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The Golden Door

News and views on immigration law

Archive for the ‘Asylum/refugees’ Category

The stranger who was once us

Friday, February 7th, 2020

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.

Perspective from a State Department officer

Thursday, February 2nd, 2017

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

Monday, January 30th, 2017

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.

 

Post Script to Consular Nonreviewability

Sunday, July 7th, 2013

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.

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.

 

Dos Erres: An international investigation impacting citizenship and asylum

Friday, September 28th, 2012

This is a lengthy but fascinating read:  “Finding Oscar:  Massacre, Memory and Justice in Guatemala.”

It is about a massacre committed by an army unit in Guatemala in 1982, and two young boys who survived the massacre because they were taken by soldiers responsible for the massacres and raised by the soldiers’ families.  One boy, three years old at the time, ended up as an undocumented immigrant in Massachusetts.  He now has a family of his own with three children.

The investigation into the massacre in the United States involved prosecuting a former Guatemalan soldier who became a U.S. citizen.  Because that man lied on his naturalization application about being in the military and about committing crimes, he was subject to prosecution for criminal violations of U.S. immigration law.  Because of jurisdiction and statute of limitations issues he could not be prosecuted by U.S. law enforcement for the actual crimes in Guatemala, and so the immigration violations were what got him in the end.  (Here’s an example I can use when counseling clients about the consequences of lying on your naturalization application!)  He was sentenced to the maximum sentence of 10 years imprisonment.

The boy, now a 33 year old man, Oscar Alfredo Ramirez Castaneda – an amalgamation of his birth and adoptive names, was granted political asylum because if he returned to Guatemala he is living proof that the massacre occurred and a target of dangerous people who want to cover that up.

This is a fascinating look at how a major investigation involved the governments of at least three countries:  Guatemala, the United States, and Canada.  If you have half an hour to spare, check it out.

A tribute to a Vietnamese mother on Mother’s Day

Sunday, May 13th, 2012

One of my favorite news magazines is The Week.  I was an early subscriber, when it was a very slim compilation of the week’s news, opinions, and reviews  from diverse sources, and had very few ads.  It has bulked up since then – mostly with ads, but still retains its essential character of delivering relevant snapshots of what’s happened in the past week.

This week, The Week excerpted some tributes to mothers from This I Believe (“The invaluable weight of a mother’s gifts”), a collection of essays from youths and adults about their core va;ies and beliefs.  The third story is about a single mother of two little girls who set off to escape Communist Vietnam, and the courage it took to make that decision and see it through to completion – acceptance into the United States as political refugees, and building new lives here.  For those of us who were once boat people ourselves it will bring back poignant, wrenching memories of journeys marked by fear, uncertainty, and also strength and bravery.  For others, it will provide a glimpse into what it means to be part of the Vietnamese diaspora known as the “Boat People.”