Community Voices: Stop the Deportations

I am a little late on this one, courtesy the holidays and a visit from my awesome in-laws. They treated us to some great dinners and then bought a nice gym membership for both of us. I get the message since I am not as dense as the immigration system in the U.S.

If you want to check out how convoluted and utterly ridiculous U.S. immigration can be, look no further than this story of a deported U.S. citizen, who finally has her passport back.

President Barack Obama said during a trip to New Orleans, “We should be fighting to make sure everybody who works hard in America, and hard right here in New Orleans, that they have a chance to get ahead.” So why is the Obama Administration piloting a new, unprecedented and extraordinarily harsh effort to hunt down and deport thousands of hardworking undocumented immigrants in New Orleans?

Ju Hong, an undocumented graduate of U.C. Berkeley, interrupted President Barack Obama during his stump speech on immigration reform in San Francisco earlier this week. His “yelling” echoed across the country, and has sparked a series of articles, mostly calling on the President to use his executive authority to stop deportations:

And there are many more. Ju also wrote an open letter to the President pointing out the many contradictions between Obama’s words and actions.

The National Day Labor Organizing Network (NDLON) unveiled various images for the holiday season that should resonate with families torn apart by deportations:


Almost half of all persons facing deportation lack access to counsel and cannot afford to get counsel. The figures are worse for those who are detained. But help is on the way.  In New York, a new pilot program is finally providing support for people who find themselves in removal proceedings. Deportations to Mexico are expected to spike in 2014, such that even the Mexican government is now pouring resources into deported adults and children. These efforts need our continued support and funding.

Educators for Fair Consideration (E4FC) in the Bay Area has released a comprehensive guide containing 52 pages of up-to-date information about scholarships available for immigrant students who don’t have U.S. citizenship or legal permanent residency as well as advice and tips for writing winning scholarship applications.

DRM Action, a political group for Dreamers, is working on breaking the current lock-jam in Congress over immigration reform, and suggests halting deportations and passing the GOP KIDS Act as alternatives to the Senate’s S.744 bill. Dreamers are also warming up to Rep. Joe Heck’s piecemeal proposal to direct the government to cancel the deportation of those who were in the United States as of Dec. 31, 2011, and who were 15 or younger when they arrived.

Immigration is not just a Latino issue. Thousands of American Muslims have been targeted for “voluntary interviews” since September 11, 2001–interviews unconnected to any specific criminal investigation. These interviews, predominantly by the FBI, have become increasingly coercive. In an effort to help attorneys deal with representing clients for these “voluntary interviews,” the Muslim Advocates will be hosting a webinar on December 11, 2013 at 12 PM PST / 3 PM EST.

The DREAM 9 ripple effects continue. DreamActivist has identified a long list of abuses and misappropriation of priorities at the Eloy Detention Center. These include:

  • Over 100 cases where detainees are granted Credible Fear, provide sponsorship documents, and ICE officials still refuse to release. This in direct violation of Immigration And Customs Enforcement (ICE) Directive No.: 11002.1;
  • 3 cases of pregnant women detained in conditions detrimental to the health of their unborn babies;
  • Several instances of harassment based on the individuals religious or sexual identities;
  • Documentation only being provided in English, without access to interpreters. A majority of detainees are primary, non-English speakers;
  • Over 20 cases of individuals being held despite clearly being eligible for discretion under the Morton Memo, issued in 2011;
  • A case of a male detainee being refused proper medication;
  • Arbitrary Credible Fear rulings; instances of two individuals with identical cases (detained together) with one granted and another failed;
  • Over a dozen instances of long-term, unjust, detention resulting in the deportation of discretion eligible individualss

As such, the organization is calling for a complete review of cases at Eloy Detention Center.

Obama Delivers Strong Words On Immigration Reform Even As His Justice Department Separates American Families

Crossposted at Huffpost

Sometimes, reforming the immigration system means fully implementing existing laws on the book.

During his much-awaited immigration speech in Las Vegas, the President spoke, in part, of fixing the legal immigration system such that “if you are a citizen, you shouldn’t have to wait years before your family is able to join you in America.” This sounds simple enough. Current family-based visa categories are incredibly backlogged and prevent legal immigration to the United States, while increasing unlawful presence of people who simply want to be with their families.

However, despite his welcoming rhetoric, the Obama Administration has actively pursued policies diametrically opposed to resolving the crisis of legal immigration. In addition to carrying out a record-high number of deportations, the Obama Administration has carried out an assault on the children of lawful permanent residents and U.S. citizens by depriving them of their place in line, contrary to the rule of law.

Imagine having a U.S. citizen family member sponsor your parents for the elusive green card. The petition gets approved, and you get placed in a long line along with your parents. Slowly but steadily, over a decade or longer, you make your way to the front of the line and your parents gain permanent residence after a long wait. While waiting in line with your parents, you do everything right: you comply with the law, receive an education, pay your taxes, and in many cases, wait patiently outside the country. However, by the time you reach the front of the line, you are over 21 years old and have therefore, “aged out.” As a result, you do not get your green card. Instead, you get slapped with a Notice to Appear in immigration court for your removal proceedings. If you are abroad, you get told that you need to wait another decade to join your family and start over again at the back of another line. If you get married during this minimum two decade wait, you may never be able to immigrate.

This is my reality and the reality of thousands of young immigrants who grew up in this country or are waiting in line in their countries of origin. We are separated from our U.S. citizen and lawful permanent resident parents and family members. Although President Obama has implemented administrative fixes such as deferred action for childhood arrivals and the provisional unlawful waiver program, the Administration continues to pursue policies that make it harder for American families to stay together. In this case, the Administration’s actions are contrary to the rule of law that provides for family reunification.

More than ten years ago, in 2001, Congress passed the Child Status Protection Act (“CSPA”) to address the lengthy separation endured by children of U.S. citizens and lawful permanent residents. The legislation, which was signed into law by former President George W. Bush, allows children who have reached the age of 21 to keep their place in line under another visa category, eliminating the need to wait twice as long as everyone else for an immigrant visa. That seems fundamentally fair. And yet, since 2001, the government has fought tooth and nail to avoid following this law.

Through the Department of Justice (“DOJ”), the Obama Administration is fighting CSPA by arguing that it is ambiguous and may only apply to a limited number of children who aged out of line. Yet, not a single federal court of appeals in the country agrees with the Obama Administration concerning the ambiguity of the legislation. Undeterred by this strong opposition, last week, even while many rejoiced the Senate reaching a bipartisan consensus on immigration reform, the DOJ decided to appeal and effectively stay the implementation of a Ninth Circuit Court decision (de Osorio v. Mayorkas), which would have required the Administration to fully implement the CSPA immediately for all children who have aged out of line. The Obama Administration’s position is contrary to the plain meaning of the legislation, which suggests that it applies to all children who age out.

The Administration’s limited vision for our immigration system through their narrow interpretation of CSPA should set off warning bells in the ears of immigration advocates who are pondering the Senate bipartisan blueprint and the President’s blueprint for immigration reform. It clearly means that just because Congress passes a law does not mean an agency will implement it as it is supposed to be implemented.

Nowhere is this warning more relevant than the Senate blueprint for immigration reform. The Senate blueprint includes a trigger mechanism mandating that undocumented immigrants who get in line as “lawful probationary immigrants” may only receive green cards after the border is certifiably secure. Senator Schumer (D-NY) has clarified that whether the border is secure is up to the Secretary for the Department of Homeland Security. However, the decade-long CSPA debacle serves as a lesson to advocates and reformers that leaving things open for agency interpretation, especially the interpretation of the DHS, may not serve to reform the system in the long run.

If the Obama Administration is truly concerned about revamping the legal immigration system, it should urge Congress to increase the allocation of visas such that it never, for instance, takes 22 years to immigrate to the United States legally to join one’s U.S. citizen parents. Congress needs to clear visa backlogs immediately through the allocation of more visas for the unmarried sons and daughters of U.S. citizens and lawful permanent residents. In the meantime, the Justice Department should be compelled to drop its appeal of the Ninth Circuit Court’s decision in de Osorio v. Mayorkas, as it is contrary to the Administration’s pursuit of immigration reform.

It is high-time for the Obama Administration to practice what it preaches, and prevent the lengthy separation of American families. It is not only the right thing to do. It is the legal thing to do.

The Death of Bin Laden: The End of An Era?

It’s official — for the first time in history, hordes of mostly white people rioted for May Day outside the White House.

And most of them were The George Washington University students who heard the news about the gathering on Twitter, Facebook and through word of mouth. For me, this was a great moment in social media and I had to be there to capture this moment since I live a few blocks from the White House. Many of my law school friends joined to see the spectacle.

People ran through the streets of D.C. waving their American flags. Capital Bikeshare was instrumental in making sure that those who lived further away had some way of getting to and from the White House especially since the gathering took place close to midnight with the Metro not in operation. Drivers honked as they drove by Lafayette Park. Gathered directly outside the White House, people chanted U-S-A U-S-A and sang the national anthem more than a dozen times into the wee hours of the morning.

But unlike the projections by mainstream media, I don’t believe that all the young smiling faces were really out there celebrating the death of an insidious figure.

Some were definitely frat boys from my university. Many others joined their friends in celebration as a study break. Many were Obama supporters proud that he had just trumped Donald and secured his re-election. And for most of us gathered out there, it was less about nationalism and more about an end to an era. It’s a symbol of closure and hope for better times ahead.

But can the country finally recover from it’s rampant fear and suspicion of the Other?

While Bin Laden is finally dead, so are thousands of civilians and soldiers. Our rights and liberties are at an all-time low and our fear of everyone that is different from us at an all-time high. Thousands have been ripped from their families and deported in the past 10 years in the name of national security. It’s time to put an end to this.

I would like the President to bring our troops home, rescind the PATRIOT Act and end racial profiling at airports. He won’t do that. I would like to carry my shampoo and lotion on an airplane and keep my shoes on at airports. That’s unlikely to happen.

We’ve given up a lot in these past ten years: our respect around the world, our civil rights and liberties and our beacon as a country that welcomes the huddled masses. And we’ve gained little in return. Last night was a celebration with the hope that the coming years will be different.

But it is up to us to make it happen.

A Deportation Hearing Follows the Gag Order: President Obama Wants To Deport Me

Following on the heels of the “gag order” that Obama issued on the “stop the deportations campaign” is a notice telling me that I’m officially in removal proceedings.

No, this is not an April Fools’ joke.

The Notice to Appear for a Master Hearing is for November 10, 2011, just four days short of my 12 year anniversary in this country.

(So much for Barack Obama not deporting DREAM-eligible youth or am I just too old and educated to qualify now?)

I’m the grandchild of a U.S. citizen and the daughter of legal permanent residents of the United States. The fact that I’m in removal proceedings is incomprehensible as a matter of fact and law.

Legally, my hope rests on a fair and positive resolution of Costelo v. Chertoff in the Ninth Circuit. My mother is part of the class action for the Child Status Protection Act certified by Judge Selna in 2009:

“Aliens who became lawful permanent residents as primary beneficiaries of third- and fourth-preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention of priority dates pursuant to § 203(h)(3).”

My mother became a lawful permanent resident as a primary beneficiary of a third-preference visa through her U.S. citizen mother, where I was a derivative beneficiary. Since the petition was approved with a priority date of January 2001 and I was present here in December 2000, I’ve 245-I eligibility, which waives unauthorized stay and employment. After my mom became a green card holder, she also subsequently filed a second-preference petition on behalf of me (her aged-out unmarried daughter) that USCIS did not grant automatic conversion or retention of priority date for pursuant to § 203(h)(3). The result of this decision is that I am ineligible to claim a green card based on the petition filed on behalf of my mother because I am over 21. Instead of using the original date of filing, USCIS issued a new priority date for the second-category petition filed by my mom, which could take up to a decade. It means “waiting in line” all over again.

Congress passed the Child Status Protection Act (CSPA), Pub L. No. 107-208, 116 Stat. 927 (2002) to address this precise problem in immigration law. However, due to gaps left by Congress in the making of public policy, agencies like the United Citizenship and Immigration Services (USCIS) have the authority to interpret the law through their own regulations.  Under the two-part test set forward in Chevron, if the intent of Congress is clear, that is the end of the matter, but if the statute is silent or ambiguous with respect to issue at hand, a reviewing court must defer to the agency decision so long as agency’s interpretation is not arbitrary, capricious, or manifestly contrary to the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844 (1984). Deference to the USCIS on immigration and refugee law has created a disaster for legal permanent resident parents who are often separated from their only children, contrary to the spirit and purpose of the CSPA.

In Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the BIA narrowed the scope of CSPA to children of lawful permanent residents who were previously eligible as derivative beneficiaries under a second-preference spousal petition filed by the same lawful permanent resident. This recent USCIS interpretation of the Child Status Protection Act prolongs family separation by not enabling an aged-out derivative beneficiary to retain their original priority date as per Section 203(h)(3) of the Immigration Nationality Act, which states that:

If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), 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.

The decision automatically doubles the number of years a child of a legal permanent resident has to wait in line for a green card. It is arbitrary and capricious, and manifestly contrary to the statute.

Section 203(h)(3) of the Child Status Protection Act is arguably not ambiguous. Legislative history shows that the House of Representatives originally limited the applicability of CSPA to the immediate relative of a U.S. citizen. However, Senator Dianne Feinstein revised and expanded the Senate version of the CSPA, noting that:

“[T]he legislation I have introduced today would provide a child, whose timely filed application for a family-based, employment-based, or diversity visa was submitted before the child reached his or her 21st birthday, the opportunity to remain eligible for that visa until the visa becomes available . . . “

In discussing the need for the legislation, Senator Feinstein explained:

INS backlogs have carried a heavy price: children who are the beneficiaries of petitions and applications are “aging out” of eligibility for their visas, even though they were fully eligible at the time their applications were filed. This has occurred because some immigration benefits are only available to the “child” of a United States citizen or lawful permanent resident, and the Immigration and Nationality Act defines a “child” as an unmarried person under the age of 21. As a consequence, a family whose child’s application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child’s 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This what is (sic) commonly known as “aging-out.”

Thus, Senator Feinstein made clear that CSPA applied not only to administrative delays but to children who aged out due to backlogs. The Senate passed this version of the Child Status Protection Act, along with the House, and the bill was signed into law by President Bush. However, USCIS and the Board of Immigration Appeals have worked to narrow the scope of CSPA over the years and their arbitrary and capricious re-interpretation of the statute now regularly receives deference in courts.

While the American Immigration Law Association has filed a supportive amicus curie brief, none of the lawyers I’ve seen in the past two years appear confident about this case besides the lead counsels fighting it. The oral arguments are yet to be scheduled. So I need backup arguments.

In the meantime, I’ll take the Notice to Appear as a compliment. It looks like I’m an important enough threat to be the target of ICE enforcement efforts. I thought DHS Secretary Napolitano was prioritizing removing so-called “criminal aliens” from the country and students like me were not the target of ICE enforcement efforts. I was wrong. Funnily, I’ve never received a speeding ticket or citation, let alone seen the inside of a police station. My only “crime” is that I turned 21 before my mother became a legal permanent resident of the United States. Unfortunately, I can’t stop aging. I’d love to know how to reverse the process. I’m sure everyone would.

But you know what’s a bigger crime? Separating a mother from her child. Separating a child from her mother based on an arbitrary age. I don’t know how my parents are supposed to survive this, considering all their hopes and dreams for the future are pinned on me, considering they came to this country only to give me a better life.

It’s also unfortunate that no court of law would hear my claim of the years of pain, anguish and trauma that I’ve faced by the simple fact that according to immigration law, my only parents are not my immediate relatives.

They are legal permanent residents now. They will be U.S. citizens soon. And they still won’t have the right to keep their youngest daughter in this country.

God Bless America.

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Obama Issues A Gag Order On “Stop the Deportation” Campaigns

The Obama Administration is reportedly calling on Congressional members to stop making calls on behalf of stopping the deportations of certain immigrants from the country. It’s a gag order as a response to increasing pressure from several immigrant advocacy groups calling on Obama to stop the deportations, be it for undocumented students, parents of U.S. citizens or same-sex bi-national couples.

Han Nichols reporting for Bloomberg News:

Several members of Congress who were scheduled to attend a March 31 news conference on the issue said administration officials contacted them to voice concern about their participation. Until U.S. immigration law is overhauled, the lawmakers say, Obama should use his executive power to protect families facing deportation or separation because at least one parent is an illegal immigrant.

“The staffers that are attached to us, the liaisons, they transmitted some concern,” said Representative Mike Honda of California, a former chairman of the Congressional Asian Pacific American Caucus, referring to the White House legislative affairs office. “They would have loved us not to have gone to the press conference.”

Representative Mike Honda has been a leader for immigration reform and an outspoken voice in Congress. Openly pointing out the hypocrisy of the Obama Administration on this matter is another step forward in the right direction.

The administration argues that it doesn’t have the legal authority to exempt certain immigrant categories from the law.

“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case,” Obama said at a March 28 town hall sponsored by the Univision television network. “There are laws on the books that Congress has passed.”

Now, if only mainstream media did its research, they could report that President Obama is not being totally forthcoming about his executive powers.

The Department of Homeland Security granted deferred action to the surviving spouses of U.S. citizens in 2009.

Attorney Angelo Paparelli notes that Obama has also used the executive remedy of “parole in place” on a blanket basis to help foreign citizens of the Commonwealth of the Northern Mariana Islands.

Deferring deportations to Haiti and providing deferred enforced departure to citizens of Japan are also some examples of an executive agency using prosecutorial discretion.

There is no reason that USCIS cannot use approved I-797s to grant conditional residency to certain immigrants residing in the United States. It actually makes no sense to deport a family member of a U.S. citizen or legal resident who will soon be eligible for a green card through adjustment of status.

Change takes courage. And Obama doesn’t seem to have any on immigration. So much for the son of a Kenyan immigrant.

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