Between Donald Trump and Abu Bakr al-Baghdadi, there is sure a lot of immigration talk in the media and in politics. Not to go through the exhaustive task of attributing wisdom to each of its creators, let me, rather, address some of the observations political figures have made about the legal reality of immigration based on my twenty plus years of experience as a lawyer in the asylum game.
Islam is a religion that tolerates lying
In my years practicing immigration and asylum law, I have encountered my fair share of liars. It is very disconcerting to be lied to, but it is not rare that it happens. While I will avoid the stereotyping game immigration lawyers play in private about the nature of clients from different countries and backgrounds, I can safely say that Muslims do not lie disproportionately. I’ve encountered Jewish, Christian, Buddhist, and atheist liars. The problem is not that certain people are predisposed to lying, but that the stakes are so high for immigrants interacting with the government that people gonna lie. An East Asian, non-Muslim client, characterizing his countrymen, informed me that his people are a “practical people.” When I asked him what that meant, he meant that if necessity requires a lie, then they’ll lie.
The Somali anti-Islamic writer and thinker and former Dutch parliamentarian, Ayaan Hirsi Ali, whose message is to encourage Muslims to reform their faith, lied to Dutch immigration officials about her reasons for seeking asylum and was consequently expelled from Holland. Whatever her motives to lie, it was not because of Islam.
Islam is a religion pre-disposed to persecuting others
While again not wanting to enter into a rate-the-persecutory nation competition, Islam has a lot of competition in being the most persecutory nation or faith. The most persecuted people in the world at present may be the Rohingya, a Muslim majority persecuted in Burma – by Buddhists. The Oromo of Ethiopia, half of whom are Muslim, are the persecuted majority in Ethiopia. The modern era’s best persecutors were Christian Germans and whatever-hybrid-religion Japanese. In the Israeli-Palestinian persecution game, it is the primarily-Muslim Palestinians who are the persecutees.
Registering Muslims is a new and necessary means to maintain our national security
How quick people forget America’s early foray into registering Muslims. In 2002 America instituted NSEERS, the National Security Entry-Exit Registration System, aka Special Registration. While not called a Muslim registration act, it involved all male non-permanent resident and non-U.S. citizens from the following countries:
Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Somalia, Saudi Arabia, Tunisia, the United Arab Emirates, Yemen, Sudan, and Syria. All Muslim countries except for a little North Korean ecumenism.
The program involved requiring all non-immigrant males to register in the United States and to go through special entry and exit procedures requiring entry and departure at only specific entry spots – a limited number of airports, seaports, and land borders. Failing to register rendered one a presumptive terrorist pursuant to INA § 212(a)(3)(A)(ii), which simply stated, is not a good presumption to have leveled against you.
Just like torturing people, another unique policy of the President George W. Bush years, no terrorist was ever exposed by NSEERS. One of the saddest days of my career was the one where I accompanied a Muslim client for special registration. It could have been a scene out of Philip Roth’s, “The Plot Against America.”
Syrians infiltrating the border is a new and dangerous phenomenon
Sporadic reports are now in the media of Syrians crossing into Texas or apprehended in Honduras, as if this proves that terrorists are invading. The fact is that Syrians cannot walk to America from Syria. They can, however, walk from Central America and Mexico. Airlines will not allow people on airplanes to the United States without valid visas. As American consulates will not issue visas to asylum seekers, those intending to seek asylum in the United States either must seek entry with false documents or try to enter or seek asylum at a land border. It happens every day, all the time. Africans, Asians, South and Central Americans, Middle Easterners, Christians, Jews, Muslims, everyone. I represented three young Syrian men in 2003 who surrendered themselves crossing into the country on the U.S. – Mexico border, during our last “the Muslims are invading” panic. I have written letters to immigration officials for asylum seekers to hand to officers at the border requesting asylum. Trying to get into the United States to seek asylum is what people do.
Also, bear in mind that the detention of asylum seekers has a lot to do with where they were caught. Surrendering oneself at a port of entry means you will be detained and could spend months and years detained. See, INA § 235. Making a successful entry into the United States (either legally or illegally) and then applying for asylum usually does not usually result in detention. It is not irrational to want to avoid a prolonged detention when coming to the United States to seek protection. This gives an incentive to illegal entry.
The Cuban-American immigration model is the one asylum-seekers should emulate
The Cuban Refugee Adjustment Act allows Cubans who get to the United States to apply for permanent residence a year after they get here. They do not have to show they were harmed or persecuted in Cuba. They do not need to show they were dissidents. All they have to do is show they are Cuban or married to one or the child of one. A Cuban-American who makes it seem that his forefather(s) entered the right way, if true, wants you to ignore the fact that the game is fixed for Cubans. Giving the false impression that Cubans are following the law – are the good ones – while all the other asylum seekers are the bad ones, is a lie. See, Muslims are liars, supra.
The U.S. is lax in screening refugees
Reports are that those seeking refugee admission to the United States are waiting two years or more for clearances. Iraqis who worked for the Americans as translators and such are routinely denied visas under a program to help these people from being murdered because of their connection to and assistance to America because of vague accusations leveled against them by people who have some animus against them. Asylum, adjustment of status, and naturalization applicants are routinely delayed for years and years because of security concerns. These people are present in the United States and often have permission to travel abroad and return, but still are not granted the benefits they are seeking because of security concerns. If lawmakers were seriously concerned about security issues, they would fund and mandate quick resolution of these cases instead of allowing people to live in the United States for years and years in uncertain statuses because of unresolved security concerns.
It is also worth noting that a person who has used force or violence to change a government, even one the American government wants changed, or is even tangentially involved with such an organization, whether recognized as a terrorist organization or not, is a ground of inadmissibility to the United States under what are called Terrorism-Related Inadmissibility Grounds, TRIG. People who supported allies of the United States in changing a government – like say, the Free Syrian Army or anti-Saddam Hussein militias, often find themselves barred from the United States or removable from the United States. An opponent of Fidel Castro or of his predecessor, Fulgencio Batista, if seeking a benefit today, could be barred because of TRIG. Again, if Congress was serious about security, it would fix this preposterous law and concentrate on finding America’s real enemies.
It is time for serious people to step forward and find serious solutions to serious problems instead of silly people stepping forward to find silly solutions to non-existent problems. I’m not holding my breath. Posted November 22, 2015.
I recently wrote about how USCIS eschews interaction with attorneys and severely limits the ability of attorneys to interact with it during the adjudication process. Combine USCIS with the Department of State, and the inaccessibility of the bureaucracy is more frustratingly apparent.
Here’s my recent example. A Mexican family (Mexican-ness is important to the story. It is not a gratuitous detail.) came to see me about a long-pending visa petition filed twenty years ago by a parent for his son. As you may know, there are different categories of relatives that can petition for other relatives. These different relationships are listed as preference categories. First preference is the unmarried adult children of United States citizens. There are two second preferences – Category 2A is for spouses and children (under age 21) of permanent residents. Category 2B is for adult children of permanent residents. The Third preference is for married adult children of United States citizens. The Fourth Preference is for siblings of United States citizens. When a petition is filed, the filing date, referred to as the priority date, is added to a waiting list. When a priority date reaches the top of the waiting list, then a visa is available and the beneficiary of the petition can receive permanent resident status. The State Department posts the waiting list each month in what it calls the Visa Bulletin.
You may notice some missing close relationships. There is no category for parents of permanent residents. There is no category for married sons and daughters of permanent residents. Parents, spouse, and children (under age 21) of United States citizens are not preference categories, but are relationships where petitioning can occur. These relationships are termed immediate relatives and there is no wait list for them. Visas are immediately available for immediate relative.
In the case the the Mexican family, since the father petitioned for his son, the father became a United States citizen. The petition went from the 2B preference to the First Preference. When this happens, the petition is automatically “upgraded” from 2B to the First Preference. A look at the Visa Bulletin for Mexican First and 2B priority dates in the November Visa Bulletin shows something somewhat astonishing:
First Preference Mexico: December 1, 1994
2B Preference Mexico: August 22, 1995
The 2B preference is in advance of the First Preference. If a petition for a son or daughter was filed on January 1, 1995, a visa would be available if the father is a permanent resident (Petition was filed before the August 22, 1995, 2B priority date) but not if the father was a citizen (Petition was not filed before the December 1, 1994, First Preference priority date). Here is a situation where it is clearly advantageous to not become a United States citizen.
There is a remedy to that anomaly. In a fix made thirteen years ago, thanks, in large part, to Senator Diane Feinstein, petitioners who become United States citizens can opt out of the automatic conversion from 2B to First Preference thereby avoiding punishment of becoming a citizen.
Now, back again to the Mexican family. We needed to opt out of the automatic conversion as the petition was very close to current in the 2B Preference Category, but far from current in the First Preference Category.
Even though visa petitions are filed with USCIS (and before there was a USCIS, the INS) the custodian of most approved visa petitions is the State Department. They monitor the wait lists and publish the Visa Bulletin. The State Department office that handles the petitions in the State Department is the National Visa Center (NVC). I contacted the National Visa Center and asked to opt out of automatic conversion. Gratefully, the National Visa Center has an email inquiry system and actual communication, though hysterically cryptic most of the time, takes place. I few weeks after I contacted the NVC, they responded that the Department of Homeland Security (DHS) is in charge of the handling of opting out requests and I should contact DHS.
Here is an example of that hysterical crypticness. The NVC tells me to contact DHS. DHS is a huge department composed of huge agencies. Am I supposed to contact the Coast Guard? The Secret Service? FEMA? I decide the right agency to contact is USCIS. But where? I called the USCIS 800-number, though deeply skeptical that I would get a correct answer, figuring in the USCIS scripts for operators, there would be nothing about opting out. Fortunately or unfortunately, when I called USCIS, the operator informed me the computers were down and I needed to call back. I figured, let me contact USCIS at the U.S. Consulate in Mexico where permanent residence visas are processed. This decision had two things going for it:
1. Since the petition was for a Mexican family, then the Consulate in Mexico would handle the case and the USCIS office in Mexico is right there at the Consulate;
2. The office is rare among USCIS offices in that there is an email to contact them directly.
I emailed the USCIS office in Mexico and discussed how the family wants to opt out of the automatic conversion. I sent the email from the NVC so they would see why I was contacting them and not the NVC. I got an email a couple of weeks later explaining that the case is not at the Consulate in Mexico yet (it is still at the NVC), and I would have to contact the USCIS Service Center where the petition was approved nineteen years ago.
You may now be thinking, he ought to have known that contacting USCIS in Mexico before the case was processed through the NVC would be a waste of time. I have two defenses. First, I spent a considerable amount of time hunting around for instructions about how to opt out. I found plenty about the opt out provision, but little about how do to it. One USCIS memo I found, from about ten years ago, advised petitioners to contact the USCIS office in Manila, the Philippines, to request an opt out. The memo was discussing how the impact of the automatic conversion between categories upon a petitioner’s becoming a United States citizen was most obvious for Filipinos, and then advised contacting USCIS in the Philippines to opt out. I realized it would be dumb to contact Manila about a Mexico case, but I figured what was good advice for Filipinos should hold true for Mexicans. My second defense is that USCIS in Mexico actually has an email, so it was too good to pass up, especially when there was really no other option.
The option failed, unfortunately, and the new instruction was to contact there Service Center. There is no email to contact the Service Center and no way to my knowledge to contact anyone there with a specific question about how to request an opt out. I was forced to revert to the pre-millennium play book – I wrote a letter. The Service Center puts an address on its receipts, and so at least I had an actual address to write to it at. Of course there was no person to follow up with and no assurance the letter would not just be thrown in the trash, or the equivalent, put in the file and ignored, but, to paraphrase Donald Rumsfeld, you fight the bureaucracy with the tools you have. In this letter, I included copies of the emails from the NVC and USCIS in Mexico so they would understand how I ended up writing the Service Center.
About two weeks later I got an email from the NVC. It explained, after I deciphered it, that USCIS does not handle opt outs, the NVC does and rest assured, the case will be treated as a 2B Preference case. The email contained no context, like, “We would like to correct our previous incorrect information and advice that started you on a two month wild goose chase.” The email simply stated that it was allowing the family to opt out. Did someone at the Service Center read my letter and elevate it to someone who could contact someone in another agency (from the Service Center to the NVC) in another Department (from DHS to the State Department) to correct the NVC and get the case on the right track? Did someone at the USCIS office in Mexico follow up with the Department of State and prompt the NVC to correct itself? Did someone at the NVC think about the initial email to me, investigate it, and correct the advice? I will never know how the NVC came to correct its initial misinformation, but if weeks and months of emails and letters and research and waiting until the correct result is reached is ending well, than all’s well that ends well. Posted October 18, 2015.
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.