Executive Action on Immigration: Good, Bad, and Ugly

I went to bed last night mentally doing a checklist of everyone I know who qualifies and does not qualify under the President’s immigration action. As a community advocate and formerly undocumented immigrant, the word that most aptly describes last night is “bitter-sweet.”

While the announcement is not enough, we do need to celebrate our victories, and what change this temporary reprieve will bring to so many members of the community. However, I am also frankly terrified for those that it would not help, and what would happen in the absence of permanent changes.

I am making a quick reference checklist here for myself, family members and friends, similar to the one I made for the Senate immigration bill two years ago as a community advocate. These are simply my initial mental impressions of the various memos released by the DHS yesterday and available here. They are in no particular order:


  1. Expansion of DACA – The DHS will remove the upper level age cap on DACA so people who were above the age of 31 as of June 15, 2012 will not miss out. The date of entry was moved to January 1, 2010 from June 15, 2007, which means thousands more people who are newer arrivals would benefit. DACA will also be made into a temporary reprieve of 3 years, and the changes rolled out in 3 months.
  2. The New DAPA program – The DHS is tasked with creating a separate deferred action program for parents of U.S. citizen sons/daughters or LPR sons/daughters born before November 21, 2014. Parents must have resided in the U.S. since at least January 1, 2010, physically present in the U.S. on the day of announcement and have no lawful status, passed background checks, and are otherwise not ineligible (i.e. not an enforcement priority according to the new Johnson memo).
  3. The provisional stateside waiver (I-601A) will be extended to all family members eligible, which will now include adult sons and daughters, and spouses of LPRs. The provisional waiver is for the 3/10 year bar for unlawful entry, and requires an individual to prove “extreme hardship” to their U.S. citizen family member if they are deported. Usually, individuals who are trying to adjust their status in the U.S. but entered the country unlawfully, need to travel abroad to their home country for approval of a waiver. In 2012, the Administration started accepting “extreme hardship” waivers without requiring immediate relatives of U.S. citizens to leave and wait outside. Now this benefit is also available to the children and spouses of lawful permanent residents. This provision will require rule-making, so it will take some time to roll this out. The DHS will also engage in rule-making to expand the “extreme hardship” definition.
  4. Naturalization – Lawful permanent residents who are naturalizing can now pay via credit card and may qualify for fee waivers.
  5. Expansion of parole-in-place to immediate relatives of those U.S. citizens and lawful permanent residents who “seek to enlist” in the US Armed Forces (Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or the Reserve of any of the five Armed Services). This benefit means that not only would the family members of those who seek to enlist not be subject deported–they may also be eligible to adjust their status in the future.
  6. Clarification of travel on advance parole by DHS so that people on DAP, DACA can travel abroad, and return to adjust their status in the U.S.
  7. Department of Labor (DOL) reforms: DOL will start issuing U visa certifications in three key areas: extortion, forced labor, and fraud in foreign labor contracting, and certify applications for trafficking victims seeking T visas. According to DOL, “These efforts will significantly help qualifying victims of these crimes receive immigration relief from the Department of Homeland Security (DHS) and access the range of victim services that they need to recover and rebuild their lives.”
  8. Reforms to the employment-based immigration system such as extension of OPT for STEM graduates, defining “specialized knowledge” for L-1B intracompany transferees, increasing H-1B portability by having USCIS define “same or similar” jobs, expanding the use of the “national interest waiver” and starting a new parole program to bring talented entrepreneurs to the U.S.


  1. Elimination of Secure Communities with a new program that targets immigrant communities: DHS is replacing the current “Secure Communities”  program with a new “Priority Enforcement Program” to remove individuals convicted of criminal offenses. While it could be a marked improvement that moves us from a pre-conviction to post-conviction model and uses notification instead of detainers, unfortunately, this continues the entanglement of local law enforcement with immigration enforcement.
  2. Exclusions for parents of DACA recipients, undocumented workers and farm workers without families, and LGBT individuals less likely to have family members in the U.S. – While these exclusions are not categorical, and some parents of DACA recipients who also have U.S. citizen/LPR children would continue to benefit, the President’s immigration action does not specifically benefit those who do not have immediate family ties to the U.S. but are nonetheless, members of our community. It is also unclear at this point whether parents with final orders or re-entries after deportation would be eligible for the program. At this point it appears that they would be eligible since they are not priorities under the new memo.
  3. Visa backlogs – The announcement punts on the question of family visa backlogs that affect so many of us. However, there will be Presidential Memorandum to create an interagency group to look at “visa modernization” which has 120 days to prepare recommendations for further action.
  4. Limited expansion of DACA:  It is great to see an expansion of DACA and elimination of the age-cap. It would have been nice to see public benefits such as ACA (healthcare) given to DACA recipients, as well as increasing the age of entry to 18 from 16 years.
  5. Employment-based immigration: DHS expects to finalize regulation on H4 visa holders soon but the rule will not be expanded to all H4 visa holders
  6. New enforcement priorities that continue to target immigrant communities: The President is rescinding past memos such as the Morton Memo, and issuing a new one, effective January 5, 2015. The new priorities are troubling and continue to criminalize immigrant and border communities, pitting good immigrants against bad immigrants, and separating families. I have listed the priorities below, and some initial thoughts on each:

Priority 1: Non-citizens convicted of aggravated felonies, suspected terrorists, convicted gang members, people apprehended at the border while unlawfully entering the U.S., will be a priority for removal unless they qualify for asylum or another immigration benefit.

Most troubling here is the use of language such as “suspected terrorists” without built in civil rights protections that discourage racial profiling. Additionally, people apprehended at the border will now be a top priority, even though many are coming to reunite with family. The prioritization of people with gang-related membership (without conviction) is very troubling, as law enforcement targets specific racial/ethnic groups as gang-affiliated.  

Priority 2: Non-citizens convicted of three or more misdemeanor offenses, non-citizens convicted of significant misdemeanors (including DUI), non-citizens apprehended who entered after January 1, 2014; non-citizens who are perceived to abuse the visa waiver program should be a priority of removal unless they qualify for asylum or another immigration benefit.

Significant misdemeanors – a new legal fiction created by DACA – is here to stay, even though it has no legal foundation. The prioritization of people with a DUI, and their exclusion from DACA, is incredibly troubling, as is the prioritization of people who overstay their visas under the visa waiver program. Many of these people are immediate relatives of U.S. citizens and have much to contribute to the U.S.

Priority 3: Non-citizens issued final orders of removal after January 1, 2014 should generally be a priority for removal unless they qualify for asylum, or another immigration benefit.

Immigrants who dared to come to the U.S. in 2014 will now be subject to draconian enforcement. 


  1. Increased border enforcement – DHS plans to fund an additional 20,000 CBP agents, and continue to trend towards further border militarization of the Southern border we share with Mexico.
  2. Ramped up interior enforcement through existing programs such as the Criminal Alien Removal (CARI) Program, which profiles Latinos for detention and deportation, and  ICE raids, which will continue under these new announcements, despite right-wing talking points.
  3. Due process concerns: Expedited deportations and Operation Streamline will continue.
  4. No reforms to the existing detention system: Family detention will continue as the DHS opens a brand new center in Dilley, Texas, and arriving asylum seekers at the border will continue to be detained.

Finally, I just want to say that this is a deeply personal issue for me. I want to send some love and light to everyone who has worked hard for this announcement and emotionally drained from yesterday, and left out or have family members who are left out. I had a cab-driver yesterday, who unexpectedly started telling me about his son, and trying to figure out how to bring him here, just as I was getting out of the cab. I wish I had the time and opportunity to help him, and I hope he reunites with his son soon. We all deserve justice; we all deserve to be able to reunite with our families; and we most certainly deserve to be able to go home to safety–wherever that is.

If anyone has further thoughts, questions and concerns, feel free to comment or contact me.

I Was Supposed To Get My Lawful Permanent Residence Today

The stage was set. The Immigration Judge gave us this date at my last hearing. It was supposed to a warm and fuzzy weekend, with my U.S. citizen partner and I flying out to San Francisco from the East Coast to attend the short ceremony. My family, from all over California, had promised to take time off from work, to come to the hearing and see me getting sworn in as a lawful permanent resident. I had submitted my tax records, underwent several biometrics and fingerprinting sessions, and proven that I posed no health risk to the country by undergoing a thorough medical exam. I was ready to get my green card.

Alas, true to its grinch nature, the Office of Immigration Litigation and the Department of Justice broke our hearts for Valentine’s Day.

Now, I don’t need a green card to operate normally. I don’t need it to graduate from law school. I don’t need it to get sworn in as an attorney. And I certainly don’t need it to get a job. I don’t need to be legal for any facet of life in America. I need a green card so that I can leave this country without forever facing separation from my immediate family.

I have absolutely no use for American citizenship unless I want to commit crimes and vote for the lesser of two evils.

I’m sure I’m not different from many people without immigration status who aren’t aspiring to be American as much as they simply want the opportunity to go back home without facing a ten-year bar from ever seeing their relatives again. Immigration advocates with their nationalistic fervor have made it almost shameful for people like me to admit that we don’t crave citizenship.

I crave freedom of movement. I desire the chance to get to know my roots. I want to serve my country and my people. I need to heal from the trauma of being brought here. But mostly, I just need to see my home before it is ravaged by climate change.

Yet, the stigma is sometimes more overwhelming than the deep sense of loss. The voices taunt and berate:

“How dare you live here and not love America?”

“How dare you betray the sacrifices of your parents?”

“How dare you even consider life somewhere else?”

Grunt. I am 28-years old, hold three different degrees, pay my taxes, take care of my own housing, and don’t owe anyone, besides myself, any answers.

Even if I don’t deserve a green card, I do deserve to be free to go home.

I’ve tried to leave. So many times. As a teenager, I ran away from our house in Hayward, California but I didn’t know where to go. So I had to come back. When I got a little older, my poor mother, who is a legal resident by way of her mother (a U.S. citizen), bribed me into staying and finishing graduate school by saying she would pay for it if I stayed but would not support me if I left. So I stayed. When I decided to go off to law school in Canada, the U.S. Embassy in Fiji got in the way by providing false information to Canadian authorities.

I decided enough was enough. That’s when I applied for a green card, compelling the USCIS to either grant me legal residency or place me in removal proceedings. With luck and charm, they chose the latter. Alas, my misfortune is such that the government doesn’t have the damn cojones to go through with it. It’s quite pathetic.

So, I’m still stuck here, reeling from 14 years of post-traumatic stress, without a real ability to heal unless I leave. And the people around me are stuck with it too. Bless them.

I’m afraid that by the time I do get the chance to go home (and it is really a matter of when at this point), it won’t be home anymore. It will take a long time for my broken heart to heal from the reality that there is no place on this planet that feels like home.

Maybe I am forever doomed to be an alien. Maybe I’m stuck searching for home in people, rather than places. And maybe, that isn’t such a bad thing.

Next Master Calendar – October 10, 2013 – Fiji’s Independence Day.

Immigration Court, Take II

My partner and I both woke up at 5 a.m. and we made our way down to San Francisco for my second Master Calendar hearing yesterday. It takes about 1.5 hours to get from Antioch to downtown San Francisco in the morning. We were there at 7:30 a.m. and grabbed some breakfast from a cafe before heading to the EOIR at 120 Montgomery.

I was in the middle of the docket but we waited till 11:45 a.m. for the Immigration Judge to call me up since my attorney was appearing telephonically from Washington D.C, and it made sense to wait till the last. However, the wait was brutal since we did not know what was going to happen.

We wanted the Immigration Judge to set the earliest possible date to adjust my status. Several thoughts kept running through my head. Would the Judge terminate proceedings and have me apply for a green card at USCIS? Would she schedule an individual calendar hearing for adjustment of status in 2015? How hard would the DHS prosecutor oppose setting a date for adjustment of status?

I didn’t need to worry so much. Judge Carol King runs the courtroom better than any judge I’ve seen. She is absolutely brilliant and she knows what she is doing. On the two occasions that I’ve been in her courtroom, I’ve seen a pro-bono attorney present to serve indigent clients. She takes over and goes out of her way to tell struggling immigration lawyers precisely what they need to do for their clients and how they need to plea (“Trust me, this is what you should do…”). She dances to the music over the telephone. She makes attending removal proceedings a lot more fun and I have been quite lucky to have her as a judge.

When it was my turn, the DHS prosecutor asked the judge if she could speak to my attorney off the record. I thought this was a bit unusual for a Master Calendar until I saw that she had a thick folder of information on me, including one magazine that had me on the cover page. We called Andres on the phone and she offered to give me prosecutorial discretion, which was very nice of her. But we aren’t interested in discretion as it does nothing for me at this point, as I already have work authorization under the multiple pending applications for relief. We want adjustment of status and Andres made this clear over the phone.

He pointed out that we have an adjustment application pending with no criminal or admissibility issues. Under the recent Ninth Circuit decision in De Osorio v. Mayorkas, I was eligible for adjustment of status. Terminating proceedings and applying for a green-card with USCIS may not be the best idea since that is what started these removal proceedings in the first place and we have no idea when USCIS will start adjudicating the law in the Ninth Circuit. Judge King said that it made sense to go ahead with adjustment before the court and she set a date within 4 months. She also gave DHS 30 days to file a reply brief to the brief we filed on my eligibility to adjust status under INA 245(i).

I don’t see any reason for why I should not be granted lawful permanent residency on February 15, 2013. The De Osorio decision is the law in the Ninth Circuit and unless the Government gets a court order to stop the adjudication of all applications until they can seek cert., the IJ should apply the law as it stands.

The highlight of the day was seeing the lovely DHS prosecutor with a copy of the IndiaCurrents magazine with me on the front cover. In case you are reading this, thank you and I’d love to autograph your magazine copy next time I see you.

Next hearing date, and hopefully the last hearing date: February 15, 2013 at 1:00pm in Courtroom 14 at San Francisco EOIR, which is when and where I should be granted lawful permanent residence in the United States, if all goes well.

Obama’s Immigration Announcement Creates New Generation of “Undocumented and Unafraid”

President Obama’s directive to affirmatively issue deferred action to DREAM Act eligible youth is fostering a new generation of “undocumented and unafraid” students who will be spared from deportation. But it isn’t just young people who are coming out in throes. It is also our parents.

At the National DREAM Graduation in Washington D.C., which was the largest gathering of undocumented students ever, Alejandra Pimentel, an undocumented mother, addressed an audience of undocumented youth. She spoke about fighting her son’s deportation, and shared some great words with the young people in the room, telling us that her dream was our success and that we should never give up. She told us that because of us, she was undocumented and unafraid.

But Pimental is not the only mother who is coming out as undocumented and unafraid. Across the country, at community gatherings, workshops and town-halls about the new deferred action program, undocumented parents are showing up in large numbers with their undocumented and U.S. citizen children to gain some understanding of what the new Obama announcement does for them.

This bold new coming out by undocumented parents is ironic given that young undocumented immigrants have often been accused of being selfish for advocating for the DREAM Act as opposed to comprehensive immigration reform. Maybe we have always been right. Maybe piecemeal immigration reform is the way to go, adding ingredient by ingredient till everyone can share in the pie. Undocumented parents coming out of the shadows to seek some sort of status for their kids certainly cements our claim that our dreams were never selfish–they are in fact, tied to the dreams that our parents had for us in bringing us to this land of opportunity. And deferred action for DREAMers is emboldening them as much as young people into coming out of the shadows.

I was at JEB Stuart High School in Northern Virginia last week, helping my law firm conduct a workshop about deferred action for members of the community and over 400 parents showed up to listen intently, ask questions and seek help for their children. We stayed for over 3 hours and ran out of our materials. The next day, our phones at the office did not stop ringing.

While some organizations are discouraging young immigrants and their parents from seeing immigration attorneys regarding the new program, within the last week alone, we’ve told a DREAMer that he is in fact, a U.S. citizen, assisted someone in registering for the GED, discovered an in absentia order of deportation, discouraged a DREAMer from engaging in marriage fraud, and discovered a entire undocumented family that should have received their green-cards a long time ago. An undocumented mother told me last week after consulting with our law firm that she was finally seeing light at the end of the tunnel. It is thus, critical, that we should straddle the fine line between warning people of scammers and notarios, while encouraging people to seek legal advice.

At DreamActivist.org, we released a FAQ explaining deferred action, which received over 10,000 downloads within a couple days. Well over a thousand people have emailed to ask whether they are eligible for the program and to request legal support for more complicated cases. For perhaps the first time, people who were not already “undocumented and unafraid” are coming out to seek legal advice regarding their immigration history, and that is a good thing that we should all encourage especially since it is quite likely that many people qualify for far more than just deferred action.

Additionally, the renewed coming out is not restricted to community forums and law firms. The USCIS has already stated that the parents of everyone granted deferred action will not be put into deportation proceedings, so there is nothing to fear by seeking information. The government agency reports getting over 75,000 calls concerning the program. They have hired over 100 new staff to process applications, which could take anywhere from 5 to 9 months. Despite criticism that DREAMers would take away jobs from American citizens, the new program is already creating jobs for Americans.

From undocumented and unafraid, we are increasingly becoming documented and unafraid. Immigration attorney, Andres Benach, has suggested that by applying and receiving deferred action, young immigrants and our parents will further integrate themselves into American society. We would have driver’s licenses, social security numbers, and jobs. We would be able to rent apartments, go to college, buy homes, pay more taxes, take care of our parents, invest in our communities, get married and have children.

As our roots grow, it would be much harder than it is now to uproot us from America and the appetite for the social disruption of deporting us will will decrease exponentially. Hence, even if a Republican such as Mitt Romney is elected to office, it is doubtful that she or he would order the deportation of millions of DREAMers, along with our families. Congress will have to act as it did with NACARA, and grant permanent residency to DREAMers living in an amorphous legal state under deferred action.

Thus, I believe that any future DREAM Act would be short, simple and sweet: anyone granted deferred action under the premises of the DREAM Act or anyone who was eligible for DREAM Act deferred action in 2012 shall be eligible for permanent residency.

If you haven’t come out as undocumented and unafraid, come out of the shadows. The only thing you have to lose is your chains.

FOIA: Lets Make Up Dates!

I finally got my FOIA documents from the Department of Homeland Security, courtesy my brilliant lawyer.

There’s nothing of interest or importance in the stack of 300-something pages besides this one page, where the officer puts down that I entered the country on May 12, 2010, with the right to remain till November 12, 2010:

Do recall, that the actual Notice to Appear states that I was “admitted to the United States at Los Angeles, California on or around November 13, 1999 as a non-immigrant B-2 visitor for pleasure with authorization to remain in the United States for a temporary period not to exceed November 10, 1999.”

It’s pretty obvious that none of this is actually true. And it is hilarious, considering a copy of my F-2 and I-94 are in my immigration files.

I’m going to start making up random dates for things too, because if the government can do it, I can too!


Of course, my lawyer will probably say it’s not the U.S. government. It’s just USCIS.