Category Archives: Humanitarian Relief

One of the perennially difficult things about visas to the United States (both temporary and permanent ones) is that many of the categories are not written into the law in stone, but come with expiration dates. If Congress fails to take action to renew the visa category when it sunsets, no more visa category.

That’s bad luck not only for anyone thinking of applying for the visa in question, but typically for anyone who isn’t all the way through the system by the category’s expiration date. Applicants who haven’t either adjusted or changed their status while living in the U.S. or obtained a visa from a U.S. consulate overseas and used it to enter the United States will be stopped in their tracks and refused U.S. status or entry.

In some cases, Congressional renewals seem to happen fairly regularly (if last minute), such as with the R visa for religious workers.  (After reauthorization last fall, the R visa category is now good until September 30, 2015.)

In other cases, however, particularly where the visa was meant to respond to an urgent but not necessarily long-term need, Congress may decide to let the visa category lapse. Such may be the case with the Special Immigrant Visa for Iraqi translators.

This visa (allowing U.S. permanent residence or a green card) has been around only since 2008. It authorized issuance of 5,000 immigrant visas per year through September of 2013 (the government’s fiscal year end) to Iraqis who had served the U.S. government in Iraq.

The idea was to protect Iraqis whose work on behalf of the U.S. makes them potential targets of threats and violence by people in their own country.  According to the International Rescue Committee, “an untold number have been kidnapped or killed.” The trouble is, according to the IRC, the threats have continued after the 2011 departure of U.S. troops from Iraq, and not everyone who qualifies for a visa in this category has succeeded in getting one.

Okay Congress, you’ve got six months to act . . . .

No less a news source than The New York Times has entered into the public debate about how best to describe foreign-born people living in the U.S. without permission. (See “Is ‘Illegal Immigrant’ the Right Description?,” by Margaret Sullivan.)

At last count, close to 300 people had entered comments on this article, representing every opinion from “Illegal alien is short, sweet and concise” and “A criminal is a criminal” to “Bigots and xenophobes happily use the term in their efforts to disparage, dehumanize, and condemn” and “Being inside the US without proper documentation is not an illegal act. Even less, the person that is doing it.”

I’ll put my two cents worth of legal insights on this matter here — and try to steer clear of thoughts on overall U.S. immigration policy.

1) Being in the U.S. without permission, whether due to an illegal entry or having overstayed a visa, is not a crime. It’s a civil violation. That may sound like a distinction without a difference, but you have only to look at the comments themselves to see how many people make a quick leap from “illegal” to “criminal.” A friend of mine who taught grade school once told me that some of her students expressed the opinion that border crossers should be shot on sight, because they were criminals. That suggests to me that the word “illegal” is being thrown around too loosely. (For the record, crossing the border without authorization is in fact a federal misdemeanor, under Title 8 Section 1325 of the U.S. Code, but the potential punishment is a fine of between $50 and $250 and/or a maximum of six months in jail — certainly not the death penalty).

2) The starkness of the word “illegal” implies that it’s easy to judge who has a right to be in the United States. It’s not. The complexities of immigration law have given rise to many gray areas. For example, the whole system of applying for asylum as a means of gaining protection from persecution in one’s home country presupposes that the person is already in the United States. But how are you supposed to get to the U.S., particularly if you’re, say, a Guatemalan peasant whose chances of gaining a U.S. entry visa are just about nil? Countless such people have entered the U.S. without permission and applied for asylum, and the U.S. has, where appropriate, granted their requests. Until their applications were accepted for processing, they could only be called “illegal” under the prevailing terminology — and yet, had they been arrested and placed in deportation proceedings, the law would have given them every right to apply for asylum as a defense. I don’t believe that such people are who most of the U.S. public think of when they hear the word “illegal,” but such cases are swept up into this overly broad term.

As another example of the gray area, I spent years of my practice as an immigration lawyer helping prepare applications for family members of U.S. lawful permanent residents who were waiting unlawfully in the U.S. for a visa to become available to them. Annual limits on the number of available family-based green cards mean that if you’re, say, the 22-year old daughter of a green card holder, you’re looking at an eight-year wait before you can legally enter or remain in the United States and join your perfectly legal family there. (The wait is much longer for family members from Mexico.) But because of legal bars to reentry that punish people for unlawful status, leaving the U.S. would have actually been the worst thing many such family members could have done — and the immigration authorities, recognizing this conundrum, actually assured immigration lawyers that they would hold off on enforcement activities against such family members. Yet without another word for them, they too are part of this “illegal alien” population.

Here on the Nolo site, we try to use the word “undocumented” whenever possible. It may not be perfect, but at least it recognizes that the person’s status may not be fixed. An “undocumented” person may, for more reasons than the public realizes, someday become “documented” under U.S. law.

Jose and Andres Orellana-Monson, ages 11 and 8 at the time they fled El Salvador, were running from a local, violent gang known as Mara 18. The gang had tried to recruit Jose. When he refused, they threatened to kill him, then forced him, at gunpoint, to help rob a store. Andres feared he would be next.

It’s a sad situation, especially given the boys’ young age at the time — but does it qualify the two for asylum in the United States? Unfortunately not, under current U.S. law — at least, in the Fifth Circuit (which covers Louisiana, Mississippi, and Texas).

The two brothers did indeed try to gain asylum, saying that they feared persecution from the Mara 18 gang. U.S. immigration authorities apparently found them believable. But there was one major problem in the case. (No, it’s not that the persecution didn’t come from an official Salvadoran source, but from common criminals — that issue is taken care of by the fact that the group fits into the category of one that is beyond the government’s capacity to control.)

The problem is establishing the critical “nexus” between the persecution and its basis in either the boys’ race, religion, nationality, political option, or particular social group. Lack of such a nexus is the downfall of many an asylum case, and ultimately led the Fifth Circuit Court of Appeals to deny the Orellana-Monson’s claim (in an opinion issued June 25, 2012).

The lawyers for the brothers did their best to fit the two within a particular social group. Such groups don’t necessarily have to match up to any predefined list — the lawyers described them as Salvadoran males between the ages of 8 and 15 who have been recruited by Mara 18 but have refused to join the gang because of their principal opposition to the gang and what they want; and their family members.

The Fifth Circuit found, however, that this supposed group lacked “particularity.” It explained that such a group “is exceedingly broad and encompasses a diverse cross section of society.” The judge’s quoted another court’s opinion in a similar case stating, “Only shared experience — that of gang recruitment — unites them. The gangs target a wide swath of society, and we have no evidence before us that they target young men with any particular political orientation, interests, lifestyle, or any other identifying factors.” In other words, one might say, the definition of this group struck the court as too random to qualify under this legal standard.

The Fifth Circuit further concluded that the Orellana-Monsons’ group lacks the required “social visibility” to qualify for asylum. It stated, “There is little evidence that people who were recruited to join gangs but refused to do so would be ‘perceived as a group’ by society. There is no indication that the gang themselves would even see such ‘non-recruits’ as a group within Salvadoran society.” This argument seems to suggest — without actually coming out and saying so — that the group needs to have formed before the persecutor’s contact with it. And in fact the court does mention a Seventh Circuit court opinion finding “that a member of a family seeking police protection from Mara 18 was not a member of a particular social group, as a social group cannot be defined by its relationship to its persecutor alone or by the fact that its members face dangers in retaliation for the actions against the persecutor.”

To see the entire court opinion, go to the Fifth Circuit’s website at http://www.ca5.uscourts.gov/opinions/pub/11/11-60147-CV0.wpd.pdf.

Conflict in Syria, as its citizens continue to rise up against President Bashar al-Assad and his Ba’ath Party rule, has led the U.S. government to deem the country unsafe for return by nationals currently living in the United States.

Janet Napolitano, Secretary of Homeland Security, announced on March 23rd that Syria would be designated for Temporary Protected Status. (See Napolitano’s announcement.) TPS is not a permanent right to remain in the U.S., but offers temporary rights to remain and to work, up to a specified deadline — in this instance, through September 30, 2013.

What this means in practice is that, if you’re a Syrian national currently in the U.S., have been residing here continuously since the designation date (March 29), and are not ineligible due to security, criminal, or other grounds of inadmissibility, you can avail yourself of TPS protection by registering with U.S. Citizenship and Immigration Services (USCIS). You will receive a work permit.

Go to the Temporary Protected Status page of the USCIS website for details.

If you’re a Honduran or Nicaraguan national in the United States with Temporary Protected Status (TPS), you have the right to extend that status. The new TPS period runs from January 6, 2012, to July 5, 2013.

(By way of reminder, TPS is a designation that the U.S. Secretary of Homeland Security may give to people from foreign countries that are undergoing conditions that temporarily prevent the country’s nationals from returning safely, such as war or natural disaster. It allows a temporary right to remain in the U.S., and to work, but does not lead to any sort of permanent status or a green card.)

If you wish to reregister, however, you’ll need to act very soon. The reregistration period ends on January 5, 2012, which is right around the corner.

The reregistration process involves submitting an Application for Temporary Protected Status on Form I-821 and an Application for Employment Authorization on Form I-765.

You must fill out Form I-765 regardless of whether you actually use it to apply for an EAD (work permit). But if you don’t want the work permit, you don’t need to pay the I-765 fee, which is currently $380.

You do not need to pay the Form I-821 application fee, but must submit the biometric services fee (currently $85), or a fee waiver request, if you are age 14 or older.

For more information, see the “Temporary Protected Status” page of the USCIS website.