Welcome to the first issue of The Globe for the 2008-2009 year. I look forward to working with Pradip Sahu, the new Chair, and the other new officers and new and reappointed members of the Section Council. I am sure they will assist in us keeping up our tradition of six to eight issues of The Globe each year, containing a wide range of excellent articles with information for the varied members of the Section and other readers of The Globe.
On May 1st the International and Immigration Law Section Council of the Illinois State Bar Association jointly sponsored with the Human Rights Section Council of the ISBA, the Decalogue Society of Lawyers, and The John Marshall Law School, a program on “The Crisis in Darfur.” The content of the program was mentioned in the last issue of The Globe.
Cindy G. Buys, a speaker at the program that gave an overview of the crisis (Cindy is also Secretary of the Section Council and an associate professor of law at Southern Illinois University School of Law) provided a timeline of recent events to explain the chronology in Darfur. The timeline is included in this issue of The Globe.
Section Council member Scott D. Pollock provided the opinion piece on “Citing Foreign and International Law in U.S. Domestic Court Decisions: What Would the Founding Fathers Say?”
Kevin Raica, with the Azulay Seidon Law Group, published “Navigating the Employment Eligibility Verification Process (Form I-9)” in the May 2008 issue of The Bottom Line, the newsletter of the ISBA Standing Committee of Law Office Management and Economics. Kevin gave his approval for us to reproduce that article in this issue of The Globe.
In recent issues of The Globe we have included details on pro bono projects that attorneys could undertake in the immigration area. The material has been provided by Jefferson Mok of the National Immigrant Justice Center, where he served as Pro Bono Project Coordinator. Mok is moving on to The Heartland Alliance’s International Program, where he will be engaged in development work in East Africa. We have included recent material from him concerning asylum and other related matters. We are confident that the opportunity for pro bono volunteering will continue with the work of Megan Baumann, Mok’s successor.
Thank you to all our contributors.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (815) 459-3120
Email: lfmatuszewich@mkm-law.com
I would like to welcome all of the members of our section and our new council for the upcoming 2008-2009 year. In his address to Section Council Officers at the Annual Meeting in St. Louis, ISBA President Jack Carey underscored the ISBA’s continuing focus of diversity in our bar association and profession. He pointed out that diversity was one significant factor in his selection process for council officers. As a result, this year we appear to have the most diverse group of council members that I have had the pleasure to work with over the past several years.
We have an enthusiastic group, and I will endeavor to continue the fine work that Lewis Matuszewich made during his term as Chair last year. Lew led our section in the coordination of two well-attended CLE programs, several consular and student outreach programs, proposals to legislation, and the editing of our section’s newsletter, The Globe, among other activities. In fact, Lew was honored at the Annual Meeting for his great work as newsletter editor for the past 10 years. Lew will continue as editor while providing valuable guidance to our section throughout the year.
Cindy Buys, now Vice-Chair, is continuing her work with regard to consular notification. She recently submitted a CLE proposal that we are proposing to be presented at the Mid-Year Meeting, which is intended to educate attorneys and judges about the Vienna Convention on Consular Notification and other similar conventions. She is also continuing her efforts with regard to a proposed Supreme Court Rule 404, which would require Illinois state court judges to notify foreign nationals at an early stage in any criminal proceedings that they have a right to have their consulate informed that they have been arrested or detained.
David Austin was appointed Secretary of our section, and he will be assisting in coordinating a CLE program involving immigration issues. Last year, he led a great program spotlighting the representation of immigration survivors of domestic violence.
Also at the Annual Meeting, I appointed Shannon Shepherd (former Chair of our section) as the Primary Coordinator and Macarena Tamayo Calabrese as Coordinator for our section’s CLE programs. I appointed Rebecca Van Court as Chair and Ennedy Rivera as well as Cindy Buys as Members of the Legislation Subcommittee. Lastly, I appointed Gwendolyn Osmer as Web site Liaison for a second term and Vincent Flood as Associate Newsletter Editor.
Finally, I am asking our section’s members for their suggestions on what they would like our section council to accomplish this year. I welcome new ideas for CLE programs, outreach programs and other activities that you feel would be a benefit to the public, our profession and our association. Please feel free to e-mail me at Pradip@sahu.com with your ideas and suggestions. I look forward to working with you all this coming year.
Pradip K. Sahu
USG Corporation
550 W. Adams Street
Dept. 189
Chicago, Illinois 60661
(708) 769-5408 Telephone
pradip@sahu.com
The International and Immigration Law Section Council, the Human Rights Section Council, the Decalogue Society of Lawyers, and the John Marshall Law School organized a meeting on May 1st at The John Marshall Law School concerning “The Crisis in Darfur.” Cindy Buys, one of the speakers and Secretary of the International and Immigration Law Section Council prepared the following timeline as a handout for the presentation.
Mar 2003: Fighting breaks out between the Sudanese government and rebel forces of the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM). Most of the rebels are black African tribesmen in the Darfur region who accuse the Sudanese government of neglecting the Darfur region and discriminating against black Africans in favor of ethnic Arabs with respect to distribution of land and other resources. The Sudanese government responds with a campaign of aerial bombardment in support of ground attacks by a largely Arab militia, known as the Janjaweed.
Apr 2003: Refugees begin arriving in neighboring Chad to escape the conflict.
Sept. 2003: The SLA and the Sudanese government reach a ceasefire, but soon both sides accuse the other of breaking it. The UN Secretary-General, Kofi Annan, sends a special envoy to the region, who appeals for humanitarian aid, as does the UN High Commissioner for Refugees (UNHCR).
Dec 2003: New round of attacks by Janjaweed, including burning of villages and murders and rapes of civilians drive 10,000 more refugees into Chad. UN reports that humanitarian aid comes to a near standstill due to obstruction by Sudanese government.
Jan 2004: Sudan sends army into Darfur, increasing refugee flow into Chad. There are now more than 100,000 refugees in Chad. UNHCR builds safe camps in Chad and begins moving refugees away from Sudanese border. UNICEF begins measles vaccination campaign and vitamin A distributions.
Feb 2004: World Food Programme (WPF) steps up efforts to feed hungry. UN Disaster and Assessment Coordination Team ([JNDAC) is deployed to Sudan.
Apr 2004: Sudanese government and rebels sign 45-day ceasefire agreeing to deployment of AU peacekeepers and facilitating humanitarian assistance to reach Darfur.
May 2004: Head of WFP tells UNSC that Sudanese government has carried out massive violations of human rights in Darfur. Ceasefire is broken; first international observers arrive in region.
Jun 2004: UNSC adopts Resolution 1547 adopting the UN Secretary General’s proposal to establish a UN advance team in Sudan as a special political mission to prepare for international monitoring, known as UN Advance Mission in Sudan (UTI4AMIS).
Jul 2004: UN Secretary General visits region and warns of “catastrophic levels” of suffering. UN and Sudanese government sign joint communiqué making pledges to alleviate the conflict in Darfur. Sudanese government sends troops to region to maintain peace and security; SLA and JEM refuse to engage in peace talks until government troops leave Darfur and Janjaweed are disarmed. US Congress passes declaration declaring atrocities in Darfur to be genocide.
Jul 20, 2004: UNSC passes Resolution 1556 for the first time invoking its powers under Chapter VII of the UN Charter. While reaffirming the sovereignty of Sudan, it determines that the situation in Sudan constitutes a threat to international peace and security and to stability in the region, in part based on the huge refugee flow into Chad and the cross-border incursions by the Janjaweed in pursuit.
The Resolution:
• condemns all acts of violence and violations of human rights and international humanitarian law by all parties to the crisis;
• calls on the government of Sudan to fulfill all commitments made in the 3 July 2004 communiqué;
• endorses and welcomes the work of international monitors and calls on international community to support that work;
• urges parties to conclude a political agreement without delay;
• demands that Sudanese government fulfill its commitments to disarm the Janjaweed and to bring to justice those who have committed human rights violations;
• decides that member states shall take all necessary steps to stop sale or supply to all non-governmental persons operating in Darfur of arms, weapons, military vehicles and equipment and to stop technical assistance.
Aug 2004: UN begins dropping food by air into Darfur region and participates in African Union (AU)-sponsored talks between the Sudanese government and the rebels.
Sep 2004: Number of refugees in Chad passes 200,000. UNSC adopts Resolution 1564 declaring that Sudanese government has not fulfilled its obligations under previous UNSC Resolutions and that all parties have violated the ceasefire agreement; urging member states to support the monitoring efforts of the AU (which is increasing its personnel in Sudan to 3,320); and demanding that the Sudanese government provide verification documentation to the AU regarding human rights violations; requesting that the UN Secretary General establish an international commission of inquiry to investigate reports of human rights violations.
Jan 2005: Comprehensive peace agreement is signed between government of Sudan and Sudan People’s Liberation Movement/Army (SPLM/A) in Kenya.
Mar 2005: UNSC adopts three resolutions with respect to Sudan:
Resolution 1590 establishing the UN Mission in Sudan (UNMIS) to replace UNAMIS consisting of up to 10,000 military personnel plus a civilian component to work with the AU in supporting implementation of the January peace agreement and the ceasefire agreement; restructuring the civilian police in Sudan; promoting the rule of law and establishment of an independent judiciary; facilitating the return of refugees and internally displaced persons (IDPs); and providing humanitarian assistance. UNMIS is authorized to take all necessary action to protect UN personnel and facilities, and to ensure the freedom of movement and security of UN personnel and humanitarian workers.
Resolution 1591 deploring the parties failure to comply with previous resolutions; establishing a committee of the UNSC to oversee matters with respect to Sudan; and establishing economic sanctions against persons deemed to have impeded the peace process or to constitute a threat to peace and security in the region or who are accused of violating human rights law in Sudan.
Resolution 1593 referring the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court (ICC).
Jun 2005: ICC announces it will launch investigation into suspected war crimes in the Darfur region.
Oct 2005: UN orders non-essential personnel out of Western Darfur due to attacks on aid workers.
Mar 2006: UNSC adopts Resolution 1663 welcoming an agreement between the UNSC and the AU to transition the AU Mission in Sudan to a UN operation within the framework of a partnership between the AU and the UN.
Apr 2006: UNSC adopts Resolution 1672 imposing sanctions on four persons from Sudan accused of involvement in the Darfur conflict.
May 2006: A peace agreement is reached between the Sudanese government and one faction of the SLA on May 5. UNSC sends team to Sudan to prepare for UN peacekeepers to take over from AU soldiers. Kofi Annan reports to UNSC that Sudan is violating international humanitarian law by barring relief aid to reach persons in Darfur. UNHCR reports that Sudanese government is not keeping its promise to stop attacks on black African civilians.
Aug 2006: UNSC adopts Resolution 1706 expanding UNMIS to 17,300 military personnel plus civilian personnel including 3,300 civilian police and gives UNMIS authority to prevent attacks and threats against civilians in support of the peace agreement.
Oct 2006: Sudanese government announces its willingness to allow UN peacekeepers into region after previously calling the UN’s peacekeeping plan “neocolonial.”
Nov 2006: UN pledges $77 million in personnel and equipment to AU in Darfur region. UN and world leaders reach tentative agreement with Sudan to allow joint UN and AU peacekeeping force into Darfur. UN Human Rights Council votes 22-20 to reject resolution calling on the Sudanese government to prosecute those responsible for killing, raping or injuring civilians in Darfur.
May 2007: US unilaterally imposes additional diplomatic and economic sanctions.
Jul 2007: UNSC adopts Resolution 1769 creating an AU/UN Hybrid operation in Darfur (UNAMID) and authorizing 19,555 person peacekeeping force for Darfur region.
2008: The conflict continues. Joint AU and UN peacekeeping forces have been deployed, but only 9,000 out of 26,000 authorized peacekeepers are on the ground. Last month (April),UN Undersecretary-General for Humanitarian Affairs, John Holmes, claims that as many as 300,000 people have probably died as a result of the conflict and 2.5 million persons have been displaced from their homes.
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The Timeline was prepared by Cindy G. Buys, Associate Professor of Law, Southern Illinois University School of Law and Secretary of the Illinois State Bar Association’s Section Council on International and Immigration Law.
In speeches to several law schools in 2005, former Attorney General Alberto Gonzales, criticized the use of foreign law in Supreme Court opinions, “calling it anti-democratic and unworkable.” An article from one of these speeches quoted Gonzalez: “Foreign judges and legislators are not accountable to the American people.” Accordingly, using their opinions or enactments “binds us on key constitutional issues.” The article went on to note that the Supreme Court cited foreign sentiment against the death penalty in part to strike down the death penalty against juveniles convicted of murder, and quoted former Rep. Tom Delay, R-Texas’s references to Justice Anthony M. Kennedy, who wrote the opinion in Roper v. Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), as “incredibly outrageous” and “activist.” The article balanced this position with a quote from Justice Ruth Bader Ginsburg, who said “I will take enlightenment wherever I can get it. I don’t want to stop at a national boundary.”
Those who criticize citing foreign or international law tend to be regarded as “originalists” who interpret the Constitution as it was written at the time of the founding of the United States. So what would the founding fathers have said about this controversy? One indication comes from the Federalist Papers, which provided the rationale for the country to adopt the new federal constitution. Federalist No. 63 [Alexander Hamilton] from March 1, 1788, appears to come close to answering the question:
An attention to the judgment of other nations is important to every government for two reasons: The one is, that independently of the merits of any particular plan or measure, it is desirable on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy: The second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world, may be the best guide to be followed. What has not America lost by her want of character with foreign nations? And how many errors and follies would she not have avoided, if the justice and propriety of her measures had in every instance been previously tried by the light in which they would probably appear to the unbiased part of mankind?
While critics of the use of foreign and/or international law in U.S. decisions may say a U.S. legislature may consider the judgment or practices of foreign nations but not U.S. judges, the Federalist No. 63 does not make such a distinction. Indeed, the Supreme Court’s and lower federal courts’ opinions are often the most public expressions of the policy of the United States on any number of hot-button issues. Thus, it would seem that Justice Ginsburg shares the sentiment of the founding fathers, at least that expressed in one authoritative and respected source. We should ask then whether those who are would categorically reject foreign or international law sources might be “warped by some strong passion or momentary interest,” in the words of Alexander Hamilton. His stated goal was practical and reasonable: to avoid errors and follies, of which we have no shortage. So who in this debate is the originalist and who is the activist?
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Scott D. Pollock is the founder and principal attorney in Scott D. Pollock & Associates, P.C., an immigration law firm in Chicago. He is a member of the ISBA Section Council on International and Immigration Law. He may be reached at 312-444-1940 or spollock@lawfirm1.com. This short opinion piece was inspired by, and quotes from the reporting of Mark Sherman in his article “Gonzales Weighs in on International Law,” by Mark Sherman, Associated Press, 19 October 2005.
For over two decades, employers have been required to verify that the people they hire are legally authorized to work in the United States. Fellow lawyers take note-this requirement applies to business of all shapes and sizes, so it applies to you and to your clients. In 1986, the then Immigration & Naturalization Service (now reconstituted as the U.S. Citizenship and Immigration Service [USCIS] one of a number of agencies within the U.S Department of Homeland Security [DHS]) created the Form I-9 “Employment Eligibility Verification Form” (may be found at <http://www.uscis.gov/portal/site/uscis>). The instructions to Form I-9 required that employers complete the form after a person is hired to verify the person they hire is authorized to work in the U.S. The form must be completed AFTER the hiring has occurred, and employers must be very careful not to discriminate based on any factors during the hiring process. The instructions and form list the requirements the employer (and employee) must follow, including review of documents and confirmation of the employee’s identity.
Since first being introduced over 20 years ago, the I-9 process has been a pitfall for employers. The questions that must be answered, namely (i) what needs to be completed, (ii) what documents are acceptable, (iii) whether copies of the documents and form need to be made or kept, (iv) what consequences are there for failing to (properly) complete the I-9, and (v) what are the legal protections available if the form is completed and maintained, often leave employers bewildered. The I-9 form has received a lot of attention in the last few months. The form itself was recently updated, and the U.S. Immigration & Customs Enforcement (ICE) has stepped up its enforcement and punishment efforts of employers who employ people who are not authorized to work. Therefore, the proper completion and retention of the I-9 forms, and the execution of the overall process, has been, and should be of great concern to you and your clients. This article clarifies the I-9 process and provides you with a step-by-step guide to I-9 completion.
What Employers Should Do
Essentially, an employer has five requirements in the I-9 process: 1) ensuring that all areas of the I-9 are completed; 2) that the I-9 is signed and dated (either written or electronically); 3) to accurately record the information on the documents provided by the employee; 4) to re-verify certain documents with expiration dates; and 5) to retain the necessary documents.
While employers must be diligent in their efforts to comply with the I-9 process, employers must be careful not to intentionally discriminate against employees based on national origin or citizenship status. The law protects most U.S citizens, lawful permanent residents, temporary residents and asylees and refugees from discrimination on the basis of national origin or citizenship status if they are authorized to work. Employers can not refuse to hire someone and can not fire someone because of their national origin or citizenship status. Employers can not ask for specific documents in completing the I-9 Form and must accept documents from the list that accompanies the I-9 and that appear to be genuine.
1) Completing all areas of the I-9
The employer must have the employee complete Section 1 of the I-9 by the start of the employee’s first day. The employee must complete Section 1 themselves. The employer must complete Section 2 of the I-9 within 3 business days of the employee’s start date.
2) Signature of the I-9
If the employer is keeping a physical copy of the I-9, the I-9 must be physically signed and dated. If the employer is storing an electronic copy of the I-9, the employer can electronically sign and date the I-9. In addition to signing the I-9 themselves, the employer must make sure the employee signs the I-9. If the employee refuses to sign, the employer can not continue to employ them.
3) Accurately recording information on employment eligibility documents
After a job offer is made, an employer must verify the prospective employee’s eligibility to work. An employee can produce whatever documents they choose to prove their eligibility to work and the employer can not ask for specific documents. However, the employer must make sure that the documents provided qualify as List A, B or C documents as described on the I-9 form.
An employee must prove that he is both eligible to work in the U.S. and that his identity matches the documents he provides to prove eligibility to work. List A documents such as a U.S. Passport or a U.S. Birth Certificate prove both identity to work and identity. If an employee provides a List A document, no other documentation is needed to prove identity or eligibility to work. List B documents—such as a driver’s license or government issued ID—only prove a person’s identity, and an employee must provide a List C document—such as a Social Security card without any restrictions on work or an unexpired Employment Authorization Document issued by the immigration service-to prove their eligibility to work. (See list of approved A, B & C documents).
The employer must review the documents and record all of the information required in Section 2 of the I-9. The documents must be originals-a copy can not be used for I-9 completion. A receipt for replacement of a lost, stolen or damaged document can be accepted, but the replacement document must be provided within 90 days, or the employee must be terminated.
The employer does not have to be a document expert, but rather must reasonably believe the document is real. Essentially, the employer must believe the document is genuine and that it relates to the employee presenting the document. If the employer does not believe the document is genuine, they can ask the employee to produce other acceptable I-9 documents and should not continue to employ the employee unless acceptable documents are provided.
If an employer discovers missing or incorrect information on the I-9, the employer should correct the errors and initial and date the changes. If an I-9 is missing, an employer must complete a new I-9 and should make a note for their records indicating the reason for completion of the new I-9.
4) Re-verification of documents
An employer must re-verify employment eligibility when an employee’s employment authorization date in Section 1 is expired or when an employment authorization document listed in Section 2 is expired. Employers do not need to re-verify expired U.S. Passports or Lawful Permanent Resident cards (“green cards”). The employer must re-verify or complete a new I-9 no later than the date the employee’s employment authorization document expires. If the employee is a re-hire, a new I-9 is needed as well.
5) Retention of Documents
The employer must keep the original I-9 on file. If copies are made of any of the eligibility or identity documents, the copies must be attached to the I-9. The employer is not required to make copies of the documents. We recommend that employers do not make copies of documents presented by employees as it is not required by the law and reduces the administrative burden on employers. If a copy has been made previously and is attached to the I-9, it can not be discarded. If a copy is made during the I-9 process, it must be attached to and stored with the I-9. An employer should either make no copies of documents for all employees or make copies of documents for every employee. Essentially, an employer should apply a uniform policy to all employees.
The employer’s only requirements for documents are to review them for genuineness and to accurately record the information on the documents in Section 2 of the I-9. If a new I-9 is completed during re-verification or rehiring, the new I-9 must be attached to the previous I-9. The I-9 itself must be kept for one (1) year after an employee is terminated Or three (3) years from the date of hire, whichever date is later.
What Employers Should Not Do
Employers should not:
• Knowingly hire or continue to employ workers without valid authorization to work in the U.S. Employers who do so face criminal penalties up to $3,000 per unauthorized individual and/or up to 6 months imprisonment if the government finds that there is a “pattern or practice” of unauthorized employment. 8 U.S.C. § 1324a(f)(1)
• Fail to accurately and fully complete the I-9. Employers can be fined for incomplete or missing I-9s.
• Discriminate against an employee based on his national origin or citizenship status. Employers face substantial fines for discrimination.
• Demand more or different documents than those presented by the employee and required by List A, B or C of the I-9. Employers can be fined for making excessive document requests. As the warning of the top of the I-9 itself states: “It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire an individual because the documents have a future expiration date may also constitute illegal discrimination.”
Conclusion
The Form I-9 process appears complicated and requires all employers to follow many detailed steps in order to ensure they are not hiring anyone who is not authorized to work in the U.S. This overview should not replace a discussion with an attorney if you have any questions or concerns about how the I-9 process has been handled prior to today. Please remember that ICE has increased enforcement, and in addition to civil fines per error, has also been arresting offending employers. Besides completing the Form I-9 there are other systems in place that are now being pushed by the federal government to verify eligibility to work (and in Illinois we are being discouraged from using them by the state government). You might have heard about the E-Verify Program or you may have seen a Social Security Administration No-Match Letter. What these are, why the state is in a dispute with the federal agencies, and what to do if you see them, will be discussed in the next issue.
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Kevin Raica is an attorney with the AZULAYSEIDEN LAW GROUP and focuses his practice on all areas of Immigration and Naturalization Law. He counsels businesses and individuals on the steps to take in order to gain benefits from the current convoluted system that is US immigration law. He has performed I-9 audits of companies of varying sizes, and when people are found not to have current status or are in removal proceedings, he helps them navigate the system and look for a path to legal residency and employment. Please feel free to e-mail the author at kraica@azulayseiden.com.
To access I-9 forms online, go to <http://www.uscis.gov/files/form/i-9.pdf>.
This article was previously published in the May 2008 issue of The Bottom Line, the newsletter of the ISBA’s Standing Committee on Law Office Management and Economics.
For the past two years Jefferson Mok has served as the National Immigrant Justice Center’s Pro Bono Project Coordinator. As such, he has been instrumental in expanding the pro bono programs, including providing information to the International and Immigration Law Section Council of the Illinois State Bar Association on a regular basis.
Mok is transitioning to Heartland Alliance’s International Programs, where he will now be engaged in development work in East Africa. Megan Baumann is the new Pro Bono Project Coordinator at NIJC. A graduate of Loyola University, she has served as NIJC’s Asylum Project intern for the past five months. Megan can be reached at mbaumann@heartlandalliance.org or by phone at (312) 660-1307.
Asylum Master Calendar Hearings
I. is a 42-year-old woman from Benin. Her next Master Calendar hearing is on December 18, 2008. I. speaks English and lives in Chicago, Illinois. (157918)
I. entered the United States in September 2000. She has two children who are United States citizens. In 2006, I. began receiving letters and phone calls from her daughter’s godmother, demanding that her daughter return to Benin to undergo female genital mutilation (FGM), a cultural and family tradition. Seventy percent of women in I.’s region of Benin undergo FGM. I. will not allow her six-year-old daughter to undergo FGM. If I. returns with her daughter to Benin and resists, I. will face negative social and familial consequences, possibly of a violent nature. I. filed an application for asylum on August 27, 2007. She will have to establish that the communications from Benin constitute a changed circumstance sufficient to overcome the one-year filing rule in order to qualify for asylum. Withholding of Removal is an alternative form of relief the attorney handling this case will want to develop.
Asylum Merits Hearing
L. is a 16-year-old boy from Honduras. His Merits hearing is on September 29, 2008. L. speaks Spanish, and is currently detained at the International Children’s Center on the North side of Chicago. (156618)
L. fears the “18” gang, which is very present in L.’s hometown in Honduras. The gang specifically targets L.’s neighborhood. Muggings and robberies are frequent. In an effort to thwart some of the gang violence and bring peace to their homes, L. and some friends created a group to defend their neighborhood. The group of friends succeeded only in angering the gang, which, through violence and threats of death, pressured L.’s group to disband and flee. Recently, L. discovered that one of his friends from the group returned to his hometown. The “18” gang killed him within a week. Two other friends from the group have also since returned, and both narrowly escaped being killed by the “18” gang before fleeing again. L. feels certain he will be killed if he returns to his home.
VAWA Petitions for Domestic Violence Survivors
Pursuant to the Violence Against Women Act (VAWA), U.S. immigration law offers protection to immigrant spouses and children who have suffered violence and psychological abuse at the hands of a U.S. citizen or a lawful permanent resident abuser. The VAWA self-petition is similar to an affirmative asylum application, except the applicant does not have to appear for an interview after filing the application. Many VAWA applicants will also be applying for legal permanent residency simultaneous with the self-petition. For most of these cases, there is no specific filing deadline, but given the vulnerable situation these individuals face, NIJC encourages pro bono attorneys to file the self-petitions as quickly as possible.
VAWA Master Calendar Hearing
M. is a 51-year-old-woman from Mexico. M. is in removal proceedings and her next Master Calendar hearing is on July 7, 2008, at the Chicago Immigration Court. M. is eligible to apply for VAWA Cancellation of Removal before the Immigration Judge. She speaks Spanish and lives in Chicago, Illinois. (159392)
M. entered the United States on February 14, 1997 with a tourist visa. She has been living with her abusive husband for almost 11 years. M. was traveling to Detroit with her husband when she was detained by Immigration and Customs Enforcement (ICE). M. was released from detention and placed in removal proceedings in May 2005. M. has been severely abused by her husband. She has called the police, pressed charges and obtained orders of protections against her husband for physical abuse but she has also repeatedly given him opportunities to change and work to fix their marriage. M.’s husband has continued his aggressive behavior toward M. so, about a month ago, M. decided to leave him. M. is eligible to apply for VAWA Cancellation of Removal defensively in removal proceedings.
VAWA Self-Petitions
A. is a 24-year-old-woman from Mexico. She is eligible to file a VAWA self-petition and upon approval an application for employment authorization. A. speaks Spanish and some English and lives in Chicago, Illinois. (160051)
A. entered the United States in 1999 without inspection. She met her United States citizen husband in 1999, dated him for two years and then married him on April 27, 2002. He has been abusive towards her physically and psychologically. He began to drink heavily and use drugs in 2004. He would become very withdrawn or aggressive when using drugs. At first, he would just push her when he was angry but then he began to hitting her in the face with his hands. A. tried calling the police about three months ago but her husband took the phone and smashed it against the wall. A.’s daughters have witnessed their father’s abuse of their mother.
B. is a 22-year-old-woman from Mexico. She is eligible to file a VAWA self-petition and applications for adjustment of status and employment authorization. B. speaks English and Spanish and lives in Chicago, Illinois. (159998)
B. entered the United States on or about 1990 without inspection. Over the course of her marriage to her United States citizen husband, B. has suffered verbal, economic, physical and mental abuse. B.’s husband has alcohol problems. When B. was still with her husband he would verbally abuse her. He controlled all of her finances and he would not let her speak to or visit her parents. B.’s husband has also pulled her hair while calling her bad names. B. is now separated from her husband but he continues to harass her by constantly calling her work and leaving threatening voicemails and notes on her car.
A. is a 31-year-old-woman from Mexico. She is eligible to file a VAWA self petition and applications for adjustment of status and employment authorization. A. speaks Spanish and lives in Chicago, Illinois. (159534)
A. entered the United States in 2002 without inspection. A. met her husband in Mexico. He later sent her money to come to the U.S. without documentation. A. and her husband have a four-year-old son. A.’ s husband is verbally, emotionally and physically abusive. He frequently threatens to have her deported and to take her son away from her. On March 2, 2008, A. returned home from work accompanied by a male friend. When A.’s husband saw them, he called her a whore and punched her in the face. He then told A. that he was going to keep their son away from her. A. called the police and had her husband arrested.
U-Visa
Pursuant to the Victims of Trafficking and Violence Prevention Act (VTVPA), U.S. immigration law also offers protection to victims of serious crime who have gathered the courage to come forward, report the crime, and assist in its investigation or prosecution. U visas are available to non-citizens who suffer substantial physical or mental abuse resulting from a wide-range of criminal activity, including domestic abuse and sexual assault. Immigrants granted the U-visa are eventually eligible to apply for permanent residence. Like VAWA petitions, the applicant does not have to appear for an interview after filing the application. For most of these cases, there is no specific filing deadline, but given the vulnerable situation these individuals face, NIJC encourages pro bono attorneys to file the applications as quickly as possible.
M. is a 28-year-old female from Mexico. She is eligible to apply for a U-Visa and employment authorization. In addition, M.’s two minor children can be included as derivatives. M. and her two children will need to file waivers of inadmissibility for their entries without inspection. M. needs extra advocacy in obtaining a signed certification (Supplement B) from a law enforcement official certifying that M. has cooperated in the prosecution of a crime. M. speaks Spanish and lives in Chicago, Illinois. (159112) (159794) (159795)
M. entered the United States in March 2005 without inspection. She was severely battered and sexually abused by her husband. She left him in September 2006 and took her children with her. After she left him, he continued to harass and stalk her. That same year, M.’s husband broke into M.’s house and raped her. M. reported the crime to the police and filed charges. M.’s husband is currently in jail for charges pertaining to aggravated sexual assault and domestic battery.
B. is a 41-year-old female from Mexico. She is eligible to apply for a U-Visa and employment authorization. E. may need to file a waiver of inadmissibility for misrepresentation at a port of entry. E. speaks Spanish and lives in Chicago, Illinois. (159203)
E. last entered the United States in 1991 with inspection but she was not eligible to enter lawfully. She is a victim of domestic violence at the hands of her husband. She has called the police on several occasions. The last time was in 1998 when her husband beat her severely. She called the police department in Cicero, filed a report, pressed charges and obtained an order of protection. Please note that E. has obtained a signed certification (Supplement B) signed by law enforcement official certifying that M. has cooperated with the prosecution of a crime. E. needs to file her U-Visa application before September 2008, to stay within six months of the signed certification date of March 2008.
Unaccompanied Minors
The cases of unaccompanied immigrant children often involve seeking Special Immigrant Juvenile Status (SIJS). Attorneys who handle children’s cases through NIJC may be asked to assist their clients in seeking SIJS alone or in conjunction with asylum. The case description will always indicate whether seeking SIJS is appropriate.
SIJS is an avenue through which some immigrant minors may ultimately receive lawful permanent residency. SIJS is available to undocumented children who have been abused, abandoned, neglected or orphaned. The child or his or her representative must petition the court of the state where the child resides to issue an order declaring the child a ward of the state. The state court must find that the child has been abused, abandoned or neglected, that the child qualifies for long-term foster care, and that it is not in the child’s best interest to return to his or her country of origin. Once the child has been declared a ward of the state, the SIJS petition may be filed with United States Citizenship and Immigration Services (USCIS) using Form 1-360. Once the 1-360 is approved, the child may seek lawful permanent residency based on his or her approved SIJS petition.
As with all cases placed with pro bono attorneys through this list, NIJC will provide technical assistance to attorneys who handle cases that involve SIJS.
A. is a 14-year old boy from Mexico who is eligible for a U- visa. His fourth Master Calendar hearing is on July 10, 2008. A. speaks English and Spanish and is in the custody of the Office of Refugee Resettlement (ORR) at the International Children’s Center on the North side of Chicago. (157929)
A. and his family are from Mexico. They moved to the United States when A. was 7. A.’s father would often beat his wife and children, but he usually left A. alone. A.’s father was verbally abusive towards A., and A. was forced to watch his father beat his mother and siblings several times a week. Finally, A., his mother and siblings moved out. Shortly thereafter, A.’s father and two friends, armed with guns, broke into A.’s home and threatened his family. A. and his mother spoke with police after the incident. A. has six arrests as a minor, all of which are the result of one incident. A. is eligible for a U-visa because he assisted police with the investigation of his father’s crime. Please note, as in many children’s cases, A. could be placed in foster care and transferred from Chicago.
Thank you,
Mary M. McCarthy, Director, mmccarthv@heartlandalliance.org
Lisa Koop, Managing Attorney, lkoop@heartlandalliance.org
Jefferson Mok, Asylum and Pro Bono Project Coordinator, jmok@heartlandalliance.org
National Immigrant Justice Center
208 S. LaSalle, Suite 1818, Chicago, IL 60604
(312) 660-1370
www.immigrantjustice.org