How Bob Dylan Helped me Understand the Dream 9

“Something is happening and you don’t know what it is, do you, Mr. Jones?”

It wasn’t until Tuesday night at a Bob Dylan concert that I saw the limits of my own vision. I had avoided taking a position on the efforts of the Dream 9.  As a lawyer, you hate to see people take actions that can jeopardize themselves.  As as someone who only vaguely knows, but cares deeply about, Lulu, Marco and Lizbeth, I was worried for them.  Worried that emotion, anger, frustration would lead to a lifetime of regret.  That may yet come to pass.

Moreover, it seemed to me that the reaction from DHS would be utterly predictable.  The requests for humanitarian parole would be denied.  They would be subjected to expedited removal and returned to Mexico within a few hours.  What good was done there?  Ah, but the Dream 9 had a trick up their sleeve.  They asked for asylum.  By asking for asylum, the Dream 9 would be detained by the CBP until they could have a hearing on whether they had a credible fear of persecution.  I have no idea whether they have meritorious claims for asylum, but I do know that an honest application, even if a losing application, is not a frivolous application.  The Dream 9 were then transferred to Eloy Detention Center in Arizona.  Eloy is one of the bigger detention centers in the U.S. where immigrants in removal proceedings are housed.  It is a contract facility by the Corrections Corporation of America, a company that believes so little in America that it makes extraordinary profits by detaining people under contract with the government.  Moreover, CCA lobbies hard for draconian and vindictive immigration laws that increase the use of detention in civil, and not criminal proceedings.  Lest a market opportunity be lost, CCA also loves laws like California’s three strikes law, which mandates lengthy jail time upon conviction of certain third offenses, no matter how minor.  In Eloy, the Dream 9 began to meet with other detainees to get their stories out, to shine a light in the darkest of places operated by the government and its privateers.  CCA reacted by placing them into solitary confinement, a practice increasingly viewed as torture, and limiting their access to telephones.  Of course, this is civil detention.  No crime has been committed here.  These are people who are trying to return home and trying to seek the U.S. government’s protection from a fear of harm in Mexico.

Whether the Dream 9 intended to or not, they have exposed the profound ugliness of the immigration detention complex.  Young adults who have lived their entire lives in the U.S. have sought to return home, claimed a fear of persecution in their home country and are being held in solitary confinement and deprived of communication with the outside world.  They are being held by a system that treats all immigrants like criminals and is fed by an unholy trinity of corporate greed, government subservience and Congressional posturing.  These are the laws.  They are unjust, immoral and corrupt.  The Dream 9 are  heroic for their willingness to endure these deprivations and for risking so much to expose this system.

“I was so much older then, I’m younger than that now.”

Some have said that the Dream 9 got what was coming to them.  That they knew that this would happen and, therefore, what is happening to them is just desserts.  This is the poking the tiger theory of political action.  However, I think that analogy is wrong.  More appropriate are the people who say that women who dress in provocative ways invited their sexual assaults.  This theory states that there is evil in the world and we are best not to court it.  This theory wrongly fails to focus on the acts of the one committing the wrong and focuses on the one set upon.  It is the rapist that deserves our scorn.  It is the detention industrial complex which deserves our recrimination. Very little has been gained in the world by not confronting evil.  It is only when evil is confronted head on that it wilts in front of the power of justice and right.

It has also been said that the Dream 9 are jeopardizing immigration reform.  As a supporter of the passage of S.744, I am very concerned about the fate of the bill.  While I am in favor of the bill, I am disappointed that it does little to address those problems that the Dream 9 have sought to expose.  The unholy alliance between private prison contractors and Congress, the revolving door between DHS and the privateers, and the use of detention in a civil system remain unchecked, and possibly even enhanced.  It is a flawed bill, but, on balance, worth supporting.  The Dream 9 are reminding us of the failures of our efforts to show the basic inhumanity of the detention system.  If the bill passes, many will think that immigration is “done.”  As long as the gulag archipelago exists, our systems required comprehensive reform and the Dream 9 remind us of that.

The Dream 9 have shown courage in seeking to expose the dark underbelly of immigration reform- what is actually done, what has been left out.  They fit within a great American tradition of civil disobedience against unjust laws.  The reaction of the power structure has been the same both times- excessive force.  It is not firehoses and German Shepherds today, but solitary confinement and prolonged detention.

I did not understand that this would be the outcome of these efforts, but as Bob sang “I was so much older then, I am younger than that now.”

Some Provisional News on Provisional Waivers

It has been four months since the U.S. Citizenship & Immigration Service (CIS) began stateside adjudication of I-601A Applications for Provisional Waivers of inadmissibility due to unlawful presence.  In those four months, we have learned a few things about how U.S. CIS is implementing this new program.  Initially, the U.S. CIS has received over 7,000 I-601A provisional waiver applications.   Many have been already been decided and CIS states that it has a six month processing goal.

Many applications have already approved but a significant portion have been denied.  By far, the most common reason for denial is that the CIS found “reason to believe”  that a person might be found inadmissible by the consulate on a ground of inadmissibility other than unlawful presence.  As background, the provisional waiver is meant to waive unlawful presence for the immediate relatives of U.S. citizens.  In regulations, the CIS stated that if an adjudicator has reason to believe that the consulate might find another ground of inadmissibility other than unlawful presence, the adjudicator should deny the application.  This has had the most obvious impact in cases where an FBI rap sheet shows that an applicant for a provisional waiver has been arrested.  Although not every arrest leads to inadmissibility, CIS appears to be taking the position that an arrest is sufficient “reason to believe” that a consulate might find inadmissibility on criminal grounds.  of course, this is highly over-inclusive.  Individuals are, generally, inadmissible due to convictions and not due to charges.  While many arrests do not result in convictions, the CIS approach treats many arrests as the equivalent of convictions.  Thus, even if a person is found to be not guilty of an offense, the fact that she was charged with a crime can be sufficient to create a “reason to believe.”  In addition, another situation in which the “reason to believe” standard frustrates the intentions behind the provisional waiver is where an individual is convicted of an offense that does not, under any circumstances, cause inadmissibility.  Not all convictions result in inadmissibility and certain convictions are very clearly and beyond a doubt not crimes which create inadmissibility.  The CIS is not entertaining arguments that the individual applicant is not inadmissible.  Rather, it is concluding that the bare fact of conviction is enough “reason to believe” that the consulate might find inadmissibility.  Thus, the CIS denies the provisional waiver, leaving the applicant and her U.S. citizen family members to the same Catch-22 they faced before the provisional waiver was introduced to eliminate that dilemma.

The American Immigration Lawyers Association and other advocacy groups have raised this issue in liaison meetings and have asked CIS to revisit this over-inclusive policy.

It appears that, for now, the provisional waiver should only be sought by those with no previous encounters with law enforcement or the immigration authorities.  While CIS has stated that those denied will, generally, not be referred to Immigration & Customs Enforcement (ICE) for removal proceedings, the filing of a provisional waiver is expensive and cumbersome process and one’s resources and hopes should only be spent where there is a realistic chance of success.  At this moment, we can not state that there is a realistic chance of success for those with any previous law enforcement contact, no matter how minor or insignificant.

Board of Immigration Appeals Affirms Same-Sex Marriage

Earlier this week, the Board of Immigration Appeals affirmed the sweeping-change in immigration law that the Windsor decision ushered in.  In Matter of Zeleniak, 26 I.&N. Dec. 158 (BIA 2013), the Board recognized that Section 3 of the Defense of Marriage Act (DOMA), found unconstitutional by the Supreme Court in Windsor, was not an impediment to recognition of same-sex marriage by immigration authorities.   In Zeleniak, U.S. citizen Serge Polajenko filed an immigrant partner for his husband, Oleg Zeleniak.  The Citizenship & Immigration Service (CIS) found that the couple had a legal marriage in Vermont, but denied the petition, citing Section 3 of the DOMA.   On July 17, 2013, the BIA sent the case back to the CIS stating that the CIS should only consider whether the marriage was entered into in good faith.  Thus, the BIA affirmed that Section 3 of DOMA, as a result of Windsor, was no longer an impediment to approval of a petition by U.S. citizen on behalf of his same sex husband, so long as the couple was married in a state where same-sex marriage is legal.

The BIA went further than the immediate issue at hand and sought to identify those areas of immigration law that are impacted by the Windsor decision.  The BIA stated:

The Supreme Court’s ruling in Windsor has therefore removed section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated. This ruling is applicable to various provisions of the Act, including, but not limited to, sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status), 8 U.S.C. §§ 1101(a)(15)(K), 1153, 1154, 1157, 1158, 1182, 1227, 1229b, and 1255 (2012).

Ironically, the BIA’s decision appeared the same day that former Attorney General Alberto Gonzales resurfaced from ignominy to publish a wholly unnecessary and surly opinion in the New York Times stating that Windsor did not compel immigration recognition of same-sex marriages.  Relying on 1982 decision of the 9th Circuit Court of Appeals, the former Attorney General stated that Congress did not intend to cover same-sex spouses when it used the term “spouse” in the 1952 Immigration & Nationality Act (INA).  As a lawyer who has tried to cite 9th Circuit laws in other parts of the country, I am well aware of the limited reach of a decision of a single appeals court.  You would think that the former Attorney General would be as well.  It is important to keep Mr. Gonzales’ point-of-view in mind, however.  Under our system, the Attorney General has the authority to overrule the BIA on any matter of immigration law. Which is why it is important that Mr. Gonzales, thankfully, no longer occupies that post.

Visas “Current” for Spouses and Children of Permanent Residents (F2A)

Yesterday, the Department of State announced in its monthly visa bulletin that visas will be available for spouses and children (under 21) of permanent residents starting August 1, 2013. This announcement relieves a large backlog, which just last month was over one and a half years. Practically speaking, this means that the spouses and children of permanent residents may file for adjustment of status to permanent residence or seek immigrant visas on August 1, 2013.

Visas for the spouses and children of permanent residents are numerically limited. There is no such limitation on the number of visas for the spouses and children of United States citizens. Due to the cap on the number of visas available to the spouses and children of permanent residents, a backlog has developed in that category as demand has exceeded supply. People seeking visas as the spouse or children of a permanent resident had to wait for a visa to become available to them. Often they waited abroad. If they were in the United States, they would be able to file I-130 immigrant petitions, but could only file applications for adjustment of status (form I-485) once a visa became available. Of course, it is the I-485 which gives employment authorization and is the vehicle for status in the U.S.

But, on July 10, 2013, the State Department stated that visas will be “current” for the spouses and children of permanent residents on August 1, allowing those individuals to file for green cards.

The mechanism of the State Department’s announcement is the monthly Visa Bulletin. The Visa Bulletin communicates the status of visa availability for all the various visa categories under U.S. immigration law. Family based immigration is broken down into several categories. These categories are known as “preferences.” At the top of the heap, in fact, so high that they are not called preferences, are “immediate relatives,” the spouses and children of U.S. citizens. The remaining categories (the preferences are as follows):

First preference (F1)- the unmarried sons and daughters of U.S. citizens
Second preference (A) (F2A)- the spouses and children of permanent residents
Second preference (B)(F2B)- the unmarried sons and daughters of permanent residents
Third preference (F3)- married sons and daughters of U.S. citizens
Fourth preference (F4)- brothers and sister of U.S. citizens

Family-Sponsored	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	01SEP06	01SEP06	01SEP06	01SEP93	01JAN01
F2A	C	C	C	C	C
F2B	01DEC05	01DEC05	01DEC05	01FEB94	22DEC02
F3	08DEC02	08DEC02	08DEC02	01MAY93	01DEC92
F4	22JUN01	22JUN01	22JUN01	22SEP96	08JAN90

Every month, the Visa Bulletin states how backlogged these categories are by nationality. The Bulletin states the date that an I-130 petition had to have been filed in order to receive an immigrant visa or apply for adjustment of status. If the Visa Bulletin indicates that a preference is current, it indicates it with a “C.” Immediate relatives, since that category is not limited, may file an I-130 immigrant petition simultaneously with their I-485 applications for adjustment of status. The effect of the “current” designation for the second preference (A) (known as “F2A”) is to allow the spouses and children of permanent residents to file I-130s and I-485s contemporaneously, rather than having to wait the 18 months that the backlog reflected last month.

So, as of August 1, 2013, people who have already filed I-130 petiti0ns in the F2A category can file applications for adjustment of status or can pursue their immigrant visas at Embassies and Consulates abroad. In addition, the spouses and children of permanent residents who were waiting for their spouse to become a U.S. citizen before filing can file concurrently for an I-130 immigrant petition and I-485 application for adjustment of status.

It is not clear just how long the “current” status will last. What is certain is that it should last through the entire month of August, although it could roll back by September. Applications filed in August, when there were visas, will not be denied upon the rollback, but will rather be held until the visa is available. For many reasons, it is better to wait out that period, if necessary, with a pending application for adjustment of status.

To discuss your options, please contact our office at 202-644-8600 or at consults@benachragland.com.

Thomas Ragland’s Speech at the AILA Awards Ceremony

Thomas Ragland received the Edith Lowenstein Award for Excellence in the Advancement of the Practice of Immigration Law from the American Immigration Lawyers Association.  He made a speech.  Here it is:

Equality Under Immigration Laws Being Implemented and Realized

The Supreme Court rocked the world last week by declaring Section III of the Defense of Marriage Act (DOMA) unconstitutional on equal protection grounds.  Section III forbade the federal government from recognizing same-sex marriages.  Thus, a legal same-sex marriage entered into in New York was valid under NY law, but did not provide the married couple with any federal benefits.  Activists have identified over 1100 ways that federal law provides a benefit to a married couple, all of which were unavailable until Wednesday, June 26, when Section III of DOMA was officially bid adieu.  Among the benefits now available to couples in same-sex marriages are a multiplicity of immigration benefits.  Of paramount importance in these benefits is the right of a United States citizen to sponsor her foreign spouse for residence.

Things have moved awfully fast since last Wednesday.   Shortly after the decision was announced, the White House stated, “I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”  The same day, Janet Napolitano, Secretary of Homeland Security who oversees immigration matters for the U.S., stated, “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”  On Thursday, US CIS Director Alejandro Mayorkas was ready at the American Immigration Lawyers Association conference when he was asked about DOMA.  Director Mayorkas informed the audience that the CIS has maintained a list of all denied same sex marriage cases since the Administration stopped defending DOMA in the courts in February 2011 and that CIS was “prepared to act,” in implementing the law.  By Friday, the first same sex marriage petition was approved by the U.S. CIS.  That is the happy couple above in matching shirts and beards.  Also, on Friday, outstanding immigration lawyer Matt Kolken was notified by CIS Director Mayorkas that the agency would no longer fight a denied same-sex petition on appeal by one of Matt’s clients.

Then, over the weekend, it was Pride, and lots of joy occurred.  Edie Windsor, whose fight with the IRS over taxes on her deceased wife’s estate was the knockout punch for DOMA, served as the Grand Marshal of the NYC Pride parade and BR lawyers in San Francisco got into the spirit as well.

And, just today, Monday July 1, 2013, Secretary Napolitano issued the following statement: “After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The DHS also published two questions and answers.  First, the Department announced that individuals in legal same-sex marriages may file I-130 immigrant petitions on behalf of their foreign spouses and that those petitions would be handled identically to the opposite-sex petitions that CIS has long adjudicated.  In other words, gay married couples will have to demonstrate that they are legally married (no other marriages, marriage performed in a state that recognizes gay marriage) and that they are engaged in a bona fide marriage.  A bona fide marriage may be demonstrated by a shared residence, joined bank accounts, credit cards and insurance, knowledge of the other spouse, photos and other objective evidence.  Second, the CIS clarified that what is important for CIS’ recognition of a same-sex marriage is the law of the place where the marriage was performed and not where the petitioner and beneficiary live.  This means that a couple married in California (that’s right California now has gay marriage thanks to the other Supreme Court case that day on Prop 8), but living in, oh, let’s say our favorite whipping boy among the states of the union, Arizona, can have their marriage recognized by the federal government in immigration matters even though Arizona does not recognize it.  With extremely limited exceptions, the law of the state where the marriage took place is the law that matters for CIS recognition.  While questions remain about the implementation, we congratulate the Department on moving quickly to receive and approve same-sex marriage-based petitions.

The law has, once again caught up to the culture.  In law school, we read Bowers v. Hardwick, which upheld the right of a state to selectively prosecute homosexuals under state sodomy laws.  Now, less than thirty years after the shameful Bowers decision, (which was itself obliterated by the Supreme Court in Lawrence v. Texas by the pen of the same Anthony Kennedy who played hangman to DOMA), the Supreme Court has taken an enormous leap into helping this country realize its rhetoric of individual freedom and equal justice.

CIS is now accepting and approving marriage petitions by same-sex couples and it took less than a week.