Pending Changes in the Bankruptcy Forms

Director’s Form B240A updated effective April 1, 2010; Pre-2009 Versions of B240A and B240B to Remain in Effect as Alternative Versions and to be Re-labeled as B240A/B ALT and B240C ALT

On recommendation of the Bankruptcy Rules Committee, Director’s Forms B240A, B240B and B240C (collectively the Director’s Reaffirmation Agreement Package) were posted on the Administrative Office’s public website and became effective on December 1, 2009.  The new forms were designed to be more understandable to users and to make needed information easier to find for judges.  The January 2007 versions of the forms currently remain on the public website along with an announcement stating they will be withdrawn after a transitional period.
Director’s Form B240A (Reaffirmation Documents) integrates the Reaffirmation Agreement, disclosures, and other documents necessary for a debtor to reaffirm a debt. It has prompted a number of suggestions since its introduction in December 2009.  After consultation with the Bankruptcy Rules Committee, B240A has been modified (effective April 1, 2010), to incorporate some of the suggestions made since December 2009, and instructions have been drafted for the form. The new instructions identify governing law, and provide directions for use of the form.
As explained in the new instructions, Director’s Form B240A remains optional, and it cannot be used with a separate, attached reaffirmation agreement because some of the required disclosures are contained in the Reaffirmation Agreement portion of the form, rather than in the Disclosure Statement portion of the form. Because § 524(k)(3)(J)(i) of the Bankruptcy Code provides that a separate reaffirmation agreement may be used only if the proper disclosures have been made, the January 2007 versions of B240A and B240B  (which include separate reaffirmation agreement and disclosure provisions) will not be removed from the public website as originally contemplated.  Instead, they will remain in effect as alternative versions that may be used to provide the required disclosures by parties who want to use a separate attached reaffirmation agreement.  The January 2007 version of B240A will be re-labeled B240A/B ALT effective April 1, 2010, and the January 2007 version of B240B will be re-labeled B240C ALT effective April 1, 2010.

  1. B240A, Reaffirmation Documents (04/10)
    Form | Instructions
  2. B240A/B ALT , Reaffirmation Agreement (04/10)
    Form
  3. B240C ALT , Order on Reaffirmation Agreement (04/10)
    Form

Revised Dollar Amounts in Official Forms 1, 6C, 6E, 7, 10, 22A and 22C, and Director’s Forms 200 and 283, effective April 1, 2010.

Automatic adjustments will be made on April 1, 2010, to dollar amounts stated in various provisions of the Bankruptcy Code, one provision in Title 28, seven Official Bankruptcy Forms which contain adjusted dollar amounts, and two Director’s Forms which include dollar amounts.  The adjustments will apply to cases filed on or after April 1, 2010.

Section 104 of the Code provides that the Judicial Conference make the adjustments, which are calculated at three-year intervals on the basis of the change in the Consumer Price Index for the most recent three-year period ending immediately before the year in which the adjustment is made and rounded to the nearest $25.  The Conference has delegated that authority to the Administrative Office.  The revised dollar amounts were published on February 25, 2010, at page 8747 of the Federal Register (http://edocket.access.gpo.gov/2010/pdf/2010-3807.pdf)

The dollar amount changes affect Official Forms 1 (p.1, 1 change), 6C (p.1, 1 change), 6E (p.1, 1 change, p. 2, 2 changes), 7 (p.2, 1 change), 10 (box 5, 2 changes), 22A (line 38, 1 change, line 52, 4 changes) and 22C (line 43, 1 change), and Director’s Forms 200 (1 change regarding § 522(q) on pp. 2, 3, and 4) and 283 (p.1, 2 changes). 

  1. B l Voluntary Petition  (04/10)Form
  2. B 6C Schedule C – Property Claimed as Exempt (04/10)Form
  3. B 6E Schedule E – Creditors Holding Unsecured Priority Claims (04/10)
    Form
  4. B 7 Statement of Financial Affairs  (04/10)
    Form
  5. B 10 Proof Of Claim  (04/10)
    Form
  6. B 22A Statement of Current Monthly Income and Means Test Calculation (Chapter 7)( 04/10)
    Form
  7. B 22C Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income (Chapter 13) (04/10)
    Form
  8. B 200 Required Lists, Schedules, Statements and Fees (04/10)
    Form
  9. B 283 Chapter 13 Debtor’s Certifications Regarding Domestic Support Obligations and Section 522(q) (04/10)
    Form
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Operation Wetback 2010 What was once wrong is still wrong.

In 1954, INS began a massive operation to deport people from the southern United States to Mexico.  At that time, agents were given a quota of 1,000 aliens to deport per day.  In 2010, that number became 1,096.  On February 22, 2010, the Deportation and Removal office of Immigration and Customs Enforcement sent an email listing the deportation goals as 150,000 criminal aliens and the balance of non-criminal aliens to be removed to total 400,000 per year.

Using a quota-based system encouraged the use of scare tactics and the deportation of United States citizens, back in 1954.  In 2009, the effects of a quota based deportation system are having the same fundamental problems.  In November 2009, ICE implemented a policy memo on how to handle charges against U. S. citizens, due to the deportation of U.S. citizens in recent times.

The ICE memo instructs agents as follows:  1) if the person is a U. S. citizen, he or she should not be arrested or put in immigration court; 2) if the evidence is not conclusive in determining that the person is a U. S. citizen, the person should be not arrested, but should be put in immigration court; and 3) if the agent has a reason to believe the person is in the United States in violation of the law, he or she should be arrested and placed in immigration court.  The issue is not with situation 1 or 3, but with situation 2.  There have been cases where the presentation of a United States birth certificate or passport was not considered sufficient evidence of U. S. citizenship.

The United States has an obligation to its citizens to protect its borders, but at the same time, people in the United States should be protected from vague laws and quota systems placed on law enforcement.  It is as unfair to the agent to evaluate him on the number of people he must remove as it is to the people with whom he comes in contact, where the agent is expected to exercise any discretion at all. 

ICE has withdrawn the quota memo, but the rational for the withdraw is troubling.  The memo, issued by Deportation and Removal Tasking, was denied to be policy, and was sent without authorization.  The retraction goes on to state the memo has been withdrawn and corrected.  A corrected memo was not provided.  I am concerned that there is a disconnect between the layers of ICE and both the agents and aliens may suffer because of this disconnect. 

OPERATION WETBACK. Operation Wetback was a repatriation project of the United States Immigration and Naturalization Service to remove illegal Mexican immigrants (“wetbacks”) from the Southwest. During the first decades of the twentieth century, the majority of migrant workers who crossed the border illegally did not have adequate protection against exploitation by American farmers. As a result of the Good Neighbor Policy, Mexico and the United States began negotiating an accord to protect the rights of Mexican agricultural workers. Continuing discussions and modifications of the agreement were so successful that the Congress chose to formalize the “temporary” program into the Bracero program, authorized by Public Law 78. In the early 1940s, while the program was being viewed as a success in both countries, Mexico excluded Texas from the labor-exchange program on the grounds of widespread violation of contracts, discrimination against migrant workers, and such violations of their civil rights as perfunctory arrests for petty causes. Oblivious to the Mexican charges, some grower organizations in Texas continued to hire illegal Mexican workers and violate such mandates of PL 78 as the requirement to provide workers transportation costs from and to Mexico, fair and lawful wages, housing, and health services. World War II and the postwar period exacerbated the Mexican exodus to the United States, as the demand for cheap agricultural laborers increased. Graft and corruption on both sides of the border enriched many Mexican officials as well as unethical “coyote” freelancers in the United States who promised contracts in Texas for the unsuspecting Bracero. Studies conducted over a period of several years indicate that the Bracero program increased the number of illegal aliens in Texas and the rest of the country. Because of the low wages paid to legal, contracted braceros, many of them skipped out on their contracts either to return home or to work elsewhere for better wages as wetbacks.

Increasing grievances from various Mexican officials in the United States and Mexico prompted the Mexican government to rescind the bracero agreement and cease the export of Mexican workers. The United States Immigration Service, under pressure from various agricultural groups, retaliated against Mexico in 1951 by allowing thousands of illegals to cross the border, arresting them, and turning them over to the Texas Employment Commission, which delivered them to work for various grower groups in Texas and elsewhere. Over the long term, this action by the federal government, in violation of immigration laws and the agreement with Mexico, caused new problems for Texas. Between 1944 and 1954, “the decade of the wetback,” the number of illegal aliens coming from Mexico increased by 6,000 percent. It is estimated that in 1954 before Operation Wetback got under way, more than a million workers had crossed the Rio Grande illegally. Cheap labor displaced native agricultural workers, and increased violation of labor laws and discrimination encouraged criminality, disease, and illiteracy. According to a study conducted in 1950 by the President’s Commission on Migratory Labor in Texas, the Rio Grande valley cotton growers were paying approximately half of the wages paid elsewhere in Texas. In 1953 a McAllen newspaper clamored for justice in view of continuing criminal activities by wetbacks.

The resulting Operation Wetback, a national reaction against illegal immigration, began in Texas in mid-July 1954. Headed by the commissioner of Immigration and Naturalization Service, Gen. Joseph May Swing, the United States Border Patrol aided by municipal, county, state, and federal authorities, as well as the military, began a quasimilitary operation of search and seizure of all illegal immigrants. Fanning out from the lower Rio Grande valley, Operation Wetback moved northward. Illegal aliens were repatriated initially through Presidio because the Mexican city across the border, Ojinaga, had rail connections to the interior of Mexico by which workers could be quickly moved on to Durango. A major concern of the operation was to discourage reentry by moving the workers far into the interior. Others were to be sent through El Paso. On July 15, the first day of the operation, 4,800 aliens were apprehended. Thereafter the daily totals dwindled to an average of about 1,100 a day. The forces used by the government were actually relatively small, perhaps no more than 700 men, but were exaggerated by border patrol officials who hoped to scare illegal workers into flight back to Mexico. Valley newspapers also exaggerated the size of the government forces for their own purposes: generally unfavorable editorials attacked the Border Patrol as an invading army seeking to deprive Valley farmers of their inexpensive labor force. While the numbers of deportees remained relatively high, the illegals were transported across the border on trucks and buses. As the pace of the operation slowed, deportation by sea began on the Emancipation, which ferried wetbacks from Port Isabel, Texas, to Veracruz, and on other ships. Ships were a preferred mode of transport because they carried the illegal workers farther away from the border than did buses, trucks, or trains. The boat lift continued until the drowning of seven deportees who jumped ship from the Mercurio provoked a mutiny and led to a public outcry against the practice in Mexico. Other aliens, particularly those apprehended in the Midwest states, were flown to Brownsville and sent into Mexico from there. The operation trailed off in the fall of 1954 as INS funding began to run out.

It is difficult to estimate the number of illegal aliens forced to leave by the operation. The INS claimed as many as 1,300,000, though the number officially apprehended did not come anywhere near this total. The INS estimate rested on the claim that most aliens, fearing apprehension by the government, had voluntarily repatriated themselves before and during the operation. The San Antonio district, which included all of Texas outside of El Paso and the Trans-Pecos, had officially apprehended slightly more than 80,000 aliens, and local INS officials claimed that an additional 500,000 to 700,000 had fled to Mexico before the campaign began. Many commentators have considered these figure to be exaggerated. Various groups opposed any form of temporary labor in the United States. The American G.I. Forum, for instance, by and large had little or no sympathy for the man who crossed the border illegally. Apparently the Texas State Federation of Labor supported the G.I. Forum’s position. Eventually the two organizations coproduced a study entitled What Price Wetbacks?, which concluded that illegal aliens in United States agriculture damaged the health of the American people, that illegals displaced American workers, that they harmed the retailers of McAllen, and that the open-border policy of the American government posed a threat to the security of the United States. Critics of Operation Wetback considered it xenophobic and heartless.

BIBLIOGRAPHY: Carl Allsup, The American G.I. Forum: Origins and Evolution (University of Texas Center for Mexican American Studies Monograph 6, Austin, 1982). Arnoldo De León, Mexican Americans in Texas: A Brief History (Arlington Heights, Illinois: Harlan Davidson, 1993). Juan Ramon Garcia, Operation Wetback: The Mass Deportation of Mexican Undocumented Workers in 1954 (Westport, Connecticut: Greenwood Press, 1980). Eleanor M. Hadley, “A Critical Analysis of the Wetback Problem,” Law and Contemporary Problems 21 (Spring 1956). Saturday Evening Post, July 27, 1946. Julian Samora, Los Mojados: The Wetback Story (Notre Dame: University of Notre Dame Press, 1971).

Fred L. Koestler

 

ICE statement in response to March 27 Washington Post article
 

 

“ICE is required by Congress to submit annual performance goals as part of the budgetary process and our longstanding focus remains on smart, effective immigration enforcement that places priority first on those dangerous criminal aliens who present risk to the security of our communities.

This focus has yielded real results – between FY2008 and FY2009, criminal deportations increased by 19% and this priority continues in FY10 with 40% more criminal aliens removed to date as compared to the same period last year.

Significant portions of the memo cited in The Washington Post (3/27/10 – Becker/Hsu) did not reflect our policies, was sent without my authorization, and has since been withdrawn and corrected.

We are strongly committed to carrying out our priorities to remove serious criminal offenders first and we definitively do not set quotas.”

- Assistant Secretary John Morton

Additional facts:

  • Criminal removals/ returns increased by almost 22K between FY2008 and FY2009.
  • Overall, criminal and non-criminal removals/ returns increased by 5% between FY2008 and FY2009, while criminal removals/ returns alone increased by 19%
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ICE retracts "quota" memo

“Significant portions of the memo cited in The Washington Post (3/27/10 – Becker/Hsu) did not reflect our policies, was sent without my authorization, and has since been withdrawn and corrected. We are strongly committed to carrying out our priorities to remove serious criminal offenders first and we definitively do not set quotas.” – Assistant Secretary John Morton, Mar. 27, 2010.

 Here is the original Washington Post

ICE officials set quotas to deport more illegal immigrants

By Spencer S. Hsu and Andrew Becker
Washington Post Staff Writer
Saturday, March 27, 2010; A04

 

Seeking to reverse a steep drop in deportations, U.S. immigration authorities have set controversial new quotas for agents. At the same time, officials have stepped back from an Obama administration commitment to focus enforcement efforts primarily on illegal immigrants who are dangerous or have violent criminal backgrounds.

The moves, outlined in internal documents and a recent e-mail by a senior U.S. Immigration and Customs Enforcement official to field directors nationwide, differ from pledges by ICE chief John T. Morton and his boss, Homeland Security Secretary Janet Napolitano, to focus enforcement on the most dangerous illegal immigrants. That approach represented a break from the mass factory raids and neighborhood sweeps the Bush administration used to drive up arrests.

In a Feb. 22 memo, James M. Chaparro, head of ICE detention and removal operations, wrote that, despite record deportations of criminals, the overall number of removals was down. While ICE was on pace to achieve “the Agency goal of 150,000 criminal alien removals” for the year ending Sept. 30, total deportations were set to barely top 310,000, “well under the Agency’s goal of 400,000,” and nearly 20 percent behind last year’s total of 387,000, he wrote.

Beyond stating ICE enforcement goals in unusually explicit terms, Chaparro laid out how the agency would pump up the numbers: by increasing detention space to hold more illegal immigrants while they await deportation proceedings; by sweeping prisons and jails to find more candidates for deportation and offering early release to those willing to go quickly; and, most controversially, with a “surge” in efforts to catch illegal immigrants whose only violation was lying on immigration or visa applications or reentering the United States after being deported.

“These efforts must be sustained and will be closely monitored,” Chaparro told field directors in the e-mail, which was obtained by the Center for Investigative Reporting and The Washington Post.

ICE spokesman Brian P. Hale distanced the agency from Chaparro’s remarks, saying, “Portions of the memo were inconsistent with ICE, inconsistent with the administration’s point of view and inconsistent with the secretary.” He added that the agency has moved to “clarify” the situation.

Chaparro issued a new memo Friday stating that his earlier e-mail “signals no shift in the important steps we have taken to date to focus our priorities on the smart and effective enforcement of immigration laws, prioritizing dangerous criminal aliens . . . while also adhering to Congressional mandates to maintain an average daily [detention] population and meet annual performance measures.”

In the new memo, Chaparro did not alter or rescind any of the strategies he had laid out.

An immigration official said deportations are falling mainly because the focus on criminals has added a complication: It takes an average of 45 days to deport criminals, compared with 11 days for non-criminals, creating a shortage of detention beds. The number of beds was also limited because costs were higher than Congress expected, the official said.

Deportations of convicted criminals climbed 19 percent in 2009 and are on pace to climb 40 percent this year, while deportations of non-criminal illegal immigrants fell 3 percent and are on pace to drop 33 percent this year, agency officials said.

Advocates on the right and left pounced on the memo and other ICE documents, saying they showed that the agency is being neither tough nor consistent in targeting the worst offenders.

“We cannot allow a preoccupation with criminal aliens to obscure other critical ICE missions,” Rep. Harold Rogers (Ky.), the ranking Republican on the House Appropriations subcommittee for homeland security, said in a statement released by his office. “At best, it appears as though immigration enforcement is being shelved and the Administration is attempting to enact some sort of selective amnesty under the cover of ‘prioritization.’ ”

Joan Friedland, immigration policy director at the National Immigration Law Center, countered that quotas will encourage agents to target easy cases, not the ones who pose the greatest safety risk.

“For ICE leadership, it’s not about keeping the community safe. It’s all about chasing this 400,000 number,” said Chris Crane, spokesman for the American Federation of Government Employees Council 118, which represents ICE workers.

Since November, ICE field offices in Northern California, Dallas and Chicago have issued new evaluation standards and work plans for enforcement agents who remove illegal immigrants from jails and prisons. In some cases, for example, the field offices are requiring that agents process an average of 40 to 60 cases a month to earn “excellent” ratings.

Such standards present a problem, said one San Francisco area agent who spoke on the condition of anonymity to avoid reprisal. Instead of taking a day to prepare a case against a legal resident with multiple convictions for serious crimes, agents may choose to process a drunk driver or nonviolent offender who agrees to leave the country voluntarily, because it will take only hours.

The steps appear at odds with a statement made by Morton in August, when he told reporters ICE had ended quotas in a program to capture illegal immigrants violating court deportation orders.

“I just don’t think that a law enforcement program should be based on a hard number that must be met,” Morton said. “So we don’t have quotas anymore.”

Under the Bush administration, ICE officials in 2006 increased an annual quota from 125 to 1,000 arrests for each fugitive operations team. At the same time, the agency dropped its policy that agents focus on criminals and deportation violators.

Becker is a staff reporter for the nonprofit Center for Investigative Reporting in Berkeley, Calif.

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Minor Drug Cases, Major Trouble for Immigrants

“When a police officer in this Long Island suburb found a marijuana cigarette in Jerry Lemaine’s pocket one night in January 2007, a Legal Aid lawyer counseled him to plead guilty. Under state statutes, the penalty was only a $100 fine, and though Mr. Lemaine had been caught with a small amount of marijuana years earlier as a teenager, that case had been dismissed. But Mr. Lemaine, a legal permanent resident, soon discovered that his quick guilty plea had dire consequences. Immigration authorities flew him in shackles to Texas, where he spent three years behind bars, including 10 months in solitary confinement, as he fought deportation to Haiti, the country he had left at age 3.” Nina Bernstein, NYT, Mar. 30, 2010.

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Padilla v. Kentucky obligations for criminal defense attorneys

Padilla v. Kentucky, 7-2
“We granted certiorari, 555 U. S. ___ (2009), to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.”

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