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[Blogger's note: Once again the prolific and ever lucid Careen Shannon offers fresh insights on another facet of our dysfunctional immigration system. Today, she shows why gender bias taints America's immigration system, and what should be done to eliminate structural bias as part of comprehensive immigration reform.]
Immigration Reform Must Redress the Current Law’s Gender Biases
by Careen Shannon
As 2013 comes to a close, we are no closer to comprehensive immigration reform (CIR) than we were when a newly elected President Obama optimistically promised that such reform would occur during his first year in office. Advocates for immigrants have not lost hope, but it seems clear that if and when reform comes, it is unlikely to resemble the compromise hammered out in the Senate’s bipartisan comprehensive immigration reform bill (S. 744). This does, however, give women’s rights’ advocates an opportunity to look at the ways in which both our nation’s current immigration system, and the reforms to that system that the Senate incorporated into its bill, fail to adequately address the special needs of immigrant women and their families. Maybe there is still hope that we can get it right.
As documented in a report (“Gendered Paths to Legal Status”) issued by the Immigration Policy Council, immigration laws which appear gender neutral “actually contain gender biases that create barriers for many women trying to gain [lawful status] within the current immigration system.” Specifically, “immigration laws assume dependencies that privilege male applicants over females and that often make women an afterthought.” Below are just a few examples of how this is so.
Family-Based ImmigrationMost people who immigrate to the United States do so on the basis of family ties. In Fiscal Year (FY) 2012, more than 1,000,000 people immigrated lawfully to the United States, and nearly 66 percent of them did so based on a family relationship with a U.S. citizen or lawful permanent resident. There is a notable gender imbalance, however, with approximately 70 percent of immigrant women (compared to 61 percent of men) obtaining lawful status by qualifying for family-based immigrant visas, according to government data.
For persons immigrating as the spouses of U.S. permanent residents, there are lengthy backlogs—sometimes lasting many years—that keep families separated. Since the sponsor in these types of cases is generally the man, this means that it is mostly women who suffer the consequences of the statutory and administrative backlogs that plague these visa categories, often languishing abroad for years, or living in the shadows in the United States.
In addition, our family-based immigration system prioritizes the nuclear family, and makes it difficult if not impossible for extended family members to immigrate. For example, if an adult U.S. citizen were to file a petition today to sponsor her brother or sister for permanent residence, that sibling would have to wait anywhere from 15 to 30 years (depending on country of birth) for a green card. Under current law, adult U.S. citizens can sponsor their parents for permanent residence, but permanent residents cannot, which forces many families to make hard choices about how to care for elderly parents left behind in their home countries.
Employment-Based Immigration Foreign nationals can also immigrate to the United States, or live here lawfully on a temporary basis, if a U.S. employer hires them and sponsors them for an employment-based visa. Here, there is an assumption that men are the breadwinners and women are dependents.
Most temporary work visa categories, for example, do not grant work authorization to spouses who accompany the sponsored worker, which perpetuates women’s dependency. Both the immigrant (permanent) and nonimmigrant (temporary) employment-based visa categories favor men, largely because they are increasingly skewed toward encouraging the immigration of workers in the so-called STEM fields (science, technology, engineering and mathematics), who are overwhelmingly male. Immigrant women in the United States mostly toil as domestic workers, and with only 5,000 immigrant visas available each year for unskilled laborers (and yes, childcare workers and other domestics are considered unskilled workers), it is virtually impossible for a nanny or other domestic worker to secure lawful status.
Asylum & VAWA When it comes to asylum, which can be granted to foreign nationals who have a well-founded fear of persecution in their home countries, women often have a harder time qualifying than men. Women are often not recognized as independent political actors, and thus political activities which have subjected them to persecution are often dismissed. Harms that are unique to women—including female genital mutilation, gender-based violence, forced marriage and honor killings—are often similarly rejected as constituting persecution.
Even laws enacted specifically in order to benefit immigrant women, like the immigration-related provisions of the Violence Against Women’s Act (VAWA), often create obstacles to women seeking lawful immigration status. For example, VAWA allows a battered immigrant woman to self-petition for permanent residence (rather than having to rely on her citizen or permanent resident husband to file a petition on her behalf), but she needs to demonstrate that she was living with the man who battered her. This can be challenging when it is only the husband who has lawful status and when all relevant documentation—leases, bank accounts, utility bills, and the like—is in his name alone and under his control.
How the Senate Bill Would Have Helped Immigrant Women So will immigration reform improve prospects for immigrant women and their children? There are a number of provisions in the CIR bill that passed the Senate (and in a similar House bill, H.R. 15, which was introduced by House Democrats in October) that would make it easier for undocumented women to legalize their status. For example, while the normal path to permanent residence under the Senate’s proposal would require applicants to be regularly employed, there would be waivers available that would benefit some women (such as those who are pregnant, or who serve as the primary caregivers to minor children).
The existing family-based immigration system would be amended to allow spouses and minor children of lawful permanent residents to immigrate without any annual quotas (currently the case only for parents, spouses and minor children of U.S. citizens), although parents of permanent residents would still be excluded.
Immigration judges would be empowered to close deportation proceedings if a person’s deportation would create hardship for his or her child or children (so long as those children are permanent residents or U.S. citizens). Currently, overzealous immigration enforcement disproportionately affects women, causing separation from loved ones and often leading to termination of women’s parental rights, but the Senate bill would protect women’s (and men’s) parental rights while they are detained pending deportation.
How the Senate Bill Failed to Redress Existing Gender Inequities But there is much in the Senate bill that would be harmful to women, and these shortfalls should be addressed in any new reform efforts. For example, the requirement for an undocumented immigrant to document employment in order to maintain lawful status would create special barriers for immigrant women, who overwhelmingly work in the informal economy and would be hard-pressed to provide such evidence.
Overall, the Senate bill proposes a de-emphasis on family-based immigration in favor of more immigration of persons with advanced educational credentials and professional skills, and this would make it more difficult for women, who typically do not have equal access to higher education in their home countries. The current immigrant visa category allowing adult U.S. citizens to sponsor brothers and sisters for permanent residence would be eliminated, and this category now primarily benefits women. Given that women largely depend on the family-based system to immigrate legally to the United States, all of these changes would have a disproportionately negative impact on women.
The Senate bill would also require certain milestones related to border security and enforcement to be met before undocumented immigrants could become permanent residents—and any bill with any hope of passage in the House would undoubtedly contain even tougher security-related triggers. But the truth is that we have already exceeded all current goals related to border security and immigration enforcement, without accounting for the disproportionately negative collateral consequences of such enforcement on women and children.
In a period of just over two years, the U.S. government issued more than 200,000 deportation orders against parents of U.S. citizens—children who were born in the United States—leaving many of those children behind in the child welfare system. Older children, who may have been brought to the United States as infants and consider themselves American notwithstanding their lack of lawful immigration status, are often shut out of educational and vocational opportunities. While some such youth have been able to benefit from the Obama Administration’s decision to decline to deport them, absent passage of The DREAM Act or similar legislation, the future remains bleak for these individuals.
Looking Forward Immigration reform will not succeed if it fails in its obligation to protect women, who constitute 51.1 percent of the foreign-born population in the United States, or if fails to bring immigrant children into the mainstream. Once our dysfunctional Congress gets back to actually doing its job—to actually governing—immigration reform needs to find its way back onto the legislative agenda. When it does so, the needs of women and children should be specifically addressed if immigration reform is to have any real meaning.
Updated 12-23-2013 at 02:08 PM by APaparelli
Update, December 23, 11:48 am:
The link to the Guardian article discussed below dealing with border militarization is:
Also see Julia Preston's December 22 NY Times article about Obama's relentless ongoing deportations: Amid Steady Deportation, Fear and Worry Multiply Among Immigrants.
Update, December 23, 5:32 am:
It is not only 11 million unauthorized immigrants who are affected by the double whammy of hypocrisy evident in the House Republicans refusal to consider any legalization bills, combined with President Obama's refusal to grant large scale relief from deportation through administrative action, as described below. A December 21 article in the Guardian also provides details about the hardship and suffering experienced by 15 million people affected by the administration's policy of militarizing the Mexican border, something which has been much less widely reported.
In his article: America's biggest unfinished business in 2013: immigration reform, the Guardian's Matthew Campanella writes:
"The effort to pass immigration reform legislation in 2013 was not only a failure, but also showed a profound lack of concern for the safety and well-being of the people living in the border region. The current focus on militarization in an insulting and ominous foreboding into the future of the border region and shows that Congress is out of touch with the needs of the 15 million people who live and work there..."
He also condemns the final version of the Senate passed CIR bill (S. 744) which, among other border militarization provisions, hands over $43 billion in tax dollars to private defense contractors, stating:
"The continued focus on the failed militarization strategy shows that Congress is more interested in lining the pockets of private defense contractors than in improving the lives and safety of the Americans who live in the border region." (Emphasis added.)
The focus on militarizing the border is just another example of the hypocrisy in both parties that is blocking reform which would actually better the lives of tens of millions mainly Latino, Asian and black immigrants and US citizens, instead of merely continuing or aggravating the police state repression at the root of our current immigration system.
Update, December 22, 6:27 am:
A December 21 article in The Hill quotes Harry Reid as predicting that John Boehner will allow the House to pass immigration reform in 2014. See: Reid: Boehner will cave in on immigration reform next year.
However, the same article also states that the House's bigot-in-chief, (my phrase) Rep. Steve King (R-Iowa), is still leading a group of Tea Party members in a movement to kill any House reform bill, in order to avoid going to conference with the Senate at all costs.
Nor does The Hill's article contain anything new about whether a House immigration bill or bills, if there are any, would include legalization for 11 million unauthorized immigrants.
There is still good reason to believe, therefore, that the House's "piecemeal" strategy is only a tactic to avoid doing anything about legalization, while creating an illusion that Republicans are also interested in immigration "reform".
But without legalization, what is "reform", except for tinkering around the edges with a few more visas here (skilled and agricultural workers) and a few less visas there (no more Latin American or Asian siblings of USC's, and no more diversity lottery green cards for Africans)?
Thus, the immigration reform hypocrisy in both parties continues, with the Republicans continuing to claim to support reform while blocking legalization, and with Obama refusing to extend relief from deportation beyond that which he has already granted, while blaming the Republicans alone for the fact that he himself has kicked out almost 2 million people since he became president.
My original post follows:
POLITICO's December 20 article entitled: Obama renews call for Senate immigration bill highlights the dilemma that 11 million immigrants who are hoping for reform but being shortchanged by both parties find themselves in.
Somewhat misleadingly, the article starts off by giving the impression that the biggest issue in immigration reform is whether to adopt the Senate "comprehensive" approach, which was passed last June, or the House "piecemeal" approach, consisting of a series of "small bore" bills in committee, none which has ever been voted on.
POLITICO focuses on Obama's supposed about face away from agreeing to work with the House on "piecemeal" legislation in one of his recent statements, back to support of the Senate's comprehensive approach.
The article states:
"Obama spent much of the summer and fall calling for the House to take up the Senate legislation, then, during an interview at the Wall Street Journal's CEO Council said he was fine with the House passing a series of immigration bills."
"Obama's return to putting pressure on House Republicans to pass a comprehensive immigration bill comes as the White House is facing more pressure from immigration reform activists to order the administration to use more discretion in reducing the number of deportations."
But the issue is not whether to do reform comprehensively or to do it piecemeal. The issue is whether the House intends to pass, or even consider, any immigration reform legislation at all. So far, there is no sign that it does, and unless and until that changes, "piecemeal" is nothing more than a phony excuse for doing nothing.
But even if the House Republicans finally vote on or even pass a few "piecemeal" reform bills, what good would this accomplish if these bills fail to deal with the heart of reform, namely legalization or equivalent relief from deportation for 11 million people? And there is no sign that any of the House "piecemeal" bills rumored to be under consideration so far would grant this relief to more than, at the most, possibly a small handful of DREAMERS.
Therefore, by emphasizing his original support for the Senate bill, which provides for legalization (and an eventual pathway to permanent residence and citizenship) for 11 million unauthorized immigrants, Obama is not ipso facto withdrawing any offer he may have previously made to work with the House on incremental legislation. Instead, he is calling attention to the fact that, in the words of Joe Biden, as also quoted in POLITICO's article, House Speaker John Boehner is "unwilling to let the House speak" on immigration reform at all.
The president's "return" to boosting the Senate's CIR bill does not mean that he is reneging on his promise to work with the House. Instead, it should be taken as an indictment of the House's use of the fake "piecemeal" shell game as a cover for blocking reform entirely.
But is this all there is to the immigration reform story? Not exactly. POLITICO also brings up the issue of Obama's record number of deportations, as also mentioned above.
The article states:
"On Tuesday, the Immigration and Customs Enforcement agency released a report showing that during fiscal year 2013 the US deported 368,644 people, two thirds of whom were apprehended at the border. According to ICE, 98 percent of people deported met one of the agency's civil enforcement priorities."
And there we have the real story - of 11 million mainly Latino, Asian and black immigrants caught between House Republicans who have the legislative power to stop the deportations but are only pretending to take up reform, and a Democratic president who has the administrative power to stop, or at least significantly reduce, the deportations, but is pretending that he lacks this power.
11 million immigrants are therefore caught in a double whammy of hypocrisy, cynicism and inaction by both parties. The president is right to call the Republicans out for their "do nothing" obstruction, but he can no longer avoid being called out for his own role in keeping the deportation meat-grinder running at full speed.
That is, if the media seriously gets on his case, which has not yet happened. The most significant sentence in the POLITICO article is the final one:
"Obama was not asked about the deportations during his press conference."
11 million immigrants, their families, and the great majority of Americans in both parties who support real immigration reform would like to know why not.
(Note: I am no longer providing links to POLITICO articles, since none of the links seem to work. These articles can easily be accessed by going to politico.com and clicking on the title.)
Updated 12-23-2013 at 11:47 PM by ImmigrationLawBlogs
Yesterday, ICE released their annual deportation statistics. They are claiming that 98% of the agency's total removals consisted of convicted criminals, recent border crossers, "illegal" re-entrants, or those previously removed by ICE.
From the press release:
In FY2013, ICE conducted a total of 368,644 removals, 235,093 of whom were apprehended while, or shortly after, attempting to illegally enter the United States, and 133,551 of whom were apprehended in the interior of the United States. Nearly 60 percent of ICE’s total removals had been previously convicted of a criminal offense, and that number rises to 82 percent for individuals removed from the interior of the U.S. Other than convicted criminals, the agency’s enforcement priorities include: those apprehended while attempting to unlawfully enter the United States, illegal re-entrants – individuals who returned to the U.S. after being previously removed by ICE – and immigration fugitives.
My friend and colleague Chuck Kuck had the following reaction to the numbers: "Obama only deported 350,000 people last year. Somehow this is something to celebrate?" Pretty much sums it up for me.
But there is more to the story. Anyone paying attention knows that the administration has ramped up criminal prosecutions of immigrants charged with immigration law crimes. In fact, according to Syracuse University's TRAC Immigration, illegal reentry prosecutions have jumped 76% during the Obama administration, and the 100,000 prosecutions mark is at an all-time high. Another record setting performance for the Deporter-in-Chief. What this means is that the administration is turning an unprecedented number of individuals into convicted criminals when their only criminal infraction stems from an immigration law violation. This clearly has resulted in a padding of the criminal removal statistics.
As for the claim that ICE is enforcing our nation’s laws in a smart and effective way, TRAC has already done the heavy lifting for us. They found that very few ICE detainers involve serious criminals. TRAC determined that "if traffic violations (including driving while intoxicated) and marijuana possession are put aside, fully two thirds of all detainers had no record of a conviction." Statistics show that through November 2013, only a small percentage of the deportation filings are based on alleged criminal activity.
Here is a sample of some of the other reactions I've seen to the recent release:
From the ACLU:
Despite broad consensus that the nation needs immigration reform, the Obama administration is barreling towards the dubious honor of hitting a record 2 million deportations by early next year. Today’s numbers show that ICE continues to sweep tens of thousands of immigrants into a detention and deportation machine that lacks basic due process protections, including the dignity of an appearance before a judge. The Department of Homeland Security should sharpen its enforcement priorities and strengthen due process protections for immigrants in removal proceedings.
Ali Noorani, Executive Director of the National Immigration Forum:
ICE is still removing people with no criminal record who are just trying to build a life in America — including tens of thousands this past year. These numbers highlight the urgency for broad immigration reform from Congress that stresses accountability and moves our country forward. In 2014, leaders simply must follow through on a new immigration process that emphasizes security, freedom, opportunity and human dignity.
America's Voice was not so diplomatic in their response, calling the Obama administration "sickening."
There is a huge gap between what they say and what they do. DHS announced prosecutorial discretion policies in 2011 aimed at focusing deportation on the ‘worst of the worst,’ and yet these policies have never been fully implemented. They claim that most of those being deported are ‘convicted criminals’ – a scary label until you realize that their own definitions of ‘convicted criminals’ include traffic violations and minor nuisance offenses (see here and here). They claim that the only answer is legislation – which really is the best and most permanent solution – but refuse to simultaneously use their substantial administrative authority to rein in the out-of-control detention and deportation machinery. The time is now for the Administration to do its part to stop deporting people who are anything but ‘criminals’ and have deep roots and make huge contributions to the country they now call home.
The National Day Laborer Organization had the following insight:
"People on all sides will look at these numbers with a great deal of skepticism. It’s easy for the Administration to say that those deported fit their priorities when this White House has practically made sneezing a criminal act for immigrants. These numbers may represent political calculus for the beltway but for immigrant families, they represent our parents, siblings, and loved ones,” explains Pablo Alvarado, Executive Director. “The five years of criminalization the President has overseen blankets immigrant communities with suspicion and causes people to live in fear. Until the historic mistake of entwining local police with immigration enforcement is corrected, the country will face a crisis of safety in our communities, confidence in the President, and separation in our families."
It is obvious to everyone other than those drinking from a Big Gulp sized cool-aide that the administration's recent release is little more than propaganda and public relations spin to address the negative publicity that is finally raining down on the President.
Better late than never.
Updated 12-20-2013 at 01:30 PM by MKolken
It's hard to believe that I am marking my 10-year anniversary as an owner of my own law firm. It seems like so much longer.
During those years, I have represented over 750 clients, most of whom were asylum seekers. I've also had five offices, six partners, two employees, a few contract attorneys, and a whole heap of interns. In short, it's been an incredible, challenging, exhausting, exhilarating, frustrating, funny, and bizarre 10 years. In commemoration of this grand occasion, I thought I would list some of the more memorable moments of my career as a small-firm lawyer. So without further ado, here we are:
- Starting Out: Before starting my firm, I had to pay back my student loans. Once that was accomplished, I moved to Nicaragua, tried to learn Spanish, and then returned and rented an office below a restaurant in DuPont Circle, DC (at $375/month). I decided to use my old computer, as I didn't have a lot of cash for a new one. Unfortunately, I had been away for a while and my anti-virus program expired. So as soon as I connected to the internet, my computer got a virus that wiped the entire system. It took over a month to get the computer up and running. An auspicious start it was.
Me, at the beginning of my solo lawyer career.
- Rats and Flies: Since the office was under a restaurant, you can imagine there were some issues. I shared the office with a friend and fellow asylum lawyer. Once, while he was talking to a client, a rat kept running around the office. I did my best to distract the client and herd the rat out the door. The client was too polite to say anything, but I don't think she ever came back. We also had numerous infestations of Amityville-Horror-style flies, and one time, part of the ceiling collapsed spilling some strange brown liquid onto our printer.
- My First "Real" Asylum Case: I had done bits and pieces of a few asylum cases before, but I got my first real case in 2004. It was an Ethiopian guy who entered the U.S. illegally at the Mexican border. Two attorneys had already passed on the case because they didn't like it, so he was stuck with me. Somehow, he ended up receiving asylum, and that win led to one referral and then another. In the last 10 years, I've probably represented close to 200 Ethiopians seeking asylum.
- Afghan Cases: By 2006 or 2007, I had done a few Afghan cases, but it was a very small (albeit very interesting) part of my business. Then a potential client came in who had been a well-known TV star in Afghanistan. He couldn't afford to pay my fee, and so he didn't hire me. I thought about it for a few days and decided that I wanted to do his case--it was too interesting to pass up. So I called him and said he could pay whatever he could afford. We won the case, and that led to many more Afghan clients. They now represent the majority of my asylum clients.
Me, after ten years.
- Removed from Court in a Stretcher: If you practice immigration law, you know that Immigration Courts are slow. They make geologic time seem speedy. One of my clients from Morocco was particularly eager to receive her green card so she could visit her family back home. But when she heard her court date--something like two years later--she collapsed and could not be revived (even by a DHS attorney who was a former EMT). The end result, she was removed from court on a stretcher. Happily, she was fine, and the next week, we received a notice that her case had been rescheduled for the following month. I have not advised other clients to collapse when they hear their court dates, but I have been tempted...
- My First Lozada Case: Immigration cases that have been denied due to ineffective assistance of counsel can be reopened under Matter of Lozada. Such cases generally requires a bar complaint against the ineffective attorney. Most lawyers (me included) hate this requirement. But in cases of bad misconduct, there is something satisfying about filing a complaint. The first time I filed such a complaint was against an attorney who was incompetent and dishonest. We proved using the lawyer's own documentation that she had lied to her (now my) client and to the Immigration Court. The Virginia Bar found that she had violated the rules of professional conduct, but declined to punish her because there were "exceptional circumstances." What were these circumstances? Turns out, she had already been suspended for three years for messing up two other people's cases (and lives), so the Bar Association felt there was no need to punish her in my case. As I said to the Immigration Judge in our (successful) motion to reopen, the offending lawyer was saved by her own incompetence.
- The Pain of Exile: I represented an Ethiopian asylee who was in removal proceeding after committing a crime. We filed for a 209(c) waiver, which would allow him to remain in the U.S. One witness, his uncle, was a famous singer who had lived in exile since the mid-1970s. Many of his songs were about Ethiopia. We were trying to show that it was unsafe for the nephew (my client) to return to Ethiopia. I asked the uncle, what he thought of his country. "I love my country." "Would you like to go back," I asked. "If it was safe, I would go back tomorrow." Somehow it struck me as profoundly sad that this man had not been back to Ethiopia in 30+ years, but he still loved and missed his country, and kept writing songs about his homeland. The nephew's case was approved, in part on the strength of this testimony. And as far as I know, the uncle has not yet returned to Ethiopia.
- The Client Who Paid Me $1 Million: OK, this one didn't happen yet, but here's hoping.
- The Clients: There are too many to mention. A few I can remember are journalists from Pakistan, Afghanistan, and Iraq. Human rights activists from Russia, DR Cong, Zimbabwe, and Iran. Police officers from Peru and Nepal. A Rwandan woman who saw her family murdered during the genocide. Interpreters for the U.S. military from Iraq and Afghanistan. A Russian politician who was stripped of his citizenship. LGBT people from Serbia, Egypt, Kenya, and especially Sudan (you know who you are). Women's rights advocates from Afghanistan. Diplomats from Ethiopia, Iran, and Ukraine. People persecuted due to their religion from China, Egypt, Iraq, Bangladesh, and Eritrea. Victims of gang and cartel violence in Central America. And on and on.
Finally, I should also take a moment to thank the people who have helped make this all possible: My staff, who does all the work while I sit around making witty remarks and eating bon bons, and my family, who tolerates long hours, mediocre pay, and occasional rants about the Man. Thank you.
Originally posted on the Asylumist: www.Asylumist.com.