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.

The Justin Bieber Immigration Chronicles, Continued

If I blog about Justin Bieber for the third time in a row, does that make me a “Belieber?” (Nah, I still can’t hum a thing he’s recorded, sorry.)

But he’s become the world’s best object lesson regarding U.S. immigration law and policy.

drug dogIn his latest kerfuffle, reported on by CNN, U.S. Customs and Border Protection (CBP) officials searched his private plane, interviewed him for “several hours,” and brought in the trusty drug-sniffing dogs before letting him back into the U.S. from his recent trip to Canada.

(CBP are the same folks who meet you at the airport or border, examine your passport or other entry documents, and ask whether you’re bringing in any drugs, snakes, explosives, and so on before they hopefully wave you in).

Their reason for spending so many time on Bieber? To get autographs for their kids, of course! Oh, no, the officials say that they’d “detected an odor of marijuana after [the plane] landed in New Jersey.”

Uh oh, the dreaded weed. Maybe they’re getting into the spirit of the “let’s deport Justin” movement, because had drugs been found, that plus his earlier admission of having been smoking marijuana might very well be enough to have him removed from the U.S. as a drug abuser. (See my earlier blog, “Justin Bieber “Stuck in the Moment” of a Pending Removal Proceeding?“)

But either their sniffers were overactive that day or the Bieber entourage does a really, really good job of hiding its dope, because nothing was found. Justin was allowed into the U.S., with nary a stain on his record. That means he doesn’t get to join my list of  “International Celebrities Denied U.S. Entry Visas.” (Then again, by the pilot’s description, they may have simply smoked it all.)

Oh, and Justin Bieber’s Alleged Assault on a Limo Driver Probably Won’t Get Him Deported, Either

canada policeIn yesterday’s blog, I took a look at whether Justin Bieber could realistically face deportation (removal) for various types of trouble he’s gotten into while living in the United States on an O-1 visa.

But today’s headlines raise another question: If he’s convicted for assaulting a limo driver in Canada (as he’s been recently charged with by Toronto police), could that foreign conviction lead him to be deported from the United States?

The first issue here is whether a foreign conviction can be held against someone in the U.S. and make them deportable. No one should be surprised to hear that the answer is, “Yes.” However, to protect people against being deported for something that’s not even illegal in the U.S. (for example, depositing your chewing gum on the sidewalk, which I once read is illegal in Singapore, though you shouldn’t quote me on that), the foreign conviction has to parallel a crime on the books in the United States.

Of course, assault is illegal here. Bieber is said to have been one of six passengers picked up by a limo driver on December 30 of last year, who got into an altercation that led to the limo driver being hit on the head several times. (The driver’s okay, but will probably never allow his children to see Bieber in concert.) So finding a parallel U.S. statute will not likely be an obstacle, were U.S. immigration officials inclined to try to deport the Biebs.

The bigger issue is whether assault can be the basis for deportation of someone legally within the United States. To constitute a “crime of moral turpitude” (one of the main criminal grounds for deportability, depending on length of sentence and number of offenses), it would likely have to be an “aggravated assault.” Given that the driver in this case was able to stop the limo, get out, and call the police, I’m going to hazard a guess that this won’t be seen as rising to the level of “aggravated.”

But the analysis isn’t over yet: The next question is whether the assault is an “aggravated felony,” which is also a basis for deportation. Bieber’s lawyer says it’s likely to be treated as the equivalent of a misdemeanor in Canada — which doesn’t tell us much, because owing to the vagaries of U.S. immigration law, misdemeanors can be treated as felonies! Crimes of violence with a sentence of it least one year are considered aggravated felonies. Given the low level of injuries in this case, I doubt Bieber will get a year-long sentence — if he’s even convicted in the first place. (Let’s not forget, these are all allegations at this point, plus a lot of media hype.)

So, to the more than 200,000 petition signers who say that “We would like to see the dangerous, reckless, destructive, and drug abusing, Justin Bieber deported,”  don’t hold your collective breath. Solid legal grounds upon which to do seem not to have actually arisen yet. (And BTW, the headline on your petition is inaccurate: He doesn’t have a green card. It’s a temporary work visa.)

Justin Bieber “Stuck in the Moment” of a Pending Removal Proceeding?

After years of exploring immigration law’s darkest corners, I can say with some certainty that:

  1. throwing eggs at your neighbor’s house is not on the list of grounds of deportability, and
  2. nor is being the subject of a petition to the White House alleging that you have “wrongly represented” the U.S. “in the world of pop culture.”

I hope that’s of some comfort to Justin Bieber fans.

eggbrokenIf you’re unfamiliar with the hoopla, CNN did a fine job of outlining both what Canadian-born pop singer Justin Bieber is currently suspected of (felony vandalism, so far, based on the egg-throwing incident; with possible charges for driving while under the influence of drugs, though it’s not clear that he was doing the driving). See CNN’s “Could Justin Bieber be deported?” and “Justin Bieber egg probe ‘tightening up’; prosecutor wants more investigation.”

The CNN articles also discuss what these accusations might mean for Bieber’s immigration status. He’s apparently in the U.S. on an O visa, for people with “extraordinary ability in the sciences, arts, education, business, or athletics.”

People who are legally in the U.S., like Bieber, can be deported for committing a crime that’s listed on the grounds of deportability within U.S. immigration law. (Juvenile crimes are sometimes an exception, but contrary to appearances, the Biebs is already 19.)

Nothing Bieber is alleged to have done so far seems to make experienced immigration attorneys think he fits either of the main two criminal grounds of deportability, namely a “crime of moral turpitude” (one that shocks the public conscience) or an “aggravated felony (which doesn’t have to have “felony” in the name, but can include various types of misdemeanors).

Bieber could, however, face removal proceedings if he has drug issues. The immigration law contains two separate grounds of deportability for drug use: one that makes people deportable if they’ve been convicted of a drug crime (or an attempt), with an exception for a single offense involving possession for personal use of 30 grams or less of marijuana; and another for being a drug abuser or addict.

Notice that no actual court conviction is needed to be deportable under the drug abuse/addict section. The person’s own confession to drug use could be enough. Bieber appears to have already told the police who pulled him over in a traffic stop that he’d been drinking, using marijuana, and taking prescription pills. (Oops. It’s never a good idea to drink so much that you get into a confessional mood like that.)

Of course, one could face worse fates than being deported to Canada. But, depending how all this plays out, Bieber could face a bar on returning to the U.S. for a long time after deportation — long enough to lose those baby cheeks.

P.S. Should we be shocked or impressed that he poses for a mugshot like it’s just another publicity still?

What Will Happen If Dozens of Immigration Judges Retire?

Swimming pool at VIP villas, Antalya, TurkeyAccording to a recent report by Laura Wides-Munoz for ABC News, nearly half of the nation’s 220 immigration judges (IJs) will be eligible for retirement next year, in 2014.

I’ve got to confess, my first reaction upon reading that was to think “Phew, I know of one or two judges who should have found themselves a sunny beach in Florida years ago.” (More on that, I shall not say.)

But apparently, clearing away deadwood comes at a price. Wides-Munoz identifies a number of foreseeable problems if even the average number of judges retire next year (which would be 11), and quotes the president of the National Association of Immigration Judges as saying that the increasing difficulty of the job may push that number up higher.

It’s a burnout job. IJs deal with a complex law, a high number of unrepresented noncitizens, a lack of support staff to deal with an often overwhelming caseload, the emotional toll of issuing what may be life-or-death decisions, and so on.

The main issue to do with coming retirements that Wides-Munoz  discusses is the inevitable increased delay for hearings to be scheduled and conclude.  (Many hearings last for more than one session.) This will lead to deserving cases being harder to present convincingly, and undeserving cases consuming resources if the noncitizen is in detention.

Another possible issue is that, even in the best-case scenario, in which many of the vacant positions are filled (which doesn’t look likely to happen quickly), the immigration courts will be increasingly populated by judges who don’t really understand immigration law all that well. Sure, the government will pick qualified candidates, but most immigration practitioners specialize in one area, and may be unfamiliar with others.

So, I officially withdraw my initial reaction. Don’t go! Retirement is overrated! Excessive sun exposure is dangerous!

How Much SHOULD a Diplomat’s Maid Be Paid?

illegal contractIf you’ve been following the headlines about the deputy consul general from India, Devyani Khobragade, whose arrest in New York over having submitted false documents to the U.S. government regarding the amount she was paying her housekeeper is sparking an international incident, you may have wondered: How much SHOULD she, by law, have been paying her maid?

If all that went by too fast, here’s a little more background: The deputy consul came to the U.S. on a diplomatic visa called an A-1. This visa allows its holders to bring along domestic staff from their home country — on the condition that they pay them the higher of:

  • the prevailing wage in that region, or
  • the federal or state minimum wage.

(Read more about this visa on the State Department’s page describing “Visas for Diplomats and Foreign Government Officials.”)

Ms. Khobragade brought a housekeeper along, and despite her apparent promises to the U.S. government that she would pay her housekeeper $4,500 a month, allegedly paid her a mere $573 a month, for work far in excess of 40 hours per week.

So, back to the original question regarding appropriate payment. For starters, the deputy consul obviously should have paid the amount promised in the visa application on behalf of the housekeeper, namely $4,500 a month. Making false statements on U.S. immigration applications is grounds for becoming inadmissible, that is, unable to receive future U.S. visas or immigration benefits.

As for the minimum the deputy consul should have offered, one must determine this by going to the Department of Labor’s “Foreign Labor Certification Data Center” website. For the New York Metro area, and the position of “Maids and Housekeeping Cleaners,” my search came up with a minimum figure of $10.32 per hour or $21,466 a year, which works out to $1,789 per month. Since that figure is higher than the federal minimum wage of $7.25 per hour, that’s what the housekeeper likely should have received at the very least — less than the amount originally promised, but far more than the amount apparently paid!

Obviously there are major questions about the way this case was handled, with an arrest outside the deputy consul’s daughter’s school, and alleged strip searches (looking for what?! the missing wages?). But setting that aside, should the deputy consul be allowed to claim diplomatic immunity to avoid meeting basic (and not overly generous) U.S. immigration and labor laws?

According to journalist Sandip Roy, India’s diplomats have a history of flouting U.S. labor laws. Roy concludes, “As consular staff member representing India abroad, Ms Khobragade enjoys many rights. The right to a domestic help at cut-rate wages however is not one of them.”

How Will You Know When USCIS Declares a Snow Day?

whitehousesnowWhen local schools are closed due to snow, you will usually hear it announced it on local radio and TV stations (and you can hear the cheers from around the neighborhood).

But how do you find out whether the office of U.S. Citizenship and Immigration Services (USCIS) at which you are scheduled to attend an interview or provide your biometrics has been closed due to bad (sometimes called “inclement”) weather? Sometimes the media may mention the closure of federal buildings, but it’s best not to count on this as your sole source of information.

If you have a lawyer, and he or she is a member of the American Immigration Lawyers’ Association (AILA), your lawyer will likely receive an email with any notifications of USCIS office closings.

If you don’t have a lawyer working on your immigration case, however, you may need to do a little research on your own if the weather is looking bad. USCIS does not make any attempt to reach out to people individually — trying to call or even email the thousands of people who are scheduled for appointments on a given day would probably take well into that night!

USCIS will reschedule non-INFOPASS appointments due to its own closure automatically, but that’s done by letter, and could take weeks. (If you made an INFOPASS appointment to visit a USCIS office, however, you’ll need to go online and reschedule that one yourself.)

The most reliable source of such information is on the “Field Office Closings” page of the USCIS website. On most days, it will simply say (in the top paragraph under the date) “All offices are open on schedule today.” On other days, however, this page will state which of USCIS’s offices nationwide are closed. According to a USCIS spokesperson whom I contacted, they also make an effort to advise people via social media, including the USCIS Facebook page and Twitter.

If in doubt, you could also try calling the National Customer Service Center at 800-375-5283.

If you are still in doubt, do your best to make it to your appointment. Failure to do so could result in weeks of delay at best, and possible denial of your application for immigration benefits.