Perhaps it has been too long since USCIS has truly been held accountable for its actions that it has become desensitized to the legal constraints under which it is permitted to operate. The USCIS is not given carte blanche to make whatever changes or interpretations it wants to long-standing immigration law, without first complying with the Administrative Procedure Act (“APA”). Yet, twice in the last two months the USCIS has issued “memos” that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA.

By Deborah Notkin, AILA Past President
Attorney General Andrew Cuomo has been combating the unauthorized practice of law for the last year and a half and has shut down many small outfits preying on immigrant communities. But on January 14, 2010, he took down the big fish by obtaining a restraining order preventing them from providing legal assistance on immigration matters.

The International Immigrants Foundation and their “legal wing”, The International Professional Association have been preying on the immigrant community for over 20 years. Two AILA members, National UPL Committee member Jason Abrams and Past AILA President Allen Kaye have been trying to rid the community of this parasite for many years. They were in the forefront of the final effort, providing important evidence to the Attorney General. Other, newer AILA members were instrumental in supporting the Attorney General’s complaint with detailed affidavits.

The International Immigrants Foundation’s President, Eduardo Juarez, had a column in El Diario as well as a spot on 93.1 FM, a major Spanish speaking radio station. He is not an attorney. In the past, he had fooled even some in the New York City government and had some close relations there – attending planning meetings, glad-handing celebrities, and holding an annual parade down Manhattan’s Sixth Avenue. His fees were at the higher end of the scale, way beyond those a registered 501(c)(3) organization like his should have entertained, and to make matters worse, he charged a monthly membership fee during the course of pending immigration matters.

New York does not have a perfect law regarding the unauthorized practice of law, but with what we have, and the determination of the Attorney General’s Civil Rights Bureau and Charities Bureau, this predator is being shut down. The lesson here is that others concerned about the unauthorized practice of law can go to their attorneys general and use the heroic example of Andrew Cuomo and his staff to show it can be done. AILA’s National UPL committee has an ongoing effort to reach out to various attorneys general, but the words of individual AILA members always help.

Now, the task of the New York Bar is to step up to the plate to assist Cuomo’s office in finding competent representation for those with ongoing cases.

Buried in the local news section of the New York Times on Wednesday was yet another disturbing report about the treatment of immigrant detainees by US Immigration and Customs Enforcement. http://bit.ly/5df4fp. Detainees at the Varick Street Detention Center in Lower Manhattan reportedly went on a hunger strike to protest ICE detention policies and practices. A Jamaican detainee alleged that “all hell broke” loose after about 100 detainees refused to go to the mess hall on Tuesday morning and gave ICE officers flyers declaring they were on a hunger strike protesting detention policies and practices. According to the Times, one detainee claimed a SWAT team used pepper spray and ‘beat up’ some detainees, took many to segregation cells as punishment and transferred about 17 to immigration jails in other states. The 20 detainees remaining in his dorm were threatened with similar treatment if they continued the hunger strike. Other detainees reported they had seen immigration agents in riot gear dragging detainees from the far side of the jail while other detainees were taken to the segregation unit. Most detainees who reported the incident would not give their names for fear of retaliation.

It may not seem surprising that prisoners would protest the conditions of their confinement. But ICE detention is particularly suspect and each and every allegation of abuse must be taken as if true until ICE proves otherwise. This latest report comes on the heels of a major article that ran in the Times on Sunday, January 9, 2010 that exposed a detention system riddled with abuse, neglect, death, and corruption which immigration authorities have schemed to keep secret. Over the past two years there have been no less than 20 alarming articles about abuse and death in ICE detention including,

• Officials Hid Truth of Immigrant Deaths in Jail, January 9, 2010 http://bit.ly/5b6sTY
• Officials Say Detainee Fatalities Were Missed, August 17, 2009 http://bit.ly/40x9fD
• Immigrant Detainee Dies, and a Life Is Buried, Too, April 2, 2009 “http://bit.ly/2Id48H
• Ill and in Pain, Detainee Dies in U.S. Hands, August 12, 2008 http://bit.ly/4Elc0h
• Few Details on Immigrants Who Died in Custody, May 5, 2008 http://bit.ly/7iffNx

A more complete catalog can be found at http://bit.ly/8JBA1w. Each article gets longer and more urgent.  And this list doesn’t include Congressional testimony and other independent reports detailing horrific detention conditions. As the Times stated in its January 19 editorial http://bit.ly/5WR6jE,

It is nothing less than horrifying that the terms “disappear”, “secret”, and “death” can be used to describe ICE detention. When will the Obama Administration act to protect the basic human rights of immigrant detainees? How many more will have to die before someone in government is outraged enough to start paying attention?

By Deborah Notkin, AILA Past President

In an analysis of the Gutierrez bill that gave the employment provisions for future flows of lesser skilled workers more credit than they deserve, I mistakenly assumed that hopeful workers from abroad would be linked up with the internet based program in Section 503 of the bill to put these workers in touch with employers who “have traditionally relied on unauthorized labor” in the past. But there is no link to this database. Instead the plan is to have a lottery of 100,000 for the next three years which will focus primarily on citizens from countries historically providing us with our undocumented workforce. No employment offers or family ties are part of the consideration. The lucky recipients will get to come to the U.S. for three years on a transitional visa and then have a pathway to permanent residence without the indicia of employment. They are chosen at random and after that, who knows?

There is nothing in this bill that provides for future workforce needs, despite all the statistics and historical data of the continuing need the U.S. will have for non-agricultural lesser skilled workers as baby boomers retire and our birth rate declines. And while the serious unemployment figures in our country have indeed temporarily lessened the need for foreign workers in some segments of the workforce, there are many sectors employing lesser skilled workers that still cannot fill worksite needs in this economy.

We desperately need a visa system for future flows that works in a range of economic climates, from boom to bust. We have no system to bring in non-professional skilled and unskilled workers to fill non-seasonal positions. We have had and continue to have chronic shortages in many sectors of our economy. Lack of a reasonable provisional visa program for non-professional workers to augment gaps in the domestic workforce is imperative if a legalization program is not to commit the mistakes of omission in the past Amnesty Program of 1987. That omission is the lack of a nonprofessional work visa so needed workers can come here in a safe, legal and orderly fashion.

While the US government is valiantly leading the effort to bring disaster relief to the people of Haiti, back in the U.S. the Department of Homeland Security is quietly preparing for the possibility of an influx of unwelcome Haitian refugees by creating space at South Florida’s main detention center. The Los Angeles Times reports that between 250 and 400 immigration detainees are being moved out to clear space for any Haitians who manage to reach U.S. shores. DHS also states that Guantanamo Bay could be used to house temporarily house Haitian immigrants. http://bit.ly/5V7kQa



Not that there are any Haitians sailing toward the US at the moment, or that a grand influx of Haitian refugees is expected any time soon. No, the DHS just wants to prepare the prison cells in case the Haitians arrive.

Sometimes I wonder if the bureaucrats who run DHS have any clue about what goes on outside their government offices. Have they seen the news reports out of Haiti this past week? Do they not understand that most Haitians are simply trying to find enough food, water, and medical help to make it through the night, let alone planning to ferry themselves across a very dangerous stretch of the Caribbean Ocean to reach South Florida?

And, assuming that some Haitians did make it here, what is the point of detaining them? Why not simply give them the Temporary Protected Status granted to their fellow Haitians who were in the US when the earthquake struck or grant them Humanitarian Parole? Of course, there are those who will argue that if we don’t lock up new Haitian arrivals we’ll only encourage their brethren to follow. And there may be some truth to that. But given the horrific situation in Haiti, it’s difficult to imagine that detention will serve as a deterrent. It would make more sense to give Haitian refugees TPS or Humanitarian Parole so they can remain free, and work to build the resources they will need to return to their homeland once the situation permits.

This week marks the 81^st birthday of the Rev. Dr. Martin Luther King, Jr. His heroic struggle for civil rights, a battle for which he paid with his life, is an inspiration to all Americans. While there has been progress since the 60s, there remains much work to be done.
Last week, USCIS Director Alejandro Mayorkas, speaking at the first naturalization ceremony timed to honor the slain civil rights leader, reminded the nation that the legacy of Dr. King and the civil rights movement of the 60s is America’s promise of a dream to all who are able to come here. “When we greet new citizens into the United States we speak of the open opportunities that our country presents to everyone around the world who qualifies for the benefits our agency administers…Martin Luther King helped define those hopes and opportunities for everyone.”
I applaud Director Mayorkas for his words and for honoring Dr. King’s memory with citizenship ceremonies around the country. But it is also important to remember those who cannot get here or who are here but cannot enjoy America’s promise—the victims of persecution and torture who seek refuge in America but have been refused admission; the business entrepreneurs, scientists, artists, and others who long to contribute to America’s economy, social fabric, and culture but are subject to a bureaucratic “culture of no” as well as absurd visa quotas and interminable backlogs; the husbands, wives, fathers, mothers, sons, daughters, brothers and sisters who dream of reuniting with their loved ones and have played by the rules only to find themselves at the wrong end of a broken immigration system. And, of course, we must hold in our hearts all those who are in the U.S., but are detained or live in fear of arrest, deportation, and separation from their families because America offers them no pathway to citizenship.

Press Office

U.S. Department of Homeland Security

January 15, 2010

Contact: DHS Press Office, (202) 282-8010

STATEMENT FROM HOMELAND SECURITY SECRETARY JANET NAPOLITANO

“As part of the Department’s ongoing efforts to assist Haiti following Tuesday’s devastating earthquake, I am announcing the designation of Temporary Protected Status (TPS) for Haitian nationals who were in the United States as of January 12, 2010. This is a disaster of historic proportions and this designation will allow eligible Haitian nationals in the United States to continue living and working in our country for the next 18 months. Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this Administration’s continuing efforts to support Haiti’s recovery.

“At this moment of tragedy in Haiti it is tempting for people suffering in the aftermath of the earthquake to seek refuge elsewhere. But attempting to leave Haiti now will only bring more hardship to the Haitian people and nation. The international community has rallied to deliver relief to Haiti. Much has already arrived and much more is on its way. The Haitians are resilient and determined and their role in addressing this crisis in their homeland will be essential to Haiti’s future.

“It is important to note that TPS will apply only to those individuals who were in the United States as of January 12, 2010. Those who attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and will be repatriated.

“The Department of Homeland Security continues to extend sympathy to our Haitian neighbors and support the worldwide relief effort underway in every way we can. Four Coast Guard cutters have arrived in Haiti, in addition to a variety of Coast Guard assets that were already in the area to support military air traffic control, conduct damage assessments and rescue people in need of assistance. The Federal Emergency Management Agency (FEMA) continues to work closely with the U.S. Agency for International Development (USAID) and the State Department—the lead U.S. federal agencies in the response—while coordinating the deployment of state and local Urban Search and Rescue Teams from across the country to Haiti and standing by to provide food, water and other resources as requested. U.S. Customs and Border Protection (CBP) has provided aircraft to support response efforts.

“Haitians in the U.S. who are eligible to apply for TPS should go to www.uscis.gov or call USCIS toll-free at (800) 375-5283.”

This afternoon, the Department of Homeland Security announced that TPS would be available for Haitians, in the aftermath of this week’s earthquake and the devastating storms that hit Haiti in the last 13 months.

Haiti, the poorest nation in our hemisphere, and the one of poorest nations in the world, was hit by yet another natural disaster–a 7.0 earthquake. This after a Haiti has endured four major storms in 2008, from which it has yet to recover. Tropical Storm Fay and hurricanes Gustav, Hanna and Ike – pounded Haiti in August and September 2008, killing a total of 793 people and leaving more than 300 others missing, according to government figures. The country was also gripped by a tense political standoff in April 2008 amid riots over skyrocketing food prices. UN troops are a regular sight throughout much of the country.