Musings on Immigration

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Many friends ask what exactly I do as an immigration attorney and what kind of clients I meet and help.  One thing I love about my job is that I get to handle a wide variety of different cases with people from all over the world.  Though the cases may be factually different, nearly all of my cases are common in that they involve individuals with compelling cases that deserve compassionate and sensible solutions.  Here is a sampling of a few of my recent consultations (the names and countries have been changed to conceal identities):
1.     A young woman from El Salvador was brought into the United States ten years ago by her family when she was 16.  She is married to an emotionally and physically abusive U.S. citizen who constantly threatens to call immigration if she does not comply with his demands.  The husband threatens to have her deported and separated from their young child.  He controls the money completely and uses that as a tool to control her as well.  The woman is scared of her husband, and what immigration might do to her if she leaves him and he follows through on his threats.
2.     A Montessori teacher from Mongolia with several degrees and certificates in education is here on a temporary visa that is going to expire this year.  She has an offer of employment from a school and wants to know what visa she could change to that would allow her and her family to remain in the U.S. for a longer period of time since there is a shortage of qualified Montessori teachers. 
3.     A husband and wife from a Middle Eastern country converted to Christianity and fear for their lives in their home country because of their new religion.  Their family does not know of their conversion.  They fear that they will be targets of torture, persecution and possibly death at the hands of their government and possibly even family if they return. 
4.     The owner of a large construction and equipment company in Mexico looking to expand his company into the U.S. in order to move here with his family.  The man and his family have become targets of organized crime because of their wealth.  His daughters were kidnapped and held for ransom.  He receives threats daily.  He wants more than anything to keep his family safe, even though it would mean leaving a country he loves for a period of time.  He is willing and able to invest money in the U.S. to establish his company here, or to purchase an existing company.
5.     A young man from Guatemala came to the U.S. at age 14 with his uncle.  His parents could not support him and he was starving in Guatemala.  He went straight to work rather than to school, so that he wouldn’t be a burden to his uncle’s family.  He does not have any proof that he was in the U.S. until he was about 17.  About one year ago when he was at his construction job, scaffolding collapsed and the young man fell and suffered injuries that left him a paraplegic.  Shortly before his accident the young man popped up on immigration’s radar after he was arrested for driving without a license.  He is waiting for a court date before an immigration judge and faces deportation to Guatemala.
6.     Another young man, this time from Peru, came to the U.S. with his family when he was 16.  His dad was a permanent resident at the time and filed immigration paperwork for the entire family in 1995.  Each of the young man’s siblings received status through their father, but by the time immigration was able to approve their cases, my potential client had “aged out” by turning 21, and was told he would have to wait.  Now, 20 years later this man wants to see if it is time for him to get his green card through his father.  He has never been back to Peru and hardly speaks Spanish. 
I love my job.  The cases are so personal and there is often so much riding on them.  At the same time, being an immigration attorney can be devastatingly frustrating because you become so invested in the cases, but are not always able to help people.  Fortunately the law allows me to help most of the people in the situations described above, but not all of them.  All are deserving of some reprieve yet at least one of the people described above has no way of changing their situation. 

El Chapo Arrested...What Does It Mean?

           In a word - nothing.  Allow me to digress for a moment and then put a bow on this at the end. One of the most common facts that must be shown in a deportation defense or waiver of some ground of inadmissibility is hardship. The level of hardship varies based on the type of case, from your everyday run of the mill hardship to your heightened exceptional and extremely unusual hardship. The hardship is usually to your qualifying relative. The U.S. government does not care about the affect your deportation would have on you, but supposedly cares about how it will affect your qualifying relative or relatives. One of the most common ways that hardship is shown is by demonstrating that the current conditions in the country to which you would be removed are so horrible that it would be a hardship for your qualifying relative to go and live there with you.

            Unless you’ve been living under a rock for the past decade you know there is a turf war between rival cartels in Mexico for control of the lucrative “plazas,” or trafficking corridors on the U.S. border. Joaquin Guzman Loera, AKA – El Chapo, controls one of these lucrative corridors as the leader of the Sinaloa Cartel, arguably the most powerful in Mexico. Does his recent arrest mean the war is over and that Mexico is now a safe place and we can start deporting people there without a second thought? (Oh wait we’re already doing that!)

            Chapo’s arrest means nothing, despite what some enterprising ICE attorney or removal officer will ultimately try and say it means – that the drug war in Mexico is over. Whether El Chapo continues to run his empire from prison (as he did until his “escape” in 2001), or some other individual takes over, it really doesn’t alter the landscape in Mexico. The cartels will still fight over the lucrative plazas and people will continue to die. Mexico will still remain in large part a dangerous place, especially for those arriving after a recent deportation. 

SB 404--Why It Violates Federal Law And Should Not Be Passed

Monday's "legal," but ethically challenged passage of SB 404 in the Senate Judiciary Non-Civil Committee hearing has created a real problem for Georgia Senators (and for House members who are considering today the possible addition of anti-immigration language from SB 404 to HB 621).  What is that problem?SB 404 violates federal law and will be struck down if it is passed.

As background, on Friday evening , February 21, 2013, SB 404 was introduced into the Georgia Senate on and published on its website.  As of Monday, February 24, 2014, at 8:00 pm., SB 404 was not yet publicly assigned to a committee in the Senate, and several people were told by the clerk of the Senate around 2:00 pm on Monday that SB 404 had not be been "pulled from the hopper," e.g. read in the Senate and assigned to a committee.  Yet, around 3:00 pm, when a large group of folks opposed to SB 404 were in the Georgia House hearing room, where HB 621 was supposed to be heard on Monday (but was put off until today), SB 404 was assigned to the Judiciary Non-Civil Committee in the Georgia Senate and had a hearing where the only speaker for it was the Senator who sponsored the bill, and the only vote against it was by Senator Curt Thompson.  Apparently, the only notice required under Georgia Senate rules for a bill to be heard is for it to be on an agenda for the committee to be distributed at the committee hearing, effectively depriving the public of notice that a bill that will take away driving privileges from 25,000 people.  The Committee effectively passed SB 404 in the dark corners of the Gold Dome.

That saga leads to the real question, Why is SB 404 even being discussed?  More importantly, do these Senators, some of whom are actually attorney understand how SB 404 violates federal law?  In Section 202 of the REAL ID Act of 2005, subsection (c)(2)(viii) states that "deferred action" status is evidence of "lawful status" in the United States, for purposes of issuing a REAL ID compliant state ID or license.  While there is no reason given by the sponsors of SB 404 for proposing the bill (other than the dark forces and evil heart that lay behind an action of depriving people of the right to travel in the United States), it is clear that individuals with "deferred action" not only have "lawful presence" in the United States according to the Department of Homeland Security, but that he Congress of the United States has explicitly stated that recipients of "deferred action" have, in fact "lawful status" in the United States.

The importance of both of these items cannot be understated. The Constitution of the United States starts with the phrase "We The People."  "We The People" has been interpreted to mean everyone in the United States, regardless of immigration status and that means, on at least a certain level, everyone in the United States, including those with "lawful presence" and "lawful status," even if they are not permanent residents or citizens, enjoy the protections of the Constitution. One of those protections is equal protection under the law. The State of Georgia should be intimately familiar with the 14th Amendment.  The 14th Amendment bars the State from enacting laws that treat similarly situated "people" differently under the law.  SB 404 purports to do exactly that.  SB 404 wants to treat lawfully present and lawful status individuals differently from U.S. Citizens. That is a direct violation of federal law, and of the Constitution.

With no public reason given for this legislation, passage of SB 404, or any bill treating deferred action foreign national differently under state law, is doomed to failure.  We are ready today to allow the Courts to decide this case.  There is no doubt that the Courts will rule in favor of these students and Georgia will be left with another black eye on its crusade against immigrants.

We do not want to have to file another lawsuit because of the unwise actions of state legislators, but we will. We would rather that the Georgia Senate simply take a step back, put SB 404 in its appropriate dustbin, and move forward with legislation that unites Georgians, rather than one that tears them apart.  The Georgia legislature needs to stop taking its legal advice from non-lawyers who neither care about, nor respect the Constitution they have been sworn to uphold.

Bad News on SB 404--Georgia Takes a Step Backwards on Immigration

Bad news.  We were told today that the House Committee on Motor Vehicles could possibly substitute into HB 621 the DACA Drivers License Takeaway bill language in SB 404.  At the committee hearing today, Chairman Rice said he was postponing today’s hearing on HB 621 til tomorrow. 

But, while our group was in the House hearing room, the Senate Non-Civil Judiciary Committee heard, voted on and passed the actual SB 404, without amendment!!

There was no notice of the hearing, nor was there anyone present to speak against it. SB 404 now goes to the Senate Rules committee, which is usually perfunctory, and which is charged by Senator Mullis.  Call Senator Mullis now and ask him to stop SB 404 for having been passed through committed in violation of Senate rules.  You can reach him at (404) 656-0057

We need a very loud call on this to alert Georgians that our Senators are breaking their own rules in an attempt to hurt children and damage, once again, Georgia’s reputation.    We plan on notifying everyone of the hearing time tomorrow on HB 621, as soon as we are made aware of it, but strongly urge you to call your GOP Senator to urge him to vote against SB 404, if and when this bill comes up for a vote on the Senate floor.

Georgia GOP State Senators Want to Take Drivers Licenses From DACA Recipients

The Georgia GOP-led legislature has decided to jump back onto the anti-immigration train that led the national party off the cliff in the last election.  Six GOP senators have introduced legislation to take away the right of DACA applicants to obtain Georgia Drivers licenses and ID cards in SB 404.   Here is the language of that proposed bill:
To amend Article 2 of Chapter 5 of Title 40 of the Official Code of Georgia Annotated,
relating to issuance, expiration, and renewal of licenses to operate a motor vehicle, so as to remove evidence of approved deferred action status from the list of available documents for use in the issuance of a temporary driver's license or permit;
Did you expect to see this in the last week before crossover day in the Georgia State Legislature, in an election year, with a rising tide of Latino and Asian voters already upset by the national inaction on immigration reform?  Who is behind this bill, and what can we do to stop such a stupid, self-immolating action by these GOP senators.

State GOP Senators Heath of the 31st, Gooch of the 51st, Crane of the 28th, Murphy of the 27th, and Hill of the 32nd (all districts who THINK they have no DACA recipients living in them) have introduced SB 404. They clearly did not write it.  So who did?  Who hates immigrants so much that they would want to take away drivers licenses away from young adults who are active, participating members of our Georgia Community?  You decide who would do such a thing.

That said, we need to act. Word on the street is that the language of this bill (which will be formally introduced on Monday, February 24, 2013 in the State Senate) may be included in an house bill on driver's license issues set to heard at 2:00 pm on Monday. There is a hearing HB 621 (which currently has nothing to do with driver's licenses for DACA recipients) in Room 606 at the State Capitol.  This Committee is the one in charge of Motor Vehicle issues, and this anti-immigrant language would have to added to a House Bill in order for the Senate to have a chance to turn it into law.  To date, the Governor has failed to say anything public this session about his desire for there to be no anti-immigration legislation (presuming he has such a desire).

You need to come to the state legislature on Monday at 2:00 pm in room 606 in the State Capitol. You need to bring your friends.  You need to bring your DACA cards and drivers licenses with you, and you need to show these state legislators that you are good, upstanding members of our community and will no longer remain silent in the face of an anti-immigration onslaught by a regional GOP focused on purifying itself of moderate and rational influence.

See you there.  

Steps You Can Take to Preserve Your Green Card

An immigration attorney spends a lot of time helping immigrants achieve permanent residency in the United States. Sometimes though it’s not getting the green card that’s the hard part, it’s keeping it. Lawful permanent resident (LPR) status implies in its name “residency”.  However many green card holders still maintain ties to their home countries and travel for family or business. It’s extremely important to be aware of what you need to do to maintain your LPR status. Per USCIS, you may be found to have abandoned you permanent residency status if you:
  1. Move to another country intending to live there permanently;
  2. Remain outside the U.S. for more than 1 year without obtaining a reentry permit or returning residency visa. However you may also be deemed to have abandoned your residency even if absent from the U.S. for less than one year; 
  3. Remain outside the U.S. for more than 2 years after issuance of a reentry permit without obtaining a returning residency visa;
  4. Remain outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. However, in determining whether your status has been abandoned any length of absence from the United States may be considered, even if less than 1 year;
  5. Fail to file income tax returns while living outside of the United States for any period;
  6. Declare yourself a “nonimmigrant” on your tax returns;

If you are a permanent resident and plan to travel abroad for over 6 months, consult an immigration attorney to be sure you are taking the proper steps to maintain your residency status. Also, if you ever travel back to the United States and are pressured by Customs and Border Patrol (CBP) to sign a form in order for you to voluntarily abandon your Permanent Residency Status, simply: DON’T DO IT.  Tell the CBP officer that you do not wish to abandon your green card and that you would like to exercise your right to contest this before an Immigration Judge.  You will be scheduled for a hearing where you will have the opportunity to convince an Immigration Judge that you did in fact maintain permanent residency status. Lastly, the best way to avoid any potential issues with abandoning your green card is to apply for citizenship as soon as you are eligible. Keep in mind that extended time out of the U.S. as a permanent resident may also delay your eligibility for naturalization.

Often it takes a lot of time and effort to obtain permanent residency status in the United States. As with anything in life, the benefits of having LPR status do not come without responsibilities to keep and maintain it.  Educate yourself about your responsibilities as an LPR so you will best enjoy its benefits.

Hiring a lawyer for your adoption/immigration case – read this first!

I had a great discussion on facebook last night with a fellow lawyer about the challenges adoptive parents face when trying to find competent legal counsel.  Here are some things you should consider before signing a retainer agreement: 

Has the lawyer processed cases in the country you are adopting?

Every country has its own nuances. Taiwan has the PAIR program. Pakistan has Mrs. Edhi and NADRA.  Mexico has DIF. And the list goes on.  If the lawyer hasn’t processed cases in your chosen country before, they won’t know about these things, won’t be able to advise you properly and will waste your time and money while they’re trying to figure it out.

How many cases has the lawyer processed before? How long has he or she been doing this? How many of these cases does the lawyer currently have pending?  

The more cases a lawyer has handled and the longer he or she has practiced, the more likely that they will be able to achieve a successful outcome for you. If the lawyer currently has cases pending that are similar to yours, it’s a good sign that they handle those types of cases routinely. 

Ask the lawyer what exactly he or she can do for you.

 A good lawyer will know exactly what needs to be done and how to do it. The lawyer should be able to provide you with specifics at the time of the initial consultation (I will file these applications;  you will need this evidence; I can advise you on these specific legal issues).  If the lawyer tells you that he or she will “guide you through the adoption process” find someone else.    Remember also that lawyers should not be offering to assist you with the homes study. You do not need a lawyer to assist you with obtaining a home study. You are paying an adoption agency/ social worker good money to assist you with this part of your case and it’s not a lawyer’s area of expertise. Lawyers also typically cannot help you find a baby in another country

A note about legal fees:

I have heard of desperate adoptive parents agreeing to pay enormous sums of money, (in some cases more than $15,000), for orphan petitions. Keep in mind that an international adoption from a well-established adoption agency will often cost over $20,000. If a private lawyer is charging you anywhere close to this amount to complete only the immigration portion of a case, something is very wrong.

 Don’t be afraid to ask for references.

Lawyers can’t provide you with the names and contact information for previous clients as this information is privileged but any lawyer who practices regularly in this area will be able to provide you with the names and contact information of other lawyers or people in the adoption community who can vouch for his or her services.  I have also asked previous clients to reach out to prospective adoptive parents to discuss the types of services I provide.

What other work does the law firm do?

Immigration and adoption are highly specialized areas. There are only a few attorneys in the United States who practice in this area routinely.  Try to find a firm that dedicates its practice exclusively to immigration issues.

Head of Immigration and Customs Enforcement (ICE) Resigns

For those who missed the news yesterday, the acting director of ICE, John Sandweg will resign this Friday, just six months after appointment and five months on the job.  Sandweg’s appointment was highly criticized in the first place due to his complete and utter lack of experience.  Sandweg had previously worked as a criminal defense lawyer, and had no experience whatsoever in law enforcement.  In my opinion Sandweg’s appointment showed a clear lack of leadership and direction in the Department of Homeland Security and ICE, and was a clear sign that favoritism sadly trumps qualifications in many government circles.
Surely Sandweg had to know that he wasn’t qualified for the position, and that he had basically been handed the opportunity of a lifetime.  The question is, how bad is it within the ranks of ICE as an organization that Sandweg would abandon the career-maker opportunity and jump ship without explanation?  This has to be embarrassing to DHS and ICE specifically.  I hope that they learn from this and actually select an experienced and knowledgeable individual to lead, instead of Napolitano’s second best friend. 
I was originally planning on writing eight paragraphs on the resignation and what this means for ICE, but I think I’m going to “Sandweg it” and cut this baby short.

Voluntarily Departure Under Safeguards – What’s the point?

This week, my boss Charles Kuck blogged about voluntary departure at Stewart Detention Center and how judges there routinely grant a form of relief euphemistically called "Voluntary Departure Under Safeguards."  He noted that the immigration statutes allow for "Voluntary Departure," which is basically time for a foreign national to wrap up their affairs in the US, sell property and then leave voluntarily, without an order of removal.   The invented "voluntary departure under safeguards", however, requires detained individuals to buy their own ticket and then NOT be released from custody to do any of the thing that voluntarily departure was designed to do.  Furthermore, these individuals are forced to buy exorbitantly expensive open-ended tickets to leave the country, while individuals who opt for a simple order of removal are able to leave the country free of charge.

Adding insult to injury, individuals who request voluntarily departure under safeguards and purchase the pricey tickets are often not allowed to timely voluntarily depart under their purchased tickets and are held for many days, and in some cases, even weeks after the tickets have been purchased.  By way of example, we recently had a case where the client requested voluntarily departure under safeguards, purchased the expensive ticket, asked to leave immediately and, two months later, is still detained at Stewart Detention Center (run by the Corrections Corporation of America (CCA)). 

For these reasons, we often advise my clients to not request voluntarily departure under safeguards.  First, the cost of the ticket alone is prohibitive.  Second, it can take longer to actually be allowed to depart the country then if a client requests a simple order of removal.  Third, most individuals who take voluntarily departure are barred from reentering the country based on the fact that they have often fallen out of status or have no status and thus there is no real benefit to voluntarily departure under safeguards.
As with so many things that happen at Stewart Detention Center, it appears that the only winner in voluntarily departure under safeguard cases is CCA, who profits from each additional day that an individual is detained.

Stewart Detention Center--Why Is It A Deportation Machine?

A recent headline loudly proclaimed (incorrectly) that Immigration and Customs Enforcement was now "losing" almost 50% of the cases brought before an immigration judge in all US Immigration Courts.  The headline is deceptive, because it is simply not true.  ICE does not lose almost 50% of its cases.  There is no doubt that a much larger percentage of cases are "administratively closed" by Immigration Courts on a motion by ICE than in past years, but assuredly ICE is not "losing" these cases. Perhaps they are being more generous in their application of discretion, but losing them, no.

That said, one place where this is NOT happening is at the Stewart Detention Center (SDC), in Lumpkin, Georgia.  Located 3 hours south of Atlanta (and one hour south of Colombus), in what can best be described as the middle of nowhere (go ahead click the link and see that I am right). According to the statistics released by TRAC, ICE attorneys have a success rate of  95.1% in front of SDC's three immigration judges.  Even worse, only 300 of the 1,676 cases processing through deportation at SDC were criminal related (only 17%)! ALL the rest were simply immigration violations.  And, of these "immigration violation" cases, ICE wins 98% of them, when nationally ICE is at around 50%.  Wait, how is that possible?  Perhaps all the ICE attorneys at SDC are so much smarter and better than their colleagues in other jurisdictions?  Perhaps ICE only sends "guilty" immigrants to SDC, making their deportation a foregone conclusion? Or, perhaps there are  more troubling answers. Perhaps a lack of immigration attorneys, together with Immigration Judges not regularly granting a reasonable bond to the immigrants (and thus keeping immigrants detained in what can only be described as a hell hole, so far from their families and legal counsel that they literally give up hope and ask for an order of deportation) has a deleterious and chilling effect on the immigrant desire to stay and fight the charges.

With all due respect to the ICE attorneys at SDC, they have the same skill set and education as their colleagues in Atlanta and other parts of the US.  And, experience and evidence shows that the cases at Stewart are no worse or better than those in other "detention centers" in other parts of the US, or  those ICE chooses not to detain.  So, if it is not the ICE attorneys, and it is not the immigrants, what other variables are there?  Simply put--the lack of immigration attorneys, and the bonds, or lack there of, granted by immigration judges.   But, is there any evidence of these final reasons for SDC's outlying percentage of removal orders?  The answer to that question lies both in our experience with hundreds of cases at SDC and in hard numerical evidence available at the Executive Office for Immigration Review (the office responsible for tracking the work of immigration judges).  

Countless are the cases where an individual is eligible for a bond who is only charged with an immigration violation, and if given that bond the individual would be eligible for relief from deportation (e.g., marriage to a long standing US Citizen girlfriend, cancellation of removal, etc.).  Recently, an immigration judge in SDC denied bond in this type of situation.  But, rather than wait six months and appeal the judge's decision, which appeal would most assuredly be successful, the immigrant elected to take a deportation order and leave; deciding to continue his fight to return from outside the US, far from his family and children.  These same Immigration Judges routinely deny bond to an immigrant who has one or two DUI arrests (not a criminal ground of removability), when a bond with conditions, such as monitoring by ICE, is a viable alternative to detention, like in state court proceedings.

Failure of immigration judges to grant reasonable bonds, when state and federal court judges grant reasonable bonds every day in similar cases, coupled with a lack of access to counsel, suggests a severe lack of due process available to the immigrant at SDC.  Because once an immigrant is detained in SDC the ability of the immigrant to secure competent legal counsel is severely limited.  Phone calls are outrageously expensive, when available.  It is virtually impossible to mount a defense to removal when only you know where documents are kept or stored at your apartment, that will allow you to seek the relief offered you under federal immigration law. Many who have not been through this process do not appreciate the importance of being released to family and friends to fight the immigration charges near where their attorneys practice, as there is effectively no immigration attorneys nearer than an hour from SDC.

Yet, many of these same judges routinely grant a form of relief euphemistically called "Voluntary Departure Under Safeguards."  There is no statutory basis for this form of relief.  The immigration statutes allow for "Voluntary Departure," basically time for a foreign national to wrap up their affairs in the US, sell property and then leave voluntarily, without an order of removal.  The invented "voluntary departure under safeguards" relief allows detained individuals to buy their own ticket and then NOT be released from custody and be escorted from the United States, to avoid having a deportation order.  But that order is irrelevant since a deportation order carries with  it a 10 year bar to return, and departure under voluntary departure also means a 10 year bar to return for those who have been in the US illegally for longer than a year.  A difference without a meaningful distinction.  

Another concern is that even those with deportation orders can stay in SDC for weeks after the order is given.  Who profits from that?   SDC makes a fortune for the Correction Corporation of America (CCA), as part of the congressional mandate to fill 34,000 beds a night, year round, with immigration detainees.  ICE is under direct orders to keep this facility full, even of immigrants with possible relief from removal, or those with removal orders.  By keeping immigrant detainees in remote locations, in deplorable conditions that are outside their norm for people unaccustomed to "prison life," far from family and counsel, there is one, inevitable result--a loss of hope, and a very high rate of removal compared to non-detained immigrants.

A colleague once said that SDC is where "due process goes to die."  But, since there appears to be so little due process to start with, I am afraid he is wrong.  Due Process never has existed at SDC, and never will until lawyers are provided for detained immigrants, bonds become a matter of routine, rather than a matter of exception, and SDC is closed down, leaving ICE sufficient space to detain those who are a danger to society, and freeing up an immigration court system to get down to the task of dispensing justice.  

Birthright Citizenship, Unjust Outcomes, and Why We Need Immigration Reform Now More Than Ever

            Birthright citizenship has long been the norm in the United States and it doesn't look like that will change anytime soon. I for one am glad. As a lawyer I love bright line rules that don’t really require much interpretation. If you’re born here, that’s it…you are a citizen, end of story. That hasn't always been the case in this country and you can read all about it here.

            Most people think this is a pretty fair system, but this arbitrary way that we assign citizenship leads to many unjust outcomes. It is one of the best ways to point out how broken our immigration system really is. Let me be clear…I am not advocating that we abandon birthright citizenship, but I am saying it should be expanded to more people who weren't born in the US. To illustrate my point let me present two fairly common scenarios.

            Scenario 1 – Someone born in the U.S. to non-citizen parents leaves the U.S. with them before age 1. This person grows up outside the U.S. and at age 18 decides, “Hey, I think I might be better off in the U.S., I think I might go live there.” They go to a port of entry with their birth certificate (or easily obtained U.S. passport) and enter the U.S. ready to work, vote, and participate in society without any fear of being deported for a minor offense. This person is also eligible for any means tested public benefit for which he qualifies.

            Scenario 2 – Someone born in a country that does not recognize birthright citizenship to parents who are citizens of a third country. The parents bring this child to the United States before age 1, right around the time the person in scenario one is leaving. This person grows up here, speaks only English, and graduates from high school. Because money was tight for his family and because of our ridiculously arcane immigration laws he never became “legal” (whatever that means). Pay no attention to the fact that his parents are legally present in the U.S. and he has siblings born here. Now he wants to go to college, but he can’t because he can’t afford it. He applies for the means tested benefits that the guy in scenario 1 applies for, but is denied because he lacks legal status. So, not wanting to be a drag on his family or society he enters the workforce. On his way to work one day he is pulled over for an improper turn signal and subsequently arrested for driving while unlicensed. He is turned over to Immigration and Customs Enforcement by local authorities. Because he has no legal status and no way to remain here (again, because of our ridiculous immigration laws) the federal government will try to deport him, not to his country of birth, but to the country of which his parents were previously citizens.

            Now, as for scenario 1…I am totally fine with this. While I have no love for the welfare state, the fact that he can take advantage of it is a problem with the welfare system, NOT the immigration system. I am always in favor of anyone being able to come here anytime and for any reason so long as they can pull their own weight. Arbitrary lines in the sand should not prohibit someone from living where and how they want to live!

            As for scenario 2…there are a few things this guy can do to prevent his deportation. None of them are cheap, guaranteed, or permanent, but why should he have to do anything? Why can’t we have a system that works for people like this? Short answer…politics, and BOTH sides are to blame! Birthright citizenship is a start, but it isn't enough. Deferred Action for Childhood Arrivals (DACA) was something, but it didn't go far enough. Why is someone who is otherwise eligible for DACA, but was 33 the day it was announced not able to benefit like someone who was 29 the day it was announced? Why is someone with a high school diploma more deserving than the kid who decided to work and support his family rather than finish high school? Why is the guy in scenario 1 more deserving than the guy in scenario 2? The answer is NOT to restrict the guy in scenario 1; it’s to expand our conception of citizenship to the guy in scenario 2. Our system is broken…it’s time to fix it.

Adoption Alert- Indictment of employees of International Adoption Guides Inc. (IAG)

Employees of IAG were indicted for allegedly conspiring to defraud the United States in connection with IAG’s adoption services in Ethiopia.

IAG is an adoption agency with a program in Ethiopia. It is Hague Accredited.  The scheme allegedly involved, among other things, paying orphanages to “sign off” on contracts of adoption with the adopting parents as if the children had been raised by those orphanages — even though the children had never resided in those orphanages and had not been cared for or raised there.  These orphanages could not, therefore, properly offer these children up for adoption.  The Ethiopian Courts, relying on these documents, issued adoption decrees which were then used to obtain immigrant visas to the United States. This has been going on for 5 years.

The charge of conspiring to defraud the United States carries a maximum penalty of five years in prison and a fine of the greater of $250,000 or twice the value gained or lost. The charges contained in the indictment are merely accusations, and the defendants are presumed innocent unless and until proven guilty.

My first prediction:  AIG employees will say they had no idea what was going on in Ethiopia and blame their Ethiopian counterparts.

My second prediction: People are going to jail.

Here’s the best write up I could find on what happened:

What can we learn from this?

  1. Adoption agencies: Hire an experienced immigration law as a consultant before you consider starting an overseas program. Yes, I think I can tell you how to do your job, especially if you are not doing it right.
  2. Adoptive parents: Never agree to put a child who is not an orphan into an orphanage in the hope that the State Department will consider the child an orphan. Talk to an immigration lawyer instead.
  3. IAG adoptive parents:  Contact a lawyer who is experienced in immigration and adoption matters to see if anything can be done to salvage your case.

DACA -- What is USCIS Looking For To Approve Your Case?

A client was waiting a long time for their DACA to be approved, so long in fact the it was even beyond the "normal" outrageous processing times.  As most know, there is not much that can be done in such a case to "hurry up" the processing.  We decided that we would do a Freedom of Information Act (FOIA) request for a copy of his file to determine what USCIS was doing with his case.  Miraculously, we received the FOIA response back within 60 days.  Also, miraculously, his DACA was approved shortly before we received the FOIA.  So, why is this interesting?  Because as part of the FOIA response, we received the USCIS checklist for DACA processing!

Receiving something like this is like finding a piece of gold in a pile of rubble.  The value of knowing exactly what USCIS is looking at while adjudicating an application can be incalculable; and this particular document is no exception.  For example the checklist clarifies something that USCIS has been somewhat evasive about in the context of possible misconduct by the applicant:
The following are not counted as convictions:  Youthful offender-juvenile delinquency (review for EPS concerns), conviction in absentia, deferred prosecution, dismissals, dropped, set aside, nolle prosequi, full and unconditional pardons, expunged/vacated (unless the conviction was expunged/vacated for immigration purposes), STET - if still in place and requestor in compliance (Maryland and West Virginia), continued without finding, deferred adjudication.  
This definition of conviction is far more limited than the definition of conviction found in the Immigration Act.  

We also learn that for DACA applicants who are home-schooled, the case will automatically be referred to another speciality officer (the CFDO).  More interesting is the number and types of system checks that must done to be approved for DACA, including, CIS 9101 and CIS 9202, FD258 (FBI), Ident and Non-Ident, CLAIMS (prior USICS filings), and IBIS.  So, when USCIS say they do a detailed background check on each applicant, they are not kidding.

There are, of course, other points of interest in the checklist, including a reference to the USCIS's controversial "CARRP Protocols" (delaying cases for people from countries of predominate Muslim heritage), meaning for someone from such a country a possible LONG delay in in adjudication.

The Worksheet attached to the DACA Checklist allows for the officers to handwrite in their summary of the evidence submitted for proof of physical presence on June 15, 2012, and for proof of legal presence in each of the five years since June 15, 2007.  There is also a place for the officer to note other supporting documentation, including affidavits.  

Finally, there is a Decision Processing Worksheet attached to the DACA Checklist (which oddly enough also contains an H-2A expedite and H-1B Premium Processing worksheets).  This Decision Processing Worksheet provides many options for the officer to approve RFE or deny the DACA application.  

Knowing what is needed for a DACA approval is essential to properly preparing and presenting a DACA application.  Because of this FOIA response, we now know what USCIS is looking for to approve your DACA case.  

Everything you need to know about the adoption Home Study!

I get lots of questions about home studies- here are the answers to the most frequently asked questions:

Everyone knows what a home study – a review of your home, family life, personal background by a licensed social worker. You must submit an approved home study to USCIS if you wish to emigrate a child to the United States.

Who needs to prepare the home study?

 A home study can be prepared by any social worker or agency licensed in your state.  If you reside abroad, then the person who prepares the home study may  be licensed in any state. The home study may also be done by a social worker or agency licensed or otherwise authorized by the foreign country to conduct home studies under the laws of the foreign country.

I live overseas, do I still need a home study?


Should I use a private social worker or a social worker at an adoption agency?

It’s totally up to you. Both are acceptable to USCIS as long as they are licensed by the state where the orphan will live. If you decide to go with a private social worker, you will probably receive more personal attention but remember that if you use a private social worker who is not employed by an agency, you may be required to submit an additional certification issued by a family court or other additional documentation.

Do I have to submit the home study with the I-600A?

No, you can submit the I-600A without the home study but it will not be adjudicated unless and until you submit a home study. The home study must be submitted within one year of the filing of the I-600A or the I-600A will be denied.

Do I have to submit an original or a copy to USCIS?

You have to submit an original.

Can I send USCIS an old home study?

The home study cannot be more than 6 months old at the time it is submitted to USCIS.

When does my home study expire?

If you have already submitted it to USCIS, then it does not expire but you do have to get an amendment if there has been a significant change of circumstances while your application is pending with USCIS. Please note that I-600A approvals do expire!

Can I do a home study over the phone?

No, there has to be at least one in person visit with the social worker.

I make no money and have a criminal history- will my home study be approved?

USCIS generally defers to the social worker who conducts the home study to determine if the adoptive parents are suitable people to adopt a child. If the social worker believes you can support a child financially, USCIS generally accepts that and will not require you to prove it by submitting a financial report (but they can). Remember you may need a co-sponsor for your I-864 at the consular stage of the process.

You have to make a full disclosure to your social worker of any criminal history and should submit dispositions for any and all arrests and convictions to USCIS. If you fail to disclose an arrest or conviction to your social worker, USCIS can use this as a basis to deny your petition. I’ve had clients that made silly mistakes in the past and ended up with minor criminal histories that were approved to adopt children.

Detained and Not Eligible to File Any Applications With the Judge to Remain in the U.S.? Think Again!

Immigration Court can be a very tricky proceeding, made even more complicated when an individual is detained.  Typically when someone is detained, in order to obtain a bond from a judge, move forward in court, or have a case reopened, a detainee must be eligible to file an application seeking a green card, asylum, or some other permanent form of relief.  There have been countless requests made to judges in Atlanta where the person is eligible to file for Deferred Action for Childhood Arrivals (DACA) or to pursue the provisional waiver program (applications not reviewed in court), but a judge denies the request and only allows for voluntary departure or an order of removal.  The situation is compounded further because detainees are simultaneously denied bond as well.
The argument has been made before immigration judges that DACA or eligibility to apply for a provisional waiver is a form of relief and eligibility to apply should warrant a continuation of proceedings and possible release on bond.  Many judges deny this request (in Atlanta and Stewart Detention Center, at least), and the person only faces immediate removal from the U.S.  Well, the BIA just issued a fantastic (unpublished) decision possibly changing that position.  The BIA remanded a case to the Immigration Court where the detainee requested that his case be reopened so that he could apply for DACA and the provisional waiver.  The judge denied the request, but the BIA issued a decision stating that although the judge pointed out that consular processing would be required, the judge did “not address the fact that the Form I-601A waiver permits aliens to remain in the United States with their families until consular processing is scheduled”.  See Juan Luis Avalos-Avalos, A205-834-943 (BIA Dec. 31, 2013) (unpublished decision).  That certainly sounds to me like the BIA feels families should remain united as long as they can, even if the applicant ultimately has to leave in order to consular process. 
This case can be a very effective tool in immigration court when the applicant is only eligible for relief that is not the type filed before an immigration judge, but can allow them to remain in the United States longer than they would otherwise.    
Please call me at 404.949.8151 with any questions if you know someone in this situation.         
-        Danielle M. Conley