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.

Chances of Provisional Waiver Approval? About 60-40

tracksThanks to CLINIC (the Catholic Legal Immigration Network), we now have a clearer picture of how U.S. Citizenship and Immigration Services (USCIS) is responding to requests for provisional waivers (on Form I-601A). The approval rate thus far is 59% — hardly encouraging for prospective applicants. (See “Update from the NBC on Provisional Waivers.”)

The statistics confirm what many immigration attorneys have been observing: The issue of whether USCIS finds “reason to believe” that the applicant could be inadmissible (for reasons other than unlawful presence) accounts for the highest number of denials, at 48% of the total.

According to attorney experience, “reason to believe” is taken extremely broadly by USCIS, with minimal or no consideration given to whether the perceived issue could, if true, actually amount to a ground of inadmissibility. A minor traffic violation on a person’s record, could, for example, lead to denial of the provisional waiver – but is not actually a ground of inadmissibility.

The second highest reason for denial was failure to establish extreme hardship to a qualifying U.S. relative. That’s more in line with what one might expect as a reason for denials. Proving extreme hardship in any immigration context can be tricky, depending as much on one’s ability to weave facts into a compelling narrative and the sympathies of the person making the decision as on whether one applicant’s case is actually any more deserving than another’s.

Should this news discourage people from applying for provisional waivers? In the short term, probably yes. Immigration attorneys are already gearing up to try to convince USCIS to shift its approach on this matter, and the dust will need some time in which to settle.

But if you’ve got unlimited funds, or are urgently in need of a green card, applying now isn’t the worst idea, either. It won’t stop you from applying for another provisional waiver if you can show new information in support of your request. And it won’t stop you from taking a chance and leaving the U.S. to apply for your waiver at an overseas consulate. (If this isn’t making sense to you, then please read the more extensive discussion of how to get a waiver or provisional waiver of unlawful presence on the “Waivers and Inadmissibility” page of Nolo’s website.)

The Shutdown Isn’t Total: Don’t Miss Your Green Card Appointment!

stop signAs of October 1, the Republicans have succeeded in shutting down all “non-essential” U.S. government functions. What that means for immigrants, however, depends on which agency you’re dealing with, how its’ funded, how urgent its functions are considered to be, and of course how long this shutdown lasts.

So, for example, if you are scheduled for a green card (adjustment of status) interview during the shutdown, U.S. Citizenship and Immigration Services so far says that these will continue. On the other hand, immigration court proceedings are largely canceled, except in cases where the person is being held in detention.

And in case you were wondering, the shutdown doesn’t change the fact that today is the first day people from certain countries can apply for the U.S.’s annual diversity visa lottery.

For further details, see Nolo’s update on “What the Federal Shutdown Means for Immigration Agencies.”

With Broken Promises Like These, Why Would Anyone Help the U.S. in a Conflict Zone?

Breaking pointAsk any immigration lawyer: What the law says and what actually happens in real life can be miles apart, due in large part to competing interpretations — or simply bureaucratic foot dragging — by  various U.S. government agencies.

This is nowhere better exemplified than in the case of the Afghan and Iraqi translators and other workers who helped the U.S. government or military during recent conflicts in their countries. They put their lives at risk, knowing that after the U.S. soldiers went home, they’d have to face reprisals from within their own community.

In what was meant to be a response to their plight, the U.S. Congress created visas within the “Special Immigrant” category. (By way of context, years ago, a similar visa was created for citizens of Panama who put themselves at risk on behalf of the U.S.) See “EB-4 Visa for Special Immigrants: Who Qualifies?” for a complete list of who is covered by this section of U.S. immigration law.

The U.S. government has been very careful to make sure this visa did not create an open door for anyone who might want to come to the United States. It added requirements that both the Iraqi and the Afghan workers “experienced or are experiencing an ongoing serious threat as a consequence of” their employment.  In order to submit a complete application, they must come up with letters of recommendation and assessments of the risk level that they face, from U.S. supervisors and other higher-ups. In other words, they’re far from seeking U.S. entry based on their word alone!

So why is it that only a miniscule number of visas been handed out in this category, which is due to sunset — that is, drop out of the law books, leaving potential applicants high and dry — in mere weeks? The stories are wrenching, as can be seen in such articles as “America’s Afghan And Iraqi Interpreters Risk Lives But Wait Years In Danger For Visas” and “U.S. Soldier Fights For Afghan Interpreter Who Saved His Life.”

The answer can partly be found in another portion of the requirement for these applicants: that they pass a U.S. security check. Given that the countries from which they hail are among those that the U.S. suspects of supporting or sponsoring terrorism, Mother Teresa herself might have trouble passing the security check. And as described in the media coverage above, once your enemies find out you’re trying to head for the U.S., a well-placed call denouncing you may be all that’s needed to seal your fate.

An even more bizarre reason can be found in this 2011 State Department compliance report regarding the U.S. Embassy in Kabul. It states that, “The embassy opposes the brain drain from Afghanistan of rare, highly qualified individuals. It also questions the realities of the threat environment in individual cases and highlights the extensive resources needed to implement the program.”

Excuse me? Congress saw fit to pass a law to specifically protect people whose lives are at risk, and the embassy in Kabul is worrying about a “brain drain?” I cry foul. Now if Congress would only listen, and extend the sunset date on these laws.

With Immigration Reform Comatose, At Least the Visa Lottery Remains!

enter to winAll reports seem to say that Comprehensive Immigration Reform (CIR) — which looked to be as close to becoming a reality as any similar efforts have in recent years — hit a brick wall as soon as it was passed from the Senate to the House of Representatives. (Are we surprised?) The current forecast for action on the bill is “none.” Although that will leave many people disappointed — including many with close ties to the U.S., as in already living, working, and raising families here — there’s an odd silver lining.

A random assortment of people from around the world with little or no previous connection to the U.S. will continue to receive U.S. green cards through the diversity visa lottery, which CIR had put on the chopping block! Well, perhaps not completely random. Despite the “lottery” moniker, applicants must show that they have achieved a certain level of education. And they may need the wherewithal to hire an attorney to help complete the process if they win, because the State Department always declares more “winners” than it actually has visas, and it becomes a race to finish the process before the end of the relevant fiscal year. See the articles on the “Diversity Visa Lottery Green Cards” page of Nolo’s website for details — and to help avoid the eventual scams that will pop up as they do every year.

By the way, there’s another bright spot in this year’s lottery. Same-sex spouses will now be able to accompany the winners and receive a U.S. green card, provided their marriage is legally recognized in the country or jurisdiction where it took place.

Get ready: The application period opens October 1!

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.