Vintage

IMMIGRATION UPDATE By H. FRED FORD, Sr., ATTORNEY

In my article which appeared in this magazine for the April-June 2008 edition, I indicated that in my 41 years practicing immigration law, that I have observed many trends both favorable and unfavorable to aliens and their due process rights granted by the Constitution of the United States and the Civil Rights Act. I wrote of the disturbing trend following the implementation of the law in Davidson County known as Section 287 (g) of the Immigration and Naturalization Act.

In the last few months there have been many important developments some of which deal with the humanitarian civil rights abuses against detainees and those who have filed applications and petitions to the US Citizenship and Immigration Service.

1. FBI NAME CHECK CHANGES

As many of you are aware thousands of otherwise eligible applicants for adjustment of status to that of lawful permanent resident status and those who have been in removal or deportation proceedings have waited as long as three years for the FBI name check to be completed. Immigration lawyers across the county have filed lawsuits and finally there is some positive movement in the “FBI Name Check Backlog”.

On April 2, the USCIS and the FBI reached an agreement to devote more resources in an attempt to get the FBI name check process under control.

Currently, over 300,000 persons with pending applications for immigration benefits are forced to wait months or even years for approvals solely because their FBI name checks have yet to be processed.

My experience has been that the only way to force the FBI to complete a name check which has been pending for years is to sue the Bureau in Federal Court. As a result of the lawsuits, the USCIS published a memorandum entitled “Revised National Security Adjudication and Reporting Requirements” which promised only a partial fix to the name check problem. Now the USCIS and the FBI have established a timetable, which would eliminate the name check backlog in stages. According to the timetable, by May 2008, the FBI will process all name checks which have been pending for more than three years; by July 2008 (more than two years); by November 2008 (more than one year); by February 2009 (more than 180 days); and by June 2009, 98% of all FBI name checks will allegedly be processed in 30 days and the remaining 2% will be processed in 90 days.

Please let our office know whether the two agencies adhere to their published timetables.

2. PROTECTIONS FOR DETAINED SALVADORANS AFTER A WORKSITE RAID

Many of you are aware of the recent raids against large employers including Swift & Company and the controversy with persons detained in immigration worksite raids and two provisions of a permanent injunction that apply nationwide to na­tionals of El Salvador detained by immigration authorities. Advocates in California and Massachusetts have successfully used these provisions to prevent the transfer of Salvadorans ap­prehended in worksite raids to distant detention centers, far away from their family and available low-cost or free legal services. The Judges ruling in Orantes-Hernandez v. Gonzalez, in Federal Court requires (1) immigration authorities to provide a phone number where relatives and counsel may obtain information about the location of detainees, and (2) restrict the transfer of detained class members to locations outside of the district of appre­hension. ICE has designated phone numbers at each ICE field office for the purpose of allowing relatives and counsel to call and obtain information regarding detained class members. The telephone numbers for the local ICE offices can be obtained at http://www.ice.gov/pi/sanpedro.htm .

3. SAFE HARBOR PROCEDURES FOR EMPLOYERS WHO RECEIVE A NO-MATCH LETTER

On May 2, 2008 Senator Edward Kennedy wrote an extensive letter to U.S. Immigration and Customs Enforcement Agency in Washington, D.C. showing his disapproval of the actions of ICE in suggesting a final rule concerning their No-Match Rule indicating that the proposed rule was flawed and would cause irreparable harm to workers and employers. It remains to be seen whether ICE will conform to its regulations and its humanitarian concerns.

4. DETENTION, BOND AND CUSTODY ALTERNATIVES

As many of you have heard and some of you have experienced. ICE officers are citing to new guidance, which instructs them not to release any individual without a significant bond amount and bars them from releasing individuals under Operation Jump Start unless there are extremely extenuating circumstances. In years past ICE would set a bond of $500 to $1,500. Now for those who are simple overstays, ICE is setting bond in excess of $10,000. The officers in charge of ICE in Washington, D.C. have indicated that the ICE officers won’t re-determine the bond by an initial case officer, but rather wants the Immigration Judge to re-determine the bonds. This has caused this office to file Motions for Bond Reduction and take up additional time and resources of the clients and the government. We will keep you informed as to any other changes.

Written By H. FRED FORD, Sr., ATTORNEY