Tag Archives: DREAMers

Mayorkas v. Cuellar De Osorio: From the Frontlines of the Supreme Court

Prerna Lal at the Supreme Court for Mayorkas v. Cuellar de Osorio, CSPA

Admission ticket to the U.S. Supreme Court

A major storm was supposed to take over the District of Columbia today. While the federal and District government closed down in anticipation of bad weather, I trudged along to the U.S. Supreme Court to hear oral arguments in Mayorkas v. de Osorio, an issue that has defined most of my existence in the United States.

Due to the storm, I was able to obtain really good cushy seats near the front of the courtroom, under the nose of nine Supreme Court Justices, whose one decision on this matter can change thousands of lives, including those of many so-called Dreamers currently living in the United States.

The issue is rather simple, though it appears convoluted. Due to immigration backlogs, people intending to immigrate to the United States through their parents or siblings currently spend many years waiting in line for a visa after their petitions are approved. However, by the time they can get a visa through the approved petitions, the intending immigrants are forced to leave their children behind or see their children face removal proceedings because their young sons and daughters are now over the age of 21. This is often referred to as “aging out” of the process. At the heart of Mayorkas v. de Osorio is whether the children who “age-out” can retain their original place in line and immigrate with their parents, rather than facing lengthy separation or worse, detention and deportation.  

In 2001, the Congress passed a law called the Child Status Protection Act (CSPA), which speaks directly to the matter. Section 203(h)(3) of the Immigration and Nationality Act, as amended by the CSPA, states:

If the age of an alien is determined … to be 21 years of age or older … the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

That sounds clear and unambiguous enough. The plain meaning of the text is that all derivative beneficiaries or minor children who happen to age out by the time they can obtain an immigrant visa, can use their earlier assigned date to retain their place in line. This prevents them from waiting in line for many years, sometimes decades, in order to reunite with their families.

However, since the passage of the law, the U.S. Citizenship and Immigration Services (USCIS) has construed this section of the CSPA very narrowly, and limited it to a particular class–only those children who were sponsored by their lawful permanent resident parents and turned 21 before they could complete the process are covered. This narrow limitation is not prescribed in any law or regulation besides a questionable BIA decision (Matter of Wang), and hence, has gutted a substantial benefit under the CSPA. Indeed, a bipartisan group of lawmakers wrote in an amicus brief to the U.S. Supreme Court: “The Solicitor General’s continuing insistence that that the [law] is ambiguous raises serious institutional concerns…[Congress] does not typically give an agency carte blanche to rewrite statutory language that is clear.”

Separated from her adult children due to the agency’s narrow interpretation of the law, Respondent Cuellar de Osorio, a lawful permanent resident, filed a lawsuit to compel the agency to interpret the law as passed by Congress. The case was consolidated due to many similar cases, and certified as a nationwide class action by a California district court. Cuellar de Osorio and her class of litigants lost in District Court, but won at the Ninth Circuit. Their victory was also boosted by a win in the Fifth Circuit case, Khalid v. Holder. However, the Department of Justice appealed the Ninth Circuit decision to the U.S. Supreme Court, which granted certiorari.

I decided to make it to the Supreme Court this morning because the issue has personally impacted my life for more than a decade. When my grandmother sponsored my mother for a green card, I was a child and expected to immigrate with my mother. However, by the time, my mother became eligible for a green card, I was over the age of 21. Instead of getting a green card with the rest of my family, I was placed in removal proceedings under the auspices of the Obama Administration. While I eventually married my U.S. citizen partner, many of my counterparts are still separated from their family members, with no hope of family reunification in the near future, except for winning retention of their original priority dates under the CSPA.

Elaine J. Goldenberg, Assistant to the Solicitor General, began the oral arguments, pleading for a deference to the government’s interpretation of Section 203(h)(3), and resorted to characterizing the aged-out children of lawful permanent residents as line-cutters. Justice Ginsburg interrupted her, suggesting that the impact on the aged-out child is much more severe, and that the aged-child has indeed, waited in line. Justice Breyer honed in on the fact that the government’s interpretation of the CSPA made the impact of the statute minuscule, and seemed to be against the spirit of the statute. Ms. Goldenberg continued to insist that the minor children who had aged out were cutting in line for a visa, and tried to paint the statute as ambiguous, and thus, asked the Supreme Court to defer to the agency’s narrow interpretation of the law.

Under the Chevron doctrine, a court is only supposed to defer to an agency’s interpretation of a law if the statute in question is ambiguous, and the agency interpretation of the ambiguous statute is reasonably construed. Litigating for the lawful permanent resident parents such as Cuellar de Osorio, Mark Fleming effectively countered the government, contending that there was no need to decide whether the government’s interpretation of the legislation was reasonable, because the statute in question was unambiguous. Besides, even if the Justices found the statute to be ambiguous, the agency’s narrow interpretation of the CSPA is incompatible with the ameliorative aspect of the statute, which is family reunification. After all, one of the principles of statutory construction is that a remedial statute such as the CSPA, should be applied liberally. Fleming also described to the Justices how “automatic” conversion under Section 203(h)(3) could happen in two ways. First, the derivative beneficiary can be granted a green card at the same time as the parent. Second, the lawful permanent resident parent can file a petition for the derivative beneficiary and request retention of the older priority date.

The entire transcript for the oral argument is available here. I think Mr. Fleming won this one.

However, predicting how the Justices may vote is an exercise in futility. We just have to wait and see. In my opinion, Justice Breyer, Justice Ginsburg, Justice Alito, and Justice Sotomayor seemed to be on the side of the Respondents, with the rest of the Justices being toss-ups except for Justice Scalia, who seemed to be the only one fervently in favor of the government. However, most of the Justices appeared confused, which is probably the only thing going for the government right about now.

Still, if MotherJones can slice through the complex legal language and get the gist of the case–which is about putting a stop to family separation and deportation–I am sure that at least five Justices on the U.S. Supreme Court can do the same.

The storm did not last long. I walked out of the court with the sun shining down brightly at me. Lets hope for the same for all our families soon.

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Whither Immigration Reform?

NIYA Bring Them Home

The DREAM 9 after they were released on parole

Lets get this out of the way: Comprehensive Immigration Reform (CIR), with a pathway to citizenship, is dead for 2013.

Many of our friends working hard on Capitol Hill insist that immigration reform talks are moving forward despite the death of the House “Gang of 7” lawmakers who were supposedly working on a bill. I respect the undocumented youth who have been working with legislators, both Democrats and Republicans, to move the ball forward. It is not an easy task. I have been there and done that 2007-2010, watching the federal DREAM Act come up for a vote and fail to pass twice over. I have played the game with lawmakers, lobbied extensively on the issue, and organized to bring about legislative change. But the apparent failure of these efforts is also a testament to why we need people outside the institutions, such as The National Immigrant Youth Alliance (NIYA) to kick things into gear, and inject energy and enthusiasm into the debate.

I just received word from the The National Immigrant Youth Alliance that that they are not waiting for comprehensive immigration reform. To be clear, that is not what NIYA is about in the first place. NIYA’s mission is to teach immigrant communities how to fight for themselves. After the brilliant DREAM 9 action, the NIYA will be doing another border surge this coming week, Bring Them Home 2, where they will bring back dozens of families previously deported. This is in response to the very real urgency that many of us feel in our communities: we cannot face the horrors of cartel violence and live torn apart from our homes and families for another second.

As for the institutions still working towards comprehensive immigration reform, I wonder how much of that is simply the immigration non-profit industrial complex talk to keep the issue alive and not concede that the comprehensive strategy has been a dismal failure for our communities. I also wonder whether the 1,100 people deported on a daily basis can afford to wait while politicians and self-appointed figureheads pander with their lives. I have heard from many friends within the immigration reform complex that the main goal of the continuous push for immigration reform is to punish the GOP at the polls, rather than to win relief for all our communities. I could care less for the political games, and contrary to that goal, there is a real sense of urgency in a lot of immigrant communities to bring about change. Many are now looking to the so-called nuclear option — President Obama, exercising his discretionary authority, to grant relief for the 11 million, and pursue other executive remedies.

Least we forget, President Obama was compelled to issue Deferred Action for Childhood Arrivals (DACA), after pressure from both inside and outside groups. While it has many shortcomings and served as a way to silence a lot of critics, the program has granted relief to close to 500,000 undocumented youth. There is no reason that the President cannot expand it to cover everyone. As even Republican Marco Rubio pointed out last month,  Obama could be “tempted” into legalizing the 11 million undocumented immigrants with the “sign of a pen” if congressional reform efforts keep stalling. Many organizations, such as the National Day Labor Organizing Network (NDLON) have insisted on this temporary fix as well.

When compared to the option of eventually passing an immigration bill complete with border militarization, criminalizing future undocumented populations, and no pathway to citizenship, as many groups are now willing to compromise behind closed doors, deferred action for all may be the better temporary solution. It will remove the threat of deportation for millions of families, and allow them to reside and work legally in the United States. As more families come out of the shadows, show their contributions to society, Congress would have to create a more permanent fix, as it did with NACARA in 1997, where certain Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet bloc countries and their dependents were granted lawful permanent resident status after their cases burdened the asylum system. A little birdie tells me that the Bring Them Home project has similar goals.

Plan A is then, to stop the deportations and grant deferred action for all. It puts more pressure on House Republicans to do something, besides drag their feet in order to kill immigration reform. It stops Democrats from using the immigration issue as a way to pander to growing Latino demographics. Deferred action for all would also create energy and enthusiasm in immigrant communities across the country. And President Obama, currently known as the Deporter-in-Chief for record-breaking deportations, gets to rewrite history books about how he granted amnesty to the 11 million, and liberated the undocumented. He shouldn’t pass it up without a second thought. That would be a mistake.

The clock is running down.

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Why Dreamers Need Lawyers

Full disclosure, I’m a Dreamer. I’m also a full-time third-year law student. I work at an immigration law firm in downtown Washington D.C. and I love my job.

Like many immigrants in the United States, my family and I were screwed over by immigration lawyers and school administrators, which left me without legal status in the United States. As such, I have an inherent dislike of immigration lawyers as there are many bad ones in the profession. At the same time, I’ve had the pleasure of knowing some really great immigration lawyers who’ve helped me out on innumerable occasions.

As such, I have to come out strong against several politicians and non-profits who are spreading the dangerous and irresponsible messaging that Dreamers do not need lawyers for the new deferred action process starting on August 15. I’d strongly advise my fellow Dreamers to get a competent immigration attorney to draw them an immigration history chart to ascertain precisely what benefits they could be eligible for now and in the near future. Not doing so, would be highly irresponsible. Laura Lichter, President of the American Immigration Lawyer’s Association (AILA) does a great job of telling us why we need lawyers, but I have a few more reasons to add.

First, since June 15 2012, dozens of Dreamers have walked into our immigration law firm. Close to half of them actually qualify for better relief than deferred action. We’ve had lawful permanent residents consult with us not knowing they were in fact, lawful permanent residents. We’ve had cases of people who would not qualify for deferred action but are eligible for special immigrant juvenile status, and hence, a green card. We’ve had cases of people who’ve been victims of serious crimes and persecution, who would qualify for asylum and withholding in the U.S., and some who would qualify for U-Visas. We even had a case of a Dreamer who was actually a U.S. citizen because his dad had naturalized as a minor — he just did not know that he automatically became a U.S. citizen. And we’ve many Dreamers, including myself, who are eligible for green-cards through non-LPR cancellation of removal in immigration court.

Now most Dreamers are probably just eligible for deferred action. However, I don’t think it hurts to see an immigration lawyer, especially if you may be eligible to adjust your status to that of a lawful permanent resident. It also does not hurt to see an immigration attorney especially if you have crimes or convictions on your record. Sometimes, a lawyer can get you post-conviction relief, and USCIS will most likely honor that.

Second, in most cases, local non-profits do not have the legal expertise to answer tough legal immigration questions regarding legal terms like continuous presence, unlawful presence, advance parole in individual cases. For the most part, they have never actually practiced immigration law. To be fair, there are some good local immigration law providers, though few and far between. Moreover, legal help provided at workshops or clinics is often cursory and you need an immigration lawyer to devote more than 30 minutes to your case. Besides lack of legal expertise, there is also no way that non-profits can accommodate 1.76 million applicants. In such cases, private immigration attorneys are crucial for Dreamers to get expert advise and help.

Third, not all Dreamers are college-educated with the inherent ability to fill out immigration forms (and even college-educated Dreamers make mistakes). We could fill out forms incorrectly, which could get us a denial notice, with no appeal process. In some cases, checking the wrong box could result in a notice to appear in immigration court proceedings. In most cases, we all have only one shot at doing this right. We may as well make sure that several people look at our application before it is filed and that we have strong and highly experienced advocates to follow-up with USCIS if anything goes wrong.

And finally, regardless of what USCIS says about keeping your information private and confidential, experienced immigration professionals know that ICE will not hesitate to use your information against you if they ever initiate removal proceedings. We are talking about an agency and administration that has deported more people than ever before. During conference calls with USCIS, Director Mayorkas has made it clear that those with potentially negative immigration histories, including fraud and crimes, would be referred to ICE for removal proceedings. I don’t want to discourage anyone from applying by sounding an alarm — but this is not the easy, benevolent process that some people are painting it to be.

Application fees are $465. Some non-profits who have experience dealing with immigration law and immigration lawyers on staff, will be providing free legal services. Reasonable private immigration attorney costs should be in the range of $500-$2000, not counting any fees and depending on the complexity of the case. Immigration attorneys would need to open your files, input your information into the system, ascertain what benefits you are eligible for, get their paralegals fill several forms for you, get certified copies of your court records in some cases, gather several hundred pages of documents proving your identity and proof of presence, make copies and send them in for you. They would need to follow-up with USCIS for any notice to deny or request for further evidence. All of this requires significant time and effort, even in the most compelling cases.

It is worth your pesos to make sure that your case is handled by competent legal professionals and not notarios or staff at over-burdened non-profits who may not have the legal expertise that is required to handle your case or tell you that you actually qualify for more than just deferred action. Do yourself a favor and get yourself the best advocate you can afford. It will be well worth it.

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In These Waiting Rooms of History – The DREAM of U

Dream Act Now

i wait for you in this caged room
we’ve never met and yet
[you feel familiar
i feel like i’ve known you before]

shadows mill past me
moving slowly, drudging and digging
futures ploughed within these timeless walls
you see me waiting and yet
[i can’t get to you,
i feel stationary much like before]

what is this feeling
fluid and fragmented
but immobile by design
so close and yet so far
[you slip away again
i feel betrayed, more than before]

i tell myself that i believe in you
i tell others to understand you
[i truly do believe in you,
in the DREAMs of you]

-DreamActivist

October 24, 2007. That is the date of the stamp on our Dreams Deferred.

Categorically denied even before debate, subjected to another indefinite wait, deferred dreams have a crippling effect on morales and ambitions.

20 million — that is the estimated number of us all over the world. Picked and tucked into the battle for our lives–Sorry, you don’t get guns and armor. Thrown into the deep end of the ocean so swim or you will drown–Sorry, no swimming lessons available. Underprivileged and underclass–sorry, no financial aid available. Illegal in our homes, legal away from our land–sorry no relief available.

Like the farmer that waits for the drought to end, like the mother that eagerly waits the birth of her child, like the student that cannot wait to turn 18 and gain ‘freedom,’ like the many American people who can see no further than ‘change’ with a new Administration, we too have been in for a long haul, a long stay in these waiting rooms of history

To DREAMers across America — I know this wait is the hardest time. I know life in limbo is harsh like life in a prison, only you have committed no crime. But remember, we have the power to make this wait productive, to take this time as a test–a character-building exercise– and to end this wait. Take each defeat as a learning lesson, as a challenge to do better and get better till you beat every test.

Do not despair. Do not be afraid. Do not give up. Stay true to your DREAMs.

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More DREAM Act students face deportation

For every Juan Gomez, Tope Awe and Maria Gonzalez, we have countless other nameless and faceless DREAM Act students facing deportation to a foreign land and life. Their stories, our stories, deserve to be documented.

Mario Munoz (28), came to the United States when he was 9 years old and has lived in the San Francisco Bay Area most of his life. But on March 19, he was put into detention together with his family and they are now awaiting deportation to Colombia.

“I knew he was illegal when I told him that I loved him so much that I could marry him tomorrow. Then he told me… and I would have married him then. I’m sorry I didn’t,” said  Kelly Luce, his fiance.

Mario is currently being held at Hernando County jail and may be deported in under two weeks.

Then we have Anya Gorlova who has been living in the United States since she was six years old. Originally from Belarus, she was sent here LEGALLY by her grandparents to live with a relative since she lost both her parents at a young age. Anya was legally adopted when she was 12 and it is now that ICE has noticed something ‘wrong’ with her immigration papers filed back in 1996. Anya is now a senior in high school and aspires to be a teacher. But her dreams might be dashed soon if she is deported back to Belarus–a country she does not know.

The icing on the cake is the story of Lino Nakwa, who has been here legally since he was 12 years old back in 1992. Originally from Sudan, Lino was kidnapped, tortured, and watched his father die before he escaped to the United States and received refugee protection. Now, 16 years later, Homeland Security wants to deport him because he may pose a “national security” threat since Nakwa received “military-type” training. Lets hope that a federal review of his case stays this preposterous deportation proceeding since time is running out for Nakwa to be eligible under the DREAM Act.

Know other DREAMers facing deportation? Share with us.

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