More on the Spouses of Soldiers from Tennessee

BROKEN PROMISES, BROKEN HEARTS: "Outraged lawmakers promised to intervene when they heard the story of a young Japanese widow who was being forced to return to her native country, despite her American Marine-husband's wishes that she raise their son in Tennessee.
But more than a half-year later, the young mother and her baby son have gone back to Japan, her Tennessee in-laws are heartbroken, and the legislation that was supposed to keep the family together has stalled in Congress."

See, http://www.knoxnews.com/news/2010/may/08/broken-promises-break-hearts/ Read more!

Our Soldiers' Undocumented Families

Last week, I won the appeal in a case involving the foreign born husband of a woman who was set to deploy to Afghanistan over a year ago. She is now serving with the U.S. Army in Iraq. Until we were victorious on our appeal, her husband was subject to removal from the United States because he had been illegally here since childhood when his parents brought him over the border from Mexico. Last Friday, the New York Times, ran a story about other soldiers whose spouses are not documented and the constant fear of deportation that looms over them. As my client's wife argued before the Immigration Court, which denied her husband legal permanent residence, how can I properly serve my country if I do not have the peace of mind of knowing that my husband and our child, who was born in the U.S., are safe from the threat of being separated?

So the Times article rang familiar to me when I read it. It profiles a Filipino-born, U.S. naturalized lieutenant, his Filipino wife, who is not here legally, and their three year old American-born daughter. This man had never before wanted to reveal his wife's undocumented status since he believed no one would understand, although the situation undoubtedly affects many people in the U.S. Armed Forces. He pointed out that people's biases against illegal immigrants had made it uncomfortable for him tell his wife's story. The Times also confirmed that, "the legal boomerang that snared her and many others was created in 1996, when Congress imposed automatic restrictions on illegal immigrants, barring them from returning for periods of 3 to 10 years after they leave the country, regardless of whether they were deported or left voluntarily. However, in many cases the law also requires immigrants who are approved for legal documents to complete their paperwork at American consulates in their home countries." This is the same situation which my client faced. If he left the the country to process at the U.S. consulate to obtain the visa that would make him a permanent resident through his marriage to a citizen, he would trigger a ten year bar from returning because he had lived in this country illegally for more than one year. At the time of its passage, we called this provision the "illegal Mexican" law because it clearly affected Mexicans (and Central Americans) disproportionately. Most other nationals who are present in the United States illegally have overstayed a visa, which, although a violation of immigration law as well, still allows them to obtain their "green cards" inside the U.S. when they marry a U.S. citizen, without ever leaving and hence triggering the burdensome 3 or 10 year bars to return.

The difference in my case is that the immigration authorities had caught up with my client and so he had another means by which to gain lawful permanent residency (LPR) called "cancellation of removal," which is available only as a defense against removal. It is a defense that allows one to gain status if he can prove to an immigration court that he has lived continuously in this country or ten years; has "good moral character"; and his or her U.S. citizen or LPR spouse, child or parent would suffer exceptional and extremely unusual hardship were the relative deported. As you can imagine, this is a very difficult standard for people to meet. To assess a claim, I often ask a potential applicant whether his or her spouse has a terrible illness, or whether his or her child is disabled, and find myself saying, "too bad," when a person gladly reports that his or her family's health is just fine, thank God. It is a cynical legal provision that generally allows only those families who who have experienced pain and suffering from gaining its benefits. As such, I come across few meritorious cases.

When I met my client, who was detained outside of Buffalo, although he grew up in California, I thought I had the perfect case. After all, my client had been his child's primary caretaker in these first few years of life, and it was clear in my mind that if his wife was about to deploy to a war zone, leaving behind the couple's young child, both mother and child would suffer the requisite hardship if my client were deported. Who would care for the child if one parent was serving abroad and the other had been deported? And what if the mother were killed in combat? The child's grandparents were not authorized to live in the U.S. either so having them care for the child was a tenuous option. But the immigration judge did not see it that way. He ordered my client deported, and we appealed. Fortunately, the Board of Immigration Appeals agreed with us and granted my client cancellation of removal. He will get a "green card.".

However, while my client is back in California with his child, sadly, the lieutenant in the news article is waiting for immigration reform to keep his wife in the United States. Read more!

Citizenship at Risk

The most recent piece of legislation being considered by our more foolish politicians is a bill which would allow the U.S. State Department to strip the citizenship of any American engaged in terrorism. Specifically, this law could be invoked if one serves in the Armed Forces of a foreign state engaged in warfare against the U.S., commits treason against the U.S., or provides material support to a terrorist organization. The legislation was motivated by the recent arrest of a Pakistani-American for allegedly plotting to bomb Times Square.

Many commentators have pointed out other serious flaws in the bill based on solid legal precedent and the Constitution, including Supreme Court decisions that have rejected such attempts to take away one's citizenship. I will not spend time on those arguments since they are readily available.

The first thing that strikes me about this proposed law is that it is a covert way of threatening naturalized citizens. While its sponsors may argue that any American could be affected, I highly question such a proposition. After all, if you strip the citizenship of someone born in the United States, they become stateless. So then to where will you deport them once you’ve succeeded in taking away their citizenship? Obviously, deportation is the unltimate goal in taking away a person's citizenship. And if you cannot deport a suspected terrorist then they remain a risk to our communities unless, of course, you indefinitely lock up him or her. However, the U.S. Supreme Court ruled several years ago that the indefinite detention of a noncitizen is unconstitutional. Since there are much too many problematic legal issues with the proposition that this proposal would affect all Americans, I contend that this bill, whose primary sponsors are Joe Lieberman and the new Republican hero of Massachusetts, Scott Brown, is only directed at immigrants. Immigrants who have naturalized.

I am also concerned with the very fluid definition of providing "material support to a terrorist organization" and the fact that the Government clearly makes mistakes in determining who are terrorist and who are their supporters. Watch Strange Culture, an excellent film about the ordeal of University of Buffalo Art Professor Steve Kurtz, who waged a four year battle against the U.S. Attorney’s Office after he was accused being a “bioterrorist.” Kurtz ultimately prevailed in the case, but his colleague from the University of Pittsburgh pled guilty to a related offense because the stress of the lengthy prosecution was severely affecting his health and well-being. You may also want to watch Rendition. Although it is not a magnificent movie, this Hollywood thriller very strikingly depicts how innocent people can get caught up in the web of the “war on terror.” It also reminds us that under torture, one will say anything, and presumably, do anything, to avoid the pain. Which brings me to the second critique I have read about this bill.

According to a CNN. com article, Lieberman has announced that citizenship will be stripped when a person declares the intent to renounce it or if the State Department is “led” to make such conclusion. I cannot help but wonder the conditions under which someone might “voluntarily” renounce his or her citizenship. I know U.S. citizens who confortably live abroad and wish to avoid tax liability in this country do so. But what about when one accused of terrorist acts claims innocence Could it be that when the stress of defending his or her innocence affects their mental and physical well-being so that they finally give in? Or might the Government engage in more volatile tactics like waterboarding to convince an alleged terrorist to renounce citizenship?

It seems to me that this bill embarks on a very dangerous course as do many knee-jerk reactions. Fortunately, other attempts to easily strip a person of his or her U.S citizenship have failed, as I assume this one will. There is already a legal procedure to denaturalize individuals. The lengthy litigation against Ukrainian-born John Demjanjuk, a U.S. citizen accused of being a member of the German SS and a camp guard at Sobibor, is a clear example that the current procedures is effective and respects due process. Why do we need something else? Read more!

A Pardon is not Enough

Two news items ran across my desk at about the same time this past week, and both made an impression on me. One was a press release announcing that Governor Paterson of New York was convening a panel to determine whether certain lawful permanent residents with criminal convictions might deserve a pardon in order to avoid deportation from the United States. The second was in the local paper’s gossip column, and addressed the recent conviction of actor Michael Douglas’s son for selling drugs.

I very much welcome Governor Paterson’s decision. It’s a compassionate and just thing to do, and I know that he was motivated by the compelling case of Qing Wong Hu, which was posted below in March 2010 (“Once and Aggravated Felon, Always an Aggravated Felon” and “Immigrant Released After Pardon”). According to the press release, the Governor would consider the cases of those who have minor or old convictions, and have shown extensive efforts toward rehabilitation. He affirmed that he wanted to inject fairness into an “embarrassingly and wrongly inflexible” system that expels immigrants without discretion, without considering the circumstances of a person’s life or family, or even holding hearings to consider the possibility that deportation might be unwise or unjust.

Unfortunately, I also realize that the Governor’s proposal will affect few of my clients because under immigration law, a governor’s pardon (or a president’s pardon for that matter) will not eliminate a criminal conviction for immigration purposes if the offense involves a controlled substance (though it could eliminate a violent crime!). Most of my clients face removal from this country for drug-related convictions. Notwithstanding this legal “technicality,” dozens upon dozens of immigrant detainees at the detention facility in Batavia, where I work providing “Know Your Right’s presentations, have been requesting Governor Patterson’s address and the “form” for a pardon in the past week. There is no form, and unfortunately, many of these men have been given only a false hope.

Drug crimes are considered the worst of the worst. The president declared a war on drugs some 22 years ago, and despite the fact that this country is losing virtually every battle in that war, Congress continues its zealous policy of incarceration and deportation, while giving short shrift to rehabilitation and forgiveness. Permanent residents of the United States pay the highest price for our myopia. The U.S. Supreme Court reiterated its concern about the harshness of deportation, which it likened to exile or banishment, in its recent decision according a 6th Amendment constitutional right to noncitizen defendants to ensure that they received sound legal advice about the immigration consequences of a criminal plea.

There is no immigration reform proposal that I have come across which addresses the injustice of summarily deporting an immigrant for a conviction. As I have repeatedly stated, I believe we should roll back immigration law to a time where most “green card” holders with drug related convictions could present their equities to an immigration court to avoid deportation. The best proposal currently comes from a group of Democratic legislators and is called Real Enforcement with Practical Answers for Immigration Reform (REPAIR). It proposes limiting the definition of “aggravated felony” under the immigration law to actual felony convictions. This is a logical and positive step, but it would still not eliminate the severe consequences for many of those convicted of a controlled substance offense.

The sad reality is that drug addiction almost inevitably leads to criminal behavior such as the possession of controlled substances and the sale of drugs, which is often done to support the habit. Most of my clients, like hundreds of others in our criminal justice system, are not part of any international trafficking cartel or violent street gang. They are substance abusers whose addictions have never been adequately treated and have led them to a criminal act.

This brings me to the second article I mentioned earlier—the story of Cameron Douglas, the 31 year old son of the actor Michael Douglas. Earlier this month, he was convicted and sentenced to five years of imprisonment for selling drugs. His father commented publicly and stated the sentence would serve to save his son’s life. The young man was either going to end up dead or someone was going to kill him, the elder Douglas stated to the media. He added that Cameron would rebuild his life, and the father would support the son through his ordeal. He also took responsibility for his son’s addiction by admitting he’d been an “absentee father,” too concerned with building his career. Ultimately, Douglas said that his son was a great young man despite his mistakes and the disease of addiction from which he suffers.

I was struck by this little piece because it reminded me of my client’s families and the countless statements I’ve heard from the witness stand when a parent, spouse or sibling attempts to explain to an immigration judge why their relative did not deserve deportation after serving their time for the crime he or she committed.
I guess I feel about some of my clients the way Michael Douglas feels about his son. Many people deserve a second chance. Read more!

Am I illegal?

There has been quite a bit of immigration law activity since I last posted over one month ago. At first, I was just trying to take it all in. Now, I’m ready to comment on it.

The State of Arizona has decided to enforce immigration law by granting state and local police the authority to question someone whom they reasonably suspect is illegally in the United States. Advocates are justly concerned about racial profiling. After all, it is not unlikely that the color of one’s skin or the language one speaks will lead a law enforcement officer to believe a person is not legally in this country. Yet let me assure you that there are plenty of white Europeans who are also illegally present in the U.S. after entering illegally or overstaying a temporary visa. Thus if law enforcement is considering only brown skin and Spanish language, then they may not be doing their job effectively. They may need to visit a French restaurant or two to determine that the waiter with the charming accent is there to lend authenticity to the place, regardless of whether he’s authorized to work here or not.

In addition, I have a concern about this new legislation as well. Simply said, it is difficult for someone who is not well versed in immigration law to determine whether a person is legally in this country, and I’ve seen even the U.S. Border Patrol struggle with this issue.

For example, did you know that someone with an expired visa can still be present legally because they are in lawful status? And, on the other hand, someone whose visa is valid can be out of status, and hence, illegally present in this country? This issue alone has caused some disagreements between Border Patrol and foreign student advisors in our region of the country.

A foreign-born student may enter the United States with a visa to study. However, the visa itself is simply an entry document authorizing one’s admission to the country. It does not authorize a period of stay. In fact, most students are admitted for the “duration of their status.” That is, the time they require to complete their program of study whether that is a summer language course or a PhD. In order to be deemed in status, a foreign student must have another document, called an I-20, which is issued by the school which he or she attends. The I-20, which is merely a sheet of paper or two, confirms that a student is complying with the requirements of student status, such as following a full-time course study. Authorities who have never encountered such a document may believe a student is illegally in the country if his or her visa is no longer valid. However, as long as the I-20 is valid, the student is legally present.

By the same token, foreign born tourists may get a visitor visa that is valid for one year or ten years, or like Canadians and many Europeans, may not even require a visa to enter the U.S. However, the visa does not reflect how long a tourist is authorized to remain in this country. Another document, an I-94, that is issued by immigration officials at the airport or other port-of-entry (except to Canadian citizens), determines how long one is allowed to stay. Once a visitor’s period of stay lapses, he or she may be illegally present in the U.S. despite what the visa may indicate.

In both the case of the tourist and the student, working without authorization may also render him or her out-of-status. Therefore, both the visa and the accompanying documentation may indicate legal presence, but the act of working illegally has rendered the foreign national “illegal.”

Those are a lot of technicalities, yet I could go on about the subtleties of determining whether one is legal or not. I wonder if Arizona’s law enforcement community can catch up in the few months remaining before the law goes into effect. Read more!