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Over the 4th of July weekend, I devoured a fascinating book and, in the course of it, learned a new synonym for "bureaucracy" -- "cutcherry" -- taken from Hindi and apparently originating with the British East-India Company's bureau office in what is now Chennai.
The book, The Professor and the Madman ~ A Tale of Murder, Insanity, and the Making of the Oxford English Dictionary, by Simon Winchester, describes the unusual literary collaboration between Professor James Murray, who led most of the 70-year effort to compile the Oxford English Dictionary, and an American, Dr. William Chester Minor, acquitted of murder by reason of insanity and held for decades in a British asylum for the mentally ill. Dr. Minor was among the most prolific and insightful contributors to the OED, as this passage shows:
And yet as came the madness, so came the words. Many of those that fascinated him were Anglo -Indian, reflecting his birthplace: There were bhang, brinjal, catamaran, cholera, chunnam, and cutcherry. He liked brick-tea. By the time of the middle 1890s he became very active working on the letter D, and though there are some Hindustani words like dubash, dubba, and dhobi, he was interested also in what were regarded as the core words of the dictionary-- and contributions of quotations are in the Oxford archives for such words as delicately, directly, dirt, disquiet, drink, duty, and dye. He was able more often than not to supply the quotation for the first use of a word-- always an occasion for celebration.
For years Prof. Murray and his staff were astounded at the time and energy their contributor, Dr. Minor, devoted to the OED. They assumed that he was retired and did not know that his abundance of effort was a daytime remedy to keep at bay the psychological demons who assailed him at night.
Often it seems that our own immigration cutcherry, U.S. Citizenship and Immigration Services (USCIS), labors with the energy and effort of a Dr. Minor and the vast army of co-contributors who helped Prof. Murray compile the OED. Public outreach and engagements, both nationally and locally, are announced with great frequency, not just in English, but also in Mandarin, Cantonese, Vietnamese and Spanish.
The frequency and quality of these engagements are a testament to the man who introduced them, Alejandro Mayorkas, the USCIS Director the past four years. Director Mayorkas, himself an immigrant from Cuba, has made great strides in transforming the world's largest immigration agency, a cutcherry so plagued when he arrived that it became apparent to him that his first order of business was to instruct his staff to compile a list of all extant immigration policies and canvass the public about which agency practices and interpretations should be reassessed first.
An example of his leadership can be seen in two recent policy memos published last week with an invitation for the public to comment: Interim Policy Memorandum: PM-602-0086 Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO) and Final Policy Memorandum: PM-602-0087 Certification of Decisions to the Administrative Appeals Office (AAO).
Director Mayorkas spoke movingly of his immigrant roots, his accomplishments and his vision for the future of USCIS at what may have been his valedictory address at the American Immigration Lawyers Association annual conference in San Francisco last month, receiving a heartfelt standing ovation, rather than the usually perfunctory applause, from a too-often jaundiced immigration bar. On June 27, President Obama announced his attention to nominate Director Mayorkas to serve as the Deputy Secretary of Homeland Security, under Janet Napolitano, who likewise applauded the announcement.
Earlier last month, he also spoke at the annual symposium of the American Council for International Personnel, where a questioner asked how USCIS could possibly assemble the infrastructure and legions of personnel needed if comprehensive immigration reform with its innumerable changes to visa categories and a registered provisional immigrant category and prospect of citizenship for the 11 million or so unauthorized persons among us were to pass. He responded in reasonable granularity and then ended his answer confidently with: "We will be ready!"
I've not always agreed with Director Mayorkas, as more than a few posts on this blog will attest. For example, while the AAO has improved in speed and quality of adjudication in recent months, it remains afflicted by antiquated processes and too often exhibits faux rather than full-fledged justice that will not be remedied by the mere issuance of two policy memos, as I've noted before (here, here, here, here, here, here, here and here). See my listing of "25 Proposed Reforms to the Administrative Appellate Process within U.S. Citizenship and Immigration Services." (By the way, in reading the two new policy memos, I am reminded of one more reform -- USCIS should allow the public to recommend non-precededent AAO decisions as the Board of Immigration Appeals has done, see, e.g., Matter of Walsh and Pollard, which the BIA designated as precedent as the request of James Stillwaggon and yours truly many years ago.)
Yet I've long admired Director Mayorkas for his sincerity, diligence, commitment, intelligence, elocution, rhetorical flourishes and wit. He has faced his challenges from within and without, and addressed them with his resolute energy and drive, never losing sight of his oath of office and the people his agency helps and protects. Our consolation as immigration stakeholders is that once he leaves he'll likely not forget his experiences at USCIS and with the larger community, and apply his learning and insight to address the even more daunting problems faced by the Homeland Security Department, of which immigration is only one component. Godspeed, Ali Mayorkas. We will miss you but never forget you.
Updated 07-16-2013 at 02:17 PM by APaparelli
[Blogger's Note: Our guest blogger today is Careen Shannon, who is Of Counsel at Fragomen, Del Rey, Bernsen & Loewy, LLP and an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York. This is an updated and condensed version of an article Careen wrote for the online magazine Salon.com. Careen Shannon and Austin Fragomen blog about immigration issues at Fragomen on Immigration.]
No Longer Illegal, But Still An AlienBy Careen Shannon
When I lived in Japan in the early 1980s, they called me a gaijin: literally, an outside (gai) person (jin). While adults in the small town in which I initially resided generally satisfied themselves with staring at me wordlessly as I passed by, small children would often feign fear and yell “gaijin!” and then run away from me, screaming. I moved to Tokyo just when the film E.T. was released in Japan—which teenaged boys took as license to yell “E.T.!” when they saw me on the street. They tended to say it with a certain swaggering bravado, as if they were so above calling me gaijin like their country bumpkin cousins had done. But the implication in their clever pop culture association made my position in society clear, if it hadn’t been already: I wasn’t just a foreigner, an outsider. I was an alien. I might as well have been from outer space.
As Angelo has already reported here, and as I wrote recently in an article on Salon.com entitled “Stop Calling People Aliens,” the use of the word “illegal” to describe non-citizens who are present in the United States without authorization is finally beginning to die a well-deserved death, at least in the mainstream press. The announcement by the Associated Press in April that it would no longer use the word “illegal” to describe a person, only a status or an action, was quickly followed by a number of other major newspapers, including the New York Times, the Los Angeles Times and the Denver Post.
Despite this trend, the term “alien” remains not only in popular use, but also in the federal statute that regulates immigration to the United States, the Immigration and Nationality Act, which defines “alien” as “any person not a citizen or national of the United States.” The text of the comprehensive immigration reform bill recently approved by the Senate Judiciary Committee does nothing to upset this long-standing practice. Like the Japanese word gaijin, the word “alien” serves to exclude those upon whom it is bestowed. While it is true that Black’s Law Dictionary defines “alien” rather dispassionately as “[a] person who resides within the borders of a country but is not a citizen or subject of that country,” the colloquial use of the term is closer to its “regular” dictionary definition: “strange” or “repugnant” or “in science fiction, a being in or from outer space and not native to the Earth; extraterrestrial.”
Some may say that calling immigrants “aliens” doesn’t really matter, especially when the word is embodied in our law as a term of art. But I think it does matter, and I am not alone in this belief. When I was called “E.T.” in Japan many years ago, I could laugh it off because I knew that I would be returning to the United States once my graduate fellowship was complete. The epithet did not have any long-lasting impact on how I perceived myself as a human being. For immigrants to the United States, however, whether they are here without authorization or have immigrated through statutorily sanctioned channels, the lingering after-effects of the designation are undoubtedly harder to shake off.
As Professor Kevin R. Johnson, Dean of the University of California at Davis School of Law, has put it, “[t]he concept of the alien has … subtle social consequences…. [I]t helps to reinforce and strengthen nativist sentiment toward members of new immigrant groups, which in turn influences U.S. responses to immigration and human rights issues.” Keith Cunningham-Parmeter, an Associate Professor of Law at Willamette University College of Law, wrote a fascinating article for the Fordham Law Review in 2011 called “Alien Language: Immigration Metaphors and The Jurisprudence of Otherness.” In it, he applied research in cognitive linguistics to critically evaluate the metaphoric constructions of immigrants in U.S. law. He found that the three conceptual immigration metaphors that dominate legal texts—immigrants are aliens, immigration is a flood, and immigration is an invasion—influence not only judicial outcomes, but also social discourse and the broader debate over immigration reform.
A quick look at the history and etymology of the word “alien” in English is instructive. The word “alien” is thought to have entered the English language sometime between 1300 and 1350 from the Latin. The Latin word ali?nus derived from the earlier alius, meaning “other” or “else.” So an “alien” is, essentially, someone who comes from somewhere else. The Oxford English Dictionary (OED) cites the first legal usage as dating from 1522, in a law enacted under the reign of Henry VIII. Fast forward to early American jurisprudence, and the U.S. Constitution gives Congress the power “[t]o establish an uniform Rule of Naturalization.” The Naturalization Act of 1790—the first American law touching at all on the subject of immigration—provided the first such set of rules, allowing Congress to naturalize “any Alien being a free White person,” so long as such person met certain residence requirements, established that he or she was a person of good moral character, and took an oath or affirmation to support the Constitution of the United States. And thus was the word “alien” enshrined in U.S. immigration law.
What does outer space have to do with any of this? As it turns out, the use of the word “alien” to refer to creatures from outer space is much more recent than one might imagine. The earliest uses of “alien” as a noun to refer to extraterrestrials date from the early twentieth century. In 1935, Earl Binder wrote of a “Robot Alien” in the pulp science fiction magazine, Wonder Stories. In 1931, Nat Schachner & Arthur Leo Zagat wrote about “ten-foot tall aliens” in Venus Mines. And in 1912, Edgar Rice Burroughs (best known for his Tarzan stories) had a Martian character in A Princess of Mars call earthling John Carter “an alien.” This means that we had already been calling foreigners aliens for centuries before we started using the word to refer to extraterrestrials.
The surprising conclusion this leads to is that it’s not that we think foreigners resemble Martians, it’s that we think Martians resemble foreigners. Put another way: it is not the case that, the first time we saw a foreigner, he reminded us of an imaginary space creature. Rather, when we in the English-speaking world first conceived of the possibility (or at least first started writing about the notion) that there might be Martians (green skin and all that), the only image we could bring to mind was of a foreigner—and therefore the only word we could think of using was one that we already used to describe odd, strange, foreign beings. The fact that we appear to have named extraterrestrials after foreigners, rather than the other way around, reveals both the fear and the nativism at the heart of the immigration debate, and we ignore this at our peril.
Dismissing objections to calling immigrants “aliens” as political correctness run amok misses the point. The fact is that language has power. Changes in how language is used can lead to changes in how power is wielded. For example, nowadays, it is socially unacceptable for a white man to call a black man “boy,” but for years this was accepted practice in polite society—and, it is now commonly understood, not only reflected white society’s racism, but served to perpetuate the oppression of African-American men. Calling a grown woman a “girl” has a similarly belittling effect, and the fact that the practice has not yet been universally repudiated tells us something important about the continued inequality of women in American society.
As Professor Catherine MacKinnon of the University of Michigan Law School has written, “Social inequality is substantially created and enforced—that is, done—through words and images.” Referring to immigrants as “aliens,” when “alien” is commonly understood to be derogatory (whether because it means foreign, or strange, or brings images of extraterrestrial space creatures to mind), not only reflects immigrants’ place in American society, but in a very real way it enforces it. And be honest, now: which of the following is closer to what comes to mind when you hear the term “illegal alien” or “undocumented alien”—a German graduate student who has overstayed her visa, or a Mexican laborer who has illegally crossed our southern border? I think it’s a safe bet that, whatever your political persuasion, you were more likely to think of the Mexican.
In her seminal book, Language and Woman’s Place, linguist Robin Lakoff declared that “[l]inguistic imbalances are worthy of study because they bring into sharper focus real-world imbalances and inequities. They are clues that some external situation needs changing….” While she was specifically discussing terms she considered demeaning to women, her point is equally relevant to terms that are demeaning to immigrants. Lakoff has also said that “linguistic and social change go hand in hand: one cannot, purely by changing language use, change social status.” It is, however, sometimes difficult to tease out what is cause and what is effect. Does social change create language change, or does language change create social change?
My article in Salon generated a lot of comments, most of which were unpleasant and aggressive, to put it mildly. One person even went to the trouble to track down my email address, and sent me a lovely piece of hate mail. This all just proves the point that the term “alien” is loaded with prejudice. While changing the language won’t eliminate the prejudice, sometimes the best thing one can do is to shine a light on a problem. The responses to my article certainly indicate that I hit a nerve.
According to Lakoff, “[A]t best, language change influences changes in attitudes slowly and indirectly, and these changes in attitudes will not be reflected in social change unless society is receptive already.” As a member of a community of lawyers, scholars, advocates and others who work with, and care deeply about the plight of, immigrants in this country, I feel that we have a duty to do what we can to make society receptive already. So let’s stop calling non-citizens aliens. Let’s just call them people.
Updated 07-16-2013 at 02:20 PM by APaparelli
Andrew Jackson had his "Kitchen Cabinet," Franklin Roosevelt his "Brain Trust." Seth Godin has his "Tribes," web-based "silos of interest."
I've been a member of many tribes (as I write this I'm recalling my tattered T-shirt from my own and my adult daughter's Indian Princess days, many moons ago [click here to see the shirt]).
In the Googlean sense, immigration lawyers likewise have their "circles" (if a noun can become a verb, I guess it can be an adjective as well). We lawyers of the immigration arts congregate privately in many places including local bar associations, on IMMLOG (a practitioners' list serve run by Kevin Dixler) and IMMPROF (a list serve for professors of immigration law, hosted by Hiroshi Motomura), through the American Immigration lawyers Association (the national immigration bar), which has a New Members Division, a group for Senior Lawyers (known as the Silver Foxes, led by Ken Stern), and numerous AILA Interest Groups. There's even "Cool Immigration Lawyers," a private meeting place on Facebook "for cool immigration attorneys who think it is awesome to help people and to insist on justice for everyone."
My prime immigration tribe is the Alliance of Business Immigration Lawyers (ABIL). It's expanded wonderfully over the last 10+ years since I founded it; but it still performs its original mission very well. ABIL was established on the principle of "competitive empathy," the notion that although we operate in separate law firms, "none of us is as smart as all of us." I liken it to a 12-Step Group for battle-weary immigration practitioners who acknowledge we're "powerless" over the ever-crashing waves of change washing over our chosen field of law.
The most recent tsunami -- the Obama Administration's program of immigration enforcement abatement, known as DACA (Deferred Action for Childhood Arrivals) -- has flooded the immigration tribal counsel with challenges and questions since August 15 when U.S. Citizenship and Immigration Services (USCIS) released DACA forms, instructions and FAQs. These include Form I-821D, Consideration of Deferred Action for Childhood Arrivals, with nine pages of instructions, Form I-765WS, a work-need worksheet, and a DACA web page with FAQ.
The challenges include concerns among DREAMers and immigration community-based organizations that lawyers may price-gouge to handle DACA cases, reflected recently by perhaps the most-famous DREAMer, Jose Antonio Vargas, who tweeted from @Joseiswriting on August 16: "I try to be positive, but there is a special place in hell for lawyers who take advantage of #DACA by overcharging, etc." (I tweeted back to Jose, who is my client: "[Jose]: Please don't jump to conclusions. You need to know the facts of the case to know if the fee is fair or foul." He responded by kindly urging his Twitter followers to follow: "@angelopaparelli: a great lawyer who's been advising me and, in turn, keeping me sane. [T]hank you for the help and support!")
The flip side of this concern is the difficulty individual immigration lawyers have had setting an ethically proper and reasonable fee in a practice area where fixed, project-based fees are the norm. Outside observers without an institutional history of how immigration-benefits programs have been (mis)managed might naïvely assume that the task must not be too complex, just three forms, the I-821D, the work permit application and the corresponding worksheet to show economic need, supported by written proof of a few "simple" facts (entry to the U.S. before age 15, five-years of continuous presence as of June 15, 2012, presence in the country on that day, no older than 30, and no serious criminal history.) They would be mistaken.
USCIS knows that Congress, the Media, the Presidential campaigns, and the pro- and anti-immigration interest groups will be watching closely to see whether the agency can handle the estimated 1.7 million youth potentially eligible for DACA, whether fraud will infect the program or be minimized, whether the agency will act with humanitarian compassion under law or ICE-like negativity in exercising prosecutorial discretion, and whether employers who help a DREAMer acknowledge physical presence and past or current employment in the U.S. will face investigation and enforcement actions by USCIS's Fraud Detection and National Security Directorate (FDNS) or by ICE.
The immigration bar, electronically-transmitting the 21st Century equivalent of tribal smoke signals over these last frenetic days, knows that immigration confusion and complexity will flourish like a Chia pet on growth hormones as USCIS's implementation of DACA unfolds. Witness the many unanswered issues and concerns that DACA has generated as reflected in the notes of the USCIS's DACA Public Engagement on August 14, provided courtesy of Sally Kino****a, an immigration lawyer and Deputy Director at the Immigrant Legal Resource Center (ILRC), the ILRC's DACA Criminal Bars Chart, and postings of the American Immigration Council by its Legal Action Center (DACA Practice Advisory) and Immigration Policy Center (Deferred Action for Childhood Arrivals: A Q&A Guide [Updated]).
Even the most mundane issues involve significant costs that clients or lawyers must bear unless answered soon. Attorney Marty Rosenbluth, Executive Director at the North Carolina Immigrant Rights Project asks of Facebook's "Cool Immigration Lawyers":
I know that some questions USCIS/DHS/ICE will answer with "it depends on the totality of the circumstances", but I think we can get a clear answer to a few questions before we start filing hundreds of these things. If we go through all the trouble of tabbing the appendices, are they going to be stripped off so the documents can be scanned before the person who will be deciding actually reads it? We thought it would make the [applications] easy to follow, but if they are just going to be stripped off beforehand we won't bother.
Also, we were thinking of using color coding, but if the scans are [black & white] there is no point there either.
* * *Thank goodness for immigration-lawyer tribes. Besides "help[ing] people and . . . insist[ing] on justice for everyone," while trying to keep our staffs paid and doors open, we also dedicate our time and talent to advise and represent DREAMers as they wade through DACA's treacherous waters. Were it not for these collegial tribes, many of us (probably myself included) would have thrown in the towel years ago, mirroring the fate of Murray Burns, the protagonist in Herb Gardner's A Thousand Clowns.
Played by Jason Robards in the classic 1965 film, Murray explains why he finally had had enough and quit his job as TV personality, Chuckles the Clown. While ordering a martini one evening after work, he was asked by the bartender if he wanted an onion or olive with it. Murray responds: "Gosh and golly, you betcha!" We are not clownish robots with pens and swords. Our immigration tribes help remind us of who we are and why we do what we do.
[Blogger's postscript] Although I'd seen the film and loved it, I couldn't find the Chuckles the Clown quote on the internet except in stray chats and a web-published book, The Robot's Pen and Sword, by an unnamed author whose site is the source of the photo above.
[Blogger's post- postscript]My last blog post, Immigration D-Day for DACA: Get Protection!, generated a thoughtful, heartfelt critique by a good friend, and fellow immigration tribesman, Gary Endelman. Gary took me to task for my "use of the Holocaust as a standard of comparison" to the plight of the DREAMers. On reflection, I was wrong, and apologized to Gary, and now do likewise to anyone else offended by my inapt metaphor. Gary, who is not only an immigration scholar of well-deserved repute, but also a Doctor of History, gave me permission to follow up on my blog to communicate a larger point, which he eloquently laid out, and with which I fully agree:
I would simply urge that we all respect the historical integrity of each experience and not use any incident or event as a catch phrase to describe something that, while horrible, may be fundamentally different. The historian in me.
I think you might want to follow up this blog with another one that perhaps can capture the larger point, which is that whenever any nation denies those who live there the human right to become all that they are capable of being, whenever we violate the essential human decency of our friends and neighbors, whenever we ignore what unites us to focus on what divides us, that is the seed corn for intolerance and hate.
I also apologize to any Native Americans and others who may have been offended by my fondly recalled participation in the Indian Princesses, a Girls-Dads group sponsored by the YMCA's Indian Guides. No offense is intended; only admiration for the Indian nations' wholesome, natural and eco-friendly way of living on the earth.
Updated 07-16-2013 at 03:21 PM by APaparelli
[Blogger's note: Tomorrow, August 15, 2012, is perhaps as momentous to DREAMers as D-Day, June 6, 1944, was to The Greatest Generation. The invasion of Normandy marked the end of World War II in Europe and the fall of a tyrannical Nazi regime that made mincemeat of the rule of law.
Though the comparison may seem hyperbolic to some, I remember well my first visit to the Holocaust Memorial Museum in Washington. As a lawyer, I was stunned by Hitler's atrocious perversion of the legal system, the issuance within a half-year after the Nazis' 1933 ascendancy to power of what would become roughly 400 decrees and regulations that "restricted all aspects of the public and private lives" of Jewish citizens.
Conversely, doors that have been legally shut to persons solely by virtue of their status are now to be opened a tad, as Julia Preston of The New York Times notes in today's edition. She reports on the Obama Administration's temporary clemency program, Deferred Action for Childhood Arrivals (DACA), which may lead to the grant of employment authorization for youthful entrants to America found worthy of discretionary de-escalation of enforcement by U.S. Citizenship and Immigration Services (USCIS):
The work permit young immigrants can receive with the deferral opens many doors that have been firmly shut. They can obtain valid Social Security numbers and apply for driver’s licenses, professional certificates and financial aid for college.
Thus, just like those for whom the Allied invasion of Normandy launched a new life, one transformed from the status of a nonperson to that of a free member of society, DACA stands as a tiny step in the direction of reversing the application of perverse laws. In this case the perversion of laws are found in America's Immigration and Nationality Act, a statute chockablock with befuddling provisions that punish innocent children for the mistakes of their parents.
USCIS has today issued DACA instructions and forms: Form I-821D, Consideration of Deferred Action for Childhood Arrivals, with nine pages of instructions, a Form I-765WS, a worksheet to establish one's economic need for employment, and a Form G-1145, E-Notification of Application/Petition Acceptance, and has published a DACA web page with FAQ along with a warning about "Avoiding Scams and Preventing Fraud." The agency also dove deep into the minutiae of the process in today's telephonic Public Engagement which answered many but by far not all questions. The engagement followed an earlier internal tussle within DHS over the contours and devilish details of the program reflected in a 92-page draft as reported recently by FoxNews.com ("DHS document shows Obama administration wrestling with 'DREAM Act' policy").
When it takes the government almost 100 pages to tussle internally over the fine points of a discretionary policy, the question arises whether a DACA applicant should be represented by legal counsel. Recently, in a YouTube video, two federal lawmakers, Senator Dick Durbin and Representative Luis Gutierrez, usually immigration-reform stalwarts, said a lawyer's help was unnecessary. Curiously, the link now reflects that "[this] video has been removed by the user."
Perhaps the takedown occurred because of a flood of postings that challenged the legislators' suggestion: See, Do DREAMers really need a lawyer? and Dreamers Do Need Lawyers and Obama's immigration changes cause confusion and Do You Need an Attorney to Apply for Deferred Action for Childhood Arrivals (DACA)?
My guest columnist, Karin Wolman, agrees that a lawyer's counsel and representation is necessary in DACA cases (as do I). I recall the mess created by the legacy immigration bureaucracy, Immigration and Naturalization Service, when it tried to interpret and implement a comparable change in policy, the 1986 legalization program, a misguided agency effort that spawned decades of litigation. So, DREAMers, don't take a chance. Even if you think your case is straightforward, get good referrals, and talk to a competent lawyer who regularly practices immigration law. Your life as a nonperson will end and your civil rights will be recognized only if you do DACA right.]
Durbin & Gutierrez Put DREAMers at RiskBy Karin WolmanSenator Dick Durbin and Representative Luis Gutierrez released a video message to the DREAMers on August 6 that is one of the most irresponsible and dangerous public messages from a voice of authority in living memory. It is a deep disgrace that supposed champions and co-sponsors of the DREAM Act would advise young people who are eligible for Deferred Action for Childhood Arrivals, "Do Not Hire a Lawyer." Yet Sen. Durbin said those words, doing a huge disservice to the very vulnerable class of people they are ostensibly trying to help.
These elected representatives perpetuate a dangerous source of confusion between unscrupulous "notarios" who engage in the unauthorized practice of law, and licensed, trained attorneys who are subject to ethical rules and have the ability to advise DREAMers properly on the process and potential consequences of applying for Deferred Action for Childhood Arrivals.
An experienced immigration lawyer who has carefully reviewed the applicant's background and documents can ensure that DREAMers file applications which will have the best possible chance of success. This is why Senator Durbin's patently false claim that "Virtually everyone will be able to go through this process without a lawyer," is so disturbing. Perhaps he has already forgotten that the Deferred Action application process includes no right of appeal, and permits no motions to reopen. This is a one-shot opportunity. Applicants must get it right on the first try, or else they face a discretionary denial that is final and cannot be reviewed.
Perhaps Sen. Durbin and Rep. Gutierrez have also forgotten that both USCIS and ICE have extremely poor track records with respect to granting any forms of discretionary relief to applicants who are unrepresented by counsel. The memos of June 2011 from ICE Director John Morton authorized broad use of prosecutorial discretion for those already in proceedings who have no criminal convictions, but the rate at which such relief has been granted in immigration courts is less than 2%. Self-represented applicants who misunderstand any of the Deferred Action criteria and thus fail to interpret their own eligibility correctly, or who get the standard right but provide documentation that USCIS regards as insufficient, or who believe that the information they provide will remain confidential, may be placing themselves and their families at risk of deportation. These are some of the key reasons why it is so very important for DREAMers seeking Deferred Action for Childhood Arrivals to consult with a knowledgeable
immigration attorney or legal service organization, and why the message from Messrs. Durbin & Gutierrez will do real harm.
Updated 07-16-2013 at 03:22 PM by APaparelli
[A] riddle, wrapped in a mystery, inside an enigma" ~ Winston Churchill
The most quotable of British Prime Ministers could well have been talking about the American immigration system rather than describing Russia in 1939. U.S. immigration law is like stratified rock, revealing layer on layer of Congressional accretions laid down over many years, with the superstructure upended in tectonic shifts triggered by the baffling and contradictory interpretations of multiple agencies and courts. Not surprisingly, Thomas Stanley in The Millionaire Next Door recommended immigration law as a career, predicting that many foreign citizens, whether affluent or less so, would find America an attractive destination and need a chaperone to guide them through the maze of red tape.
If Congress ever grows enough of a spine to tackle comprehensive immigration reform, it must do more than merely resolve the big items -- border and interior enforcement; legalization of unauthorized migrants already here; and a plan for future flows of sojourners and permanent residents. It must also strive to simplify the law.
Consider what should be a straightforward concept -- following the rules. How does a noncitizen comply with the immigration laws? What does it take to maintain legal immigration status? Sadly, the answer is as clear as fracking fluid runoff.
For example, without any malevolent intent or affirmative act of misconduct, a temporary entrant (a "nonimmigrant") through the action of a third party, say a parent or spouse, a spouse's employer, a university official, or a lawyer, can "fail to maintain nonimmigrant status," be in a condition known as "unlawful presence" and "not [be] in a lawful nonimmigrant status" -- three phrases in law or regulation that often don't mean the same thing. Thus, a hapless individual may be seen by the authorities as having violated legal status but not be unlawfully present. This could occur, as one example among many, where the person is the spouse of a J-1 exchange visitor who is working under a form of employment permission known as curricular practical training, and the J-1 worker is fired. (This outcome would arise because unlawful presence only occurs if one overstays the period of status authorized, and an exchange visitor, like an academic or vocational student, is admitted for "duration of status," a condition that carries no date-certain expiration. Go figure.)
Or, a foreign citizen can depart the U.S. holding a government certificate allowing permission to return (known as "advance parole") and then reenter in order to await the grant of a green card under the adjustment of status process. Such a person would not have maintained nonimmigrant status -- indeed would not have any legal status (because parole is not a status) -- and yet would not have violated the immigration law. In essence, he or she would be in a non-status as an applicant under color of law awaiting the grant of a pending benefit.
Or, consider a foreign person with a U.S. work permit. As I've noted in an earlier post about human levitation, you may have the right to work here but not to be here.
Or, you might have successfully changed or extended your work-visa status for one, two or three years and received from the immigration authorities an official approval notice with a clip-out status permit (the Form I-94) bearing a validity period, leave the country for a trip to see Grandma, and be readmitted with a new I-94 for a significantly shorter period. This occurs because one component of the Homeland Security Department, U.S. Customs and Border Protection (CBP), limits the I-94 to the expiration date of one's passport, while another DHS component, U.S. Citizenship and Immigration Services (USCIS), ignores the validity period of the passport, and holds that as a condition of maintaining nonimmigrant status you must always make sure your passport is unexpired.
Often, the CBP inspector at the port of entry says nothing about having short-changed the expiration date on the I-94; hence, the entrant may not realize his/her status document has been unduly shortened. The too-frequent result: An unwitting overstay occurs, thereby triggering unlawful presence. And even if the shortening of the status period is noted, the individual could reasonably believe that the longer of the two I-94s (in this case, the clip-out version) prevails over the shorter expiration period. Or s/he may be misled by the DMV who issues a driver's license with a validity period extending to the end date on the clip-out I-94.
Whether or not the person is confused or misled, a USCIS adjudicator, a consular official abroad, a CBP inspector, an Immigration and Customs Enforcement officer or an immigration judge, when examining the person's immigration compliance history on some future date, may well deny an immigration benefit, refuse a visa, prevent entry or order removal -- all because of confusion over the simple concept of maintaining legal immigration status.
If that's not complicated enough, the legacy agency, the Immigration and Naturalization Service, repeatedly floated a notion (not a published regulation) known misleadingly as the "last action rule" in order to reconcile discrepancies in ending dates on two or more I-94 status documents. The "rule" sounds simple enough: Whichever status was the last one granted ("the last action") controls the person's nonimmigrant status. Except, however, where the last action granted was based on a change rather than an extension of status, then the last action rule is inapplicable. For the stew that is the last action rule, see these confusing links: Bednarz letter, Cook Memo (and referenced Simmons letter), Hernandez letter, and unapproved AILA/INS October 17, 2001 liaison meeting minutes (Item II).
Still worse, if the immigration laws make it virtually impossible to know who's in legal status, they make it harder than a Rubik's Cube to figure out who's here illegally, as DREAM activist Prerna Lal explains in "It's More Complicated than Legal vs. Illegal," her open letter to Ruben Navarette -- which challenges his defense of the slur, "illegal immigrant."
If my effort to explain the mumbo-jumbo of immigration violations and last actions remains confusing, I ask your pardon. Be heartened, however, that errors of these types can be fixed -- assuming that the immigration agency exercises its heart (which it occasionally does). Still, it's a shame USCIS doesn't heed its stakeholders by expanding the areas of forgivable infractions and Congress does not write intelligible immigration laws for law-abiding individuals to follow, a code unlike the current immigration statutes that "yield up meaning only grudgingly" to reveal "morsels of comprehension [which] must be pried from mollusks of jargon."