Carl Shusterman's Immigration Update

Shades of Grey

This evening, I watched a debate on television between a proponent and an opponent of comprehensive immigration reform (CIR).  The proponent emphasized that we need CIR not for the benefit of the undocumented but because it would stimulate the American economy.  The opponent said that this amounted to "open borders" and that our immigration system was already generous enough in the eyes of most Americans.

After the debate, I got to thinking about how different this type of debate is from the daily travails of immigrants.  In our complex immigration system, the problems are not necessarily black and white, but various shades of grey.

This morning, I spoke with a woman, a citizen of the U.S., who is raising her two children by herself because the Consulate in Ciudad Juarez, Mexico thinks that her husband once left the U.S. after living here illegally for many years so he could attend his brother's wedding in 2002. They claim that he re-entered the U.S. a couple of days later without inspection.  Under our bizarre system of immigration laws, this subjects him to the "permanent bar".  This means that he must remain out of the U.S. for ten years.  Then, if he can prove that his continued absence from the U.S. would result in "extreme hardship" to his wife and to his parents (who are both permanent residents), he can return to the U.S.

Every weekend, his wife drives down to Tijuana so that her two little girls can visit with their father.  One of the girls has undergone a variety of serious operations.  However, under our immigration laws, hardship to the girls does not count.

To complicate matters, his brother was married in Mexico in 1992, not 2002.  The wife faxed copies of the marriage certificate of his brother to me.  Sure enough, it is dated in 1992.  However, the officer who denied the husband's case in CDJ refuses to look at the marriage certificate.  The officer maintains that the husband told her that he attended his brother's wedding in 2002, and that is the end of the matter.  He can apply for a waiver in 2015, after he has been in Mexico for ten years, not before. 

The wife enlisted the services of her Congressman and an experienced immigration attorney, but to no avail.  The factual determination of a consular officer is not reviewable in Federal Court.  Not even the State Department's own attorneys can question an officer's factual determination.

The wife is on the verge of losing her house to the bank.  She is also on the verge of losing her mind.  Would passage of CIR bring her family together?  I am afraid not.

This type of situation is not unique.  We are retained by clients with these types of problems on a daily basis.  Fortunately, some Immigration Officers are sympathetic to the problems of immigrants.  And they have the discretion to solve many of the problems that immigrants face.

I remember when I was an INS Trial Attorney back in the early 1980s.  One of the persons that I was supposed to prosecute was a young woman from the Philippines whose parents were both green card holders.  Her father sponsored her for a green card years ago, but died before she could immigrate to the U.S.

Nevertheless, the U.S. Embassy in Manila scheduled her for an immigrant visa interview.  She completed the application accurately, and revealed that her father was deceased.  The interviewing officer was in a rush, and missed this entirely.  She was granted an immigrant visa.  She sold her house, quit her job as a executive secretary, and booked a flight to join her widowed mother in the U.S.  At the airport in Honolulu, an INS officer noticed that her father had died.  He paroled her into the U.S. for an exclusion hearing in Los Angeles.

When I read the woman's file, I could not believe that the INS had initiated exclusion hearings against her.  If both parents had submitted visa petitions on her behalf, she would not be in such a fix. I sent the file back to the deferred inspection officer, and asked him to cancel the Order to Show Cause (OSC).  He refused to do so.  I stuck the woman's file in the back of one of my file drawers for a year or so.  Then, I sent it to a new deferred inspections officer.  This time, the officer cancelled the OSC.

These cases illustrate that many immigration cases are not black and white, but shades of grey.

When both parties take a commonsense approach, a lot of cases can be worked out to avoid family separation.  Too often, however, immigration cases are litigated year-after-year at a tremendous cost to both the immigrant and the government. 

They Shoot Speeders, Don't They?

The Highway Patrol officer pulls over a speeder on the freeway.  It's a young woman in a Red Camaro.  "Do you know how fast you were  going?", he questions her.  "I don't know, officer", she stammers.  "I'm late for a job interview, and I wasn't paying a lot of attention.  I'm really sorry." 

"Not as sorry as I am" replies the officer, who takes out his pistol, and shoots each of her tires.  "If I ever catch you speeding again, I'll shoot you!"  Then he arrests her and takes her to jail.

Did this really happen?

Of course not!  In our criminal justice system, the punishment is supposed to be proportional to the offense committed.  Speeding drivers are fined, not jailed or shot.  If they were, the story would be featured in the national news and the officer would probably be prosecuted.

Yet, in the bizarre world of immigration law, people are routinely separated from their U.S. citizen spouses, parents and children for minor offenses, and their stories are seldom, if ever, reported.

Consider a middle-aged woman who I spoke with earlier this week.  She has long been married to a green card holder who recently became a U.S. citizen.  They have three children together, all of whom are U.S. citizens.  She and her husband both work hard at menial jobs.  They pay their taxes and have never been on welfare.  They have never committed a crime, and do not have so much as a speeding ticket.  Yet, her application for a green card was recently denied, and she faces deportation.  Why?

Back in the spring of 1997, she left the U.S. for a few days to see her father, a diabetic, who was seriously ill. In order to return to the U.S., she used a friend's green card, and was turned away at the border.  The government called this an "expedited removal".  At the time, this was a newly-created procedure where the government could deport a person without giving them the opportunity to have an attorney or even a hearing before an Immigration Judge.

A few days later, she crossed the border illegally in order to rejoin her husband and children in the U.S.  Because of a law passed in 1996, returning to the U.S. illegally after an expedited removal bars a person from becoming a lawful permanent resident until he/she has lived abroad for a minimum of 10 years.  And even then, they must be granted a difficult-to-obtain waiver from the Immigration Service.  This is known as the "permanent bar" because such persons may never be able to reunite with their families in the U.S.

Do people subject to the permanent bar really return to their countries for ten years, leaving their spouses and children in the U.S.?  The government has collected no data on this.  I tend to doubt that they do.  I believe they simply remain in the U.S. illegally.  But to the extent that I'm wrong, the end result of the permanent bar is the separation of families.  No wife for her citizen husband.  No mother for her citizen children.

So, Shusterman, that bleeding heart, doesn't think people who violate the immigration laws should be punished?

Pleeeze!  Having spent six years (1976-82) as an attorney for the INS including many months working inside of Federal Prisons, I have obtained deportation orders against hundreds, if not thousands, of individuals, many of them convicted felons.

The reason that I am against the permanent bar is because the punishment doesn't fit the "crime".  For the same reason that Highway Patrol Officers don't shoot speeders, or even arrest them, separating a woman from her family for ten years to life for illegally crossing the border after an expedited removal is simply insane!

Can I suggest a better punishment?  Matter of fact, I can.

Impose hefty fines on such persons.  The Immigration Service is literally begging the Federal Government for money.  And as all of us taxpayers know, the Federal Government is broke.  Fining immigration violators rather than separating them from their families makes a lot of sense, and would provide millions of dollars to help the Immigration Service do its job without asking for a taxpayer bailout. 

What do you think?

 

 

Immigration Reform in 2010

As Rodney King famously remarked, "Why can't we all get along?"

As Democrats and Republicans in Congress have spent the past year beating each other up regarding the health care bill, do we want the same thing to happen with immigration this year?  At the moment, President Obama cannot even find two Republican senators out of 40 to support Comprehensive Immigration Reform.  And anyone who thinks that all Democrats are united in support of CIR must be drinking the Kool-Aid.

But does this mean that immigration reform is DOA in 2010?

Not necessarily.  There are individual pieces of immigration legislation which enjoy bipartisan support. Like what?

For instance, the DREAM Act.  Students who have lived almost their entire lives in the U.S., excelled in school, and are pursuing their goals in universities should not be punished because their parents brought them to the Promised Land as toddlers.  Senators on the left and the right are co-sponsoring the DREAM Act. Any piece of immigration legislation that is co-sponsored by Senators Richard Lugar (R-IN), Bernie Sanders (I-VT) and 31 of their colleagues should definitely be voted on in 2010. 

The same thing with the AgJobs bill.  On how many issues do agricultural employers and the United Farm Workers agree on?  Congressmen Jeff Flake (R-AZ) and Luis Gutierrez (D-Il) don't see eye-to-eye on CIR, but together with over 50 of their colleagues, they have co-sponsored this important piece of legislation.  If ICE ever decides to audit farms as they have factories, their will be a lot of hungry children in America.  I think we all know who is picking the crops.

And how about erasing the 20-year wait for Indian EB-3 workers with approved PERM applications?  Is it the American Way to penalize a person solely because of their country of birth?  

And who, in these terrible times of double-digit unemployment, could possibly oppose visas for investors who put Americans to work?  Or for physicians and nurses who work in medically-underserved areas?

I say, let's see what we agree on, and move forward.

Let's not let the perfect be the enemy of the good.

Lack of Checks and Balances in Removal Proceedings

The concept of separation of powers, and of "checks and balances", is as old as Ancient Greece and the Roman Republic.  Our Founding Fathers modeled the U.S. Constitution on principles derived from Enlightenment philosophers like Montesquieu who believed that "the judiciary was generally seen as the most important of powers, independent and unchecked..." He specified that "the independence of the judiciary has to be real, and not apparent merely."

Unfortunately, in a stunning departure from such principles, under a law enacted in 1996, "discretionary" decisions of the USCIS and the BIA cannot be reviewed by the Federal Courts.  And because most executive decisions in immigration matters are, by statute, discretionary, the power of immigration enforcement agencies goes largely unchecked.

What is wrong with this?  As Lord Acton famously stated, "Power tends to corrupt, and absolute power corrupts absolutely."

Take the case of cancellation of removal of nonpermanent residents.  Applicants must demonstrate that their qualifying relatives would suffer "exceptional and extremely unusual hardship" if the applicant had to depart the U.S.  In three precedent decisions, the  Board of Immigration Appeals (BIA) has only succeeded in confusing most practitioners as to the criteria for satisfying this standard of hardship.

We represent a married couple, citizens of different countries, who have resided in the U.S. for almost 30 years.  When they were originally placed in removal proceedings, their two U.S. citizen sons were 11 and 12 years old.  One of their sons suffers from ulcerative colitis, and both sons rely totally on their parents for support and are covered under their father's medical insurance.   

For years, the government requested and received numerous postponements of the removal proceeding.  Finally, the Immigration Judge transferred to another state, and a newly-appointed Judge with no prior immigration experience was assigned to hear the matter.  By this time, the boys were 18 and 19 years of age and were both university students.

The Judge ruled that the hardship to the two sons was not "exceptional and extremely unusual" largely because he found that they were now old enough to take care of themselves.  As for the son with ulcerative colitis, the Judge ruled that he was not dependent on his father's health insurance since he could apply for public assistance under Medicaid.  And the Judge further found that with regard to family separation, the parents could visit their sons in the U.S. whenever they wished.  He held that our contention that the parents would be inadmissible from the U.S. for ten years due to unlawful presence had no basis in fact.

The BIA ruled that the Judge was wrong to suggest that the son with ulcerative colitis should apply for Medicaid.  The Board also ruled that the Judge's finding that the parents could visit their sons in the U.S. was wrong as a matter of law.  In fact, the entire first page of the Board's decision consisted of enumerating the errors made by the Immigration Judge.  However, on page two of the decision, the BIA simply and without explanation, affirmed the Judge's decision denying cancellation of removal.

When we sought to challenge this decision in Federal Court, the Court held that it lacked jurisdiction to review a discretionary decision of the BIA.

During the time that the case was pending before the Federal Appeals Court, the oldest son turned 21, and successfully petitioned both his mother and father.  The Court Mediator tried to persuade ICE to join us in a motion to reopen the case to allow the father and mother, both of whom had entered the U.S. on nonimmigrant visas, to adjust their status.  ICE refused to do so. 

Today, only the introduction of a private bill by a Member of Congress prevents the father and mother from being deported.

Had our traditional system of checks and balances been in place, the Federal Appeals Court would have had the opportunity to remand the case to the BIA which may have allowed the parents to remain in the U.S.

On February 2, 2010, a nearly 500-page report entitled "Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases" was submitted to the American Bar Association's Commission on Immigration.  One of the recommendations contained in the report is to restore judicial review of discretionary decisions under an abuse-of-discretion standard.

We could not agree more.