Matter of VELASCO, 25 I&N Dec. 143 (BIA 2009)
November 23, 2009 by Thomas Esparza
Filed under Attorneys
(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4), Nt. (2009), which took effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), do not apply retroactively.
(2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and the alien failed to timely post the voluntary departure bond required by section 240B(b)(3)of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2006), the former regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the penalties imposed by section 240B(d)(1) for failure to depart within the voluntary departure period do not apply.
(3) Pursuant to 8 C.F.R. § 1240.26(c)(3)(ii), Nt., a voluntary departure order entered by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board of Immigration Appeals in its final order on appeal unless the alien provides the Board,
within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was timely posted with the Department of Homeland Security.
Cimt no matter what shoots down a cancellation of removal application
November 23, 2009 by Thomas Esparza
Filed under Attorneys
Matter of Gabriel ALMANZA-Arenas, Respondent
File A078 755 092 – San Diego, California
Decided April 13, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien whose application for relief from removal was filed after the May 11, 2005,
effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat.
231 (“REAL ID Act”), has the burden to prove that he satisfies the applicable eligibility
requirements and merits a favorable exercise of discretion under section 240(c)(4)(A) of
the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)(A) (2006), and must provide
corroborating evidence requested by the Immigration Judge pursuant to section
240(c)(4)(B), unless it cannot be reasonably obtained.
Matter of RAJAH, 25 I&N Dec. 127 (BIA 2009)
November 13, 2009 by Thomas Esparza
Filed under Attorneys
(1) In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an Immigration Judge should determine the alien’s place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations.
(2) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment
of status.
(3) The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.
2009 Legislative Activity in Texas, Oklahoma and New Mexico
November 7, 2009 by Thomas Esparza
Filed under Attorneys
Fall Conference
Meliá, Puerto Vallarta
2009 Legislative Activity in Texas, Oklahoma and New Mexico
November 6, 2009
By
Thomas Esparza, Jr.[1]
The 81st Texas Legislative Session was a very busy one for AILA Texas Chapter members. Of the over one hundred bills filed that referenced immigrants and immigration matters in Texas, more than 60 percent were anti-immigrant bills.[2] Fortunately, only 24 of the anti-immigrant bills made it to committee hearings, and chapter members fought hard by taking time out of their practices to testify against these bills. Amongst the members testifying at the State Capitol were: Kathleen Campbell Walker, Paul Parsons, Sam Haddad, Faye Kolly, Susan Kelly, and Jacqueline Watson. Thanks in part to the vigorous opposition of the AILA Texas Chapter, the ACLU of Texas, and MALDEF, all 24 anti-immigrant bills heard in committee were rejected by the “Lege.”
The most popular theme of the anti-immigrant bills was the linking of immigration status to driver’s licenses and occupational licenses. These bills included the following gems: HB 1601 (requiring lawful presence for professional and driver’s licenses and state IDs), HB 3949 (requiring proof of status for occupational licenses with some exceptions), HB 4675/SB1784 (requiring that all driver’s licenses and state IDs state the bearer’s citizenship status). Failing to get these bills out of committee, legislators also attempted to file amendments to other bills, including the DPS Sunset bill, containing the same immigration status verification requirements. These attempts also failed. Not all immigration bills were negative, however; HB 384 would have explicitly prevented profiling by DPS employees, HB 2077 would have shifted the focus from proving citizenship to obtain a driver’s license to proving Texas residency. Representative Lon Burnam (D-Forth Worth) was a friend of the immigrant in this legislative session, sponsoring these two sensible bills.
Anti-immigrant bills were not limited to licensing. Committee hearings on some particularly egregious anti-immigrant bills kept AILA Texas Chapter members at the capitol late into the night. Members testified against HB 276, a bill that would have required the collection of data on “undocumented” people who receive any state services; HB 404, a bill that would have taken action against local entities that were not in “full compliance with federal immigration laws,” whatever that means; and a particularly egregious employer sanctions bill, HB 48, which would have also revoked the professional licenses of business that have been the subject of a worksite enforcement action and would “encourage” the use of E-Verify.
Another anti-immigrant proposition was SB 1175 which would have created a new crime for not identifying yourself when detained by an officer. Currently, refusing to identify yourself is only a crime if you are arrested. The police justified expanding their power to arrest people on the grounds that it will decrease arrests. The bill ultimately failed because the police had difficulty explaining how they needed more power why they are so hamstrung under current law. This was a “papers please” bill.
Former talk show host Sen. Dan Patrick of Houston and the Transportation and Homeland Security Committee proposed SB 357 which would impose sanctions on employers, including suspension of professional licenses, for hiring someone who is in the country illegally. Fortunately, this poor attempt to emulate the same failed Federal employer sanctions law failed.
Another anti-immigrant piece of legislation that ultimately failed, SB 358, targeted so-called sanctuaries cities like Austin. The bill would deny federal funding to cities that do not abide by federal law and usurp federal authority to enforce federal immigration law.
HB 4036 would have implemented a national ID card. This proposal was an effort to make Texas compliant with the Federal REAL ID Act, an unfunded mandate with a big price-tag and negligible public safety benefits. The bill would have made changes to the Texas driver’s license, identification card, and record keeping systems that potentially would have incurred tremendous costs for taxpayers and make our personal information vulnerable to identity theft.
What does an American citizen look like? House Bill HB 384, sought to prevent racial profiling by the Texas Department of Public Safety. This bill was in response to driver’s license regulations enacted by DPS last October that require many license holders to provide annual proof of immigration status and perform in-person renewals. The feeling was that current rules strain DPS resources and negatively affect all make and manner of various immigrant and non immigrant categories. Current rules also require some citizens and legal permanent residents to prove their citizenship or immigration status, even if they have previously held a valid Texas driver’s license as a citizen of LPR. These rules create situations in which DPS employees must decide what a citizen looks like. In other words, opens the door to racial profiling.
The big kahuna of the past legislative session was the voter identification bill. SB362 would have required almost all voters to have identification in order to vote. This heinous attempt to disenfranchise key (Democratic) populations in the State got a quick start in the Senate where the rules were amended to favor the proponents. Voter ID will only add to the problem and cost more Texans their right to vote.[3] Texas Democrats declared victory in the partisan battle over tightening voter identification laws, but their 5-day filibuster left a lot of other casualties as hundreds of bills were left for dead.
Unfortunately, not all beneficial immigration-related bills made it through the last hectic days of the legislative session. One unfortunate victim of the overloaded legislature was HB 4426, a fabulous Special Immigrant Juvenile bill that would have extended Texas family court jurisdiction over young non-citizen victims of abuse, neglect, or abandonment to age 21. While this bill, sponsored by Representative Ana Hernandez (D-Houston), passed the House, the Senate was not able to get to the bill before the session ended despite the best efforts of Rep. Hernandez, an AILA member and friend of special immigrant juveniles in Texas.
There were some bright moments during the 81st Texas Legislative session. Several bills protecting victims of human trafficking were introduced, including HB 533(creating civil remedies for victims of human trafficking) and HB 4009 (providing for law enforcement training on trafficking issues and creating a statewide task force). These two bills not only passed but, on June 19, 2009, were signed by Governor Perry into law. [4]
As you will see below, Texas tightened up some on the requirements for marriage licenses, loosened up the restrictions to a degree on physical therapists and gave one-year licenses to Mexican nurses who want to enter the US on NAFTA visas.
National Trends
State laws related to immigration have increased dramatically in recent years as states have struggled with the practical and political implications of Congress’ failure to enact immigration reform. In 2005, 300 bills were introduced; 38 laws were enacted. In 2006, activity doubled: 570 bills were introduced; 84 laws were enacted. In 2007, activity tripled: 1,562 bills were introduced; 240 laws were enacted. In the first half of 2008, 1267 bills were considered in 45 state legislatures and at least 175 laws and resolutions were enacted in 39 states. A total of 190 bills and resolutions had passed legislatures, with 12 bills pending Governor’s approval and three bills vetoed.
In the first half of 2009, state legislation related to immigration topped more than 1400 bills considered in all 50 states. A total of 285 bills and resolutions has passed legislatures. Some are pending Governor’s approval and three bills were vetoed. No bills were enacted in Alaska, Massachusetts, Michigan or Ohio.
The top areas of interest are identification/driver’s license with 33 laws enacted, followed by health (22) and education (14). In the first half of 2008, the top three areas were identification/driver’s licenses (30), employment (18) and education (12).
The number of resolutions doubled in the first half of 2009 compared to 2008. Most celebrate America’s ethnic heritage and others applaud immigrants or programs that serve refugees or immigrants. Other resolutions urge Congress to: expedite naturalization; change requirements for enhanced driver’s license; develop a balanced immigration policy; promote travel to the United States; permanently extend e-verify; grant waivers to establish temporary work programs; and establish health insurance to provide every U.S. resident (citizen, national, or lawful resident alien) with health care services.
States continue to employ a range of enforcement and integration approaches. Tennessee instructed their labor and workforce development department to establish the “We Want To Learn English” initiative. Missouri appropriated funds for naturalization assistance. Iowa established a cultural community grant program to showcase an immigrant community from Laos and Vietnam and their cultures. Washington established a University of Washington center for human rights to expand opportunities for state residents to receive a world-class education in human rights including the rights of immigrants. Two states passed omnibus legislation (Georgia, Nebraska) addressing employment (worksite enforcement), law enforcement, and verification of lawful presence for public benefits.
This review provides brief summaries of laws enacted in New Mexico, Texas and Oklahoma during the first nine months of 2009 that address immigrants, migrant and seasonal workers, medical professionals, victims or trafficking, refugees and unauthorized immigrants. Terms used in this report by and large reflect the terms used in state legislation. In some state legislative language, unauthorized immigrants are also described as illegal or undocumented immigrants or aliens.
At the end, you can see I got into the article a bit more and threw in the recent Federal legislation on the CHIP program and a summary of the immigrant eligibility for government assistance. I redacted the massive work, State Laws Related to Immigrants and Immigration,[5] produced by the National Council of Legislature into a more readable summary. Then I went to the Texas Legislature web site to find out what the bill is all about.
Texas, Oklahoma and New Mexico Immigration Related Laws
EDUCATION (14) Fourteen laws were enacted in eight states: Arkansas, Colorado, New York, North Dakota, Oklahoma, Texas, Washington, and West Virginia. These laws generally address in-state tuition eligibility, scholarships, student loans, and English language acquisition and access. Some laws establish commissions and task forces, including representation of migrants or immigrants.
OK S 222 This act provides for a study and assessment of student testing and data systems, disaggregating the results by gender, race, ethnicity, disability status, migrant status, English proficiency, and status as economically disadvantaged. 6/2/2009
TX H 3 This act relates to administration of an alternative assessment instrument for unschooled immigrants and English language learners. 6/19/2009
TX H 192 This act provides that a student’s absence from school must be excused if such absence is due to the student appearing at a governmental office to complete paperwork required in connection with the student’s application for United States citizenship or if the student taking part in a United States naturalization oath ceremony. 6/19/2009
EMPLOYMENT (10) Ten laws were enacted in seven states: Florida, Hawaii, Maine, Montana, Nevada, Tennessee, and Utah. Four bills have been sent to the Governor in Illinois and Oregon and two bills were vetoed in Georgia and Minnesota. Many of these laws provide for employer sanctions related to the hiring of unauthorized workers, employment eligibility verification requirements and penalties.
HEALTH (22) Twenty-two laws were enacted in twelve states: Colorado, Florida, Idaho, Indiana, Kansas, Maryland, Minnesota, Nevada, Oklahoma, Tennessee, Texas, and Washington. These laws generally address eligibility for health care benefits and the licensing of health care professionals and interpreters.
OK S 318 This act relates to the sales tax on food and beverages, provides that sales of tangible personal property or services to any migrant health center are tax exempt. 6/1/2009
TX H 233 This act relates to the creation of an advisory committee to establish and recommend qualifications for certain health care translators and interpreters and defines a health care interpreter as a person who is trained to communicate with a person who has limited English proficiency. 6/19/2009
TX H 3717 This act relates to exemptions from the requirement to hold a license to practice physical therapy for applicants licensed from another state or credentialed from another country. 6/19/2009
SECTIONA1.AASection 453.004(b), Occupations Code, is amended
to read as follows:
(b) This chapter does not apply to:
(5)A person who practices physical therapy or as a physical therapy assistant and who is:
(A) practicing physical therapy in the United States armed services, United States Public Health Service, or Veterans Administration in compliance with federal regulations for licensure of health care providers;
(B) licensed in another jurisdiction of the United States or credentialed to practice physical therapy in another country if the person:
(i)is teaching, demonstrating, or
practicing physical therapy in an educational seminar in this state for not more than 60 days in a 12-month period, and the person notifies the board of the person’s intent to practice in this state;
or
(ii) by contract or employment, is practicing physical therapy in this state for not more than 60 days in a 12-month period for an athletic team or organization or a performing arts company temporarily competing or performing in this state; or . .
TX H 3674 This act relates to the licensing requirements for a foreign-trained physician applicant. 6/19/2009
House Bill 3674 also removes the requirement that an applicant for a license to practice medicine who graduated from a medical school outside the United States and Canada present proof to the board that the applicant is eligible for a license to practice medicine in the country in which the school is located. Previous law required such an applicant to provide proof that the applicant successfully completed at least three years of graduate medical training in the United States or Canada that was approved by the board. The bill allows the applicant, as an alternative, to provide proof that the applicant has successfully completed at least two years of board-approved graduate medical training in the United States or Canada and at least one year of graduate medical training outside the United States or Canada that was approved for advanced standing by a board-approved specialty board organization.
TX H 4353 This act relates to the licensing of persons licensed to practice nursing in Mexico who will practice in border counties. 6/19/2009
House Bill 4353 amends the Occupations Code to authorize the Texas Board of Nursing to issue a special one-year license to a person currently licensed to practice nursing in Mexico if the person has received a score acceptable to the board on an English version of the appropriate National Council Licensure Examination, is eligible for employment in the United States, will practice nursing as an employee of a hospital in a county that borders Mexico, and meets other criteria. The special license is limited to a single issuance, does not prohibit the holder from applying for another type of nursing license under Texas law, and does not entitle the holder to a multistate licensing privilege. The license program described above expires September 1, 2013.
TX S 1476 This act relates to the authority of a migrant, homeless or community health center to employ an optometrist or therapeutic optometrist. 5/27/2009
HUMAN TRAFFICKING (7)
Seven laws were enacted in six states: Colorado, Florida, North Dakota, Texas, Virginia, and Washington. These laws provide for penalties and definitions relating to human trafficking, human smuggling and forced labor.
TX H 4009 This act relates to the establishment of a victim assistance program to provide services to domestic victims of sex trafficking, provides for law enforcement training. 6/19/2009
House Bill 4009 amends the Government Code to require the office of the attorney general to establish a human trafficking prevention task force to develop policies, procedures, data collection, and training to assist in the prevention and prosecution of human trafficking crimes. The bill provides for the composition and duties of the task force and requires it to submit a report regarding its activities, findings, and recommendations to the governor, the lieutenant governor, and the legislature by December 1 of each even-numbered year.
House Bill 4009 requires the Health and Human Services Commission to establish a victims assistance program to assist domestic victims of trafficking with accessing necessary services. The program is to consist of a searchable database of assistance programs for domestic victims; a grant program established to award public and nonprofit organizations that provide assistance to domestic victims; recommended training programs for judges, prosecutors, and law enforcement personnel; and an outreach initiative to ensure that victims, judges, prosecutors, and law enforcement personnel are aware of the program. The bill also creates the trafficking of persons investigation and prosecution account in the general revenue fund and caps the amount of grants that may be distributed from the fund at $10 million.
House Bill 4009 amends the Penal Code to increase the penalty for sex trafficking of a child, regardless of whether the actor knows the child’s age at the time the offense is committed, and to establish a defense to prosecution for prostitution if the actor engaged in prostitution because he or she was the victim of trafficking. The bill raises from 17 to 18 the maximum age of a child a person knowingly causes by any means to engage in prostitution used to determine if the person commits the offense of compelling prostitution and clarifies that such behavior constitutes an offense regardless of whether the actor knows the child’s age at the time of commission.
House Bill 4009 took effect September 1, 2009, after a specific appropriation for the implementation of the bill was provided for in the general appropriations act of the 81st Legislature.
ID / DRIVER’S LICENSES AND OTHER LICENSES (33)
Thirty-three laws were enacted in twenty-four states: Alabama, Arkansas, Colorado, Georgia, Idaho, Iowa, Indiana, Kentucky, Louisiana, Maine, Maryland, Minnesota, Nevada, New Jersey, North Dakota, Oregon, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wyoming. Five bills in Arizona, Delaware, Hawaii, Illinois, and Missouri are pending Governor’s approval. One bill in Colorado was vetoed. These laws relate to documentation and eligibility requirements for IDs and driver’s licenses, professional licenses, and firearm and hunting/fishing licenses.
TX S 693 This act relates to the sale of an alcoholic beverage to a minor, relates to proof of identification that contains a photograph, provides that proof of identification may include a driver’s license or identification card issued by the Department of Public Safety, a passport or a military identification card. 6/19/2009 It amends Section 106.03(b), Alcoholic Beverage Code, as follows:
(b) Provides that a person who sells a minor an alcoholic beverage does not commit an offense if the minor falsely represents himself to be 21 years old or older by displaying an apparently valid proof of identification, rather than an apparently valid Texas driver’s license or an identification card issued by the Department of Public Safety of the State of Texas (DPS), that contains a physical description and photograph consistent with the minor’s appearance, purports to establish that the minor is 21 years of age or older, and was issued by a government agency.
TX H 2774 This act relates the licensing and regulation of certain persons involved in residential mortgage lending, providing that eligible mortgage brokers be citizens of the United States or lawfully admitted aliens. 6/19/2009
TX H 3666 This act relates to the application for and issuance of a marriage license limited to United States citizens or lawful legal residents. 6/19/2009
House Bill 3666 amends the Family Code to expand the list of documents that an applicant for a marriage license can offer as proof of identity and age. The bill revises the proof that must be provided to a county clerk by a parent or person who has the legal authority to consent to marriage for an underage applicant and sets forth the documents that a person applying for a marriage license on behalf of an absent applicant, including an applicant under 18 years of age, must provide to a county clerk.
SECTION 2.Section 2.005(b), Family Code, is amended to read as follows:
(b) The proof must be established by:
(1) a driver’s license or identification card issued by this state, another state, or a Canadian province that is current or has expired not more than two years preceding the date the identification is submitted to the county clerk in connection with an application for a license;
(2)a United States passport;
(3) a current passport issued by a foreign country or a consular document issued by a state or national government;
(4) an unexpired Certificate of United States Citizenship, Certificate of Naturalization, United States Citizen Identification Card, Permanent Resident Card, Temporary Resident Card, Employment Authorization Card, or other document issued by the federal Department of Homeland Security or the United States Department of State including an identification photograph;
(5) an unexpired military identification card for active duty, reserve, or retired personnel with an identification photograph;
(6) an original or certified copy of a birth certificate issued by a bureau of vital statistics for a state or a foreign government;
(7) an original or certified copy of a Consular Report of Birth Abroad or Certificate of Birth Abroad issued by the United States Department of State;
(8) an original or certified copy of a court order relating to the applicant’s name change or sex change;
(9) school records from a secondary school or institution of higher education;
(10) an insurance policy continuously valid for the two years preceding the date of the application for a license;
(11) a motor vehicle certificate of title;
(12) military records, including documentation of release or discharge from active duty or a draft record;
(13) an unexpired military dependent identification card;
(14) an original or certified copy of the applicant’s marriage license or divorce decree;
(15) a voter registration certificate;
(16) a pilot’s license issued by the Federal Aviation Administration or another authorized agency of the United States;
(17) a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(18) a temporary driving permit or a temporary identification card issued by the Department of Public Safety; or
(19) an offender identification card issued by the Texas Department of Criminal Justice
TX H 4152 This act provides for certification of an educator in Texas who is certified in another state or country and provides that a foreign educator who has submitted all documents and receives a certificate must also perform satisfactorily on the examination not later than the first anniversary of the date the Education Board completes the review of the educator’s credentials and informs the educator of the examination or examinations on which the educator must perform successfully. 6/19/2009
LAW ENFORCEMENT (13)
Thirteen laws were enacted in eight states: Arkansas, Iowa, Kansas, Oklahoma, Tennessee, Texas, Utah and Virginia. Four bills in Arizona, Illinois, New Hampshire, and Oregon are pending Governor’s approval. These laws generally deal with immigrant detention processes, bail determinations and law enforcement officer responsibilities.
OK S 1102 This act creates Juli’s Law, requires persons convicted of assault and battery, domestic abuse, stalking, possession of a prohibited controlled dangerous substance, breaking and entering, illegal immigration, and various other crimes to submit to deoxyribonucleic acid DNA testing, and authorizes a sheriff to submit samples. 5/20/2009
OK H 2245 This act creates the Criminal Illegal Alien Rapid Repatriation Act, authorizes release of prisoners to the custody of the United States Immigration and Customs Enforcement, authorizes renewal of private prison contracts, prohibits prison contractors from housing international terrorism detainees, authorizes housing of maximum security inmates, requires a contractor to report prisoner transfer information, authorizes the provision of state employee name and address information to state employee organizations. 6/2/2009
TX H 2730 This act relates to the continuation and functions of the Department of Public Safety of the State of Texas and the Texas Private Security Board. One provision disqualifies an individual from a commercial driver’s license if the vehicle is used in the commission of an offense related to transporting, concealing, or harboring aliens. 6/19/2009
TX S 379 This act relates to the duties of the Texas Fusion Center, and requires an annual report regarding criminal street gangs that includes law enforcement strategies that have been proven effective in deterring gang-related crime and gang involvement in trafficking of persons. 6/19/2009
LEGAL SERVICES (1)
OR H 2085 This act modifies the list of documents upon which a notarial officer may rely in identifying a person; provides that allowable documents include a driver license or identity card, a current passport issued by the United States or a foreign country, a military identification card, or an identity card issued by a federally recognized Indian tribe; provides that the fee for performing a notarial act may not exceed a specified amount; permits a public body to collect fees for notarial acts. 6/18/2009
MISCELLANEOUS (28)
Twenty-eight laws were enacted in nineteen states: Arkansas, Arizona, Colorado, Connecticut, Florida, Georgia, Iowa, Illinois, Louisiana, Maine, Minnesota, Missouri, New Jersey, New Mexico, Texas, Utah, Virginia, Washington, and Wisconsin. Five bills are pending Governor’s approval in Illinois, Missouri, and Oregon. These laws provide for immigration related commissions and studies. This section also includes budget and appropriation laws referring to non-citizens.
LA H 521 This act creates an advisory council to propose ways to eliminate obstacles to the effective delivery of governmental services to Latin Americans. 6/25/2009
ME H 199 This law repeals a requirement that an alien big game hunter be accompanied by a guide licensed by the state. 6/13/2009
NM H 295 This act relates to intergovernmental relations, enacts the New Mexico-Sonora Commission Act, creates the New Mexico-Sonora commission to provide a forum for discussion and resolution of issues of mutual concern to New Mexico and the Mexican state of Sonora, provides for cooperative activities between the New Mexico and Sonora. 4/6/2009
NM S 55 This act relates to the border authority and increases the purpose for which the border authority may expend funds. 3/31/2009
TX S 1 This act relates to the General Appropriations Bill, which includes funding for immigrant and refugee related services. 6/19/2009
PUBLIC BENEFITS (11)
Eleven laws were enacted in eleven states: Connecticut, Florida, Idaho, Illinois, Minnesota, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma and Oregon. These laws relate to immigrant eligibility requirements for benefits and the provision of services to immigrants and migrant farmworkers.
NM S 248 This act relates to child abuse and neglect; addresses undocumented immigrant children and special immigrant juvenile status; amends sections of the children’s code and other laws, replaces the juvenile parole board with a juvenile public safety advisory board. 4/7/2009
OK H 2028 This act relates to custody and guardianship of children including unaccompanied refugee minors. The act outlines support obligations, foster care by relatives, attorneys for indigent children, consent to medical, mental health and dental care, training of judges, guardians ad litem, protective custody, at-risk infants, the taking of a child into custody at a hospital, the taking of testimony from a child, adoptions, individualized service plans, children’s shelters, child abuse reporting, delinquent children, payment of a minor’s wages, and other matters. 5/21/2009
RESOLUTIONS (115)
115 resolutions and memorials were adopted in twenty-seven states: Alabama, California, Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Louisiana, Michigan, Montana, New Jersey, Nevada, New Mexico, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin, and West Virginia. Most of these resolutions and memorials celebrate America’s ethnic heritage and others applaud programs or individuals that serve refugees or immigrants. Twelve of the resolutions urge Congress to: support funding; expedite naturalization; change requirements for enhanced driver’s license; develop a balanced national immigration policy; promote travel to the United States by overseas visitors; permanently extend e-verify; grant state waivers to establish a temporary work program; and establish health insurance to provide every U.S. resident (U.S. citizen, national, or lawful resident alien) with health care services.
NM HM 25 This resolution requests the courts, corrections and justice committee to study whether to propose including a “vulnerable victim” aggravator in New Mexico law for crimes against certain persons including immigrants. 3/3/2009
NM SJM 24 This resolution recognizes Albuquerque international district. 3/21/2009
OK HR 1043 This resolution disapproves of the U.S. Department of Homeland Security’s assessment report concerning Rightwing Extremism as individuals who oppose abortion, illegal immigration and certain military veterans, who support Second Amendment gun rights and who might be critical of the federal government. 4/29/2009
OK SR 42 This resolution disagrees with the Obama Administration’s characterization of Rightwing Extremism as individuals who oppose abortion, illegal immigration and certain military veterans, who support Second Amendment gun rights and who might be critical of the federal government. 4/22/2009
TX HR 203 This resolution congratulates Melissa Castano of Edinburg, (my home town) on being named a 2008 Student of the Year by the Migrant Student Graduation Enhancement Program of The University of Texas at Austin. 2/9/2009
TX HR 254, This resolution announces the appointments of the Texas Commission on the Arts, and honors San Angelo artist Rene Alvarado with the position of the 2009 Texas State Two-Dimensional Artist. Born in Mexico, Rene came to the U.S. with his family as a boy, and his work “powerfully evokes the values and heritage of his native country.” On a side note, his work is incredible; he has a showing right now at Shoal Creek Gallery. Go see it; it will take your breath away.
TX HR 261 This resolution welcomes the visiting delegation from Catholic Charities and commends the organization for its good works including its program services for refugees and immigrants. 2/17/2009
TX HR 304 This resolution commemorates the third anniversary of the Dallas Mega March for American Values and Justice on April 9, 2009 in support of immigration reform. 2/26/2009
TX HR 321 This resolution commemorates the fourth anniversary of the Dallas Mega March for American Values and Justice on April 9, 2010 in support of immigration reform. 2/26/2009
TX HR 792 This resolution honors the contributions of Texans of Irish descent on the event of St. Patrick’s Day 2009. 3/17/2009
TX HR 897 This resolution recognizes March 31 to April 23, 2009, as Cesar Chavez Farmworker Appreciation Month, for his many contributions including his work with migrants. 3/31/2009
TX HR 975 This resolution recognizes April 8, 2009, as St. Edward’s University Day at the State Capitol in part because of its College Assistance Migrant Program which has given migrant students access to higher education for nearly four decades. 4/8/2009
TX HR 1360 This resolution honors the memory of Clara F. Santikos of Houston an immigrant from Greece who became a citizen in 1952. 4/27/2009
TX HR 1469 This resolution recognizes April 21, 2009 as West Day at the State Capitol. This vibrant community named after Thomas West drew many immigrants from Czechoslovakia whose identity and culture is now woven into the identity of West. 4/21/2009
TX HR 1544 This resolution congratulates La Mujer Obrera on the development of Centro Mayapan Festival Marketplace in El Paso. 4/29/2009
TX HR 1546 This resolution honors the memory of Chicano and civil rights activist Benito R. Abeytia of Phoenix, Arizona. 4/30/2009
TX HR 1608 This resolution recognizes La Feria city commissioner John Hernandez for his contributions to his community and his country. In his boyhood, Mr. Hernandez joined his migrant family in agricultural labor that took them north every harvest season. 5/4/2009
TX HR 1629 This resolution honors the Greater Dallas Section of the National Council of Jewish Women for its outstanding community service. 4/30/2009
TX HR 1660 This resolution honors Carlos Dantes Mejias, an immigrant from Cuba, for his participation in the Texas Legislative Internship Program. 5/12/2009
TX HR 1759 This resolution recognizes May 2009 as Asian Pacific American Heritage Month. 5/18/2009
TX HR 1769 This resolution congratulates Deyanira Castillo on being a 2009 Student of the Year by the Migrant Student Graduation Enhancement Program of The University of Texas at Austin. 5/11/2009
TX HR 1782 This resolution congratulates retired Brigadier General Jose Riojas of El Paso on his nomination as assistant secretary for operations, security and preparedness of the Department of Veterans Affairs. 5/11/2009
TX HR 1790 This resolution commends Dallas Area Interfaith for its goals and achievements including its support for comprehensive immigration reform. 5/11/2009
TX HR 1921 This resolution commemorates the 125th anniversary of the founding of First Lutheran Church by Norwegian immigrants in Waco. 5/14/2009
TX HR 2096 This resolution honors Nathan Selzer and Hortencia Armendariz on their work in behalf of immigrants, workers, women, and children in the Rio Grande Valley. 5/19/2009
TX HR 2234 This resolution honors Gloria Reyes Garcia of Raymondville for her myriad achievements including her work with migrants. 5/25/2009
TX HR 2369 This resolution commends Candelario Barragan, the son of migrant farm workers, of El Paso for his exceptional achievements in education. 5/26/2009
TX SR 41 Congratulates Arturo J. Banuelas of El Paso for receiving the Adelante Con Ganas Award as a result of his work with migrants, farm workers, the county’s poor and disenfranchised.1/26/2009
TX SR 227 This resolution welcomes the delegation from Catholic Charities to the State Capitol. Among the many programs and services provided by Catholic Charities and Parish Social Ministry programs are adoption, basic personal-living needs, counseling, disaster response, education and enrichment, housing, food banks, and health, refugee, immigration, and social support. 5/31/2009
TX SR 574 This resolution recognizes April 8, 2009, as Saint Edward’s University Day at the State Capitol. Saint Edward’s has maintained its commitment to a low student-to-faculty ratio and has initiated programs to fulfill the needs of its diverse students, such as the College Assistance Migrant Program that has provided college education to migrant students for 37 years. 4/8/2009
TX SR 628 This resolution congratulates Kelly-Ann F. Clarke, an immigrant from Kinston, Jamaica, for her election as Chair of the American Bar Association Young Lawyers Division. 4/15/2009
TX SR 738 This resolution congratulates the Spoetzl Brewery in Shiner, founded by Czech and German immigrants, on the occasion of its 100th anniversary. 4/29/2009
TX SR 876 This resolution recognizes the San Benito Consolidated Independent School District, which offers migrant and bilingual education, on the occasion of its 100th anniversary. 5/8/2009
TX SR 926 This resolution recognizes October 23, 2009, as the Day of the Migrants in Hidalgo County. 5/15/2009
TX SR 1014 This resolution congratulates Candelario Barragan, the son of migrant farm workers, for receiving the Milken Family Foundation National Educator Award. 5/26/2009
TX HR 2480 Honors Thomas F. “Tom” Roberts for his service as sheriff and recognizes his work with U.S. ICE in the apprehension of a number of illegal aliens. 5/28/2009
TX HR 2862 This resolution honors Minerva Rodriguez for her service to the Roma Independent School District and admires her exceptional performance as a migrant recruiter. 6/1/2009
TX HR 2954 This resolution congratulates Dr. Elba Garcia, a former immigrant from Mexico City, on her selection as the 2009 Woman of the Year by the Women’s Council of Dallas County. 6/1/2009
TX HR 2988 This resolution commemorates the centennial of Magnolia Park in Houston, one of the first Mexican American communities in Houston. 6/1/2009
TX HR 3010 This resolution honors Salvador Balcorta of El Paso for his service to his community including his work with underprivileged groups such as immigrants. 6/1/2009
TX HR 3115 This resolution congratulates Clif Tramel on his selection as the 2009 Miss Anna Hackett Teacher of the Year by the Weatherford Independent School District, in part for his work with immigrants from Mexico. 6/1/2009
TX SR 1027 This resolution commending Gloria Reyes Garcia of Raymondville for her achievements and for her work with migrants. 5/26/2009
TX HCR 226 This resolution commemorates the 125th anniversary of the Lucchese Boot Company which was founded by Italian immigrants. 6/19/2009
TX SCR 10 This resolution urges congress to provide emergency funding and resources to begin immediately addressing increasing delays at U.S. ports of entry on the Texas-Mexico border. 6/19/2009
Immigration Reform –NCLS Official Policy
It was encouraging to read the conference report on immigration policy adopted at the National Counsel for State Legislatures (NCSL) Legislative Summit in Philadelphia, Pennsylvania, July, 2009. A careful read reveals that state legislatures are concerned with the significant cost shifting that has gone on in law enforcement and is likely to happen with comprehensive immigration before.
States and localities implement programs required by federal law, provide services mandated by the courts, and initiate programs and policies to address the specialized needs of immigrants and encourage their integration into the economic, social and civic life of their adopted communities.
State legislators called on Congress and the Administration to pursue comprehensive immigration reform that enhances our border security and addresses the inequities in the current system without unfunded mandates or preempting areas of existing state authority. Federal immigration reform will not be comprehensive unless it addresses the impact of immigration on the states.
Border Security & Enforcement
NCSL urged the federal government to fulfill its responsibilities with regard to border security and encourages a renewed state-federal cooperation in countering human trafficking and drug smuggling. The federal government should plan and fully fund the required services and facilities related to these crimes.
The Role of State and Local Law Enforcement
NCSL has a long-standing policy that enforcement of federal civil immigration law is a federal responsibility. State involvement in enforcement of our nation’s immigration laws should be at state option under the current Memorandum of Understanding (MOU) process provided for in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
NCSL opposes efforts to perpetuate the myth of “inherent authority” to enforce federal civil immigration law indirectly by shifting federal responsibility of immigration enforcement to state and local law officers through the criminalization of any violation of federal immigration law. State and local government law enforcement and public safety personnel are already asked, without the benefit of adequate federal assistance, to incarcerate, detain and transport illegal immigrants who have committed crimes. NCSL is strongly opposed to any efforts to shift enforcement of civil immigration law to state and local law enforcement agencies.
NCSL strongly supports 100% reimbursement to states for the State Criminal Alien Assistance Program (SCAAP) as opposed to the current reimbursement level of only provides 25%. NCSL also opposes any effort to coerce state participation in enforcement of federal immigration law by withholding SCAAP program funds.
Worksite Enforcement
State lawmakers are also concerned about worksite enforcement. Employment verification is a critical component of enforcement requiring federal reforms. NCSL reaffirms that states have the right to provide incentives and sanctions to encourage compliance. Enforcement efforts should be focused on bad actors – employers and employees alike. Employers are trying to meet the requirements of the law with too few effective tools at their disposal and, without effective enforcement, employees can be exploited.
E-Verify
NCSL supports E-Verify in its current voluntary form. NCSL urges Congress and the Administration to improve the program to handle the interfaces between the Social Security Administration and Department of Homeland Security databases and to eliminate discrepancies and backlogs. NCSL opposes any efforts to mandate E-Verify until the system is adequately funded and performs to the benefit of all parties.
Enforcement Activities
NCSL believes that enforcement activities should be coordinated with state and local government. NCSL urges the federal government to be mindful that the states bear the primary responsibility for the children that are separated from their families as a result of enforcement activities. Child welfare agencies are crucial to guarantee that children are not endangered and that their best interests are protected, and wherever possible, stability provided to ensure their well-being and development.
Unfunded Mandates and Cost-Shifts to States
The 1996 federal welfare law established a five year bar on SCHIP/Medicaid, food stamps, TANF and SSI for legal immigrants. Yet, state governments are still the providers of last resort, particularly in protecting public health and public safety and providing emergency health care. State governments also fund and provide critical English-language instruction and public education to newcomers that is essential for promoting public safety, reducing community tensions and integrating newcomers into our communities, including those who might be here on a temporary basis. Most immigration reform proposals in Congress would impose significant cost-shifts to state and local government.
State Impact Assistance
NCSL urges Congress to include in immigration reform a funding stream to address the entire fiscal impacts on state governments of any guest worker program, earned legalization and/or increases in the number of immigrants. Such funding should be subject to appropriation by state legislatures so that it can be best targeted to the state’s individual needs including government, faith-based or nonprofit institutions. NCSL will not support immigration reform that does not contain state impact assistance.
Temporary Worker Program
Since the United States experiences labor shortages in a number of seasonal and specialized occupations. NCSL supports creation of a temporary worker program. Providing a legal channel for foreign workers reduces illegal border crossings, enables more focused law enforcement on individuals attempting to enter or already here for the purpose of doing harm and strengthens many sectors of our economy by providing a legal workforce.
Creation of a temporary worker program, raises does raise concerns about providing health and education services to the temporary workers. NCSL wants to prevent cost-shifts to state government for the costs.
Earned Legalization
NCSL affirms the right and responsibility of the federal government to determine federal immigration policy, including the existence and form of any earned legalization program.
NCSL supports the creation of an earned legalization program for illegal immigrants currently in the country. Illegal immigrants are our neighbors and as both workers and entrepreneurs they contribute to the economic vitality of our nation. Our schools are making investments in children from “mixed-status” households where the parents are illegal immigrants, yet the children are citizens. A mass deportation or crackdown on illegal immigrants currently in the country would have detrimental impacts on our communities.
NCSL opposes amnesty but supports an earned legalization program. NCSL believes an earned legalization program will lead to safer and more secure communities by allowing law enforcement officials to protect the vulnerable and to focus their efforts on those who wish to do the community harm.
Naturalization
NCSL supports the promotion of citizenship as a national priority. Delays in citizenship applications are unjustified. Eligible applicants can then move into the mainstream of American cultural, economic and political life. USCIS and other appropriate agencies should allocate sufficient resources to a more efficient citizenship adjudication and integration processes. The costs of becoming a citizen are excessive and a barrier to those working families who seek citizenship. We strongly urge the federal government to assist the states in their efforts to promote naturalization and to address all barriers to naturalization.
Conclusion
I think that the Texas Legislature did not do a bad job at all in spite of some bad apples. Despite all the hot air from some quarters the political balance in the House made it impossible for most anti immigrant legislation to pass. Though the radical proposals played well for the proponents in their home districts, a balanced House would have none of it.
I am also encouraged by what I interpret as a well though out reasoning on the part of state legislatures on a national level. That reasoning reflects much of my own and that of AILA. NCSL did not state a position on worker visas and professionals who have their hired guns. They did advocate for the masses, the millions who have no one to turn to but the state government and you. That is a good thing.
Submitted
Thomas Esparza,
10-2-09
CHIPRA OVERVIEW:
Provisions Related to Immigrants and Non-English Speakers
On February 4, 2009, President Obama signed the Children’s Health Insurance Program Reauthorization Act (CHIPRA, P.L. #111-3) covering an estimated 11 million low-income children. CHIP is reauthorized through FY2013.
Legal Immigrant Children and Pregnant Women. The law permits states the option to cover legal immigrant children and pregnant women, eliminating the five-year bar created by the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). Effective April 1, 2009, states that currently offer state-funded coverage for legal immigrants and pregnant women can now use federal funds, and other states can expand federally funded coverage. Expansion populations will not be eligible for the enhanced FMAP unless they meet the eligibility requirements in place on July 1, 2008 (maintenance of effort). States that make eligibility more restrictive than those in place on July 1, 2008 may jeopardize their enhanced match.
Outreach. CHIPRA allocates $100 million in grants over five years to organizations that promote CHIP and Medicaid outreach and enrollment. Of these grants, $80 million are available to state and local organizations, including government agencies, especially those serving a high percentage of uninsured children and racial and ethnic minorities.
Translation and Interpretation. The law provides enhanced administrative funding for providing translation and interpretation services for children in their CHIP and Medicaid programs.
Verification of citizenship/immigration status. U.S. citizens applying for CHIP must now verify their citizenship, extending the citizenship verification requirement created for Medicaid under the Deficit Reduction Act of 2005. Legal immigrant children and pregnant women must verify their immigration status when applying for or renewing coverage. Unauthorized immigrants are not eligible for Medicaid or CHIP. Effective January 1, 2010 states will be able to verify citizenship through the Social Security Administration after the individual has made a declaration of citizenship.
Chart of Immigrant Eligibility for Federal Programs
| Federal Program | Eligibility |
| SSI | Refugees: eligible for nine years, plus one additional year if a naturalization application is pending (effective FY2009-FY2011, when eligibility reverts to seven years) |
| Legal immigrant SSI recipients resident in the U.S. on or before 8/22/96 | |
| Legal immigrants resident on or before 8/22/96 who are or become disabled | |
| Legal immigrants with 40 work quarters | |
| Veterans, active military and their spouses and dependents | |
| Food Stamps | Legal immigrant children (benefits restored as of October 1, 2003) |
| Legal immigrants with 5 years residence in the U.S. (benefits restored as of April 1, 2003)* | |
| Legal immigrants with 40 work quarters | |
| Refugees | |
| Elderly, resident in the U.S. on or before 8/22/96 | |
| Disabled or blind immigrants, regardless of when they entered the U.S. | |
| Veterans, active military and their spouses and dependents | |
| TANF | Legal immigrants residing in the U.S. on or before 8/22/96 at state option |
| Legal immigrants who enter the U.S. after 8/22/96: barred for first 5 years* | |
| Legal immigrants with 40 work quarters | |
| Refugees | |
| Veterans, active military and their spouses and dependents | |
| Medicaid | Legal immigrants residing in the U.S. on or before 8/22/96 at state option |
| Legal immigrants who enter the U.S. after 8/22/96: barred for first 5 years* | |
| Legal immigrants with 40 work quarters | |
| Refugees (eligible for first 7 years of residence) | |
| Veterans, active military and their spouses and dependents | |
| SSI recipients | |
| SCHIP | Legal immigrant children residing in the U.S. on or before 8/22/96 |
| Legal immigrant children who enter the U.S. after 8/22/96: barred for first 5 years* | |
| Refugees (eligible for first 7 years of residence) | |
| Children of veterans and active military (unmarried, dependent) |
NOTES: “Refugee” on this chart also includes asylees, Cuban-Haitian entrants, Amerasians, and those whose deportation has been withheld. Victims of domestic abuse and victims of trafficking may be eligible for the above programs, but they must still meet eligibility requirements (for example, 5 years residence or 40 work quarters.)
*Sponsor-to-immigrant deeming applies to legal immigrants who have signed a legally binding affidavit of support on or after December 19, 1997. The income and resources of the sponsor are counted as available to the immigrant when determining the immigrant’s eligibility. Prepared by Ann Morse, Immigrant Policy Project, NCSL, October 10, 2008
Last Updated: October 14, 2008
[1] Board Certified Specialist-Immigration and Nationality Law
[2] Statistics courtesy of the Texas American Civil Liberties Union and the Mexican-American Legal Defense Fund.
[3] But I have to say, the real fun, and the prize for originality in crafting a political argument goes to Leo Berman (R – Tyler), who has an interesting and totally original take on why there are so few county DAs prosecuting cases of voter fraud in Texas. From the Austin American-Statesman:
“There’s so much fraud that even the district attorney or the attorney general won’t prosecute it,” Berman said. “If they did, they’d have to stop prosecuting murderers and rapists.”
[4] This author would like to thank Jacqueline Watson, Attorney at Law, Board Certified Specialist – Immigration and Nationality Law for her assistance with this article and in particular the section on Chapter activities at the Legislature.
[5] Original article by: Ann Morse Program Director, Immigrant Policy Project, National Conference of State Legislatures www.ncsl.org/programs/immig. ©2009 National Conference of State Legislatures.
Daily Opinion Summaries for U.S. 5th Circuit Court of Appeals
October 14, 2009 by Thomas Esparza
Filed under Attorneys
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-60585
ESPERANZA ALVARADO DE RODRIGUEZ
Petitioner
v.
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ERIC H HOLDER, JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before DAVIS, OWEN, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Esperanza Alvarado de Rodriguez (“Alvarado”) appeals the Board of
Immigration Appeals’ (“BIA”) decision, …
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