IMBRA enforcement has begun...

[Bala]

July 23, 2008

I will write more on this topic later.

For now, Homeland Security and Immigration are working on that IMBRA Domestic Violence pamphlet required by the IMBRA law to be made available to all K Visa (and Adjustment of Status) applicants because "K nonimmigrants may face a higher risk of domestic violence in relationships arranged by International Marriage Brokers (IMBs)".

It will translated into 14 languages and posted on the Homeland Security and Immigration websites.

IMB and Agency and Tour Operator websites should probably post it too.

The domestic violence pamphlet should be available sometime in September 2008.

For now, Homeland Security is soliciting public comments until September 19, 2008.

SEE: Federal Register, July 22, 2008 (Volume 73, Number 141, Notices, Page 42586-42590)

http://frwebgate2.access.gpo.gov/cgi...ction=retrieve

SEND YOUR MAILED COMMENTS TO:

Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2007-0061 on your correspondence. This mailing address may be used for paper,
disk, or CD-ROM submissions.

FOR FURTHER INFORMATION CONTACT: Andrew Perry, Family and Victim Protection Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Suite 2304, Washington, DC 20529. Contact Telephone Number (202) 272-1470.

END

[Bala]

ADDITIONAL COMMENTS

1. In the event that the link I provided below does not open on your browser, and you wish to review the Federal Register announcement regarding the IMBRA Domestic Violence Brochure (topics and summary), please go to to this site:

http://www.gpoaccess.gov/fr/index.html

Type in IMBRA into the search engine visible under Quick Search.

You will see a link to the IMBRA Domestic Violence Brochure (topics and summary)


2. The GAO (U.S. Government Accounting Office) on Friday released its report on IMBRA.

Here it is.

ADOBE PDF FORMAT
http://usaimmigrationattorney.com/GAOIMBRAREPORT.pdf

Basically, it says that U.S. government agencies have not fully implemented IMBRA as of yet. They have implemented only parts of it.

They review the arguments again in favor of IMBRA and law's requirements.

They make recommendations to the U.S. government agencies about further enforcement.

I will comment on this Report and other enforcement issues soon in a future post.

Thank you,
GB

[Bala]

IMBRA ENFORCEMENT 2008
This topic is one of the most frequent I am asked about by IMB owners and customers alike.

How will they enforce and implement this law, when and by what means? How will they know that I, as a customer, am telling the truth on my IMBRA background form? How will they know that I, as an IMB owner and operator, am complying with the IMBRA law?

Not all the answers are readily available yet, but as time passes, they are becoming more so.

Since the effective date of IMBRA, Public Law No. 109-162, Title VIII, Subtitle D, January 05, 2006 [codified at 8 USC §1375a(d)(2) and (e)(4)] in March 2006, many people have claimed to observe an apparent lull in enforcement of this law. In actuality, while only parts of IMBRA have thus far been implemented, steps are being taken to begin enforcement of IMBRA, with the initial phases probably rolled out later this year 2008 and in 2009.

For the full text of IMBRA, see: http://uscode.house.gov/search/criteria.shtml
Type into the Search Engine Box, "8" for Title and "1375" for Section.

I. FUNDING FOR ENFORCEMENT
Adequate funding for IMBRA's enforcement is the first step.

IMBRA (and VAWA) for Fiscal Year 2008 has been funded. President Bush signed the Consolidated Appropriations Act 2008 (Omnibus Bill), H.R. 2764, on December 26, 2007. This bill appropriates $400 million for the Justice Dept. Office on Violence Against Women and all the programs authorized by law for prevention and prosecution of crimes against
women (Division B, Title II).

For text of HR 2764, see: http://thomas.loc.gov/
Type in HR 2764 in the Search Engine Box (Bill Number), and review the ER Version.
http://www.gringos.com/forum/attachm...1&d=1219163833

Part of the funds are allocated to IMBRA, which includes funding private non-profit groups through "Community Policing" programs. Under the Edward Byrne Justice Grant program, one such group, the Tahirih Justice Center (TJC) - one of the authors of the IMBRA law - has been designated to receive $1.175 Million Dollars budgeted over two years. The amount may be reduced by some undetermined percentage in the final distribution process.

TJC expects to utilize the funds "to protect [immigrant] women and girls fleeing human rights abuses." In addition to funding TJC's on-going legal services for immigrant women victims of gender-based violence, part of the funding will be used to work towards full implementation of IMBRA. See TJC Newsletter (April 2008): http://ga4.org/tahirih/notice-descri...er_id=23369056

Congressman Jim Moran (D-VA), one of the sponsors of HR 2764, states on his website that: "Tahirih is in the process of developing a multi-year strategic campaign to achieve the fulfillment of legislation enacted [in 2006], the International Marriage Broker Regulation Act, which seeks to inform woman as to marital or violent criminal history of prospective husbands pursuing mail order brides. Tahirih would use the funding to increase legal and social services to mail order brides and work with advocates and embassies in other countries to protect these women."
SEE: http://moran.house.gov/apps/list/pre...an/CJS08.shtml

II. MECHANISM FOR ENFORCEMENT

A. TEXT OF LAW
The mechanism of enforcement begins with the text of the law.
For the text of IMBRA, see: http://usaimmigrationattorney.com/images/IMBRA2005.pdf

Enforcement of the IMB provisions of the law are delegated to the Justice Department (Attorney General), and thus the U.S. Attorney Offices and the FBI. See IMBRA, Section 833(d)(5)(A). It appears that an IMB will first receive a notice "citation" for violation followed by an agency hearing on the record in accordance with the Administrative Procedure Act, 5 U.S.C. Chapter 5, Subchapter II. This agency hearing may be before an immigration officer or immigration judge.

There are civil and criminal penalties on the IMB for violations. Civil fine: not less than $5000 and not more than $25,000 per violation. Criminal penalty: can be imprisonment for not more than 5 years, in addition to civil fines. See IMBRA, Section 833(d)(5)(A)(i).

The penalties also apply to "any person" [including an IMB] for "misuse of the information." This refers to those who use or disclose the U.S. client's background information without consent, or who use it to harass or intimidate anyone. See IMBRA, Section 833(d)(3)(C).

It is important to note that IMBRA does NOT replace state laws, but supplements them. The law explicitly states that it does NOT "pre-empt" or supersede any rights, penalties, remedies or enforcement under any state law. See IMBRA, Section 833(d)(5)(B).

B. ENFORCEMENT PLAN ON THE IMB AND IMB CUSTOMER
The Department of Justice (DOJ) has reportedly released an internal draft of regulations to enforce IMBRA within their department (not apparently available to the public).

The DOJ is working with the Department of State, Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) to formulate a framework of enforcement, specifically which Department or Agency will take the lead in enforcement.

Our best informed guess is that USCIS, probably through ICE (Immigration and Customs Enforcement), working under DHS, will take the lead in enforcement, with recommendation for further action to be submitted to DOJ, which then submits cases to the various U.S. Attorney's Offices for prosecution. It is easy to envision a team of ICE or USCIS officers scanning IMB websites and calling and contacting them to determine the extent of IMBRA compliance, if any, and issuing appropriate broker violation warnings or citations in appropriate cases.

Some of the issues to be addressed (and worth watching for by IMBs and their customers).

Regarding Enforcement on the IMB
***Enforcement at point of marketing
***Enforcement at point of sale (and Misuse of Information)
***Enforcement at Visa Applicant's Consular Interview
***Enforcement on Out-of-Country IMBs

Regarding Enforcement on the Customer
***Enforcement at time information disclosure (Certification in Client Background Information Sheet)
***Enforcement at Visa Applicant's Interview

***Enforcement in Both IMBs and Customers Regarding Improper Disclosure of Private Information

***Enforcement coordination with state and local law enforcement authorities under any applicable state IMBRA laws

C. MISCELLANEOUS ISSUES
1. Domestic Violence Brochure
USCIS has taken steps to issue the Domestic Violence Brochure, called for by IMBRA. This brochure is intended to advise visa applicants for K-1 Fiancee Visas, especially those who their U.S. Citizen sponsors through an IMB, of their rights and options in the USA in case they become victims of domestic violence. It is intended to be distributed by USCIS, DHS and Department of State and their various consulates worldwide.

See: Federal Register, July 22, 2008 (Volume 73, Number 141, Notices, Page 42586-42590).

USCIS is accepting public comments until September 19, 2008.

For a review of the Topics and Summary of the proposed Domestic Violence Brochure
and the contact information to send public comments, see: http://www.gpoaccess.gov/fr/index.html

Type in the word "IMBRA" into the Search Engine Box, and click the Link.

2. GAO Report on IMBRA
The U.S. Government Accounting Office (GAO) finally released its Report on IMBRA compliance on August 08, 2008.

See: http://usaimmigrationattorney.com/GAOIMBRAREPORT.pdf

Basically, it says that U.S. government agencies have not fully implemented IMBRA as of yet. Only two of seven key parts of IMBRA have thus far been implemented.

The GAO report reviews the IMBRA law's requirements and again recites the arguments again in favor of the law.

However, GAO makes recommendations to the U.S. government agencies about further enforcement, including the recommendation that DHS, USCIS and DOJ and State Department agree on a framework for implementation.

3. The Problem of the K-1 Fiancee Visa Applicant and U.S. Citizen Petitioner Who First Met as IMB Customers Through a Non-Compliant IMB
A potential problem that was identified during the early days of IMBRA was the following.

K-1 Fiancee Visa applicant and U.S. Citizen petitioner, who first met through a non-compliant IMB, are processing their case at the Consulate. The Consular Officer (CO) is required to ask the visa applicant how they first met. And if through an IMB, the CO is required to ask if the IMB forwarded to the visa applicant the U.S. Citizen petitioner's responses to the Client Background Questions under IMBRA in her native language, and secured from the visa applicant her signed individual release, BEFORE the U.S. Citizen received her contact information and communicated with her.

In the two and half years since IMBRA's passage, it appears that this "worst-case scenario" is for visa applicants and U.S. Citizen petitioners NOT now taking place, fortunately. Rather, up to now, the trend and practice has been that the CO documents the IMB's non-compliance in the case file and reports the IMB through internal channels to State Department superiors, but does NOT deny the visa application out-of-hand for the IMB's non-compliance. That however is provided that the visa applicant and U.S. Citizen petitioner voluntarily comply with IMBRA themselves in their own. For example, the U.S. Citizen petitioner discloses in writing all his IMBRA responses in her native language to the woman visa applicant, and secures a signed release from her at some time before the petition filing (and therefore well before any consular interview).

Under these circumstances, there is still obviously IMBRA non-compliance by the IMB, but there is "no harm- no foul" to the couple, and accordingly no penalty imposed on the couple, since they did comply with IMBRA on their own. The IMB is left to face future penalties of non-compliance on their own.

END