Nation of Immigrants

She Died, but Her Dream Lives On

Tam Ngoc Tran died on May 16th in a car accident.  She was a doctoral student in American Civilization at Brown University.

I had a brief encounter with this intelligent and lovely young lady in 2006 when I visited UCLA to assist foreign-born students in finding solutions to their immigration problems.  Each of the students told me his or her story.  Most shared the following themes: They were born in other countries and brought to the U.S. as toddlers.  They grew up believing that they were born in the U.S. and that if they studied hard and got good grades, they could be anything they wanted.  They were honor students in high school and were in the process of applying for financial aid to attend UCLA.  That's when they got the news that changed their lives forever. 

Their parents told them that they were "illegal aliens" in the U.S.

How could that be?  They only spoke English.  They were going to be doctors and lawyers and scientists.  Now what was the use of studying?  How could they even get jobs when they graduated from college?  Return to the countries of their birth?  They didn't even speak the language.

Tam's story was the most unusual.

Her father was an ardent anti-Communist in Vietnam.  After the Communist takeover, her family became "boat people."  They were rescued at sea by a German ship and taken to Germany, where Tam was born.  Had the ship been from the U.S., things would have turned out much differently for Tam and her family.

When Tam was six years old, her family came to the U.S. and applied for asylum.  This was an unwise move on her father's part since Germany had already taken them in.  Their applications were denied.  Her father tried to move the family back to Germany, but Germany said that by moving to the U.S., they were no longer willing to let the family return.  Finally, an immigration judge granted them "withholding of deportation," meaning that they could not be deported to Vietnam, but would not be able to apply for green cards in the U.S.  They would remain in permanent "legal limbo" in the U.S.  This is not as unusual as it sounds.  Over 300,000 people who have been ordered deported are still in the U.S. because there is no country to deport them to.  Every year, Tam's parents went to the INS and renewed their work permits.

Tam was a star student, and when I met her in 2006, she was working to save money to pay for graduate school.  She was also an active member of IDEAS at UCLA.  This group fights for the interests of undocumented students and for passage of the DREAM Act.

In 2007, Senator Richard Durbin (D-IL) introduced the bipartisan DREAM Act in the Senate.  The DREAM Act would grant certain undocumented college students permanent residence in the U.S., but only if they had entered the U.S. before age 16 and had graduated from a high school in the U.S.  This legislation, which has yet to make it through Congress, would have resolved Tam's dilemma.

Senator Durbin featured Tam and two other students at a press conference when he introudced the DREAM Act. Congressman Tom Tancredo (R-CO), active among the anti-immigrant forces in Congress, called on ICE to arrest all three students at the press conference and deport them.  Tancredo stated: "Just because these illegal aliens are being used for political gain doesn't mean they get immunity from the law."

Senator Durbin replied by saying that "what does it say about America that a member of Congress would call on these young people to be arrested?...They should be given a chance."

ICE wisely decided not to get involved.  If they had, Tam could simply have shown them her government-issued work permit.

However, what happened next I did not learn until after I had read that Tam had died in the car accident.

In 2007, Tam testified before Chairwoman Zoe Lofgren (D-CA) and the House Immigration Subcommittee.  Tam's photo appeared on the front page of USA Today.   

Three days later, ICE agents arrested and detained her family.  Only after Congresswoman Lofgren intervened and accused ICE of "witness intimidation" were her parents released from custody.

The anti-immigrant crowd called for Tam to go back to "her country."  Which country is that?  Germany?  Vietnam?

Here is what Tam said to members of the Immigration Subcommittee:

"I hate filling out forms, especially the ones that limit me to checking off boxes for categories I don't even identify with.  Place of birth?  Germany.  But I'm not German.  Ethnicity?  I'm Vietnamese, but I've never been to Vietnam.  However, these forms never ask me where I was raised or educated.  I was born in Germany, my parents are Vietnamese, but I have been American-raised and -educated for the past 18 years....

The truth is, I am culturally an American, and more specifically, I consider myself a Southern Californian.  I grew up watching Speed Racer and Mighty Mouse every Saturday morning.  But as of right now, my national identity is not American, and even though I can't be removed from American soil, I cannot become an American unless legislation changes....

Graduation for many of my friends isn't a rite of passage to becoming a responsible adult.  Rather, it is the last phase in which they can feel a sense of belonging as an American....

Without the DREAM Act, I have no prospect of overcoming my state of immigration limbo; I'll forever be a perpetual foreigner in a country where I've always considered myself an American."  

Like Dr. Martin Luther King, Tam reached the Mountaintop, but not the Promised Land.  

Let's urge Congress to pass the DREAM Act this year so students without papers can contribute to society after they graduate and not be consigned to perpetual immigration limbo.

 

 

 

The Part of "Illegal" That I Don't Understand

What part of "illegal" don't you understand?

This question is the traditional refrain of the anti-immigrant crowd.  What they don't seem to understand is that in the same family, one spouse may be illegal while the other spouse is a U.S. citizen or a lawful permanent resident.  Their children may also be U.S. citizens.

In such cases, does it make sense to arrest and deport the illegal spouse, and separate the family for weeks, months or even years? 

I just received a phone call from the husband of a registered nurse.  He is a U.S. citizen.  He and his wife have been married for over a year and are the parents of a U.S. citizen child who is being breast fed.  Since he became a naturalized citizen only recently, his wife who was present in the U.S. on a student visa decided to pursue her green card application through her job.  She takes care of patients at a local hospital. 

The wife originally entered the U.S. as a visitor, changed her status to student and once she obtained an RN license and an offer of employment, she applied for adjustment of status to permanent resident.

A few months ago, the USCIS scheduled her for an interview.  At the interview, she learned that she had been ordered deported by an Immigration Judge years before.  She was stunned.  Why had USCIS approved her application to change her status from visitor to student?  Government mistake.  Why had USCIS accepted her application for adjustment of status and issued her a work permit?  Government mistake.

After the interview, the USCIS denied her application for adjustment of status. Fortunately, her husband soon became a naturalized citizen, and submitted an immigrant visa petition on her behalf.  The USCIS approved the petition.

The next step was for her to apply for a green card.

However, as her husband informed me today, five ICE agents appeared at the hospital this afternoon and arrested his wife.

Does this make any sense to anyone?  Certainly, it makes no sense to me.

Maybe this is the part of "illegal" that I don't understand. 

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P.S. On June 1, thanks to the hard work of Attorney Ellen Ma Lee of our office, ICE released our client on her own recognizance!

Liberty and Justice for All?

As everybody knows by now, recently Arizona's Governor signed a law requiring local law enforcement officials to take into custody persons when they have a "reasonable suspicion" that they are present in the U.S. illegally.  The person would be turned over to the Immigration Service, and be released from jail if they could demonstrate their legal status.

Last Monday, the ACLU and various other groups sued Arizona officials in Federal Court to void the law on a number of grounds including violation of the Constitutional rights of equal protection of the law and free speech.  President Obama has questioned the validity of the law and a number of individuals, organizations and governmental entities are protesting against the law.

Yet, polls show that a majority of Americans support the law. 

I suspect that most Americans think that enforcement activity will be limited only to illegal aliens, and that as American citizens, they have nothing to fear.  I hope that the following true story will make some people think twice about supporting a law that gives the government such tremendous powers over the lives of ordinary citizens.

In the 1980s, shortly after I had left my job as an INS Trial Attorney and entered private practice, I received a telephone call from Washington, D.C. from Congressman Edward Roybal.  Rep. Roybal was angry about something that the INS had done to one of his constituents, and he asked me to help. 

A young man had attempted to enter the U.S. from Mexico, and was being held in detention by the INS in Los Angeles.  Although, he provided the officer with a birth certificate showing that he was born in Los Angeles (and was, therefore, a U.S. citizen), the officer did not believe him.  Why not?

Because the birth certificate was typed with two different types of ink.  Some of the words on the certificate were dark black, others were typed in a lighter shade of black.  The officer suspected that the birth certificate may have been altered.

It should have been very easy for the INS to verify the validity of the birth certificate since the Hall of Records was located just down the street from the Federal Building.

The same day, on Friday, I visited the young man in detention.  He told me that he had been incarcerated for five days.  I assumed that the INS had obtained a copy of the birth certificate from the Hall of Records, and that the two certificates did not match.  Instead, to my surprise, I learned that no one from the INS had even tried to obtain a copy of the birth certificate.  How long were they going to keep this man in custody before someone paid a visit to the Hall of Records?  No one could answer my question.

So together with an aide from Congressman Roybal's Los Angeles office, we obtained a certified copy of the birth certificate from the Hall of Records that same day.  And guess what?  The certified copy was also typed in different shades of ink.  Maybe some secretary had replaced her typewriter ribbon midway through typing his birth certificate.

We quickly hurried back to the Federal Building, and presented the certified birth certificate to an INS Officer.  "Oh, you're right", she said, "We will release him next Monday."

Next Monday?  She explained that she had a number of work-related tasks to perform that afternoon, so the young man would have to remain in jail over the weekend.  My jaw dropped in amazement.  Congressman Roybal's aide was outraged.  She demanded that the young man be released from detention immediately.  And, in the end, the government relented.  Still, he had been incarcerated, quite unnecessarily, for five days.

When I read the Arizona law (SB 1070) and the ACLU complaint (98 pages), before I could even start to think about all the legal arguments that will be raised in Federal Court, I think of that young man and the indifference of our government regarding his detention.

Is this what we mean by "liberty and justice for all"? 

Above the Law?

Tomorrow, on May 13, the Senate Finance Committee will take up the nomination of Alan Bersin to be the Commissioner of Customs and Border Protection (CBP), an agency with a staff of 57,000 and a budget of $11 billion.  As the nation's "border czar", Bersin would be responsible for enforcing our immigration laws.  As a matter of fact, Bersin is already serving as the CBP Commissioner as a recess appointment.  However, he has yet to be confirmed by the Senate.

Mr. Bersin has a well-deserved reputation as a tough prosecutor. From 1993 to 1998, he was the de facto head of Operation Gatekeeper, a Clinton-era initiative which massively increased border enforcement on the U.S.- Mexico border near San Diego.  As a U.S. Attorney, Mr. Bersin's office criminally prosecuted hundreds, if not thousands, of Mexicans who illegally crossed the border into the U.S.  One of the side-effects of these criminal prosecutions and increased border enforcement were approximately 500 deaths per year of illegal border crossers as the flow shifted from California to the deserts of Arizona.

With Congress calling for ever tougher enforcement of our immigration laws, one would think that Mr. Bersin would be a shoe-in for Senate confirmation.  However, documents released by the Senate Finance Committee today reveal what might be a problem for Mr. Bersin tomorrow.

Mr. Bersin and his wife have three children, and have, employed 10 different nannies to care for them.  Were the nannies all legal to work in the U.S.?  According to what Mr. Bersin told the committee staff, they were.  So, what's the problem?

Given Mr. Bersin's credentials as a tough enforcer of immigration laws, the Bersins certainly were careful to verify the legality of each of these nannies using the legally-required I-9 (Employment Eligibility Verification) form within three days of their hire as required by the Immigration Reform and Control Act of 1986, correct?

This is where things go a bit awry.

According to a memorandum composed by the committee staff, when Mr. Bersin was first interviewed by them in August 2009, he stated that he had completed an I-9 for the family's current nanny.  However, when he was later asked about this in writing, Mr. Bersin responded as follows: "If I stated that Ms. S had an I-9 in August 2009, then I misspoke and apologize for any misunderstanding."   Subsequently, Mr. Bersin provided the committee staff with an I-9 for the nanny dated November 12, 2009.

Also, during his August 2009 interview, Mr. Bersin informed the staffers that he and his wife had hired three nannies.  However, the staffers learned the number was actually ten, six since 2006.  In a "due diligence" meeting with the staffers on March 17, 2010, Mr. Bersin acknowledged the additional employees.

There was some claim raised, and later dropped, by Mr. Bersin that the nannies where "independent contractors" so that I-9s were not required.

So what's the bottom line? As stated by the committee staff memo, "Mr. Bersin did not timely or completely prepare and maintain Forms I-9 for any of the ten household employees he employed as required by law."

Should Mr. Bersin be confirmed as the CBP Commissioner?  Should President Obama immediately withdraw his nomination?  We leave this to the Senate and President Obama to decide what to do.

However, in our opinion, Mr. Bersin's responses to the questions posed by the committee staffers given his record as a "no-holds-barred" prosecutor of immigration law violators reveal a lack of candor, and are the latest example of the hypocrisy of our nation's "enforcement-only" approach to our immigration nightmare.

The men and women who were prosecuted, convicted of federal crimes and imprisoned as a result of Operation Gatekeeper were, for the most part, seeking to enter the U.S. for the same reasons as did most of our grandparents, to find employment and a better life for their families.  The same for those who died in our deserts trying to avoid detection and criminal prosecution.

These people pick our crops, serve us in hotels and restaurants, work in our factories and care for our children and our elderly parents.  We benefit from their labor, yet instead of changing our laws to enable them to work legally in the U.S., we treat them as criminals.   

I am a former INS prosecutor yet I've always known this to be true.  My wish is that tomorrow, both Mr. Bersin and the members of the Senate Finance Committee will use this hearing to reflect upon the hypocrisy of our current immigration laws and start to see beyond our present "enforcement-only" approach.  Then again, maybe I am dreaming... 

 

I Beg Your Pardon

Today's New York Times featured an article revealing that New York Governor David Paterson is establishing a state panel to review pardon applications for legal immigrants who may face deportation because they were convicted of minor crimes in the distant past.

Governor Paterson, in a speech to judges, called some of our immigration laws "embarrassingly and wrongly inflexible".  He stated that "in New York, we believe in rehabilitation."

Does this mean that New York is following Arizona's lead in usurping what is the responsibility of the federal government?  Just the opposite.  Federal immigration laws, at 8 U.S.C. 1227(a)(2)(A)(vi), specifically provide that certain classes of persons who would otherwise be subject to removal from the U.S. because of criminal convictions are automatically granted a waiver of removal "in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States."   

In reality, Governor Paterson is simply exercising his authority to pardon persons who were convicted of criminal offenses, and in doing so, federal law prohibits the USCIS from deporting the person.

In a previous blog post, we have written about the unrealistic and inhumane portions of the immigration law that if applied to any of the past three Presidents of the United States would result in them being deported.

We hope that the other 49 governors follow Governor Paterson's lead.

The result would be that fewer lawful permanent residents would face deportation and separation from their families based on minor convictions which occurred many years ago.