child Status Protection Act (CSPA) tends to focus one's attention on the operation of this statute.  I try to read every CSPA decision rendered by a Federal Court or by the Board of Immigration Appeals (BIA).  (Our final brief in the class action lawsuit was submitted to the 9th Circuit Court of Appeals on October 5th.  We eagerly await the scheduling of oral arguments by the Court.)

The day after we submitted our brief, the BIA, in Matter of Murillo (A099 252 007) interpreted the phrase "sought to acquire" in section 3 of CSPA in an expansive matter, rejecting the argument of the DHS which would have resulted in Mr. Murillo being removed from the United States and separated from his parents for many years.

Here is the story.

Jose Jesus Murillo was born in Mexico on May 2, 1984.  His father became a lawful permanent resident of the U.S. and petitioned his wife on October 16, 1995 under the family-based 2A category.  Jose, being only 11 years of age was included as a "derivative beneficiary".  The INS approved the petition on August 9, 1996.

A visa number became available to Jose and his mother on June 1, 2003 when Jose was 19 years old.  However, the family's attorney did not file an application for adjustment of status under section 245(i) for more than one year.

The twist in the story is that CSPA does not require that Jose's application for permanent residence be "submitted" or "filed" before his priority date becomes current.  Rather, CSPA requires that he must have "sought to acquire" permanent residence within one year of his priority date becoming current.  This means, in Jose's case, that he must have taken action to become a permanent resident before June 1, 2004.

The record is clear that he hired an attorney to file an application for adjustment of status for him in April 2004.  On April 30, 2004, Jose obtained a money order for filing fees payable to the INS.  However, his attorney did not actually file the I-485 until November 26, 2004.  This application was returned by the USCIS due to an error in the filing fee.  The I-485 was resubmitted on December 18, 2004 and once again on February 1, 2005.

The I-485 was denied on the ground that Jose had not "sought to acquire" a green card within a year after his priority date became current, and he was placed under removal proceedings before an Immigration Judge.  The Judge granted Jose's application for adjustment of status on the ground that he had met the "sought to acquire" requirement of CSPA by hiring an attorney to prepare and submit an I-485 on his behalf within one year of his priority date becoming current.

The DHS appealed the Judge's decision to the BIA.  They argued that a person can only be found to have "sought to acquire" permanent residence if they "filed" their application for permanent residence within the one-year period.

Jose's attorney, and Mary Kenney, who authored a friend of the court brief on behalf of the American Immigration Council (AIC), argued that if Congress intended that a person must "file" an I-485 within one year of their priority date being current, they would have used the word "file" or "submit" or "apply" in writing CSPA.  They cited numerous other laws where Congress did use these words. 

The BIA held that they were not bound by the DHS' interpretation of a statute.  Further, they held that if Congress meant "sought to acquire" to mean "filed", Congress would have used the word "filed" or a similar word, but Congress chose not to do so.  The Board examined the Congressional intent in passing CSPA and found that it was passed to "bring families together".

Finally, the Board quoted a U.S. Court of Appeals decision in Padash v. INS, 358 F.3d 1161, 1172 (9th Cir. 2004) which held that CSPA should be "construed so as to provide expansive relief to children of United States citizens and permanent residents."

The Board held in favor of Jose Murillo.  However, this decision is not a precedent, meaning that it only applies to Mr. Murillo, not to anyone else.  Matter of Murillo is similar to a 2004 Board decision interpreting the words "sought to acquire", Matter of Kim.

The USCIS has now had over eight years to promulgate regulations to implement CSPA, but has failed to do  so. We urge the Board to designate Matter of Murillo as a precedent in order to clear up any remaining uncertainty about the meaning of the words "sought to acquire" in CSPA.

USCIS' New Citizenship Resource Center

The USCIS has added a new feature to its website, entitled the Citizenship Resource Center.

I am impressed by this new service and I'll tell you why.  Back in the 1970s when I served as an INS Citizenship Attorney, I was appalled that the government had no program to help immigrants interested in becoming U.S. citizens.  In fact, applicants had to line up at the Federal Building early in the morning, and wait in line for hours simply to obtain an application form. 

I developed a program where government attorneys visited evening Citizenship classes in Southern California.  They spoke and answered questions about the Citizenship process, handed out Applications for Naturalization and helped students prepare for their naturalization interviews.

However, after I left the Citizenship Branch in 1980, the whole program fell apart.  At that time, there wasn't even a government-issued brochure about the Citizenship process.

For the past few years, the INS and USCIS websites have allowed Citizenship applicants to download the N-400 form for free, take practice history and government tests online and become familiar with the naturalization process.

This summer, the USCIS website took this a further step, and added the Citizenship Resource Center (CRC) to their website. 

For students, the CRC allows them to

•  Learn about Naturalization
•  Apply for Citizenship
•  Study for the Test
•  Find a Citizenship Case
•  Attend an Information Session
•  Understand their Rights and Responsibilities

For teachers, the CRC provides

• Classroom Tools
• Online Training Resources
• Naturalization Information
• Training Workshops

For organizations, the CRC lists

• Grant Programs
• Grant Resources
• Grant Recipients
• Promising Practices
• Training and Professional Development
• Supplemental Resource Links

The CRC provides information about the history and government test in several languages including English, Spanish, Chinese, Tagalog and Vietnamese.  The site includes videos and audios in multiple languages explaining the naturalization process.

The USCIS regularly holds free information sessions for permanent residents in different parts of the country. These sessions cover naturalization eligibility, testing, and citizenship rights and responsibilities.  A schedule of these sessions is listed on the website.  For October and November, the 14 sessions listed on the schedule were all east of the Mississippi River. 

The website links to the Literacy Information and Communication System (LINCS).  I inserted my zip code and tried to find a Citizenship class within 5 miles of my house.  Although I founds a number of centers that would help with math, ESL, GEDs, etc., I did not find a Citizenship class.

The site also contains a 16-minute video entitled "The USCIS Naturalization Interview and Test" and an 11-minute video entitled "Becoming a U.S. Citizen: An Overview of the Naturalization Process".

All in all, the Citizenship Resource Center is a great place for persons to learn about the process of becoming a citizen of the U.S.

We link to the Citizenship Resource Center from the "Obtaining U.S. Citizenship" page on our website.

Kudos to the USCIS.

 

Latinos Must Show Their Muscle in November

When the economy is in the tank, voters look for a scapegoat. 

Back in 2005, when the economy was flourishing (Remember?), the McCain-Kennedy Comprehensive Immigration Reform (CIR) bill was co-sponsored by a bipartisan coalition of Senators including Republicans like Lindsay Graham of South Carolina, Sam Brownback of Kansas, Mel Martinez of Florida and Lincoln Chafee of Rhode Island, not to mention an obscure Democrat freshman from Illinois by the name of Barack Obama.

In the 2008 Presidential elections, Senator Obama promised to push for CIR, and the Latino vote in states like Colorado and New Mexico helped propel him to victory.  However, the new President inherited an economy on the verge of collapse.  And despite the efforts of the President and the Congress to stimulate the economy, the percentage of Americans who are unemployed remains stubbornly high.

It has become a popular campaign tactic to blame undocumented workers from Mexico for our present economic distress.  Signing Arizona's racial-profiling immigration law turned the state's unpopular Governor into a shoo-in in the 2010 elections.  Senator McCain's (R-AZ) 180-degree turnaround from a sponsor to a vocal opponent of CIR helped him to clinch the Republican nomination for Senator.  Tom Tancredo, formerly the leader of the anti-immigration forces in the House of Representatives, is the Republican nominee for Governor of Colorado. In races across the U.S., candidates seek to burnish their anti-immigration credentials by having the infamous Sheriff Arpaio from Phoenix, Arizona come and speak to voters on their behalf.

The reason that CIR never got off the ground in the Senate in the past two years was not the fault of President Obama.  It is because every single Republican, and even a few Democrats, opposes CIR.   One would think that Latino voters would be up in arms about this, and vote to "throw the bums out".

However, a poll released this week indicates that only 51% of Latino registered voters said that they would go to the polls as compared to 70% of voters overall.

Unless Latino voters get energized quickly, we can forget CIR and the DREAM Act.  The next Congress is apt to be controlled by anti-immigrant zealots who will do their best to pass "enforcement-only" immigration bills.  Stay tuned for national racial profiling laws, a vastly increased budget for immigration enforcement, mandatory E-Verify and an end to birthright citizenship.  Hopefully, President Obama would veto such legislation.  However, immigration advocates remember all too well President Clinton's signing of the notoriously anti-immigrant law of 1996, something we have yet to recover from.

Latinos should bear in mind that they are the fastest growing demographic among American voters.  After Governor Pete Wilson (R-CA) rode to re-election in California in 1994 on the strength of the anti-immigrant Proposition 187, Latinos registered to vote in record numbers and made California an pro-immigrant state in short order.  Today, once candidates emerge victorious in the Golden State from the Republican primaries, they immediately start running campaign ads in Spanish and proclaim they are "amigos" of the Latino community.  No politician in California can ignore Latino voters.

Let's hope that this time, Latino and other pro-immigrant voters exercise their power in the 2010 elections, not just afterwards.