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The Golden Door

News and views on immigration law

Archive for March, 2013

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

Friday, March 29th, 2013

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.


Fraud or misrepresentation – a small mistake can derail a case

Friday, March 29th, 2013

I recently finished an adjustment of status case which should have been straight-forward.  It involved an elderly couple, both originally from Jamaica.  They had been married for decades, then divorced after wife moved to the United States and they grew apart.  She re-married, to a U.S. citizen, and got her permanent resident status and then her U.S. citizenship.  Her second marriage ended several years later, and several years after that she and her first husband grew close again and re-married.  She then applied for him to obtain his permanent resident status.

They were represented by prior counsel.  Everything seemed fine until they attended the adjustment of status interview.  At the interview, the officer asked about husband’s tourist visa application from 10 years ago.  Apparently, husband, who was recently divorced from wife at that time, had checked the “married” rather than the “divorced” box.  This was deemed by USCIS to be a fraud or misrepresentation and the adjustment of status application was denied.

“Fraud” or “misrepresentation” are words that you do not want to hear from USCIS.  They are definitely a sign that your application is in trouble, because it makes you inadmissible and/or deportable.  Luckily, “fraud” or “misrepresentation” are not as adverse a bar to obtaining immigration benefits as a false claim of U.S. citizenship, which is an immutable (non-waivable) bar unless you fall into a very narrow exception.  Still, it’s a very serious matter.

In this case, husband was illiterate and had not completed his visa application himself.  A stranger waiting in line with him at the visa office helped him.  So the first response to the charge of fraud or misrepresentation should have been that he had no intent to deceive and, further, the alleged deception would not have helped him get his visa.  Had he been married, as indicated on the visa application, to a U.S. lawful permanent resident, as his then ex-wife was by this time, this would have been an adverse factor in his visa application.  This is because having strong ties to the U.S., such as to a lawful permanent resident spouse, weighs against being able to establish strong ties to your home country, a condition of being issued a tourist visa.  So this misrepresentation would not have helped him get his visa approved.

Even had husband deliberately intended to deceive in his visa application, a waiver of this ground of inadmissibility is available if you can demonstrate that denial of the adjustment of status application would result in extreme hardship to a U.S. citizen spouse.  In this case, both husband and wife had serious health problems.  Husband was frail and in severe ill health.  In fact, he had suffered a serious medical emergency in Jamaica the last time he was there from which he could easily have died.  Part of what made that event so life-threatening was that after he arrived at the hospital he was not treated for 16 hours while the hospital demanded upfront payment for treatment.  If he were forced to return to Jamaica then the next time he needed acute medical care he would face the same lack of prompt service and he would be allowed to die waiting for care.  Deportation to Jamaica would be a death sentence.

Prior counsel in the case did not dispute the finding of fraud or misrepresentation, or submit information about husband’s or wife’s medical conditions and medical history.  In fact, the only thing prior counsel submitted to argue hardship was statements from husband and wife, and their friends and family, that they loved each other and had for decades, and now were reunited and could not bear to live apart.  Not good enough.

Long story short, I disputed that husband deliberately misrepresented his marital status, and we submitted medical records and information about hospital conditions in Jamaica, and the case was approved.  What really helped, I believe, was to show the human costs in the case.  This was an elderly man who would have died the next time he needed emergency medical care in Jamaica.  That would have caused an extreme hardship to his wife.