Got Immigration? The World’s Best Damn Blog About U.S. Immigration

There’s an interesting dilemma for many people immigrating to the United States as the parents of a U.S. Citizen.  Many times, moving to the United States to be with an adult child means having to leave a minor child behind, a decision that for many is nearly impossible to make.

The reason for this problem is the lack  of “derivative” status for the dependents of what are called “immediate relatives.”  The law allows U.S. Citizens and permanent residents to petition for and bring certain family members to the United States.  Broadly speaking, there are two main categories of family members: “immediate relatives” – or the spouses, parents, and minor children of U.S. Citizens, and “others” – no, not the strange people from Lost, but the adult children, married children, and brothers and sisters of citizens and the spouses, minor children, and adult children of permanent residents. 

Petitions for others can also include derivative beneficiaries, or the spouses and any minor children of the principal beneficiary named in the application.  This arrangement allows entire families to immigrate together once their petition becomes current on the State Department’s visa bulletin.  Petitions for immediate relatives, however, cannot include derivative beneficiaries.  Practically speaking, that means that if you’re petitioning for your foreign-born wife, and she has a child, you’ll have to petition for that child separately.  The same thing goes for your parents.  If you’re petitioning for mom and dad, but have a little sister or brother under the age of 21, you have to petition for them separately under the 4th preference category – brothers and sisters of U.S. Citizens.

There’s really no problem here if we’re talking about step-children, since citizens can petition for minor step-children simultaneously with their spouses as long as their marriage took place before the kids’ 18th birthday.  Step-children are a “current” category on the visa bulletin, which means that they do not have to wait for a green card.  Brothers and sisters are a much different story.  There is an approximately 10-year wait for a green card through the 4th preference category for most nationalities, forcing a citizen’s little sister or brother to find another way to enter and stay in the United States legally while the I-130 petition inches its way through the immigration system.  Because of this, parents can enter the U.S. as permanent residents within a matter of months, while a little brother or sister – no matter how young – has to either wait back home or come to the U.S. on a nonimmigrant visa.  That is no easy task sometimes.  Visas from certain countries, especially student visas, are notoriously hard to get, and there’s little else for which many children qualify.  There’s also a nonimmigrant intent requirement for student visas, which forces applicants to prove that they intend to return to their home countries after their visas expire.  If a child’s entire family is immigrating to the U.S., nonimmigrant intent is nearly impossible to show, and the visa will most likely be denied.  Parents in this situation will often choose to enter the U.S. in some other manner – say, on a visa that provides derivative status to spouses and children – and will wait until their minor child is legally settled before having their adult U.S. Citizen child petition for them. 

If this sounds like something that doesn’t happen too often, think again.  I’ve had more than a few clients in this exact situation, and we have to jump through legal hoops to figure out a status that works for all concerned in both the short and long-terms.  The only way to meaningfully solve this problem is to allow derivative beneficiary-status for at least the minor children of immediate relatives, if not for the spouses of immediate relatives as well.  If one of the overarching policy goals of American immigration is family unity, I can think of no better way to realize that goal than to allow the families of immediate relatives to remain together indefinitely.

A report released today by DHS’s Office of Immigration Statistics found that there are currently about 12.6 million Lawful Permanent Residents (LPRs) in the United States.  I find that number very interesting because that’s just about equal to the number of undocumented immigrants in the country, estimates of which range from 11 to 14 or 15 million.  The parity between these two numbers says something to me: it’s pretty tough to become a Lawful Permanent Resident.  If there are roughly 25-30 million “immigrants” in the United States, meaning persons that intend to reside in the U.S. permanently, yet only half are legally here, there is a far greater demand to live in the United States than legal means to do so. 

Of course, every nation has the right to exclude people as an incident to its sovereignty, and the United States is no different.  Yet look at the history of immigration in this country; the United States historically, at least until 1921, legally admitted anyone to live and work in this country as long as they didn’t fall into any one of several inadmissible classes.  These prohibited groups were more often than not categories we would now find reprehensible: all Chinese, later all Asians except Japanese, ”idiots,” gamblers, and many others.  Some of these prohibited groups also formed the basis for our current grounds of inadmissibility: prostitutes, paupers, habitual drunks, and people with various types of illnesses.  Although there have always been sound policy reasons for excluding certain types of people, 19th and early 20th century America understood that immigrants were essentiall to this country’s survival and economic prosperity.  Immigrants might take jobs from some Americans, but will generally expand the economy much more than they restrict it, creating jobs for Americans in the long run.  The same is true today.  A nation’s economy is a constantly changing entity, that might be based on agriculture one decade, on manufacturing the next, and on services after that.  Short-term job displacements in one sector shouldn’t stand in the way of the creativity and influx of ideas and capital that come with increased immigration, that can often lead to expansions in other sectors of the economy, changing the very makeup of the nation’s economy.  It’s important to remember that the immigration quotas of the early 20th century were largely the product of nativist sentiment, where large numbers of Eastern Europeans threatened to “degrade” the WASP-ish character of America.  The 1952 McCarren-Walter Act, which basically gave us our current immigration system, and later amendments were essentially extensions of that same logic, albeit less racially charged and fundamentally fairer.  In 2009, there is still a distinct taste of the “protect us against them”  mentality from these earlier laws, something that distorts the national debate on immigration and turns our sight away from what really matters – creating as strong an America as possible.

In both economic and social terms, a restrictive immigration structure makes little sense.  If there is a great demand to come to America, and if immigrants are a good thing for this country (and most studies show a net positive economic gain from each immigrant in the United States, illegal or legal), then there should not be such a glaring disparity between the number of U.S. residents that are legally here and those that aren’t.  As long as foreign nationals are admissible, and can show that they will not become public charges, they should be able to become part of the nation’s 12.6 million LPRs as well.

The new Chief Counsel in Los Angeles, James Stolley, said in a liaison meeting with AILA and L.A. County Bar Association representatives that he wants to rearrange how Assistant Chief Counsels (ACCs) are assigned cases in his district.  For those who don’t already know, at present there are two different types of attorneys assigned to any one case, although the actual number of attorneys that touch a case can include several more.  The “numbers series” attorney maintains a case file throughout the life of the case, but is usually not the attorney that appears in court.  The attorney that actually appears in court is the one assigned to that judge’s courtroom on that particular day.  If a case requires, let’s say, five court appearances – four master calendar hearings to file applications and/or resolve preliminary issues and one merits hearing to adjudicate the case – there can be up to five different attorneys appearing in court on that case.  If you’re counsel for the respondent, your job becomes that much tougher because you never know with whom you’re dealing for anything.  The numbers series attorney can tell you certain things about your case, but will usually not be the one in court, forcing you to explain everything to that other attorney over again.  I don’t know who thought that system up, but it’s antiquated, inefficient, and downright frustrating – and apparently almost a thing of the past, if Mr. Stolley gets his way.

According the liaison meeting minutes, “the OPLA will be getting rid of the number series in the next 6 months. The office will be re-organized such that there are 2 to 3 ACCs assigned to each Immigration Judge. Those attorneys will be responsible for all cases heard before those IJs and this will provide for more accountability and docket control. Mr. Stolley expects that this process will be incremental and will take between 6 to 12 months to complete, and will result in better case management from their office.”  I completely support these changes, but can’t help feeling a little pessimistic as well.  Any attorney that practice at the L.A. Immigration Court knows that there are a few rotten ACCs, which I’m sure is also true for most of the Immigration Courts across the country.  If appearing before a certain Immigration Judge means seeing that rotten ACC, life could truly start to suck, especially if the Judge is rotten too.  I can see the wrong combination of ACCs and Judge making respondents simply move out of the L.A. Immigration Court’s jurisdiction, or worse - abandoning their case and going home.  Conversely, a good combination of ACCs and Judge could prove of great benefit to some respondents, so I suppose that any potential problems could cut either way.  One more possible issue – the more that a Judge sees certain ACCs, the more that Judge might want to rule in their favor.  That assumes a lot about the workings of the judicial brain, but I think it’s only natural to rule for someone that’s in your courtroom everyday, versus someone that’s only in there on a rotating basis, at least if the issue is a close call.

Although problems might arise, Mr. Stolley’s changes for the L.A. Office of Chief Counsel should be more than welcomed.  They will improve the experience of representing non-citizens befor the Immigration Court, creating a much needed streamlining for everyone involved.

The Associated Press released an interesting blurb yesterday about alleged misdeeds by several ICE Agents in the course of their duties.  Documents that the AP obtained allege that one agent ran an internet pornography business and had an “improper relationship” with an informant, another allowed an informant to smuggle a group of illegal immigrants into the United States, one apparently had sexual relations with a witness in a marriage fraud investigation, and a fourth ”failed ‘to report murders….to her supervisor.’”  What is going on here?  How did ICE hire such a bungling bunch of agents?  The AP’s article didn’t mention the extent of the misconduct in ICE, but if the above stories are any indication ICE needs to seriously improve its oversight and training of agents as soon as possible.  ICE has a tremendous amount of power over people’s lives, and the least we can ask is that it exercises its power within the boundaries of the law.

Today’s L.A. Times had an interesting article about the imminent deportation of the wife of an Iraq War Veteran.  Jack Barrios’s wife Frances came to the United States with her parents at the age of 6 from Guatemala, entering the country illegally.  Fast forward almost two decades – Frances is now married to a U.S. Citizen with two U.S.-born children.  She is also in the middle of deportation proceedings, and is applying for Cancellation of Removal in Immigration Court.  Complicating matters somewhat is the fact that Jack came back from Iraq with some severe emotional problems, works two jobs, and doesn’t seem able to function very well without his wife around.  Let’s put aside the merits of Frances’s Cancellation case (which look pretty good to me) – should the spouses of military personnel that saw combat in Iraq and Afghanistan receive special immigration benefits?  This is apparently a problem affecting hundreds of military families, so much so that Rep. Zoe Lofgren of San Jose, California, introduced a bill on this issue last year, and might introduce something similar as part of Congress’s Comprehensive Immigration Reform effort next year.

I find it funny that the Times’ article said that the American Legion spoke out against Lofgren’s bill, but that Iraq and Afghanistan Veterans of America supported it.  The American Legions’ attitude was perhaps expressed by Rep. Steve King of Iowa, who said that “our soldiers fight and, in some cases, give their lives to preserve the rule of law.  It seems ironic indeed that some would propose to disregard the rule of law just as another reward or inducement to serve our country.”  Rep. King’s attitude shows a remarkable lack of understanding about how some people become “illegal” in this country, equating the breaking of a particular law with some presumed mal-intent.  People become illegal for a wide variety of reasons.  A criminal conviction, even for something as innocuous as shoplifting, can render a legal immigrant deportable.  People come to the United States as young children, and sometimes don’t even know that they’re illegally in the country until several years later.  People enter on a visa, think that the dates on their visa, rather than the dates on the white I-94 card stapled into their passports, control the length of their stay in the U.S., and stay beyond the time authorized.  Immigration is far too complex for blanket generalizations about ”lawbreakers” versus the “law abiders,” and it’s scary that some members of Congress don’t understand that.

Frances Barrios is in the United States illegally, but came when she was a child, built her life in this country, and now has three immediate relatives that are U.S. Citizens.  Her husband derserves to have her by his side as he recovers from his experiences in Iraq, as do countless other American soldiers in similar situations.  Any law would have to exclude certain classes of spouses – such as those with serious criminal convictions – and proving a bona fide marriage should also be a must (I’m afraid to think of the marriage fraud that would happen if someone that entered the country illegally could adjust their status by simply marrying a war veteran).  With the proper precautions, this is a law that can and should be passed as soon as possible.

Due to a trip to Las Vegas tomorrow, I won’t be posting anything until Monday, October 26th.  Please check back then, though – I promise some good new stuff.  Maybe a gambling-themed post, depending on how I do at the Poker tables this weekend.

Franz Kafka would have undoubtedly been inspired by events involving two non-citizens and a local prosecutor in Philadelphia.  The case of Julio Maldonado and Luis Calderon is especially frustrating because they were convicted of crimes that render them removable after trying to defend themselves against a rascist drunken mob in North Philadelphia.  An article in yesterday’s Philadelphia Tribune explains that a mob – that, incidentally, initially called the pair a notorious epithet for blacks, and changed to anti-Latino epithets only after Maldonado and Calderon explained that they were, in fact, not black – chased after the pair, throwing bottles and later attacking them.  One member of the mob, 18-year-old Christian Saladino, collapsed during the course of the attack, became comatose, and later died.  Maldonado and Calderon were initially charged with assault (read the article for details on why), and later, when Saladino died, with murder. 

The most frustating aspect of this case: there is apparently strong medical evidence that young Mr. Saladino never died from any blows he might have received from Maldonado and Calderon.  Despite this potentially exculpatory evidence, Prosecutor Seth Williams seemed intent on convicting the pair for assault and murder, and succeeded with the assault charge.  Williams actually scored a two-for-one deal, as the pair instantly became removable from the United States as well – at least after Congress passed the much-hated Illegal Immigration Reform and Immigrant Responsibility Act in 1996.  Since Mr. Maldonado and Mr. Calderon also refused to sign their (presumably) Notices to Appear, they have remained in immigration custody for the past four years, doing all they can to remain in the U.S. by fighting both the criminal justice system and immigration authorities.  Their attorneys are currently petitioning the Governor of Pennsylvania for full pardons, and are asking DHS for Stays of Removal as well. 

If everything in the Tribune’s article is true, I hope that Mr. Maldonado and Mr. Calderon succeed – but pardons are not an easy thing to come by in any state, and the odds of success in Pennsylvania can’t be very high.  Unfortunately, anything short of a pardon, a retroactive change in federal law, or some massive post-conviction relief will not stop deportation in this truly sad case.

Due to an unanticipated high volume of work, postings will resume on Thursday, October 22nd.  Sorry – immigration is a beast, and rests for no one.  I promise that I’ll have some good stuff to post once I get back.

There’s been a lot of media buzz over the past few days about Target’s “illegal alien” costume, shown here:

Immigrant groups are all outraged that Target could be so insensitive to the undocumented.  My response: puh-leeease, don’t take yourselves so seriously.  This costume might not be in the best taste, but it gently pokes fun of a situation that can and should be lightened up a little.  At the risk of reading into the illegal alien too much, I can even see it being a subtle satire on the U.S. government’s immigration policies.  I see it now – an extraterrestrial life form finally visits Earth, lands somewhere in the U.S., and ICE comes and arrests it for entering the country illegally.  The alien protests: “I bring you peace!  We want to give you some of our advanced technology.”  “Sorry, Mr. Alien,” ICE responds, “you can go and apply for consular processing on your home planet, but you’ll need an approved waiver before we’ll let you land in the United States again.”

If that’s not comedy, I don’t know what is.

Nope, the title of this post is no joke.  A West Covina immigration attorney, Kelly Einstein Darwin Giles, was arrested last Thursday for massive H-1B fraud, as were two of his business associates, Joseph Wai-Man Wu and his wife May Yin-Man Wu.  Attorney Giles created phony corporations to petition for H-1B visas for his clients, charging them between $6,000 to $50,000 per visa.  My initial disgust at seeing an attorney get $50,000 for an H-1B visa (WAY more than anyone should ever pay) was compounded when I heard how Mr. Giles hid his ill-gotten gains – at Rose Hills Cemetery in Whittier, California.  He laundered his illegal funds by buying cemetery plots, which apparently appreciate at a rate significantly above other forms of real estate. 

Wow…my jaw literally dropped when I heard this story on the local evening news, and I’m still in shock that a fellow immigration attorney could have (allegedly) been involved in such a slimy scheme.  Possibly the worst part – Mr. Giles was apparently caught on tape telling one of his clients to lie if ICE ever asked any questions.  It turns out that ICE had this client wear a wire, providing the government some pretty damaging evidence against Mr. Giles and his associates.  Allow me to give any attorneys reading this some free advice – DON’T tell your clients to lie to the government under any circumstances.  That’s just never a good idea!