The Golden Door

Yesterday was Constitution Day.

I had the honor to take part in a public action at the Constitution Center, across from Independence Mall, calling for independent immigration courts insulated from political pressure.

My fellow speakers included Hon. Charles Honeyman (ret.), a former immigration judge, who spoke about upholding his oath to protect this country from all enemies, foreign and domestic, and how it has become increasingly impossible to both uphold that oath and follow the directives of the Department of Justice about how to do that job.  We heard from Rep. Mary Gay Scanlon, a Congresswoman who has seen firsthand the dehumanizing conditions inflicted on immigrants at our southern border and who can, should the Senate have the will to do it, be part of the Congress to enact reforms to re-align our laws with the immigration needs of our economy and society.

I heard from my colleague Tom Griffin, who reminded us to take the broad view, that immigration is an organic movement of people motivated by the need to survive and thrive, and that our actions as a powerful country abroad sow the seeds of migrations worldwide; addressing the root causes of migration is what will really affect immigration.

I heard from Steve Paul, Haitian American activist, who reminded us of Haiti’s proud and tumultuous history and of America’s role in creating the dangerous conditions there today.

I heard from Bridget Cambria, a true hero (I do not often use this label; here it is truly deserved) along with her colleagues at ALDEA, who briefly summarized the gargantuan efforts (five appeals!) needed to secure simply a fair hearing for a 7-year old girl named Maddie, to prevent her from being deported while her case had not yet been fully or fairly heard in a court of law. It was only when the case was heard by an Article III judge not under the aegis of the Department of Justice that justice began to be served. Bridget explained that the root cause of this problem — the lack of a fair process — is Congress’ decision to strip Article III courts of jurisdiction over most deportation cases, thus allowing immigration courts and the BIA, all directed by the DOJ, to operate without effective constitutional oversight. This means the Executive branch has no effective check or balance on how it treats immigrants in certain deportation proceedings. The Judicial branch’s hands are tied. Congress can change these laws. We can elect a Congress that will change these laws.

I heard from fellow bar presidents Jennifer Gomez Hardy (Hispanic Bar Association of Pennsylvania) and Dominique Ward (Barristers’ Association of Philadelphia), who noted the disproportionate effects of immigration enforcement on communities of color and the disproportionate lack of leaders from these communities in the rooms where decisions are made.

Here are my remarks from yesterday:

Hello – my name is Djung Tran and I’m an immigration lawyer and a proud member of AILA Philadelphia. I’m also the president of the Asian Pacific American Bar Association of Pennsylvania (APABA-PA).

 I am an immigrant. I have also been a refugee.

 The people who appear in our immigration courts are on a journey, hoping to make America their permanent home.

These people deserve an opportunity to be heard, for all relevant factors to be considered, and for the law to be accurately applied, before decisions are made on their case. Right now, our judges are being asked to finish up cases as quickly as possible, without regard to proper outcomes. Under our current system, when the lawful decisions of our judges do not please this administration, that judge’s authority to make decisions can be taken away. This is an insult to the work that our judges put in to understand a case and to apply the law, and places a thumb on the scales of justice.

 We need an immigration court system that makes decisions based on laws passed by Congress, not directives from the White House that have never been enacted into law. We need judges who can issue decisions independent of pressure from political appointees, without fear of reprisal. We need independent courts not just to provide a fair process to immigrants, but to uphold our founding principles – to be a nation ruled by laws.

 The people who pass through our immigration courts are an earlier version of me. They are an earlier version of you, your parents, your grandparents, or your great-grandparents. They deserve a chance to make their case to become part of the fabric of this country. They are an earlier version of US, and we owe them a chance to be heard in more than a kangaroo court. This is why I am here today, to ask you to join us in working to ensure independent immigration courts.

If you are interested in learning more about how our immigration courts can be reformed to better serve their purpose, look up Article I courts, such bankruptcy courts. Housing an important judicial function within the Executive branch has never made sense; now, it makes less sense than ever.  Here is a link to get you started:  https://www.fedbar.org/government-relations/policy-priorities/article-i-immigration-court/.

I was interviewed by the Philadelphia Inquirer about K-1 fiancé visas in the aftermath of the San Bernardino mass shooting, where a young married couple killed 14 people and injured 22 others.  You can read the article about K-1 visas here:  Philadelphia Inquirer:  ”Engagement visas in spotlight.”  The wife in that couple originally entered the country using a K-1 visa.

K-1 visas are a means for U.S. citizens to get to know a potential spouse better in the United States before committing to marriage.  Eliminating the K-1 visa would mean that U.S. citizens would in some cases plunge into marriage before they are ready, as there would be no other way in some instances to bring the intended spouse to this country to get to know him or her better.  Sometimes, it is important to the U.S. citizen to marry here in the United States, with their close family and friends as witnesses, rather than abroad.  In others, the U.S. citizen wants to see how well the potential spouse adjusts to the cultural and language differences of living in the United States before committing to marriage and the immigration process.  These are legitimate reasons to want to bring a fiancé/fiancée to the United States before marriage.  The fact that the wife in the San Bernardino shooting entered the country on a K-1 visa brings new scrutiny to this type of visa, with rumblings of more restrictions or a total suspension (pursuant to one bill introduced in the House) of this type of visa.

If the K-1 program had not existed, the wife in the San Bernardino shooting would probably have applied to enter on a spousal visa after marrying her U.S. citizen husband, and would have faced the same level of security checks as apply to the K-1 visa.  So, if we choose to scrap the K-1 program it would probably make us no safer, and it would limit the immigration options of U.S. citizens with regard to potential spouses.  Thus, it would not be enough to scrap the K-1 program.  To forestall any future possibility of a similar admission, we would have to eliminate marriage-based visas as well.  This would mean that any U.S. citizen or permanent resident contemplating marriage with a foreign national would have to move abroad to be with that person.  Is this something we are willing to do in the name of national security?

As many of you have heard, on November 20, 2014, President Obama announced significant changes in how some of our immigration enforcement actions and benefits applications will be handled.  The goal of these changes is to allow certain unauthorized immigrants to register with the government to apply for work permits and a temporary reprieve from any deportation action, to make the process of obtaining lawful status through family-based immigration less traumatic for certain other unauthorized immigrants, and to make it easier for foreign nationals currently in lawful status to stay in the country to launch or participate in economy-stimulating or job-making ventures, rather than take their education and skills earned here in the United States back to their home countries.

For the unauthorized immigrant population, the most significant of these changes is the creation of the Deferred Action for Parental Accountability (“DAPA”) program.  The DAPA program will be similar to the Deferred Action for Childhood Arrivals (“DACA”) program, which was first announced in June 2012.  Both programs grant deferral from deportation to a segment of the unauthorized immigrant population.  DACA benefited those who came to the United States before age 16, were under age 31 in June 2012 (this upper age limit will be lifted soon), are in school or have  successfully completed at least a high school education, and have a pretty clean criminal record.  DAPA will benefit the parents of children who are U.S. citizens or U.S. permanent residents if these parents have continuously resided in the United States since January 1, 2010, so long as they do not fall into an enforcement priority category.

I can tell you from personal experience that DAPA will benefit many people whom I have consulted with over the years.  These individuals had lived in the United States for several years at least, and some for a decade or more, and had established families here including U.S. citizen children.  Due, however, to the current state of our immigration laws there was no route for them to become lawful permanent residents and thus at the end of these consultations I had to regretfully inform them that there was nothing that I could do to help them, unless the law changes.

Well, the law has not changed, and there is still no route for these individuals to become lawful permanent residents.  But, the government is now offering a halfway measure:  deferral from deportation and a work permit for a three-year period, which in turn means a valid Social Security number, which in many cases will lead in turn to a valid driver’s license or non-driver ID card.  It is not permanent lawful status, but it is a way to be less vulnerable to things like worker abuse, or crime directed at those known to deal in cash only because they do not have access to banks or other financial institutions.  It is temporary lawful presence, although not lawful status.  Hopefully the immigrants who qualify for this benefit will help their communities be safer and less vulnerable to exploitation by criminals and scammers.

The caveat to applying for DACA or DAPA is that since these programs are executive actions they can be changed upon executive discretion, meaning the next U.S. president can terminate these programs and, if so moved, start deportation proceedings against the individuals who registered for these programs.  There is absolutely no promise that these benefits will continue beyond the Obama presidential administration.

The DAPA program will begin accepting applications in about six months’ time.  Until then, those parents of U.S. citizen and permanent resident children who  qualify for it should start collecting proof of their identity, proof of the parent-child relationship, and that they have lived in the United States continuously since January 1, 2010.  Tran Law Associates can help you identify the documents needed and help you navigate the application process.

I have been wrestling with how our government should handle the humanitarian crisis in full-spate at our U.S.-Mexico border, where unaccompanied children, as well as mothers with young children, are crossing into the United States at unprecedented rates, overwhelming our Border Patrol and other immigration-related resources.  About 52,000 unaccompanied children have crossed in the five first months of 2014, and officials estimate that if the surge keeps up, we may reach 90,000 by the end of the year.  To place this in perspective, the pre-2012 average was 8,000; in 2012, it was 13,625; and in 2013, it was 24,668.  Most of the children come from Central America, mainly Honduras, Guatemala, and El Salvador, where poverty, crime and gang-related violence are facts of daily life for them.  It is clear that they are fleeing desperate conditions and unsafe environments at home, but what we need to understand is why they choose to make the perilous journey to the United States, and why in such large numbers now.

Conservative anti-immigrant commentators have blamed the surge of unaccompanied immigrant children on the Obama Administration’s Deferred Action for Childhood Arrivals (“DACA”) program, which provides temporary, short-term deferral from deportation actions to unauthorized immigrants of good moral character who entered the United States before age 16, and were under age 32 and maintained continuous presence in the country as of June 15, 2012.  Blame is also assigned to the Border Patrol’s policy of releasing most unauthorized immigrants caught at the border, so that they may travel to stay with relatives rather than be housed in overcrowded detention facilities, with the requirement that they appear in immigration court to face deportation proceedings.  The combination of these actions, according to these pundits, has filtered down to Central America as a policy of issuing permits or permisos to stay.

Immigrant advocates emphasize the dangers that these children face in their home countries, with the children themselves listing “crime, gang threats, or violence as a reason for their emigration,” and also the desire for family reunification, but the most common reason being extreme poverty.  In short, it is unbearable to stay in their home countries, so they flee, and one study found that “The children and their families had decided they must leave and chose to go where they had family, rather than chose to leave because they had family elsewhere.  Essentially, they would be going to another country like Belize or Costa Rica if their family was there instead of in the U.S.”

So they come to the United States perhaps partly because of false rumors that they can qualify for permission to stay because they are children (the target population of the DACA program) or because of the the rumored permisos.  Partly it is because there is already a family member here.  But the most influential reason is because they they believe they will find safety and opportunity, including the ability to go to school and get jobs, here in America.

What should we do with the children who are here already?  I believe the most cost-effective way to process these children is to provide them with advocates knowledgable about immigration law so that it can be determined as quickly as possible  whether they qualify for any sort of lawful status or whether they must (and can) be returned to their home country.  They might be the immediate relatives of U.S. citizens who could sponsor them for green cards.  They might be derivative U.S. citizens themselves, a highly unlikely but possible scenario.  They might merit asylum due to persecution based on membership in a particular social group.  They might qualify for special immigrant juvenile status as minors abused, abandoned or neglected by their parents.  They might qualify for U nonimmigrant status as victims of violent crimes who are willing to help in the investigation or prosecution of such crimes as certified by a U.S. law enforcement agency.  There may be other less common lawful immigration statuses possible under current immigration law for which they qualify.  Or, they may not be deportable because their home countries will not accept them back.  If they are left to their own abilities to navigate our complex and intimidating deportation system, these children’s cases may take up to five years to process.  While it may be expensive to provide legal representation to these unaccompanied children, in the long term I believe it will cost more not to do so, including longer case processing times which will clog up our already overburdened immigration court system, and the costs to immigration agencies to monitor these children while they have the specter of deportation hanging over their heads, and the costs in their lives while their fates are in limbo, not knowing if they will be allowed to stay and establish safe lives here in America or not.  Five years in an adult’s life is a long time.  Five years in a child’s life can feel like an eternity.

Ultimately, these children will either be determined to have the lawful right to stay or not.  Even if found deportable the question then becomes will their country of citizenship accept them back.  If not, then under the law we must allow them to stay and go to school and eventually, to be lawfully employed, even if they are not granted permanent resident status, because there is nowhere for them to go should we eject them from our country.  It is better to get these questions answered sooner rather than to drag out the process based on a child’s (nascent or nonexistent) ability to advocate for him or herself.

That is my proposal for how to deal with the children now here.  The harder question is what can be done to prevent more children from overwhelming our immigration resources for little return.  Even if the Obama administration, or the next administration, rolls back the DACA program and starts detaining all unauthorized immigrants caught illegally crossing our borders (which begs the question of where the resources will come from to detain all these people), I doubt that this will deter most of this demographic of children from attempting to come.  The rumors of  permisos might make it more tempting to make the journey to America, but what really motivates these children is a desire to escape  home environments of extreme poverty and extreme violence; having relatives in the United States who can help them establish stable lives here; and the continuing perception of America as a land of opportunity where they can be safe and, with hard work, be able to make something of their lives rather than having to struggle just to survive.

One option is to “secure” our borders.  We have a very long and porous land border with Mexico (and also with Canada, incidentally).  We could build a wall or a fence along the entire border.  We could post armed guards along this fence at close intervals, around the clock.  (Are we actually prepared to shoot these children and other unauthorized immigrants?)  We could ramp up our Coast Guard to constantly monitor our coastlines for boats or ships carrying unauthorized immigrants.  We could constantly search for exits to underground tunnels under the border ending in warehouses in U.S. border cities.  We could do all these things, at great cost, but still determined intending immigrants would find a way to come if the stakes are high enough for them.  Would you be deterred by these measures if you thought you have nothing left to lose and a land of opportunity to gain?

We could treat these children as harshly as possible, until they “self-deport” and tell others not to come to this land of prisons and interminable deportation proceedings, like Edgar Chocoy-Guzman, whose story has been retold in the play De Novo (which I reviewed in an earlier post).  Once apprehended, we could house them in overcrowded, bare-bones facilities, or detain them at taxpayer expense in prison, taking away their freedom of movement.  We could make the deportation process incomprehensible and impossible to knowledgeably navigate by denying them legal representation.  Under such circumstances, many children would eventually lose hope in their quest to live safely in America and perhaps voluntarily return to the dangerous, wretched homes they left.

The costs of driving these children away is high, and for what return?

Or, as audacious as this might be in today’s political climate, we could embrace them as aspiring Americans, provide them with lawful immigration status, allow them to obtain an education and then enter the workforce legally, and then see how they contribute to our society and to our economy.  Immigrants, compared to native-born populations, tend to be willing to take more risks, and be more entrepreneurial, creating new businesses and new opportunities when more mundane careers as employees are closed to them because they are newcomers in their communities.  These are characteristics that any country aiming to remain economically vital needs in great supply.

The title of this blog is The Golden Door, from the poem The New Colossus by Emma Lazarus.  The lines of this poem, engraved on the base of the Statue of Liberty in New York City, conclude with this exhortation:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

Once we as a people believed in this sentiment, deeming it worthy of being permanently ensconced on a compelling symbol of our democracy.  These children are the living embodiment of the huddled masses in The New Colossus:  they are the homeless, the tempest-tost yearning to breathe free.  We have taken in such populations before, and have been repaid with innovation and invention and renewed vitality.  I posit that accepting rather than driving away these desperate immigrant children will ultimately repay us in a strengthening of our society, an investment in our future as a diverse and humane nation that can absorb all different kinds of peoples and cultures and still remain uniquely American.