Category Archives: Undocumented immigrants

When Lawyers for the Other Side Reveal Your Immigration Status

briefcaseLawyers tend to take very seriously their duty to keep their own client’s confidential information — otherwise known as secrets — to themselves.

But guess what: They get a little fuzzier on the question of whether that duty extends to the clients on the other side of a case, for example in a divorce or other civil case, or in a criminal case.

And in a particularly ugly example of how this can play out, the State of Washington’s Latino/a Bar Association (LBAW) has been investigating cases of “immigration retaliation” — in which an attorney “harasses, coerces, or intimidates another person using that person’s actual or perceived immigration status.”

This comes from an article called, “The Unethical Use of Immigration Status in Civil Matters,” by M. Lorena Gonzales and Daniel Ford, in the March, 2014 issue of NYLawyer.

Put in starker terms, immigration retaliation encompasses actions like notifying immigration enforcement authorities that an undocumented person is expected to arrive at a certain courthouse on a certain date; or that a woman participating in the prosecution of a domestic violence case may have no legal status. (“May” being the operative term here — the article discusses cases where the U.S. authorities, after being “tipped off,” wrongly detain the immigrant.)

Thankfully for immigrants in the State of Washington, the state bar association issued a formal ethics opinion several years ago prohibiting lawyers from threatening to report someone to the immigration authorities in order to “gain an advantage in a civil matter.”

A fat lot of good that opinion seems to have done since then, but to drive the point home, the LBAW got the Washington State Supreme Court to issue a formal comment in 2013. That comment prohibits lawyers from making inquiries into or assertions about someone’s immigration status for purposes of intimidation, coercion, or obstruction of justice.

I wonder what’s going on in the other 49 states?

In the meantime, this is a good opportunity to remind immigrants and their counsel of the availability of the U visa, which can provide temporary lawful immigration status to non-citizens assisting law enforcement.

California’s Missteps in Designing Drivers’ Licenses for the Undocumented

freewayNeed an example of the ambiguous, half-recognized place that undocumented persons hold in the U.S. today? Look no farther than reports of California officials’ recent efforts to come up with a design for a drivers’ license, to be available to undocumented residents of this state under the terms of a new law passed last year.

The designers were, in essence, tasked with creating a card that would be distinctly different from the drivers’ license carried by ordinary residents—which, in the absence of a national identity document, is often seen as the practical equivalent to a national identity document—but not a card that screams, “Illegal alien!” to anyone who might then be prompted toward discrimination and harassment.

The first try unfortunately failed to pass muster with the Department of Homeland Security (DHS). The feds deemed California’s card design, which had the code “DP” (for “driver’s privilege” rather than “driver’s license”) on the front, and the words “This card is not acceptable for official federal purposes” on the back, to be too subtle. They want the latter wording moved to the front.

So, it’s back to the drawing board for the designers. I don’t envy them this task. They’re creating a card that represents layers of possible meaning, including, “I have an acknowledged place in this state, I have passed the driving exam, my rights have been recognized in other ways (such as that to attend public schools and be fairly treated by employers), but by the way, I don’t have lawful immigration status.”

Immigration reform, anyone?

Spreading the Word: California DACA Recipients Eligible for Medi-Cal

stethoscopeThe original report on this looked rather academic: In February of 2014, the UC Berkeley Labor Center issued its “REALIZING THE DREAM FOR CALIFORNIANS ELIGIBLE FOR DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA): DEMOGRAPHICS AND HEALTH COVERAGE.”

The implications, however, are huge for undocumented Californians with DACA (Deferred Action for Childhood Arrivals) status. If their incomes are below $15,850, they may qualify for the state’s Medicaid program, known as Medi-Cal. (Most other U.S. states do NOT offer similar health coverage to DACA recipients.)

Unfortunately, very few DACA recipients know about, or have been willing to actually take the next step and sign up for this program. The report estimated that up to 125,000 immigrants might be thus eligible.

And just to be clear, this eligibility isn’t merely theoretical. People are signing up for Medi-Cal based on their DACA status. For example, the L.A. Times described “Mayra Yoana Jaimes Pena, 25, [who] was granted DACA-status last year, and signed up for Medi-Cal this month.” Organizations such as OneLA are busy trying to spread the word.

Of course, even further under the radar are the many people who haven’t signed up for DACA, yet are eligible. It’s not too late! For information on eligibility and the application process, see the “Deferred Action for Childhood Arrivals (DACA)” page of Nolo’s website.

“Anchor Babies” in the News: The Pregnancy Path to U.S. Citizenship

asianbabyEvery law seems to have unintended consequences. The original intent of granting citizenship to every baby born on U.S. soil (done within the 14th Amendment to the U.S. Constitution) was to avoid creating an underclass, particularly among people who were brought to the U.S. as slaves.

(Congress was responding to the infamous Dred Scott decision of 1857, in which the U.S.  Supreme Court denied citizenship rights to freed slaves.)

Now, however, a cottage industry has seemingly developed to assist people from outside the U.S. — particularly from Asia — to come here on temporary visas in order to give birth to new little U.S. citizens.

The price tag for such “maternity hotel” services tends toward the tens of thousands of dollars. The fee covers travel and visa arrangements, medical care, and more. (See, for instance, “Giving birth in U.S. to get babies citizenship draws suspicion” and “In suburbs of L.A., a cottage industry of birth tourism” and “Chinese birth tourism booms in Southern California.”)

One such service reportedly advertises, “We guarantee that each baby can obtain a U.S. passport and related documents.” That’s not a hard guarantee to make, given the Constitutional backing!

Some of the reasons expectant parents give for wanting to give birth in the U.S. have immediate or short-term utility. For example, interviewees from China mentioned goals such as as circumventing that country’s one-child restrictions, or wanting to ensure that their child will be able to study in the U.S. or have the protection of the U.S. government in times of difficulty.

Other reasons, however, are remarkably long-term in scope. The families are creating an “anchor” for future U.S. immigration — and it’s one that can’t help them until the child turns 21.

To be clear, having a child who is a U.S. citizen does NOT provide any immediate rights to live or gain status in the United States. Only a U.S. citizen who is age 21 or over can petition his or her parents for U.S. lawful permanent residence (a green card). That application process alone will likely take at least a year.

What’s more, if the little citizens’ parents were to take a chance and attempt to remain in the U.S. illegally for the requisite 21 years, they’d become “inadmissible” — that is, ineligible for a green card — based on their history of unlawful presence here. (In fact, the “birth tourism” agencies likely warn the parents of this, since reports have it that they fly home soon after the births.)

There’s nothing in U.S. immigration law that expressly forbids birth tourism. Arguments could be made that the parents are committing visa fraud by claiming to enter as “tourists.” Still, even if the immigration enforcement authorities push this point, a finding that the parents’ committed visa fraud won’t negate the children’s status as citizens. (It will, however, make the parents inadmissible and unable to receive any U.S. visa or green card in the future.)

Whatever one might think of the practice of birth tourism, we’ve got to admire that level of long-term planning!

Horror Story About Seven-Minute Immigration Hearings Isn’t the Whole Story

Breaking pointThe Washington Post‘s recent article, “In a crowded immigration court, seven minutes to decide a family’s future,” exposes one of the many weaknesses of the U.S. immigration system: Undocumented and other immigrants caught violating the immigration laws receive no free legal representation (unless a sympathetic attorney steps in pro bono), have little idea of what their legal rights might be, and enter a system where little individual attention is possible before they’re, in many cases, escorted away.

The Immigration Judge profiled in the article, Lawrence Burman of Virginia, had 26 cases on his morning hearing docket, or an average of seven minutes in which to make a decision on each case.

The results of such a system can be tragic. Let’s say, for example, that the person arrives at one of these hearings with no attorney, doesn’t realize that the bad experiences he fled from in his own country amount to persecution that might qualify him for asylum, and thus fails to convey this to the judge or attorney (assuming he’s even lucky enough to find an attorney serving pro bono and able to understand the person’s language).

If the judge has no more than seven minutes to talk with such a person — and if the person misguidedly fills up the time assuring the judge that he loves this country and works hard and would do well if allowed to stay (common errors, which usually get the immigrant nowhere) — it could be all to easy for the judge to order the person to depart the United States.

But let’s make one thing about the system clear: It is possible for immigrants facing deportation to have a full, private hearing before an immigration judge that lasts more than seven minutes. It’s a matter of knowing the procedural steps and what to ask for. What the article seems to have been describing was merely step one, the so-called “master calendar” hearing.

At a master calendar hearing, many people arrive all at once, and the judge decides which of them seem to have enough of a legal case for staying in the U.S. to be worth calendaring for a full, “merits” hearing. The merits hearing can last for hours, and be continued to future dates, with opportunities for testimony by the noncitizen as well as witnesses, introduction of documents and exhibits, and so on.

Many people won’t have any case for staying in the U.S. at all — they are undocumented, and have no immediate family connections, no grounds upon which to request asylum or “cancellation of removal,” and no other plausible defense to deportation.

But many will have some legal basis upon which to request either the long-term right to stay in the U.S., or at least “prosecutorial discretion” (meaning that the U.S. government agrees that the person is a low enforcement priority because of U.S. family ties and other equities, and will leave him or her alone for the moment). And they may not even know it. The judge will try to elicit such information, but as the article shows, has little time in which to do so.

The more that people called into removal proceedings can do to research their rights and find an attorney in advance, the lower the chance that their seven minutes will be wasted and lead to a hasty order of deportation.

Got Immigration Court Oct. 18? BE THERE!

traffic_lightAs you may have heard, the U.S. federal government shutdown has been brought to an end (at least for this year). We can probably expect that immigration-related operations by the Department of Homeland Security and U.S. Citizenship and Immigration Services will pick up slowly, with some delays as workers who were furloughed get back to the piles on their desks.

In the case of Immigration Court proceedings, however (which are run by the Department of Justice), things are already moving quickly. While court hearings that were scheduled for today (October 17, 2013) in non-detained cases will not go forward, anyone with a hearing set for tomorrow, October 18, 2013, needs to be there! If you haven’t heard from your attorney about this, give him or her a call.

The “EOIR Operations for October 17, 2013” page of the Department of Justice website provides details.EEOIR Operations for October 17, 2013OIR Operations for October 17, 2013

California Lawmakers Take Practical Approach to Treatment of Undocumented Immigrants

sanjoseAn estimated two-million plus undocumented immigrants live, work, study, and otherwise make their home in California.

So perhaps it’s fitting that the California legislature recently passed a number of bills (subsequently signed by Governor Jerry Brown) that seem designed to make sure that, as long as they’re here, the undocumented are not treated in ways that are either grossly unfair or lead to unfortunate or dangerous unintended consequences.

Here’s a brief summary of the new laws (click the links for details):

  • AB 4, which forbids law enforcement officials from detaining noncitizens beyond their release date on the basis of a U.S. Immigration and Customs Enforcement (ICE) hold, unless the person has actually been convicted of one of various crimes or meets certain specified conditions. (This seems designed to put a stop to the expense and absurdity of local law enforcement agencies serving as detention units for the federal government by holding undocumented immigrants even if the criminal charges against them were dismissed or were minor in nature.)
  • AB 35, which says that no one can charge fees for serving people applying for the immigration program known as “Deferred Action for Childhood Arrivals” (or DACA) unless they are either immigration consultants, attorneys, notaries public, or organizations that have received accreditation from the U.S. Board of Immigration Appeals (B.I.A.); and even those who have received such accreditation cannot engage in price gouging.
  • AB 60, which makes undocumented California residents eligible for a drivers’ license upon providing satisfactory proof of identity and state residency. The license will contain a notation stating that it “does not establish eligibility for employment, voter registration, or public benefits,” and will contain the initials “DP” (Drivers Privilege) instead of “DL” (Drivers’ License).
  • AB 524, which specifies that threatening to report the immigration status or suspected immigration status of an person or family may be considered an inducement of fear sufficient to constitute extortion, and thus punishable under the California Penal Code.
  • AB 1024, which allows undocumented persons to be admitted to the California State Bar Association as attorneys, and therefore to practice law in this state.
  • AB 1159, which attempts to crack down on the practice of immigration law without a license, by imposing financial penalties on people who pose as attorneys, in particular by calling themselves “notarios” or other terms which have a more elevated meaning in other countries. The law specifies that the proceeds shall be used to help people damaged by such con artists, as well as to provide free legal advice concerning federal immigration reform.
  • SB 141, which requires community colleges and universities within the California state system to charge in-state, resident tuition to U.S. citizens who live in a foreign country because their parent or guardian was deported or voluntarily departed from the U. S., so long as they will be entering in their first year as matriculated students, can demonstrate financial need, lived in California immediately before moving abroad, attended a secondary school in California for at least three years, and intend to establish residency in California.
  • SB 150, which authorizes community college districts to charge only in-state, resident tuition to certain special part-time students, namely high schoolers who would benefit from advanced scholastic or vocational work, if they are non-citizens in financial need, or students from other states who had to move due to Hurricane Katrina.
  • SB 666, which creates criminal and civil penalties for attorneys and businesses that retaliate against employees and others on the basis of citizenship and immigration status or who report or threaten to report the suspected immigration status of a witness or party to a lawsuit because the person exercises a right related to employment.

In related news, San Francisco’s Board of Supervisors recently passed an ordinance prohibiting law enforcement officials from holding for deportation noncitizens who have not been convicted of felonies or deemed public safety risks. (It’s called the “Due Process Ordinance for All on Civil Immigration Detainers.”) Mayor Lee is expected to sign it.

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.

Gay Man From Cameroon Successfully Appeals Claim for Withholding of Removal

map-cameroonGood news on LGBT immigration cases just keeps rolling in. A recently come-to-light Board of Immigration Appeals (B.I.A.) decision (unpublished, issued in May of 2013) practically scolded the immigration judge (IJ) for denying the case of a gay man from Cameroon.

The applicant had applied for asylum and withholding of deportation based on his sexual orientation, past victimization in the form of sexual assaults, and Cameroon’s criminalization of homosexuality.

The man submitted his asylum claim far too late — many years after the one-year deadline on applying for this remedy, unfortunately. That left the B.I.A. with no apparent choice but to uphold the IJ’s denial of the asylum part of the application. But that still left the man’s claim for withholding of removal, a last-ditch remedy protecting would-be asylees from deportation. (Withholding does not, however, lead to a green card like asylum does.)

To be eligible for withholding of removal, an applicant must prove that it’s more likely than not that he would be persecuted or tortured upon return to his home country. The IJ denied this applicant based on a finding that his testimony was implausible and inconsistent, and therefore not credible (believable). Here’s where things get interesting.

A classic inconsistency in an asylum case would be, for instance, where an applicant states in his Form I-589 application for asylum that his sister was threatened and his brother was killed, but testifies in court that his sister was killed and his brother threatened. No matter how horrific the facts, a judge could hardly grant asylum to someone who couldn’t get key aspects of his story straight. Mixing up dates of critical events is also a reason for some applicants to be denied on credibility grounds.

But the inconsistencies noted by the IJ in this man’s case (according to the B.I.A.’s characterization of them) were far more subtle, and included certain judgments about human behavior that the B.I.A. called “erroneous” and I might call “out on a limb.”

For instance, the IJ couldn’t believe that the applicant “could not pinpoint the time that he realized that he was homosexual.” Before I start spluttering about how many people can remember the moment when they determined their own sexuality one way or another, I’ll simply repeat the B.I.A’s statement that this finding was “speculative, at best, and is an inappropriate consideration in a credibility analysis.” The applicant did, after all (quoting the B.I.A. again) “repeatedly state[] that he did not know and that he was still a child when many of these events occurred.”

The IJ also said that “it was illogical for his parents to acknowledge that he told them he was homosexual, but continue to pressure him to pursue heterosexual relationships.” Well, surely they wouldn’t be the first parents to hold onto every last hope that their child would do what society expects! Actually, the B.I.A. said it just as well: “The Immigration Judge provided no support for his belief that parents could not be supportive, yet  pressure their child to pursue a more traditional and acceptable way of life.”

This case isn’t completely sewn up yet (as far as I know). The B.I.A. remanded it back to the Immigration Judge for a final decision, giving the Department of Homeland Security a chance to run some security checks. But based on the B.I.A.’s finding, there should at last be some good news coming to this applicant.

Fee Hikes an Overlooked Aspect of Proposed Immigration Reform

mex border fenceThe legislation being hammered out in the Senate right now contains some pretty expensive elements. Specifically, committing even more resources than have already been thrown at the project of turning the U.S. border with Mexico into an impenetrable barrier is going to cost big bucks. Some $40 billion, to be spent on new border security agents, new drones, new fencing, and so on.

And where will this money come from? Much media attention was devoted recently to a U.S. government report showing that, if the bill is passed, the U.S. government and economy will actually get a boost. New taxpayers will contribute to the system, more undocumented immigrants will start new businesses, and all will hum along happily.

But that shouldn’t obscure a basic reality of the legislation as it stands, containing a recent compromise amendment from Senators Corker, Hoeven, and others. As noted in a recent press release from the American Immigration Lawyers’ Association (AILA), the spending on this bill isn’t going to come from the taxes and economic activity generated by these hardworking immigrants. It looks, for all the world, like it’s going to come straight from the immigrants pockets, as fees when they file their applications for immigration benefits.

AILA explains, “a startling and little-publicized requirement of the amendment would be that all ‘mandatory enforcement expenditures under the Act’ would be funded not by appropriated funds but by additional fees charged to those petitioning through the regular, legal immigration process.”

How high could these fees go up? They’re already in the thousands of dollars for many applications.

The proposed amendment says not only, “the Secretary may adjust the amounts of the fees and penalties . . .  except for [certain] fines and penalties,” but “If the Secretary determines that adjusting the fees and penalties set out [above] will be insufficient or impractical to cover the costs of the mandatory enforcement expenditures in this Act, the Secretary may charge an additional surcharge on every immigrant and nonimmigrant petition filed with the Secretary in an amount designed to be the minimum proportional surcharge necessary to recover the annual mandatory enforcement expenditures in this legislation.”

Ouch! Sky’s the limit!

If you’re an immigrant who already has a path to a visa or green card, the best advice I can give is to make sure the process moves forward as quickly as possible, to win the race against time and this new legislation.