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The Golden Door

News and views on immigration law

Rumblings of immigration reform…

February 1st, 2013 by Djung Tran

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.

Immigration Reform – hopeful and wary

January 26th, 2013 by Djung Tran

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.

 

False claim of U.S. citizenship – beware this pitfall!

January 19th, 2013 by Djung Tran

As an immigration attorney, I find it important to make people aware of this potential pitfall. It may seem like a minor thing.  You, a non-U.S. citizen and lacking working papers, fill out a job application and check the box that says you are a U.S. citizen.  If you don’t check it, you don’t have the documents to prove that you’re eligible to work.  If you do check it, you get the job.  You know it’s probably against the law, but it’s what you need to do to get a job and pay the bills.

And it’s not like you’re going out and robbing someone, dealing drugs, or committing some sort of violent crime.

But, under immigration laws, the penalty for making a false claim of U.S. citizenship is the heaviest one available:  deportation without the usual avenues for relief.  If you are convicted of making a false claim of U.S. citizenship you are ineligible to apply for Cancellation of Removal, the same as if you are an aggravated felon or drug trafficker, or committed certain crimes of moral turpitude.  So the act of checking the “U.S. citizen” box on an I-9 form can land you in the same hot water as if you had  been caught dealing drugs or assaulting someone with a deadly weapon.

Harsh reality, but reality it is.

The Child Citizenship Act – derivative citizenship through a parent’s naturalization

January 18th, 2013 by Djung Tran

I recently encountered a gentleman who lives under the cloud of a deportation order that cannot be executed.  He spent six months in immigration detention, the end result of which was he was released because while he was ordered removed from the United States his country of origin will not accept him.  So he is not – currently – removable (deportable), but that could change if a new treaty regarding acceptance of deportees is signed between the U.S. and his country of origin.  Under immigration law, he is classified as an aggravated felon and a drug trafficker, factors that made him ineligible to apply for relief from removal such as Cancellation of Removal, even though he has U.S. citizen relatives.  So, he thought he was really at a dead end in terms of avoiding potential deportation.

He came to me because he came across something that made him think that he might, after all this, already be a U.S. citizen, which would make the specter of deportation hanging over his head simply disappear.  ICE cannot deport a U.S. citizen.  (Well, it happens, but it is not supposed to.)

The Child Citizenship Act of 2000 (“CCA”) changed the conditions that a person needs to meet to derive citizenship through a parent’s naturalization.  To “derive” citizenship means to obtain it through your relationship to someone else, usually a parent, both parents, or a grandparent.  Before the CCA, which went into effect on 2/27/2001, for someone to derive citizenship through naturalization, all of the following conditions had to be met:

1.  The person had to be under age 18.

2.  The person had to be a U.S. lawful permanent resident.

3.  BOTH the person’s parents had to naturalize before the person turned 18, UNLESS the parents had legally separated and the custodial parent naturalized before the person turned 18, or UNLESS one parent had passed away and the remaining parent naturalized before the person turned 18.

Derivation means you obtain the benefit automatically.  You have the status of U.S. citizen as of the moment you meet all of these conditions.  You do not need to apply for it, you already have it.  It’s advisable to get proof of your status, like a certificate of citizenship or a U.S. passport, but not necessary.

So, having one parent who naturalized before a child turned 18 was usually not good enough for a child born abroad to parents who were not U.S. citizens at the time of the child’s birth.  This created the strange incentive of – in the case of having only one naturalized parent – some individuals trying to prove that their parents were legally separated to obtain citizenship, even when the parents were happily still married to each other.  Public policy usually does not intentionally promote separation of families.  (One could argue that public benefits programs sometimes unintentionally promote separation of families, but that is a topic outside the scope of this blog.)

The CCA took away the requirement that BOTH parents be naturalized and in its place permitted children to derive citizenship from ONE naturalized parent, so long as, the same as under the prior law, the child was under age 18, a lawful permanent resident, and in the legal and physical custody of the naturalizing parent (which does not preclude the child also being in the legal and physical custody of the other, non-U.S. citizen parent).

But the CCA also, by its very enactment, added a new, time-limiting factor.  This was not a retrospective law so the child had to still be a “child,” that was, under age 18, when the law went into effect, on 2/27/2001.  So derivative citizenship can sometimes hinge on your birthday.  If your 18th birthday falls before 2/27/2001, you had to determine your eligibility to derive citizenship based on the first, more stringent set of factors listed above.  If your birthday falls on or after 2/27/2001, you could use the more lenient standard contained in the CCA.

It may seem unfair, to have your citizenship status in the end be determined by your date of birth, but that’s just one of the quirks of immigration law, and those of us who practice it must sometimes parse out eligibility for relief down to the very day a client is born.

Prisons and immigration enforcement

October 1st, 2012 by Djung Tran

Here’s an enlightening article about the costs of incarceration and, incidentally, how much increased immigration detention has contributed to the coffers of the private companies that run prisons:  “Prison Break.”

The increased emphasis on immigration enforcement means keeping more people detained, which is a costly endeavor, both in money and human costs, as illustrated on this page of the Detention Watch Network website.

And for those interested in learning more about the state of immigration detention – which is supposed to be merely detention, not punishment, because individuals are held while their status is determined, NOT because they are found guilty of any crime – here’s a report on the use of solitary confinement in immigration detention:  Invisible-in-Isolation-Sep2012-detention. (See the Executive Summary for a quick overview of the findings.)

There’s lots more about this issue.  These three sources are just an introduction.

Dos Erres: An international investigation impacting citizenship and asylum

September 28th, 2012 by Djung Tran

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

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

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

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

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

“Have you ever …. [in America]?”

September 4th, 2012 by Djung Tran

Lately, I have been encountering a way of thinking that can have dangerous results in immigration applications.  I call it the “If it didn’t happen in America then it didn’t happen” syndrome.  The thinking here is that when an applicant is asked specific questions on immigration applications such as “Have you ever been married?” or “Do you have any children?” or “Have you ever committed a crime?” the applicant responds “No” – even when there has been a marriage, or children, or criminal history – when these events happened outside of the United States.  But, not surprisingly, the answer is only “No” when the applicant believes that to say “Yes” would be detrimental to the application.  When the event that occurred outside the United States would be clearly beneficial, such as when the foreign national applicant married a U.S. citizen abroad, then the answer is “Yes.”

Ironically, sometimes a “Yes” answer would have no adverse consequence but a false “No” may.  For instance, a naturalization applicant told me that she had been married and divorced in her home country prior to emigrating to the United States as the adult, unmarried child of a refugee.  However, she had never disclosed the marriage, answering the question “Have you ever been married?” with a “No,” and the question “What is your marital status” as “Single, never married.”  The fact of her prior, terminated marriage is not a negative factor in her naturalization, as it did not affect her eligibility to be categorized as an adult, unmarried child of a refugee, but the fact that she did not truthfully answer the question, if known, would factor into an assessment of whether she possesses the good moral character needed to naturalize.

The justification for this syndrome is usually:  “But since it didn’t happen in America I thought it didn’t count.”  My response to this is that USCIS wants to know about your conduct before you came to the United States, not just after you arrived.  If we take this thinking to its logical, ludicrous conclusion then the very fact of the your birth abroad should not be taken into account, or your education and work experiences attained abroad should not be credited to you, and you should not now be eligible for an immigration benefit.

Sometimes, the applicant’s response to my saying that we need to disclose events that happened abroad in response to direct questions is:  “But no one will ever know.”  In many cases, this may be true.  It is difficult to prove the existence of a marriage or birth of children that occurred in another country when USCIS has no inkling that they exist, and even criminal convictions may not show up on national criminal background checks.  However, failure to disclose such facts is lying or deliberate misrepresentation, and I am not going to let my client lie on an application.  If my refusal to lie on behalf of my client is a problem then the applicant is welcome to seek other counsel.

I also point out, for those who seem to be motivated by self-interest more than the desire to act with integrity, that if for some reason the truth comes out later then this becomes a potential issue of immigration fraud and the applicant may be stripped of all immigration benefits (a visa, lawful permanent resident status, citizenship) that were issued based in part on that lie.  Sometimes that argument is persuasive to the applicant.  Sometimes not.

Occasionally, I think clients regret telling me the truth, thinking it would have been so much easier to lie to me as well as to immigration authorities.  Be that as it may, once I know something I am not going to pretend not to in order to continue a case.  And, if you get in the habit of lying to your attorney you will likely get incorrect advice in response, based on your incorrect information.

As you can tell, I don’t have much sympathy for this type of selective amnesia.  You are who you are, and you did what you did, and I am not going to help you lie to avoid the consequences of your conduct.  I will help you address your actions, and put them in the best light possible, and apply for any forgiveness that is available, but I will not help you deceive your way out of the consequences of your actions.

So, when you are asked a “Have you ever…” question, please don’t insert your own spin on it.  Just answer the question as it stands.

Deferred Action for Childhood Arrivals – a mixed blessing

September 4th, 2012 by Djung Tran

On June 15, 2012, the United States Department of Homeland Security announced the introduction of a program known as Deferred Action for Childhood Arrivals.  The new program has been both hailed as a positive step for undocumented immigrant youth, reviled as a run-around Congress by the Obama administration, and received by immigration lawyers as a mixed blessing.  The program, known as “DACA,” which started accepting applications as of August 15, 2012, would grant two years’ of work authorization and a contingent promise not to attempt to deport during that period those undocumented immigrants who, on June 15, 2012, came here before age 16, are not yet 31 years old, are attending or have completed high school or served in the U.S. armed forces, and have a clean criminal history or one that is fairly minor in character.  I won’t get into the nuances of the criminal provisions here, which could be a whole other posting.

DACA is not a statute enacted by Congress and signed into law by the President.  It is not a regulation promulgated by an administrative agency after a period of public comment.  It is a policy put into effect by the executive branch acting through its authority to choose how to implement statutes and regulations.  An administrative agency has some scope of discretion in how it enforces the statutes and regulations that govern its mission, and under the Obama administration the Department of Homeland Security has interpreted its enforcement priorities to mean that it will direct its finite resources towards violent and repeat criminals and serious immigration violators first, and put those whose only sin is having come to the United States as children – often without any choice in the matter, who have lived good lives since then and become valued members of their communities – last.

Although there appears to be some confusion about what DACA is, let’s not mislead anyone:  DACA does not provide a path to lawful permanent resident status or U.S. citizenship.  It does not even provide legal immigration status.  What it provides, and the only thing it provides, is work authorization and a valid social security number and a contingent promise of deferred action with regard to deportation.  As I stated to Michael Matza, a reporter at the Philadelphia Inquirer, on this very issue, you get employment authorization, which is very valuable, but the downside is that you raise your hand and say, ‘Here I am,’ and give your information to the government.  Before, you were under the radar.

Another consideration is how state and local governments will respond to DACA.  Some state government officials, such as in in Arizona and Texas, have already vowed to close off state-level benefits such as driver’s licenses to DACA beneficiaries, in protest of a perceived Obama administration run-around Congress’ refusal to pass the DREAM Act.  (The DREAM Act is proposed legislation that would provide a path to lawful permanent resident status to undocumented, educated immigrant youth with clean criminal records.  If you want to read more about it, here is a good place to start:  American Immigration Council.)

To even get approved for DACA, applicants must face certain thorny issues of proving eligibility.  For undocumented immigrants who have been living quietly away from the attention of governmental authorities, and who have been leery about providing any perceived authority figure with identification information, proving that they resided or went to school in the United States at a certain time and age can be difficult.  And, of course, there will be those who do not meet the timing requirements but who will try to falsely prove that they do anyway.

The benefits, work authorization and a valid social security number and a contingent promise of deferred action with regard to deportation, while of real value to those who have lived here most of their lives but cannot legally work in the United States, must be weighed against the potential cost of voluntarily identifying oneself to a government that may change its mind about DACA at any time.  If you read through the official statement about DACA on the USCIS website you will see this ominous sentence:  “This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”

So, while DACA is a welcome addition to the immigration benefits available to those known as DREAM Activists, it is quite limited in scope and the pros and cons of filing an application need to carefully weighed before submitting the application.  Here at Tran Law Associates, we will counsel you on the benefits and costs of DACA before signing on to represent you.  Although the decision of whether to apply for DACA is, of course, your decision to make, it is our responsibility when you come to us for help to make sure that it is a fully informed decision.

Asian exceed Latinos in immigration to the United States

September 3rd, 2012 by Djung Tran

You may have noticed it yourself — the number of documented Asian immigrants to the United States has exceeded that of Latino immigrants.  A recent Pew study has documented the numbers.  The study finds that the current crop of Asian immigrants tends to be both better educated than other immigrant groups and better educated than their peers in their home countries.  Asian immigrants also will be more likely to enter the United States through employment-based immigrant petitions than other immigrant groups.

Although my family entered the United States on a family immigrant petition, my mother, who was a computer programmer knowledgeable in Pascal, COBOL, and ADABAS-Natural – computer languages highly sought after in the United States in the late eighties and early nineties – was also a potential candidate for an employment-based immigrant petition.  In other ways my family fits the trend documented by the Pew Study.  My father has a medical degree, my mother a law degree.  My brother and I were too young to have accumulated advanced degrees at the time we came to the United States, but I eventually got my bachelor’s and law degree, and my brother has a bachelor’s and a master’s and is working on a second master’s.  My parents and I were recently mentioned, among others, in a Philadelphia Inquirer article about the changing trend in immigration.

However, trends can sometimes obscure individual realities, and serve as a convenient excuse to ignore vulnerable, needy populations.  While currently arriving immigrants from Asian countries may include a high proportion of highly skilled and educated individuals, this does not mean that all Asian immigrants are so well off that they do not need help and outreach.  Asian immigration over the history of America has included waves of laborers and refugees as well as educated professionals.  Refugee populations in particular can be particularly vulnerable when learning how to live in a new country.  Refugees generally do not arrive in an orderly, planned fashion, bringing with them money and resources and perhaps English language ability already.  Refugees can arrive in a new country with a few meager belongings, few or no relatives with them or already in place to support them, few work skills, limited education, and not knowing how to speak the language of their new home.  Asian refugees often come from Vietnam, Cambodia, Laos, Burma, Indonesia, Pakistan, Afghanistan, and East Timor.

Refugees are displaced people.  People who can no longer live in their home countries for fear of losing their lives or those of family members.  They often need intensive support services from government, private non-profit agencies, and informal community networks to adapt well to their new homes.  Sometimes support services are available, and sometimes they are not, and refugees have to make do.  It may not be too surprising then, that some Asian immigrants, especially those from refugee backgrounds, still struggle to get by and still need support services.

While I am glad to think that more and more of the incoming Asian immigrants today are highly skilled and educated, and will probably become valued and sought-after employees and dynamic entrepreneurs, I know from personal experience that this is just one facet of Asian immigration.  Like most things in life, while labels and categories are convenient to help organize our thinking, they should be a guide only, and not become rigid walls that stop us from recognizing the real factors that affect people’s lives.

A tribute to a Vietnamese mother on Mother’s Day

May 13th, 2012 by Djung Tran

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

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