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The Golden Door

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Archive for the ‘Immigration policy’ Category

The spirit of the immigrant

Wednesday, February 1st, 2012

Following is a speech that I delivered last Friday at the Lunar New Year Banquet held by the Asian Pacific American Law Students Association of the Temple University Beasley School of Law.

I want to take advantage of this forum tonight to ask you to think about the spirit of the immigrant. As you may know, immigration is a theme that runs through my life. I practice immigration law, I am an immigrant myself twice over, and I work with APABA-PA on community outreach programs that target local APA immigrant communities.

Immigrants are my clients, my family, my friends and colleagues, and are a large part of the community that I strive to give back to in my pro bono work.

So I want to tell you a personal story.  It is about my family, but most of all about my father.

Last October, my parents came back from vacation, a cruise to New Zealand and Australia. They had visited friends and family and had had a good time and were in high spirits. By November, my husband remarked to me that my father was looking ill, and I had to agree. By December, my father had been diagnosed with advanced and aggressive colon cancer, which has metastasized and is attacking other parts of his body. Over the course of a few weeks, he transformed from an active person, a medical doctor with a bustling practice, an avid tennis player, gardener, tinkerer around the house, and jolly grandfather to my son, to a skeletal, bedridden figure whose voice had become labored and breathy with frequent pauses, someone who needs painkillers to get through the days and the nights. His life expectancy is in months, not years.

My father has handled this situation with a combination of stoicism and some quite understandable depression, but overall with grace and competence. He has not railed against his illness, or become defeatist and given up hope of a recovery. He has borne the pain of his disease, and the discomfort of medical treatment, without complaint. My husband has said to me that my father has handled this situation particularly well, much better than most members of his family would, and he added that it is not so surprising, considering what my father has experienced in his life.

So I have come face to face with the impending death of my father. It has made me think about his accomplishments and regrets, and of what he might want to do before he leaves this world. I have tried to put myself in his shoes, thinking back over the major decisions in his life, and get a sense of what it was like to be him.

My parents were childhood sweethearts who married in Saigon, Vietnam, shortly after dad finished medical school and mom finished law school. Their marriage began a few months before the fall of Saigon, and I was born a year later. Dad was a surgeon and the assistant medical director at a local hospital, and mom worked as an administrator at the same hospital. When I was three, we packed up our lives and fled Vietnam and communist rule on a rickety, overcrowded boat, joining the tide of Vietnamese known as boat people. We were lucky in that although our boat was raided by pirates, the pirates only took our belongings. They did not rape or kill. We ended up in a refugee camp in Indonesia, along with both my mom’s parents and siblings and my dad’s mother and siblings.

At times in my life when I was most at odds with my dad, mom would tell me, you don’t know how much your father loves you, and how much he’s sacrificed for you.

“When we were on that boat, your father and a few other young men spent hours bailing seawater out of the bottom of the boat so we wouldn’t sink, in exchange for drinking water, and after he exhausted himself doing that, the captain refused to give any of them drinking water,” my mother told me once.

The few photos that we have from the refugee camp show everyone in my family as stylishly thin, with prominent cheekbones and sucked-in cheeks, except for the young kids, like me, who were pleasingly plump because we were given the choicest foods.

After spending a year in the refugee camp, it turned out that although both my mother’s and my father’s families had been accepted to come to the United States, we could not come with them. Instead, we were on a waiting list, with no guarantee of when our number would come up. So, when my parents were offered the chance to leave the refugee camp and come to Australia immediately, or await their turn to come to the States where their families had already been accepted, they opted to strike out on their own and leave the refugee camp sooner rather than later.

My parents and I arrived in Australia with no family support, but the kind sponsorship of a Christian church group which helped us find housing, jobs, and provided us with what would nowadays be termed tastefully vintage second-hand clothes. (I loved those clothes!) In the years that we lived in Australia, we went from being the objects of charity to being a comfortable middle-class family, from refugees to citizens. My brother, Thai, was born in Australia, making us a family of four. My parents went from sorting mail at the local Australia Post mail center to white collar jobs. Dad’s resume runs from driving a cab to washing dishes to being a medical science officer. Mom at one point made hand-knit sweaters for pocket money when my brother was a baby, and eventually got her degree in computer programming and worked for the government. When mom was struggling to pass her classes because of her weak English skills, dad enrolled in her program so he could tutor her. He ended up collecting a degree in computer programming that he never used.

Although mom and dad had comfortable lives in Australia, dad had never been able to get back to the practice of medicine, his first calling. Dad has always been book smart, a constant reader. He graduated at the top of his high school class and did well in medical school, but he was never able to pass the foreign medical graduates exam, which he took several times.

Then, ten years after they built new lives from scratch in Australia, my parents were given the opportunity to emigrate to the States. Again they faced leaving what they knew, comfortable lives and good friendships, for the opportunity to reunite with their families and give my father the chance of obtaining his dream – to be a doctor again. Again, they chose to take a risk for the chance of greater gain.

Once we landed in the United States it took six years for my dad to get fully accredited as a medical doctor, which included passing the foreign medical graduates exam, obtaining clinical experience in the U.S. – a prerequisite before he could be admitted to a medical internship program – doing his internship, and then his fellowship. This included a stint where he lived in Newark, NJ, for two years, while we stayed in Philadelphia. Let’s just say, for those of you aware of the habits of drivers in Newark, NJ, that he came back a different driver after this temporary relocation. In any case, he became a fully fledged doctor – again – and opened his own practice so that he could be his own boss and not be dependent on others.

It has been 15 years since my father opened his practice. He had to close it down last month. He had planned to retire in a few years, and the sudden onset of his cancer forced him to abruptly shut it down. It is not what he would have chosen, but since there is no other choice he has accepted it and moved on.

In immigrant communities, my father’s story is not that unusual. Immigrants tend to open small businesses in larger numbers than native-born residents. They are more willing to take risks in pursuit of their dreams. And immigrants usually have faced and overcome significant hardship on the road to their new homeland, and maybe because of this, are often more persistent in pursuing their goals than native-born residents, more willing to push issues and not take “no” for an answer.

Many of you here tonight come from immigrant families, if you are not yourself an immigrant. So, I want to take this opportunity to acknowledge the spirit of the immigrant, many of whom, like my father, are brave risk-takers willing to endure hardship to forge a better life for themselves and their families. For those of you who, like me, owe a great debt to parents who were willing to start over in a foreign land to provide greater opportunity to their children, please don’t forget to show your appreciation. Too often we assume that our parents know that we love them and that we are thankful for the sacrifices they have made for us. Sometimes they do know. But it never hurts to say it and show that we mean it.

As law students in this economy, with the downturn in legal hiring, it may seem that law school might not have been the wisest choice. But whatever your long-term ambitions, one thing a legal degree and bar admission will allow you to do is to hang out your shingle. It can be intimidating to open your own business. It is a big risk. If you open a solo practice the buck stops with you and there is no safety net. But, drawing on the spirit of the immigrant, let me say that sometimes you have to take risks to achieve your dreams. That doesn’t mean you jump in with your eyes closed, and hope for the best. It does mean that whatever your goal is, there will often come a time when you have to give up a measure of safety to go after it. When that time comes, remember the immigrants who have come before us, who helped to create the opportunities we have today.

Thank you for allowing me to talk about my father tonight.

If you or your family is struggling with the naturalization process, trust an experienced immigration lawyer who has gone through the process herself. Learn more about Djung Tran, Esq. here.

Words matter: unauthorized immigrant versus criminal alien invader

Tuesday, November 1st, 2011

Being a practicing immigration attorney and someone who routinely interacts with immigrant communities on a pro bono basis, certain themes and questions recur in my experience of dealing with immigrants and the policy issues that immigration law raises.

One recurring theme that may seem technical and boring but  plays out in important ways is the status of immigration as civil rather than criminal law.  Immigration violations are not generally criminal violations, and thus foreign nationals who fail to maintain their lawful immigration status or who enter the country without permission are not per se criminals.  Although in the past I have tried to equate immigration violations to other civil penalties like a parking violation such as an expired meter, or not maintaining a proper business license or zoning permit, such as running a hair salon on property zoned for office use, this never felt accurate.

The fact is, an immigration violation is a different animal than a parking or zoning violation.  Although each type of regulatory regime – immigration, motor vehicle, and zoning – purports to regulate individuals for the greater public good, regulation of the use of personal property such as cars or regulation of the use of real property is different from regulation of where people can live and work.  The latter regulatory scheme can have a much more significant impact on people’s lives, controlling whether you can live with your spouse if you happen to fall in love transnationally, or whether you can work for a company that is more attractive to you than those in your home country.  Immigration laws have prevented clients of mine from attending a wedding in the United States, from working for a mom-and-pop business where the owners want to bring a foreign-national family member into the workforce, and from living in the United States with a foreign-national spouse.  Immigration laws have mandated the deportation of clients who have lived here since early childhood, established families here and sunk down deep roots here such that being returned to their “home” country would be akin to moving to a foreign country.

In addition to the way that immigration law regulates where foreign nationals can live in this country and whether they can can lawfully work here, once a foreign national falls out of lawful immigration status (or maybe never had lawful immigration status) he or she can be “detained,” a watered-down way of saying “thrown in jail.”  Although immigration detention is supposedly merely a means to an end, that is, making sure that the detainee is available for deportation if warranted, detention is a punishment – taking away an individual’s freedom – that is criminal in nature.  Some immigrant detainees are even housed with a prison’s criminal population.  Being detained means you don’t have  access to your important documents and cannot collect evidence to help build your case for relief from deportation but rather must rely on the goodness in the hearts of friends or family to act for you, and the effectiveness of your attorney.

But immigration laws in America maintain the fiction that detention is a civil penalty, and thus detainees do not have the rights of criminal defendants such as the right to counsel, regardless of ability to pay, or the right to confront adverse witnesses.  It’s a Catch-22.  You can be treated as a criminal, demonized as an “illegal” human, but once you are in custody the fact that immigration is a civil scheme of laws is used as the reason why you cannot claim such rights as are routine for criminal defendants.

Another recurring question in immigration is what to call foreign nationals who are present in America without proper authorization.  Some of these foreign nationals entered the country lawfully but then overstayed their temporary visas.  Others entered unlawfully, bypassing all checkpoints.  Others lost their permanent resident status due to a variety of reasons, including criminal convictions, findings of fraud on their original applications, etc.  If you an advocate for immigrants, you refer to this population as “undocumented immigrants” or “unauthorized immigrants” or, simply, people “without papers.”  If you feel that unlawful immigration is a scourge that is dragging our country down, you call this population “illegal aliens” or, more dehumanizingly, “alien invaders.” These latter labels suggest that this whole population becomes something to be eliminated, end of discussion.

Words matter.  Someone without papers is a very different person than an alien invader.  A person without papers can exist in a broad range of circumstances, and can be a good person or a bad person, or, like most of us, a complicated combination of characteristics, some admirable, others not.  An alien invader or an illegal alien is a person – or rather a thing, a criminal, a bad element – that should be summarily ejected, and need not be treated with basic human decency.  If we label this population “illegal” aliens, why do we not call parking violators “illegal” drivers and zoning violators “illegal” business owners?  The use of the word “illegal” acts to deem the entire person “illegal,” and therefore disposable, rather than just the person’s actions.  There is a difference between being unlawfully present and being an illegal human being.

Hector Tobar’s “The Barbarian Nurseries”

Monday, October 31st, 2011

Just finished Hector Tobar’s new novel, The Barbarian Nurseries. I’m an avid reader, but usually of fantasy and science fiction.  This novel, set in present-day, real-life Los Angeles and its suburbs, was a change of pace for me.  Its protogonist, a Mexican domestic employee and undocumented (or unauthorized) immigrant, is also a change of pace in terms of my leisure reading.  Maybe because I handle immigration matters on a daily basis, I usually look for topics far afield when I want to relax with a good book.

But I saw this title on the new books shelf at the library, and thought I would give it a whirl.  I’m glad I did.  So many observations in this book were dead on and familiar, putting in words things that I’ve noticed before and never bothered to parse out myself.  It kept me riveted from beginning to end, and now I’m looking for more by this author.

Here’s the set up:  A suburban couple, Scott Torres and Maureen Thompson, have laid off two of their three domestic employees due to money issues, leaving only the quiet, hardworking, standoffish, non-child-friendly housekeeper, Araceli.  After an argument,  Scott and Maureen each quietly and without word to anyone else exit the home thinking the other spouse will look after their two young sons, leaving Araceli as de facto guardian of the children in their unexplained absence.  Not being able to reach either husband or wife for days, Araceli decides to take the boys to the only other relative within hailing distance, Scott’s Mexican American father.

Thus begins a journey that will bring upheaval to each member of the household.  The novel does a wonderful job of painting a three-dimensional personality for Araceli and her yuppie employers.  As might be expected, the housekeeper’s undocumented status informs her every potential encounter with authority figures.  For those who need reminding, the novel also provides a portrait of an undocumented immigrant as more than just a statistic, more than just a stick figure  conveniently labeled as “illegal”  and “criminal” so that such individuals can be dismissed as not worthy of basic human considerations.  It presents us with a complex person with a past full of unfulfilled dreams, her own idiosyncratic hopes for the future, distinct quirks and dislikes, and very little in the way of resources except her own strength of character.

This contemporary novel takes a keen, unsentimental look at the everyday lives of people you feel you know already, and leaves you feeling like you’ve taken a tour into their inner lives.  Highly recommended.

The Meaning of Prosecutorial Discretion

Monday, September 26th, 2011

In the last few months, there has been a shift in the tenor of prosecution of immigration removal proceedings (deportation, in not-so-euphemistic terms).  Whether this shift is merely a superficial veneer that attempts to appease immigrant advocates but signifies nothing, or is an unlawful run-around of Congress that is allowing countless undocumented immigrants off the hook depends on who you ask.

The shift began with what is now known as the Morton Memo.  John Morton, Director of Immigration and Customs Enforcement (“ICE”), has issued several official memoranda during his tenure, but this memo has such potentially wide-ranging significance to ICE personnel and undocumented immigrants that it has been dubbed the Morton Memo.  In a nutshell, Director Morton’s June 17, 2011, memo directs all ICE personnel to take into account two factors when deciding whether to place a suspected undocumented immigrant into removal proceedings:  (1) that ICE has limited resources to deport everyone who is theoretically deportable and thus must pick and choose who to deport, and (2) that in deciding who to prosecute for deportation there are specific factors that will favor putting that person in removal proceedings and specific factors that favor leaving that person alone.  This is not new policy, but it shows a newfound boldness in announcing the policy and inviting immigrants and their advocates to request favorable prosecutorial discretion, and a renewed emphasis on the importance of implementing the policy.

The Obama Administration then followed up, through a letter dated August 18, 2011, from Department of Homeland Security Secretary Janet Napolitano to Senator Dick Durbin, by announcing that a review would be conducted of ALL individuals currently in removal proceedings to determine whether they fall within DHS’s high priority categories for removal or whether they would merit the favorable exercise of discretion under the Morton Memo’s specific factors.  For the latter group, removal proceedings would be suspended.

When I was asked by WHYY reporter Elizabeth Fiedler what I tell my clients as an immigration lawyer when they ask what this policy shift means to them, I told her that, “This is not a total out.  It does not get them out of the removal situation.  It is like a suspension of an ax over their heads.”  The new policy can make a difference when an undocumented immigrant is in removal proceedings – or threatened with removal proceedings – and has not committed any crimes or otherwise shown a lack of good moral character.  The policy helps if the immigrant came as a child, and has established deep roots here, such as having U.S. citizen or legal permanent resident spouses or children, or if the immigrant have served honorably in the military or is a well-educated individual ready to contribute to society, and so on.  But the Morton Memo and the shift it represents can change with the next presidential administration, and does not grant undocumented immigrants any new rights, such as work authorization or the golden ring, a green card.

So, while the new emphasis on prosecutorial discretion is a positive development for undocumented immigrants who, aside from their undocumented status, are free of criminal histories and are just trying to build good lives for themselves and their families, this policy shift is not any kind of amnesty, and can be revoked with the next change in administration. If you have concerns regarding the policy, you should consult your immigration lawyer. Pennsylvania residents can contact Tran Law Associates.

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

Backlog in the immigration courts

Wednesday, July 20th, 2011

Anyone routinely involved in immigration in the United States is aware that cases moving through the immigration courts take a long time.  Sometimes, cases take years to be adjudicated, and by years I don’t mean a year or two, I mean three or four or five years.  A recent article in the Philadelphia Inquirer in which I am quoted gives some idea of the backlog in the system.

Depending on where you stand, this backlog can be a good or a bad thing.  If you are not in immigration detention (which is a sugar-coated way of saying you are in jail), and you are fighting removal (which is a sugar-coated way of saying deportation), then it is a good thing because it gives you time to gather evidence for your case and lets you live your life in the United States for a longer period if you do not have a good chance of winning your case.  If you are in immigration detention, it means you languish in jail while your case plods through the system.  While you are in jail, it is difficult for your lawyer, if you have one, to communicate with you, and you are not free to gather evidence yourself but must rely on friends and relatives to do it for you, if you can persuade them to.

If, however, instead of being in removal proceedings you are affirmatively (rather than defensively) applying for an immigration benefit, such as asylum or permanent resident status based upon marriage to a permanent resident of U.S. citizen, but the government contests your eligibility for the benefit, this backlog in the immigration courts prevents you from getting on with your life.  You cannot make long-term plans while your immigration status is in limbo.  In addition, although you usually have work authorization while an immigration application is pending, this is not always the case so some applicants are faced with the question of how to support themselves while their case is being adjudicated.

Resolution of immigration court cases means that foreign nationals who have no legal right to be here are actually deported, while those who do have the right to be here can then concentrate on moving forward to build good, stable lives here, including contributing to their communities and the economy, rather than spending their time, efforts, and money on long drawn-out court proceedings.

One root cause of the backlog is that more people want to live in the United States than there are currently legal avenues for admission.  Comprehensive immigration reform that takes into account the factors that drive people to immigrate and promotes lawful immigration of the people who we want to welcome to our country would reduce the immigration court dockets and free these people to become contributing members of society.  Another cause is that while enforcement of the existing immigration laws has significantly increased since 9/11 and also under the Obama administration, thus funneling more cases into the immigration courts, the courts have not correspondingly been increasingly funded and enlarged.  While we can debate the pros and cons of ramped-up enforcement, the simple truth is that if we are putting more people in removal proceedings we need to also put more resources into processing these cases or else a huge bottleneck develops.  This means that more immigrants are held in detention for longer, on the federal dime, while their cases ooze through immigration court.  It’s pretty simple math, if you ask me.

If you are in immigration court proceedings and need a Philadelphia immigration attorney, contact us at info@tranlawassociates.com, or check out the website at www.tranlawassociates.com

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

Selective Service and Naturalization

Saturday, May 7th, 2011

For men applying to become American citizens, an issue that often crops up is whether the applicant registered for Selective Service, the registration system for military-aged men so that they can be conscripted into military service if the draft is ever re-instated.

Male U.S. citizens (“USCs”) and legal permanent residents (“LPRs”) born after December 31, 1959, are required to register between the ages of 18 and 26.  But it’s not only USCs and LPRs who are required to register, but also certain seasonal agricultural workers here on temporary visas, refugees and asylees, and undocumented immigrants.

So, the United States government requires not only its citizens, but also undocumented immigrants, to register for a potential draft.  Being drafted would mean being forced to join the U.S. military and fight for America in time of war.  The first question that pops into my mind when considering this scheme is:  “Do we really want men without allegiance to the U.S. fighting in our military?”  The second question is: “So, we expect undocumented immigrants, who are currently being particularly demonized and whose already limited rights are being further restricted by anti-immigrant factions, to fight and be prepared to die for the U.S.?”  The third question is:  “Why on earth would an undocumented immigrant, who constantly lives life under the radar of government authorities, register for Selective Service and risk deportation?”

For immigrants eligible to naturalize, which means someone with at least three years, and usually five years, of legal permanent residency, some then face the hurdle of having not registered for Selective Service when required under the law to do so.  For a man who was once an undocumented immigrant but later obtains legal permanent residency, he then must under the letter of the law explain why he didn’t register for Selective Service.  Most applicants didn’t realize that this requirement existed at the time that they were supposed to register, and this good faith ignorance is usually accepted as a valid excuse for failure to register.  But, if the examiner decides to disbelieve the good faith ignorance excuse then this is a valid basis for denial of the naturalization application.

Should we deny a man U.S. citizenship after he has earned his legal residency; been a law-abiding member of society; and learned the basics of our history, politics, and legal system, often better than those born here, because when he was undocumented he chose not to register for Selective Service and therefore expose himself to deportation?  Especially given that the purpose of Selective Service is to identify men to conscript into military service for a country for which, at the time, the applicant had so few rights that he could be held in almost indefinite “detention” (read, “imprisonment”) without the right to free legal counsel, without the protections of criminal defendants against search and seizure, and yet he was widely dubbed a “criminal” and treated as a criminal.  In the balance, I feel that even a willful failure to register for military conscription for someone whose rights and options were already so limited should not be a bar to naturalization.

Please visit us at our address below for more information.

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

Children of Invention

Wednesday, January 26th, 2011

For you film buffs out there, especially those looking for less mainstream fare, I highly recommend Children of Invention, directed by Tze Chun.

The film is about a single mother from Hong Kong and her two children who are having a hard time of it.  Their house is foreclosed on, they end up squatting illegally in a model condo, and the mother, Elaine Cheng (played by Cindy Cheung), after having been scammed by one multi-level marketing (MLM) company, continues to chase down the dream of hitting it big with another MLM.  To tell you more would spoil the film for you.

I will tell you that the film is on topic for this blog.  Check it out if you get the chance.  I caught it on www.hulu.com.

New York Gov. Paterson’s pardon – a valid exercise of state authority on immigration matters

Thursday, November 11th, 2010

In comparison to Arizona’s S.B. 1070, a state law that attempts to make the enforcement of immigration violations a state function, New York’s governor, David Paterson, has modeled a way that states can impact immigration matters in a constitutionally permissible way.

Some basic background information:  Criminal law in the United States exists at both the federal and state level.  There are federal crimes and there are state crimes.  People living in the United States who are not U.S. citizens (even long-time legal permanent residents) can be deported if convicted of certain crimes, including state criminal convictions.  A pardon, however, can often erase the effect of that conviction for immigration purposes.

A pardon for a state criminal conviction is squarely within the authority of the state governor.  In an effort to prevent the deportation of individuals who have, since their convictions, transformed themselves into worthy and contributing members of society, Gov. Paterson has set up a panel to review these cases for eligibility for pardon.  For most if not all of these individuals, this is their only chance, under current immigration law, to stay in the United States, where they have lived most of their lives and where they have established families and become part of their local communities.  In some cases, individuals have already served out their criminal sentences but still face deportation.

A spokesperson for the Federation for American Immigration Reform (FAIR), a group that favors reducing immigration levels, responded to this initiative by stating, “as a general rule, we would be opposed to governors or other local officials stacking the deck so that people who could legitimately be deported get to remain in the country[,]“ and further, that the Governor was “circumventing Congressional authority.”

Let me address each point raised by FAIR in turn.

The first objection is that anyone who has been ordered deported, regardless of their current circumstances or the harshness of the penalty on the individual, should be deported.  This hard-line position does not care about individual circumstances.  Every deportable alien is a throwaway person, not deserving of case-by-case treatment.  This position cannot take into account the benefit that the individual might bring to the community in which he or she now belongs, or the cost and pain associated with tearing that individual away from that community.  It reflects an attitude that rules must be blindly and rigidly applied and should always be bright-line and clear, black and white.  Basically, “You break the law, you’re out of here.”

So, how has this approach worked for us in our schools, with our Zero Tolerance policies?  Every week, I read of some new ridiculous school action driven by zero tolerance philosophy that punish the very children that it is supposed to protect.  The kid whose grandmother packed him a knife to cut his birthday cake who ran afoul of a no-weapons policy comes to mind, and there are countless other examples.  Children end up suspended or expelled because of actions that happen to fall within the zero tolerance zone, but who were never intended by the original proponents of the rules.  Applying the same thinking, that is, if-they’re-deportable-then-let’s-deport-’em approach, we end up deporting people who might remain in the country by way of a gubernatorial pardon.  These individuals may be legitimately deportable but they also have a legitimate shot at changing their eligibility for deportation.  There is nothing inherently wrong with exploring an available legal option.

As for the second objection, that Gov. Paterson is circumventing federal congressional authority, I wonder if FAIR raised this same objection to AZ S.B. 1070?

Most if not all state constitutions grant governors the authority to issue pardons and don’t place too many restrictions on how they can use this power.  This is a provision meant to inject flexibility in what might be otherwise inflexible situations.  Gov. Paterson is well within his authority to choose to exercise this authority generously.  Federal immigration law does not forbid state governors from exercising their right to pardon individuals for state criminal convictions and any attempt to do so would be a violation of states’ rights.

For FAIR to say that Gov. Paterson’s actions circumvent congressional authority, well, this is just not true.  What FAIR really means, I would hazard, is, “We don’t like it when government acts to help immigrants who have shown themselves to be unworthy.”  Of course, it doesn’t seem to matter to FAIR what the overall weight of an individual immigrant’s conduct over his or her lifetime might be, just that that person landed himself or herself in jail in the first place.  Following this philosophy, we really need to build a lot more prisons (I think the prison lobby has this well in hand), because there should be a lot more people in prison and who should be kept in prison for the rest of their lives because at some point they did something bad, hurt someone, and broke the law.  No one is salvageable.  Everyone must pay for their mistakes, and keep paying until they are dead or gone.

From my point as view as an immigration lawyer, I respectfully suggest that this zero tolerance approach is not wise nor humane.  For those of you who subscribe to the FAIR philosophy, I urge you to acknowledge that when we talk about immigrants we are dealing with fully-fledged human beings, not just ‘aliens.’  A person can do bad things and yet become a good person.  Some of these individuals have already served out their sentences.  Should they keep on paying for their mistake after they have already paid?  Sometimes second chances are warranted.  Deportation for those who only know America as their home can be a harsh fate, and hurts not only the deportee but their family members too.  No one is arguing that every immigrant convicted of a crime should be pardoned.  Rather, Gov. Paterson is employing an approach that weighs the individual’s crimes against his good deeds.  The pardon power is already embedded in the state constitution, and is a far cry from a circumvention of congressional authority.  Rather, it is the valid exercise of state authority that happens to affect immigration status.

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

Prison industry drove passage of S.B. 1070, according to NPR

Monday, November 1st, 2010

Here’s a story that NPR broke on October 28, 2010, regarding how the prison industry drove passage of Arizona’s immigration law, S.B. 1070. Not just an interesting read for immigration lawyers, but for anyone that may be affected by similar issues.

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

Florida’s copycat S.B. 1070 – exempting Canadians and Europeans

Friday, October 22nd, 2010

Here’s an example of draft legislation illustrating the thinking of the sponsoring politician. In Florida, Republican state representative William Snyder has crafted an immigration bill modeled on Arizona’s S.B. 1070 that specifically exempts Canadians and visa waiver program countries, that is, mostly European countries, with a smattering of former European colonies and affluent Asian nations, from the provisions of the bill.

Let me explain.  Representative Snyder’s bill, like S.B. 1070, requires law enforcement personnel to try to determine the immigration status of anyone they encounter in a lawful stop, detention, or arrest, if they have “reasonable suspicion” to believe that that individual is an undocumented immigrant.  This requirement to ascertain immigration status, however, does not apply if the detained person flashes a Canadian passport or a passport from one of the 36 visa waiver program countries. In effect, Canadians and most Western Europeans and the other lucky nationals of visa waiver countries get a free pass under this proposed legislation.  Police are just supposed to drop their “reasonable suspicion” of the undocumented status of these foreign nationals upon presentation of their passports.

I have to make a brief detour here, back to a point I’ve made in a prior post about what we’re asking law enforcement personnel to do under S.B. 1070 and its copycat bills.  So, presumably police officers, state troopers, and sheriffs and their deputies, etc., are supposed to keep a little cheat sheet of the current list of visa waiver countries in their smartphones, or maybe a link to the Department of State website of which countries participate in the visa waiver program, because this list isn’t set in stone and countries come and go.  Or maybe law enforcement personnel will just be expected to memorize this information, like definitions of crimes.  But in any case, in the event of a law enforcement encounter with an individual who the officer suspects may be in the United States illegally, when that officer looks over that person’s immigration papers, the officer will then have to think, “Hold on, is Andorra one of the visa waiver countries?  Should I radio this back to headquarters?”  Is this really what we want to put our law enforcement personnel through?

But anyway, back to the main topic.

If I had to try to justify this exemption of Canadians and nationals from visa waiver countries in Representative Snyder’s bill, I would hazard to say that the thinking was that Canada and the visa waiver countries might be a convenient short-hand for foreign nationals unlikely to be undocumented immigrants.  I’ll note, though, that one country, at least, is both a visa waiver country and one of the top 10 countries of origin for undocumented immigrants.  I would be curious to see a recent top 20 list to see how much overlap there is between the 36 visa waiver countries and the countries of origin of undocumented immigrants, but the Department of Homeland Security only seems to provide the top 10 countries, leaving 1.65 million people labeled unhelpfully as coming from “other countries.”  (In a 1996 report, INS listed 20 countries; but the most recent report only lists the top 10.)  However, this is not the reason that Representative Snyder put forth when questioned about this part of his bill.  His exact words:  “What we’re doing there is trying to be sensitive to Canadians. We have an enormous amount of … Canadians wintering here in Florida … That language is comfort language.”

Let me translate this.  Canadian tourists spend a lot of money in Florida.  Let’s not alienate them, or the mostly European visa waiver nationals, by holding them accountable for obeying our immigration laws.  We only really need to kick out the Latinos and Africans and Asians because they don’t contribute as much to our tourism economy and, well, to be honest, we all know that these are the real riff-raff that cause all the problems in the state.

Is there any other way to interpret this provision of Representative Snyder’s bill?

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933