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Post-DOMA – How Can LGBTQ Individuals Benefit Under Current Immigration Laws?

27 Jun
English: West face of the United States Suprem...

The Supreme Court has found, in a 5-4 decision, that the Defense of Marriage Act is unconstitutional. (Photo credit: Wikipedia)

Ding dong, Section 3 of the Defense of Marriage Act (DOMA), which limited federal recognition of marriage to a man and woman, is dead.

With the stroke of a pen, the U.S. Supreme Court has ended years of discrimination against gay and lesbian couples through its decisions in United States v. Windsor and Hollingsworth v. Perry. With DOMA now ineffective, marriage equality provides more than 1,100 federal benefits previously unavailable to same-sex spouses.

President Obama issued an immediate directive to 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 Secretary of Homeland Security, Janet Napolitano also issued a statement to press confirming that DHS is “working with our federal partners, including the Department of Justice, [to] implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

There are more than 24,000 American same-sex binational couples, but the immigration consequences of the Supreme Court’s decision to strike down DOMA goes beyond simply conferring green-cards to bi-national couples, and even affects step-children, adoption issues, derivative citizenship, and so on.

Some of the benefits that USCIS can promulgate immediately, without the need for new regulations or rule making, include:

  • Plain old adjustment of status to green card holder or consular processing and entering as lawful permanent resident;
  • Eligibility for provisional waivers for persons who entered without inspection;
  • Eligibility for I-601 hardship waivers for persons who were deported or left the country and triggered a 3/10 year bar;
  • In the special case of DACA beneficiaries who are queer, if they can obtain advance parole to travel under DACA, in theory, when they re-enter the U.S., they should be able to adjust their status through marriage to a U.S. citizen spouse (assuming no prior deportation);
  • Immigration benefits for step-children from a same-sex marriage;
  • Availability of waivers based on relationship to U.S. citizen spouse during removal defense including cancellation of removal, 212(h), and so on;
  • Relief under the Violence Against Women Act for battered spouses of U.S. citizens;
  • Derivative immigrant and non-immigrant visas, for legally-wed spouses including L-2; H-4, most E and EB categories and so on so that foreign-born and/or binational same-sex couples can actually live together in the U.S.;
  • Motions to reopen cases with final removal orders, so persons who were previously ineligible for relief can now assert it in court;
  • Lawful permanent residency for persons who receiving withholding of removal, who now have U.S. citizen spouses.

That’s just a few examples. However, not everything is fine and dandy in the world, with DOMA gone. 

Problems that remain

  • Enforcement – USCIS has not yet started issuing green cards for same-sex binational couples, or recognizing them as eligible for other benefits and waivers, but this is just a matter of time;
  • As immigration law recognizes a bona-fide marriage based on “place of marriage,” people who are too sick or poor to travel to one of the few states that provide for same-sex marriage lose out. A creative solution would perhaps be to figure out how video-conferencing technology can enable marriage of a couple stuck in an anti-marriage state or country;
  • Asylum seekers cannot get follow-to-join benefits for their partners left behind in countries with despicable LGBT human rights records. A creative solution for this may be enabling asylum seekers to gain humanitarian parole for a partner;
  • People detained in anti-marriage-equality states would also be left to fend for themselves. While this is true for even straight people, LGBT persons are much more vulnerable in detention;
  • Bigoted consular processing officials who reveal the sexual orientation of an applicant to their relatives in the foreign country, thereby putting their lives at jeopardy in their home countries;
  • Bigoted case officers in the U.S. – Now LGB couples can enjoy the misery that straight couples go through at marriage-based interviews and perhaps, withstand a lot more scrutiny than their heterosexual counterparts (i.e. answering questions like “Who is the man in the relationship?”);
  • Persons who have remained closeted, who come out and claim marriage benefits such as health insurance, may be subject to employment sanctions and workplace discrimination, which remains entirely legal without a trans-inclusive Employment Non-Discrimination Act;
  • For decades, LGBT persons have been evading border controls in creative ways. Those ways may come back to bite in some instances, especially where LGB persons have committed marriage fraud by marrying straight persons for papers. There are, of course, several defenses, and one should seriously consider exploring all their options with an immigration lawyer experienced in litigation and removal defense. It is critical to note here that simply marrying to gain an immigration benefit is not fraud — fraud is triggered when papers are filed to get a particular immigration benefit.

I’m sure people have many questions and are seeking more practical knowledge for their individual cases. As such, I’d implore people to join Immigration Equality’s Legal Director Victoria Neilson, and Binational Couples Attorney, Tom Plummer, for a special, 90-minute conference call today at Noon Eastern. Immigration Equality, where I am a Board Member, is the only non-profit organization in the United States that provides direct legal support to LGBT immigrants, and can also refer individuals to immigration lawyers across the country. 

To join the call, dial
(800) 868-1837
(404) 920-6440 if you are outside the United States
and use access code 397548#

The IE legal team has posted answers to preliminary questions on their website. You can read those online here.

P.S. In the excitement that ensued from yesterday’s ruling, my own same-sex U.S. citizen partner proposed to me. You can read that story here.

Will the Courts Invalidate Deferred Action?

24 Apr

KeepCalmStudio.com-[Crown]-Keep-Calm-And-Apply-For-Daca

There is much hue and cry over a federal district court judge possibly blocking the Deferred Action for Childhood Arrivals (DACA) program.

In a lawsuit filed by Kansas Secretary of State, Kris Kobach, on behalf of ICE Union head, Christopher Crane, challenging the DACA program, Judge Reed O’Connor (Northern District of Texas) has indicated that he is likely to find that the program violates federal law.

Previously, Judge O’ Connor had ruled that agents with the Immigration and Customs Enforcement had standing to bring suit as the prosecutorial discretion directive urged them to violate federal law, and the agents believed that by not following the directive, they would be subject to discipline and other adverse employment consequences.

Beneficiaries and recent applicants for the deferred action program should rest assured that even if the lawsuit is successful, it should not invalidate or affect their ability to legally work and reside in the country.

First, the judge has not yet issued a preliminary injunction against DACA. In fact, the case presents complicated issues of whether the federal judge even has jurisdiction to hear the case as it appears to be an employment dispute. Judge O’Connor has therefore asked the parties–the Department of Justice and lawyers for the ICE Union–to brief whether the  Collective Bargaining Agreement and the CSRA bars the federal district court from hearing the case.

Second, even if Judge O’ Connor grants a preliminary injunction, there are additional questions as to whether the injunction only affects applications filed in the Northern District of Texas. Regardless of the answer, the Department of Justice is likely to file an appeal to the Fifth Circuit, and seek a stay of the injunction, such that the operation of the deferred action program continues smoothly.

Third, upon appeal, the Fifth Circuit is likely to uphold deferred action. Prosecutorial discretion has a long history in U.S. immigration law and agency practice, so Judge O’ Connor is simply wrong in stating that immigration laws mandate the detention of non-citizens present in the U.S. without legal status. In fact, Judge O’ Connor erroneously finds that DHS has prosecutorial discretion in the latter stages through the cancelling of removal proceedings but not in the initial stages, which hardly makes any sense.

In the meantime, the DACA program continues to be available to eligible undocumented youth. Prosecutorial discretion is also unlikely to go away and a federal judge in Northern Texas does not have the ability to undo decades of U.S. immigration law.

We will continue to document the efforts of bureaucrats within ICE to stymie intelligent immigration enforcement through insubordination, lawsuits, leaks, and more generic tactics like refusal to complete trainings and sick-outs.

The lesson of the day is hence, keep calm and keep applying for DACA.

Summary of the Newly-Introduced Senate Immigration Bill

17 Apr

Here is a short summary of the Senate immigration bill released to the general public late last night. Keep in mind that this is just proposed legislation, and no one can or should apply for anything yet. We’ve a long way to go before this legislation becomes reality.

Title I Border Security

This title provides for phased in border security measures that will achieve and maintain effective control in high risk border sectors of the Southern border.

  • Border Plan: Stage one requires the Secretary of DHS to develop a Comprehensive Border Security Strategy and Southern Border Fencing Strategy that must be submitted to Congress before the registration period for Registered Provisional Immigrants (RPI) begins. These strategies must be designed to achieve an ability to achieve persistent surveillance of the border using both technology and human resources and to achieve a 90% effectiveness rate for apprehensions and returns in high risk border sectors. This bill appropriates $3 billion for this plan. The Secretary’s plan must be operational before any RPIs may apply for adjustment of status.
  • Triggers: In addition, the Secretary must develop and implement a fencing plan (up to $1.5 billion); Everify must be mandatory and operational; and biographic entry-exit at air and seaports must be implemented before RPIs may adjust to permanent residence.
  • Southwest Governors Commission: After five years, if the specified goals of 90% effectiveness and persistent surveillance have not been met, a Southern Border Security Commission will be established to make further recommendations for achieving the targets. The Commission will recommend up to $2 billion in additional spending that would be available achieve the border security goals if they have not yet been met.
  • Additional Resources: To further ensure completion of these targets, Border Patrol personnel and resources will be increased, additional funding for border prosecutions in the Tucson sector are funded, and the authority of the National Guard to assist in border security operations is codified.
  • Civil Rights: To protect the integrity of the system, additional resources and training will be devoted to implementing a DHS-wide use of force policy and associated training in appropriate use of force, individual rights, and sensitivity to cultural and environmental impact of federal operations on border communities. A Border Oversight Taskforce is established to take testimony and conduct hearings in order to review and recommend changes to existing border policies. The current duties of the USCIS Ombudsman’s office will be expanded to encompass all DHS immigration functions.

Title II Legalization (Registered Provisional Immigrant program) and Legal Immigration

  • This title provides a path to citizenship for the 11.5 million undocumented workers in the United States. This title establishes a new framework for future legal immigration that maximizes the number of visas made available annually to persons in family, employment, and a new merits based visa category. In addition to the current family and employment based systems, two additional “merit-based systems” would be created.

    SubPart A. Creation of Registered Provisional Immigrant program

  • Registration Requirements: Immigrants who entered the United States before December 31, 2011 and have been physically present in the U.S. since that time will be eligible to apply for Registered Provisional Immigrant (RPI) status provided they pass background checks, have not been convicted of serious criminal activity, pay any assessed tax liability, pay appropriate fees and a $500 fine.
  • Initial registration will be valid for six years, provides for work and travel authorization, and includes spouses and children.
  • Renewal: RPIs applying for renewal will be subject to new background check, evidence of having been regularly employed while meeting public charge requirements or having income and resources at 125% of the poverty level evidence of learning English and payment of fees and a $500 fine.
  • Adjustment of status to Permanent Residency: At the end of ten years, RPIs may apply for adjustment of status, provided that they can continue to demonstrate eligibility per the renewal standards (with a heightened income requirement) with payment of an additional $1000 fine. Individuals present in the U.S. for 10 years in lawful status can adjust status. RPIs may not adjust status until the family and employment backlogs are cleared and the border security triggers are met. RPIs may apply for naturalization after a three year wait, making the total path to citizenship a 13 year wait.
  • Timeline: There is an initial 12 month period for regulations. Then there is a one year initial application period which can be extended for up to one year at the discretion of the Secretary.
  • DREAM Act: Individuals who entered the United States before the age of 16 and who have completed high school in the U.S. may register for RPI status through the DREAM Act. There is no age cap for the program. Five years after registration, DREAM RPIs may apply for adjustment of status; their time in RPI status will count towards eligibility for naturalization, allowing them to become citizens immediately after receiving their green card.
  • Agricultural Program: Undocumented farm workers who have made a substantial prior commitment to agricultural work in the United States would be eligible for an Agricultural Card. Agricultural workers who fulfill future Agricultural Card work requirements in U.S. agriculture, show that they have paid all taxes, have not been convicted of any serious crime, and pay a $400 fine are eligible to adjust to legal permanent resident status.
  • Grant Programs: Creates an Office of New Americans and additional integration initiatives. Provides funding for immigration legal services.SubPart B. Legal Immigration Reforms
  • A new “Track Two” merit-based system is created to adjust the status of individuals lawfully present in the U.S. for over ten years with work authorization and to eliminate all existing legal immigration backlogs within the next 8 years. The Secretary is permitted to clear the backlog of family and employment based petitions that have been pending for more than 5 years.
  • Lawful Permanent Residents’ spouses and children become “immediate relatives” and are uncapped: Current family based categories will be revised to permit the spouses and children of lawful permanent residents to immigrate immediately.
  • Additional changes to the current family system: The current sibling category will be eliminated 18 months after enactment, but the backlog reduction program will include processing of all sibling petitions submitted before expiration of the program and US citizens can petition for the sibling for up to 18 months after enactment. The third family preference category (adult married children of US citizens) has an age cap of 31.
  • New Family “V” Visa: Creates a new nonimmigrant visa for families with approved petitions to work and live in the U.S. while waiting for their green card. Allows other family members including siblings to visit the U.S. for up to 60 days per year
  • International adoption harmonization allows adoption of foreign-born children till age of 18, as opposed tp the current age of 16.
  • Equal treatment for all stepchildren, as in the age until which a step-child is considered a child is amended from 18 to 21.
  • Clarification of 203(h)(3) of the Child Status Protection Act – Children who age out after complex mathematical formula still retain the original priority date of any family-visa, employment-visa and diversity visa petition filed on behalf of their parents, and can apply the original priority date to a subsequent petition filed on their behalf by a parent.
  • Employment-Based Reforms: Spouses and children of employment based visa applicants, STEM graduates with doctoral degrees, certain other experts and professionals, and certain foreign doctors are exempt from the employment visa cap. The cap on low-skilled workers is raised.
  • New Merit-Based System: Creates a “Track One” merit based visa which will initially allocate 120,000 visas annually based on a points system. Equally weighted points will be awarded for factors such as education, employment, and length of residence in the US, with the possibility of increasing the allotment by 5% (capped at 250,000) in any year where unemployment is under 8.5%. A portion of these merit visas will be set aside for high skilled and low skilled workers.
  • Additional Backlog Reduction and Improvements: Additional provisions to streamline processing and reduce backlogs including elimination of employment based country caps, increase in family based country limits, and recapture of unused visa numbers are authorized. Permanently authorizes popular programs for foreign doctor (Conrad-30), religious worker recruitment; and EB-5 investors. Includes numerous other technical fixes to improve and streamline current visa programs, many of which were included in the Menendez/Honda Reuniting Families Act (additional protections for stepchildren, widows, and other family members.)
  • Judicial Discretion: Expands availability of waivers for unlawful presence, false claims to U.S. citizenship, misrepresentation and expands authority of immigration judges and DHS to waive removal on humanitarian grounds, lowering the bar from extreme hardship to hardship for parents, spouses and children of U.S. citizens and lawful permanent residents.

Title Three: Interior Enforcement

  • This title mandates E-Verify, provides additional worker protections, reforms the immigration court system and provides additional measures related to interior enforcement.
  • Five year phase-in of mandatory E-Verify: Establishes a phased-in expansion o current electronic employment verification system (E-verify) to cover all employers within a four year period, beginning with federal contractors and critical infrastructure employers. Requires identity verification through enhanced fraud-proof work authorization and green cards. Specifically prohibits creation of a national ID card.
  • Anti-fraud measures: Expands ability to protect against identity theft of Social Security numbers by allowing employees to block their social security number and gives employees access to personal E-verify history. It provides for photo identification mechanism as component of E-verify.
  • Due Process: Expands due process protections for employees to ensure that legal workers are not prevented from working due to errors in the system or because of employer negligence or misconduct. Provides for back-pay if an employee loses work unfairly due to system or employer error. Provides a stay of termination of employment to give the worker time to correct any errors in the system.
  • Worker Protections: Subparts B and C of this Title provide other miscellaneous protections for employers and employees, including pre-emption of state and local work authorization laws, expansion of U visas in employer abuse situations (POWER ACT), creation of mandatory exit verification system, program funding. The bill also cracks down on labor recruitment abuse.
  • Refugee/Asylum Issues: Streamlines processing in refugee and asylum cases by eliminating one year asylum filing deadline, allowing persons who were denied asylum as a result of the one-year filing bar to file a motion to reopen the case within 2 years of the enactment of the bill; eliminating family reunification barriers for asylees and refugees, authorizing streamlined processing of certain high risk refugee groups, authorizing asylum officers to grant asylum for eligible applicants during credible fear interviews, and permits qualified stateless individuals to apply for lawful permanent resident status.
  • Immigration Court Improvements: Authorizes increase in immigration court personnel, additional resources, and more training for judges and other staff, access to counsel for vulnerable populations to improve efficiency of courts, permanently and codifies Board of Immigration Appeals and legal orientation programs.
  • Interior Enforcement: Tightens certain grounds of inadmissibility relating to document and passport fraud, driving while intoxicated following two convictions, conviction for gang related activities, convictions related to domestic violence, child abuse, stalking, violation of protection orders and failing to register as a sex offender. Prohibits and or increases penalties for abusive smuggling, hindering or obstructing immigration investigations, illegal entry and re-entry.
  • Detention Reform: Increases oversight of detention facilities, expands discretion of immigration judges to conduct bond hearings, and requires establishment of alternative to detention programs in consultation with community groups.

Title IV Reforms to Non Immigrant Visa Programs

This Title reforms current non-immigrant visa programs and creates a new W worker visa that melds greater employer flexibility with more worker protections and ability to self-petition for permanent residence.

  • H-1B: Reforms to the H-1B high skilled visa program include expanding current cap from 65,000 to 110,000 with an option to ultimately increase the cap to 180,000 visas annually based on a High Skilled jobs Demand Index. Increases requirements for web-site advertising for U.S. workers prior to hiring foreign workers.
  • H-4: Allows dependents of H-1B workers work authorization if country of origin reciprocates with similar provisions for U.S. citizen dependents living abroad
  • Deterring Abuse: Establishes significant new authorities and penalties to prevent, detect, and deter fraud and abuse of the H-1B and L-1 visa systems by fraudulent employers. Increases wages for foreign workers to help protect Americans.
  • H-2B: Makes permanent the H-2B returning worker provision.
  • New Worker Program (W Visa): Establishes a new nonimmigrant W classification for lesser-skilled foreign workers performing services or labor for a registered employer in a registered position. Spouses and minor children are included and will receive work authorization. Three year visa with three year renewal periods. Initially, 20,000 W visas will be made available, rising to 75,000 visas in year four. After that time, a newly established Bureau of Immigration and Labor Market Research will be authorized to calculate and recommend appropriate W visa levels. Other safety valves will be built into the cap to ensure occupations or employers with genuine shortages can hire needed workers. W visa holders may switch from one registered employer or position to another without penalty and upon meeting other eligibility criteria apply for the merits based lawful permanent residence.
  • Agriculture: A new agricultural guest worker visa program would be established to ensure an adequate agricultural workforce. A portable, at-will employment based visa (W-3 visa) and a contract-based visa (W-2 visa) would replace the current H-2A program. The H-2A program would sunset after the new guest worker visa program is operational.

Here is the complete Senate bill and a longer outline of the bill.

NIYA Organizers Infiltrate Michigan ICE to Reveal Racial Profiling and Due Process Abuses

15 Apr

On April 4th, 2013, an organizer with The National Immigrant Youth Alliance (NIYA), Claudia Munoz, infiltrated Immigration and Customs Enforcement (ICE) in Michigan. Claudia allowed herself to be detained by accidentally driving in to Canada. Claudia is still detained at the Calhoun County Jail in Battle Creek, Michigan.

In a video message that she shot before her arrest and detention, Claudio states that she is detained at a Michigan detention center because she allowed herself to be caught by Customs and Border Protection in an effort to expose the abuses that happen inside immigrant detention centers.  Since Claudia has been detained inside the Calhoun County Jail for the past 10 days, she has witnesses numerous due process violations and abuses conducted by ICE officials:

  • Due process violations: CBP agents intentionally misinterpreted detainees in order to incriminate them, which is a violation of their due process.
  • Forcing detainees to agree to voluntary departure: ICE Liaison, Officer J. Jolin, was seen forcing detainees to agree to voluntary departure. Office Jolin told a detainee that “I can bring in 3 deputies and make you sign it!” in order to compel signature. Additionally, a detainee was locked away in a room ‘until he changed his mind.’ Office Jolin also threatened one man with “20-years in prison if you don’t sign.” These reports corroborate past allegations that ICE officials have forced individuals to relinquish their legal rights.
  • Medical abuses. A detainee, Maria de la Luz, developed several health problems in the course of her detention. She has been coughing blood. Maria has also developed ovarian cysts, which are quite painful. Despite requesting medical help four times, she was merely given over-the-counter Advil. ICE agents have told her “why spend money on you when we plan on deporting you?” This is contrary to the Performance-Based National Detention Standards allegedly adopted by ICE in 2011.
  • Inaccessibility to filing complaints: Most of the detainees cannot complaint to officials as all grievance forms are in English. Additionally,  these grievance forms are not readily available and must be requested from an ICE agent.
  • Detention of low-priority detainees. Gustavo Corona was detained on April 1st, despite being eligible for the Deferred Action for Childhood Arrivals (DACA) program. His detention was also contrary to prosecutorial discretion guidelines, as he was pulled over for driving without a license, and detained despite having no criminal record and substantial family ties to the U.S. After protests from immigrant rights activists, Gustavo was finally released on April 11.

In addition to these abuses, Claudio also discovered out-of-date listings for pro-bono attorneys and non-profits. Other detainees have also allegedly complained of similar issues.

The National Immigrant Youth Alliance alleges that these cases are not an anomaly but that the Michigan ICE office has a track-record of abusing its power and not following national directives. In April 2011 and again in October 2012, Director Adducci ordered her agents to detain parents outside a local elementary school. In January 2012, Director Adducci refused to grant discretion in the case of Yanelli Hernandez, an undocumented youth from Ohio who had attempted suicide twice while in detention. In July of 2010, Officer J. Jolin, forced detainee, Ivan Nikolav to watch as his mother was stripped searched.

According to TRAC data, since Adducci became Field Director, Michigan ICE has issued over 4,200 immigration detainers; nearly 80% have been against immigrants with no prior contact with law enforcement.

The NIYA alleges that nearly all of the detainees at the Calhoun Facility are low-priority, and a result of racial-profiling against Latinos. Most are detained for driving without a license, as collateral walking to pick their children up from school, or merely as passengers in a car. Out of nearly 150 detainees at Calhoun, NIYA organizers contend that over 70% are the parents of U.S. citizen children, and eligible for prosecutorial discretion.

This is not the first time that NIYA has infiltrated a detention facility. Last summer, NIYA organizers Marco Saavedra and Viridiana Martinez, infiltrated Broward Transitional Center in Florida, where they found hundreds of cases of low-priority detainees. They were eventually released but not before they drew Congressional attention to the polices and practices at Broward, and started a hunger-strike inside the facility, which led to the release of many more detainees.

Claudia Munoz is likely to be identified and released from detention soon. However, while the Senate gears up for comprehensive immigration reform, it should seriously reconsider the practice of immigration detention and mount a full investigation into the policies and practices of detention centers across the country.

H-1B Cap Reached for Fiscal Year 2014

5 Apr

As predicted by many in the profession, the H-1B filing cap was reached today.

On one hand, this is good news because reaching the H-1B cap this early into the season is an indicator that the economy is rebounding. This has been the shortest application period to date in the past five years.

However, this means that all applications filed through today will be subject to a lottery– a computer generated random selection process for all applications that were received through today, as in April 5, 2013. No H-1B applications will be accepted past April 5, 2013.

The H-1B cap is a major issue for employers looking to hire foreign workers. Due to the H-1 program’s popularity, the annual allotment of 65,000 slots is routinely filled just weeks (if not days) after USCIS begins accepting applications—leaving employers, and especially technology start-ups, unable to tap much of the pool of foreign labor on which they rely.

The I-Squared Act, a bipartisan bill that is pending in the Senate and would likely be attached to broader comprehensive immigration legislation, would create a floating cap for the H-1B as depicted by the Brookings Institute chart below:

Fluctuating the cap based on economic need would be a welcome change from the current fixed cap of 65,000 for regular H-1Bs, and 20,000 additional for H-1Bs filed on behalf of advanced degree holders. We can only hope that this legislation sees the light of day.

Premium processing for cap-subject H-1B petitions will begin on April 15, 2013. The USCIS has not yet announced the date of the lottery. Stay tuned for more information.

Moving Beyond the “Illegal Immigrant” – The Associated Press Drops the Pejorative Term. Who’s Next?

3 Apr
Image representing Associated Press as depicte...

Image via CrunchBase

Yesterday, the Associated Press announced that it would stop using the phrase “illegal immigrant” to describe an individual present in the US illegally, or who entered the country without proper authorization. This is a great victory for the long history of organizing against the word “illegal” beginning with the transnational No Human Being Is Illegal campaign and more recently, the Drop the I-word campaign, in addition to the many undocumented immigrants across the country who have insisted on defining ourselves beyond the pejorative brush of “illegal” or “illegal immigrant.”

The AP dropping the I-word also has wide ramifications not just for the media, but also for the way we view and treat people. ”Illegal” or “illegal immigrant” is a dehumanizing pejorative imbued with violence and oppression. I have written at length about how “illegal immigration” and hence, “illegal immigrant” came to be part of our lexicon through the construction of true and false immigration. There is no coincidence that the legal history of deportations coincides with the use of more virulent language to separate desirable immigrants from undesirable immigrants, and castigate the latter as undeserving of any civic or political rights.

By painting certain people with the broad brush of illegality, the state apparatus makes it easier to deny rights to persons without papers, and conduct large-scale violent

Members of the South Central Farm attending th...

Members of the South Central Farm attending the immigrant rights march for amnesty in downtown Los Angeles California on May Day, 2006. The banner, in Spanish, reads “No human being is illegal”. (Photo credit: Wikipedia)

actions against them, actions that now take the form of workplace raids, detention and deportations. Changing such language then, does help to make it more difficult to castigate people as undesirable and unwanted.

However, this is not just about political correctness. It is also about accuracy. Beyond the sheer dehumanization and violence, the use of the phrase” illegal immigrant” has always been plain lazy journalism. It presupposes that someone is in violation of immigration law without affording the person due process, which is quite contrary to our laws. In my widely-read New America Media article, It’s More Complicated Than Legal vs. Illegal, written last summer,  I mention more accurate, legal and less dehumanizing ways to categorize people,:

Overstay: Someone who overstays her admission to the country. An overstay may or may not accrue unlawful presence, and may simply be out of status.

Entry Without Inspection (EWI): Someone who enters the country without inspection or proper admission. An EWI may still be eligible for admission without leaving the country.

Immigrant: A green-card holder whether through admission or adjustment of status.

Non-immigrant: Anyone who is in the U.S. temporarily with legal status but is not a green-card holder or U.S. citizen.

Asylee: Anyone granted asylum in the United States due to past persecution or well-founded fear of persecution in their home country.

These are merely suggestions. As always, I’d err on the side of people defining themselves. I also think it is quite possible to write a story about an immigrant or immigration reform without necessarily having to categorize the actions of people who may be here without proper authorization. Maybe now, news organizations beyond the Associated Press can focus on covering new stories and opinion pieces about the lives of actual people as opposed to painting us all with the brush of a lazy, inaccurate and dehumanizing pejorative.

There is something to be said about the continued raids, detention and deportation of undocumented immigrants, despite the change of language. While it is too soon to declare victory in terms of the treatment of irregular or unauthorized immigration, and the AP will continue using the phrase “illegal immigration” as a way to describe immigration outside the law, this is a step in the right direction.

Congress Reauthorizes VAWA But Falls Short On Immigration Provisions

6 Mar

After a long wait, Congress has reauthorized the Violence Against Women Act (VAWA), with several new protections that are of relevance to immigrant clients and practitioners. President Obama is expected to sign the bill this afternoon.

VAWA evil

VAWA evil (Photo credit: Wikipedia)

But first, what is VAWA? In 1994, Congress enacted the Violence Against Women Act (VAWA I), the first comprehensive federal legislation to address specifically the issue of violence against women. VAWA I improved greatly the availability of overall support and resources for domestic violence survivors through the creation of new criminal enforcement authority and enhanced penalties to combat domestic violence in federal courts, and provided grants to fund programs to fight violence against women.

Prior to VAWA I, immigrant spouses and children could only apply for legal residency if their United States citizen or legal permanent resident spouses filed legal residency applications on their behalf. VAWA I changed that by providing a way for battered immigrant spouses and children to gain legal immigration status by self-petitioning, so that they could escape abusive marriages with U.S. citizen or lawful permanent resident spouses. Additionally, VAWA I also provided a special form of suspension of deportation for battered spouses or children to apply to become lawful permanent residents if they could demonstrate extreme hardship to themselves or to immediate relatives. However, VAWA I proved to be ineffective and inaccessible for many due to subsequent changes and additions to immigration law, which unintentionally eliminated or rendered inaccessible many of the VAWA I protections for battered immigrant spouses and their children.

Despite its noble intentions, VAWA I fell short on several fronts. The battered immigrant had the burden to proof that the batterer was a U.S. citizen or lawful permanent resident, which was often difficult to establish. Additionally, under VAWA I, if a batterer lost U.S. citizenship or lawful permanent resident status prior to approval of the self-petition, the former INS could automatically deny the battered immigrant’s petition. Moreover, VAWA I prevented victims from divorcing their batterers prior to filing the petition. As such, battered immigrants with pending divorces could not request fee waivers for their VAWA petitions without the risk that such waiver requests would potentially delay the filing of the self-petitions until after their divorces had been finalized. Battered immigrants in removal proceedings had to prove “extreme hardship” to prevail, which often served as a bar to relief. VAWA I also had a “good moral character” requirement that served as a bar to abused immigrants who had been convicted of crimes against their perpetuators due to self-defense. In order to address these shortcomings, in 2000, Congress enacted the Violence Against Women Act of 2000 (VAWA II) to re-authorize grants and programs established under the original VAWA.

Title V of VAWA II, or the “Battered Immigrant Women Protection Act of 2000” (BIWPA), was enacted to improve access to immigration protections of VAWA for battered immigrant women, improve access to cancellation of removal and suspension of deportation, and create new VAWA II provisions, such as the “U” nonimmigrant visa, which allowed people without immigrant status to gain a visa for reporting serious crimes perpetrated against them. Under VAWA II, a battered immigrant retained the right to self-petition if the batterer was a United States citizen who died within the past two years or the batterer lost or renounced immigrant status within the past two years due to an incident “related” to the domestic violence. VAWA II also allowed the battered immigrant to self-petition even if the marriage had already been terminated if the battered immigrant could prove that the divorce was “connected” to battering or extreme cruelty by the United States citizen spouse or legal permanent resident. In addition, VAWA II permitted battered immigrant self-petitioners to remarry during the self-petition process, and allowed divorced victims to file for naturalization. It also created a good-faith exception for battered immigrants who married U.S. citizen or lawful permanent resident bigamists.

For battered immigrants in removal proceedings, VAWA II also removed the “extreme hardship” requirement for cancellation of removal. It also allowed a battered immigrant who had committed a crime to maintain “good moral character” if s/he could prove that the crime was connected to the abuse s/he had suffered and s/he not been the prime perpetrator of violence in the relationship.

Perhaps, most importantly, VAWA II created the U nonimmigrant visa to prosecute serious crimes, not limited to domestic violence, against abused non-citizens who are not in lawful immigration status as long as they cooperated with law enforcement. Such crimes include rape, torture, trafficking, incest, domestic violence, sexual assault, prostitution, kidnapping, or murder, among many others. This allowed non-citizen victims of violence not covered VAWA to gain lawful status and thus, filled an essential gap in VAWA. However, a central criticism of the U-Visa is that it is capped at 10,000 per year and easily reached within the first few months of the fiscal year.

As a response to the criticism of the U-Visa cap, in May 2012, the Senate passed a re-authorization of the Violence Against Women Act, where it raised the cap on U visas to 15,000. But the House of Representatives passed a separate bill, that omitted the cap increase, eliminated the ability of U-visa holders to apply for lawful permanent residency and presented a slew of new problems for victims. Congress never got around to reconciling the two different versions of VAWA, and hence it failed to issue a final bill to the President for reauthorization of VAWA.

In response to mounting public pressure, Congress reauthorized the VAWA last week. The relevant immigration provisions that made it into the final bill include:

  • Adding “stalking” to the list of crimes covered by the U visa.
  • “Widow penalty” extension – Allowing the surviving minor children of a VAWA self-petitioner to retain the ability to qualify for lawful permanent residence in the event that the qualifying relative passes away after the filing of the application.
  • Child Status Protection – When victims of a qualifying crime, who cooperate in the investigation or prosecution of that crime, file for a U visa that includes their children under 21 years old, the children will not age out during the process. The child will be able to receive a visa alongside the parent even if the child turns 21 before final adjudication.
  • Strengthening the International Marriage Broker Regulation Act (IMBRA) to provide vital disclosures regarding any violent criminal histories of the U.S. citizen spouse so that the foreign fiancé(e)s of U.S. citizens information they need to protect themselves from entering abusive marriages.
  • Public Charge Bar – Clarifying that a VAWA self-petitioner, a U visa petitioner or holder, or an immigrant who was battered and is deemed a “qualified alien” under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 is not subject to the public charge bar.
  • Clarifying the eligibility of crime and trafficking victims who are T or U Visa holders in the Commonwealth of the Northern Mariana Islands to adjust status after three years continuous presence

Unfortunately, the 2013 version of VAWA reauthorization passed by Congress did not permit a modest increase of U-visa numbers. Additionally, implementation difficulties remain with VAWA. The battered self-petitioner still needs to provide proof that the abuser is or had been either a United States citizen or lawful permanent resident and that the abuser’s loss of citizenship status was somehow due to an incident “related” to the domestic violence. The battered immigrant who has been divorced also finds it difficult to prove that the divorce was connected to the violence or cruelty through the marriage. In many instances, a battered spouse may not possess documentation necessary to prove that the marriage was entered into with good faith. VAWA self-petitioners are also hampered by the stringent good moral character requirements. Additional changes to VAWA provisions are also necessary to assist battered immigrants and non-immigrants with obtaining the legal and economic help necessary to combat.

Despite its drawbacks, VAWA remains a vital tool for victims of violence to escape abusive relationships. Since it was enacted, more than 98,000 people have filed petitions under VAWA, and 75% of these petitions have been approved. It is our hope that Congress will act to address any and all shortcomings remaining with the VAWA and the U-Visa as it takes up comprehensive immigration reform.