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Administration Revises Policy on False Claims to Citizenship:
In a pair of letters sent to Senate Majority Leader Harry Reid (D-Nev.) in late August and early September, the administration confirmed that individuals charged with making false claims to U.S. citizenship can raise as an affirmative defense either that they did not realize the claim was false, or that they were under eighteen and lacked the capacity to understand the nature of the claim.
A letter from the Department of State dated August 29, 2013, said that the updated language would soon appear in the Foreign Affairs Manual. A letter from the Department of Homeland Security dated September 12, 2013, stated that the Adjudicator’s Field Manual would also be updated. According to the letters, the change followed the issuance of an opinion from the DHS General Counsel’s office on December 6, 2012, that has not yet been made public. The letters are reprinted at Appendix A and Appendix B.
USCIS Issues Memo on Adoption of Abused Children
On September 12, 2013, USCIS issued an interim policy memorandum providing guidance to agency officers on the adjudication of self-petitions for permanent residence filed by battered or abused adopted children. While abused children must still demonstrate that they shared a residence for some period with an adoptive parent, they no longer must show that they resided with the abusive parent for two or more years.
The agency added the new guidance in paragraph (d) of Chapter 21.14(d) of the AFM, “Self-petitions by Abused Spouses and Children.” The memorandum is reprinted at Appendix C.
Court Ruling and Settlement Target Immigration Enforcement in Washington State
A recent court ruling and settlement will prevent local and federal officers in Washington State from violating both the state and federal constitutions while engaging in immigration enforcement. On August 16, 2013, a Superior Court judge in Pierce County issued a declaratory judgment finding that state and local law enforcement officers may not enforce federal immigration laws or prolong a detention to inquire about an individual’s immigration status. The ruling, which was based on Article 1, Section 7 of the Washington constitution, was issued by Judge Kathryn J. Nelson.
Meanwhile, on September 24, 2013, the Border Patrol reached a settlement in a separate case challenging the agency’s use of roving patrol stops on the Olympic Peninsula. Under the terms of the settlement, Border Patrol officers assigned to the Port Angeles station will receive additional Fourth Amendment training and may not stop vehicles without reasonable suspicion that an occupant is violating the law. The agency must also provide plaintiffs’ attorneys with information regarding all vehicle stops for eighteen months.
Both suits were brought by the American Civil Liberties Union and the Northwest Immigrant Rights Project.
Arizona Expands Driver’s License Ban to All Deferred Action Recipients
On September 17, 2013, Arizona released new guidance from its Motor Vehicle Division stating that Employment Authorization Documents obtained from a grant of deferred action (category “C14”), deferred enforced departure (category “A11”), and deferred action for childhood arrivals (category “C33”) are not sufficient to demonstrate authorized presence under federal law.
The guidance comes in the midst of litigation over Arizona’s refusal to provide drivers’ licenses to beneficiaries of the DACA program. A federal judge in Arizona previously ruled that providing drivers’ licenses to some but not all recipients of deferred action would likely violate the Constitution’s Equal Protection Clause. Along with Nebraska, Arizona is the only state that does not issue drivers’ licenses to DACA grantees.
The policy guidance is reprinted at Appendix D.
Indiana Disciplines Attorney for Disparaging Opposing Party’s Immigration Status
On September 6, 2013, the Indiana Supreme Court suspended an attorney from practicing law for thirty days for disparaging the immigration status of an opposing party in a custody dispute. In a letter sent to opposing counsel in August 2009, the attorney, Joseph Barker, stated: “Your client doesn't understand what laws and court orders mean I guess. Probably because she's an illegal alien to begin with.” The Indiana Supreme Court found that he had violated provisions of the Indiana Professional Conduct Rules relating to the embarrassment of a third person for no substantial purpose and engaging in conduct manifesting bias based upon national origin. The court’s order is reprinted at Appendix E.
BITS AND PIECES
OSC Settlements Announced
The Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices reached settlements in September with three employers over Form I-9 violations. Infinity Group agreed to pay a civil penalty of $53,800; IBM agreed to pay a civil penalty of $44,400; and Paramount agreed to pay a civil penalty of $21,100. PDFs of the agreements are available at http://www.justice.gov/crt/about/osc/htm/Settle.php.
EOIR Registration Deadline
The Executive Office for Immigration Review is now requiring attorneys and representatives to complete the eRegistration process within ninety days of registering with the agency online. If an attorney does not submit a photo identification at an immigration court or the Board of Immigration Appeals within ninety days of registering online, his or her pending account requests will be deleted. Attorneys wishing to practice before EOIR must complete the process by December 10, 2013.
ABT Settlement Revised
USCIS reached a revised settlement agreement in ABT v. USCIS, 11-2108 (W.D. Wash.), a class action challenging maintenance of the employment authorization “clock” for asylum applicants. Under the revised agreement, applicants’ clocks will continue to run following remands from the BIA, exclusive of any applicant-caused delays.
USCIS Citizenship and Integration Grants
USCIS has awarded nearly $10 million through the Citizenship and Integration Grant Program to organizations in 21 states. The funds will assist LPRs become naturalized U.S. citizens. More information about the program is available at www.uscis.gov/grants.
VAIJ Becomes Part of KIND
Effective October 1, 2013, Volunteer Advocates for Immigrant Justice will become the official Seattle office of Kids In Need of Defense (KIND). VAIJ was founded ten years ago to provide pro bono representation to detained noncitizens in removal proceedings. KIND was founded in 2008 to provide representation to accompanied refugee and immigrant children. KIND Seattle will be headed by VAIJ director Juli Bildhauer.
[This is an excerpt from the Oct. 15, 2013, issue of Bender's Immigration Bulletin.]
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