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The Golden Door

News and views on immigration law

Archive for January, 2013

Immigration Reform – hopeful and wary

Saturday, January 26th, 2013

In immigration circles there’s a feeling in the air that we may actually get comprehensive reform this year.  President Obama has clearly put his support behind it, and a small group of Democratic and Republican senators are working on hammering out a core set of principles that both sides can agree on prior to drafting any proposed legislation.

Immigration reform can mean a lot of different things, depending on what you think is wrong with the current system.  Some people think it is too harsh, penalizing infractions of law in ways that are disproportionate to the violation and tearing apart families, and in doing so often hurting U.S. citizens.  Others think it is too lenient, not holding people adequately accountable for violations or deterring future violations.  When we talk about immigration laws, we have to think about authorized immigration – the foreign nationals who come (or want to come) to the United States on visas, whether to visit, work, go to school, or who permanently immigrate here based on family ties or work skills; and unauthorized immigration – the foreign nationals who enter without inspection or enter using a visa and then overstay, becoming unlawfully present.

There is plenty of room for improvement in our existing scheme of distributing visas, especially if one thinks, as I do, that we should increase the number of authorized immigrants we permit to join our ranks.  One of the most frustrating issues in immigration is the visa quota system, which creates huge backlogs in several categories of both family and employment-based immigration.  Backlogs of two to 24 years exist in the family-based quota-limited visa categories.  Backlogs of five to ten years exist in the most popular employment-based visa categories.  (See Visa Bulletin.)  These backlogs undermine the policy considerations that created these categories of visas in the first place:  promoting family reunification and helping U.S. businesses employ qualified workers when such cannot be found in the existing pool of local U.S. workers.  The promise of family reunification or employing qualified workers from abroad becomes effectively meaningless when one has to wait an average of 12 years to bring a sister and her family to the United States, or a business has to wait six years to hire the worker it needs.

While these considerations are particularly frustrating to those of us who deal with immigration on a daily basis, the more attention-grabbing aspect of immigration is the unauthorized immigrant population.  There are an estimated 11.5 million unauthorized immigrants in the United States, according to the U.S. Department of Homeland Security.  Declarations that this population should be deported or should  “self-deport” are unrealistic to say the least.  These are people who have built their lives here, and whose children, whether born in the United States or not, have grown up here and know America as their home.  Most people left their native countries, which was no small step – leaving family, friends, everything that is familiar and dependable – because they could not see any hope in the future for themselves and their children there.  Yes, they violated our immigration laws to come here.  Yes, we should impose a consequence for that violation.  But it is unrealistic to try to identify and then lawfully deport all 11.5 million or more unauthorized immigrants.  Making life so unpleasant for unauthorized immigrants that they will leave of their own accord – well, what level of unpleasantness is enough to convince someone to return to a place where they had no hopes for their future?  And what level of unpleasantness are we willing to stomach to achieve this goal?  I think the answer is that we, as a nation, believe in human rights, and to get a person to the point where he or she is willing to self-deport would require suspending our respect for human rights.  I have to believe we are not ready to do this.

Whatever your view on the appropriate penalty to be levied for unauthorized immigration before the immigrant can get his or her green card, one unfortunate reality for this population is that its members can be uniquely vulnerable to scammers.  Many unauthorized immigrants, even those who have lived in the United States for many years, do not speak English.  (I’ve already expressed my views, as an immigration attorney, on long-term immigrants who still do not speak English in this blog.)  Those who do speak some English may still rely on media sources in their native language for news.  Already, I am hearing rumors of ethnic language newspapers reporting that a route now exists to lawful status for unauthorized immigrants.  For someone without their legal papers, including work authorization or a driver’s license and social security number, getting lawful immigration status can mean being able to bank instead of always using cash, being able to drive legally instead of relying on others or driving in fear of being stopped by the police, and being able to go to the police for help without fear of being reported to immigration authorities, among many other things.  For people in this situation, the hope of getting a green card can be used against them.  Unscrupulous ethnic “services brokers” promise that they can get the immigrant their papers if they pay a (usually exorbitant) fee.  Filing a petition for a green card when you are not eligible can result in being placed in deportation proceedings.  So the prospect of comprehensive immigration reform, including a path to lawful status for non-criminal unauthorized immigrants, while a reason for cautious optimism, also creates opportunities for hucksters to ply their trade.  For those of you who know unauthorized immigrants (which of us does not?), please tell them to be careful of promises of a “guaranteed green card” if they just pay the fee.  No such thing exists.


False claim of U.S. citizenship – beware this pitfall!

Saturday, January 19th, 2013

As an immigration attorney, I find it important to make people aware of this potential pitfall. It may seem like a minor thing.  You, a non-U.S. citizen and lacking working papers, fill out a job application and check the box that says you are a U.S. citizen.  If you don’t check it, you don’t have the documents to prove that you’re eligible to work.  If you do check it, you get the job.  You know it’s probably against the law, but it’s what you need to do to get a job and pay the bills.

And it’s not like you’re going out and robbing someone, dealing drugs, or committing some sort of violent crime.

But, under immigration laws, the penalty for making a false claim of U.S. citizenship is the heaviest one available:  deportation without the usual avenues for relief.  If you are convicted of making a false claim of U.S. citizenship you are ineligible to apply for Cancellation of Removal, the same as if you are an aggravated felon or drug trafficker, or committed certain crimes of moral turpitude.  So the act of checking the “U.S. citizen” box on an I-9 form can land you in the same hot water as if you had  been caught dealing drugs or assaulting someone with a deadly weapon.

Harsh reality, but reality it is.

The Child Citizenship Act – derivative citizenship through a parent’s naturalization

Friday, January 18th, 2013

I recently encountered a gentleman who lives under the cloud of a deportation order that cannot be executed.  He spent six months in immigration detention, the end result of which was he was released because while he was ordered removed from the United States his country of origin will not accept him.  So he is not – currently – removable (deportable), but that could change if a new treaty regarding acceptance of deportees is signed between the U.S. and his country of origin.  Under immigration law, he is classified as an aggravated felon and a drug trafficker, factors that made him ineligible to apply for relief from removal such as Cancellation of Removal, even though he has U.S. citizen relatives.  So, he thought he was really at a dead end in terms of avoiding potential deportation.

He came to me because he came across something that made him think that he might, after all this, already be a U.S. citizen, which would make the specter of deportation hanging over his head simply disappear.  ICE cannot deport a U.S. citizen.  (Well, it happens, but it is not supposed to.)

The Child Citizenship Act of 2000 (“CCA”) changed the conditions that a person needs to meet to derive citizenship through a parent’s naturalization.  To “derive” citizenship means to obtain it through your relationship to someone else, usually a parent, both parents, or a grandparent.  Before the CCA, which went into effect on 2/27/2001, for someone to derive citizenship through naturalization, all of the following conditions had to be met:

1.  The person had to be under age 18.

2.  The person had to be a U.S. lawful permanent resident.

3.  BOTH the person’s parents had to naturalize before the person turned 18, UNLESS the parents had legally separated and the custodial parent naturalized before the person turned 18, or UNLESS one parent had passed away and the remaining parent naturalized before the person turned 18.

Derivation means you obtain the benefit automatically.  You have the status of U.S. citizen as of the moment you meet all of these conditions.  You do not need to apply for it, you already have it.  It’s advisable to get proof of your status, like a certificate of citizenship or a U.S. passport, but not necessary.

So, having one parent who naturalized before a child turned 18 was usually not good enough for a child born abroad to parents who were not U.S. citizens at the time of the child’s birth.  This created the strange incentive of – in the case of having only one naturalized parent – some individuals trying to prove that their parents were legally separated to obtain citizenship, even when the parents were happily still married to each other.  Public policy usually does not intentionally promote separation of families.  (One could argue that public benefits programs sometimes unintentionally promote separation of families, but that is a topic outside the scope of this blog.)

The CCA took away the requirement that BOTH parents be naturalized and in its place permitted children to derive citizenship from ONE naturalized parent, so long as, the same as under the prior law, the child was under age 18, a lawful permanent resident, and in the legal and physical custody of the naturalizing parent (which does not preclude the child also being in the legal and physical custody of the other, non-U.S. citizen parent).

But the CCA also, by its very enactment, added a new, time-limiting factor.  This was not a retrospective law so the child had to still be a “child,” that was, under age 18, when the law went into effect, on 2/27/2001.  So derivative citizenship can sometimes hinge on your birthday.  If your 18th birthday falls before 2/27/2001, you had to determine your eligibility to derive citizenship based on the first, more stringent set of factors listed above.  If your birthday falls on or after 2/27/2001, you could use the more lenient standard contained in the CCA.

It may seem unfair, to have your citizenship status in the end be determined by your date of birth, but that’s just one of the quirks of immigration law, and those of us who practice it must sometimes parse out eligibility for relief down to the very day a client is born.