Archive | September, 2012

Ninth Circuit Provides Hope to Young Immigrants

26 Sep

Great news out of the U.S. Court of Appeals for the 9th Circuit, which ruled today that a Board of Immigration Appeals interpretation of the Child Status Protection Act (CSPA), improperly excluded a large class of immigrants from being eligible for immediate residence.  Rosalina Cuellar de Osorio challeged the BIA’s interpretation of the CSPA in Matter of Wang before the 9th Circuit.  She initially lost before a three judge panel, but the court sitting en banc agreed to rehear the case.  A number of organizations submitted briefs in support of Cuellar de Osorio’s case, including DreamActivist, a nationwide action committee for undocumented youth.  DreamActvist was represented by Benach Ragland.

Today, September 26, 2012, the Ninth Circuit overturned Matter of Wang in Cuellar de Osorio v. Mayorkas:

“We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.”

With a 6-5 en banc split, the Ninth Circuit now joins the Fifth Circuit in rejecting the position of the BIA. It will allow many young people who were the derivative beneficiaries of previous petitions to apply for a green card, if they were aged-out of the process when they turned 21. This is great news for many young people, including many Dreamers, who would no longer have to face lengthy separation from their families and deportation from their homes.

Congress passed the Child Status Protection Act (CSPA), Pub L. No. 107-208, 116 Stat. 927 (2002) to address the complex problem of aging out of family and employment based petitions. In short, due to massive visa backlogs and administrative delays, adult children were aging out of approved visa petitions upon turning 21. In many cases, these petitions were filed on behalf of their parents by employers or other family members when they were much younger. CSPA was supposed to fix this problem in a myriad of ways, first by a complex mathematical formula, which deducted the time it took to adjudicate the petition away from the age of the adult child and second, by allowing those who aged-out even after the application of the formula, to retain the original priority date from the original petition that was filed on behalf of them, and apply it to a new category. This is spelled out quite unambiguously in Section 203 (h)(3):

“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.”

USCIS did not issue regulations on this matter at first, and issued a number of contrary decisions. In some cases, aged out adult children were approved. In other cases, they were denied a green card. The Board of Immigration Appeals also did not know what to make of the statute and issued a number of contrary rulings. Compare Matter of Maria T. Garcia in 2006 with Matter of Wang in 2009, where the BIA restricted the application of Section 203 (h)(3) to applicants in the F-2A category, finding no evidence that “Congress intended to create a mechanism to avoid the natural consequence of a child aging out of a visa category because of the length of the visa line.” This decision automatically doubles the number of years a derivative beneficiary has to wait in line for a green card, and in some cases, a derivative may never be able to get a green card.

On May 11, 2012, Benach Ragland filed an amicus curiae (“friend of the court”) brief on behalf of DreamActivist with the U.S. Courts of Appeals for the Ninth Circuit in Cuellar de Osorio v. Mayorkas asking the Court to reject the Board of Immigration Appeals decision in Matter of Wang, which unnecessarily limited the class of individuals who could gain the benefits of the Child Status Protection Act (CSPA).  This represented the first time that a Court heard directly from Dreamers on a question of statutory interpretation and public policy.

The impact of this case is felt personally in the Benach Ragland family.  Our law clerk, Prerna Lal, is one individual who suffered under the BIA’s intepretation under Matter of Wang.  In 2001, Prerna’s grandmother filed an immigrant petition on behalf of her daughter, Prerna’s mother.  As a child, Prerna was covered under this petition.  However, due to lengthy backlogs in this category, by the time Prerna’s mother was able to seek residence in 2009, Prerna had already turned 21 and had “aged-out” of eligibility as she was no longer a “child” under the immigration laws.  Prerna’s mother filed a petition for Prerna, but the CIS, pursuant to Matter of Wang, refused to acknowledge the 2001 filing date.  Thus, under her mother’s petition, Prerna would not be able to seek her residence until approximately 2017, despite the CSPA and the fact that Prerna was originally covered in 2001.  As Prerna’s case is in San Francisco, CA, the heart of the 9th Circuit, this decision makes her eligible to apply for residence using her 2001 date assuming that the decision stands.

It is unclear whether the Government will ask for cert. from the Supreme Court. It has 90 days to request cert. If asked for cert, the Supreme Court may or may not deny it. If it denies cert, the decision will still be law in the 9th and 5th circuit. Young people who have been aged out and thrust into removal proceedings may be able to adjust their status before an Immigration Judge under the jurisdiction of the Ninth and Fifth Circuits. In due time, the USCIS may also issue new regulations allowing every derivative beneficiary of a family-based or employment based to retain their original priority date and adjust their status to lawful permanent residents without much wait.

Re-Connecting with Dariusz Gilman

24 Sep

Every Tuesday, my children’s school publishes a newsletter that includes a number of advertisers.  Tutors, babysitters, coaches all advertise to the parents of the schoolchildren.  Last week, I noticed a different ad from all the others.  Fencing was being offered and I was happy to see that the coach offering fencing was my old client, Dariusz Gilman.  I represented Dariusz a long time ago and was delighted to see that he has opened up his own fencing school in Silver Spring, Maryland, Dariusz Gilman Sabre Fencing.  On Saturday, I took the kids to watch a class and get some tips from Coach Dariusz and I am happy to say that Coach Dariusz has two new pupils eager to learn to fence.

Dariusz is a remarkable individual.  This is not only  because he is willing to spend an hour with a dozen seven-year-olds armed with swords, but because he has made the difficult transition from athletic championship to instilling in American children a love for a fairly obscure sport.  Dariusz is a former Polish national champion and was a European junior champion.  He has over a decade of experience training American kids in fencing and his students have become NCAA and United States Fencing Association champions and finalists.  Dariusz brings energy and joy to his students and, most impressively, holds their attention for a good hour.  Dariusz does not do fifty minute hours.

Watching all these American children learn from Dariusz and his coaches reminds me of why we work in immigration.  Having a fencing school in Silver Spring enriches our community.  Dozens of kids have found a calling or an outlet in fencing and, if it were not for Dariusz’ ambition to bring the sport he loves to America, this opportunity would have been lost.  More practically, I am reminded of the many studies that show that immigrants open businesses at a far higher rate than native-born Americans.  Immigrants start one in four new businesses in America.  It is well known that companies like Google, eBay, Intel, Yahoo and YouTube were all started by immigrants, but the bulk of American business is small business like Dariusz Gilman Sabre FencingRecent reports show that immigrants have started 18% of all small business, way higher than their 13% of the general population.

As DREAMers begin to receive their work permits, we should expect no less of them.  Many DREAMers have worked hard and against the odds to realize the dreams of their parents.  They created a political force, established a constituency, and their fate may turn an election.  With a chance to get jobs, finish school, open bank accounts and start businesses, DREAMers will leave an indelible mark on this country.  They carry with them the energy and belief in the American dream that has always defined immigrants to America.

En garde!

 

The GED And DACA

20 Sep

One of the great things we have seen as a result of DACA is that people are getting back to school, taking classes to get their GED, and registering for GED exams.  The DACA program has been generously interpreted to include a wide variety of programs as “in school” for purposes of qualifying for DACA.  In this post, we explore the ways that taking the GED and preparing for the GED can qualify an individual for DACA.

The GED is a group of tests that, taken together, certify that the successful taker has satisfied requirements equivalent to a high school degree.  Passage of the GED exams is the equivalent of a high school diploma.

The Citizenship & Immigration Service (“CIS”) will consider you qualified for DACA if you meet all the other requirements and have passed the GED.  The CIS will accept documentation showing that you have passed the exam and that you have received the equivalent of a high school diploma.  Many states will issue some form of certificate or other credential to show that you have passed the GED and obtained the equivalent of a high school diploma.

A person enrolled in a course or program to prepare for the GED may also qualify for DACA.  Here is how CIS stated it:

An education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.

Such education, literacy, or career training programs include, but are not limited to, programs funded, in whole or in part, by federal or state grants. Programs funded by other sources may qualify if they are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges, and certain community-based organizations.

In assessing whether such an education, literacy or career training program not funded in whole or in part by federal or state grants is of demonstrated effectiveness, USCIS will consider the duration of the program’s existence; the program’s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other state-authorized exam, or in placing students in postsecondary education, job training, or employment; and other indicators of the program’s overall quality. For individuals seeking to demonstrate that they are “currently in school” through enrollment in such a program, the burden is on the requestor to show the program’s demonstrated effectiveness.

Thus, CIS has stated that they will accept DACA applications for people who are in certain types of GED programs.  Now, not all GED preparation courses are created equal.  CIS has stated that, for a GED program to satisfy the “in school” requirement, it must be funded by the federal government or the state.  If it is not funded by the state, if “they are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges and certain community-based organizations.”  The CIS appears to be trying to take a broad view while not sanctioning commercial programs that do not have a track record of success.  Individuals deciding which preparation course to take should carefully consider the credentials of their options.  Courses and programs that have been around for a long time and can show statistics of their student’s success in taking the GED are preferable to programs that can not provide this information.  Individuals seeking a GED program for DACA purposes should favor those government funded programs.

Another options for those in GED programs is to wait until you have passed the GED to apply for DACA.  Although you may be in a rush to apply for DACA, if there is a doubt whether your program will qualify, it may be better to wait until you have passed the GED.

Social Security Numbers and DACA

14 Sep

The Citizenship & Immigration Service (CIS) published additional guidance today on Deferred Action for Childhood Arrivals (DACA).  The CIS updated the Frequently Asked Questions, which includes a snazzy video.
New significant information has been provided regarding the infamous question number 9 on the I-765 application for employment authorization.  Here is what the CIS has to say about this question, which asks applicants about social security numbers:

New – Q9. How should I fill out question nine (9) on the Form I-765, Application for Employment Authorization?
A9. When you are filing a Form I-765 as part of a Deferred Action Childhood Arrivals request, question nine (9) is asking you to list those Social Security numbers that were officially issued to you by the Social Security Administration.

This was the advice that we provided in our DACA webchat– CIS is asking for numbers issued to an individual by the SSA.

In addition, the CIS addressed concerns that people would have gaps in documenting their period of continuous residence:

New – Q3. To prove my continuous residence in the United States since June 15, 2007, must I provide evidence documenting my presence for every day, or every month, of that period?
A3. To meet the continuous residence guideline, you must submit documentation that shows you have been living in the United States from June 15, 2007 up until the time of your request.  You should provide documentation to account for as much of the period as reasonably possible, but there is no requirement that every day or month of that period be specifically accounted for through direct evidence.  It is helpful to USCIS if you can submit evidence of your residence during at least each year of the period.  USCIS will review the documentation in its totality to determine whether it is more likely than not that you were continuously residing in the United States for the period since June 15, 2007.  Gaps in the documentation as to certain periods may raise doubts as to your continued residence if, for example, the gaps are lengthy or the record otherwise indicates that you may have been outside the United States for a period of time that was not brief, casual or innocent.  If  gaps in your documentation raise questions , USCIS may issue a request for evidence to allow you to submit additional documentation that supports your claimed continuous residence. 

Affidavits may be submitted to explain a gap in the documentation demonstrating that you meet the five year continuous residence requirement.  If you submit affidavits related to the continuous residence requirement, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances during the period as to which there is a gap in the documentation.  Affidavits may only be used to explain gaps in your continuous residence; they cannot be used as evidence that you meet the entire five year continuous residence requirement.

Once again, we advise that applicants do the best they can in obtaining documentation for as much time as possible, but to also recall that CIS will take a totality approach and intends to apply this in a reasonable manner.

Meet Liana Montecinos

14 Sep

This is the second in our series where we introduce you to the human beings who staff our office and work on cases.  Today, we profile paralegal Liana Montecinos.

Liana Montecinos never stops.  When she packs up at the end of the day at work, Liana is either going to soccer practice, LSAT classes or to a community meeting.  Liana has many goals and little time, so she is always on the go.  Her life revolves around helping people and social justice.  This is what makes her such an important member of the Benach Ragland team.  Liana has a passion for working with her community, the Latino community in Northern Virginia, that comes from her own experience as a young girl recently immigrated from Honduras.

Liana came to the U.S. as an eleven year old girl from Honduras.  After her beloved grandmother died in a car accident, Liana joined her mother in Virginia.  They settled in a rough part of town where many kids gravitated to gangs and teenage pregnancy.  Liana learned quickly that those routes were dead ends and threw herself into school and activities.  She would go to school when it opened at 7 AM and stay well past dark.  She played soccer and volleyball.  She joined clubs and founded her own, establishing a non-profit organization, United For Social Justice, which seeks to steer immigrant youth to positive activities such as academics, arts and sports.  She created a soccer team for at-risk youth.  Liana won a private scholarship to George Mason, where, characteristically, she sped through a four year degree in no time.

Liana once was Andres Benach’s client.  One of the original DREAMers, Liana’s outspoken efforts to combat gangs and hopelessness made her a potential target for retribution in her native Honduras. As Benach Ragland opened its doors, we were treated to the happy news that Liana got her permanent residence.  As usual, Liana is trying to figure out how to make the five years before she can apply for citizenship go faster.

After graduating, Liana took a position with the Capital Area Immigrant Rights Coalition (CAIR) where she worked on programs for unaccompanied minors who fled violence and abuse in their home countries in search of refuge and opportunity in America.  When these kids met Liana, they saw all that was possible here.  Liana’s own story provides them with hope as a role model.

Liana has taken a lead role in Benach Ragland’s work for DREAMers and has become a surrogate mother to our DACA clients as she helps them gather their documents, answers their questions and encourages them through the process.  To Liana, this work is just like everything else in her life: a chance to help her community and to spread hope where too often it is fleeting.

Liana is studying for the LSAT and preparing to go to law school.  We know that she will be a great attorney soon and Benach Ragland is committed to making sure it is with us!

Oh No, he didn’t! Romney endorses anti-immigrant wingnut Steve King.

10 Sep

 

On Friday, Republican Presidential nominee Mitt Romney endorsed Steve King (R-IA) for another term in Congress.  King, who once compared selecting immigrants to dog breeding, represents the worst of nativist sentiment and  Romney’s solicitation of the know-nothing wing of his party makes a mockery of any analysis that indicates that demographics demand that Romney move off his “self-deportation” stance in the primary toward the more humane and comprehensive approach to immigration reform.

There has been tremendous speculation that Mitt Romney would “tack to the center” on immigration after the primaries.  During the Republican primaries, Romney staked out extreme anti-immigrant positions that made Rick Perry and Newt Gingrich almost seem sane.  In Florida, Romney embraced the “self-deportation” myth, that is, if life is made sufficiently miserable for immigrants they will leave of their own accord.  That approach is being tried in Alabama and Arizona and the result has been to detract from any meager economic recovery these states may have enjoyed.  But, as Romney consolidated his hold on the nomination, he distanced himself from anti-immigrant lawyer Kris Kobach and started hanging out with Marco Rubio, who made noises about how the Republican Party needed to take a different approach on immigration than “all deportation all the time.”  Rubio even started talking about a Republican version of the DREAM Act, but Romney would not comment on it.  When the President announced Deferred Action for Childhood Arrivals (DACA), Rubio dropped the DREAM Act and Romney dropped Rubio.

It now seems that Romney’s flirtation with the immigration mainstream is over and he is going back to the Brewer-Arpaio-Kobach-King axis.  His embrace of Steve King stating that he “wants this man as his partner in Washington DC” says all you need to know about Romney.  As the Spanish saying goes, “Dime con quien andes, y te dire quien eres.”  Tell me who you walk with and I will tell you who you are.  As the Proverbs say “the companion of fools will suffer harm.”

And, make no mistake, King is a fool.  Build the border fence?  Yes, says King.  Over turn the 14th Amendment’s birthright citizenship?  Yes!  English-only?  Yes!  King’s votes have earned him a 100% rating from the know-nothing Federation of Americans for Immigration Reform (FAIR).  But it is his mouth  that has really demonstrated his idiocy.  In addition, to his comparison of immigrants to breeding dogs, King has been good for the following nuggets:

There’s plenty more where that came from.  King is in the tightest race of his career as he is challenged by Christie Vilsack.  Immigrant’s List is a pro-immigrant PAC that works to raise funds against anti-immigrant incumbents and to elect individuals friendly to immigrant rights and has made King a top target for defeat.

Romney’s decision to spend his time with a politician who is on the losing side of history says a lot about where his campaign is these days.  He has chosen to appeal to the most extreme parts of the GOP base.  And while this may buy him some votes in 2012, it is not a good long term strategy.  Romney has set a target of 37% of the Hispanic electorate.  He has a long way to go.  Most polls show him hovering below 30%.    In addition, key states in this election such as Virginia, Florida, North Carolina, Nevada and Colorado have increasing numbers of Hispanic voters.  In addition, demographic trends show that more and more states are going to be competitive due to the increase in Hispanic voters.  The big prize in the Latino-inzation of the electorate is Texas.  While Texas is solidly GOP in this election, future elections are far from clear.  So Romney can pal around with dinosaurs like King and hope to nudge his numbers up in the Tea Party crowd, he is, long-term, helping to dig the grave of the modern GOP.

Citizenship

7 Sep

Last night, the President spoke to the Democratic National Convention about those characteristics that define what it means to be a citizen.  It is a word that gets used quite a bit.  But, like freedom, love, and beauty, it is a quality that can not be physically embraced, but exists entirely independently in our hearts and minds.  U.S. citizenship is not based upon ethnic origin, religion, political opinion, gender, sexual orientation,  or any other characteristic.  It is based upon the acceptance of a certain set of ideas, ideas that have resonated for nearly three centuries and have attracted millions of people to our shores.

We spend a lot of time at Benach Ragland on citizenship.  There are few things that give me as much pride as helping someone obtain citizenship.  There are lots of very good practical reasons why someone can want citizenship.  You can bring over certain family members more easily, you can travel outside the country for longer periods of time without fearing loss of your status, you can vote, run for certain offices, obtain certain federal jobs,  and you can pay lower taxes in some circumstances.  These are just a few of the benefits one gets by obtaining citizenship.  Yet, invariably, when I ask people why they want to be citizens, they never mention any of those things.  They state that this is their home, their country, and they want to feel closer.  They want to dive deeper into our community.  Often, they can’t express it so easily.  They are trying to explain an idea or a feeling and words are always more difficult for those abstract concepts.

I have seen people fight extraordinarily hard for their citizenship.  It is easy to understand why someone would fight for residence or against removal.  When the choice is between staying here or being returned to their home country, they will fight to remain.  But, in most citizenship cases, the fight is whether a person will remain a resident or become a citizen.  If the person loses, she is still a resident and the status quo is unchanged.  Yet, people will fight hard for the right to be citizens.  I believe that people fight so hard because they believe in it so deeply.  This is not about tax benefits or travel documents, but a sense of identity.  They feel American and want citizenship to validate that feeling to show that they are a part of a community.

Take our client Jamal Abusamhadameh, who had to go to federal court to get citizenship.  He had a four year fight for citizenship, during which the government accused him of all manner of terribleness.  It took a federal judge 90 pages to dismantle all of the government’s disinformation and reach that most obvious of findings- that Mr. Abusamhadameh possessed the good moral character to obtain citizenship.  The case caused Mr. Abusamhadameh enormous stress and plenty of money, but he persevered because he wanted to be a part of this community and was willing to fight for it.

I have a stash of greeting cards that were produced by the American Immigration Council.  They have a black and white picture of an immigrant family looking at the Statue of Liberty.  When a client obtains citizenship, I write a handwritten note on those cards congratulating them and reminding them what they told me months ago about why they wanted to be a citizen.  I don’t send these cards routinely for any other cases.  It just seems that citizenship is different.

This same commitment to an idea drives the DREAMers.  The DREAMers, while not seeking citizenship today, feel American.  They want to be a part of our community.  Despite the odds, they have flourished and want nothing more than a chance to go to college, have a meaningful career, join the military and be a part of our economic, cultural and social fabric.

Last night, the President said, “As Americans, we believe we are endowed by our Creator with certain inalienable rights – rights that no man or government can take away.  We insist on personal responsibility and we celebrate individual initiative.  We’re not entitled to success.  We have to earn it.  We honor the strivers, the dreamers, the risk-takers who have always been the driving force behind our free enterprise system – the greatest engine of growth and prosperity the world has ever known.”

To me, he was talking about immigrants- those who took the risk to leave behind their old country and risked everything for a chance to fulfill their potential and to join a community of others who believe in the virtues of American life and government.  In a word, he was talking about those who dare to dream that they, too, can be citizens.