Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

Why Georgia DREAMers Had to Sue The Board of Regents For In-State Tuition for DACA Recipients

Ever since the Department of Homeland Security announced the Deferred Action for Childhood Arrivals ("DACA") program the question has been asked in Georgia by DACA recipients, can I now pay "in-state" tuition at Georgia Colleges and Universities?  The question is simple, and the answer should be simple too.  But, the Georgia Board of Regents has failed in its job to help ALL Georgia residents who qualify get the education they want and deserve.  For more than seven months now, it has been clear  that the Georgia Board of Regents must allow DACA beneficiaries to pay in-state tuition, by the words of their own Policy Manual, but has failed to do so.  With the start of another school year, that wait must now end.

BACKGROUND

Initially when this issue percolated through the Georgia state legislature in 2010, and in order to stop actual laws from being enacted on this issue, the Georgia Board of Regents, which is tasked with determining eligibility for in-state tuition, issued a policy in October 2010 directly affecting undocumented students. The Board of Regents declared that all institutions in the University System of Georgia must verify the "lawful presence" of all students seeking in-state tuition rates. The Board of Regents also stated that any institution that has not admitted all academically qualified applicants in the two most recent years is not allowed to enroll undocumented students. This rule means that no student who did not have "lawful presence," regardless of what tuition they pay or their qualifications, is allowed to attend the University of Georgia, Georgia Tech, Georgia State University, Medical College of Georgia, and Georgia College & State University, based solely on their not having "lawful presence."

After the Department of Homeland Security released the details on DACA in August 2012,  and faced with the question of students who now would be "documented,"
 the Board of Regents, again addressed the issue of in-state tuition for DACA eligible students, and again closed the door on them. The Board of Regents used semantics to bar DACA eligible students from paying in-state tuition.  The problem for DACA students was that DHS had not yet considered whether these students had "lawful presence," but had only addressed the issue of "lawful status."  Let's look at the the specifics for a better understanding.  

The Board in 2010 adopted this language (emphasis added):
Georgia Board of Regents Policy Manual   Policy 4.1.6 - Admission of Persons Not Lawfully Present in the United States
A person who is not lawfully present in the United States shall not be eligible for admission to any University System institution which, for the two most recent academic years, did not admit all academically qualified applicants (except for cases in which applicants were rejected for non-academic reasons).
At this time, the following institutions fall under Policy
  • Georgia College and State University
  • Georgia Health Sciences University
  • Georgia Institute of Technology
  • Georgia State University
  • University of Georgia
Students applying to one of the universities listed above will be required to provide verification of their lawful presence in the United States before their admission to the university can be finalized.

Policy 4.3.4 - Verification of Lawful Presence Policy
Each University System institution shall verify the lawful presence in the United States of every successfully admitted person applying for resident tuition status, as defined in Section 7.3 of this Policy Manual, and of every person admitted to an institution referenced in Section 4.1.6 of this Policy Manual.  Any student requesting to be classified as an in-state student for tuition purposes will be required to provide verification of their lawful presence in the United States in order to be classified as an in-state student.
FREQUENTLY ASKED QUESTIONS (From the Board of Regents Web Site)

What documentation may I be asked to submit?

There are a number of ways for a student’s lawful presence in the United States to be verified. In some instances, the student will not need to submit any additional documentation. For example, if the student completes the Free Application for Federal Student Aid (FAFSA), and the U.S. Department of Education determines that the student is eligible to receive federal student aid, then the student may not need to submit additional documentation as the U.S. Department of Education verifies lawful presence before awarding aid.
In other situations, a student may need to provide documentation of lawful presence, such as a copy of their U.S. birth certificate (certified copy), Georgia driver’s license (issued after January 1, 2008), United States passport, or Permanent Resident Card, as proof of lawful presence. Students should contact their college or university to learn more about what documentation they may need to submit.
You will notice that the Board of Regents used the term "lawful presence" in its Policy Manual, NOT the similar, but legally distinct term, "lawful status." Lawful status typically derives from the fact that someone is in the United States on a specific type of visa (e.g. F-1, H-1B, B-2, L-1), or is a permanent resident of the United States. However, Congress has given the executive branch a great deal of latitude in allowing people to remain in the United States, and classifies those people who are here and known to the U.S. government as having "lawful presence," even if they do not have lawful status. So a person can be lawfully present in the United States and NOT be in lawful status. This important distinction should not be confusing to those who are using the law to try to exclude individuals from benefits they otherwise can claim.  

The Law on "Lawful Presence"On January 18, 2013, the Department of Homeland Security updated its "FAQs about Deferred Action" and made it quite clear that individuals granted DACA are "lawfully present" in the United States, even though they do not have "lawful status." Let's take a look at what DHS says about Deferred Action beneficiaries (emphasis added):

Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.

We see that DHS has made a distinction between lawful status and lawful presence. And it is a distinction with a difference. If the Georgia Board of Regents required that a student be in "lawful status" to pay in-state tuition, there would be no argument here. But, the Georgia Board of Regents only requires that a student show "lawful presence." It is undisputed that what defines "lawful presence" is determined by the federal immigration authorities (DHS), since it is a specific, legal term of art. We also see above that the federal immigration authority (DHS) has decided that DACA beneficiaries are "lawfully present" in the United States.

We can come to only one conclusion from the law as written --  DACA beneficiaries in Georgia are legally entitled to pay in-state tuition.  Because, the Board of Regents has not yet clarified this fact to the institutions under its authority, and because direct beneficiaries of this announcement are deprived of the education they so desperately want and need to compete in a global economy, DACA recipients have no choice, but to seek relief from the Courts of Georgia.  We are asking that the Georgia Courts order the Board of Regents to abide by its own policy and admit DACA students to its colleges and universities and allow them to pay in-state tuition.  Any other result is an injustice that no Georgian should want to stand for or be part of.  

Stewart Detention Center - A Travesty of Justice


It’s not often we get to witness the inner workings of the American justice system. Unless you’re a judge, attorney, or just someone that has had one too many brushes with law enforcement, most Americans don’t usually get to witness the nitty gritty of our legal practices. On the rare occasions when we do, it seems everyone not only has an opinion, but a strong one (read: Zimmerman, Casey Anthony, OJ Simpson). We debate and react with outrage when we feel our justice system was not quite… just.

Sadly it’s usually the cases that are not broadcasted 24/7 on CNN and FOX that tend to fall through the cracks. It’s the impoverished, the youth, the victims of crimes and domestic abuse, the immigrants… those are the ones that are forced to navigate an unfair justice system first hand.  The travesty of justice can only get worse when suffered by the voiceless.

As an immigration attorney, we see this first hand with immigrants put in removal proceedings,  separated from family for weeks and months with no hope for relief. As passionate immigration attorneys, oftentimes we are the only ones that are able to advocate for this voiceless segment of our society.  Those are the cases that pull at our heart strings the most.

Drive into Lumpkin, Georgia
Entering Lumpkin, Georgia
Today, I attended a hearing in Immigration Court in a small “town” called Lumpkin, Georgia - about 145 miles from Atlanta, where even the cows don’t graze.  If you make the trip out there be sure to check your tires and fill your gas tank.  It would be easy to get lost in the miles of nothing. Except for the prison where the Immigration Court is housed, there are no other landmarks in Lumpkin.  

You know you’re getting close when your cell phone completely loses service, although that’s fine - no one is permitted to bring a cell phone into the building anyway.  The Stewart Detention Center stands side by side with the Stewart Immigration Court.  On average the detention center houses 1,497 detainees daily – more than the entire population of the city itself.  The Detention Center is owned by Corrections Corporation of America (CCA)  – the largest private corrections company in the United States, housing approximately 75,000 offenders and detainees in its more than 60 facilities.

Stewart Detention Center - Lumpkin Georgia
Street view of the Stewart Detention Center
The building intimidates immediately - canopies of razor sharp barbed wire and double locked doors greet you as you enter.  As an attorney appearing on behalf of a client in Court, it can still take 20 minutes just to fill out the forms and go through security - and that’s if no one is in line ahead of you (otherwise you’d have to wait outside – where more than likely, it will rain). 

You may think that these public hearings are public, hence the name, but the many security guards remind you that one cannot simply walk to a courtroom – you have to wait until the Judge calls you in.  You must be invited. Once your work before the Court is done, you’re just as quickly uninvited.  

Communicating with your client is a challenge in and of itself. You cannot speak to your client when you are called into court or after the hearing concludes – this is the time for the Judge to speak to you.  Most of the time, you are not allowed the courtesy of communicating with the government attorney.  Since it is virtually impossible to communicate with your client by phone, you really only have one option: you can opt to make the three-hour drive to visit them during visiting hours and try and talk to them through a static-laden handset while attempting to peer at their documents through a cloudy glass wall. 

As one can imagine, preparing for hearings can be challenging. But as challenging as it can be, the detainees that can afford attorneys are actually the lucky ones. Countless detainees exhausted from endless days in top security detention center with no end in sight and no money to hire an attorney soon learn that the fastest way out is to request an order of removal.  Many choose to leave knowing full well they are forgoing potential relief available to them in our immigration laws that would allow them to stay here, but simply do not have the know-how to navigate a complex legal system.  Many cannot afford to hire a lawyer, particularly because many charge a premium for cases in Stewart because they have to take a whole day off just to appear for a 10 minute hearing.  Even those with means have a hard time finding a qualified attorney, because many attorneys shy away from representing detainees there. Many attorneys' offices are simply not equipped to handle the unpredictability of scheduling and subsequent long absences, or they themselves are not familiar with the intricacies involved in representing detainees in fast-paced removal proceedings. 

In civil proceedings, we are not afforded government-appointed counsel.  In these cases however, a “public defender” will actually save tax payers from having to detain non-criminal immigrants that could be monitored via cheaper, alternate methods like an ankle bracelet.  Further, in cases where there is an actual avenue for relief, appointed counsel can help speed up the process, benefiting all involved.  An attorney can also assist in those cases where there is just no relief available – advising the detainee to request an order or removal (or voluntary departure) and saving them from weeks and months of false hope. 

Due process is a fundamental right guaranteed by the United States Constitution. It acts as a safeguard from arbitrary denial of life, liberty or property by the government outside the sanction of law. The U.S. constitution is not limited to U.S. citizens. It’s not even limited to only those who do not commit heinous crimes. If a mass murderer is guaranteed due process, then what do we have to say for the hard working, tax paying father of four U.S. citizens, who has made America his home for 20 years that gets arrested for driving while unlicensed and put in removal proceedings with no real access to representation?  How can we explain to his children that the freedoms guaranteed to all of us by our Constitution are actually not for all?  Are these the American values that we stand proudly behind?

Yes, it’s easy to get caught up with all the hype surrounding the high-profile cases that make the news every evening, but it’s the low-profile cases that do not make it that we should be the most concerned about.  Those are the ones that slowly but surely erode at our fundamental rights to due process, tear families apart, and eventually harm the rest of us too. It’s time to speak up and voice our opposition to our representatives. The time is now.

Travesty of justice starts with the small threads, quickly unraveling all the stiches of our justice system until we no longer have a beautiful quilt - but instead a pile of rags.  

written by Associate Attorney, Hiba Ghalib

What Immigration Reform Will Happen?

At this point Immigration Reform is still at least a Congressional summer vacation away from being passed.  Most people "in the know" will tell you that the Senate Bill (BSEOIMA, S.744) will never have a vote in the House of Representatives. That may or may not be true.  What is clear is that the House of Representatives is feeling a great deal of pressure to do something on Immigration Reform, but is hesitating on allowing people who came without papers or who overstayed their visas to ultimately obtain permanent resident status or U.S. Citizenship without going through the "normal"  immigration process.

Everyone is focused on the "undocumented" part of the immigration reform process, but the reality is that the really significant parts of the Senate bill have nothing to do with "amnesty" or "legalization."  The key parts of the bill deal with the FUTURE of immigration to the United States.  If a version of the Senate Immigration does pass, these new and modified future immigration processes will greatly benefit tens of millions of legal immigrants in the coming decades. The changes will include increased visas for employment-based cases, a significant reduction in wait times for green cards for Mexican, Indian and Chinese nationals, a new "point" system for immigration to the United States, a new immigrant visa for those who complete Masters degrees and Ph.Ds. in Science, Technology, Engineering, and Math fields in the United States, and most importantly, an elimination of certain family categories and the Diversity Lottery, to account for all the new employment based immigrants.  

The Senate bill also will provide a temporary visa to those already in the immigration "line" awaiting the decade’s long family backlog, with the right to work and travel. There are also massive changes to the grounds of removal, the process for removal, and even the defenses to removal that today are so limited, but will be expanded should the Senate bill see the light of day.  The question remains though is What Immigration Reform Will Happen?

The answer is simple.  No Immigration Reform will happen, unless WE make it happen.  Recently pundits have said that even though a majority of Americans support Immigration Reform, they are not "angry" about it.  And, we all know that only "angry" people call their congressman. So who is calling their congressman?  The calls come only from people who oppose Immigration Reform.   Consequently, your congressman thinks YOU don't support Immigration Reform, so he can just ignore the polls and vote against the bills.  

So, what Immigration Reform will happen?  None, unless YOU call your congressman today.  Do you want the benefit for you, your business, and your family of the positive changes to immigration law described here? How bad do you want these changes?  Do you want it enough to pick up the phone right now and call 202-224-3121 and ask for your Congressman?  Are you angry enough to tell him or her  that you are calling to ask for them to "Support Immigration Reform Now"?  

Immigration Reform, and particularly the positive changes mentioned here, are absolutely essential for the future growth and prosperity of the United States. We must also deal compassionately and wisely with the issues of the undocumented people who so strongly and silently support our way of life. And, we must deal with border security and unlawful employment for future generations.  But we will deal with none of these vitally important issues if we remain silent.  I, for one, refuse to remain silent.  I call each day, several times a day to my Congressman. I am sure he is listening.  I am also sure that he will vote against reform, but it will not be because he has not heard my voice.  Let your congressman here your voice, today, tomorrow and into the future until we secure an immigration system that works for all today's and tomorrow's Americans. 



The Economic Impact of Immigrants


Recently, the National Conference of State Legislatures issued a summary report of the fiscal and economic impact of immigrants utilizing information from ten different states.  This report provides an interesting look into positive impact of immigrants on our nation by showing the income and sales tax contributions as compared to the costs of education, health care, and corrections, among other factors.

economic impact of immigrants - kuck immigration partners
For those that believe undocumented immigrants do nothing to contribute to tax revenue, Arizona’s undocumented workers contributed $1.5 billion of the total $2.4 billion in 2004.  The report also found that in 2010, immigrants contributed $3.9 billion to Arkansas’ economy.  The report coming out of Georgia found that the “overall taxes unauthorized immigrant pay into the system is greater than the amount of benefits they receive”.  The report out of Minnesota estimated that in 2008 that without immigrant workers, the state would lose over 24,000 permanent jobs and $1.2 billion in income.  Finally, in a 2012 report, Oregon reflected a very strong level of contribution from unauthorized workers.  

It is estimated that there are approximately 150,000 unauthorized workers earning on average $3 billion a year - they are contributing on average about $200 million a year.  

This report, dated June 2013, was compiled by a series of studies from each state, and provides a cross-section of the fiscal contributions of our nation's immigrants - both documented and undocumented. For the full report, click HERE.

written by Danielle Conley, Partner, Kuck Immigration Partners

God and a Good Immigration Attorney: Four Important Considerations in Selecting Your Immigration Attorney

Immigration is a maddeningly complex and counterintuitive area of law.  In addition to being complicated, immigration law involves dealing with a bureaucracy manned by government officers that are often poorly trained and almost always indifferent to the intricacies of individual cases.  More than one client has come to me at their wit’s end and confessed: “I finally determined that the only way I was going to get through this is with the help of God, and a good immigration attorney.”  Please consider the following in selecting an attorney to help you through the high stakes maze of immigration:
1.     Meet your prospective attorney in person.  Email and telephone communication are great mediums for exchange of information, but immigration cases are very personal and should require in-person meeting at least at the initiation stage to make sure your attorney is a good fit.  Make sure you ask the questions that are important to you, and pay attention to how the attorney responds.  Does the attorney listen to you?  Or do they appear more intent on moving you out of the office so they can get to the next person waiting?  Does the attorney look and act professional?  While you are at the attorney’s office, look around.  Is the officer professional?  How are employees dressed?  Is the office a professional workplace?
2.     Do a bit of research.  Before meeting a prospective attorney, research them.  There is a lot of information out there.  Google is a great resource.  You should also look on websites such as AVVO.com that provide information on professionals including client and peer endorsements.  Each attorney should also be admitted to a state bar.  You can review the state bar’s webpage to see if the attorney has been disciplined for improper conduct.  Finally, any immigration attorney who is serious about practicing immigration law should be a member of the American Immigration Lawyers Association (AILA).  Go to AILA’s website at aila.org to see if the attorney is a member.
3.     Avoid the dabbler.  Avoid “full-service” attorneys that claim to specialize in many areas of the law.  Many attorneys who do “a little bit of everything” do not excel at any one area of law.  The same is even truer when that one area of law is the ridiculously complex immigration law.  You need an attorney that focuses on your type of cases to insure that you have an experienced attorney that can help you.
4.     Don’t assume.  An expensive attorney is not always a good attorney, and a good attorney is not always expensive.  I have had consultations with individuals who were previously with another attorney, and who had hired that attorney because: “Since they were charging so much, I thought they must be really good.”  This is simply not the case.  Many bad lawyers charge high fees.  The reverse is also untrue.  Just because an attorney is a good, well-known and visible attorney does not mean that they are expensive.
Armed with your faith that comprehensive immigration reform on the horizon, do not wait, prepare yourself now by selecting a great immigration attorney with a wealth of experience and knowledge to guide you through the immigration process.  By using the guidelines above you cannot go wrong. 

Immigration Reform -- What Words Means, Makes All the Difference

One of the striking things about reading hundreds of newspaper articles about "immigration reform" with thousands of quotes from politicians is the amazing misuse of words and phrases that form an essential part of the debate.  To aid you in your understanding of the immigration reform debate, here are definitions of the key words and phrases, as used by the different side,s on this very important issue.

Word/Phrase                                   


Immigration Reform









The Senate Immigration Bill






















DACA/Deferred Action for Childhood Arrivals












DREAMers












Amnesty












Border Security




















“Back of the Line”


















E-Verify


Senate Democrat and GOP Meaning 

Our current legal immigration system is broken and is in need of a complete review and rewrite to ensure the future competitive economic advantage held by the United States as a nation of immigrants.

The Border Security, Economic Opportunity  and Immigration Modernization Act of 2013 .   BSEOIMA’s 1,198 pages are a virtual rewrite of thousands of additional pages of one of the most complex immigration systems on earth.  BSEOIMA attempts to enhance border security, hold employers accountable for undocumented hires, fix a terrible legal immigration system, create a future path for immigration, and deal with the 11 million undocumented people and their families humanely and justly. 


Program put in place by President Obama in June 2012 to alleviate the political pressure he was receiving from undocumented students, brought here as children through no fault of their own, who seek a future opportunity in the only country they have ever known.

Those brought to the United States under the age of 16, educated here, and who have become American in every sense except for a piece of papers.  These kids will receive an expedited process to permanent residence under a stringent and detailed list of criteria.


Does not exist. Amnesty is complete forgiveness without recompense.  There is no Amensty in BSEOIMA.  Fines, delays, civic and language requirements, high filing fees and and a 10 year wait for full legal status ensure that there is NO forgiveness without recompense.


BSEOIMA increases the effectiveness of the Border Patrol, builds fences to deter illegal crossings, and calls for spending $46 billion dollars just on the border over the next decade.   BSEOIMA will significantly reduce the flow of undocumented immigration to the United States.  









What line?  Today some relatives have an 24 year wait for a green card, and employers can wait up to 14 years to immigrate some employees.  BSEOIMA reduces backlogs, increases visa opportunities, creates a new start up visa, increases investment, rewards Masters Degree and PhDs with US Degrees in STEM fields, generally fixes the “line” and creates enormous economic benefit to the US.


A necessary part of immigration reform, requiring all US employers to verify the identity and work authorization of all new employees with an online federal government database run by the USCIS and Social Security Administration.  While error prone and time consuming, it is currently the only effective way to verify employment eligibility.
House GOP Meaning


An attempt by Democrats to create millions of new Democratic voters, and to destroy the foundation of America.





A Democratic attempt to pass an amnesty to reward lawbreakers and create open borders to allow the destruction of America.

















President Obama’s attempt to curry favor with Latinos by offering a work permit to kids who should not be in the United States.  This program must be defunded.   (NOTE:  There are no public funds used for this program). 














The Senate Immigration Bill.  












A complete synthetic bubble around America that does not allow a single person into the United States without a visa, a background check, and a full body cavity search.  This must be done before any consideration is given to fixing the broken legal immigration system.  (NOTE:  Ignores the fact that the broken legal immigration system causes illegal immigration). 




Where immigrants should be who want to come to the US.  My relatives waited in the line three generations ago, these people can wait too. 













The first step to a national ID Card.  Although some House GOP members do LOVE this idea


DOMA is Gone, and USCIS Accepts Same Sex Marriage Cases


“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly."  Secretary Napolitano has  directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Frequently Asked Questions

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.
Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.
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