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The Golden Door

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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.

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

Monday, September 2nd, 2019

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.

 

 

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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.

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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.

 

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Australia is successfully competing for skilled immigrants

Tuesday, March 22nd, 2016

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/

 

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Lawyers for detained immigrants

Friday, August 9th, 2013

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

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

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

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

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

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

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Same-sex marriage cases post-Windsor

Thursday, August 1st, 2013

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

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

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

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

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

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

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Posted in DOMA & marriage, Family-based immigration, Immigration policy, Uncategorized | No Comments »

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.

 

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Posted in Asylum/refugees, Comprehensive reform, Enforcement / detention, Immigration policy | No Comments »

Rumblings of immigration reform…

Friday, February 1st, 2013

I just read through the “Bipartisan Framework for Comprehensive Immigration Reform,” put together by a group of eight U.S. Senators, and the White House’s four-point platform on immigration reform, both statements which are (deliberately, no doubt) fairly similar in substance.

My first impression:

Good things:  both statements agree that (1) there should be a route for non-criminal unauthorized immigrants to obtain lawful status, including making amends for their unlawful actions such as paying back taxes and paying a fine; (2) our immigration system should permit individuals who have received advanced educational degrees in the United States to stay here without first getting an employer to sponsor them, thus freeing them to start businesses rather than rely upon an employer-sponsor for their status; (3) children brought to the United States without knowingly violating our immigration laws – commonly referred to nowadays as DREAMers – will face a less onerous route to obtain their permanent resident status than their parents; and (4) immigrant agricultural workers who have been paid “subsistence wages” should be granted permanent resident status, as there simply are not enough American workers for these agricultural jobs, and granting these workers permanent resident status would make them less vulnerable to exploitation by employers.

There seems to be a recognition running through the Senators’ framework that unauthorized immigrant workers are easily exploited by unscrupulous employers and thus granting these workers lawful status will, among other things, help build up stronger labor protections for workers in general.  (Of course, that brings us to a separate debate on business competitiveness when industries have to compete with overseas workers with weaker labor protection movements.)

Bad things:  The Senators’ framework makes permanent resident status for unauthorized immigrants contingent on “securing our borders and combating visa overstays.”  This statement raises the question of when will our borders be considered secure “enough”?  Another point made in the Senators’ statement restricts this class of “lawful probationary immigrants” from accessing federal public benefits, which means that while this class of immigrants would be required to pay taxes and thus fund these benefit programs they will not be able to access them when in critical need of social services.  This will create a new class of persons, with less rights than citizens or legal permanent residents.  Sounds complicated, and ripe for adverse unintended consequences.

Some of the points stated in these platforms sound great on paper but the real question is how they will be executed, such as:  Prohibit racial profiling; create an effective entry-exit tracking system so that we will know when someone who entered on a valid visa fails to depart on schedule; and provide “businesses with the ability to hire lower-skilled workers in a timely manner.”  I would love to see the “timely” part of that statement turn into reality.  Will timely mean a month?  Six months?  A year?  Two years?

The issue that faces one of the biggest implementation hurdles is creating an effective employment verification system.  As an immigration lawyer, it is difficult for me to sometimes identify the immigration status of the person in my office who has brought me all their immigration documents, and sometimes immigration officers themselves have a hard time, even with government databases at their fingertips.  The E-Verify system currently in place to verify employment authorization does not stop incorrect verifications through identity theft.  The Senators’ platform calls for an identity-theft-proof system.  A tall order.

Overall, a good start to the debate over what should be changed in our immigration system.  We’ll see where it goes from here.

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Posted in Comprehensive reform, Immigration policy | No Comments »

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.

 

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Posted in Comprehensive reform, Immigration policy, Uncategorized | No Comments »

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