Tag Archives: USCIS

The 15-Year Prison Sentence Is Over

The statute of limitations on being undocumented is over. As of August 1, 2014, I am a lawful permanent resident of the United States.

The actual process was easy, but that is probably because I’m an attorney. Last December, we had a 7 minute interview to prove that we had a bona-fide marriage. After that, I requested that DHS move to terminate proceedings, which they did quite gladly. I finally applied directly with the USCIS for a green card in mid-April. On August 1, 2014, we had the actual green-card interview, which lasted 10 minutes before the Immigration Officer changed my status in the system.

People have asked me how it feels. It actually doesn’t feel any different. I don’t have any sudden outpouring love for this place. Maybe once I’m out of this country, I’ll realize how good I have it, and feel like coming back.

Or not.

Adios.

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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.

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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!

No?

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

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AILA Issues Warning For Immigrant Rights Activists

The American Immigration Lawyers Association issued a warning to immigrant rights activists asking them to behave at their upcoming annual conference in San Diego:

There is no question that activism in the communities also is helping to move the ball forward.  Those who are so engaged have our respect, admiration and at times involvement. That being said, a professional gathering is not a setting for such forms of activism.  We ask that people who are attending the conference behave as the professionals and aspiring professionals that they are, and treat speakers with at least minimal courtesy.  Disruptions at a conference of professionals can hurt the dialog role that AILA plays.  And we all need to play the different roles we have to make the difference that needs to be made.

Some immigrant rights activists had earlier expressed concerns about AILA’s keynote speaker line-up of ICE Assistant Director John Morton and USCIS Director Alejandro Mayorkas.

I’m not even going to get into how the word “professional” is used to disparage lived experiences and police behavior, especially in this context. I’m also not sure about the need for such strong words especially since no one I know was planning to do anything besides have a good time.

Now the conference sounds like an open challenge to make a point. Maybe it does get better after all.

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On Meeting the Young Daughter of the Man Trying to Deport Me

I was invited, along with my friend Gaby Pacheco, to speak to 5th graders at the Georgetown Day School about the DREAM Act. I almost did not go but I can’t really say no to talking to young kids. Of course, I’m terrified of it as well — it isn’t anything I’ve ever done. Then again, I’ve never taken on the U.S. government either so I figure it cannot be that hard.

I had a great time. Gaby did most of the talking. She’s a natural teacher. I’m more of a lecturer and stood around looking good in a suit. The kids were fantastically engaging, with some of their parents in Congress or state legislatures.

A young woman asked us why we chose to act. I think both of us teared up a bit. Gaby did a great job answering that when someone beside you is getting hurt, you have to stand up and fight. And when that someone is you, I don’t think you really have a choice. I have already stated before that being a Dreamer is like being drafted into a war that you never wanted to fight but you have to do so to survive and protect your family from violence.

We met with one gorgeous young woman, whose father happens to be our very own Alejandro Mayorkas at USCIS, the guy whose the head of the office that sent me a letter to appear for removal proceedings. Mayorkas is one of the good guys. Last year, A. Mayorkas suggested in a draft memo that the President could grant deferred action to everyone who qualified for the DREAM Act. A right-winger got hold of the memo, sent it to more rabid anti-immigrant Senators who leaked it to the gullible media, who then helped to characterize the memo as a backdoor amnesty program. The rest is history.

Next month, we’ll meet with Mayorkas and the kids will ask him to once again push the President to grant deferred action to all DREAM Act-eligible students. I keep wondering how Mayorkas would feel if his kid was the one getting deported and despite having papers, there is nothing he could do for his child. It’s a terrifying thought but it is precisely what my mother is going through right now.

One clever young man appeared confused. He asked us why the President could not simply stop deporting all immigrants. It was a rather simple question and the answer is even more simple. But our President does not seem to fathom the simple concept that maybe we should not deport people who have done nothing wrong. I don’t know why children always seem so much smarter than adults. Maybe we regress with age instead of progressing.

It’s time to start hitting the rich private schools in the area and getting the kids informed about immigrant rights while they are young. They are certain to take it back to the dinner table and ask their parents: why are we deporting such talented, bright and productive young people from the country?

Theory of change. Get it.

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Selective Persecution? The USCIS Green Card Interview From Hell

I’m told that it is a sad and scary time for Dreamers since I received my “Notice to Appear.” It looks more and more like a case of selective persecution. I need a copy of my own immigration file and see what USCIS has cooked up in it and why they think they have a fighting chance to get a removal order for me from a judge in an extremely backlogged (and liberal) San Francisco court.

This order to appear means I need to skip classes during the week, fly all the way across the country to San Francisco and all the way back on several different occasions. Going home will become synonymous with appearing in immigration court. That’s enough to cause some real mental issues. Some people want to see a live feed of the Lal vs. USCIS immigration proceedings for their own entertainment. Trust me, immigration court is not at all entertaining. It’s mentally exhausting and draining on anyone who has to experience it. That’s probably what they want to do: place me in a position where I need to spend time and energy fighting for myself rather than others. Their only problem is that I have many others who will drop everything to fight for me.

Others are asking for details of my immigration case. From what I know, my mother’s entire family is either American or Canadian, with the exception of an uncle that lives in New Zealand.  One of my U.S. citizen aunts filed for us when I was very young. USCIS abandoned that approved petition without cause. I don’t understand why but I probably should find out.

My older sister came to study here on an F-1 visa in 1997. I was sent here alone in December 1998 for a visit. Then, my father lost his job and on the spur of the moment, dragged me here on a visitor visa in November 1999 and placed me in a random high school on an approved F-2 visa. That is perfectly legal even though I don’t understand why he did that. But it was the San Francisco Bay Area and I could live more freely.

My U.S. citizen grandmother filed a family petition for us in late 2000, with a priority date of January 2001. That’s eligibility for 245-I, which allows me to adjust my status on any petition filed for me (family or employment or diversity visa) without leaving the country. Then the life-altering and tragic events of September 11 happened in my senior year of high school.

A college counselor handling my F-1 visa papers wrote to INS stating that my entire family was here and that I had an approved visa petition. That was probably the worst way to get a non-immigrant visa since an approved family petition shows an intent to stay. I was 17, didn’t know anything about immigration matters and left things up to my parents and other lawyers. I just attended high school while doing college coursework, scored in the Top 1% of state for the STAR 9 exams in consecutive years, placed as second team in policy debate at the Stanford National Invitationals. It was up to the adults in my life to manage my immigration affairs.

After a semester of college, I received a letter denying my F-1 visa application because the I-130 petition from my grandmother showed intent to stay. In all honesty, I neither had intent to come here nor any intent to stay. Lawyers advised that any appeal would place me in removal proceedings. We didn’t know what to do. My parents were not about to send their youngest child to a country they had left behind, and a country in the midst of political upheaval. Lawyers told us not to worry — I could always adjust my status under the family petition filed by my grandmother. After all, being a derivative beneficiary of the petition was cited as the reason my F-1 was denied.

Due to backlogs and date retrogression, it took years till the priority date of the petition became current. No one ever told us that after 21, I would no longer have any right to gain benefit from the petition. Everyone, including member lawyers of the American Immigration Lawyers Association told me that I was protected with both 245-I and the Child Status Protection Act. Either they lied or USCIS is gunning for selective persecution now.

My older sister got married, became a U.S. citizen and filed an F-4 petition for me as well, which will take eons. My parents eventually became legal residents through my grandmother when I was 24 and aged-out on her petition. My mother filed a separate second category petition for me, asking USCIS to grant me the original priority date of January 2001 from my grandmother’s petition. Somehow, USCIS processed the paperwork, called me for biometrics and granted my work authorization. We were all quite happy since it meant the worst was over for us.

I have never spoken about the acrimonious and hostile green card interview that followed. First, the USCIS officer going over my file asked to see my mother who did not need to be at the interview and proceeded to interrogate her. Then she asked me twice why I had come to this country. I answered evenly that “my father brought me here when I was a kid.” She didn’t seem to like that answer.

She went down the list of my various degrees (my proof of continuous presence) and when she found out that I was in law school in Washington D.C., the USCIS officer seemed enraged. She insisted that I should not have filed using a California address. I calmly noted that I lived there when the papers were filed, that everything for my entire family was filed in California and my permanent residence unequivocally was California. She replied that it was not appropriate, took my Washington D.C. address and proceeded to complain to her supervisor.

She came back and asked me to prove that I was here on December 21, 2000. I told her I had sent in my high school transcript that showed I was here and showed her the I-94 card stamped on November 13, 1999. She atrociously noted that it didn’t prove my presence on that exact date and I could have left the country. That’s incorrect unless she thinks I could have swam to Fiji and back. Does she expect a 16-year-old to show utility bills? Maybe USCIS doesn’t think I have 245-I, unlike my parents even though it is from the same petition. That would be fun to argue over in court.

I also need to find out how many people with 245-I’s and qualifying relatives are actually being deported from the country. USCIS has often exercised prosecutorial discretion in such cases. I have various approved petitions that say “we understand that the relative is in this country and will file for adjustment of status when the priority date becomes available.” I have more priority dates than I can count but right now, the Department of Homeland Security seems to be prioritizing my removal.

People are emailing me suggesting marriage. I’m gay. Even if I get legally married in a state that recognizes same-sex marriage, I cannot gain any immigration benefit due to the fact that the federal government does not recognize same-sex marriage. Moreover, I would lose my status as an unmarried adult child of a U.S. citizen or legal permanent resident, even though the federal government doesn’t recognize the marriage. It makes a lot of sense, like the rest of our immigration laws.

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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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