On December 3, 2013, President Obama’s uncle, Onyango Obama, was allowed to become a permanent resident of the United States. News reports, as nearly always happens, are not entirely accurate in their explanation of events and the law (there is an old adage that the more a reader knows about a topic, the more a newspaper account is wrong), I will read between the lines and try to lay out what happened.
It appears Mr. Obama (the uncle), came to the United States in 1963 as a student. Once he stopped attending school, his student status lapsed and he became subject to removal. In the 1980′s he sought to remain in the United States through applying for permanent residence, but the application was denied because he lied on his forms about working – presumably he wrote that he did not work when he did. It is not said exactly what he applied for. As there is no mention of his having a spouse or children, it was probably not through marriage to a U.S. citizen or an adult (age 21 or older) United States citizen child that he sought adjustment of status. As the big legalization/amnesty program began in the late 1980′s, it is possible it was through amnesty that he sought residence and was denied for lying on the forms. If this was what happened, it was a pretty dumb move lying on the forms as among the requirements for the amnesty he sought was that he had been in the United States from before January 1, 1982, and that he be illegal. Covering up illegality would have been unnecessary or even counter-productive to getting granted amnesty. Read more »
Government agencies. There are lots of them. Their functions overlap. People uninvolved from day to day with the interaction of government agencies and learn about them from the media are probably most aware of the interactivity of the intelligence agencies. A fault found after 9-11 was the failure of the many intelligence agencies and law enforcement agencies with intelligence functions to interact.
Immigration law execution and enforcement are controlled by several agencies in different departments. There is the Department of State which issues visas abroad among other immigration functions, The Department of Homeland Security which is in charge of U.S. Citizenship and Immigration Services (USCIS), which issues immigration benefits in the United States, Immigration and Customs Enforcement (ICE), which enforces immigration laws within the United States and runs its own benefit programs, Customs and Border Protection (CBP) which polices the border and inland checkpoints and provides some benefits, the Department of Justice which is in charge of the immigration courts and the Board of Immigration Appeals (BIA) and some employment enforcement and adjudicatory functions, and the Department of Labor which provides benefits and enforcement in the workplace.
All these agencies must interact from time to time and obviously must strive not to overlap functions or step on each others toes, but like too many cooks, unwanted jostling occurs and the broth of justice could be spoiled. As a result an individual customer, people or companies (corporations are customers, my friend) can find themselves in dispute with several government agencies at once or can have one agency agreeing with him or her or it and another in opposition.
When people are in dispute with the government, people are wise, as we know from Judge Wapner (please don’t try to learn anything from Judge Judy), not to take the law into their own hands, but rather to seek resolution in court. My thesis today is that when a person is in dispute with the government and the different agencies are in dispute, the courts are indifferent to the agencies’ restraints in resolving the dispute and leave it to the agencies to resolve their turf wars. I provide three examples. Read more »
When I first started practicing immigration law, I would advise clients who were not U.S. citizens or permanent residents not to fly into the United States at Detroit. The officers, I was told, were treating people unfairly though I had no first-hand knowledge of problems there. Then, one day, I got a call from a gentleman who had come to see me about an investor visa, an E-2, to invest in an enterprise in La Jolla, California. He told me that he was going back to his home in Old Europe (he did not say Old Europe, I am paraphrasing) to straighten out his affairs and then would be back in the U.S. to start his business and his visa application. He was at the airport in Detroit, found inadmissible, and was being returned to his home country. He apparently did not parse the difference between E-2 intent to reside in the U.S. with the permanent resident intent to reside in the U.S. adequately, which rendered him inadmissible.1 Then, I stopped hearing about Detroit.
Now, I am hearing about Houston. Three times in one week, people came in with horror stories from Houston. A young man turned around after being falsely accused of immigration violations during his last visit, a young man detained for three hours and accused of every crime under the sun and then released after his luggage was fine-combed. A foreign spouse turned around while coming to visit the spouse’s permanent resident spouse who petitioned for the foreign spouse. The petition would not be current until long after the foreign spouse had to return home (and the permanent resident spouse was not remotely eligible to naturalize).2
Report your own Houston horror story in the comments section.3 Maybe it will catch someone’s eye. Posted November 24, 2013.
1 A person who has an “immigrant intent” entering as a nonimmigrant ordinarily cannot enter the United States. INA § 214(b). Yes, they can read your mind.
2 People immigrating as spouses of permanent residents must be in lawful status to adjust their status to permanent resident. Thus, if this lady overstayed her period of stay, she could not become a permanent resident here, would have to leave, and could trigger a bar to coming back by leaving. Spouses of citizens can adjust status even if they are not in status – overstayed their visas (as long as they entered the country with inspection). If her spouse was imminently going to become a citizen, then she could overstay and soon thereafter apply for permanent residence. As noted, this was not the case.
3 I guess we are casting stones at the CBP operation in Houston. I realize it is dangerous to cast stones at CBP as they shoot back.
I have blogged many times on visa waiver entrants to the United States and their ability to adjust status. Case law had provided some bad interpretations of the ability to adjust status, particularly for people who overstay their visa waiver admission period of stay — ninety days. In a memo dated November 14, 2013, USCIS finally announced its position about visa waiver adjustments. Essentially:
1. Visa waiver entrants can adjust status as immediate relatives (parents, spouses, children under 21 of citizens) even if they overstay their period of admission;
2. Visa waiver entrants who are apprehended by ICE and ordered removed cannot adjust status unless ICE vacates the removal order;
3. Visa waiver entrants whose adjustments are denied cannot seek review in immigration court, except,
4. Ninth Circuit visa waiver entrants who file their adjustments before their period of stay ends can seek review in immigration court of a denial of their adjustment applications;
5. Visa waiver applicants who are denied admission to the United States but indicate that they are seeking asylum and are released from detention on parole, can file for adjustment of status, but USCIS will consider their mode of entry a negative factor that weighs against granting adjustment of status as a matter of USCIS’s discretion.
Nothing in the memo indicates that a visa waiver overstay should be in any worse position as far as receiving permanent residence status as a matter of discretion than a normal adjustment of status applicant.
So, visa waiver entrants who seek to adjust status, here is my advice — do it but don’t get caught by ICE before you become a permanent resident. Posted November 19, 2013.