America’s Leaders Are Failing the Children

Author: on 07/21/2014


shutterstock_85214245Our country is facing one of its greatest moral challenges in years: how will we treat the migrant children fleeing violence in Central America and seeking refuge within our borders? I know how I want us to treat them. Fairly, humanely, and within the parameters of the anti-trafficking law passed by bipartisan consensus in 2008 and signed by then-President George W. Bush.

Under the TVPRA of 2008, a child apprehended by Customs and Border Protection (CBP) undergoes initial processing and screening to see if he or she is an unaccompanied child (UAC) from a non-contiguous country, such as El Salvador, Honduras, or Guatemala.  CBP must notify Immigration and Customs Enforcement and the Office of Refugee Resettlement (ORR) and transfer the child within 72 hours of apprehension to ORR custody.  ORR places the child in the least restrictive setting available that is in the best interest of the child, and then completes a screening to determine whether: (1) the child has been a victim of trafficking; (2) there is credible evidence that the child is at risk if returned; and (3) the child has a possible claim to asylum.  The child is not automatically permitted to stay in the United States.  Rather, he or she is placed in removal proceedings before an immigration judge pursuant to section 240 of the Immigration and Nationality Act.  While proceedings are pending, the child is released to the custody of a family member or to an ORR shelter or foster home.  If the child is not eligible for any relief, he or she is ordered removed from the United States and is repatriated.

But this process, which allows for proper screening for trafficking and persecution, as well as fair and full consideration of their legal claims available under U.S. law, and which takes the best interest of the child into consideration, is not what others are advocating.  Instead, we have an administration that is prejudging these children’s eligibility for relief and proposing streamlined procedures that would prejudice real claims for protection.  Instead, we have Congress focusing its efforts on undermining the legal protections already in existence under U.S. law for these children and curtailing due process.  Recently, the Texas-duo of Senator Cornyn (R-TX) and Representative Cuellar (D-TX) have introduced their HUMANE Act, and even more troubling, Representatives Goodlatte (R-VA) and Chaffetz (R-UT) have introduced the Asylum Reform and Border Protection Act, a bill that shows zero understanding of how difficult it is under our current laws to seek and be granted asylum in the United States.

The Asylum Reform and Border Protection Act would eviscerate our already stringent asylum process, strip away the protections that do exist under current law to offer these children a fair chance at due process, and shut out bona fide refugees, returning them to situations of persecution and torture in violation of our domestic and international legal obligations.  This legislation would place these children’s fate in the hands of CBP officers, a law enforcement branch with no training or background in dealing with the unique issues involved in interviewing children, a track record of non-transparency, as well as instances of abuse with impunity of those apprehended, and pressuring of bona fide refugees to accept removal with no process in lieu of protection.  This legislation would subject these children to streamlined procedures, resulting in the removal of children after cursory screenings that have already proven entirely inadequate in identifying genuine refugee claims and the return of these children to dangerous and deadly situations.

Specifically:

  • All children caught at the border would be subject to expedited removal, a process allowing removal without a hearing before an immigration judge if a child has no credible fear of persecution or torture, and which triggers an automatic five-year bar on legal reentry.
  • The screening standard of review for children’s asylum claims would be raised, requiring a child to convince an asylum officer that his or her claim was “more probable than not” in order to even appear before a judge.
  • Under the proposed new definition of “unaccompanied,” all children would be detained until their asylum applications were adjudicated.
  • The arbitrary one-year deadline requiring adults to file their asylum applications within one year of their entry to the United States would be extended to children.
  • Children apprehended at the border could be immediately removed without any asylum screening to a “safe third party country,” such as Mexico, without any agreement from that third party country, as required under current law.

Presenting these changes as “fair” and “humane” is simply offensive.  These changes are anything but fair, anything but humane.  Using children who have suffered horrific violence and abuse in their home countries, survived a dangerous journey of over 1,000 miles, and arrived in search of protection as political pawns to push partisan agendas is heartless and un-American.  We need real leadership, not leaders who decide that treating migrant children from Central America humanely is too difficult, and not leaders who prefer politicking and political posturing to problem solving and standing up for our country’s values.

Our leaders should be working together to secure and implement the coordination and resources necessary to address this major regional humanitarian crisis and ensure due process for children who have braved a harrowing journey to seek safety and protection from violence, persecution, torture, and trafficking.  I encourage all AILA members to call their Senators and Representatives and implore them not to support the HUMANE Act or the Asylum Reform and Border Protection Act.  If this legislation is passed, our country would be turning its back on these children and on our nation’s values.

Written by Dree Collopy, Member AILA Media-Advocacy Committee 


A Victory for the Arizona DACAmented

Author: on 07/08/2014


shutterstock_167205071In Arizona, a high school student that has been granted Deferred Action for Childhood Arrivals (“DACA”) can create an award-winning underwater robot from Home Depot parts, but can’t legally drive to school (more about that below).  Thanks to a mean-spirited August 15, 2012 executive order from Arizona Governor Brewer, DACA recipients are prohibited from receiving driver’s licenses in the state.  However, on Monday, the Ninth Circuit gave Arizona DACAmented individuals a significant victory in their battle against Governor Brewer for the right to get drivers licenses.

The Court held that DACA recipients demonstrated a likelihood of success on the merits of their equal protection claim, that they are likely to suffer irreparable harm and reversed the Arizona District Court’s denial of a preliminary injunction.

Nearly two years ago, in response to Governor Brewer’s executive order, I authored an open letter to the Governor posted on this same blog in which I predicted that Governor Brewer would ultimately lose the battle and, in the process, waste precious Arizona taxpayer dollars.  Thus far, my prediction is proving to be accurate.

Over the past two years, I have spoken with many DACA recipients in Arizona and have seen how they have continued to struggle to achieve some form of normalcy in their lives.  All that they want is the opportunity to obtain an education and succeed like many immigrants before them.  Most still struggle with the high cost of college and have to find work to help supplement the household income.  Even with a job, the lack of a driver’s license places a significant roadblock to their ability to thrive.  While Governor Brewer has attempted to break the spirit of those receiving DACA, she has ultimately failed and has spawned an even more vociferous group of advocates pushing for reforms to our broken immigration system.

The lack of ability to attain an Arizona driver’s license still begs the question: why would DACA recipients want to remain in Arizona?  They could move to any neighboring state and get a drivers license.  For some this is not economically feasible, for others it is about staying close to family and friends and for others it would be a symbol of defeat.  Arizona is their home and they are not going to let an oppressive governor force them to leave.

The timing of this decision is apropos as this upcoming Friday the theatrical release of the documentary Underwater Dreams will take place in Los Angeles and New York.  The film chronicles a group of undocumented students and their science teachers from Carl Hayden High School in Phoenix.  The students create an underwater robot and enter a national underwater robotics competition where they ultimately defeat everyone including a group of students from MIT.  Many students that attend Carl Hayden High School are also members of the Arizona Dream Act Coalition, one of the plaintiffs in the lawsuit against Governor Brewer.

What will Governor Brewer do next? She has already indicated that her office is “analyzing options for appealing the misguided court opinion”.  While she contemplates her next reprehensible move, the DACA recipients will continue to strive to become the next group of leaders, organizers and innovators in Arizona and across the United States.

Written by Maurice “Mo” Goldman, Chair, AILA Media Advocacy Committee

Note: If you are interested in learning more about Underwater Dreams or hosting a screening of the film please visit the website: http://www.underwaterdreamsfilm.com/dates-reviews/


Fireworks: A Beacon in the Sky for the World

Author: on 07/03/2014


 

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Fourth of July is one of my favorite holidays.  My husband and I like to spend it with friends and “America’s Favorite Pastime” at Nationals Park.  After the ballgame comes more time with friends and family, grilling and a table full of food, juicy watermelon, red, white, and blue décor galore, laughter, and celebration of our country and our great fortune to be a part of it.  But most holidays are marked by celebrations with friends and family and food.  What makes the Fourth of July stand out from all of the other holidays? The fireworks.  Ever since I was a kid growing up in the Heartland of Iowa, the fireworks have been my favorite part – whether an hour-long professional show set to music, the town’s display, “Cappy’s” fireworks in our backyard, in-hand sparklers and poppers, or in the event of dreary weather, the sparks flying on television, taking place somewhere with fewer raindrops.

Those fireworks draw our attention as we all gaze up at skies filled with flashes of light, vibrant, streaming colors, and loud booms, pops, and crackles.  Beyond the spectacle, fireworks are a symbol of celebration – on the surface, a celebration of our country’s independence.  But for me, the fireworks aren’t just giant candles to celebrate America’s birthday; they conjure a deeper meaning.  They are a celebration of our country’s history of offering a home to the discarded, freedom to the oppressed, and safe haven to the refugee.  As Emma Lazarus famously wrote, “Cries she with silent lips.

‘Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!’”

Just as the Statue of Liberty’s beacon of light in her lifted lamp guided immigrants to their new beginnings here in the United States of America, on July 4, we celebrate with fireworks recognizing our country’s historic steps toward a bright future and away from a dark past.

This Fourth of July, on our country’s 238th birthday, this same theme still resonates, perhaps more than ever.  I think about the asylum-seekers I have worked with – the women seeking to break free from the cycle of violence and oppression, the LGBT youths searching for a place where they can be themselves without fear of harm, and the young girls and boys desperately fleeing gang recruitment and horrific violence.  When I hear these brave men, women, and children tell me their life stories and describe their unthinkable journeys to the United States, I know that these asylum-seekers are all doing what they can to step away from their own dark pasts toward a brighter future in this land, where the very skies are a beacon of hope every Fourth of July.

On this Fourth of July, as I gaze up at the sky among the “ooos” and “aahhs”, I will be thinking about my clients and all of the asylum-seekers at our borders, who, like our founders, have come to a new land in pursuit of life, liberty, and happiness, the very principles we proclaimed as unalienable rights in our Declaration of Independence.  As our country is faced with a humanitarian crisis at our borders, with asylum-seekers desperate, not only for new beginnings, but for protection from persecution and torture, I earnestly hope that our country continues to light the sky, to offer hope in the midst of darkness, to offer safe haven to children and refugees seeking freedom from violence and fear.  I hope with all my heart that our leaders – and our own citizens – keep that beacon shining, lighting up the skies with color.

Written by Dree Collopy, Member, AILA Media Advocacy Committee 


Let’s Dance

Author: on 07/02/2014


Leslie DanceThis blog post is adapted from the speech I gave when I was installed as AILA’s President for the 2014-15 term. I was thrilled to be able to reflect at the Annual Conference hosted by my home chapter, the New England Chapter of AILA.

New England is where I found immigration and, if I hadn’t found immigration I don’t think that I would be practicing law. I started my legal career in New York as a commercial litigator, but I found my calling after moving to Vermont. I found it in immigration law through dance in Vermont – African dance in Vermont.

While I have always loved to dance, I’m not the most adept at it, but that never stopped me from enjoying all forms of dance in all its facets. So it was that in 1998 I began attending African dance classes in Burlington. Several members of the National Ballet of Guinea as well as Senegal and the Ivory Coast lived and worked in Burlington and after class they would ask me questions about their immigration status (P-3s). However, I knew nothing about immigration whatsoever and referred them to a terrific immigration attorney instead.

I am a first generation American (my mother was born in and escaped from Hungary) and between my history and my involvement with foreign dancers I made a life altering decision by deciding to concentrate only on immigration.  I distinctly remember my first task. I needed to determine whether a client had been admitted to the U.S. Admitted? They were here weren’t they?  - Of course they were admitted.  It took 16 hours of research before I realized that I had entered a world where nothing was as it seemed: the world of immigration law.

Five years ago I started on my way to the AILA presidency, working my way up from Secretary through all the roles and responsibilities until this year. Looking back at those years, I reviewed the goals I had set out each year for myself and the organization. I took a look at what had been resolved and accomplished, what issues recurred over and over again, what issues still remain, and which of my goals have not yet been reached.

While many of my priorities changed from year to year one issue remained constant – ironically it was the lack of consistency and predictability in adjudications, determinations, rulings, and admissions – and the need to fix this through, among other things, interagency engagement. Our world requires that we typically deal with not just one agency, but at least two, and generally three.

When I meet with new clients, I along with other immigration attorneys, often find myself saying something akin to the following during our initial consultation:  “Before we proceed it is imperative that you understand that, even if your petition is approved by the USCIS, you are not home free. You also need approval from the Department of State and then, even if you pass that hurdle, you still must obtain permission from U.S. Customs and Border Protection to actually enter the U.S.”

This situation is unfortunately a constant in all areas of our practice whether it is business, family, or removal. Think of H-1B visas denied after petition approval for critical employees, approved fiancées who never get here, or as we call it in our office, “love’s labors lost,” or waiver applicants with provisional grants denied on other grounds not previously believed to make one inadmissible. The interagency disconnect is not limited to the petition, visa, and subsequent admission situation. It is also at the heart of so many of the procedural issues that we face.

Thus, it makes sense that my primary long-term goal relates to AILA’s liaison work. One of the many benefits of living in Vermont is that I learned to practice immigration in a place where I truly had access to government officials and was able to work with them to address some of the issues that came up as a result of interagency miscommunication.

Having learned to practice where openness and accessibility continue to be the standard has guided my vision. Those of you who have sat in meetings with me likely have heard two recurrent themes. The first is that my local CBP, USCIS, and ICE offices are the exemplar. I have never felt that I could not approach them and they have always been willing to talk and listen. The second is a request I make, at each and every meeting: whether the agency would be open to a multi-agency dialogue at a later date.

I believe that many of our adjudication and process problems stem from the fact that two or more agencies have conflicting interpretations of the law or regulations and that they do not actually know the effect that their actions have on the applicant when that applicant must next deal with another agency. They may not know what switching to an automated form might mean for another agency which still requires a hardcopy. I believe that we could solve so many issues if we were just permitted to sit down together and explain the problems that crop up.

Interagency engagement is not the only way to attain more consistency and predictability in what we do. Another aspect is the need to locate, isolate, and change the negative policy that seems to be driving so many adjudications, decisions, and admissions. In our area of practice, I think more than in any other, discretion abounds. But it seems that more often than not the trend is toward denial rather than acceptance.

Earlier I told you that I found immigration through African Dance. However, not only did African Dance lead me to immigration, it taught me immigration. In representing my dance community I encountered early on in my career almost every immigration situation there is. The good news is that I was able to help them, at least until fairly recently.

Almost three years ago, one of my clients returned home to Guinea to visit his family and bring back new and current dance and drum rhythms. He had an approved P-3 and had never been in trouble with the law or violated his status. However despite that, his visa was denied for immigrant intent. He had returned to Guinea because of his strong family ties, yet he was denied. That sort of denial would not have happened just a few years ago.

Through all the ups and downs of immigration law practice, one thing has been constant – AILA. AILA is a community where people who perform the same work can obtain from it the tools they need to practice their profession. I truly believe that with just the InfoNet and AILAlink immigration attorneys have all the tools they need to practice immigration and, practice it well. But by also offering accessibility to mentors, practice management help, ethics guidance, media training, advocacy, and liaison assistance, immigration attorneys get all that they need to become well rounded and truly excellent in their field.

More than that though, I believe AILA goes far beyond just a professional community. It is also a fellowship. I practiced law for 11 years before joining AILA. I never experienced elsewhere the support, camaraderie and professional generosity with my peers that I found here. I ask that all of you continue to engage, to care deeply about AILA and its governance, and to share your thoughts and insights.

I am looking forward to this year. To liaising with the government and you. To working together to make positive changes in immigration, to make things better for our clients, to making AILA the best it can be.

Almost every Monday, Wednesday and Saturday I wake up with a feeling that something is special. They are dance days. I hope that every day this coming year is a dance day. If that happens I know that we can accomplish our goals and make a difference, as, in the words of the Hopi who steadfastly believed that through dance they would influence the Gods and accomplish their goals,  – To watch us dance is to hear our hearts speak. So, let’s dance!

Written by Leslie A. Holman, AILA President

To watch Leslie’s full speech, including a performance by her friends from the African dance and drumming community Jeh Kulu, watch here: Video: Leslie Holman Installation Speech


Turning Our Backs on Our Own History

Author: on 06/30/2014


shutterstock_151907147The humanitarian crisis involving the arrival of thousands of unaccompanied minors at our borders has brought out diverse opinions within our government and country.  Some politicians would like to send these minors back to Guatemala on a bus.  Before we become too critical about the future of these voiceless children, let’s not forget about our country’s history regarding unaccompanied minors.

The influx of unaccompanied minors is not a new phenomenon. Our great country has always opened its arms to needy children during humanitarian crisis.  During World War II, Jewish families sought safe haven for their children escaping the death camps of Hitler and the Nazis. Prior to the United States’ entry into World War II, Jewish parents sent their children in small groups (roughly a dozen at a time) to the United States based on pre-existing country quotas. After 1941, when the United States became more aware of the brutality of the Nazi regime, unaccompanied children were brought in larger numbers. During their voyage to the United States, dedicated women acted as chaperones on the ships that brought the children to our country.  Upon reaching the United States, the unaccompanied children went to Jewish foster homes. Although some of the children were reunited in America with the parents and siblings they left behind in Europe, most became the only surviving members of their families. This effort became to be known as the One Thousand Children.  Other countries also participated in this endeavor.

Between 1960-62, over 14,000 Cuban children were sent to the United States unaccompanied to escape the oppressive Castro Regime.  Known as Operation Peter Pan (Pedro Pan), the program was created by the Catholic Welfare Bureau (Catholic Charities) of Miami in December 1960 at the request of parents in Cuba to provide an opportunity for them to send their children to Miami to avoid Marxist-Leninist indoctrination. Approximately half of the minors were reunited with relatives or friends at the airport. More than half were cared for by the Catholic Welfare Bureau. The unaccompanied children from the Cuban Refugee Children’s Program were placed in temporary shelters in Miami, and relocated in 30 States.

In 1975, during the end of Vietnam War, unaccompanied children were evacuated from Vietnam during “Operation Babylift” before the fall of Saigon.  During the war, thousands of babies were born and abandoned, many of them the mixed-race sons and daughters of American GIs.  Operation Babylift sent these children to various countries, mostly the United States.  According to Miriam Vieni, a US social worker and adoptive parent, “the ‘Baby Lift’ was a way of removing them from a dangerous situation without the usual processing…”.

Central American countries suffered greatly through years of unrest and violence during their civil wars.  The United States involvement in these civil wars is no secret.  Thousands of people were displaced and many came to the United States.  Children who suffered immense psychological damage grew up in the inner city and were exposed to the United States gang culture.  Years later, many Central American youth in the United States fell prey to the culture of gangs.  In 2006, ICE’s “Operation Return to Sender” arrested and removed thousands of gang members repatriating them to their Central American homelands.  The result was that the unique American gang culture infested the Central American countries.  International criminal organizations were established and have ruled over these countries, driving many people to flee, including the children, to avoid being recruited by the criminal gangs.

Since 2009, Mexico, Panama, Nicaragua, Costa Rica and Belize have collectively seen a 432 percent increase in asylum applications from the same three countries: Guatemala, Honduras and El Salvador.  Many others have fled to the United States where numbers that were steadily growing over several years have now surged in the last few months.  While there may be various reasons why parents are sending their children out of the country, or where parents aren’t present, the children themselves are choosing to flee, the Congressional testimony of Bishop Mark Seitz reflects that violence in the country of origin is the “overwhelming factor” pushing children to flee their country.

It is important to note under the Homeland Security Act of 2002, Congress transferred the care and custody of unaccompanied minors to Health and Human Services (HHS) from the former Immigration and Naturalization Service (INS) to move towards a child welfare-based-model of care for children and away from the adult detention model. In the Trafficking Victims Protection Reauthorization Act of 2008, which expanded and redefined HHS’s statutory responsibilities, Congress directed that unaccompanied minors must “be promptly placed in the least restrictive setting that is in the best interest of the child.”

Under these laws, unaccompanied minors that are not from Mexico or Canada must be detained, processed, interviewed, and some information collected.  The intent of these laws is to protect children from human trafficking abuses and ensure their due process rights are respected.  These unaccompanied children are referred to immigration court to present their cases. These laws also provide for the creation of a system of pro bono representation for these children to navigate the labyrinth which is the immigration court system.  Just a few short weeks ago, the current Administration announced the creation of a program that will provide pro bono representation for these children through “justice AmeriCorps” by recruiting 100 attorneys and paralegals.

With this backdrop, the Obama Administration is now seeking funding and assistance to speed up the deportation of these children.  While many in Congress feverishly hammer the notion of the need to follow the rule of law, the concept of expeditious removal of children is unconscionable, especially when our current laws prohibit such action.  Circumventing the law is not the answer.  The care of these children and respect for their due process rights should be paramount. At a time when Congress and the Administration should be working together on commonsense immigration reform, it would be reprehensible if they can only agree on expedited removals of these terrified, voiceless children.

Before we are quick to judge and put these unaccompanied children on a bus, we should stop and consider our legal and moral obligations to this humanitarian crisis.  Moreover, let’s not forget our own country’s history when it comes to the treatment of displaced unaccompanied helpless children.  There is a legal process in place for these situations; we must not forego such protections for political convenience.

Written by Victor Nieblas Pradis, AILA President-Elect


Getting a Little Serious about the Need for Immigration Reform

Author: on 06/26/2014


shutterstock_197321441This is a post adapted from my speech last week in accepting an award from AILA for outstanding contributions made as a young lawyer in the field of immigration and nationality law. While the occasion was a happy one and I was honored to receive that award, I took the opportunity, as I do here, to emphasize what is wrong with our current system and that we desperately need to fix it.  I hope you find it of interest:

As I think about the great migrations of people, I’m reminded of my own “gringa” migration from the heartland of Iowa to Washington, D.C. While my own journey was not nearly as harrowing an experience, it is that journey that led me to practice immigration law, to AILA, and to the work that I’m so passionate about.

I have been incredibly lucky to have several amazing people guiding me throughout my journey. My parents who taught me that everyone no matter their background deserves the chance to pursue their dreams. My wonderful husband Justin, whose constant love and support sustains me. Michelle Mendez, my friend and co-professor in the Catholic University immigration clinic who is the most selfless, passionate advocate that I know. The dedicated staff of Benach Ragland, and my partners who I deeply respect and admire; there is no one else I would rather work with in pursuit of our shared mission. Finally my mentor, the late great Michael Maggio: despite his busy immigration practice, he always found time to contribute to our field as a policy advocate, a pro bono champion and a mentor. I have strived to use Michael’s well-rounded approach to our work as a model in contributing through my own practice, especially as I’ve observed the developments in our field over the last few years.

We’re going to get a little serious now.

We are now faced with a humanitarian crisis at our borders.  CBP and ICE officers are using excessive force, inhumane detention conditions, and “no process” removals. We are faced with immigration courts fighting against insufficient resources, overcrowded dockets and cabined legal discretion. And we are faced with a renewed assault on our asylum system by Congress and the agencies themselves.

Yet, no actions are taken by those in power to fix our system. Instead we have a Congress that points fingers and strikes a pose in Capitol Hill hearings and an Administration which, on the back of an immigration reform-focused campaign, has taken to putting Band-Aids on gashes rather than treating the underlying wounds.

Until we have leaders who are going to work together to solve real problems that affect real people, American businesses, and separated families, it is up to us. It is for these reasons that this award is only the beginning of my journey.

Thank you so much for this honor and I hope you will join me in restoring due process and humanity in our immigration system.

Written by Dree Collopy, 2014 Joseph Minsky Young Lawyer Award Winner

 


Responding to the Increase in Child Migrants: We’ve Managed These Crises Before

Author: on 06/19/2014


shutterstock_199198397In my first week as an immigration lawyer, 286 Chinese migrants waded ashore in Queens, and a significant number were detained at a county prison near me in York, Pennsylvania.  In 1993, there was no significant infrastructure for handling those hundreds of cases in the Northeast – no detention facilities to hold them, government lawyers to prosecute them, judges to decide their cases, or immigration lawyers in York to volunteer to represent them. Everyone involved with the process felt overwhelmed, and many expressed the fear that thousands more Chinese migrants would undertake the dangerous ocean journey if the Golden Venture passengers were granted the ability to stay in the United States.

In spite of feeling overwhelmed, the government provided the resources to detain these migrants and to process their applications for relief.  The community rallied to help reunite the children among the migrants with their families, or to find foster homes for them if they had none; to train lawyers in asylum law and other humanitarian forms of relief, and to find volunteers to visit the detainees and help them communicate with their families.  The answer to the influx, ultimately, was improved economic growth in China that provided employment opportunities in the country to prospective migrants, which lessened the demand for migration from China to the United States.

On our southern border today, everyone is feeling overwhelmed by a humanitarian crisis: the detention of 200-250 child migrants each day along the US border with Mexico.   These children are unaccompanied by parents or relatives – while some are coming to try and reunite with relatives in the United States, many more are simply fleeing intolerable conditions in their home countries.  The majority of these children come from three countries: Honduras, Guatemala and El Salvador.  In these three countries, murder rates have skyrocketed in the past five years – Honduras has the highest murder rate in the world – and other forms of criminal violence have also risen.  Children interviewed by the United Nations High Commissioner for Refugees (UNHCR) have reported fleeing forced recruitment into gangs, much as “child soldiers” were recruited in African civil wars over the past decade.

While some elected leaders opposed to comprehensive immigration reform are claiming that children are coming to the United States because they believe they will be eligible for some form of legal status, that claim flies in the face of the fact that the U.S. is not the only country receiving displaced children and other individuals fleeing from these countries.  UNHCR reports that since 2009, the number of asylum applications from citizens of El Salvador, Guatemala and Honduras received by the surrounding countries of Belize, Nicaragua, Costa Rica, Panama and Mexico combined has increased by 712 percent.

What is to be done with these children?  As the United States has done in response to each of the large migration flows caused by political turmoil or natural disaster in the last twenty years – from the Cubans fleeing to Florida by boat in the mid-1990s to the survivors of the earthquake in Haiti – the children have been detained for removal proceedings in which it will be determined by a judge as to whether they have any claim to be able to stay in the United States.  They will be detained unless or until they can be reunited with a family member, either inside the United States or in their home country.  If they are reunited with a family member in the U.S., they will remain in removal proceedings until a judge decides their fate.  While the number of these children has risen in the past year, the administration has already been making plans to deal with it – witness their budget request for additional funding to detain and process these children, which demonstrates their planning for the eventuality that rates of arrival may continue to climb.

As many commentators have noted, however, the answer to the bigger question of how to prevent these children from coming to the United States does not lie at the US-Mexico border.  Rather, the United States must continue to engage with the governments in El Salvador, Honduras and Guatemala to build capacity for dealing with the violent criminals who are causing the conditions these children are fleeing.  Just as disaster aid to Haiti and a migration agreement with Cuba reduced the number of illegal migrant from those countries, the best answer to this newest wave of migrants will be assistance to the countries from which they are fleeing.

Solving the migration problem from those countries cannot happen overnight – and in the meantime, the United States must continue to treat these children humanely, to reunite them with families wherever they may be, and to grant them asylum if they are eligible for it.  If they are found to have no relief from deportation, they should be returned to their home country in as humane and safe a way as possible.  These children have already been traumatized at the hands of criminals – the U.S. immigration system should not traumatize them further.

Written by Bill Stock, AILA First Vice President


Re-Inspired by the Unafraid and Undocumented

Author: on 06/13/2014


PDF Help 21Last week, as a representative of AILA, I joined Jose Antonio Vargas for two post-screening panels after his film “Documented.”  Vargas has been a lightning rod since he, a Pulitzer Prize winner, revealed to the world that he was in fact unauthorized.  The fact that one of the nation’s most celebrated reporters was “an illegal” has woken the nation up to the depth of those victimized by an unjust immigration regime which on the one hand has created a massive class of unauthorized immigrants while at the same time blocking any path to legalization.

While Jose has a compelling biography sprinkled with incredible perseverance and success, his movie transcends his own immigration story to depict the family separation, anxiety, and fear of those living under our broken immigration system and current laws. As I watched the movie and listened to the questions posed to us afterwards, I again questioned our role as immigration attorneys in obtaining meaningful and just reform and what  “Documented” can teach us as we continue our struggle.

When Vargas revealed his status to the world, he joined the millions of youth raised in the US  without immigration status in proclaiming that they would no longer live in the shadows and pretend to be just like their neighbors, classmates, and friends.   By being both undocumented and unafraid, the DREAMers brought the issue of immigration to the forefront in a way that this nation had not seen. A movement largely devoid of ego with a huge diversity of backgrounds set out to not only legalize their status, but also that of their families by rejecting the statements even by DREAM Act advocates to not “visit the sins of the parents on the children”

While the DREAMers have remained unafraid, the political class has remained out of touch and beholden to a minority of harsh anti-immigrant voices and refused to move forward with the kind of bold immigration reform needed and really listen to the nation. A recent FOX news poll revealed that 74% of Americans favor legalization including eventual citizenship. Perhaps the best lesson we should learn from the larger DREAMer movement is what we have to lose as a country if we somehow let others dictate the immigration narrative and otherwise make immigrants and reform pawns of a larger political game.  Both the movie and the questions we heard from the audience demonstrate that the debate coming out of DC does not reflect the feelings of those throughout the country.  In the movie, Vargas shows the relationship between a conservative Republican farmer in Alabama and the gentleman who works with him who is Mexican.  Through his personal relationship and his own idea of what it means to be free in America, the Alabaman came to oppose Alabama’s restrictive immigration laws designed to impinge on federal authority to regulate immigration.

We see this happening throughout the country.  The national association of Evangelical  Churches says “For several million immigrants, most drawn to the U.S. by employment opportunities, our immigration system offers no options for obtaining legal status.. Most immigrants are strong supporters of traditional family values.”  Last year leaders in Chicago, Cleveland, Columbus, Indianapolis, St. Louis and Lansing, Michigan met to discuss ways to attract immigrants to their cities and create more welcoming and immigrant friendly environments.  After that meeting Michigan governor Rick Snyder called for an overhaul of the nation’s immigration laws to allow 50,000 new workers to revitalize Detroit.  While Snyder did not specifically embrace a path to citizenship, he did call for meaningful discussions and in recognizing the misinformation in the current debate called for “taking the dumb off the table.”

Former Florida Governor Jeb Bush reflects the feeling of a majority of Americans in his recent paradigm-changing statement as he called the unauthorized transportation of children across the US border by parents, “an act of love and a commitment to your family.”  Despite the media for the most part measuring this statement solely in the context of its impact on Bush and his political party, we must view this as a step in furthering immigrant rights and a starting point in any discussion of reform.

Immigrants and their activist allies have marched, lobbied, gone to jail and otherwise pressured for years to get real reform. Now the voices of the evangelical churches and leaders of the GOP such as Jeb Bush and Rick Snyder truly change the narrative and should serve to marginalize the shrinking but vocal minority which has been responsible for keeping the discussion at the low level that Governor Snyder describes.

We cannot follow the lead of those that calculate “the right time” to bring up reform and simply depend on those in power to tell us when they can best press immigration reform and what needs to be in the bill.  As Frederick Douglas said, “Power concedes nothing without a demand. It never did and it never will.”

We have the stories to tell as we are often the place where the victims of IIRIRA and other unjust immigration laws let out their emotions and to which we are in a prime position to “testify” in public especially when our clients are too scared to do so.

So as this mid-term election campaign goes forward let’s not sit back and wonder what Congress or the White House might do.  Instead, let’s each challenge ourselves to pick two avenues to push for immigration reform in our communities.  Maybe it is a talk to a local school, speaking up at a town hall, or writing something in a local paper.  I will make sure to ask candidates for local and national offices who I come in contact with and ask them how they intend to pursue immigration reform, provide driver’s licenses, or otherwise include immigrant populations in their “platforms.”

Let us be reinvigorated by Jose Antonio Vargas’s courage, energy and determination and also dare to DREAM and act.

And for those of you attending AC next week, I hope to see you at the screening of Documented—it’s a film that you don’t want to miss—Friday, from 5-7p.m. in the Westin, Floor 3, Essex Room.

Written by Mark Shmueli, Member, AILA Media Advocacy Committee


The Good, the Not-so-Bad and the Ugly: USCIS Announces DACA Renewal Procedures

Author: on 06/05/2014


shutterstock_174737858Today, USCIS published long-awaited guidance for renewals under the Deferred Action for Childhood Arrivals or DACA program, including a new Form I-821D for both initial and renewal applications.  The guidelines should mean a streamlined process for most renewals, but the agency missed a real opportunity in how government processing times impact those who don’t—or can’t—apply months in advance.

The Good:  For most young immigrants who already have DACA, the renewal process should be fairly straightforward.  In order to be considered, a renewal applicant cannot have left the United States (without permission from the government) since August 15, 2012 and must have continuously resided in the country since they were granted DACA.  They must also not have any disqualifying criminal history.

Consistent with prior policy, USCIS took a real-world approach to the educational requirement.  An initial grant of DACA requires that the applicant be in school, have graduated High School, obtained a GED, or show proof of continuing educational efforts.  For renewals, the agency is not asking for further proof that the individual graduated or even continued in their studies.  For those who were forced to drop out or stop schooling due to financial or other difficulties, this practical solution will be a real boon to a lot of families and young people just starting out.

The Not-So-Bad:  USCIS wants DACA renewals in early.  So much so, apparently, that they are hinting that for early filers (more than 120 days before expiration) whose applications are not granted due to unexpected delays, USCIS “may provide deferred action and employment authorization for a short period of time.”  That being said, USCIS doesn’t want the renewal applications too early:  filings received more than 150 days before expiration may be rejected. So, trying to hit that sweet spot between 120-150 days before expiration might be your best bet.

Unfortunately, at $465, the filing fees associated with DACA renewals are still steep for many families with multiple applications or for young adults struggling to make it through school or in their first jobs. I’ve heard lots of talk about potential microloans or possible funding sources but so far I haven’t heard of an existing and simple option for the tens of thousands who may run into this issue.  Ideas welcome!

The Ugly:  Applicants who don’t file in that sweet spot of 150 to 120 days prior to expiration have some significant risks.  Timing on consideration of initial DACA filings has been creeping up, with a small, but nonetheless significant percentage of cases languishing for months past “normal” processing times.  A DACA renewal, after all, should just be a matter of a background check to make sure no red flags pop up from the last two years of a person’s life, scheduling biometrics and running a report.

To my mind, there’s absolutely no reason DACA renewals shouldn’t be held to the same 90-day standard as other work permit renewals that require the same background check.  If USCIS thinks they won’t be able to hit the 90 day benchmark, there’s plenty of precedent to allow for continued eligibility to work for those who file prior to expiration.  The same goes for how a lapsed or delayed renewal might impact “unlawful presence.” While eligibility to work (and in many states, qualify for a driver’s license or in-state or reduced tuition) may be the more immediate concern, DACA grantees should also pay attention to how accruing unlawful presence may trigger severe immigration consequences in the future.

All DACA renewal applications will have to go through a background check, and anyone who has had trouble with the law should be cautious. A conviction for a felony, a “significant misdemeanor” or three or more misdemeanors probably means that a renewal won’t be granted.  At best, someone with this kind of a history may just be throwing away their $465 in filing fees; at worst, that’s a lot to pay for a one way trip to a country that’s no longer home. In short, if there’s criminal history, better see an immigration lawyer to evaluate risk and any other options.

And of course, USCIS may use a renewal application as an opportunity to check for fraud.  If the information on an old application doesn’t match up with the information on the new form, that may be cause for concern.  A lot of initial DACA applications were filed without qualified legal help, without fully understanding exactly what was being asked for or knowing what was actually included.  In some cases, those inconsistencies may be innocent errors, in others, the DACA applicant may him- or herself be the victim of fraudulent preparers.  Best bet is to make sure you know what was filed and get appropriate help if there are any discrepancies.

Finally, while it sure looks like the renewal process should be relatively straightforward, the devil is in the details.  An increasing number of DACA applicants—and even more so, DACA renewers—may be eligible for something better than deferred action, like permanent residence or another path to legal status.  Use the free PocketDACA App to review eligibility or find help, or use www.ailalawyer.com to find an immigration lawyer to evaluate your best options.

Written by Laura Lichter, AILA Immediate Past President


What the Tony Awards Can Teach Us About Immigration

Author: on 06/04/2014


This year’s Tony Awards will be presented on Sunday, June 8 in New York City.  I’ve always been a fan of the ceremony and, having seen a fair number of the nominees, I was struck by the strong intersection between Broadway theatre and immigration this year.

Take for example, A Raisin in the Sun, nominated for Best Revival of a Play, Best Actress and Best Director.  The play opens with Langston Hughes poem, Dream Deferred: 

What happens to a dream deferred?

Does it dry up

like a raisin in the sun?

Or fester like a sore–

And then run?

Does it stink like rotten meat?

Or crust and sugar over–

like a syrupy sweet?

Maybe it just sags

like a heavy load.

Or does it explode?

The title of the poem including the words “dream deferred” immediately struck me as relevant to the current immigration debate with the DREAM Act and Deferred Action for Childhood Arrivals in the news.

Similarly, the struggle and eventual success to bring our great nation from segregation to equal rights, both incredibly difficult and long overdue, closely parallels the struggles of many immigrants today.  Political debate and the conversation around immigration reform are reflected in another one of one of this year’s Tony nominees, All the Way.  This Best Play nominee follows President Johnson’s herculean efforts to convince Congress to enact the Civil Rights Acts of 1964. The political landscape may have changed, but perhaps President Obama could take a lesson in manipulation, or at least negotiation, from Tony nominee, Bryan Cranston, the actor portraying LBJ in motivating Congress to act.

In addition to the political parallels, this year’s ceremony, hosted by Hugh Jackman, originally from Australia, includes the nominees who  mirror academia and the business world; the list of the best of the best on Broadway includes not only Americans but natives of Switzerland, Cuba, Ireland, former Yugoslavia, Canada and the U.K.  In the technical categories, a non-U.S. citizen is included in the short list of every category barring one.

Broadway theatre is widely acknowledged as the best in the world.  It is a mixture of cultures, perspectives and stories which reflect our country, the American people and their dreams.  Broadway itself is the child of immigrants.  The names most closely associated with the Broadway tradition are largely those belonging to some of New York’s earliest immigrants in the late nineteenth century.  If you’ve ever watched a Broadway musical, and marveled at the production, then you owe some thanks to Florenz “Flo” Ziegfeld Jr., the child of a German father and French mother, he grew up in Chicago and is considered an “American icon” and father of the modern musical show.

Fred Astaire’s father was from Austria—you may not recognize his given name of Fred Austerlitz. Julia Elizabeth Wells – also known as Broadway legend, Julie Andrews – hails from the U.K.  Audrey Hepburn, Ann-Margret, Alan Cumming, Rita Moreno, Sophie Okonedo and so many other immigrants have brought their talents to The Great White Way.  Countless producers, managers, choreographers, technicians, and playwrights also helped establish and continue the proud Broadway tradition of world-class entertainment.

Last year, part of Broadway itself was named “Juan Rodriguez Way” in honor of a freed slave from the former island of Hispaniola, now the Dominican Republic, who became the first non-native immigrant to ever settle in present day Manhattan in 1613. Broadway continues to inspire immigrants who make this country their own.

So on Sunday evening, when the Tony Awards are presented, I will not only be enjoying the spectacle of theatre, but also a proud tradition and industry which has welcomed and celebrated immigrants since its earliest days.

Written by Anastasia Tonello, AILA Secretary