Nation of Immigrants

Latinos Must Show Their Muscle in November

When the economy is in the tank, voters look for a scapegoat. 

Back in 2005, when the economy was flourishing (Remember?), the McCain-Kennedy Comprehensive Immigration Reform (CIR) bill was co-sponsored by a bipartisan coalition of Senators including Republicans like Lindsay Graham of South Carolina, Sam Brownback of Kansas, Mel Martinez of Florida and Lincoln Chafee of Rhode Island, not to mention an obscure Democrat freshman from Illinois by the name of Barack Obama.

In the 2008 Presidential elections, Senator Obama promised to push for CIR, and the Latino vote in states like Colorado and New Mexico helped propel him to victory.  However, the new President inherited an economy on the verge of collapse.  And despite the efforts of the President and the Congress to stimulate the economy, the percentage of Americans who are unemployed remains stubbornly high.

It has become a popular campaign tactic to blame undocumented workers from Mexico for our present economic distress.  Signing Arizona's racial-profiling immigration law turned the state's unpopular Governor into a shoo-in in the 2010 elections.  Senator McCain's (R-AZ) 180-degree turnaround from a sponsor to a vocal opponent of CIR helped him to clinch the Republican nomination for Senator.  Tom Tancredo, formerly the leader of the anti-immigration forces in the House of Representatives, is the Republican nominee for Governor of Colorado. In races across the U.S., candidates seek to burnish their anti-immigration credentials by having the infamous Sheriff Arpaio from Phoenix, Arizona come and speak to voters on their behalf.

The reason that CIR never got off the ground in the Senate in the past two years was not the fault of President Obama.  It is because every single Republican, and even a few Democrats, opposes CIR.   One would think that Latino voters would be up in arms about this, and vote to "throw the bums out".

However, a poll released this week indicates that only 51% of Latino registered voters said that they would go to the polls as compared to 70% of voters overall.

Unless Latino voters get energized quickly, we can forget CIR and the DREAM Act.  The next Congress is apt to be controlled by anti-immigrant zealots who will do their best to pass "enforcement-only" immigration bills.  Stay tuned for national racial profiling laws, a vastly increased budget for immigration enforcement, mandatory E-Verify and an end to birthright citizenship.  Hopefully, President Obama would veto such legislation.  However, immigration advocates remember all too well President Clinton's signing of the notoriously anti-immigrant law of 1996, something we have yet to recover from.

Latinos should bear in mind that they are the fastest growing demographic among American voters.  After Governor Pete Wilson (R-CA) rode to re-election in California in 1994 on the strength of the anti-immigrant Proposition 187, Latinos registered to vote in record numbers and made California an pro-immigrant state in short order.  Today, once candidates emerge victorious in the Golden State from the Republican primaries, they immediately start running campaign ads in Spanish and proclaim they are "amigos" of the Latino community.  No politician in California can ignore Latino voters.

Let's hope that this time, Latino and other pro-immigrant voters exercise their power in the 2010 elections, not just afterwards.  

 

Private Bill Saves Family from Deportation

Jessica Duran and her family had a big immigration problem when they visited me in my office a couple of months ago.  The U.S. Court of the Appeals had dismissed their appeal, and they were under a final order of deportation.  The only thing keeping ICE from deporting them was that court had yet to issue the mandate in their case. 

I looked at their paperwork, and told them that there was nothing an immigration lawyer could do to help them, and to save their money for their new lives in Mexico.

I expected an explosion of anger or of tears.  Instead, Jessica calmly explained that her parents had brought her and her two brothers to the U.S. on visitors visas when they were toddlers, that they had grown up in the housing projects and spent hours each day being bussed to schools in the suburbs where they had excelled.  Now, the three of them were university graduates and professionals who little or no memory of Mexico.  The government had denied their father's late amnesty application in 1990 only to reverse themselves and grant him a green card in 2005.  Although, he immediately filed I-130s for them and their mother, by that time their order of voluntary departure have turned into an order of deportation making it impossible to reopen their cases. 

The reason that they were consulting me was that they read that one of my clients, a Canadian orphan, had received a green card through a private bill, and they wondered if they could do the same.

I explained to Jessica that the case she was referring to occurred in 2000, and that even I though I had a few other clients who had private bills introduced on their behalf since then, I very much doubted whether any of these private bills would be signed into law in the near future.  On the bright side, ICE was taking no action to remove any of these clients.

Jessica told me that she understood and asked me if I would be willing to try to get a private bill introduced on behalf of her family.  I explained that even getting a private bill introduced was a long shot, but as long that they understood that, I was willing to try.  They agreed.

Jessica had already taken the initiative and had spoken to her Congresswoman's office, and also to the office of Senator Durbin (D-IL), the sponsor of the DREAM Act.  So I took up where she left off.

Her Congresswoman is Lucille Roybal-Allard (D-CA), a member of the Congressional Hispanic Caucus and a strong proponent of immigrants rights.  A few years ago, the Congresswoman had sponsored a private bill of behalf of another family that I represented.  I spoke with her local immigration caseworkers, and they told me that the Congresswoman was open to sponsoring a private bill for Jessica and her family, but only as a last resort.  I thanked them, and proceeded to contact Senator Durbin's office.

Senator Durbin's immigration aide in Washington, D.C. informed me that she had already contacted ICE about placing Jessica and her two brothers in deferred action status, and she was waiting for an answer.  She told me that ICE was open to doing this for a number of DREAM Act students, but was unsure whether they would so do for Jessica and her family.

Then, a couple of weeks ago, Jessica informed that the 9th Circuit had issued the mandate in her family's case.  Now there was nothing stopping ICE from enforcing the deportation order.  Would ICE do so?  Would agents come to their house and arrest them?  It was possible that they would.

I called Jessica from my home to discuss what to do if ICE agents came to her house.  She asked me a lot of questions, and I tried my best to provide her with answers.  It was a very tense conversation.  However, less than a minute after our conversation, I received an e-mail message from Jessica.  While we had been on the phone together, someone from Congresswoman Roybal-Allard's office had left a message for her.  The Congresswoman had decided to introduce a bill on behalf of her family after the Labor Day recess.

I started conferring with Congresswoman Roybal-Allard's immigration aide in Washington, D.C.  He requested a summary of their case and a number of other documents, all of which we supplied.

And, on September 21, he informed me that Congresswoman Roybal-Allard had introduced H.R.6158, a bill to provide for immigration relief for Jessica and her family!

I called Jessica who was close to tears.  She thanked me over and over again.  At the same time, I apologized many times for telling her at the outset that there was nothing that I, or any other immigration attorney, could do to help her and her family.  By the end our conversation, there was nothing to do but laugh together.

I am still talking with ICE through Senator Durbin's office.  A reporter from a national wire service has spoken with me and with Jessica about her family's case.

We are very thankful that Congresswoman Roybal-Allard has stepped in to keep this fine family together.

Thai CDC Combats Human Trafficking and Modern Day Slavery

The Thai Community Development Center (Thai CDC) was founded in 1994 by leading human rights activist, Chanchanit Martorell, on the idea that all peoples have a basic right to a decent standard of living and quality of life.  Yet, in the Thai and other disadvantaged communities, people are living in substandard housing and lack access to basic health services, education and quality employment.

As a social change organization engaged in human rights advocacy and broad based community development, the Thai CDC seeks to empower the most vulnerable and economically disadvantaged members of the Thai community.  They include poor recent immigrants, low wage workers, welfare recipients and victims of human trafficking.   

Its mission is to “advance the social and economic well-being of low and moderate income Thais and other ethnic communities in the greater Los Angeles area through a comprehensive community development strategy including human rights advocacy, affordable housing, access to healthcare, promotion of small businesses, neighborhood empowerment, and social enterprises."

Given that Thailand has become a major source country for trafficked persons and the US has become a popular destination country, Martorell currently leads the only Thai organization in the US addressing the persistent problem of human trafficking from Thailand into the US.

The first case of modern day slavery in the US was discovered after a raid by federal and state authorities, Martorell’s organization, and law enforcement in El Monte, California in 1995.  Seventy two Thai garment workers were found working in conditions of slavery in a clandestine makeshift garment factory where they toiled 16 to 18 hours a day surrounded by barbed-wire and under constant 24/7 surveillance by armed guards for little to no pay for as long as seven years.  These workers lived and worked under the fear of physical harm as they were threatened with retaliation and retribution against them and their families in Thailand should they dare escape.

After the case broke, Martorell’s organization immediately provided for the victims’ daily health and welfare needs.  Martorell also mobilized other civil, immigrant and workers’ rights organizations to demand justice for the workers ultimately leading to many historic and precedent setting victories for trafficked victims that would forever change how victims are perceived, treated, served and fully restored, spawning an anti-trafficking movement and leading to the enactment of the landmark legislation,  Trafficking Victims’ Protection Act.

However, the El Monte Thai Slavery Case was just the tip of the iceberg for human trafficking.  Since that case, Thai CDC, under Martorell’s leadership, has worked on six more cases involving over 600 Thai victims trafficked for domestic work, sexual exploitation, welding, and agriculture over the past 15 years.  The current Thai CDC case involving over 400 Thai farmworkers just made international headline news and has been described as the largest case of human trafficking in US history.

As a result of Thai CDC’s vigilance in advocating for victims and exhausting all legal remedies, all victims served by Thai CDC have won redress and restitution, have been able to bring their families to join them in the US (since victims cannot return to their home country due to the real fear and threat of retaliation from their traffickers and recruiters who are sometimes aided by underground gangs and/or corrupt government officials), and been accorded legal status and protection while their traffickers are criminally prosecuted.  Thai CDC’s services extend to members of their families too who must then be resettled, provided cultural orientation, and sheparded through a complex web of systems to help them achieve full integration in a new country upon reunification, thereby increasing the number of victims being served by Thai CDC to over 2,000.

Thai CDC’s mobilization of the workers from these cases also led to the movement against human trafficking and slavery in the US, reforms in the garment industry, legislation to protect future trafficked victims, a broader definition of human trafficking to include all forms of slavery like practices such as contract and debt bondage labor, the founding of the Coalition to Abolish Slavery and Trafficking, education and training of law enforcement and service providers, and greater awareness of the serious problem which, sadly, continues to persist today unabated.

In 2001, the California Wellness Foundation selected Martorell as a Violence Prevention Initiative Fellow.  She is also a recipient of a number of awards and honors, including State Senator Curren Price Sheroes Award, Assemblyman Kevin De Leon Asian Pacific Heritage Month Award, the Thai Association of Southern California Exemplary Leadership Award , the Kasertsart University Alumni Association of USA Advocate Award, KCET Unsung Hero Award, Leadership Education for Asian Pacifics Leadership Award, the Asian Pacific Women’s Network Women Warrior Award, the Asian Pacific American Labor Alliance Distinguished Service Award, the Asian Business Association Asian American Leadership Award, the Los Angeles Women’s Foundation Mentor Award, the Los Angeles City Commission on the Status of Women Woman of Courage Award, and a Certificate of Recognition from Assemblyman Luis Caldera for “A Woman Making A Difference in the Heart of Los Angeles.”

“On the surface, it looks like the workers were legally contracted," Martorell said in a Los Angeles Times interview on the Thai Farmworkers’ Case. "But on closer inspection, it's slavery. Their passports were confiscated … and threats were made if any of them dared to try to escape. The (US) guest worker program can be legalized slavery if you don't constantly monitor it."

On September 2nd, 2010, the federal government indicted Global Horizons’ CEO, Mordechai Orian, three of his employees and two Thai recruiters with conspiracy to commit forced labor and document servitude against 400 Thai farmworkers that could now land these individuals up to 70 years of prison time if found guilty.  The indictment demonstrates another victory for Martorell and Thai CDC after seven years of waging a relentless struggle to bring justice and accountability to hundreds of enslaved Thai farmworkers.  Their fierce determination finally paid off with this recent federal indictment. 

However, due to the growing federal budget deficit, funding for anti-human trafficking and slavery has been cut back dramatically, while human trafficking is growing at a pace that may quickly surpass drug trafficking.  In fact, human trafficking and slavery has become the most profitable and second largest criminal activity in the world. 

“IF SLAVERY IS NOT WRONG, NOTHING IS WRONG.” – ABRAHAM LINCOLN

Take action now to support Thai CDC’s heroic efforts in abolishing human trafficking and slavery which is being accomplished on very limited resources.  With your donation, Thai CDC will be able to expand its staffing capacity to better serve victims and to continue its noble work to protect human rights.  Your donation will also enable Thai CDC to intensify its campaign and efforts to educate legislators and the general public about this issue, which will bring about the necessary changes that can prevent human trafficking and make slavery a thing of the past.

You can make a tax deductible financial contribution directly to Thai CDC at Thai CDC’s website www.thaicdc.org and click on the donation button, or send a check made payable to Thai CDC at 6376 Yucca Street, Suite B, Los Angeles, CA 90028, or you can contact Thai CDC at (323) 468-2555 for more information.

Asylum: Some Progress, But Much More Needs to be Done

Back in 1986, Immigration Judges denied almost 90% of all asylum requests.  Now, during the past 9 months, the Judges granted 50% of asylum requests.  What's more, the disparities among various Immigration Judges have narrowed somewhat.

This information is contained in a new report issued by the Transactional Records Access Clearinghouse (TRAC) of the University of Syracuse.

This increase in approvals tracks with another important consideration: In 1986, only a little more than half of all asylum applicants were represented by an attorney.  Today, over 90% of asylum applicants have attorneys.  Attorney-represented asylum seekers have their cases granted 54% of the time while those who are unrepresented have only an 11% success rate.

Although disparities between Immigration Judges have narrowed somewhat, they are still wide enough to be cause for concern.  In San Francisco, one Judge granted 68% of asylum requests while another Judge granted only 8%.  Similarly, in New York, one Judge granted a stunning 94% of asylum requests while another Judge granted 30%.

In 2006, after TRAC published its first report documenting wide disparities between Immigration Judges in their rates of approval of asylum applications, then Attorney General Alberto Gonzales directed the Executive Office for Immigration Review to study the TRAC report, and if its findings proved valid, to recommend reforms to reduce these wide disparities.

EOIR confirmed that there were huge disparities among the Judges, and called for more training and monitoring, particularly for Judges with unusually high or low rates of asylum approvals.

TRAC, in 2006, also developed an online system which enables both Immigration Judges and the public to compare the asylum approval and denial rates among Judges.  This system is helpful and allows the public to see factors that may account for some of the variations in asylum grant rates between Judges.  For example, one Judge may see a disproportionate amount of asylum seekers from a country where political conditions have either improved or deteriorated recently.

In 2008, the government's General Accountability Office (GAO) conducted its own study which confirmed the existence of widespread disparities among the Judge's holdings in asylum cases.

Has the increased attention to this problem had any effect?

Although the most recent TRAC report answers this question in the affirmative, it concludes that:

"Thus, although disparities have been reduced, the unfortunate bottom line remains. A very important element in deciding whether an asylum seeker is granted or denied asylum has little to do with the legitimacy of his or her claims, but a great deal to do with the particular judge to whom the asylum seeker was assigned."

Inasmuch as an erroneous asylum decision may result in the imprisonment, or even the death, of the asylum seeker, we urge the Obama Administration to take a hard look at this continuing problem, and to take actions which will insure that asylum seekers as well as all other individuals who apply for relief from removal will be able to obtain equal justice under the law. 

 

 

Let Avvo Help You Choose an Excellent Attorney

The most frequent question that we receive is “How do I choose a good immigration attorney?”  Our response is “Why settle for ‘good’?  Read on.

There are websites for finding excellent hotels, wonderful restaurants and great physicians.

How about a site for choosing an attorney?  See http://www.avvo.com

During the past year, Avvo has emerged as the premier site for selecting an attorney.

Avvo, short for avvocato (Italian for attorney), is gaining not only in popularity but in usefulness.

Great immigration attorneys will tell you that by the time 30% of potential clients consult with them, some incompetent attorney or “consultant” has already screwed up their case, often beyond repair.

So, the challenge is for persons requiring immigration legal assistance is to make sure that the attorney that they entrust their future to knows what he or she is doing.

The Avvo website helps you choose a good attorney and avoid choosing a bad one in each of the following ways:

A)   On the profile of an attorney with a disciplinary record with the State Bar where he practices law, Avvo will prominently display a bright red banner containing the word “Attention” and an exclamation mark.  To the right of this icon are the words “This lawyer has been cited for professional misconduct.”  If you are curious, the details of the sanctions are listed below.

B)   Clients are permitted, even encouraged, to review their attorneys.  They give their attorney an overall rating (one to five stars) followed by ratings in the following four areas: (1) Trustworthy; (2) Responsive; (3) Knowledgeable; and (4) Kept Me Informed.  Then the client is free to write about the attorney in detail if he wishes.

C)   Other attorneys are encouraged to endorse their fellow attorneys;

D)   Avvo contains profiles of over 90% of the attorneys in the United States.  Chances are, if your attorney has not uploaded his photo, then he has not “claimed” his Avvo profile.  Attorneys may claim their profile, and complete an “overview” of their law firm including their (1) practice areas; (2) fees and payments; (3) contact information; (4) languages spoken; and (5) they may post videos and photos.  They may also complete their resume which includes their (1) licenses; (2) work experience; (3) education; (4) awards and (5) associations.  Finally, Avvo lists their “portfolio” which includes (1) legal guides posted online; (2) answers to questions posted online; (3) cases; (4) publications and (5) speaking engagements.

E)   Based on all of the foregoing information, Avvo assigns a rating to each attorney ranging from “Poor” to “Superb”. Here is what Avvo has to say about their rating system: “The Avvo Rating is our effort to evaluate a professional's background. The rating is calculated using a mathematical model that considers the information shown in a professional's profile, including a professional's years in practice, disciplinary history, professional achievements and industry recognition — all factors that, in our opinion, are relevant to assessing a professional's qualifications. For some professionals, the only information we have been able to collect is the publicly available information from state bar associations or other organizations that license professionals. If that is all we have, then we display an Avvo Rating for the professional of either ‘Attention’ or ‘No Concern.’”

Presently, there are under 100 immigration attorneys that Avvo bestows its highest rating (10.0 Superb) upon.  How do you choose between these attorneys?

A)   You can search attorneys by location although in many cases, it is irrelevant where an immigration attorney is located;

B)   You can study the profiles of each of the attorneys that you are interested in.  Don’t just read what they say about themselves.  Everyone wants to looks good.  Pay more attention to what their clients have to say about them.

C)   Avvo has a useful feature which allows you to compare one attorney against another.  Let’s say that you have clicked the box near the top of the Avvo screen entitled “Find a Lawyer”.  Next, type in the word “Immigration” in the box below, and if you wish, your location to the right.  Then click the green box marked “Find Lawyers”.  Let’s say that you typed “Immigration” and “California”.  Avvo will display the profiles of over 800 different attorneys in order of their Avvo rankings.  To the right of their names and just above their ranking, there are small boxes.  Use your mouse to check the boxes of the attorneys who you are interested in.  Then, at the bottom of the screen, click the green box “Compare”.  Avvo lists summary information from each lawyer’s profile.  From this, you can choose which lawyers you want to contact.

Is Avvo perfect?  Of course not!  And neither is TripAdvisor.com in choosing hotels and Yelp.com in choosing restaurants.  However, my wife and I consult both of these websites, and find that they are accurate about 90% of the time.

In order to consider other factors which I believe are important in choosing an immigration attorney, watch our video “How to Select An Immigration Attorney”.

Does Arizona Really Want Tough Immigration Enforcement?

After many months of calling on the Federal Government to more vigorously enforce our immigration laws, it turns out that some of the biggest immigration law violators are government officials in the State of Arizona.  And as soon as the Justice Department charged them with breaking the law, their attitude suddenly became "enforce the laws against them, not against us!"

Let me explain.

Back in 1986, President Reagan signed the Immigration Control and Reform Act (IRCA).  The law established the I-9 system so that employers would not knowingly hire undocumented workers.  At the same time, in order to insure that workers with accents or ethnic names would not be discriminated against, IRCA established penalties for employers who discriminated against potential employees based upon their ethnicity or citizenship status.

One would think that after 24 years most employers would have the I-9 system down pat.  Especially in Arizona where there are constant complaints that the federal government is not doing enough to enforce the immigration laws.

Well, apparently, the federal government has heard the complaints emanating from Arizona, and is taking swift action.  Swift action, that is, against Arizona government officials who are breaking the law.

Last week, the U.S. Department of Justice moved to seek "full remedial relief" on behalf of 247 lawful permanent residents who applied for jobs with the Maricopa Community Colleges between August 2008 and January 2010.  The amount sought is approximately $250,000.

Under the I-9 laws, employers are prohibited from demanding to see a particular document. If the employee is a U.S. citizen or a permanent resident, he can show the employer a drivers license and a social security card and the I-9 process is over.

However, the Maricopa folks ignored the requirements of the law.  If a job applicant was a U.S. citizen, these documents sufficed.  However, permanent residents were treated differently and were required to show their green cards, a clear violation of the law.

Of course, when they were apprehended by the Feds, the Arizona government folks owned up to their violations and paid the fine immediately, right? 

Not exactly...

One spokesman for the colleges protested that "we are extremely disappointed by the Justice Department's action.  We had no intent to discriminate against any foreign national and we feel that we have been singled out..."

Another said that she was "very surprised that administration would resort to a lawsuit.  In the past, the emphasis has been on mediation to resolve these issues."

To which I say: "Buck up Arizona!  Do you want tough immigration enforcement or not?"

 

Time for ICE Memo Critics to Chill

On August 20, John Morton, the Assistant Secretary of the U.S. Immigration and Customs Enforcement (ICE), released a memorandum entitled "Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Application or Petitions".  

The memorandum applies to persons in removal proceedings who meet the following criteria: 

• The alien must be the subject of an application or petition with USCIS to include a current priority date, if required, for adjustment of status;
• The alien appears eligible for relief as a matter of law and in the exercise of discretion;
• The alien must present a completed "Application to Register Permanent Residence or Adjust Status (Form I-485)", if required; and
• The alien beneficiary must be statutorily eligible for adjustment of status (a waiver must be available for any ground of inadmissibility).   
  

In such cases, the ICE Attorney will ask that the Immigration Judge dismiss the removal proceedings without prejudice to the government requesting that the alien be removed from the United States if his application or petition is denied by the USCIS.

ICE will request that the USCIS rule on the pending petition/application within 30 to 45 days. 

The ICE attorney will not request that the case be transferred to the USCIS if "there are any investigations or serious, adverse factors weighing against the dismissal of proceedings.  Adverse factors include, but are not limited to, criminal convictions, evidence of fraud or other criminal misconduct, and national security and other public safety considerations."

What would a typical case covered by this memo look like?  

Juan, an overstay visitor to the U.S. was placed under removal proceedings by ICE when his wife Julia, a lawful permanent resident, petitioned for him to become a permanent resident of the U.S.  The couple has been married for four years, and are the parents of two U.S. children.

Last week, Julia was sworn-in as a U.S. citizen.  This makes her husband immediately eligible to become a green card holder.  Juan is a construction worker, the family's breadwinner and has no criminal record.

The question is, should the already overburdened Immigration Judges have to decide Juan's application for adjustment of status or should the case be transferred to the USCIS to resolve?

Consider that 200+ Immigration Judges across the country have a backlog of nearly 250,000 pending deportation cases, some of which involve criminals and those who have committed immigration fraud.  Coping with over 1,000 cases per year creates huge problems.  A legal issue is raised in the case of a person with a drug trafficking conviction, and the Judge is forced to postpone the case and allow the person to remain in the U.S. for a year or more while he reschedules the case for a "merits" hearing.  In simple English, the present system does not allow the Judge to focus on the "bad guys".

It is estimated that the August 20th memo will permit up to 17,000 cases to be removed from the Court's backlog and transferred to the USCIS.  True, this reduces the backlog by less than ten percent, but it is a step in the right direction.

Of course, with the 2010 midterm elections in full swing, Senator Grassley (R-IN) and various anti-immigration groups call this an example of the Administration's refusal to enforce our immigration laws.

This former INS Trial Attorney (1976-82) calls it "simple common sense".

The Family 2A Category Rocks!

Many of our clients have been crying tears of joy because of the September Visa Bulletin. The best news is the advance in the family-based 2A category. Just one year ago, the wait exceeded five years.  Now, the wait is down to just 8 months!

This is very important to persons who were granted green cards under the EB-3
category before the retrogression, and who have been waiting for years for their
spouses/children to “follow to join” them.

Last week, I spoke to a nurse who got her green card in 2007 based on her 2006
EB-3 priority date.  She has been separated from her children for years.  They
are waiting for her EB-3 priority date (2006) to be current, an event which is
probably at least two years away.  I let her know that we could obtain immigrant
visas for her children in less than one year using the family-based 2A category
if we submitted I-130 visa petitions for them.  She is thrilled.

Below is the letter that we have sent to some of our EB-3 clients advising
them of the significant forward movement of the 2A priority dates and how it
affects their families:

“Our records indicate that you were granted permanent residence in _______________. Since that time, the EB3 category has become increasingly backlogged.  As a result, many dependent spouses and children who were not processed at the same time as the principal were left behind and have still not received their green cards.  Unfortunately, because of the backlogs, we cannot predict how long it will take for a visa number to become available to your family member even though they have the same priority date as yours. 
 
“We are writing to remind you that as a permanent resident you may file an immigrant visa petition (Form I-130) for your spouse or children under 21 years of age at any time. There are waiting times/backlogs associated with such petitions as well.  However, they may be much shorter than the EB3 category which is backlogged to December 15, 2004.
 
“Spouses of permanent residents, and children under 21 years of age, are in the second family category called F2A.  As of September 2010, people in the F2A category with priority dates of January 1, 2010 or earlier are now eligible for permanent residence.  So you can see that the F2A category is backlogged until 2010, which is better than 2004 for EB3. 
 
“The priority dates for family and employment categories are listed on the State Department’s monthly Visa Bulletin and can be accessed at 

http://travel.state.gov/visa/bulletin/bulletin_5113.html  

“Depending on how quickly the EB3 category moves forward, it may be faster to sponsor your family member in the F2A category. 
 
“Please keep in mind that you will be eligible for naturalization 5 years from the date when you got your green card.  You may apply for naturalization 90 days before your 5th year of permanent residence.  Spouses of U.S. citizens, and children under 21, are called “immediate relatives” and are not subject to the backlogs.  Thus your eligible family members would be immediately eligible for a green card once you become a citizen and file an I-130 petition for them, wherever they are. 
 
“If you naturalize after filing an I-130 petition on behalf of your family member(s),
you can ask for the petition to be “upgraded” from the F2A category to immediate relative status.  This will take your family member(s) out of the backlogs and speed up the process. 
 
“I hope this information is helpful for you and your family, and allows you to be proactive in keeping abreast of your priority date/s. Feel free to contact our office if you have any questions or require assistance.”  

Sincerely yours,

Carl Shusterman

Why Matter of Wang Got It Wrong - Four Fallacies

From its passage in 2002 until now, the USCIS has never issued so much as a memo explaining how to interpret the "automatic conversion" clause of the Child Status Protection Act (CSPA).  They left it to the Board of Immigation Appeals (BIA) to explain this in Matter of Wang in 2009.  The USCIS argued that the clause be interpreted in the most restrictive way possible, and surprisingly, the Board bought their argument.

However, Matter of Wang may have a short shelf life, and here's why:

 

1) The “Administrative Delays” Fallacy

In Matter of Wang, the Board states that “we find that while the legislative record demonstrates a clear concern on the part of Congress to ameliorate the delays associated with the processing of visa petitions, there is no indication in the statutory language or legislative history of the CSPA that Congress intended to create a mechanism to avoid the natural consequence of a child aging out of a visa category because of the length of the visa line.”

Not in the statutory language, really?

The Board needed to look no further than Section 6 of CSPA which allows beneficiaries of family-based 1st preference visa petitions to “opt-out” and become permanent residents under the 2B category if the visa line is shorter, no administrative delays required.

The same holds true for Section 2 of CSPA which freezes the age of certain children as “immediate relatives”.  If a permanent resident parent petitions her daughter under the 2A category and then naturalizes one day before the daughter’s 21st birthday, CSPA designates the daughter as an immediate relative.  This designation lasts forever, as long as the daughter does not marry (in which case the petition automatically converts to the 3rd category).  Again, no administrative delays required.

So, if Congress provides relief to beneficiaries “because of the length of the visa line” in Section 2 and 6 of CSPA, why can’t they do the same in Section 3?

Also, the Board could not find anything in the legislative history to support the proposition that CSPA was introduced in part to unite families separated because of the “natural consequences of a child aging out of a visa category because of the length of the visa line”. However, the Board ignored the statement of Senator Dianne Feinstein when she introduced CSPA in the Senate on April 2, 2001: 

“The legislation I have introduced today would provide a child, whose timely filed application for a family-based, employment-based, or diversity visa was submitted before the child reached his or her 21st birthday, the opportunity to remain eligible for that visa until the visa becomes available…

“…a family whose child's application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child's 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This is what is commonly known as ‘aging out.' (Emphasis added)

“Situations like these leave both the family and the child in a difficult dilemma. Under current law, lawful permanent residents who are outside of the United States face a difficult choice when their child ‘ages-out’ of eligibility for a first preference visa. Emigrating parents must decide to either come to the United States and leave their child behind, or remain in their country of origin and lose out on their American dream in the United States. In the end, we as a country stand to lose when we are deprived of their cultural gifts, talents and many contributions.”

What could be more clear?

 

2) The “Cutting in Line” Fallacy

In explaining to Mr. Wang why his daughter is not allowed to join her family in the U.S., the Board’s decision is filled with references like “cutting in line ahead of others”, “displacement of other aliens” and “’jump’ to the front of  the line”. 

  
No doubt, the Board sees itself as the upholder of fairness and the American Way.
However, what the Board is really doing is displacing Mr. Wang’s daughter from her rightful place in line.  The visa petition was filed in 1992 when she was ten, but her priority date became current in 2005, after she had “aged-out”.

The Board’s decision boils down to “Tough break kid, but we are not going to give you credit for all of the years that you waited in line for your green card.  Go to the back of the bus!”

Ironically, the Board’s decision is based, to a significant extent, upon a 1987 INS regulation, 8 C.F.R. 204.2(i), which allows beneficiaries of family-based petitions to convert from one category to another, whatever their age.  Say that your father petitions for you as a married son, and many years later, you get divorced.  Bingo!  The petition is automatically converted to the appropriate category.  And one would suppose, given the Board’s decision in Wang that the beneficiary would have to go to the end of the line, right?  Anything else would be "cutting in line", "displacing" others and "jumping" to the front of the line.  Well, guess what, the regulation does not make beneficiaries go to the end of the line.  They get full credit for the time that they have already waited in line. And we have never heard anyone suggest that this is unfair, certainly not the government agency (INS/USCIS) which wrote the regulation.

 

So why then is the Board ordering Ms. Wang to go to the back of the line?

 

3) The Statutory/Regulatory Context Fallacy

The Board states: “We begin with an examination of the regulatory and statutory contexts in which Congress enacted the automatic conversion and priority date retention provisions of section 203(h)(3).”

The Board begins by examining the regulations found at 8 C.F.R. 204.2(i) (referred to above) and 8 C.F.R. 204.2(a)(4) which allows derivative beneficiaries of 2A family petitions to retain their priority dates (without going to the back of the line) as long as their parent submits a 2B visa petition on their behalf.

They also consider section 201(f), INA which was added to the law by Section 6 of CSPA (referred to above).

How comprehensive is the Board’s review of the regulatory and statutory scheme?

The Board does not discuss any pre-CSPA statutory authorities, even though there are numerous laws dating back to at least 1976 which allow beneficiaries to convert approved petitions from one category to another, sometimes even between family and employment categories, and to retain old priority dates obtained under different categories.

In our briefs, we discuss the Western Hemisphere Saving Clause, the Immigration Nurse Relief Act, the Patriot Act, the Violence Against Women Act and many others.  Without explaining our arguments here (If you are interested, you can read our briefs online.), we find it a bit puzzling why the Board did not even mention any of these laws in examining the “regulatory and statutory contexts in which Congress enacted the automatic conversion and priority date retention provisions of section 203(h)(3).”

Could it be, as Paul Simon wrote in the song “The Boxer”, that “a man hears what he wants to hear and disregards the rest”?

 

 

4) The "Ambiguity" Fallacy

The principal question in Wang is who subsection 203(h)(3) applies to.

 

Once the Board answered this question, the next step would be to discuss how the “automatic conversion” and “retention” clauses operate.

However, Mr. Wang lost at step one.  The Board held that subsection 203(h)(3) only applies to derivative beneficiaries if they were originally included in the 2A category.

 

A bit bizarre?

A primary rule of statutory interpretation is if the language of the statute is clear, this is the end of the matter.  Only if the language is “ambiguous” does the Board need to go outside the statute to interpret what the words mean.  In Wang, the Board determined in the space of a single paragraph (cited below) that the language of the law was ambiguous:

“If the beneficiary is determined to be 21 years of age or older pursuant to section 203(h)(1) of the Act, then section 203(h)(3) provides that 'the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.' Unlike sections 203(h)(1) and (2), which when read in tandem clearly define the universe of petitions that qualify for the 'delayed processing formula,' the language of section 203(h)(3) does not expressly state which petitions qualify for automatic conversion and retention of priority dates. Given this ambiguity, we must look to the legislative intent behind section 203(h)(3).”

 

Not so fast!

 

Both sections 203(h)(1) and 203(h)(3) use identical language in describing to whom they apply.  Under the rules of statutory construction, if the same language is used in the same statute, it is presumed to have the same meaning. 

Both sections, in describing who they apply to use the words “for purposes of subsections (a)(2)(A) and (d)”. 

Subsection (a)(2)(A) refers to beneficiaries of family 2A petitions while subsection (d) is much more expansive.  It refers to derivative beneficiaries of all family-based, employment-based and lottery-based categories.

This seems crystal clear.  So where is the ambiguity?

 

Consider the paragraph from Matter of Wang which is quoted above.  Subsection (1) refers to subsection (2) which defines the words “for purposes of subsections (a)(2)(A) and (d)” exactly as we did above.  So far, so good.

However, although the Board reads subsections (1) and (2) “in tandem”, for some inexplicable reason, it elects to treat subsection (3) in isolation despite its reference to subsection (1) and its use of the identical language as to whom it applies.

The Board adopts the Government’s curious argument that subsection 203(h)(3), unlike subsection 203(h)(1), applies only to derivative beneficiaries of 2A petitions, and not to any other derivative beneficiaries.

What the Board never even attempts to explain is why Congress uses the phrase “for purposes of (a)(2)(A) and (d)” if the clause only applies to 2A petitions.  What then does the phrase “and (d)” mean?

 

And if section 203(h)(3) applies only to derivative beneficiaries of 2A petitions aging-out and becoming part of the 2B category, why does the subsection say that they automatically convert to the "appropriate category" as if there were more than one category to which they are able to convert to?  The Board neglects to explain this.

It is counterintuitive that Congress would be more concerned about preserving family unity in 2A cases which involve families of permanent residents than in cases involving families of U.S. citizens.

Cases challenging the reasoning in Matter of Wang are currently pending in the U.S. Courts of Appeals for the 2nd, 5th and 9th Circuits.  On August 16th, the government submitted an 88-page reply brief in the class action lawsuit pending in the 9th Circuit.  In conjunction with the Law Office of Robert Reeves, we are working on a final reply brief which we will post online as soon as it is submitted to the Court.  Our brief is due on October 5th.
 

The September 2010 Visa Bulletin: Great Leap Forward, for Some

Last month, we spotted some language written by the State Department in the August Visa Bulletin which indicated that certain categories might advance rapidly in the September 2010 Visa Bulletin.

And for many thousands of people, the September Visa Bulletin is a dream-come-true. Not for those with India and China employment-based (EB) priority dates who have waiting in line for much too long (Did you hear that, Congress?).

For who then?

For those in the worldwide EB-3 category for instance.  For professionals and skilled workers, the numbers advanced over 5 months in September while for unskilled workers, the advance was over 10 months.

The worldwide family numbers advanced between 2 and 12 months, much faster than they did back in September 2009.  The biggest movers in the worldwide family categories were 2A (spouses and children of permanent residents) and 2B (unmarried adult sons and daughters of permanent residents).  2A advanced 10 months while 2B moved forward one full year!

If people stuck in the worldwide family backlogs have something to cheer about, persons born in the Philippines, a country where demand for visa numbers far outpaces the supply, are positively ecstatic!  Family 1st advanced by one full year, 2A by 10 months, 2B by one year, 3rd by 8 months and 4th by 9 months!

Many of our clients have been crying tears of joy because of the September Visa Bulletin.