I have a small law practice. A minuscule fraction of the cases that the San Diego USCIS district handles are my cases. When, in one week several mistakes come across my desk (not just my cases, but people coming to consult), I seriously wonder if the immigration laws are too complex for the agency to administer. That is not necessarily a dig at USCIS, but all bureaucracies that must handle laws that are updated all the time creating new policies and new definitions that the agencies must implement and then remember. That crazy little change in one corner of the law twelve years ago that required several memos to explain is still applicable today and an adjudicator should know about it even though there have been hundreds of little changes in hundreds of corners – and the same corner – that adjudicators also must know about that have been made since.
Just this week I have seen the following:
1. USCIS granted someone permanent residence and then rescinded it on its own motion, despite a section of law and a body of regulations and administrative decisions that make unilateral permanent residence rescission impossible. See, INA § 246.
2. USCIS decided that a person who entered in F-1 status accrued unlawful presence when he stopped going to school when unlawful presence is defined as overstaying a period of stay authorized by theAttorney General and students do not have such a period of stay. USCIS policy memos and manuals make this clear. See, INS § 212(a)(9)(B)(ii).
3. An adjustment of status was denied for an amnesty applicant because of committing two crimes of moral turpitude when under the program, unlike most other adjustment programs, a separate basis for considering criminal convictions and inadmissibility applies and two misdemeanors are not a disqualifier. See, INA 245A(a)(4)(B).
4. USCIS is not allowing a person to continue with applying for permanent residence based on the petition from a parent because the parent became a U.S. citizen, when the law allows for this not to cause a delay through an opt out provision, but USCIS has no policy or procedure to invoke the provision. See. INA § 204(k)(2) (mis-cited in correspondence from the State Department).
Here’s the mystery. Everyone knows the law is complex – not hard to understand like mathematics or quantum physics – just that there are wrinkles to nearly every little thing and they matter. Anyone can overlook something some time. The mystery is USCIS has no mechanisms to correct these things. While you or I might wish we had mechanisms to point out errors to us (Hey, you forgot to enter that check into your ledger! Hey, you forgot to deduct your donation to the Met from your taxes! Hey, you missed your exit and need to turn around!) USCIS, which has these mechanisms in the form of represented clients, does not take advantage of them. There are sometimes expensive reconsideration processes and sometimes expensive appeals processes, but USCIS is hugely resistant to processes like being able to call the person stepping on it or calling the agency’s lawyer and saying, “Hey, you and your agency are stepping on it.”
People who are unrepresented are screwed when the agency makes mistakes. They don’t know the law. They abide by decisions they think are coming from a dependable source. A good lawyer, on the other hand, can point out the mistake and cite to the law or regulation or policy being violated. A good agency would be happy to receive and act promptly on this information and learn from the mistakes. That’s what we need. Posted October 4, 2015.
An opportunity appears and you can bet someone is around to take advantage of it. USCIS acknowledged that the asylum program is hugely backlogged. It posted the filing dates of applications that are currently being processed at the Asylum Offices around the country. The Los Angeles Asylum Office is now processing asylum cases filed in August 2011. What this means is that a person who filed an asylum interview more than four years ago will just now get his interview.
Attorneys who practiced a decade or more ago may have encountered cases involving the law firm of Guevara and Quintanilla. This was a Los Angeles law office that promised work permits and social security numbers to undocumented people for a fee. What the firm would do is file fraudulent asylum applications for people. Under the law at the time, after filing, one was allowed to get a work permit and with the work permit, a social security number. The rationale was noble; people fleeing oppression and seeking the protection of the United States need to be able to support themselves while seeking asylum, a multi-year process back then. A work permit allowed the applicant to seek work legally. Guervera and Quintanilla did not forward correspondence from the government to these people. They would receive work permits and even renewals, but then would not receive correspondence regarding asylum interviews. When they failed to appear at their interviews, their cases were denied and referred to the Immigration Court. The court hearing notices were also not sent to these people and they ended up being ordered deported in absentia.
Perceiving that people were playing the system by making bogus asylum claims to get work permits and knowing that backlogs meant years of work permit issuance, Congress tightened up the system. Asylum interviews were to be handled in less than 180 days and an asylum seeker could not receive a work permit until is case was pending 180 days. Delays in a case caused by the applicant did not count toward the 180 days. Cases sent to the immigration court were also fast-tracked with a goal of completion before the 180 days. The bogus asylum claim to get a work permit game ended.
I got a call from someone last week asking about a friend (it’s always a friend) who is undocumented and has no means of legalizing his status – no relatives that could qualify him for an immigration benefit. A lawyer told him that for $5,000 he could get the person a work permit and social security number. He asked what I thought about this.
What we have is the resurrection of the Guevara and Quintanilla strategy. I told the caller that what the lawyer intends to do is file an asylum application for the person, wait a few months, and then file for a work permit. (Both applications, by the way, are free – an asylum application and an initial work permit.)
Is it wrong and illegal to apply for asylum without a valid claim? Yes. Is it wrong to file an asylum application when there is an arguable claim, but not a slam-dunk one? No. In fact, there was a time when immigration judges would encourage attorneys to file dubious asylum claims just to make sure a case was not litigated in piecemeal fashion.Will the person receive work permits for what may be four or five years? Yes. Will the person, if the case is denied by the Asylum Office, be able to renew the case in immigration court and be able to renew the work permit for two or more years because the immigration courts are backlogged? Yes. Will the person , if the case is denied in immigration court, then be able to renew the work permit for two or more years by appealing to the Board of Immigration Appeals because the BIA is backlogged? Yes. And then, if he loses at the BIA, could the applicant get a few years of work permit extensions by appealing to the Courts of Appeals because of backlogs there? Yes. One can argue that filing a dubious asylum application is unethical and possibly illegal. What one cannot argue is that it can lead to nearly a decade of employment authorization and safety from being deported.
The immigration system is under terrific pressure leading to unconscionable delays in case processing. These delays have unintended consequences which end up giving wrong incentives to people and causing more pressures on the system. Only if Congress is willing to fund the immigration system instead of complaining about it will backlogs drop and incentives to game the system become fewer and weaker. And those of us trying to earn an honest buck won’t feel like suckers. Posted September 27, 2015.
Here’s a tip for anyone filling out immigration forms. When answering the questions about whether you have ever done certain things, if you have, it is probably going to cause you problems. For example, when the State Department’s immigrant visa application form, the DS-260, asks:
Do you seek to engage in espionage, sabotage, export control violations, or any other illegal activity while in the United States?
expect that answering Yes will result in the denial of a visa.
Similarly, after answering scores of questions about being a Nazi or a Communist or supporting terrorism or recruiting child soldiers, when questions like this appears:
Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa? or
Have you ever been unlawfully present in the U.S. for more than one year or more than one year in the aggregate at any time during the last 10 years?
simple observation of the context of the questions should lead one to conclude that if he indeed did overstay the amount of time granted by an immigration official, it could mean problems.
In fact, the biggest laughs that people experience in my office is when we go over these questions on forms. Clients invariably ask, “Who would actually answer Yes to these questions?” The implication being, “Who would actually answer Yes to these questions and expect to get a visa?” The answer, John Oliver, from the Bailiwick of Jersey, in England, the home of our common law tradition and from at least the time of the Magna Carta the concept of the rule of law – that all people must obey the law.
Fox News reported on poor Mr. Oliver. Here’s what Mr. Oliver did:
He and his wife came to the United States under the Visa Waiver program. Readers of this blog know this is a program where people from a few favored nations (favored because their citizens have a low rate of overstaying visas in the United States) can enter the United States without visas. The rule is clear and people who fill out a form online before they come are told – if you overstay the 90 days, you will be subject to deportation. Here is the warning everyone applying for permission to come to the U.S. without a visa receives:
If upon application for admission to the United States at a port of entry you are admitted under the Visa Waiver Program (VWP) by a US Customs and Border Protection Officer, you may not accept unauthorized employment; or attend school; or represent the foreign information media during your visit under the program. You may not apply for: 1) a change of nonimmigrant status, 2) an extension of stay, or 3) adjustment of status to temporary or permanent resident, unless eligible under section 245(c)(4) of the Immigration and Nationality Act. Violation of these terms will subject you to REMOVAL.
After coming to the United States under the Visa Waiver program, he did one of the things you cannot do – overstay. He had an excuse, though. His sickly wife started dying. They came in October 2011 and she died in November 2012, so she started dying more than a year before she finished the process. It was not until a year after that that he finally left the United States.
According to the Fox article, Mr. Oliver worked tirelessly to obtain a green card, permanent residence status. This should not have been a huge problem as he was entitled to apply for permanent residence as the father of a United States citizen. The article indicates he began working on this shortly after he arrived, so it is quite astonishing that he could not get it done quickly. Perhaps Englishmen on the Isle of Jersey have difficulty parsing the language and instructions on forms of USCIS despite their being written in English or despite his considerable wealth. He is a retired corporate accountant) and his United States citizen son is an (early?) retired financial IT guy who retired from a major pharmaceutical company. The son is also a caring Conservative.
The article states that Mr. Oliver’s application to adjust status was denied by USCIS. The article does not say why? Could it be because he was a terrorist, an alien smuggler, a money launderer? A habitual drunkard? Old English white guys are just as capable of these things as younger, darker skinned people. The article does not say. What are we hiding here? Fox News, show us the loofah!
Then, Oliver, this modern incarnation of Clarence Darrow, after his denial, does he consult with an attorney to see if he was really ineligible for a green card? No, he gets infuriated at his denial and writes a letter to the President of the United States, doing what disgruntled old people do as entertainment after watching Matlock reruns — writing angry letters. And, to no one’s surprise, our Muslim, Atheist, Fascist, Communist, African-born, drug-taking, America-hating President does not personally intercede on his behalf – the poor, visa waiver overstaying (law breaking), I promise to stay 90 days and leave (promise breaking) foreigner.
Then what does this modern-day Albert Einstein do next? He storms off to Merry ol’ England and applies to come back to the United States from there. Note, he left in October 2013, nearly a year after his wife died and two years after he promised not to stay in the United States for more than 90 days. And, ignoring everything he read on forms or could read on the USCIS website and the Department of State website, if they were not written in the English language apparently undecipherable to people from the Channel Islands, he figured that his overstaying in the United States for nearly two years would be overlooked because, after all, he is old and English (the white kind of English, not one of those woggy or coloured kind) and his wife died.
And why not expect special consideration despite there being no legal justification? For one thing, the law about overstays is clear. If you overstay for a year and leave, then you cannot come back for ten years unless you can show extreme hardship to a U.S. citizen or permanent resident spouse or parent – relatives poor Mr. Oliver does not have. INA § 212(a)(9)(B). Obama did not write the law. The U.S. Consulate in London did not write the law. Congress wrote the law and that other Democratic president, the drug-smuggling, best-friend-killing Bill Clinton, signed it in 1996.
Mr. Oliver now wants someone to do something about it. He expects to be let back into the United States despite breaking the laws about overstaying his stay here – despite being warned of the consequences several times in several ways. Should anyone expect U.S. Consular authorities to issue visas to people patently ineligible for them if they are old enough and white enough? I mean, as the Fox article points out, if Obama lets in women and children make asylum claims because they face death in Latin America, rendered virtually uninhabitable because of U.S. supported drug wars, gangs made up of deportees from the United States, and despotic oligarchs supported by the U.S. military and giant plantation-owning conglomerates, as the United States must under U.S. statutes and international treaty commitments, or gives work permits to kids who were brought to the United States as children under existing legal authority and the respected concept that a prosecutor’s decision about initiating actions against individuals should not be assailed, certainly a Consulate can break the law for one old wealthy English white man.
Mr. Oliver is also enlisting the help of Senators Cory Booker and Bob Menendez as well as Congressman Scott Garrett to help. He should stick with Bob Menendez, a Latin-American anchor baby who allegedly knows how to break the law.
Every day people who “should” get visas don’t. People with minor criminal convictions in the distant past. People who made false claims to citizenship as teenagers. People whose parents took them in and out of the country as children. People with controversial tattoos. Civil servants from disfavored regimes. People who donated to the wrong charity. People who admitted to inhaling (or not inhaling) in college. Further, every day USCIS gives out bad advise through their unmonitored information systems where the least experienced officers explain a law of great complexity to the public.
Appalled at the treatment of Mr. Oliver? Then support the following changes to the law:
1. Estopp the government from enforcing laws if government functionaries give faulty advice;
2. End the 3 and 10 year bars of inadmissibility and the permanent bar for illegal entry after accruing unlawful presence;
3. Eliminate the bars to adjustment of status and change of status for visa waiver entrants;
4. Allow visa entrants to extend their statuses;
5. Allow for judicial review of Consular decisions;
6. Insist on monitoring and reporting on what Information Officers tell the public;
7. Reassess the criminal grounds and drug-use grounds of inadmissibility;
8. Get rid of the false-claim to U.S. citizenship unwaivable ground of inadmissibility;
9. Reduce the number of forms asking the same things over and over again;
10. Rationalize the adjustment of status of status and immigrant visa issuing processes.
If Fox News does not want to get behind these sensible reforms or to get behind fixing the immigration system overall, then it should stop their fussing over Mr. Oliver, a guy who failed to follow the rules or to seek help when he was over his head. The law applies to everyone – even angry, letter-writing , politically-connected, compassionately Conservative, Anglo-Saxon, old, white, male immigration law violators. Besides, one John Oliver in America is enough. Posted September 13, 2015.
The New York Times last week decided to help its readers understand the legal status of the flood of Syrian refugees pouring into Europe with an article, “Migrant or Refugee? There Is a Difference, With Legal Implications.” The short article, meant to straighten out misconceptions, perpetuates them. This would not be so bad if it were some barely-read fringe blogger writing from a remote [sunny, temperate] American corner somewhere, but this is the New York Times!
The article asks the question, who is a refugee? The writer’s answer begins with a definition of refugee:
The 1951 Refugee Convention, negotiated after World War II, defines a refugee as a person who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.”
Understandably, the writer addressing an international crisis taking place in Asia and Europe, provided a general, international definition of refugee as opposed to the American one, which is not much different. Our definition, found at INA § 101(a)(42), states:
The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, … For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
The last part, about forced sterilization, was added during the George H. W. Bush years, token of his desire, perhaps, to keep the cost of Chinese restaurant food low by guaranteeing a stream of cheap Chinese labor.
The two definitions amount to the same thing. In a nutshell, who is a refugee? A refugee is someone who is fleeing persecution on account of one or more of five grounds – his race, religion, nationality, social group, or political opinion. If you are fleeing persecution because of any other reason, you are not a refugee.
So, now New York Times writer, apply the definition to the facts. She asks, “Who is a refugee?” and answers, “Briefly, a refugee is person who has fled his or her country to escape war or persecution, and can prove it.” This answer does not match the definition she provided. “Merely” escaping war does not make one a refugee. Only escaping a country because of persecution on account of race, religion, nationality, social group, or political opinion makes one a refugee.
Further, as the U.S. Supreme Court has made clear in INS v. Elias-Zacarias, in 1992, the refugee has to prove the reason for the persecution and among the things he must prove is that he is being persecuted for one on the five grounds – race, religion, nationality, social group, or political opinion. Is fleeing war merely because one does not want to get hit by bombs or snipers bullets or chlorine gas or starvation fleeing on account of any of these five reasons? No, no, no, no, no.
Sitting on my desk right now is a government answer brief in a case where a client fled a civil war. The government’s position, made over and over in the brief is simple: “A fear of generalized violence and civil strife is insufficient to establish eligibility for asylum.” (Asylum, by the way is the status a person deemed a refugee accrues if determined to be a refugee while in the United States and otherwise eligible to be conferred that status). So why write that a person who escapes war is a refugee when it is not so? I’m asking. I don’t know why she wrote it, but I can guess.
My guess is that the writer has as common sense belief that civilized countries don’t send people back to other countries to face death and thus all that “race, religion, nationality, social group, or political opinion” rigamarole is just verbal baggage to cover a simple inquiry – will this person be killed if he is sent home. As nearly ways with immigration law, common sense gets you nowhere. The United States sends people back to countries where they face death if their deaths are not on account of race, religion, nationality, social group, or political opinion (unless they can prove they will be killed by the government or with the government’s acquiescence). The five grounds are the focus of a refugee determination, not a peripheral, ignorable matter. Whether you will be killed is not the dispositive issue.
Illustrative, in addition to Elias-Zacarias, is a 2013, Ninth Circuit case, Enriquez-Rivas v. Holder. The unspoken truth in that case is that Ms. Enriquez-Rivas, a woman who testified against a gang that killed her father in El Salvador, will be killed if she is returned to El Salvador. That, however, was not the concern of the case. In the 52 pages of opinions, concurrences, and dissents, not one sentence addresses her certain death. It is hardly relevant. The issue is whether she is being killed because of her race, religion, nationality, social group, or political opinion. In that case, the issue was social group.
In fact, in today’s New York Times, an article states:
In 2014, only about 45 percent of asylum applications made to European governments had a positive outcome — at least half were turned away for not being legal refugees but illegal migrants.
While not all these denied asylum seekers were necessarily fleeing war, I would venture to say that a great many were, but because “generalized violence and civil strife is insufficient to establish eligibility for asylum,” their claims were denied.
After starting off citing a definition and then ignoring it, the Times article then goes on about how refugees get protected and get to stay where they fled, while migrants, those who flee who are not refugees, can be sent back. The article then brings it on home to the U.S., stating:
The State Department vets a select number of people — lately, around 70,000 a year — and admits them as refugees. Others who arrive in the country without legal papers can apply for political asylum; in that case, a judge decides on the merits of their claims.
This statement is wrong two ways. First, while those who arrive in this country without legal papers and are caught usually make their cases before immigration judges, those who are not caught or whom the government fails to send to immigration court, make their claims before U.S. Citizenship and Immigration Services, not the immigration court. Second, asylum claims must be based on a fear of persecution on account of race, religion, nationality, social group, or political opinion, so why call it “political asylum” when it could be race asylum, religious asylum, nationality asylum, or social group asylum? Why does the writer call it political asylum and not “asylum?” I’m asking. I don’t know why she wrote it and I don’t know why the venerable Gray Lady published it. Posted September 6, 2015.