Image 01

The Golden Door

News and views on immigration law

Posts Tagged ‘unauthorized immigrant’

Lawyers for detained immigrants

Friday, August 9th, 2013

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

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

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

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

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

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

Rumblings of immigration reform…

Friday, February 1st, 2013

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

My first impression:

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

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

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

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

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

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

Immigration Reform – hopeful and wary

Saturday, January 26th, 2013

In immigration circles there’s a feeling in the air that we may actually get comprehensive reform this year.  President Obama has clearly put his support behind it, and a small group of Democratic and Republican senators are working on hammering out a core set of principles that both sides can agree on prior to drafting any proposed legislation.

Immigration reform can mean a lot of different things, depending on what you think is wrong with the current system.  Some people think it is too harsh, penalizing infractions of law in ways that are disproportionate to the violation and tearing apart families, and in doing so often hurting U.S. citizens.  Others think it is too lenient, not holding people adequately accountable for violations or deterring future violations.  When we talk about immigration laws, we have to think about authorized immigration – the foreign nationals who come (or want to come) to the United States on visas, whether to visit, work, go to school, or who permanently immigrate here based on family ties or work skills; and unauthorized immigration – the foreign nationals who enter without inspection or enter using a visa and then overstay, becoming unlawfully present.

There is plenty of room for improvement in our existing scheme of distributing visas, especially if one thinks, as I do, that we should increase the number of authorized immigrants we permit to join our ranks.  One of the most frustrating issues in immigration is the visa quota system, which creates huge backlogs in several categories of both family and employment-based immigration.  Backlogs of two to 24 years exist in the family-based quota-limited visa categories.  Backlogs of five to ten years exist in the most popular employment-based visa categories.  (See Visa Bulletin.)  These backlogs undermine the policy considerations that created these categories of visas in the first place:  promoting family reunification and helping U.S. businesses employ qualified workers when such cannot be found in the existing pool of local U.S. workers.  The promise of family reunification or employing qualified workers from abroad becomes effectively meaningless when one has to wait an average of 12 years to bring a sister and her family to the United States, or a business has to wait six years to hire the worker it needs.

While these considerations are particularly frustrating to those of us who deal with immigration on a daily basis, the more attention-grabbing aspect of immigration is the unauthorized immigrant population.  There are an estimated 11.5 million unauthorized immigrants in the United States, according to the U.S. Department of Homeland Security.  Declarations that this population should be deported or should  “self-deport” are unrealistic to say the least.  These are people who have built their lives here, and whose children, whether born in the United States or not, have grown up here and know America as their home.  Most people left their native countries, which was no small step – leaving family, friends, everything that is familiar and dependable – because they could not see any hope in the future for themselves and their children there.  Yes, they violated our immigration laws to come here.  Yes, we should impose a consequence for that violation.  But it is unrealistic to try to identify and then lawfully deport all 11.5 million or more unauthorized immigrants.  Making life so unpleasant for unauthorized immigrants that they will leave of their own accord – well, what level of unpleasantness is enough to convince someone to return to a place where they had no hopes for their future?  And what level of unpleasantness are we willing to stomach to achieve this goal?  I think the answer is that we, as a nation, believe in human rights, and to get a person to the point where he or she is willing to self-deport would require suspending our respect for human rights.  I have to believe we are not ready to do this.

Whatever your view on the appropriate penalty to be levied for unauthorized immigration before the immigrant can get his or her green card, one unfortunate reality for this population is that its members can be uniquely vulnerable to scammers.  Many unauthorized immigrants, even those who have lived in the United States for many years, do not speak English.  (I’ve already expressed my views, as an immigration attorney, on long-term immigrants who still do not speak English in this blog.)  Those who do speak some English may still rely on media sources in their native language for news.  Already, I am hearing rumors of ethnic language newspapers reporting that a route now exists to lawful status for unauthorized immigrants.  For someone without their legal papers, including work authorization or a driver’s license and social security number, getting lawful immigration status can mean being able to bank instead of always using cash, being able to drive legally instead of relying on others or driving in fear of being stopped by the police, and being able to go to the police for help without fear of being reported to immigration authorities, among many other things.  For people in this situation, the hope of getting a green card can be used against them.  Unscrupulous ethnic “services brokers” promise that they can get the immigrant their papers if they pay a (usually exorbitant) fee.  Filing a petition for a green card when you are not eligible can result in being placed in deportation proceedings.  So the prospect of comprehensive immigration reform, including a path to lawful status for non-criminal unauthorized immigrants, while a reason for cautious optimism, also creates opportunities for hucksters to ply their trade.  For those of you who know unauthorized immigrants (which of us does not?), please tell them to be careful of promises of a “guaranteed green card” if they just pay the fee.  No such thing exists.


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.