One Year Later, Only 1% of DACA Applications Denied!

Themis 0010The Brookings Institute has assembled some interesting data depicting how the Deferred Action for Childhood Arrivals (DACA) program has gone, a little more than one year after its inception.

Among the most interesting results is the low denial rate — running at a mere 1% of the cases that were accepted for processing. (Around 3.5% of applicants were rejected at the outset, for failing to submit a complete application.) Most people who manage to submit a complete application are approved — 72% so far. Those numbers are surprising for a program that many feared would serve as a ruse for immigration enforcement activities and lead to mass removal of undocumented immigrants from the United States.

They’re also somewhat unexpected given that this is no easy program to apply for. Applicants must, in order to succeed in obtaining this limited-term protection from deportation, provide a pile of paperwork to show that they meet all the eligibility criteria. They must include proof of identity, age, entry date in the U.S., academic record, presence in the U.S on June 15, 2012, and continuous physical presence in the United States since entering. (For details, see Nolo’s article, “Deferred Action for Young Immigrants (DACA): Application Process.”)

But you may notice that 72% and 1% does not add up to 100%. There are a number of cases that haven’t yet been processed, to the tune of 24.5% that are still “under review.” What’s up with that?

It’s impossible to know for sure, but U.S. Citizenship and Immigration Services (USCIS) rarely moves quickly when it denies immigration benefits, and it’s entirely likely that it has requested that many of these applicants provide more evidence, given them time in which to respond, and is perhaps still considering whether it can make decisions in these cases. USCIS is also famous for getting backlogged when its overwhelmed by a large number of applications, and both DACA applicants and attorneys have complained of cases getting “stuck” in the system.

So, let’s just say these positive percentages could change a bit. Nevertheless, now is a good time to remind people that it’s still not too late to apply for DACA, as described in, “Have I missed the DACA deadline, or can I still apply?

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.

Lottery Winners in Same-Sex Marriages: Don’t Be Deterred by Bad Advice!

If you won this year’s Diversity Visa lottery, and are working on getting a green card or immigrant visa to the U.S., and you’re part of a same-sex couple, you were probably excited to hear of the U.S. Supreme Court’s Windsor decision. By overturning a major portion of the federal Defense of Marriage Act (DOMA), this cleared the way for same-sex couples in legally recognized marriages (whether they occurred in the U.S. or another country) to enjoy immigration as well as other benefits.

There’s just one problem: The U.S. State Department and other immigration authorities have been classically slow to catch on. Even after the Windsor decision, some of them were reportedly advising would-be Diversity Visa applicants that no, their same-sex marriages don’t count, and they can’t bring their spouses to the United States.

That’s wrong advice. The government memos are supposedly flying, and hopefully by now DV visa applicants are not being steered in the wrong direction. But if you gave up on bringing your same-sex partner before, it’s time for some quick action now (and ideally a call to an attorney). Even if you’re not married yet, it’s not too late, as described in, “Won the Diversity Visa Lottery: Can I marry my same-sex partner and bring her to the U.S.?

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.

Is the Moon Blue? Priority Dates Current in Family Category 2A

moonThis doesn’t happen very often – only “once in a blue moon,” as they say: Priority Dates for the spouses and children of a U.S. lawful permanent resident (LPR), in category 2A of the family preference system, are shown as “Current” (with a “C”) in the State Department Visa Bulletin for August, 2013.

A wait that usually lasts two to five years has been reduced to zero.

By way of background, the Priority Date is the all-important place in line to get a U.S. immigrant visa, or green card. Because only a limited number are, by law, allocated annually, and demand always exceeds supply, the visas are doled out on a first-applied, first-served basis. More literally, they are based on the date that U.S. Citizenship and Immigration Services (USCIS) received the I-130 visa petition from the U.S. LPR that started the application process on the immigrant’s behalf.

Normally, only when the Visa Bulletin shows a date that is the same or later than the immigrant’s Priority Date is the immigrant allowed to go ahead with the green card application. But the “current” situation is abnormal — everyone can, potentially, move forward, regardless of how long ago they applied or who is in line ahead of them.

How long this will last is anyone’s guess. And intending immigrants in category 2A may need to act quickly to take advantage of it. For more information, and guidance on what to do next, see Nolo’s update, “Spouse or Child of LPR? Your Priority Date Is Current!

Helpful NYT Chart on Federal Benefits Available to Same-Sex Couples

OLYMPUS DIGITAL CAMERANice graphics, nice summary: If you’re a member of a gay couple, you’ll want to check out this New York Times explanation of how the Supreme Court’s recent decision striking down major portions of the federal Defense of Marriage Act (DOMA) affects your rights depending on where in the U.S. you live.

The article’s statement that “Your spouse can apply for a permanent resident visa, known as a green card, for you,” however, needs a footnote.

In terms of basic eligibility rights, it’s absolutely true. But because of various penalties that primarily affect people who entered the U.S. without inspection (EWI, in immigration law lingo), actually claiming that green card may not be so easy. See Nolo’s article, “Entered the U.S. Illegally and Married a U.S. Citizen: What Are the Immigration Options?” for more information.

 

First Green Cards to Same-Sex Couples Being Issued!

ringsAs announced in an article by Julia Preston in the June 30 New York Times, U.S. Citizenship and Immigration Services (USCIS) has already begun approving marriage-based green cards for legally married same-sex couples. (We should expect an announcement from the Guinness Book of World Records next, because I think this is the fastest that this gigantoid bureaucracy has moved on anything, ever. The couple was surprised. Their lawyer was surprised.)

The important thing to realize about this action, however, is that the couple’s application was filed previous to the Supreme Court decision overturning core portions of the federal Defense of Marriage Act, or DOMA (which had created the bar to same-sex-marriage-based green cards in the first place). Apparently a number of same-sex couples anticipated DOMA’s eventual demise, no doubt based on the Obama Administration’s 2011 declaration that DOMA was unconstitutional and shouldn’t be enforced, and they submitted visa petition or green card applications in advance of any certainty that they would be approved. (Just one of those individual acts of courage that adds up to a movement . . . .) The couple in the article submitted a green card application last February.

What this recent USCIS action doesn’t mean is that the agency is prepared for new applications right this minute, or will act this quickly on them. The normal turnaround for an I-130 (the visa petition that the U.S. citizen or permanent resident would file if the immigrant is either overseas or is in the U.S. but ineligible to use the “adjustment of status” procedure, most likely because of an illegal entry), is about six months. (You can view USCIS’s not entirely reliable time estimates on its Case Status page.)

The normal turnaround time when the immigrant is already in the U.S. AND is eligible to use the U.S.-based adjustment of status procedure, in which case the U.S. citizen spouse can file an I-130 visa petition together with the rest of the green card packet, depends on backups at their local USCIS District Office. This process usually also takes several months before the couple is called in for the personal interview at which the green card should be approved.

Add to all this the fact that USCIS hasn’t issued any guidelines about how it will consider same-sex marriage cases and, if you’re in a same-sex binational married couple, you’ve got good reasons to hold off and consult a lawyer before actually submitting anything. At least a few days. We need to make sure no unhappy surprises turn up in the guidelines USCIS issues.

There’s reason to hope that the guidelines will be fairly straightforward, however. USCIS has promised to issue them promptly, and Janet Napolitano stated today that, “. . . I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

No matter what, now is a good time to start figuring out what you’ll need for the green card application and to get the various forms and documents ready. You’ll find information on marriage-based visas and green cards here on Nolo’s website.