Seattle Immigration Lawyer Blog

In a year when the State Budget was paramount, the Washington State legislature took up several immigration related bills, some with no fiscal impact, and others with a major fiscal impact. As the Washington State Legislative term winds down, but goes into special session to finalize the budget, this post focuses on several bills during the term. Immigration advocates supported some bills and opposed others. So far, we have been successful with each, although the session is not yet over.

Reducing the Maximum Sentence for Gross Misdemeanors to 364 Days

Immigration attorneys, advocates and allies pushed for two key bills that were ultimately passed and will be or have been signed into law by the Governor. First, SB 5168 reduces the maximum penalty for gross misdemeanors from 365 days to 364 days. I testified as Chapter Chair in support of this bill on behalf of the American Immigration Lawyers Association Washington Chapter along with colleagues from Washington Defenders Association, OneAmerica, the Seattle City Attorney's Office, Washington State Coalition Against Domestic Violence, and Washington Association of Criminal Defense Lawyers. There was no opposition testimony.

This bill originally stemmed from a series of incidents and policies enacted in several courts around the state where judges were routinely issuing 365-day sentences, even if suspended in whole or part without considering the impact of deportation on green card holders and others. An aggravated felon (even if convicted of a misdemeanor) is barred from most forms of relief from deportation and ability to return to the U.S. in the future. The majority of individuals (regardless of status) that receive jail sentences actually serve very little time in jail, if at all. But for immigrants, the maximum potential or actual sentence received, regardless if suspended, can make a big difference in ability to stay in the U.S. However, uniform application of 365-day sentence policies actually violate the gross misdemeanor sentencing statute and case law that requires a judge to use his or her discretion, considering a range of factors, to set proportionate sentences on an individualized basis. They can set a sentence anywhere in the range from zero to 365 days depending upon the facts in the case. The new provision with a potential maximum sentence of 364 days now makes the outcome of maximum sentencing determinations to have equal application to U.S. citizens and non-citizens alike. Furthermore, the statute does not change the role of immigration judges to make individual decisions about whether relief from removal is warranted. Washington Defenders Association took the lead in drafting the bill that was sponsored by Senators Prentice, Kline, Regala, Chase and Kohl-Welles. This bill has been signed by the Governor.

Consumer Protection for the Unauthorized Practice of Law in Immigration Services

The second bill, SB 5023, the Immigration Services Fraud Prevention Act, sponsored by Senators Prentice, McAuliffe, Litzow, Shin, Kline, Pflug, Fraser, Chase and Rockefeller, was recommended by the state's Attorney General as a consumer protection bill to clamp down on the unauthorized practice of law by non-attorneys holding themselves out as registered Immigration Assistants, notario publicos, immigration consultants or some other immigration specialist. The Immigration Assistant bill enacted in 1989 has resulted in several high profile prosecutions under the Consumer Protection Act where several registered Immigration Assistants, including some disbarred attorneys acting as Immigration Assistants, were accused of providing legal advice and violating other provisions of the Immigration Assistant Act and/or the Consumer Protection Act. Although many cases end up settling, the Attorney General's office has a substantial active investigation docket revealing many immigration consultants also never even registered as Immigration Assistants in the first place. Moreover, the State Department of Corporations has lacked the staff and funds to monitor the program. Under SB 5023 as finally passed by the legislature last week, the Immigration Assistant designation is removed. Non-attorneys will still be able to translate documents, help customers find supporting documents and scribe answers to questions on to forms, but they will not be permitted to perform the work of a licensed attorney as defined by the Supreme Court, such as advising about what category of immigration to file under, to deciding what form is appropriate or interpreting the meaning of questions or giving advice about how to answer questions on immigration forms. Existing Immigration Assistants and others who want to become authorized representatives, must register within six months under the federal scheme as persons authorized to represent individuals before the Department of Homeland Security and the Immigration Courts.

I testified as Chapter Chair in support of this bill on behalf of AILA, and was joined by the Attorney General, OneAmerica, the Latino/a Bar Association, the Northwest Immigrant Rights Project, and individual attorneys. We also attended several stakeholders meetings held by the House of Representatives. The bill became rather contentious at times, but ultimately passed with an amendment requiring the State Supreme Court to study the issue of non-lawyer services for immigrants. This bill has not yet been signed by the governor.

Drivers Licenses

Immigration advocates also successfully opposed several anti-immigrant bills (although, as of this writing, the session is not technically over, so anything can still happen in the final days.) The State legislature tried several times in separate bills (e.g., SB 5138, SSB 5407, SB 5333, 5338, HB 1577) and in amendments to SB 5023 above to change the requirements for obtaining drivers licenses that would impact immigrants, in legal status or not. The House Transportation Committee held an open hearing that was well-attended by people on both sides. However, in the end, attempts to create a two-tier license system or to require citizenship or social security numbers to get drivers licenses were defeated. Again, AILA provided written statements in opposition to these bills as we tried to educate the legislature about how both citizenship and social security numbers are misleading about what an immigrant's status and long-term right to be in the U.S. could be. There are a myriad of statuses as well as in-between statuses while applications are pending, often years at a time, when people may be in the U.S. with the knowledge and authority of the U.S. government. Further, there are several perfectly legal statuses where, for example, dependent spouses have valid visas but the category prohibits them from working. Social Security will not issue a number without a work permit in many of these situations, which would result in the person not being able to drive or get a Washington ID despite being here lawfully for several years. Some legislators, not really understanding how immigration law works, have demanded that licenses be given only to U.S. citizens, which would exclude all persons here legally with green cards and nonimmigrant visas.

Continue reading "Washington State Immigration Bill Recap" »

On February 23, 2011, U.S. Attorney General Eric Holder sent a letter to Speaker of the House, John A. Boehner, indicating the Administration's decision not to further defend Section 3 of the Defense Against Marriage Act (DOMA) in two pending cases, Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.) and Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.) Although the general rule in immigration law is that the U.S. must honor the laws of the place where marriages (deaths, births and divorces) take place, DOMA provides an exception since DOMA declares that marriage can only be between one man and one woman. Accordingly, although same-sex couples can marry in several states and countries, for immigration purposes, these marriages are not recognized as either a category of direct spousal sponsorship, or in the area of dependent visas, or as qualifying relatives for waivers and other relief from removal or inadmissibility.

On March 31, 2011, Congressman Rush Holt (D-NJ) wrote to Homeland Security Secretary, Janet Napolitano, requesting that she immediately halt the deportations of same-sex binational couples and resolve the case of Henry Velandia.

Then, on April 6, 2011, approximately 85 organizations sent a joint letter to Secretary of Homeland Security (DHS), Janet Napolitano, Juan Osuna of the Executive Office of Immigration Review (EOIR) in the Justice Department, and Thomas Hussey of the Office of Immigration Litigation (OIL) in the Justice Department asking that:
• I-130 visa petitions and refugee/asylum relative petitions and others filed on behalf of married same-sex partners as principals or derivatives or self petitions under VAWA be held in abeyance pending development of interim measures or resolution of DOMA;
• Concurrently filed applications for adjustment of status and petitions if filed on the above grounds be allowed to be filed and held in abeyance;
• The agencies decline to initiate or continue removal proceedings against noncitizens who are principals or derivative beneficiaries on petitions filed by or on behalf of same-sex spouses, or grant deferred action status;
• Derivative applicants in asylum applications involving same-sex spouses be allowed to seek relief from removal, in addition to similar relatives in cancellation of removal, waivers or VAWA cases;
• Proceedings in immigration court be terminated, or allow motions to reopen or reconsider to administratively close or continue proceedings until there is a final judicial resolution regarding DOMA;
• OIL attorneys be allowed to agree to or not oppose requests for stays of removal in federal court litigation until the DOMA case is resolved or there is a legislative resolution concerning DOMA and/or to request a continuance or request the court to hold such cases in abeyance or to stay the order until there is a resolution concerning section 3 of DOMA.

The Administration took a historic step forward in announcing its conclusion that Section 3 of DOMA is unconstitutional and indefensible. A Massachusetts federal court has ruled that DOMA cannot withstand even rational basis review. See Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010).

In a blog post by Victoria Nielsen, Legal Director of Immigration Equality (www.immigrationequality.org), she recommends that same-sex couples:
• Not race to the courthouse to challenge DOMA since the House of Representatives is likely to defend it some how. Instead, litigants or potential litigants should consult Immigration Equality or the American Immigration Lawyers Association (AILA) to discuss litigation strategy and get amicus help.
• Getting married might now makes sense in certain situations where the person is already out of status or is on a dual intent visa. People coming and going on temporary nonimmigrant visas or the visa waiver program requiring a permanent home abroad should probably still not get married to preserve future rights to use temporary visas or else they will be denied entry if the border officials have reason to believe the applicant is coming to the U.S. to stay permanently.
• DHS is still denying I130s visa petitions for same-sex partners, so it would not be advisable to step forward and apply until there is a firmer policy in place that would help applicants.
• Advocating for better laws, policies, and interim relief may be a better strategy unless litigation is adequately coordinated with groups that know this area the best such as AILA and Immigration Equality. For example, while DOMA is challenged, an important strategy is to call upon Congress to enact the Uniting American Families Act ("UAFA"), a bill that would allow U.S. Citizens and Lawful Permanent Residents to sponsor their long-term partners for immigration benefits whether or not they are married. Senator Patrick Leahy (D-Vt) reintroduced UAFA on April 14, 2011. A similar bill was introduced in the House on the same day by Congressman Jerrold Nadler (D-NY).

Continue reading "Impact of DOMA Developments on Bi-National Couples" »

So sorry to my readers for not posting lately. As Chair of the Washington Chapter of the American Immigration Lawyers Association (AILAWA), I have been very busy the last few weeks writing letters, testifying and attending meetings before the Washington State legislature on several immigration related bills since our fair state decided to get into the immigration business this year. I was also in Washington, D.C. where together with AILA colleagues, we visited the members of the Washington Congressional Delegation to advocate for immigration reform. While in D.C., I also attended the AILA quarterly Board of Governors and AILA Chapter Chairs meetings. Meanwhile, our chapter held its annual Northwest continuing education conference in Portland, Oregon, hosted by the Oregon AILA chapter where I spoke on a panel about the fall-out of the Kazarian case dealing with the evidentiary standards for Employment Based Extraordinary Ability workers, and the new Request For Evidence templates and policy memorandum concerning visas for crème de la crème workers. Now I'm getting ready for our annual AILA national conference coming up in June in San Diego where I will be speaking on consular processing of family based visas. In between all of this, I have had to focus on client work. So, with that as background, I'm going to catch up with some more articles on a variety of topics, as there is never a shortage of news on immigration and citizenship issues.