Image 01

The Golden Door

News and views on immigration law

Archive for October, 2010

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

Loma de Buenavista – responding to AZ S.B. 1070

Friday, October 8th, 2010

Let me begin by saying that I do not support or agree with Arizona’s anti-immigrant law, S.B. 1070.  I believe that S.B. 1070 is not good law and not good policy.  It is not good law because immigration is federal law, not state law. Any state or local law that interferes with one area of the immigration system without corresponding adjustments in other areas makes it harder for the federal government to balance competing interests and effectively manage the entire system.  It is not good policy because it delegates to law enforcement personnel a function that is highly specialized and difficult to carry out — ascertaining immigration status, which even immigration agents sometimes have trouble doing — and requires law enforcement personnel to take on this function in addition to their current responsibilities.  It is an invitation to racial profiling.  It is also not good policy because it has a chilling effect on immigrant communities in general, whether documented or not, and thus casts too wide a net for its purported goal of combating illegal immigration.  It discourages immigrants from interacting with law enforcement and makes it harder for police to establish good working relationships with immigrant communities in order to prevent and solve crimes.  Immigrant communities are already targeted by criminals who take advantage of this very fear, that the police are the enemy.

All this is not to say that the purported concerns that drove passage of S.B. 1070 are not valid concerns:  to reduce violent crimes and drug and human trafficking crimes committed by undocumented immigrants; fear that the violence from Mexico’s drug wars would increasingly spill over the border; and lack of adequate immigration enforcement at the federal level that allows large numbers of undocumented immigrants to enter Arizona almost at will.  I agree that the federal immigration system needs an extensive overhaul, including effective deterrents to illegal immigration, effective tools for enforcement, unclogging the routes of legal immigration to encourage those we want to come to America to come speedily and contribute to our economy and society, and ensuring that employers who cannot find American workers can legally employ immigrants to do the job.

But on balance, I believe that S.B. 1070 goes too far in infringing on the rights of legal immigrants, chilling relations between immigrant communities and law enforcement, and injecting into the immigration system a wild card element not controlled by federal immigration authorities.  Let’s think through the consequences of all these undocumented immigrants who hypothetically will be picked up under the new law.  These individuals will be handed over to federal immigration authorities, who will then be faced with the problem of what to do with them.  Detention facilities are already overcrowded, and the money to feed and house these additional new detainees, who federal immigration authorities have not designated a priority to deport, will come out of the federal taxpayer dime.  Actually deporting these detainees will add even more (unplanned) burden and expense to the federal immigration budget.  And, once removed, without any change in immigration enforcement policies at the federal level, deportees will  likely promptly cross the border again, being careful this time to stay a little more under the radar, that is, avoid the police even more.

So there are plenty of reasons to criticize S.B. 1070, and I’m sure I’m not the only immigration lawyer in Philadelphia who feels this way .  But one article that I came across today really illustrated for me the frustrations of the Arizonans who support this law.  The BBC story, “Arizona immigration law stokes fear in Mexico village,” is about a poor rural village, Loma de Buanavista, located in the Mexican state of Guanajuato, northwest of Mexico City.  It is estimated that 60% of the village’s population lives in Arizona as undocumented immigrants, sending remittances back to relatives at home.  The village is so dependent upon these remittances that if they were to dry up the villagers would be devastated.  And if large numbers of their prodigals came back home there would be another problem — lack of employment.

Here’s a quote from one of the villagers, Ms. Mata Martinez:  “It’s people that go there (to the US) with no intention to steal or bother other people. They just want to have a job, grow, and generate jobs for those us here.”  Ms. Martinez doesn’t care about whether the waves of immigrants that Loma de Buenavista sends to Arizona enter legally with the permission of U.S. immigration authorities or not.  Clearly, she feels that illegal crossings shouldn’t matter so long as, once over the border, Loma de Buenavistans keep their heads down, work hard, and send money back home.  After all, this money is vital to the village’s economy.  S.B. 1070 is merely an obstacle to the flow of remittances and a threat to the livelihoods of the villagers’ relatives abroad.

While these are the concerns of the people of Loma de Buenavista, why should Arizonans care?  The actions of immigrants from Loma de Buenavista and others like them means that money earned in Arizona is sent abroad rather than spent on the local economy.  Also, depending on whether these immigrants pay income taxes or not they may or may not be contributing their fair share to any government or government-funded services that they use.  I’m not talking about public benefits like welfare or Medicaid that are only available for those with legal status, but infrastructure such as roadways and public transportation systems, emergency room services, fire departments, and other emergency first response services.

Still, try to imagine an Arizona without the Loma de Buenavista immigrants and their brethren.  Who would work the menial and hard labor jobs at low rates of pay that these immigrants are willing to fill, the landscapers, fruitpickers, factory workers, nannies, housekeepers, janitors, and construction workers?  Undocumented immigrants like the Loma de Buenavistans wouldn’t come to America if there wasn’t a demand for their labor that is not met by the domestic labor force.  What we need to do as a nation is recognize this reality and craft federal immigration reform that facilitates the fulfillment of the real labor force needs of American employers, protects immigrant employees from exploitation due to their undocumented status, and keeps better track of (and taxes!  don’t forget the taxes!) those who live within our borders.

A reformed immigration system would theoretically reduce the incentive to attempt to enter illegally for those who just want to come here to work.  This decrease in illegal immigration flows would then free up enforcement resources which could then be used to better target the hardened and dangerous criminals who need to be promptly and permanently removed from the country.  If fear of crimes committed by undocumented immigrants is the real reason behind the passage of S.B. 1070, then I’m afraid that Arizonans will wait a long time to see improvements under the auspices of their new anti-immigrant law.  I predict that S.B. 1070, if ever implemented, will only dilute federal immigration enforcement resources, making it harder to deport the criminal undocumented immigrants that we all want gone. Going through a legitimate Mexican immigration attorney is the most reliable way for families to attain solid legal citizenship; with penalties like these for trying to cut around the process, it seems unduly risky to do anything else.

Djung Tran, Esq.

Tran Law Associates

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

Tam Tran: Eulogy for a DREAM Act activist

Wednesday, October 6th, 2010

If you keep up with immigration news, you’ve probably been hearing a lot about the DREAM Act, and the most recent — and unsuccesful — push to get it enacted.  DREAM stands for the “Development, Relief, and Education of Alien Minors.”  This post, however, is not about the DREAM Act itself, but about one young woman who would have been a direct beneficiary of the DREAM Act had it become law.

This may be old news to those who keep up with DREAM Act stories, but on May 15, 2010, two DREAM Act activists were killed in a car accident:  Tam Ngoc Tran, age 27, and her good friend, Cinthya Nathalie Felix Perez, age 26.  It is Tam Tran’s story, in particular, that spotlights the legal limbo that those who come to the United States as children and grow up calling the United States home can find themselves in, although luckily there are immigration lawyers available to assist in such cases before they come to such a tragic point.

I’ll call her Tam, as it feels strange to call someone else “Tran” when that’s my name too.

Tam’s parents, Tuan Ngoc Tran and Loc Thi Pham, escaped Vietnam only to become refugees in Germany after being picked up at sea by the German navy.  Tam and her brother were born in Germany, but because Germany does not grant birthright citizenship neither she nor her brother are German citizens.  When Tam was six, her family came to the United States to be near other relatives already living here.  Upon their arrival, her parents applied for asylum based upon their fear of being persecuted for their anti-Communist political views if they were to return to Vietnam.  Tam’s father had been forced to attend a “re-education” camp before he and Tam’s mother had fled Vietnam.  For those of you who don’t know what “re-education” means, let’s just say it’s not fun and games.

Tam’s parents were denied their asylum application, but eventually, after further lengthy proceedings, were granted withholding of deportation.  This meant they would not be sent back to Vietnam because they would probably be persecuted if returned there.   U.S. immigration authorities then tried to get the family to return to Germany, but Germany refused to issue them visas.  After all, they weren’t German citizens.  So the family was effectively in legal limbo:  they did not have permanent resident status, but they were definitely documented aliens — Immigration knew exactly who they were and where they lived, and issued them work authorization documents on a regular basis.

So Tam grew up in Garden Grove, California, graduated from Santiago High School, then UCLA with honors, and then went on to doctoral program at Brown University.  She was a filmmaker and an activist, testifying on May 18, 2007, before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, in support of the DREAM Act.

In what Immigration and Customs Enforcement (“ICE”) claims is a random coincidence, three days after Tam’s congressional testimony about her family’s plight, ICE agents staged a pre-dawn raid on her family home, arresting her parents and her brother for being “fugitives from justice.”  Tam wasn’t home at the time but if she had been she, too, would have been arrested.  As far as I can tell, ICE is still trying to deport the family back to Germany.  There is no hint of any criminal actions on the part of any family members.  ICE’s goal appears to merely be to clean house — that is, to deport any deportables and check them off their list.  An ICE spokesperson said that, before, Germany had refused to issue visas when the Trans themselves had made the request; this time, the U.S. government would be making the request, which would more likely result in approval.  A judicious use of immigration resources, indeed.

In researching Tam’s story, I came across a tribute to her on the OC Weekly, “A DREAM Act Undeterred.” Although I learned a lot about Tam and her hopes and dreams from this piece, there is one bit that I have to quibble with.  The article characterized her as undocumented.  She was not undocumented.  She just (just!) did not have permanent resident status.  The only thing that her parents might be guilty of in terms of violating U.S. immigration law was bringing their family to the United States on visitor visas in order to apply for political asylum.  Once here, though, her parents obeyed all the immigration laws and followed all the immigration procedures in their quest for asylum.  The end result was that they did not obtain permanent resident status, but neither were they actually ordered deported.  They remained in the United States on the U.S. government’s explicit permission.  Tam was not an “illegal alien.”  She was allowed to stay in the United States because there was no where that she could safely be sent back to.  But without permanent resident status many of the avenues of support, financial and otherwise, for bright young students and budding young professionals like herself were simply not available to her.

Not everyone who would qualify for relief under the DREAM Act is as sympathetic a figure as Tam.  But her story is an undeniable part of the DREAM Act conversation, and her death at a young age is a loss to America.  I never knew Tam, but I believe that she would have done great things in this country, whether or not she ever become a permanent resident or, eventually, the ultimate goal, a citizen.  I think America would have been proud to claim her as one of its own.

Djung Tran, Esq.

Tran Law Associates

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

Double jeopardy if your father, rather than your mother, is a U.S. citizen

Sunday, October 3rd, 2010

In law school, I remember reading Nguyen v. INS (U.S. 2001).  This was an immigration case in which a young man, born out of wedlock in Vietnam to a U.S. citizen father and a Vietnamese mother and who had lived in the United States since he was six, was ordered deported after being convicted of sexual assault of a child.  As an immigration lawyer, the case stayed with me because the petitioner was Vietnamese, like me, and the gender discrimination issue was a thorny one to grapple with.

The young man at the heart of Nguyen v. INS, Tuan Anh Nguyen, had uncontested legal permanent resident status, but only citizenship status would save him from deportation.  The law at the time of Nguyen’s birth imposed different requirements for unwed U.S. citizen fathers to transmit citizenship to their children than for unwed U.S. citizen mothers.  For the record, the requirements for unwed fathers and unwed mothers are still different under current law, but to a lesser degree.  In Nguyen’s case, for an unwed father to transmit citizenship to his child, the father must have resided in the United States for a total period of at least five years at the time of the child’s birth, with at least two of those years being after the father turned 16.  In addition, the father had to meet a number of other conditions, one of which was to establish the paternity of the child before that child turned 18.  It was this particular requirement that prevented Nguyen from establishing his U.S. citizenship through parentage, as Nguyen’s father did not take this step until after Nguyen turned 18.  Had Nguyen’s mother been the U.S. citizen, rather than his father, she would only have needed to have resided in the United States for 12 continuous months at the time of his birth to transmit citizenship to him.  Nguyen challenged the higher standard for unwed fathers to transmit citizenship as violating Equal Protection.

The Supreme Court, in a 5-4 decision, held that, pursuant to an intermediate scrutiny standard, the different treatment of unwed mothers and fathers did not violate Equal Protection.  The majority, in a less-than-convincing opinion, justified the different treatment of unwed mothers and fathers based on (1) the fact that women give birth makes it reasonable to require that fathers provide some additional proof to establish paternity; and (2) the fact that women give birth gives mothers a greater opportunity to develop a meaningful parent-child relationship with their children than fathers with their children.

The end result was that Nguyen is not a U.S. citizen and presumably was deported to Vietnam, even though he had not lived there since he was six years old.

This term, the Supreme Court will be deciding another immigration gender discrimination case in which the ability of unwed U.S. fathers to transmit citizenship to their children is again held to a higher standard than for unwed U.S. mothers.  In Flores-Villar v. United States, another young man faces deportation even though his father is a U.S. citizen.  Ruben Flores-Villar came to the United States at two months of age and has lived here ever since.  He was first ordered deported for an importation of marijuana conviction.  He kept coming back home, however (imagine that!), and kept being re-deported.  Finally, during the seventh deportation proceeding, Flores-Villar raised the defense that he is a citizen because the different rules for transmission of citizenship for unwed mothers and unwed fathers violates Equal Protection.

In Flores-Villar’s case, the applicable statutory provision that prevents him from being a U.S. citizen by parentage is the requirement, for unwed U.S. citizen fathers, that the father have resided in the United States for at least five years after the age of 14.  This effectively means that men could not transmit citizenship to any children they had before the age of 19, as it would be chronologically impossible to accumulate this five-year residency requirement before turning 19 years old.  Flores-Villar’s father was 16 when he was born.  Had Flores-Villar’s mother been the U.S. citizen, though, she would only have needed to have resided in the United States for a period of 12 continuous months to transmit citizenship.

The United States is arguing that the lowered standard for unwed mothers is aimed at preventing the creation of stateless children, that is, children who can claim no nationality and thus can claim no country’s protection.  This is based on the fact that in some countries a child born to an unwed mother is treated as having the nationality of the mother, rather than the nationality of the country of birth.  If the United States were to make it difficult for an unwed U.S. citizen mother to transmit citizenship to her child then there might be a lot of children out there who don’t have U.S. citizenship but also don’t have the citizenship of the country in which they were born.  One might then ask, why put up any roadblocks to this goal by mandating time-in-residency requirements for either unwed mothers or unwed fathers?  But another competing policy consideration from the government’s standpoint is to ensure that children who receive U.S. citizenship through a parent have some ties to the United States, and the solution to this concern appears to be the requirement that the parent has spent some time living here.  The question is, does the goal of reducing the potential for stateless children justify the different treatment of unwed fathers’ versus unwed mothers’ ability to transmit U.S. citizenship?

With Flores-Villar, I can at least see both sides of the legal arguments:  the Supreme Court is being asked to weigh the government’s purported interest in preventing the children of unwed mothers from being deemed stateless against the resulting discrimination against unwed fathers.  What I find particularly troubling is the result that no unwed father under the age of 19 can transmit U.S. citizenship, while unwed mothers of any age can.  This creates an unacceptable risk of creating stateless children of unwed U.S. fathers and this provision should be struck, if nothing else.  It should not be impossible for a U.S. citizen to transmit citizenship to his children based solely on his age at the time of the child’s birth.

In Nguyen, the Court’s reasoning that the biological fact of birth makes it easier to determine maternity than paternity and, further, makes unwed mothers more likely to form a stable, lasting relationship with their children than unwed fathers is outdated and sexist.  DNA testing and evolving parental roles make it ever less likely that men who want to help their children claim U.S. citizenship by parentage will not actually be the biological fathers of these children and not be integrally involved in their children’s lives.  In addition, the lower standard for unwed mothers allows women to have much less established relationships with their children and yet still be able to transmit U.S. citizenship.  This discrepancy allows the identified goal of ensuring that a child has sufficient ties to the United States to fall by the wayside when it is the mother transmitting citizenship.

But putting aside the legal arguments, what is at stake here is that individuals whose only known home country is the United States, and who have committed crimes but served their time, are being forced into exile, and even an immigration lawyer cannot help them in such a case.  Had their mothers been U.S. citizens instead of their fathers, they would not be subject to deportation.  It must seem bizarre to Nguyen and Flores-Villar and to everyone else in this situation that such a twist in some obscure immigration law can have such a profound effect on their lives.  It’s like being subject to double jeopardy, being punished for your crime and then deported, but only if your father were the U.S. citizen parent.  Having your mother be the U.S. citizen parent is like the get-out-of-jail-free card.

Deportation of foreign nationals who come here as adults and commit serious crimes is a necessary tool in policing our communities.  But the deportation of those who came here as young children and who have the strongest ties to communities here in the United States, while serving to get rid of people with unsavory criminal histories, also devastates the U.S. communities to which these individuals belong.  And keep in mind that the deportee will find himself or herself a stranger in a strange land, more than likely without the support of a caring community.  What kind of new life will the deportee build?  Is this really what we want to be doing?

Djung Tran, Esq.

Tran Law Associates