Minutes of Meeting
Saturday, April 29, 2000
Hilton Houston Hobby Airport
Houston, Texas
Regular Business Meeting
The meeting of the State Bar Committee on Laws Relating to Immigration and Nationality was called to order at 9:30 A.M. by Paul Parsons, Chairman. The committee is a standing committee established in 1982 to study current and proposed laws pertaining to immigration and nationality and to make recommendations for any improvements in such laws. The committee is comprised of private immigration lawyers, an immigration judge, the director of a pro bono asylum project, an INS attorney, a representative from the Association of International Educators, the director of an immigration civil rights project, the director of an INS regional service center, an INS district director, a certifying officer of the U. S. Department of Labor, accredited representatives of non-profit organizations recognized by the Board of Immigration Appeals, and other public representatives.
The following
persons were in attendance:
Rebecca Burdette
James Burzynski
Magali Candler
Bruce Coane
Nina Fantl
Eugene Flynn
Clarissa Guajardo
Kenneth Harder
Mary Kenney
Edmond O’Suji
Paul Parsons
Kenneth Pasquarell
Dr. Richard Rubottom
Kathryn Sands
George Sellnau
Milenia Soto
Peter Williamson
Elise Wilkinson
MINUTES:
Mr. Parsons asked for recommendations for any changes to the minutes from the January 21, 2000 meeting in Dallas, Texas. The minutes were accepted as written.
REPORTS:
AMERICAN IMMIGRATION LAWYERS ASSOCIATION (AILA)
Ms. Milenia Soto presented the AILA Texas Chapter report to the committee. The AILA Texas Chapter held their Spring Conference on April 7-8, 2000 at the La Fonda Hotel in Santa Fe, New Mexico. Over 150 individuals attended this conference in addition to a number of INS officials from the Texas Service Center and other INS District Offices in Texas, Oklahoma and New Mexico. The AILA Annual Conference will be held in Chicago, Illinois on June 14-18, 2000. Contact Ms. Soto for additional information. Recently there have been reports that individuals who are in INS detention in El Paso are being taken to the international bridge and forced to exit and reenter the U.S. so that they can then be processed under the expedited removal procedures. Crystal Williams at the AILA National Office needs information on any such cases to be included in possible legal suit over this issue. Mr. Pasquarell stated that in the San Antonio District although individuals can be put in expedited removal at the ports of entry, they often parole individuals in for further review of their status. This is especially true of individuals who are not Mexican nationals. Ms. Soto informed the committee that there is a new LCA faxback number that is now in use – 1-800-397-0478. She also discussed the Hatch-Abraham Senate Bill 2045 that will be voted on soon in the Senate. This bill will increase the cap on new H-1B petitions in addition to a number of other changes in the immigration laws.
INS TEXAS SERVICE CENTER
Mr. James Burzynski, Director of the Texas Service Center(TSC) presented his report to the committee. He informed the committee that all INS District offices had remained open until midnight on March 31, 2000 to accept §202 NACARA permanent resident applications subject to this deadline. These cases were forwarded to the TSC for actual processing. The TSC is still opening boxes of these applications for receipt processing. These cases combined with the H-1B cap cases that were filed prior to reaching the cap have significantly affected the time required to process and issue receipts for TSC cases. The TSC now has a frontlog of cases waiting for data entry and receipt processing of about 103,000 pieces of mail. This will delay the issuance of receipts for all cases presently in the mailroom as well as other cases being filed at this time. The TSC is trying to get all of the I-131 applications filed in conjunction with NACARA cases processed as quickly as possible. The I-821 Temporary Protected Status (TPS) cases for Hondurans and Nicaraguans are also a priority with the July 5, 2000 deadline approaching. The TSC was mandated to process 45,000 I-821 cases during the month of April. INS Headquarters has requested the TSC to provide a mandatory overtime plan to process these cases by the deadline. There is a possibility that the deadline will be extended.
INS Headquarters has set a goal of approximately 110,000 adjustment case completions for this fiscal year. The TSC has completed 27,000 adjustments toward the TSC goal of 30,000 cases this fiscal year. Fingerprint scheduling is the real problem for I-485 and naturalization case completions. With the addition of the I-821 TPS cases that require fingerprinting it is difficult to get cases completed in a short time period. The TSC is only authorized so many ASC fingerprint scheduling slots and for the larger areas this means that fingerprints are being scheduled for 4 or 5 months in the future. A random sampling of employment based 485 applications are transferred to the district offices for completion of the processing. AILA and the TSC have planned another tour of the TSC facilities for May 8th. INS Headquarters has provided overtime funds for the TSC and many employees are now required to complete mandatory overtime hours to help with the backlogs. TSC employees are required to work 20 hours of overtime for each two week period. Also different shifts are available including weekend work schedules.
Weekly Backlog Reports are as follows: I-765 – Try to keep current (within 30 days); I-90 – past 90 days (12/24/99 receipts); H-1B cap cases – pause mode to allow California and Vermont to catch up with the TSC and Nebraska (This includes RFE responses); continuing to process H-1B extension cases; I-130 cases – processing IR cases first, other I-130s being worked slowly, presently still in 1997); I-140 cases – trying to get within 90 day goal; I-539 cases – processing 11/1/99 cases as of 4/1/00. New H-1B cases with an October 1, 2000 start will continue to be processed however the TSC is presently 2 ½ months behind on H-1B cases. When responding to an RFE, he strongly suggested that the FAX be used to make sure that the information gets to the officer more quickly. The TSC is still having data problems with older N-400 cases processed with earlier versions of their computer systems. The delays in the completion of many 1996 and 1997 N-400 cases also creates problems with expiring fingerprint checks. Until all District Offices are converted to the most recent version of the N-400 computer system there will be continuing problems with delays and lost data. The I-90 replacement program will be processed by the Nebraska and California Service for card production, however data entry will be done at all four service centers.
U.S. DEPARTMENT OF LABOR
Mr. John Bartlett, Certifying Officer for Region VI of the U.S. Department of Labor (DOL) was not present. Mr. Parsons presented a report on DOL activities. Mr. Bartlett sent his regrets at not being able to attend the meeting but the severe travel budget restrictions for DOL personnel continue. Mr. Hardy Anderson, Certifying Officer for Region VIII in Denver, Colorado has retired and he will not be replaced. Mr. Bartlett will assume the responsibilities for both the Dallas and Denver DOL Regional Offices. Region VIII includes the states of Colorado, Utah, Wyoming, Montana, North and South Dakota. Mr. Joe Juarez will remain as Regional Administrator over the newly expanded Region under the Dallas office of DOL. The DOL has authorized one new full time analyst and another temporary analyst to help with the backlogs at the Region. There are problems with merging the two data systems from the Denver and Dallas offices that may lead to other delays. Mr. Anderson will remain for 60 days as a consultant to help with the transition from two offices to one. New H-2A regulations have been proposed with a 60 day comment period. The H-1B regulations are being held pending Congressional action. The LCA faxback system is working and eventually the Regions will no longer process the LCAs. H-2B cases have tripled recently indicating the shortages in skilled and unskilled workers. These cases are being filed for landscapers and nursery operations which are raising questions concerning the temporary nature of these positions. Hotel workers and seasonal workers for the ski and resort industries are also part of the increase in H-2B filings. The DOL National Office is working with the INS to formulate uniform definitions for temporary and seasonal work for H-2B purposes. The Denver Office has two full time staff working H-2A and Limited Review cases. RIR labor certifications will also continue to be processed in the Denver office. Basic labor certification and Notice of Findings cases will be sent to Dallas for final processing. Mr. Jim Norris, head of the alien labor certification unit in Washington, D.C. has resigned for another position in DOL and his replacement has been selected. Mr. Norris will continue as a consultant during the initial period to assist his replacement. The TWC is now working on regular labor certification cases received on January 20, 1998. Presently Region VI is processing RIR cases that were received at the Region VI office on or before November, 1999. Regular labor certifications received in September 1999 are being processed. Limited Review cases are processed as they are received. LCA are processed as received as well.
INS DISTRICT OFFICE
Mr. Kenneth Pasquarell, District Director for the San Antonio INS District Office presented a report on his District. Mr. Richard Casillas, the previous District Director for San Antonio passed away this week. He had retired six years ago. Currently N-400 naturalization cases are being processed in under 1 year. The I-485 adjustment of status cases are taking about 23 months to complete. Ageout cases are expedited. The District attempts to identify these cases as soon as possible to make sure they are processed prior to the 21st birthday of the beneficiary. Individuals that work in the naturalization section in the San Antonio District Office recently visited the TSC to get a better understanding of the naturalization process that is completed in Dallas. Starting in June 2000 the I-90 renewal applications will be processed at the Application Support Center. The San Antonio District Office is receiving approximately 150 I-90 applications a day which is producing lines in the San Antonio District Office. The ASC process will allow individuals who must file an I-90 to extend their I-551 to file and complete the process at the ASC instead of the San Antonio District Office. The ASC will review documents, verify I-551 information, complete the I-89 card with fingerprint and place a sticker on the back of the I-551 card that extends the validity of the card for six months. The entire application including the fee is then sent by Federal Express to the California Service Center for processing.
The Naturalization section is reviewing the SAW legalization application files of naturalization applicants to identify possible “good moral character” issues in addition to confirming that the English and history test has been completed. Mr. Pasquarell stated that they have identified some legalization cases that were recommended for denial but were approved anyway by the special legalization section. They will go behind the red sheet to review the entire file in an effort to determine if other action is required.
If the proposed expansion of the §249 registry is enacted by moving the registry date to 1986, the INS is concerned that the amnesty document vendors will take advantage of individuals who hope to qualify for this new benefit. Unfortunately, the INS doesn’t have much power to prevent this from happening unless they can establish a mail fraud component of the case or make an undercover buy from the vendor. Mr. Harder suggested that this was really a question that should be taken up with the INS Headquarters. The Department of Justice had created a task force on document fraud issues that held a meeting in Houston some time ago. To date there has not been any follow up or resolution of the issue. Part of the problem is that if an alien admits to the use of a fraudulent document, there isn’t any remedy available to prevent his removal and possible prosecution under the document fraud provisions. If this registry provision is enacted, the INS and other groups should prepare public service announcements in English and Spanish to warn applicants of the risks if fraudulent documents are submitted to the INS. Mr. Williamson explained that this task force was formed as a result of a speech that Attorney General Reno delivered on August 1, 1996 to create more cooperation among the U.S. Attorneys, FBI, Department of State Diplomatic Service, AILA, INS Investigators and the INS Commissioner on fraud problems.
Mr. Parsons distributed a press release describing the lawsuit filed by Texas Attorney General John Cornyn against Ybarra’s Immigration Services and owner Hilda Ybarra of La Blanca, Texas for violations of the Texas Deceptive Trade Practices Act. Ms. Ybarra is accused of misleading Mexican citizens who are not eligible for legal immigration into believing that she can obtain residence status and a work permit. The DTPA suit seeks to permanently enjoin Ms. Ybarra from operating in Texas in addition to civil penalties of up to $10,000 and reimbursement to all identifiable victims. The INS worked with the Texas Attorney General’s office in the investigation and prosecution of this case.
TEXAS STATE DEPARTMENT OF HUMAN SERVICES
Ms. Catriona Lyons sent her report since she was not able to attend the Committee meeting. For the last two months the Texas Department of Human Services (TDHS) has been receiving calls from the INS or Border Patrol asking various TDHS regional offices where they should send confiscated public benefit cards including Medicaid and Lone Star cards. Our response is to send them to the TDHS office. Our clients can call our 800 number to have the card reissued but if this is not done the TDHS worker must deactivate the card and then try to locate the household to replace the card, if appropriate. The TDHS is particularly concerned about cases in which a card is confiscated from a Mexican national who may be ineligible but who is holding a legitimate card for a family member, often a U.S. citizen child. The process to replace the card may take several weeks during which time the cardholder is unable to access needed services under Medicaid and food stamps programs. Representative Elliot Naishtat’s office has followed up with the INS on this issue and was informed that it is not a policy of the INS to confiscate other agency documents. However the situation continues. If possible the TDHS would like to request the INS to issue a policy clarification to the border crossing areas that restates that the confiscation of these documents is not a policy of the INS. Ms. Lyons reported that there are continuing problems with the Department of Public Safety concerning eligibility for drivers licenses. Some refugees are admitted with I-94 cards that contain the term “laissez passer.” The DPS does not recognize this as a valid document and is refusing to issue licenses to these individuals. Mr. Pasquarell is assisting with the education of the DPS on this type of document. The State conference on Refugee and Immigrant Services will be held in Austin on June 26 – 28, 2000 at the Double Tree Hotel. Contact Ms. Lyons for additional information about the conference.
ASSOCIATION OF INTERNATIONAL EDUCATORS (NAFSA)
Ms. Kathryn Sands presented her report to the Committee. The proposed regulations on the CIPRIS student tracking program including the fee requirement to be collected by the educational institutions are now on hold pending further review. NAFSA had a liaison meeting with the TSC in April to set uniform criteria for student applications. EAD processing is the major problem if there are delays in issuing the EAD cards for optional practical training. As of April 21, 2000 the TSC was processing February 2000 EAD applications. Since these applications can only be submitted up to 120 days prior to date of the planned employment, it may be difficult to obtain EAD cards in a reasonable time frame. In mid April President Clinton issued a memorandum highlighting the importance of international training programs to the U.S. Ms. Sands advised the Committee on the restructuring of the J-1 visa program now that the USIA has been incorporated as part of the Department of State Bureau of Educational and Cultural Affairs. User fees are now required for J-1 including $198 for program change or extension requests; $799 for new program designation; $43 for non-routine handling of an IAP-66 form; and $136 for waiver processing. The H-1B cap out is a real problem now because many students are coming to the end of their F-1 practical training period and the only options now available to possibly continue employment are TN and O-1 if the individuals can qualify. NAFSA is most interested in the various H-1B bills being debated in Congress to hopefully provide some relief for foreign students and employees of educational institutions. NAFSA is having a major conference in San Diego during May to discuss this and other immigration-related problems facing educational institutions.
LAWYERS COMMITTEE FOR CIVIL RIGHTS
Ms. Mary Kenney presented the report to the Committee. The joint Lawyers Committee and the State Bar grant application has been funded to assist with the detained juvenile rights programs and special immigrant cases in Houston and Dallas. The proposal is for INS and the State family law courts to work together in dealing with detained alien juvenile cases. The ABA has also provided a $5,000 grant for this project. Presently the Lawyers Committee has four attorneys on staff, one in the El Paso office and three in the San Antonio office. They have also had the assistance of an individual on a Yale Fellowship program since September to draft an Aliens Rights Manual for use in this project.
The Lawyers Committee has provided an Amicus Brief in a Fifth Circuit Case where a returning lawful permanent resident was placed in expedited removal instead of being paroled into the U.S. for proceedings before the Immigration Judge. The Committee is also involved in a possible class action case concerning naturalization applications filed with the INS District Office in San Antonio. The case involves requests for additional information from naturalization applicants who originally obtained their permanent resident status through the SAW program. Other naturalization cases include the El Paso INS District Office requesting documents that don’t exist. For example, they are requesting documentation that an individual does not have a criminal record. In another instance the physical presence requirement for unwed fathers to convey citizenship on foreign born children is at issue. In May the University of Texas at El Paso Center for Border Studies is having a seminar on various issues related to immigration problems at the border. The Lawyers Committee will be participating in this presentation.
VOLUNTARY AGENCIES
Ms. Candler presented her report on Catholic Charities activities. Catholic Charities offices in conjunction with the YMCA and CARACEN are very involved in addressing the problems inherent in the detention of juveniles. Ms. Candler met recently with a reporter from the L.A. Times and several of the detained alien juveniles about the problems. Ms. Elise Wilkinson, an attorney who works on this issue presented a rights presentation on April 3, 2000 for alien juveniles detained at the Liberty County detention facility. The children were glad for the information and explained that no one had provided them with any information about their rights and possible options. These presentations are given in English and Spanish because of the large number of Spanish speaking detainees. Several attorneys from various voluntary agencies presented another VAWA training at the Houston Area Women’s Center to recruit more pro bono attorneys to assist battered alien spouses and their children with VAWA applications and other possible relief. Over 25 attorneys attended. The elderly relief programs in Houston and Dallas are doing well. Qualifying individuals are encouraged to apply for U.S. citizenship and provided assistance in the completion of the applications and requesting fee waivers if necessary. There are issues with the ability of some of the elderly applicants to take a meaningful oath.
Ms. Candler also engages in an active liaison with the INS Asylum Office located in Houston. Recently individuals were being detained at their Asylum interview with no opportunity to engage in an actual interview about the merits of the case. After a meeting with Ms. Candler the Asylum Office has agreed to continue these cases pending a clarification of policy from the INS Central Office. Clean NACARA asylum cases are being granted.
Ms. Wilkinson discussed her experience with the rights presentations to detained juveniles. The presentation she did recently included 22 detained juveniles at the Liberty County facility north of Houston. The children were well behaved; however, there are questions concerning whether these facilities are appropriate for juveniles. When these children are separated from the general population for their safety they are in fact placed in solitary confinement. The possibility of suicide is real but there are no provisions to deal with this and other issues such as mental deficiency and possible ADD behavior. CARACEN and Catholic Charities are providing training for attorneys during May to assist with more of these rights presentations for detained juveniles. Mr. Flynn is on the Catholic Charities advisory board in Dallas. He is concerned with the continuing provision of pro bono assistance to asylum applicants and VAWA cases since Project Adelante is ending its program. These cases may be transferred to Catholic Charities in the future. A Congressman from Florida has introduced a bill to allow for the appointment of guardians ad litem for detained alien juveniles that may provide some protection for these children.
Mr. Parsons announced that PROBAR is seeking a Coordinator- Attorney now that Mr. Lang has taken a position with the Board of Immigration Appeals in Falls Church, Virginia. The announcement will be included with these minutes. Also included with the minutes will be the formal notice of the lawsuit filed by Texas Attorney General John Cornyn against a fraudulent immigration specialist in Texas. Recently Mr. Parsons met with two Policy Analysts for Governor Bush and a representative from the Texas Secretary of State to provide information on various immigration issues and focused on the driver’s license problems. The Texas Immigrant and Refugee Coalition and the National Council of La Raza have requested that the Texas Department of Public Safety schedule a hearing on the application requirements to obtain a driver’s license in the State of Texas. This hearing will be held at 10AM, May 30, 2000 in the Criminal Law Enforcement Auditorium, 6100 Guadeloupe Street, Austin, Texas. Hopefully this hearing will lead to the resolution of some of the problems now encountered by aliens trying to obtain driver’s licenses and state identification cards.
The committee adjourned at 12:00 noon.