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The Golden Door

News and views on immigration law

Archive for September, 2012

Dos Erres: An international investigation impacting citizenship and asylum

Friday, September 28th, 2012

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]?”

Tuesday, September 4th, 2012

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

Tuesday, September 4th, 2012

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

Monday, September 3rd, 2012

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.