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The Golden Door

News and views on immigration law

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Constitution Day – A Call for Independent Immigration Courts

Friday, September 18th, 2020

Yesterday was Constitution Day.

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

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

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

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

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

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


Here are my remarks from yesterday:

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

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

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

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

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

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


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


Scrutiny of K-1 fiancé visas after San Bernardino mass shooting

Thursday, February 25th, 2016

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

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

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



Limited new benefits in the pipeline for unauthorized immigrants

Tuesday, December 2nd, 2014

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

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

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

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

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

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

The flood of immigrant children

Wednesday, July 9th, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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


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



Ask An Immigration Attorney How A U Visa Can Help You

Monday, January 20th, 2014

U visas are a little known benefit for many unauthorized immigrants. It provides a route to U.S. lawful permanent resident status if you happen to be the victim of certain violent crimes, including crimes of domestic violence. If you want to seek asylum in Philadelphia, consult an immigration attorney for specifics on these types of claims.liberty bell philadelphia immigration lawyer

U visas are technically, most of the time, not visas at all. It is a lawful nonimmigrant status usually granted to individuals already present in the United States, rather than granted abroad with the issuance of an actual visa. This status is NOT permanent resident status, a.k.a. the green card. But it does grant you permission to remain in Philadelphia, or elsewhere in the United States, lawfully with permission to work, for up to three years. At the end of that three years, assuming you have not done anything unlawful in the meantime, you can adjust your status to that of permanent resident. For a more detailed listing of U eligibility criteria, USCIS provides this information. An immigration attorney can also help with determining eligibility.

This U nonimmigrant status is only granted to up to 10,000 unauthorized immigrants per year. The 2014 quota was actually reached in December 2013, according to the U.S. Citizenship and Immigration Services (“USCIS”), which is only about two and half months into the federal fiscal year, which begins on October 1st. This is because immigrant advocates are doing a better and better job of informing eligible immigrant victims of crime about this benefit and filing the application. Applications that do not make the cut-off in the year filed are held over until the quota re-opens in the next fiscal year. To ensure that your application process proceeds properly, you should work closely with an immigration attorney in Philadelphia.

The U nonimmigrant status was created to help immigrant victims of crime, especially victims of domestic violence, and to encourage such victims to come forth to report the crime and to cooperate in the investigation and prosecution of the crime. In addition to the victim reporting and helping to prosecute the crime, a law enforcement agency must sign off on a formal certification of the victim’s helpfulness. Without this law enforcement certification, the U visa application cannot move forth. It is thus an indispensable condition of eligibility, and in some cases, the bulk of the work in applying for U status is finding a law enforcement agency willing to sign off on the certification.

Help from an immigration attorney is necessary because not all law enforcement agencies are aware of what U nonimmigrant status is, or the policy considerations behind it. The personnel at such agencies may be wary of signing off on a form that they are not familiar with, in case it might come back later to bite them. Or, in some cases, the leadership or personnel at these law enforcement agencies are anti-immigrant and simply do not want to help unauthorized immigrants, even those who are victims of crimes and are willing to come forth. In the first instance, it is important to provide background information on why the U nonimmigrant status was enacted and to show that signing off on the certification does not have negative repercussions for the law enforcement agency. In the second, if one’s powers of persuasion do not work in changing an anti-immigrant attitude, then it is time to think creatively and look around for another law enforcement agency with jurisdiction over the crime.

A U visa is a valuable tool for victims of crime to use in obtaining a lawful status in the U.S. It creates a benefit from an awful situation where an immigrant was physically harmed or threatened with physical harm. If you know anyone who experienced this, or even certain relatives of U.S. citizen victims where it is the relative who seeks lawful immigration status, we can help evaluate whether a U visa application is viable. Contact an immigration attorney at Tran Law Associates in Philadelphia. Call us at (215) 690-1933 to discuss your specific situation.

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.

Same-sex marriage cases post-Windsor

Thursday, August 1st, 2013

You may not have heard, but an important change in immigration law happened on June 26, 2013.  On this date, the U.S. Supreme Court handed down its decision in U.S. v. WindsorThe Windsor case came up as a tax matter.  But Windsor isn’t just about taxes, although over $300,000 in federal estate taxes was at stake.  It was about the legal definition of marriage.  It was about whether a same-sex marriage can be treated differently than marriage between two people of the opposite sex.  Ultimately, the Supreme Court held that defining marriage as a union between a man and a woman violated the equal protection clause of the Fifth Amendment to the U.S. Constitution, and in doing so struck down Section 3 of the Defense of Marriage Act (“DOMA”).

This leaves the path clear for same-sex marriages to be (among many other things affected by federal law) the basis for immigration benefits, especially marriage-based immigrant visas and marriage-based adjustment of status applications.

The U.S. Citizenship and Immigration Services has, in an admirably prompt fashion, already gone on record as now accepting I-130 petitions from same-sex couples.  You can check out the guidance here.

The main thing you need to know if you want to file a petition for immigration benefits based on a same-sex marriage is that the marriage must be legally valid.  This means that the marriage must have been performed in a jurisdiction that allowed same-sex marriage at the time of the event.  This is sometimes referred to as the “place of celebration” rule.  It should not matter if you no longer live in that jurisdiction and currently live with your spouse in a place that does not legally permit same-sex marriage.

A legally valid marriage must be documented, whether by a certificate of marriage issued by a county government as is usually the case in the United States, or whatever is accepted as legal documentation of marriage in the place where it occurred.  For marriages abroad, a good place to check what documentation is considered legally sufficient are the websites for local U.S. embassies and consulates.  There is usually information for U.S. citizens interested in marrying in that foreign country, including what documents should be issued once the marriage is done.

So, for all those who thought they could not file for immigration benefits for their same-sex partners, the law has changed for the better!  If you need more help, advice, or representation in filing your application, contact Tran Law Associates about how to get your case started.

Eulogy for my Dad

Tuesday, July 16th, 2013

My father died recently.  Below is the eulogy I delivered at his funeral.  I wrote about him last year, a few months after it was clear that he was terminally ill:  see The Spirit of the Immigrant.  This, I guess, is the coda to that piece.


My dad is gone. I was wondering if it would be any less painful if dad died at a later age, after a very full and complete life? Maybe. I think part of the grief I feel is because dad was so vigorous and full of life before he got sick. His cancer robbed him of that vitality long before it took his life.

Dad was always there for us, opinionated, always ready to help, playful and grouchy in quick succession (like me, like my son). His love for his family, although almost never said in words, came through loud and clear in his actions. His last thoughts were what he could do to make sure my mother, my brother, my son, and I were taken care of. His last instructions to us were that we love and take care of each other.

It was sometimes hard to know, because dad rarely spoke about his own feelings, when he was proud of us or when he was disappointed. But in the end, I don’t think it really matters. He loved us, his children, whether we succeeded or failed in our endeavors.

As my mother has said in the days since his death, you cannot take any of your possessions with you when you go. What dad leaves behind are our memories – all of our memories – of a hard-working man who was always there for his family and friends. I have never known him to let anyone down, and I will miss his laughter, his bright smile, his stories that poked gentle fun at people, how he never complained about how unfair life can be, his strength of will, and his unconditional love.

Dad would want to thank many of his family and friends for their love and support over his lifetime, but particularly, since he became sick, I know that he would want to give special thanks to his good friends, Bac Bao and Bac Nhung, Di Ngoc Ha and Bac Chuong, and Bac Chan and Bac Thanh, and Bac Dich and Di Bich-Ngoc for caring for him in his time of need. Thank you for being good friends to my dad.

May his journey continue in peace and the knowledge that he is loved and deeply missed. Con tuong ba va nho ba nhieu.

The pitfalls of the K-1 fiance visa: Consular nonreviewability

Friday, February 15th, 2013

Sometimes the law makes no sense. Sometimes it is unjust.

Take the case of consular processing for K-1 visas. For immigration neophytes, consular processing occurs when the intending immigrant is not physically in the United States and, thus, the individual must request a visa to lawfully enter the country. The visa application process is handled, usually, by the U.S. Department of State rather than the US. Citizenship and Immigration Services (“USCIS”), part of the U.S. Department of Homeland Security.

In my experience, consular processing of family based immigration is rife with opportunities for visa offices to exercise bias and apply inconsistent standards. That is because there is no system of external oversight for visa issuance decisions. The K-1 visa, where the applicant is a foreign national whose only tie to the United States is that he or she is engaged to marry a U.S. citizen, is particularly vulnerable to such abuses.

A K-1 visa case came to me, after the fiancée of the immigrant had filed the I-129F petition pro se, after the petition had been approved by USCIS, after applicant had the visa interview, and then… nothing. No news, no decision. Ten months after the visa interview in Kabul, Afghanistan, I started work on the case, requesting a decision or some direction as to what concerns were holding up the application. Unfortunately, due to a rule known as the doctrine of consular nonreviewability, there was no way to require a U.S. Department of State visa office to justify either its lack of action or rejection of a visa application. We cannot get a federal court to force a decision, because the courts will defer to the U.S. Department of State under this doctrine. The only way to get past this judicial deference to visa decisions is to prove that the visa office acted in bad faith, an impossibility in the vast majority of cases. This is because the applicant has no information from the visa office, much less information about what evidence the decision is actually based upon.

The rationale for the deference, according to visa decisions under the doctrine of consular nonreviewability, is that the United States government has broad powers to determine who it permits to enter its borders, and decisions to deny admission to foreign nationals, barring bad faith, will not be second-guessed by the courts. This sounds somewhat rational until you play out the consequences. The procedures used to evaluate applications lack transparency. While the Foreign Affairs Manual (the U.S. Department of State's operating manual) references the statutory and regulatory requirements for reviewing visa applications, it leaves broad discretion to the visa officer to make credibility determinations. In practice, denial letters never tell you why exactly the application was rejected, except to conclude that you failed to prove that you have a real relationship. In other instances, you may have failed to prove sufficiently strong ties to your home country (for tourist visas). There is no meaningful appeal process for such denials. When I have filed appeals to the U.S. Department of State visa office in the past, the result has been a pro forma affirmation, with no response to the mistakes in fact. Plus, there is no appeal of that decision, particularly no judicial appeal. The result is that applicants are denied permission to enter the United States, without the right to present additional evidence to rebut the grounds of the denial. That’s because our right of Due Process does not to apply to foreign nationals residing abroad. Apparently, it also does not matter that U.S. citizens are also deprived of due process as a consequence of the visa denial.

In my Afghan K-1 visa case, my client and her fiancée had participated in a ceremonial wedding and signed a nekah, a Muslim marriage contract, while waiting for the K-1 visa to be approved. Under Afghan law, the nekah must be registered with the family court and a marriage certificate must be issued by that court before a legal marriage is created. More than a year and a half after the visa interview, and over two years after the application was filed, my client's K-1 petition was denied because my client and her fiancée were deemed to already be married.

In my Afghan K-1 visa case, my client and her fiance had participated in a ceremonial wedding and signed a nekah, a Muslim marriage contract, while waiting for the K-1 visa to be approved.  Under Afghan law, the nekah must be registered with the family court and a marriage certificate issued by that court before a legal marriage is created.  More than a year and a half after the visa interview, and over two years after the application was filed, my client’s K-1 petition was denied because my client and her fiance were deemed to already be married.

Had my client filed an I-130 Petition for Alien Relative and attempted to bring her fiancée to the United States based on the same facts, that petition would have be denied for lack of proof of a valid, legal marriage, according to the Kabul U.S. Embassy website. Thus, this was a classic Catch-22 situation.

I had already pointed out the facts of the case and the applicable Afghan law of marriage to the Kabul visa office, pointing out that a wedding without a legal marriage had taken place and that the same standard should be applied for an I-130 petition as an I-129F petition in evaluating whether a legal marriage existed. The visa denial did not address any of my points.

The current state of the law accords deference to visa decisions under the doctrine of consular nonreviewability. Due to this long-standing doctrine, courts refuse to demand any sort of accounting in visa decisions. It is past time to scrap this outdated rule that allows bias and abuse to occur under the guise of protecting our borders. While I agree that the United States should have broad authority to decide who is eligible to enter the country, once the statutory and regulatory rules are enacted that define the limits of this authority, these rules should be followed. There should be a mechanism to evaluate that the statutes and regulations are, indeed, followed by visa offices. Under the doctrine of consular nonreviewability, there is no way to require visa offices to identify the evidence relied upon in issuing a denial. Thus, applicants are left stranded without any avenue for appeal or external review. In my Afghan visa case, my client is left without the ability to live with her fiancée in the United States. She is forced to confront the choice of moving to Afghanistan or some other country that will accept both her and her fiancée as residents with the right to work.

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.