The Happiest Day Still Shadowed by Injustice

Author: on 12/09/2014


shutterstock_190048664Yesterday was one of the happiest days in my life as an immigration lawyer.

I’m helping out pro bono with clients at the Karnes Family Detention Center in Texas and yesterday Immigration Judge Glenn McPhaul granted a $1500 bond to my client from El Salvador and her 19 month old toddler. They’ve both been incarcerated by our government for over two months.

My client is one of the bravest people I have ever met.  She has suffered through unspeakable domestic violence and gang abuse and is still just a teenager. We’re working now to post this bond and to get Mama and baby on their way to their sponsor in New York.

At the end of our hearing, Judge McPhaul turned to me and asked if I wanted to speak with my client.

I certainly wanted to explain to her in my best Spanish that we’d won the lowest bond amount possible from this court and that soon she and her toddler will be freed and traveling to New York. But I got so choked up I first had to compose myself.  With tears in my eyes,  I  explained the good news.  She also cried with joy and relief.  Everyone in the courtroom, including the judge, seemed to be very happy at that point.

Please understand that I’ve concentrated my immigration career on employment and family based

immigration cases. I was worried that my training and experience hadn’t prepared me for this kind of case, and that I hadn’t been around immigration court enough to be a competent advocate for my valiant client. Fortunately I wasn’t in this alone.

I had my long-time mentor, Barbara Hines, telling me why I needed to volunteer for a Karnes bond case, about the difference I could make, and her promise to help me.

I had another mentor, Kate Lincoln-Goldfinch. Kate was with me as I traveled to Karnes when we first met my client (and her own pro bono client). She accompanied me to two immigration court appearances in San Antonio including yesterday’s bond hearing.  Kate fielded my texts, emails, and calls, and gave me wonderful advice and encouragement.

There are a number of other wonderful lawyers who encouraged and helped me.  I now have a much greater admiration and respect for all pro bono immigration defense lawyers, and all the lawyers and support staff at the nonprofit agencies who fight these righteous battles each and every day.

Although I’m elated that my client and her baby will be free to await the remainder of their court proceedings while being kept safe and secure by relatives who wait with open arms, I’m absolutely appalled and disappointed that our country is detaining children and families.  It is unconscionable for our country to detain children and families.

The happiest day for me as an immigration lawyer will really be when family detention stops and when our government acts in a way that reflects our values and our history. That day is not today. I hope it’s coming  soon. I urge you to step forward to oppose family detention and help these clients who so desperately need our advocacy and protection.

Written by Paul Parsons, AILA Member and Karnes Volunteer

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If you are an AILA member who wants to volunteer at a family detention center, please go to http://www.aila.org/beavolunteer or feel free to contact Maheen Taqui at mtaqui@aila.org–we are looking for more as the work continues and we could really use your help.

If you aren’t able to come help in person, consider donating at http://www.aila.org/helpthevolunteers. And thank you!

To watch videos of the volunteers at Artesia and elsewhere sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.


Building on a Shared Moment of Community to Move Forward

Author: on 12/05/2014


AdminReform_300x200I was in the Copernicus Community Center last week, in the heart of Chicago’s Polish community, when President Obama stood in front of a diverse crowd of Chicagoans and made his case in support of the executive actions he announced on November 20. There was energy, there was excitement, and there was a sense of success. Finally after six years of waiting during his presidency, after more than two decades of waiting since the last legislative change, we were celebrating an important step forward.

At this point, we have had the opportunity to study the bundle of releases, memos, and other documents that made up the executive action announcement.  We know that plan includes expansion of the Deferred Action for Childhood Arrivals (DACA) program and a new Deferred Action for Parental Accountability (DAPA).  There will be new ways that entrepreneurs can contribute to our country, an expansion of the Optional Practical Training Program (OPT) and a promise to “modernize and improve the immigrant visa process.”

It has been an emotional time for many of our clients in the immigrant communities.  Practitioners in Chicago have seen a range of reactions depending on the way the program will affect their clients and their families.  Some have broken down crying, with tears of joy because of the hope engendered by the new deferred action options, or tears of sadness and frustration that they or their loved ones won’t be eligible to apply.  But that afternoon in the Copernicus Center, representatives of Latino, Polish, Asian, Irish, African and other communities gathered together to celebrate an important step forward for many of their members.

However, not all of the provisions in the executive action will benefit immigrant communities.  The executive action includes further militarization of the border and a continued commitment to massive expansion of family detention and deportations. The conditions and lack of due process that our pro bono members are seeing in detention centers like Artesia and Karnes represent violations of U.S. humanitarian and asylum law and the traumatization of children and mothers.

The President’s action could have also done more for business.  An effective immigration policy needs to drive innovation, commerce and job creation.  The executive action promises to provide some foreign students with helpful workarounds to the constraints of the H-1B cap, will hopefully ease some of the pressure of the employment based green card backlogs, and seeks to increase immigrant worker mobility.  But it does not provide the necessary fundamental changes to the system that employers need for them to be able to attract the best and brightest talent so that our economy can thrive.

The executive action is not perfect, and it does not go as far as many had hoped.  But it can and will change lives for the better and provide some relief to U.S. business. For those in the immigrant communities who will be able to emerge from the shadows, there will be many fresh chances to begin new lives with more opportunity, stability and dignity.

Unfortunately, notarios and other unscrupulous individuals are already emerging to profit from this moment of hope and excitement, often defrauding immigrants, and in some cases leading to denial of benefits or even deportation.  Here in Chicago, AILA lawyers are working hard with our colleagues in the non-profit service sector, Congressman Gutierrez, the City of Chicago and other allies to educate the community to minimize the risk to this vulnerable population.

Last week, among elected officials, civic leaders and members of the community, I had the opportunity to share a moment of celebration with the President in what has been a long and frustrating struggle to move immigration reform forward.  That afternoon, we emerged energized and ready to move forward.

The President’s executive action was an exciting development but it is a stop-gap measure.  Now Congress needs to do its job and provide us with the legislation for an immigration system that stimulates economic growth, promotes family unity and upholds the standards of fairness and due process that underlie our country’s legal and moral fabric.

Now is the time to harness our moment of celebration and move into next year with renewed energy and focus to achieve real reform.

Written by Marketa Lindt, AILA Secretary


The Business Related Provisions of the President’s Executive Action – A Call for Prompt Action

Author: on 11/25/2014


AdminReform_300x200While the centerpiece of President Obama’s courageous executive order is the provisions which grant employment authorization and provide protection from deportation for an estimated 4 million immigrants, important business-related immigration procedures were also part of this action.

In a carefully thought out plan to provide limited relief to alleviate the unrealistic caps placed upon temporary and permanent work visas for professionals, a number of measures were made part of the President’s initiative.  Also included were measures to facilitate entry in the U.S. for foreign entrepreneurs, inventors, and researchers. These provisions, once implemented, will help alleviate some of the problems produced by our broken immigration system.

The only provision that has a projected timeline is the plan to give employment authorization to certain spouses of long time H-1B visa holders.  There had already been a proposed regulation issued last May.

Some of the other measures will require the promulgation of regulations while others require a change in policy created by U. S. Citizenship and Immigration Services (USCIS).

Enthusiasm for these new measures must be tempered due to the history of promised policy guidelines which often take eons of time to issue or have never materialized. The challenge for the business community and all stakeholders is to make sure that these measures are initiated, drafted, and implemented in a timely fashion.  The November 20, 2014 memorandum from DHS Secretary Jeh Charles Johnson to USCIS Director Leon Rodriguez, which outlines in greater detail the provisions announced by President Obama, expressed the expectation that the proposals contained in the memorandum would be “published in a timely manner.”

While regulations which have a limited impact can be issued as interim rules and take effect immediately, most regulations require the publication of a proposed rule with a 30 to 60-day comment period. Afterwards, the government agency must cull though public comments and decide if revisions to the proposed regulation are in order. Of particular note is the Department of Labor’s announcement that it will modernize the PERM regulations.

The business provisions included in the President’s executive actions can have a substantial economic benefit for our country but they have to be implemented expeditiously to make a difference.  It is my hope that there will be an institutional change recognizing the need to move forward with these provisions immediately.

Written by Deb Notkin, AILA Media Advocacy Committee Member


Action at Last

Author: on 11/24/2014


I AdminReform_300x200watched with bated breath. I listened to President Obama make his last case for why administrative action was not just the right thing to do, it was the only thing to do. And I heard from him what his plans entailed.

I read, amazed, the barrage of news reports and opinion pieces before, during, and after the announcement. I combed through the documents AILA compiled and posted. I’m gathering as much information as possible.

The whole time I have been thinking nonstop.

I’ve been running through my clients, tagging those I think will be affected by some of the announced plans (though I’m waiting for those devilish details). I’ve been jotting down questions I have about L-1s and entrepreneurs, about DAPA and DACA, about all the moving parts of these announcements.

I also thought about families I’ve never met. Children and parents I’ve never seen who are feeling so hopeful now. I thought about Jose Antonio Vargas, someone I had the pleasure to talk with at our Annual Conference at the opening of his movie, who now becomes eligible for Deferred Action – and to see his mom – because of this administrative relief.

There is so much damage done to so many lives, to so many businesses and communities because of our broken immigration system. And I’m fed up.

To be honest, I wanted and still want legislative reform, the sort of reform that will offer a solid foundation on which a new system that actually fits the needs of our country can be built. We still don’t have that.

But we do have a President who is acting in the best interest of the country after months of delays by Congress.  The actions he has taken will keep the America safer and offer relief that takes into account the needs of families and businesses.

As President he can’t fix all the problems with America’s current immigration system. That’s not how our country works. So this is a stopgap measure. It’s not permanent but what I desperately hope is that Congress will respond. Not with ridiculous claims that they will impeach the President and have him serve time for his executive overreach, but instead respond with measured, deliberate, careful consideration of an actual immigration reform bill.

That feels like a lot to ask in the rancorous political environment in which we find ourselves today. But it’s not too much to ask. So today I’m saying thank you to the President and I’m asking Congress, for the umpteenth time: won’t you please pass immigration reform?

Written by Leslie A. Holman, AILA President


Who Are We Turning Away?

Author: on 11/19/2014


Helping handA pregnant woman, separated from her husband in a time of regional conflict and instability, flees the central region of her country with a single suitcase and her 2 year old daughter and 1 year old son. The goal is to travel by train to the closest major southern land border in the hopes of reuniting soon with her husband who is fighting far away from home. Every day, people gather around the border crossing waiting for the gates to open and the glimmer of opportunity to cross into another sovereign land. If you miss the timing and fail to cross, the consequences may be worse than death. With her suitcase in one hand and her 1 year old son holding her other, her two year old daughter grabs onto her mother’s dress as the crowd pushes forward trying to get through. Immovable by the throngs of bodies pushing, the pregnant woman lets the crowd sway her and her children through to the protection promised by the neighboring country.

Once on the other side, she reevaluates her surroundings acknowledging the luggage in one hand, her son in the other and only then is aware that her daughter no longer clings to her dress. She screams amongst the shouting crowd, “Where is my daughter? Where is she?” On the other side of the crossing is the two year old daughter with her eyes only able to see the back of people’s legs unaware of where her family went. With a quick motion, she finds herself atop the shoulders of a man she does not know, a man wearing a business suit walking past the crossing. Disoriented, she is still unaware of where she is or how she lost her mother and brother. This little girl cannot tell time and does not know how long it took before she could her hear her mother’s cries and reunited with her. Without even realizing, this little girl is forever labeled by her mother as “lucky” in their native language. And the identity of the nice gentleman in the business suit is never discovered.

The tale told is not a unique story. Although it happened in 1949, it continues to be a story relatable in our present day. As a young child, I remember my grandmother recounting the horrors of a civil war that destroyed her comfortable life. I never understood what my grandmother meant when she said repeatedly that my mother was so very “lucky.” She rarely talked about everything that happened during that time that pitted Chinese against Chinese. I would only hear snippets growing up. But as I got older, I heard more from other family members, even as my mother told me she had a difficult time remembering much of anything during her younger years in Hong Kong.

When she passed away unexpectedly in 2011, I was in charge of taking care of all the family matters with her death. I vividly recall going through her unorganized stacks of important papers kept all over the house and finding a photocopy of a document titled “Refugee Resettlement Land Allocation” something or another. And in this document was a blurry photo of my mother and her family; her as a preteen and my youngest auntie in my grandmother’s arms.

My mother and her side of the family never lamented how they lost everything in the fighting. Instead, they talked about how grateful they were to be alive and the chances they took to ensure the family’s survival. Despite living in a shanty on a hill in Hong Kong, they were grateful for the British Colonial government’s generosity in allowing them to have a place to call their own, to be safe from harm.

I have spent almost 7 of my 8 years of practice as an immigration attorney hearing stories no different from my family’s own history. What my clients seek under the U.S. asylum law is no different than what my family sought when they asked for refuge in Hong Kong. My clients just want to be able to live their lives in safety, to give their children of the opportunities they didn’t have, to move on from a limbo state of violence and begin anew.

But things have gotten much harder. For instance, in 2008, my asylum clients could reasonably expect to have an interview and receive a decision within 4 months. Now, a current client finds themselves in a U.S. asylum system where the wait may be well over two years just for an interview to present their case before an asylum officer. In the meantime, they are ineligible to apply for work authorization until their case has been pending 150 days. And even once that deadline has passed, many face further delays and cryptic reasons for the inability of the U.S. immigration service to process their request.

In my practice, I find myself telling clients that they may wait years before an interview is scheduled. I find myself having to give them cold hard numbers to understand the uphill journey they will set themselves on if they decide to apply for asylum. I tell them that in our jurisdiction, the asylum office has over 10,000 backlogged cases waiting for an interview. I tell them that an average 900 new cases are submitted monthly with only 300-600 cases interviewed that same month.

During this time, they find themselves physically safe but still in a state of panic thinking of their families that stayed behind. The only way for them to bring their children or spouses away from the dangers in their country is for them to win their case. Unlike what my mother and her family went through, my clients find themselves living in limbo never knowing how long or when they may be able to tell their stories. They spend each day wondering when and if they can ever reunite with their family members in safety.

How did my family story end up? Well, at the age of 17, my mother was recruited to train as a nurse in England. She eventually immigrated to the United States in the late 1960’s and brought my grandmother, two aunts and two uncles to the U.S. My mother’s family was small. They only had each other. If my mother tried to bring over her family in the present day, it would most likely only be my grandmother that would be allowed to immigrate. The decades long wait times for brothers and sisters would eliminate any possibility of a timely reunification. What would be lost would be an entire generation of people. Every child from my mother and her siblings (we were all born in the U.S.) went on to graduate from colleges such as Notre Dame, University of Chicago, Vanderbilt, University of Southern California and University of Texas. This is what the U.S. loses out on when delays in adjudications go on for years.

As the immigration debate intensifies into politics, what often gets forgotten are the individuals, the living beings, affected by the current broken system. As rhetoric takes aim at increasing funding for enforcement and a growing police state near the borders, people lose sight of the lack of resources and funding needed to help people who are waiting in limbo.

Politics has gotten in the way of what truly matters in this debate: fixing the laws to reduce wait times, reinforcing existing infrastructure to allow the immigration agency and its employees to adjudicate cases, giving people the opportunity to have their cases heard and allowing people to begin their lives. Immigration is about people, not politics, and President Obama should do all he can to make our system work.

Written by Tammy Lin, AILA Media Advocacy Committee Member 


National Inaction Leads to Local Legislation

Author: on 11/18/2014


image On Friday, New York City’s (NYC) Mayor Bill de Blasio signed local legislation, Introductions 486-A and 487-A, which will significantly restrict the city’s cooperation with inappropriately broad federal immigration enforcement practices, except in instances where there are public safety concerns, i.e., criminal activity. Another effect of these bills is to end Immigration and Customs Enforcement’s (ICE) presence at Rikers Island prison and all City facilities.  A few of us attended the press conference, where the Mayor actually signed the legislation which will  go into effect in 30 days.

In essence, the bill drastically limits ICE’s use of the New York City Criminal Justice System as an arena in which it can enforce its removal and detention operations.  The new laws will lead to the release of many non-citizens who since the inception and implementation of the Secure Communities and Criminal Alien Programs have actually chosen to remain in criminal custody by not posting bail and refusing to resolve even the most minor of criminal cases in an effort to avoid their inevitable transfer into ICE detention.

Prior to this signing, New York Chapter members Cory Foreman and Hedwin Salmen-Navarro, testified in front of New York City Council, representing AILA’s position that the then current practice of detaining non-criminals was inhumane, cruel and financially crippling to an already vulnerable community.  As part of their testimony, they said:Neena 1

“In light of a number of recent court decisions holding that federal law does not require local law enforcement to honor detainers, a growing number of cities and municipalities across the country are refusing to cooperate with Immigration & Customs Enforcement following a foreign national’s release from police or Department of Corrections custody.  There are a number of legal, policy and humanitarian reasons why it is critical for New York City to stop honoring immigration detainers except in the most extreme cases.”

ICE issues detainers to local law enforcement agencies, such as the NYPD or Department of Corrections, asking them to hold an individual even after his or her cases have been resolved, often without a warrant. The detainers allow the person to be picked up by federal immigration authorities, who often hold the person for months before initiating deportation proceedings.

486-A and 487-A will limit the NYPD or Corrections to only honoring a detainer if it comes with a federal warrant, and even then, only if the individual in question has been convicted of a violent or serious felony in the last five years, or is a possible match on the terrorist watch list.

Mayor de Blasio has been a keen supporter and advocate for immigrant rights, and sympathizes greatly with the plight of undocumented workers.  I recall seeing him speak at the immigration rally October 2013, where he spoke in support of Comprehensive Immigration Reform.  As he signed these bills he said, “What these bills do is they protect the rights of undocumented immigrants, of visa holders, and legal permanent residents alike, all of whom have suffered under the previous approach, and ultimately prevent families from being torn apart.”

This is not the only immNeena 3igration stance he has taken.  The Mayor has also introduced the idea of municipal identification for undocumented individuals, and has always been a vocal advocate of the Dream Act.

The usual opponents and naysayers claim that these new laws restricting ICE’s scope of authority will compromise safety, however as we know, and as the Mayor conveyed at the press conference, undocumented immigrants will be more likely to approach police for help or with tips if they do not fear deportation.  He said: “When people understand in all cases police are here to protect, and will not be part of deporting, it will encourage people to come forward.”

Speaker Melissa Mark-Viverito also spoke at length about federal inaction causing harm by separating families and the pain for undocumented individuals, as they are unable to apply for any relief, nor leave due to the fear of not being able to return.

As we all anticipate some form of executive action, or see if this game of chicken or immigration stalemate will come to an end and we hope to see some significant, meaningful reform, local governments recognize the need for action.  I hope that local legislators continue their important efforts, but I think we all hope that the federal government starts acting soon, because immigration is a federal concern, not just a local one.

Written by Neena Dutta, AILA NYC Chapter Chair


Administrative Action Wish List, Part 3

Author: on 11/14/2014


AdminReform_300x200As immigration advocates we generally find ourselves in the position of trying to rationally explain rules and regulations that we personally find maddening. Maddening how? Well, come with me for a few moments as I sit down with “Muresh” and discuss immigration rules with him. He’s not real but, maddeningly, his story is.

Muresh is from India.  He came to the US when he was 18 years old.  He attended a prestigious US university and obtained his bachelor’s degree in computer science with honors.  Muresh decided he wanted to pursue a master’s degree in computer science and moved on to another US university where he earned his advanced degree. While studying for his master’s, Muresh met the love of his life, a fellow  student who also hailed from India. Muresh was thrilled, his fiancée was thrilled, his parents were thrilled. Life was good and soon they were married. Muresh and his wife obtained six figure positions in large employers in the IT field.

They were living the American dream. They were just like the “rest of us” or so they thought.  They bought a house in the suburbs, paid taxes on their salaries, went to the farmer’s market on Saturdays and out to dinner whenever they could.  Soon, they were expecting a child. Their joy knew no bounds. They had it all.

Then Muresh’s employer asked me to explain to Muresh why he and his wife would have to wait 8 years for a green card based upon the current system.  I was asked essentially to explain the unexplainable. Muresh sounded hopeful on the phone so I knew I would have to crush his hopes gently with the truth of the matter. Should I retell the EB-2 v. EB-3 story for the 100,000th time in my career? (Shorthand: very smart v. not smart enough.) Or should we just go with the reality that our antiquated system allows only 140,000 employment-based immigrant visas for hundreds of thousands of applicants?

While the system is antiquated and the maximum number of 140,000 employment-based immigrant visas is arcane for the world’s best economy, we can and must do better with the cards we have been dealt.  INA §201(d)(1)(A) does not proscribe the method of distribution for employment-based immigrant visas nor does it explicitly state that Muresh and his wife should be counted for two visas rather than one against the quota.  Therefore, it would seem that this issue is ripe for an administrative resolution.

The benefits to addressing the reallocation of employment-based immigrant visas are great.  It all breaks down to three points both political parties should agree on:

  • We are a nation that wants the best and brightest so why are we making those whom we claim to desire most wait the longest? We should be welcoming them and thanking them for staying to use their talents to benefit our great country.  After all, why is the United States educating these talented men and women if we do not want to keep them?
  • It’s the economy, right? All of these individuals are earning good salaries at employers around the USA.  They are paying federal and state taxes (well in Massachusetts they are paying state taxes).  They are buying houses, shopping and generally adding to our economy.  Why would we want this economic benefit to leave?
  • They’ve done everything right, they got in line! Isn’t that what all the hardliners tell folks to do?  Muresh got an F-1 visa, two or three H-1B visas (if he’s lucky) and then applied for a green card.  He did it all the right way.  Why is our messed up immigration system punishing him for doing exactly what he ought?

It boils down to this: by counting the principal immigrant and his or her derivatives as a single family unit, we would reduce the current immigrant visa backlogs in both the employment-based category and even the family-based preference category.  There is no rational reason to not employ this administrative fix to help thousands of people obtain their green cards and achieve their American Dreams.  We can do better, and we should, for the benefit of all.

Written by Matt Maiona, Member, AILA Media Advocacy Committee


Administrative Action Wish List, Part 2

Author: on 11/12/2014


AdminReform_300x200During the past several presidential election cycles, politicians of all stripes have acknowledged that our immigration laws are antiquated and need reform. Unfortunately, for all of their bluster, nothing has been accomplished through Congress. Lacking Congressional action, the President announced earlier this year that he will be issuing executive orders to address some of the problems in the current immigration system.

There are a number of actions the president can take through the Department of Homeland Security that would provide relief for many immigrants already in the U.S. while supporting family unity, promoting economic growth, and ensuring national security through documenting masses of people who are currently undocumented and unknown to our government agencies. One such action is through expanding parole in place (PIP) – a process that is familiar to DHS and the public and is already available to a small number of foreign nationals.

PIP is currently a form of relief available to immigrants who entered the country without authorization but have an immediate relative who has either served or is currently serving in the U.S. armed forces. The process currently involves the immediate relative service member or veteran applying for a parole document on behalf of the foreign national. Once granted, the foreign national receives a parole document that serves as an inspection document without having to leave the country and re-enter. With this parole document – and with an approved or concurrently filed I-130 – the foreign national might be eligible to adjust his/her status by using the parole document as proof of authorized inspection for the purposes of an adjustment of status. Of course, the foreign national still needs to be otherwise qualified to get a green card.

The authority for parole in place comes from INA § 212(d)(5)(A), which allows for the Secretary of Homeland Security to parole in foreign nationals who are seeking admission to the U.S. or who are already unlawfully present in the U.S.

President Obama should expand this system to include all immediate family of U.S. citizens. This would allow foreign nationals who have an immediate U.S. citizen family member who’s only bar of adjustment being their unlawful entry to the U.S. to be eligible for permanent residency. This, like the current PIP process, would not cure any other inadmissibility issues such as criminal activity, but would allow for otherwise law abiding residents of this country to gain legal, documented status.

This action would provide several benefits: providing for a permanent status for people who would be living in the country anyway, ensuring that residing foreign nationals are not separated from their immediate U.S. citizen family member, documenting previously undocumented people, and thus providing information and security for the rest of the populace.

There will be little or no expense to the government for doing this – since most immigration applications have a processing fee that DHS will use for their adjudication.

This action would also have the added benefit of unclogging much of the current immigration system by allowing for a quick and easy process for non-dangerous foreign nationals to gain lawful status and allow for DHS and ICE to spend their limited and currently stretched resources on detaining and removing violent and dangerous persons.

With so many benefits available in expanding PIP, President Obama should direct the Secretary to use his authority under the Immigration and Nationality Act to grant parole to unlawfully present aliens to all foreign nationals with immediate U.S. relatives.

Written by Ally Bolour, Member, AILA Media Advocacy Committee


Administrative Action Wish List, Part 1

Author: on 11/10/2014


AdminReform_300x200It’s post-election time.  Do you know what that means?  It’s time for some broad administrative action on immigration!  No more broken promises.  The more than decade-long delay in passing comprehensive immigration reform into law has had a significant and damaging toll on families, businesses, communities and the United States economy.  With the House of Representatives showing no will to pass a bill, thus far, some broad-based action on immigration is long overdue.   Every day that this action is delayed approximately one-thousand undocumented immigrants are deported and separated from their families.  While we have been sharing recommendations with the Administration throughout the summer and fall, we wanted to take some time over the next couple of weeks to share a series of blog posts – in layman’s terms rather than “lawyerese” – explaining why our broken immigration system would benefit from an administrative overhaul.

The first wish relates to families and the devastating and life-altering impact that our current immigration policies have on millions of individuals.  Deferred Action for Childhood Arrivals (DACA) has had a profound impact on the lives of individuals who came to the United States as minors and have grown up here.  It has allowed them to receive work authorization, in most states a driver’s license, and in some state’s even in-state tuition for public colleges and universities.  It has allowed the Department of Homeland Security (DHS) to identify those DACA-eligible persons who are present in the United States and conduct background checks.  Ultimately, it has had a positive effect on the morale of these individuals and an economic benefit in that they are now able to legally work with a social security number and pay their fair share of taxes.

Deferred action should now be expanded to include many more individuals including:

  • Parents of U.S. citizens;
  • Parents of DACA-eligible individuals; and
  • Individuals who have resided in the United States for three years or more.

These individuals should be permitted to file, with a fee, for work authorization and advance parole.  Advance parole should be permitted without requiring the applicant to prove emergent circumstances.  The ability to use advance parole would be critical for those individuals who have family emergencies abroad, especially those with parents or grandparents with serious medical conditions.  One of the most heartbreaking things that we, as attorneys, must often tell individuals is that they cannot go visit a dying family member because if they go they will face a 10-year bar (or longer) to re-enter the United States.  Most importantly, the ability to apply for Deferred Action will halt the deportations of individuals that we should not be removing from the United States and separating from their families and communities.

The immigration system is extremely unforgiving.  One mistake or lapse in judgment by a prospective applicant for permanent residency can wind up being a permanent blemish and potential denial from receiving immigration benefits.  The current immigration law allows for waivers of an individual’s ground of inadmissibility if they can prove “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent.  “Extreme hardship” has consistently been narrowly construed by the government and it is not that simple to get a waiver in many cases.  Furthermore, a U.S. citizen or lawful permanent resident child is not contemplated in the waiver process under the current law.

In this context, we would hope to see the U.S. Citizenship & Immigration Service (USCIS) issue new guidance that implements a more expansive interpretation of “extreme hardship” including a presumption of extreme hardship for certain groups of individuals.  This guidance should set forth a more generous evidentiary standard that highlights the need to keep families united.  A waiver should not necessarily require that a spouse or parent be extremely ill, disabled or dying to get a waiver, the law should be more forgiving.  Furthermore, USCIS should also create a presumption of extreme hardship for individuals with certain equities.  For example, a married couple where the spouse is a U.S. citizen or lawful permanent resident and they have been married for a minimum period of time (i.e., 3 years) or have at least one U.S. citizen child.  In cases such as those, there should not be a need to file a separate waiver application.

These two proposed administrative fixes are just the tip of the iceberg.  More wishes are on their way, so stay tuned…

Written by Maurice Goldman, Chair, AILA Media Advocacy Committee


What It Boils Down To

Author: on 11/06/2014


shutterstock_170940386Well, pundits are hashing over what happened on Tuesday but here’s what it boils down to: Republicans will have control of the Senate in the next Congress (at least 52-43), as well as strengthening their majority in the House (at least 243-175).

A new Congress offers possibilities, offers the hope of action to revamp our immigration laws. We had quite the time over the last Congress with the Senate passing bipartisan, comprehensive immigration reform. We were full of hope. And then…crickets chirped while we stood waiting for the House to act.

No such luck. But here’s the thing, AILA worked with both Republicans and Democrats as we always do and will continue to do so, offering expertise about what parts of our immigration system are broken and solutions for how to create a new system that actually works for business, families, and our country as a whole.

One thing that hasn’t changed is the fact that the majority of Americans want action on immigration reform, and that the possibility of legalizing the undocumented still wins out over “deport them all.” That’s heartening as we head into the holidays and the last few weeks of this lame duck Congressional period.

We have some time left before 2015 and President Obama must keep his promise to deliver major administrative reforms by the end of the year. Delay has only meant more broken families and frustrated businesses. These are folks I hear from every single day. What we want, in the absence of our real need for legislative reform, is for President Obama to do what is within his legal authority to fix the immigration system.

I know some are worried about executive action not helping matters, but here’s the thing: We can’t afford to wait any longer. Businesses can’t afford to be left hanging, trying to hire the best person to stand up a factory, or create new products. Entrepreneurs from all over the world who have big ideas and want to start their companies here shouldn’t have roadblocks thrown in their way. Families can’t wait any longer for the chance to be reunited with a loved one when the only thing bogging down the process is our convoluted bureaucracy. And we can’t continue to deport people with close family in, and long-term ties to, the U.S.

So, let’s turn from this election with renewed energy. Push for administrative action while strengthening relationships with Hill offices from both sides of the aisle. Offer information and expertise to the newly elected coming to D.C. And greet this next chapter in the fight for immigration reform with strength and determination.

Written by Leslie A.  Holman, AILA President