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President Obama: 2 Simple Fixes to our Immigration System You Can Do Right Now

President Obama: 2 Simple Fixes to our Immigration System You Can Do Right Now (without stepping on Congress’s toes).
By Mitchell J. Cohen, Esquire
09/02/2014
U.S. Immigration law has been aptly characterized as byzantine, involving a tangled web of statutes, regulations, treaties, policies, as well as an array of administrative and judicial decisions trying to make sense of it all. President Obama has repeatedly decried our immigration system as “broken.” In the absence of Congressional movement on immigration reform, President Obama has promised to take executive action to provide some measure of relief to a portion of our country’s estimated 12 million undocumented immigrants (give or take a million). Having promised unilateral executive action by summer’s end, the Obama administration now appears to be relocating another ephemeral line in the sand, much to the chagrin of many immigration advocates, undocumented immigrants and their families. What can the President do, legally, immigration-wise, by himself, without Congress? Given the fact that the president has again apparently hit the pause button on his stated plan to provide additional immigration relief, I believe that it would behoove his administration to use this breather to carefully examine options for executive immigration reform employing laws already on the books. As an attorney who has been practicing immigration law in the greater Miami area for over 15 years, I have a couple of modest suggestions for executive action, that if implemented, will likely legalize a sizable portion of our undocumented immigrants, without stepping on the toes of the legislative branch.
Simple Fix #1: Expand use of “Parole in Place” to allow certain relatives of U.S. Citizens to apply for green cards.
Contrary to popular belief, marriage to a U.S. Citizen does not automatically result in a green card for a foreign national spouse and the citizen’s stepchildren. Many would-be lawful permanent residents living in the United States are barred from receiving green cards due to the manner they entered the United States. Entry without inspection by land or sea is a legal barrier to many of the “undocumented” gaining lawful permanent resident (“green card”) status. Many of these same individuals are in the catch-22 of not being able to leave the United States to be processed through the U.S. embassies in their countries, due to a rather draconian provision of a 1996 law that operates to lock people out of the United States for 3 or 10 years, depending on the length and quality of their “unlawful presence” in the United States.
It may come as a surprise to many that the Department of Homeland Security already has at its disposal a legal mechanism to allow these relatives of U.S. Citizens to apply for green cards without leaving the United States. It is called known as “parole.” Parole, sometimes referred to as “humanitarian parole” is a feature of our existing immigration law. Parole permits an otherwise ineligible foreign national to enter the United States or alternatively parole may be granted to individuals already in the United States, who were not processed through a port-of-entry. This latter use of parole is known as ”parole in place.” Under Section 212(d)(5) of the Immigration and Nationality Act the DHS may parole an foreign national “for urgent humanitarian reasons or significant public benefit.”
Parole in place has been in use during both Republican and Democratic administrations to facilitate lawful permanent residency for individuals who would be eligible to apply for a green card but for their lack of inspection and formal “admission” to the United States. The DHS as a matter of routine, issues parole-in-place to Cuban nationals who arrive irregularly on U.S. soil by sea or land. The reason for the parole is to position these individuals to benefit from the “Cuban Adjustment Act,” which requires that the applicant have been legally “admitted” or “paroled” into the United States. Last year, U.S. Citizenship and Immigration Services, a bureau of DHS, issued a policy memorandum recapitulating the legal theory behind “parole in place,” and streamlining the parole in place application process for certain individuals affiliated with the U.S. Armed Services and as well as their relatives. As per the November 15, 2013 memorandum, parole in place trumps the ordinary bars to permanent resident status for those who entered the U.S. without inspection.
Expanding the general use of “parole in place” to foreign-born spouses, parents, and certain minor stepchildren of U.S. Citizens would position these relatives to be able to apply for permanent resident status in the United States.
Simple Fix #2: Follow the 6th Circuit Court of Appeals, which found that individuals granted Temporary Protected Status are correctly classified as having been legally inspected and admitted to the United States.
Presently there are an estimated several hundred thousand individuals in the United States who have been given a temporary reprieve from deportation due to strife or natural disasters in their country, under a humanitarian provision of our immigration law called “Temporary Protected Status” (TPS). As present the following countries are designated for TPS: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria. In order to qualify for TPS most beneficiaries had to demonstrate that they were residing in the United States at a time prior to the designation of their country for TPS. Some countries have been TPS-designated for well-over a decade, such as El Salvador (since 2001), Honduras (1999), and Nicaragua (1999). These individuals remain mired in an uncertain immigration legal limbo, never knowing whether their country’s TPS designation will finally run out. Many have U.S. citizen spouses, or adult U.S. citizen sons or daughters, but cannot apply for a green card due to their having entered the United States without inspection.
Last year in the case of Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013) the Court of Appeals for the 6th Circuit held that the government’s grant of Temporary Protected Status to an individual who entered the U.S. without inspection constituted a legal inspection and admission into the United States. The import of the court’s decision is that it qualified such person to apply for permanent resident status through certain U.S. citizen relatives. Unfortunately, the USCIS has not adopted the 6th Circuit’s holding nationwide, and as a consequence, it remains binding on immigration cases only within the jurisdiction of that court (Michigan, Ohio, Tennessee, and Kentucky). In an October 23, 2013 Question and Answer session with the American Immigration Lawyers Association, the USCIS “Service Center Operations Directorate” declared that outside of the 6th Circuit’s jurisdiction “[t]here are no plans at this time to give broader recognition to [Flores v. USCIS].” Adopting the Flores holding nationwide would provide legal cover for potentially thousands of TPS holders who entered without inspection to obtain permanent resident status through certain U.S. Citizen immediate-relatives.
Yes You Can
The measures I suggest are not presented as a panacea, nor am I suggesting that they constitute the entire set of legal tools at the President’s disposal with which to tweak our immigration system. An invisible sword of Damocles hangs over the heads of our undocumented immigrants, many of whom have lived and worked in the United States for years or even decades, and have immediate relatives who are U.S. Citizens. These measures may help a sizable fraction of the undocumented achieve lasting legal status in the United States, including a lawful pathway to eventual citizenship for some. The President’s authority is not unfettered, however I hope that my examples of potential executive policy fixes illustrate that, when it comes to implementing meaningful immigration reform, the President’s hands are far from tied.
Mitchell J. Cohen is a 15-year member of the American Immigration Lawyers Association and Member of The Florida Bar, with law offices in Hallandale Beach and Fort Myers, Florida. He has extensive experience litigating cases before the USCIS, Immigration Courts, and Board of Immigration Appeals.
Hallandale Beach (Main) Immigration law Office:                             Fort Myers Immigration Law Office:
1250 E. Hallandale Beach Blvd., Ste. 500                                             3620 Colonial Blvd., Ste. 160
Hallandale Beach, FL 33009                                                                    Fort Myers, FL 33966
Tel. (954) 457-1941                                                                                     Tel. (239) 931-6558
This article is general in nature, and not intended as legal advice.
Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

 

 

 

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Bacterial Meningitis Case at Krome Detention Center

Bacterial Meningitis Afflicts ICE Detainee at Krome Detention Center in Miami

by Mitchell J. Cohen, Esquire

October 23, 2013

 

ICE Detainee Contacts Bacterial Meningitis at Krome

ICE Detainee Contracts Bacterial Meningitis at Krome

On October 21, 2013 an ICE detainee at the Krome Detention Center in Miami, Florida, was diagnosed with bacterial meningitis after being taken to a local hospital. According to a statement from ICE, he remains hospitalized at this time.

According to the National Institutes of Health (NIH) website,  “Meningitis is inflammation of the thin tissue that surrounds the brain and spinal cord, called the meninges.”   The NIH further advises that “bacterial meningitis infections are extremely serious, and may result in death or brain damage, even if treated.”

Reportedly, several detainee housing units at Krome are “temporarily cohorted,” (quarantined) including the unit where the infected detainee was housed, and the Miami Dade County Health Department has been notified.

In 2011, a contract worker at the Krome detention center died from bacterial meningitis, as a result, visits to Krome by relatives or friends of detainees were temporarily suspended.

The telephone number for the Krome Detention Center is (305) 207-2001 (main number), which can be contacted regarding their evolving response to the present medical situation.  The Krome Immigration Court telephone number is (786) 422-8700.

 

Update:   10/25/2013

As per AILA (American Immigration Lawyers Association) email received today, several Krome detainees who were in close proximity to the infected detainee have been provided prophylactic antibiotic treatment as a precaution.    Although the specific strain of meningitis bacteria has apparently not yet been identified, the Krome Service Processing Center is apparently resuming normal operations beginning this afternoon.   The detainee who contracted bacterial meningitis reportedly remains hospitalized but is expected to recover.

Update:   10/28/2013
Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

   

 

Attorney Mitchell J. Cohen handles ImmigrationCourt Cases at the Krome Detention Center and elsewhere.   Offices in Hallandale Beach and Fort Myers, Florida.

Hallandale Beach Immigration Law Office:  1250 E Hallandale Beach Blvd., Ste. 500, Hallandale Beach, FL  33009   Tel. (954) 457 -1941

Fort Myers Immigration Law Office:  3620 Colonial Blvd., Ste. 160, Fort Myers, FL   33966  Tel. (239) 931-6558.

 Would you like to know more? 

 

Fort Myers Immigration Law Office

 

Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

 

Looking for an experienced immigration attorney in Fort Myers? Look no further than the law offices of Mitchell J. Cohen,  P.A.

Attorney Mitchell J. Cohen is proud to announce the opening of the firm’s new immigration law office in Fort Myers. Attorney Cohen has been a dynamic force in the immigration legal community of South Florida for over 14 years, diligently advocating on behalf of his clients before the USCIS, Immigration Courts, the U.S. State Department, the USCIS Administrative Appeals Office, the Board of Immigration Appeals, and the 11th Circuit Court of Appeals. Attorney Cohen welcomes the opportunity to serve the greater Fort Myers immigrant community. The new immigration law office is conveniently located a few blocks west of the USCIS Fort Myers Application Support Center on Colonial Boulevard.

Attorney Cohen handles all types of immigration cases, including residence applications, naturalization applications, immigration court defense, immigration bond hearings, waivers of all types, visa petitions, consular processing, I-751 joint-petitions/waivers, VAWA self-petitions for victims of family violence, U-visa applications for victims of certain crimes, asylum, torture convention cases, DACA (I-821D) cases and TPS applications.

Attorney Cohen has been a featured guest speaker on Immigration Law at the University of Miami School of Law and Broward College, as well as before many other community organizations. He has mentored law school students from the University of Miami Law School, St. Thomas Law School, and Nova Southeastern Law School through internships in his law office, providing them with hands-on education in immigration law, as they helped him develop cases of pro bono clients. Attorney Cohen can be heard on Miami’s WSRF 1580 AM every Friday night, 7 to 8 PM on his program “Immigration Explosion.” The program is also streamed live on the internet at www.wsrf.com.

Call the law offices of Mitchell J. Cohen, P.A. to schedule an in-depth legal consultation with the attorney about your immigration case.

Fort Myers Immigration Law Office
3620 Colonial Blvd., Ste. 160
Fort Myers, FL 33966
Tel. (239) 931-6558

Hallandale Beach Immigration Law Office
1250 E Hallandale Beach Blvd
Suite 500
Hallandale Beach, FL 33009
Tel. (954) 457-1941

“Florida’s Effort at Vetting Immigration’s Files May Well Disenfranchise Thousands of U.S. Citizens”

By Mitchell J. Cohen

Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

Non-citizens do not have the right to vote. The State of Florida has a reasonable interest in purging the voter rolls of any individuals who are not legally entitled to vote. The Department of Homeland Security recently agreed to provide Florida access to its databases, which Florida requested in order to determine who among the registered voters in Florida is not in fact a U.S. Citizen.

While that effort to safeguard our voter rolls may appear to be laudable, in point of fact, it is likely to result in bona fide U.S. Citizens being knocked off of the voter rolls, and disenfranchised immediately before a presidential election.

As a Florida attorney who has been practicing in the field of U.S. immigration law, I would like to educate the governor’s office about the perils of relying on DHS databases in purging the voter roles.

What the governor’s office does not understand is that the Department of Homeland Security’s records will not reflect all foreign born individuals who have now attained citizenship. This is not necessarily a result of poor record keeping, but rather, it is inherent in the fact that under U.S. immigration law, there is more than one pathway to U.S. Citizenship.

One way is for a permanent resident (“green card” holder) to file an application for naturalization, which if granted, will allow that person to take the oath of allegiance and be sworn in as a U.S. Citizen.

Another way that some green card holders become U.S. citizens is to acquire U.S. Citizenship automatically based on the naturalization of a parent. For example, an amendment to the Immigration laws passed under George W. Bush in 2000, entitled the Child Citizenship Act of 2000, in summary automatically bestows citizenship on permanent resident children who have one parent naturalize to U.S. citizenship prior to the child’s 18th birthday, provided that the child was in the custody of the U.S. citizen parent.

The status of U.S. citizen automatically arises without any requirement that an application for naturalization be filed on the child’s behalf. In fact, an individual who thus automatically becomes a U.S. citizen by operation of law does, if he wish, can straight out apply for a U.S. passport.

A passport application however is not filed with the Department of Homeland Security, but rather with the Department of State. These individuals would have no reason to file a naturalization application with the Department of Homeland Security’s USCIS, as they already are U.S. citizens.

When a permanent resident automatically acquires U.S. Citizenship by operation of law, this is not going to be automatically entered into the Department of Homeland Security’s files. His status will likely remain listed as a “permanent resident” with the USCIS.

Florida’s announced policy of vetting registered voters by simply reviewing DHS databases will place U.S. citizens of being unfairly purged from the voter rolls.

End result: Florida government’s facile view of our complex immigration and naturalization laws will likely disenfranchise many U.S. Citizens, and cast a pall over Florida elections once more.

Mitchell J. Cohen is an attorney in Hallandale Beach and Fort Myers, Florida , practicing in the area of U.S. Immigration and Nationality Law.

Published at www.MiamiHerald.com July 31, 2012.

Hallandale Beach/ Fort Myers Immigration Attorney Discusses DHS’s New Form I-601A, Application for a Provisional Unlawful Physical Presence Waiver

By Mitchell J. Cohen, Esquire
January 3, 2013

Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

The Department of Homeland Security (DHS) today issued a final rule that will allow certain family members of U.S. citizens who are physically present in the United States to remain in the country while applying for the waiver they need to become permanent residents.

Certain individuals who accumulated more than 180 days of unlawful presence in the United States are barred from readmission or adjustment of status for 3 years. Certain people who accumulated more than 1 year of unlawful presence in the U.S. are barred for 10 years. There are exceptions to the 3/10 year unlawful presence rule.

The stateside provisional waiver (I-601A) process will permit certain immediate family members of U.S. citizens (spouses, parents of citizens at least 21 years of age, and minor children) to apply for a provisional waiver of unlawful presence while remaining in the U.S., thereby cutting down on the long waits-sometimes a year or more-during which these citizens may be separated from their families during the process. To obtain the provisional waiver, an applicant must prove that both family separation and relocation would cause a qualifying relative (U.S. Citizen spouse or parent) extreme hardship, and that the applicant merit a grant of the waiver in the exercise of discretion.

If the waiver is granted, the applicant would still leave the U.S. and apply for an immigrant visa abroad before returning to the United States. Approval of the provisional waiver is not an iron-clad guarantee that an applicant will be permitted to reenter the United States. Even with the approval of the provisional waiver however, the U.S. Embassy would have the final say on whether to issue the immigrant visa and let the applicant back into the United States. The U.S. Embassy maintains the authority to deny a visa application for many different reasons apart from the 3/10 year unlawful presence bar.

The final rule has been expanded to include those eligible family members whose removal proceedings are administratively closed at time of filing the provisional waiver application. However, individuals with a final order of removal, or who has been previously removed, will not be eligible for the new provisional waiver process. Individuals who have other grounds of inadmissibility (such as criminal grounds or fraud) are not eligible to use the provisional waiver process either.

Given the possibility that an individual with an approved provision waiver may still in some circumstances be denied the immigrant visa once outside the United States, it is important to consult with an experienced immigration attorney regarding one’s options.

In some cases, it may be possible to file for adjustment of status (processing the residency application in the U.S., in front of USCIS, without leaving the U.S.). In other cases where the applicant has TPS or deferred action, it may in some cases be possible to apply for and receive advance parole, and apply for adjustment of status after traveling on the advance parole document – circumventing the Embassy altogether. Traveling outside of the United States can be a one way trip for many, and it is extremely critical that you seek the advice of an immigration attorney who has thorough researched and understand the particulars of your individual case, before making any plans to depart the United States.

Mitchell J. Cohen, Esquire
Immigration and Nationality Law

Hallandale Beach Office: 1250 E Hallandale Beach Blvd, Ste. 500, Hallandale Beach, Florida 33009
(954) 457-1941

Fort Myers Office: 3620 Colonial Boulevard, Suite 160, Fort Myers, Florida 33966.
(239) 931-6558

www.greencardcohen.com
This article is general in nature and should not be construed as legal advice.