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

Senators John Kerry (D-MA) and Richard Lugar (R-IN) introduced a bill today in Congress called the StartUp Visa Act of 2010, aimed at making the U.S. some badly-needed moolah and helping it remain at the forefront of the global economy.  I have to confess that I haven’t read the full text of the proposed bill – it is Friday afternoon, after all – but from the blurb I read on AILA’s Infonet, it looks as if qualified immigrant entrepreneurs that have secured at least $250,000 of start-up capital from a U.S. investor will be eligible for a two-year visa.  Apparently, over 160 venture capitalists from across the U.S. have endorsed this proposal.  I also endorse this proposal – not that it counts for much – but I have my doubts about its vaibility as a non-immigrant visa category.  I don’t know whether it’s a sign that I’ve been in the immigration business too long, or whether I’ve just had some horrendous cases over the years, but the first thing that popped into my mind when I read this was the horrible realization that USCIS is going to make an absolute mess of this visa category if it ever becomes law.  I can see prospective visa applicants getting letters from venture capital firms confirming that there will be a $250,000 investment, and USCIS denying the case for lack of evidence.  I can see regulations being promulgated regarding the sufficiency of the start-up capital, whether the entrepreneur’s business plan is viable, whether everyone involved in the business venture has the proper qualifications, and a myriad or other issues on which to base a denial.  There are already ways for foreign entrepreneurs to come to the United States and start businesses; the real problem here is that USCIS has developed a culture of “no,” especially when it comes to small businesses.  Any attempt to get more foreign talent and more foreign money into this country is great, and should be welcomed.  If Senators Kerry and Lugar really want the U.S. to remain competitive in this globalized world, though, they’ll work on systemically reforming the way that USCIS operates.        

ICE released a statement today saying that all detainees at its notorious Varick Federal Detention Facility in New York City would soon be transferred to the Hudson Federal Detention Facility.  I had written about Varick a couple of months ago, after a New York Times article revealed that the New York City Bar Association launched a major outreach effort following complaints from a detainee.  Varick had long been criticized as being more a gulag than a dentention facility, and a storm of negative media attention following the article in the Times made it clear that business as usual there would no longer cut it.  ICE also announced that concrete steps would be taken to make the lives of detainees relocated to Hudson much easier, since hearings are still apparently held at Varick even though many of the detainees will have been moved to Hudson.  These include facilitating face-to-face meetings with attorneys, including twice-weekly pro-bono sessions, making arrangements for attorney meetings before and after hearings, allowing family members to meet with detainees before and after hearings, and providing live and video orientation sessions to detainees, allowing Legal Aid to have greater access to them. 

All of these changes are positive, but ICE has a bad habit of saying one thing and doing something totally different in practice.  I’ll be interested to hear whether the detainees at Varick – which was always intended to be a temporary waystation on the way to a bigger and more permanent facility – actually receive the benefits that ICE is promising, although it’s rather odd calling constitutional due process rights a “benefit” in any context.  I don’t have much doubt that ICE will transfer all of the Varick detainees to Hudson around the summer of 2010 as it intends, but giving detainees a meaningful chance to obtain relief relief from deportation is a persistent, ongoing problem for the agency – one that it never shows much willingness to truly address.

Yes, I’ve been noticeably absent lately due to a suprisingly high volume of work.  I fully plan to be more attentive to my blogging responsibilities the rest of this week, though – and will do my best to continue posting at least one entry per day.

There was a great editorial in the L.A. Times on February 22nd regarding the American Bar Association’s recent criticisms of the Immigration Courts system (I especially like the “death penalty cases in traffic court” quote from Dana Marks, President of the National Association of Immigration Judges).  Instead of my usual paraphrasing and commenting, I’ll just reprint the editorial in its entireity.  It should speak for itself.

Our Overloaded Immigration Courts

The result of the government’s get-tough policies has been imperfect justice at best.

It sounds counterintuitive, but since the failure of comprehensive immigration reform in 2007, the prevailing wisdom in Washington has been that the way to earn public support for allowing this country’s approximately 11 million undocumented immigrants a path to citizenship is for the federal government to vigorously prosecute violations of immigration law. Tough enforcement, in other words, will convince Americans that reform is warranted.

To that end, the Obama administration picked up where its predecessor left off — adding miles of new fencing and hundreds of new agents to the border and deporting undocumented immigrants at a record-breaking pace. The volume is all the more notable given that fewer migrants are coming in illegally and that almost 1 million left voluntarily last year.

The result of the increased enforcement is a mountainous caseload overwhelming the nation’s immigration courts. (They are not courts in the usual sense, and do not belong to the judicial branch of government. Rather, judges are employees of the attorney general.) In 2008, for example, 231 judges completed an average of 1,200 proceedings each, and the numbers keep climbing. The work is “like holding death penalty cases in traffic court,” Dana L. Marks, an immigration judge in San Francisco and the president of the National Assn. of Immigration Judges, told the New York Times.

A recent report by the American Bar Assn. calls for making the court system independent of the Justice Department to reduce “public skepticism” and increase respect, and paints a harrowing picture in which final decisions are rushed, haphazard and inconsistent. At times the outcome of removal proceedings depends less on the facts of an immigrant’s case than on which judge hears the case, the report says. It calls for hiring 100 additional immigration judges as soon as possible, adding new training and requiring more written, reasoned decisions from judges.

Many of the recommendations in the report would require congressional approval. Others should be afforded careful consideration by the Department of Homeland Security. The ABA, for example, calls on DHS personnel to use prosecutorial discretion and stop clogging the system by hauling noncitizens into court needlessly even if they are entitled to remain and claim legal permanent resident status, and litigating cases after the facts make removal unlikely.

A comprehensive overhaul of the nation’s immigration laws is now securely on Washington’s back burner. That’s lamentable because the best way to ease the burden on the court system would be to see reform accomplished. But as the ABA’s report demonstrates, there are plenty of changes that should be made in the meantime.

Copyright © 2010, The Los Angeles Times

I saw this article in the New York Times last night about the Encalada family of West Babylon, New York.  The article details how immigration law tore apart of the lives of everyone in this family in different ways: a mother and wife lost her husband, a step-son became severely depressed, and a father and husband even lost his life, albeit at his own hand.  How exactly, you might ask, did immigration law destroy this family so thoroughly?  Segundo Encalada, an undocumented immigrant from Ecuador, married Elizabeth Drummond, a U.S. Citizen, and had three children with her.  Mr. Encalada had apparently entered without inspection, which required that he return to Ecuador in order to obtain permanent residence – for which he apparently qualified aside from his unlawful presence issues (he was most likely not grandfathered into Section 245(i), which would have allowed him to remain in the U.S. while he adjusted his status).  Unfortunately, a misunderstanding at a party led to his arrest, which in turn led to voluntary departure, which finally led to Mrs. Encalada making the long trip down to Ecuador to attend a green card interview at the U.S. Consulate in Guyaquil.  This is where the Encaladas’ story gets truly strange.  The U.S. Consulate denied Mrs. Encalada’s petition, saying it was a “marriage of convenience.”  I’m assuming that someone showed the Consular official copies of the birth certificates for the three children the couple had together.  If that’s the case, how on earth could this be a “marriage of convenience?”  Worse, yet, the Consulate apparently had no record of the couple ever being interviewed – and only became concerned whether or not there had actually been an interview (1) after a Congressman from New York became involved and (2) after Mr. Encalada committed suicide by drinking poison.

This story is tragic, but I think even more so because of the bureaucratic nightmare that most U.S. Embassies and Consulates have become over the years.  Attorneys are seldom ever able to talk to anyone at a U.S. consular post. Visa denials are essentially unchallengeable, and it usually takes getting a Member of Congress involved to solve even the simplest of problems.  U.S. consular posts have become virtual black holes where immigration cases go to die, rather than what they should be: the public image of the United States abroad.  The State Department is doing no one any favors by making it impossible for a wife to bring her husband back home with her, and needs to get its act together before stories such as the Encaladas’ become the norm, rather than a subject for an article in the New York Times.

I saw this in an opinion published today by the 9th Circuit Court of Appeals – Ocegueda Nunez v. Holder – regarding the age-old question: what exactly is “a crime involving moral turpitude?”

“Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct.  Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. There is simply no overall agreement on many issues of morality in contemporary society.”

Nice.  The 9th Circuit has no clue what moral turpitude is.  Judge Reinhardt goes on to write that “[w]e have previously discussed at some length the inherent ambiguity of the phrase “moral turpitude” and the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.  See, e.g., Marmolejo-Campos, 558 F.3d at 909 (” ‘[M]oral turpitude’ is perhaps the quintessential example of an ambiguous phrase.”); id. at 921(Berzon, J., dissenting) (“[T]he BIA’s precedential case law regarding the meaning of the phrase ‘crime involving moral turpitude’ . . . is a mess of conflicting authority.”)…”

Wow – absolutely NO ONE knows how to define moral turpitude.  The Court concludes that the only real way to decide whether a crime involves moral turpitude is to compare it to crimes that have already been found to involve turpitudinous conduct – and yes, that really is a word.  With this as its test, the Court held that California Penal Code § 314, which criminalizes indecent exposure, is not categorically a crime involving moral turpitude because some of the conduct it punishes might lie outside the generic definition of moral turpitude.

Aside from providing some nice quotations, this case nicely illustrates just how big a headache statutory language can cause the legal system.  This ambiguity could have been intentional – an example of Congress having something in mind, but not knowing exactly how to define it, and dumping the problem on the courts instead – but it could just as likely have been poor legislating on the part of whoever came up with “moral turpitude” as the definition for “bad crimes” in immigration law.  I would have Congress scrap moral turpitude as a legal standard altogether, but is there even another way to define the class of crimes Congress intended to identify in this situation?  Moral turpitude might unfortunately be as good as it gets.  I guess that not every concept in law corresponds with a clear, unambiguous definition – and that we have to resign ourselves sometimes to sorting out those “messes of conflicting authority” Judge Reinhardt was talking about.

A report released by the Department of Homeland Security’s Office of Immigration Statistics found that the number of undocumented immigrants shrunk by about 800,000 from January 2008 to January 2009.  The estimated number of undocumented immigrants in January 2008 was 11.6 million (the number still cited by most pundits), and the number in January 2009 was 10.8 million.  The report also found that the undocumented population grew by a whopping 27% from 2000 to 2009, that about 63% of the undocumented population entered the United States before 2000, and that about 62% of all undocumented immigrants are Mexican nationals.

Assuming that the figures in the report are all more or less accurate – and that’s a big assumption - I can see some interesting policy implications.  First, the vast majority of the undocumented population is here for economic reasons.  When the U.S. economy is slow, which was the case in most of 2008 and in 2009, the undocumented population shrinks.  Conversely, when the economy grows, the number of undocumented immigrants should grow along with it.  Second, a majority of the undocumented population – even though they come here for economic reasons - re-establish their lives in the U.S., and are not likely to leave if the economy shrinks.  This is probably why the number of undocumented immigrants shrunk by only 800,000 despite the worst economic slowdown since the Great Depression.  I also think it’s significant that so many people that entered prior to 2000 have remained in the country.  1997, of course, was the year that the Illegal Immigrant Responsibility and Immigration Reform Act (IIRIRA) passed, which established the 3- and 10-year bars for people that have 6 months and one year of unlawful presence, respectively.  That means that people that have more than a year of unlawful presence – especially if they have established lives in the U.S. – will be less likely to leave the country, since doing so will trigger a bar that could prevent their return for up to 10 years.  The large number of undocumented immigrants that have remained in the U.S. since 2000 might solely be a function of varying migration levels, changes in law, ability to obtain legal status, etc., but I bet that IIRIRA’s bars figure into the mix significantly.  Finally, it’s telling that 62% of all undocumented immigrants are Mexican.  This reflects both the ease with which Mexicans can access the Southern border and the desperate economic circumstances of so many of Mexico’s citizens.  I’ve always said that the best way to reduce illegal immigration from Mexico is to improve Mexico’s economy.  Although the U.S. obviously cannot change Mexico overnight, and has absolutely no obligation to do so, taking concrete steps to boost Mexico economically will undoubtedly reduce illegal immigration, which is a policy goal on which I think everyone in this country can agree.

I’ve been dealing with abandonment issues a lot lately.  No, I’m not referring to having been left on a stranger’s doorstep when I was 5, rather to abandoning one’s permanent residence, which can happen when a Lawful Permanent Resident (“LPR”) spends too much time outside the United States.  The law requires that LPRs intend to be domiciled in the United States.  After all, a green card is a permanent visa to remain in the United States indefinitely – and not a free pass into the country whenever someone that lives abroad feels like using it.  LPRs that spend more than a year abroad are usually found to have abandoned their permanent residence.  Conversely, LPRs that live abroad but re-enter the U.S. every few months could also be found to have abandoned their residence, since these trips back could be too infrequent or of too transitory a nature.  One possible solution to this problem: Permanent Residents that are planning to remain abroad for extended periods of time can apply for a re-entry permit, which allows them to remain outside the country for up to two years for a valid reason.  LPRs that have re-entry permits would still need to maintain sufficient ties to the United States while they’re abroad, though, or Immigration can still find abandonment depsite possession of a valid permit.

LPRs – you’ve worked way too hard, and gone through way too much crap, to get your green card – why risk losing it afterwards?  The best insurance against abandonment is to naturalize as soon as possible.  If you do not want to naturalize for whatever reason – such as possibly losing your former nationality – then plan to spend as much time as possible inside the United States.  And if you ever need to travel extensively, speak with a qualified attorney about the best strategy for maintaining your residence despite the need to travel.  Abandonment is usually avoidable – don’t be one of the unfortunate few that has to give up their right to be in this country simply because of some unusually long trips abroad.

I just found out today that the EOIR publishes a monthly immigration law newsletter called the Immigration Law Advisor.  This might be one of the EOIR’s best-kept secrets – I had no clue that it’s been published for a full three years already – and makes me wonder what other surprises the EOIR is hiding behind its otherwise unassuming bureaucratic facade.  The Immigration Law Advisor covers recent developments in immigration litigation, trends in adjudications, and changes in statutory law that impact immigrants and the practice of immigration law, and is definitely worth checking out – just click here for the complete archive.

USCIS loves to change its forms all the time.  As a practitioner, you never know if and when a form you’ve used for years will suddenly become obsolete.  USCIS loves to trick people by changing forms, and then either accepting prior versions despite subsequent changes, or rejecting them outright, even if its changes are nearly impossible to find.  And woe to the attorney that doesn’t know about a changed form that will no longer be accepted; there’s no easier way for a client to lose confidence in your legal abilities, short of maybe missing a deadline.  Well, USCIS has struck again, changing forms I-751, I-601, I-140, I-129S, and N-470, and indicating that prior versions of these forms will no longer be accepted.  After AILA complained, USCIS conceded that old I-601s will be accepted through February 27, 2010, but has yet to comment on whether prior versions of the other forms will still be accepted during a grace period.  For now, make sure that your forms are the latest version, as indicated in their lower-right corner; a quick date check can mean the difference between a rejected case and potentially missed deadline and a smooth application process.