According to an article in the National Law Journal, the immigration docket is all tied up in knots. The subject of deporting respondents in removal proceedings before their administrative appeals for an immigrant visa were adjudicated by the Administrative Appeals Office was addressed in the July 6, 2009 issue.
Curtis Pierce was interviewed about this problem. In addition to what was quoted in the article, Mr. Pierce also told the National Law Journal that the case would have had greater significance if it had been decided on due process grounds as opposed to merely "abuse of discretion."
Is gender-based persecution a basis for asylum? Is the fear of continued domestic violence compelling enough? These questions have remained unanswered for the fourteen years for Rody Alvarado Pena. The asylum case of Ms. Alvarado Pena, whose asylum claim based on domestic violence has been in legal limbo for years, brings attention to the issue of gender and asylum. Women flee from honor kilings, sexual trafficking, rape, female genital mutilation, and other forms of harm seeking asylum in the United States. The Alvarado case, held up since January 2001, caused many other asylum claims of women who flee from gender persecution and other gender-based violence to stall.
Rody Alvarado Pena is a Guatemalan woman who claims ten years of abuse at the hands of her husband, a former soldier. After fleeing to the US, she obtained the help of the San Francisco Lawyers Committee for Civil Rights. In 1996, a San Francisco immigration judge granted Rody asylum. Because a dispute continues over whether gender-based persecution is a basis for asylum, the immigration service chose to appeal. Karen Musalo, director of the Center for Gender and Refugee Studies and lead attorney in the landmark Kasinga case, coordinated and co-authored an amicus brief submitted to the Board of Immigration Appeals (BIA).
In June 1999, the BIA reversed the decision of the immigration judge, and ordered that Ms. Alvarado be deported to Guatemala. In the wake of the BIA's decision, Karen Musalo assumed sole responsibility for Rody Alvarado Pena's legal appeal.
During the Clinton administration, as one of her last acts in office, Attorney General Janet Reno vacated that ruling and issued regulations recognizing gender-based persecution as a possible basis for asylum. Reno ordered the court to reconsider Alvarado Peña's case when the regulations were finalized. That never happened, in part because responsibility for asylum law is now split between the Justice Department and the Department of Homeland Security -- a complication, no doubt, but one federal agencies surely could overcome.
In 2003, Attorney General John Ashcroft took the case with the intention of deciding it himself, but he dropped it when Secretary Tom Ridge's Department of Homeland Security filed a brief stating Alvarado Peña is no threat and should be granted asylum.
Alvarado Peña remained in limbo for years, though, because the Bush administration failed to finalize the regulations that could shape the outcome of her case. Last year, Attorney General Michael Mukasey ordered the Board of Immigration Appeals to decide the case without waiting for the regulations to be finalized. (The Board sent it back to an immigration judge in San Francisco, who will decide her fate.) Without those regulations, Alvarado Peña could be deported to Guatemala, where all semblance of law has collapsed and the danger has escalated dramatically.
Advocates for Ms. Alvarado Pena include Esta Soler, president of the Family violence Prevention Fund and Karen Musalo, director of the Center for Gender and Refugee Studies. In the July 18, 2009 issue of the Washington Post, they appealed to yet another administration for intervention. "We need Obama administration officials to do the job and do it right. Unless they do, Rody and others fleeing brutal gender-based violence will spend more years -- or even decades -- in limbo. We can do better." (Washington Post, July 18, 2009)
Karen Musalo and Esta Soler call out for national policy that clears specifies gender-based violence as ground for asylum. The Department of Homeland Security filed a brief this spring in the case of a severely battered woman from Mexico; the brief acknowledged that such claims could be accepted under law. Still, there is no clear national policy that will resolve Ms. Alvarado's individual case and the broader issues it raises.
Attention Employers: No Match Rule Rescinded in Favor of E-Verify
Instead of the “no match” regulation, DHS is promoting the use of its E-Verify system.
Here’s the chain of events that led to the department’s decision to forgo the “no match” rule in favor of E-Verify:
In fall 2008, under the Bush administration, federal contractors were required to enroll in E-Verify and use it to verify existing employees working on federal projects.
The U.S. Chamber of Commerce — along with several HR groups — challenged DHS’ E-Verify requirement.
Parties in litigation reached an agreement on the effective start date of the rule, which is currently scheduled for September 8. This agreement negates the need for the “no-match” rule, according to DHS.
If the agreement is accepted by the court, Congress will likely take action to amend the law: to make E-Verify mandated — rather than voluntary — for federal contractors.
On July 8, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano strengthened employment eligibility verification by announcing the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department's intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.
“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.”
E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.
The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.
Immigration and Asylum: From 1900 to the Present, 3 Volume Set (Hardcover)
by Matthew Gibney (Editor), Randall Hansen (Editor)
Pierce's Immigration Law E-Newsletter is pleased to once again feature a scholarly book on immigration. Immigration and Asylum edited by Matthew Gibney and Randall Hansen in three volumes is a comprehensive and timely examination of the history and current status of immigrants and refugees - their stores, the events that led to their movement, and the place of these movements in contemporary history and politics.
Across a 20th century marked by world wars, regional conflicts, rising and collapsing empires, and the dawn of globalization, the flow of immigrants and asylum seekers reached unprecedented levels. And though America was by far the most popular destination, immigration (voluntary and otherwise) affected virtually every corner of the globe and continues in record numbers.
Immigration and Asylum: From 1900 to the Present is an accessible and up-to-date introduction to the key concepts, terms, personalities, and real-world issues associated with the surge of immigration from the beginning of the 20th century to the present. It focuses on the United States, but is also the first encyclopedic work on the subject that reflects a truly global perspective.
With contributions from a wide variety of authorities on the subject, Immigration andAsylum offers nearly 200 entries organized around four themes: immigration and asylum; the major migrating groups around the world; expulsions and other forced population movements; and the politics of migration. In addition to basic entries, the work includes in-depth essays on important trends, events, and current conditions.
To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.
Published by the Law Offices of Curtis Pierce, 213-327-0044
Disclaimer: The information contained in this newsletter is analysis and commentary of a general nature. Nothing in this newsletter applies to a specific case nor does it constitute legal advice.
Schedule appointment: For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.
“The only title in our democracy superior to that of President (is) the title of citizen”.
Former Supreme Court Justice Louis Brandeis. (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")
In the words of President Kennedy, the United States is a "nation of immigrants."
TEL (213) 327-0044 FAX (213) 327-0066
