Tag Archives: Removal proceedings

An Easy I-130 Marriage Interview

Lindsay Schubiner and Prerna Lal

Lindsay Schubiner and Prerna Lal, at our official wedding ceremony in Washington D.C.

Today, I walked in and out of one of the easiest I-130 interviews at the United States Citizenship and Immigration Services (USCIS).

Heterosexual or not, standalone I-130 interviews are rare. They are typically given when the foreign national spouse is in removal proceedings or deported from the country. The purpose of the interview is to establish whether the petitioner and the beneficiary have a bonafide marriage. Usually, the interviewing officer is checking for marriage fraud. Because only an Immigration Judge (IJ) has jurisdiction over issuing a green card to someone in removal proceedings, the USCIS performs the first step to ensure that the relationship between the petitioner and beneficiary was not entered into to gain immigration benefits.

After the approval of the I-130, the applicant has two options if they want to proceed with getting a green card. First, an applicant can go back to court and file a motion for adjustment of status, and get a new hearing date from the IJ. Second, the applicant may file a motion to terminate proceedings and if granted, proceed with adjustment of status at the USCIS.

Several things played in our favor, especially as a same-sex couple. We had a symbolic, public wedding ceremony after Section 3 of the Defense of Marriage Act (DOMA) was overturned, which gained a lot of press attention. As we were walking out, the interviewing officer told us that it was not every day that she met couples who had newspaper articles written about them.

Second, I prepared the initial application, and made sure to augment the forms with enough bona-fide evidence of our marriage including our  joint leases, shared bank account statements, photos with narrative history, magazine and newspaper articles. It hit the right spot. Today, we augmented it with joint health, dental and life insurance information, voided check with our names, more shared bank account and credit card statements, and evidence of our shared gym membership. I had a photo album with recent photos and scrapbook, but there was no need for that.

Third, I requested ICE attorneys to use prosecutorial discretion in expediting our I-130 adjudication as set forth in an August 10, 2010 memo, Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions. Under normal wait times, an I-130 standalone application takes 11 months to process. To their credit, ICE attorneys on both sides of the country returned every phone call and email, and granted my request to expedite by changing the venue of removal proceedings, sending my A-files across the country, and setting us up with an interview within a month.

Here are some of the questions that the USCIS interviewer asked us today:

  • Biographical: Names, addresses, date of birth, place of birth and whether we had ever been married before;
  • How and where we met?
  • When did we start dating?
  • When did we first move in together?
  • Who proposed to whom?
  • Where did she propose?
  • Who came to the official wedding ceremony and how many people were there?

My partner, Lindsay and I, walked in at 8:03 am with a mutual lawyer friend, and we were done by 8:10 am. The interviewing officer said she would look everything over once more but anticipated approving the application.

Update: The I-130 was approved the same day.

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As icing on the cake, I just received my work permit renewal in the mail, valid until January 2015.

Judging by this red carpet treatment, one would think the U.S. immigration system has no flaws. Alas, my many years of experience as an undocumented immigrant and an immigrant rights advocate tells me otherwise.

(This post is a mere restatement of my experience and does not constitute legal advice and does not create a lawyer-client relationship. Please note results may, and very often, vary). 

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Community Voices: “The Good Fight”

I was honored to be on Episode 2 of The Good Fight with Ben Wickler, a progressive show about people changing the world.

Friend of this blog, Professor Allegra McLeod at Georgetown Law, had her research on immigrant and criminal convictions covered extensively in an article by The Atlantic on Why Are Immigrants Being Deported for Minor Crimes?

Allegra McLeod, an associate Professor of Law at Georgetown, examined cases like Sylvain’s in a position paper last year for the American Criminal Law Review. She writes that between 1990 and 2010, immigration offenses became the most common federally prosecuted crimes in the U.S. After 1996, when the new laws took affect, approximately one million immigrants were been deported as a result of criminal convictions. Moreover, McLeod estimates that 20 percent of those removed were longtime legal residents, and the majority of their crimes were minor, non-violent offenses.

[…]

What’s more, McLeod writes, “a criminal conviction is not necessarily a reliable indicator of undesirability or dangerousness.” For that reason, the heightened attention on immigrants like Sylvain and Khoy would not seem to be in the public’s best interest. McLeod cites Harvard sociologist Robert J. Sampson, who found that increases in immigration normally are “associated with reduced crime rates,” and that “the diversion of resources to criminally prosecuting undocumented immigrants may be particularly misguided from a public safety standpoint.”

The Atlantic delves into why the U.S. is deporting long-time legal permanent residents:

Sylvain is one of thousands of immigrants who have been charged with “aggravated felonies” by the U.S. Immigrations and Customs Enforcement (ICE). The term, first introduced in the 1988 Anti-Drug Abuse Act, applies specifically to immigrants and asylum-seekers: If they’re convicted of any of the crimes in this category, they can be deported and prohibited from reentering the U.S. for 20 years. In 1988, the list of aggravated felonies was limited to serious crimes such as murder and drug trafficking. But Congress expanded the definition over the years, most extensively in 1996.

The two 1996 laws—the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA—came in the wake of the 1993 World Trade Center bombing, when Congress felt pressured to streamline new immigration reform. The measures made more than 20 new crimes into aggravated felonies, including counterfeit, perjury, and obstruction of justice. They also reduced threshold requirements from five years to one, meaning that any immigrant issued a one-year prison sentence could be instantly deportable.

Immigrant rights organizers continued to partake in shutdown ICE actions by trying to stop deportation buses even as Congress tip-toed around the question of immigration reform. In Illinois, undocumented organizers and supporters formed human chains to stop their third deportation bus. In Atlanta, more than a dozen persons locked themselves to the gates of the downtown Atlanta ICE office to protest deportations. After partaking in the action, Caitlin Breedlove, Co-director of Southerners on New Ground (SONG), wrote an excellent piece on Queer, Immigrants, All of Us: Not 1 More.

This is not a surprise for most of us but a recently released GAO report on sexual abuse in detention found that Immigration and Customs Enforcement (ICE) under-reported sexual abuse and assault in detention. A staggering 20 percent of detainees who reported sexual assault or abuse are transgender, showcasing the need for direct services for this population.

The Nation carried an excellent article on the ever-expanding U.S.-surveillance and border regime:

In many cases, the US is also training border forces in the use of sophisticated surveillance systems, drones, and the construction of fences and barriers of various kinds, largely in attempts to clamp down on the movement of people between poorer and richer countries. More than 15,000 foreign participants in more than 100 countries have taken part in CBP training sessions since October 2002. It is little wonder, then, that an L-3 Communications sales rep would shrug off the constraints of a shrinking domestic national security budget.

Meanwhile, US borders are functionally being stretched in all sorts of complex ways, even across the waters. As Michael Schmidt wrote in the New York Times in 2012, for example, “An ocean away from the United States, travelers flying out of the international airport here on the west coast of Ireland are confronting one of the newest lines of defense in the war on terrorism: the United States border.” There, at Shannon International Airport, Department of Homeland Security officials set up the equivalent of a prescreening border checkpoint for air travelers.

Whether it is in your airports or, as in Haiti’s case, in the international waters around your country, the US border is on its way to scrutinize you, to make sure that you are not a threat to the “homeland.” If you don’t meet Washington’s criteria for whatever reason, you will be stopped, forcibly if necessary, from entering the United States, or even in many cases from traveling anywhere at all.

[…]

With this in mind, the experimental border control technologies being tested along the US-Mexican boundary line and the border-industrial complex that has grown up around it are heading abroad in a major way. If Congress finally passes a new multi-billion dollar border-policing package, its effects will be felt not only along US borders, but also at the edges of its empire.

The frontier isn’t coming down anytime soon. The USCIS released a policy memo re-stating that it would continue to deny priority date retention to age-outs until the Child Status Protection Act (CSPA) issue is resolved by the Supreme Court. It also added that any applications filed for adjustment of status from now on, seeking retention of priority date, would be rejected as improperly filed, and not even held in abeyance. This memo is suspiciously well-timed for the litigation at the Supreme Court, and a post-ad hoc justification for not giving full meaning to the CSPA.

For those of us who watched the Hunger Games today, here is some food for thought on the revolution that the U.S. refuses to start.

I’m Team Haymitch. I think we are just about appropriately jaded, no?

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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.

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When the U.S. Government Says “Oops We Are Sorry, We Do Not Wish to Deport You”

I’ve had an interesting few weeks.

On November 6, the DHS counsel in San Francisco filed a motion to dismiss removal proceedings in my case and told me to apply to the USCIS under de Osorio v. Mayorkas. That sounded like a fair request until DHS also filed a motion to stay the issuance of a mandate in de Osorio, until Dec 26, 2012, and it was granted by the Ninth Circuit.

If the Immigration Judge granted DHS’ motion to dismiss as well, I would be placed back into the limbo of having no status and compelled to apply for deferred action. Funnily, the DHS cannot just dismiss proceedings once jurisdiction is vested with the Court. So last week, we wrote and filed an 8-page opposition to the DHS’ motion to dismiss, laying out how dismissal of proceedings were prejudicial to me. That’s a rare occurrence.

I was justifiably outraged during this entire ordeal but I have now chosen to be amused by the government’s desire to not continue removal proceedings. Much like my undocumented friends are not allowed to “trespass” detention centers and make visits to the GEO Group headquarters, I’m not allowed to be in removal proceedings. While the U.S. government deports nearly half a million people every year and creates a human rights catastrophe in doing so, the same government would rather invest resources into terminating my removal proceedings. What makes me so special?

Maybe it scares them. Maybe it terrifies them. Maybe they are just too lazy to deal with it. Or maybe they just do not know what they are doing.

Whatever the reason, the U.S. government chose to place me in removal proceedings. And I will choose when my deportation proceedings are over. The DHS needs to deal with the end consequences of their actions. They need to waste their time in trying to deport me so they can’t pick on someone else who can’t fight back. And ultimately, they need to admit defeat when I win my green-card from under their noses.

Peace out.

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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.

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The Aftermath of De Osorio v. Mayorkas

We seem to have a running bet on whether De Osorio v. Mayorkas is getting appealed to the Supreme Court. Neither the Government nor the Respondents sought cert. in the other CSPA cases from the Second and Fifth Circuits so that is somewhat helpful. And yet, I want to be cautious.

I have a gazillion questions from readers. I can’t give legal advice yet, but here is some information I can provide:

  1. People in removal proceedings under the jurisdiction of the Fifth and Ninth Circuits, should at worst, be able to get their removal proceedings terminated. They may also be able to get an Immigration Judge to grant continuances, and at best, schedule an individual hearing for adjustment of status.
  2. People not in removal proceedings can file now but they may need to wait until (and if) USCIS issues new regulations, before they can benefit from this change.
  3. People, who think they may be eligible, and live under the jurisdiction of the Fifth and Ninth Circuit, can take the risk to apply for adjustment of status. In the least, they should be able to get work authorization, if an I-765 is filed concurrently. But there is no guarantee that USCIS would actually grant the green-card.
  4. If anyone gets their cases approved in the Fifth and Ninth Circuit through USCIS, please let us know!

If anyone wants a sample brief of what we’ve filed on my behalf with the Immigration Court in San Francisco, please let me know.

Update: I just got word of this case that the USCIS has approved under Khalid v. Holder in the Fifth Circuit. There is no reason why USCIS cannot do so under De Osorio v. Mayorkas for everyone in the Ninth Circuit. They are an agency and they are supposed to adjudicate the law as it stands (and honestly, I don’t see why they care about who is getting a visa). Everyone who resides in Texas, Louisiana, Mississippi, California, Nevada, Oregon, Washington, Arizona, Idaho, Alaska, Hawaii and Montana can retain their priority dates and apply it to a subsequent petition. Cheers.

As always, please get competent legal representation to explore all your options as this blog post should not be used in substitution for legal advice. Success in some cases does not guarantee success in other cases.

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“How to Stop Your Deportation”

This “How to Stop Deportation” guide released by Asian Law Caucus, Educators for Fair Consideration, DreamActivist.org and The New Immigrant Youth Alliance spread like wildfire yesterday to the point that I was accused of “vetting it” everywhere. I ended up having it emailed to me more than twice through South Asian networks, which pleases me quite a bit.

It’s the most complete guide on battling a deportation through advocacy that I’ve personally seen, but I’m probably also biased in my assessment. I think the crux of the guide is to exhaust all legal remedies before going public with your case, which makes a lot of sense. However, I think there’s a lot that could have been added to the legal section with regards to how removal proceedings work and more specific delaying tactics to employ beyond just a listing of legal avenues that one has during deportation. This is obviously not supposed to be an exhaustive guide and simply a starting point.

Another useful toolkit recently released by Duane Morris LLP, Maggio + Kattar and Penn State gives more information about private bills and deferred action.

I hope that together, both manuals can help demystify at least the post removal order part of deportation proceedings.

Update: The American Immigration Lawyers Association just announced “AILA Dream Defenders” unit on the heels of the guide but provided no further details. It looks like providing assistance to undocumented youth who qualify for the DREAM Act is quite popular and increasingly institutionalized.

I wish organizations with millions of dollars would rather focus their energy and interest in helping people who actually need pro-bono assistance. How about working with immigration courts to provide pro-bono assistance to a majority of people who may have criminal drug convictions but still don’t have any sort of legal representation?

Or is that just not popular and not backed with foundation money?

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