It's About Time

Obama Lifts a Ban on Entry Into U.S. by H.I.V.-Positive People

By JULIA PRESTON

Published: October 30, 2009

President Obama on Friday announced the end of a 22-year ban on travel to the United States by people who had tested positive for the virus that causes AIDS, fulfilling a promise he made to gay advocates and acting to eliminate a restriction he said was “rooted in fear rather than fact.”

President Obama signed an order Friday allowing people who had tested positive for the AIDS virus to enter the country.

At a White House ceremony, Mr. Obama announced that a rule canceling the ban would be published on Monday and would take effect after a routine 60-day waiting period. The president had promised to end the ban before the end of the year.

“If we want to be a global leader in combating H.I.V./AIDS, we need to act like it,” Mr. Obama said. “Now, we talk about reducing the stigma of this disease, yet we’ve treated a visitor living with it as a threat.”

The United States is one of only about a dozen countries that bar people who have H.I.V., the virus that causes AIDS.

President George W. Bush started the process last year when he signed legislation, passed by Congress in July 2008, that repealed the statute on which the ban was based. But the ban remained in effect.

It was enacted in 1987 at a time of widespread fear that H.I.V. could be transmitted by physical or respiratory contact. The ban was further strengthened by Congress in 1993 as an amendment offered by Senator Jesse Helms, Republican of North Carolina.

Because of the restriction, no major international conference on the AIDS epidemic has been held in the United States since 1990. Public health officials here have long said there was no scientific or medical basis for the ban.

Under the ban, United States health authorities have been required to list H.I.V. infection as a “communicable disease of public health significance.” Under immigration law, most foreigners with such a disease cannot travel to the United States. The ban covered both visiting tourists and foreigners seeking to live in this country.

Once the ban is lifted, foreigners applying to become residents in the United States will no longer be required to take a test for AIDS.

In practice, the ban particularly affected tourists and gay men. Waivers were available, but the procedure for tourists and other short-term visitors who were H.I.V. positive was so complicated that many concluded it was not worth it.

For foreigners hoping to immigrate, waivers were available for people who were in a heterosexual marriage, but not for gay couples. Gay advocates said the ban had led to painful separations in families with H.I.V.-positive members that came to live in this country, and had discouraged adoptions of children with the virus.

Gay advocates said the ban also discouraged travelers and some foreigners already living in the United States from seeking testing and medical care for H.I.V. infection.

“The connection between immigration and H.I.V. has frightened people away from testing and treatment,” said Rachel B. Tiven, executive director of Immigration Equality, a group that advocates for gay people in immigration matters. She said lifting the ban would bring “a significant public health improvement.”

“Stigma and exclusion are not a sound basis for immigration policy,” Ms. Tiven said.

Senator John Kerry, Democrat of Massachusetts, who led the effort to repeal the ban, said it had now “gone the way of the dinosaur.”

But, Mr. Kerry added, “it sure took too long to get here.”

International health officials said lifting the ban would end a much-criticized inconsistency in United States health policy, with Washington playing a leading role in AIDS prevention in Africa and other countries with severe epidemics, but preserving restrictions that in practice prevented international AIDS researchers and activists from gathering at conferences here.

In 1989, a Dutch AIDS educator, Hans Verhoef, was detained for several days in St. Paul when he tried to attend a conference. Since then, people involved with AIDS issues have not organized meetings here.

“We think this is going to give a very positive image of where the United States is going in terms of eliminating stigma and discrimination in relation to H.I.V.,” Dr. Socorro Gross, assistant director of the Pan American Health Organization, said Friday.

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Labor Pains: How Our Broken Immigration System Hurts All Workers

Labor Pains: How Our Broken Immigration System Hurts All Workers

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More immigrants cite sexual orientation for asylum

By RUSSELL CONTRERAS (AP)

WORCESTER, Mass. — For weeks, Nathaniel Cunningham and his boyfriend secretly lived together in rural Jamaica. They showed no affection in public and rarely spoke to neighbors.

Then one morning, Cunningham picked up a local newspaper with a front-page story under the headline, "Homosexual Prostitutes Move into Residential Neighborhood." His address was listed below.

For days afterward, Cunningham said an angry mob gathered on his lawn hurling rocks and bricks and calling them "batty boys" — a Jamaican slang term for gay. Eventually, the pair grabbed what they could and fled on foot. Cunningham said neither he nor his boyfriend were prostitutes — the slur was just another example of the abuse gay men faced in Jamaica.

The story was one of many that Cunningham, now 32 and living in Worcester, recently shared with a federal immigration judge in his successful bid to win asylum in the United States. And it's similar to other stories cited by a small but growing number of other gay, lesbian and transgender asylum seekers who are using U.S. immigration courts to argue that their sexual orientation makes it too dangerous for them to return home.

"I had no choice," said Andre Azevedo, 39, a transgender man from Brazil who recently won asylum and now lives in New York. "Where I'm from, heterosexual men practice hate crimes against us like a sport, and the police do nothing to stop it."

Since 1994, sexual orientation has been grounds for asylum in the United States. That's when former U.S. Attorney General Janet Reno ruled in a case that persecution based on sexual orientation could be potential grounds for asylum.

Until recently, those grounds have been rarely used and such cases represent only a fraction of all asylum cases.

But now immigrant and gay activists say more asylum seekers from the Middle East, Africa, Latin America and the Caribbean are citing sexual orientation as reasons for seeking asylum. Activists say the asylum seekers are escaping rape, persecution, violence, and threats of death from places where homosexuality is either outlawed or strongly, socially shunned.

Federal immigration law allows individuals asylum if they can prove a well-founded fear of persecution in their country of origin based upon race, religion, nationality, political opinion or membership in a particular social group. Those applying for asylum are already in the United States, legally or illegally.

No one knows for sure just how many have sought asylum on sexual orientation grounds. The U.S. Citizenship and Immigration Services doesn't keep data on asylum cases won on that basis.

Still, last year Immigration Equality, a New York-based nonprofit group that helps gay clients with immigration cases, successfully won 55 asylum cases using sexual orientation as grounds, a record for the organization, said the group's legal director Victoria Neilson. That's up from 30 wins in 2007 and 27 in 2006, Neilson said.

And a Worcester, Mass.-based nonprofit group, Lutheran Social Services, has recently won five cases and is looking to help others.

"I think more people are finding out that this is an option," said Lisa Laurel Weinberg, an attorney with the group.

However, not all cases for asylum based on sexual orientation have been successful. For example, a gay Brazilian man who was married in Massachusetts and whose American husband remains in the state was recently denied asylum by the Obama administration on humanitarian grounds, despite pleas from Sen. John Kerry. Genesio "Junior" Januario Oliveira had originally requested asylum because he was raped as a teenager, but an immigration judge denied the application, saying Oliveira repeatedly said in the hearing that he "was never physically harmed" by anyone in Brazil.

He was forced to return to Brazil in 2007.

Cunningham said he decided to file for asylum after working for a few years in the United States on a work visa. He conducted research online but couldn't find an immigration group to help him with the case. "One group said my case clashed with their Christian values," Cunningham said.

Many gay rights groups, he said, also had limited services for immigrants.

It wasn't until Cunningham connected with Jozefina Lantz, the director of immigrant services at Lutheran Social Services, that Cunningham gained support.

To win, however, Cunningham had to revisit painful moments of running from mobs in Jamaica. Even the police would point him out for persecution, he said. In successfully arguing Cunningham's case for asylum, Weinberg also said Jamaica's sodomy laws banning sex between men and "dancehall" music — whose lyrics often advocate violence against gays — made life for Cunningham unbearable.

Cunningham won asylum in January 2008.

During his asylum hearing, Azevedo had to recall violent episodes in Brazil when he and a group of transsexuals were attacked in bars. He recalled a transgender woman set on fire. Each time Azevedo said he went to police about an attack or a threat, the officers didn't even bother to file a report.

"I had such a horrific experience," said Azevedo, who was granted asylum in July. "I was always in fear of being raped, maybe even killed."

After winning their cases, both Cunningham and Azevedo have become advocates for other asylum-seekers by giving them counseling and directing them toward legal help.

In Worcester, for example, Cunningham has helped a Lebanese and three others Jamaicans win asylum with the legal help provided by the Lutheran Social Services' "LGBT Human Rights Protection Project." Another case, involving an Ugandan woman, is pending in the courts.

But while those who have been granted asylum are eager to help, Azevedo said many still haven't resolved the pain from the past and can't go back home to visit family — those who haven't disowned them.

Cunningham said he hasn't gotten over the fear that, at any moment, he may be forced to flee.

"I've never really owned furniture," Cunningham said. "You just never know."

http://tiny.cc/Cb57V

GOP senator’s plan to count only US citizens in census would cost California 5 congressional seats

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Editorial: Illegal immigration and death in the desert -- latimes.com

Editorial: Illegal immigration and death in the desert -- latimes.com

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Immigrants sue feds over 2007 raid

Residents allege 2007 immigration raids in new haven were unconstitutional

By Esther Zuckerman and Colin Ross

Staff Reporter, Staff Reporter

Published Wednesday, October 28, 2009

YDN

Ten New Haven residents intend to file a lawsuit today against federal immigration agents and officials, accusing them of violating constitutional rights during the raids in New Haven on June 6, 2007.

The 10 residents, who will be represented by Yale Law School students, claim that the raids were unconstitutional because federal agents lacked search warrants and arrested people solely on the basis of race and ethnicity. The residents are expected to sue not only the U.S. Immigration and Customs Enforcement agents who participated in the raid on the ground but also their supervisors, whose decisions the plaintiffs say led to the infringements of civil rights.

This is the first time lawyers have challenged the constitutionality of the New Haven raids in the federal judicial branch. Previous lawsuits have been filed in federal immigration court, the entity within the executive branch that deals with deportation.

The Yale lawyers say the raids were mounted in retaliation of the Board of Aldermen’s approval two days earlier of the Elm City Resident Card, an ID card provided to residents regardless of immigration status. ICE officials have said the raids were routine enforcement in full accordance with the law.

On June 6, 2007, ICE agents raided eight apartments and homes, detaining 29 New Haven residents — five of whom were the intended targets of the raids.

“ICE agents broke into my home without permission while I was still sleeping, pulled the covers from my bed, and arrested me for no reason,” said Jose Solano-Yangua, a plaintiff in the case, in a press release. “I was terrified and humiliated. We are bringing this suit, because we refuse to let our families and community live in fear.”

Since 2007, a team of lawyers and students led by Law School professor Michael Wishnie ’87 LAW ’93 has been working to prove that the individual arrests were illegal. They have argued that the searches and seizures violated the immigrants’ Fourth and Fifth Amendment rights, which protect against unreasonable searches and seizures and guarantee due process of law.

One of the detainees has been deported, five volunteered to leave, and 17 cases are still pending.

Until now, the lawyers have been litigating the individual cases. This new lawsuit seeks to hold individual ICE officials accountable for the alleged constitutional violations.

In a press release, Lindsay Nash LAW ’10, one of the Yale law students representing the plaintiffs, blamed senior ICE officials for the raids because they pressured regional ICE offices to make “arrest quotas.” In 2006, the director of ICE’s Detention and Removal Office, John Torres, increased the agency’s goal for immigration arrests to 1,000 per regional enforcement team, up from 125, according to internal ICE memos obtained by the Yeshiva University’s Benjamin N. Cardozo School of Law through a Freedom of Information request. That same year, Torres permitted arrests of immigrants without criminal records or fugitive status to count toward ICE’s goal, according to the ICE documents.

In February, ICE spokesman Richard Rocha told the News that the goal increase was in accordance with the agency’s mission.

“The number of arrests is a goal, not a quota, and we do prioritize,” he said at the time. “But if, in the course of our work, we encounter other illegal individuals, we have to enforce the law.”

Norma Franceschi, a Fair Haven proprietor and community leader, praised the suit for providing the federal court an opportunity to reform immigration law.

Father James Manship of St. Rose of Lima Church said that the neighborhood supports the plaintiffs in the case.

“Our community will not be intimidated or silenced,” Manship said in the press release. “We will stand with the plaintiffs in this lawsuit in order to seek justice.”

Ana Munoz LAW ’10, one of the Yale law students working on the lawsuit, did not return a phone call seeking comment.

New Haven is home to an estimated 10,000 to 15,000 undocumented immigrants, most of whom live in Fair Haven.

Ilana Seager contributed reporting.

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Get In The Line? What Line? The Tragic Tale of Employment Based Immigrant Visa Delays (AILA Blog)

I had a very upset client contact me this last week. He was angry . . . at the Visa Bulletin. He could not understand how, after the start of the new fiscal year, there was essentially no movement in the visa numbers. I tried to calm him by telling him that he just needed to be patient. Then I realized how patronizing that sounded. How much longer did he need to wait? He has an approved immigrant visa petition (EB-3) with an early 2005 priority date in the worldwide category. So, I decided to try to figure out when he might actually get his green card. I ask that you bear with me through this process. This is a LONG post, but one I think you will appreciate reading.

I have to warn you now, this math is a shot in the dark. I do NOT have all of the numbers of pending and approved cases in each category of employment based immigration. However, some estimate, based upon some pretty good numbers, is better than mere guesswork. Let me walk you through this analysis.

However, I first ask you to forgive me in advance, math is the reason I went to law school. Also, the USCIS simply has not released clear numbers (possibly for fear of letting folks know exactly how long their wait will actually be).

My focus for this analysis will be in the EB-2 and Eb-3 categories, since it is in those categories that our clients are most interested. There are four basic numbers we are looking for, NONE of them are easy to find. Let's discover the basic numbers we will be using:

First, how many approved I-140 cases are awaiting a visa number? According to AILA's recent liaison meeting with DOS, there are 198,186 "case ready" I-140 petitions awaiting visa issuance, in the EB-2 (52,584), EB-3 (139,737) and EW (5,865) categories. Case ready means (as best as we understand), that as soon as the petition is current, the Adjustment will be approved or consular processing will begin. Obviously, the EB-2 numbers are only for India and China.

Second, how many pending I-140 cases are there at the Service Centers awaiting adjudication? According to the June 2009, USCIS Production Update Report to Congress, USCIS had 85,970 pending I-140 cases awaiting adjudication. Unfortunately, USCIS does not break out the I-140 cases in this report between EB-2 and EB-3. These are the most recent numbers I could find.

Third, how many pending I-140 cases are at the District Offices? I have no idea! I cannot locate anywhere the numbers of cases at the local USCIS offices. No one knows. Really. There is no report that I can find where this number has been released. And, frankly, I do not believe that USCIS has an accurate count on this either (I do pray they get such a count soon).

Fourth, how many pending labor certifications are there at the DOL? This number is actually pretty sure. There are 62,100 pending labor certifications as of the September 22 stakeholder meeting with DOL (not counting pending appeals). Unfortunately, again, we do not know which of the categories (EB-2 or EB-3) the cases will fall under.

Now, it is time for the math. Assuming all pending Labor Certifications and pending I-140s are approved (yes, I know some will be denied and some are duplicates), there are at least a total of 346,256 individuals with approved or soon to be approved petitions awaiting green cards, not including their families. If we assume an average family size of 4 people (I believe this is a safe assumption), there are 1,385,024 people waiting on employment based green cards in the EB-2 and EB-3 categories.

I know the number is huge! And next we have to try to fit that number into the two separate EB categories. Unfortunately, we have two problems in doing this. The first problem we have is that we do not know how many of these I-140 cases are in the EB-2, or EB-3 categories. So, let's use a little deductive reasoning here. Using experience and best guessing based upon the division we already know about in the numbers of cases from the DOS, lets say 26% are EB-2 (360,162), and 74% are EB-3 (1,024,917).

The second problem is that we do not have a per country breakdown. (I hope the USCIS has that breakdown). How to account for this? Again, let's estimate based upon the DOS numbers, that India accounts for 70% of the EB-2 and 39% of the EB-3 numbers and that China accounts for 30% of the EB-2 and only 3% of the EB-3 numbers and the rest of the world accounts for 58% of the EB-3 numbers.

We also know the maximum numbers available in any given year for all family and employment based categories is 25,630 (with some caveats), and that there are only a total of 80,000 employment based immigrant visas in the EB-2 and EB-3 categories combined (with some flow down from other categories).

You can see we have leaped, jumped, guessed, and assumed our way to the follow conclusions:

India EB-3 wait for permanent residence for a labor certification filed today: 15.8 years. This generous estimate comes from the fact that an estimated 399,717 Indian Nationals waiting for 25,630 visas a year. This estimate completely ignores the possible immigration of any family based immigrants which would subtract from this total and increase the wait time, and the number that would flow down from other immigrant visa categories, so the wait time is probably longer.

China EB-2 wait for permanent residence for a labor certification (or NIW) filed today: 4.1 years. This estimate comes from the estimated 108,048 Chinese Nationals waiting for 25,630 visas a year. This estimate completely ignores the possible immigration of any family based immigrants that would subtract from this total and increase the wait time, and the number that would flow down from other immigrant visa categories.

Worldwide EB-3 wait for permanent residence for a labor certification filed today: Well, there are 594,451 people waiting in this queue. The limiting factor here will be the 80,000 annual limit on employment based immigration. Excluding per country limits and flow down from other employment based immigrant visa categories, this is at least a 8.1 year wait.

And these waits are from when the person STARTS the green card, not when they come into the United States.

I can now tell my client a waiting date based upon, at least, some real numbers. But, I will still be wrong. The dates are not accurate, but at least it is not made up out of whole cloth. But we now all understand that we cannot look at the Visa Bulletin and actually determine how long the wait is.

The point of this whole exercise, besides telling my client how long he still might have to wait, is to point out the consequences of these numbers.

Line? What Line? These are employment based immigrants. Every single one has a job offer, an employer, and a certification that either there are no qualified, willing and able US workers for the job, or that the individual is so good, we do not even have to test the labor market. We need these people. We want these people. How many do you think will now just give up and go home?

This delay in legal, employment based immigration is a crisis for America. If you are an intending immigrant, and your immigration option is employment based, do you have the patience the wait 15 years for your green card? Can you do better in Australia, Canada, or even back home in your home country? What is the cost to our future competitiveness of a broken legal immigration system? What is the cost to U.S. innovation?

I believe these numbers have a purpose. The purpose is immigration reform, and not just a legalization. We all know that a broken legal immigration system causes illegal immigration. We need to fix the legal immigration system now! We need to modify the process, significantly shorten the wait and increase the numbers to meet the demand. We need to not include family members in the total calculated visa numbers. And, Yes, we need to make these change even in a struggling economy. We must maintain the great benefits that positive, focused employment based immigration has delivered to America. The reality is that Congress must act to help save the future of American innovation and economic growth. And, they must do it now.

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