Deferred Status for Dreamers

In the last few months, there has been many reports on Obama’s new Deferred Action for Childhood Arrivals (DACA) Memorandum, a form of prosecutorial discretion. The memorandum states that children who entered before June 15 2012, and before they turn 15 years old, could be granted authority to work and lawful status for a period of two years. There are a lot of misunderstandings about the benefits offered, and not enough understanding about the dangers and caveats of filing this application.

Radio Stations Report Incorrect Facts about Deferred Status
Even reputable radio stations get the facts wrong. KMOX and NPR both erroneously reported the incorrect age of eligibility. The eligibility starts at age 15 and ends at age 31, not 30 as these stations reported.

No Path to Citizenship
Deferred action does not confer any lawful immigration status, such as the status enjoyed while waiting for an adjustment of status. Deferred action also does not change the current immigration status, such as a grant of a visa, or lead to US citizenship.

What deferred status provides is a period of authorized stay. In other words, the person in deferred status is allowed to stay in the US with the permission of the government. Any unlawful status before deferred action is granted, or after deferred action status ends, will still be unlawful (source). Immigration can review and/or withdraw the deferred action status at any time.

Presence in the US
In order to apply, individuals must be between the ages of 15 to 31 as of June 15, 2012. They must also have lived in the US continuously from June 15th 2007 to the present, and should have been physically present in the US on June 15th, 2012. Presence in the US is also required when filing an application.

Inspection at the border is not required; individuals could have ‘snuck’ over the border or have overstayed their visa.

Proving Presence in the US
It is fine to have left for a few days to Mexico or the Caribbean; this will not interrupt continuous physical presence. Documentation of stay could include medical and school records, or utility bills and tax filings. The evidence is weighed by USCIS using a ‘totality of circumstances’ standard to prove circumstantially that there is the required presence in the US. In addition, presence could be proved by evidence of stay in the US before and after June 15th, 2012.

Stay in school! Be “all that you can be.”
Applicants must be enrolled in elementary, secondary, high school or college to be eligible. A GED from a reputable school is fine, and a college education is great. An honorable discharge from the Coast Guards or Armed Forces is fine too. Anecdotally, there are only a few who will benefit from service in the armed forces. Only US citizens and permanent residents can enroll with a few exceptions from ‘those vital to the national interest’, and even then most would be eligible for naturalization and would not need deferred status.

Beware of Crimes
Applicants with significant criminal history need not apply. Those who are subject to removal orders from an immigration judge should apply for prosecutorial discretion. ICE may administratively close cases for individuals who are eligible for deferred action.
But if an individual has remained in the US after a grant of voluntary departure from a judge, then that person is subject to other immigration penalties, such as fines and bars to filing an immigration application for 10 years.

Being a Member of a Gang
Many law enforcement agencies maintain a ‘gang book’ of tattoos and the meaning of gang symbols. If an applicant has a gang tattoo or has been profiled in a ‘gang book,’ then that may be a problem, especially if the applicant is interviewed and the tattoos are revealed.

Traffic Offenses
Generally, traffic offenses are not considered fatal to an application. However, those with outstanding traffic tickets; unpaid parking tickets; accidents and arrest warrants for traffic violations; and accumulation points on a drivers’ license close to suspension of the license, need to exercise caution.

DWIs and Domestic Violence
Increasingly domestic violence and driving under the influence are being targeted as bars to immigration benefits. DWI convictions are already a bar to returning on a non-immigrant visa to the US. DWIs are a bar to applying, regardless of the sentence imposed.

Using a False Social Security Number
Using a false social security number is a federal crime with applicable jail time and fines. The applicant risks USCIS reporting the false document use to ICE, which could end in removal and federal prosecution. Chances are that false claims of US citizenship status have been made on I-9 forms, and taxes have been filed using the same social security number. In addition to all the federal crimes, there could also be immigration law violations due to the possible allegations of identity theft. Filing an application under these circumstances is very risky.

Entering Using False Documents
While a minor may not have a say on if the parents entered using false documents, USCIS can still share that information with ICE, and those facts could pose a problem for the parents and others who entered using false documents. All applicants are fingerprinted and photographed. There will be a background check on all applicants, and USCIS can share information about false documents and criminal history with ICE.

Arizona Decided Not to Issue Drivers’ Licenses
Gov. Brewer recently signed an executive order not to issue drivers licenses to conferees of deferred status on the basis that they were in unlawful status. Perhaps she did not read the relevant statutes. This statute is also called the Real ID Act.

Improved Security for Drivers’ Licenses and Personal Identification Cards

Pub.L. 109-13, Div. B, Title II, §§ 201 to 207, May 11, 2005, 119 Stat. 311, provided that:
“(2) Special requirements.–
“(A) In general.–To meet the requirements of this section [this note], a State shall comply with the minimum standards of this paragraph.
“(B) Evidence of lawful status.–A State shall require, before issuing a driver’s license or identification card to a person, valid documentary evidence that the person–
“(i) is a citizen or national of the United States;
“(ii) is an alien lawfully admitted for permanent or temporary residence in the United States;
“(iii) has conditional permanent resident status in the United States;
“(iv) has an approved application for asylum in the United States or has entered into the United States in refugee status;
“(v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States;
“(vi) has a pending application for asylum in the United States;
“(vii) has a pending or approved application for temporary protected status in the United States;
(viii) has approved deferred action status; or
“(ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.

The Final Word
Deferred status could be used to keep a person in status while they are waiting for a priority date, in the family context. This status could stall unlawful status for a person shy of their 18th birthday. There is also a lot of discussion about filing for advanced parole after obtaining deferred status to exit and re-enter the US, and then, without filing a waiver, to file for immigrant status based on a relative.

The deferred status application is seemingly simple, but could be extremely complicated and lethal for the applicant and family members (see Arrabally, Yerrabelly). Those matters should be discussed with an immigration attorney before applying. Contact Nalini Mahadevan or Diane Metzger at Lowenbaum Partnership, LLC.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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DHS Enforcement Actions — July 2012

On July 19, Department of Homeland Security’s (DHS) Secretary Janet Napolitano spoke before the House Judiciary Committee, offering important information on how US immigration law enforcement would affect employers.

US Immigration and Customs Enforcement

Since January 2009, ICE has audited 8,079 employers who are suspected of “knowingly hiring” workers who do not have authorization to work in the US. The federal government has also debarred 726 companies and individuals from federal contracts; imposing and collecting more than $87.9 million in fines and sanctions against companies and their officers.

Sec. Napolitano said ICE will eliminate high-profile raids on worksites because such raids do little to improve public safety. The government now feels that deportation of criminal aliens and unauthorized workers is having little affect on employers’ willingness to hire these individuals. Instead, the government will renew and focus its efforts on Form I-9 inspections; civil fines; debarment; and employer education and compliance with current law.

USCIS, ICE and the Office of Special Counsel (OSC) have greatly increased their engagement with employers and the public through national and local stake holder meetings, webinars and newsletters. Self-check through E-Verify is also encouraged for individual employees. There are now 385,000 companies participating in E-Verify with more than 1.1 million hiring sites. E-Verify is also developing a robust customer service hotline; and increasing outreach staff to promote the E-Verify’s benefits, and educate employers and employees about rights and responsibilities.

Federal agencies receive information to prosecute employers through local police enforcement; traffic stops; criminal prosecutions and informers; and through employee complaints to ICE hotlines and OSC online complaint forms.

The Obama Administration is refocusing efforts on worksite compliance and arrests of unauthorized and criminal aliens, and deporting these aliens at great cost to their countries of origin.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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I-601 Centralized: What You Need to Know

Filing for Form I-601, an application for Waiver of Grounds of Inadmissibility, has been centralized as of June 4, 2012. Persons who cannot qualify for an immigrant visa because they cannot be admitted to the US without a waiver must file an I-601 if they are qualified.

Filing Applications

Applicants who are located outside the US must now apply for Form I-601 through a USCIS Lockbox; the application is then delivered to the Nebraska Service Center for adjudication. Applicants in Mexico will have the choice of submitting their application to the USCIS Lockbox, or to the USCIS Ciudad Juarez Field Office during the first six months of the organizational change. When the six-month period is over, applicants in Mexico must submit through the USCIS Lockbox in the US.

Applicants in Cuba will still be able to file through the USCIS Havana Field Office; adjudications will carry on at this field office.

Compelling Circumstances

Sometimes there are compelling circumstances for which USCIS will make an exception and where the USCIS Field Office Director will accept and decide Form I-601 locally. Such exceptions could be,

1. Medical emergency of the applicant or qualifying family member which requires immediate travel;
2. Imminent threats to the personal safety of the applicant or qualifying family member;
3. A beneficiary is within a few weeks of aging out of visa availability;
4. A petitioner has adopted a child locally and has an imminent need to depart the country.
(source)

Tips for Filing at the USCIS Lockbox

To reduce the likelihood of your Form I-601 being rejected, follow these tips:

• Read the form filing instructions, ensure that the form is neat and legible, and keep all entries within the spaces provided on the form.
• Use the current form version, and mail all pages of the form.
• If completing the form by hand, only use black or blue ink, and avoid highlighters and correction fluid.
• Submit all required documentation or evidence as indicated in the form instructions.
• Sign the form in the correct section. The signature must be in the original and in the correct section, or the form will be rejected.
• Pay the correct fee. USCIS cannot refund the amount of any overpayments. Checks or money orders must be payable in U.S. dollars.
• Complete the entire form as indicated in the instructions. Form I-601 will be rejected if any of these fields are missing:
– Family Name
– Address
– Date of Birth
– Signature in Part D
• Form I-212 will be rejected if any of these fields are missing:
– Last Name
– Address
– Signature in Part V
(source)

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Missouri Lawyers Weekly: Immigration decision may have impact on Missouri laws

My coworker, Diane Metzger, and I were recently interviewed for an immigration article in Missouri Lawyers Weekly. The article focuses on the Supreme Court’s ruling of Arizona immigration law, and how the ruling may affect Missouri immigration law.

Reprinted with permission from Missouri Lawyers Media.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Arizona Immigration Law

Arizona’s aggressive immigration law was recently challenged in the Supreme Court on the grounds that it may be unconstitutional. However, while multiple provisions were struck down, one still remains: “papers, please”.

Papers Please

“Papers, please”– Section 2(B) in SB 1070 — allows police to inquire about immigration status if there is any “reasonable suspicion” that the person in question is an illegal immigrant. Many believe that this provision will invite the police to employ racial profiling.

Questionable Constitutionality

Arizona’s immigration law was largely brought to trial because of its questionable unconstitutionality — the Supreme Court unsure if state laws were hindering the federal government’s right to maintain immigration laws. However, SB 1070 was upheld because the Justices were unable to decide whether the law was replacing or reinforcing federal immigration laws. Along with “papers, please”, police are also allowed to check an arrestee’s immigration status before release.

Constitutional Rights Attacked

There is much room for debate with the “papers, please” provision. Equal protection, free speech and due process are all issues that could strike the provision. While Arizona won Section 2B, the Supreme Court was successful in striking down three provisions that were unconstitutional. Two provisions deemed it a crime for illegal immigrants to reside and look for employment while in Arizona. The third provision allowed the police to arrest anyone whom they believe carried out a deportable offense.

There are several states, including Missouri, that have similar bills in the state Senate and House that are waiting passage. These laws strengthen the law enforcement’s ability to “racially profile” drivers on the road. However unless it is in the course of an offense, law enforcement cannot stop a person to check for the immigration papers.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Obama Administration to Stop Deportation of some Children of Illegal Immigrants

Immigrants May No Longer Live in Fear

Approximately 800,000 immigrants will not live in fear of deportation due to an Obama Administration policy change, which states that the US will no longer deport young law abiding illegal immigrants who have been in the US for at least five years.

Conditions to Be Met Before You Apply

Janet Napolitano, the Secretary of Homeland Security, affirmed this policy change. DHS’s new directive states that if a young illegal immigrant does not pose a threat to national security or public safety, and meets certain criteria, then s/he will be eligible to receive deferred action from deportation.

DHS’s new directive mandates that individuals must meet the following conditions in order to qualify for deferred action:

1. Came to the United States under the age of sixteen;
2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Are not above the age of thirty.

Illegal immigrants who meet this criteria will have legal status for two years in the US, but will have to reapply every two years. They will also be able to apply for work authorization. However, this is not a direct pathway to citizenship or permanent residency.

Caveat Emptor

One of the dangers lurking in the shadows is the fact that applicants may have to disclose not only their own names but names of family members, who may be ineligible for any immigrant benefits because of their lack of status in the US. The danger is that once these relatives and family members have been disclosed, they can be deported or charged with crimes for which they have not yet been charged or arrested by law enforcement.

Significant Misdemeanor

A significant misdemeanor is either punishable by less than a year in prison or no imprisonment. Significant misdemeanors include violence, threats or assault, specifically domestic violence; sexual abuse or exploitation; burglary, larceny or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution or the scene of an accident; unlawful or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

Individuals convicted of three or more other misdemeanors, not committed on the same day or arising out of the same act, are not eligible for deferred action. This means that if the individual has not committed a significant misdemeanor listed above, but has been convicted of three “simple” misdemeanors not on the same day — can be three different days or three different incidents –can be similarly ineligible for deferred action under the new process.

Individuals will have to jump through several hoops in order to qualify for an EAD under deferred action.

DUIs are becoming a more significant crime that USCIS is targeting as a disqualification for immigration benefits.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Visiting India

India is a very beautiful, colorful place–but like many countries, tourists must apply for a visitor’s visa in order to gain entrance. A foreigner is only granted a tourist visa if he/she does not possess property or a job in India, and whose only goal is recreational: sight-seeing and meeting friends and family.

Apply by Mail

To apply by mail, applicants should fill out and print the application with all the required documents. Send it through a carrier with trackable mail: FedEx, UPS or USPS. Applications sent by mail will take 7-9 business days to process. Once the India Visa Center receives an application, they will notify the applicant of receipt via email and attach an individualized URL that allows the applicant to check on the status of his/her application.

Apply in Person

To apply in person, visit the nearest India Visa Center; bring all required documents and a completed application.

Same Day Visas

Sam day visa applications for US-born US citizens will only be accepted in person by appointment at the India Visa Center. Applicants can choose an appointment time when filling the online application, and will need to pay the application fee in cash or by money order.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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How US Immigration Policy on H-2As Will Shrink the US Economy

The US Department of Agriculture’s May 2012 Economic Research Service (ERS) Report Summary conducted a study titled, “The Potential Impact of Changes in Immigration Policy on U.S. Agriculture and the Market for Hired Farm Labor: a Simulation Analysis”, to analyze the effects of large shifts in the US’s supply of foreign workers.

US immigration laws often have drastic effects for our foreign workers, and the government isn’t lenient in implementing immigration policy. Hired labor is an important facet of our economy, particularly in the US’s agricultural market. In the last 15 years, almost half of our foreign workers haven’t had the correct authorization to work in the US. Alterations in US immigration law and policy could either negatively or positively effect our agricultural production and overall economy.

The report compares a “156,000-person increase in the employment of temporary nonimmigrant agricultural workers” in the H-2A visa category; and “a 5.8-million-person decrease in the total number of unauthorized workers in all sectors of the economy, including agriculture” (ERS Report Summary), based on a 15 year projection.

If we employ the first scenario of an increase in 156,000 H-2A visas, that would raise agricultural output and exports. For example, fruits, tree nuts, vegetables and nursery products, would benefits more of the scenario’s benefits, and would increase by 1.1% to 2% output and 1.7% to 3.2% export growth. However, over the 15 years, the earnings of the agricultural workers would decrease by 4.4%.

If we deport 5.8 million unauthorized workers from all sectors of the economy, there would be an overall large-scale decline in output and exports in the economy. Fruits, tree nuts, vegetables and nursery products would be the most distressed areas of the agricultural market, suffering a 2% to 5.4% reduction in output and 2.5% to 9.3% reduction in exports. Long term, wages would increase fro 3.9 to 9.9 percent.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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ICE Targets F-1 Visa Violators

ICE targets visa violators:

Forty immigration status violators, visa overstays and foreign students were arrested by special agents with US. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI). These violators disobeyed the conditions of their nonimmigrant visas during a 12-day operation that ended Friday, June 1.

Immigration Status Reviewed

Twenty-one men and 19 women were arrested by HSI’s Counterterrorism and Criminal Exploitation Unit (CTCEU), part of a national program designed to prevent terrorists and other criminals from exploiting the nation’s immigration system. In addition, CTCEU reviews the immigration statuses of known and suspected terrorists; combats criminal exploitation of the student and exchange visitor visa program; and leverages HSI’s investigative expertise to identify national security threats.

Countries Targeted for Removal for Overstay and Visa Violations

Those arrested are from the following 17 countries: Saudi Arabia(1), Yemen(1), Kenya(15), Azerbaijan(1), Zimbabwe(1), Zambia(1), Nepal(2), Nigeria(4), Gambia(2), Cameroon(3), Grenada(2), Thailand(1), Spain(1), Jamaica(1), Dominican Republic(1), Mexico(2), and Antigua and Barbuda(1).

The 40 arrested were encountered in Edmond, OK, and the following 12 north Texas Cities: Wichita Falls, Tyler, Lubbock, Amarillo, Abilene, Arlington, Prosper, Irving, Dallas, Plano, Carrollton And Mansfield. All have been processed for immigration removal proceedings.

Grounds for Removal

In addition to their immigration violations, three of those arrested falsely claimed US citizenship, which is a felony and results in being permanently barred from legally re-entering the US. A Mexican national was also arrested and charged for illegally re-entering the US after having been previously deported twice.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

Any information here is not meant as legal advice, but strictly educational.

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Part XII: Retaining and Storing I-9

This is Part XII of our I-9 blog series, which explains how employers can best avoid audit by ICE. In our last segment, we will be detailing the most affective methods of retaining and storing Forms I-9.

Retaining Form I-9

Employers must have a completed Form I-9 and Employment Eligibility Verification on file for each person on their payroll. The employer must also determine how much longer to keep the employee’s Form I-9 after the employee leaves.

To calculate how long to keep an employee’s Form I-9, enter the following:

Employers must retain Form I-9 until the date on Line C.

Employers are required to retain the page of the form on which the employer and the employee enter data. Copies of the employee’s documents should also be kept with the I-9. Employers may store the instructions and Lists of Acceptable Documents page as well. The I-9 may be stored on paper, microfilm, microfiche or electronically.

Storing Form I-9

Form I-9 requires the collection of personal information about individual employees. Employers should keep this in mind when determining how to retain and store completed Forms I-9. Employers should store completed Forms I-9 and accompanying documents in a manner that fits their business needs, and fits the requirement to make Forms I-9 available for inspection. Typically, employers store completed Forms I-9 and accompanying documents:

• on-site or at an off-site storage facility
• with personnel records or separate from personnel records
• in a single format or a combination of formats
• paper
• microfilm or microfiche
• electronically

No matter how you choose to store Forms I-9, you must be able to present them to government officials for inspection within three days of the date on which the forms were requested. Officers from the Department of Homeland Security (DHS), employees from the Office of Special Counsel for Immigration-Related Unfair Employment Practices at the Department of Justice (DOJ), and employees from the Department of Labor (DOL) may ask to inspect these forms.

Storing the Original Paper Forms I-9
Form I-9 contains personal information about employees. When storing these forms, USCIS recommends that employers provide adequate safeguards to protect employee information. If an employer chooses to keep paper copies of an employee’s documents, the employer may store them with the employee’s Form I-9 or with the employees’ records.  However, USCIS recommends that employers keep Forms I-9 separate from personnel records to facilitate an inspection request.

Storing Forms I-9 on Microfilm or Microfiche
Employers may keep copies of original, signed Forms I-9 on microfilm or microfiche. Select film stock that will preserve the image and allow for access and use for the entire retention period.

Microfilm or microfiche must:
• exhibit a high degree of legibility and readability when displayed on a reader, or reproduced on paper.
• include a detailed index of all data so that any particular record can be accessed immediately.

If an officer notifies an employer of an inspection, the employer must provide the microfilm or microfiche and a reader-printer that provides safety features; is in a clean condition, properly maintained and in good working order; and is able to display and print a complete page of information. Once employers have preserved Forms I-9 on microfilm or microfiche, they may destroy the paper originals.

Storing Forms I-9 Electronically
Employers may use a paper system, an electronic system or a combination of paper and electronic systems to store Forms I-9. An electronic storage system must include:
• controls to ensure the integrity, accuracy and reliability of the electronic storage system.
• controls to detect and prevent the unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of an electronically stored Form I-9, including the electronic signature, if used.
• controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by an appropriate government agency inspecting the forms.
• an inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Forms I-9, including the electronic signature, if used.
• a detailed index of all data so that any particular record can be accessed immediately.
• production of a high degree of legibility and readability when displayed on a video display terminal or reproduced on paper.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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