Solutions needed for shadow population

Of the estimated 14 million or so undocumented people in the U.S., it is important to adopt humane policies not just for the shadow population but for their U.S. citizen families – parents, sons & daughters.

One positive step is the recent Department of Homeland Security ruling that will allow certain family members of U.S. citizens physically present to remain in the country while applying for a waiver to become permanent residents. Previously, families would be torn apart waiting for periods, sometimes a year or more, while the waiver was adjudicated.  Though the applicant for the waiver still needs to leave the U.S. and apply for a visa abroad, the separation pain is lessened significantly from this ruling.

Let this policy stand as an example of the types of sensible and humane policies that need to be instituted. It is our great hope that in Obama’s second term, he will follow through on promises to address sensible immigration reform. There are so many communities with a blend of U.S. citizens, legal residents and undocumented immigrants who would be hurt and torn apart by policies that don’t recognize and address these important community ties and the impact on Americans.

Holistic, Compassionate Lawyering

As Attorney Kravitz and I are about to incorporate  our immigration practice, our philosophy of “holistic, compassionate lawyering” is persistent in my mind. I think in practice, that while it is important to make enough money to stay afloat and be comfortable, helping the client in a richer and deeper way is the crux of why we do this work and is so distinguishing for the client. It is a way of treating others, a business model, and a way to sustain yourself in this work. This  concept is so important to me that it is underscored on business cards and on the website.

 

Our goal is to treat the whole person. It is my privilege to be the person who can provide hope to the client when they walk into my office.  When I worked in the Immigration Clinic at our law school, as did Attorney Kravitz, and in work post-law school, I have met people from all over the world with different journeys to the United States; yet, the unifying themes of suffering, fear, and instability drove them to us.  I’ve found the guiding principles of patience, attentiveness, and care provide the client with a more positive experience, while improving their legal cases.

There are often many other issues that are occurring in the client’s life besides a fear of deportation; social, medical, and other legal issues can be tangential to their immigration case. That is why we practice a holistic approach. We try to identify these surrounding issues and improve upon the client’s overall existential experience.  While our focus is on the immigration law, we try to address other legal issues, such as domestic violence, family law, education law, housing law, and the effects of criminal records. Medical, social and psychological issues also come up and can affect the client’s case and life. Our goal is also to provide the clients with resources to deal with these issues.

It is our hope that when the client has been through our office, they are more whole and confident. Further, by helping the clients to improve upon other aspects of their life, we hope that they can pay it forward. It has taken a lot of hard work for us to get to the point where we are, and we hope that with the clients’ successes, they can help guide others along the way.

 

Compassion and attentiveness, particularly in our asylum, VAWA, and SIJs cases, is key. It is a great act of courage for the clients to tell us their stories, that often involve painful memories of abuse or terrible events in their home countries.  As Oliver Wendell Holmes once said: “It is the province of knowledge to speak, and it is the privilege of wisdom to listen.” We both respect their courage and understand the level of trust they are putting in our hands.  One mechanism I’m trying to implement to effectuate this goal is to utilize the AudioNote app for the I-Pad. This app is great because it serves both as a recorder and a notebook. It allows you to memorialize client sessions and maintain eye contact and stay present in the conversation. Our clients are more than just facts laid out on a yellow legal pad and I’m grateful for new technology that can help us gain the information we need while maintaining the attentiveness that can help the clients soak in a deeper level of care.

 

 

 

The waiting game

There are a lot of things that have been one big waiting game since July and now continuing forward. 

First, there was the wait for bar results – that thank god I passed the bar the first time so I know that I can go ahead with this plan to open up an immigration firm with my business partner. 

Second, now we are waiting on her bar results (not that I have any doubt that she passed). 

Third, the wait to see who would win the election which could make a tremendous impact on immigration reform in the coming term. President Obama overwhelmingly swept the minority vote, which leads me to believe, not only is there a changing face in our country’s composition, but, further, that people believe more in President Obama’s ability to bring about immigration reform. Immigration issues, quite clearly, are a major issue for minority groups. I’m hopeful that during this term, cooperation across party lines can be achieved. The immigration system is a nightmare and its reform, with an estimated 12 million plus undocumented immigrants in this country, requires a direct and humane solution. 

Fourth, now that I’ve passed the bar and we have a launch date for the firm of January 1, 2013, there are many “business” matters to be dealt with – how to incorporate, an agreement, setting up accounts, paying bar dues, obtaining software, setting up a filing system, on and on and on… Marketing, networking, and preparations. 

 

The next four years

I’m thrilled that President Obama won another four years and I am hoping that during this time we have a serious overhaul to the immigration system. It’s a mess. It just doesn’t work.

Sometimes it is great – like yesterday when an attorney I was working with and I obtained asylum for a woman who really deserved it. But that is a drop in the bucket. Oftentimes, people are getting deported for arbitrary reasons and what you wind up arguing about is so ridiculous.

Obama winning last night has me even more eager to start practicing. I get sworn in on November 30th and my business partner and I plan on opening shop on January 1st. Can’t wait!

Things are looking up!

I’m back. I passed the bar! Now we are on schedule to open up Shapiro & Kravitz, an immigration firm January 1st. Will post more soon – hunkering down for Hurricane Sandy!

Trafficking, Smuggling and Immigration

This morning I had a wonderful opportunity to attend and present at a meeting with a diverse community justice group interested in the issues of human trafficking and immigration.

There is a lot of overlap among the issues of human trafficking, smuggling, and immigration law and policy. In fact, I came to immigration law by way of my work on human trafficking. About 5 or 6 years ago I became very active in sex trafficking issues in Rhode Island. I co-founded an organization with a former professor and spent days and nights for 2 years lobbying for a law to put a dent in the rampant Rhode Island sex trafficking industry. Doing this work, I found an overlap with immigration issues. Many of the women trafficked into the state for sex were from others countries. In Rhode Island, I found there were many Asian women who may be victims of sex trafficking. One tactic that the traffickers use to coerce the women to come here is promise of immigration papers and a better life in the U.S. In turn, the traffickers then use those very papers as a means to trap women in brothels or others places from which they are pimped or forced into labor, such as domestic servitude in homes or pimped out on the streets or in clubs. Many of these women come from a community where the police are grossly corrupt and an additional layer of fear accompanies threats of being turned into immigration. This is a powerful tool for traffickers.

There are several nuances that complicate this overlapping areas. Smuggling and trafficking can be convergent or distinct depending on the situation. Smuggling is moving something (or someone) illegally across territorial borders. Trafficking is defined as “the recruitment, harboring, transportation, or provision” of something. It is important to note that smuggling requires movement.  Trafficking, however, does not. A person can be trafficked three other ways: recruitment, harboring or provision.  A person does not need to move one inch to be trafficked. There have been many situations where a child was prostituted by a parent right in their own home. The child was not moved across borders, not moved across town, but was trafficked right in their own home. Also to note, international trafficking almost always involves smuggling, because a foreign national is often brought into the destination country illegally, as to avoid detection or a paper trail. Sometimes, however, a person is brought into the country legally and then trafficked.

Immigration issues often become involved in human trafficking. When a foreign national is brought to the country, immigration issues are implicate, either because the person is brought here unlawfully or because the immigration system is utilized in a deceptive way to bring the victim to the destination country. When the trafficking is domestic, or when American women, men, or children are trafficked within the U.S. borders for commercial sex acts or forced labor, no immigration issues are raised.

Many trafficking cases in the United States, however, do involve smuggling and immigration issues. There are a number of legal means to prosecute traffickers, johns (the slang term for those who buy sex), and to protect and aid victims. The following is a copy of a handout giving an overview of these remedies:

Overview of Law & Policy re: Trafficking & Immigration

 Federal Laws

Definitions: 22 U.S.C. § 7102

-       Coercion: (A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm or physical restraint against any person; or (C) the abuse or threatened abuse of the legal process.

-       Commercial sex act: Any sex act on account of which anything of value is given to or received by any person.

-       Debt bondage: The status or condition of a debtor arising from a pledge by the debtor of his or her personal services or those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.

-       Involuntary servitude: includes a condition of servitude induced by means of – (A) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or (B) the abuse or threatened abuse of the legal process.

-       Severe forms of trafficking persons: (A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or  (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

-       Sex trafficking: the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.

Criminal statutes:

-       18 U.S.C. §1581 & 1584 – Peonage & Sale into Involuntary Servitude – imprisonment up to 20 years; death resulting, up to life imprisonment.

-       18 U.S.C. §1589 & 1590- Forced Labor & Trafficking with respect to peonage, slavery, involuntary servitude or forced labor- imprisonment up to 20 years; death resulting, up to life imprisonment.

-       18 U.S.C. § 1591- Sex Trafficking of Children or by Force, Fraud, or Coercion- If severe form of trafficking- mandatory minimum 15 years – life. If sex trafficking- mandatory minimum 10 years-life. Can get up to 20 years for obstructing prosecution.

-       18 U.S.C. §2421- Transportation- Whoever knowingly transports an individual across state lines with intent for that person to engage in prostitution- up to 10 years imprisonment.

 

Visas

T- Visas- USCIS Form I-914

-       Purpose: Visa for victim of “severe forms of trafficking”

-       Requirements:

• Meet the definition of “severe forms of trafficking” [(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or  (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.  See 22 U.S.C. § 7102]
• Present in the United States because of trafficking
• Is cooperating with the authorities on prosecution of traffickers (though trafficking must be central to the prosecution, it does not need to be exclusively a trafficking offense)
  • Exceptions: (a) the victim is under 18; (b) physical or psychological trauma prevents the victim from cooperating.
• A showing that the victim would suffer extreme hardship involving unusual and severe harm upon removal.

-       Benefits:  First, the victim can get a temporary visa. Second, victim can apply for a green card (adjustment of status to lawful permanent resident) and request family to join as derivatives.

U-Visas – USCIS Form I-918

-       Purpose: Provides visa for victim of violence crime committed in the U.S.

-       Requirements:

• Victim of any age
• Crime occurred in the United States
• Must have been victim of enumerated crime. There are a number related to human trafficking. They include: rape, torture, trafficking, sexual assault, being held hostage, peonage, involuntary servitude, etc…
• Must get law enforcement certificate to show cooperation and helpfulness in prosecution.
• Must show substantial physical or mental abuse.

-       Benefits: First, the victim can get a temporary visa. Second, victim can apply for a green card (adjustment of status to lawful permanent resident) and request family to join as derivatives.

SIJS Visas- USCIS Form I-360

-       Purpose: Provides visa for special immigrant juveniles

-       Requirements:

• Must get child declared dependent on a person or a state agency.
• Obtain findings of fact that the child has (1) been declared dependent; (2) The child has been abused, abandoned, or neglected, by one or both parents; (3) reunification with the abusive parent(s) is not viable due to the abuse, abandonment, or neglect; and (4) it is not in the best interests of the child to return to their home country.
• These findings must be obtained and an I-360 application filed before the child turns 18.
• Once the matter is adjudicated before United States Citizen and Immigration Services, the child has until age 21 to go through the process to get a green card.

 

 

2012 Presidential Election- Romney v. Obama on Immigration

Deportations have increased under the Obama Administration and a former immigrant sympathetic Romney seems to be increasingly drifting outside the mainstream. Perhaps this is an effort to appeal to the establishment or a more conservative base. Politics aside, let’s get down to the nitty gritty and see if we can decipher immigration policies of the candidates and how that might impact immigration law.

Obama Immigration Policy

Credit Grant Pominvill

Obama’s campaign website does not address immigration, so this took a bit more digging.

Past voting record as U.S. Senator

2006:

Surprisingly, Obama voted yes on the Secure Fence Act. The Act approved a $1.2 billion 700-mile-long fence along the U.S./Mexico border.

He voted to allow undocumented people to participate in Social Security.

He sponsored a bill to provide fair prevailing wage to guest workers.

2007:

Obama voted yes on a bill restricting commercial trucks from Mexico to certain commercial only zones. (Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2008)

He voted for a failed comprehensive immigration reform bill (S. 1639). The bill would have introduced guest-worker-visa and path-to-citizenship programs for illegal immigrants already residing in the country, as well as increased border security.

Obama supported a bill (Senate Amendment 1183) that sought to reclassify spouses and minor children of legal immigrants as immediate relatives, giving them legal status in the U.S. Under current U.S. immigration law, spouses and minor children are immediate relatives only of U.S. citizens.

2008:

Voted to support continuing federal funds to so-called “sanctuary cities.”

Record in office

No comprehensive reform

As part of his 2008 campaign platform, Obama promised to crackdown on illegal immigration, secure the borders, and to comprehensively reform the immigration system.  During Obama’s time in office there have been no major amendments to the Immigration and Nationality Act (INA) (Note: the last major revision was in 1996).

Deportations have soared during Obama’s presidency. For example, in FY 2011, a record number of people – nearly 400,00 were deported. Last summer, Obama did take some action, by deciding to review 300,000 low-priority deportation cases.  At the end of 2011, deportations drastically decreased. 

2012 Campaign policies on immigration

Though Obama has not had a positive record on immigration during his presidency, in a speech given to Univision in Colombia on April 14, 2012, he pledged to tackle immigration reform if elected to another term. He said that the issue was “personal” to him . Obama expressed frustration with a Republican Congress with their boots in the cement. He was hopeful that the election would usher in a Congress that would be more willing to work with him.

Border fence: Against this

DREAM ACT : Supports

Romney Immigration Policy

JoshFerrin.com

Romney’s campaign website says that our immigration system is “broken”. Overall, Romney’s plan is to promote legal immigration for cherry-picked people who share American ideals and will benefit our economy. He wants to keep “illegal aliens” out by erected a “high tech” fence, crackdown on employers and get rid of amnesty. Now, let’s break this down. What does this really mean?

2012 Campaign policies on immigration

Romney has a very unclear record on immigration and flip-flopping views during the campaign.  In fact, as of a few days ago, the RNC said that Romney was “still deciding” on immigration policy, but from past statements we can infer the following:

AZ immigration law- The only thing clear about Romney’s record is that he endorsed Arizona’s controversial immigration law, SB 1070, a law allowing random document checks and detainment. He called it a “model” for enforcing immigration law. 

Border Fence- Romney wants to build a 2,600 mile fence along the U.S./ Mexico border that is monitored by armed guards.

DREAM ACT- Romney opposes the DREAM Act. He opposes free tuition or amnesty.

Education- Does not want to allow educational benefits for undocumented persons.  This walks a fine line with Plyler v. Doe, where the Supreme Court struck down a financing scheme to children of undocumented immigrants that denied them education. The court never explicitly held that there is a right to education under the Constitution, but it very likely that completely denying education to undocumented persons would violate equal protection.  

Romney opposes scholarships for undocumented students. He also opposes in-state tuition.

Romney does, however, support encouraging application for and increasing the number of visas for immigrations with advanced degrees in the STEM fields.  

Though Romney does not want to permit education for undocumented persons, he is fine with allowing people to die fighting for our country. For Romney, legal status would be available for border crossers who serve in our military.

Government:   

Romney wants to make English the official language.

He wants to speed up the deportation process to within 90 days.

He wants to get rid of “chain migration” or the ability of one immigrant to bring their families over. This would erode a system that is already in place.

No driver’s licenses for undocumented immigrants.

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Obama has had a negative record in office on immigration. Deportations have dramatically increased. I am hopeful, though, that once the election is over and if Obama is elected for a new term, he will be able to buckle down and follow through on his first term campaign promises to reform the immigration system.  It is convoluted, backlogged, unfair and illogical; it needs a major overhaul. Last year’s order to focus enforcement on criminals and his largely positive past voting records makes it likely that he is moving in that direction. With the hubbub of mud slinging campaign tactics and media frenzy behind him, and hopefully a more cooperative Congress, his chances of following through in the second term are much higher.