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The Golden Door

News and views on immigration law

The stranger who was once us

February 7th, 2020 by Djung Tran

Following is an excerpt of my remarks as president of the Asian Pacific American Bar Association of Pennsylvania (APABA-PA), delivered at a Lunar New Year Banquet last night, telling part of my immigrant story:

Many of you may know that citizenship and immigration law is my area of practice.  I myself am an immigrant to the United States.  In fact, I have embarked on two major migrations in my life, one of which happened when I was too young to remember.

This image (nla.news-page12395647) shows the front page of the Canberra Times on March 1, 1980.  That’s me crouched on the ground, next to our meager luggage.  I would turn 4 a few days later.  My parents and I had just arrived at this airport in Australia, at the end of a 10-month journey that started at a small seaport village near Soc Trang in South Vietnam.

But really, that journey started before I was born.  My parents married shortly before the fall of Saigon, and I was born a year later.  Dad worked as a doctor at the Chinese hospital in Saigon, and mom worked there too as an administrator, although she had a law degree.  After the war, the American War as it is known in Vietnam, the new Communist government embarked on a campaign to purge Vietnam of Chinese influence, including encouraging citizens of Chinese descent to return to China, and limiting the professions which they could work.  As a South Vietnamese and an ethnic Chinese doctor, my dad faced the prospect of being relocated by the new government to a “New Economic Zone,” a euphemism for desolate, depopulated rural areas where no one wanted to live.  Even in Saigon, renamed Ho Chi Minh City, the economy was in a shambles and food was hard to come by.  Mom’s milk dried out and I was a fussy baby who refused formula and cried constantly.  My first nickname, “wau wau,” is the sound a whining puppy makes in Vietnamese.  I blame my final adult height (I’m even shorter than my mom) on being born in a time of post-war famine.

Mom and dad faced a decision.  Whether to remain in Vietnam where they faced discrimination and uncertainty about their status from the new government, or whether to take their chances and seek a better life elsewhere.  My grandfather, a colonel in the South Vietnamese Army, had already been forced into a re-education camp (another euphemism).

With a young child in tow, mom and dad decided to leave.  They did not have a final destination in mind when they set out, or an offer of refuge already extended.  Maybe they could make it to France or somewhere else in Europe.  Maybe America.  Maybe Australia.  But first, they had to get out of Vietnam.  They paid for passage on a boat to leave the country.  With the funds from Chinese families desperate to leave, a boat was built for 200.  When it left shore, it carried about 500, and sat too low in the water.  It lurched on the ocean like a turtle scrabbling on land.  When my parents realized how overcrowded the conditions on the boat would be, they faced another decision.  Should we take our chances on this clearly unseaworthy vessel, or abort our journey?  They had already liquidated their assets to pay for passage, and as soon as they vacated their home it would have been confiscated by the government, as they had seen happen to neighbors who had left before them.  They had no home to go back to, and no money to pay for a second try later.  We boarded that boat.

Another young couple came on board with a days-old baby.  That baby did not survive the journey.

Out in the open sea, soon food and drinking water ran low.  Dad would take turns bailing out seawater in return for a small cupful of water which he would give to me.  People were packed tightly in the hold and the stench soon became unbearable, but you had to find a way to bear it.  At night, the boat had no lights so you could not even see the person sitting beside you, and could not tell what was going on or if you were in danger from a fellow passenger.  There was no room to lie down.

Our boat was attacked by pirates three times.  We counted ourselves lucky that the pirates only took money and valuables and no one was raped or killed.  The third time, our boat was approaching land when the pirates began to tow us out to open sea.  We had no valuables left to be stolen.  What would happen to us when the pirates found nothing of value to take?  Why were they towing us out to sea?  Judging it more dangerous to let the pirates do what they wanted than to resist, the men on our boat cut the tow rope and the pirates chose not pursue us.

When we finally approached a shoreline again, and the end of our dangerous sea journey was in sight, the coast guard of Malaysia towed our little boat back out to sea, and they did not hesitate to beat anyone who resisted.  We would not be permitted to land on their shores, we understood, and instead they pointed to a light in the distance, and told us to head there.  What choice did we have?  We steered for the light, which turned out to be a lighthouse, and the shores of Indonesia.  We had spent 9 days at sea.  We were some of the lucky ones.  We made it to shore.

We ended up in a refugee camp in Galang, Indonesia.  I have photos from this time.  The adults are hollow-cheeked and thin.  The children, however, myself included, have full cheeks.  They must have made it a priority to feed the children, even if it meant going hungry themselves.  My parents almost lost me during this time.  I had tagged along with my grandfather to the market one day, while he was carrying my younger cousin.  He failed to notice that I had come along, and I got separated from him in the crowd.  Fortunately, a Vietnamese woman found me and I was able to tell her, even at age 3, our barracks number so she could return me to my family.  My mother had had the foresight to have me memorize that information.  My family had been frantic when they realized I was missing.  When I saw my parents, after holding it together up until then, I burst out crying, and indignantly reported that “Grandpa left me behind in the marketplace!”  (“Ong Ngoai bo con!”)

My parents and I stayed in that refugee camp for about nine months.  During that time, other members of our family were accepted for resettlement to the United States.  We hoped to join them, so that the family could stay together.  Then, my parents were offered the opportunity to resettle in Australia, sponsored by a Christian group.  They faced a choice.  Remain in the refugee camp, waiting to see if they would be allowed to resettle in America, or leave now for a new life without family support, in Australia.  They decided to take the certain offer in hand, rather than wait for who knew how long to be accepted into the U.S.

So that’s how we ended up in that airport in Canberra, one of the first families from Vietnam to come to Australia’s capital city in a new refugee resettlement program.

My dad is quoted in that Canberra Times article.  Asked about our escape from Vietnam, he said “there had been no problems during the journey.”  And that was my dad for you.

We resettled in Australia, with the support of our sponsors.  They had secured housing for us, and stocked the refrigerator and freezer with food — including MEAT!  My parents were astonished at the bounty now available to them.  Back in Saigon, meat had been mostly beyond their means after the war.

One of my mother’s earliest memories of settling in Australia is taking me with her to the supermarket, by bus.  Although she had learned English in Vietnam she was by no means fluent at that time.  On the way home, in the dark, we missed our stop.  Do you know how difficult it is to figure out public transportation when everything is new to you?  My mother did not know what to do.  At the end of the route, the driver asked us what our stop had been, and she was able to tell him.  He turned the bus around and drove us directly to our stop, and we made it home safe that night.

When my brother was born in Australia, my parents gave him a name that means “Everlasting Peace,” their hope for the future as they built their lives anew in a new land.

Ours is just one immigrant story, one refugee story, among many.  I am struck, though, thinking back on our journey, by the kindnesses shown to us by strangers on the way.

As my son once said when we were talking about how he came to be, I am here today because of the Vietnam War and the aftermath of that war.  But I am also here today because a stranger found me in a marketplace in Indonesia, and made sure I got back to my family.  I am here today because a Christian group in Canberra decided to sponsor a young family, strangers to them, fleeing persecution in Vietnam.  I am here today because my parents took a chance for a better life, and took a leap into the unknown.  I am also here today, as president of APABA-PA, because I wanted to serve in an organization that cares about our community and helps to safeguard our rights.  I know, though, that I would not have had the opportunity to do this if strangers had not extended us kindnesses along the way.

Thank you for allowing me to share part of my history with you tonight.

May this year bring health and prosperity to you and your families, and may we all welcome the stranger who was once us.

Eliminating “residing in the US” for military service members – what it really means

September 2nd, 2019 by Djung Tran

After spending an entire afternoon scouring U.S. citizenship law and obscure policy memorandums, I have concluded that the new USCIS Policy Alert issued August 28, 2019, which was touted by many media outlets as stripping citizenship from the children of U.S. military service members, does nothing of the sort.

This USCIS Policy Alert, among other things, modifies the agency’s interpretation of the words, “residing in the United States” in a provision of immigration law, INA § 320, that controls how a child born abroad automatically acquires U.S. citizenship AFTER birth.

For most U.S. citizen parents, their child born abroad is a U.S. citizen AT BIRTH due to other provisions of immigration law.

For example, under INA § 301(c), a child born abroad to two U.S. citizen parents is a U.S. citizen at birth so long as at least one of the parents “had a residence in the United States [...]” before that child was born.  There is no length of residency requirement with this provision, just “residence” in the U.S. at some point in time before the child’s birth.  Most children born abroad of two U.S. citizen parents meet the requirements of this provision.  Only if neither U.S. citizen parent has ever resided in the U.S. would the child not also acquire U.S. citizenship at birth under INA § 301(c).

Another provision, INA § 301(g), provides for automatic acquisition of U.S. citizenship of a child born abroad to one U.S. citizen parent and one non-citizen parent.  That child is a U.S. citizen at birth so long as the U.S. citizen parent was “physically present” in the U.S. for five years (with two of these years being after age 14) before the child was born.   A U.S. citizen parent’s honorable service in the Armed Forces or employment with the U.S. government, if served abroad, can be counted towards the requirement of five years of physical presence in the U.S.   Most children born abroad of one U.S. citizen parent will meet the requirements of this provision.

Most children born abroad to either one or two U.S. citizen parents are U.S citizens at birth, based on either INA § 301(c) or INA § 301(g).  The children of U.S. citizen parents born abroad who do not acquire citizenship based on either INA § 301(c) or (g) have parents who have never lived in the U.S.,  have been physically present here less than five years in the U.S., or had five or more years of physical presence here but left the U.S. before age 16 and never came back.

For children of one or two U.S. citizen parents who cannot acquire U.S. citizenship at birth because their parents’ ties to the U.S. are too attenuated as judged by our laws, the fall-back provisions are INA § 320, automatic acquisition of citizenship after birth, and INA § 322,  naturalization of a minor child residing abroad.  Automatic acquisition of citizenship means that you are a U.S. citizen when all the factors have been met, regardless of whether you apply for a certificate of citizenship or not.  Naturalization requires that an application be filed and approved, and an oath ceremony occur before that child becomes a U.S. citizen.  Naturalization requires a parent to be pro-active in making sure the child gets U.S. citizenship.  Some parents do not know, do not care enough, or simply cannot pull together the resources to naturalize their children.  Given a choice, it’s preferable to get automatic citizenship rather than go through a naturalization process.

The factors required for a child born abroad to automatically acquire U.S. citizenship AFTER birth are:

1.  Have at least one U.S. citizen parent;

2.  Be under age 18;

3.  Be a lawful permanent resident (a.k.a., becomes a green card holder); and

4.  Be residing in the U.S. in the legal and physical custody of the U.S. citizen parent.

The USCIS Policy Alert changed the government’s interpretation of “residing in the U.S.”  Whereas since 2004, USCIS had a policy of allowing service abroad in the military or as a U.S. government employee to count as “residing in the U.S.,” this interpretation is now ended. When I first read about this Policy Alert, it sounded like it affected the automatic acquisition of citizenship at birth, but it does not.  Rather, it concerns the automatic acquisition of citizenship after birth, INA § 320, and citizenship under this provision is only acquired once ALL four factors are met.

The puzzling thing, to me, is who this change will actually affect.  This is because the third requirement under INA § 320, that the child be a lawful permanent resident, makes the “residing in the U.S.” requirement virtually moot.  In other words, if you are not already a lawful permanent resident, you cannot automatically acquire citizenship after birth.  To illustrate, here are some scenarios where this policy change makes no difference:

  • Children born abroad of two U.S. citizen parents, and at least one parent has resided in the U.S. before the child’s birth:  these children are U.S. citizens per INA § 301(c);
  • Children born abroad of one U.S. citizen parent, and that parent has lived at least five years in the U.S., two of those years being after age 14, before the child’s birth:  these children are U.S. citizens per INA § 301(g);
  • Children born abroad to a U.S. citizen parent unable to transmit citizenship, who have never lived in the U.S. and thus have never been a lawful permanent residents:  these children are not U.S. citizens, as they do not meet two of the requirements of INA § 320; and
  • Children born abroad to a U.S. citizen parent, who came to the U.S. to live and became lawful permanent residents while in the custody of the U.S. citizen parent, and then later the family moved abroad again, as happens frequently with military families and the families of U.S. government employees:  these children are U.S. citizens per INA § 320.

I have only identified one scenario where this policy change makes a difference:  where at least one parent and the child were lawful permanent residents, the family goes abroad as part of military or U.S. government service, and then a parent naturalizes to U.S. citizenship while serving abroad.  At the moment one of her parents naturalizes, that child has three of the four factors under INA § 320, but cannot automatically acquire U.S. citizenship due to this policy change, as she is no longer considered “residing in the U.S.” even though the parent is serving the U.S. government in either a military or civilian capacity.  This child would need to wait until the family returns to reside in the U.S. to become a citizen.  For some families, this can be years.  Leave in the U.S. is not considered “residing in the U.S.”

I do not know how often this comes up, but for these U.S. military and foreign service families, this policy change eliminates an existing beneficial interpretation of the law.  I would want to know, what is the citizenship of the child, before she becomes a U.S. citizen either by acquisition or naturalization?  Is she a citizen of the country of her birth?  About 32 countries grant birthright citizenship (jus soli) (see also this link), without conditions, based on birth in that country.  These countries include the USA, Canada, Mexico, and many other Central American, South American, and Caribbean countries.  They do not include all European countries, including the United Kingdom, France, Germany, Italy, etc., nor Australia or New Zealand.  They do not include Japan, China, India, South Korea, or Vietnam.  They do not include most African countries.

If a child does not derive citizenship from one or both parents, and is not a citizen of her country of birth, then she is stateless.  That is a big deal.  A stateless person does not have a right to a passport.  Without a passport or some other kind of travel document equivalent to a passport that person had no right to travel internationally.  A stateless person is not claimed by any country or nation as a person to be protected from harm.

From an immigration lawyer’s perspective, it is better to make it easier for these children to become U.S. citizens sooner rather than later, and to reduce the administrative burdens on the process, rather than to increase them.  One reason USCIS gave for this change is that the Department of State never adopted this interpretation, that is, never allowed service to the U.S. military or government abroad to be considered “residing in the U.S.,” and so this change makes USCIS policy consistent with Department of State policy.  My response to that is we can choose to make it consistent in a way that helps our service members rather than potentially rendering their children stateless while they serve our country.

There are other reasons given, the most significant of which is that this policy interpretation is inconsistent with a change in U.S. immigration law affecting military families enacted in 2008.  If this is the real stumbling block, then maybe we should amend the law to make it easier for the children of U.S. citizens serving abroad to claim citizenship sooner, and with fewer obstacles.

While this USCIS Policy Update does not strip away citizenship from the children of U.S. service members on active duty abroad, it does make life harder for some military families, and delays the acquisition of citizenship until the family returns Stateside.  It is not necessary to make this change at this time.  The law that this policy arguably conflicts with was enacted in 2008, and USCIS did not feel the need to address this potential conflict until now.  This is a choice.  And the result is increased hardship to some military and foreign service families.

 

 

Perspective from a State Department officer

February 2nd, 2017 by Djung Tran

In my last blog post, “Trump’s deliberate precipitation of an immigration crisis,” I made the case that the “extreme vetting” called for in President Trump’s Executive Order of January 27, 2017, banning immigrants from seven countries, was already in place.  I based this on my experience as an immigration attorney working with visa applicants.

Now, we have the perspective of Natasha Hall, a former Department of Homeland Security immigration officer, providing much more detail about what refugees must go through in order to be let in through our “golden door.”  Please give it a read.

For those who think that this Executive Order is the right move, think about if you were one of these refugees, what should you expect from America?  Think about having lost your home, your livelihood, maybe your family members, all your belongings, and your sense of security.  Think about not being able to go to school or to learn as a child.  Think about your entire childhood spent in crowded, desperate, dangerous refugee camps.  Think about the violence you have witnessed and experienced.  Think about not having enough food to eat, or clean clothes to wear, or clean water to drink or wash with.  Think about needing the kindness of strangers to survive, and knowing that so many times such kindness is not forthcoming.

I understand the justification given for this Executive Order, that we may inadvertently admit a terrorist posing as a refugee, but this is not the way to address that fear, for so many reasons.  In fact, many have argued, and I concur, that this order makes things worse.

If you are ever in need yourself, I would hope that others would hold out a helping hand to you, rather than remember this Executive Order and turn away as we now are in danger of doing to so many.  This order makes it this much harder to be an American in the world.  We reap what we sow.

Trump’s deliberate precipitation of an immigration crisis

January 30th, 2017 by Djung Tran

Since President Trump was inaugurated on January 20, 2017, his actions have turned U.S. immigration into a nightmare for countless numbers of lawful immigrants and visa holders and arriving refugees, and even for naturalized U.S. citizens from certain countries targeted by President Trump.  This does not even take into account those currently being processed for visa applications.

He issued three Executive Orders directly addressing immigration.  He did so without consulting the departments and agencies tasked with carrying out his orders.  CNN reported that “A Border Patrol agent, confronted with arriving refugees, referred questions only to the President himself, according to court filings.”  It reads like a line from a future movie.  The three Executive Orders were first issued on January 25, 2017.  The Executive Order addressing the admission of refugees and other non-U.S. citizens from “countries of particular concern” with regard to terrorism was re-issued on January 27, 2017, with a revised title.  I haven’t even had time to read  the two versions side-by-side to see what if anything has changed between the first and the second version.  This detail is telling in that it clearly shows that this administration cares little for getting things right in its rush to roll out its version of government.

This Executive Order, originally titled “Protecting the Nation from Terrorist Attack by Foreign Nationals” in its January 25, 2017, version, is now titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” in its January 27, 2017, version.

Like President Trump’s inaugural speech, this Executive Order presumes a nation under imminent attack by sinister forces that must be immediately repelled, at all costs.  This “emergency” mindset attempts to steamroll us to blindly surrender our rights and the rule of law in return for a false sense of security that the Trump administration has shown no ability to deliver.  This Executive Order halts the admission of all foreign nationals from certain countries, and then we had to hunt down which countries the President meant, because it was not provided with the Executive Order, not even as a handy addendum.  By “all foreign nationals,” this Executive Order included lawful permanent residents, as it only specifically exempted certain diplomatic visa holders.  So, if you happened to be a lawful permanent resident on, say, vacation outside of the United States when this came down initially it appeared that you too would be banned from returning to the United States for a period of at least 90 days.  The new Secretary of the Department of Homeland Security has taken it upon himself to except this category of foreign national, but until that point the Executive Order itself did not.  Can you imagine the havoc this would have wreaked on families and businesses when their lawful permanent resident family members and employees were stuck without warning out of the country for a period of at least three months?

From an immigration attorney’s perspective, let me tell you that the directives of “extreme vetting” in this Executive Order are either in place already, in terms of background checks and confirming that the applicant actually has the proper basis for immigration or admission to the United States, or are so extreme as to be unlawful or impossible to implement and still keep our system of immigration operative.  I have had clients denied visas who from my perspective clearly merited them.  I have had an Afghan interpreter who worked with U.S. Special Forces and who was cleared for that work and had a letter of support from every officer with whom he worked denied a visa, without explanation as to why for over a year and then ultimately denied on a BS reason.  Believe me, the “extreme vetting” already exists and it is a particular nightmare for visa applicants.  It is known by the banal name of “administrative processing.”  Once a visa case is stuck in “administrative processing” the chances of getting an approval or even a cogent reason for a denial shrink to almost nothing.

It is hard to even know how to begin to point out all the things that are wrong with this Executive Order.

It discriminates based on national origin, with no showing of how such discrimination is necessary to serve a compelling governmental interest, pursuant to the strict scrutiny standard of review.  Such national origin discrimination has been banned in our Immigration and Nationality Act since 1965.  There are arguments that the president has the authority to ban foreign nationals on an as-needed basis.  We are about to find out how extensive that power reaches.  Trump is like a two-year-old child here, testing how far he can push presidential authority before we push back.  What is missing, though, is how this Executive Order promotes the interests of our nation as a whole.  Where are the considered arguments for these extreme actions, the effort to persuade the nation that such actions are needed?  Instead, all we have is a a wink and a nod, asking us to, “Trust me!  I alone can and will protect you.”  Well, in a democracy we need to understand why actions are taken, and to judge for ourselves the justification for those actions, not a meaningless reassurance that everything will be fine.  We are not children to be ignored while the “adults” sink our ship.  (And another thing, under this worldview what happens if Trump becomes incapacitated?  If only he and he alone can save us then this must mean that we are all doomed without his most excellent leadership.  He is after all, in his own opinion, irreplaceable.  Next on the agenda will be a life-term presidency.  It’s the only way for us to be safe.)

The Executive Order also bars the admission of Syrian refugees who have been already been subject to the best vetting processes that our Department of State could devise.  By directing that “extreme vetting” be employed, Trump’s Executive Order implies that the vetting conducted by our Department of State personnel was unsatisfactory, without any proof.  Do you really think that any State Department officer involved in vetting refugee applications would really cut any corners or fail to follow up on any indication of fraud or criminal or terrorist involvement?  What have State Department officers been doing all this time in vetting refugees, if not performing “extreme vetting”?  What State Department officer wants to be the one who let through a Trojan horse refugee?  According to a Time magazine article published in November 2015, it takes an average of 18 to 24 months for a Syrian refugee applicant to be approved for asylum in the United States, after being referred by the United Nations.  That is up to two years of life in limbo waiting for sanctuary, in addition to the time you spent escaping from an unlivable situation.

As a nation that works in cooperation with other nations to promote peace and prosperity globally, we are subject to human rights laws and under these laws we have a responsibility to take in refugees, the most vulnerable immigrants who have lost their homes and many other valuable things on their journey to seek a safe place to re-start their lives.  To turn away refugees is to turn our back on the founding principles of America, that we are a nation of immigrants and refugees and out of that foundation we have forged one of the most vibrant and diverse societies ever known.  Immigrants are disproportionately the most active entrepreneurs in America.  They create businesses and jobs and bring new thinking and new ideas to play.  As with any group, there are immigrants who are dangerous criminals who should be punished and deported, but the rate of criminality among immigrants, even unauthorized immigrants, is lower than that of the native-born American population.  If the goal is to reduce crime rates, we need to take a good look in the mirror before demonizing immigrants if we are serious about fighting crime.

It discriminates on the basis of religion, prioritizing Christian applicants over others.  Barring discrimination on the basis of religion is a founding tenet of America.  This Executive Order treats that tenet as disposable.  It is not, and our courts will be the proving ground for this.

On a more prosaic note, this Executive Order thrusts a mammoth amount of work on to the departments that handle immigration processes, piling the requirement of report upon report on top of an already full workload.  (Do not get me started on current immigration processing times).  Complying with these reporting requirements will derail the regular workload of these departments for an unknown amount of time.  And where is the money coming from for all this extra work?  Is Congress going to funnel our tax money to the compilation of these reports so that they get done by the unreasonable deadlines in the Executive Order?  Is this the best use of our taxes?  This is what President Trump chose to do as one of his first actions in office?

Let us not forget that President Trump has been busy in other ways, ways that have been roundly criticized by experienced and respected intelligence professionals.  But that is a different topic.

 

Australia is successfully competing for skilled immigrants

March 22nd, 2016 by Djung Tran

Check out this Quartz article about how skilled immigrants are finding a friendlier welcome in countries like Australia and Canada, in part because of artificially low quotas for skilled workers (the H-1B category in particular) in the USA, and in part due to the hostility expressed to immigrants in general by our presidential candidates.

http://qz.com/638881/while-americans-feud-australia-is-stealing-away-immigrants-with-sought-after-skills/

 

Scrutiny of K-1 fiancé visas after San Bernardino mass shooting

February 25th, 2016 by Djung Tran

I was interviewed by the Philadelphia Inquirer about K-1 fiancé visas in the aftermath of the San Bernardino mass shooting, where a young married couple killed 14 people and injured 22 others.  You can read the article about K-1 visas here:  Philadelphia Inquirer:  ”Engagement visas in spotlight.”  The wife in that couple originally entered the country using a K-1 visa.

K-1 visas are a means for U.S. citizens to get to know a potential spouse better in the United States before committing to marriage.  Eliminating the K-1 visa would mean that U.S. citizens would in some cases plunge into marriage before they are ready, as there would be no other way in some instances to bring the intended spouse to this country to get to know him or her better.  Sometimes, it is important to the U.S. citizen to marry here in the United States, with their close family and friends as witnesses, rather than abroad.  In others, the U.S. citizen wants to see how well the potential spouse adjusts to the cultural and language differences of living in the United States before committing to marriage and the immigration process.  These are legitimate reasons to want to bring a fiancé/fiancée to the United States before marriage.  The fact that the wife in the San Bernardino shooting entered the country on a K-1 visa brings new scrutiny to this type of visa, with rumblings of more restrictions or a total suspension (pursuant to one bill introduced in the House) of this type of visa.

If the K-1 program had not existed, the wife in the San Bernardino shooting would probably have applied to enter on a spousal visa after marrying her U.S. citizen husband, and would have faced the same level of security checks as apply to the K-1 visa.  So, if we choose to scrap the K-1 program it would probably make us no safer, and it would limit the immigration options of U.S. citizens with regard to potential spouses.  Thus, it would not be enough to scrap the K-1 program.  To forestall any future possibility of a similar admission, we would have to eliminate marriage-based visas as well.  This would mean that any U.S. citizen or permanent resident contemplating marriage with a foreign national would have to move abroad to be with that person.  Is this something we are willing to do in the name of national security?

 

 

Limited new benefits in the pipeline for unauthorized immigrants

December 2nd, 2014 by Djung Tran

As many of you have heard, on November 20, 2014, President Obama announced significant changes in how some of our immigration enforcement actions and benefits applications will be handled.  The goal of these changes is to allow certain unauthorized immigrants to register with the government to apply for work permits and a temporary reprieve from any deportation action, to make the process of obtaining lawful status through family-based immigration less traumatic for certain other unauthorized immigrants, and to make it easier for foreign nationals currently in lawful status to stay in the country to launch or participate in economy-stimulating or job-making ventures, rather than take their education and skills earned here in the United States back to their home countries.

For the unauthorized immigrant population, the most significant of these changes is the creation of the Deferred Action for Parental Accountability (“DAPA”) program.  The DAPA program will be similar to the Deferred Action for Childhood Arrivals (“DACA”) program, which was first announced in June 2012.  Both programs grant deferral from deportation to a segment of the unauthorized immigrant population.  DACA benefited those who came to the United States before age 16, were under age 31 in June 2012 (this upper age limit will be lifted soon), are in school or have  successfully completed at least a high school education, and have a pretty clean criminal record.  DAPA will benefit the parents of children who are U.S. citizens or U.S. permanent residents if these parents have continuously resided in the United States since January 1, 2010, so long as they do not fall into an enforcement priority category.

I can tell you from personal experience that DAPA will benefit many people whom I have consulted with over the years.  These individuals had lived in the United States for several years at least, and some for a decade or more, and had established families here including U.S. citizen children.  Due, however, to the current state of our immigration laws there was no route for them to become lawful permanent residents and thus at the end of these consultations I had to regretfully inform them that there was nothing that I could do to help them, unless the law changes.

Well, the law has not changed, and there is still no route for these individuals to become lawful permanent residents.  But, the government is now offering a halfway measure:  deferral from deportation and a work permit for a three-year period, which in turn means a valid Social Security number, which in many cases will lead in turn to a valid driver’s license or non-driver ID card.  It is not permanent lawful status, but it is a way to be less vulnerable to things like worker abuse, or crime directed at those known to deal in cash only because they do not have access to banks or other financial institutions.  It is temporary lawful presence, although not lawful status.  Hopefully the immigrants who qualify for this benefit will help their communities be safer and less vulnerable to exploitation by criminals and scammers.

The caveat to applying for DACA or DAPA is that since these programs are executive actions they can be changed upon executive discretion, meaning the next U.S. president can terminate these programs and, if so moved, start deportation proceedings against the individuals who registered for these programs.  There is absolutely no promise that these benefits will continue beyond the Obama presidential administration.

The DAPA program will begin accepting applications in about six months’ time.  Until then, those parents of U.S. citizen and permanent resident children who  qualify for it should start collecting proof of their identity, proof of the parent-child relationship, and that they have lived in the United States continuously since January 1, 2010.  Tran Law Associates can help you identify the documents needed and help you navigate the application process.

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.