Author Archive

Ending Artesia

Artesia1Artesia changed me. It changed me as a lawyer and it changed how I interact with people. I know that it changed all the volunteers, it changed the officials who worked there, and more than anyone, it changed the children and mothers who were held there, sometimes for months on end, in fear.

For those of you who are coming to this subject for the first time, Artesia is shorthand for the Artesia Family Residential Center in New Mexico. While only in existence for less than a year, its impact was profound.

I saw inhumanity at Artesia – in the treatment of kids and moms, in the lack of communication and information, in the denial of due process, in the lack of care for sick and traumatized asylum seekers.

I also saw humanity at its best – in the attorneys throwing themselves into helping these families and packing months of case work into days, in the remote lawyers working from afar to help in any way they could, in the efforts of those in the Denver area who could physically go to the court handling the cases, and from the multitude of donors who shared their funds to help Team Artesia keep the battle going.

The few remaining Artesia moms and kids who haven’t been released (either on bond or grants from immigration judges) have been transferred to facilities in Karnes and Dilley, Texas. Our two stalwart on-the-ground staff members have shifted their lives from Artesia to San Antonio and continue to work on the remaining cases not yet assigned to a permanent pro bono attorney. The boxes of files are being reviewed, and the number of on-the-ground volunteers is dwindling.

As I look back over what had been accomplished, and what still remains to do, I started putting my thoughts together and the end result is an interactive report that details Artesia from start to finish. I hope you’ll read it, consider what was done by our government and why, consider what was done and why by our volunteers, and continue to fight with me to end family detention. Because what the leadership of our government has done, by condemning these children and mothers before any word left their mouths, before any evidence had been submitted, is wrong.

Everyone has the right to due process. When our own government starts to strip away the rights of some, under specious and faulty arguments, then our nation’s foundation is at risk. End family detention, not just in Artesia, but everywhere, for the sake of the moms and kids, and for our own sake, too.

Written by Stephen W. Manning, Member of the AILA Board of Governors and Artesia 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 wraps up 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.

Claiming Victory at What Price?

shutterstock_193122386Immigration and Customs Enforcement (ICE) is claiming victory in the transition of its family detention center model from Artesia, New Mexico to Dilley, Texas. On a working group tour of the Dilley detention center on January 13, 2015, ICE sang its own praises about all of the changes they had implemented after the shutdown of the Artesia facility and how great the permanent facility in Dilley will be once completed.

The detention facility they are lauding is expected to be the largest in United States history, reaching a capacity of 2,400 and a reported cost of nearly $300 per detainee per day.

Many of the most vulnerable who seek protection in the United States will end up imprisoned there for indefinite amounts of time. It is shameful that children as young as 18 months are being held there right now. It is wrenching that women who are victims of severe trauma and abuse are imprisoned there. But in many ways, the most tragic are the indigenous women from all over Guatemala who are likewise jailed without a clear indication of why they are there or what the process is for fighting their removal.

Fleeing for safety, they end up in a world of confusion and isolation. They arrive to the Dilley detention facility not yet understanding what has happened to them since they attempted to cross the border, and then remain detained for months in almost complete isolation.

They are isolated because when they arrive at Dilley, nearly all of them are oriented in Spanish instead of in their native language. That’s how detention begins for them. Despite the fact that most of them speak little to no Spanish or English, Spanish and English are all they hear. They are used to being marginalized and ignored and persecuted but you would think that in the United States we could do better.

They cannot communicate concerns or needs to facility employees, deportation officers, or others at the detention center. They cannot communicate with other women and children at the facility. They cannot communicate with immigration judges or asylum officers, and many are pushed through the process with no opportunity to tell their story, as indigenous language interpreters are few and far between.

Two weeks ago, I sat in on a pro se hearing, where an asylum seeker represents herself, at Dilley. A woman who speaks Quiche sat at the counsel table with only her daughter by her side, facing an immigration judge on the video screen. The daughter looked to be about 10 years old. They listened intently as the judge spoke to them, in Spanish. The daughter leaned in, trying desperately to understand what the judge was asking, while her mother sat uncomprehending, staring at the video screen. The immigration judge would ask questions and the little girl would tell her mother what to say in response. The immigration judge caught on to this issue after a few questions, and asked the mother what her preferred language is. She responded that she speaks Quiche, not Spanish. The immigration judge asked her if she understood what had happened so far. The mother repeated that she does not speak Spanish. The immigration judge explained that she would find a Quiche interpreter and would have another hearing. Neither mother nor daughter understood what the judge had said. After a few more attempts to explain what had happened, the immigration judge gave up. The mother and daughter stopped me as they left, seeking information. I attempted to explain to them what I had understood but they hadn’t, using one word at a time and miming with numbers and my hands, what the immigration judge had said. Two. Days. Quiche. Back here. I hope they understood, but how could I ever know?

This woman and her daughter are in removal proceedings. The U.S. government is trying to deport them. And they have no idea what is happening. When I tried to ask if the woman had spoken to a lawyer, she could not understand my question. It was the most heartbreaking thing I had ever witnessed, even after being in Artesia for more than five months.

ICE insists on detaining these women and children. Most are victims of severe violence in their home countries. They are completely isolated and cannot understand what is happening in their immigration cases. At the time we toured Dilley, with only 10% of its total expected capacity filled, there were eight indigenous language speakers and their children detained there, unable to understand what they need to do to be reunited with family members here in the United States.

The government contends that these women and children constitute a “national security threat” and must be detained. Surely this “national security threat” is not so great, when the women and children involved cannot even communicate with those around them. When they cannot even understand how to find an attorney, let alone work with one on their claims for protection. When they have absolutely no chance at getting due process when the decisions being made could mean life or death, asylum or removal.

ICE can brag about the virtues of Dilley as much as they want, but this facility is what it has always been: a gross political abuse designed to detain the most vulnerable of those seeking protection in the United States, with no regard for due process or human decency.

Written by Christina Brown, AILA Member and Lead Attorney for the AILA – Immigration Council Artesia Pro Bono Project

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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.

Mexican Consulates Will Issue Birth Certificates…Starting Today!

shutterstock_160340369A longtime struggle for many Mexican citizens living in the United States is the inability to access their birth records.  Some may have been born in a state where they no longer have contacts and they struggle to acquire their birth certificate.  In practice, this can definitely be a significant hurdle that our clientele faces.  As of today, the Mexican government plans to make the process of acquiring a birth certificate much easier.  All 50 consulates of Mexico in the United States will begin issuing certified copies of those essential documents.

This announcement and change in policy comes at a critical juncture for millions of Mexican citizens living in the United States that may be eligible for Deferred Action for Parents or Childhood Arrivals (DAPA/DACA).  As part of the process in applying for the DAPA/DACA benefit, applicants will need to provide evidence of who they are.  Having a birth certificate, passport or some form of government issued identification will be essential in getting an approval from the U.S. Department of Homeland Security.

By providing birth certificates at the consulate, the Mexican government will hopefully make the process less of a struggle.  We at AILA applaud the Mexican government for making this important change to their policy on birth certificate issuance!

Don’t forget that the roll-out of DACA and DAPA is planned sometime in the coming months.  If you intend to file for either DACA or DAPA, you can take the following steps to prepare:

  1. Have proof of who you are (see above).
  2. Collect documentation proving that you have been in the United States and continuously resided since before January 1, 2010.
  3. For DAPA applicants proof that you are a parent of a permanent resident or U.S. citizen born on or before November 20, 2014.
  4. Proof that the applicant was physically present in the United States on November 20, 2014.
  5. Save your money. The filing fee is expected to be $465 or possibly more for DAPA.  We are still awaiting more guidance regarding the fees.
  6. Collect any criminal records that you may have including arrest records or court dispositions. If you are uncertain about whether a record exists you should get an FBI background check.
  7. If you have any derogatory immigration history or criminal record it is highly recommended that you meet with a qualified attorney to analyze your situation.
  8. Do not fall victim to fraud! Make sure you get information or legal advice from someone you know and trust.

Written by Mo Goldman, Chair, AILA Media Advocacy Committee

New Yorkers Get New ID to Get Past the Velvet Rope

imageClubs are synonymous with New York, and in order to get past the velvet rope, what do you need? Identification. It always helps to know somebody and have a lot of money, but I will curb the comparison of immigrating to the US with getting into Studio 54, lest someone think you can “bribe the doorman.”

New York has just launched the IDNYC card. In an age where you need to be able to identify yourself to access a building, get on a plane or train, make a purchase, open a bank account, get housing, or respond to a police inquiry, a person with no identification, in particular the undocumented, are often made more vulnerable from not being able to prove who they are.

This does not only related to the undocumented. During election time, producing identification was a problem for some elderly citizens.

As the city presents it:

“IDNYC is the new, free identification card for all New York City residents, which gives all of us the opportunity to show who we are—New Yorkers. As a government-issued photo identification card, IDNYC secures the peace of mind and access to City services that come from having recognized identification. IDNYC benefits every city resident, including the most vulnerable communities—the homeless, youth, the elderly, undocumented immigrants, the formerly incarcerated and others who may have difficulty obtaining other government-issued ID.

IDNYC cardholders can access services and programs offered by the City as well as by businesses. IDNYC helps enhance public safety, by serving as a recognized ID for interacting with NYPD. It also helps New Yorkers gain access to all City buildings that provide services to the public and is accepted as a form of identification for accessing numerous City programs and services. IDNYC also provides a dynamic series of benefits to cardholders, including a free one-year membership at many of the City’s leading museums, zoos, concert halls, and botanical gardens.”

It is imperative that we all, as in, all New Yorkers, obtain these IDs. Otherwise, it will be all too easy to be able to identify undocumented individuals by this new ID as the only type of identification available to them. This is one more great innovation by the city to make it more open and welcoming to the vulnerable and to help try to solve the great disconnect between Federal inaction and positive local action. While we wait for reform beyond the President’s Executive action, small steps like these help to make the city more inclusive for a population which already exists. The city is finding a way to work together rather than a hostile attitude of deportations at all costs. Most often, this culture of deportations and “no” costs Americans just as much, since these undocumented individuals provide a very real service, are part of the fabric of our society and they add to the economy.

Instead of hostility, we need to find a way to welcome these individuals. Giving them identification is certainly a great step in the right direction.

Everybody, welcome to the club!

Written by Neena Dutta, Chair, AILA NYC Chapter

‘Tis the Season – H-1B SEASON!

shutterstock_147492446I’m surrounded by dry Christmas trees lying on the sidewalk, nobody is eating and drinking ridiculous amounts any more, and people are pretending to exercise as part of their New Year’s resolutions  – it must be H-1B season!

For 2015, here we are again, with no increase in numbers to the H-1B cap (at least not as of yet). We face harsher adjudicators, with more clients who want to apply, and those clients want a guarantee that they will definitely obtain an H-1B. Such a guarantee can’t be given – not just because of the cap and resulting lottery, but because any denial is almost always upheld. According to the 2013 Ombudsman’s report which was brought to our attention by Diane Butler of Seattle, WA, “The vast majority of appeals to the AAO are dismissed, that is, denials are upheld.  For H-1Bs in 2013, 858 appeals were dismissed and only 12 appeals were sustained (overturning denials), approximately 1%!

Wait, why are we excited to start H-1B season again?

The H-1B is one of the few visas available for US employers who want to remain competitive in the global economy, that do not require a particular nationality (Es), extraordinary ability (Os), or having worked for that company previously (Ls). Seems like these are people our country would want to encourage. Instead we attorneys are constantly battling the service centers for a visa that not only helps to retain talented young students who have newly graduated, but also gives US employers a choice in worker.

There is nothing more frustrating than an employer telling you how much they desperately need this person, how much value this person either already brings to the table or how much they believe the person will add value to the company and help that company to grow, and yet USCIS has taken very strict, almost draconian views of a small company’s ability to support a new position, and in particular a business development position.

I don’t mind sharing with you (although it pains me) that I had a particularly tough denial for a small but growing company.  It was immensely frustrating because the company, though small, had a detailed business plan which included growth, they had funding of well over a million dollars, and were registered on the SEC showing their plans to go public, and we submitted letters of support from other companies, similar jobs from the industry.  Crickets.  USCIS rejected our evidence and even stated that “companies such as yours would normally outsource such a position.”  Really?  Not only do you want to deny this position, but now you want a company from the U.S. to outsource this job???   Years ago the same position, for the same type of company would have been approved in the blink of an eye.  Times have changed.

We are not completely powerless.  First and foremost, as attorneys we need to make sure that our work is exemplary.  If we are armed with an airtight case, it will make the next stages much easier to embark upon.  Next, you need to know your options after an egregious denial: do you appeal?  Do you litigate?  Litigation?  I am a business immigration attorney.  I do transactional work, not the courtroom.  Can you do it?

Absolutely!  Tammy Fox-Isicoff of Miami, FL has tried and tested this method with success: “I haven’t abandoned all hope- but after 30 yrs. of doing this… and holding out “hope,” the hope is fading. Much of the time, I go to Federal Court. pro bono, even for clients who can pay, to right a wrong. Federal Court is all on motion, on these cases. The Court looks at the administrative records and decides if the immigration decision is arbitrary, capricious or an abuse of discretion. I paper my files, put in affidavits from experts, and academia. The government provides no experts. It is often not difficult to litigate and win a well prepared NIV filing. In fact, usually the appeal becomes the Motion for Summary Judgment-thus the time commitment is often only several hours more than it was for the appeal. ”

But we should not stop at litigation.  Not everyone has the time or resources for that.  We need to collectively strategize and bring to the attention of the Administration what a waste of resources these denials are.  Additionally, think about the loss in tax revenue, resources and filing fees for employers.  Employers/businesses are constituents too.   Congressmen should be bending over backwards to help businesses with this issue.  The enormous misconception is that H-1Bs are cheap labor.  Whoever made that statement clearly did not look up the Department of Labor’s wage survey.  Collectively, we can change this.

And until we do, we all still have the cap season ahead of us.

On Monday night, AILA’s New York City Chapter had our 2015 kick-off meeting.  The topic was H-1Bs Strategies and Preparing For April 1st. We were joined by Rachel Baskin, Bill Stock, Allen Orr and Alexis Axelimage1 (2)rad, who all gave us helpful hints and strategies of how to deal with upcoming H-1B season. Here are a few highlights:

  • File the LCA Early: It is never too early to file an LCA. Sure, the employee will lose 4-6 months on the back end, but that is not completely lost by any means. It is better to start filing them now and avoid iCert issues, business existence issues and general glitches or errors.
  • History: Find out the US immigration history of the Beneficiary: surprisingly some people are not aware that they have even had an H-1B before. You may be able to file now to see if their H-1B can be ported, and at least you will find out now instead of in the lottery on April 1st.
  • Errors: Unfortunately, errors are fatal during a lottery. Any mistake can cost you the petition – checks, signatures, lack of checking the correct box.
  • Quality control: For solos or small practices, everyone really: get it done early. Don’t put a package together same day as you are sending it out. If you scan items in, review the pdf.  Review the shipping label. Do not send to the wrong address. Did the employer move since you last filed a petition for them? Review, review, review.
  • Filing Fees: If your client does not want to write the filing fee checks directly, or you wish to monitor the checks, put the money in the trust account and write checks from the trust account.
  • Don’t hold back: given the shift toward negative adjudications, don’t hold back any information/evidence that could bolster the case.

Whether you have one H-1B to file, or ten, or one thousand, we are all in this together. The only way to show that USCIS is issuing unreasonable RFEs is to send them to reports@aila.org or use liaison.

See you at season’s end!

Written by Neena Dutta, Chair, AILA NYC Chapter

The Happiest Day Still Shadowed by Injustice

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.

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

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

Who Are We Turning Away?

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

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

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