Justin Bieber’s Immigration Woes. Again. (Sorry.)

Demonstrating for Justin BieberJustin, please tell me you didn’t get into legal trouble again.

I say that not because I’m in a moralizing mood, and not because I’m worried about what kind of example you’re setting for your fresh-faced, adoring fans.

No, I say that for one, much simpler reason.

I thought I was done writing about whether your various run-ins with U.S. law enforcement make you, as a non-citizen visa holder, deportable. Intellectually and emotionally, I am over it.

But now readers are asking, “So, is he deportable this time? The LAPD are going after him for attempted robbery! How ‘bout it? ”

Alright, here goes.

Justin’s latest “oops” was apparently grabbing a woman’s cell phone in order to erase photos that he suspected she had taken of him. (‘Cause who wouldn’t want to snap photos of the Biebs?)

If that doesn’t sound like robbery to you, read Nolo editor Micah Schwartzach’s analysis, “Breaking Down Bieber’s Alleged Attempted Robbery.”

Noncitizens of the U.S. can be deported if they commit certain types of crimes, found in Section 237 of the Immigration and Nationality Act (I.N.A.). Although some crimes are named on that list, attempted robbery isn’t one of them (nor is regular robbery.)

However, his lawyers would also want to look at whether the robbery conviction (if it indeed happens, and depending on the details) meets any of the following criteria for deportability found in the I.N.A.:

  • a crime involving moral turpitude that was committed within five years ) after the date of U.S. admission and is punishable by a sentence of at least one year
  • one of two or more crimes involving moral turpitude that took place at any time after U.S. admission, where the two crimes did not arise out of a single scheme of misconduct, or
  • an aggravated felony committed at any time after U.S. admission.

As explained further in the links provided above, the short answer is that, once again, he’s probably not deportable. Unless, that is, he gets a one-year sentence for grabbing a cell phone. Stay tuned!

Wait, no, don’t stay tuned to hear it from me. That’s it. My last blog on Justin Bieber. I swear it.

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?

Bizarre New Enforcement Practice — Arresting Departing Nationals of Mexico

ICE arrestI nearly drove my car off the road yesterday listening to NPR’s report on “The Curious Practice Of Bringing Immigrants Back — To Deport Them.” This is truly something new in the world of immigration enforcement.

U.S. Customs and Border Protection officers are not only questioning people coming into the U.S., but addressing questions in Spanish to those driving or riding buses out of the U.S. into Mexico.

Their main goal is apparently to check for evidence of drug trafficking, such as transporting large sums of illegally obtained money. But apparently CBP officials have decided that, while they’re at it, they might as well arrest a few folks who were living in the U.S. without documents — even ones who’d committed no crimes and were minutes away from returning to Mexico anyway!

No one interviewed for the report, regardless of political affiliation, thought this was anything more than a waste of money and time. It’s especially bizarre at a time when — due to the government’s limited resources — the administration has specifically instructed immigration officials to follow a policy of “prosecutorial discretion,” focusing on deporting only those people who present the greatest risk to U.S. society.

And there’s been plenty of political talk of promoting “self-deportation,” too, which it appears some of the departing Mexicans were in the very process of doing.

Hard to say whether this new arrest pattern is misguided, mean-spirited, or simply motivated by some local CBP officers’ wish to get their arrest numbers up and then call it a day.

Do the Signers of the “Deport Justin Bieber” Petition Really Want the White House to Have Such Power?

whitehouseAs widely reported, the petition to the White House to deport pop-singer Justin Bieber, which garnered over 273,00 signatures, recently received an official response. The Administration said, in relevant part, that:

The We the People terms of participation state that, “to avoid the appearance of improper influence, the White House may decline to address certain procurement, law enforcement, adjudicatory, or similar matters properly within the jurisdiction of federal departments or agencies, federal courts, or state and local government in its response to a petition.

According to the Washington Post article on the topic by Helena Andrews, the bottom line here is that “the buck has officially been passed.”

No, the buck has not been passed. The buck was never with the White House in the first place. There is simply nothing in U.S. immigration law that allows the White House (or any other law enforcement authority for that matter), to deport a non-citizen simply because that person “is . . . a terrible influence on our nations [sic.] youth” and the “people” of the U.S. “would like to remove [him] from our society.”

Before the U.S. deports someone, that person has to have done something that matches one of the grounds of deportability set out in the Immigration and Nationality Act. Just a little something called the “rule of law” in our democracy.

And the White House itself wouldn’t be the one to initiate the removal proceedings — that’s the job of the Department of Homeland Security. DHS is, to be sure, an Executive Branch agency — but again, the White House’s basic policy is to not go meddling in the  jurisdiction of such departments merely because a tiny portion of the U.S. population put their names on a petition.

That’s not to say that Bieber’s recent antics and run-ins with the police and U.S. border officials haven’t skated dangerously close to making him deportable. (For more on that, see my earlier blogs,  “Justin Bieber: “Stuck in the Moment” of a Pending Removal Proceeding,” “Oh, and Justin Bieber’s Alleged Assault on a Limo Driver Probably Won’t Get Him Deported, Either,” and “The Justin Bieber Immigration Chronicles, Continued.”)

But if non-Beliebers feel that Justin should be deported for those actions, then putting pressure on Congress to make the immigration laws even harsher than they already are would be the appropriate route. The idea that a petition to the White House could result in someone’s deportation, however, without reference to the legal grounds for it, is just plain scary.

Why Give Birth in the U.S. When a Surrogate Can Do It For You?!

pacifierIt was only a matter of time, really. First, there was “birth tourism,” in which people from around the world who are interested in gaining a foothold in the U.S. arrange to enter as tourists and have a child here — their own little U.S. citizen “anchor baby.”  (See details in my earlier blog, on “Anchor Babies in the News.”)

Now, some parents are avoiding that nerve-wracking plane ride while pregnant, and simply arranging to have surrogate women in the U.S. give birth and cede their parental rights to them. For real. You can read about it in California Lawyer magazine.

This strategy doesn’t work in every U.S. state (because many state legislatures have made surrogacy contracts illegal or unenforceable), but it works in California, which is plenty convenient for the many Asian couples going this route.

I do need to take issue with one statement in the article on “Having a Citizen Baby,” however. It says that, “At $100,000 to $200,000–which includes legal fees, insurance, medical care, and $30,000 to $45,000 for the surrogate–hiring a surrogate is still much cheaper than taking another fast track to legal residency: paying $500,000 or more for an entrepreneur visa.”

The surrogacy route is no “fast track” to legal residency, other than for the baby, who wasn’t exactly worried about immigrating to the U.S. in the first place. Mom and dad still must wait 21 years outside the U.S. before gaining any rights here (also described in my earlier blog post). The entrepreneur or investor visa, by contrast, allows parents and children to enter the U.S. right away.

But the surrogacy route offers certainty for at least one member of the family, and doesn’t carry the risk that the business upon which the investor visa was based will fail within the  first two years–in which case green card eligibility is lost.

Newly Issued Statistics on Who’s in the U.S. With a Temporary Visa

visaThe U.S. government recently released a report called “Estimates of the Size and Characteristics of the Resident Nonimmigrant Population in the United States: January 2012.” It analyzes the numbers of “nonimmigrants” in the U.S. (foreign-born people with a visa as opposed to a green card or undocumented status) in terms of variables such as age, country of origin, and type of visa.

Here are some salient factoids from the report:

  •  A total of about 1.9 million nonimmigrants lived in the U.S. in 2012.
  • Almost half of these (45%) were temporary workers and their families (for example, on H visas).
  • Another 40% were students and their families.
  • Most of them (80%) were between the ages of 18 and 44.
  • About half of them hailed from an Asian country (an impressive 50% of  foreign students came from China, and 38% of workers came from India).
  • Their top destination states were California, New York, Texas, Florida, and Massachusetts.

The bottom line? When you imagine a nonimmigrant, you should probably bring to mind a young Asian worker or foreign student.

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.

Countries From Which It’s Hardest to Get a Visitor (B-2) Visa to the U.S.

jigsaw in blue with five missing piecesThe U.S. Department of State (DOS) recently released statistics showing what percentage of applicants from various countries have been denied tourist or visitor visas in 2013 and earlier years. In some cases, the refusal rate isn’t just high, it’s overwhelming — that is, a majority of applicants get a “No” answer.

You might as well not even try applying for a visitor visa if you’re from Micronesia or Serbia and Montenegro. The refusal rate in those locations is 100%. Yes, you read that right — everyone who asks for a visa is apparently refused. Or perhaps the few who are approved are statistically insignificant (though they should really break out the champagne).

Also high on the refusal list are Somalia (65.8%), Djibouti (62.6%), (Afghanistan (62.7%), Ghana (61.8%), Laos (61.4%), Cuba (61.1%), Liberia (59%), Tajikistan (53.7%), Burundi (52.7%), and Mauritania (50%). (Hey, are the consular officers just flipping coins in Mauritania?)

Looking over this list, a certain pattern emerges. The countries with high refusal rates also have difficult civil or economic situations, as a result of which many people may be looking for a way out — in other words, bringing the kids to Disneyland is probably the last thing on their minds or within their budgets. And the U.S. government must, by law, deny visitor visas to anyone who looks as though their real intention is to make the U.S. their permanent home.

For more on the eligibility criteria for a U.S. visitor visa, see “Visiting the U.S. for Business, Pleasure, or Medical Treatment.”

“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.