Posted by Angelo A. Paparelli on May 12, 2012

Guest Post: What Fried Okra, F.A.O. Schwartz, Staplers, and Immigration Have in Common


nici.jpg[Blogger's Note: Nici Kersey, my colleague at Seyfarth Shaw who directs its Immigratio​n Compliance Center, offers another distinctive and entertaining guest post.  (Her earlier posts can be found here and here.)

Today, Nici (on the right in the photo [the infant on the left is from a Hollywood casting agency]) shares the stories behind her resume, blaming the government for the fact that she now harms the same people she set out to help.  I can relate to Nici's angst, as I noted in "The Distressed Bearer of Bad Immigration Tidings."

There are of course so many immigration stories, as I noted in my post, "Telling Immigration Stories," which talked about the power of narrative as a way of humanizing immigrants.  That post also discussed the award-winning book -- Green Card Stories -- which masterfully depicts the personal journies of 50 immigrants to America. The back story on Green Card Stories is that it was produced with help from members of the Alliance of Business Immigration Lawyers, who urged their clients to allow their stories to be revealed as a way of inspiring others on the journey to achieving the American Dream.  

Perhaps, the Editors of Green Card Stories, Laura Danielson and Steve Yale-Loehr, might be persuaded to launch a companion volume describing how 50 immigration lawyers chose (or more likely, stumbled upon) immigration law as a career.  Nici's quirky story is certainly worthy of inclusion.] 

A note from Nici:

Angelo has graciously invited me to post here a couple of times, and I know that my topic and style differ vastly from his.  My topics are less timely (this one is about things that happened as many as 15 years ago), and my posts tend to be more about me than about immigration.  (I admit to being relatively self-centered.)  I’m also probably one of the least political people you’ll ever meet.  (Except for my Fry Okra, Not People t-shirt and my Let a Lady Lead button, you’d be hard-pressed to find any evidence of my political leanings.)  Still, I hope you enjoy this as a bit of thoughtful fluff to soften the space between Angelo’s always sharp and generally hard-hitting posts. 

What Fried Okra, F.A.O. Schwartz, Staplers, and Immigration Have in Common

By Nicole ("Nici") Kersey

The other day, I received a phone call from a client.  He started:  I know how you feel about undocumented workers, but ….  (Well, he didn’t use the word “undocumented.”  He said “illegal.”)  And I thought:  Really?  I don’t think you do.  I told him as much, saying that, despite the advice I have to give my clients, I have nothing against undocumented workers.  In fact, they are the reason I do what I do.

My job requires me to get people fired from their jobs.  Often, the people getting fired are long-term, trustworthy employees who work hard and do their jobs well.  But they may be using someone else’s SSN or a fake green card, and once that comes to light, my duty is often to recommend that their employment be terminated. 

These workers are the same people I set out to help when I first thought of attending law school.  Yes, when I hear the terms “sell out,” “traitor,” “turncoat,” or “double agent,” I can’t help but think of the ways in which they may apply to me.   (I like double agent the best, because it’s the most dramatic, and I envision myself wearing a pretty bad-ass costume.  Though turncoat might lead to more Academy Awards, as those tend to go to the period pieces.)

But, in part because this is for Angelo’s blog, and in part because it’s true, I blame the government for my defector/deserter status.

Either way, I would be working with kids:

As a freshman in college, I applied for a summer job at F.A.O. Schwartz in Indianapolis at the Circle Centre Mall.  I was hired and scheduled to report just after classes let out.  I never started that job.  I had thought it would be fun to spend the summer in a toy store, though I’m sure the actual experience would have differed somewhat from what I imagined, which involved Tom Hanks and a giant piano.

Before the summer began, I received a phone call from my high school Spanish teacher.  (This was an actual phone call on what we now refer to as a land line.  Mike Maxwell called my parents’ house, and my parents relayed the message to me.  Then I had to key in a special code to make a long-distance call from my dorm room to call him back.  Cell phones existed, but walking around a college campus was a different experience then.)

Mr. Maxwell asked if I had a summer job yet, and I was excited to tell him of my toy store plans.  He quickly told me that I would not be working at F.A.O. and instead needed to make a phone call to the Indiana Department of Education. 

Crap, I thought, more long-distance charges.

For the next four summers, I worked for the Indiana Department of Education’s Migrant Education Program.  The program employed mostly college students with strong Spanish language skills.  We were paired up and sent off to travel around the state and tutor the children of migrant workers from Texas and Mexico.  The purpose of the program was to help these children, who spent much of the school year following the crops (melons, corn, beans, and tomatoes in Indiana; blueberries in Michigan, strawberries and citrus in Florida, etc.), to keep up in school. 

To be honest, I spent a large part of those four summers in the car.  I teamed up with Jill, and together we covered the southern half of the state.  We frequently spent four or more hours driving each day.  We were paid (more than minimum wage!) from the minute we left home until we returned in the evening, and we were reimbursed for mileage.  It was fantastic.

The families we worked with insisted on feeding us, and the food was the kind of authentic Mexican food that you can only get in someone’s home.  The kids were sweet and eager students, and I was grateful for the job.  Almost every family gave us melons, straight from the fields.  I did not worry then, as I would now, about being charged with possession of stolen fruit.  I proudly presented the melons to my mom, who occasionally kept one but re-gifted the rest.  (Jill and I probably could have supplemented our income with a road-side melon stand, but we were not particularly entrepreneurial at the time.) 

Side note (yes, I know this whole thing is made up of side notes and parentheticals):  Once, a family filled our whole backseat with melons.  I was paired with Andy that day, and he indicated - in Spanish - that he “wanted all the melons,” when he meant that he “liked all kinds of melons.”  We all had a laugh, but despite our attempts to clear up the confusion, we drove away that day in a car that would forever smell faintly of overripe cantaloupe.

It all comes back to immigration:

While my job was to teach math, science, history, geography (I pretty much avoided teaching geography; the kids were better off that way), and English to the children, their parents seemed to assume that we had a deep understanding of immigration law.  They asked, again and again, what papers they needed to file to “get legal.”  They asked where they could get help.  The brochures we had been given by the DOE to address these questions were generally unhelpful, as there was really not much that the workers could do.

Each summer, the state held a conference on migrant workers, and I was always interested to hear what the speakers said about immigration.  According to one speaker, 2/3 of the migrant workers in Indiana were authorized workers.  Looking back, I don’t think that could possibly have been accurate, but I was happy to repeat the statistic to anyone who complained about my helping “those illegals.” 

One thing that the speakers consistently said when asked what could be done to help the workers “become legal” was, basically, nothing.  Using the H-2A agricultural worker program was too slow and too expensive, and so the vast majority of farmers simply used the workers who showed up year after year.  Except in rare circumstances, these kids’ parents were, for lack of a better term (or for my lack of willingness to come up with one) screwed. (Many of the kids themselves had been born in the U.S., so they may now be able to file petitions for their parents.  But at the time, the kids were seven to 13 years old.  If they had been any older, they’d have been in the fields with their parents, not sitting and studying math with me.)

At the end of each conference, there was a drawing for door prizes.  Red Gold always provided gift boxes full of tomato products (picked and canned by the migrant workers), and I always wanted – very much – to win one of these door prizes.  I never did.  (I still don’t know why the idea of a large box of ketchup and tomato sauce was so appealing to me, and it has been suggested that I delete this whole paragraph, but I chose to leave it in as an experiment -- to see whether Red Gold, or anyone else, sends me tomato-related gifts after it is posted.)

I was pretty much doomed to work in immigration:

When college ended, and my summers with the DOE were done, I spent a brief period thinking that I would work in the theater.  That (surprise, surprise) didn’t “stick.”  And soon I got married and moved to Tacoma, Washington, where my husband, then a Lieutenant in the Army, was stationed at Fort Lewis.  It was 2002, and the job market was not great for someone with degrees in Spanish and creative writing.  I started leafing through the phone book, trying to find someone who might be looking to hire a responsible Spanish-speaker.  I stumbled upon a non-profit “immigration assistance center,” and was shocked to be more-or-less hired over the phone.

At the center, we saw walk-ins and took appointments, preparing family-based immigration petitions for those who were eligible. In most cases, however, we charged a small consultation fee, listened to sympathetic stories, and told our customers that we were very sorry, but there was simply nothing to be done.

I also recall being reprimanded for stapling papers the wrong way, which I still don’t understand.  (I was shown the “right way” a number of times, but I never grasped the difference.  I’m sure my employee file has something in it like “incompetent at stapling.”)

How I almost ended up on the other side:

During my time at the center, I applied for a number of other jobs, some involving the theater, and others relating to immigration.  I ultimately landed two:  one as a passport specialist at the Seattle Passport Agency and one with INS as an enforcement officer.  These jobs took a lot longer to get than did the F.A.O. Schwartz position, but they ended the same way – I never started either.

The INS job had taken nearly a year to get.  The FBI had visited friends, family members, neighbors, teachers, and professors to make sure I was not a traitor, turncoat, or double agent.  I had undergone the most extensive physical in my life.  (I was told not to eat prior to the tests, then asked to do a series of strenuous tasks – as many sit-ups and push-ups as I could, running as fast as I could, etc. – then had about a gallon of blood drawn.  It was while I watched the technologist draw vial after vial of blood that everything became pixilated, then went black.)  I was sure that I had failed the physical (as INS officers probably should not faint when chasing down would-be “illegals”), but I ultimately received a congratulatory letter, indicating that I would be assigned a training date in the coming months.

Then I received a letter explaining that INS was becoming part of DHS, and that if I wanted to work for DHS, I would have to start the application process anew.  I was a persistent person, but it seemed that DHS treated those applying for jobs much like those applying for immigration benefits - and I was afraid of having my blood drawn again - so I decided to work for the Department of State instead.

I accepted the Department of State job, but a few weeks before I was to start, my husband informed me that we were being transferred (PCS’d, in Army lingo) to Fort McPherson in Atlanta.  And that’s how I ended up not working for the government.

After we moved, I was lucky to find a position as a legal assistant at a law firm.  The law firm?  Seyfarth Shaw.  And I’d be working – gasp – in the immigration group.  My once-and-future boss (Jim King) swears that I worked as his assistant for a couple of years.  But it was only slightly more than six months.  I wonder now whether it was my incompetence at stapling things that made this period seem so much longer to him …

So I up and went to law school:

Before starting at Seyfarth, I had applied to law schools; I vaguely recall that my applications – like every law school application ever submitted – said something about my desire to help people.  (I know for a fact that I wrote a fair amount about elephants, diminutives, and contagion – but this story has already gone on for far too long to go into detail.)  The people I had in mind were the migrant workers in Indiana and the undocumented people in Tacoma who I had been unable to help.

During law school, however, and after I began to practice law, it became clear that being a lawyer would not dramatically change the fact that I could do nothing – or almost nothing – to help the undocumented farm workers or the people who had simply come to this country to make their families’ lives better, or safer, or easier.  Despite the many ways in which law school is like Hogwarts, being a lawyer did not mean that I could magically change the law.

At least at first, my job as an associate in the immigration group at Seyfarth allowed me to “help people” and to alter their lives through legal immigration.  I was obtaining H, L, TN, O, and even R visas.  Filing PERM applications.  Responding to RFEs.  And I was able to do a fair amount of pro bono work, even managing to help a couple of “those illegals.”

Then I began to specialize in compliance work, focusing mainly on I-9s and E-Verify.  I enjoy this work.  I help keep businesses from facing massive risk due to paperwork violations, and this means that I get to truly partner with my clients to build policies and practical solutions for their businesses.

The downside, however, is that I also face situations, almost daily, in which I advise a client to terminate the employment of an individual who lacks work authorization.  I spot fake green cards and tell my clients that they have to let the employees go.  But she’s my best worker, they say.  She’s been with us for 20 years.  She’s like family.  Isn’t there anything we can do? And I have to tell my client that we can look at the employee’s circumstances, but that in all likelihood there is nothing that can be done.

I love my job.  And I help my clients save boatloads of money by providing training and completing audits of their I-9s.  But it is hard – extraordinarily difficult sometimes – to know that instead of helping the migrant farmworkers, the cooks, the factory workers, the housekeepers, and the construction workers, I am a key player in their loss of jobs. 

And while I sometimes feel that I have let them down, I have to remind myself that I would try harder, do more – if only the immigration laws provided a path to legalization.  I know that it doesn’t always have to be one extreme or the other (get them green cards or get them fired), but short of quitting my job and helping people make better fake green cards (I think I might have a talent for that!), I’m not sure how to help.  I have not let go of my hope that the government will some day create a way for me to help the people I originally set out to assist.  It would be lovely, one day, to be able to say: Yes, there is something we can do.  This is how we start.

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Posted by Angelo A. Paparelli on April 29, 2012

When Possible, Treat Immigrants As Criminal Defendants, Not As Criminals

cuffs.jpgAn essay in today's New York Times, "Unexceptionalism:  A Primer," by the novelist, E. L. Doctorow, describes in four "phases" how America can take steps to become unexceptional, that is, "indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world." 

Phase one begins with Bush v. Gore, a ruling that "ignore[s] the first sacrament of a democracy and suspend[s] the counting of ballots in a presidential election." 

Phase four ends with a naked power grab: 

If you're a justice of the Supreme Court, decide that the police of any and all cities and towns and villages have the absolute authority to strip-search any person whom they, for whatever reason, put under arrest.

In phase three, Doctorow turns to immigration -- the form of authentic American exceptionalism to which this blog is dedicated -- and says (ironically, to my law-trained mind):  

When possible, treat immigrants as criminals.  

He apparently assumes that exceptionalism declines when the foreign-born among us are locked away for trivial or modest immigration violations, even when they pose no threat of escape or of harm to society. He might also be suggesting that by separating them from their U.S. citizen relatives after their right to be in the U.S. has been tested and denied in removal (deportation) proceedings too often threatens American families with poverty and a life of needless suffering. 

In this he is right.  Immigrant detention -- promoted by a smart "ALEC" in retreat -- has become a huge business, an industry so successful that it lacks adequate facilities to house immigrant detainees, one where even children as young as eight are placed in "emergency" quarters on military bases.

If Doctorow instead meant to refer to the treatment of suspected wrongdoers under either the immigration or the criminal laws, this otherwise brilliant author is flat wrong. 

Criminal suspects are guaranteed rights that people charged with violating the immigration laws can only envy. Defendants in criminal trials in most cases enjoy the right to a trial by jury. Their guilt must be established by proof beyond a reasonable doubt. Under the Ex Post Facto Clause of the U.S. Constitution, they may only be convicted for conduct that Congress made illegal before the forbidden act occurred. Indigent criminal defendants are entitled to appointed defense counsel at government expense.

Whether rich or poor or in between, criminal suspects have Constitutionally endowed Miranda rights (the warning that anything they say to police can and will be used against them in a court of law). They have a right to examine any exculpatory evidence in the government's possession, and the right to confront the witnesses against them and insist that the court exclude purely hearsay evidence. The judges who preside in criminal cases are subject to the canons of judicial ethics. Criminal proceedings are transcribed by court reporters so as to establish an accurate record and make sure that the right to appeal a conviction is preserved.

Because of the legal charade that removal proceedings are "civil" and not "criminal" in nature, that deportation is not "punishment," foreign citizens whose immigration status is challenged at a removal hearing before an immigration judge enjoy no such rights.

Although not treated as punishment under the immigration laws, removal (or its virtual twin, inadmissibility) hurts no less.  A former Attorney General might just as well have been talking about removal rather than inadmissibility in Matter of S- and B-C, 9 I & N Dec. 436, at 447 (BIA 1960; A.G. 1961), when he said:

Shutting off the opportunity to come to the United States [or, as I would also put it, forcing someone to leave] actually is a crushing deprivation to many prospective [and current] immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States.

If America treated immigrants in removal proceedings as if they were criminal defendants, the foreign-born whose status is at risk would enjoy significantly greater rights, and the harsh rule of immigration law would be tempered with justice.  At present, however, respondents in immigration proceedings are at greater likelihood of being found at fault than criminal defendants. Here's why:

  • No presumption of innocence but proof "beyond doubt." An applicant for admission to the U.S. as well as a so-called "arriving alien" is not presumed innocent.  Rather s/he must prove "clearly and beyond doubt [that s/he is] entitled to be admitted and is not inadmissible. . . ." The "clearly and beyond doubt" burden of proof imposed on the foreign citizen is even more difficult to establish than the duty imposed on prosecutors to prove a criminal defendant's guilt "beyond a reasonable doubt."  Even for foreigners who have already been granted admission, the noncitizen (whose alienage the government has proven) must establish by clear and convincing evidence that he or she is in the U.S. based on a lawful admission.  Only then is the government required to prove by clear and convincing evidence that the respondent is deportable.
  • No Jury. Respondents in removal proceedings have no right to a jury trial.
  • No government-paid legal counsel for the indigent or incapacitated. Unlike criminal defendants, respondents facing removal (even minors and the mentally impaired) who cannot afford a lawyer have no right to legal counsel at government expense.
  • Late advisal of right to avoid self-incrimination. Immigrant respondents are only given Miranda warnings (by regulation rather than Constitutional guarantee) after a Notice to Appear before an immigration judge is served upon them.
  • "Loosey-Goosey" rules of evidence. Hearsay evidence may be used against respondents in removal proceedings at the discretion of the immigration judge.
  • Limited access to exculpatory evidence. Immigrant respondents are not automatically given access to evidence that may establish their innocence of the charges against them or their eligibility for relief from removal.  They must file Freedom of Information Act (FOIA) requests or request the immigration judge's permission to subpoena documents or witnesses. Even if such evidence is not made available to the respondent, the immigration judge can find the person removable and ineligible for various types of discretionary relief.
  • In-person proceedings with court reporters transcribing every word not allowed. Immigration court cases are conducted without court reporters.  Instead, they are audio- or video-recorded. Too often this denies them justice.  Audio recorders are often turned on and off at the sometimes hasty flick of an immigration judge's finger -- at times thereby leaving out crucial factual information or legal argument. At other times, the recordings are garbled, incomprehensible or defective. This is usually discovered months or years later on appeal, thus requiring a remand to the immigration judge for rehearing.  Live video recording -- which occurs with detained immigrants -- often interferes with the effective representation of counsel or prevents a clear understanding of the proceedings by the person most affected, the respondent.
  • Retroactive culpability. Immigrants can be removed from the U.S. for conduct that would not have warranted deportation when the act was committed.  This is because Congress can and often does change the grounds for immigration removal retroactively.  There is no Ex Post Facto rule prohibiting deportation for past non-culpable conduct.
  • Immigration judges not subject to canons of judicial ethics. Although proposals to impose a judicial ethics code on immigration judges have been suggested, they are not yet final. In criminal courts, however, judges are subject to ethical canons, patterned after the American Bar Association's Model Code of Judicial Conduct.

The civil-not-criminal distinction in removal proceedings may soon be meaningless.  If, as the prognosticators suggest, the Supreme Court upholds Section 3 of Arizona's S.B. 1070, which creates the crimes of being unlawfully present in the U.S. and of failing to register with the federal government, we may learn in a future case whether the lack of criminal defendants' rights in immigration proceedings can withstand Constitutional challenge. 

I'd rather see our leaders deservedly stake claim to the notion of American Exceptionalism and distinguish our nation "from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world," by, whenever possible, granting immigrants the same legal rights as we give to criminal defendants. 

Posted by Angelo A. Paparelli on March 18, 2012

Immigration Options for DREAMers under EXISTING Law

DREAMER shirt.jpgLast week marked the end of the second annual National Coming out of the Shadows Week, a rite of passage for undocumented youth -- Americans in all but the eyes of the law -- who support enactment of the DREAM Act. 

Publicly proclaiming one's unauthorized immigration status is clearly a courageous act. As the National Immigrant Youth Alliance explains in its "Guide to ‘Coming Out’ for Undocumented Youth," revealing to others that you live in this country without legal status can range from "easy to very hard" depending on the way it's done. An act in defiance of governmental authority, "coming out" can trigger serious repercussions under the immigration laws, including arrest, detention and deportation.

On the other hand, this form of self-revelation can be cathartic and possibly beneficial.  Counterintuitively, the first step from darkness could also set the stage for actions under current law that may well lead the federal government to grant legal benefits and protections unavailable to other DREAMers who remain in the shadows.  Some of these avenues are described in a useful 73-page online resource, "The Life after College Guide for Undocumented Students," published by the nonprofit, Educators for Fair Consideration (E4FC). 

Funded in part by benefactors from Silicon Valley, E4FC suggests, for example, the possibility of seeking employer sponsorship for an H-1B visa (for Specialty Occupation Workers), traveling abroad and applying for a "D3" waiver under Immigration and Nationality Act (INA) § 212(d)(3).  This is a risky proposition.  It requires throwing oneself on the mercy of both a U.S. consular officer (who must recommend the D3 waiver) and the Department of Homeland Security's Admissibility Review Office -- a unit of U.S. Customs and Border Protection -- which must approve it.  If the waiver is not granted, a DREAMer who'd entered illegally or been in the U.S. in unlawful presence after age 18 would be subject in most cases to a ten-year bar on reentry to the United States.

The E4FC guide also discusses various legal ways of earning a living in the U.S. notwithstanding undocumented status, such as qualifying as an independent contractor, either as a sole proprietor or an incorporated entity. Although E4FC does not cite legal authority, it exists in some situations under Bhakta v. INS, 667 F.2d 771 (1981); Lauvik v. INS, 910 F.2d 658 (1990); and Konishi v. INS, 661 F.2d 818 (1981), cases holding that management of a business which will likely create jobs for American workers does not constitute unauthorized employment under the immigration laws.  

The guide, quite correctly however, cautions DREAMers: 

It is your responsibility to determine whether you may legally pursue these options based on your immigration status. Be sure to consult with an experienced immigration lawyer first.

The E4FC, also laudably, provides links to a free, online service for DREAMers to obtain a preliminary assessment of whether legal remedies may exist in a particular individual's unique situation, while offering the admonition:

This service should only be used for a preliminary analysis of your possible immigration remedies. We urge you to consult with a reliable immigration attorney for a comprehensive analysis.  

I echo the same cautionary note as E4FC with a disclaimer here, and a reminder that what I am about to suggest is made available for educational purposes only, not to provide specific legal advice.  For legal advice in each individual's case, DREAMers should consult a competent immigration lawyer, as urged by U.S.Citizenship and Immigration Services (USCIS) here and as explained by the American Immigration Lawyers Association in this FAQ.

With the foregoing very large caveat, here are some additional tips, possible options and information for further research with and through your immigration lawyer that may be helpful and suitable in a given case (yet may fail miserably in other cases).

  1. Build Your Tribe.  No DREAMer should face the federal government alone.  Besides a competent immigration lawyer, your tribe of supporters and resource providers should include, whenever possible, family, friends, fellow students, community activists, faith-based groups working for social justice, wealthy benefactors, an employer willing to sponsor you for a work visa, social media mavens and sympathetic journalists to tell your story to the public and follow you through the immigration process. Though government officials may deny that publicity has any effect on their actions, publicity helps.  Paraphrasing Hillary Clinton (even if she didn't say it first or quite this way), "it takes a village to raise a [DREAM] child."
  2. Qualify for family-based, employer-based or self-sponsored immigrant visa classification, and apply for permanent residence (a green card) through adjustment of status by invoking the law's forgiveness provisions. The immigration laws allow foreign citizens to obtain "immigrant visa classification" in many different ways.  It can be obtained through certain forms of family or marital sponsorship, or through the employment-based visa categories, including a current or prospective employer's labor certification, as well as through self-sponsorship options under the "Extraordinary Ability" and "National Interest Waiver" avenues.  It can even be obtained by way of the EB-5 employment-creation investor category (say, if a wealthy benefactor provides a lawful gift, or a venture capitalist provides funds for investment by purchasing a DREAMer's intellectual property, valued at least at a half million dollars). Immigrant visa classification can be converted into a green card through the adjustment of status (AOS) process without ever departing the United States.  As an initial prerequisite, AOS requires that the applicant have been inspected and "admitted or paroled."  Thus, a DREAMer who entered on a visa but overstayed satisfies this preliminary threshold.  If the DREAMer is an EWI (someone who entered without inspection), s/he would need to ask USCIS to grant Parole In Place to satisfy this first step for AOS eligibility. Ordinarily, however, AOS is not available to someone who violated status or worked without permission.  Fortunately, there are two exceptions (forgiveness clauses) under which USCIS can still grant AOS: (1) If the violation of status was for "technical reasons;" or (2) if it was other than through the fault of the applicant.  See my co-authored article, "Imagining the Improbable: Extraordinary Immigration Solutions for the Hapless and Hopeless." ("Imagining the Improbable"). With the help of an experienced immigration lawyer, more than a few talented and accomplished DREAMers can conceivably present a well-proven case showing that their violation of immigration status was proximately caused by the person(s) who brought them here, or through "technical reasons," e.g., their inability as minors under law to have the legal capacity or capability to take steps to seek some form of lawful status or discretionary relief under law.
  3. Seek Lawful Nonimmigrant Status without leaving the United States.  Just as the green card AOS procedure contains forgiveness clauses, so too do the nonimmigrant visa categories.  As explained in Imagining the Improbable, someone who entered on a visa but overstayed or fell out of status, but who did not work without permission and who is not in removal proceedings, may be restored to the same or a different nonimmigrant visa status if "extraordinary circumstances" can be established.  Extraordinary circumstances are decided on a case-by-case basis.  As Imagining the Improbable also explains, it may be possible, in addition, to rely on a principle of law known as "equitable tolling" to extend the deadline for filing an extension or change of status. Even a person who came into the U.S. as an EWI may qualify if USCIS can first be persuaded to grant Parole In Place.  INS (and USCIS still today) have exercised authority to convert parole status into H-1B status on the strength of a March 25, 2000 Headquarters policy memorandum.  Thus, conceptually there is no apparent reason why parole-conversion-to-nonimmigrant-status could not also apply to other nonimmigrant categories once Parole In Place is granted.   
  4. lennonnyclogo.jpgApply to USCIS for employment authorization, while presenting evidence of eligibility for "deferred action" status. Grants of prosecutorial discretion (PD) by U.S. Immigration and Customs Enforcement (ICE) have been abysmally low.  According to a March 9, 2012 email sent to Congress, ICE has found only 1% of detained foreign citizens and 8% of immigrants in Immigration Court proceedings "provisionally amenable" to a grant of PD.  If a DREAMer is not before the Immigration Court (i.e., has never been served with a Notice to Appear), s/he may nonetheless be eligible for a grant of "deferred action," also sometimes known as "deferred departure," according to Leon Wildes, the lawyer who, in successfully representing ex-Beatle John Lennon, discovered through a Freedom of Information Act request, the existence of a secret procedure then known as the "Non-Priority Program."   Although the Operations Instructions (OIs) of USCIS's predecessor, the Immigration and Naturalization Service, have been superseded, "deferred action" status still exists at 8 CFR § 274a.12(c)(14), which provides that a foreign national may apply for employment authorization if s/he "has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment."  Here, from the old superseded OIs, is the INS rationale for granting deferred action status and the factors to be considered for this form of relief:

The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases. The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered:

(A) the likelihood of ultimately removing the alien, including:

(1) the likelihood that the alien will depart without formal proceedings (e.g., minor child who will accompany deportable parents);

(2) the age or physical condition affecting ability to travel;

(3) the likelihood that another country will accept the alien;

(4) the likelihood that the aliens will be able to qualify for some form of relief which would prevent or indefinitely delay deportation;

(B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or the courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases;

(C)] the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions (emphasis added);

(D) whether or not the individual is a member of a class of deportable aliens whose removal has been given a high enforcement priority (e.g., dangerous criminals, large-scale alien smugglers, narcotic drug traffickers, terrorists, war criminals, habitual immigration violators).

* * *

To be sure, some seasoned immigration lawyers might react to my suggestions with skepticism.  So be it.  My purpose is not to suggest that the immigration benefits available under current law through these strategies are easily won. 

Thoughtful dreamer.jpgRather, this is where your tribe and the tribes of all the DREAMers must spring into action.  Mount a campaign to persuade USCIS to embrace these approaches in individual cases.  Present the most worthy and compelling cases first.  Refrain from filing cases with little hope for success.  Publicize the outcomes of the successes and failures.  Put USCIS (and the Obama Administration as it courts Hispanic-Americans and other hyphenated citizens for votes in November) to the task of explaining why such existing remedies under law are not embraced with gusto and granted with compassionate neutrality. 

The DREAMers, after all, are the innocents.  They landed here without asking for a life full of challenge and hardship. They deserve a chance to be brought into the law's good graces under remedial provisions that past administrations have created.

If large numbers of self-outed DREAMers were to ask for immigration benefits under current law, the bureaucrats managing and administering the immigration laws would be forced to take the flood of well-publicized filings into account and resolve them.  Just like the plea-bargaining that takes place in every court of the land, where it would crash the system if every defendant exercised the right to a trial, it would shake the unresponsive immigration system into action were the DREAMers -- in large numbers -- to ask for what the law clearly allows.  

So DREAMers (after consulting with your immigration lawyers and acting only on advice of counsel), stop playing hide and seek.  Instead, come out, come out, wherever you are.   

Posted by Angelo A. Paparelli on January 29, 2012

"I Hate [Bleep]ing Immigration Law" -- Whenever I Get an Unjust Request for Evidence

grand canyon.jpgEver since I first sat in a Los Angeles movie theatre watching Grand Canyon, Lawrence Kasdan's 1991 film, the only movie, to my knowledge, whose protagonist is an immigration lawyer, I knew I would mouth to myself, repeatedly over the ensuing years, one of its memorable lines.  The main character, Mac (played by Kevin Kline), practices a rather pathetic and half-hearted version of deportation defense in the City of Angels. Consumed by existential angst and a career going nowhere, Mac sits in his law office and screams to his secretary and to himself:  "I hate [bleep]ing immigration law!"

Don't get me wrong, after 30+ years as an immigration lawyer, I remain passionate about immigration and fulfilled in my career, mostly far closer to Emma Lazarus than to Mac. When the day's mail arrives, my heart still goes aflutter as official government envelopes are opened to reveal approval notices  -- proxies for one client's or another's American Dream about to take wing. 

This enjoyable ritual, alas, is increasingly disrupted by jarring correspondence from U.S. Citizenship and Immigration Services (USCIS) -- the dreaded Request for Additional Evidence (RFE). To be sure, a righteous RFE -- and some assuredly are -- is a good thing, offering a second chance to clarify what may have been less than clear in the initial submission. 

A roguish, stupid or intellectually dishonest RFE, however, will cause me to erupt into silent, internal conniptions (I can't actually shout expletives in my law firm because that would likely create a hostile workplace and trigger multiple unpleasantries under state and federal law). Living in California, the land of holistic therapies, I know that anger swallowed often morphs into depression.  To avoid that dreadful fate, I pen this post as a way to release outrage, stay healthy, and light a candle on RFE avoidance and response.

  1. Know the law and the non-law. While any immigration lawyer worth her salt understands the legal requirements to establish eligibility for the requested visa benefit, and knows how to muster supporting evidence, the RFE avoidant practitioner must also be familiar with the latest patterns among USCIS adjudicators in asking for legally irrelevant evidence. For example, no matter that the L-1 (intracompany transferee) visa is not one requiring a cash investment in a U.S. entity or a purchase of stock, expect that an adjudicator will request proof of funds transferred from abroad to buy a controlling interest in the petitioning business.  Similarly, although the working owner of a U.S. limited liability company seeking an H-1B (specialty occupation) visa to run the business would almost never appoint a board of directors (since the LLC envisions flexible and speedy management decisions), make sure that your client goes to the expense and burden of appointing a board so that an "employer-employee" relationship of owner to LLC can be proven.  Unfortunately, there is no treatise or hornbook that can help the hapless lawyer find out trends in RFE demands because these documents, though templated, change appearance as readily as chameleons. The only way to discern RFE trends (other than receiving them in bulk) is to network and share notes with other immigration lawyers.
  2. Manage client expectations.  RFEs, if unanticipated, often can destroy relationships with existing and new clients.  Good immigration lawyers inform the client of the possibility at the start of each engagement and each matter that USCIS will issue an RFE .  The lawyer's scripted conversation with the client goes like this (with quote in italics): "There is a possibility -- no matter how well we prepare our filing -- that USCIS will ask for more evidence.  You, client, have a business decision to make, and within reason, I will abide by your instructions.  Either, we anticipate every imaginable item of evidence (based on evolving patterns of RFE requests) and adopt a kitchen-sink strategy in submitting our proof, which is the strategy I recommend, or, you can authorize me to request of you and submit to USCIS only the types of evidence reasonably necessary to establish legal eligibility for the immigration benefit you seek.  We may or may not receive an RFE under either strategy.  The government (acting godlike, but without the grace) behaves in mysterious ways.  Your best chance of avoiding an RFE is by presenting as much evidence as possible."  
  3. Make it easy for the adjudicator to "Get to Yes." Having gathered all possible evidence, the attorney should provide proofs in a logical and organized way.  The attorney's covering letter (which the officer may or may not read) should be a roadmap to eligibility.  It should refer to an index of clearly-tabbed and logically-organized documents, refer to facts evidenced in the record or attested to by the client, describe in summary form what each item of evidence purports to establish and why each is relevant.  The attorney's letter should also cite the law, regulation, policy memorandum, guidance letter, legislative history, adjudicator's field manual, bar association liaison minutes or other source of legal authority that establishes eligibility under the proven facts.  Here is a simple rule for staying out of legal trouble and RFE hell:  Clients and third parties attest to the facts; lawyers refer to the facts elsewhere established in the submission, describe why each factoid of proof is relevant under law, and demonstrate why "yes" is the legally proper answer.
  4. Use word-pictures, graphics, charts and hyperlinks. Boring, sloppy, careless or poorly proofed writing pains and perturbs the reader.  Vivid, logical, grammatically correct, stylish and persuasive writing pleases the reader.  Text alone, however eloquently presented, may fail to make the desired impact.  Eligibility under law is often more readily established if graphical images and links to web-based materials support the messaging of the text-based submission.  The most likely way to enliven interest and avoid an RFE is to awaken an otherwise indifferent adjudicator, and provide compelling overt and subliminal reasons to approve the case.
  5. Humanize the case through honest storytelling. Contrary to some immigration lawyers' perceptions, adjudicators are human.  While examiners may be more focused on behaviors that reward them personally such as reporting suspected fraud, way down deep, they may just be moved to identify with the human condition.  If the adjudicator can be encouraged to see your client as a deserving human being, rather than just another file to be acted on before the end of the work day, maybe an RFE will not be sent, but an approval notice instead.  Talk in the submission about the consequences of a "yes" or "no" decision to your client and to the country --whether that client is a company, a person, a family, a university or a religious community.  Even adjudicators prefer to hold up their heads by doing the right and good thing rather than just adding another notch on their life-destroying revolver.
  6. Garner a reputation for zealous representation under law.  Pushovers get pushed over. If an adjudicator knows you as a lawyer who will stand up for your client and wield the tools of the law skillfully to achieve a just outcome, there is less of a likelihood that a thoughtless or unjust RFE will come your way.  Don't just give up, if the RFE or a denial is issued.  Press on.

Notwithstanding your scrupulous adherence to the Boy Scout Code (Be Prepared), the postal worker may nonetheless deliver an RFE.  After the inevitable silent cursing is over, the immigration practitioner and clients will pursue a course of action that may exhibit one or more of the following stratagems:

  1. Resist the temptation to respond sarcastically. Displays of temper or efforts at ridicule in response to RFEs meet with success as rarely as similar behaviors prevail with TSA officers. 
  2. Distinguish boilerplate from customized text. Every RFE contains a mix of both.  Consider the template text carefully (perhaps there's a grain of significance there), but focus on the specially drafted text that will likely reveal how carefully the adjudicator considered the evidence presented in the case.  If the tailored portion of the RFE mischaracterized the factual record or failed to notice key evidence already presented, then plan on diplomatically noting these missteps in the response. 
  3. Note whether the RFE contains assertions about legal requirements.  If such claims are unsupported by citation to legal authority and misstate the law, then quote Kazarian v. U.S. Citizenship and Immigration Services, a 9th Circuit case which in essence rebukes USCIS for making stuff up.  If the assertion differs from existing USCIS policy, point out the difference and cite Judulang v. Holder, a unanimous Supreme Court case which declined to follow an immigration agency's position because the agency (in that case, the Board of Immigration Appeals) "has repeatedly vacillated in its method for applying" the law's requirements.
  4. Respond fully with fresh evidence.  While re-arguing the significance of evidence originally submitted but treated as insufficient may occasionally succeed, the better approach is to rebut the interim conclusions suggested in the RFE with relevant and responsive evidence.  The evidence may involve proof of company or industry practices, scientific accomplishments or contributions to the economic or other national interests of the United States.  Whatever the issue of concern, take a fresh look at the best way to proffer the rebuttal evidence.  Perhaps it should come from one or more outside experts of unquestioned accomplishment and repute, a forgotten immigration policy memo or guidance letter, the dusty legislative history of a law long ago enacted, the supplemental information in a proposed or final regulation, or a government agency outside the immigration world.  Whatever the source, protect the administrative record with compelling evidence.
  5. Enlist government support or generate media scrutiny where appropriate. Sometimes RFEs are so off base that -- in addition to responding fully -- the practitioner may wish to enlist others in government with relevant authority.  Perhaps the USCIS Ombudsman, a Headquarters official or a member of Congress may be interested in learning of and resolving anomalies in service delivery or clearly wayward RFEs. Alternatively, if the client is willing, your resort to media focus (either traditional journalists or others proficient in social media) may be justified.  These unusual approaches may be premature (for an approval notice may yet be forthcoming) or better pursued if a denial is issued. 

Sometimes, the distance between an RFE and an approval notice are as wide as the Grand Canyon.  Thus, immigration stakeholders (in the words of a Washington Post review of the eponymously titled film) should "consider the ever-widening chasms that divide us, [and] the shifting demographic fault lines that have set society quaking like the needle on Richter's scale."  By employing the suggestions in this blog post, however, perhaps the distance will shrink and our clients' American Dreams will yet be fulfilled.

Posted by Angelo A. Paparelli on January 22, 2012

Powdered Wig Immigration with the Lawyer as Potted Plant

immigration justice with lawyers.JPG

Many thoughts rushed through my mind as I read the heartening headline to a press release issued January 19 by the American Immigration Council ("U.S. Citizenship and Immigration Services Takes Steps to Improve Noncitizens’ Access to Legal Counsel"). 

What did USCIS do to improve access to lawyers?  Did it instruct the agency's Fraud Detection and National Security Directorate that no site visits could be conducted without prior notice to the parties' attorneys of record?  Did it decide that FDNS could not interrogate employers and foreign workers unless their counsel were present?  Did the agency instruct USCIS personnel stationed abroad at American embassies and consulates that lawyers must be allowed to accompany clients into the interrogation rooms?

Swept up by curiosity, I skipped the press release and clicked on the hyperlink to the USCIS interim policy guidance pronouncing in red ink: "This memo is in effect until further notice." As I read through the guidance, disappointment set in and two thoughts entered my mind: 

  1. The American Immigration Council (AIC) must have come down with a mild case of Stockholm Syndrome.  Apparently the Council had become so captivated by USCIS that this highly regarded nonprofit seems to have mistaken "a lack of abuse . . .  for an act of kindness."
  2. USCIS has assumed the role of Senator Daniel Inouye during the Iran-Contra hearings when attorney Brendan Sullivan famously replied to the senator's complaints about the lawyer's interjections,  "Well, sir, I'm not a potted plant. I'm here as the lawyer. That's my job." 

The AIC's misleading headline notwithstanding, the "new" USCIS policy guidance does not really break new ground in its dealings with lawyers.  While the policy -- to be sure -- quite laudably clarifies and limits the roles of non-lawyer representatives and attorneys admitted in foreign countries, and makes sure that notices are sent to both the attorney and the client, the interim guidance fails to "improve" clients' access to members of the bar licensed in any of the 50 states. Indeed, in some respects, it makes matters worse.

The prior policy, reflected in the Adjudicators Field Manual (AFM), provided: 

Chapter 12 Attorneys and Other Representatives.

12.1     [Reserved]
12.2     [Reserved]
12.3     [Reserved]
12.4     [Reserved]
12.5     [Reserved] . . .

15.8 Role of Attorney or Representative in the Interview Process. Frequently an attorney will be present to represent a subject. The following rules should be followed when the person being interviewed is accompanied by legal counsel: 

  • Interviewing officers should verify that a properly executed Notice of Entry of Appearance as Attorney or Representative (Form G-28) is part of the record.
  • The attorney’s role at an interview is to ensure that the subject's legal rights are protected. An attorney may advise his client(s) on points of law but he/she cannot respond to questions the interviewing officer has directed to the subject. . . .
  • Officers should not engage in personal conversations with attorneys during the course of an interview. (Bolding added.)

The interim policy guidance substituted the foregoing with this new instruction:

The role of the representative at an interview is to ensure that the rights of the individuals he or she represents are protected. . . .

Any individual appearing in a representative capacity may not respond to questions the interviewing officer has directed to the applicant, petitioner, or witness, except to ask clarifying questions.

Officers should not engage in personal conversations or arguments with attorneys or other representatives during the course of an interview.

An applicant or the applicant’s attorney or representative should be permitted to present documents or other evidence that may help to clarify an issue of concern to the interviewer. When possible, such evidence should be submitted and reviewed before the interview, and when relevant, should be added to the applicant’s file. . . .

The attorney or representative may raise an objection on an inappropriate line of questioning and, as a last resort, may request supervisory review without terminating the interview. . . .(Bolding added.)

gagged lawyers.jpgNote that under the former AFM provision a lawyer "may advise his client(s) on points of law". 

This express statement of the lawyer's role is inexplicably omitted from the new guidance.  Now a lawyer may merely present written evidence,"ask clarifying questions," and "raise an objection on an inappropriate line of questioning."  

The new guidance, in my view, offers a powdered-wig view of law and improperly circumscribes the conduct of lawyers.  Fortunately, however, the real-world interactions between USCIS examiners and immigration attorneys have not been quite so constrained.  Experienced examiners know that a lawyer can help lead to a just outcome in many an immigration case, for example:

  • when helping to explain why a complex corporate structure involving multiple tiers of entities overseas and in the U.S. qualifies for EB1-3 Multinational Executive or Manager immigrant visa classification;
  • when showing in a family-based immigration case that a divorce would be recognized under foreign law such as (heaven-forbid) Sharia law;
  • when demonstrating that an EB-5 immigrant investor satisfies the requirement that he or she be engaged in the direct management of the enterprise merely by serving in the role of limited partner under 8 CFR § 204.6(j)(5)(iii).

The new USCIS guidance urges examiners to "remember that an adjudicator is duty-bound to develop the facts, favorable as well as unfavorable."  I maintain that an adjudicator is equally duty-bound to apply the law to the facts, and that a lawyer should be expressly allowed under revised policy guidance to play a role in helping the examiner fulfill this duty.

The USCIS should also expand its guidance by taking into account the suggestion of the Alliance of Business Immigration Lawyers in a white paper presented to the agency:

All Interested Parties Must be Allowed a Right of Meaningful Participation in Requests for Immigration Benefits and in Administrative Appeals.

Under current law and regulations, many parties with a tangible legal interest in the outcome of an immigration-benefits request have no right to make an appearance in person or through legal counsel before USCIS.

As immigration law has evolved, legislation and regulations have increased the actual and potential conflicts of interests. As a result, situations increasingly arise where a variety of individuals and entities have distinct legal interests to protect in an immigration matter. These parties in interest can include, among others:

  • beneficiaries of an I-129 or an I-140 petition (who currently cannot get a copy of the petition to show that they were in compliance of the law, to qualify under the 245(i) grandfathering provisions, or to port to an approved Employment based petition);
  • Regional Centers in EB-5 immigrant investor petitions, which cannot enter appearances to demonstrate that their investments qualify under the initial EB-5 determination or the removal of conditions phase, even though an RFE might challenge the Regional Center’s investment or its job-creation calculation;
  • the corporate employer in the success of its foreign workers’ I-485 adjustment of status cases or the workers’ family members’ applications for extension or change of status, as the employer may be injured by loss of the employee’s services; and
  • the guardian of a child’s interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant.

The G-28 — indeed, the USCIS’s regulations and the [Immigration and Nationality Act] — should be modified to recognize and allow separate legal representation of each of the parties with legitimate legal interests to protect. Failure to do so prevents USCIS from getting all the facts and considering all the legal issues raised in immigration matters. That USCIS’s current technology infrastructure lacks the capacity to provide notices, decisions and correspondence to multiple parties in interest and their respective attorneys is no reason to deny procedural and substantive due process.

potted plant.jpgAs a starting point toward ensuring "meaningful participation in requests for immigration benefits," the USCIS should proclaim that lawyers are not potted plants to be carried into interview rooms by their clients. 

Rather, the agency in revised guidance should affirm that immigration lawyers, as officers of the court, with a duty of integrity and honesty in USCIS proceedings, are essential participants in assuring that the rule of law is observed and justice done whenever petitioners and applicants request immigration benefits.