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Immigration lawyers with clients seeking employment authorization cards for their clients might do well to keep a lawsuit handy, according to Charles H. Kuck. The Weathersby, Howard & Kuck partner was less than 24 hours away from suing the Bureau of Citizenship and Immigration Services in U.S. District Court in Atlanta when he finally got the bureau’s attention. Janice Neetenbeek, chief counsel for the BCIS district office in Miami, which includes the Atlanta region, called and asked him if he would hold off filing for 24 hours, Kuck said. He said he told her he would, and less than an hour later Neetenbeek called again, saying she would get the bureau to re-examine his clients’ applications. Kuck said the BCIS offer followed two months of pleading with the agency to act. Kuck had prepared a mandamus action on behalf of seven clients — a Pakistani, two Jordanians and an Egyptian, among others — asking a federal judge to force the BCIS to issue them temporary work authorization cards. Normally, Kuck said, this is a routine procedure. While aliens are “adjusting their status” — pursuing the documents that allow them to stay in the United States legally — the BCIS typically issues them permission to work while their applications are pending. But when Kuck’s clients applied for their work papers, the BCIS denied their petitions. Though all six of the men are in deportation or “removal” proceedings, they have applications pending that likely would allow them to stay in the country. Six of them are married to U.S. citizens, and one’s brother had filed for a family visa on his behalf. CLIENTS CAN’T SUPPORT FAMILIES Thanks to the BCIS denial of their requests, Kuck said, his clients have no way of supporting themselves or their families while they wait for a decision on their applications. “It forces them into a kind of underground life that’s entirely unnecessary,” he said. Several calls to the Department of Homeland Security’s Miami office seeking comment from Neetenbeek went unreturned Wednesday. The former functions of the Immigration and Naturalization Service, which had been under the rubric of the Department of Justice, are now scattered among three separate bureaus — all under the new Department of Homeland Security. The Bureau of Customs and Border Protection now encompasses the Border Patrol and customs inspectors. The Bureau of Immigration and Customs Enforcement focuses on enforcing immigration law, and investigating violations within the United States. The reorganization took effect March 1, 2003. The Bureau of Citizenship and Immigration Services, the subject of Kuck’s suit, handles immigrant and nonimmigrant benefits. These include visa petitions for family members and employees, naturalization, asylum and refugee petitions, and work authorization. The BCIS is also in charge of issuing all the documents a noncitizen needs to function legally in the United States. The trouble, Kuck said, began without warning six to eight weeks ago. “They have never [declined to issue] an employment authorization card to people in application proceedings,” he said. “It’s not the oddest thing I’ve seen them do, but it’s up there.” Kuck, who serves on the board of the American Immigration Lawyers Association, began asking his colleagues in other jurisdictions if they were having similar problems. No one had had any trouble, he said. “Apparently, it’s not an issue elsewhere,” he said. ‘SPECIAL REGISTRATION’ But his clients were stuck, Kuck said. Many of them came to the attention of the bureau under “special registration” — a new policy that requires aliens from some countries to come in and re-register. Some of them had visas that had lapsed, and they began the adjustment process. While the bureau sorts out their applications, Kuck said, they’re evidently expected not to get a job. “They’re basically telling them, ‘We’re going to keep you in limbo, where you can’t work, or get a driver’s license or join normal society. Have a nice day,’ ” he said. “ It’s bizarre. It makes no sense.” According to Kuck’s draft complaint, the immigration statute states that immigrants permitted to remain in the United States while their status is being adjusted must apply for permission to work if they intend to get jobs while they wait. In turn, Kuck’s draft suit noted “Employment authorization shall be granted in increments not exceeding one year during the period the application is pending.” “Defendants, the Department of Homeland Security and CIS are charged by law with the statutory obligation to approve Plaintiffs’ Applications and to issue EADs,” he wrote. Kuck sent a letter to Neetenbeek Oct. 1, reminding her of that portion of that statute and asking for relief for his clients. The letter, he said, went without response. That’s when he began drafting his suit. He planned to ask the court to compel the BCIS to issue employment documents, to declare that the bureau has a duty to issue work papers to anyone who qualifies, regardless of whether they’re in removal proceedings, and to pay his attorney fees and court costs. “The law does not list a set a criteria under which applications can be approved or denied,” he wrote. “Rather, it states that authorizations ‘shall be granted.’ “ REVIEW PROMISED When Kuck talked to Neetenbeek Wednesday morning, he said, she seemed to have been unaware that the bureau was denying work cards to clients like his. By the afternoon, he said, she had told him the bureau would review his clients’ applications. “The bottom line is, I think we both know what the law is,” he said. Kuck said he’s confident his clients will get what they need, but their win doesn’t mean that the bureau will be more responsive to others seeking documentation. “I think there are at least several hundred people in the same situation — keeping in mind that a lot of these people lack representation,” he said. And if the policy continues, he said, immigration lawyers simply have another hoop to jump through before their clients get what they need: be ready to file suit. “Many times it’s the only thing you can do to get them to act,” he said.

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