I started working in the nonprofit sector in 2008, where I witnessed and helped a slow trickle develop into a healthy stream of Cubans on the West Coast needing representation. They refer to me as “la Chinita.” The Cubans, just like any other immigrant community, disseminate news amongst each other rapidly, both true and false. So, when President Obama announced the immediate elimination of the parole policy for Cubans, my phone and email inbox seemed to burst into flames with inquiries from concerned Cubans already in the United States awaiting their green cards, and from other attorneys that know of my large pool of Cuban clients.
Archive for the ‘Processing of Applications & Petitions’ Category.
(This is part two of a two part blog post; the first part can be found by following this link. Please note that all client names are pseudonyms)
As of October 31, 2016, there were more than 521,000 cases pending in our nation’s immigration courts – the most ever. By comparison, just 10 years ago, there were less than 169,000 cases pending; and five years ago, there were fewer than 300,000. Nationwide, Texas has the second most immigration cases with more than 93,000 total and 11,000 in Dallas. The immigration courts, which are part of the Department of Justice (DOJ), have hired some new immigration judges in 2016, bringing the total number nationwide to around 300. Dallas added one judge, upping the total number to six. But these appointments have been insufficient to address the backlog. On average, immigration judges have 1,500-1,800 pending cases. According to some studies, it would take each judge about 2.5 years to adjudicate all of the current cases in the system. But with more new cases being filed each month than being closed, the backlog continues to grow.
My client Ali came to the United States in early 2011 seeking asylum because government agents in Ethiopia repeatedly arrested and tortured him for his political activities and because he belongs to a minority ethnic group. During one period of detention, government agents whipped him with electric wire and threatened to inject him with HIV-infected blood. His case was referred to the immigration court in June 2012. His hearing was originally scheduled 2 years out from his initial court date, and then cancelled and reset to the spring of next year – more than 5 years after he originally applied for asylum. Meanwhile, back in Ethiopia, police continue to question his mother and brothers regarding his whereabouts. Although Ali appears stoic, a psychological evaluation recently revealed that these repeated delays have taken a significant emotional toll on him.
(This is part one of a two part blog post; to read part two, please follow this link. Please note that all client names are pseudonyms)
Sitting across the conference room table from Imani, we broke the bad news.
“We are so sorry, but your hearing tomorrow is cancelled. It’s been rescheduled to the end of the year.”
She burst into tears. Letting everything out at once, she sputtered, “Why again? Why is this happening?”
None of us were surprised by her reaction. When the call came the prior afternoon, we could not believe it. The court administrator explained that Imani’s hearing was being postponed. Again. Susan, the volunteer attorney who was the lead on Imani’s case, desperately pushed back. “We only have one witness. We think our case will be done in an hour and a half.”
The administrator paused, but stood firm. Without any explanation, the case was rescheduled 11 months out and there was nothing we could do about it. No matter that we had spent countless hours over the past month preparing, and were completely ready to present Imani’s case in court. No matter that this was the second time that her case had been rescheduled at the 11th hour. No matter that each time we prepared Imani for her testimony she had to relive the worst days of her life, when she was arrested in her home country, held for days, and repeatedly raped. No matter that once again, devastated, she would have to wait to see if she would be granted asylum in the United States, securing permanent safety and peace, and finally be able to look ahead with hope.
By now, it is no longer a surprise to learn that many immigration lawyers, and the clients they serve, live in certain “hostile jurisdictions,” where it is almost impossible to win an asylum case no matter the facts. In places like Atlanta, Georgia, and Charlotte, North Carolina, people seeking asylum, and the attorneys fighting for them, know they are likely going to lose no matter how strong the case, or how real the fear. Going into this kind of battle expecting to lose takes a special type of courage, and a lot of support, because as a lawyer, you know that no matter how well prepared you are, no matter how much you think the law is on your side, the deck is still stacked against you.
But the deck shouldn’t be stacked against anyone because immigration law in the United States is, after all, federal law, and as such should be applied uniformly, from California to Georgia and from New York to Florida. An asylum claim presented in a court in California should be evaluated under the same law and have the same chances of approval as an asylum claim in Georgia or North Carolina. But AILA members know that this is simply not the case. We know that, no matter the facts, the claim of an asylum seeker in a hostile jurisdiction like Georgia or North Carolina is not evaluated under the same standards as asylum seekers in the rest of the United States.
The Supreme Court on November 9, 2016, will hear arguments in Lynch v. Morales-Santana, a case in which AILA submitted an Amicus Brief, along with the National Immigrant Justice Center (NIJC) and Northwest Immigrant Rights Project. The case, which will address and better define how citizenship passes to children born to Americans overseas, has the potential to affect numerous children by eliminating current distinctions based on the biological sex of an unwed U.S. citizen parent.
In Morales-Santana, the Second Circuit ruled that the petitioner, who was born out of wedlock to a U.S. citizen father and a non-U.S. citizen mother, should not have been treated differently as to the status of his citizenship under the equal-protection clause of the Fifth Amendment, reversing a lower court ruling. If the Supreme Court upholds the Second Circuit’s decision, the Court will create equality under the law for children born to an unwed U.S. citizen parent, regardless of the parent’s gender.
October is Domestic Violence Awareness Month, which is intended to shine a light on the human right to be free from violence, ensure that all victims of domestic violence know they are not alone, and foster supportive communities that help survivors seek justice. In the United States, twenty people are victims of physical violence by an intimate partner each minute. Most victims don’t come forward because it is not safe; in fact leaving an abusive relationship is often when victims are at the greatest risk of homicide by their abusive partners.
Immigrant victims are particularly vulnerable as they often live in the shadows of society and face additional challenges to reporting abuse and/or leaving an abusive relationship. These barriers include fear that police contact may lead to deportation, separation from children and other family members, language barriers, isolation, and fear of being ostracized by their families or communities for coming forward. Many undocumented immigrant victims are not aware that they are protected by U.S. laws and have options for escaping the violence. They don’t know that they have access to police or court protections.
On June 15, 2012, President Obama changed many lives for the better with his historic announcement of the Deferred Action for Childhood Arrivals (DACA) initiative. This critical and necessary action by the President went into effect on August 15, 2012 when young people were able to take the piles of paper they had compiled to prove they were eligible and apply for DACA.
Today marks the 4th anniversary of those first applications, and is cause to celebrate, but also to push for further expansion of this program. In the face of inaction by Congress, the executive branch has been able to help thousands of young immigrants and their families. Government figures show that to date, more than 728,000 individuals have applied for DACA out of an estimated 1.16 million who are eligible. It is a good start, but much more needs to be done.
Some were critical of President Obama for this initiative, but, he used his legal authority to help young people in a system where reform is long overdue. Children, brought to America, some as young as a few months old, were growing up only to find out that the only country they have ever known is a place where they have diminished rights and are at risk of deportation. Some of the clients I have worked with didn’t figure out they weren’t U.S. citizens until they were trying to get a driver’s license or applying to college. Most of these kids didn’t have a choice to come here and never chose to violate any immigration law. President Obama recognized that they should not be punished.
Ralph Waldo Emerson famously opined that “a foolish consistency is the hobgoblin of little minds…” I have often opined (less famously) that, if Emerson is correct, there must be very few small-minded adjudicators at U.S. Citizenship and Immigration Services (USCIS).
Even in areas where USCIS has made an open effort to establish uniformity, it often seems that the only thing one can count on consistently is, well, inconsistency. For example, in 2010, USCIS began denying H-1B cap exempt petitions filed by nonprofits affiliated with institutions of higher education even though those same petitioners had repeatedly been approved as cap exempt for years. Particularly hard hit were nonprofit hospitals affiliated with medical schools that rely on cap exempt H-1B filings to sponsor international medical graduates who are completing their U.S. residency and fellowship training in accredited graduate medical education programs. These programs operate on an academic calendar that runs from July 1 – June 30, a time of year when there are no new H-1Bs available. Understandably, the hospitals and medical schools raised a stink with their Congressional representatives who in turn, and along with AILA, took the issue to USCIS.
Liaison work has long been at the heart of AILA member services. Liaison, when effective, is a critical bridge for members who are facing issues in their practices, helping to raise those issues with the various agencies to work toward a solution. However, in recent years, some have begun to question the efficacy of liaison efforts and whether AILA might be better served pursuing other options, such as litigation, to push back on critical issues.
I have long held the belief that AILA’s liaison relationship with government agencies can and should be both respectful and spirited, and that it is through a liaison system built on trust, mutual respect, and solid relationships that we can achieve AILA’s mission of providing robust member service. This kind of liaison relationship does not foreclose the option of litigation, political advocacy, public relations, or other avenues for change, but it does serve as the bedrock for effective engagement with the government. This approach works and will continue to work as we move forward. Take, for example, a recent AILA liaison development that we hope will make a palpable difference in members’ practices.
It was early Monday morning in Los Angeles and all along the West Coast of the United States, people were just waking up. Cars were jamming the freeways, lines were forming at coffee shops and TVs were tuned to the morning news. Meanwhile, in Washington D.C., the five men and three women who currently sit on the U.S. Supreme Court were hearing oral arguments in what is likely to be a seminal case involving immigration policy and more broadly, the president’s executive authority. The case seeks to resolve the controversy around the immigration initiatives President Obama announced in November 2014. For many who anxiously await the Supreme Court’s decision, a resolution as to whether the expanded DACA and DAPA initiatives may proceed is a life-changing matter.
United States v. Texas traveled to the Supreme Court on a politically charged highway along which advocates and opponents threw many punches. The road was lengthy, and as the case made its way to the Supreme Court, many speculated as to its fate. Significantly, this past February, the Court lost Justice Antonin Scalia. As one of the most conservative justices on the court, his passing could have an impact on the result of the case.
I had the privilege of sitting in the courtroom and listened first-hand as Solicitor General of the United States Donald B. Verrilli, Jr., representing the Obama Administration, and Scott A. Keller, Solicitor General of Texas, delivered their arguments. Certain intervenors were permitted to make statements, including Tom Saenz at MALDEF, who forcefully represented the voices of three undocumented mothers, but the crux of the case was presented and argued by the parties’ respective attorneys.