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    Published on 07-23-2018 09:53 AM

    How Trump Administration Officials Can Be Found Criminally Culpable For Separating Children From Parents


    The Trump Administration has continued to perpetuate the falsehood that immigrants are criminals, despite overwhelming evidence that communities are safer when immigrants arrive . Trump’s recent spectacle to honor victims of crimes perpetrated by people who happened to be immigrants was designed to not just to spread hatred and fear of immigrants, but to counter criticism of his policies that have resulted in the cruel separation of children from parents. Trump cynically tried to show that Americans, whom he called “angel families,” have been permanently separated from their parents, thus attempting to deflect from the worldwide negative reaction he has received from the separation of immigrant families seeking asylum in the United States. While it is unfortunate that parents lost their children in crimes committed by immigrants, Trump has manipulated and exploited their unfortunate situation as justification for his inhumane policies.

    The purpose of this blog is to continue to focus on the gross abuses that were perpetrated on children by the Trump Administration. These abuses were intentional and targeted against children from Central America that ought to make the architects criminally culpable. The separations did not arise from a policy that could not be avoided under law. Indeed, it was a deliberate policy to deter people from Central America from applying for asylum under US law by cruelly separating children, knowing that it would cause them trauma and permanent psychological harm. Accordingly, the real criminals are not the immigrants. The real criminals are those in the administration who have separated families, subjected detained immigrants to inhumane and violent conditions, and who now seek to detain immigrant families indefinitely. These officials may never be prosecuted under US law, but it is important to show how they can be held criminally culpable under international law so that they can be amenable to prosecution at some point of time in the future.

    Article 7 of the Rome Statute of the International Criminal Court defines “crimes against humanity” as

    [A]ny of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

    1. Murder;
    2. Extermination;
    3. Enslavement;
    4. Deportation or forcible transfer of population;
    5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law ;
    6. Torture;
    7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
    8. Persecution against any identifiable group or collectivity ...
    Published on 07-20-2018 09:53 AM

    New Study Finds Taking In Refugees Strengthens U.s. At Home And Abroad


    Last month, the Center for Migration Studies (CMS) published a study by Donald Kerwin that explores whether admitting refugees into the United States advances American foreign policy and strengthens our economy here at home. Kerwin compared refugees who arrived in 9-year ranges —1987 to 1996, 1997 to 2006, and 2007 to 2016 — and reported that most of the time, refugees in the United States perform better than the general population in America. He also argues that refugee resettlement provides the United States a unique soft-power advantage in international relations that improves safety and security.

    The CMS report comes as the Trump administration continues to dismantle the U.S. refugee resettlement apparatus, despite growing evidence that refugees successfully assimilate into American life, contribute to our economy, and play an important role in our foreign policy.

    According to the study, refugee integration and success improves over time. Comparing the cohort of refugees with the most time spent in the United States versus the cohort with the least amount of time here reveals significant improvement on a range of metrics, as reflected in the chart below.

    The proportion of homebuyers with mortgages more than doubles, naturalization rates triple, and the percentage of individuals obtaining a college education doubles, in addition to gains in language proficiency and overall employment. ...

    Published on 07-19-2018 09:49 AM

    Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy


    U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1 , that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

    A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS notes that its officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

    Although it has always been possible for the USCIS to issue an NTA when an applicant is denied a benefit, it has generally not done so in the past for a number of sensible and practical reasons. Many applicants choose to leave the United States on their own upon the denial of the benefit, or delay their departure, if they legitimately seek to appeal the denial or seek reconsideration. It therefore makes no sense to further burden the already overburdened immigration courts with new cases, especially involving people who may already be departing on their own volition.

    While David Isaacson’s excellent blog “ Another Brick in the (Virtual) Wall: Implications of USCIS’s Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present ” gets into the implications behind the new policy, including its malicious intent, as “the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable ...

    Published on 07-18-2018 11:22 AM

    Another Brick in the (Virtual) Wall: Implications of USCIS’s New Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not “Lawfully Present”


    In a November 2017 article, the Washington Post described “How Trump is building a border wall that no one can see” : how the Trump Administration was, “in a systematic and less visible way . . . following a blueprint to reduce the number of foreigners living in the United States those who are undocumented and those here legallyand overhaul the U.S. immigration system for generations to come.” A month later, the New York Times published a similar article on Trump Administration efforts to reduce legal immigration using existing executive authorities. The latest guidance from U.S. Citizenship and Immigration Services (USCIS) regarding when USCIS will issue a Notice to Appear (NTA) is another step in that direction, and an even more problematic one than it might appear to be at first glance.

    USCIS recently announced in a Policy Memorandum, PM-602-0050.1 , that it is changing the way it decides whether to issue an NTA placing someone into removal proceedings in immigration court. In all cases other than those involving Deferred Action for Childhood Arrivals (DACA), which is the subject of separate NTA guidance , this new memorandum supersedes the previous USCIS NTA guidance that had been in effect since 2011 .

    The new NTA guidance in PM-602-0050.1 is said to be intended to implement the Trump Administration’s enforcement priorities as set out in the January 2017 Executive Order “Enhancing Public Safety in the Interior of the United States.” It lists a number of scenarios in which an NTA will generally be issued absent high-level approval to do otherwise, but perhaps the most significant is one buried at the bottom of page 7 of the memorandum, after discussion of various scenarios relating to fraud or criminal cases. The memorandum states there that “USCIS will issue an NTA where, upon issuance of an ...

    Published on 07-17-2018 02:34 PM

    India vs. Pakistan vs. Bangladesh – “The sun never sets on the British Empire!”


    At first sight, one could be excused for thinking that this was an article relating to cricket, after all With economic growth averaging 6 percent over the last two decades, South Asia has one of the world’s most dynamic economies. India is widely considered as the economic heavyweight in the region, yet one cannot ignore the substantial influence Pakistan and Bangladesh increasingly exert over South Asia.

    Interestingly enough, despite being former colonies of the British Empire and now all member states of the Commonwealth, the South Asian nations have failed to reap the full benefits by developing strong commercial relations with each other. Indeed, South Asia is one of the least economically integrated regions in the world. According to the World Bank, the total trade among the nations of the South Asian region is less than 5 percent of their trade with the rest of the world. One might attribute the lack of intraregional trade to high transport costs, protectionist policies and political tensions. With trade barriers and the deep-seated enmity between the nations in place, it naturally leads investors and entrepreneurs to explore economic opportunities elsewhere.

    One such hotspot is, obviously, the United States of America. The U.S. is the Land of Dreams and Opportunities and embraces many High Net Worth Individuals (HNWIs), of which India and Pakistan have a strong supply. India has one of the largest populations of HNWIs in the world, boasting ...

    Published on 07-16-2018 02:39 PM

    EB-5 Visa: Considerations for the Russian Investor



    The EB-5 visa has become a very popular way for obtaining permanent residency in the U.S. for many Russian people. This type of visa does not involve excessively long wait times for Russian nationals and requires no labor certification to prove unavailability of U.S. workers, no close family member in the U.S. to petition on behalf of immigrant, no assertion of exceptional or extraordinary ability, no showing of persecution or showing of fear that they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion, no business to operate directly on a daily basis, and no employment ...

    Published on 07-16-2018 10:49 AM

    The Invisible Wall is already Up and Running!


    While President Trump’s rhetoric on stopping illegal immigration and his administration’s discontinuation of the DACA program and Temporary Protective Status for various Central American countries has dominated discussions of immigration law, a little-known fact is that this administration has been slowing, and in some cases, stopping even the legal immigration pathway in the absence of Congressional action. What began as a travel ban and deportation of illegal immigrants who commit crimes while in our country has spread to a full blown anti-immigration policy that has led to an extraordinarily high number of visa application denials and extended ...

    Published on 07-13-2018 03:11 PM

    3 Tips to Answering the Double Specialty Occupation and Wage Level H1B RFE


    When CIS finds one problem with an H1B petition, they tend to find more. RFEs regarding multiple issues are common, and one of the most frequent ones we've seen is the Specialty Occupation and Wage Level Double RFE.

    This RFE deals with two H1B eligibility requirements:

    1. The job in question must require a US bachelor's degree or higher or its equivalent to meet specialization requirements.

    2. The employer must pay the H1B employee the prevailing wage for that position, in that industry, in that geographical location for companies of that size. ...

    Published on 07-13-2018 02:59 PM

    A Modest Proposal to Solve the Immigration Court Backlog


    Seven hundred thousand backlogged cases in Immigration Court is a crisis for aliens entitled to relief, for detained aliens and the taxpayers who are paying for their detention, for the reputation of the US in the world community, and for the administration of justice. Justice delayed is justice denied.

    Much ...

    Published on 07-12-2018 12:31 PM

    At Risk, Debt Arrangement, Guaranteed Redemption: Important Distinctions


    We have been counsel in various successful litigations where USCIS had challenged EB-5 petitions either based on an investment not being “at risk,” or based on the allegation that the investment was a “debt arrangement”, or based on a “guaranteed redemption”, or some combination of the three. Often USCIS uses the terms interchangeably as if they all relate to the same concept. They do not.

    The purpose of this blog is to distinguish between the three concepts, distinguish between various scenarios in which these issues are raised and distinguish between USCIS policy and our view of the law, which we advocate both to USCIS and in federal court.


    As mentioned, “at risk”, “debt arrangement” and “guaranteed redemption” are three separate issues. The first issue is whether the investment ...

    Published on 07-11-2018 09:47 AM

    USCIS Is Slowly Being Morphed Into an Immigration Enforcement Agency


    U.S. Citizenship and Immigration Services (USCIS) issued new guidance to initiate deportation proceedings for thousands of applicants denied for any immigration benefit. This policy change will have far-reaching implications for many of those interacting with the agency, but also signals a major shift in how USCIS operates.

    USCIS was never meant to be tasked with immigration enforcement. Their mandate has always been administering immigration benefits. With its distinct mission, USCIS was created to focus exclusively on their customer service function , processing applications for visas, green cards, naturalization, and humanitarian benefits.

    The new USCIS guidance instructs staff to issue a Notice to Appear (NTA) to anyone who is unlawfully present when an application, petition, or benefit request is denied. This will include virtually all undocumented applicants, as well as those individuals whose lawful status expires while their request is pending ...

    Published on 07-10-2018 02:17 PM

    California Employers Confused After Federal Court Enjoins Portions of AB 450


    Earlier this year, we blogged about AB 450 in California, the state law entitled “The Worker Protection Act” that was part of legislation passed last year in response to the Trump Administration’s enforcement-oriented stance on immigration. The law aimed to provide California workers some notice and protection at the work place regarding federal work-site enforcement programs.

    AB 450 requires employers to deny federal immigration enforcement agents access to the non-public areas of a business premises without a judicial warrant. The law also penalizes employers who attempt to re-verify I-9’s that are not expiring and requires certain notice to go the workforce in the event of an I-9 audit.

    In March 2018, US Attorney General Jeff Sessions sued the State of California in federal court to enjoin the enforcement of AB 450 and two other so called “Sanctuary State” laws. On the 4th of July, US District Court Judge John Mendez in Sacramento, California ...

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