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Orange County Immigration & Naturalization Law Blog

ICE to release families from immigration detention centers

California residents may have heard about the immigrant families that have been held at the three family immigration detention facilities in Pennsylvania and Texas. For months, immigration attorneys and advocates have urged the Obama administration to release mothers and children from the facilities and end the practice of family detention altogether. On July 13, a spokesman for Immigration and Customs Enforcement announced that ICE would start releasing women and children from the detention centers after reviewing their cases.

According to the ICE spokesman, the agency will have a new policy of refraining from detaining mothers with children who are seeking asylum in the United States. ICE said that it would still detain mothers with children if they presented a threat to public safety or national security. To avoid detention, mothers would also have to show that they have a credible case for asylum and a verifiable address.

Changes for H-1B visa holders who move job sites

According to a recent ruling by the Administrative Appeals Office of U.S. Citizenship and Immigration Services, if an employee on an H-1B visa is moved to a new location by the employer, that employer must file a new labor condition application. This decision came as a result of a situation in which an employee who was hired to work in a particular metropolitan statistical area in Southern California was supposed to be transferred after two months to a different work site in another MSA.

During a consular visa application interview, the plan arose, and as a result, USCIS revoked its approval of the petition. This decision was upheld by the AAO.

Appeals court finds citizenship law unconstitutional

Fathers in California may now have an easier time conferring citizenship onto their children who were born in foreign countries. On July 8, a federal appeals court decided that a law that treats mothers and fathers of foreign-born children differently was unconstitutional. Immigration attorneys have noted that the law, which directly discriminates against petitioners based on their gender, may eventually be revisited by the Supreme Court.

Up until now, U.S. citizen fathers of foreign-born children had to reside in the United States for five years before their children could become U.S. citizens. The requirement applied only to fathers who had children outside of marriage with a non-U.S. citizen partner. Unwed U.S. citizen mothers who were in the same situation were only required to spend one year residing in the U.S. before they could confer citizenship onto their foreign-born children.

Abercrombie & Fitch fined for immigration discrimination

On June 25, Abercrombie & Fitch settled an immigration discrimination charge by agreeing to pay over $158,000 and submit to two years of federal monitoring. The charge against the clothing retailer, which has several locations in California, was filed by a woman who claims that she was required to present a green card to prove that she was eligible for employment, although similar proof was not required by applicants who were U.S. citizens.

The company's request of the plaintiff reportedly violated the U.S. Immigration and Nationality Act. Although the company did not admit to discriminating against the plaintiff based on her immigration status, the company agreed to pay the woman $3,661 for back pay plus interest. A $153,932 fund was also set up to compensate other people who might have been similarly discriminated against. The company also agreed to pay a $1,100 civil fine for the violation.

Supreme Court allows appeals of immigrants in mishandled cases

California immigrants may encounter challenges when seeking legal assistance in a variety of situations. Language and cultural barriers may make communication difficult, and if a case is handled incorrectly, an immigrant may have little realization of the fact that this has occurred. In some situations, a deportation could even occur because of a legal error. However, the U.S. Supreme Court has recently ruled that federal appeals courts have the ability to intervene in cases requiring review based on legal errors.

The case resulting in this decision involved a man who pleaded guilty to domestic abuse charges. Because he was undocumented, he faced deportation action after this incident. His immigration attorneys at the time made a clerical error by failing to file the correct documents. He did not become aware of the error until he retained different attorneys. However, the deadline for filing an appeal was missed during this process, leading to the dismissal of the appeal.

Domestic partnerships not recognized by immigration law

California residents may not be aware that if they are not married to a foreign national, they cannot use their domestic partnership status as a path to permanent residence for the person. This is true even if the domestic partnership is registered with the state.

When a person marries their partner, they may petition on their partner's behalf for their green card. Since the immigration law does not recognize domestic partnerships, this means that they may want to marry their partner to provide them with a basis through which they can then apply for status as a permanent resident.

Court rules against citizenship for American Samoans

California residents may not be aware that those born in some U.S. territories such as Puerto Rico are granted automatic U.S. citizenship, but individuals born in others like American Samoa are not. A group of American Samoans decided to challenge this state of affairs by filing a lawsuit, but a June 5 federal appeals court ruling preserved the current law. The three judges who heard the case concluded that the 14th Amendment does not grant U.S. citizenship automatically to those born in an unincorporated political territory of the United States.

While many American Samoan residents likely hoped that the lawsuit would be successful, the litigation failed to garner support from the territory's government officials. The judges hearing the case expressed reluctance to make a ruling that many in American Samoa would not be in agreement with, but observers point out that objections to automatic citizenship are often based on a desire to preserve rules that prevent those with no American Samoan ancestry from owning land.

Supreme Court rejects appeal to save Arizona immigration law

California residents may be interested to learn that the U.S. Supreme Court has refused to reconsider an appeals court decision striking down an Arizona law that denied bail to illegal immigrants charged with serious felonies. The rejection, announced on June 1, means that the lower court's ruling that the law is unconstitutional stands.

In 2006, 78 percent of Arizona voters approved a constitutional amendment that said judges could not release illegal immigrants on bail "if the proof is evident or the presumption great that the person is guilty of the offense charged." Three state and federal courts allowed the amendment to stand based on a 2003 Supreme Court case that found illegal immigrants can be jailed before trial because they may flee over fears of being deported. However, the U.S. Court of Appeals for the 9th Circuit overturned those rulings based on a 1984 federal law that states judges must decide on a case-by-case basis if dangerous defendants should be jailed before trial. The court found that Arizona's law was a "scattershot attempt" to combat flight risk. The majority of the Supreme Court declined to intervene. The court's three most conservative members, Justices Samuel Alito, Antonin Scalia and Clarence Thomas, would have heard the case.

How criminal convictions affect naturalized citizens

The process for immigrants to become naturalized citizens is long and complex, so it is only natural that they be concerned about whether they could be deported if they are convicted of a crime, whether the conviction occurs in California or any other state. While a conviction is not likely to lead to deportation when the crime was committed after the individual became a naturalized citizen, there are some rare cases in which deportation is possible.

Federal law makes it very hard for naturalized citizens to lose their naturalization status. One instance in which this could happen, however, is if they concealed a criminal record during the application process. When the government discovers this criminal past, it has the right to denaturalize the citizen. In the past, most deported and denaturalized citizens were Nazis or other World War II persecutors who did not tell the truth about their past when they applied for citizenship in the United States, but cases like this since then have been very rare.

Changes to immigration law regarding family detention

California residents may be interested to learn that on May 13, U.S. Immigration and Customs Enforcement announced it will be changing one of its policies regarding detention of immigrant families who are crossing the border illegally. It will no longer consider deterrence when making its decision about detention.

Other changes were announced as well. The federal agency will also review families who have been in detention for longer than 90 days. In addition, federal authorities announced intentions of improving conditions and access to attorneys at detention facilities in Texas and Pennsylvania.

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