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Immigrants' Rights Update | July 6, 2011

Compose

VOLUME 25, ISSUE 2


NILC Statements, NILC in the News

New & Updated NILC Resources

Other Important New Resources

New Reports Available on the Web



NILC Statements, NILC in the News

NILC is now on Facebook. If you Facebook, please take a moment to “like” us there.

We are very pleased to report and many of you have already seen the stories in the media that over the past few months federal courts have agreed with many of our arguments against newly enacted anti-immigrant statutes in Utah, Indiana and Georgia, and have temporarily blocked their most egregious provisions from taking effect. In mid June, our policy director testified eloquently and persuasively about potential negative consequences if the federal government requires all employers in the U.S. to use an electronic employment eligibility verification system modeled on E-Verify. Reintroductions of the DREAM Act and the POWER Act are again forcing our senators and representatives to grapple with the crucial issues the bills address. And this summer we say goodbye to two NILC stalwarts, whom we’ll sorely miss, though they’ll continue to work on behalf of the cause.

Statements we and our litigation partners issued after federal courts in Utah (May 10), Indiana (June 24), and Georgia (June 27) handed down orders in response to lawsuits we filed are available in the news releases section of our website, along with links to other information, including the orders. Statements we issued upon filing the lawsuits, with links to pleadings, etc., are also there (see Utah, Indiana, Georgia). A handy national map, created and continually updated by our litigators and policy staff who track state and local anti-immigrant legislation, assesses the current status of Arizona SB1070-copycat legislation in the states where it’s been introduced and reflects these three latest victories.

Earlier, on April 11, when the 9th Circuit Court of Appeals issued its decision affirming a federal district court’s order that blocks the most egregious provisions of SB1070, Executive Director Marielena Hincapié had said, “[This] decision sends a strong message to Arizona and any other state that is trying to overstep its boundaries by denying [our] most treasured constitutional rights through anti-immigrant laws. Other states that want to walk [in] Arizona’s misguided and costly footsteps should take note: state immigration legislation is unconstitutional, as the court of appeals now has resoundingly confirmed.”

On another crucial front, NILC has been playing a lead role in illuminating the major flaws in proposals to require that all employers in the U.S. use an Internet-based employment eligibility verification system modeled on E-Verify. On June 15, Policy Director Tyler Moran served as an expert witness during a hearing on Rep. Lamar Smith’s recently introduced Legal Workforce Act (H.R. 2164), which is just such a proposal. The hearing was the first public discussion of the controversial bill.

When the DREAM Act was reintroduced on May 11, Marielena noted that the “members of Congress who cosponsored this legislation recognize that passing [it] cannot come quickly enough for the young men and women — and children — whom it affects.” And when the  Protect Our Workers from Exploitation and Retaliation (POWER) Act was reintroduced on June 14, Policy Attorney Emily Tulli said that its passage “would put an end to the unfair advantage unscrupulous employers currently enjoy by closing the legal loophole between immigration and labor law.”

Finally, this summer we’re saying goodbye to Dinah Wiley and Joan Friedland, two legends in their respective fields. When Joan joined NILC in 2002, she already had worked for many years as a lawyer for nonprofit organizations and in private practice in New Mexico and Florida, where she had litigated a slew of civil rights and immigration cases. At NILC she’s focused on enforcement and information-sharing policy issues affecting low-income immigrants, and has served as managing attorney in our DC office.

Dinah actually has had two stints at NILC (she couldn’t stay away!): from 1997 to 2000, then from 2006 until this summer, both in our DC office. During both stints, she focused on preserving and broadening immigrants’ access to health care and other critical public benefits and services. In between stints, she served as senior civil rights analyst at the U.S. Dept. of Health and Human Services’ Office for Civil Rights.

Joan and Dinah each will continue working on these issues from their new vantage points. When your editor asked Joan, who’s moving to New Mexico, what her plans are, she said, “I hope to work on projects there that bring together my immigration, civil rights, and criminal justice experience. Working for NILC and in the immigrants’ rights field has been an honor.” Dinah, when asked the same question, said, “I’m returning to independent consulting, working in areas of public policy, program development, and legal services. I hope to stay in touch and I’ll always have a big place in my heart for NILC’s immigrant rights mission.”

New & Updated NILC Resources

Since the last newsletter was published, we’ve posted these new or updated resources on our website:

STATES TRYING TO DO IMMIGRATION ENFORCEMENT

Pleadings and orders related to the lawsuits we and our partners have filed in federal courts this year to block implementation of newly enacted anti-immigrant laws in Utah, Indiana, and Georgia are available from our Local Law Enforcement Issues page. The cases are

     And on April 11, we posted the 9th Circuit’s decision in U.S. v. Arizona “AFFIRM[ing] the preliminary injunction enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6” S.B. 1070 being Arizona’s immigration enforcement law.

“SECURE COMMUNITIES” 

In April, NILC executive director Marielena Hincapié, on behalf of NILC and 11 sister organizations, sent a letter to the U.S. Dept. of Homeland Security’s officer for civil rights detailing fundamental flaws in DHS’s Secure Communities program and again making the case for why the program should be halted until the flaws have been corrected. Secure Communities is a program through which local law enforcement agencies share with the FBI and U.S. Immigration and Customs Enforcement (ICE) fingerprints taken of arrested individuals; ICE then asks those agencies to hold arrestees it wants to process, possibly for removal from the U.S.
     In early May, Policy Attorney Elizabeth Mauldin submitted a statement to a House of Representatives subcommittee hearing on “Border Security and Enforcement Department of Homeland Security’s Cooperation with State and Local Law Enforcement Stakeholders” in which she made the case that “two misguided trends have emerged in the relationship between police and immigration law: states have sought to legislate police involvement in the realm of federal immigration, and [DHS] has created deeply flawed programs that dictate how local police participate in federal immigration enforcement. Both the unconstitutional state legislation and the unchecked administrative programs increase the role of police in federal immigration enforcement while simultaneously reducing the discretion that police have in doing their jobs. The result of these shifts is the destruction of community policing.”

WORKERS’ RIGHTS | E-VERIFY

Rep. Lamar Smith (R-TX) introduced his Legal Workforce Act (H.R.2164) on June 14, legislation that would force every employer in the country to use a flawed Internet-based tool, patterned on E-Verify, to verify workers’ eligibility to be employed in the U.S. That same day, Sen. Chuck Grassley (R-IA) introduced the parallel Accountability Through Electronic Verification Act (S.1196) in the Senate. As reported above, on June 15 our policy director, Tyler Moran, served as an expert witness for the first congressional hearing held on Smith’s bill. Watch and listen to the hearing, then click on the “Watch Video Webcast” icon under “Hearing Documentation.” Fast-forward to minute 28:40 (when the hearing starts) or to minute 1:13:24 (when Tyler begins her testimony). Tyler’s written testimony is available, too, and is necessarily more thoroughly developed than her oral testimony.
     You can find both general and detailed summaries of each bill on our website, as well as a plethora of fact sheets and analysis related to the very controversial issue of federal or state governments requiring every employer in their jurisdiction to use the federal government’s electronic employment eligibility verification system (EEVS). Sample titles (this list is by no means exhaustive):

  • State and Local Chambers of Commerce Raise Concerns about E-Verify

  • State Policymakers Critique E-Verify: Quotations from Lawmakers

  • E-Verify Creates Burdens for Small Businesses

  •  Costly and Ineffective: What Arizona’s Experience with Mandatory E-Verify Teaches Us

  •  E-Verify: State-specific Facts (23 states)

     With respect to a related development, a link to the U.S. Supreme Court decision of May 26 affirming the judgment of the 9th Circuit in U.S. Chamber of Commerce v. Whiting, 563 U.S. __ (2011), a challenge to the Legal Arizona Workers Act, is available. Very briefly, the decision upholds provisions in the Arizona statute that provide for state sanctions against employers in Arizona that don’t use E-Verify.

WORKERS’ RIGHTS | OTHER

The same day that Rep. Smith and Sen. Grassley introduced their EEVS bills (June 14), Sen. Robert Menendez (D-NJ) and Reps. George Miller (D-CA) and Judy Chu (D-CA) introduced the POWER (Protect Our Workers from Exploitation and Retaliation) Act (S.1195), legislation that that would expand the right to organize and offer key protections to all workers in the U.S. Here is a one-pager summarizing and briefly analyzing its provisions.
     And in April, Tyler Moran wrote an article, Are SSA No-Match Letters Putting American Jobs at Risk?, for the Immigration Impact blog after the Social Security Administration announced that it would resume its practice of notifying employers of discrepancies in employee paperwork through “no-match letters.” Tyler anticipates that over 1 million workers will be the subjects of these letters and that many will be fired unjustly because of them.
     Earlier this year the U.S. Depts. of Labor and Homeland Security entered into a revised memorandum of understanding (MOU) to ensure that the two agencies’ worksite-based enforcement activities do not conflict. This 2011 MOU updates a 1998 MOU that was entered into between DOL and the then–Immigration and Naturalization Service. Immigration and Labor Enforcement in the Workplace: The Revised DOL-DHS Memorandum of Understanding (2011), produced jointly by NILC and the National Employment Law Project, answers questions about the 2011 MOU.

IMMIGRANT STUDENTS

Tanya Broder continues to keep abreast of developments regarding State Bills on Access to Education for Immigrants – 2011 and regularly updates our table that lists and summarizes them.
     When the DREAM Act was reintroduced on May 11, we posted a set of statements compiled from 35 organizations that support this latest attempt to regularize the status of immigrants who came to the U.S. as children and who have, for all practical purposes, never known any other home. Adey Fisseha, who leads our DREAM work, also oversaw the updating of our summary and analysis of the latest version of the act and of Basic Facts about In-State Tuition for Undocumented Immigrant Students.
     And whenever we send out a new DREAM Update, it’s also posted here.

PUBLIC BENEFITS

Since our last newsletter, Tanya Broder also has updated State-Funded SSI Replacement Programs (SSI = Supplemental Security Income, a program run by the Social Security Administration), a table that’s available from our Guide to Immigrant Eligibility for Federal Programs update page. And, in her role as consultant to the California Immigrant Policy Center, Tanya also recently updated a fact sheet about the Cash Assistance Program for Immigrants (CAPI), a California program that provides cash to low-income seniors and persons with disabilities who are not eligible for federal SSI due to their immigration status. See this and other California-specific public benefits eligibility information.

Other Important New Resources

Here are other newly available resources, as well as news or reminders we’d like to call to your attention:

Supplemental Nutritional Assistance Program: Guidance on Non-Citizen Eligibility. The federal Food and Nutrition Service has released a new guidance on immigrant eligibility for SNAP, formerly known as the food stamp program. The guidance includes a number of important clarifications, several of which advocates have been urging the FNS to adopt for years.

Guidance Published to Help DHS-supported Organizations Provide Meaningful Access to People with Limited English Proficiency. Earlier this year, the Dept. of Homeland Security finally published this long-overdue guidance in the Federal Register. The guidance is also available from the DHS website in Spanish, simplified Chinese, Haitian Creole, Arabic, Hmong, Korean, Russian, Vietnamese, Khmer. More information and links related to this issue are available on our website.

Joint Letter from Depts. of Justice and Education Reminding School Districts That All Students, Regardless of Immigration Status, May Enroll in Public Schools. On May 6 the U.S. Depts. of Justice and Education issued a letter reminding educators of their legal responsibility to educate all students, regardless of national origin or immigration status. The letter issued a stern warning to districts that student enrollment practices that may “lead to the exclusion of students based on their or their parents’ or guardians’ actual or perceived immigration status” would “contravene Federal law.”

Education Not Deportation: Guide for Undocumented Youth in Removal Proceedings. This guide, created by Asian Law Caucus, Dreamactivist.org, Educators for Fair Consideration, and National Immigrant Youth Alliance, “is intended to aid certain undocumented students and their lawyers to fight effectively throughout a removal (deportation) proceeding. We have written this guide specifically for students who have already sought all other options to avoid deportation, but we believe the information in this guide should be valuable to all undocumented students and their attorneys.”

Civics and Citizenship Toolkit.  In May, U.S. Citizenship and Immigration Services released an expanded edition of its toolkit, which now includes a start-up guide for organizations that want to expand ESL, civics, and citizenship education; suggestions on how to use the toolkit in your community; a short film about the naturalization process and test; and civics flash cards, multimedia study tools, and more. One free toolkit is available to immigrant-serving organizations; a list of types of eligible organizations can be found on USCIS’s toolkit registration page. Interested individuals or organizations that do not qualify to receive a free toolkit may purchase a copy from the U.S. Government Printing Office (GPO) Online Bookstore.

EOIR Flyer with Warning about Unauthorized Practice of Immigration Law. The Executive Office for Immigration Review has created a flyer to help in the fight against the unauthorized practice of immigration law.

Precedent Decision Re. Determining Respondents’ Competency to Understand Immigration Proceedings. Geoffrey Hoffman, director of the UH Immigration Clinic of the Univ. of Houston Law Center, in May alerted legal advocates via a message to the Detention Watch Network listserv of a precedent decision by the Board of Immigration Appeals articulating procedures that all immigration judges  must follow in determining competency issues. The citation for the decision is Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011).

Ethics and Professionalism Guide for Immigration Judges. On a note directly related to the item immediately above, the Executive Office for Immigration Review, the U.S. Justice Dept. office that oversees the (administrative) immigration court system, has posted the latest edition of its Ethics and Professionalism Guide for Immigration Judges.

Protecting Assets & Child Custody in the Face of Deportation: A Guide for Practitioners Assisting Immigrant Families. This guide is available from Appleseed.

Extension of Haiti for TPS, and Automatic Extension of EADs. Effective May 23, 2011, the Obama administration extended the designation of Haiti for temporary protected status (TPS) for 18 months, from the current expiration date of July 22, 2011, to January 22, 2013. Employment authorization documents (EADs) set to expire on July 22, 2011, will be automatically extended for six months until Jan. 22, 2012. U.S. Citizenship and Immigration Services will issue new EADs with a January 22, 2013, expiration date to eligible TPS beneficiaries who timely reregister and apply for an EAD. For more information about the 18-month Haiti TPS extension, click here, refer to 76 FR 29000 (Extension Announcement), 76 FR 29777 (EAD Extension), or call the USCIS TPS Hotline at 1-202-272-1533 (not a toll-free number).

  • To determine if an EAD is affected by this automatic extension, look at the “Category” section on the expiring (or expired) EAD. If either A12 or C19 is listed, then the employee is a TPS beneficiary. Next, look at the expiration date of the EAD. If the expiration date on the EAD is July 22, 2011, then the bearer is a TPS beneficiary from Haiti and his or her employment authorization has been automatically extended. If a different category or expiration date is listed, then the employee is not a TPS beneficiary from Haiti, and the usual reverification rules apply.

  • For information about completing or updating Form I-9 for a TPS beneficiary whose EAD has been automatically extended, consult the Handbook for Employers: Instructions for Completing Form I-9 (M-274), I-9 Central, or the Federal Register notice.

Social Security Administration POMS (Program Operations Manual System): “Alien Evidence for an SSN.” This June 20, 2011, POMS transmittal says, “This transmittal explains when a non-immigrant alien is eligible for an employment-authorized Social Security number (SSN). It describes the type of employment authorization that non-immigrants need to be eligible for an SSN. It also explains the automatic Employment Authorization Document (EAD) extensions that originate from Temporary Protected Status and Deferred Enforced Departure designations. It further explains how to process SSN applications involving automatic EAD extensions and provides the latest automatic EAD extension information.”

Updated Procedures in Addressing Immigration Status Issues That Arise During NLRB Proceedings. According to this June 7, 2011, memo issued by the Office of the General Counsel of the National Labor Relations Board, “The [National Labor Relations Act] protects all employees covered by the Act regardless of immigration status; however, immigration status issues may affect remedies and occasionally present other practical difficulties for the enforcement of the Act. Supplementing GC 02-06, this memorandum provides further guidance for proceeding when immigration status issues arise during NLRB case handling. It also identifies immigration agencies that have discretion to provide immigration remedies and other assistance to discriminatees or witnesses in Board proceedings.”

The U Visa and How It Can Protect Workers | U.S. Dept. of Labor U-Visa Protocols: “Certification of Supplement B Forms of U Nonimmigrant Visa Applications.” “This memorandum discusses the guidelines and procedures the Wage and Hour Division will follow to determine when and whether to complete and certify Supplement B of a I-918 petition for U Visa Nonimmigrant Visa Status. The Secretary of Labor has the authority to complete and certify Supplement B forms for U Nonimmigrant Visas (U Visas) under Section 1513(b) of the Victims of Trafficking and Violence Protection Act of 2000, as amended, 8 U.S.C. § 1101(a)(15)(U) and related Department of Homeland Security regulations, 8 C.F.R. § 214.14.”

The U Visa and How It Can Protect Workers | Department of Labor U Visa Process and Protocols: Questions & Answers.   Exactly as billed, this is a Dept. of Labor Q & A piece about U visa processes and protocols.

Federal Protections Against National Origin Discrimination | Protecciones Federales Contra la Discriminación por Origen Nacional. This brochure is available from the Civil Rights Division of the U.S. Dept. of Justice in English and Spanish, and also in Arabic, Cambodian, Chinese, Farsi, French, Haitian Creole, Hmong, Hindi, Korean, Laotian, Punjabi, Russian, Tagalog, Urdu, and Vietnamese from www.justice.gov/crt/publications.

Employment Verification: Agencies Have Improved E-Verify, but Significant Challenges Remain.  This is testimony submitted by the Government Accountability Office’s director for homeland security and justice, Richard M. Stana, before the Subcommittee on Social Security of the U.S. House of Representatives’ Committee on Ways and Means on April 14, 2011.

Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.  This already controversial June 17, 2011, memo to the U.S. Immigration and Customs Enforcement “field” from John Morton, ICE’s director, was made public in conjunction with an announcement from ICE about “improvements” to the Secure Communities program.

Prosecutorial Discretion: How to Advocate for Your Client. “This Practice Advisory explains what prosecutorial discretion is, who has authority to exercise it, and how it is exercised most often in immigration cases. It also suggests ways that attorneys can influence the favorable exercise of prosecutorial discretion by ICE and USCIS officers.” Published by the Legal Action Center.

2011 Immigration-Related Laws, Bills and Resolutions in the States: Jan. 1–March 31, 2011. An excerpt from the introduction to this report: “State legislatures continue to grapple with immigration issues at an unprecedented rate. In the first quarter of 2011, state legislators in the 50 states and Puerto Rico introduced 1,538 bills and resolutions relating to immigrants and refugees. This number surpasses the first quarter of 2010, when 1,180 bills were introduced.”

New Reports Available on the Web

And finally, here’s a selection of the many immigrants’ rights-related reports that have caught your editor’s eye since April (many of the below links are to PDFs).