Category Archives: Undocumented immigrants

Gay Man From Cameroon Successfully Appeals Claim for Withholding of Removal

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 A recently come-to-light Board of Immigration Appeals (B.I.A.) decision (unpublished, issued in May of 2013) practically scolded the immigration judge (IJ) for denying the case of a gay man from Cameroon.

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

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

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

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

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

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

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

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

Fee Hikes an Overlooked Aspect of Proposed Immigration Reform

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

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

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

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

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

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

Ouch! Sky’s the limit!

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

Happy Anniversary, DACA!

obamaThe program known as Deferred Action for Childhood Arrivals or “DACA” was first announced by President Obama on June 15, 2012, just over a year ago. It gave undocumented young immigrants a means of avoiding deportation and obtaining work permits. 

Met at first with skepticism — “Will it be just a way to identify and deport undocumented people?” “Will it disappear in a few months if Obama is not reelected?” “Will it become irrelevant if Congress passes an immigration reform bill?” — DACA has gone on to provide some measure of stability, not to mention work permits, for over 520,000 young people. (See the USCIS “Data on Individual Applications and Petitions” page for monthly updates.) A relatively few 19,000 applications were rejected.

Although the rate of applications has reduced markedly since the program was first announced, it is still possible to apply! See the DACA-related articles on Nolo’s website for more information. And as we’ve seen, Congress is still in a tug-of-war over comprehensive immigration reform.

Will Immigration Reform Expand Rights to Government-Paid Attorneys?

briefcaseIf you were interested in the issues discussed in my recent post called “A Few Immigrants, at Least, Will Now Get Free Immigration Lawyers,” be sure to check out Mark Noferi’s article in Slate, “Deportation Without Representation.”

Noferi, a J.D. from Stanford who teaches immigrants’ rights at Brooklyn Law School, points to a little-noticed piece of the proposed Senate bill: one that would provide government-paid legal representation to some noncitizens in removal proceedings, namely unaccompanied children, people with a serious mentally disability, or those who are “particularly vulnerable” compared to others in the same situation. (See pp. 567-568 of the bill for the actual language.)

For my money, nearly every noncitizen who can’t afford a lawyer is “particularly vulnerable.” They often don’t speak much English, they’re unfamiliar with the U.S. legal system, and they’re up against a body of law that’s confusing, counterintuitive, and often bizarrely punitive.

Noferi, however, focuses on detained immigrants as especially high on the vulnerability list. His description of the detention centers in which tens of thousands of immigrants spend months and years of their lives waiting to see a judge is apt, noting that they are: “routinely denounced for substandard conditions, such as moldy food, poor medical care, overcrowding, excessive force, shackles, and solitary confinement.” Like all generalizations, this doesn’t even begin to convey the awfulness of putting human beings who have committed no crime into a prison being run by people who treat them as if they had. (I’ve visited these places. They suck.)

Let’s hope this portion of the Senate bill survives intact — and is eventually expanded.

A Few Immigrants, at Least, Will Now Get Free Immigration Lawyers

crackIn a country where we’re used to the idea that criminal defendants who can’t afford a lawyer are entitled to one at government expense, people are often surprised to hear that noncitizens placed into deportation (removal) proceedings don’t have the same basic due process rights. The Immigration and Nationality Act says that noncitizens in removal proceedings may be represented by counsel, but at no expense to the government.

It’s  certainly not that noncitizens don’t need representation — Department of Justice statistics show that an average of half the people in removal proceedings don’t have a lawyer. The exact figure was 56% for the year 2012.

And given that even a spokesperson for the immigration bureaucracy once said, “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold,” (Immigration (INS) spokeswoman Karen Kraushaar, quoted by the Washington Post on April 24, 2001), it would be absurd to presume that these immigrants don’t need legal help.

For anyone who might argue that people in removal proceedings deserve to leave the U.S. anyway, take note of studies such as that done in March, 2012 by the Vera Institute of Justice, a nonprofit group, showing that 40% of unaccompanied noncitizen children might qualify for statuses that would exempt them from deportation.

The law on representation for noncitizens  is at last, however, evolving. In a federal court decision called Franco-Gonzalez v. Holder, the judge ordered Immigration and Customs Enforcement (ICE), the U.S. Attorney General, and the Executive Office of Immigration Review (EOIR) to provide legal representation to immigrant detainees with mental disabilities who are facing deportation.

The case concerned a green card applicant who had an I.Q. below 55 and the cognitive abilities of a young child, but who had been arrested after getting into the middle of a fight between rival gangs. While the immigration judge found him incompetent to face proceedings, the lack of a right to free representation put him into legal limbo, and he sat in detention for nearly five years.

This right to counsel is obviously quite limited, and will take some time to fully implement. However, if you know someone facing deportation, or in detention, who has limited mental abilities, get in touch with an immigration lawyer or a nonprofit charitable organization serving immigrants.

Proposed Immigration Bill Still Needs Provision for Gay and Lesbian Couples

double_rainbowThe current Senate draft of a comprehensive immigration reform bill contains provisions to help undocumented farmworkers and students, as well as would-be immigrants whose merits earn them a significant number of points — but nothing for gay and lesbians.

In particular, the draft doesn’t address the problem of gay and lesbian couples who are legally married under the laws of the particular U.S. state or foreign country where they registered or held a  ceremony, but nevertheless continue to be denied a marriage-based green card for the noncitizen spouse under U.S. immigration law. (The legal reason for that is the federal Defense of Marriage Act, or DOMA, which is awaiting an opinion from the U.S. Supreme Court.)

What’s the harm in this? According to testimony to the Senate Committee by Laura Lichter, President of the American Immigration Lawyers Association (AILA), “more than 36,000 couples are affected by this form of discrimination, and nearly half of them are households raising children.” Lichter added that, “Many gay and lesbian Americans in binational relationships have aging parents and must make difficult decisions between managing their parents’ health or remaining with their partners. . . Many Fortune 500 companies have lost skilled Americans to foreign competitors because of this issue . . . For many, the limited options mean having to choose between unconscionable separation, a life without lawful immigration status, or relocating the entire family outside the U.S.”

The bill may may yet address such issues, however, according to reports from CQ Roll Call, via San Francisco’s Immigrant Legal Resource Center. The draft Senate bill is currently being scrutinized and marked up by the Senate Judiciary Committee. Several Democrats on the committee have stated that they intend to introduce amendments allowing U.S. citizens to petition for (sponsor) same-sex partners for visas in the same manner that they are legally allowed to utilize for opposite-sex spouses under existing law.

Whether those amendments will survive the entire process of turning the bill into law, however, is in doubt. Some experts believe that they will be removed again in the course of negotiations, in order to ensure the passage of the bill as a whole. Stay tuned . . . .

And by the way, the legal situation is a bit different for couples in which one has undergone sex reassignment surgery, as described in Nolo’s Q&A, “Can a transgender spouse obtain a green card based on marriage to a U.S. citizen?