This is really, really disturbing news. I have seen many, many cases in my years in practice where people received incompetent representation and their lives have been wrecked. An individual can sometimes ask a judge to take a look at the record and if the judge agrees that poor lawyering seriously damaged the client, the judge can take this in to consideration. The ABA and the ACLU are both weighing in.
From the ACLU:
NEW YORK – In a radical departure from years of legal precedent, Attorney General Michael Mukasey is considering ending the practice of allowing immigrants to reopen cases that they lost because of their lawyers’ mistakes or incompetence. Mukasey announced that he was considering the issue late this summer and then imposed the unrealistic deadline of October 6 for interested parties to submit briefs, preventing organizations opposing the change, including the American Civil Liberties Union and the American Bar Association (ABA), from providing a meaningful response.
“It is remarkable that the attorney general would refuse to give the legal community sufficient time to respond to a change that would so dramatically break from fairness and due process,” said ACLU Immigrants’ Rights Project Deputy Director Lee Gelernt. “There is absolutely no reason why the justice system should penalize anyone, including immigrants, for the harm done by incompetent or unscrupulous attorneys."
On August 7, Mukasey instructed that any briefs responding to the proposed reversal of the “ineffective assistance” right be submitted by Sept. 15. After many organizations and lawyers protested that this provided insufficient time to respond to such major legal and policy issues, he extended the deadline a scant three more weeks.
Though the U.S. Department of Justice has also proposed new rules that would give the department more latitude to punish incompetent immigration lawyers, organizations from the entire range of the political spectrum say that penalizing attorneys is not a substitute for the right to competent counsel.
“It can never be considered a fair process when you lose your case because your lawyer missed a deadline or made some other egregious error,” said Gelernt. “Punishing your lawyer does nothing for you while you’re on your way to being deported.”
Mukasey’s orders as well as letters to Mukasey from the ACLU, ABA, the American Immigration Law Foundation and numerous partners at some of the country’s most prestigious law firms opposing the change or objecting to insufficient time allotted for submitting briefs are available online at: www.aclu.org/immigrants/gen/37064res20081007.html
And from the ABA:
aba ineffective assistance of counse - Free Legal Forms
The Washington Post has written an editorial taking the Department of Health and Human Services to task for ignoring Congress' call to take HIV off the list of health conditions that require waivers to immigrate. HHS has responded saying that they're working on it and hoping to get something out before the next President takes office. That's great, but we need to keep the pressure on.
It was great to see the following alumni email arrive this afternoon from The University of Chicago where I attended law school regarding Japanese-born Professor Yoichiro Nambu:
I am delighted to tell you that Yoichiro Nambu, the Harry Pratt Judson Distinguished Service Professor Emeritus in Physics and the Enrico Fermi Institute, has been awarded the 2008 Nobel Prize in Physics.
Professor Nambu, who has been a scholar at the University of Chicago since 1954, is one of the leading figures in the development of modern particle physics. His work has contributed to our understanding of the world ranging from the structure of the early universe to the behavior of magnetic materials.
In its citation, the Nobel Foundation credited Professor Nambu with "the discovery of the mechanism of spontaneous broken symmetry in subatomic physics." He was awarded the Nobel Prize jointly with Makoto Kobayashi and Toshihide Maskawa in Japan for their work on the origins of broken symmetry.
Professor Nambu founded the concept of spontaneous symmetry-breaking, or SSB, while studying superconductivity in the 1960s and then applied his theory to particle physics. His theories predicted the existence of massless particles. The Nobel Prize also recognizes his significant contributions to the "color gauge theory," which explains how the strong nuclear force governs the behavior of the quarks that make up protons and neutrons in atomic nuclei, and his contributions to String Theory, one of the most actively explored theories in physics today.
Professor Nambu was born in Tokyo in 1921 and received his B.S. degree in 1942 and his D.Sc. degree in 1952 from the University of Tokyo. He joined the University of Chicago as a research associate in 1954, advancing through the faculty ranks. He served as chair of the Physics Department from 1974 to 1977, and became an emeritus professor in 1991. His previous honors include the Wolf Prize in Physics, National Medal of Science, Dannie Heineman Prize for Mathematical Physics, J. Robert Oppenheimer Prize, and the Order of Culture from the government of Japan.
Professor Nambu joins 81 other Nobel laureates who have been affiliated with the University, including 27 prior recipients of the Nobel Prize in Physics.
Robert J. Zimmer, University of Chicago President
Thanks also to reader USC for pointing out this news in the comments.
ICE has been launched another raid at a food processing facility, this time a poultry plant in South Carolina. Regrettably, these raids will drive food prices up at a time when Americans can really not afford to spend more money. Illegal immigration has been dropping dramatically since DHS launched its enforcement campaign last summer. The goal of "enforcement first" is being achieved and it's time to start focusing on the next phase.
Karoun Demirjian of Congressional Quarterly has an interesting take on how immigration politics may change in 2009.
This has been talked about for a while. There are a number of other countries also expected to shortly be added to the list of Visa Waiver countries including several in Eastern Europe. Nationals of Visa Waiver countries can enter the US in visitor status without a visa stamp in their passport. Stays are limited to 90 days and no extensions or changes in status can be granted for those participating in the program.
OK, my kids suggested this one. We saw the very cute Disney movie Beverly Hills Chihuahua last night and it deals on a subtle level with Anglo-Hispanic relations. One of the lead characters is Papi, the landscaping dog, voiced by comedian George Lopez. The movie has some funny immigrant story lines including one where the title character (voiced by Drew Barrymore) has to be smuggled back in to the US and she is being shepherded by a coyote (a real coyote). I am quite sure someone at Disney is going to take heat over that one.
Wow, US Customs and Border Protection, the folks that inspect us at ports of entry, has posted a desktop "widget" on its web site that allows you to countdown to your trip, see the weather at your destination and advises you on entry requirements.
Kudos to the Times for bringing attention to an immigration issue the rest of the media is ignoring. Hat tip to those who sent me the link.
Despite the fact that Congress has now repealed the specific statutory exclusion of HIV-positive individuals from the US, the default rule allowing the US Department of Health and Human Services to come up with its own list of diseases mandating inadmissibility still has HIV on it. I was shocked to see this morning that HHS has chosen to ignore the loud message Congress sent and that they intend to keep HIV on the list of conditions rendering a person inadmissible.
There is a waiver available, but it only applies to people who are the spouse, unmarried son or daughter or minor child of a US citizen or permanent resident. Parents of US citizens or permanent residents are also permitted under certain circumstances.
Unfortunately, the one group that is not covered here are people in same sex marriages and civil unions who are a large percentage of the people who need the waiver the most. The Defense of Marriage Act, a terrible relic of the 1990s, prevents federal agencies from recognizing same sex unions.
One of my favorite political commentators, the Atlantic's Andrew Sullivan, writes very personally about how the ban is affecting him.
This is really unjust and I hope the next President quickly orders HHS to fix this immediately.
[Update: Here is the advance copy of the rule. One of the comments questioned the veracity of my post. You can see the statement on page 20 of the document stating:
The current definition in 42 CFR 34.2(b) includes chancroid, gonorrhea, granuloma inguinale, human immunodeficiency virus (HIV) infection, infectious leprosy,
lymphogranuloma venereum, infectious-stage syphilis, and active tuberculosis.
The notice only adds to the list and explicitly keeps HIV on.]
HIV remains on HHS list of communicable diseases - Free Legal Forms
The Pew Hispanic Center estimates the number of illegally present immigrants entering the US each year has dropped from 800,000 to 500,000 just in the last few years. They don't specify why this is happening except to acknowledge the two reasons being touted by advocacy groups:
This bodes well for immigration reform in a likely friendlier 111th Congress that will be sworn in next year. Many moderates on the restrictionist side have stated that once there was clear evidence that the borders are secure, then we can look at the illegally present population and longer term solutions. Studies like this one will make it easier to argue that this benchmark has been achieved.The estimates are not designed to explain why the net growth rate has declined.
There could be a number of possible causes, including a slowdown in U.S.
economic growth that has had a disproportionate impact on foreign-born Latino
workers, at the same time that economic growth in Mexico and other Latin
American countries has been stable. Another factor could be a heightened focus
on enforcement of immigration laws, which a recent Pew Hispanic Center survey
indicates has generated worry among many Hispanics.
I've blogged in the past about a lingering problem related to the 1996 welfare reform bill that relates to certain immigrants. Under that law, elderly refugees were given a seven year cutoff period after which they were no longer eligible to receive Supplemental Security Income (SSI). This has been a major problem because many very old refugees are too frail and infirm to work and their SSI benefits are their lifeline.
The only way to keep the benefits is for these folks to naturalize. That's possible for some, but many have great difficulty learning English because of their age or medical condition and are not approved for exam waivers, some are subject to long security clearances, and others deal with everything from lost papers to unexplained delays.
I'm pleased to report that Congress has passed the SSI Extension for Elderly and Disabled Refugees Act which will provide two additional years of SSI benefits and a third year for those making good faith efforts to naturalize. Refugees who previously lost their benefits will have a limited ability to begin receiving benefits again.
I want to congratulate Gideon Aronoff, Mark Hetfield, Lisa Shuger, Melanie Nezer and Stephanie Grosser, the incredibly dedicated staff members at HIAS, the Hebrew Immigrant Aid Society, who have worked this issue tirelessly and did not give up hope even when things looked pretty bleak. They've had partners at many other agencies, but they certainly deserve a great deal of the credit for success on this issue. I know of what I speak because I've participated in several meetings as a HIAS board member that took place at the White House and on Capitol Hill where this problem was addressed at the highest levels.
This is a really nice piece of news at the end of a pretty bleak year for immigration in Congress.
A cute video reminding people that the register deadline to vote in the presidential election is coming up quickly. For those readers who are not US citizens yet, please pass this link on to your American citizen friends and family members.
[Warning - There's some salty language in here.]
This really inspires confidence in the nation's immigration enforcement agency. ICE contracts out the running of its detention centers in many cases to private corporations (which should make you nervous). It now turns out that the contractor running a detention center in Washington State may have hired guards without doing background checks and then covered up the fact. A human resources administrator at the contracting company has now been criminally charged in the case.
Kudos to Congress for passing S. 2840 which will require adjudication of naturalization applications for active duty soldiers and former members of the armed services as well as surviving dependents. USCIS will have six months to adjudicate cases. According to AILA, the bill will also establish an FBI liaison at USCIS and set processing deadlines for other naturalizationc cases.
In July, Congress voted to scrap the ban on travel by HIV-positive individuals. This week USCIS announced it is going to issue regulations to "streamline" the entry process for HIV-positive people rather than following the directive of Congress and ending the ban. Congresswoman Barbara Lee (D-CA) who led the congressional effort was very displeased at the news:
"I am disappointed that the Administration has decided to move ahead and finalize this rule to clarify the visa waiver process for HIV positive short term visitors to the United States.The rule itself remains fundamentally flawed because it is grounded on an unjust and discriminatory policy that has no basis in public health."
Immigration Equality, the advocacy organization for same sex immigrant couples, noted
Under the new rules, a short-term traveler must meet twelve stringent criteria that impose unnecessary burdens on HIV-positive travelers and continue to stigmatize those living with HIV. Some criteria are inconsistent with current medical knowledge of HIV transmission and treatment.
Additionally, a traveler who avails him- or herself of the waiver must give up the right to apply for a green card from within the United States – even if he or she marries a U.S. citizen. By DHS’s own account, the “streamlining” provided by this rule simply shaves off eighteen days in processing time by allowing Department of State consular officers to make decisions on waivers without sending them to DHS for approval.
"We are on the eve of lifting this ban once and for all. Why is the Administration setting new waiver requirements in stone now?," asked Neilson. "The time has come for this Administration to finish the job that Congress started this summer. It’s time to lift the HIV ban."
Israeli-born Safra Catz is the co-president of Oracle Corporation. She also serves as the mega-company's Chief Financial Officer. Catz was honored today by being named to Fortune Magazine's list of the 50 most powerful women in America. According to the magazine:
As Larry Ellison's right-hand woman overseeing day-to-day operations, Catz has led Oracle through more than 40 acquisitions in four years and has helped deliver four years of EPS growth of 20% or more annually. Catz hands off her CFO position on Oct. 1 and will oversee her successor.
The number of Americans who think immigration is the country's most serious issue is now down to just 1% and the issue ranks just 12th in order of priority, according to a new DiageoHotline poll of voters. That's less than 1/10th of the number that it was in August 2007 (after the immigration reform bill failed in Congress). At that time, immigration ranked second on the list of issues.
Psstt, members of Congress, I've got a secret to tell you. You can now safely do what you think is best on immigration issues and you don't need to worry about the politics. American voters have moved on. Sure extremists might still flood your switchboard with calls. But there's not going to be any groundswell of support behind them.
During Friday night's presidential debate between John McCain and Barack Obama, one of the more interesting verbal spars related to whether former Secretary of State Henry Kissinger supported negotiations with Iran and at what level. The fact that 30 years after he held the position, the opinion of Mr. Kissinger is still so important tells something about the man's impact.
Henry Kissinger doesn't really need an introduction. Kissinger's family fled to the United States from Germany in order to escape the Nazi persecution of the Jews in the 1930s. He went on to attend Harvard and then to teach there before being tapped to serve as Richard Nixon's National Security Advisor and later his Secretary of State. As one of the few senior Nixon Administration officials who came away relatively unscaithed from the Watergate scandal, he kept his job in the Ford Administation. Kissinger was awarded the Nobel Peace Prize for his efforts to end the 1973 Israel-Arab war.
The 85 year old Kissinger has never left the spotlight and is still very involved in commenting on foreign affairs as was seen from this week's news.
About The Author
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com
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