Musings on Immigration

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What Happens When USCIS Breaks The Law?

Perhaps it has been too long since USCIS has truly been held accountable for its actions that it has become desensitized to the legal constraints under which it is permitted to operate. The USCIS is not given carte blanche to make whatever changes or interpretations it wants to long-standing immigration law, without first complying with the Administrative Procedure Act (”APA”). Yet, twice in the last two months the USCIS has issued “memos” that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA.

USCIS has taken ignoring Federal Law to a new level with its recent actions. Of course we all know that the USCIS has been illegally changing the rules as they apply to individual cases for the last several years by engaging in “rulemaking by RFE;” making ridiculous requests for evidence, not based on any legal requirement, but rather, based upon someone’s bizarre notion of what they think the law should be, not what it really is. Now, however, with the two newest “Neufeld Memos” the USCIS has simply gone too far.

The Neufeld memo on the EB-5 program, essentially makes that job creation program unworkable, and the Neufeld Memo on the H-1B program, literally changes decades of established policy on the most important visa allowing U.S. companies to hire foreign nationals. The USCIS, without any input from the users of the program (really, there was no input), has broken the camel’s back. Absent an immediate withdrawal of these memos, it is quite clear that in order to keep these programs workable, additional action will have to be taken. AILA USCIS HQ Liaison Committee has sent to USCIS Chief Counsel Roxana Bacon a detailed letter explaining how the USCIS has fundamentally eviscerated the H-1B program, and has clearly violated the APA. I strongly urge you to read it, to understand the depths to which the USCIS has delved in its war on the H-1B program.
I have no doubt that the USCIS’s intention in issuing these law-altering memos is to somehow curry favor with certain Senators who share a concern about the H-1B and the EB-5 programs, in regards to the fraud that exists in them. No one disputes that fact that some bad users have abused this program; some intentionally, others ignorantly. But, changing the rules to prohibit the legal and correct use of the program to catch bad actors is not the way to make a program work effectively. Enforcing existing laws against fraud, and not classifying legitimate industries as evil, is the way to go about cleansing the program of inappropriate users. The USCIS’s own failure to police the programs cannot justify what they have just done.

Here is a simple request to Director Mayorkas. When the your agency is going to issue a major policy change, perhaps you might want to ask users of your “service” whether what you want to do accomplishes its true purpose. I can assure you, that these two recent memos do not accomplish what you think they do, nor what you may have been told they will do. There is only one solution to the crisis caused by the recent pronouncement. To paraphrase President Ronald Reagan: Mr. Mayorkas, Withdraw Those Memos!

Important Information on Haiti Adoptions

I’ve been receiving lots of inquiries about how we can help the children who were orphaned by last week’s earthquake in Haiti. The answer is - it depends.

Just like any foreign adoption, an inter-country adoption from Haiti is a complicated process requiring us to prove that the child in question is an orphan and obtain an adoption decree which complies with the laws of the child’s home country- in this case Haiti.

Department of Homeland Security (DHS) Secretary Janet Napolitano, in coordination with the U.S. Department of State (DOS), announced a humanitarian parole policy allowing orphaned children from Haiti to enter the United States temporarily on an individual basis to ensure that they receive the care they need.

Children who have been identified as orphans eligible for adoption and who have been legally adopted in a Haitian Court or who were about to be adopted in a Haitian Court and who had established a relationship with the American prospective adoptive parents will be allowed to enter the United States on a case by case basis. If you are an adoptive parent in this situation, it’s time to contact an immigration attorney.

But what about the children who were not orphans prior to the earthquake? In order to adopt any child and bring her to the United States, the adoptive parents must prove that the child is an orphan. Orphans are those children who have been separated permanently from their parents by death, disappearance or desertion.

Children may be temporarily separated from their parents or other family members during a natural disaster or conflict, and their parents may be looking for them. It is not uncommon in an emergency or unsettled situation for parents to send their children out of the area, or for families to become separated during an evacuation. It can be extremely difficult to determine whether children who appear to be orphans truly are eligible for adoption when a natural disaster has occurred. Even when it can be demonstrated that children have indeed lost their parents or have been abandoned, they are often taken in by other relatives in the extended family.

During times of crisis, it can also be exceptionally difficult to fulfill the legal requirements for adoption of both the U.S. and the child’s country of origin. This is especially true when civil authority breaks down or temporarily ceases to function. It can also be difficult to gather documents necessary to fulfill the legal requirements of U.S. immigration law. How do we prove that a child’s parent is really dead and not laying unconscious in a hospital? How do we locate the parents of an infant who cannot tell us her name or the names of any relatives?

I expect that the United States will announce a temporary moratorium on adoptions of “earthquake orphans” until the country of Haiti has identified which children have truly been orphaned. Although we have no idea of the numbers involved, it looks like thousands of children may have been orphaned and it could take quite some time for Haitian authorities to start functioning in a way that will allow them to do this.

In the meantime, there are plenty of ways to help Haitian orphans while they wait for adoptive parents- click on the links below to see learn how you can make a donation to a reputable relief organization currently helping victims of the earthquake.

Aid Groups Call for a Halt of New Adoptions in Haiti

Save the Children, World Vision and a unit of the British Red Cross have called for a halt for new adoptions in Haiti. The focus must be on tracing any family members that children may still have and reuniting them.

“Any hasty new adoptions would risk permanently breaking up families, causing long-term damage to already vulnerable children, and could distract from aid efforts in Haiti,” the agencies said in a joint statement.

Stories of Haitian orphanages struggling after the quake and the plight of the children there also has led many kind hearts to ask about adopting children.

After reading a CNN report on Haitian orphans, reader Dana Fanning wrote, “It broke my heart. My husband and our 4 children want to know if and how we could adopt [any] of the children orphaned by the earthquake.”

Save the Children Chief Executive Jasmine Whitbread said the “vast majority” of children on their own in Haiti are not orphans, but were simply separated from their families in the chaos.

Their family members may still be alive, she said, and “will be desperate to be reunited with them.”

“Taking children out of the country would permanently separate thousands of children from their families — a separation that would compound the acute trauma they are already suffering and inflict long-term damage on their chances of recovery,” Whitbread said.

Allowing a flood of new adoptions also could open the door to traffickers, said World Vision Chief Executive Justin Byworth.

The poverty in Haiti already makes children there “extremely vulnerable” to exploitation and abuse, Byworth said.

“We are concerned not only about premature overseas adoption but also about children increasingly being sent unaccompanied to the Dominican Republic,” he said.

Aid groups said adoptions that were already in progress before the January 12 earthquake should go ahead, as long as the right legal documents are in place and they meet Haitian and international law.

For those who want to help Haitian children, Whitbread said, they should donate to aid agencies who are working on reuniting those children with their families.

The International Committee of the Red Cross has opened an office at the headquarters of the Haitian Red Cross in Crois de Prez to help people locate their relatives, said Pete Garratt, a disaster response manager at the British Red Cross.

The ICRC also has set up a Web site to help people searching for relatives.

Rep. Steve King–The New Ebenezer Scrooge

Sometimes, there are no words to describe someone’s insensitivity. You just have to let them express it themselves. So, I give you the words of Reprsentative Steve King (R. Iowa), explaining why TPS for Haitians is not necessary:

Illegal immigrants from Haiti have no reason to fear deportation, but if they
are deported, Haiti is in great need of relief workers and many of them could be
a big help to their fellow Haitians.

Rep. King’s statement is reminiscent of Scrooge’s statement from “The Christmas Carol:”

First Collector: At this festive time of year, Mr. Scrooge, it is more than usually desirable that we should make some slight provision for the poor and destitute.
Ebenezer: Are there no prisons?
First Collector: Plenty of prisons.
Ebenezer: And the union workhouses – are they still in operation?
First Collector: They are. I wish I could say they were not.
Ebenezer: Oh, from what you said at first I was afraid that something had happened to stop them in their useful course. I’m very glad to hear it.

Congratulations Representative King. You have reached the level of Ebenezer Scrooge in your feelings for suffering immigrants. I am sure you are proud of yourself.

“Mikey Hicks, 8, Can’t Get Off U.S. Terror Watch List”

Okay, so I completely understand and fully support the need for a watch list to protect the safety of all of those who fly, and for protecting the United States in general. What I don’t understand is why they didn’t pat down the Nigerian underwear bomber to the same degree that they have been patting down this eight year old U.S. citizen from New Jersey since he was two years old? Apparently, the name Mikey Hicks is on the second tier watch list which requires high level security screening. The poor kid has gone through intense scrutiny every single time he and his family have flown into and out of the United States. The question I have then is, which list was the Nigerian listed on? Was he on the second tier list, or the first tier? My argument is not that they failed in discovering the powder in his underwear – what I learned in watching the reports is that powder substances are nearly undetectable, but what I want to know is, what type of screening was he subject to? Anything beyond the norm? Not from what I have heard, but at the same time Mikey Hicks has been routinely on the terror watch list for over six years, and the TSA has not skipped a beat each and every time he has flown. There are some serious flaws with DHS’ system I think, especially since TSA spokseman, James Fontenas commented that, “there are no children on the no-fly or selectee lists,” but would not comment on Mikey’s situation specifically. This is just another example of the need for reform when it comes to how the U.S. government screens individuals coming into the United States – they are spending so much time and placing so much emphasis on names that raise a flag simply because it may be a name of muslim origin, or from a muslim country, that they are missing what is right in front of them.

It is Time for TPS Designation for Haitians

Haiti, the poorest nation in our hemisphere, and the one of poorest nations in the world, was hit by yet another natural disaster–a 7.0 earthquake. This after a Haiti has endured four major storms in 2008, from which it has yet to recover. Tropical Storm Fay and hurricanes Gustav, Hanna and Ike – pounded Haiti in August and September 2008, killing a total of 793 people and leaving more than 300 others missing, according to government figures. The country was also gripped by a tense political standoff in April 2008 amid riots over skyrocketing food prices. UN troops are a regular sight throughout much of the country.

Frankly, I cannot imagine a worse situation in a country. Certainly, if ever there were the need for a country and a people to be given a helping hand, this is the time, and this is the country. Attorney General Holder, Secretary Napolitano, Please grant Temporary Protected Status (”TPS”) to Haitians currently in the United States. Temporarily stop deportations to Haiti. Give this country a chance at recovery, without burdening it further. Allow the nationals of that country currently in the United States to help that country recovery by allowing them to come forward and secure a work permission in the United States.

The reality is that failure to move forward with TPSDesignation for Haiti now will be considered by many to be racist. Honduras has had TPS for YEARS since the one Hurricane which devastated that country. El Salvador has enjoyed such designation for numerous years as well since the earthquakes in that country. Yet, Haiti, which appears to be at the center of Mother Nature’s wrath for the last 18 months, remains forsaken, its nationals abandoned.

Attorney General Holder, Secretary Napolitano, we are waiting. Do what is right and do it now.

Lou Dobbs and Bill O’Reilly on CIR–Surreality Has Arrived

Okay, so Lou Dobbs appears on Bill O’Reilly’s show last night. And Dobbs appears the more rational one. It is amazing what a desire to get into politics will do to one’s “uncompromising” standards. Watch it here:

Hearing about it, does not do it justice.

Immigration and the Economy–We Need CIR Now!

Today the Immigration Policy Center of the American Immigration Council, along with the Center for American Progress issued a report confirming what many people of rationale mind (including the vast majority of Americans) already knew–It would be an economic disaster to deport 12 million people. The loss of this vital economic element would cause a loss to the U.S. Economy of over 2 TRILLION dollars over the next 10 years. Hey, I think that is real money!

Raising The Floor For American Workers, written by UCLA Professor Dr. Raúl Hinojosa-Ojeda, highlights the economic reality of the the undocumented population in the United States, how tied in they are to the economic engine of the United States, and what an economic nightmare we, as Americans, would deal with if we followed the failed deportation-only policies advocated by immigration restrictionists.

More importantly, Dr. Hinojosa-Ojeda found that not only is a comprehensive reform of our immigration laws (involving BOTH a legalization component AND a an actual workable immigrant visa plan) an economic necessity, it will actually raise the wage floor for all American workers. Frankly, its about time someone looked at the numbers here and ran verifiable scenarios, and did not just play around with easily manipulable census data.

Now, do you think anyone in Congress will read this? Will it change any minds? Ultimately, it is only us, those that understand the human cost of bad immigration policies, that can convince people reluctant to fix our broken immigration system on humanitarian grounds, that it is in our own ECONOMIC interest to makes these necessary changes. Let’s get to it.

The IRS, Tax Preparers, and the Danger of Notarios

Any immigration lawyer who handles immigration court cases, particularly those involving claims for cancellation of removal, knows the problems caused by badly, and at times fraudulently, prepared tax returns. Most immigrants want to “pay” their taxes. They go to the local notario who instructs them to do things such as claiming “Head of Household,” when in fact they are married and not eligible for this benefit, or has them claim their cousins in Outer Whatzitstan as dependents.

Most times, from my experience, these tax returns are filed in ignorance by the immigrant, but with full knowledge by the preparer that the return is fraudulent. But it is the immigrant who pays the price for the fraud in front of the immigration judge.
It seems the IRS has finally decided that enough is enough. The IRS announced yesterday that it will begin to regulate all preparers of tax returns. As many as a million of them! Now ask yourself. If the IRS can do this, why is the USCIS NOT doing this? As attorneys we are already regulated by not only our state bars, but by the government. Yet, the USCIS allows “notarios” to continue to file fraudulent applications, hurting immigrants and creating an unreliable system of adjudication, simply because it will not dedicate the resources necessary to cracking down on these unregulated and unlicensed filers.
Let me make an open invitation to the USCIS (and USICE if they are reading). Announce that you are going to actually enforce your regulations as to who can file petitions on behalf of applicants. Make 8 C.F.R 292 actually mean something. Right now it is a hollow regulation. Work with the U.S. Attorneys to start prosecuting the preparers of these applications. I believe that immigrants are beginning to wake to the understanding that they have been ripped off for years by these so-called “notarios” (I used the Spanish word, but the concept reaches across all cultures). You will have your witnesses. AILA would be happy to work with you to put a stop to the culture of fraud that has been allowed to perpetuate itself.

A prime example is here in Atlanta. We have an immigration “preparer” who has actually been jailed once for violating the State’s unauthorized practice of law provisions, is known to the USCIS, actually submits Forms G-28 with his filings (and checks “Other”), charges more than many attorneys charge for application processing, and the USCIS accepts his filings and gives him notice of the cases!!!! Come on USCIS. Its about time that you did what was right for immigrants. Slow down your witch hunt for the needle in the haystack of H-1B or L-1 fraud, and focus on these unauthorized and unregulated immigration “preparers.” These are easy prosecutions, and you will actually help immigrants who many times WANT to do the right thing. You will stop immigrants from becoming victims of fraud. You will also begin to restore some integrity to your own adjudicatory system.

I am holding my breath here.

The Foundling

I saw an interesting article in the Dallas Daily News today about a man called Robin Whiteley. In 1974, a midwife in El Paso, Texas, placed a day-old baby in the arms of Lora and Royce Whiteley of Fort Worth. Six years later, they officially adopted Robin. Neither the United States nor Mexico has a record of his birth. He grew up, went to school and eventually got married and started a family of his own. Unfortunately, Whiteley, who doesn’t speak Spanish, was recently deported to Mexico on the assumption that it was his country of origin. Although Mr. Whiteley’s parents followed the advice given to them by immigration officials and tried repeatedly to help their son, they were never able to regularize his status. It’s a shame that the immigration officials didn’t understand the laws they supposedly enforce and were not able to advise them correctly. Children who are found in the United States are presumed to be US citizens absent evidence to the contrary. Alternatively, they could simply have applied for an immigrant visa on his behalf because they legally adopted him before he turned 16 years of age. He now lives as an undocumented immigrant in a one-room cinderblock apartment in Reynosa, Mexico. Whiteley can’t work in Mexico because he doesn’t have proper documents, and if caught working illegally, he would be deported from Mexico!