Archive for the ‘Immigration, General’ Category.

Big Data, Bad Data: Resolving the Tyranny of the Database

shutterstock_239579581This term, the Supreme Court is considering a case that implicates the doctrine of “consular non-reviewability”–the legal principle that generally, courts in the United States will not review the discretionary decisions of American consular officers if they deny visa applications overseas. The doctrine has a long history in Supreme Court jurisprudence, and is based on both constitutional and practical concerns. As a matter of constitutional law, consular decisions may be tied up with foreign policy concerns that the Courts generally leave to the Executive Branch; as a matter of practical concern, both the volume of visa applications and the difficulties of getting records of decisions from far-flung consular posts make meaningful judicial review impracticable.

One of the briefs by amici in the case comes from a group of former consular officers, and attacks both the legal and practical justifications for the doctrine in a new way. They highlight a reality facing any American company or citizen seeking to sponsor a foreign national from abroad. The former consular officers detail the “veto power” that the Department of Homeland Security (DHS) has over any consular decision to grant a visa, and how that power is exercised not through individual discretionary decisions, but through entry of information into a complex of databases overseen by DHS.

The consular officers describe, in chilling detail, how one physician from Malaysia was denied renewal of her temporary work visa because an FBI officer checked the wrong box on a form used to enter data into one of the databases that feeds into the DHS system. The error was only discovered after extensive litigation, in which the government fought any attempt to disclose the basis for its decision.

The problems caused by unknown (and, as a practical matter, undiscoverable) databases used by the immigration authorities are not just limited to foreign nationals when they apply for visas, however. Business immigration practitioners will all be able to tell stories of having petitions filed by established companies and other institutions questioned because of bad information in the commercial database used by USCIS to verify information in business-related petitions. My own favorite experience was a Request for Evidence seeking proof that an internationally-renowned research institution continued to exist, because the database did not have any recent information of their commercial activities in it – when a quick search of the Internet would have turned up news stories about one of the institution’s faculty having won the Nobel Prize the month before.

The tyranny of “what’s in the computer” extends through most immigration-related processes, and can be difficult to remedy. Recently in our office, we encountered a situation in which the Department of State rejected an immigrant visa applicant, telling him that he had committed fraud in a prior visa application. We were able to determine that a former employer of the visa applicant had filed a petition for our client, and the consulate had returned it to the Department of Homeland Security to determine whether the employer had committed fraud. DHS, in turn, had entered in the computer that the consulate had found fraud, without doing any determination about the petition. We now have a situation where the State Department says it can’t do anything to change the decision, because DHS made it; DHS, in turn, says it cannot do anything to change the decision because the State Department made the determination.

For individuals caught in such dilemmas, litigation against the government is often the only hope, and offers no guarantee of success. The government normally fights such suits by arguing the court has no jurisdiction, rather than trying to argue that the decision was supported by sufficient evidence. Even for U.S. citizens caught in the web of databases, litigation to remove one’s name from watch lists can be an expensive and risky proposition.

If the U.S. Government is going to rely on these databases to make decisions affecting US businesses and family members, they need to create a more robust process through which errors in these databases can be brought to light and corrected. As the consular officers note in their brief, too often bureaucratic inertia and workload constraints prevent consular officers or others in the immigration system from being able to get to the bottom of a “flag” on an applicant’s record. A more robust Privacy Officer position within DHS, with sufficient staff and resources to be able to respond to public inquiries and help resolve database errors, would go a long way to ensure that visa decisions are made on the basis of high quality information, and that American families and businesses have a mechanism to redress database problems that affect their lives and livelihoods.

By William Stock, AILA First Vice President

The Weight of 216 days

shutterstock_68484649216 days. That is how long Sofía and her daughter Isabel* had to wait for a chance at release from family detention at the southern border. After over seven months of confinement at two different facilities, they will finally be reunited with their family lawfully residing in the United States.

The legal battle Sofía and her daughter have fought in Artesia and now Karnes has been almost incomprehensible. Fleeing years of domestic abuse, forced servitude, and death threats, Sofía chose to come to the United States to seek protection. She and Isabel, who recently turned five years old, were apprehended at the border in late June. After Sofía passed a credible fear interview (despite the fact that it was not in her native language), ICE refused to offer a bond. In late July, the Immigration Judge also denied Sofía a bond, despite her positive credible fear finding and documentation of a stable residence with her lawful permanent resident father, as well as proof of the other family members with legal status in the United States. In October the Pro Bono Project filed a motion for subsequent bond, which was summarily denied. The Immigration Judge did not provide an explanation for his decision and simply stated: “I am going to deny that now.”

There was enormous disappointment and outrage over the bond decisions, but Sofía continued to express the importance of pursuing her case. The Pro Bono Project saw the strength of her asylum claim and agreed to represent her at her individual hearing. The client had endured horrific persecution, being treated as an indentured servant and enduring physical and verbal abuse on a regular basis, all because of her indigenous background and her family membership. Despite attempts to escape this abuse within the country, she received death threats until the very days she left her home country.

We believed this was a strong asylum case. Sofía’s heartbreaking testimony, alongside the legal analysis that Sofía and her daughter had been persecuted on the basis of multiple protected grounds, wove a compelling narrative. However, the Immigration Judge denied her claim, finding that the years of physical abuse, servitude, and death threats did not meet the standard of persecution, and that she had an internal relocation option. The legal team was shocked. Upon receiving the translation that her case had been denied, Sofía collapsed, falling on the courtroom table for support and sobbing. Everyone left the courtroom trailer in devastation and disbelief.

In the days after the asylum decision, Sofía, with the support of the Pro Bono Project legal team, had to decide how to proceed and whether to pursue an appeal, knowing that it could mean months more of detention. It seemed that this decision weighed on her, especially witnessing the impact of the detention conditions on her daughter’s physical and mental wellbeing. But Sofía also expressed the continued danger she and her daughter faced in returning, and believed in the injustice of what the Immigration Judge had done in denying her case, so she decided to appeal the Immigration Judge’s decision, while also pursuing release for her and her daughter.

In January, I filed a second motion for subsequent bond. By this time, the venue for the case had been changed three times and Sofía and her child had been detained for over six months. The Immigration Judge identified that there had been a change in circumstances based on the new expert evidence detailing how Sofía, her daughter, and the women and kids who have been detained are not in fact national security concerns, and set a bond of $7500. After years of living in terror in her home country, followed by seven months of detention in the country that was meant to protect her, Sofía and Isabel can leave a world of constant surveillance, confinement, and fear.

The injustices Sofía and her daughter have had to endure illustrate what can go wrong at pretty much every stage of the family detention process. Had it not been for Sofia’s resilience, as well as her and the legal team’s belief in her right to stay in the United States, this valid asylum claim could have been abandoned at many points in the process. While I am relieved that she and her daughter have a chance at release, I also know that there is a long appeal road ahead, as well as their personal path to recovery from the physical and mental stress caused by prolonged detention. And I am angry knowing that the wrongs that have been committed against them cannot be corrected, that she and her daughter will not receive compensation or atonement for the inhumane treatment they underwent.

I talked with Sofía on the phone two days ago and asked her if I could include information about her case in this blog post and whether there was anything she would like the American public to know. Her words struck me as powerful and true: “What happened to me is unfair. To not even give me the chance to live with my family here in the United States, to keep me and my daughter in a jail. I want people to know that those who suffer the most in detention are the kids, that this is no place for children. Kids in jail, it is so terrible, so unfair.” Sofía is right.

* Names have been changed

Written by Julie Braker, AILA Member and Artesia Volunteer

‘Tis the Season – H-1B SEASON!

shutterstock_147492446I’m surrounded by dry Christmas trees lying on the sidewalk, nobody is eating and drinking ridiculous amounts any more, and people are pretending to exercise as part of their New Year’s resolutions  – it must be H-1B season!

For 2015, here we are again, with no increase in numbers to the H-1B cap (at least not as of yet). We face harsher adjudicators, with more clients who want to apply, and those clients want a guarantee that they will definitely obtain an H-1B. Such a guarantee can’t be given – not just because of the cap and resulting lottery, but because any denial is almost always upheld. According to the 2013 Ombudsman’s report which was brought to our attention by Diane Butler of Seattle, WA, “The vast majority of appeals to the AAO are dismissed, that is, denials are upheld.  For H-1Bs in 2013, 858 appeals were dismissed and only 12 appeals were sustained (overturning denials), approximately 1%!

Wait, why are we excited to start H-1B season again?

The H-1B is one of the few visas available for US employers who want to remain competitive in the global economy, that do not require a particular nationality (Es), extraordinary ability (Os), or having worked for that company previously (Ls). Seems like these are people our country would want to encourage. Instead we attorneys are constantly battling the service centers for a visa that not only helps to retain talented young students who have newly graduated, but also gives US employers a choice in worker.

There is nothing more frustrating than an employer telling you how much they desperately need this person, how much value this person either already brings to the table or how much they believe the person will add value to the company and help that company to grow, and yet USCIS has taken very strict, almost draconian views of a small company’s ability to support a new position, and in particular a business development position.

I don’t mind sharing with you (although it pains me) that I had a particularly tough denial for a small but growing company.  It was immensely frustrating because the company, though small, had a detailed business plan which included growth, they had funding of well over a million dollars, and were registered on the SEC showing their plans to go public, and we submitted letters of support from other companies, similar jobs from the industry.  Crickets.  USCIS rejected our evidence and even stated that “companies such as yours would normally outsource such a position.”  Really?  Not only do you want to deny this position, but now you want a company from the U.S. to outsource this job???   Years ago the same position, for the same type of company would have been approved in the blink of an eye.  Times have changed.

We are not completely powerless.  First and foremost, as attorneys we need to make sure that our work is exemplary.  If we are armed with an airtight case, it will make the next stages much easier to embark upon.  Next, you need to know your options after an egregious denial: do you appeal?  Do you litigate?  Litigation?  I am a business immigration attorney.  I do transactional work, not the courtroom.  Can you do it?

Absolutely!  Tammy Fox-Isicoff of Miami, FL has tried and tested this method with success: “I haven’t abandoned all hope- but after 30 yrs. of doing this… and holding out “hope,” the hope is fading. Much of the time, I go to Federal Court. pro bono, even for clients who can pay, to right a wrong. Federal Court is all on motion, on these cases. The Court looks at the administrative records and decides if the immigration decision is arbitrary, capricious or an abuse of discretion. I paper my files, put in affidavits from experts, and academia. The government provides no experts. It is often not difficult to litigate and win a well prepared NIV filing. In fact, usually the appeal becomes the Motion for Summary Judgment-thus the time commitment is often only several hours more than it was for the appeal. ”

But we should not stop at litigation.  Not everyone has the time or resources for that.  We need to collectively strategize and bring to the attention of the Administration what a waste of resources these denials are.  Additionally, think about the loss in tax revenue, resources and filing fees for employers.  Employers/businesses are constituents too.   Congressmen should be bending over backwards to help businesses with this issue.  The enormous misconception is that H-1Bs are cheap labor.  Whoever made that statement clearly did not look up the Department of Labor’s wage survey.  Collectively, we can change this.

And until we do, we all still have the cap season ahead of us.

On Monday night, AILA’s New York City Chapter had our 2015 kick-off meeting.  The topic was H-1Bs Strategies and Preparing For April 1st. We were joined by Rachel Baskin, Bill Stock, Allen Orr and Alexis Axelimage1 (2)rad, who all gave us helpful hints and strategies of how to deal with upcoming H-1B season. Here are a few highlights:

  • File the LCA Early: It is never too early to file an LCA. Sure, the employee will lose 4-6 months on the back end, but that is not completely lost by any means. It is better to start filing them now and avoid iCert issues, business existence issues and general glitches or errors.
  • History: Find out the US immigration history of the Beneficiary: surprisingly some people are not aware that they have even had an H-1B before. You may be able to file now to see if their H-1B can be ported, and at least you will find out now instead of in the lottery on April 1st.
  • Errors: Unfortunately, errors are fatal during a lottery. Any mistake can cost you the petition – checks, signatures, lack of checking the correct box.
  • Quality control: For solos or small practices, everyone really: get it done early. Don’t put a package together same day as you are sending it out. If you scan items in, review the pdf.  Review the shipping label. Do not send to the wrong address. Did the employer move since you last filed a petition for them? Review, review, review.
  • Filing Fees: If your client does not want to write the filing fee checks directly, or you wish to monitor the checks, put the money in the trust account and write checks from the trust account.
  • Don’t hold back: given the shift toward negative adjudications, don’t hold back any information/evidence that could bolster the case.

Whether you have one H-1B to file, or ten, or one thousand, we are all in this together. The only way to show that USCIS is issuing unreasonable RFEs is to send them to reports@aila.org or use liaison.

See you at season’s end!

Written by Neena Dutta, Chair, AILA NYC Chapter

Starting Off the New Year

shutterstock_238081117I promised myself that this year I would sleep in and not rush to my email and/or open my computer before I had my first cup of coffee. Sigh. At 6:45 a.m. on the first day of 2015 I had already broken my first resolution.

Resolutions are the bane of many an existence right about now. They are at the same time harbingers of hope and change and also the unwelcome reminders of good intentions forgotten or ignored.

Although our President did not call his recent statements and plans for changes to our immigration system “resolutions,” I am considering them such and I am resolved (Holman Resolution #2) to see that he keeps them.

Heck, I’m aiming big. Why not?  Surely it is an easier resolution to keep than following some new-fangled diet or juice cleanse.

The President told us that business development in the U.S. and keeping families together are of paramount importance to him and necessary for the wellbeing of our country. I agree. We all agree. Lets make it so, now, in early 2015.

The President doesn’t need to wait for regulations to be written. If he and his administration take the following four easy steps we can and will start to immediately see some of the reform we desperately need.

  1. Direct the agencies responsible for immigration (USCIS, CBP, ICE, DOS) to follow the laws as written and with an eye towards inclusion rather than exclusion! We have lived with the preference for denial for too long. A bit of direction to the agencies in this area (i.e. returning to the long-followed definition of affiliation that permitted hospitals and medical facilities to employ the doctors they so desperately need, actually approving statutorily qualified L-1 petitions, recognizing that employees genuinely telecommute, recognizing the importance of foreign artists and athletes) would in just a few months make huge inroads in accomplishing what we need and what the President said he desires.
  2. Ensure that the agencies speak to and hear each other by hosting regular Interagency Stakeholder meetings. Since the dissolution of the INS and creation of separate agencies to accomplish what was once accomplished by one agency, adjudications have become wildly inconsistent. Needless to say the lack of consistency in adjudications has created havoc for businesses and is causing them to give up on the U.S. and take their money and innovations elsewhere. We tell our businesses that even if their petition has been approved another agency may decide not to honor the approval and may subsequently deny it. And to make matters worse, they won’t be told why.
  3. Remind the agencies that attorneys are an integral part of the process and encourage and require them to work meaningfully with counsel, both in liaision and as counsel to clients. I can’t count the amount of times I, my clients, and other AILA members related encounters with the government where attorney intervention, assistance or even input was not only denied, but worse disparaged.  My favorite quote and the most often repeated in the past 8 years is this: “when we see an attorney’s letter or encounter their presence we assume that something is wrong.”  Really?  I hire an accountant not because I cheat at my taxes but because she ensures that what I file is done correctly.  Our President is himself an attorney, he must get this.
  4. Stop the immoral and inhumane incarceration of kids and their moms fleeing danger and ensure that the laws we enacted to protect them are followed.   Our President knows that denying bond and/or moving families without notice to their attorneys or relatives and without due process is wrong and harmful. He can stop it.  He must stop it.

The President is lucky. He has two years to accomplish his resolutions and to fight tooth and nail for additional action on immigration through Congress and the executive branch. I thank him for his promises and resolve that we, AILA, will do what we can to guarantee his success.  Here’s to, and cheers to, 2015.

Written by Leslie A. Holman, AILA President

The Happiest Day Still Shadowed by Injustice

shutterstock_190048664Yesterday was one of the happiest days in my life as an immigration lawyer.

I’m helping out pro bono with clients at the Karnes Family Detention Center in Texas and yesterday Immigration Judge Glenn McPhaul granted a $1500 bond to my client from El Salvador and her 19 month old toddler. They’ve both been incarcerated by our government for over two months.

My client is one of the bravest people I have ever met.  She has suffered through unspeakable domestic violence and gang abuse and is still just a teenager. We’re working now to post this bond and to get Mama and baby on their way to their sponsor in New York.

At the end of our hearing, Judge McPhaul turned to me and asked if I wanted to speak with my client.

I certainly wanted to explain to her in my best Spanish that we’d won the lowest bond amount possible from this court and that soon she and her toddler will be freed and traveling to New York. But I got so choked up I first had to compose myself.  With tears in my eyes,  I  explained the good news.  She also cried with joy and relief.  Everyone in the courtroom, including the judge, seemed to be very happy at that point.

Please understand that I’ve concentrated my immigration career on employment and family based

immigration cases. I was worried that my training and experience hadn’t prepared me for this kind of case, and that I hadn’t been around immigration court enough to be a competent advocate for my valiant client. Fortunately I wasn’t in this alone.

I had my long-time mentor, Barbara Hines, telling me why I needed to volunteer for a Karnes bond case, about the difference I could make, and her promise to help me.

I had another mentor, Kate Lincoln-Goldfinch. Kate was with me as I traveled to Karnes when we first met my client (and her own pro bono client). She accompanied me to two immigration court appearances in San Antonio including yesterday’s bond hearing.  Kate fielded my texts, emails, and calls, and gave me wonderful advice and encouragement.

There are a number of other wonderful lawyers who encouraged and helped me.  I now have a much greater admiration and respect for all pro bono immigration defense lawyers, and all the lawyers and support staff at the nonprofit agencies who fight these righteous battles each and every day.

Although I’m elated that my client and her baby will be free to await the remainder of their court proceedings while being kept safe and secure by relatives who wait with open arms, I’m absolutely appalled and disappointed that our country is detaining children and families.  It is unconscionable for our country to detain children and families.

The happiest day for me as an immigration lawyer will really be when family detention stops and when our government acts in a way that reflects our values and our history. That day is not today. I hope it’s coming  soon. I urge you to step forward to oppose family detention and help these clients who so desperately need our advocacy and protection.

Written by Paul Parsons, AILA Member and Karnes Volunteer

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If you are an AILA member who wants to volunteer at a family detention center, please go to http://www.aila.org/beavolunteer or feel free to contact Maheen Taqui at mtaqui@aila.org–we are looking for more as the work continues and we could really use your help.

If you aren’t able to come help in person, consider donating at http://www.aila.org/helpthevolunteers. And thank you!

To watch videos of the volunteers at Artesia and elsewhere sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.

Building on a Shared Moment of Community to Move Forward

AdminReform_300x200I was in the Copernicus Community Center last week, in the heart of Chicago’s Polish community, when President Obama stood in front of a diverse crowd of Chicagoans and made his case in support of the executive actions he announced on November 20. There was energy, there was excitement, and there was a sense of success. Finally after six years of waiting during his presidency, after more than two decades of waiting since the last legislative change, we were celebrating an important step forward.

At this point, we have had the opportunity to study the bundle of releases, memos, and other documents that made up the executive action announcement.  We know that plan includes expansion of the Deferred Action for Childhood Arrivals (DACA) program and a new Deferred Action for Parental Accountability (DAPA).  There will be new ways that entrepreneurs can contribute to our country, an expansion of the Optional Practical Training Program (OPT) and a promise to “modernize and improve the immigrant visa process.”

It has been an emotional time for many of our clients in the immigrant communities.  Practitioners in Chicago have seen a range of reactions depending on the way the program will affect their clients and their families.  Some have broken down crying, with tears of joy because of the hope engendered by the new deferred action options, or tears of sadness and frustration that they or their loved ones won’t be eligible to apply.  But that afternoon in the Copernicus Center, representatives of Latino, Polish, Asian, Irish, African and other communities gathered together to celebrate an important step forward for many of their members.

However, not all of the provisions in the executive action will benefit immigrant communities.  The executive action includes further militarization of the border and a continued commitment to massive expansion of family detention and deportations. The conditions and lack of due process that our pro bono members are seeing in detention centers like Artesia and Karnes represent violations of U.S. humanitarian and asylum law and the traumatization of children and mothers.

The President’s action could have also done more for business.  An effective immigration policy needs to drive innovation, commerce and job creation.  The executive action promises to provide some foreign students with helpful workarounds to the constraints of the H-1B cap, will hopefully ease some of the pressure of the employment based green card backlogs, and seeks to increase immigrant worker mobility.  But it does not provide the necessary fundamental changes to the system that employers need for them to be able to attract the best and brightest talent so that our economy can thrive.

The executive action is not perfect, and it does not go as far as many had hoped.  But it can and will change lives for the better and provide some relief to U.S. business. For those in the immigrant communities who will be able to emerge from the shadows, there will be many fresh chances to begin new lives with more opportunity, stability and dignity.

Unfortunately, notarios and other unscrupulous individuals are already emerging to profit from this moment of hope and excitement, often defrauding immigrants, and in some cases leading to denial of benefits or even deportation.  Here in Chicago, AILA lawyers are working hard with our colleagues in the non-profit service sector, Congressman Gutierrez, the City of Chicago and other allies to educate the community to minimize the risk to this vulnerable population.

Last week, among elected officials, civic leaders and members of the community, I had the opportunity to share a moment of celebration with the President in what has been a long and frustrating struggle to move immigration reform forward.  That afternoon, we emerged energized and ready to move forward.

The President’s executive action was an exciting development but it is a stop-gap measure.  Now Congress needs to do its job and provide us with the legislation for an immigration system that stimulates economic growth, promotes family unity and upholds the standards of fairness and due process that underlie our country’s legal and moral fabric.

Now is the time to harness our moment of celebration and move into next year with renewed energy and focus to achieve real reform.

Written by Marketa Lindt, AILA Secretary

Who Are We Turning Away?

Helping handA pregnant woman, separated from her husband in a time of regional conflict and instability, flees the central region of her country with a single suitcase and her 2 year old daughter and 1 year old son. The goal is to travel by train to the closest major southern land border in the hopes of reuniting soon with her husband who is fighting far away from home. Every day, people gather around the border crossing waiting for the gates to open and the glimmer of opportunity to cross into another sovereign land. If you miss the timing and fail to cross, the consequences may be worse than death. With her suitcase in one hand and her 1 year old son holding her other, her two year old daughter grabs onto her mother’s dress as the crowd pushes forward trying to get through. Immovable by the throngs of bodies pushing, the pregnant woman lets the crowd sway her and her children through to the protection promised by the neighboring country.

Once on the other side, she reevaluates her surroundings acknowledging the luggage in one hand, her son in the other and only then is aware that her daughter no longer clings to her dress. She screams amongst the shouting crowd, “Where is my daughter? Where is she?” On the other side of the crossing is the two year old daughter with her eyes only able to see the back of people’s legs unaware of where her family went. With a quick motion, she finds herself atop the shoulders of a man she does not know, a man wearing a business suit walking past the crossing. Disoriented, she is still unaware of where she is or how she lost her mother and brother. This little girl cannot tell time and does not know how long it took before she could her hear her mother’s cries and reunited with her. Without even realizing, this little girl is forever labeled by her mother as “lucky” in their native language. And the identity of the nice gentleman in the business suit is never discovered.

The tale told is not a unique story. Although it happened in 1949, it continues to be a story relatable in our present day. As a young child, I remember my grandmother recounting the horrors of a civil war that destroyed her comfortable life. I never understood what my grandmother meant when she said repeatedly that my mother was so very “lucky.” She rarely talked about everything that happened during that time that pitted Chinese against Chinese. I would only hear snippets growing up. But as I got older, I heard more from other family members, even as my mother told me she had a difficult time remembering much of anything during her younger years in Hong Kong.

When she passed away unexpectedly in 2011, I was in charge of taking care of all the family matters with her death. I vividly recall going through her unorganized stacks of important papers kept all over the house and finding a photocopy of a document titled “Refugee Resettlement Land Allocation” something or another. And in this document was a blurry photo of my mother and her family; her as a preteen and my youngest auntie in my grandmother’s arms.

My mother and her side of the family never lamented how they lost everything in the fighting. Instead, they talked about how grateful they were to be alive and the chances they took to ensure the family’s survival. Despite living in a shanty on a hill in Hong Kong, they were grateful for the British Colonial government’s generosity in allowing them to have a place to call their own, to be safe from harm.

I have spent almost 7 of my 8 years of practice as an immigration attorney hearing stories no different from my family’s own history. What my clients seek under the U.S. asylum law is no different than what my family sought when they asked for refuge in Hong Kong. My clients just want to be able to live their lives in safety, to give their children of the opportunities they didn’t have, to move on from a limbo state of violence and begin anew.

But things have gotten much harder. For instance, in 2008, my asylum clients could reasonably expect to have an interview and receive a decision within 4 months. Now, a current client finds themselves in a U.S. asylum system where the wait may be well over two years just for an interview to present their case before an asylum officer. In the meantime, they are ineligible to apply for work authorization until their case has been pending 150 days. And even once that deadline has passed, many face further delays and cryptic reasons for the inability of the U.S. immigration service to process their request.

In my practice, I find myself telling clients that they may wait years before an interview is scheduled. I find myself having to give them cold hard numbers to understand the uphill journey they will set themselves on if they decide to apply for asylum. I tell them that in our jurisdiction, the asylum office has over 10,000 backlogged cases waiting for an interview. I tell them that an average 900 new cases are submitted monthly with only 300-600 cases interviewed that same month.

During this time, they find themselves physically safe but still in a state of panic thinking of their families that stayed behind. The only way for them to bring their children or spouses away from the dangers in their country is for them to win their case. Unlike what my mother and her family went through, my clients find themselves living in limbo never knowing how long or when they may be able to tell their stories. They spend each day wondering when and if they can ever reunite with their family members in safety.

How did my family story end up? Well, at the age of 17, my mother was recruited to train as a nurse in England. She eventually immigrated to the United States in the late 1960’s and brought my grandmother, two aunts and two uncles to the U.S. My mother’s family was small. They only had each other. If my mother tried to bring over her family in the present day, it would most likely only be my grandmother that would be allowed to immigrate. The decades long wait times for brothers and sisters would eliminate any possibility of a timely reunification. What would be lost would be an entire generation of people. Every child from my mother and her siblings (we were all born in the U.S.) went on to graduate from colleges such as Notre Dame, University of Chicago, Vanderbilt, University of Southern California and University of Texas. This is what the U.S. loses out on when delays in adjudications go on for years.

As the immigration debate intensifies into politics, what often gets forgotten are the individuals, the living beings, affected by the current broken system. As rhetoric takes aim at increasing funding for enforcement and a growing police state near the borders, people lose sight of the lack of resources and funding needed to help people who are waiting in limbo.

Politics has gotten in the way of what truly matters in this debate: fixing the laws to reduce wait times, reinforcing existing infrastructure to allow the immigration agency and its employees to adjudicate cases, giving people the opportunity to have their cases heard and allowing people to begin their lives. Immigration is about people, not politics, and President Obama should do all he can to make our system work.

Written by Tammy Lin, AILA Media Advocacy Committee Member 

National Inaction Leads to Local Legislation

image On Friday, New York City’s (NYC) Mayor Bill de Blasio signed local legislation, Introductions 486-A and 487-A, which will significantly restrict the city’s cooperation with inappropriately broad federal immigration enforcement practices, except in instances where there are public safety concerns, i.e., criminal activity. Another effect of these bills is to end Immigration and Customs Enforcement’s (ICE) presence at Rikers Island prison and all City facilities.  A few of us attended the press conference, where the Mayor actually signed the legislation which will  go into effect in 30 days.

In essence, the bill drastically limits ICE’s use of the New York City Criminal Justice System as an arena in which it can enforce its removal and detention operations.  The new laws will lead to the release of many non-citizens who since the inception and implementation of the Secure Communities and Criminal Alien Programs have actually chosen to remain in criminal custody by not posting bail and refusing to resolve even the most minor of criminal cases in an effort to avoid their inevitable transfer into ICE detention.

Prior to this signing, New York Chapter members Cory Foreman and Hedwin Salmen-Navarro, testified in front of New York City Council, representing AILA’s position that the then current practice of detaining non-criminals was inhumane, cruel and financially crippling to an already vulnerable community.  As part of their testimony, they said:Neena 1

“In light of a number of recent court decisions holding that federal law does not require local law enforcement to honor detainers, a growing number of cities and municipalities across the country are refusing to cooperate with Immigration & Customs Enforcement following a foreign national’s release from police or Department of Corrections custody.  There are a number of legal, policy and humanitarian reasons why it is critical for New York City to stop honoring immigration detainers except in the most extreme cases.”

ICE issues detainers to local law enforcement agencies, such as the NYPD or Department of Corrections, asking them to hold an individual even after his or her cases have been resolved, often without a warrant. The detainers allow the person to be picked up by federal immigration authorities, who often hold the person for months before initiating deportation proceedings.

486-A and 487-A will limit the NYPD or Corrections to only honoring a detainer if it comes with a federal warrant, and even then, only if the individual in question has been convicted of a violent or serious felony in the last five years, or is a possible match on the terrorist watch list.

Mayor de Blasio has been a keen supporter and advocate for immigrant rights, and sympathizes greatly with the plight of undocumented workers.  I recall seeing him speak at the immigration rally October 2013, where he spoke in support of Comprehensive Immigration Reform.  As he signed these bills he said, “What these bills do is they protect the rights of undocumented immigrants, of visa holders, and legal permanent residents alike, all of whom have suffered under the previous approach, and ultimately prevent families from being torn apart.”

This is not the only immNeena 3igration stance he has taken.  The Mayor has also introduced the idea of municipal identification for undocumented individuals, and has always been a vocal advocate of the Dream Act.

The usual opponents and naysayers claim that these new laws restricting ICE’s scope of authority will compromise safety, however as we know, and as the Mayor conveyed at the press conference, undocumented immigrants will be more likely to approach police for help or with tips if they do not fear deportation.  He said: “When people understand in all cases police are here to protect, and will not be part of deporting, it will encourage people to come forward.”

Speaker Melissa Mark-Viverito also spoke at length about federal inaction causing harm by separating families and the pain for undocumented individuals, as they are unable to apply for any relief, nor leave due to the fear of not being able to return.

As we all anticipate some form of executive action, or see if this game of chicken or immigration stalemate will come to an end and we hope to see some significant, meaningful reform, local governments recognize the need for action.  I hope that local legislators continue their important efforts, but I think we all hope that the federal government starts acting soon, because immigration is a federal concern, not just a local one.

Written by Neena Dutta, AILA NYC Chapter Chair

Administrative Action Wish List, Part 3

AdminReform_300x200As immigration advocates we generally find ourselves in the position of trying to rationally explain rules and regulations that we personally find maddening. Maddening how? Well, come with me for a few moments as I sit down with “Muresh” and discuss immigration rules with him. He’s not real but, maddeningly, his story is.

Muresh is from India.  He came to the US when he was 18 years old.  He attended a prestigious US university and obtained his bachelor’s degree in computer science with honors.  Muresh decided he wanted to pursue a master’s degree in computer science and moved on to another US university where he earned his advanced degree. While studying for his master’s, Muresh met the love of his life, a fellow  student who also hailed from India. Muresh was thrilled, his fiancée was thrilled, his parents were thrilled. Life was good and soon they were married. Muresh and his wife obtained six figure positions in large employers in the IT field.

They were living the American dream. They were just like the “rest of us” or so they thought.  They bought a house in the suburbs, paid taxes on their salaries, went to the farmer’s market on Saturdays and out to dinner whenever they could.  Soon, they were expecting a child. Their joy knew no bounds. They had it all.

Then Muresh’s employer asked me to explain to Muresh why he and his wife would have to wait 8 years for a green card based upon the current system.  I was asked essentially to explain the unexplainable. Muresh sounded hopeful on the phone so I knew I would have to crush his hopes gently with the truth of the matter. Should I retell the EB-2 v. EB-3 story for the 100,000th time in my career? (Shorthand: very smart v. not smart enough.) Or should we just go with the reality that our antiquated system allows only 140,000 employment-based immigrant visas for hundreds of thousands of applicants?

While the system is antiquated and the maximum number of 140,000 employment-based immigrant visas is arcane for the world’s best economy, we can and must do better with the cards we have been dealt.  INA §201(d)(1)(A) does not proscribe the method of distribution for employment-based immigrant visas nor does it explicitly state that Muresh and his wife should be counted for two visas rather than one against the quota.  Therefore, it would seem that this issue is ripe for an administrative resolution.

The benefits to addressing the reallocation of employment-based immigrant visas are great.  It all breaks down to three points both political parties should agree on:

  • We are a nation that wants the best and brightest so why are we making those whom we claim to desire most wait the longest? We should be welcoming them and thanking them for staying to use their talents to benefit our great country.  After all, why is the United States educating these talented men and women if we do not want to keep them?
  • It’s the economy, right? All of these individuals are earning good salaries at employers around the USA.  They are paying federal and state taxes (well in Massachusetts they are paying state taxes).  They are buying houses, shopping and generally adding to our economy.  Why would we want this economic benefit to leave?
  • They’ve done everything right, they got in line! Isn’t that what all the hardliners tell folks to do?  Muresh got an F-1 visa, two or three H-1B visas (if he’s lucky) and then applied for a green card.  He did it all the right way.  Why is our messed up immigration system punishing him for doing exactly what he ought?

It boils down to this: by counting the principal immigrant and his or her derivatives as a single family unit, we would reduce the current immigrant visa backlogs in both the employment-based category and even the family-based preference category.  There is no rational reason to not employ this administrative fix to help thousands of people obtain their green cards and achieve their American Dreams.  We can do better, and we should, for the benefit of all.

Written by Matt Maiona, Member, AILA Media Advocacy Committee

Administrative Action Wish List, Part 2

AdminReform_300x200During the past several presidential election cycles, politicians of all stripes have acknowledged that our immigration laws are antiquated and need reform. Unfortunately, for all of their bluster, nothing has been accomplished through Congress. Lacking Congressional action, the President announced earlier this year that he will be issuing executive orders to address some of the problems in the current immigration system.

There are a number of actions the president can take through the Department of Homeland Security that would provide relief for many immigrants already in the U.S. while supporting family unity, promoting economic growth, and ensuring national security through documenting masses of people who are currently undocumented and unknown to our government agencies. One such action is through expanding parole in place (PIP) – a process that is familiar to DHS and the public and is already available to a small number of foreign nationals.

PIP is currently a form of relief available to immigrants who entered the country without authorization but have an immediate relative who has either served or is currently serving in the U.S. armed forces. The process currently involves the immediate relative service member or veteran applying for a parole document on behalf of the foreign national. Once granted, the foreign national receives a parole document that serves as an inspection document without having to leave the country and re-enter. With this parole document – and with an approved or concurrently filed I-130 – the foreign national might be eligible to adjust his/her status by using the parole document as proof of authorized inspection for the purposes of an adjustment of status. Of course, the foreign national still needs to be otherwise qualified to get a green card.

The authority for parole in place comes from INA § 212(d)(5)(A), which allows for the Secretary of Homeland Security to parole in foreign nationals who are seeking admission to the U.S. or who are already unlawfully present in the U.S.

President Obama should expand this system to include all immediate family of U.S. citizens. This would allow foreign nationals who have an immediate U.S. citizen family member who’s only bar of adjustment being their unlawful entry to the U.S. to be eligible for permanent residency. This, like the current PIP process, would not cure any other inadmissibility issues such as criminal activity, but would allow for otherwise law abiding residents of this country to gain legal, documented status.

This action would provide several benefits: providing for a permanent status for people who would be living in the country anyway, ensuring that residing foreign nationals are not separated from their immediate U.S. citizen family member, documenting previously undocumented people, and thus providing information and security for the rest of the populace.

There will be little or no expense to the government for doing this – since most immigration applications have a processing fee that DHS will use for their adjudication.

This action would also have the added benefit of unclogging much of the current immigration system by allowing for a quick and easy process for non-dangerous foreign nationals to gain lawful status and allow for DHS and ICE to spend their limited and currently stretched resources on detaining and removing violent and dangerous persons.

With so many benefits available in expanding PIP, President Obama should direct the Secretary to use his authority under the Immigration and Nationality Act to grant parole to unlawfully present aliens to all foreign nationals with immediate U.S. relatives.

Written by Ally Bolour, Member, AILA Media Advocacy Committee