Ninth Circuit Set To Hear CSPA Class Action Lawsuit on July 15

The Ninth Circuit is set to hear oral arguments in the nation-wide class action lawsuit regarding Section 203 (h)(3) of the Child Status Protection Act  (CSPA) on July 15.


Often, children would age-out of immigrant petitions filed for them by their U.S. citizen or legal permanent resident parents at the age of 21 due to administrative delays and backlogs. The Child Status Protection Act was signed into law to prevent this from turning into pro-longed family separation. The provision under contention is Section 203 (h)(3) of the CSPA, which affects the aged-out derivative beneficiaries of family and employment visa petitions. The section states that even those adult children who age-out after a complex mathematical calculation get to retain their original date of filing and apply in the appropriate category. In this way, there is no additional wait for the aged-out derivative and the applicant can join her or his family.

However, USCIS holds that Section 203 (h)(3) affects only those whose petitions were filed initially in the F-2 category. In Matter of Wang, the BIA agreed with USCIS that the statute was ambiguous and allowed USCIS to continue with its own interpretation of the law. You can read my opinion about this dodgy issue here.

Reeves and Associates, along with Carl Shusterman, have been working on this issue for quite some time and Reeves filed the class action lawsuit. It is called Costelo v. Chertoff and you can get more information here.

I met Attorney Carl Shusterman for the first time this weekend and thanked him for his decade long work regarding this  major immigration issue. He told me that he expects to win in the Ninth Circuit, and if he does not, he promised to take it up with the whole Ninth Circuit and the Supreme Court of the United States.

If we win at any stage, I’m looking at an end of removal proceedings and a green card. Almost immediately.

Thousands of undocumented immigrant youth who were aged out of their visa petitions would actually become eligible for a green-card immediately.

At least, this is one battle that I don’t need to fight on my own.

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Report Back From AILA On Secure Communities and the New Prosecutorial Discretion Memo

2_12_11 Immigrant Protest Against Secure Commu...

Image by openmediaboston via Flickr

At the Annual American Immigration Lawyers Association (AILA) Conference in San Diego, I had the great pleasure of attending some Open Sessions with officials from Immigration and Customs Enforcement, the Department of State, Department of Homeland Security, and Customs and Border Patrol.

Earlier, David Leopard, the outgoing AILA President, had given Assistant ICE Director John Morton a “Stop Secure Shattering Communities” button that Marty Rosenbluth and a few volunteers had passed around the room for the keynote session. Later, I also tried to hand some of the same buttons to other ICE officials at the open sessions, but they would not take it.

Secure Communities” is a program that allows state and local police to check the fingerprints of an individual they are booking into a jail against Department of Homeland Security (DHS) immigration databases. If there is a “hit” in an immigration database, Immigration and Customs Enforcement (ICE) is automatically notified, even if the person has not been convicted of a crime. In this context, a crime usually means driving without a license or “loitering.” ICE then uses the numbers of people ensnared through the flawed program to show how it has increased the deportation of “criminal aliens.”

The agency should revert to using existing programs that place post-conviction immigration detainers on serious offenders. It would decrease the burden on our backlogged immigration courts, keep most hard-working immigrant families together while allocating limited resources more efficiently to target those who commit real crimes. Instead, ICE announced some cosmetic changes to the program on Friday, heavily centered around making sure that victims of domestic violence don’t end up in removal proceedings. The new directive also creates an advisory commission to study the effects of S-Communities.

Immigration advocates bemoaned the news and I received angry text messages when AILA was quoted as welcoming the new changes in the Washington Post and New York Times. That’s good — it takes attention away from the Prosecutorial Discretion (PD) Memo that Assistant ICE Director John Morton released on the same day, which can be used to get deferred action for long-time residents, veterans and DREAM Act eligible students who end up in removal proceedings. Peter Vincent, the Principle Legal Advisor at ICE, asked lawyers to send requests for deferred action to the Office of the Chief Counsel. While people are free to gripe about the litany of immigration problems that remain unresolved, I would seriously suggest that everyone in deportation and with clients in deportation put the PD memo to good use.

Of course, the USCIS and CBP do not have any defined priorities so those who should be eligible for prosecutorial discretion will continue to be placed in removal. Advocates have to make the case for stopping deportation each time, which is a lot of work but most non-profits working on such campaigns are getting rewarded with foundation money for it. So it should not be so difficult or miraculous to stop deportations if they are done right.

Coming back to Secure Communities, ICE officials were pressed to show the legal basis for why local jurisdictions could not opt-out of the federal program. After all, if Secure Communities is a regulatory program imposed upon local and state jurisdictions, then it is constitutionally suspect. ICE Director John Morton had stated earlier that there is a “fundamental misconception about Secure Communities is that somehow the program involves an agreement by the state for the exercise of federal immigration authority.” Vincent also argued that the program does not even require local cooperation but upon the fingerprinting of a person in custody, the data is shared between two federal branches of government — the FBI and DHS. He also declared that local jurisdictions can choose to opt out of knowing what the linked FBI-DHS database says about the person held in custody, which is probably not advisable.

I suppose San Francisco has the right idea on how to get around S-Comm: release the undocumented immigrants who have only committed petty offenses. Forget about passing laws — that’s how it should be done.

An Open Letter to the “Papers Please” Alabama Confederacy of Hate

Dear Alabama,
I am a person of few words so I’m going to keep this short.

I love it when bigotry and hatred come out in the open, parading as just laws upheld and sanctioned by our institutions and structures, because then, everyone can see that we don’t live in a “post-racial” society and an America that welcomes immigrants. And then, everyone fighting for racial justice and immigrant rights can hone in on you as a convenient target for structural and institutional oppression.

I have never been to Alabama. I was never going to come down there. It’s not like immigrants really want to live in your confederacy of hatred and racism. But I may change my mind now.

You’ve made it a criminal offense to provide transport or housing to any allegedly undocumented immigrant. I thank you kindly for this move because we are sure to send a large contingent of undocumented youth organizers to your state who shut down the streets and your Capitol with our message of courage and resistance.

And when your racist cops rise their batons to hit our friends and family members, when you call Immigration and Customs Enforcement to detain and deport young people of color Americans who were raised in this country and done nothing wrong, the world will be watching. And we will win.

Finally, you are getting sued pretty soon since your new law is unconstitutional, so I hope you have several millions for litigation. But really, it’s the non-legal forces of resistance that you should worry about more.

Thank you for the incredible gift,
A queer brown allegedly “illegal” immigrant

P.S. All the best building your tornado-devastated state without the help of cheap undocumented labor

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AILA Issues Warning For Immigrant Rights Activists

The American Immigration Lawyers Association issued a warning to immigrant rights activists asking them to behave at their upcoming annual conference in San Diego:

There is no question that activism in the communities also is helping to move the ball forward.  Those who are so engaged have our respect, admiration and at times involvement. That being said, a professional gathering is not a setting for such forms of activism.  We ask that people who are attending the conference behave as the professionals and aspiring professionals that they are, and treat speakers with at least minimal courtesy.  Disruptions at a conference of professionals can hurt the dialog role that AILA plays.  And we all need to play the different roles we have to make the difference that needs to be made.

Some immigrant rights activists had earlier expressed concerns about AILA’s keynote speaker line-up of ICE Assistant Director John Morton and USCIS Director Alejandro Mayorkas.

I’m not even going to get into how the word “professional” is used to disparage lived experiences and police behavior, especially in this context. I’m also not sure about the need for such strong words especially since no one I know was planning to do anything besides have a good time.

Now the conference sounds like an open challenge to make a point. Maybe it does get better after all.

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“How to Stop Your Deportation”

This “How to Stop Deportation” guide released by Asian Law Caucus, Educators for Fair Consideration, and The New Immigrant Youth Alliance spread like wildfire yesterday to the point that I was accused of “vetting it” everywhere. I ended up having it emailed to me more than twice through South Asian networks, which pleases me quite a bit.

It’s the most complete guide on battling a deportation through advocacy that I’ve personally seen, but I’m probably also biased in my assessment. I think the crux of the guide is to exhaust all legal remedies before going public with your case, which makes a lot of sense. However, I think there’s a lot that could have been added to the legal section with regards to how removal proceedings work and more specific delaying tactics to employ beyond just a listing of legal avenues that one has during deportation. This is obviously not supposed to be an exhaustive guide and simply a starting point.

Another useful toolkit recently released by Duane Morris LLP, Maggio + Kattar and Penn State gives more information about private bills and deferred action.

I hope that together, both manuals can help demystify at least the post removal order part of deportation proceedings.

Update: The American Immigration Lawyers Association just announced “AILA Dream Defenders” unit on the heels of the guide but provided no further details. It looks like providing assistance to undocumented youth who qualify for the DREAM Act is quite popular and increasingly institutionalized.

I wish organizations with millions of dollars would rather focus their energy and interest in helping people who actually need pro-bono assistance. How about working with immigration courts to provide pro-bono assistance to a majority of people who may have criminal drug convictions but still don’t have any sort of legal representation?

Or is that just not popular and not backed with foundation money?

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