Monthly Archives: August 2013

Green Card Holder Forever?

usil-blog.jpgSome U.S. immigrants literally count the days from when they receive their green cards, waiting for the five (or in some cases, three) years to pass before they can apply for naturalized U.S. citizenship. And given all the benefits that come with U.S. citizenship — easier travel in and out of the U.S., ability to sponsor a wider group of family members for a green card, access to government jobs, and so on — this is widely assumed to be the sensible approach for anyone planning to live permanently in the United States.

As pointed out in a recent article in The New York Times, however, called “Making Choice to Halt at Door of Citizenship” (by Kirk Semple), that’s not how many immigrants see the matter. Many are content with a green card alone — even if they fully qualify for citizenship and would be permitted dual citizenship in their home country — for reasons that include:

  • national identity — they want to retain a tie to their home country and don’t necessarily “feel” American
  • trauma — the process of dealing with U.S. government officials the first time around is more than they want to face again (don’t laugh, it can be a hellishly difficult bureaucracy to deal with)
  • the $680 application fee
  • the perception that they already have nearly all the same rights as U.S. citizens, including the right to work in the U.S.
  • dissatisfaction with U.S. government or its foreign policy
  • the “cool” factor — a U.S. passport seems less glamorous than it once did, and finally
  • inertia — they just haven’t gotten around to applying.

This is, of course, a personal decision, and nothing in the law requires green card holders to apply for U.S. citizenship. For the people dealing with “inertia,” however, I offer just one phrase: “Change of address requirement.”

If you’re having trouble getting it together to apply for U.S. citizenship, might you also fail to do as required — or have you already failed in this required task — and advise the U.S. government within ten days of every time you move to a new address? It sounds trivial, but messing this one up is a deportable offense. For real. See the articles on the “After Getting Your Green Card: How to Keep It” page of Nolo’s website for details.

Me, I’d pay the fee, deal with the symbolic significance, and lower my cool factor just to know I couldn’t be deported on grounds as seemingly minor as these. (And the change of address notice is just one item on the list of grounds of deportability . . . . )

What’s the Fuss Over Asylum Applicants at the U.S. Border?

nasa borderHave the Department of Homeland Security (DHS) and the Associated Press successfully debunked Fox News’s recent claims that a “loophole” is allowing hundreds of undeserving immigrants to cross the Mexico/U.S. border by asserting a “credible fear” of persecution by drug cartels?

I hope so. Still, the media coverage could use a little more depth regarding the legal aspects of this (non) issue.

First, the background: Starting in August 2012, various Fox News programs began asserting the existence of a supposedly “new” loophole, by which Mexican would-be immigrants could state certain “magic words” and be admitted to the U.S., after which they might never show up for their court dates. For a rundown on the Fox coverage, see the Media Matters page.

After some media hoopla, the DHS came out with figures showing that the number of credible fear applicants had reached 14,610 by the end of June 2013, more than double what it was last year. Putting that in context, however, DHS officials noted that it represents only a small fraction of the millions of legal entrants from Mexico each year, and that U.S. officials deny the vast majority of such credible fear claims. The DHS also noted that there’s nothing new about this law — it’s been on the books for years.

Indeed, the law simply represents a balancing out of U.S. asylum law, which allows people within the U.S. who are fleeing persecution to apply for asylum — whether they are here legally or not — but needed some mechanism for people who arrive at a U.S. border, airport, or other point of entry to request the same protection. Do the immigration critics really want to reward people who have already crossed the border illegally or overstayed a visa, by allowing them to apply for asylum, but not grant this possibility to people who’ve just arrived? Apparently so, unless — as seems likely — they haven’t thought this issue through.

It’s not as though requesting asylum at a U.S. border or entry point is easy. Scholars and immigration advocates have long criticized this part of the law, because the process includes huge hurdles that are not encountered by people who have already entered the the U.S., and apparently results in many people being unfairly returned to home countries where they will face persecution.

It’s easy to believe the DHS’s assertions that it denies most of these entry requests. As described in Nolo’s article, “What Happens at a Credible Fear Interview,” the applicant is likely to be held in detention after asserting a credible fear of return; is given no access to documents or resources with which to prepare a convincing application; and has little chance of finding an attorney.

The applicant must nevertheless convince a U.S. government interviewer that he or she has a a “significant possibility” of being able to later prove to the satisfaction of an immigration judge – during the next procedural stage of the process, if it ever gets that far — that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her home country. Applicants who fail in this task will be returned home right away; no appeal, no meeting with an immigration judge.

And what about the possibility — which no one seems to be discussing — that more Mexican citizens really do fear persecution due to activities of the drug cartels? The number of Mexicans granted asylum in the U.S. has risen, according to U.S. government statistics. And attorney Kristina Gasson states, based on recent experience, that “The most commonly granted asylum petitions from Mexico are based on fear of persecution and violence from drug cartels and drug traffickers based on social group or political opinion.” (See “Can I Apply for U.S. Asylum If I’m From Mexico?“) Without knowing the details of individual cases, the Fox News approach seems to be to presume first and ask questions later.

That “Living With Your Ex” Trend? Not So Smart If You’re Sponsoring an Immigrant Spouse

cupcakeActual statistics on how many people are still living with their ex after a divorce are hard to come by. But between all the anecdotal reports, forums, and accounts by divorce lawyers, it appears to be the biggest unlikely trend since bacon on cupcakes and ice cream. It even merits a “How to” article on About.com.

The reasons behind this trend? It’s not necessarily that divorces have gotten all friendly all of a sudden. Cohabitating divorced couples are seemingly driven by financial constraints, efforts to maintain the kids’ accustomed home life, and (in a few of those anecdotal cases) just plain laziness. Yet in many cases, it sounds like the worst the couple contends with is a bit of neighborhood gossip.

But if one half of the couple is dating and plans to marry a foreign national, this cozy arrangement could turn into a problem far bigger than what the neighbors will think. It’s time to start worrying about what U.S. Citizenship and Immigration Services (USCIS) or an overseas U.S. consulate will think.

As attorney Marc Ellis points out in a recent article called “Mistakes That Applicants for Fiancée and Spousal Visas Make,” the immigration decision-maker “probably knows who’s been sleeping in your house.” And, given that a large part of successfully obtaining a green card based on marriage involves proving that the intended marriage is the real deal, not just a sham to get the immigrant a green card, having an adult of the opposite sex sleeping in one’s house is going to look mighty suspicious, divorce certificate or no.

Even if you get past that issue, there’s an additional problem if the cohabitation arrangement is due to tight financial circumstances: A U.S. citizen or permanent resident petitioning for a foreign spouse must show that he or she is capable of supporting that person, in addition to his or her existing household, by drawing on an income at or above the U.S. Poverty Guidelines levels. (See Nolo’s articles on “The U.S. Sponsor’s Financial Responsibilities.”) Claiming, “I’m too poor to get the ex-spouse out of the house but I’m ready to bring another spouse in!” is going to be difficult. Though I’d like to be a fly on the wall when you try.

What “Deported to Mexico” Literally Means

ICE arrestWhen a foreign national is ordered deported from the U.S. (usually because the person was undocumented or committed some violation of the law), the one and only “perk” is a free trip to his or her home country. It’s a trip reportedly taken by a record 409,949 people in the 2012 fiscal year.

If my “free trip” comment sounds flippant, let me tell you a story I once heard from an immigrant rights advocate. He had a client from Mexico who would spend most of his time in the U.S. but then, when ready for a visit home, turn himself into the immigration authorities for deportation. Free ride! (The fun ended after Congress tightened up on the penalties for reentry after deportation.)

In any case, we’re not talking about luxury travel here.  Immigration and Customs Enforcement (ICE) typically flies deportees to the capital city of their home country, sometimes sedated or in manacles. There, if they’re lucky, their country’s government may provide them with van rides or other services. If not, they’re on their own — often after years or decades away.

Mexico is, however, a different case. Because it shares a land border with the U.S., ICE policy has, in the past, been to bus deportees to towns just across the border, such as Tijuana or El Paso. Recently, however, ICE has begun flying some deportees to Mexico City. They claim that this policy protects deportees from targeting by kidnappers and smuggling gangs who operate along the border, and say it will reduce return trips to the United States.

Critics of the policy note, however, that it is costly for the U.S. and has not resulted in any apparent reduction of attempts to unlawfully cross the U.S. border.