DHS Issues Guide for Filing DHS-Related Complaints

The Department of Homeland Security (DHS) is the most important administrative agency in immigration law, encompassing the United States Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP).

The DHS published a guide on how to file a complaint with the DHS in April of 2015. You may find the PDF of the guide here for your convenience. The guide explains the various avenues available for the public to make complaints involving:

• DHS employees or programs;
• Alleged violations of civil rights and civil liberties;
• Immigration filings;
• Travel redress;
• Other types of grievances.

Any person who believes he or she has cause to file a complaint with the DHS should review the guide carefully. For this post, I will provide a summary of where the guide discusses complaint procedures that should be of interest for those dealing with the DHS in the immigration context. I will include the pages in the guide on which information for filing the specific complaint may be found.

DISCRIMINATION AND OTHER VIOLATIONS OF CIVIL RIGHTS AND LIBERTIES

Complaints regarding discrimination and other violations of civil rights and civil liberties should be directed to the DHS Office for Civil Rights and Civil Liberties (CRCL). The DHS website has an online complaint form available. Complaints may also be sent in writing, by mail, email, or fax.

Complaints of this type may also be directed to the DHS Office of Inspector General (OIG).

Complaints of this type may include, but are not limited to:

• Discrimination based on race, ethnicity, national origin, religion, sexual orientation, gender identity, or disability
• Denial of meaningful access to DHS services due to limited English proficiency
• Violation of rights while in immigration custody
• Discrimination or inappropriate questioning related to entry
• Violation of due process rights
• Violation of immigration confidentiality agreements (such as VAWA Act, T Visa, or U Visa confidentiality agreements)
• Abuse
• Other civil rights, civil liberties, or human rights abuses related to a DHS program

This information is found on pages 2-3 of the guide.

CRIMINAL AND NON-CRIMINAL MISCONDUCT, INCLUDING SERIOUS AND/OR REPEATED VIOLATIONS OF DHS RULES, POLICIES, OR REGULATIONS

Complaints of this type should be directed to the DHS OIG. The DHS website has an online form for filing complaints with the OIG. These complaints may be filed using an online form on the DHS website. If the complaint is specifically related to the ICE, the complaint may be filed with the Joint Intake Center (JIC). If the complaint is specifically related to the USCIS, it may be filed with the USCIS Office of Security and Integrity (OSI).

Complaints of this type may include criminal or non-criminal misconduct against DHS employees and law enforcement officers. Furthermore, the DHS OIG also reviews DHS programs and expenditures.

This information is found on pages 3-4 of the guide.

TRAVEL-RELATED COMPLAINTS

General complaints of this type should be directed to the DHS Traveler Redress Inquiry Program (DHS TRIP). Complaints of this type may include:

• Difficulties experienced during travel screening;
• Denied or delayed entry into or departure from the U.S. at a port of entry or border crossing; or
• Situations where one believes that he or she is unfairly or incorrectly delayed, denied border, or identified for additional screening.

Complaints about clearing customs and immigration should be directed to the CBP INFO Center.

Complaints of this type may include:

• Complaints about the inspection process;
• Facilities; or
• Penalties assessed.

This information is found on pages 4-5 of the guide.

CONCERNS WITH LONGSTANDING OR COMPLEX USCIS IMMIGRATION FILINGS OR APPLICATIONS

The guide recommends first trying the available USCIS customer service options. These include:

• Calling the USCIS National Customer Service Center;
• Checking “Case Status” on the USCIS Website; or
• Making an InfoPass appointment with USCIS.

Those who have exhausted the customer service options with regard to immigration filings to no avail should contact the Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) and complete the online case assistance form, or, if outside the United States, the Form DHS-7001, Case Assistance Worksheet found on the DHS website.[1]

This information is found on pages 5-6 of the guide.

CONCERNS REGARDING E-VERIFY AND THE SAVE PROGRAM

The guide provides the following chart for requesting assistance regarding E-Verify, the Form I-9, and employment eligibility with the USCIS Verification Programs Contact Center:

For Employers:	Phone: 888-464-4218 TTY: 877-875-6028 Email: E-Verify@uscis.dhs.gov
For E-Verify Employer Agents:	Phone: 888-464-4218 TTY: 877-875-6028 Email:E-VerifyEmployerAgent@uscis.dhs.gov
For Employees:	Phone: 888-897-7781 TTY: 877-875-6028 Email: E-Verify@uscis.dhs.gov

The guide provides the following chart for complaints regarding immigration-related employment discrimination with the U.S. Department of Justice Civil Rights Division Office of Special Counsel:

Employer Hotline:	Phone: 800-255-8155 TTY: 800-362-2735 (TTY)
Employee Hotline:	Phone: 800-255-7688 TTY: 800-237-2515 (TTY)
Email:	osccrt@usdoj.gov
Website:	www.justice.gov/crt/about/osc

For inquiries regarding the SAVE program, the guide recommends calling the USCIS Verification Programs Contact Center by phone or contacting it by email.

This information is found on page 6 of the guide.

CONCERNS ABOUT ICE ENFORCEMENT AND REMOVAL OPERATIONS (ERO)

Persons with concerns about ICE civil enforcement priorities, immigration detention, or ICE actions involving U.S. citizens should contact their local ERO Community and Field Liaison or the ERO Detention Reporting and Information Line. If going through a Field Liaison does not resolve the problem, the person may contact the Detention Reporting and Information Line (DRIL). Complaints may also be submitted using the optional ERO Contact Form on the ICE website.

This information is found on page 7 of the guide.

GENERAL COMPLAINTS

Pages 8-10 of the guide contain information for making general complaints about a specific DHS agency. Included is information for USCIS, ICE, and CBP.

PRIVACY COMPLAINTS AND ALLEGATIONS OF PRIVACY VIOLATIONS

Pages 10-12 of the guide contain information about making a complaint about a privacy violation to a DHS agency. In the case that a person is unsure of which office a privacy complaint should be directed, he or she may direct the complaint to the DHS OIG or DHS Privacy Office for consideration and possible referral of the complaint.

CONCLUSION

The guide is a handy resource for helping people file a complaint with the DHS. However, those with serious complaints or complicated immigration matters should consult with an experienced immigration attorney for guidance.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. The guide notes on page 5: “If the requested service involves the forms I-589, I-590, I-360 (Violence Against Women Act), I-914, I-918, or an I-751 battered spouse waiver, the applicant must sign the last page of Form DHS 7001 and attach it to the online case assistance form as a PDF file.”

Lawyer website: http://myattorneyusa.com

DOS Provides "Crosswalk Charts" for 9 FAM and 9 FAMe

The Department of State (DOS) has completely renumbered and rewritten 9 FAM (FAM is short for “Foreign Affairs Manual”). The new section is titled “9 FAMe” and is available on the DOS website. 9 FAMe contains DOS guidance regarding nonimmigrant visas. DOS has provided two cross-reference (crosswalk) charts to help us adjust from the old 9 FAM to the new 9 FAMe. I have reproduced the two charts for your convenience:

Crosswalk Chart: 9 FAM to 9 FAMe

Crosswalk Chart: 9 FAMe to 9 FAM

If you are looking up an issue in 9 FAM for any reason, it is important to remember to use the new version of the FAM. For those of us who are used to working with the old 9 FAM, these crosswalk charts will be useful for easing the transition.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

RESOURCES AND MATERIALS:

“DOS Provides Cross-Reference Charts between 9 FAM and 9 FAMe,” Published on AILA InfoNet Doc. No 15120308

Lawyer website: http://myattorneyusa.com

Senator James Lankford's "Federal Fumbles" Covers Example of Ice Waste

For years, Republican Senator Tom Coburn of Oklahoma released an annual “Government Wastebook.” Each addition was free to download from the Senator's website and took a humorous look at some of the more absurd ways that the federal government wastes our tax money and fails at its responsibilities. Senator Coburn retired in 2014.

Fortunately, Republican Senator James Lankford, who succeeded Senator Coburn in a special election, has continued Senator Coburn's annual tradition.

Senator Lankford's “Federal Fumbles: 100 Ways the Government Dropped the Ball”[1] not only continues the good work done by Senator Coburn, distinguishes itself from the Government Wastebook in one key area: Senator Lankford and his staff offer a “recovery” with each “federal fumble.” The emphasis on solutions in “Federal Fumbles” represents an evolution in the idea that was started by Senator Coburn. Furthermore, “Federal Fumbles” includes ample sources and footnotes for readers to use to learn more about the issues.

While it is worth reading in full, one “federal fumble” in particular caught my attention.

On page 12 of “Federal Fumbles,” Senator Lankford documents that the Immigration and Customs Enforcement (ICE) has spent $6 million thus far on repairs on a former Service Processing Center in San Pedro, California, that was originally for housing detainees (read the DHS Inspector General (IG) report that he cites here).

In 2007, the facility, then a Service Processing Center, was closed because of safety concerns. ICE employees moved back into the building in 2008 and continued to use it to house detainees temporarily. The U.S. Army Corps of Engineers warned in 2012 that the building continued to have severe safety issues. In December 2014, the ICE was again forced to vacate the building due to severe safety concerns.

Between 2008 and 2014, ICE spent $4.2 million in order to repair the building. In 2015, the ICE decided to add an additional $1.6 million to the repair efforts. However, the IG found that ICE had not developed a comprehensive plan to perform the repairs, and instead was making patchwork repairs without addressing major safety issues. Furthermore, the IG noted that because the facility was originally an active detention facility, there are no electrical outlets on the second and third floors. This is noteworthy because the ICE plans to use those floors as office space.

In the “recovery” section, Senator Lankford notes favorably the IG suggestion that ICE assess whether this project is worth the time and money, or if it would be easier to demolish the building and start over. Furthermore, if it is plausible, ICE should develop a long-term plan for actually completing it.

I must add that it is ridiculous that ICE continued to use this facility for immigration detentions, even temporarily, when it had made only severely inadequate efforts to address the well-documented safety concerns.

Also of note for readers of this blog, Senator Lankford addresses “sanctuary cities” on page 18 and the lack of public participation in agency rulemaking on pages 121-122.

I encourage everyone to take a look at “Federal Fumbles.” Taken as a whole, it provides an accessible, interesting, and sometimes morbidly humorous look at some of the large and small wastes of our money and instances of incompetence by the federal government.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. http://www.lankford.senate.gov/imo/media/doc/Federal_Fumbles_2015.pdf

Lawyer website: http://myattorneyusa.com

Using Collateral Estoppel Against the United States Government in Immigration Matters

Collateral estoppel is a legal doctrine that precludes subsequent litigation of legal determinations of fact and law that have already resulted in final judgments. The rationale behind collateral estoppel is to prevent abuse of limited judicial resources and harassment. Collateral estoppel can only be applied in circumstances where (1) the issue sought to be relitigated is identical to the issue decided during a prior proceeding; (2) the prior proceeding ended with a final determination on the merits; and (3) the party against whom collateral estoppel is being asserted was a party to the prior proceeding. See Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000). Collateral estoppel is applicable to administrative decision where the administrative agency “act[ed] in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate”, United States v. Utah Const. & Mining Co., 384 U.S. 394, 421-422 (1966). The United States District Court for the Northern District of California recently concluded collateral estoppel precluded U.S. Citizenship and Immigration Services (“USCIS”) from denying an asylee's application for adjustment of status to lawful permanent resident based upon terrorist activity that he engaged in prior to being granted asylum by an immigration judge (“IJ”). See Mohammad Sher Islam v. U.S. Department of Homeland Security, et. al., 14-cv-05326-RS.

Before discussing why the United States District Court for the Northern District of California found collateral estoppel was applicable in Mohammad Sher Islam v. U.S. Department of Homeland Security, et. al., it is important to understand that the Immigration and Nationality Act (“INA”) broadly defines the phrase “engage in terrorist activity” to include more than the use of acts violence or threats to intimidate or coerce. Under the INA the phrase “engaged in terrorist activity” is defined as follows:

• (I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;
• (II) to prepare or plan a terrorist activity;
• (III) to gather information on potential targets for terrorist activity;
• (IV) to solicit funds or other things of value for-

             (aa) a terrorist activity;
             (bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or
             (cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate   by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization;

• (V) to solicit any individual-

            (aa) to engage in conduct otherwise described in this subsection;
            (bb) for membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or
            (cc) for membership in a terrorist organization described in clause (vi)(III) unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization; or

• (VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training-

           (aa) for the commission of a terrorist activity;
           (bb) to any individual who the actor knows, or reasonably should know, has committed or       plans to commit a terrorist activity;
           (cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or
           (dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.

INA § 212(a)(3)(B)(i)(I)-(VI). The terrorism bar is even applicable to aliens who engaged in the above-referenced activity under duress or coercion.

Mohammad Islam previously sought asylum in the United States after fleeing Pakistan in 2000 out of fear of persecution. An alien may be granted asylum if he/she is unable or unwilling to return to his/her native country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A). The asylum applicant must also demonstrate none of the statutory bars would prohibit a grant of asylum. One of the five statutory bars prohibits a grant of asylum to an alien who has engaged in terrorist activity as defined in subsections (I), (II), (III), (IV), (V), and (VI) of INA § 212(a)(3)(B)(i). An IJ simply cannot grant asylum to an alien who has engaged in terrorist activity no matter how compelling the alien's claim.

The IJ initially denied Mr. Islam's asylum application based upon an adverse credibility determination. This denial was reversed by the Board of Immigration Appeals (“BIA”) who remanded the matter to the IJ for further consideration. Mohammad Sher Islam v. U.S. Department of Homeland Security, et. al., 14-cv-05326-RS. On remand, the IJ granted Mr. Islam's asylum application. Id. A year after Mr. Islam was granted asylum he applied for adjustment of status to a lawful permanent resident (“LPR”). Id. USCIS denied Mr. Islam's Form I-485, Application to Register Permanent Residence or Adjust Status based upon a conclusion that he previously engaged in terrorist activity and thus, was ineligible for permanent residence. Id. According to USCIS, Mr. Islam engaged in terrorist activity by providing material support and financial support as described in INA § 212(a)(3)(B)(i)(VI)(dd) and solicited money for a Tier III terrorist group as described in INA § 212(a)(3)(B)(i)(IV)(cc). Mr. Islam sought judicial review of USCIS's decision under the Administrative Procedure Act.

The United States District Court for the Northern District of California concluded collateral estoppel precluded USCIS from denying Mr. Islam's application for adjustment of status to lawful permanent resident based upon terrorist activity that he engaged in prior to being granted asylum. Mohammad Sher Islam v. U.S. Department of Homeland Security, et. al., 14-cv-05326-RS. The first prong of the collateral estoppel test was met as there was no dispute that the same parties appeared in the removal proceedings where Mr. Islam was granted asylum and the adjustment of status proceedings. Id. The United States government was represented by the Department of Homeland Security (“DHS”) in Mr. Islam's removal proceedings. Id. Mr. Islam's application for adjustment of status to lawful permanent resident was adjudicated by USCIS, which is a sub-agency of DHS. Id.

The second prong of the collateral estoppel test was also satisfied as the issue was actually litigated during Mr. Islam's removal proceedings. Id. To satisfy the second prong, the party asserting collateral estoppel must demonstrate the “issue is identical to an issue already litigated and that the issue [was] decided in the first case.” Id. See also Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 912 (9th Cir. 1997). The United States District Court for the Northern District of California found “[t]he question of whether [Mr. Islam] was inadmissible for adjustment of status based on terrorist activities under 8 U.S.C. § 1182(a)(3)(B)(i) is the same issue that was decided in [Mr. Islam's] 2007 asylum proceedings when it was actually litigated.” Id. Both the statue governing eligibility for asylum (i.e. INA § 208) and adjustment of status of asylees to lawful permanent residents (i.e. INA § 209) refer to INA § 212 to determine whether an alien is eligible for said immigration benefits. Whether Mr. Islam engaged in terrorist activity was actually litigated during his removal proceedings. Id. DHS cross-examined Mr. Islam during his removal proceedings about his involvement in terrorist activities. Id. Mr. Islam and DHS both addressed whether Mr. Islam engaged in terrorist activities during their respective closing arguments. Even though the IJ did not expressly mention INA § 212(a)(3)(B)(i) in the decision granting Mr. Islam's asylum application, collateral estoppel applied “[b]ecause the IJ was statutorily barred from granting Islam asylum if he was found to have participated in terrorist activity”, Id., and “that issue was necessarily decided when the IJ did in fact grant Islam asylum.” Id.

The third prong of the collateral estoppel test was satisfied as the finding of whether Mr. Islam was inadmissible for engaging in terrorist activity was essential to the prior grant of asylum. Id. Both Mr. Islam and DHS argued the issue of whether Mr. Islam engaged in terrorist activity. Id. The IJ denied Mr. Islam's asylum application based upon an adverse credibility determination. Id. On appeal, the BIA reversed the IJ's adverse credibility finding and remanded the matter to the IJ. Id. The BIA had the full administrative record, but did not find Mr. Islam was barred from asylum for engaging in terrorist activities. Id. The IJ subsequently granted Mr. Islam's asylum application on remand, “which by necessity meant the judge found the terrorism bar did not apply.” Id.

In addition, the United States District Court for the Northern District of California concluded the plain language of the statute indicates a legislative intent to allow the application of the collateral estoppel doctrine. Id. DHS had argued language of the statute “that an asylee be admissible as a permanent resident 'at the time of examination for adjustment' contemplate[d] an entirely new inquiry into the asylee's admissibility regardless of the prior asylum proceeding.” Id. See also INA § 209(a)(2); and INA § 209(b)(5). While acknowledging that Congress created a two-step process through which an asylee becomes a lawful permanent resident, the United States District Court for the Northern District of California concluded Congress did not intend to bar application of the collateral estoppel doctrine. Rather, the two-step process was created “to (1) account for changes in facts and circumstances that might make an asylee ineligible for admissibility and (2) to adjudicate the separate statutory bars that exist for permanent residency, but that do not exist for asylum applicants.” Id.

The United States District Court for the Northern District of California reversed USCIS's decision denying Mr. Islam's application for adjustment of status to lawful permanent resident, because the agency acted contrary to law. Mr. Islam's case highlights how a skilled legal argument can help overcome a seemingly insurmountable denial. It is important to have an experienced immigration attorney promptly review any denial before conceding defeat.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com