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I went to USCIS’s L.A. District Office yesterday, and was surprised to see the head of the InfoPass Unit giving a tour of the facilities to a group of Haitian immigrants.  I have to really commend USCIS for reaching out to the Haitian community in the United States so completely and effectively.  This is a lesson to all of us, even the ultra-jaded like me: the government can do the right thing when it wants to.  The private bar working with the government – here, USCIS – can make truly great things happen, and we can and should always strive to demand better from both sides of this equation.

You might realize that this has been a rather sparse week for postings.  That’s actually a good thing – I’ve been busy!  I’ll definitely have more to say next week, so make sure to check back then.

I found a posting on AILA’s InfoNet today about how to complain to USCIS.  Customers – i.e., anyone who needs to contact USCIS – can write to:

Assistant Chief
Internal Security and Investigative Operations
USCIS, 111 Massachusetts Avenue, NW
Suite 7000
Washington, DC 20529

Customers can also email USCIS-COMPLAINT@dhs.gov, which is probably a more efficient alternative.  I have to wonder whether USCIS really wants to have a complaints department.  I seriously doubt that any government employee can work hard enough to handle all the complaints that should be flowing to USCIS.  I also have to wonder whether complaining will actually do anything.  I don’t think it will alter the outcome of a particular case, no matter how justified the complaint might be, but I guess I can see USCIS changing the way it interacts with customers in response to a sufficient number of complaints about a very specific problem.  I mean VERY specific – like, ”please don’t send me someone else’s receipt notice.”  Things that USCIS can easily do without too much effort.  I suppose I’m getting ahead of myself, though – let’s see how this complaint thingee works, and go from there.

Another wedding, another trip to the Bay Area – I’ll be back with more immigration stories and updates on Tuesday.

The United States Supreme Court ruled in favor of an Albanian immigrant yesterday when it held that federal courts have the ability to review decisions on Motions to Reopen removal cases.  The issue in Kucana v. Holder was whether the Attorney General could proscribe federal court review of Motions to Reopen – more specifically, whether this divestment fell within a provision of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that provides that “no court will have jurisdiction to review any action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General.”  In other words, did IIRIRA give the Attorney General the authority to cut off federal review of these cases, or did the Attorney General exceed Congress’s grant of authority by doing so?  When I saw that Justice Ginsburgh delivered the Court’s opinion, I pretty much knew that it was that latter.  The Court held that the Attorney General could only proscribe judicial review for decisions that IIRIRA specifically states are discretionary, and not for decisions that the Attorney General makes discretionary via Department of Justice regulations.  The Court used the plain language of the statute to arrive at its conclusion, coupled with a general rule to avoid cutting off judicial review unless there is clear Congressional intent to do so. 

I think that this case was a real no-brainer - and the Justices apparently did too, since their decision was essentially unanimous (only Justice Alito wrote a separate opinion, and he concurred in the judgment).  The Department of Justice cannot simply cut off review of an entire class of petitions simply because it says that the decision is discretionary and therefore IIRIRA applies.  There can be no meaningful due process if one branch of the government can make decisions final whenever it wants, especially when Congress – which actually is charged with making laws – has already spelled out that branch’s authority on the matter.  This case should be a reminder to the Departments of Justice and Homeland Security that its regulations need to be supported by the laws that Congress passes, and that their discretion actually does have limits.  For a link to the case, click here.

I like Tavis Smiley’s show.  I was watching it about an hour ago (yes, I’m home, because there’s a monsoon in Los Angeles right now) and the topic of conversation was Haiti.  Tavis’s guest was Nicole Lee, President of the TransAfrica Forum, a Washington-based advocacy group for Africa and African diaspora issues.  Ms. Lee was very knowledgeable about Haitian affairs – she had worked for a Human Rights Organization in Haiti for several years – and was also well-versed with the history of U.S. immigration law as it relates to Haitians.  During her conversation with Tavis, Ms. Lee commended DHS for granting Haitians in the U.S. as of January 12th TPS, but criticized Janet Napolitano for saying that any Haitians caught entering the U.S. illegally after the 12th would be returned to Haiti.  She also said that any immigration reform this year should include special provisions for Haiti, just as there are for Cubans.

Ms. Lee’s statements made me think.  Do we have an obligation to take in any Haitians that try to enter the U.S. illegally now?  I think that a strong argument can be made that the United States has a special obligation to help Haiti in light of its long-standing relationship with the island nation, but does that obligation extend to taking in every Haitian that happens to reach its shores?  Before I go further, I should mention that such an arrangement currently does exist for Cuban nationals.  Any cuban that physically sets foot on U.S. soil is usually entitled to a provisional immigration status, and is eligible to apply for adjustment of status a year later.  If you think that’s incredibly genersous of us, don’t be fooled; Congress passed the Cuban Adjustment Act, which created these immigration benefits for Cubans, strictly as a political message to Fidel Castro.  It was as if Congress told Castro directly, “Your country is crap.  It’s such crap that we’ll give any of your citizens status in the United States, since sending them back to you would make no sense at all.”  The rationale behind the Cuban Adjustment Act was political in nature.  There are political reasons for Cubans to want to leave Cuba for the United States, and we, as a nation, supposedly support those reasons, since they speak to who we are as a democratic, captialist nation.  It doesn’t matter if an individual Cuban comes here because he wants to lay on Miami Beach and drink Cuba Libres all day; it’s sufficient that his actions have a presumed political dimension.

Haiti is a completely different story.  Congress did pass the Haiti Refugee Immigrant Fairness Act in 1998, but that only allowed Haitians already in the country and their derivatives to adjust status.  Haitians entering the United States illegally were still removed to Haiti, irrespective of conditions on the ground in that country.  Haiti has always purported to be a democracy, despite long periods of instability and despotic rule over the past two centuries, and the U.S. lacked a political need to pass a more comprehensive immigration law targeting Haitians.  The problem with such a position is that the United States really does have a special connection to Haiti.  The U.S. occupied Haiti for a good chunk of the 20th century, and has intervened in Haitian affairs many other times over the past century, perhaps most dramatically when President Bill Clinton facilitated deposed President Jean-Bertrand Aristide’s return to power in 1994. 

Yet does this history of interference and occupation require that the United States accept Haitians fleeing their earthquake-ravaged country?  The answer unfortunately has to be no.  We can’t absorb every person from every country that experiences a natural catastrophe.  We can and should send supplies, rescue workers, support personnel, etc., and we can and should help nationals of that country already in the U.S., but making the United States an extension of Haiti for immigration purposes merely because we have a special connection eviscerates the very point of U.S. immigration law: maintaining sovereignty over the nation’s borders and territory.  I completely believe that this earthquake is a wake-up call for the U.S. to actively assist Haiti in economic development and good governance practices, which will hopefully lead to better lives for all Haitians one day – but we need to focus on rebuilding a country, and not relocating its populace to the United States.  In that same vein, I don’t believe that the Cuban Adjustment Act is good law anymore.  Fidel is gone.  The Cold War is over.  I’m sure that plenty of Cubans would love to be in the U.S., but the same logic applies – we can institute policies designed to encourage a more capitalist, friendlier Cuba, but we shouldn’t create a right to U.S. residence just because a national of a country whose leader we dislike happens to set foot on U.S. soil.

USCIS issued an internal memo on Friday – but released it today, though - describing the various benefits it plans to extend to Haitians in addition to TPS.  The list is truly impressive, covering everything from favorable discretion on B-1/B-2 extensions to humanitarian parole, automatic advance parole extensions, and emergency processing for several types of immigration benefits.  Here’s a list of the various benefits:

A. USCIS will use its discretion favorably when considering applications for extension or change of status for Haitian nationals.

B. USCIS District Offices will reparole Haitians previously paroled into the United States.

C. All Advance Parole documents for Haitian beneficiaries that expire between January 12, 2010 and March 12, 2010 are automatically extended until March 12, 2010

D. Haitian F-1 students that currently do not qualify for employment authorization can now apply for work permits.

E. Expedited processing for Advance Parole requests and petitions for minor family members where the visa number is current.

F. Granting Permanent Residents currently in Haiti “letters of boarding,” which would allow them to board a commercial airplane without their green cards.

G. Expedited processing for work permits for person from Haiti on Orders of Supervision (i.e., where ICE was not able to remove them for whatever reason)

H. USCIS will consider not denying a case for abandonment in which an RFE could not be answered because documents were located in Haiti

I. Humanitarian parole for Haitian children being adopted by American families, and exploring other classes of Haitians – most probably children – that can also qualify for humanitarian parole.

Take together, these measures are truly extraordinary, and will undoubtedly make the lives of countless Haitians in the United States and in Haiti that much easier.  I’m interested to see what role the United States will play in Haiti after this initial crisis-stage is over, and whether that role will lead to additional changes in immigration law as it relates to Haitians.  Haiti will need an incredible amount of reconstruction, security, and general infrastructure assistance for some time to come, and the United States, United Nations, and other nations will have to play a significant role in these efforts for Haiti to ever have a chance at normalcy again – although in Haiti, ”normalcy” has to be understood in a relative sense.  Will the U.S.’s presumed new role in Haitian affairs translate into new immigration benefits?  We can only wait and see.

USCIS is planning to publish the notice in the Federal Register this week that will officially allow Haitians in the United States to apply for TPS.  The agency already published a set of Questions & Answers describing s0me TPS basics, and there are few surprises – the Haitian TPS grant almost mirrors previous TPS designations for Honduras, Nicaragua, Guatemala, Sudan, and Somalia.  TPS Applications will officially be accepted after Federal Register publication, which will also contain information on where and h0w to apply. 

I like how USCIS is keeping the application fee for first-time TPS applicants at $50, but wish that the fee for the initial I-765 was also lowered, or even waived altogether.  Although many of the Haitians currently in the United States probably have some money, I bet they’ll want to send every possible dollar to relatives affected by the earthquake.  I think it would have nice if USCIS absorbed some of the cost of these TPS applications – they could consider it their donation to Haitian relief efforts – but I don’t want to get greedy now.  I’m happy that USCIS finally did the right thing for a change, and just hope that this benevolent streak continues.

Just a quick post before the weekend – President Obama and DHS Secretary Napolitano granted all Haitians in the United States as of Tuesday Temporary Protective Status (TPS), allowing them to remain in the United States for presumably 18 months.  TPS-grantees are allowed to live and work in the U.S. as long as Haiti carries TPS designation, and will not be removed as long as the grant remains in effect.  I’m proud that our government acted so quickly to protect all Haitians currently in the United States, regardless of immigration status.  This was the right thing to do, and the right time to do it.

There was an interesting post on AILA’s Infonet today about how newborns can obtain Social Security Numbers (SSNs).  I always thought that if a child is born in the U.S., there’s no question that he or she can get an SSN anytime.  According to a AILA’s Social Security Liaison, that’s only partly true.  While any baby born in the U.S. is automatically a citizen and entitled to an SSN, the timing of the request and the identity of the requester can impact that baby’s ability to actually get his number.  If the mother elects Enumeration at Birth – a procedure in which an SSN is requested and issued through the hospital – there is no need to verify immigration status.  If the baby’s parents wait to request an SSN, however, they need to present proof of legal status in the U.S., an impossibility for any undocumented parent.  There are fortunately two exceptions to this rule: (1) another relative that has legal status can apply on behalf of the child, or (2) the child can apply himself, when he is old enough to sign his name.  The Social Security Administration’s answer to this question makes it clear that there is no age-limit to this “old enough to sign” requirement, which I find pretty amusing.  I can just see it now – a really smart 3-year-old walks into the Social Security Office, signs his name in the right spot, and gets his SSN.  Stranger things have happened, I guess.

The bottom line is that Enumeration at Birth is the easiest and best way to get a child born in the United States his SSN quickly and painlessly.  Smart parents should be able to leave the hospital with both newborn and newborn’s SSN in hand, avoiding a lot of future aggravation in the process.

Well color me green – ICE actually is doing something nice for a change!  DHS Secretary Janet Napolitano and ICE Secretary John Morton announced today that they were stopping all removals to Haiti until further notice.  The announcement states that ICE is taking these steps “in response to the devastation caused by yesterday’s earthquake.”  Wow – compassion from ICE?  Who woulda thought? 

Although I’d like to believe that ICE is just being nice, the pessimist in me can’t help thinking that ICE couldn’t remove anyone to Haiti right now even if it tried.  With the country essentially non-functional in every possible way and the main international airport in Port-au-Prince closed to commercial air traffic, how would ICE get anyone inside the country?  And what sort of PR would that be ICE?  The bad press it has received lately from aliens dying in custody from untreated medical ailments would be nothing compared to the worse press it would receive from sending a Haitian national back to a country that has no food, water, power, and medical infrastructure, not to mention many places to sleep under a roof.  No – on balance, ICE did what was right for ICE, and the fact that it benefits Haitians about to be removed from the United States was merely incidental.  The optimist in me sees a kind act and takes it at face value, but the pessimist in me has to prevail today, since ICE did the only thing it could ever have done under these difficult circumstances.