Image 01

The Golden Door

News and views on immigration law

The Advantages of Citizenship

November 18th, 2014 by Djung Tran

Some U.S. permanent residents choose to remain residents rather than become citizens once they become eligible to naturalize.

Most of these permanent residents, in my experience, chose not to naturalize because while they live and work in the United States, they do not feel particularly ‘American.’  They may still feel a strong affinity to their country of nationality, or they may feel alienated from American culture.  They may come from countries where the U.S. was a foreign invading force that terrorized their families and feel that America is therefore not deserving of their loyalty.

Whatever the philosophical reasons, here is the concrete reality:  U.S. citizens have more rights and less burdens than U.S. permanent residents.  U.S. citizens can never be deported.  Permanent residents can be deported for, in some cases, surprisingly minor offenses, especially those involving drugs or narcotics.  U.S. citizens can vote and thus have a voice in government.  Citizens have more public benefits available to them than permanent residents.  In matters in which identity must be proved, for example applying for a marriage license, a driver’s license, Social Security card, opening financial accounts or applying for insurance, there are less paperwork requirements for citizens than permanent residents.  When permanent residents lose their green card (the actual card, not their status) their lives become a continuing series of closed doors.  Without their actual green card in many states permanent residents cannot obtain or renew their driver’s license or Social Security card.  Without a driver’s license they cannot legally drive and without both a green card and a driver’s license they cannot properly complete the I-9 form (see List B and List ) verifying eligibility for employment, which means strict limitations on how they can earn a living.

A permanent resident friend of mine was happily living and residing in America without feeling the need to naturalize.  He was an Ivy-league educated professional working at a well-paid IT job.  He was married, with a young child.  He had never gotten into trouble with the law, ever, and was a smart person and so figured he would just stay out of trouble and therefore did not have to worry about getting deported.  Then his wife, who had always struggled with mental illness, began a downward spiral.  She became violent towards him and erratic in her care of their child.  Their child was placed in foster care due to the unsafe home situation and she was committed to a mental health facility.  After she was released, his wife blamed him for their predicament.  After physically attacking him as he was driving one day, he obtained a protection order against her.  A divorce and custody battle ensued.  I pointed out to my friend that I would not be surprised if his wife falsely accused him of domestic violence, given her tenuous grasp on rationality, and that a domestic violence conviction can be grounds for deportation.  He is now applying for his citizenship, as he cannot risk being deported or disadvantaged in any way in his quest to make sure his child is safe and adequately cared for.

The moral of this story is that as a permanent resident you can be a smart, law-abiding person minding your own business and still run into the specter of deportation.  It is not as far-fetched as you may think.  Get your citizenship if you can.

Tran Law Associates can help you navigate the requirements of citizenship, and address any troubling aspects of your history that need rehabilitation before you can successfully naturalize.

The flood of immigrant children

July 9th, 2014 by Djung Tran

I have been wrestling with how our government should handle the humanitarian crisis in full-spate at our U.S.-Mexico border, where unaccompanied children, as well as mothers with young children, are crossing into the United States at unprecedented rates, overwhelming our Border Patrol and other immigration-related resources.  About 52,000 unaccompanied children have crossed in the five first months of 2014, and officials estimate that if the surge keeps up, we may reach 90,000 by the end of the year.  To place this in perspective, the pre-2012 average was 8,000; in 2012, it was 13,625; and in 2013, it was 24,668.  Most of the children come from Central America, mainly Honduras, Guatemala, and El Salvador, where poverty, crime and gang-related violence are facts of daily life for them.  It is clear that they are fleeing desperate conditions and unsafe environments at home, but what we need to understand is why they choose to make the perilous journey to the United States, and why in such large numbers now.

Conservative anti-immigrant commentators have blamed the surge of unaccompanied immigrant children on the Obama Administration’s Deferred Action for Childhood Arrivals (“DACA”) program, which provides temporary, short-term deferral from deportation actions to unauthorized immigrants of good moral character who entered the United States before age 16, and were under age 32 and maintained continuous presence in the country as of June 15, 2012.  Blame is also assigned to the Border Patrol’s policy of releasing most unauthorized immigrants caught at the border, so that they may travel to stay with relatives rather than be housed in overcrowded detention facilities, with the requirement that they appear in immigration court to face deportation proceedings.  The combination of these actions, according to these pundits, has filtered down to Central America as a policy of issuing permits or permisos to stay.

Immigrant advocates emphasize the dangers that these children face in their home countries, with the children themselves listing “crime, gang threats, or violence as a reason for their emigration,” and also the desire for family reunification, but the most common reason being extreme poverty.  In short, it is unbearable to stay in their home countries, so they flee, and one study found that “The children and their families had decided they must leave and chose to go where they had family, rather than chose to leave because they had family elsewhere.  Essentially, they would be going to another country like Belize or Costa Rica if their family was there instead of in the U.S.”

So they come to the United States perhaps partly because of false rumors that they can qualify for permission to stay because they are children (the target population of the DACA program) or because of the the rumored permisos.  Partly it is because there is already a family member here.  But the most influential reason is because they they believe they will find safety and opportunity, including the ability to go to school and get jobs, here in America.

What should we do with the children who are here already?  I believe the most cost-effective way to process these children is to provide them with advocates knowledgable about immigration law so that it can be determined as quickly as possible  whether they qualify for any sort of lawful status or whether they must (and can) be returned to their home country.  They might be the immediate relatives of U.S. citizens who could sponsor them for green cards.  They might be derivative U.S. citizens themselves, a highly unlikely but possible scenario.  They might merit asylum due to persecution based on membership in a particular social group.  They might qualify for special immigrant juvenile status as minors abused, abandoned or neglected by their parents.  They might qualify for U nonimmigrant status as victims of violent crimes who are willing to help in the investigation or prosecution of such crimes as certified by a U.S. law enforcement agency.  There may be other less common lawful immigration statuses possible under current immigration law for which they qualify.  Or, they may not be deportable because their home countries will not accept them back.  If they are left to their own abilities to navigate our complex and intimidating deportation system, these children’s cases may take up to five years to process.  While it may be expensive to provide legal representation to these unaccompanied children, in the long term I believe it will cost more not to do so, including longer case processing times which will clog up our already overburdened immigration court system, and the costs to immigration agencies to monitor these children while they have the specter of deportation hanging over their heads, and the costs in their lives while their fates are in limbo, not knowing if they will be allowed to stay and establish safe lives here in America or not.  Five years in an adult’s life is a long time.  Five years in a child’s life can feel like an eternity.

Ultimately, these children will either be determined to have the lawful right to stay or not.  Even if found deportable the question then becomes will their country of citizenship accept them back.  If not, then under the law we must allow them to stay and go to school and eventually, to be lawfully employed, even if they are not granted permanent resident status, because there is nowhere for them to go should we eject them from our country.  It is better to get these questions answered sooner rather than to drag out the process based on a child’s (nascent or nonexistent) ability to advocate for him or herself.

That is my proposal for how to deal with the children now here.  The harder question is what can be done to prevent more children from overwhelming our immigration resources for little return.  Even if the Obama administration, or the next administration, rolls back the DACA program and starts detaining all unauthorized immigrants caught illegally crossing our borders (which begs the question of where the resources will come from to detain all these people), I doubt that this will deter most of this demographic of children from attempting to come.  The rumors of  permisos might make it more tempting to make the journey to America, but what really motivates these children is a desire to escape  home environments of extreme poverty and extreme violence; having relatives in the United States who can help them establish stable lives here; and the continuing perception of America as a land of opportunity where they can be safe and, with hard work, be able to make something of their lives rather than having to struggle just to survive.

One option is to “secure” our borders.  We have a very long and porous land border with Mexico (and also with Canada, incidentally).  We could build a wall or a fence along the entire border.  We could post armed guards along this fence at close intervals, around the clock.  (Are we actually prepared to shoot these children and other unauthorized immigrants?)  We could ramp up our Coast Guard to constantly monitor our coastlines for boats or ships carrying unauthorized immigrants.  We could constantly search for exits to underground tunnels under the border ending in warehouses in U.S. border cities.  We could do all these things, at great cost, but still determined intending immigrants would find a way to come if the stakes are high enough for them.  Would you be deterred by these measures if you thought you have nothing left to lose and a land of opportunity to gain?

We could treat these children as harshly as possible, until they “self-deport” and tell others not to come to this land of prisons and interminable deportation proceedings, like Edgar Chocoy-Guzman, whose story has been retold in the play De Novo (which I reviewed in an earlier post).  Once apprehended, we could house them in overcrowded, bare-bones facilities, or detain them at taxpayer expense in prison, taking away their freedom of movement.  We could make the deportation process incomprehensible and impossible to knowledgeably navigate by denying them legal representation.  Under such circumstances, many children would eventually lose hope in their quest to live safely in America and perhaps voluntarily return to the dangerous, wretched homes they left.

The costs of driving these children away is high, and for what return?

Or, as audacious as this might be in today’s political climate, we could embrace them as aspiring Americans, provide them with lawful immigration status, allow them to obtain an education and then enter the workforce legally, and then see how they contribute to our society and to our economy.  Immigrants, compared to native-born populations, tend to be willing to take more risks, and be more entrepreneurial, creating new businesses and new opportunities when more mundane careers as employees are closed to them because they are newcomers in their communities.  These are characteristics that any country aiming to remain economically vital needs in great supply.

The title of this blog is The Golden Door, from the poem The New Colossus by Emma Lazarus.  The lines of this poem, engraved on the base of the Statue of Liberty in New York City, conclude with this exhortation:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

 

Once we as a people believed in this sentiment, deeming it worthy of being permanently ensconced on a compelling symbol of our democracy.  These children are the living embodiment of the huddled masses in The New Colossus:  they are the homeless, the tempest-tost yearning to breathe free.  We have taken in such populations before, and have been repaid with innovation and invention and renewed vitality.  I posit that accepting rather than driving away these desperate immigrant children will ultimately repay us in a strengthening of our society, an investment in our future as a diverse and humane nation that can absorb all different kinds of peoples and cultures and still remain uniquely American.

 

 

Ask An Immigration Attorney How A U Visa Can Help You

January 20th, 2014 by Djung Tran

U visas are a little known benefit for many unauthorized immigrants. It provides a route to U.S. lawful permanent resident status if you happen to be the victim of certain violent crimes, including crimes of domestic violence. If you want to seek asylum in Philadelphia, consult an immigration attorney for specifics on these types of claims.liberty bell philadelphia immigration lawyer

U visas are technically, most of the time, not visas at all. It is a lawful nonimmigrant status usually granted to individuals already present in the United States, rather than granted abroad with the issuance of an actual visa. This status is NOT permanent resident status, a.k.a. the green card. But it does grant you permission to remain in Philadelphia, or elsewhere in the United States, lawfully with permission to work, for up to three years. At the end of that three years, assuming you have not done anything unlawful in the meantime, you can adjust your status to that of permanent resident. For a more detailed listing of U eligibility criteria, USCIS provides this information. An immigration attorney can also help with determining eligibility.

This U nonimmigrant status is only granted to up to 10,000 unauthorized immigrants per year. The 2014 quota was actually reached in December 2013, according to the U.S. Citizenship and Immigration Services (“USCIS”), which is only about two and half months into the federal fiscal year, which begins on October 1st. This is because immigrant advocates are doing a better and better job of informing eligible immigrant victims of crime about this benefit and filing the application. Applications that do not make the cut-off in the year filed are held over until the quota re-opens in the next fiscal year. To ensure that your application process proceeds properly, you should work closely with an immigration attorney in Philadelphia.

The U nonimmigrant status was created to help immigrant victims of crime, especially victims of domestic violence, and to encourage such victims to come forth to report the crime and to cooperate in the investigation and prosecution of the crime. In addition to the victim reporting and helping to prosecute the crime, a law enforcement agency must sign off on a formal certification of the victim’s helpfulness. Without this law enforcement certification, the U visa application cannot move forth. It is thus an indispensable condition of eligibility, and in some cases, the bulk of the work in applying for U status is finding a law enforcement agency willing to sign off on the certification.

Help from an immigration attorney is necessary because not all law enforcement agencies are aware of what U nonimmigrant status is, or the policy considerations behind it. The personnel at such agencies may be wary of signing off on a form that they are not familiar with, in case it might come back later to bite them. Or, in some cases, the leadership or personnel at these law enforcement agencies are anti-immigrant and simply do not want to help unauthorized immigrants, even those who are victims of crimes and are willing to come forth. In the first instance, it is important to provide background information on why the U nonimmigrant status was enacted and to show that signing off on the certification does not have negative repercussions for the law enforcement agency. In the second, if one’s powers of persuasion do not work in changing an anti-immigrant attitude, then it is time to think creatively and look around for another law enforcement agency with jurisdiction over the crime.

A U visa is a valuable tool for victims of crime to use in obtaining a lawful status in the U.S. It creates a benefit from an awful situation where an immigrant was physically harmed or threatened with physical harm. If you know anyone who experienced this, or even certain relatives of U.S. citizen victims where it is the relative who seeks lawful immigration status, we can help evaluate whether a U visa application is viable. Contact an immigration attorney at Tran Law Associates in Philadelphia. Call us at (215) 690-1933 to discuss your specific situation.

Consult Your Immigration Attorney For Motions To Reopen/Reconsider

December 30th, 2013 by Djung Tran

The law is a codification of what is right and fair. It may not seem that way sometimes, but that is what it is and should be.Philadelphia Immigration Attorney City Hall Image - Tran Law Associates

Part of being a lawyer is keeping sight of this basic truth. As an immigration attorney, I deal with U.S. government agencies on a daily basis. Sometimes my interactions with agencies are adversarial, such as when Immigration and Customs Enforcement is trying to deport my client because of lack of government permission to be present in this country, and I am trying to point out exceptions in the law that allow my client to stay and to become a lawful resident (or to prove that my client is already a citizen and therefore not deportable). Other times my interactions are cordial, in that I am applying for a benefit that my client qualifies for, and my job is to know what the qualifications for the benefit are (all of them) and to clearly demonstrate that my client possesses these qualifications. The government agency’s staffers’ job is to verify that my client does indeed qualify for the benefit sought and, once verified, approve that application in a timely manner. The benefit, after all, is one that the United States Congress has pronounced is a desirable result, such as family reunification or providing foreign workers for U.S. businesses that cannot otherwise find qualified U.S. workers.

Not infrequently, applicants for immigration benefits (especially those not represented by an immigration attorney) make mistakes in their forms or fail to submit all necessary documents, despite being as diligent as possible in following the instructions provided by U.S. Citizenship and Immigration Services (“USCIS”) or other U.S. immigration agencies. Even experienced immigration attorneys will occasionally make mistakes, being only human. And, sometimes (or a lot of times, depending on who you talk to) USCIS makes mistakes, being only run by humans. That’s when an I-290B Motion to Reopen or Motion to Reconsider comes in.

The I-290B Motion to Reopen and/or Reconsider codifies what should be common-sense fairness. When an applicant believes that USCIS has made a mistake there must be some way to communicate this to USCIS and hold USCIS accountable for its mistakes.

This is what happened in one of my change of status cases, where my client entered the country on a B1/B2 tourist visa to visit with family and sightsee, and then decided she wanted to continue her education here. Rather than going home and applying for an F-1 student visa she opted, as permitted by law, to apply for a change of nonimmigrant status. As her immigration attorney, I helped her navigate this change of status. We researched schools for her in Philadelphia, and she chose one that fit her budget and career goals. She applied for attendance and was accepted by the school, paid her first semester’s tuition fees, and was issued an I-20 by the school. She had to prove she had the financial means to pay her tuition fees and cover her living costs here in the United States, and a good friend of the family generously agreed to be her financial sponsor.

My client’s situation was one that was explicitly contemplated and approved of by immigration law, and it was just a matter of proving the relevant factors: nonimmigrant intent upon admission; acceptance at a SEVIS-approved school and issuance of an I-20; and financial ability to pay for school and living costs. We submitted her application for change of status along with all needed documents. USCIS received her application but somehow lost most of the accompanying documentation. In fact, USCIS informed me that although it had received my cover letter, which listed all enclosed documents, the documents themselves were not received.

Now, let me pause for a moment to reflect. USCIS was telling me that I had submitted a cover letter with no enclosed documents. For an experienced immigration attorney, that’s ridiculous. No lawyer would send just a cover letter and not include the 80+ pages of documents that the letter references. I can understand forgetting a particular document among several documents, especially in a voluminous submission, but to just send a cover letter – what experienced and reputable attorney, or what applicant for that matter, would do that!?

In this particular case, USCIS misplaced voluminous document submissions three separate times. In the same case. Can you image how infuriating it was for me to receive the second and third notice that USCIS had not received documents that I took such care to deliver to it — especially after being told that the first submission had documents that went missing? I could prove that I mailed a substantial packet of documents to USCIS in the matter, and I did so, sending along copies of the prior submissions to prove timely and complete submission of required information.

I notified USCIS of the fact that the relevant facts had been delivered, and I delivered copies. The application was then still denied for failure to submit required evidence. I wrote a strongly worded letter basically telling USCIS you can’t deny this application for losing documents I already submitted to you! I also complained to my bar association and asked for liaison assistance. The case was reopened by Service motion and then again denied, again citing failure to submit documents I had by this time submitted twice. It was like the Service never read my letter in which I had so carefully proven that my client had met all her obligations, and again delivered the relevant evidence. I wrote another strongly worded letter, sent another full copy of all prior submissions (several hundred pages by now), which got no response. I also filed an I-290B Motion to Reopen and/or Reconsider, the formal protocol for complaints (which carries a hefty filing fee). When no response was forthcoming within 90 days, however, I sought assistance from the USCIS Ombudsman’s office, reciting the litany of lost documents and resubmissions. They saw the error and the Motion was ultimately granted, and fairness in the case was preserved, although it took one and a half years rather than the two to three months it normally does for an application like this.

The moral of this story: don’t forget that the law should result in what is right and fair. Oh, and be a pain in the ass if that’s what’s needed to get things done.

The approval was sweet, but what would really be the icing on the cake is if USCIS refunds our filing fee. I am not holding my breath.

Lawyers for detained immigrants

August 9th, 2013 by Djung Tran

Immigration law is a strange beast.  Immigration is usually civil law, with the penalty for violations ultimately being deportation, that is, not being permitted to stay in this country.  While certain immigration violations are classified as criminal offenses, the majority of immigration laws fall into the civil arena.

In the world of immigration enforcement, “detention” (a value-neutral way of saying “imprisonment”) of immigrants is all-too-common and devastating to the individuals detained and their families.  It is a deprivation of liberty, a penalty that we reserve for our most serious criminals, and yet it is used routinely for alleged immigration violations.  I’ve said it before on this forum, but it bears repeating:  Immigrant detainees are caught in a Catch-22 because these individuals are treated as criminals but not given the rights of the criminally accused.  We should either treat immigrants accused of violating immigration laws as being accused of civil violations, with civil penalties and only civil protections and rights, or treat these immigrants as criminal defendants, with the concomitant protections of the criminally accused.  Straddling the middle of these categories – given only civil protections but faced with criminal penalties – exacts a high toll in human suffering (for the immigrant and the immigrant’s family) and economic resources, as we lose the value of that person’s contribution to the labor market and spending in our economy, and imprisoning unauthorized immigrants costs us about $2 billion a year.

Immigrant advocates have long pointed out this inequity, and now a new pilot program in New York City, funded by City Council, aims to ameliorate at least one aspect of this problem.  The New York Immigrant Family Unity Project is a one-year program aimed at providing pro bono counsel to detained New Yorkers.  Immigrants in deportation proceedings are told by judges that they have the right to counsel, but only at no cost to the government.  For low-income immigrants in proceedings this is a hollow right.  It is meaningless when one cannot afford to pay for competent counsel, and finding a good lawyer from prison… Well, try it yourself and see how far you get.

Like all sectors of the population, immigrants include good apples and bad apples.  For immigrants found to be dangerous to the community imprisonment is appropriate.  But for those accused only of non-criminal violations of immigration law, incarceration often unnecessarily rips apart families, prevents a parent from being able to look after and provide for U.S. citizen children, removes a needed employee from work, and costs about $164 a day (that’s $59,860 a year) to house and feed that individual on the federal dime.  Think of this just in terms of the cost of foster care for children left without a parent to look after them ($36,000 a year in New York City), and you start to get an idea of the real costs of unnecessarily jailing those accused of civil immigration violations.  Having a good lawyer in this situation often makes all the difference, according to the 2011 New York Immigrant Representation Study, which found that the percentage of detained immigrants who win their immigration cases without representation is 3%.  Having a lawyer, and being free from detention, can increase the chances of success to 74%.

The estimated cost of providing competent counsel for a detained immigrant is $3,000.  If this is the cost of proving that an immigrant should not be detained while defending against a deportation action then it will save the federal government about $60,000 a year per immigrant, and save in the costs of families having to rely on public support systems because a vital breadwinner is incarcerated.

I will keep an eye out to see how this pilot program fares.  It is a step in the right direction and I wish it the best.

Same-sex marriage cases post-Windsor

August 1st, 2013 by Djung Tran

You may not have heard, but an important change in immigration law happened on June 26, 2013.  On this date, the U.S. Supreme Court handed down its decision in U.S. v. WindsorThe Windsor case came up as a tax matter.  But Windsor isn’t just about taxes, although over $300,000 in federal estate taxes was at stake.  It was about the legal definition of marriage.  It was about whether a same-sex marriage can be treated differently than marriage between two people of the opposite sex.  Ultimately, the Supreme Court held that defining marriage as a union between a man and a woman violated the equal protection clause of the Fifth Amendment to the U.S. Constitution, and in doing so struck down Section 3 of the Defense of Marriage Act (“DOMA”).

This leaves the path clear for same-sex marriages to be (among many other things affected by federal law) the basis for immigration benefits, especially marriage-based immigrant visas and marriage-based adjustment of status applications.

The U.S. Citizenship and Immigration Services has, in an admirably prompt fashion, already gone on record as now accepting I-130 petitions from same-sex couples.  You can check out the guidance here.

The main thing you need to know if you want to file a petition for immigration benefits based on a same-sex marriage is that the marriage must be legally valid.  This means that the marriage must have been performed in a jurisdiction that allowed same-sex marriage at the time of the event.  This is sometimes referred to as the “place of celebration” rule.  It should not matter if you no longer live in that jurisdiction and currently live with your spouse in a place that does not legally permit same-sex marriage.

A legally valid marriage must be documented, whether by a certificate of marriage issued by a county government as is usually the case in the United States, or whatever is accepted as legal documentation of marriage in the place where it occurred.  For marriages abroad, a good place to check what documentation is considered legally sufficient are the websites for local U.S. embassies and consulates.  There is usually information for U.S. citizens interested in marrying in that foreign country, including what documents should be issued once the marriage is done.

So, for all those who thought they could not file for immigration benefits for their same-sex partners, the law has changed for the better!  If you need more help, advice, or representation in filing your application, contact Tran Law Associates about how to get your case started.

Eulogy for my Dad

July 16th, 2013 by Djung Tran

My father died recently.  Below is the eulogy I delivered at his funeral.  I wrote about him last year, a few months after it was clear that he was terminally ill:  see The Spirit of the Immigrant.  This, I guess, is the coda to that piece.

 

My dad is gone. I was wondering if it would be any less painful if dad died at a later age, after a very full and complete life? Maybe. I think part of the grief I feel is because dad was so vigorous and full of life before he got sick. His cancer robbed him of that vitality long before it took his life.

Dad was always there for us, opinionated, always ready to help, playful and grouchy in quick succession (like me, like my son). His love for his family, although almost never said in words, came through loud and clear in his actions. His last thoughts were what he could do to make sure my mother, my brother, my son, and I were taken care of. His last instructions to us were that we love and take care of each other.

It was sometimes hard to know, because dad rarely spoke about his own feelings, when he was proud of us or when he was disappointed. But in the end, I don’t think it really matters. He loved us, his children, whether we succeeded or failed in our endeavors.

As my mother has said in the days since his death, you cannot take any of your possessions with you when you go. What dad leaves behind are our memories – all of our memories – of a hard-working man who was always there for his family and friends. I have never known him to let anyone down, and I will miss his laughter, his bright smile, his stories that poked gentle fun at people, how he never complained about how unfair life can be, his strength of will, and his unconditional love.

Dad would want to thank many of his family and friends for their love and support over his lifetime, but particularly, since he became sick, I know that he would want to give special thanks to his good friends, Bac Bao and Bac Nhung, Di Ngoc Ha and Bac Chuong, and Bac Chan and Bac Thanh, and Bac Dich and Di Bich-Ngoc for caring for him in his time of need. Thank you for being good friends to my dad.

May his journey continue in peace and the knowledge that he is loved and deeply missed. Con tuong ba va nho ba nhieu.

Post Script to Consular Nonreviewability

July 7th, 2013 by Djung Tran

A few months ago, I wrote about a K-1 fiancé visa case of mine that was impossible to move forward and where repeated requests for information and clarity went nowhere.  (See The pitfalls of the K-1 fiance visa: Consular nonreviewability.)

A recent episode of National Public Radio’s This American Life illustrates this same frustrating experience perfectly.  The show put up a web page providing the email correspondence between an Iraqi interpreter for the U.S. government and the U.S. immigration office handling his case.  In the end, the applicant was killed before his employment with the U.S. government was verified to the (impossible standard of) satisfaction of the agency.  You have to read it to believe it:  This American Life – Taking Names.

Expungements: What you need to know before you expunge.

April 30th, 2013 by Djung Tran

For most people who acquire a minor criminal record that conviction becomes both a professional and a personal thorn in their side.  On the career-side, having a criminal record can make landing a job more difficult or might prevent you from doing the work you want to do altogether, whether that’s lawful on the employer’s part or not.  On the personal side, you may feel ashamed that you have this record that shows that you broke the law, or were convicted of breaking the law, and having to explain it whenever it comes up.

After experiencing the ramifications of having a criminal conviction, most people want to eliminate this from their record if they can, which usually means requesting that the record be expunged.  Expungement means that the record is destroyed, and anyone looking up your name in the jurisdiction in which it the record was generated should come up empty-handed.  Once an expungement petition is granted, the court administrator (usually the clerk of courts) where the record was originally generated should notify any other agencies to which the criminal record was sent, requesting that this information be removed from those databases as well.  In reality, such requests may or may not be made by the original keeper of the records, and the other agencies that received the criminal record information may or may not update their files in a timely manner, so information about your conviction may still show up in other databases, such as the FBI database.

In terms of immigration, before you expunge your record you should know this:  USCIS and the federal immigration courts often require that you disclose whether you have ever been arrested or detained by a law enforcement officer, charged with a criminal offense, convicted, and what your sentence was if you were convicted.  They require this information regardless of whether the record has been expunged.  And they expect you to provide certified records of these events, or a statement from the relevant agency stating that no record is available.

This means that once you record has been expunged there is no way for the record-keeping agency to issue you a certified copy of that record.  And, not infrequently, when you then request a statement that the record is no longer available due to expungement, the agency may not comply with this request for various reasons, including not understanding the request, or due to a policy of declining to verify the prior existence of a record that has been expunged.

Then you are stuck.  You have admitted to immigration authorities (in the course of, for example, applying for citizenship or for cancellation of removal) to having a criminal record, as the law requires, and yet you cannot provide verification of what happened, also as required.  It is because of this conundrum that I often advise clients to delay having their criminal records expunged until after they become naturalized.  A “clean” criminal record procured through the expungement process can be a headache in immigration proceedings because of the requirement to disclose ALL, even expunged criminal records.

This is an example of when consulting an attorney earlier rather than later is the wiser course of action.  Sometimes you don’t know what you don’t know!  Sometimes a consult early on the process can alert you to potential pitfalls before you commit them.  At Tran Law Associates, we aim to make the immigration process as painless as possible, including warning you of actions that may negatively impact your application for benefits.

 

Review of “De Novo – mas alla de las fronteras (beyond borders)”

March 29th, 2013 by Djung Tran

I saw the play “De Novo – mas allas de las fronteras (beyond borders)” last night.  It was a beautiful, touching, realistic depiction of what some undocumented immigrant youth face when they are placed in deportation proceedings, produced by Houses on the Moon theater company.

There are so many different meanings of “de novo” that resonate throughout the play.  From a lawyer’s perspective, it is a term of art meaning review by a court from the beginning, without relying on prior adjudications, and assessing all evidence afresh rather than through the lens of another adjudicator’s decision.  In a more general sense, it means taking things from the beginning, or starting anew.  The play invites us to both look at the life of one undocumented immigrant youth from the beginning, and to think about the roots of the circumstances of his life, and the immigration system that we have and how it is should be reformed.  It made me think, “What controlled this person’s life?  What could he have done given his circumstances?  Could he have made different decisions?  What are our responsibilities for the circumstances of his life?  What is the U.S. government’s responsibility here?”

“De Novo” is about Edgar Chocoy-Guzman, a real person.  The play uses language taken from real documents, including letters, psychological evaluations, and court transcripts.  He was born in Guatamala in 1987.  He never really knew his father.  His mother left for America when he was an infant.  He lived in his grandfather’s house but no one really parented him.  He joins the gang Mara Salvatrucha and then leaves it, and leaves Guatemala because the gang has put a hit on him.  He joins his mother in Los Angeles and ends up joining another gang.  He is then placed in juvenile detention and then, after he has served his time, instead of being released he is transferred to immigration detention and placed in deportation proceedings, at age 15.  Knowing that he would still be a target of assassination back in Guatemala, he applies for asylum.

The scenes of immigration court proceedings were spot-on.  This is not your Law & Order polished court scene.  The court scenes in “De Novo” were just like the real thing.

There was a panel discussion after the play, and the moderator took the stage visibly emotionally affected by the performance.  I won’t tell you any more as it would spoil the play for you.  All of the actors were excellent.  The fact that the words used in the play were the actual words uttered or written as Edgar’s story unfolded in reality made the story even more affecting.  That this is a real story makes it even more immediate, compelling and thought-provoking.  This is about someone’s actual life and experience.  If you get the chance to see this, I highly HIGHLY recommend that you go.  If you know people who are hostile to immigrants, bring them along.  Let them see what it’s really like to be an unauthorized immigrant in America, instead of thinking of unauthorized immigrants one-dimensionally as nothing more than law-breakers who need to be deported.