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    Tuesday
    Jul172012

    The Lawyers Debrief: Participation in Social Media Contest to Promote Bar Association Conference

    This post was originally posted on SocialFish under the title "Are You Trying Social Media Contests to Promote Your Conference? [Case Study: AILA]

    The Lawyers Debrief:  Participation in Social Media Contest to Promote Bar Association Conference

    By Lindsay A. Curcio, Esq. and Camille Mackler, Esq.

    Lindsay Curcio is an attorney who has been practicing immigration law since 1990. In addition to her practice, Lindsay is an adjunct professor of immigration law at New York Law School. Camille Mackler has been practicing immigration law since graduating from New York Law School in 2006.  She is also active with advocacy efforts and is the founder of the photo blog Immigration in Pictures ™. Both Lindsay and Camille are active members of the American Immigration Lawyer’s Association (AILA).

    Each year, AILA hosts many conferences and seminars to provide its members with important information about developments in immigration law.  The most important and anticipated event is the Annual Conference held in June of each year.  AILA has approximately 11,000 members in the U.S. and internationally.  Members include attorneys and professors. A law student membership program exists tooConferences are always well-attended and include a multitude of panels on all topics in immigration law and practice development, pro bono initiatives, networking opportunities and social events.   The conference is held in a different U.S. or Canadian city each year.

    For its 2012 Annual Conference, AILA asked its members to help with marketing efforts.  The build-up for AC180, a social media contest for AILA members, began in fall 2011.  AILA told members about AC180 through postings its website:  www.aila.org.  The contest was called AC180 because it began 180 days before the start of the annual conference. Any member could enter the contest. If selected, AILA would waive the conference registration fee.  Contestants had the opportunity to compete through monthly social media tasks for other prizes related to the conference as well.

    Lindsay entered the competition because she wanted to develop her social media skills and have some fun.  Camille has been using social media as a way to promote her practice and as part of her advocacy efforts since she went into practice for herself in November, 2010.

    To enter, AILA asked members to submit a social media “plan” and a video explaining our interest and experience with different sites.  This let AILA gauge social media literacy and learn more about entrants.

    Ultimately, AILA selected 11 social media ambassadors including us.  Ten entrants were attorneys and one was a law student.  Ages of social media ambassadors ranged from early 20s to early 60s.  All practice areas were represented including family and employment-based immigration, crimmigration, removal defense and federal court litigation.   Located in New York City, we were the east coast representatives. Other social media ambassadors came from Dallas, Buffalo, Chicago and San Diego.

    Loren Crippin, the New Media Associate at AILA notified all entrants in January.  The main requirement of the AC180 contest was that each entrant post some information about the upcoming conference at least once weekly.   Posts had to contain #AC180 or @AilaNational.  AC180 let us Tweet, post to Facebook, Google + or Pinterest, blog or otherwise promote the conference. We also were asked to complete the following tasks: write a blog post on what makes us passionate about immigration law and how our interests related to the conference, use social media to advocate for immigration reform, make a spoof video to promote AC180, and use social media to promote Nashville, the location of the 2012 conference.

    We were excited to be social media ambassadors for the annual conference. The experience was eye-opening in many different ways.  First, and most importantly, it was fun.  As lawyers, we seldom get to write short observations and inject commentary or opinions.  Rather, we are supposed to write lengthy, weighty briefs full of impressive legal arguments.  When we write blog posts, they are expected to have scholarly tones while we seriously dissect and analyze important legal issues.  When reaching out to a social media readership, however, we were forced to keep it light, concise and interesting yet entertaining or informative. It allowed us to play with our message, while conveying important information.    Using mediums other than words, such as video or memes, also encouraged us to use our creative sides.

    It was also great to have the ability to reach out to large groups of people, all of whom have an interest in immigration issues, and convey our message.  As immigration attorneys we have a unique perspective on how U.S. immigration laws should work, do work, and their ultimate impact.  Participating in AC180 encouraged us to communicate our perspective in ways that reached the public and not just colleagues

    Finally, it allowed us to meet people and expand our networks far beyond our geographical confines.  Through AC180, we became friends with other attorneys  throughout the United States.   In immigration law, networking is key.  Many of us are solo or small law firm practitioners, so the ability to bounce ideas off colleagues, discuss a difficult case, or exchange law practice management tips is crucial. Meeting not only our fellow participants, but other lawyers, students, and media representatives, through conversations started over social media makes us more efficient and informed.

    Camille Mackler and Lindsay Curcio both practice law in New York City.  They can be found on Twitter at @cmackler and @lindsayvisa.

    Wednesday
    Jun202012

    Text of DHS Memo on Deferred Action for DREAMers

    By this memorandum, I am setting forth how, in the exercise of  our prosecutorial discretion, the  Department of Homeland Security (DHS) should enforce the Na t ion' s  immigration laws against certain young people who were brought to this country as children and know only this country as home.  As a general matter, these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of  them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities. 

     

    The following criteria should be satisfied before an individual is considered for an exercise of  prosecutorial discretion pursuant to this memorandum: 
    • came to the United States under the age of  sixteen; 
    • has continuously resided in the United States for a least five years preceding the date of  this memorandum and is present in the United States on the date ofthis memorandum; 
    • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of  the Coast Guard or Armed Forces of the  United States; 
    • has not been convicted of  a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or  otherwise poses a threat to national security or public safety; and 
    • is not above the age of  thirty. 
    Our Nation' s immigration laws must be enforced in a strong and sensible manner.  They are not designed to be blindly enforced without consideration given to the individual circumstances of  each case.  Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of  these young people have already contributed to our country in significant ways.  Prosecutorial discretion, which is used in so many other areas, is especially justified here. 

     

    As part of  this exercise of  prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of  removal.  No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis.  DHS cannot provide any assurance that relief will be granted in all cases. 

     

    1.  With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS): 
    • With respect to individuals who meet the above criteria, ICE and CBP should  immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.  
    • USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of  notices to appear. 
    2.  With respect to individuals who are in removal proceedings but not yet subject to a final order of  removal, and who meet the above criteria: 
    • ICE should exercise prosecutorial discretion, on an individual basis, for individuals who  meet the above criteria by deferring action for a period of  two years, subject to renewal,  in order to prevent low priority individuals from being removed from the United States. 
    • ICE is instructed to use its Office of  the Public Advocate to permit individuals who  believe they meet the above criteria to identify themselves through a clear and efficient process. 
    • ICE is directed to begin implementing this process within 60 days of  the date of  this memorandum. 
    • ICE is also instructed to immediately begin the process of  deferring action against  individuals who meet the above criteria whose cases have already been identified through the ongoing review of  pending cases before the Executive Office for Immigration Review. 
    3.  With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check: 
    • USCIS should establish a clear and efficient process for exercising prosecutorial  discretion, on an individual basis, by deferring action against individuals who meet the 2 above criteria and are at least 15  years old, for a period oftwo years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. 
    • The USCIS process shall also be available to individuals subject to a final order of   removal regardless of  their age. 
    • US CIS is directed to begin implementing this process within 60 days ofthe date ofthis  memorandum.  
    For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of  deferred action. This memorandum confers no substantive right, immigration status or pathway to  citizenship.  Only the Congress, acting through its legislative authority, can confer these rights.  I t  remains for  the executive branch, however, to set forth policy for the exercise of discretion within the framework of  the existing law.  I have done so here. 

     

    Find the original memo here.

    Monday
    May072012

    Congress Must Reauthorize the Violence Against Women Act Without Changes

    Reauthorization of the Violence Against Women Act (VAWA) is facing its next hurdle Tuesday May 8, 2012, when the House version of the bill will be debated by the Judiciary Committee.  The latest version of the bill (H.R. 4970) includes some frightening changes that would render victims of abuse far more vulnerable then they already are.  As the American Immigration Lawyers' Assocation (AILA) points out, "H.R. 4970 denies victims protection and even helps perpetrate the very abuse from which they are seeking to escape."

    Key changes to the existing law include:

    • Requiring that the abuser be notified as part of the application for VAWA benefits. This stripping away of confidentiality protections the current law affords creates an unconscionable dilemma for the victims VAWA is supposed to protect.  Many abuse victims would likely not come forward to report the abuse out of fear of retribution. Moreover, since a victim's lack of immigration status is often used by abusers to create mental anguish and influence, the notification requirements of H. R. 4970 would effectively help abusers continue to exert control over their victims. 
    • Requiring victims to establish their eligiblty by "clear and convicing" evidence.  This is a higher burden then relatives would be required to meet were they to file a petition together.  However, victims of abuse often have access to less evidence since restricting access to even basic identity documents is often part of a controling personality's MO.  VAWA beneficiaries would be required to meet more requirements, and provide more evidence, despite the physical and mental trauma they have endured.
    • Making punishment for providing inacurate information far more drastic, regardless of the applicant's knowledge or intent.  Victims of abuse are often too traumatized to accurately recall information and events, or may have only partial knowledge of certain facts due to the controlling nature of an abusive relationship.  However, under the proposed House bill, if there was any evidence of a material misrepresentation, the victim would be expiditiously  removed from the United States, regardless of their level of knowledge or intent.  Further, they would be forever barred from obtaining any other immigration benefit, woudl be ineligible for any waivers of such bars, and would risk being turned over to the FBI for criminal prosecution.  
    • Drastically changing the U visa by requiring victims of crime to report it within sixty (60) days, require that an active investigation be underway or prosecution be initiated, require the victim to be able to provide identifying information regarding her abuser, and limit U visa status to four years with no possiblity of applying for a green card at the end.  Sixty days is a very short time when a person is processing a traumatic event.  This is even more so when the victim is a child or repeate victim of abuse.  Adding these requirements to U visa applications would dissuade victims of crime from reporting them to local authorities, allowing probable abusers to remain free.

    These changes, proposed unde the guise of reducing fraud in the immigration system, will instead create lasting harm to some of our country's most vulnerable population while simulataneously destroying decades of carefully-crafted bipartisan efforts.

    VAWA has always been part of my practice, first as a law student and then as an attorney.  In law school I interned for several non-for-profit organizations that assisted victims of domestic violence.  At my first law firm I represented mainly women from West Africa fleeing gender-based violence. Today, I continue to represent these women, and to file VAWA and U visa applications for clients of my solo practice. I could give you countless examples of how infuriating, heartbreaking, and yet rewarding handling these types of cases can be.  For the purposes of this blog, I will stick to one that is always on my mind.

    My client, let's call her Jane, fled an abusive marriage in her country.  Because the marriage had been arranged between the families, Jane was banished from ever returning to her home.  Coming from a country where women have limited rights to education or employment, let alone renting or owning a home, this simple act was devastating to Jane.  In the United States, she met a man, we'll call him John, who was a permanent resident of the United States.  Coming from a culture where her survival depended on being a wife, Jane agreed quickly to marry John, who was looking for someone to give him children and clean his home.  Within weeks of marrying, John became physically abusive.  He would stay out late, usually coming home drunk, if he came home at all.  He would force sexual relations whenever he was in the mood, regardless of whether Jane was agreeable, in good health, or even, for that matter, awake.  He forbade her from working, controlled the money he gave her but would beat her if she had not provided enough for food or the house, and generally terrorized her life.  When she became pregnant, Jane thought John would offer her a period of tranqility.  Jane thought wrong.

    Over the years, the police was called a handful of times, but nothing lasting ever came of it.  Because they lived in a tight knit community of people mostly from the same culture, most neighbors would not "rat out" John, or would view Jane and John's problems as a private business, something not to be meddled in. Isolated, unable to speak the language, forbidden by John to seek out the help of an attorney to address her immigration status, Jane withdrew.

    Finally, John brought Jane to our offices to apply for immigration benefits.  They came together the first time, with their infant daughter, and nothing seemed amiss.  To prepare for an appointment with immigration authorities, however, Jane came alone.  I had not been present when she first signed on with our office, but I was the one Jane met with this second time.  As it happened, I also spoke Jane's native language. As I began what I thought was a routine prep, I could not understand why Jane seemed reticent, almost challenging me to get even a simple answer out of her.  When I pushed her about obtaining a document from her husband, Jane shut down.  I was at a loss.  Despite spending years working with domestic violence victims, I did not immediately recognize the signs.  After spending another hour with Jane, however, I was able to get her to trust me, and then, in our shared language, the story poured out.  

    Over the following months, I worked closely with Jane and her child.  Because I spoke her language, I was able to break a barrier with her and she learned to trust me.  I encouraged her to seek safety for herself, I tried to show her how in the United States women have rights, and a voice.  I used myself as an example, telling her there was no reason she could not become an attorney too, or anything else she ever chose to be.  I told her she must be this brave, if for no other reason because she was all her daughter had.  Finally, one day, I got a call.  John had begun screaming and threatening Jane and the stress she had been living under for so many years finally reached a limit.  Jane's blood pressure rose so high she lost consciousness and neighbors, alarmed, called 911.  When she arrived at the hospital, an astute nurse apparently realized what must be going on and prevented John from entering Jane's hospital room.  Remembering what I had told her, Jane took a chance and confided in her doctors.  From there on out, social services became involved.  Eventually, Jane was released from the hospital and, with her daughter, moved to a shelter.  

    The drama didn't all end right away, but with time Jane did heal.  She went to school and now lives alone with her daughter.  She is still studying, trying to get the best job she can (though not, she admitted, as an attorney, which is fine by me).

    But when I think about Jane, who I am still in touch with today, I can't help but remember those first few months.  Eventually, it was the promise we had laws that could keep her safe that convinced Jane to seek help. If H.R. 4970 passes committee and becomes law, I can't help but wonder how many Janes will be left out there, afraid to tell their story, and being justified in thinking that no one might be able to help them even if they do.

    To learn more about VAWA's existing provisions and protections, read the Immigration Policy Center's fact sheet.  AILA members can learn more about VAWA petitions, as well as U visas, at this year's Annual Conference in Nashville from June 13 - 16, 2012.

     

    Tuesday
    May012012

    Prosecutorial Discretion and Obama's Insincerity

    Photo Credit: Immigration In Pictures (TM)Recent, preliminary numbers regarding the review of almost 300,000 immigration court cases seem to support critics of the Obama administration, who claim that the policy is too little too late. As a practicing immigration attorney it has been discouraging, to say the least, to see how what began as a promising, rational policy announcement has so derailed and transformed itself into a thinly-veiled, desperate election-year ploy.  

    On August 11, 2011, the Administration announced that Department of Homeland Security (DHS) attorneys would begin reviewing cases currently pending before the nation's Immigration Courts in an effort to identify "low priority" cases.  The idea, then, was to close or otherwise not pursue such cases so as to focus limited immigration enforcement resources on cases that present a threat to national security or had other, egregious immigration violations.  

    One of the most troublesome aspects of the review is that, so far, DHS attorneys have only reviewed cases where the person was represented by an attorney. Similarly, while DHS attorneys in most (but not all) jurisdictions have stated that requests for an exercise of prosecutorial discretion could be made in writing to the local office, a well-prepared request documenting the positive equities and arguing that the relevant memos should apply requires hiring a private attorney to prepare it.  However, in many cases, an alien who has hired an attorney is most likely applying and fighting for some type of relief from removal.  Whether attorneys uniformly only take on clients who have viable applications for relief is an ethical debate for another day, but the fact remains that most aliens with private attorneys are more likely than not, in my opinion, to decline any offer to administratively close their case in favor of continuing to fight to obtain some type of status.  This is probably doubly so for aliens represented by non-for-profits, who's over-burdened case loads require them to only take the strongest cases possible so as to effectively utilize their resources.

    The people who could truly benefit from an offer of administrative closure or termination - those who have no current hope for relief from removal and would benefit from more time in the United States - have been effectively shut out of this so-called generous offer. Even if they have the ability to put together a well documented and effectively argued request for Prosecutorial Discretion, DHS Attorney field offices have indicated that such requests would only be entertained if submitted by attorneys.

    Second, the offer of a favorable exercise of prosecutorial discretion is not necessarily that appealing, or helpful, to many who would effectively find themselves in immigration limbo while not being able to apply for work authorization to support themselves or their families.  As Greg Chen, Director of advocacy for the American Immigration Lawyer's Assocation, recently noted, "You can't expect people to not be able to feed their families and have some source of income and still survive."  In the original announcement of the Court docket reviews, the Obama administration hinted that persons who accepted an offer of prosecutorial discretion would be able to appy for work authorization.  However, in the face of intense Republican disapproval, the administration backtracked and has since stated that administratively closed cases will not become work permit eligible as a result.

    Finally, the administration's use of the term "prosecutorial discretion" has itself been extremely limited. Prosecutorial Discretion has always referred to the discretion prosecutors and other law enforcement agencies have in the method in which they enforce the law.  The best example of an exercise of prosecutorial discretion is in the case of Dominique Strauss-Kahn, where prosecutors decided not tu pursue criminal charges against him despite the fact that a crime could have concievably occurred. Prosecutorial discretion, however, is not limited to deciding which cases to actively pursue.  Prosecutors or, in the case of immigration, Immigration and Customs Enforcement (ICE), can choose who to initiate deportation proceedings against, what charges to bring against each Respondent, and if or how they will oppose applications for relief.  Five years ago in the New York Immigration Court, it was far more common for a DHS attorney to agree to a certain form of relief at the beginning of a hearing.  Today, it feels like my clients are grilled on everything starting with when they state their name for the record.

    If you find these arguments unpersuasive, however, let me illustrate in numbers the impact this so called prosecutorial disecretion policy has had on the total immigration court case load.  As of March 28, 2012, according to the Transactional Records Access Clearinghouse (TRAC), 2,609 cases had been closed pursuant to an exercise of prosecutorial discretion.  Of those, 207 cases were in the New York City Court (approximately ten percent).  Focusing on the main Immigration Court in New York City (the one at 26 Federal Plaza), these cases are spread out over 29 judges.  On average, seven judges hold Master Calendar hearings on any given week day Tuesday-Friday, and another four are out due to Department of Justice work schedules, which build in a day off every other week. Further, let's assume that each judge with a master calendar hearing in the morning has two individual hearings scheduled in the afternoon, for a total of fourteen individual hearings between them that day, and that all other judges on duty that day have four individual hearings scheduled (two in the morning and two in the afternoon) for a total of seventy-two cases.  This means that there are eighty-six individual (or case-dispositive, trial-type) hearings held on average each day in the New York City immigration court.

    In other words, the number of cases closed pursuant to the new policy of prosecutorial discretion amounts to less than three days worth of cases in New York City alone.  When you consider that many judges have such heavy case loads that they are currently scheduling individual hearings in 2015, you understand how little of a committment the Obama administration has made towards relieving the immense pressure placed on our immigration courts, not to mention on our immigrant communities. And these numbers (unscientifically obtained, but based on years of practicing in New York's immigration courts), do not account for the fact that many judges usually schedule six to eight individual hearings a day, nor do they consider the number of cases heard at the Varick Street Court, which has three additional judges.

    If the Obama administration is truly committed to helping immigrants in our country or, at a minimum, relieving the bloated dockets of our immigration courts, they will have to make a more sincere effort than what they have already shown.

    Note to Immigration Attorneys and Members of the American Immigration Lawyer's Association: Several panels at this year's annual conference (June 13-16, 2012 in Nashville, TN) will highlight strategies to pursue under the prosecutorial discretion policy directives.

    Monday
    Apr022012

    False Promise: The Story of a How a Man Came to Seek Asylum and Became a Criminal Instead

    Delaney Hall, Newark, NJ (photo credit: Camille Mackler)An article in today's LA Times discussed the different treatment of asylum-seekers who apply for asylum immediately upon arriving at a point of entry in the US versus those who apply after having somehow made it into the country. Meanwhile, elsewhere in the immigration universe, Immigration and Customs Enforcement (ICE) proudly announced the arrest of 3,100 criminal aliens through its new, focused enforcement priorities (though some, such as Crystal Williams, the Executive Director of the American Immigration Lawyer's Association (AILA) questioned the accuracy of that announcement). Recently, these two stories intersected for me in a sad reminder of our current immigration realities.

    Late last fall I was retained to represent a client detained at Delaney Hall in New Jersey. Eric* was from a country that has seen a recent rise in Islamic fundamentalism. As a recently converted yet devout Christian, Eric began fearing for his safety about a year ago, when violence against Christians began seeing a significant increase. He sought to acquire a visa to Europe, where several of his family members lived. However, his application was denied. Desperate to leave his home country, he hired a broker to help him apply for a US visa. The broker included all of Eric's biographic information on the visa application but changed some details about his job. Eric knew this was wrong, but told himself he could explain this to authorities once he arrived in America, which he thought held the promise of safety and freedom.

    When Eric arrived at JFK International Airport in New York City, he was taken into a room for secondary inspection by Customs and Border Protection (CBP) agents. Scared and confused by the harsh questions and agressive tactics, he stammered out his answers and barely got out his purpose for traveling to the US. Eric was allowed into the US, but not to the safety and freedom he had hoped for. Instead, he was brought to a Federal holding facility in Brooklyn, New York and prosecuted for visa fraud. His State-appointed attorney advised him to plead guilty to the Federal charge, indicating that it would not be a statutory bar to asylum, or face a prolonged detention while waiting for trial. So Eric plead guilty, was sentenced to three months confinement, and upon his release was transferred to the custody of ICE.

    In removal proceedings before a an Immigration Judge, Eric was charged as being removable from the United States based in part on his criminal record. Because he was now a criminal alien, ICE also refused his parole request, meaning Eric had to stay in detention while his case played out before the Immigration Court. ICE did keep him in Delaney Hall, however, one of its newer, "reformed" detention facilities ostensibly meant for aliens that typically do not pose a threat to society. Before the Immigration Judge, Eric was finally able to ask for asylum.

    That request for asylum was denied last month - not because Eric did not meet his burden of proving he had a credible fear of persecution based on his religious beliefs, but because he had a criminal record. For this reason, the Immigration Judge did not believe Eric was entitled to a favorable exercise of her discretion. The Judge was also unpersuaded by my argument that the criminal conviction must be looked at in its context: that the lie on Eric's visa application was made because of the very fear that led him to flee to the United States and ask for asylum in the first place.

    Two weeks ago, I sat in a small visitation room at Delaney Hall, trying to persuade Eric to appeal the judge's decision. With tears in his eyes, he looked up at me and said: "I'd never been in handcuffs before I came to this country." He came here looking for help and for safety, and instead was treated like a criminal.

    I do not disagree with the Obama Administration's decision to deport those who truly cause harm to our society and our country. I do not think many immigrant advocates would. However, the implementation of these policies, along with the pervasive "culture of no" that seems to rule the ICE field offices, if not the headquarters in Washington, DC, have all too often led to the baby being thrown out with the bathwater and then some. Eric's case is the perfect example. He is not a danger to our society. He had never committed a crime before he lied on his visa application, and his crime was one many of us would probably have also perpetrated if faced with the same situation. Eric could be an asset to our country if given the chance. Instead, he is entering his ninth month in detention. He has yet to see any of the United States.

    At the end of our conversation two weeks ago, I asked Eric for his decision regarding his appeal. He told me he has had a lot of time to read in detention, and he found a quote that pleased him recently: "A winner never quits" he told me. And so, to be continued...

    *Name changed to protect the identity of the person.