Maney | Gordon Immigration Law Blog

Shame on the Federal Government!

2008-10-15T18:10:00.005-04:00

While I do not doubt the authority of the U.S. Immigration and Customs Enforcement in conducting a raid on Agriprocessors, of Postville, Iowa, I do question the kangaroo-court style of prosecution of undocumented aliens for criminal charges.

On May 12, 2008, federal agents swept into the Agriprocessor plant and arrested 389 workers. Of those captured that day in May, almost 300 of them were charged with felony counts of fraudulent use of Social Security numbers and aggravated identity theft.

According to a statement made to CNN, the court interpreter, Erik Camayd-Freixas, complained, "There was no presumption of innocence."

Camayd-Freixas was further quoted as saying, "The truth is that nothing could have prepared me for the prospect of helping our government put hundreds of innocent people in jail."

Camayd-Freixas felt that those arrested pleaded guilty to the charges often not knowing specifically to what they were pleading

According to Federal law, a person charged with identity theft has to knowingly take the "identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of federal law."

ICE's affidavit was vague on that point, describing workers going to a third-party source for documents.

Many of the workers were sentenced to 7 months in jail, yet they were not properly advised of the nature of the charges. Many of these workers have lived in the United States for an extended time period and many have US citizen children.

While the prosecution against Agriprocessors for child labor violations and for employer sanctions is appropriate, the inclusion of criminal charges and the lack of due process marks an ill-spirited and misdirected campaign against these vulnerable migrant workers. If they are undocumented, make humane arrangements for their return.

These workers are not terrorist, nor are they criminals. Their only intent is to take jobs no US worker will take, receive their minimum wage, and send much of their earnings to help support their families here and in Mexico. They deserve due process and fair treatment. When we mistreat these workers in this fashion, we diminish our character as a nation.

Attorney General Gets It Right

2008-09-23T16:42:00.003-04:00

Attorney General Michael Mukasey has properly intervened in a case that was mishandled by the Board of Immigration Appeals. The Attorney General issued a critical order accusing the BIA of using "flawed" rationale.

The specific case involved a female from Mali, who sought asylum from her Bambara tribe. She had previously been the victim of female genital mutilation(FGM), a practice common in some parts of Africa wherein a young girl's genitalia are partially removed.

The BIA refused to grant her claim for asylum citing the fact that she had already undergone the procedure, so she had nothing to fear.

The Attorney General properly intervened and pointed out that the asylee had a young daughter who would be subject to the procedure if forced to return to Mali. In addition, female genital mutilation is not a one-time event. It can be repeated several times over a woman's life.

FGM is a very controversial practice. Local tribes defend the practice as having significant cultural and religious meaning. Most advocates in Western cultures decry the practice as barbaric and a gross violation of women's rights.

The caviler approach of the BIA is shocking considering the fate of women who face the return to these practices.

The courts should recognize that our asylum laws should be administered according to our own standards of individual freedoms. Without passing judgment on other cultures, when those threatened by FGM arrive on our shores, our great nation needs to afford protection against the practice of FGM.

Only a small percentage of asylum claims are granted here in the United States. Asylum officers in many cases become jaded, cynical, and biased against those who seek refuge from persecution. Perhaps the next administration can set a more humanitarian and ethical standard for the BIA to apply in these important cases.

U.S. Fails to Honor Treaty - Executes Mexican

2008-08-15T12:14:00.003-04:00

The United States of America is a party to the Vienna Convention on Consular Relations. The treaty requires our states to inform foreign nationals who are arrested or detained that they have a right to have their consulates notified of their arrest.

Mexico sued the United States before the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals. The Court ruled in favor of Mexico and found that Mexican nationals named in the case had a right to review of their state court convictions.

To his credit, President Bush ordered the states to give effect to the decision by the ICJ as it relates to the 51 Mexican nationals named in the suit.

In a very poor decision by the U.S. Supreme Court, Chief Justice Roberts held that even though the Avena judgment was an international law obligation of the part of the U.S., it was not directly enforceable as domestic law. Thus the Court held that the decision or President Bush's order preempted the State of Texas law regarding filing of successive petitions for habeas corpus.
This decision resulted in Texas executing a Mexican national, despite the violation of international law in his arrest.

Of course, by rushing to execute this person, the State of Texas permanently deprived him of any further due process consideration.

With a continuing "lynch-mob" mentality, the State of Texas continues to demonstrate a low value for due process of law.

Promising Legislation in the House!

2008-08-07T12:04:00.002-04:00

Finally some good news from Congress!

The House Judiciary Subcommittee on Immigration approved three appropriate pieces of immigration-related legislation:

H.R. 6020, would allow soldiers who have served in support of contingency operations to be eligible for naturalization and for other purposes.

H.R. 5882, would recapture employment-based and family-sponsored immigrant visas lost to bureaucratic delays and to prevent losses of these visas in the future.

H.R. 5924, sponsored by Representative Wexler (D-FL) would provide 20,000 employment-based visas per year for three years specifically for nurses.

All three of these bills still have to be voted on by the House Judiciary Committee, and then paired with a companion bill in the Senate, voted on by both houses of Congress, and submitted to the President for signature or veto. They have a long way to go, but the thinking towards correcting some of the problems with legal immigration is encouraging.

Here are some of the issues the House Subcommittee on Immigration should consider:

(the Maney Bill to fix legal immigration)

1. Section 245(i) is made permanent with no cut-off date. Increase the fine for those who enter with fraudulent documents or enter without inspection to $3,000.00.

2. The quota for H-1b and H-2b visas is eliminate. There are ample safeguards in place to protect American labor without the use of arbitrary quotas.

3. A special non immigrant visa category is created for nurses, physical therapists, occupational therapists, and speech therapists that allows for admission for up to six years without any quota. Our nation is already facing a health care crisis with a severe shortage of these professionals, when they are readily available abroad. States would still govern on licensing issues.

4. The prohibition against the applicant paying for PERM labor certification fees is eliminated as violating equal protection. There never was a relationship between who paid for the labor certification and any fraudulent activity. The Department of Labor clearly violated its rule-making authority in passing this regulation.

5. Family based immigration visas annual allotment is increased from 226,000 to 450,000 per year to help eliminate severe backlogs in the family based immigration preferences.

6. Employment based immigration visas annual allotment is increased from 140,000 to 300,000 per year to help eliminate severe backlogs in the employment based immigration preferences.

7. Eliminate the 3 and 10 year bars to readmission after unlawful presence of 180 days and one year respectively. These bars to readmission most often affect relative of US citizens and lawful permanent residents. These bars actually result in more undocumented aliens remaining in the US to avoid the bars to readmission, rather than returning home.

8. Restrict the aggravated felony definitions to felonies that carry a maximum penalty of 15 years imprisonment or more.

9. Create a permanent visa category that is based on humanitarian need, that can be granted at the sole discretion of the Attorney General.

10. Recognize the doctrine of sanctuary and prohibit ICE or any other agency from entering any house of worship or temple for the purpose of questioning or arresting suspected foreign nationals.

11. Appointment a special Ombudsman to investigate and identify racial profiling or discrimination by USCIS or ICE against persons of Muslim heritage.

12. The initial grant for a "start-up" L-1a visa holder would be two years instead of one.

13. Persons entering on a K-1 visa would be allowed to change or adjust status where a marriage to the K-1 sponsor did not occur, upon showing of the bonafide nature of the original K-1 relationship.

This is just a beginning. More to come later!

The Time for Legal Immigration is Now!

2008-08-04T17:00:00.002-04:00

George Will, a conservative columnist for the Washington Post, has the right idea about addressing our nation's legal immigration policy now. Too often, politicians and network news anchors confuse the topics of legal and illegal immigration.

In Will's article of July 26, "Building a Wall Against Talent," the commentator correctly points out the importance of the ability of our nation to attract and keep talented immigrants. When these immigrants are not allowed into our nation, they go to another country and help that country become more competitive in the world market.

The latest result of our highly restrictive legal immigration quotas is the exportation of business and jobs abroad. Will cites the example of Microsoft:

"Barack Obama and other Democrats are theatrically indignant about U.S. companies that locate operations outside the country. But one reason Microsoft opened a software development center in Vancouver is that Canadian immigration laws allow Microsoft to recruit skilled people it could not retain under U.S. immigration restrictions. Mr. Change We Can Believe In is not advocating the simple change -- that added zero -- and neither is Mr. Straight Talk.
John McCain's campaign Web site has a spare statement on "immigration reform" that says nothing about increasing America's intake of highly educated immigrants. Obama's site says only: "Where we can bring in more foreign-born workers with the skills our economy needs, we should." "Where we can"? We can now. "

Write your Congressman, your Senator, and your Presidential candidate and tell them you favor expanded legal immigration for the sake of our nation's future. It is no coincidence that this nation grew to be the most powerful and successful in the world by welcoming in talented immigrants from all countries. To continue to unreasonably restrict legal immigration is to sentence this nation to economic and developmental decline.

The time for expanding legal immigration is now.

Rick Maney

The Florida Bar Logo Mishap

2008-07-26T17:31:00.005-04:00

The Florida Bar has done it again!

The Board of Legal Specialization has "redesigned" the logo so that the public will have little chance of understanding what the logo represents.

The new "exciting" design can be viewed here.

I hope the Bar will tell us why the words THE FLORIDA BAR are on top in a larger font, while the words BOARD CERTIFIED appear underneath the logo in a smaller font.

As to the design of the logo itself, your guess is as good as mine!

Is it a seagull flying under a wishbone?

Is it a book on fire?

Is it a crab-claw digging through a valley?

How ironic that the Florida Bar punishes lawyers for any type of advertising that could possibly be deemed deceptive, yet they ask the very best lawyers in the State of Florida to utilize a logo that will baffle the public.

For me, I'll just use the old logo. People could at least tell something about the scales of justice.

Prejudice Can Appear in Many Forms

2008-07-25T22:54:00.004-04:00

Prejudice can appear in many forms, but how heart-breaking to read about the vicious beating of a Mexican by three white youths in Pennsylvania. I imagine it must take a person with a very low self esteem to nurture the hate involved in this alleged crime.

The sad details can be viewed here.

I am reminded that the national networks help foment this hatred with xenophobes like Lou Dobbs and Bill O'Reily. These pundits continually confuse undocumented status with criminal acts. "We cannot reward these criminals who illegally enter our nation without permission!" Of course undocumented status is not a crime, but it doesn't stop Lou Dobbs from trying his best to confuse the listening public.

My heart goes out to the families of this immigrant, and to the families of the young men who will now most likely lose their liberty and the opportunity for a bright future.

All in the name of hatred.

Let us not forget we are a nation of immigrants. Mexicans, Canadians, Filipinos, Indians, British, Chinese or Egyptian. All of us are brothers and need to embrace our extended family.