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© 2009 Spar & Bernsteins 'Law link' Blog
Source: The Associated Press
WASHINGTON — Immigrants to the United States have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation, the U.S. Supreme Court said today.
The high court’s ruling extends the Constitution’s Sixth Amendment guarantee of “effective assistance of counsel” in criminal cases to immigration advice, especially in cases that involve deportation.
“The severity of deportation — the equivalent of banishment or exile — only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation,“ said Justice John Paul Stevens, who wrote the opinion for the court.
The ruling came in the case of Jose Padilla, who was born in Honduras. Padilla asked the high court to throw out his 2001 guilty plea to drug charges in Kentucky, which made his deportation virtually mandatory.
By Nancy Power
New York Immigration Attorney, The Law Offices of Spar & Bernstein
On Sunday, I was sitting in the car with my two sleeping sons while my husband and daughter were in the store.
I turned on the radio to listen to an Irish music program and heard this familiar song.
I recalled that I had heard it years ago in a pub and had loved it, but hadn’t heard it since.
The song is about the first immigrant to pass through Ellis Island. She was 15-year-old Annie Moore from County Cork, Ireland, and on Jan. 1, 1892, she was traveling to America with her two younger brothers to meet their parents, who had moved to New York two years prior.
The ocean voyage at that time would have taken about two weeks and the conditions would have been poor.
What must Annie have been thinking when the ship pulled into the harbor and saw the Statue of Liberty?
What goes through the mind of a 15-year-old girl who is the caretaker of her younger brothers as she leaves her homeland forever and starts a new life in a strange new world?
The story of America is the story of so many Annies who have been forced to leave their native country in order to survive and for those who yearned for something more. Many never saw their homeland again, but created a new life for themselves and those who came after them.
The tenacity of those immigrants and their refusal to bow down to tragedy is what has made our country great.
I marvel at the strength and courage of those who came before me and I appreciate the sacrifices they made so that I didn’t have to.
Annie Moore went on to marry a German-American man and together they had 11 children, with only five reaching adulthood.
She is buried in Calvary cemetery in Queens, a few blocks from my home.
Source: New York Times
By Nina Bernstein
ELMONT, N.Y. — When a police officer in this Long Island suburb found a marijuana cigarette in Jerry Lemaine’s pocket one night in January 2007, a Legal Aid lawyer counseled him to plead guilty. Under state statutes, the penalty was only a $100 fine, and though Mr. Lemaine had been caught with a small amount of marijuana years earlier as a teenager, that case had been dismissed.
But Mr. Lemaine, a legal permanent resident, soon discovered that his quick guilty plea had dire consequences. Immigration authorities flew him in shackles to Texas, where he spent three years behind bars, including 10 months in solitary confinement, as he fought deportation to Haiti, the country he had left at age 3.
Under federal rulings that prevailed in Texas, Mr. Lemaine had lost the legal opportunity that rulings in New York would have allowed: to have an immigration judge weigh his offenses, including earlier misdemeanors resolved without jail time, against other aspects of his life, like his nursing studies at Hunter Business School; his care for his little sister, a United States citizen with a brain disorder; and the help he gave his divorced mother, who had worked double shifts to move the family out of a dangerous Brooklyn neighborhood.
Now Mr. Lemaine, 28, is among thousands of noncitizens whose fate may hinge on a case to be argued on Wednesday before the United States Supreme Court, in a challenge to the way the government interprets immigration laws about drug-related convictions. The government maintains that for deportation purposes, two convictions for drug possession add up to the equivalent of drug trafficking, an “aggravated felony” that requires expulsion and prohibits immigration courts from granting exceptions based on individual life circumstances.
By Stella Templo
Immigration Attorney, The Law Offices of Spar & Bernstein
In Aesop’s fable “The Tortoise and the Hare,” the swift hare mocks the slow-moving tortoise but eventually loses to the responsible and plodding tortoise. Believe it or not, this story contains valuable lessons not just for children but for immigrants looking to obtain permanent residency in the United States.
Many, if not all, of the prospective clients we see are interested in obtaining permanent residency as quickly as possible.
Fortunately, many are eligible for permanent residency as immediate relatives and, thus wait, only a few months under the Service’s current processing times. Immediate relatives are spouses, children (under 21) and parents of U.S. citizens.
Unfortunately, many more, are not eligible for permanent residency immediately and are, thus, subject to varying lengths of waiting.
Before one can sit down and start the wait, he or she must file the appropriate petitions and applications to either the Immigration Service or the Department of Labor.
When told of the wait, many persons rebel against their lot as “tortoises.”
The rebels cannot accept the idea of waiting five, seven, ten or more years for permanent residency. Some will leave lawyer’s offices and continue to look for a more “hare”-like route.
Mixing my fables for a second, we then see the return of tortoises who were caught posing in hare’s clothing. [This is a very bad idea.]
What’s truly frustrating is when I come across persons who have spent five, ten, more than ten years in the United States having done nothing because they thought the wait too long. If only they had done what they could have, their wait would be behind them and they would be in possession of the longed-for permanent resident cards now.
Alas…
It makes me want to leave copies of “The Tortoise and the Hare” in the waiting room.
Please find below another installment in our popular regular series of frequently asked questions about immigration law. Although most of these questions have come from real clients of Spar & Bernstein, we have also included questions from other resources for your benefit. Please note that the answers here are to be used for guideline purposes only, as the questions are specific to a particular case and may not necessarily be the best advice for YOUR situation.
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Question: Some of our employees’ Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have I-140 approved and I-485 pending more than 180 days.
If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?
Answer: You are not required to pay “bench salaries” for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, “do you still have a “permanent” job for them?” If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.
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Question: My wife and I have been working on H-1-B for different employers. My employer applied for my GC in 07. I have my I-140 approved; my wife and I have our EAD cards and AP. Now my wife’s H-1-B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she “HAS” to use her EAD?
Answer: Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not anymore, as far as I know.
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Question: What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?
Answer: There is a lot of confusion out there, judging by the tons of emails that we have received.
Here is how we see it:
If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.
![james-baldwin[1]](http://sblawlink.com/wp-content/uploads/2010/03/james-baldwin1-249x300.jpg "james-baldwin[1]")
“The world changes according to the way people see it, and if you can alter, even by a millimeter, the way people look at reality, then you can change the world.”
- James Baldwin
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“I wish to do something Great and Wonderful, but I must start by doing the little things like they were Great and Wonderful.”
- Albert Einstein
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“In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist; And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist; And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew; And then . . . they came for me . . . And by that time there was no one left to speak up.”
- Pastor Martin Niemöller
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“Once social change begins it can not be reversed. You cannot un-educate the person that has learned to read. You can not humiliate the person who feels pride. You can not oppress the people who are not afraid anymore.”
- Cesar Chavez
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“Do not wait for leaders; do it alone, person to person.”
- Mother Teresa
Source: Immigration Policy Center
Washington, D.C. – This Sunday, the editorial pages of the Washington Post included a piece penned by journalist George Will on the topic of birthright citizenship. Will highlights a scholar who argues against giving those born in the United States birthright citizenship and characterizes the repeal of a 150 year old constitutional tenet as “a simple reform.”
Normally, the idea of stripping those born in America of their right to citizenship has been relegated to the domain of immigration restrictionists and select politicians who try to exploit it for electoral gains.
In endorsing this argument, Mr. Will has looked past a whole body of research which examines the dramatic and far-reaching consequences this would have on American society. The arguments about birthright citizenship revolve around the Fourteenth Amendment of the Constitution, which affirms that all persons born in the United States (and subject to its jurisdiction) have a birthright to citizenship. A repeal of the 14th amendment is sometimes raised as a “cure” to our current broken immigration system, when in reality it takes us further away from the larger conversation that must be had about how we can fairly and efficiently revamp American immigration. Proposing solutions to the symptoms, rather than the root causes of a broken system, do nothing to solve our overall immigration problems and create divisions and dysfunctions in our society at all levels.
In the spirit of balance, the Immigration Policy Center is re-releasing our four-part series originally released in September, 2009 on birthright citizenship entitled: Made in America, Myths & Facts about Birthright Citizenship includes: Defining “American” Birthright Citizenship and the Original Understanding of the 14th Amendment by James C. Ho, a constitutional scholar, examines the historical and legal genesis of birthright citizenship and the unsuccessful legal arguments put forward to abolish it.
Debunking Modern Arguments Against Birthright Citizenship by Elizabeth B. Wydra of the Constitutional Accountability Center who looks at the Reconstructionist context of the Citizenship Clause and shows that Congress clearly meant to provide birthright citizenship to all those born on U.S. soil, regardless of the immigration status of their parents.
Policy Arguments in Favor of Retaining America’s Birthright Citizenship Law by Margaret D. Stock, an immigration attorney who provides very practical reasons to avoid tampering with birthright citizenship. The far reaching consequences of such a change would place a burden on all Americans, who would have to document their claim to citizenship. Contrary to the argument of anti-immigrant groups that abolishing birthright citizenship is key to resolving the problem of illegal immigration, Stock recognizes that it would only increase the number of stateless individuals without legal status who reside within the United States.
A New Nativism: Anti-Immigration Politics and the Fourteenth Amendment by Eric Ward of the Center for New Community who provides an African American perspective on birthright citizenship and the 14th Amendment, which was passed in the aftermath of the Civil War in response to continued discrimination against African Americans.
Ward also examines the motives of the groups at the forefront of current efforts to abolish birthright citizenship and demonstrates their deeply rooted anti-immigrant beliefs and ties to nativist and racist traditions.
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For more information contact Wendy Sefsaf at 202-507-7524 or wsefsaf@immcouncil.org
Source: AILA Leadership Blog
http://ailaleadership.blogspot.com
I’m going to stop using the word “shocked” to describe my reaction to ICE’s dirty secrets. Frankly, it is tough to be surprised by the antics of an agency which administers a draconian a detention system in which 107 immigrant detainees have perished since 2003. But I must admit I am taken aback by the latest news emanating from the bowels of ICE in the form of memoranda which have been released by the Washington Post and the Center for Investigative Reporting. http://bit.ly/bjcy4c. According to the memos, ICE, in an effort to stem a recent drop in the number of deportations, has set detention and removal quotas for its agents in an effort to remove as many people as possible without regard to the stated enforcement priorities of the Obama Administration which allocates scarce resources toward the removal of dangerous criminal aliens and drug traffickers.
The memoranda released by the Washington Post yesterday, which include one dated February 22 by James M. Chaparro, head of ICE detention and removal operations, instruct the field that while the agency was on target to meet its stated goal of deporting 150,000 criminal aliens, greater efforts should be made to meet ICE’s overall deportation goal of 400,000 Individuals – which includes criminal and non-criminal aliens. Chapparo tells agents to reach the goal by increasing detention bed space and upping removal numbers. His underlying message to ICE rank and file? Our mission is not to protect America from those who would do us harm. Rather, it’s a numbers game; remove everyone who may technically fit the bill so that ICE can reach its bureaucratic target. Another memo from early January by Supervisory Detention and Deportation Officer Clinton Folsom states that any ICE agent who can show he or she has “processed” 60 cases a month will earn an “excellent rating” regardless of whether the cases in involve battered women and unaccompanied minors or dangerous drug dealers.
“If you can dream it, you can do it.”
- Walt Disney
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“It’s never too late to become the person you might have been.”
- George Elliot
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“You can clutch the past so tightly to your chest that it leaves you too full to embrace the present.”
- Jan Glidewell
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“For every failure, there’s an alternative course of action. You just have to find it.
When you come to a roadblock, take a detour.”
- Mary Kay Ash
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“Sometimes it’s necessary to go a long distance out of the way in order to come back a short distance correctly.”
- Edward Albee
By Brad Bernstein
President, The Law Offices of Spar & Bernstein
The anti-immigrant yammermouths love throwing around the word “citizenship” in their inflammatory rhetoric.
It’s a good political trick. A fine sleight of hand. A nice scare tactic.
But it doesn’t reflect what the average undocumented immigrant living here in the U.S. is asking for.
What they’re asking for, in fact, is not so much being an instant American citizen as just a lawful resident.
Which means being able to work out in the open, on the books, and pay their taxes.
Which means being able to live without looking constantly over their shoulder, fearing ICE is standing right behind them with handcuffs.
Which means being able to freely move in and out of the U.S. to connect with family members.
So listen up anti-immigrant advocates: Knock off the misleading use of the word “citizenship.”
Or do you even understand the difference between “citizenship” and “lawful resident”?
Hey, you have arguments? State them.
Make your case.
But don’t cheat with stupid word games.
