Patrick Kolasinski – Law Blog

Posted By Karen on June 23, 2011

The Wall Street Journal reports that U.S. District Judge Thomas Thrash plans to rule on a lawsuit request to block a new law in the state of Georgia. Judge Thrash intends to provide a ruling before the law has a chance to go into effect on July 1st. This new law does a few things to immigration enforcement:

• authorizes police to check the immigration statues of suspects and hand over any illegal immigrants to federal authorities
• requires businesses to verify that employees are eligible to work in the U.S.
• criminalizes the transport of illegal immigrants

There are three major problems that would arise if this new law remains in effect. First, the law arguably allows for more racial profiling. Second, maintaining such a law encourages different immigration policies from state to state, and then the third point creates practical difficulties, criminalizing such acts as a U.S. citizen driving his or her illegal immigrant parent to a grocery store. There is a chance that Judge Thomas Thrash ultimately finds this new law unconstitutional. The fact that he is taking time to consider the matter carefully shows promise.

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Posted By Karen on June 22, 2011

On June 15, the government announced a new wave of “silent raids” on employers who might have out of status “illegal” immigrant workers. The silent raids are essentially audits conducted by Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS) division tasked with enforcing U.S. Immigration laws. Audited companies that are found to have employed insufficiently documented workers are not only forced to fire all such employees, but also face civil and criminal consequences, that range- “from fines and being barred from competing for government contracts to criminal charges of knowingly employing illegal workers, evading taxes and engaging in identity theft.”

This year’s  2,338 audits (so far), mark an increase from 2010′s full-year total of 2,196. Businesses most at risk are “garment-makers, produce growers, fast-food chains,” as well as “cargo-holders, food catering,” and transportation infrastructure builders.

News of increased enforcement on the part of ICE presents a dark future not only for the 11 million illegal immigrants and their families currently residing in the U.S., but also for the already struggling U.S. economy. Certain businesses will now face sudden, significant drops in the number of their employees, and the resulting production drops may well result in either temporary or lasting shortages of affected products such as produce, clothing, and anything shipped via our cargo system.

A noteworthy case study is the near insolvency of American Apparel, one of the leading domestic clothing companies. After an audit last year, American Apparel was forced to lay off nearly a quarter of its production staff, and the resulting production disturbances and related problems nearly drove the venerable firm out of business. While many may argue that our current unemployment crisis is a sign that there are plenty of legal employees out there, it is important to remember that even a willing employer seeking to hire a large number of willing employees (assuming a matchup is found) must expend considerable time and money. It takes time to first screen and then train candidates. The delays and expenses related with a dramatic change in employment can be devastating to any business.

Nowhere is this more true than in agriculture, where, according to Tom Nassif, the president of the Western Growers Association,  ”illegal” workers can comprise as much as 70% or 80% of the workforce. Suddenly firing all of these employees, especially in the middle of a harvest season, would result in a near-certain collapse of the U.S. agricultural sector.

While enforcement of our immigration laws is certainly a laudable goal, and “silent raids” are more effective and efficient than the major “guns-out” raids of the Bush era, it is important to keep an eye on this new tool and to make sure it is used in a sensible and responsible manner. Stay tuned here for more information about these raids, and about how employers and employees (both “legal” and “illegal”) can prepare and plan for an ICE audit.

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Category: Immigration | No Comments »
Tags: Agriculture, Economy, ICE, Immigration, Immigration Reform, President Obama

Posted By Patrick on November 25, 2010

The success of our Guatemalan TPS blog has inspired us to provide a similar site for those seeking information about Pakistan’s recent TPS request.

Pakistan was devastated this summer by unprecedented flooding that forced millions of people from their homes and destroyed countless acres of farmland. The Pakistani government has struggled to cope with the magnitude of the disaster, and has recently requested US assistance in the form of Temporary Protected Status (“TPS” for short).

TPS is a special immigration status that grants citizens of a designated country the right to stay and work in the US temporarily, regardless of how they got here.  In order to qualify, an applicant must have been present in the US on the date of the disaster, and could not have left the US at any time since then.

TPS is a powerful humanitarian tool that allows the US government to provide immediate assistance to a country in need at a very low cost.  As a temporary form of relief, TPS comes with fewer political strings attached, and it can be granted by the executive branch with no Congressional authorization.

All of this means that a request for TPS draws a great deal of attention from potential beneficiaries, as evidenced by the way that our coverage of the Guatemalan TPS request resulted in not one, but two server meltdowns this summer!  We’re now on a robust hosting package, and are excited to be able to sponsor a new site dedicated to those seeking information about the Pakistani TPS request. To find out more, please visit www.PakistanTPS.info!

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Posted By Patrick on August 12, 2010

Lots of pixels have been spilled discussing Judge Walker’s decision the Proposition 8 is unconstitutional, and we’re not going to add much more to the debate about whether the decision is correct (for the record, we feel that it is) or about the parties’ respective likelihoods of success on appeal. There is, however, an aspect of this decision that isn’t getting nearly as much press (at least not yet):

Does this decision mean that a same-sex marriage in California qualifies an applicant for family-based immigration benefits?

Unfortunately, the short answer is no. Despite what the State of Arizona and certain political pundits might claim or wish, immigration law is purely federal. USCIS, ICE, and every other agency involved in the immigration process are all controlled by federal law, and so state decisions generally have little impact.

“But wait!,” you say, “What does Federal law say about same-sex marriage. I thought marriage was ruled by the states!”

Well, yes, mostly.  States do control most aspects of marriage, which is why California can decide for itself, within the confines of the U.S. Constitution, what “marriage” means here. But a 1996 federal law known as the “Defense of Marriage Act” or DOMA, as it is more popularly known, declares that the federal government only recognizes a marriage between a man and a woman. This means that all Federal agencies can only recognize opposite-sex marriages, a limitation that applies to the  immigration system as well.

So, even though a California marriage between a U.S. Citizen and a same-sex foreign national may likely be perfect legal very soon, that couple will be unable to apply for immigration benefits. In fact, as far as the immigration system is concerned, that couple will even not be married.

“That’s not fair! What can we do?”

You’re right, it isn’t fair.  Unfortunately, there’s only two ways to fix the problem. Either DOMA can be found unconstitutional by the Supreme Court or it can be repealed by Congress. While there’s not much you can do to speed up a constitutional review of DOMA, there is plenty you can do to push Congress to repeal the act.

Believe it or not, your Representatives and Senators are actually quite sensitive to the tide of public opinion.  If they get the feeling that the public really wants them to act a certain way, they are likely to do what the public wants. Such is the nature of the political beast in a representative republic such as ours, after all.  So, if you want DOMA to be repealed, contact your representative and/or senator and let them know how you feel. Ask them to make repeal of DOMA a high priority.  And tell them WHY you think it matters. Give them your story, explain the unfairness, be frank.

Most people seriously underestimate the power of a phone call, email, or letter to a legislative office.  Friends of mine who work for legislators have told me that getting as little as six calls in a week on an issue is enough to put the issue high on the legislator’s radar.  Six calls in one day brings to mind images of pitchfork-armed villagers storming the office.  So get your friends together and coordinate your calls, emails, and letters.  Let your representative see that his constituency cares a great deal about this issue and they will respond!

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Category: Immigration | No Comments »
Tags: DOMA, Prop 8

Posted By Patrick on August 10, 2010

The Law Offices of Patrick Kolasinski now offers assistance in Spanish! We have also added a dedicated phone line for those of our clients who prefer to communicate entirely in Spanish. Call us today at (209) 542-4529.

¡Las Officinas de la Ley de Patrick Kolasinski tenemos gente que puede ayudarle en Español! Tambien tenemos una línea dedicado para los clientes que prefiere hablar Español. Llamanos hoy a (209) 542-4529.

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Posted By Patrick on July 28, 2010

As immigration rises to the front of the national discussion, one aspect of the situation is getting very little press.  Despite what the the loud pronouncements of some media outlets might lead people to believe, the Obama administration is actually proving to be more aggressive when it comes to deportions than any other administration in recent memory.

One of the few stories to cover this, the Washington Post recently reported that the current administration is on track to beat President Bush’s 2008 deportation record by a nearly 10 percent.  The 2008 total was actually quite high, and so President Obama appears likely to deport a full 25% more immigrants than his predecessor did in 2007!

The full impact of this newly agressive approach to immigration enforcement is being felt across the country, by immigrants, their families, and their employers.  Unfortunately, the lack of media coverage on this issue means that any political points that the administration hopes to score ahead of the looming immigration debate appear to be wasted.

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Category: Immigration | 1 Comment »
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Posted By Patrick on July 14, 2010

The immigration news world has been buzzing since yesterday with discussion of the Ninth Circuit’s decision in Perdomo v. Holder (PDF).  In its decision, the court held that the BIA was wrong when it refused to classify “all Guatemalan women” as a distinct social group for refugee/asylum purposes. Some of the reports out there are a little too exuberant in their reading of the case – the court did not decide that all Guatemalan women in the US are automatically eligible for asylum, but the case is still an important decision that will likely serve to protect many people of both genders from countries around the world.

A Little Background

Ms. Perdomo came to the US as a minor in 1991 to join her mother, who filed an unsuccessful aylum petition for herself, and attempted to include her daughter.  Ms. Perdomo then stayed here, living with her stepfather and sister in Reno (her mother has since passed away). In 2003, INS initiated removal proceedings against her, and Ms. Perdomo requested asylum, withholding of removal and relief under the Convention Against Torture at her 2004 immigration hearing.

The claim for asylum was based on the tremendous scope of violence against women, which has been amply documented by several human rights organizations. Ms. Perdomo claimed that, as a young woman, she had a reasonable fear of violence, particularly because, as a single woman with no family returning to Guatemala after living in the US for some time, she would be perceived as a wealthy and vulnerable target.

Asylum Requirements

In order to qualify for asylum, an applicant must show that they have a reasonable fear of persecution based on a qualified status.  The persecution must be based on political opinion, race, religion, nationality, or “membership in a particular social group.”  This last group has never been conclusively defined, instead being interpreted as intentionally flexible to cover new types of social groups.

The Case, Arguments, and Holding

Ms. Perdomo argued that she belong to a social group defined as “Guatemalan women between the ages of 14 and 40 residing in the United States,” or, in the alternative, simply as “all Guatemalan Women.”  BIA held that neither of these groups were a “social group” for the purposes of asylum status, but were instead “a mere demographic division.”  Basically, the BIA argued that “all Guatemalan Women” was too broad to qualify as a “particular social group” (the more narrow definition was knocked out of discussion earlier, and the court’s opinion deals only with the broad group).

The Ninth Circuit held that the BIA was wrong, and that a group definied as all the women in a given country could be considered a “particular social group” for purposes of asylum.  In doing so, the court relied on decisions issued by two other circuits (the Third and Eighth Circuits), as well as BIA decisions and a host of other sources.

What This Means

Basically, the court’s holding means that a group defined as all of the women (or men, one would suppose) in a given country can qualify as a “particular social group” in the asylum/refugee context. In other words, there is nothing stopping BIA from determining that “all Guatemalan women” compose one social group, thereby allowing any Guatemalan woman to apply for refugee status.

However, the opinion does NOT state that “all Guatemalan women” is a valid social group in the present case.  The Ninth Circuit is very clear in limiting its decision to pure law – there is no ruling here on whether the specific facts of the situation in Guatemala call for a holding that all Guatemalan women are subject to persecution (and therefore potentially eligible for asylum). Instead, the court basically removed the obstacle that BIA had relied on in determining that there was no way for Ms. Perdomo to claim that she was part of a “particular social group.”

So, what will happen next? Well, the case has been remanded (sent back) to BIA, which will hold another hearing (maybe a few of them).  BIA will consider whether the facts presented by Ms. Perdomo support the conclusion that the violence against women in Guatemala is so widespread that any Guatemalan woman can potentially claim asylum.  Then, BIA will issue a decision, and we will see whether Guatemalan women in the US will have a powerful new tool in their attempts to built a stable and safe life for themselves here.

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Posted By Patrick on July 4, 2010

We would like to wish all of our U.S. readers a happy and safe Independence Day.  We hope you have a wonderful holiday weekend and encourage everyone to take a moment to reflect on or Nation’s history and the meaning embodied by the Declaration of Independence.

Both the Declaration and the Constitution are remarkable documents that have served as models and inspiration for countless people across over two centuries of history. The ideals reflected in the Declaration are just as valid today as they were in 1776, and so we provide the text below for your reference.

The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

(more…)

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Posted By Patrick on July 2, 2010

USCIS has issued a statement reminding Honduran and Nicaragauan citizens who have TPS benefits that they must re-register for those benefits by July 6 (this Tuesday!). If you fall into this group and haven’t re-registered yet, you risk losing your TPS benefits. If you need help completing the re-registration paperwork, contact a qualified immigration attorney today.

If you don’t have an immigration attorney and need help, we would be happy to help you – call our firm today (yes, even though it’s the Fourth of July Weekend) at (209) 408-0104 or email us at immigration@kolasinski-law.com.

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Tags: Honduras, Immigration, Nicaragua, TPS

Posted By Patrick on July 1, 2010

In a speech today at the American School of International Service, President Obama called for a bipartisan effort to achieve comprehensive immigration reform. He highlighted his administration’s increased commitment to the security of US borders and pointed out that immigration reform means more than just amnesty or a border fence. Instead, it requires a wholesale review of a system that has been creaking since its inception and is nearing (or perhaps already past) its breaking point.

There is no shortage of analysis of this speech available online (and offline too, I’m sure), so I won’t add my own two cents to the volumes that have already been written.  Rather, as with prior government announcements, I will provide you with the speech in its entirety, so that you can read it and make your own decisions about what this means.  As always, please feel free to share your thoughts and comments below.

Office of the Press Secretary

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Category: Immigration | 1 Comment »
Tags: Immigration, Immigration Reform, President Obama