National Immigration Law Potential Changes and Challenges

On November 20, 2014, President Obama announced his “immigration accountability executive action.”  This program includes a number of changes to the immigration system.  One central change is to provide temporary relief for the parents of U.S. Citizens and lawful permanent residents. The President created this change, referred to as Deferred Action for Parents (DAP), in order to ensure that millions of U.S. Citizen and lawful permanent resident children will remain unified with their parents. In prior years, many U.S. citizen children have endured the heart break of watching their parents deported and their families torn apart.  The President also announced new enforcement policies and steps to improve the adjudication of business and family visas. President Obama did not provide permanent legal status to anyone, nor did he provide a path to citizenship.  Instead, the president encouraged Congress to work together to pass a comprehensive bill for Immigration.

Following this announcement, and the resounding victories for Republications in the last election, many Republications have been vocal about finding ways to block the reform.  Lawsuits were filed almost immediately in Federal court to challenge the Executive Order.  One of these actions in Washington, D.C. was already dismissed and one in Texas is still pending.     Additionally, many legislative actions have been proposed.  As the Senators and Representatives have returned in the New Year, many are focused on proposing bills to try to stop the Executive Action.  Aside from bills specifically proposed to strike back at Obama, the House Republicans strategy is to limit spending for the Department of Homeland Security in order to try to defund the programs.  Immigration advocates, however, are not sure of the efficacy of that plan.  USCIS is self-funded through filing fees.  Additionally, most USCIS officials are considered “essential government personnel.”  In the last government shut-down, 85% of USCIS staff were able to report to work because of their essential status.  Because the petitions for DACA and DAP would be sent into USCIS, it is uncertain how much, if any, the Republican defunding strategy would work.  Additionally, calls that President Obama has overstepped his authority are rebutted by showing that this is a power that most Presidents have exercised in the past, usually in larger degrees than the small steps that President Obama took in November.  From 1987 to 1990, President Ronald Regan and George Bush, Sr., both used the same executive authority to protect people from deportation under the Family Fairness actions.  Thus, it remains to be seen how much of a dent the Republican-led Congress will make in President Obama’s Executive Action. 

What are your thoughts on using executive power to help undocumented immigrants?

GIVE ME YOUR TIRED, POOR, HUDDLED MASSES AND WE WILL EXPEDITE THEIR RETURN TO DANGER?

A few weeks ago my husband and I took our children to New York City to see the Statue of Liberty for the first time.  As an immigration attorney, I was especially proud to provide for my children the awe-inspiring experience of seeing this beacon of hope in person.  I was honored to share the experience with them of arriving by boat to see Lady Liberty the same way my own ancestors were welcomed into America three generations ago.  I read to my children her most famous inscription:  

Give me your tired, your poor
Your huddled masses yearning to breathe free
The wretched refuse of your teeming shore
Send these, the homeless, tempest-tost to me
I lift my lamp beside the golden door!

I explained to my daughters that this statue and the words written so eloquently upon her embody the foundational idea that the country we live in is a sanctuary for those who are escaping persecution, terror and unthinkable violence.  I saw the pride on their faces.  The same pride that I have to live in a country that respects my religious views, that respects my choices as a women and believes educating my daughters is just as important as educating other people’s sons.  I told them that we live in a place where people have the freedom to work hard and pull themselves up and feel safe in their pursuits. 

But I fear that I may not told my children the whole truth.  A sample of the news articles today from publications all over the United States read a very different story than that which I told my girls.  From the Washington Post to the Associated Press to Fox News and beyond, journalists are reporting the plight of people from Honduras, Guatemala and El Salvador seeking shelter and Asylum in this country and being met with indefinite detention or expedited removal.  The stories of many of these people are those of the most fear-provoking nightmares.  Many have already experienced their young sons forcibly initiated into gangs and terrible violence to their entire family if they tried to stop it.  Others experienced their daughters kidnapped and raped and have watched their family-members brutally killed before their eyes and then heard the threats that they, themselves, will endure that same fate. 

The U.S. is a signatory of the 1967 Protocol to the 1951 Convention Relating to the Status of Refugees.  Article 33 states,  “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”  This is the “Principle of nonrefoulement.”  This bedrock principle forbids the deportation of a refugee into an area, usually their home country, where the person is likely to be subjected again to persecution, torture or death.   Our U.S. asylum laws requires that when a migrant in expedited or reinstatement of removal expresses a fear of return to their country of origin, they be referred to a US citizenship and Immigration Services (USCIS) asylum officer for an interview to determine whether their fear might qualify them for asylum or other protection.  Many of today’s papers report that these “credible fear” or “reasonable fear” assessment by agents from Customs and Border Protection (CBP) are being conducted in crowded rooms by officers still wearing their gun holsters.  If these people are truly fearful of those in authority in their country, their psychological ability to speak about their fears clearly and convincingly under these conditions is not realistic. 

I, myself, have interviewed many children who have been released to extended family-members in Georgia from these detainment facilities.  I always ask the children to please tell me their stories, while sitting in my office with the offer of a drink and snack, where I tell them they are safe now and to please trust me.  Even outside of the detainment facilities, many months after entering, sitting in my office with a cup of tea and no gun paraphernalia in sight, many of them are very reticent to talk.  They have been taught that talking about the threats will bring severe and tragic retribution.  How then can the officers fully screen all the people entering our county under the conditions as described at the detention facilities?

When I do gain an unaccompanied minor’s trust, and he or she tells me his or her story, I sit trying to mask my own shock that a child could have experienced these horrors already in his or her young life.  These children tell me of hiding in their homes from the traffickers and from the gangs.  They tell me of being forced to watch the rape of their friends.  They tell me of the cars that slow beside them as they are trying to walk to school, and being told they must sell drugs or they and their families will suffer the severe consequences.  Then they tell me of their journeys that brought them here.  When the fear becomes just too much to handle at home, their parents put every penny into paying a coyote to smuggle them across the border.  They ride on top of rickety trains where they must jump off at the time they are told.  They walk for days without food and in constant fear.  They endure harassment, heat, and thirst, all for the hope of safety.  And then they tell me of the day that they crossed in.  About the men with guns that greeted them, and the conditions they stayed in here, in the U.S.  When I ask what they want for their future, they all tell their simple wishes: to be able to walk to school without fear, to be able to work a legitimate job, to be reunited with their families.  I will do everything I can to help you, I say. What else can I say?

But my question today really is – what can I tell my children about these other children who are running for their lives?  Do we live in a country that will help them?  I understand and sympathize with President Obama’s difficult position.  He does not want to encourage more children to take the dangerous journey into our country.  If he continues to allow the children in though, to provide adequate counsel and asylum for those who are deserving, more will come and flood our limited resources at the border.  We have plenty of problems within our own boarders.  Should we be solving, or attempting to solve, the problems in all the other countries as well?  These are difficult questions, and I do not envy his position.  However, my question remains, what do I tell my children?  Are we a country that protects and provides asylum to the tired, poor and huddled masses?  Or are we a country that throws children in detention and then returns them to those who wish them grave harm? 

 

Special Immigrant Juvenile Status: Immigration relief for abused, neglected or abandoned children

Immigration: Comprehensive Reform vs. Piecemeal Reform

Advocates for comprehensive immigration reform are still going strong in the fight for passing one bill that would completely revamp our immigration system and deal, on a global basis, with border security, employment immigration, a path to citizenship for the Dreamers[1] and a way to handle the 11 million undocumented people currently living in the United States.  Advocates had high hopes for this reform to be passed through Congress prior to August 2^nd, when Congress went on its summer recess.  Although a comprehensive reform bill passed the Senate,[2] it had stalled in the House before the recess began.  A lot of debate still remains about border security and whether or not a path to citizenship should be instituted for the 11 million undocumented people living in the United States.  Now that our Representatives are home and meeting with their constituents, the immigration advocacy and debate has continued and the push for reform has not been swept under the proverbial table quite yet. 

A new debate is beginning though, amongst and between advocates for immigration reform.  While all are still pushing for full comprehensive change and relief, some in the advocacy committee are saying that reform may have a better chance for success if the bill is separated out and the individual immigration issues are dealt with on a one-by-one basis.  The idea is that some parts of immigration reform may be easier to pass through the House than others, and it would be better to get some reform than nothing altogether.  For example, the population of people who would be eligible for benefits if there was a new Dream Act passed would be far less than the total population of undocumented individuals in the U.S.  Additionally, the Dreamers are more sympathetic than their parents, in that in order to be a Dreamer, among other requirements, a person had to come over to the United States as a child, live and be raised in the United States, and go to school or have graduated from school or earned a GED in the U.S.  Most of these children came over when they were very young and did not have any “mens rea” or criminal intent when they crossed the border without proper documentation.  They also cannot have a criminal record.  The lack of guilt on their part makes reform for this group easier to accept for some legislators rather than, for example, their parent’s who knew what they were doing when coming over here.  In fact, Republican law makers considered passing a Dreamers Bill this past July.[3] 

As an advocate for immigrant children, I help abused and neglected children receive immigration benefits through Special Immigration Juvenile Status (SIJS) and older children and young adults in the “Dreamers” category through President Obama’s administrative order allowing for a partial “Dream” through Deferred Action for Childhood Arrivals (DACA).  Therefore, with this background in helping children, my first reaction is that some reform, especially reform that would help underrepresented children, who had no part in creating their current legal predicament, should be welcomed and celebrated with open arms. 

There is hefty push back on this, however.  Most surprisingly, the push-back is coming from the Dreamer’s population itself, the very group that would gain the most from a new Dreamers Act being passed.[4]  Their argument is that family preservation is paramount and nothing less than full reform for all undocumented individuals is acceptable.  Their parents risked everything for them to have a better life here in the U.S., and now they are taking a similar risk for their parents in opposing a new Dream Act. 

Last week, an Ohio family’s struggle made the national press because of the threat of deportation to the undocumented father, when his children need him here to help them, especially the special needs child who requires around-the-clock care by his parents.[5]  This is a fairly typically family with a mix of both documented and undocumented members residing in the U.S. within one nuclear family.  The push back from the children is that simply focusing on the children is not enough; because they need their parents here in the U.S. with them to thrive and grow into contributing members of society.  As an adoption and immigration professional, I agree and make this argument on a regular basis when the situation is turned around and the adopted child is undocumented and the parents are US citizens.  In other words, an adoption is only strong if the family can get the child immigration benefits as well as a finalized adoption so that the family can remain and live together as a unit.  If a child is at risk of getting deported, then the adoption also fails because the unity meant to be created by the adoption would be ripped apart.  The same reasoning should hold true even in non-adoptive families when the tables are turned and the children already have citizenship either through birth right or a new Dreamers Act but their parents are undocumented. 

Is it better to have some reform, especially for children, if that means that they could potentially stay here, but their parents might still face deportation?  Or should all advocates of immigration reform hold out and not promote anything less than comprehensive reform?

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[1] Dreamers are immigrants who entered the country undocumented as children

[2] The Senate Bill passed on June 26, 2013 after much debate.  It passed 68 to 32, with all Democrats and 14 Republicans in support of the comprehensive bill.  http://www.huffingtonpost.com/2013/06/27/senate-immigration-reform-bill_n_3511664.html

[3] House Majority Leader Eric Cantor and House Judiciary Chairman Bob Goodlatte, R-Va., worked to unveil the Kids Act to give Dreamers the same path to citizenship that they voted against in 2010.

[4] See Fox, Lauren,  GOP DREAM Act Not Enough For Dreamers, GOP’s piecemeal approach gets blasted by dreamers, US News, July 22, 2013, available at http://www.usnews.com/news/articles/2013/07/22/gop-dream-act-not-enough-for-dreamers.

[5] See Sarlin, Benjy, Ohio Family’s Struggle Defines Deportation Debate, MSNBC, August 16, 2013, available at http://tv.msnbc.com/2013/08/16/how-one-familys-immigration-struggle-defines-the-deporation-debate/

Additional Commentary to Margaret Stock's Recent Blog Post: "Sessions amendment would harm military families."

Additional Commentary to Margaret Stock’s Recent Blog Post:
“Sessions’ amendment would harm military families”

Margaret Stock, a renowned immigration attorney and retired Lieutenant Colonel of the U.S. Army, wrote a blog post Monday[1] pointing out that one of the proposed amendments by Sen. Jeff Sessions (R-Ala.) to the immigration reform bill written by the “Gang of Eight” would “cause huge problems for military family members by mandating the imprisonment for 60 to 90 days of people who overstay their permission to be in the United States." 

Margaret Stock argues in her article that this amendment would negatively affect military personnel who are trying to quickly bring their spouses over to the United States when they get transferred back to a home base and are erroneously advised to have their spouses petition for visitors visas, instead of waiting on the approval of a family-based petition.  Their spouses often over-stay the visitor’s visas once they get here while waiting for immigration benefits after the military personnel properly file a family-petition for them.

Under current law, overstaying a visa is an immigration “infraction,” not a “criminal” violation.[2]  Similar infractions under state law include seatbelt violations, simple speeding tickets or littering citations.  The most common infraction of this level, which most Americans at some point or another have done in their lives, is putting a letter in a friend’s mailbox instead of sending it through the post.  Sen. Sessions is suggesting putting people in jail for the immigration infraction of overstaying the visa.  Should we also start putting everyone in jail that puts a letter in the mailbox of a neighbor? What about for writing a bad check? Is this where we want our criminal justice tax dollars going? 

At Steffas & Associates, P.C. we adamantly advise and encourage our clients to go through the correct routes to gaining immigration benefits.  We explain that coming in on a visitor’s visa, if their intention is to immigrate, is fraud and should never be done.  We get many cases, however, when the clients, like those described by Margaret Stock, were wrongly told by other attorneys or friends to come in on the B-2 visa, and now they are here in the U.S. with a valid path to legalization.  For those who do this unknowingly, should we be putting them in our jails, and using tax dollars to criminalize people who have married our servicemen and women who work and fight to protect our country? I think not.  

I think instead we should help them gain their legal status and worry more about putting in jail people who are committing real immigration crimes, such as trafficking women and children.  According to U.S. State Department data, “an estimated 600,000 to 820,000 men, women, and children [are] trafficked across international borders each year.”[3]  The people who are committing these heinous crimes against our immigration laws and against the laws humanity, are just one example of money better spent on the criminal side, than jailing the spouses of men and women who serve our country. 

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[1] http://thehill.com/blogs/congress-blog/homeland-security/300797-sessions-amendment-would-harm-military-families

[2] It only becomes criminal and has eligibility for jail-time if the Attorney General decides to pursue a particular case.

[3] Trafficking in Persons Report, (June 3, 2005), Office to Monitor and Combat Trafficking in Persons, Department of State, http://www.state.gov/g/tip/rls/tiprpt/2005/46606.htm.