Immigration Law Today sept|oct.08 voL. 27|no. 5

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DePaRTMenTS ConTenTS 6 President’s Page A Call to Civic Duty Based on Informed Decision 22 8 Pro bono Inside the Forensic Public Justice Foundation: Saving Document Immigrant Detainees Through Litigation Laboratory Credible Evidence 36 Practice Management or Unreliable Due Billing Strategies for Immigration Lawyers Process Violations? by Jason Dzubow 42 Reader’s Corner Cruisin’ Africa: A Semester on Safari and Two Years in Mali Mobilize now! 12 46 State Spotlight Local Law Enforcement and How Your Vote Immigration: Community Conflict Impacts the Future in the Making of Immigration by L. Batya Schwartz Ehrens 50 new Members Division Screening the Visas of Love: A Microscopic View of the Couple 56 Status Checks

aLSo: 10 Pro bono Profile 28 Meet Anthony Pelino Immigration Law & the 45 Chavez World Transgender Client by Nick Chavez A Practical Guide and Introduction 49 brown around Town by Victoria Neilson by Jan Brown 49 advertisers Index noT abL e QuoT e 55 Practice Profile The humanitarian costs of these raids are immeasurable and unacceptable in a civilized society. I call upon the Department of Homeland Security and President Bush to reconsider the Meet Neil Dornbaum ‘‘ ’’ use of these worksite enforcement raids, and without the implementation of necessary human rights protections, to please abandon them. We ask them and the country, including the presidential candidates, to again turn their energies for building support for a comprehensive overhaul of our broken immigration system. McArdle: Label FPO — Bishop John Wester, chairman of the U.S. Conference of Catholic Bishops Committee on Migration. (Source: AFP, September 11, 2008).

On the cOver: natulrich / 123rf SEPTEMBER/OCTOBER 2008 3 Managing Editor Tatia L. Gordon-Troy President Charles H. Kuck AILA’s Immigration Law Today (ISSN: 1532-1398) is published six times a year by the American Assistant Editor Kristine Tungol Cabagnot President-Elect Bernard P. Wolfsdorf Immigration Lawyers Association, 1331 G Street, Editor-in-Chief Crystal Williams 1st Vice President David W. Leopold NW, Suite 300, Washington, DC 20005, (202) 507-7600. Copyright © 2008 AILA. All rights Contributors Dan Berger, Jan Brown, 2nd Vice President Eleanor Pelta Giselle Carson, Nick Chavez, Jason Dzubow, reserved. No part of this publication may be Charles Kuck, Kathleen Moccio, Victoria Nielson, Treasurer Laura Lichter reprinted or otherwise reproduced without the express permission of the publisher. “AILA” and Christopher Nugent, Rebecca Schapiro, L. Batya Secretary T. Douglas Stump Schwartz Ehrens, Allison Shields, Michael Wildes the AILA logo are registered trademarks of the Executive American Immigration Lawyers Association. Design & BonoTom Studio, Inc. Director Jeanne A. Butterfield Periodicals postage paid at Washington, D.C. Production www.bonotom.com POSTMASTER: Send address changes to Editorial Barbara Bower, Pittsburgh Contact Information Immigration Law Today , AILA, 1331 G Street, NW, Advisory Board Ted J. Chiappari, New York Reprint requests; editorial comments; letters to Neil Dornbaum, Newark, NJ the editor; proposals for submission of articles: Suite 300, Washington, DC 20005 Mark Ivener, Los Angeles [email protected] Subscription Information and Rates: Annual Steven Klapisch, New York Display advertising information: advertising@ subscription rate (six issues): $72. Single issue Jonathan Montag, San Diego aila.org or call (202) 507-7600 price: $16. Additional charge for delivery outside H. Sam Myers, Minneapolis continental United States. Call 1-800-982-2839 for Martha Schoonover, McLean Address changes: www.aila.org/myprofile details. A subscription to Immigration Law Today Steven Thal, Minnetonka, MN (AILA members); 1-800-982-2839 (nonmembers) is included with AILA membership. Matt Trevena, Austin Ordering AILA publications: www.ailapubs.org; 1-800-982-2839; or for general publications- related questions: [email protected] Disclaimer AILA’s Immigration Law Today features and departments do not necessarily represent the views of AILA, nor should they be regarded as legal advice from the association or the authors. AILA does not endorse any of the third-party products or services advertised in Immigration Law Today, nor does it verify claims stated therein.

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A Call to Civic Duty Based on Informed Decision

The day is fast approaching when Americans will be called upon to quires undocumented immigrants, who exercise one of their most important constitutional rights: the right to vote. are in good standing, to pay a fine, pay taxes, learn English, and go to the back This is a civic duty that no American citizen should take lightly, for the road of the line for the opportunity to become to that ballot box has been paved with much blood, suffering, and struggle. citizens” (see www.democrats.org/a/national/ From the War of Independence to the amendments that gave all men and american_community/immigration/). women of legal age and social status the right to vote comes this great op- The other independent candidates fall in all areas of the immigration spectrum. portunity to elect the leader of “the free world.” America’s Independent Party candidate, Alan Keyes, is anti-immigration and has Where We Stand pledged to deploy a minimum of 30,000 There is much at stake in this presidential While we know that troops to bolster security measures around election. Hot-button issues include the many of these the entire perimeter of the contiguous war in Iraq, this nation’s mortgage crisis, territory of the United States if elected and, of course, the need to fix a broken hot-button issues … president (see www.aipnews.com/talk/fo immigration system. As immigration law- rums/thread-view.asp?tid=125&posts=2). The yers and advocates, we should be at the will not be resolved Green Party candidate, Ralph Nader, op- forefront in ensuring that the candidates overnight, a path toward poses the exploitation of illegal workers do not lose sight of this issue. It is our and favors a guest worker program. How- obligation to not only push for immigra- affirmative resolution ever, he also believes that H-1B visas con- tion reforms that will continue to make tribute to the “brain drain” of developing America competitive in the 21st century, depends on who we elect countries as their highly skilled workers but also to vote for the person we believe to the White House. are lured by corporate America (see www. will make sound and informed decisions ontheissues.org/Celeb/Ralph_Nader_Immigra in dealing with this crisis. approach to immigration reform (see www. tion.htm). gop.com/pdf/PlatformFINAL_WithCover.pdf). Where the Candidates Stand How will he, as president, promote the Make It Count Both Senators John McCain (R-AZ) and type of immigration reform that is most There is no time like the present to ex- Barack Obama (D-IL) have made prom- beneficial to all? ercise our right to vote. While we know ises to place immigration as a top item Obama’s voting record in the Senate that many of these hot-button issues— in their agendas. However, given their closely parallels McCain’s voting record. especially the tangled web that is the prior voting patterns, neither candidate He has voted to strengthen border con- current immigration crisis—will not be has maintained a consistent commitment trols and supported building a fence to resolved overnight, a path toward affirma- to his position on immigration (see www. increase border security. Obama also tive resolution depends on who we elect ontheissues.org/default.htm). supported the comprehensive immi- to the White House. It is our obligation McCain cosponsored a bill in 2006 gration reform bill that included family and responsibility to make an informed that would have legalized millions of reunification, as well as a plan to meet decision when we approach that ballot immigrants, created a guest-worker pro- employers’ need for workers when U.S. box on November 4, 2008. Get out there gram, and strengthened border control. workers cannot be found to fill jobs. and vote! ILT The presidential candidate for the Repub- However, he has faced criticism for vot- lican Party believes that “border security is ing for five amendments designed to kill AILA President Charles H. Kuck serves essential to national security” and is eager the Senate’s bipartisan immigration re- as managing partner of Kuck Casablanca to reauthorize E-verify. McCain has also form deal. Overall, Obama is consistent LLC in Atlanta and is the editor-in-chief of tried to assuage his party’s concerns while with the Democratic Party’s immigration AILA’s Immigration Litigation Toolbox, attempting to continue his more humane platform in supporting a system that “re- 2nd Ed.

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pro bono kathleen a. moccio

Public Justice Foundation Saving Immigrant Detainees Through Litigation

Immigration attorneys are all too familiar with immigration a private facility in Colorado (Civil Action enforcement’s callous treatment of noncitizens. Increasingly, noncitizens No. 05-cv-00377-WDM-BNB), is a prime example. The facility’s “pods” were designed are rounded up and shipped to remote detention centers where they have to hold 20 to 30 detainees. Instead, they little or no access to counsel. The opaque nature of immigration detention housed 50. The facility did not provide has spawned a system in which the constitutional rights and well-being of laundry services, cleaning services, cleaning detainees are violated. supplies, or trash cans. Prisoners wore dirty uniforms. Vomit, bloody sputum, and feces The National Prison Project of the with leads to private litigators who have were smeared throughout the pods. American Civil Liberties Union (ACLU) the right mix of experience and resources. Moises was forced to sleep on a soiled has successfully pursued class action liti- Potential team members don’t necessarily mattress on the floor between two other gation on behalf of immigrant detainees. have prior relationships with PJ. detainees who were so sick they could not During the course of litigation over the According to Adele Kimmel, PJ man- get up for meals. Moises would bring food medical treatment provided to immigra- to them. Although healthy when admitted, tion detainees, ACLU discovered egre- Moises became ill within a few days of ad- gious civil rights violations that demanded Defendants’ own mission. The facility gave him Motrin, but individual relief. To address these wrongs, it was totally ineffective in treating the strep it turned to the Public Justice Foundation, records bespeak infection he had developed. Both Moises’s a national nonprofit formed to support the of conduct that legs became gangrenous and he went into work of Public Justice (PJ). cardiac and pulmonary arrest. Only then transcends negligence was he taken to the Denver Medical Cen- Public Access to Justice ter for treatment, where he was given a 2 PJ is a public-interest litigation firm that by miles. It bespeaks percent chance of survival. Moises’s leg was challenges governmental and individual of conduct that, if amputated below the knee and part of his wrongdoing and holds accountable those lung was removed. He remained in a coma who abuse power. To achieve its goals, true, should be taught for six weeks. PJ leverages resources by forming trial All the while, U.S. Immigration and “teams” with private litigators. Case du- to every law student Customs Enforcement (ICE) had Moises ties are divided along the following lines: as conduct for which shackled to his hospital bed. Shortly after private litigators take responsibility for all his medical condition became known, ICE day-to-day activities such as discovery, the moniker ‘cruel’ is deported the other Park County detain- experts, motions to compel, and costs. ees, many of whom were ill. Vindication PJ takes responsibility for legal research, inadequate. would come in 2007, when PJ obtained a briefs, and some oral arguments. $1.5 million settlement for Moises. Finding a private litigator to partner aging attorney and litigator, “Some civil Another PJ case involved ICE de- with can be challenging. Sometimes, pri- rights litigators who were initially unfa- tainee Francisco Castaneda, who sought vate attorneys lack the right experience, miliar with us have become very strong medical treatment for a penile lesion (see such as a combination of tort and civil supporters … giving significant pro bono Castaneda v. U.S., Case No. CV 07-07241 rights experience. At other times, firms donations to PJ.” DDP(JCx)). Several medical professionals are reluctant to commit to impact work— said he needed a prompt biopsy. Instead especially when the opponent is the federal Compelling Collaborations of the needed biopsy, Francisco received government with its unlimited resources. The collaborations are winning cases, im- ibuprofen, antihistamines, and extra boxer To overcome this hurdle, PJ established pacting the law, and bringing attention to shorts. His health continued to deterio- a nationwide cadre of “state coordina- the massive problems with immigration de- rate and the lesion worsened; it became tors” familiar with the jurisdiction and its tention. The case involving Moises Carran- extremely painful, and emitted a bloody private bar. The coordinators provide PJ za-Reyes’s detention in 2003 at Park County, discharge and odor. Still, the biopsy was

8 Immigration Law Today SEPTEMBER/OCTOBER 2008 refused on the basis that it was an “elective” tion against cruel and unusual punishment Judge Dean D. Pregerson stated: procedure. In February 2007, Francisco was under the Eighth Amendment. PJ also has Defendants’ own records bespeak of released. Only then was he able to obtain the asserted constitutional claims against state conduct that transcends negligence by needed biopsy that confirmed the lesion was officials under the Eighth and Fourteenth miles. It bespeaks of conduct that, if true, cancerous. On Valentine’s Day 2007, Fran- Amendments. should be taught to every law student as cisco’s penis was amputated, and on Febru- On March 11, 2008, the federal district conduct for which the moniker ‘cruel’ is ary 16, 2008, he died from the cancer. court in Los Angeles rejected the Public inadequate. To address the unimaginable humilia- Health Service’s motion to dismiss the claim The defendants have appealed the deci- tion and pain Francisco had suffered before against it, finding that the Federal Tort Claim sion. The case, however, moves forward. In his preventable death, PJ sued the federal Act (FTCA) did not provide immunity for its late April 2008, the government admitted government for violation of equal protec- violation of Francisco’s constitutional rights. the elements of the FTCA violations (liability tion under the Fifth Amendment for failure The extraordinary ruling expands available for the neglect and causation of Francisco’s to provide immigration detainees with the relief and makes individuals personally li- death). It then moved to stay discovery on level of medical care provided other fed- able for the civil rights violations of immi- the constitutional claims, but the court de- eral detainees, and violation of the prohibi- gration detainees. In his stinging opinion, nied the request. ➞

SEPTEMBER/OCTOBER 2008 9 pro bono Public Justice Foundation

Pro Bono Profile: Meet Anthony Pelino he year 1999 was a turning to me then to be a surreal prison point for Anthony Pelino, a town in the middle of nowhere.” solo immigration practitioner Now nine years later, Florence is in Boston. He contacted this Anthony’s epicenter. In February 2001, author, then executive director he took the plunge and moved to ofT the Florence Immigrant and Refu- Florence to establish a law practice gee Rights Project (Florence Project) devoted to representing immigration in Florence, AZ, for advice on a com- detainees. “There was the lure of the plex asylum claim while a part-time desert, the adrenaline of fast-paced, clinical professor at Boston University high-stakes deportation defense, and with mental and physical disabilities. School of Law. In addition to getting my conscience given the legal repre- Additionally, Anthony recom- an earful of advice, Anthony received sentation crisis for detainees,” reflects mends that American Immigration this author’s presumptuous pitch: Anthony. Lawyers Association (AILA) members come hither for a vacation to rural Ari- “It was the most fulfilling move donate their time and talent to coun- zona at your expense and provide pro I’ve made,” he added. “In detention sel and assist the 32,000 detainees bono representation to some of the practice, I know I make a meaningful held in one of the more than 400 Florence Project’s indigent detained difference—whether it’s protecting detention facilities nationwide. clients. victims of persecution, torture, or traf- “As attorneys, we have both a While quizzical at first, Anthony ficking from deportation to possible moral and ethical imperative to help took the bait. In 2000, over the course death or keeping families together.” bring justice to the lives and cases of two weeks, he successfully repre- While Anthony’s practice is now of indigent DHS detainees,” reminds sented a total of six immigration de- thriving, he remains an ardent pro Anthony. “We are their gatekeepers to tainees—all with criminal records—in bono champion for immigration de- the justice system and the key to their their compelling claims for relief from tainees. At any given time, he handles freedom.” removal. between five to 10 challenging pro “Through my baptism by fire, I be- bono matters referred by a variety Courtesy of Christopher Nugent, came hooked on representing detain- of sources, including the Florence senior counsel with the Community ees,” said Anthony. “These clients were Project. Through his pro bono work, Services Team of Holland & Knight vulnerable, isolated, and in desperate Anthony has developed particular LLP in Washington, D.C., and a need for competent counsel by virtue expertise in representing detained member of the AILA National Pro of their detention in what appeared women, sexual minorities, and people Bono Services Committee.

Adele Kimmel, PJs lead attorney on the company, profits are valued over lives and the shows that pro bono lawyers don’t only dis- case, noted the government has, in the past, result is a complete failure to provide detainees pense needed legal advice; they also provide stonewalled providing information. But that with adequate medical care,” Kimmel added. the transparency and accountability needed doesn’t deter her. to stem egregious civil rights violations. ILT “Public Justice is committed to pursuing Upholding Civil Rights constitutional violations that arise from the PJ’s work is helping to expose civil rights vio- Kathleen A. Moccio is a member of the federal government’s health care policies for lations and bring about needed change. The American Immigration Lawyers Association’s detainees, as well as the government’s utter fail- tragic cases of Moises and Francisco serve National Pro Bono Services Committee and ure to provide sufficient funding and staffing as poster children for the importance of pro practices immigration law in Minneapolis. for detainees’ medical care,” said Kimmel. bono counsel. While detained, Francisco PJ also is concerned about private deten- begged his sister to find him a lawyer. Un- Articles in ILT do not necessarily tion facilities. “All too often, when detainees fortunately, she was unable to find anyone reflect the views of the are housed in facilities operated by a private to take his case. Francisco’s case poignantly American Immigration Lawyers Association.

10 Immigration Law Today SEPTEMBER/OCTOBER 2008

Mobilize Now! How Your Vote Impacts the Future of Immigration by L. batya Schwartz ehrens RF / 123 NATULRICH ILLUSTRATION

12 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008 With presidential and congressional elections looming around the corner, Americans continue to debate, worry, and wonder which candidates will best serve the changing needs of our nation. Whereas most issues on the political table fall into neat, divided platters of foreign or domestic policy, the great immigration debate is unique in that it reflects—and will literally redefine—who and what falls within U.S. borders. The election outcome ultimately affects not only internal affairs, but also the global posture of this country.

mmigration lawyers play a key role as ambassadors, advocates, educators, lobbyists, therapists, friends, and, of course, pursuers of justice for their clients. Today, however, a new type of immigration debate has emerged and gained momentum as advocates of just immigration policies and proponents of increased national security struggle to balance this legacy of opportunity and hope with this country’s changing security needs. I Thomas Friedman suggests that the United States has strayed and political radicalism, which were attributed to the immigrant too far, and describes this nation’s post-9/11 global reputation as population.1 “The United States of Fighting Terrorism” rather than the land of The 1921 Emergency Quota Act was passed, which limited the opportunity for immigration and the preeminent destination for annual number of immigrants entirely based on country of ori- tourism, education, economic and political freedom, technology, gin—immigration from any country was limited to 3 percent of the and environmental consciousness (see T. Friedman, “9/11 Is Over” number of persons from that country living in the United States, New York Times, Sept. 30, 2007). As the crucial election approaches, according to the 1910 U.S. census figures. In 1924, immigration, Americans can take heed of Friedman’s article in electing leaders to again, became a platform issue for the Republican Party. The Im- maintain this country’s reputation as a welcoming and prosperous migration Act of 1924, or Johnson-Reed Act (including the National nation with “increased but invisible” protection. Origins Act and Asian Exclusion Act), was passed, reducing the country quotas to 2 percent of the people from that country based history of Immigration in u.S. elections on the 1890 U.S. census.2 The quotas primarily affected Southern Although immigrants historically have viewed the United States as and Eastern European immigrants, who had been arriving in large the land of opportunity, each wave of immigration revives senti- numbers since the 1890s. Immigration from Eastern Europe, which ments of distrust and disdain by those already prospering (often exceeded 400,000 in 1919, was cut to fewer than 40,000, while only one or two generations after their ancestors migrated to this immigration from Italy was restricted to 4,000. Furthermore, all country). A century ago, people feared that German, Irish, Jewish, Asians were forbidden from immigrating, even if the quotas for their and Italian immigrants seeking economic opportunities were taking country of origin were not met. As fewer new immigrants entered jobs, driving wages down at the expense of the working class, refus- the United States from these countries, proponents of the quotas ing to learn English, and overburdening public services. saw success. Foreign languages and ethnic businesses faded away Today, immigration statistics are eerily similar to 100 years ago. as immigrants became “Americanized.” Accordingly, the same fears and complaints about immigrants sur- In recent years, under pressure from pro-immigrant advocacy face, sometimes accompanied by the recognition that the United groups and anti-immigrant restrictionist groups like The Minute- States owes much of its economic prosperity to its immigrants, but men and their allies (with powerful public relations mechanisms more often by belief of some Americans that their immigrant roots and voting power), both the Senate and House have revisited im- were more legitimate and worthy of citizenship because their im- migration legislation. In the past three years, Congress has voted on migrant predecessors did everything “legally.” several legislative acts that would regulate immigration by address- However, these restricted viewpoints fail to appreciate the leg- ing border protection, anti-terrorism, family– and employment- islative and political evolution over the last century that has lim- based backlogs, comprehensive immigration reform, deportation, ited immigrants’ ability to navigate legal pathways to citizenship. employer raids, and many other pressing issues (see Secure America Between 1890 and 1919, a flood of immigrants from Southern and and Orderly Immigration Act (S. 1033, 2005); Comprehensive Im- Eastern Europe entered the United States “legally” with little more migration Reform Act of 2006 (S. 2611); Comprehensive Immigra- than a boat ticket, a relative or friend to vouch for them, and a tion Reform Act of 2007 (S. 1348); and Secure Borders, Economic bill of clean health. By the 1920 U.S. presidential election, xeno- Opportunity, and Immigration Reform Act of 2007 (S. 1639)). phobia was rampant and the electorate feared crime, labor unrest, ➞

SEPTEMBER/OCTOBER 2008 13 Mobilize Now!

Presidential election in Their own words: To those basing their voting decisions for the 2008 Presidential Candidates on Immigration next president on a candidate’s immigration policies, both Senators John McCain (R-AZ) and Barack Obama (D-IL) have made prom- This election is about the 12 million people living in the ises to place immigration as a top agenda item. shadows, the communities taking immigration enforcement However, it remains to be seen whether either into their own hands; they’re counting on us to stop the hateful actually will carry out his promises if given the rhetoric filling our airwaves, rise above the fear and demagoguery, opportunity. Given their prior voting patterns, and finally enact comprehensive immigration reform … [i]t’s neither candidate has maintained a consistent time for a president who won’t walk away from comprehensive commitment to his position on immigration immigration reform when it becomes politically unpopular … at the same time, we’ll (see all voting records for McCain, Obama, and secure our borders and crack down on employers who hire undocumented workers. Biden at www.ontheissues.org/default.htm). that’s how we’ll reconcile our values as both a nation of immigrants and a nation of laws. Throughout the primaries, the Republican Party candidates debated and vied to be the — Democratic presidential candidate sen. Barack obama (D-il), toughest on immigration, promising a giant Congressional Hispanic Caucus Institute Gala, Sept. 10, 2008 fence that would ease the country’s greatest im- migration nightmares. In contrast, Democratic We will secure the borders first ... i know how to do that. i come contenders Senator Hillary Rodham Clinton from a border state, where we know about building walls, and (D-NY) and Obama both remained elusive and vehicle barriers, and sensors, and all of the things necessary … noncommittal, most likely for fear of isolating PRESS/NBC

and then we will move onto the other aspects of this issue, supporters who were unconvinced that im- THE probably as importantly as tamper-proof biometric documents, migration reform and national security could , MEET which, then, unless an employer hires someone with those be achieved together. However, in 2006, both documents, that employer will be prosecuted to the fullest extent of the law. Obama and Clinton supported a bill sponsored REAMSTIME

by McCain that proposed legal status for un- / D — Republican presidential candidate sen. John mcCain (r-aZ), documented immigrants who met conditions California Republican debate, Jan. 30, 2008 such as learning English. Furthermore, all three supported the border fence. INOSPHOTOS I hereby pledge that as president i will not reward those who have come to our country illegally with the precious gift of John Mccain: american citizenship, by granting them any form of amnesty … Republican Presidential , ALLAN KEYES, G i hereby pledge that i will as president regard the ongoing Candidate

invasion of our country by millions of foreign nationals as the cCain reversed his REAMSTIME clear and present danger to our nation’s security that it is, mposition on the 2006 / D and that i will therefore take swift executive action to confront and end it. Senate bill that he cospon- LERICKSEN

sored, which would have legalized millions of , D — America’s Independent Party presidential candidate allan keyes’s immigrants, created a guest-worker program, pledge to the Minutemen Civil Defense Corps, Aug. 25, 2008

and strengthened border control. After being at- REAMSTIME

tacked by his party for the proposal, he restated / D

Exploiting immigrant workers puts a downward pressure on his position and has become a proponent for UBESOR U.s. labor wages and standards. a $10 minimum wage would securing the border first. McCain has been criti- open many of these jobs to unemployed american workers. cized for trading in his commitment to address ; PHOTOS D as for the H-1B visas, the United states should stop the immigration in “a humane and compassionate RF

“brain draining” of highly skilled people in the third world fashion” to prioritize border security under pres- / 123 who are desperately needed to develop their own economies. sure from the GOP. This major position change

reflects McCain’s response when pressured by NATULRICH — Green Party presidential candidate ralph nader, his largely anti-immigrant constituents. Green Party 2008 Presidential Candidate Questionnaire, Feb. 3, 2008 Furthermore, McCain believes that the solu- tion to repairing the immigration system begins

at enforcing and fortifying the U.S. borders in DOWN: ILLUSTRATION OP

order to stop illegal immigration through Mex- T ROM

ico before continuing with immigration policy F

14 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008 reform. He has prioritized investing in more stringent border security, and, if elected, this Voting Records on Key immigration bills: will most likely be his first move. U.S. Senators Up for Re-election in 2008 McCain also has expressed support for holding employers accountable for know- Senator State-Party CIR 109th CIR 110th DREAM Act ingly hiring unauthorized workers, and he supports E-verify, the U.S. Department of Pryor, Mark D-AR Y N N Homeland Security’s (DHS) electronic track- Biden, Joseph D-DE Y Y Y ing system that would help employers more Harkin, Tom D-IA Y N Y accurately screen workers. E-verify actu- Durbin, Richard D-IL Y Y Y ally may expose unauthorized aliens to the Landrieu, Mary D-LA Y N N government as employers extend the reach of DHS employers’ human resource depart- Kerry, John D-MA Y Y Y ments. Thus, it is crucial to understand all Levin, Carl D-MI Y Y Y consequences of this very controversial pro- Baucus, Max D-MT Y N N gram before endorsing it as an ideal solution Lautenberg, Frank D-NJ Y Y Y to reduce unauthorized employment. McCain’s statements and speeches from Reed, Jack D-RI Y Y Y 1998 to 2008 paint the picture of some- Johnson, Tim D-SD Y N/A Y one committed to immigrant rights. He was Rockefeller, John D-WV N/A N Y honored by La Raza for opposing English as Stevens, Ted R-AK Y N N the official language, considers illegal immi- Sessions, Jeff R-AL N N N grants “God’s children,” and proudly boasts

of his bipartisanship with respect to voting Allard, Wayne * R-CO N N N on immigration in the Senate. He also has Chambliss, Saxby R-GA N N N supported guest-worker programs. How- Craig, Larry * R-ID Y Y Y ever, by abandoning a bill he actually once Roberts, Pat R-KS N N N cosponsored, one cannot help but question McConnell, Mitch R-KY Y N N his commitment to his bipartisan values, and more importantly, his commitment to the ra- Collins, Susan R-ME Y N Y tionale that drove him to cosponsor the bill Coleman, Norm R-MN Y N Y in 2006. Cochran, Thad R-MS N N N Although his positions on immigration Wicker, Roger R-MS N/A N/A N/A do not vary dramatically from his opponent, Dole, Elizabeth R-NC N N N Obama, McCain continues to face pressure from his party, which diverts his position Hagel, Chuck * R-NE Y Y Y and commitment to a comprehensive solu- Sununu, John R-NH N N N tion favoring immigrants. From an immigra- Domenici, Pete * R-NM Y N N tion perspective, McCain’s biggest weakness Inhofe, James R-OK N N N is his inability to withstand pressure from his Smith, Gordon R-OR Y N N conservative party, as well as his response to that pressure by shifting his priorities from Graham, Lindsey R-SC Y Y N comprehensive solutions to border security. Alexander, Lamar R-TN N N N Cornyn, John R-TX N N N Sarah Palin: Warner, John * R-VA Y N N Republican Barrasso, John R-WY N/A N N Vice-Presidential REAMSTIME

/ D Candidate Enzi, Michael R-WY N N N cCain’s running * Not seeking re-election. The Senate has 100 members, with about one-third being elected for a six-year term in dual- mmate, Governor seat constituencies (two from each state) every two years. There are currently no term limits for senators or members of Sarah Palin of Alaska, has taken no previ- the House of Representatives, thus, a person can be re-elected every term until they no longer wish to seek re-election ISTYDAWNPHOTO ous action and has made no statements on or have passed away.

PHOTO M immigration. However, she has been ➞

SEPTEMBER/OCTOBER 2008 15 Mobilize Now! AILALink

ForOFF Those TimesLI WhenNE the Information … identified as a supporter of Pat Buchanan during his 2000 presiden- tial campaign, who is best known as one of the most anti-immigrant Super Highway Isn’t an Option. and anti-Semitic politicians in the United States. If McCain is elected as the next president, Palin assumes the role not only of vice president, but also as president of the Senate of the United States. In that role, she would have the tie-breaking vote in the Senate on any immigration issue that arises. Due to the highly controversial and difficult immigration issues that have been pre- sented in Congress over the past four years, including, but not lim- ited to the DREAM Act, comprehensive immigration reform (CIR), material support, and E-verify regulations, it is possible that Palin could be the tie-breaking vote for immigration legislation on which she has absolutely no background or previous voting record.

Barack oBaMa: Democratic Presidential Candidate bama’s voting record in the Senate closely oparallels McCain’s voting record. He has Internet Not Available? voted to strengthen border controls and sup- For those times when you can’t connect to the Internet, ports building a fence to increase border se- AILALink subscriptions include Offline access for one curity. In 2007, Obama supported the CIR bill supporting family user at no additional charge! This means you can unification, as well as meeting demand for positions that employers download one offline version of AILALink to your laptop or cannot find U.S. workers to fill. He also has expressed support home computer for free. Each time that computer is connected for making the current citizenship process shorter, easier, and less to the Internet, it will check for updates to the Offline content and prompt you to download them at your convenience. Additional expensive for legal immigrants seeking citizenship. Obama believes Offline access is available for a nominal fee. Restrictions do that employers should be held accountable for hiring unauthorized apply. E-mail [email protected] for more information. workers (which may result in a move toward E-verify). Like his op- ponent and his running mate, Obama believes in creating a pathway AILA Online is your gateway to the most sought-after Link to citizenship for undocumented immigrants. resources on immigration law. With this powerful, web-based research tool, you’ll have access to primary sources such as In the past, Obama has faced criticism for voting for five amend- the INA, CFR, FAM, and more, as well as fillable immigration ments designed to kill the Senate’s bipartisan immigration reform forms and more than $2,800+ worth of AILA publications deal. However, throughout his campaigning, he has promoted an REAMSTIME

including Kurzban’s Sourcebook, AILA’s Asylum Primer, agenda to find a balance between immigrants and laws, and his vot- / D , and more! Essentials of Removal & Relief ing record—especially in recent times—has reflected that goal. ERSANKT How Can You Become an AILALink Subscriber? , D JoSePh Biden: Visit www.ailalink.org and click the “Sign Up Here!” link and Democratic Vice-Presidential Candidate you’ll be taken to the registration page. Once you’ve completed REAMSTIME enator Joseph Biden (D-DE) maintains that / D the registration process and your payment has been processed, you’ll have immediate access! sit is impractical to deport approximately 12–14 million illegal immigrants, and has sup-

ported Bush’s plan to create a border fence as ISTYDAWNPHOTO well as pathways to citizenship. However, his support for the border fence comes from the desire to tackle drug trafficking rather than ; PHOTOS M to halt illegal crossings. Like McCain and Obama, Biden voted in RF

favor of CIR and has stated that Americans have an obligation to / 123 repair the broken immigration system. He supports employer sanc-

tions as well as a guest worker program. Biden also voted to allow NATULRICH Visit www.ailalink.org for more information, undocumented aliens to participate in Social Security and supports or to ask about our 30-day money-back legislation for earned citizenship for undocumented immigrants guarantee, e-mail [email protected]. currently in the United States. Biden is dependable as a consistent proponent for immigration AILA Publications—Written ... reform. His views and voting record reflect an understanding of Edited ... Published by Immigration Lawyers

the issues America faces, as well as a commitment to finding ➞ FROMTOP DOWN: ILLUSTRATION

16 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008

Mobilize Now!

viable solutions. Of the four major players in this election, Biden advocating Fair Immigration Reforms is most likely to support powerful changes that will improve the Recent congressional voting has not resulted in any significant lives of immigrants. advancement supporting a viable solution for fair immigration reform. However, with all the media publicity and public outrage State Legislation on both sides of the issue, there must be continued advocacy for Although Congress was unable to make any significant progress immigration reforms and steady pressure on Congress to pass in immigration this year, according to a report issued by the legislation that will address the weaknesses of the current im- National Conference of States Legislatures, in 2007 alone, state migration system. America’s future rests on developing fair path- legislatures passed 240 laws regarding immigration (out of 1,562 ways to citizenship, immigration measures to increase economic proposed) addressing “law enforcement, employer sanctions, self-reliance, and improvements to this nation’s current refugee driver’s licenses, and other identification, for both legal and un- system, among many other important changes. authorized immigrants.”3 The increase in state legislation reflects Unfortunately, Congress receives disproportionate and con- an urgency to respond to public concerns, but also presents the tinuous feedback, support, and pressure from anti-immigrant dangers of irresponsible legislation on some of the most delicate constituents, most of whom are acting based on irrational fears issues in immigration. For example, Mississippi Governor Hayley and unsubstantiated beliefs that immigrants threaten their safety Barbour signed an employer sanction law that mandates employ- and prosperity. Many Democratic leaders who would traditionally ers to use E-verify. By using the system, employers are absolved support pro-immigrant legislation are wary to take a stand for fear from criminal liability for hiring undocumented workers, while of isolating themselves from more conservative supporters. undocumented workers could face felony charges for holding On November 4, 2008, Americans will once again have an a job. This type of legislation creates an environment ripe for opportunity to support congressional leaders up for re-election employer abuses and exploitation without any accountability for who vote favorably for pro-immigrant legislation. Immigration at- employers. torneys have a narrow window of opportunity in the next month before elections to carry out their heightened obligations as ad- vocates in support of candidates who vote in favor of legislation that will benefit immigrants. Below are some suggested methods Foreign Credential Evaluations: Career Consulting International to get your message out to the public:

® Respond to highly visible editorials to publicly denounce en- www.TheDegreePeople.com t  forcement-only immigration tactics;

® Write articles in ethnic and local newspapers to explain how Specializing in immigrants stimulate the economy, while the expense of deporting 12 million immigrants can be momentous;

di cult cases. ® Educate clients and the general public so they understand the implications of the congressional elections, and encourage those No Charge Detailed Analysis of NOIDs, Denials, who can to vote; RFEs or any di cult education situation. ® Contact congressional representatives;

Foreign credential education evaluation for ® Show the public how immigrants benefit our country by sup- I-140 / H-1B / Green Card etc. porting lobbyists and advocacy groups and encouraging constitu- www.TheDegreePeople.com Our clients say it best. Here is just one: ents to do the same; and ” ... At last we succeeded! My I-140 was approved today. I really appreciate you on this. Your Evaluation did magic (with 3 year degree, EB2).” ® After the elections, continue learning, teaching, and lobbying so that immigration remains on the agenda. All 3 year degrees are at risk. We can help with many problem cases. RF

One of the most effective means of change beyond grassroots / 123 For a free consultation call today: advocacy work is by supporting organizations like Immigrants’ 1.800.771.4723.

List (founded by several American Immigration Lawyers Asso- NATULRICH **For a No Charge Review of any di cult case, ciation members) that raises funds through donations to build RFE, Denial, NOID, go to www.cciFree.com ** pro-immigrant coalitions (see www.immigrantslist.org). Immigrants’

List provides financial backing to congressional leaders ➞ ILLUSTRATION

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who have voted favorably for important bills and acts, regardless tion debate with rational immigration solutions that uphold this of party affiliation, and shows that even in a rampantly anti- country’s compassionate traditions and ensure its competitive edge immigrant environment, it is possible to be pro-immigrant and in the age of globalization. Until the general elections, immigration obtain the financial backing necessary to win an election. This advocates still have the time and opportunity to reach out to the year’s elections are critical to the future of immigration legisla- voting communities. On November 4, 2008, 100 U.S. represen- tion, because now is the opportunity to elect leaders who will tatives, 35 U.S. senators, and one U.S. president will be elected. provide a positive voice for immigration. Together, they will determine the fate of generations of immigrants seeking to become an American. Are you ready to exercise your advocate for Change constitutional right to vote for the next body of power? ILT In addition to securing safe haven, visas, and green cards for cli- ents, immigration attorneys also have a duty to serve their clients l. batya schwartz ehrens is an immigration attorney at by advocating for their needs and debunking myths that feed Pollack, Pollack, Isaac, & DeCicco LLP in New York, NY, and serves anti-immigrant hysteria. Armed with accurate information from as co-chair of the New Members Division for AILA's New York trustworthy sources, these advocates can enable more Americans chapter. to make educated voting decisions about who will ultimately best Articles in ILT do not necessarily reflect the views of the

protect their values. American Immigration Lawyers Association. RF The movement to close U.S. borders and expel undocumented / 123 immigrants is gaining support and growing at great speed. How- notes ever, if the pro-immigrant movement mobilizes to become a power- 1

See http://hnn.us/articles/25364.html. NATULRICH ful voting block, it can influence national politics. Advocates must 2 See http://en.wikipedia.org/wiki/Immigration_Act_of_1924. prepare their communities to replace the widespread panic over 3 See National Conference of State Legislatures Report at http://ipsnorthamerica.

terrorism and economic instability channeled into this immigra- net/news.php?idnews=1448. ILLUSTRATION

20 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008

ttorneys praCtiCing Before Credible tHe immigration CoUrts Evidence or have seen a growing reliance on forensic Document laboratory (fDl) reports, as the fDl Unreliable Due has expanded its mission and operations over the Process Violations? last seven years. in reaching credibility determina- tions, immigration judges (iJs) give great weight by Jason Dzubow to the fDl reports, and such reports may be determinative of credibility regardless of any other evidence presented. But little is known as

to how the fDl determines fraudulent documents, / BONOTOM STUDIO

because its chain of custody does not follow a REAMSTIME / D

particular pattern. CLICKS PHOTO 36

22 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008 The respondent claims to be a male native and citizen of Mauritania. In support of this claim, he proffered documents purporting to be an identity card and a birth extract from the Republic of Mauritania. [T]he Immigration and Naturalization Service submitted into evidence a report from its Forensics Document Laboratory stating that the respondent’s identity card is a “known counterfeit” and the birth certificate is “probably counterfeit.” The respondent’s attorney characterized the report as “conclusory” and questioned its efficacy, absent an opportunity for the parties to examine the documents that the respondent had originally submitted to the Service. The Immigration Judge found the respondent deportable under section 241(a)(1)(B) of the Immigration and Nationality Act, ... [and] denied his applications for asylum and withholding of deportation under sections 208 and 243(h),

— Matter of O–D–, 21 i&n Dec. 1079, 1083 (Bia 1998)

The respondent, an Albanian, was active in Albania’s Democratic Party in 2000. At her hearing, the immigration service’s law- yer presented a forensic document examiner employed by the service named, Gideon Epstein, who testified that four of the nine documents that [the respondent] had attached to her application for asylum were probably fakes (he didn’t analyze the other five). He based this assessment on the fact that the documents had been produced by color laser technology, which … is … expensive (and Albania is poor). Also, the printed text on the documents … did not contain the diacritical marks (accents) that are part of the spelling of many of the Albanian words in that text. Epstein acknowledged, however, that he does not speak or read Albanian and had no access to official Albanian texts comparable to [respondent’s] documents. Admitting that he could not “rule out” the possibility that they were authentic, he concluded merely that they were “probably not what they’re purported to be.” The im- migration judge concluded that the documents were of “highly questionable authenticity” and solely on this ground rejected [the respondent’s] testimony about being persecuted for activities on behalf of the Democratic Party.

— Pasha v. Gonzales, 433 f.3d 530, 535 (7th Cir. 2005)

The FDL works under U.S. Immigration and Customs Enforce- However, the examiner assures the firm that the analysis of the ment (ICE) to “combat travel and identity document fraud.” Ap- FDL is “the product of reliable principles and methods based proximately 20 percent of the FDL’s forensic work involves crimi- upon sufficient data, which have been applied to the facts of nal matters, and ICE reports that “nearly all” cases in which the [the] case.” Such principles include “side-by-side comparison” of the alien’s document with “genuine specimens” obtained from FDL provides expert testimony result in either convictions or plea U.S. government officials assigned to the relevant overseas posts. bargains based on the lab’s forensic analysis. With findings done The examiner concludes, the weight given to an “expert witness’s behind closed doors, is the FDL report really credible evidence or findings can be determined through the expert’s testimony both just another due process rights violation of aliens in immigration on direct and cross examination.” proceedings? Thus, the FDL submits conclusory “expert” reports but does not The FDL Report reveal its methodology or allow the alien—or the IJ—to examine Most reports from the FDL contain only conclusory information the “genuine specimens” used for comparison. It does not reveal about the document sent for analysis. For example, one report ana- where, when, or how the “genuine specimens” were obtained, but lyzing a police document from Ethiopia states only that a “compara- assures the alien and the court that its analysis is based on “reliable tive examination” has revealed that the document “does not con- principles” and “sufficient data.” Such standards hardly seem appro- form to genuine specimens of the letters and wet seal impressions priate to a court of law. Yet, IJs now routinely rely on these types of on file and was determined to be counterfeit.” reports to deny applications for relief, even where the applications The FDL is reluctant to provide insight into its methodology. are otherwise supported by credible evidence (see Matter of O–D–, In a recent letter to the author’s firm, a senior forensic document 21 I&N Dec. 1079, 1083 (BIA 1998) (submission of counterfeit examiner at the FDL states: document, absent any explanation for such presentation, casts se- rious doubt on the applicant’s overall credibility and diminishes It is not customary for FDL examiners to include comprehensive details of the examination when reporting conclusions … The the reliability of his other evidence)). What, then, can be done to FDL does not provide access to the reference collection of speci- counter an FDL report? mens to third party entities nor does it disclose provided third party information. To do so would potentially grind government Due Process violations operations to a halt since agencies would not share information if Aliens in removal proceedings are entitled to due process of law (see that information were released. The FDL does not provide speci- Reno v. Flores, 507 U.S. 292, 306 (1993)). One due process right ac- mens that, in the wrong hands, could make it easier to counterfeit corded foreign nationals in removal proceedings is the “reasonable a document in the future. opportunity to examine the evidence against the alien.” (See ➞

SEPTEMBER/OCTOBER 2008 23 safeguarding both the classified nature INA §240(b)(4).) FDL reports based on “comparative ex- of the information and its sources. The The only exception aminations” do not constitute expert testi- summary should be as detailed as pos- to this rule pertains to sible, in order that the alien may have an mony because such reports generally do classified evidence (see INA opportunity to offer opposing evidence. not require “scientific, technical, or other §240(b)(4) (alien not “entitled to examine A decision based in whole or in part on specialized knowledge.” Any layperson can such national security information as the such classified information shall state place one document next to another to de- Government may proffer”)). The regula- whether such informa- termine whether they are tions governing removal proceedings under tion is material to the are the courts the same or different. Un- 8 CFR §1240.11(c)(3)(iv) further refine a decision. der these circumstances, nonimmigrant’s rights with regard to classi- Thus, in cases where a forum where the IJ and the nonimmi- fied evidence as: classified evidence is grant should be permit- proffered by the govern- aliens’ cases may ted to review the underly- Service counsel may … present evidence for the record, including information ment, such evidence is be reviewed ing data themselves; they classified under the applicable Executive submitted to the IJ and should not be forced to Order, provided the immigration judge an effort is made to pro- fairly or are they rely on the unsupported or the Board has determined that such vide the nonimmigrant conclusions of the FDL. information is relevant to the hearing. with information about merely a rubber Further, even if a When the immigration judge receives the evidence that is “as stamp for the particular report does such classified information, he or she detailed as possible.” require expert knowl- shall inform the alien. The agency that In cases involving an u.S. Department edge, the IJ is required provides the classified information to FDL report, however, the to “ensure that any and the immigration judge may provide an underlying evidence is of homeland all scientific testimony or unclassified summary of the information not submitted to the IJ, evidence admitted is not for release to the alien, whenever it de- Security? termines it can do so consistently with let alone to the foreign only relevant, but reli- national. This means that able,” (see Daubert v. Mer- ICE is more protective of the evidence relied rell Dow Pharmaceuticals, Inc., 509 U.S. 579, on by the FDL than it is protective of na- 589 (1993); see also Pasha v. Gonzales, 433 tional security information. Clearly, some- F.3d 530, 535 (7th Cir. 2005) (Although thing is amiss. Daubert does not “strictly apply” to immi- gration proceedings, the “spirit of Daubert” Not Necessarily “Expert” Report is applicable to such proceedings)). The FDL justifies its refusal to reveal the data underlying its reports on the basis that ®PRaCTICe PoInTeR: The IJ (and the reports are “expert” testimony, and, as the foreign national’s attorney) can such, neither the foreign national nor the improve reliability by insisting on IJ may review the evidence used to create receiving crucial information such the reports. In other words, the report itself as: (1) where the FDL obtained the is the evidence—the FDL has filtered and documents used for comparison; analyzed the underlying data and presented (2) if the FDL has a complete set of its expert finding to the court. The Federal all documents used by the issuing Rules of Evidence, Rule 702, offers guidance government or organization; (3) about expert testimony1: how the FDL obtained the docu- ments; and (4) methods of exami- If scientific, technical, or other specialized knowledge will assist the trier of fact to nation and the results obtained. understand the evidence or to determine a fact in issue, a witness qualified as an Unless the IJ has reviewed the underly- expert by knowledge, skill, experience, ing data and answered these questions, he or training, or education, may testify thereto she has not fulfilled the duty to ensure the

in the form of an opinion or otherwise, FDL report’s reliability. Such is the minimum / BONOTOM STUDIO if (1) the testimony is based upon suf- requirement for due process. (See Zahedi v. ficient facts or data, (2) the testimony INS, 222 F.3d 1157 (9th Cir. 2000) (requiring is the product of reliable principles and REAMSTIME some degree of specificity from the FDL).) / D methods, and (3) the witness has applied the principles and methods reliably to the CLICKS unclassified evidence Review facts of the case.

Except in the case of classified ➞ PHOTO 36

24 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008

evidence, a for- right to review the evidence against them; ment is fraudulent, the IJ “must make an eign national in it makes no accommodation for the FDL’s explicit finding that the applicant knew proceedings “shall concern that such review might lead to the document to be fraudulent before the have a reasonable op- better forgeries. Further, the FDL’s justi- IJ can use the fraudulent document as the portunity to examine the evidence against fication provides no basis for refusing to basis for an adverse credibility determina- the alien … and to cross-examine witnesses release the documents to the IJ. If judges tion” (see Carovic v. Mukasey, 519 F.3d 90, presented by the Government,” (see INA are trusted with classified evidence, surely 97–98 (2d Cir. 2008)). At least two other §240(b)(4)). they may be trusted with the unclassified courts have reached a similar conclusion The evidence relied on in the FDL re- documents used to create an FDL report. (see Koursky v. Ashcroft, 355 F.3d 1038, ports is generally not classified evidence. If the FDL will not release the underlying 1040 (7th Cir. 2004); Yeimane-Berhe v. Ash- Nevertheless, the FDL justifies its refusal data used by the FDL, attorneys should croft, 393 F.3d 907, 913 (9th Cir. 2004); to allow IJs and respondents to review the move to exclude the report as a violation Matter of O–D–). underlying evidence because releasing the of due process. specimens might cause them to fall into Aside from the right to examine evi- ®PRaCTICe PoInTeR: Thus, the “wrong hands,” which “could make it dence, foreign nationals have the right where a third party in the respon- easier to counterfeit a document in the fu- to cross-examine government witnesses, dent’s home country has sent him ture.” Not only is this explanation insulting including the ICE employees who create or her an allegedly fraudulent doc- to IJs and the immigration bar, it wholly FDL reports (see INA §240(b)(4)). Courts ument, the respondent may avoid fails to address the due process concerns have held that “INS may not use an affida- an adverse credibility finding by raised by the FDL reports. The FDL’s theo- vit from an absent witness ‘unless the INS demonstrating that he or she had retical worries about documents becoming first establishes that, despite reasonable no knowledge that the document public should not be permitted to trump efforts, it was unable to secure the pres- is fraudulent. Since the attorney respondent’s right to due process of law. ence of the witness at the hearing.’” (See cannot know in advance which The act clearly allows nonimmigrants the Ocasio v. Ashcroft, 375 F.3d 105, 107 (1st documents will be challenged, it is Cir. 2004) (quoting Olabanji v. INS, 973 important to establish the chain of F.2d 1232, 1234 (5th Cir. 1992); see also custody of all documents submit- Dallo v. INS, 765 F.2d 581, 586 (6th Cir. ted by the alien. 1985); Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir. 1997).) an existential Question There is no reason why the FDL em- Use of the FDL reports presents an exis- ployees cannot be available in person or tential question for the immigration court by phone. A well-prepared cross-examina- system: Are the courts a forum where tion could raise serious doubts about the aliens’ cases may be reviewed fairly or are basis for an FDL report, and could lead to they merely a rubber stamp for the U.S. De- that report being excluded from evidence. partment of Homeland Security? Attorneys (See, e.g., Pasha v. Gonzales, 433 F.3d 530 representing immigrants should not allow (7th Cir. 2005) (government testimony the reports to go unchallenged. Our clients’ excluded after examination revealed that cases—and the integrity of the immigration “expert” on Albanian document does not court system—are at stake. ILT speak Albanian and is not familiar with the situation in Albania); Tadesse v. Gon- JasOn dzubOw is a named partner of the zales, 492 F.3d 905 (7th Cir 2007) (Board law firm Mensah, Butler & Dzubow, PLLC in of Immigration Appeals (BIA) decision re- Washington, D.C. versed where IJ improperly limited cross- examination of FDL expert).) Articles in ILT do not necessarily reflect the views of the American Immigration establish Chain of Custody Lawyers Association. One strategy to neutralize an FDL report

that has gained some traction in the fed- notes / BONOTOM STUDIO eral courts relates to the “chain of cus- 1 “The Federal Rules of Evidence do not apply tody” of the document in question. The in INS proceedings, Henry v. INS, 74 F.3d 1, REAMSTIME

Second Circuit U.S. Court of Appeals 6 (1st Cir. 1996), but the less rigid constraints / D of due process impose outer limits based upon

has held that when an applicant whose CLICKS considerations of fairness and reliability.” See testimony is otherwise credible claims Yongo v. INS, 355 F.3d 27, 30 (1st Cir. 2004).

he or she has no knowledge that a docu- PHOTO 36

26 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008

A kind of case has come my way, which I have never had in my 12-plus years of immigration practice. There must be at least one of you who have had this issue before you. Some of you will be quite uncomfortable with it. If so, please accept my apologies in advance … “Frances,” a naturalized U.S. citizen (USC) and an Ecuadorian man, Leo, married in Canada. The USC wife is a trans- sexual female originally from Singapore who has completed all of the sex-change procedures, including sex reassignment surgery (SRS). I know that same-sex marriages are not acceptable bases for U.S. immigration. But what about a marriage where an otherwise “straight” man happened to fall in love with and married a trans-sexual? Is there any case law on this? Have any of you filed any such cases? [Slightly modified version of a posting on the American Immigration Lawyers Association members’ message board.]

He praCtitioner wHo posteD tHe aBove individual is primarily romantically and sexually qUery is not alone. Each year, Immigration Equal- attracted to individuals of the opposite sex, the ity and the Transgender Law Center receive hundreds of same sex, or both sexes. inquiries involving the unique issues faced by transgender individuals who are noncitizens or who are in relation- It is important to bear in mind that “gender identity” and “sexual ships with noncitizens. Recognizing that this constantly orientation” are two distinct concepts. Thus, a transgender woman Tevolving area of the law is unfamiliar to most practitioners, the may identify as heterosexual if she is attracted to men, as lesbian two organizations obtained a grant from the Arcus Foundation to if she is attracted to women, or as bisexual if she is attracted to write a transgender immigration manual that will detail the unique both sexes. intersection of immigration law and transgender issues, soon to be The fact that an individual is transgender will often be di- published and distributed by AILA Publications (www.ailapubs.org). rectly relevant to one’s immigration issue. It will, therefore, be See this issue for more information. Below are just some of the key necessary for the practitioner to ask personal questions about pointers covered in the manual. legal and medical steps the client has taken to “transition” to the “corrected” gender. The important thing is to let the cli- Transgender 101 ent know why this information is relevant to the case, assure The term “transgender” is broadly used to include individuals whose attorney-client privilege and confidentiality, and ask the questions gender identity or expression is different from the one they were as- respectfully and non-judgmentally. signed at birth. For example, an individual who appeared anatomi- cally male at birth would have an M indicated on the birth certificate and be given a mas- immigration law & the culine-sounding name such as Martin. As Martin grows up, she may realize that she feels female and is uncomfortable with her male anatomy. As an adult, Martin may decide to dress as a female and may transg en undergo medical steps to “transition” to being more female. These Identity Documents medical steps may (or may not) include: taking hormones, having One of the ways in which immigration law intersects with transgen- electrolysis, having implants, and having surgery. Martin may take der identity is when a foreign-born transgender individual obtains on a more feminine sounding name, such as Marie, and may go identity documents from U.S. Department of Homeland Security to court to have her name and gender marker lawfully changed. (DHS). For example, Frances, who was born in Singapore, obtained In transgender parlance, Marie would be called a male-to-female lawful permanent resident (LPR) status and became a naturalized (MTF) transgender woman. USC as a minor through her mother. At the time Frances’s mother naturalized, Frances was still living as a male and using the name ®DID You KnoW? often the term “transsexual” is used she was given at birth, “Robert.” Although Singapore will not al- to denote individuals who are fully living in the opposite low Frances to amend her birth certificate, she will be able to of their birth sex, whereas “transgender” may include a get a Singaporean passport in the female gender (see In re Ahmad, broader range of individuals, including people who are A96-609-556, 2007 WL 3301748 (BIA, 2007)). Since her current simply gender nonconforming (“butch” women, effemi- naturalization certificate says “male,” is she able to obtain an amend- nate men, or androgynous individuals of both sexes). by ed naturalization certificate with her correct name and sex? way of contrast, “sexual orientation” denotes whether an U.S. Citizenship and Immigration Services’ (USCIS) former

28 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008 Associate Director for Operations William Yates released a memoran- dum in 2004, “Adjudication of Peti- tions and Applications Filed by or on Behalf of, or Documents Requested by, Transsexual Individuals,” which purported to spell out USCIS’s policy regarding transgender immigration issues (see AILA InfoNet Doc. No. 04080367). The memo stated that with regard to identity documents, “Any docu- mentation (whether original or re- placement) issued as the result of the adjudication shall reflect the outward, claimed and otherwise docu- mented sex of the applicant at the time of CIS document issuance.” The memo includes the caveat that such corrected documentation would be issued, “provided, of der Client course, that the alien submits ap- propriate medical and other docu- A Practical Guide mentation establishing the alien’s new claimed gender and legal name.” The use of the phrase “appropriate” in the Yates and introduction memo leaves open the question of exactly what is required in order to correct identity docu- ments. Most states in the United States allow by victoria nielson individuals to legally change their names as long as they are not doing so to evade debt- ors, law enforcement, or otherwise commit / ISTOCK fraud (see D. Spade, “Resisting Medicine, OOD H Remodeling Gender,” 18 Berkeley Women’s RIC L.J. 15 at 16, n.4 (2004)). If an individu-

PHOTO E al is in the United States without ➞

SEPTEMBER/OCTOBER 2008 29 Immigration Law & the Transgender Client

lawful status, the state court may require one to serve the name memo essentially undid years of marriage-based jurisprudence. On change petition on DHS, and this may put him or her at risk for its face, the memo did not state that only birth sex would be recog- the initiation of removal proceedings. Once the individual obtains a nized in these cases, but rather any marriage-based petition involv- court order or corrected identity documents in one’s new name from ing anyone who “claims to be transsexual” would be denied. Around the country of origin, it is quite clear that USCIS will consider this the time of this memo, there was a rash of denials of marriage-based “appropriate” documentation for identity document purposes. petitions involving transgender applicants. It is far less clear what DHS will accept as “appropriate” medical Then, in 2005, the BIA issued a monumental precedential deci- documentation. In the above fact pattern, Frances has had complete sion, In re Lovo-Lara, 23 I&N Dec. 746 (BIA 2005), which restored SRS and has a passport from her country of origin that has been the long-standing rule that the marriage would be valid for im- issued in her corrected gender, so she should be able to obtain a migration purposes if it was valid in the state of residence and it naturalization certificate in the female gender. Although her case was valid under the INA. The BIA held that Lovo-Lara, who was a appears clear-cut under the Yates memo, in practice, many frontline U.S.-born, MTF transgender woman who had completed SRS and USCIS officers are completely unfamiliar with transgender issues, had a corrected birth certificate issued by her home state of North and these applications are routinely (wrongfully) denied. Carolina, was a female. The BIA concluded that her North Carolina- The outcome becomes even harder to predict when the applicant based marriage, entered into with a biologically born male citizen has taken some medical steps to correct his or her gender but has of El Salvador, was valid for immigration purposes. not had complete SRS. For example, many female-to-male (FTM) In reaching this conclusion, the BIA first determined that the transgender men have mastectomies but choose not to undergo SRS marriage was valid under the law of the state—North Carolina— because the surgical procedures are not as advanced as they are for where it was entered into and where the couple was domiciled. MTFs (see J. Tobin, “International Justice and Shifting Paradigms: This conclusion was based on the facts that North Carolina did not Note: Against the Surgical Requirement for Change of Legal Sex,” have any statutes or case law prohibiting marriage when a spouse 38 Case W. Res. J. Int’l L. 393, 401 (2006/2007). If the foreign na- is transgender, and it had a statute that affirmatively provided that tional does not complete SRS and does not intend to do so in the transgender individuals could amend their birth certificates to re- future, he or she should still submit evidence demonstrating what flect their corrected gender. Since North Carolina acknowledged medical procedures has been done, as well as a letter from a doctor that Lovo-Lara was female by amending her birth certificate, it fol- explaining that the medical transition is complete. There has been at lowed that North Carolina viewed her marriage to a male as op- least one non-precedential Board of Immigration Appeals (BIA) case posite sex. that recognized an FTM man’s male gender even though he had not The BIA went on to consider whether the marriage was valid completed SRS (see In re Orenn (In re Oren I), A79-761-848, 2004 WL under the INA. Although DHS argued that the Defense of Marriage 1167318 (BIA 2004)). Whether this will suffice for DHS will prob- Act (DOMA) (DOMA §3(a), 110 Stat. at 2419, 1 USC §7 (2000)), ably be analyzed (and fought) on a case-by-case basis. which defines marriage as “only a legal union between one man and one woman as husband and wife,” precluded the recognition Marriage-Based Petitions of a marriage where one spouse was born the same gender as the Perhaps the most politically charged area of immigration law for other, the BIA found DOMA to be inapplicable because Lovo-Lara’s transgender foreign nationals is the realm of marriage-based peti- marriage was opposite sex. tions. To determine whether any marriage is valid for immigration Returning to the initial practitioner’s post on the Message Center, purposes, DHS first looks to whether it was valid under relevant would the marriage of Frances and Leo be recognized for immigra- state law, and then, whether it is valid under immigration law (see tion purposes (assuming that it is otherwise a legal marriage and Adams v. Howerton, 673 F.2d 1036, 1038 (9th Cir. 1982)). In deter- that Leo is otherwise admissible)? Since Frances has had complete mining whether the marriage is valid under the Immigration and SRS and since she has obtained government-issued documents from Nationality Act (INA), the BIA has looked not only at whether the her country of origin recognizing that she is female, the marriage marriage is bona fide, but also whether it violates a strong public should be seen as opposite sex for immigration purposes. The dis- policy consideration. Thus, marriages have been held not to qualify positive question is whether the marriage would be valid under the the applicant for immigration benefits where the marriage was po- state law where the couple is domiciled. If the couple is based in lygamous even when the marriage was valid in the country where New Jersey, which has favorable case law recognizing a marriage entered into (In Re H–, 9 I&N Dec. 640 (BIA 1962)). involving a post-SRS transgender spouse, it should be valid for For many years, legacy Immigration and Naturalization Service immigration purposes (see M.T. v. J.T., 140 N.J. Super. 77, 90 (N.J. and DHS applied these long-standing principles of marriage-based Super. Ct. App. Div. 1976)). If, on the other hand, the couple re- adjudications to applications involving a transgender individual. sides in Florida, which has case law stating that Florida only looks In 2004, however, the Yates memo cited above brought forward a to birth sex to determine whether a marriage is opposite sex, then completely different rule, stating instead that “CIS personnel shall the petition for immigration probably will be denied. not recognize the marriage, or intended marriage, between two in- dividuals where one or both of the parties claims to be transsexual, Asylum regardless of whether either individual has undergone sex reas- If Frances and Leo have the misfortune of submitting their I-130 signment surgery, or is in the process of doing so.” Thus, the Yates while living in a state that does not recognize their marriage, ➞

30 Immigration Law Today SEPTEMBER/OCTOBER 2008

Immigration Law & the Transgender Client

Particular Social Group Although there has not yet been a precedential case that explicitly Do’s & Don’ts Checklist addresses whether transgender identity constitutes a “particular social group,” there have been several Ninth Circuit U.S. Court of in Representing Appeals cases where the applicant is clearly transgender (see Hernan- dez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000); Reyes-Reyes v. Ash- Transgender Clıents croft, 384 F.3d 782 (9th Cir. 2004); Ornelas-Chavez v. Gonzalez, 458 F.3d 1052 (9th Cir. 2006); Morales v. Gonzalez, 478 F.3d 972 (9th Do: Cir. 2007)). In Hernandez-Montiel v. INS, the Ninth Circuit found that “gay men with female sexual identity” comprised a particular social ® Respect your client’s self-identification. If your client identifies as group in Mexico. In that case, even though Hernandez-Montiel male, whether he looks male to you, use the name and pronoun had suffered past persecution, including death threats and rape at that he prefers in your interactions. the hands of a Mexican police officer, the immigration judge and the BIA denied the application because they found that the harm ® Use your client’s chosen name in submissions to DHS. Hernandez-Montiel had suffered was not on the recognized ground of being gay but due to dressing as a woman. While the BIA rec- ® Even if your client has not had a legal name change, you can ognized that sexual orientation was an immutable characteristic or include both names, such as Cristiano “Cristina” Nunez, in your correspondence and applications. one so fundamental to a person’s identity that one should not be required to change it, the BIA was not willing to find that dressing ® Get as much information as you need about your client’s transition in female clothing deserved protection under asylum law. The Ninth to zealously represent him or her in a nonjudgmental, professional Circuit, however, recognized that Hernandez-Montiel’s feminine at- manner. tire was an integral part of the appellant’s “female sexual identity,” thus making it a protected behavior under asylum law. Don’t: Since there have been several cases that have recognized the particular social group of “gay males with female sexual identities,” ® Make assumptions about your client’s transgender identity based it may be strategic to advance this as one particular social group on whether he or she chooses to have surgery or undergo other construction in an applicant’s asylum claim, provided, of course, medical interventions. that the applicant can truthfully state that this is a way that he or she self-identifies. In many cases involving transgender claims for ® Ask personal questions about your client’s transgender identity asylum, it is helpful to provide alternative theories of the case, with unless they are legally relevant to the case. one particular social group being simply, for example, “transgen- der women,” and a second social group formulation that includes ® Conceal your client’s transgender identity from DHS if it is relevant to the case. It is much better to fight complex legal issues honestly sexual orientation, such as “gay men with female sexual identity” than to have a client’s application denied for failure to disclose a or “imputed sexual orientation.” relevant fact. The idea behind these different social group configurations is that even if the applicant does not currently identify as homosexual, if one is returned to one’s country, that person may be viewed by others as gay if would-be persecutors do not recognize his or her sex not only will Leo’s adjustment application be denied, but he may change. Using these alternative social group categories will offer the end up in removal proceedings if he is currently out of status. But applicant a strong legal argument for a cognizable social group in let’s alter the fact pattern slightly and say that in the course of adju- the event the adjudicator refuses to recognize transgender identity dicating the marriage-based petition, DHS discovered that Frances’s as a particular social group. Including sexual orientation also can mother committed fraud in obtaining her LPR status, and therefore, provide the crucial nexus to the intent of the persecutors. Frances never should have been given LPR status. Frances is now placed in removal proceedings. Does Frances have any relief? Meeting the Standard Fortunately, she may have another option to remain in the Even without adding any claim based on sexual orientation, the United States if she fears returning to her country because of her particular social group of “transgender identity” should meet the transgender identity. Since 1994, the BIA has recognized sexual standard set forth in Matter of Acosta, 19 I&N Dec. 211, 233 (BIA orientation as potentially forming a “particular social group.” Since 1985) as being an aspect of the individual that one “either cannot the Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990), which change, or should not be required to change because it is funda- granted withholding of deportation to a Cuban citizen who had mental to their individual identities or consciences.” In some ways, been forced to spend time in a labor camp and check in regularly cases involving transgender asylum applicants are more likely to with government officials because he was a gay man, there have succeed than cases based on sexual orientation. One reason for been more than a dozen precedential federal circuit court decisions this is that while it can be extremely difficult for a gay or lesbian concerning sexual orientation-based asylum claims. asylum-seeker to prove his or her sexual orientation to a skeptical

32 Immigration Law Today SEPTEMBER/OCTOBER 2008 adjudicator, in cases of transgender identity, there is generally some Transgender asylum-seekers also may qualify under the “exceptional extrinsic proof—such as medical documentation, or even outward circumstances” exception if they suffer from mental health problems appearance—clearly showing the individual as transgender. More- related to persecution they may have suffered in the past, depres- over, in many countries, transgender individuals continue to face sion, or other issues relating to the applicant’s own difficulties in disproportionately high rates of discrimination, harassment, and accepting his or her transgender identity. violence, making it easier to prove the danger the applicant will Every claim for asylum is based so uniquely on the individual face if returned to his or her country of origin. facts of the case that it is impossible to say if Frances (from the Another issue that disproportionately affects both sexual ori- fact pattern above) has a strong asylum claim. Her case would be entation and transgender-based claims for asylum is the one-year strongest if she were filing within one year of her last entry into the filing deadline. While most individuals fleeing persecution based United States and if she had suffered persecution in the past on on political opinion probably have some notion that they can seek account of her transgender identity. refuge in the United States, for individuals who fear persecution based on their gender identity, it is far less likely that they will be ®Practice Pointer: Strong claims for persecution aware of the possibility of seeking asylum on this ground. If a trans- could be based on her having been detained, beaten, gender foreign national has missed the one-year filing deadline, he threatened, or sexually assaulted by the police. Likewise, or she may still be able to succeed under one of the exceptions to if private actors had subjected her to physical harm or the rule. If the applicant recently has taken medical steps to transi- serious threats to her safety, if she could demonstrate tion, such as an MTF woman obtaining breast implants, she may that her government is unwilling or unable to protect be able to argue that she falls under the “changed circumstances” her, then she may prevail. The outcome of her case would exception. Essentially, she would be arguing that now that she has hinge on the details of what happened to her in the past taken steps to irrevocably alter her body, it would be impossible for as well as on the documented country conditions regard- her to hide her transgender identity if she is returned to her coun- ing treatment of transgender individuals. try. This recent change puts her at increased risk for persecution. ➞

SEPTEMBER/OCTOBER 2008 33 immigration law & the transgender Client

New from AILA Publications! Call to Challenge A practitioner who is confronted with a couple like Frances and Leo should not feel intimidated Immigration Law by the unique challenges of immigration cases involving transgender individuals. Rather, the & the Transgender Client practitioner should feel excited to be presented ILA is pleased to present Immigration Law & the with the opportunity to delve into a cutting-edge Transgender Client—the first immigration manual and developing area of the law. Each time an im- Athat tackles the unique issues faced by transgender migration practitioner represents a transgender individuals who are noncitizens or who are in relationships client, he or she should expect to educate the with noncitizens. Co-authored by Immigration Equality adjudicating officer or judge about transgender and the Transgender Law Center, this manual focuses on: issues. By successfully doing so, the practitioner may • Terms and etiquette used when dealing with help develop this area of the law, while forever improving transgender clients the life of the individual client. ILT • Family-based petitions involving transgender couples victOria neilsOn is the legal director of Immigration • Asylum for transgender clients Equality, a national organization based in New York that fights for equality under the immigration law for lesbian, • Dealing with detention dilemmas for transgender clients and so much more! gay, bisexual, transgender, and HIV-positive individuals.

Immigration Law & the Transgender Client Articles in ILT do not necessarily reflect the views of the AILA Member Price: $49, Regular Price: $69, Stock code: 52-48 American Immigration Lawyers Association. For more information, visit www.ailapubs.org.

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Billing Strategies for Immigration Lawyers

The attorney-client relationship relies on trust—aside from legal skills and abilities—especially when it comes to billing and fees. To establish a relationship of trust, you must ascertain and manage the client’s expectations, set an appropriate and client-friendly fee, and establish good billing procedures. Every lawyer wants clients who are happy and loyal, and who will make business referrals and pay in full and on time. The way a lawyer approaches billing can have a profound effect on garnering these kinds of clients, and exploring these matters from the client’s perspective will greatly improve the chances of having a satis- fied, well-paying client. Initial Consultation hospital through Form I-140 immigrant only, or are you expected to perform ad- There are many ways to calculate fees, petition for an alien worker for a perma- ditional services? Does the fee include a but no matter the method, it is impera- nent position, and finally, through the request for evidence or an appeal? Which tive to have an in-depth discussion with adjustment status or consular processing petitions or visa applications are covered the client at the beginning of the engage- stage of the permanent residence. After by your fee, and which will be the subject ment. This initial discussion can set the of a separate fee agreement? tone for the entire relationship. Under- informing clients about costs and fees or Being able to Identify the Desired Result over-stating the likelihood of a particular Identify a desired result and discuss the outcome risks damaging the client’s trust. communicate with likelihood of reaching that result with the It is your job to determine the expecta- client. The client probably has little ex- tions of each client and continue to man- a client in his or her perience with the law and may not know age the client’s expectation throughout native language what a typical engagement involves. Of- the whole legal process. fer clients a fact sheet, timeline, and/or or explaining the list of frequently asked questions that will Define the Scope of Engagement help explain the process and aid in their Be clear about the scope of the work you situation in terms the decision-making. are going to perform. Include the antici- client can understand Creating a case plan or timeline helps pated length of the engagement and the to make the client more familiar and stages involved. This is particularly im- also adds value. comfortable with the process, explains portant for immigration lawyers, since how each step contributes to the client’s the attorney-client relationship can last desired outcome, and enables the client for several years, and may include long that, the doctor might wish to become a to understand the value of the services periods of “inactivity” while waiting for U.S. citizen and go through the natural- you provide. Giving them something to approval of petitions. ization process using Form N-400. take with them that they can refer back Immigration lawyers working with Considering all of the complications, to will help “sell” not only your services, clients in the United States for employ- steps, and stages that many immigration but your fee. ment purposes may work with recruiting clients must go through, it is imperative agencies, employers, or other attorneys that you are clear at the outset about what Manage Client’s Expectations through several different steps or appli- you are agreeing to do for the client and Make time to listen to the clients and cations. For example, if your client is a what it will cost. For example, does your what they expect from working with you. doctor coming to the United States to agreement cover just the I-129 and H-1B Sometimes, discussing the client’s expec- work for a particular hospital, you may be visa, or does your agreement include all tations in-depth leads to a determination working with the hospital, its lawyer, and steps through naturalization? Is the cli- that the client’s expectations are unre- the client through filing Form I-129 peti- ent retaining you for purposes of prepar- alistic or do not align with your way of tion for a nonimmigrant worker, with the ing documents, petitions, or applications practicing law.

36 Immigration Law Today SEPTEMBER/OCTOBER 2008 If a client’s desired result is unlikely or unrealistic, it is im- Establishing value also requires that you differentiate your- perative that you explain why. It is always easier to deal with self and your service using the client’s values and priorities. Make these issues head-on at the beginning of the engagement rather yourself irreplaceable and create loyal clients by taking the time to than to explain them to a client after work has commenced. If ascertain the key elements that are important to your clients and the client is unwilling to accept the reality of the situation, you focus your services around those key elements to set you apart from may want to consider not accepting the client. others. Articulate the benefits your clients will receive as a result of Be sure to explore the client’s expectations in terms of service as working with you. Keep in mind that what you’re really selling is well. How often will the client hear from you and in what manner of your expertise and your ability to help the client reach his or her communication? Will they talk to you or to a paralegal? The nature goal or eliminate or reduce his or her problems. The more valuable of immigration law also requires that you establish expectations the client considers the representation and the outcome to be, the with clients up front about waiting periods. For example, how long less price-sensitive the client will be. should the client expect to wait for a response to his or her petition Part of differentiating yourself as an immigration lawyer requires or application? that you educate the client about why it is necessary for the client to Since the law is constantly changing, managing expectations also employ an attorney. Make sure that you can articulate the reasons requires that you inform clients that regulations change over time. why an experienced immigration lawyer is necessary to help the As such, what might have been true in the past (for their friends, client navigate the intricacies, forms, and stages of the immigra- family, etc.) may not be true today. The advice or plan of action that tion process. Show clients the pitfalls of improper advice or poorly you discuss with the client now may be different in the future as a drafted petitions; discuss the cost and waiting periods of appeals result of changes in the law or in the current regulations. As such, and the value of getting a petition granted the first time. clients’ expectations must be managed throughout the engagement, Being able to communicate with a client in his or her ➞ and clients must be advised immediately when changes in the law affect their status or the plan of action that you’ve created.

Establish Value Most clients will experience some “sticker shock” when they first learn of your fees. The key is to get the client to recognize the sticker shock and be willing to talk with you about your services anyway, especially if the client has the option to wait to make a decision to retain a lawyer. Once you have determined the client’s needs, wants, and ex- pectations, you can discuss your services and your fees to establish value, which takes the client’s desired result one step further. It requires you to explore the far-reaching implications of the outcome of the matter and of the process itself. Your job is to help the client realize how important the matter or their desired outcome is, and how significant your representation is in reaching that goal. If you can work with the client to articulate that value, the sticker shock should be only temporary. Value has two parts: value of the outcome and value of your ser- vices to the client. Even if the client’s desired outcome isn’t reached, your services have value. Value, like desired outcome, may be intan- gible. Each client’s circumstances, background, goals, and perspec- tives are different. These factors will affect what the client values and the course of action the client wishes to pursue. And, of course, all of these will affect the fee. If possible, have the client quantify his or her desired outcome. If the desired outcome can’t be easily quantified in a “hard” number or dollar figure, ask questions to establish what the engagement means to the client. Is there some intangible, emotional attachment to the outcome? If the client’s immigration status changes, it might have a significant impact on the client’s family and their livelihood.

SEPTEMBER/OCTOBER 2008 37 PRaCTICe ManageMenT BILLING STRATEGIES FOR IMMIGRATION LAWYERS

native language or explaining the situation and the notary public in the United States. quired to withdraw from the representation in terms the client can understand also adds Unfortunately, some unscrupulous notaries of both parties. You must warn clients that value. Your interactions with employers, advertise themselves as notarios to capitalize there are limits to your confidentiality in a other attorneys, and recruiters on the client’s on this confusion and purport to provide dual representation situation and that you behalf are other elements of value. Many of immigration law services despite not being are required to disclose information to both these issues might be “invisible” to clients licensed attorneys and having little or no parties. unless you discuss them during your initial knowledge of U.S. immigration law. consultation. Another area of concern involves dual Client-Friendly Fee Structures representation, such as in employment- In a successful lawyer-client relationship, Dispel objections and based cases. In a situation in which you both sides feel that they got a fair deal. You Misconceptions provide legal advice to or receive confiden- must be able to effectively communicate Clients come with pre-conceived notions tial information from both the corporate to your client how your pricing is tied to about their case and the legal process, and employer and the potential employee, they the attributes the client most highly values. objections or misconceptions about lawyers, are both your clients. They both must under- There is no one right fee structure and the their services, and their fees. Explore these stand that you have a duty to communicate structure might change depending on a cli- ideas with clients at the outset to correct any with and are ethically obligated to consider ent’s needs and ability to pay. misconceptions and address any underlying the interests of both parties, regardless of objections or fears. who pays your fee. You must explain that if Fixed Fees One particular area of concern is the and when a conflict of interest arises, you You can use fixed fees even though it is not confusion over the Latin American notar- will be unable to take sides, and that if the always possible to anticipate all of the costs io—in some countries a licensed lawyer— conflict cannot be resolved, you will be re- or fees in a particular matter. Set a fixed fee

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Put It in Writing: The Importance of the Engagement/Agreement Letter

any ethics codes require a written engagement letter or agreement in place before legal services can be provided. However, all attorneys should prepare a written engagement agreement, regardless of whether their jurisdiction M requires it. There are certain points that should be covered in this letter, with the most crucial ones being: n Your rates and how they will be calculated n The scope of services to be provided; (flat, fixed, staged, etc.); n The circumstances and variables that n Whether there is a maximum or upper may affect the fee; limit to your fees; n Additional costs and expenses that n Whether the fee is tied to results; may be incurred; and n The frequency of bills and when payment n Information about withdrawal for is due (upon receipt, within 15 days, etc.); nonpayment or other consequences, n The format of bills and what they including interest fees charged for will contain; late payment.

Explain each of these points to your client and have him or her initial the fee provisions in the agreement. For sample agreements, see AILA's Immigration Practice Toolbox, www.ailapubs.org.

based on your experience and the information available at the begin- ning of the engagement. Use “change orders” or “supplemental ser- vices agreements” when circumstances change or unforeseen issues DID YOU RECEIVE arise. Advise the client of potential factors that would change the A PERM AUDIT outcome, the fee, or the time it will take to conclude the matter. QUESTIONING Staged Fees BUSINESS NECESSITY? Even if you can’t quote a fee upfront for the entire matter, you may be able to offer the client a fixed fee in stages or bill on a task-based Silvergate Evaluations provides specialized expert letters which establish business necessity for basis. At the beginning of each stage, quote a fee for that stage an offered position. These letters demonstrate based on what already has occurred and what you anticipate for that "the job duties and requirements bear the next stage. When the scope of the work and the fee are agreed a reasonable relationship to the occupation in the upon before the work is performed, the client won’t be surprised context of the employer's business, and are essential to perform the job in a reasonable by the bill later. manner", in accordance with regulations. Requirements exceed the SVP? We provide real-world Options opinions from real-world experts that clearly illustrate Consider providing the client with options that control the amount why an employer's stated minimum requirements are usual and acceptable due to the business necessity of of services and the fee level. Package some services at a lower fee the employer. than what the services would cost separately, or provide additional Silvergate Evaluations is the preeminent provider services to the client at a premium fee. Try establishing a minimum of specialized expert opinion letters for complex fee with the basics of your services and then offer some premium immigration matters. options that provide higher value and are more aggressively priced. Please contact us today for a free preliminary assessment. Consider incorporating unlimited access to you within your premi- um package, thereby reducing the client’s anxiety about additional

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SEPTEMBER/OCTOBER 2008 39 PRaCTICe ManageMenT BILLING STRATEGIES FOR IMMIGRATION LAWYERS

Only from AILA Publications: repair. Most lawyers already effective- ly guarantee satisfaction by reducing For Your Clients! the fee, writing off or writing down egular-sized business cards have a way of getting the bill, discounting or foregoing col- lost or misplaced. Information from a phone call is lection if the client complains or fails R easily forgotten or misunderstood. BUT, a profession- to pay. But those “guarantees” are given ally printed brochure will be retained for future reference. after the client is already dissatisfied or Written in layperson’s terms, AILA’s Client Brochures has failed to pay. By then, it is usually too help clients understand visa categories and requirements in late to salvage the relationship. Guaran- a clear and concise manner. These brochures provide a basic overview of various visas, including a detailed description of teeing service upfront increases the client’s the process and eligibility requirements. Designed to assist trust level without changing the practical you in helping your clients, these brochures are informative effect on your services. and easy-to-understand. You can only guarantee what you can control. Never guarantee results—they’re Buy multiple packs and receive a discount! outside of your control (and such a guaran- Pack of 50: Member Price: $25/Regular Price: $37 tee would likely violate your state’s ethical Purchase 2–5 and pay: Member Price: $22/Regular Price: $32 rules). You can guarantee a certain level of Purchase more than 6 and pay: Member Price: $19/Regular Price: $27 service and commitment to your clients. Let AILA help you promote your services to existing and potential clients. Order your Client Brochures today! For more information, see www.ailapubs.org. Explaining the Fee The best time to discuss fees is at the begin- ning of the engagement. Your services are

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40 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008 always more valuable to the client before the work has been performed. A client that starts NEED HELP ON THE BORDER? off unwilling to pay for your services when his or her problem has yet to be solved will not become more willing to pay in the future. Quan, Burdette & Perez, P.C. Clients are not that concerned about process—they are concerned with service and results. Ranked by Chambers USA (2007) Communicate your fees in terms of the value the client will receive rather than on your cost as the #1 immigration law firm in to provide those services. Discuss how your services will advance the client’s goals. Texas, is available to assist with court representation in the Rio Basic Billing Practices and Systems Grande Valley and/or at the Use billing as an opportunity to communicate and reinforce the value you provide to your U.S. Consulates in Mexico. clients by detailing the work performed and what it means to the client. If possible, get (Port Isabel, Harlingen, paid upfront or use evergreen retainers in which the client replenishes the original retainer Raymondville) as work is performed (subject to your jurisdiction’s ethical rules). If you bill in stages, show the client which stage you’re in and why that stage is important to the client’s desired Contact: outcome. Highlight your services in your bills, especially the services that set you apart Raed Gonzalez, from your competition. Managing Attorney A good billing entry itemizes who performed the work, what was done, when, and why. Michael Dominguez, For example, rather than “telephone call to client” say, “telephone conference with client Associate Attorney regarding status of petition for change of immigration status.” Bill while services are fresh in the client’s mind, particularly at the end of an engagement; 5125 S. McColl Rd, Suite B don’t wait until your regular billing cycle is completed. Include the balance, due date, and Edinburg, TX 78539 preferred payment method on every bill. Tell the client who to contact with billing ques- tions and how to contact them. Tel: (956) 661-9888 Even if you receive payment upfront, document your services and the status of the re- Fax: (956) 668-1182 tainer fee for the client. Don’t wait until the retainer is exhausted before alerting the client www.quanlaw.com (Headquarters in Houston, TX) that additional payment is due. If unanticipated services arise, discuss them with the client before you send them an additional bill. If you haven’t talked to your clients about what’s happening with their matter in awhile, do so before the bill goes out—the impres- DID YOU RECEIVE sion that the lawyer has time to bill them but not to communicate AN RFE ON AN directly with them about their case can be aggravating to clients. Since immigration cases necessarily involve long wait times, periodi- H-1B PETITION cally contact the client to let him or her know you have not forgotten QUESTIONING A about the case, but that you have not yet received a response or ad- ditional information on the case. If possible, tell the client when you SPECIALTY OCCUPATION? expect to receive a response. Advise clients immediately of a change Silvergate Evaluations provides expert opinion letters in status or a change in the law that will affect their matter. that establish an offered H-1B position as a USCIS Your ability to collect on any bill declines over time. Develop a Specialty Occupation, which requires the minimum attainment of a Bachelor’s Degree. These letters follow-up system for your accounts receivable. Send a follow-up demonstrate that the "nature of the position's specific letter a few days after payment is due. If no payment is received, responsibilities and knowledge is so specialized and follow-up in writing no more than 15 days later. Call the client complex that knowledge required to perform these once bills are 30 days past due. Keeping the client’s perspective duties is usually associated with the attainment of a Bachelor’s degree", in accordance with regulations. in mind when you structure your fees and talking to clients about your services and your fee arrangement can reinforce the trust in the attorney-client relationship. ILT Silvergate Evaluations is the preeminent provider Allison C. Shields, president of Legal Ease Consulting, Inc., of specialized expert opinion letters for complex immigration matters. helps lawyers attract and retain their ideal clients, focus on Please contact us today for a free preliminary assessment. high-value tasks, and get more done in less time. Read her blog at www.LegalEaseConsulting.com or visit her website at www.LawyerMeltdown.com. SILVERGATE E VALUATIONS I NC. WWW.SILVERGATEEVALUATIONS.COM

Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. 2833 SMITH AVE. SUITE 222 • BALTIMORE, MD 21209 410.358.3588 • FAX: 410.358.1167 [email protected]

SEPTEMBER/OCTOBER 2008 41 ReaDeR’S CoRneR DAN H. BERGER & REBECCA A. SCHAPIRO

Cruisin’ Africa: A Semester on Safari and Two Years in Mali

TheRe IS SoMeThIng MYSTeRIouS anD FaSCInaTIng about the vast continent of Africa and that it takes a simultaneous review of two books to scratch the surface of its rich cultures and heritage. Africa on Six Wheels: A Semester on Safari (University of Nebraska Press; $17.95, paperback) chronicles a unique study-abroad pro- gram of travel through South and East Africa by van. Monique and the Mango Rains: Two Years with a Midwife in Mali (Waveland Press; $17.95, paperback) traces the adventures of a Peace Corps volunteer in a West African village from 1989 to 1991. The books share the common themes of African hospitality to U.S. visitors and the visitors’ challenges and rewards in adapting to the local lifestyle and con- ditions. These books will make all but hearty travelers think twice about venturing to rural Africa, but readers will enjoy being transported to those countries through these two accounts.

a Semester on Safari Professor Betty Levitov had her work cut out for her when she proposed a semes- ter-long course involving travel through Africa. Not only were the logistics com- plicated, but she would have to convince both the administration of Doane Col- lege in Nebraska and the parents of stu- dents (mostly from Nebraska and many of whom had never traveled outside the United States) to allow the trip in the about] lawsuits, ru- first place. It was impossible to guaran- inous financial settlements, tee a no-risk trip, so Levitov hosted a and damaging publicity. meeting with the parents at her house, Thankfully, the students faced serving them honest, open answers and no major problems on the trips, good food to smooth the way. aside from a healthy share of mi- The course, entitled “Introduction nor crime and unpleasant illnesses to Africa,” begins with the students get- soldier. The students also do their best that passed with time. This is perhaps ting a blank map of the continent to fill to learn functional Swahili. The open- because they mostly avoided larger cities in—“requiring perfect spelling as well as ness of the local culture makes these beset with higher crime rates, more overt precise locations of fifty-three countries.” connections easy to coordinate and ex- poverty, and fewer avenues in getting to After some lectures on African history, tremely rewarding. During the trip, Levi- know people. Aside from Sudan, Soma- the students leave for Kenya. From there, tov periodically imagines the administra- lia, Eritrea, and Libya, all other African they travel south through Tanzania, Ma- tors’ reactions: countries are on Levitov’s list to visit at lawi, Zambia, Zimbabwe, Botswana, future semester travels. When the students are bungee jump- Namibia, and South Africa. On the way, ing from the Victoria Falls Bridge or each student spends one week in an “ap- we are sand-boarding on the Namib- Two Years in Mali prenticeship,” shadowing a member of ian dunes, I think, “What if the vice Monique and the Mango Rains has a very the community, such as a teacher, arti- president for financial affairs could different style from Africa on Wheels. san, fisherman, cook, street vendor, or see us now?” … [They would worry Written more like a literary travelogue,

42 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008 Kris Holloway describes very little about her life or “finding her- self” in Africa through her work as a Peace Corps volunteer al- most 20 years ago. The book focuses on one very small village, Nampossela, rather than the whole continent, and tells the story of Monique, its unsung hero. In her early twenties, Monique provides the only medical care her village sees in a run-down clinic and birthing center. She is trapped in a marriage with a man who mostly ignores her and co-opts her salary to buy a radio, scooter, and other unnecessary expenditures. The difficulty of life in the village echoes throughout the book. At a funeral for an elderly woman, Holloway writes: People begin to dance, and as they did, the strangeness began to fade. I had never lived so close to death. Death here was not quarantined, something that only took place in slaughterhouses and hospitals, [and] that only occasionally escaped in the form of car accidents. It was in every home, all the time. And for a person to have lived this long, in a place where life is frequently cut short, it was truly something to celebrate. DID YOU RECEIVE Yet, as with Semester on Safari, the openness of the culture drew Holloway in. She “loved living in an inviting community, where AN RFE ON AN you were always asked to share food and drink, where you spent L-1A PETITION time greeting and joking rather than avoiding others because of QUESTIONING a busy schedule. Generations intermingled, there was always an excuse for celebrating, and death was sad, but not feared.” EXECUTIVE OR Many specific aspects of life in the village were eye-opening MANAGERIAL CAPACITY? to Holloway as a visitor and to the readers. The lack of knowl- edge about health (hydration, nutrition, etc.), especially about Silvergate Evaluations provides expert opinion letters caring for infants and young children, is surprising (keeping in for L-1A cases that assess an offered position's responsibilities and establish the position as Executive mind the book takes place almost 20 years ago). Also, the way and/or Managerial. We clearly describe how the young children are cared for differs markedly from child-centric responsibilities and characteristics of the position America. For example, Monique carries her son, Basil, strapped match the requirements of the USCIS for an Executive to her back while she delivers babies. and/or Managerial position. Overall, Monique and the Mango Rains is relatively nonjudgmen- tal. At one point, Holloway realizes that the women she has seen giving birth have been circumcised (excised), and that is the reason Silvergate Evaluations is the preeminent provider of specialized expert opinion letters for complex there is so much tearing in childbirth. Holloway and Monique dis- immigration matters. cuss these issues later in the book in a casual, open way. A portrait Please contact us today for a free preliminary assessment. of their deep friendship emerges in the retelling of conversations like these.

Even though Holloway, as the Peace Corps volunteer, is supposed SILVERGATE E VALUATIONS I NC. to be bringing knowledge and assistance, Monique is the one with WWW.SILVERGATEEVALUATIONS.COM the actual medical knowledge, which creates an interesting dynamic. The one way in which Holloway can do more to assist Monique is as 2833 SMITH AVE. SUITE 222 • BALTIMORE, MD 21209 a liaison to village elders on behalf of the clinic—something that is 410.358.3588 • FAX: 410.358.1167 only possible because of her status as a Westerner. ➞ [email protected]

SEPTEMBER/OCTOBER 2008 43 READER’S CORNER Cruisin’ Africa

Authors’ Q&As

an Berger spoke to Levitov and Holloway, who candidly talked about their writings Dand the impact the books have had on their lives as well as those around them. Still Cruisin’ Magazine/Summer07/18744 and www.doane.edu/Academics/ Programs/doane-corps. Levitov still runs the “Introduction to Africa” course and is still exploring new paths with each trip. She also has taken an alumni group, ages 26–71; a higher-end adventure with a private bus Mali Encounters instead of the old van, and pricier spice tours and gorilla safaris. Because Holloway lives in Berger’s town in Massachusetts, he However, the effect on the participants was as striking as with had the chance to meet her in person. Since the book was writ- the college students. The trip opened their eyes to life in Africa. ten, Mali has become a democracy, the radio is less controlled, Levitov noted that finding someone to take over the program is a cell phones and the Internet have brought connections between challenge, as faculty members with children are less able to take the bigger cities and the Western media, and global climate extended trips on the road. change has wreaked havoc with the staple cotton crop.

Q: How many people over the years have asked your help in Q: What was Mali like as seen by a Westerner? getting to the United States? A: I was introduced to a different world. None of my sisters [was] A: Very few. I am helping [to] bring a wildlife guide to Doane for a betrothed at age five and married at age 17 as Monique was. residency, [but] no one else. The philosophy of my program is to learn from, rather than change, the places I and my students visit. Q: Did Malians want to obtain U.S. visas?

Q: Over the years, have you found ways to bring greater A: Very few did, and the ones who had visited found the security and peace of mind to the worried parents and United States exciting, prosperous, and green, but also cold administrators? and expensive.

A: Little has changed. I still do not even bring a cell phone (but Q: How do you balance helping without trying to change can now easily borrow one), although e-mail makes it easier to the village to Western standards? update people in the United States of our adventures. I get used to being without 9-1-1 service. Even if there is an emergency, A: I am involved in raising money for a new clinic—the goal is the group is often a day’s trip from a hospital, and treating a to help out the first year, then less the second year, and finally major illness or accident would be a challenge. I feel that stu- making it self-sustaining so it becomes a local venture. The dents on my trips are actually more careful than students on a people in the village have guided the process, choosing dental study-abroad program in Europe because the risks in Africa are care over birth control, and specifically asking for separate real and palpable. birthing and sick patient areas.

Interestingly, Doane University has recently created the For more information about the books reviewed and the Doane Corps, a program like the Peace Corps, for alumni to authors, see www.nebraskapress.unl.edu/product/Africa-on-Six- do after-graduation service in Africa. For more information, Wheels,673129.aspx and www.moniquemangorains.com. see www.doane.edu/Alumni-Donors/Alumni/Stay_Connected/

After Holloway’s Peace Corps service ended, Monique made Less Is More a trip to the United States where, together, they conducted Levitov and Holloway stress the minimal number of posses- presentations, traveled, and obtained some very much-needed sions in small African villages and how this affected the Ameri- dental work for Monique (the dentist noted that he could not can visitors. Levitov writes that she even felt self-conscious believe how much pain she had lived with). Not long after she about bringing a guidebook (standard fare for a Western trav- returned to Africa, Monique became pregnant for the fifth time eler) because, “If you can’t eat it, wear it, sell it, or use it for and died in childbirth. Holloway wanted to understand the changing a tire, it’s not truly valuable in Africa.” She meets a medical reasons, but gave in to the local culture by accepting 90-year-old man, whose sole possession is a long stick that he the peacefulness of her departure as described in a series of had owned all his life—it was used for “farming, hammering, beautifully written letters from Monique’s family. Despite Mo- fixing, securing, and walking.” nique’s attempts to obtain and use birth control (which was very Both books also note the different sense of time in Africa, uncommon at that time), she was not able to avoid her final, where people are not tied to the clock as Westerners are. This tragic pregnancy. makes it nearly impossible for Levitov to plan when they would

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be in each town—a driver arrives 11 days late after spending days negotiating at a border-crossing for the right to pass, the van repairs depend on getting parts, etc. In Tanzania, she notes NEW RELEASES that she “never figured out the best times to find food. At lunch, FROM AILA PUBLICATIONS the ingredients might not be bought from the market, although the proprietor will not admit it. He takes my order, disappears into the back room, and returns to sit in his chair and drink Kurzban’s Immigration Law chai.” She learns to use the waiting periods as opportunities to Sourcebook, 11th Edition talk to people and get to know them—in the true spirit of the $379 Regular Price local culture. Finally, the books stress the communal nature of life in Africa. $279 AILA Member Price Levitov noted that there is “no alone time in Africa.” Relatives, friends, and neighbors always fill one’s house and one’s days. The idea of “I need my space” is a U.S. concept that she did not The International appreciate until she was without it. Given that both authors are Adoption Sourcebook non-Muslim, foreign women, it is surprising how few times they $129 Regular Price were excluded from anything. Once in Tanzania, Levitov was $89 AILA Member Price kept out of a mosque she wanted to visit, while village males excluded Holloway from some games and meetings. Otherwise, Coming Fall 2008 the students and authors were welcomed and included through most of their travels. ILT Immigration Options for Essential Workers dan h. berger is chair of the American Immigration Lawyers $129 Regular Price Association Board of Publications and named partner at Curran & Berger $79 AILA Member Price in Northampton, MA, where rebecca schapirO is a paralegal. Visit www.ailapubs.org for more information, including the tables of contents, indexes, and more, or call 1-800-982-2839 to order. Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. AILA Publications—Written ... Edited ... Published by Immigration Lawyers

SEPTEMBER/OCTOBER 2008 45 STATE SPOTLIGHT MAYOR Michael Wildes

Local Law Enforcement and Immigration Community Conflict in the Making

Mayor Donald Cresitello of Morristown, NJ, recently began nego- will be difficult for these women to meet tiations with U.S. Immigration and Customs Enforcement (ICE) to deputize their burden of proof to obtain legal sta- tus through the battered-spouse petition Morristown police officers to enforce federal immigration laws. As a mayor procedure. Instead, they will remain in in a neighboring New Jersey municipality, this author understands what may their abusive relationships, and the vio- compel Cresitello to take these drastic steps. However, while there certainly lence will continue undetected (see Her- are concerns about national security, the law has always placed immigration nandez v. Ashcroft, 345 F.3d 824, 841 (9th Cir. 2003)). enforcement in the exclusive jurisdiction of the federal government. Efforts to secure this nation from those hostile to it must be tempered by respect for Burgeoning Concern its national heritage and commitment to civil rights. The plan to deputize lo- Cresitello’s efforts are widely opposed by cal police to enforce federal immigration laws is contrary to those values, and major law enforcement organizations, including the International Association Cresitello should reconsider his compact with ICE. of Chiefs of Police and the Major Cities Negative Impact capability, reversing years of local police Police Chiefs Association. Local officers At first blush, the ability of local po- efforts to gain the trust of immigrant often find their definitive duty to their lice to enforce federal immigration law communities. community compromised when they seems like a viable solution to our na- Immigrants who are victims of do- are compelled to enforce federal immi- tion’s challenge of illegal immigration. mestic violence will be particularly im- gration law. However, piling the additional duties of pacted by this deputizing of local law “As a law enforcement officer, my immigration enforcement on the already enforcement. An advocate for battered number one responsibility is community strained local police departments will immigrants at the St. Paul Domestic policing and community safety. It’s hard do little more than force illegal immi- Abuse Intervention Project noted that to accomplish that goal if the commu- grants further into society’s shadows. local police involvement in immigration nity is afraid to speak with the police,” The negative effects resulting from this enforcement increases fear in “already expressed Officer Nicolas Yanez, presi- policy are significant. vulnerable communities.” dent of the Omaha chapter of the Latino The job of local police is to investi- “Most immigrants in battered women Peace Officers Association. “For example, gate and prosecute crime. Enforcement shelters are too afraid to call police, even [] witnesses or victims of crime are afraid of immigration laws by local police if they have been badly assaulted by their to come forward to report crimes for fear will discourage and even prevent un- partner.” (See G. Pendleton, “Local Police we might take action against them based documented immigrants from access- Enforcement of Immigration Law and its on their immigration status.” ing police services, and will deprive on Victims of Domestic Violence,” Amer- Fear undermines the trust and au- police of the benefit of immigrants’ ican Bar Association Commission on thorities that police officers rely on to do cooperation in fighting and investi- Domestic Violence at www.immigration their job effectively, and members of local gating crime. forum.org.) law enforcement are frustrated with the Undocumented immigrants already These immigrants, who are often difficult position thrust upon them. are wary of law enforcement authority. By women, could potentially obtain legal Hillsdale, NJ, Police Department Sgt. deputizing local police to enforce immi- status in the United States via the bat- Robert Francaviglia said, “We’ve been gration laws, undocumented immigrants tered-spouse petition or the U-visa pro- trying to get the immigrants in our town will not come forward to report crime, cess. However, if these women are afraid to believe that we’re not like many of the and will be less likely to offer informa- to report the abuse to the local authori- governments in their old countries, gov- tion or to cooperate with police out of ties for fear of detention by ICE before ernments that were corrupt and want to fear of revealing their immigration status. they can file a petition with U.S. Citizen- railroad them, not serve them.” Such alienation of immigrant populations ship and Immigration Services, then they Police chiefs from around the coun- will only lead to increased crime and de- will have no police records documenting try have echoed such concerns (see a creased intelligence and crime-fighting the abuse they suffered. As a result, it compilation of these concerns at www.

46 Immigration Law Today SEPTEMBER/OCTOBER 2008 bordc.org/resources/police.pdf). Local police police. Requiring local police to pick up people who could get arrested in Palisades have worked hard to gain the trust and the slack of federal immigration agencies Park alone. You’re talking maybe having cooperation of America’s growing immi- will only divert crime-fighting resources to deal with county and federal courts. grant population. Morristown police have without solving the problem of illegal im- [T]he point about doing this to fight ter- undoubtedly done the same. By proceed- migration. This misguided solution raises rorism sounds like a decent idea, but when ing with the ICE agreement to enforce im- practical concerns and questions heralded you go deeper, you see the possible ef- migration laws locally, Morristown police some time ago by Michael Vietri, Chief of fects.” (See “Policing Immigration,” Bergen stand to exchange this hard-earned part- Police of Palisades Park, NJ. Record, April 22, 2002.) nership for heightened hostility, under- “If the Justice Department deputizes us reporting of crime, impediments to inves- and we make an arrest, then what do we Civil Rights Violation tigations, and increased liability for civil do? Send them to the county jail? Now I’d Perhaps most importantly, local police rights violations. be paying my officers to go to the county run the risk of violating the civil rights Furthermore, adding immigration courthouse or jail, or worse, farther away of both legal and illegal immigrants when enforcement to the ambit of local police to Newark? Who’s going to reimburse enforcing immigration laws. A federal duties will strain the resources of local us?” asked Vieteri. “There are so many district judge held that the city of ➞

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SEPTEMBER/OCTOBER 2008 47 STATE SPOTLIGHT Local Law Enforcement and Immigration

Mamaroneck, NY, violated the equal pro- fact that the laborers were Latinos was gress must enact comprehensive immigra- tection rights of Latino day laborers when a “motivating factor” in this campaign. tion reform that incorporates legalization, the city implemented a law enforcement The campaign was impermissibly targeted appropriate legal channels for hiring low- campaign intended to reduce their pres- against Latinos on the basis of race, and skilled workers, and increased employer ence (see Doe v. Village of Mamaroneck, 462 thus, constituted a discriminatory appli- enforcement and sanctions. Until then, it F. Supp.2d 520, 550 (SDNY 2006)). cation of a facially neutral policy. There- would be wise to maintain immigrant com- Historically, Mamaroneck was the site fore, heightened police action against munities’ trust in the police and engage all where day laborers gathered to seek em- immigrants where their nation of origin residents in keeping the community safe in ployment. Before the 1990s, the workers determines their citation or arrest violates Morristown and across America. ILT were predominantly Caucasian. In recent the equal protection rights of immigrants. years, however, the Latino population of Similar violations may result when local Mayor Michael Wildes of Englewood, NJ, the area has grown, and the laborers who police begin to request immigration doc- is a former federal prosecutor, an immigration meet in Mamaroneck are now almost ex- uments from people because they appear lawyer, and a partner in the law firm of Wildes clusively Latino. The city of Mamaroneck foreign or speak with an accent. & Weinberg. He also is a member of New Jersey implemented its campaign to eliminate Governor Corzine’s Blue Ribbon Panel the presence of the day laborers, increase The Community and Beyond on Immigrant Policy. traffic citations against the potential em- The challenge of illegal immigration is a na- ployers picking up workers, heighten po- tional one; thus, addressing the challenge Articles in ILT do not necessarily lice presence in the area, and even harass should, therefore, be done at the national reflect the views of the American Immigration Lawyers Association. the workers. level. The solution is not to force immi- The district judge concluded that the grant communities into the shadows. Con-

48 Immigration Law Today SEPTEMBER/OCTOBER 2008 bRoWn aRounD ToWn

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SEPTEMBER/OCTOBER 2008 49 NEW MEMBERS DIVISION GISELLE CARSON

Screening the Visas of Love A Microscopic View of the Couple

They say that love is “a many splendor thing,” but for couples who attorneys provide a copy of the are in long-distance relationships halfway around the globe, love usually means signed Form G-28, Notice of Entry of Appearance as Attorney or one of them moves to the United States to take the relationship to the next level. Representative. This move is made possible through the K visa, which allows a U.S. citizen (USC) to petition for his or her fiancé(e) or spouse, the fiancé(e)’s unmarried An approved I-129F petition is valid minor child (K-2), and the spouse’s unmarried minor child (K-4) to enter the for four months and may be revalidated by the consular officer for additional pe- United States. riods of four months if it expires before U.S. Citizenship and Immigration Ser- are legally able and willing to marry in the processing of the visa application is vices (USCIS) examines the relationship’s the United States within 90 days of the completed. Most posts require that the authenticity before granting the petition. fiancé(e)’s entry (see 9 FAM 41.81 N12). petitioner submit Form I-134, Affidavit Lately, however, aside from proof of a The USC petitioner must file Form of Support, and supporting evidence with bona fide relationship, the evaluation of I-129F, Petition for Alien Fiance(e), and the visa application filing. Form I-864, the petitioner’s background has become supporting documentation with the Affidavit of Support, is not required at a critical step in the planning of K vi- USCIS office having jurisdiction over his this stage. sas. This is largely due to emerging laws or her place of residence. After approval, If the interview is successful, the ben- and regulations protecting beneficiaries USCIS submits the file to the National eficiary receives a visa stamp valid for a and their children from domestic abuse, Visa Center (NVC), which forwards the single entry to the United States within six specifically, the Adam Walsh Child Pro- file to the post that processes immigrant months of issuance and a sealed envelope tection and Safety Act of 2006 (Pub. L. visas for the fiancé(e)’s place of residence. to present at the port-of-entry. The ben- No. 109-248, §§401–02, 120 Stat. 587, The post sends a letter to the beneficiary eficiary is admitted for a 90-day period to 622–23) and the International Marriage outlining the steps and documents re- get married. If following-to-join, the K-2 Broker Regulation Act of 2006 (IMBRA) quired to apply for the visa. visa must be issued within one year from (Pub. L. No. 109-162). Both laws impose the date that the K-1 visa is issued. new restrictions and disclosures that cre- ®P ractice Pointer: Some- ate delays in the adjudication of K visas. times, NVC only informs the K-1 and K-2 Adjustment of Status petitioner—not the attorney of After marriage, the spouse must file for K Visa Process record—that it has forwarded adjustment of status (AOS). Form I-130, Processing a K visa petition requires men- the case to the post. Once the Petition for Alien Relative, does not need tal acuity and endless patience. There are post receives the case, it also is to be filed for the K-1 or K-2 to apply many documents to complete and varying likely to communicate only with for AOS. The beneficiaries’ status will be waiting periods for the completion and the petitioner and beneficiary. conditional if the immigrant visa is avail- approval of the steps toward obtaining the Thus, attorneys can send status able prior to the second anniversary of visa. Throughout the whole process, both inquiries to NVC via e-mail at the marriage. In general, the K-1 cannot petitioner and beneficiary must demon- [email protected] or fax to adjust except through the petitioner who strate that they have a bona fide romantic (603) 334-0759 (see AILA InfoNet filed the I-129F. relationship. Doc. No. 06101860). Make sure to The applicant is not required to file a include the USCIS receipt num- medical examination (only the vaccina- K-1 and K-2 Visa Process ber and/or NVC case number in tion supplement is needed) if the medical As part of the application, the petitioner the subject line. The body of the exam was performed as part of the K visa must submit evidence that: (1) the par- communication should contain issuance and the exam occurred not more ties have previously met in person within the full names and dates of birth than one year prior to the time of the ap- two years before the date of filing the peti- of the petitioner and beneficiary plication for adjustment. tion (unless a waiver is granted); (2) have and the attorney’s contact infor- The K-2 beneficiary derives his or her a bona fide intention to marry; and (3) mation. NVC also requires that status from being the child of the K-1 and

50 Immigration Law Today SEPTEMBER/OCTOBER 2008 may apply for AOS even if the USC mar- ing the I-129F. The USC does not need to to the post of the beneficiary’s national- ries the K-1 fiancé(e) after the child turns file a separate I-129F for the child. The ity. The post will contact the beneficiary 18 years old (see 8 CFR §214.2(k)(6)(ii) statute does not require the issuance of to provide the steps and information re- (outlining AOS for K-2)). However, under the I-130 receipt notice prior to filing quired for visa processing. USCIS’s current interpretation, officers the I-129F. However, the instructions for After a successful interview, the K-3 should only allow the AOS of a K-2 child Form I-129F provide that the petitioner beneficiary and K-4 dependent receive a under the age of 21, provided the re- must await the receipt of the I-130 prior multiple-entry visa with up to a 10-year quirements for AOS in INA §245 are met to filing the I-129F. validity. However, the K-4 visa valid- (see AILA InfoNet Doc. No. 07040618). AILA has requested that USCIS revise ity caps the day before his or her 21st Therefore, when filing an adjustment for the K-3 processing procedures to permit birthday. a minor with a potential age-out problem (becoming ineligible to adjust status be- In many instances, K-3 and K-4 Adjustment of Status cause of turning 21 years old), expedited Upon successful admission, the K-3 can processing should be requested. the parties might file for AOS. The K-4 cannot file for ad- If the marriage does not occur within justment until the USC petitioner files 90 days, the K visa holder is subject to re- not be aware of the Form I-130 for the child. Thus, the pe- moval. If the marriage takes place outside potential problems titioner also should initially file an I-130 the 90-day period due to unforeseen cir- petition on behalf of the derivative child cumstances, the original petitioner could of the criminal in order to facilitate the child’s AOS and file Form I-130, Petition for Alien Relative, protect the child from “aging out.” concurrently with an AOS application. convictions, the new The American Immigration Lawyers filing limitations, and ®P ractice Pointer: Unlike Association (AILA) has requested that the K-2 child, the K-4 adjusts USCIS reconsider its interpretation of the the high burden status as the stepchild of the eligibility of a K-2 to adjust status after petitioner. Thus, the marriage reaching 21 years of age (see AILA InfoNet of proof for an between the USC and the K-3 at Doc. No. 08040235). It is AILA’s posi- Adam Walsh waiver. spouse must have occurred prior tion that a K-2 dependent remain eligible to the K-4 child’s 18th birthday. to adjust status after age 21 if he or she obtained the K-2 visa prior to age 21. This concurrent filing of the I-130 and I-129F If the K-4 does not meet the defini- position is supported by the decision in petitions. USCIS has indicated that it will tion of stepchild under INA §101(b)(1) Verovkin v. Still, 2007 WL 4557782 (ND review the procedure for potential con- (B) because the relationship between the Cal. 2007), which held that the date of current filing of these documents (see parents occurred after the child’s 18th determining a K-2 eligibility for adjust- AILA InfoNet at Doc. No. 08040235). birthday, the approval of the K-4 might ment is the date the K-2 visa is issued. Note: The California Service Center, be difficult because the child will not be The K-2 visa holder does not age-out, which currently adjudicates most I-129F able to adjust status once in the United provided the visa was issued prior to him forms, is processing the I-130 and I-129F States. or her turning 21. almost in the same amount of time, which creates a disincentive to filing the I-129F Travel K-3 and K-4 Visa Process to obtain a K-3 classification to expedite The K-1 and K-2 are one-time entry vi- The K-3 visa allows a USC to petition for the admission process of the beneficiary. sas. After filing for AOS, the K-1 and K-2 his or her spouse and the spouse’s minor Once the I-129F is approved, USCIS must request advance parole to travel. child (K-4) to enter the United States forwards the file to NVC, which notifies The K-3 and K-4 may travel outside the while waiting for approval of the I-130 the post in the country that the marriage United States using the K visa even if they petition. To apply for the K-3 visa, the occurred. If the marriage took place in have applied for AOS prior to departure. petitioner must file an I-130 prior to fil- the United States, NVC sends the petition The regulations provide that travel ➞

SEPTEMBER/OCTOBER 2008 51 neW MeMbeRS DIvISIon SCREENING THE VISAS OF LOVE

New from AILA Publications! outside of the country by an applicant for AOS—who is not under exclusion, depor- tation, or removal proceeding, and who Focus on the Child Status Protection Act is in lawful K-3 or K-4 status—shall not be deemed an abandonment of the appli- eeling lost, confounded, or downright stumped by the cation if, upon returning, the alien is in intricate regulations dealing with family-based petitions and possession of a valid K-3 or K-4 visa and the aging out process? Look for relief and answers in AILA’s F remains eligible for K-3 or K-4 status (see Focus on the Child Status Protection Act. Editor-in-chief and Catho- lic Legal Immigration Network (CLINIC) senior attorney Charles 8 CFR §245.2(a)(4)(ij)(c)). Wheeler draws from his own experience and expertise, as well as from the collective wisdom of other practitioners who have exam- employment authorization ined, written, and litigated in family-based immigration, to explain K visa holders are employment-authorized the Child Status Protection Act (CSPA) and encourage readers to incident to status. However, they must apply challenge government interpretations that are at odds with the regulation. for work authorization by filing Form I-765, Application for Employment Authorization. AILA’s Focus on the Child Status Protection Act covers: In practice, most applicants file for work • Tackling the problem of aging out; authorization as part of the AOS process. • Tips on how to convince local agents that clients qualify for CSPA relief; • How clients can benefit from the CSPA and retroactivity; and much more! The International Marriage broker Regulation act (IMbRa) AILA’s Focus on the Child Status Protection Act IMBRA amended and supplemented INA AILA Member Price: $79/Regular Price: $139, Stock code: 52-64 §§214(d)(1), (3) and §§214(r)(1), (3) to For more information, visit www.ailapubs.org. require that the petitioner of a K-1 or K-3 visa disclose, as part of the I-129F petition, information of any criminal convictions for specific crimes involving domestic violence, sexual assault, child abuse and neglect, dating violence, and stalking, among others. USCIS guidance provides that if the petitioner has been convicted THE LAW OFFICES OF RICHARD M. COSTA of any of the listed crimes, or if USCIS learns of the petitioner’s con- victions, he or she is required to submit certified copies of all court and police records showing the charges and dispositions of every TAKES PLEASURE IN ANNOUNCING THAT conviction (see AILA InfoNet Doc. No. 06080164). If the petition is approved, the U.S. Department of State will disclose this informa- tion to the beneficiary during the consular interview. LAURIE B. RICCIO HAS BECOME A PARTNER OF THE FIRM ®PRaCTICe PoInTeR: IMbRa limits the number of petitions a K-1 petitioner can file or have approved. If the petitioner has filed two or more K-1 visa petitions at any THE FIRM WILL CONTINUE time, or had a K-1 petition approved within two years THE PRACTICE OF IMMIGRATION LAW prior to the filing of the current petition, a waiver is re- UNDER THE NEW NAME OF quired. There is no particular form to apply for this waiv- er. The petitioner should enclose with the I-129F petition a signed and dated statement requesting the waiver and COSTA & RICCIO, LLP outlining the reasons why the waiver should be granted, while also attaching supporting evidence.

18 TREMONT STREET, SUITE 601 The adjudicator has the discretion to waive the applicable time BOSTON, MASSACHUSETTS 02108 and/or numerical limitations, except if the petitioner has a his- (617) 742-4444 tory of violent criminal offenses against a person, in which case IMBRA allows for an “extraordinary circumstances” exception (see INA §§214(d)(2)(B) and (C)(ii)). The cited USCIS memorandum JULY 2008 provides examples of evidence and situations that could qualify for the “extraordinary circumstances” exception. WWW.COSTARICCIO.COM IMBRA also allows for a waiver if the petitioner with a criminal record has been battered or subjected to extreme cruelty and was

52 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008 not the primary perpetrator of violence in years old) from sexual crimes, and bars peti- • Possession, production, or distribution the relationship (see INA §214(d)(2)(C)(ii)). tioners convicted of certain specified crimes of child pornography; The adjudicator should approve a waiver re- against a minor from petitioning for family • Criminal sexual conduct involving a quest if the petitioner can establish that he members. minor, or the use of the Internet to facilitate, or she: (1) was subject to battery or extreme The act amends INA §§204(a)(1) and or attempt such conduct; and cruelty at the time he or she committed the 101(a)(15)(K) to prohibit a USC or lawful • Any conduct that by its nature is a sex violent offense; (2) was not the primary permanent resident petitioner convicted of offense against a minor. perpetrator of violence in the relationship; a “specified offense against a minor” from The USCIS guidance memo provides and (3) was acting in self-defense, among filing any family-based immigration petition for the revocation of approved petitions if other factors. for any beneficiary—regardless of age— at any time prior to the adjustment of sta- IMBRA also requires K petitioners to in- such as a fiancé(e), spouse, minor children, tus or consular processing USCIS becomes form USCIS if they have met their fiancé(e) unmarried son or daughter, and parent un- aware that the petitioner has a conviction or spouse through the services of an inter- less the secretary of the U.S. Department for a specified offense against a minor (see national marriage broker and to provide of Homeland Security determines that the AILA InfoNet Doc. No. 07030669). If the information about the broker. The numeri- petitioner poses no risk to the beneficiary. petitioner’s background check reveals a cal limitations and waiver provisions noted The term “specified offense against a minor” hit for an offense that qualifies as a “speci- above do not apply to the K-3 petitioner. includes: fied offense against a minor,” a Request • Kidnapping; for Evidence (RFE) or Notice of Intent to The Adam Walsh Child • False imprisonment; Deny (NOID) will be issued requiring the Protection and Safety Act • Solicitation to engage in sexual conduct; petitioner to provide certified copies of all The Adam Walsh Child Protection and • Use in sexual performance; police arrest records and court dispositions Safety Act applies to family-based petitions • Solicitation to practice prostitution; documents. The petitioner also will be pending and/or filed after July 27, 2006. • Video voyeurism (use of a webcam to scheduled for fingerprints. It is intended to protect minors (under 18 watch children); The guidance memo provides ➞

Visa Processing at the US Embassy, London

What’s new?

www.usvisalawyers.co.uk/whatsnew.htm

Updated regularly

Gudeon & McFadden Tel: 011 44 20 7958 9067 42 Brook Street Fax: 011 44 20 7958 9282 London www.usvisalawyers.co.uk W1K 5DB

SEPTEMBER/OCTOBER 2008 53 neW MeMbeRS DIvISIon SCREENING THE VISAS OF LOVE

procedures to assist the adjudicator in de- all known factors and evidence submitted. better Safe than Sorry termining whether the petitioner has been The petitioner has the burden to demon- Practitioners should discuss the IMBRA convicted of a “specified offense against a strate beyond a reasonable doubt that he or and Adam Walsh ramifications with the minor,” since the offenses are stated in broad she poses no harm. Considering the high petitioner and the beneficiary prior to fil- terms and might be named or applied differ- burden of proof, the petitioner should sub- ing. In many instances, the parties might ently in the various jurisdictions. mit with the initial filing or in response to not be aware of the potential problems According to the guidance memo, the ad- an RFE or NOID all relevant evidence, in- of the criminal convictions, the new fil- judicators should consider the evidence. If cluding evidence of rehabilitation and any ing limitations, and the high burden of the fingerprint results and evidence submit- legal argument that USCIS should consider proof for an Adam Walsh waiver. Going ted indicate that the petitioner was not con- in evaluating his or her case. through the tenuous K visa process is victed of a specified offense against a minor, If, after considering all the evidence, the stressful enough. It might alleviate some the adjudicator should proceed to adjudicate adjudicator determines that the petitioner of the stress if the couple were told from the case. If the adjudicator is unsure whether poses a risk, the adjudicator must deny the the outset how these regulations may af- a conviction should be considered a speci- petition and state the reasons for the de- fect their petition rather than halfway fied offense, or the criminal case against the termination. If the adjudicator is uncertain through the process. ILT petitioner is still pending, or the disposition about the risk posed, he or she should con- is unknown, the adjudicator should forward sult with a supervisor and/or USCIS coun- giselle carsOn is a partner at Marks the file to USCIS counsel for review. If the sel. If the adjudicator determines that the Gray, P.A. in Jacksonville, FL, and has spoken at adjudicator determines that the petitioner petitioner poses no threat, he or she must various AILA conferences regarding K visas and has been convicted of a specified offense, seek guidance and consent from USCIS family-based petitions. he or she must determine whether the peti- headquarters and others before approving tioner poses a risk to the beneficiary. the petition. In practice, it appears that cas- Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. In determining whether the petitioner es involving Adam Walsh offenses are being poses a risk, the adjudicator should evaluate denied or are just not being adjudicated.

54 IMMIgRaTIon LaW ToDaY SEPTEMBER/OCTOBER 2008

Practice Profile: Most prized posses- sions: A 1978 Corvette Stingray (silver anniversa- ry model)—Just returned Meet Neil Dornbaum from completing a two- eil Dornbaum is a founding partner of Dornbaum day Corvette auto racing & Peregoy LLC in Newark, NJ. Neil is chair of the course. American Bar Association’s (ABA) Immigration Law Committee (General Practice Division) and has Most memorable served three terms as the New Jersey AILA Chapter personal moment: Nchair. He also is a past chair of the New Jersey State Bar As- On the way to Denver sociation’s Immigration, Naturalization, and Americanism for an AILA conference Section. Neil lectures nationally on various aspects of the to speak on a panel on Outstanding Researchers and Pro- immigration law practice for New Jersey Institute for fessors, a young attorney approached me at the airport Continuing Education (NJICLE), the federal bar, ABA, and and asked if he could share a taxi to the conference. Half AILA. He serves as NJICLE program chair/coursebook way to the hotel he posed the question, “How much do editor for Advanced Immigration Law Issues for Attorneys, you charge for an Outstanding Researcher petition?” Human Resource Personnel and In House Counsel, and the I said I wasn’t comfortable advising him on fees but went Annual Immigration Law Conference. on to suggest how he could determine the appropriate Neil is on the editorial board for Immigration Law Today fee to charge based on several factors he should take and is a reviewer for Kurzban’s Immigration Law Sourcebook. into account. Before I could finish, he quoted his fee, He currently serves as a commissioner on ABA’s Commission which was three times what I was charging for my firm’s on Immigration. He has been listed in “The Best Lawyers in services. It was clear to me that AILA had invited the America” for the last 15 years, “The International Who’s Who of wrong person to speak. Business Lawyers,” and New Jersey magazine’s “Top Lawyers” and “Super Lawyers” publications for his work in immigration. Most memorable professional experiences: I believe Dornbaum & Peregoy enjoys a national reputation and strongly in giving back to the profession and enjoy the op- regularly and expertly handles complex matters. The firm portunity to both teach and mentor younger attorneys in has achieved Martindale-Hubbell’s highest rating for legal the field. One of the issues of greatest need in the immi- ability and ethical standards and is listed in “The Bar Regis- gration field is the lack of pro bono representation of both ter of Preeminent Lawyers,” 1994–present, under Immigra- detained children and adults. I had the opportunity to visit tion Law. Dornbaum & Peregoy is one of only a select several prisons housing both children and adults and met number of law firms in New Jersey with a practice limited with Brad Smith, General Counsel for Microsoft, in Seattle. to immigration and nationality law to receive this honor. Over dinner, he reported that the company would be an- nouncing its commitment to fund and support a multi- Getting Personal million dollar initiative to provide pro bono representation for all children detained in the United States. Date & place of birth: December 27, 1956; New York, NY When we work outside the box, we are able to bring to- gether various organizations (religious, social, professional) to FAMILY: wife and daughter elicit major changes. This has been especially true with the pair- ing of corporate donors with immigration pro bono needs. Favorite type of food: New discoveries—spends time during AILA’s annual conference patronizing top-rated Three tips for consular processing: We teach our new restaurants with colleagues who share a passion for food. employees to work to the acronym SPA: Speed (fast turn- around and return calls, prompt case completion); Profes- Music currently in your iPod/MP3/iPhone: sionalism (show expertise, relate well to all parties involved, Tony Bennett, Stan Getz, Thelonious Monk, Stevie Ray and seek client feedback to improve service); and Accuracy Vaughan, Norah Jones, Miles Davis, Chris Botti, Bob Dylan, (careful document review, keep all parties informed, be John Lennon, Jethro Tull, Greatful Dead, Pink Floyd frank about client’s chances for success). and Willie Nelson Words to live by: Treat each client the way that you Favorite BOOK/author: Clive Cussler, Dan Brown, Robert would like to be treated if you were engaging someone Ludlum, and David Baldacci (Where the hero saves the day!) to perform a service for you.

SEPTEMBER/OCTOBER 2008 55 STATUS CHECKS ✔

Honors and Appointments ❑✔ Elizabeth Leigh Anne Garvish received the H. Sol Clark On the Move Award from the State Bar of Georgia’s Pro Bono Project ❑✔ Hammond Law Group is pleased to announce and Access to Justice Committee for her extensive pro bono that Steven R. Solway has joined the firm as partner- work in coordinating and providing legal assistance to immi- in-charge of its Toronto office. Steven has been practic- grants in Georgia who are on the path to U.S. citizenship. ing corporate immigration law since 1995, most recent- ❑✔ Lori T. Chesser was named a Woman of Influence in ly as a partner with Gowling Lafleur Henderson LLP. Central Iowa by the Des Moines Business Record. ❑✔ Kate Kunzman and Ann Cun have joined Pearl ❑✔ Hugo R. Valverde was named the 2008 R. Edwin Law Group’s San Francisco office, concentrating Burnette, Jr. Young Lawyer of the Year by the Virginia on business immigration law services for esteemed State Bar. global companies. ❑✔ ❑✔ Maria Aguila received the Mayor’s Asian American Fisher & Phillips LLP is pleased to announce Advisory Board’s Pro Bono Service Award as well as an the additions of Kim Kiel Thompson and Shanon award from the Jacksonville Asian American Bar Associa- R. Stevenson as partners in its Global Immigration tion for her outstanding leadership and dedication. Practice. They are joined by new associate, Brock P. McCormack. ❑✔ Kristina Rost was named one of the Up & Coming Law- ❑✔ yers 2008 by Massachusetts Lawyers Weekly. Elise A. Healy has recently joined Spencer Crain Cubbage Healy & McNamara pllc to lead its busi- ❑✔ Michael Maggio and Joseph Vail were posthumous ness immigration practice. Spencer Crain is a Dallas- recipients of the Carol King Award at the 2008 National based, majority women-owned law firm specializing Lawyers Guild convention. in commercial litigation, employment and labor, me- ❑✔ Super Lawyers magazine recently selected Navid Dayzad diation, and business immigration. as a “Rising Star” in Southern California.

Announcements Calling All Writers! ❑✔ Maria Aguila performed “On My Own” from the Broad- way musical Les Miserables at the first-ever Jacksonville Bar The skill of writing is to create a Association lawyer variety show fundraising event benefit- context in which other people can think. ting Jacksonville Area Legal Aid. — Edwin Schlossberg ❑✔ After practicing immigration law for the Choquette Law Are you interested in writing for AILA’s Immigration Group, P.S., Sylvia A. Miller has opened her solo practice Law Today, the premiere journal serving the in Seattle with a focus on immigration law. Sylvia is fluent in immigration law field? We’re always in need of Spanish and represents clients in their applications and peti- well-written, quality articles on matters of in- tions with U.S. Citizenship and Immigration Services. terest to the immigration bar. Our team of experi- ❑✔ John Nechman joined Rep. Sheila Jackson Lee (TX-18) on enced legal editors can help you shape your ideas a panel in Houston to discuss President Bush’s recent signing and present them in a way that will engage the of a bill that repeals the statutory HIV immigration ban. reader and provide valuable insight and advice to our audience of experienced practitioners. ❑✔ Kristen Ness Ayers opened her law firm, Ayers Immigra- For more information, contact us to discuss your tion Law Firm, in Charlotte, which focuses on business im- ideas and deadlines for submissions at [email protected]. migration matters.

Please send your “Status Checks” to [email protected].

56 Immigration Law Today SEPTEMBER/OCTOBER 2008

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