Monday, January 31, 2011

Baby Carlos: An "Immi-doption" Case For Solomon

  • Decision by Supreme Court of Missouri on Jan. 25, 2011 here.
  • Commentary by Mary Sanchez, Kansas City Star, on Jan. 31, 2011 here.
  • Article by Laura Bauer, Kansas City Star, on Jan. 29, 2011 here.
  • Editorial by St. Louis Post-Dispatch Editorial Board on Jan. 30, 2011 here.

Sunday, January 30, 2011

Judge orders state paternity requirements eased

"A federal judge has ordered state health officials to stop denying unmarried parents an easy way to designate a child's legal father if one or both parents lack a Social Security number.

U.S. District Judge Tanya Walton Pratt ruled Thursday that there was enough evidence to show a lawsuit challenging the constitutionality of the policy could succeed, and she issued a preliminary injunction to stop the practice until the case is resolved.

The lawsuit was filed against the Indiana State Department of Health by a group of families whose immigration status does not allow them to get Social Security numbers, said Ken Falk, legal director of the American Civil Liberties Union of Indiana, which is representing the families.

The suit challenges the constitutionality of how paternity affidavits -- forms that unmarried parents can fill out to establish a child's legal father -- are issued.

Falk said the policy hurts legal residents as well as illegal immigrants, since people who are in the country legally, such as on certain types of visas, also cannot get Social Security numbers.

The state could appeal the injunction before the lawsuit moves forward, but Falk hopes the state will agree to change its policy permanently.
The Department of Health used to accept paternity affidavits even if one or both parents' Social Security numbers were missing. But since July 1, it has required both parents' Social Security numbers to validate the forms.
The lawsuit claims the change deprives foreign nationals' U.S.-born children, who are U.S. citizens, of the ability to obtain child support and other benefits of having a legal father.

Erin Kellam, who became state registrar in March, said she determined the change needed to be made based on her interpretation of a state law requiring Social Security numbers on the forms.

Kellam said she was unaware that a policy interpretation of a similar federal law had decided that forms without both parents' Social Security numbers could still be accepted.

She told Pratt that the state law requiring two Social Security numbers "seemed so clear" that she thought it wouldn't be subject to interpretation.

Pratt took issue Thursday with the state's claim that it needs parents' numbers to enforce child support. She called that argument "very hollow" because the state admitted it doesn't verify the Social Security numbers, so anyone could provide a false one.

In her ruling, Pratt noted that decisions in previous cases show children cannot be punished for their parents' immigration status.

She also said the state's intent in enacting a paternity affidavit law was to give people a way to establish paternity voluntarily without going through a tedious and costly court process, and that option should be open to everyone.

And, Pratt said, having a father's name and address gets the state a step closer to enforcing child support than refusing someone paternity if he doesn't have a Social Security number.

"Legitimizing children is very much in the public's interest," she said."

Indy Star, Jan. 28, 2011.

Follow Star reporter Carrie Ritchie on Twitter at CarrieRitchie. Call her at (317) 444-2751.

Monday, January 24, 2011

"Social group" victory in San Antonio

On January 18, 2011 Immigration Judge Bertha A. Zúñiga issued what could be a landmark decision, if upheld, in granting asylum to a woman from Honduras who belonged to the "particular social group of Honduran women who are unable to leave their domestic relationship."

Hats off to Yasmin E. Voglewede, Accredited Representative at Catholic Charities San Antonio for relentless preparation of this difficult case.

Tuesday, January 18, 2011

"Repapering" Victory in Arizona

Super-litigator David Asser of Phoenix has wrung a "repapering" victory out of the BIA.  Here are the relevant documents in the Salguero-Morales case:
Hats off to David!

Tuesday, January 11, 2011

AAO ULP, CIMT victory; discussion of danger in Mexico

"...the AAO will not conclude that the applicant's conviction for motor vehicle theft is a crime involving moral turpitude. ... the AAO finds that the applicant's conviction for criminal mischief is not a crime involving moral turpitude and the applicant is not inadmissible under section 2l2(a)(2)(A) of the Act. ... The AAO finds that the applicant's spouse has established that she is suffering extreme hardship as a result of separation and would suffer extreme hardship as a result of relocation. The violence in Michoacan, Mexico is severe and the applicant's spouse would be relocating with two young children, one of whom requires ongoing medical care. The AAO finds that relocating to Mexico would mean the applicant's spouse would not only be putting her life in danger, but also the lives of her two small children. The AAO also finds that the applicant's spouse is suffering extreme hardship as a result of separation. The record indicates that the applicant's spouse is struggling financially and emotionally in caring for two small children, one with serious medical problems. The record also indicates that the applicant's spouse is concerned for her husband's safety in Mexico. Thus, the AAO finds when taken together, the hardships being suffered by the applicant's spouse as a result of separation rise to the level of extreme."  Matter of X- Jan 4, 2011.

Hats off to Mark Barr of Lichter & Assoc., Denver, Colorado.

Friday, January 7, 2011

AAO (Partially) Unmasked

Carlos Holguín writes:

In September 2009 the Center for Human Rights & Constitutional Law submitted a request under the Freedom of Information Act for documents shedding light on CIS's Administrative Appeals Office, an agency about which little information has been made public.

As you may know, 8 C.F.R. § 103.3(a)(1)(iv) provides: "The AAU is the appellate body which considers cases under the appellate jurisdiction of the Associate Commissioner, Examinations." 8 C.F.R. § 103.3(a)(1)(ii), in turn, states: "Certain unfavorable decisions on applications, petitions, and other types of cases may be appealed. ... Decisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in § 103.1(f)(2) of this part." Yet 8 C.F.R. § 103.1 contains no subsection (f)(2). Apparently due to a "drafting error" there haven't been any regs fixing the AAO's jurisdiction (apart from 245A and 210 legalization appeals) since 2003.

In addition to exercising a largely undefined jurisdiction, Angelo Paparelli makes these further points about the AAO in his blog:

This week USCIS convened an Administrative Appeals Office (AAO) "Listening Session" which offered the following highlights [with my response in brackets]:

•    The practice of filing one or more petitions after the initial request is denied constitutes an "abuse" of process, according to USCIS. [If the AAO did not take years to decide petitions, and the economy could be held in suspended animation while an appeal wends its way to its dilatory conclusion, there would be little need to pursue a legitimate practice, not prohibited by current regulations, to file a second or subsequent petition seeking to resolve perceived deficiencies cited by the adjudicator.]

•    The AAO engages in de novo review of facts and law and will deny petitions on grounds never asserted by the initial USCIS adjudicator.  [The Board of Immigration Appeals, unlike the AAO, has issued detailed regulations to govern its proceedings, including a regulation, 8 C.F.R. § 1003.1(d)(3), that eschews fact finding and only considers de novo "questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges."  Although the AAO conceivably could give appealing parties a chance to argue issues not raised in the first instance below, it rarely does.]

•    The AAO intends to issue many more precedent decisions but will not make USCIS policy, although it does claim the authority to follow the reasoning of non-precedent decisions. [The problem with this approach is that development of the law is not advanced through notice-and-comment rulemaking as the Administrative Procedures Act contemplates, but by the advocacy skills of the single lawyer raising the appeal for the single party who appeals.  Increasingly, however, multiple parties have tangible legal interests that are adversely affected even though USCIS regulations provides no right to appeal and requires the loss of interim legal rights as the cost of an appeal.]

•    The AAO regularly consults with the Office of the Chief Legal Counsel on issues raised in appellate cases. [In tribunals that follow the rule of law, canons of legal and judicial ethics bar such unilateral contacts without notice and an opportunity for a hearing in which all parties and the court participate and the proceedings are transcribed for the sake of further legal proceedings.]

•    The AAO adheres to USCIS policy but could not precisely define the sources of authority that constitute agency policy. [When a caller asked during the Listening Session to clarify, e.g., whether any of the many Neufeld Memorandums stand as USCIS policy, she was given no clear answer.  Instead, she was asked to send in samples of agency documents to determine if the documents constituted policy, to which she replied that she would send in the documents once the agency defined what constitutes agency "policy."]

•    Although the AAO considers itself a tribunal, not all of its "jurists" are lawyers.  [While, as was claimed during the Listening Session, non-lawyer decision-makers can issue opinions as solidly as their attorney counterparts, persons not licensed as lawyers are not subject to discipline under the rules governing judges and lawyers.]

We met with much resistance to our request. In the end, we had to sue to compel release of the requested information, but CIS has now disclosed most of what we had asked. Our FOIA request, the agency's cover letter, and the documents it has released in response to our request are available here:

Please feel free to publicize these documents as widely as you see fit.

Thank you,

Carlos Holguin
General Counsel
Center for Human Rights and Constitutional Law
256 S. Occidental Blvd.
Los Angeles, Ca. 90057
Telephone: (213) 388-8693 ext. 309
Facsimile: (213) 386-9484
Electronic mail: