Immigration Savvy

Obama's New Waiver Procedure for Immigrant Visas

2012-01-07T11:57:00.000-06:00

There is much excitement and confusion about the Obama administrations proposed new rule on how waivers for unlawful presence, filed by immigrant visa applicants, are processed by the U.S. CIS. This will discuss the change in what are hopefully clear terms, to help readers make decisions about whether to pursue such a waiver.

First, it's important to understand how the law is structured to give the reader a context into which this new proposed rule can be sorted. Federal laws are made by Congress, and signed into law by the President. The federal immigration law is called the Immigration & Nationality Act ("INA"), and can be found here. It is a God-awful mess of a law, because it is a hodgepodge of at least 10 different pieces of legislation, through 10 different Congresses. Picture a once nicely patterned quilt (the 1952 Act); now picture that same beautiful quilt cut-up, reassembled, with different colors, shapes and sizes of quilt added - that picture is what we have to work with in our current immigration law in formulating a policy that works. Which is one reason why it doesn't. It has been said that the only more difficult piece of legislation to understand in American law is the tax code. I would argue that the tax code is second to the immigration law, and many, including some federal judges, would agree. The Executive, through its delegates, makes rules to implement how the federal law will be carried out by the various U.S. agencies. In this case, the U.S. CIS proposes the rules, and the rules are called Federal Regulations ("CFR"). They are subservient to the federal statutes. What has happened with the Obama proposal is that the U.S. CIS actually proposed (at the urging of the White House) a new CFR changing the way a certain part of the INA will be administered. This change carries significant impact for spouses and children of U.S. citizens for the following reasons.

Editorializing aside, the 1996 immigration legislation, known as IIRIRA, added certain ground of inadmissibility to the existing INA, under the now-existing Sec. 212 of the INA. These grounds of inadmissibility are also known as 'bars', because they essentially define groups of people, who even if otherwise eligible to immigration (with a green card), cannot, because of their past criminal or immigration violations. Two of the added grounds are for potential immigrants who accrued 'unlawful presence' in the U.S. for certain lengths of time, and left the U.S. Here is where it gets complicated: for the spouse of a U.S. citizen, applying for a green card, these bars don't matter if the foreign national is eligible for adjustment of status - that is, applying for their green card while remaining in the U.S. But not everyone is eligible to adjust status, including a large group of people who entered the U.S. without inspection (illegally). Those folks, no matter whether they are married to a U.S. citizen, can only get their green card by leaving the U.S. and engaging in what is called consular processing in their homeland. To do so, they must first leave the U.S., and if they've been in the U.S. unlawfully for more than 6 months, they will need a waiver to re-enter. Those waivers are tough to get, because they require a showing of extreme hardship to their U.S. citizen spouse if the waiver is denied.

Waiver applications are a bit of an art form. They require a sound strategy of understanding what the law requires through analyzing existing precedential decisions, as well as helping an applicant assemble the necessary evidence to support the claim. The quality of the lawyer completing the waiver is directly proportional to the chances of success. The waiver has to stand out from the thousands of others the immigration officers see. There has to be a legitimate theme, supported by the evidence, and argued within the existing law.

Under the existing regulations, which the Obama White House and the U.S. CIS has proposed to change (the proposed regulation is here) the way waivers are processed. Instead of having to travel to one's homeland, apply for the visa, and then apply for the waiver separately - a process that leaves families separate for months at a time, even when the waiver is granted - the applicant will seek the waiver in the U.S. before leaving to have the green card granted in their homeland. In other words, they will leave the U.S. with the waiver in hand, and with a certainty of returning. The DHS's own summary can be found here.

In summary, the new rule will accomplish the following:

1. Waivers of inadmissibility, including those for the three and ten-year bars, will be applied for by the foreign national in the United States, before having to leave for the visa issuance;

2. The new rule does not change the permanent bars for recidivist immigration violators;

3. The new rule is not an amnesty of any stripe; it simply changes the procedure by rule, which is done with regard to every federal law by the U.S. CIS. It is not a departure from procedure as alleged by Republicans and restrictionists, in any way.

The new process will also not make obtaining the waivers any different in terms of the level of hardship necessary, because that threshold is established by federal law. It will still undoubtedly be difficult, and competent legal representation will continue to be essential to maximize your chances of success.

Carpenter & Capt, Chtd. has will provide waiver services to residents of all fifty states, and plans to maintain new offices for intakes in California (San Diego) Texas (San Antonio and Harlingen), Florida (Miami and Orlando), Michigan (New Buffalo and St. Joseph) and Illinois (Chicago) by the time the new rule is implemented. Stay tuned for details!

Viewing OWS Through a Different Lens

2011-10-28T11:44:00.002-05:00

This a bit off-topic, but what use is discussing immigration if there is only a shell of a country left to which people immigrate? The Occupy Wall Street movement suggests that is what we face. Like many folks in the U.S. - and now around the world - I've watched the Occupy Wall Street movement with a combination of interest, optimism (it's good to speak out), pessimism (a waste of time, particularly because the message is so unfocused), and ultimately, confusion. The image above brought it into focus for me, bad pun intended.

The image above is from Universal Studios Orlando, on a bridge in the Universal Studios section of the Park, looking at the Islands of Adventure section of the Park, where the Harry Potter theme park resides. The bridge is perhaps 30 feet long, concrete, and otherwise not noteworthy. The .50 cent trinket above was noteworthy because it begged the question of why, in a park that charges hundreds of dollars for one day for a family of four (with express passes), does it have a .50 cent lens to look through on a bridge?! The answer: because they can, and will, make money over time on that slab of concrete in a way that they otherwise wouldn't without it. One quarter at a time, they will do everything possible to empty your pockets of all currency. As they should. That is, and always has been, the foundation of capitalism.

The message being portrayed by the media is that OWS is about Corporate Greed. Corporate greed is a redundancy, by definition. It's like calling rain wet or snow cold. Corporations are supposed to be greedy. The people who run and manage corporations have a legal duty to make shareholders money. If they don't try to make as much money as possible, they are subject to legal action by the shareholders. Really. They are supposed to be greedy, so please stop with the corporate greed tag. It's naive. The real issue that OWS should focus on -because someone better, and soon - is limiting the amount of money corporations can infuse into political campaigns.

A long time ago - longer ago than I can believe - my first year Constitutional Law Professor - identified campaign finance reform as one of the most pressing issues facing our country. I heard that as my eyes involuntarily closed. It was boring stuff in my mind. How could that be the most important issue we face? As it turns out, she was a visionary.

Corporations have learned that they can increase profits by buying influence in politics by donating large amounts of money to campaigns. And both Democrats and Republicans engage in this war-chest building. Most corporations even hedge their bets on the winner, by contributing to multiple candidates. Candidates can't win large-scale elections without huge sums of money, so they need those contributions to get into office, and reciprocate the favor by protecting large corporate donor's interests. The Presidential campaign of 2012 may feature the first billion dollar campaign by both parties, taking contributions to a entirely new level.

The brilliance of our country lies in its three branches, and the separation of powers between the three: The legislative is supposed to convey the will of the majority by virtue of being elected by the majority; the judicial is supposed to protect the rights of the minority by virtue of interpreting the Constitutional rights afforded to all persons. The executive, meanwhile, runs the show.

Capitalism and our democracy used to exist in harmony. Corporate contributions, on a billion dollar scale, have changed that now by rendering elected candidates beholden to the corporations who finance their candidacy rather than the very people who cast the votes. The legislature no longer represents the majority - it often represents the corporations that finance the members' campaigns. This impacts us all - no matter your politics. Herein lies a very grave problem indeed, mostly because it is no longer a problem that can be easily fixed.

The U.S. Supreme Court recently held in the Citizens United decision that the government cannot ban
political spending by corporations in candidate elections, because such a ban violates the First Amendment, which extends to corporations. This has opened the door to nearly unlimited spending in elections, resulting in a slide that threatens our very democracy, as the four dissenters in Citizens United warned. While this is perhaps an over-simplification of the 180+ page holding, the decision leaves little room to legislate campaign contribution reform. Unless the Constitution itself is amended.

Donna Edwards and John Conyers have proposed doing exactly that. Their proposed Constitutional Amendment would read as follows:

“Section 1. Nothing in this Constitution shall prohibit Congress and the States from imposing content-neutral regulations and restrictions on the expenditure of funds for political activity by any corporation, limited liability company, or other corporate entity, including but not limited to contributions in support of, or in opposition to, a candidate for public office.
“Section 2. Nothing contained in this Article shall be construed to abridge the freedom of the press.”

The problem with passing such an Amendment? Congress has to vote for it, and most of its members won't because their largest donors are the corporations whose influence such an amendment seeks to limit. It's a vexing, and seemingly circular, problem.

The solution lies with the people. One of the great attributes we have as a people is that we have always galvanized ourselves against threats to our Country. This threat comes from within, but can be conquered. So, OWS, focus and consolidate your messages, because they all coalesce in the same place: We won't vote for anyone who bows to their corporate donors, and better yet, we demand a Constitutional Amendment assuring that Congress represents the people, not corporations. It can happen, and maybe OWS is the start. But please, stop with the message of corporations making too much money. That's not the problem; it is simply the inevitable result of no longer having a legislature that looks out for our interests.

Roll Call

2010-09-14T08:45:00.006-05:00

A recent caller, who wished to hire me, did the right thing first: He called friends in his ethnic community to get other referrals for a second opinion after eliciting mine. He told me this during a call, after we met, when he was explaining why he wished to retain me.

He asked me, "hey, I didn't know you were such a prominent guy in my community". I explained that I wasn't. I'm not prominent within any particular ethnic community. He explained that my name had come up as a suggested lawyer from several people he asked for a referral from, in order to get a second opinion. I told him it is always flattering to have my name suggested, much less on multiple occasions, when a client is looking for an immigration lawyer.

I also explained to him that we don't focus on any one or two communities, like many lawyers do. We focus on cases, period. The more difficult, the better. The more a person has been wronged, the better, because we have the tools to right those wrongs, and enjoy doing so.

He then asked, "What countries have you had clients from?" I told him, at last count, we had handled cases from 110+ countries. Thinking that over, I realized I had not added to the list I keep in some time. Here is an updated list:

Afganistan
Albania
Algeria
Antigua
Argentina
Armenia
Aruba
Australia
Austria
Bahamas
Bangladesh
Barbados
Balarus
Belgium
Belize
Benin
Bolivia
Bosnia & Herzegovina
Brazil
British Virgin Islands
Bulgaria
Burundi
Cambodia
Cameroon
Canada
Chad
Chile
China
Columbia
Congo
Costa Rica
Cote d'Ivoire
Croatia
Cuba
Czech Republic
Denmark
Djibouti
Dominica
Dominican Republic
Ecuador
Egypt
El Salvador
Eritrea
Ethiopia
Fiji
Finland
France
Gabon
Gambia
Georgia
Germany
Ghana
Greece
Guatemala
Guinea
Haiti
Honduras
Hong Kong
Hungary
India
Indonesia
Iran
Iraq
Ireland
Israel
Italy
Jamaica
Japan
Jordan
Kazakhstan
Kenya
Korea, South
Kuwait
Kyrgyzstan
Laos
Latvia
Lebanon
Liberia
Lithuania
Macedonia
Malawi
Malaysia
Mali
Mauritania
Mexico
Mongolia
Morocco
Nepal
Netherlands
Nicaragua
Niger
Nigeria
Norway
Pakistan
Panama
Paraguay
Peru
Philippines
Poland
Portugal
Puerto Rico
Qatar
Romania
Russia
Rwanda
Saudi Arabia
Serbia & Montenegro
Sierra Leone
Singapore
Slovakia
Slovenia
Somalia
South Africa
Spain
Sweden
Switzerland
Syria
Taiwan
Thailand
Togo
Tunisia
Turkey
Uganda
Ukraine
United Arab Emirates
United Kingdom
Venezuela
Vietnam
Yemen
Zimbabwe

So, what's a list like this mean? Not much probably, except that I've been very fortunate with the outcome of trying to start a practice 17 years ago, in large part because of great employees and an unbelievably supportive Partner. I've also managed to consistently find very kind and appreciative clients who pass my name to many others, in and outside of, their own ethnic communities.

Turnover

2010-07-30T08:15:00.021-05:00

As the Greatest Generation passes on - hopefully to a more peaceful existence, free of the wounds from their collective past, I think it's worth considering who and what we have replaced, and will continue to replace, that legacy with.

Oliver Eli Carpenter, my father's brother, passed away yesterday. It was for the best - he was in his 90s and in ill health. He served in WWII, as did my mother's brother, Jim Rourke, who recently passed away as well. My father, who was a B-24 pilot, has been gone for 12 years, though it seems as if he is still here in many ways. They all served - not just my relatives, but everyone of that time - and seldom talked about it. My guess is that they just wanted to leave it behind. Some things are too hard to keep with you in your every day consciousness.

Discovering the frailties of human nature - the thinness of the membrane that separates our brilliance (love) from our nemesis (hate and fear) - takes a toll on one's ability to remain optimistic and to enjoy all that life has to offer. That generation sacrificed everything in this way when they chose to literally save our world from Hitler. They sacrificed their lives, sometimes by dying terrible deaths, and more often by losing the core of human happiness - optimism - while spending the rest of their lives trying to find it in other places. That optimism was snatched away in places called Omaha Beach, Sicily, the Ardennes and Berlin. Saying thank you is so completely insufficient. It is one of the few situations where words fail, and deeds must instead adopt that role.

Several generations have lived since that time, but as that Generation passes on, memories of it will ebb away. Our world has changed radically. We still fight, we still lose too many young men and women. But domestically, here in the U.S., we have changed as well. We are all busier than we'd like to be. We all think life is terribly difficult, and it is, but not relative to what our society has weathered in the recent past. What will the legacy of the existing generations be? I have no idea, but I hope it includes finding a solution to the vexing problem of immigration, and that the solution includes healthy doses of common sense, sympathy tempered by realism, and a perspective that welcomes a new generation of foreign nationals who want to contribute with their unmatchable optimism, even in the face of the horrors so many grew up with in their homelands.

Hardship indeed breeds character, and that is why immigration is so important. We are soft. Most immigrants are not. They'll pick grapes in 105 degree heat, 6 days a week, for $60 a day, and not complain. They'll start businesses because they can, and work themselves silly to succeed. Not all, mind you, and those that don't respect the opportunities and laws we offer, should go home or not come at all. But understand this: Most immigrants have a mindset very similar to the Greatest Generation. They believe they have been called to do something better. They believe the hardship from which they come, to find a better life, is a lifelong journey that starts with hard work and ends with hard work. They have learned firsthand that unfairness, horror, fear and hate never leave your soul, but can be suppressed by building new memories and legacies.

In the spirit of replacing Robert and Oliver Carpenter, and Jim Rourke, and all of the rest of that generation, here's a roll call of the fabulous additions to our generations that have been added recently with our office's help:

D., and Indian national U.S. citizen, recently had her petition for her husband approved. He lives in India apart from his wife and U.S. children. The U.S. CIS misread the law and denied her petition, despite the couple having children together. The Detroit Field Office of the U.S. CIS not only botched the law, but secretly taped a conversation between Patricia Capt Carpenter and her client at their offices, and cited that conversation in the erroneous denial. We did not take kindly to either the misapplication of the law, or the abrogation of lawyer-client confidentiality. Two U.S. citizen's Fifth Amendment rights to be free from unreasonable searches (secret taping) had been abridged. We told them, as well as others, loudly and persistently. They apologized and approved the petition. We have requested a Congressional hearing on the practice of taping lawyer-client conversations secretly, and Senator Levin's office has opened an investigation.

Family-based permanent residence was granted to nationals of Trinidad, Ireland, the UK, India, Pakistan, Niger and Mexico.

Three difficult waivers of inadmissibility were granted, and three fathers were re-united with their families by having the U.S. Consulate in Mexico grant permanent resident status. Contrary to popular opinion, marrying a U.S. citizen and/or having children in the U.S., gives you absolutely nothing. Any person who entered the U.S. without inspection forfeits the right to stay in the U.S. and acquire permanent residency or any other status. For those that entered without inspection, their road to permanent residency is as arduous as it is uncertain. A Mexican national must first have a petition approved for the benefit, but then visit the U.S. Consulate in Juarez, Mexico (currently the most dangerous city in the world), to apply for the issuance of the green card. This, in turn, can only be accomplished by applying for a waiver of inadmissibility, because Section 212 of the Immigration and Nationality Act poses a ten-year bar to re-entry for anyone unlawfully present in the U.S. for more than one-year who has left the U.S. The waiver requires a showing of extreme hardship to the U.S. citizen spouse. Waivers are hard to come by - Brian Sather procured one by offering two Licensed Clinic Social Worker reports and thoroughly briefing the law. Two of the three waivers were granted in less than four months.

Thanks for reading. RIP Oliver.

Common Sense

2010-06-22T19:52:00.009-05:00

The following is a mostly true account of a recent case handled by Robert Carpenter and Brian Sather, both of Carpenter & Capt, Chtd.

M grew up in a poor Mexican town. It was the kind of place people fled for a better tomorrow when they could; for themselves, but especially for their kids.

He became a permanent resident in 1993. M married a woman he loved deeply ten years later, but only after he had a good job and house in the United States. He wanted to provide for her, and prepare for raising a family.

He remembered where he came from, including his arduous journey to the United States, in search of a father who'd abandoned him at a young age. His journey left him in south Texas in a place called the Rio Grande Valley. The locals call it The Valley.

The Valley is hot. It is surrounded by desert. The inhabitants are nearly all of Mexican descent, which becomes important to M's story.

M's life in the U.S. Was good. He worked long hours, sometimes 16 a day. But he didn't mind because he was giving his family a miraculously better life than he had known as a child.

In 2007, he traveled to Mexico to see an ailing relative. He was pulled out of the immigration line at O'Hare, and detained for a most improbable arrest in 1995, 2 years after he became a permanent resident.

He shook his head in disbelief when he was arrested at O'Hare. He recalled that in 1995, while visiting The Valley, an individual approached him at a gas station and asked for help. The man was haggard, hungry and needed a ride. He was with three other men. M didn't ask their immigration status. He saw them as people in need, just as he was when he arrived in the U.S. several years earlier. A man helped him then by buying him a meal and driving him to the town where L thought he would find his absentee father. M decided to do these strangers the same favor.

45 minutes later, he had been arrested at an immigration checkpoint 60 miles from the border and booked for aiding and abetting illegal aliens. He didn't help anyone across the border, and had even refused the little money the men offered for gas. He didn't think about their immigration status, though if he had, he admitted he figured they had just made the same journey as he had several years before.

He pled guilty and was sentenced to 14 days in jail. His record was spotless since.

Now, the government intended to strip him of his green card and deport him for his crime 12 years earlier.

He cried softly during his bond hearing, where he appeared via video from a maximum security facility. His wife and children were in the gallery during the hearing. I remember because the judge allowed the children to come up to the bench to see their father on the tv monitor after the hearing. They cried openly when they saw him, and he blew them discrete kisses.

Bond was granted, and he was released, much to the relief of his employer, who was losing thousands of dollars a week because of his absence.

I met M in my office after he was released, with his wife. They were a lovely couple. Humble, affectionate, apologetic, responsible and very kind. They wondered how this could be happening to them.

My office set to work on the case. We contested everything we could, but quickly learned that transporting an illegal alien knowingly (even without direct knowledge - that is, if the transporter should have known) is the same as smuggling someone across the border for the purposes of the removal ground at issue. We fought on, arguing the law in motions and in court. We eventually sought, and procured, an agreement from the government that L should at least be able to pursue an old, expired form of relief called 212(c), that essentially could be used to excuse a removable offense.

M's hearing was today. He explained to the judge that he did what he thought was right by helping the men, but wouldn't do so again without finding out if the people he was helping were legal. A sad pause overcame the room when he said this.

Immigration Judge Carlos Cuevas granted the relief, and M's dream of a better life lives on, despite the poor judgment of the DHS officials who tried to remove him from the U.S.

I often wonder what happened to common sense. I believe a shred of it was salvaged today by a judge who was concerned, in equal parts, with common sense and fairness.

What Do You Believe?

2010-04-22T18:34:00.022-05:00

The following is a mostly accurate re-enactment of a client interview that is actually a conglomerate of several conversations I've had with clients over the years. It is not a direct reflection of any one client, and gives no information about any case I've handled.

A prospective client recently asked me, "So, are you Italian, English....what"? I thought about the question for a couple of seconds, and I obviously knew "what" he was in terms of ethnicity, so fair is fair. "Irish", I said.

"100%"?, he continued.

"Probably not, since I am American by birth. But 3 of my 4 grandparents were born in Ireland, so I guess that makes me pretty Irish".

He shook his head, pondering whether to hire this Irish immigration lawyer, or to keep shopping. "The Irish are tough", he said. I didn't respond. "You tough"? he asked.

"Look, I'm not sure where this will get you. You want to know that I'll fight for you, and I will". He shook his head some more, not convinced.

"Well, I know a few people high up at DHS, and they say you're a handful. They say you are who they'd hire for themselves in a jam. But now that I'm here, you smile; you're straight-forward and just a normal guy. You don't seem tough".

I thought to myself, maybe I should hit him with a right hook. That might convince him. I decided explaining that to the Bar might prove difficult.

I instead explained that yes, I fight hard for my clients. Hard, but fair. And that I appreciated the referral from ICE, whoever it was. Always good to have the enemy looking out for you.

He wasn't done, unfortunately for me, because three weeks later, I still think about the rest. Good thing for this free therapy.

"Do you believe in God"?

Ugh.

I didn't want to answer the question, and was now getting irritated. Was he going to try to convert me?

What I believe or don't believe was none of this guy's business. Or.......was it? Our views of the world are irretrievably bound to our beliefs, especially whether we believe that our last breaths are really the end of our existence, or just a bridge to a new one. The answer to that one question reveals much about a person, though rarely in the sense of 'good or bad', unless you're the judgmental type. I'm not. He might be on the other hand, I thought, not much caring.

I have plenty of work to do, and don't have to justify my religious beliefs to a prospective client to get new work. I was leaning towards not answering.

I told him it was none of his business.

He persisted, "Of course it is. You are what you believe. If I lose my case, I will be killed. I need to know what you think about dying.

Long pauses before responding to people are often equated with uncertainty. I usually don't pause for long to answer clients' questions. This time, I did.

"That's a cliche, but what I will tell you is that I grew up Catholic. The kind of Catholic I grew up as -and there are many kinds of Catholics- was the social justice kind. My parents were always doing something for someone who was in need. They had 8 kids, and made room for foreign exchange students. They gave what little they had left over at the end of the month to others. My father argued with Senator Dirksen about the poll tax, and how it was simply a way to assure that blacks wouldn't vote. I have those letters, and read them now and again, because that tells me where I get my bend towards fighting for those without a voice".

Surely that would satiate his curiosity.....As if.

"You're a good lawyer. You answered the question without answering the question", he replied, semi-accurately.

I reconsidered a left, right combination. Or maybe a straight jab wouldn't abridge any ethical cannons.

I settled on answering his question the best I could. I told him my beliefs were mine to keep to myself, but that if he had to categorize me, yes, I was Catholic. I told him I believed in God, but not in the sense that my religion, or even my God, is the only correct one. I believe that any religion that has a delusion of exclusivity in their God and system of belief being the one and only was victim of the earliest form of propaganda, and usually that propaganda had very little to do with real beliefs. It was nearly always about power. And that includes the Catholic church.

I wasn't sure if I offended him, or surprised him, and didn't really care. I was annoyed. With him, but mostly for not having the conversation about what I believe, and what I don't, with myself more often. My world view is so much better when I think of myself dead and buried, or as ash, in the near future. I might live a day more, or a decade more, or 4 decades more if I'm lucky. Any way it comes out, it's happening fast. That much is for certain, and the legacy each of us leaves behind becomes much more preeminent in our psyche when we think of that reality. My legacy? Who knows, but part of it will be as a tough sob who fought for immigrants, because no matter what God you pray to, the underdog deserves a chance at getting his or her fair shake. And, perhaps as a bonus, the God I believe in will be pleased by that commitment.

C&C Halts Illegal Deportation with Successful Habeas

2010-04-12T14:48:00.006-05:00

Carpenter & Capt recently filed a habeas corpus petition against the United States Department of Homeland Security and U.S. ICE, on behalf of a man the government had scheduled for removal pursuant to a removal order that did not exist.

The man had been told to report for removal on April 6, 2010 pursuant to an old voluntary departure order against him entered in 1999. The man explained he had left, on time, pursuant to that order. The ICE agents refused to honor the evidence of his departure, including a stamped form from the U.S. Embassy in his homeland. They claimed it was fraudulent.

Robert Carpenter filed a habeas corpus petition in the United States District Court for the Northern District of Illinois, and the case was assigned to the Judge Wayne Anderson.

The habeas petition argued that the court had jurisdiction, notwithstanding the REAL ID Act's provisions that stripped federal district courts of jurisdiction in the vast majority of immigration cases. The petition also produced a statement from the client's own Embassy, authenticating his passport that was issued in his homeland within a week of his claimed departure. ICE had maintained the passport could be fake. It was not. The suit also contained copies of his departing airline tickets, with baggage claim receipts, a bus ticket within his country of origin, a baptismal certificate and marriage certificate, all verifying that he left as claimed.

The matter settled shortly after an initial status appearance in front of Judge Anderson in Chicago, with the admirable help of the United States Attorney's Office. The attorney assigned to the case very professionally evaluated the evidence and concluded that the man had in fact left the U.S. and that no removal order existed.

The man, along with his five U.S. Citizen children, are grateful for the outcome.

Does Immigration Increase Crime Rates?

2010-02-25T08:36:00.015-06:00

Anti-immigration activists often sound the alarm of lock your doors (and lock and load), because the immigrants are coming! Sorting through data on the subject is frustrating at best. Most sources have an agenda - either because of their ideology, funding or both.

I try to present objective facts in this blog, and will continue to do so here. My agenda? I don't have one. Whether I represent immigrants for a living or not is largely irrelevant, because, first, the vast majority of our clients have never committed crimes. Aside from that, I frankly don't like people who commit crimes, no matter whether they are immigrants or not. They're selfish, lazy, and generally, a pain in every one's rear side. Do I profit from immigrants who commit crimes? Usually not, because most are not eligible for any relief once they are convicted of wrong-doing. Having said that, I do defend, and profit from some immigrants who commit petty crimes (misdemeanors that are non-violent in nature) and are eligible for relief that Congress has authorized. But, whether immigration causes crime is an issue that is disconnected from that small part of my practice. If it does, so be it - and if so, Congress should enact even tougher laws barring immigrants from staying in the U.S. If it doesn't, then a whole bunch of folks are lying.

What I equally despise is slanting facts.

Steven Chapman wrote an interested op-ed piece in the Chicago Tribune this week on the subject, called Porous border not so scary. It appears here. The facts it sets forth are fascinatingly different than what you usually see in the press, and focuses on the huge wage of immigration that occurred as a result of the 1986 in the wake of President Reagan's signing of amnesty into law. It allowed nearly 3 million undocumented immigrants to become permanent residents, many of whom eventually became citizens. The merits of the program creates a firestorm or controversy, and is not what this post is about; rather, Chapman alludes to it because if immigration creates crime, one would certainly expect such a huge influx of immigrants to, well, bring in a crime-wave of epic proportions.

Not so much. Since 1986, the crime rate has dropped across the board. As Chapman points out, the U.S. murder rate has dropped by 37 percent since 1986. He cites Chicago's plummeting numbers as well - homicides last year were down to 460 from 747 in 1986. Rape has dropped 23 percent. Drunken driving fatalities are down by more than half. Sure, these rates are almost surely due to a conglomerate of factors, but clearly, immigration has not caused a spike in our crime rates.

Chapman, continues: "The phenomenon is so evident that it was even recognized in a recent article in The American Conservative — a magazine founded by the lusty nativist ("we're gonna lose our country") Patrick Buchanan. It was written by Ron Unz, who made some enemies among Latinos by pushing a California ballot initiative to sharply limit bilingual education in public schools, but who knows better than to regard Latinos as the enemy. Unz points out that in the five most heavily Hispanic cities in the country, violent crime is "10 percent below the national urban average and the homicide rate 40 percent lower." In Los Angeles, which is half Hispanic and easily accessible to those sneaking over the southern border, the murder rate has plummeted to levels unseen since the tranquil years of the early 1960s."

So, who is this Chapman? What liberal state is he from? Um, Texas. And what about that Chicago Tribune Paper - it must be liberal, right? Uh, no. The Chicago Tribune is a famously libertarian and republican leaning paper. Until it endorsed Barack Obama for President, it never endorsed any Democrat for President since it began printing in 1847. Yes, that 1847, as in, pre-Civil War. Well, Chapman must write mostly for liberal sources. Actually, not. He's written for the National Review (as in, William F. Buckley, and self described as "America's most widely read and influential magazine and web site for Republican/conservative news, commentary and opinion"), the Weekly Standard (a neocon opinion magazine), among other conservative publications.

Chapman is, at worse, a centrist, writing for a conservative newspaper. He's either seen God in his hot-toddy while discussing politics at the country club and turned lefty, or he's telling the truth.

More Patting Ourselves on the Back

2010-01-22T14:22:00.008-06:00

Since the last post, Carpenter & Capt has helped clients prevail in more than two dozen additional immigration cases in front of the U.S. Department of Homeland Security, the Executive Office of Immigration Review (Immigration Court) and the Board of Immigration Appeals. The victories were on behalf of nationals of India, China, Taiwan, Poland, Canada, Japan, the United Kingdom, Ireland and Pakistan, among others.

This group of wins included marriage-based permanent residency cases, I-751 petitions to remove the conditional basis of marriage-based visas, naturalization, employment-based visa petitions, deportation (removal) defense, and appeals of removal orders. The marriage-based cases were decided after interviews by the U.S. CIS in Chicago, Detroit, and Milwaukee.

One approval was for a duplicate I-130 filed for a client seeking re-adjustment of status in front of an immigration judge, because the permanent resident (and spouse of a U.S. Citizen) faces deportation unless the judge granted this unusual remedy prescribed by precedent decisions. The interviewing officer at the CIS looked at Robert Carpenter after the interview began and said, "So counsel, how is it your clients are applying for a green card when he already has one?" Expecting the question, Robert explained the process and gave the officer copies of the lead cases allowing the process. The officer consulted with DHS attorneys and issued an approval a short time later.

The firm also prevailed in a deportation case where the defense was cancellation of removal under the Violence Against Women Act (VAWA). Several elements had to be shown, including the abuse, the bona fide nature of the underlying marriage, and extreme hardship to the foreign national and/or the children if the victim were deported. We were able to accomplish all through the presentation of police reports, medical evidence, detailed affidavits and testimony. The victim is now a permanent resident of the United States.

On the scientific end of the spectrum, we obtained an extraordinary ability visa approval in the EB-1 category for a nanotechnologist, specializing in materials science. The beneficiary self-petitioned (that is, an employer did not file the petition) - a process through which very few visas are granted each year. The case entailed a submission of more than 400 pages, with a detailed discussion of the technology and benefits at issue. The materials established that the beneficiary is an extremely rare talent, whose abilities would prospectively benefit the United States in a variety of ways, not the least of which are various applications that produce greater efficiencies in power usage and other greener products. Our position was verified by affidavits from several government agencies, and a bevy of other leading scientists from across the United States.

Brian Sather, the firm's newest addition, and a lawyer with 10 years of experience of his own, scored a solid win on a case in front of the U.S. CIS in Chicago. The client had applied for permanent residency on his own, after obtaining asylum. He traveled outside of the United States without special permission (advance parole) from the government - an action that prompted the U.S. CIS to threaten to deny his application for permanent residency. The Notice of Intent to Deny the person's permanent residence was predicated on a regulation, that stipulates an applicant who leaves the U.S. without permission automatically abandons the adjustment of status application; Brian correctly argued that the automatic abandonment provision only applied to those seeking to adjust under Section 245 of the Immigration & Nationality Act, not asylees who adjust under Section 209 of the Act. He offered a DHS Memo to support his position, and the Officer had no choice but to reverse course and approve the case.

Finally, the Board of Immigration Appeals ("BIA") reversed a denial of a Chicago immigration judge on a motion to reopen that had already been remanded once by the BIA and the Ninth Circuit Court of Appeals. The issue was whether the respondent (person the government was attempting to deport) was properly notified of his deportation hearing 20 years ago when he was a minor. The evidence showed that his uncle was an abusive alcoholic who couldn't manage his own life, much less be responsible for bringing this child to court. The immigration judge, however, said the wording of the statute did not require the government to show that the adult was responsible - it only required that an adult was served with the notice of hearing. We argued that the wording obviously required more. The brief read in part,

"INA §242B, 8 U.S.C. §1252b, was enacted in order to create more substantial notice procedures to increase the probability of attendance at hearings by respondents, thereby satisfying Judges that the due process rights of aliens were met before entering in absentia orders. See Iris Gomez, The Consequences of Non-Appearance: Interpreting New Section 242B of the Immigration and Nationality Act, 30 San Diego L.Rev. 75, 85 (1993). The spirit of this provision included the critical safeguard to protect aliens who did not receive adequate notice of allowing an alien to file a Motion to Reopen “at any time if the alien demonstrates that the alien did not receive notice in accordance with subsection (a)(2)…” INA §242B(c)(3)(B). Juvenile aliens were entitled to additional notice under the INA and attendant regulations that were operative at that time. The regulations expressively provided that a “responsible adult” assumed both custody and responsibility for a juvenile’s release into that adult’s care. See 8 CFR §242.24. Then–INA §242.24(b)(4) stated that where an adult agreed to care for the juvenile’s well-being and ensure the juvenile’s presence at all future proceedings before the INS or an Immigration Judge, that adult was required to swear in an affidavit that he or she was capable and willing to care for the juvenile’s well-being. Then–INA §242.24 as a whole required that an adult to whom a juvenile alien was released was not only responsible for caring for the juvenile, but also for ensuring that the juvenile kept his obligations to the court. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1156 (9^th Cir. 2004). Juveniles were therefore presumed unable and ill-equipped to appear at immigration proceedings with out the assistance of a competent adult."

The Board agreed and reversed the immigration judges denial, reopened the case, and remanded it to the immigration court for consideration of the client's spousal-based permanent residency application. The family is relieved to have a chance to remain together in the United States, where the client has lived for 30 of the 40 years of his life.

Recent Wins

2009-10-15T09:40:00.010-05:00

Carpenter & Capt has enjoyed significant victories on behalf of foreign nationals from Mexico, Canada, Poland, the UK, Kyrgyzstan, Poland, Morocco, Jordan, Peru, India, Lithuania, Venezuela and Germany in the last 60 days. The approvals ranged from marriage-based visas to embattled naturalization and adjustment of status cases, which required federal court intervention. The breakdown of the cases is as follows.

Two involved long-battled removal defense cases in front of the Chicago EOIR. In both, retiring Judge Glenn Bower granted the relief sought by Robert Carpenter. The first involved a long-time permanent resident convicted of a misdemeanor (trespassing) that the government alleged comprised a removable offense because it involved 'moral turpitude'. The matter was briefed on several occasions over the years; the IJ held that the conviction did not involve moral turpitude, citing a case offered in Carpenter & Capt's brief written by the late John Mug in 1996. Mr. Mug was an associate for Carpenter & Capt at the end of his career, and added so much to our office, both in terms of ability and intellect, as well as his levity of spirit in fighting for our clients. The case he cited was Matter of G, 1 I&N Dec. 403 (BIA 1943). It isn't every day that a winning citation comes from the first volume of the I&N series! The case was terminated on our re-filed Motion to Terminate.

The other removal matter involved another long-time permanent resident (20+ years), who had 5 U.S. citizen children, and a U.S. citizen wife. He was charged with being removable for a conviction for unlawful possession of a handgun nearly 25 years ago. He sought to re-adjust his status to that of a permanent resident, and successfully did so after a five year battle in immigration court. He and his family are extremely pleased to be able to continue educating their now college-aged kids and run their restaurant businesses.

Another victory occurred with a naturalization appeal for an applicant who was arrested on suspicion of shoplifting years ago. The evidence was so thin at the time of the arrest, the state refused to prosecute, and released the applicant without charge. The government denied the applicant's naturalization application on the grounds that the arrest negated the 'good moral character' required by the statute. The problem with the denial was that without a conviction, a mere arrest for a misdemeanor without a charge, much less a conviction, could not be a legal basis for denying a naturalization application. A supervisor at the Chicago office of CIS agreed, and after reading our brief, granted the appeal.

Other notable victories included very old labor certification cases/employment-based petitions that were approved after years of waiting for the slow-moving bureaucracy of the Departments of Labor and Homeland Security to come to fruition. The approvals were for positions ranging from a Food and Beverage Manager at a well-known country club, to a Mosaic Tiler who worked as a contractor on the homes of the rich and famous, to a psychiatrist specializing in troubled teens. Finally, the firm received an approval for a professional baseball manager with exceptional ability. The MLB team and the manager are thrilled.

We also received an approval on a highly contested case involving marriage-based visa for a Jordanian national. It deserves it's own blog entry, as its winding history involved multiple agencies, and overt discrimination and prejudging, in ways that should be as foreign to this country as they are offensive. Rather than transition to the negative aspects of that case now, the approval, after extensive litigation and travels to Florida for an interview with the DHS, is welcome news. More on it, and other significant cases, including fabulous work by Brian Sather, the newest addition to our office, next.

AAO Reverses CIS Denial of Professional Manager

2009-06-12T14:16:00.006-05:00

We recently received welcome news of an appeal having been granted by the Administrative Appeals Unit of the U.S. CIS. The case involved a permanent resident petition in the EB-2 category for an 'exceptional ability' worker - in this case, a professional baseball manager for a Major League affiliate.

The government originally denied the case, holding that the manager's abilities weren't exceptional because his record was perhaps only in the 70th percentile of MLB managers. On appeal, we argued that the relevant pool of workers against which his record, salary and other objective signs of achievement should be measured, was not MLB and affiliate managers; we instead argued his abilities should be measured against all professional baseball managers - those who earn a living managing the game of baseball. We calculated that pool to include more than 550 managers at the major college, minor league and MLB levels. Amongst that pool, the applicant was surely 'exceptional' as that term has been defined by the law, in terms of his record, but especially because he was turning out MLB stars with regularity.

Our brief stated, in part,

The Service has been chastised by the courts and Board with regard to misapplying the extraordinary ability level for dismissing Nick Price’s petition, as well as NHL players Stu Grimson and Craig Muni’s petitions for EB-1 status. See Matter of Price, 20 I&N Dec. 953 (BIA 1994)(where the Board found that his ranking of 10th internationally on the PGA tour qualified him for EB-1 status; as an aside, Mr. Price has turned out to be nothing short of a legendary PGA player); Grimson v. INS, 1995 WL 134755 (N.D. Ill. 1995)(where the Court remanded the case to the NSC with instructions on how to apply the EB-1 standard after it denied Stuart Grimson’s petition; as an aside, Stu Grimson became an icon of Chicago defensemen in the 1990s, both as an enforcer and as a checking, stay-at-home defenseman); Muni v. INS, 891 F.Supp. 440 (N.D. Ill. 1995)(where the Court, after the NSC denied an EB-1 petition, found that Craig Muni was a very good professional hockey player considered to be at the top of his field, as he was voted as the top hitting defenseman and most underrated player at his position). It appears that your office is in danger of making the same mistakes with respect to the EB-2 standard operative here....

The government, to its credit, understood and accepted the argument, reversing the Regional Service Center that had issued the denial.

Lawyering at every level, and perhaps especially within immigration law, requires thinking about problems in new ways. Anyone can research a question and regurgitate legal holdings. Changing the perspective of an analysis is hard work, but nearly always necessary, to successfully represent immigration clients against the government. This decision reflects that reality.

Now Tweeting

2009-06-12T12:06:00.003-05:00

I found it frustrating to update this blog so infrequently; that infrequency was due to the fact that blogs are best suited for in-depth writing, which of course, requires time. I promise, and swear, under penalties of perjury, that I will write more frequently the remainder of this year and beyond; in the meantime, follow us on twitter.com. We are chicagoimmatt. http://twitter.com/chicagoimmatt. I'll be posting snippets about immigration developments and firm results (anonymously, of course) each day. Happy reading!

Persecuting Those Who Help Immigrants

2008-07-09T22:28:00.004-05:00

We've all heard disturbing stories of over-reaching, over-zealous government actions in the last decade or so. It is perhaps the first time in many, many generations that ordinary, law-abiding citizens have reason to fear their own government. Especially if you happen to help immigrants.

First, there was the story of Brandon Mayfield, an immigration lawyer in Portland, Oregon, whose life was turned upside down when he was arrested on terrorism charges by the FBI. Only he wasn't a terrorist. He was simply a hard-working immigration lawyer.

Now, the government has decided to indict and convict a landlord. That's right, a person who owns a building in which undocumented foreign-nationals happen to reside.

The American Immigration Lawyers Association reports as follows:

US District Court Rules in Favor of Kentucky Landlord

Cite as "AILA InfoNet Doc. No. 08070968 (posted Jul. 9, 2008)"

On 06/27/08, William Jerry Hadden, a Kentucky landlord who faced 62 charges in US District Court of renting apartments without verifying the immigration status of the future tenants, was found not guilty on all charges.

The trial is thought to be the first time the federal government has prosecuted a landlord for renting to undocumented immigrants, defense attorneys said in court filings.

Hadden's defense attorneys steadfastly maintained his innocence and claimed that the federal government was twisting the intent of harboring laws, which they say were intended to target human traffickers or employers who are trying to hide their work forces. They further noted that it is not illegal to rent to undocumented immigrants, and Hadden therefore had no legal obligation to check any tenant's immigration status.

The court agreed with the defense and ruled that there had to be evidence that the defendant intended to violate the immigration laws by concealing or hiding tenants.

Fortunately, our judiciary has said enough. But that doesn't stop the government from continuing to try to broaden its reach and punish those who help immigrants.

All of this begs the question, what in the world have we become? And, is it time for a change yet?

Location, Location, Location

2007-09-25T19:27:00.000-05:00

A simple, relatively unspoken reality exists within immigration law. Location can be the difference between winning and losing in removal proceedings, no matter whether the case involves an asylum claim, cancellation of removal, or any other asserted defense. TRAC, an agency dedicated to monitoring immigration judges' rates of asylum denials, recently published decision statistics for every immigration judge in America. You can check your immigration judge here.

The statistics tell a disturbing story. The story is one of preference to people who are lucky enough to live in certain cities. The often random fate of geographic location should not play a prominent role in their odds of success on an asylum application. But it clearly does. Consumers of immigration legal services, or attorneys looking to hire another lawyer to help a client in need of those services, can sometimes better their chances of success by simply.........moving.

There is no law or regulation that prevents a person from moving to take advantage of a better forum in the EOIR or agency context. A forum can increase the odds of success in several ways - immigration judges may be more disposed to granting application for relief, or better law might exist on a particular issue in a given jurisdiction. The latter is true because while immigration law is indeed federal, it is not uniform. There are many instances where federal appellate law differs from Circuit to Circuit in the morass of tangled laws and regulations that make up the black letter immigration and nationality law in the U.S.

The most favorable Circuits are the Ninth and Seventh, in that order (depending on the issue at hand). The lesson? If you live in the Midwest, consider moving to Indiana, Southwest Wisconsin or Illinois to avail yourself of the Seventh Circuit decisions and of the Chicago Immigration Judges, who are far more likely to grant an asylum case (and every other kind of relief in my experience) than the very conservative immigration judges in Detroit. Similarly, the Sixth Circuit, while showing signs of following its sister circuit in Chicago, is historically much less apt to remand a case to an immigration judge on appeal.

Immigrants often feel helpless in the face of removal efforts instituted by the government. Rarely is that true. Relocating to a favorable jurisdiction may make it more likely that relief is available.

The Dream Act

2007-09-06T21:23:00.000-05:00

Mark Brown, a columnist with the Chicago Sun-Times, recently wrote about the plight of many school-age kids who have no status. They typically entered the U.S. at a young age with their parents.

No matter your position on relief for foreign nationals who are in the U.S. unlawfully, it is difficult to argue that children who came with their parents unlawfully should suffer the consequences of those actions. Even to those who would argue they should go home, I'd say this: We need the ideas of bright, ambitious young people, no matter where they happen to be born. Our country thrives on that influx of intellect and diversity. It always has.

I was asked to comment on Mark Brown's article on WGN Radio in Chicago, and enjoyed the live conversation. I tried to give a backdrop to the discussion that ensued between host John Williams and listeners. I explained that the inequity of imposing the penalty of having no chance to regularize a teen's status, thereby preventing her from attending college, is exactly what The DREAM Act legislation seeks to remedy.

Call your Senator today to voice your support for this bill.

Full Speed, uh, Reverse!

2007-07-18T09:08:00.000-05:00

The US CIS has reversed course on refusing to accept EB-based adjustment of status filings in July. This is welcome news for many people who faced having to leave the U.S. because of the broken promise caused by the CIS's shutting down the EB categories an hour into July.

The agency will now accept all EB filings that were current under the original July Visa Bulletin until the close of business on August 17, 2007. The extra time has been allotted to atone for the previous closure, which the agency evidently decided was not a defensible action when faced with litigation.

More information will be provided later.

Miscellaneous Observations

2007-07-05T20:43:00.000-05:00

Immigration reform is dead for the time being. The prospects of a new law seemed good - so long as public opinion was in favor of legislation. But that changed at about the same time the immigrant rights demonstrations were held. Public opinion suddenly swung the other way, and not surprisingly, Senators began reversing course, which is what they are supposed to do. They are, after all, supposed to represent the majority's view. The Constitution represents the minority's interest, and that is the ying and the yang of our brilliant system.

The sudden change in the political wind should come as no surprise. The 12 million undocumented foreign nationals in the United States were on the precipice of being given a gift. A chance at becoming legal in the greatest country on Earth. The phrase "don't look a gift horse in the mouth" comes to mind. I'm not the only one to question the wisdom of holding demonstrations on the eve of getting what they wanted. The demonstrations were a bad idea.

I understand this view will not be popular with many of my readers, clients and colleagues. Sometimes the truth hurts.

******
Maribel & Juan, detailed in the last entry, recently appeared for Juan's first removal hearing. The removal proceeding was terminated. This is a good thing that happens once in a blue moon, usually when someone fights back and/or the government's actions are indefensible. Updates will continue.

******

You'll never guess who reads this blog quite often. The Department of Homeland Security. I am not sure if I'm more frightened by the fact that a national security agency doesn't mask its IP address, or more irritated that they evidently don't think I'm smart enough to track that stuff. Either way, welcome DHS agents. You are the 10th most frequent server to visit this blog.

*****

Speaking of wondering what we are up to, the employment-based priority date debacle is front- and-center on our plate, as it is with every immigration lawyer's office of late.

The EB-3 category, which includes professional workers, has been backlogged since October 2005. This means that foreign nationals for whom labor certification has been filed and certified, have had to wait for their priority date (their place in line) to become current before pursuing their green card. That all was to change on July 1, 2007, according to the June 2007 Visa Bulletin, published by the State Department. The numbers were current, meaning anyone with labor certification done could file for adjustment of status and remain in the U.S. until the application was adjudicated. The CIS's own regulations prescribe this procedure.

The CIS announced, at 10:30 a.m. cst on July 2, 2007, that it would not honor the system that it had set up. The State Department received so many applications for adjustment of status over the weekend that at 9:00 a.m. Monday, July 2, 2007, it projected all employment visas to be used for the rest of the fiscal year. The CIS, instead of honoring it's rules and accepting applications for adjustment of status, instead said no more would be accepted.

Some members of Congress have recognized the dangerous inequities of this development. AILA refers to it for what it is - a bait and switch move that will effect tens of thousand of law-abiding immigrants.

Our office is still filing those applications. The rejection notices will be exhibits for our suit in the Northern District of Illinois Federal District Court against the DHS for this radical departure from its own rules. AILF is planning to file suit in the DC District as well.

I'll provide updates on our suit, as well as AILF's, as both go forward.

A Cold Drink in the Desert

2007-06-15T07:00:00.000-05:00

This photo is from Red Rock Canyon, Nevada. The photo, as is true with most beautiful places, doesn't do the landscape justice. It is rugged, very arid, and extremely hot. The beauty can be deceiving. One must proceed with caution and a plan, or the environment will get the better of the unprepared.

I recently had the chance to hike a difficult route through the Sierra Madre mountains at Red Rock. That experience reminds me of a current legal dialogue the Courts and Administration have been engaged in since 9/11.

I knew Red Rock would be a difficult hike, but hard hikes are generally my favorite variety. The two guys I brought didn't know what to expect, but that was fine; we stopped at a store for supplies before setting out, and I shopped for necessities. There is really only one true necessity for a day-hike: Water.

I bought 12 one-liter bottles of water and they both scoffed. I packed my pack full of the bottles, and we headed out. Four hours later, we were walking down from the altitude across a desert plain that undulated significantly making the end of the hike very difficult. There wasn't an iota of shade. In the sun, it must have been 100 degrees. I finished my fifth liter of water, which was more than my share, but only because neither of my friends would drink water. I warned them, but to no avail. Both had trouble getting back, and one nearly didn't make it. We poured water over his head to cool him - a waste of the most valuable resource out there - just to avert disaster. He made it back after coming very close to graduating from heat exhaustion to heat stroke.

We are now able to chuckle about it, and I guarantee he'll never hike again without drinking throughout the hike. He learned that once the damage of dehydration is done, re-hydrating is painful and time-consuming, and sometimes, it's too late. We caught it just in time.

And so it is with our democracy and civil rights. It is easy to lose the fluid of liberty. An arrogant government whose unobstructed, potent rays of fear tend to sap every ounce of hydration from a functioning democracy in very short order. Returning reason to a national dialogue can take time, and sometimes, never happens. History's lessons teach us this if we'll listen.

The concept of enemy combatants is not a new one. Using it as a label to avoid Due Process with regard to civil arrests within our country most certainly is new, and strains credulity in some instances. President Bush's use of the terms to obviate the most basic tenets of Due Process in order to detain people indefinitely, without a lawyer, a hearing, and without producing a scintilla of evidence or explanation is much like setting out for a hike in the high desert without listening to the surrounding natural law.....it tempts disaster.

Fortunately for our country, we have the wisdom and the means to restore balance. The checks and balances that our Forefathers set in place are starting to reposition themselves. The Fourth Circuit Court of Appeals recently provided cause for optimism in a case about enemy combatants and Due Process. The decision is called Al-Mari v. Wright.

Al-Mari is a detainee who has been categorized as an enemy combatant by the Bush administration. He has been accused of being a terrorist, but no proof has been offered of that fact, primarily because he's been sitting in solitary for much of that time without any facts, charges, lawyers or courts in his case.

Because of another defeat to the Bush Administration's attempt to destroy Habeas Corpus in Hamdan v. Rumsfeld , the Administration orchestrated a new Congressional enactment taking away the right to Habeas. Habeas is one of the major pieces of spine holding up our democracy. It has a long and storied history, and serves to safeguard the most basic idea of freedom and liberty.

The Fourth Circuit Court of Appeals not only invalidated his detention without these basics - it spoke directly to us, and to President Bush and Attorney General Gonzalez about our Constitution. Here are some of the beautiful excepts of the opinion. The opinion itself is in excess of 80 pages, so I tried to boil it down without losing the coherent train of reasoning it invokes. The decision is like a cold drink in the desert to this lawyer:

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper....Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian...For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.

The military has held al-Marri as an enemy combatant, without charge and without any indication when this confinement will end. For the first sixteen months of his military confinement, the Government did not permit al-Marri any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence. A pending civil action challenges the “inhuman, degrading” and “abusive” conditions of his confinement.

“Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that [the Due Process] Clause protects.”Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992). This concept dates back to Magna Carta, which guaranteed that “government would take neither life, liberty, nor property without a trial in accord with the law
of the land.” Duncan v. Louisiana, 391 U.S. 145, 169 (1968) (Black, J., concurring). The “law of the land” at its core provides that “no man’s life, liberty or property be forfeited as
a punishment until there has been a charge fairly made and fairly tried in a public tribunal.” In re Oliver, 333 U.S. 257, 278 (1948). Thus, the Supreme Court has recognized that, because of
the Due Process Clause, it “may freely be conceded” that as a “‘general rule’ . . . the government may not detain a person prior to a judgment of guilt in a criminal trial.” United States v. Salerno, 481 U.S. 739, 749 (1987).

...As the Government recognizes, the Alien Enemy Act, the statute the Court considered in Eisentrager and Ludecke, does not apply to al-Marri’s case – in fact, al-Marri
is not an “enemy alien” but a citizen of Qatar, with which the United States has friendly diplomatic relations; and the Government does not seek to deport al-Marri. Therefore neither of these exceptions is offered by the Government as a basis for holding al-Marri without criminal charge, and neither is applicable here..... Among these recognized exceptions is the one on which the Government grounds its principal argument in this case: Congress may constitutionally authorize the President to order military detention, without criminal process, of persons who “qualify as ‘enemy combatants,’” that is, fit within that particular “legal category.” Hamdi v. Rumsfeld, 542 U.S. 507, 516, 522 n.1 (2004) (plurality).

The act of depriving a person of the liberty protected by our Constitution is a momentous one; thus, recognized exceptions to criminal process are narrow in scope, and generally permit only limited periods of detention. See, e.g., Jackson v. Indiana, 406 U.S. 715, 738 (1972). And, of course, the Government can never invoke an exception, and so detain a person without criminal process, if the individual does not fit within the narrow legal category of persons to whom the exception applies.In Hamdi, the plurality explained that precisely the same principles apply when the Government seeks to detain a person as an enemy combatant. Under the habeas procedure prescribed in Hamdi, if the Government asserts an exception to the usual criminal process by detaining as an enemy combatant an individual with
constitutional rights, it must proffer evidence to demonstrate that the individual “qualif[ies]” for this exceptional treatment. 542 U.S. at 516, 534. Only after the Government has “put[] forth credible evidence that” an individual “meets the enemy-combatant criteria” does “the onus” shift to the individual to demonstrate “that he falls outside the [enemy combatant] criteria.” Id. at 534. For in this country, the military cannot seize and indefinitely detain an individual -- particularly when the sole process leading to his detention is a determination by the Executive that the detention is necessary6 -- unless the Government demonstrates that he “qualif[ies]” for this extraordinary treatment because he fits within the “legal category” of enemy combatants. Id. at 516, 522 n.1.

Moreover, when the Government contends, as it does here, that an individual with constitutional rights is an enemy combatant, whose exclusive opportunity to escape indefinite military detention rests on overcoming presumptively accurate hearsay, courts must take particular care that the Government’s allegations demonstrate that the detained individual is not a civilian, but instead, as the Supreme Court has explained, “meets the enemy-combatant criteria.” Id. at 534. For only such care accords with the “deeply rooted and ancient opposition in this country to the extension of military control over civilians.” Reid v. Covert, 354 U.S. 1, 33 (1957) (plurality). Under such an interpretation of the AUMF, if some money from a nonprofit charity that feeds Afghan orphans made its way to al Qaeda, the President could subject to indefinite military detention any donor to that charity. Similarly, this interpretation of the AUMF would allow the President to detain indefinitely any employee
or shareholder of an American corporation that built equipment used by the September 11th terrorists; or allow the President to order the military seizure and detention of an American-citizen physician who treated a member of al Qaeda.

To read the AUMF to provide the President with such unlimited power would present serious constitutional questions, for the Supreme Court has long recognized that the Due Process Clause “cannot be . . . construed as to leave congress free to make any process ‘due process of law,’ by its mere will.” See Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,276-77 (1855). In sum, the holdings of Hamdi and Padilla share two characteristics: (1) they look to law-of-war principles to determine who fits within the “legal category” of enemy combatant; and (2) following the law of war, they rest enemy combatant status on affiliation with the military arm of an enemy nation.....In view of the holdings in Hamdi and Padilla, we find it remarkable that the Government contends that they “compel the conclusion” that the President may detain al-Marri as an enemy combatant. For unlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat
with United States forces anywhere in the world. See Rapp Declaration (alleging none of these facts, but instead that “Al-Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States”).

In place of the “classic wartime detention” that the Government argued justified Hamdi’s detention as an enemy combatant, see Br. of Respondents at 20-21, 27, Hamdi, 542 U.S. 507
(No. 03-6696), or the “classic battlefield” detention it maintained justified Padilla’s, see Opening Br. for the Appellant at 16, 20, 29, 51, Padilla, 432 F.3d 386 (No. 05-6396), here the Government argues that al-Marri’s seizure and indefinite military detention in this country are justified “because he engaged in, and continues to pose a very real threat of carrying out, . . . acts of international terrorism.” And instead of seeking judicial deference to decisions of “military officers who are engaged in the serious work of waging battle,” Hamdi, 542 U.S. at 531-32, the Government asks us to defer to the “multi-agency evaluation process” of government bureaucrats in Washington made eighteen months after al-Marri was taken into custody. Neither the holding in Hamdi nor that in Padilla supports the Government’s contentions here....Thus, the Government is mistaken in its representation that
Hamdi and Padilla “recognized” “[t]he President’s authority to detain ‘enemy combatants’ during the current conflict with al Qaeda.” No precedent recognizes any such authority.....Rather than supporting the Government’s position, the Supreme Court’s most recent terrorism case provides an additional reason for rejecting the contention that al-Marri is an enemy combatant.

In Hamdan, the Court held that because the conflict between the United States and al Qaeda in Afghanistan is not “between nations,” it is a “‘conflict not of an international character’” -- and so is governed by Common Article 3 of the Geneva Conventions. See 126 S.
Ct. at 2795; see also id. at 2802 (Kennedy, J., concurring). Common Article 3 and other Geneva Convention provisions applying to non-international conflicts (in contrast to those applying to international conflicts, such as that with Afghanistan’s Taliban government) simply do not recognize the “legal category” of enemy combatant. See Third Geneva Convention, art. 3, 6 U.S.T. at 3318. As the International Committee of the Red Cross -- the official codifier of the Geneva Conventions -- explains, “an ‘enemy combatant’ is a person who, either lawfully or unlawfully, engages in hostilities for the opposing side in an international armed conflict;” in contrast, “[i]n non-international armed conflict combatant status does not exist.” Int’l Comm. of the Red Cross, Official Statement

Notwithstanding this principle, we recognize that some commentators have suggested that “for such time as they take a direct part in hostilities,” participants in non-international
armed conflicts may, as a matter of customary international law, be placed in the formal legal category of “enemy combatant.” See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2115 & n.304 (2005) (internal quotation marks omitted). No precedent from the Supreme Court or this court endorses this view, and the Government itself has not advanced such an argument. This
may be because even were a court to follow this approach in some cases, it would not assist the Government here. For the Government has proffered no evidence that al-Marri has taken a “direct part in hostilities.” Moreover, the United States has elsewhere adopted a formal treaty understanding of the meaning of the term “direct part in hostilities,” which plainly excludes al-Marri. See Message from the President of the United States Transmitting Two Optional Protocols to the Convention on the Rights of the Child, S. Treaty Doc. No. 106-37, at VII (2000) (distinguishing between “immediate and actual action on the battlefield” and “indirect participation,” including gathering and transmitting military information, weapons,
and supplies). Terrorism, at 1, 3 (Feb. 21, 2005), http://www.icrc.org/Web/Eng/
siteeng0.nsf/htmlall/terrorism-ihl-210705 (emphasis added). Perhaps for this reason, the Government ignores Hamdan’s holding that the conflict with al Qaeda in Afghanistan is a noninternational conflict, and ignores the fact that in such conflicts the “legal category” of enemy combatant does not exist. Indeed, the Government’s sole acknowledgment of Hamdan in its appellate brief is a short footnote, in which it asserts that “the Court took it as a given that Hamdan was subject to detention as an enemy combatant during ongoing hostilities.” The weakness of this response is apparent.....Moreover, even were the Supreme Court ultimately to approve the detention of Hamdan and those like him, that would not bolster
the Government’s position at all in the case at hand.14 This is so because, since the legal status of “enemy combatant” does not exist in non-international conflicts, the law of war leaves the detention of persons in such conflicts to the applicable law of the detaining
country. In al-Marri’s case, the applicable law is our Constitution. Thus, even if the Supreme Court should hold that the Government may detain indefinitely Hamdan and others like him, who were captured outside the United States and lacked substantial and voluntary connections to this country, that would provide no support for approving al-Marri’s military detention. For not only was al-Marri seized and detained within the United States, he also
has substantial connections to the United States, and so plainly is protected by the Due Process Clause.

The core assumption underlying the Government’s position, notwithstanding Hamdi, Padilla, Quirin, Milligan, and Hamdan, seems to be that persons lawfully within this country, entitled to the protections of our Constitution, lose their civilian status and become “enemy combatants” if they have allegedly engaged in criminal conduct on behalf of an organization seeking to harm the United States. Of course, a person who commits a crime should be
punished, but when a civilian protected by the Due Process Clause commits a crime he is subject to charge, trial, and punishment in a civilian court, not to seizure and confinement by military authorities.

We recognize the understandable instincts of those who wish to treat domestic terrorists as “combatants” in a “global war on terror.” Allegations of criminal activity in association with a
terrorist organization, however, do not permit the Government to transform a civilian into an enemy combatant subject to indefinite military detention.....To be sure, enemy combatants may commit crimes just as civilians may. When an enemy combatant violates the law of war,
that conduct will render the person an “unlawful” enemy combatant, subject not only to detention but also to military trial and punishment. Quirin, 317 U.S. at 31. But merely engaging in unlawful behavior does not make one an enemy combatant. Quirin well illustrates this point. The Quirin petitioners were first enemy combatants -- associating themselves with the military arm of the German government with which the United States was at war.
They became unlawful enemy combatants when they violated the laws of war by “without uniform com[ing] secretly through the lines for the purpose of waging war.” Id. By doing so, in addition to being subject to military detention for the duration of the conflict as enemy combatants, they also became “subject to trial and punishment by military tribunals for acts which render their belligerency illegal.” Id. Had the Quirin petitioners never “secretly and
without uniform” passed our “military lines,” id., they still would have been enemy combatants, subject to military detention, but the distinction between organizations and nations is not without rationale. The law of war refuses to classify persons affiliated with terrorist organizations as enemy combatants for fear that doing so would immunize them from prosecution and punishment by civilian authorities in the capturing country. See,
e.g., Message from the President of the United States Transmitting the Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Noninternational Armed Conflicts, S. Treaty Doc. No. 100-2, at IV (1987) (explaining
President Reagan’s recommendation against ratifying a treaty provision that “would grant combatant status to irregular forces” and so “give recognition and protection to terrorist groups”).

Moreover, a rule permitting indefinite military detention as “enemy combatants” of members of an “armed” organization, even one “seek[ing] . . . to . . . overthrow” a government, in addition to being contrary to controlling precedent, Milligan, 71 U.S. at 130, could well endanger citizens of this country or our allies. For example, another nation, purportedly following this rationale, could proclaim a radical environmental organization to be a
terrorist group, and subject American members of the organization traveling in that nation to indefinite military detention.

Neither Quirin nor any other precedent even suggests, as the Government seems to believe, that individuals with constitutional rights, unaffiliated with the military arm of any enemy government, can be subjected to military jurisdiction and deprived of those rights solely on the basis of their conduct on behalf of an enemy organization.“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Youngstown, 343 U.S. at 637 (Jackson, J.,concurring). As the Supreme Court explained just last term, “[w]hether or not the President has independent power . . . he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” Hamdan, 126 S. Ct. at 2774 n.23 (citing Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). In such cases, “Presidential claim[s]” to power “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Youngstown, 343 U.S. at 638 (Jackson, J., concurring).

*********

Our system works if we let it - that is, we cannot allow one branch to usurp the other, which is exactly why habeas cannot be suspended by this or any other President. The Fourth Circuit - not a bastion of liberal thought - agrees, and has made a significant in-road to the arrogance of this Administration's heretofore unchecked power.

Owning Oneself is the American Dream

2007-06-08T10:56:00.000-05:00

Explaining ideas to children that are second nature to us as adults is a useful exercise. It forces us to give real definitions to concepts that might seem simple at first, but are multi-layered and complex at their core.

Defining the concept of Liberty is one such endeavor. Freedom is certainly a component of Liberty, but Liberty is a larger concept, at least in this adult's internal dictionary. Freedom is, well, the ability to be free to move about and to do certain things physically. To say certain things, to write certain things, etc.

Liberty is larger than simply Freedom - Liberty connotes the ability to make decisions without oversight, worry or fear. Liberty is to have freedom on every level, including the emotional plane of our existence. It is a conglomerate of all of the rights set forth in the Bill of Rights, with the sum total of those rights adding up to it as a concept.

In short, owning oneself, or more accurately, being free from the fear of someone else owning you, is Liberty in a nutshell.

Defined in this way, we are in dire danger of losing a chunk of that concept.

As I pondered the draconian and cowardly acts of the government against the Parlak family that transpired nearly a month ago (and have for nearly 4 years now), I thought about other cases I am involved with that are startlingly similar. This happened in earnest while I recently watched a piece on Frontline about the domestic spying programs President Bush has instituted. I'd strongly recommend that you set aside an hour and watch the piece. You can do so online, and everyone should watch the piece, because after all, wouldn't you like to know who's looking through your emails, calls and tracking your web viewing to places like this? I now know, and will conduct myself with more caution with regard to my clients, and with less caution about my opinions on the topics at hand. Less caution because we are at a cross-road: we, the everyday folks who vote and who have a voice, can either look the other way and hope the government is telling the truth when they say that the compromise of our civil liberties will be as minimal as possible, or we can probe. We, as lawyers, can litigate. The press can write. People can become angry and can decide to turn off their TV on election day, get up off of the couch and vote for change.

I have some unbelievable stories from my practice that involve lots of lies, deceit and arrogance on the part of the government. I believe it's time to start telling them here. Not that I haven't told them in the past - I have, but usually to courts - both immigration courts and appellate courts. Usually I win and am happy that the cases are resolved in my client's favor and that's that. Occasionally I don't win, or suffer temporary setbacks, as with Huseyin, that we rectify though the federal courts. Telling the stories of injustice in court is obviously an important tool in my bag. But rectifying injustices case by case is a band-aid to the overall problem. We have an arrogant government with arrogant leaders, who boldly do things that are not in step with their mandate and sometimes violate the law. That is a problem. I don't want my children growing up with that problem, much less with what that problem could become in 10 years if unchecked.

I've spoken at my kids' school about the Bill of Rights and the Freedom of Speech. I take both very seriously. I tell the kids that our Bill of Rights, and our system in general, only works if you know your rights and are willing to assert them. I explain that like voting, standing up for your rights is each and every one of our responsibilities.

The soapbox on the street is now the world of blogs. Technology has led us to spend more time at a screen than at public debates. It has also made the debates online much more popular. This blog had more than 1000 views following Huseyin's deportation.

So, I'm going to practice what I preach to the grammar school kids. I have my soapbox out, but just to do some storytelling, with the permission of each client whose case is mentioned here.

****************

Juan and Maribel are both from Mexico originally. Maribel is a U.S. Citizen working for a major insurance company. The couple has two children and recently bought their first home. Juan has never been arrested, other than when a company that he working at in Michigan was raided by immigration in the early 1990s. He was arrested during the raid, released, and asked to assist with a criminal case against the employer, who was employing many illegal workers. Juan agreed to help. He was told by an Assistant Attorney General that they would send him a subpoena for his testimony in front of a Grand Jury. Juan's brother Ramon, worked with him and received the same offer of release in exchange for later testimony. He too agreed. Both were also told that their arrest and any deportation hearings or orders would be "wiped" clean so that they could acquire visas in the future so long as they honored their end of the bargain by testifying for the Grand Jury.

His employer learned it was under investigation and offered all of its illegal workers jobs in Mexico for more money than they made in the U.S. Presumably, the employer thought it could entice its workers to leave thereby taking their testimony with them.

Juan left with his brother for Mexico during the first week of November in 1992. He has proof of this, by virtue of payroll records and a Mexican national ID he was issued in person.

The INS sent a deportation court notice to his last address in the U.S. on December 15, 1992. He of course did not get it, and of course did not go to his hearing.

The Attorney General's office knew the brothers' location in Mexico and sent the Grand Jury subpoenas to them there a short time later. Both brothers returned, testified and there was a conviction of certain people in management of the employer. All good for everyone, or so Juan and Ramon thought.

Ramon eventually acquired his permanent residency and is now a U.S. citizen.

Juan is not so lucky. He faces deportation.

Juan married Maribel, started a family and applied for permanent residency. After nearly five years, they were interviewed with me present in 2004. Another year passed. I made some noise about the delays, and we were given another interview date on December 23, 2005. We attended the interview, and the officer asked about a deportation order that was entered in absentia (without his presence) in February of 2003. We explained that he was in Mexico at that time, and could not have had notice of the hearing. This was the first Juan had every heard about the order. The officer left for a while, and asked us to follow him to a conference room. Juan and Maribel's children were there, and were well-behaved.

A few moments later, the security guard who I had seen 1000 times came in and appeared to guard the door preventing us from exiting. I asked if we could leave. He said no. I explained that I certainly could leave anytime I wished unless I was under arrest, and demanded to know if that was the case. He didn't answer. I demanded to see a supervisor immediately, or there would be litigation over the situation (there was eventually anyway....see below). A supervisor came in and explained that they were going to arrest and detain Juan, and "reinstate the old order", but that I was free to leave. I left to make calls for case law, because I was quite sure the government couldn't re-instate an order that was entered when the foreign national had departed before the order was entered. His wife and children sobbed as he was taken away on the eve of Christmas Eve. The deportation officers yelled at me to be quiet or I too would be arrested when I explained that the law they were citing was wrong.

The day after Christmas he was released, after I delivered a lawsuit on December 24th to the Attorney General and ICE outlining why reinstatement could not possibly apply. I also filed an Emergency Motion to Reopen the case from 1993 in Detroit, citing the correct law and attaching evidence that showed Juan was in Mexico when the proceedings began and couldn't have received notice of the hearing. I attached an appearance, with my current address, to the Motion.

The Assistant Attorney General handling the case was previously a trial attorney for ICE, and knew immigration law well (Unfortunately, she is now on leave, and her case load is handled by 10+ other Assistant A.G.s, most of whom have little or no immigration background). We came to an agreement together that the way the government handled the case was wrong, and that the correct procedure, if the CIS wanted to deny his adjustment of status application, would be to issue a new removal court notice. That is what eventually happened.

Upon securing his release, I waited to hear from Detroit EOIR on the Motion to Reopen. And waited. And waited. Eventually, I received a notice from Chicago ICE requiring Juan to appear for deportation. I immediately called the deportation officer, who to her credit, was willing to listen. She explained that Detroit EOIR had denied the Motion to Reopen in January of 2006, nearly 18 months ago.

I called Detroit EOIR and spoke to the Clerk of the Judge who denied the Motion to Reopen. I asked where the denial was sent. She proudly proclaimed that they sent it to me. I asked for the address to which it was sent. It was sent to One E. Wacker Drive in Chicago. My firm resided at that address until.........1998. That's right, we haven't been there for nearly 10 years. I told her this, and pointed out that I submitted an appearance form with our correct address with the Motion. She told me, and this is a quote, "well, we don't even look at the appearance form. We use the address from the national database". National database?

After a few moments of trying not to explode, I calmly asked if they would be reissuing the decision now that their mistake had been brought to light. She laughed and said no, the mistake was ours, and that notice of the decision was accomplished under the law upon EOIR's sending it in the mail, regardless of the address. I swallowed hard, and again used every ounce of my energy to contain myself. I confirmed that her position was that notice was proper even if they sent the decision to the North Pole. She hung up. I was done talking to her anyway.

To date, I still have not seen the denial of the Motion, because Detroit EOIR won't send it to me. I've instead appealed the denial that I still haven't seen, and filed an Amended Motion to Reopen. For now, I've prevented the government from deporting Juan. I'm waiting for my appeal to the Board of Immigration Appeals to be denied so that I can march into federal court and explain to a Constitutionally created judge what this agency is up to.......I can only imagine the reaction.

More later as this case develops.

A Sad Day in SW Michigan & Everywhere in the U.S.A.

2007-05-15T11:33:00.000-05:00

Huseyin Parlak, a Turkish national who fears for his life in Turkey, was deported by trickery yesterday. His case doesn't enjoy the notoriety of his brother Ibrahim's case, but is connected to it by blood and legal theory. For anyone who knows the Parlak brothers, this is truly a sad development. For anyone who doesn't, read on. My guess is that you'll be a bit annoyed by the end of this entry.

Ibrahim Parlak and Huseyin Parlak are Kurdish, which is to say they are members of an ethnic minority in Turkey that has long been persecuted and mistreated by the government of Turkey. Ibrahim Parlak successfully applied for asylum in the U.S. in the early 1990s, and converted it to lawful permanent residence. His problems began when he applied for U.S. citizenship five years later. The government decided that he had lied on his naturalization application by not checking the box asking if he had ever been arrested.

His only arrest was by Turkish forces who arrested, beat and tortured him for months at a time for his outspoken views on Kurdish independence. He was convicted of "separatist activities" by a Turkish Security Court, which has since been disbanded because it used torture and other inhumane techniques to extract confessions.

Ibrahim knew that the U.S. government was aware of those "arrests", because they were precisely why he was given asylum. He and his lawyer at that time did not believe it was necessary to check yes when it was clear the government knew of those detentions. He had never had any real criminal problems anywhere, at any time.

After Ibrahim's naturalization case was denied, they put him in removal proceedings for the unchecked box. Ibrahim did what any one of us with a small child and life in the United States would do. He fought back. Ibrahim and his supporters dug their heals in, and got organized, American style. They formed committees, they told his story, and told it well.

The U.S. government wasn't pleased with Ibrahim's competence in getting his message out. Senators and other Congressional members became irritated that our country was doing this to a man who had seemingly done nothing wrong. He is a pillar of his community. He is a family man.

The government became so annoyed, they decided to up the ante and retaliate against Ibrahim. While I don't profess to know what they were actually thinking, the circumstantial evidence in their actions is enough for me to comfortably label it as retaliation. The government alleged that Ibrahim's activities as a Kurdish rights activist constituted acts of terrorism under the new definitions provided by the Patriot Act. This included an alleged affiliation with an organization that he was allegedly sympathetic to in Turkey 15 years prior to it being characterized as a terrorist organization. In other words, the government applied the Patriot Act retroactively to his same activities that had once garnered him asylum and permanent residency. Even a federal judge eventually agreed that what they were doing was "piling on". A federal judge ordered Ibrahim to be released from custody while his case was appealed. It remains on appeal.

Enter Huseyin, his soft-spoken brother who kept the restaurant open while Ibrahim was being held in a maximum security federal penitentiary in Battle Creek for nearly a year. Huseyin came to the United States as a student, attended school and was prepared to return to Turkey. He changed his mind when the the U.S. government broke out the terrorist label. He knew returning to Turkey would now be a problem for his safety.

Like his brother Huseyin has never been arrested or convicted for any crime, and has not been accused of any nefarious activities anywhere, at any time. The government caught up to Huseyin and put him in deportation proceedings as well, perhaps figuring they could demoralize Ibrahim by taking a run at his family (again, circumstantially, there is no other explanation) Oh, and while the government was at it, they tried to shut down the brothers' enormously popular restaurant, Cafe Gulistan. They tried to revoke his liquor license because he again did not list his arrest and torture from Turkey on his liquor license application.

I am not making this up.

He hired lawyers and once again beat the government back from taking away his livelihood.

Huseyin's bid for asylum was denied by an immigration judge who (1) didn't believe his story of past persecution because of minor differences between his written application and his testimony, and (2) because the IJ viewed the country conditions in Turkey as vastly improved and downright balmy. The problem with this view is that it is fiction. The U.S. State Department's own country condition report on human rights belies the immigration judge's conclusions that all is well in Turkey. It is still crucible of persecution for Kurds and especially Kurd activists, and is a very dangerous place indeed if you are of that ethnicity.

Huseyin appealed the Immigration Judge's decision to the Board of Immigration Appeals. It is the administrative appeals unit for the immigration court system, and is severely over-taxed by too many cases and too few judges. Meaningful reviews are hard to come by in this forum, but one has to exhaust his appeals there before proceeding to the federal courts, where resources flow freely, as does intellect and thoroughness. Very bright people have come to see that the administrative forum for removal and asylum cases is completely inadequate. This includes Judge Posner from the Seventh Circuit, as well as other circuit court judges.

The Board upheld the immigration court's denial of his claim, without discussing those problematic country condition reports at all. That's a problem according to all of the precedent decisions in the federal courts. Huseyin and his lawyer (me) appealed to the Sixth Circuit Court of Appeals where he will point out these significant shortcomings when the briefing schedule is issued. In the meantime though, Congress, in its infinite wisdom, decided that the government ought to be able to remove foreign nationals while their first appeal to the federal courts is pending. The idea of that being fair and American is quite a stretch, but it is what the law currently provides.

We filed a Motion to Stay his removal, which is a very difficult remedy to gain. This is because courts don't like to step on Congress's will unless the situation is extreme. We argued that Huseyin's case presented those extremes, but the Sixth Circuit denied the motion. It should be said that very few of these motions are granted, and many appellate courts that eventually sustain appeals first deny motions for a stay. Most foreign nationals in that situation are issued orders of supervision and are permitted to stay pending their appeal. Huseyin was treated a bit differently, because he is the brother of a person who has made the government look bad by publicizing their over-zealous action.

I attended his first check in appointment with the Detroit office of ICE with him and met with his deportation officer. The officer explained that because he has a valid appeal pending, and because he was not a flight risk or a danger to others, he would be permitted to stay in the United States, without detention, on a OS ("order of supervision"). That order was given to me on April 10, 2007. It required that Huseyin return to Detroit on May 14, 2007 to check in. This is all very standard in a case like this. Except that the officer lied to us.

Our motion for a stay was denied on Friday, May 11, 2007. This came as no surprise, and did not cause us alarm, because Huseyin had been given an order of supervision. Furthermore, the fact that the motion was pending does not stop the government from executing an removal order. The Sixth Circuit's opinion was very brief, and did not arrive by mail until Monday, May 14 at about 2:00 p.m. Huseyin was on a plane at the time I opened the decision.

Huseyin was detained, cuffed and whisked - triple time - away yesterday when he reported at his check in appointment. The government usually takes at least several days to actually deport someone in custody once the decide to take that step. Sometimes it takes weeks or even months. Not this time. They had him on a plane within an hour or two.

The most disturbing part of this case is that the merits of his case - the objective country conditions in Turkey with respect to vocal Kurds, or those perceived as taking part in Kurdish activism - has yet to be addressed in his case. The immigration judge didn't discuss that evidence. The Board of Immigration didn't bother explaining why it wasn't important, or why it didn't apply to Huseyin; nor could it in its one page opinion. The Sixth Circuit Court of Appeals is the first forum that will discuss that evidence. Now, it could be too late.

This isn't sour grapes, or one man's thoughts. The government's overreaching not only in this case, but in many others, is becoming frightening. It would be downright disingenuous to even suggest that Huseyin would have been lied to, arrested and deported so quickly if he wasn't Ibrahim's brother. The government can say what it wants about following the law and its own procedures, but the way they handled this stinks.

His family is devastated, and worried, and most of all disappointed. They thought the government of the United States stood for justice, and stood for what is right. They thought the government's agents could be trusted. They were wrong.

Governments are made of people, and people are fallible. Systems break down. It's not as easy as good vs. evil, competent vs. incompetent. It's history's oldest lesson: Too much power mixed with the wrong messages from leadership creates an inevitably poison cocktail.

Drink at your own risk, or contact your Senator or Congressional Rep to express your discontent. Or do nothing at all and hope U.S citizens who express their opinions aren't treated with the same disregard for due process.

Why Immigration is Good for the Economy

2007-05-07T21:18:00.000-05:00

Congress is considering major immigration reform, in large part to enable employers to bring more immigrant workers into the country to fill critical positions. Rather than present the reasons why this is necessary, below is a perfectly articulated rendition of why immigration is good for the U.S. economy. Leon Sequeira is the current Assistant Secretary for Policy for the U.S. Department of Labor. He testified before the House of Representatives on May 3, 2007 about the impact of immigration on our economy, and said in part:

"While the number of immigrants as a percentage of the population might seem large, it is in fact far lower than other periods of heavy immigration in our history. Over the past ten years, 8.8 million immigrants added about 3.4 percent to the population. In contrast, throughout the 19th century, immigration added 6.2 percent to the population each decade, rising above 9 percent during the 1850s and 1880s, and immigration peaked at 10.4 percent of the population during the decade between 1901 and 1910. After 1910, immigration rates fell dramatically, merely adding 5.7 percent to the population during the 1911-1919 decade, further falling to 0.4 percent in the 1930s, and then slowly rising to a still low 2.0 percent in the 1970s. Immigration rates rose in the 1980s (3 percent) and 1990s (3.4 percent) and have since remained stable.

The growth of the foreign-born workforce has not produced significant adverse effects on native-born workers. During the last ten years, the unemployment rate for native-born workers fell from 5.4 percent to 4.7 percent. The unemployment rate for African-Americans has declined from 10.5 percent in 1996 to 8.3 percent today. While unemployment has gone down, wages have gone up. Over the last decade, as the foreign born workforce increased, average hourly earnings of production and non-supervisory workers increased 8.7 percent after adjustment for inflation. In 2006, the median usual weekly earnings of foreign-born full-time wage and salary workers were $532, compared with $698 for the native-born.

There are three fundamental reasons why immigrants are important to our economy. First, the U.S. workforce is aging. Second, continued immigration will allow us to maintain a higher ratio of workers to retirees than other major economies such as China, Japan and Germany. Third, immigrants contribute significantly to innovation and entrepreneurship in our economy.

Turning first to the aging of our labor force, there are 25.5 million persons in the labor force who are age 55 or older and who will be approaching retirement age in the next few years. This is up 59 percent from 10 years ago. And while the number of older Americans in the workforce is increasing, the number of young workers in the workforce has changed little. Those in the labor force who are 16-24 years old numbered 22.4 million in 2006, up just 5.7 percent from a decade earlier—less than one-tenth as fast as the growth among older workers. Clearly, the baby boomers are beginning to retire, and there is not a corresponding boom of native-born young workers entering the workforce to replace those retirees.

The challenge of finding qualified workers is likely to be much greater in the coming years. The U.S. population is projected to grow by 6.8 percent from 2007 to 2014, while the labor force is projected to grow 6.2 percent over that time, with immigration projected to be the main driver of population growth and hence labor force growth. Recent data shows that the immigrant labor force participation rate of 68.6 percent is higher than the 65.8 percent participation rate for native-born workers. The unemployment rate for foreign-born workers was 4.0 percent in 2006, lower than the average unemployment rate of 4.7 percent for native-born workers. Men make up a larger proportion of the foreign born labor force, 60 percent, than they do of the native-born labor force, 53 percent. Significantly, the proportion of 25- to 54-year olds is higher for foreign-born workers (76percent) than for the native-born labor force (67 percent).

Immigration also helps to maintain U.S. competitiveness with our trading partners. As I noted previously, the distribution of the foreign-born population is more highly concentrated in the working-age cohort than the native-born. The presence of our foreign-born population is a major reason the United States has relatively more workers per retirees than our major trading partners. While the ratio of working-age populations to the total populations of China, Japan, Germany and the U.S. are all projected to decline in the coming years, the U.S. population will remain more balanced than those of our trading partners due to the immigrant component of our workforce."

Contact your Congressional Representative to weigh in on whether we need immigration reform.

The Strive Act of 2007: Congress' New Legislation

2007-05-01T17:23:00.000-05:00

Congress is a busy place. It is a body of our government that undertakes enormously complicated issues, seeking to reach the best solutions through enacting complex laws. All within the boiling hot cauldron of politics. No thank you - I'd rather eat lint than do that for a living. But I digress again - back to Congress....
As we all know from studying for our naturalization test, Congress has two chambers: The House of Representatives and the Senate. Immigration Reform has been a hot topic for some time now, with the House of Representatives killing the Senate's best efforts at passing a workable solution for our immigration problems in 2005. It did so by responding to the Senate's bill by passing an enforcement only bill that was the polar opposite of the Senate bill.

A promising new bill called the Strive Act of 2007 was recently introduced in the House. If you have serious problems getting to sleep at night, you can read all about it at the Library of Congress here. I will give you the skinny on what the law proposes as concisely as I can.

Strive is an acronym for The Security Through Regularized Immigration and a Vibrant Economy Act. It was introduced in the house by Rep. Jeff Flake (R-AZ) and Rep. Luis Gutierrez (D-IL) on March 22, 2007. The House Judiciary Subcommittee on Immigration, chaired by Zoe Lofgren (D-CA), is reviewing the legislation now, and it appears the Senate is close to introducing and voting on its own version of immigration reform. Senators McCain and Kennedy will likely sponsor that legislation in the coming days.

The high points of the House version include:

A new worker program allowing for 400,000 new temporary visas to be issued for workers in shortage occupations. The visas would be called H-2C visas. Most importantly, the bill provides a path to permanent residency for qualified workers if the employer agrees to sponsor the foreign national. The legislation seeks to protect American workers by requiring the same wages, benefits and working conditions as similarly situated U.S. workers. Further, any would-be petitioning employer must first offer the opportunity to a U.S. worker. New workers on H-2C visas would also be prohibited outright from working in areas with an unemployment rate of more than 9 percent for low skilled positions;
An earned legalization program for the undocumented population in the United States with a twist - a "touchback" provision that requires people who are in the U.S. without status to return home and re-enter with their new status. This idea of penalizing beneficiaries of the law by requiring them to return home and enter with a clean slate, was apparently an effort to placate certain legislators who wanted to include some measure of a penalty along with the benefits of allowing a track towards permanent residency and eventually citizenship;
An increase to the annual employment-based visa quota from 140,000 to 290,000. Such an increases would alleviate the new backlogs in the EB-3 category that have led to thousands of valuable workers having to leave the United States because the visa they once had in their sights evaporated;
An increase to family-based visas by taking "immediate relatives" out of the 480,000 annual quota.

There is no point in reviewing the minutiae of the proposed bill because even if STRIVE becomes law, it will undergo significant changes during the legislation process in the coming months. Suffice it to say, no matter the final rendition, new legislation will add a few hundred, if not thousand, of pages to the Immigration Law and Regulations book I cart around with me on a daily basis. I look forward to understanding how it will help thousands of good people who will add to the quilt of our amazing country. Stay tuned.

Philosophical Digression

2006-10-27T15:57:00.000-05:00

So, do I get to digress off topic, even though this is supposed to be a professional blog? But of course I do, because it's mine. I'm starting to get why so many people start one of these deals.

We have had some big changes to our office in Chicago, at the same time as readying our Michigan office for its opening on December 1, 2006. The changes in Chicago were all organizational and cosmetic. It took quite a bit of effort, but the improvements are worth it. We have new carpet, new paint on the way, and we got rid of nearly two dumpsters of stuff we didn't need. Those changes were met with skepticism and reticence by staff (you know who you are :)), but we plowed ahead and did everything we set out to do, and the office is cleaner, more pleasant to the eye and most importantly, more functional for our client's sake. The question that arose during the process, and one that arises in all of our lives on a daily basis, was, when does functionality trump appearance? And on a broader level, should appearance ever matter?

I guess I'd answer those questions separately. Functionality can be more relevant than appearance, but in the professional realm, they merge. Clients trust us more if the office looks good. We find things more easily, saving valuable time, when we have two dumpsters less of stuff in the way. Maybe the better question is, why do we judge, at least initially, based on appearance?

The messy lawyer's office might be able to produce a better product than the neat freak. I've seen some pretty fine lawyers with horrendously cluttered offices. But I've seen more top-shelf lawyers with neat offices. I believe that is because highly functional people are generally well-organized, because it saves time. Time is the only asset we have (as professionals and as people) that we cannot make more of. That finite resource can only be economized, but never replicated. That means that as professionals (and people), we had better have a concrete plan. Not in a broad sense, but in an everyday sense. I map out my day down to the :10 block the night before, so that I am never meandering through my day. I have to, or I'd never be able to get as much done as I need to in order to practice at the level I aspire to be at in this profession.

Similarly, everyone has to have a personal plan if you don't want to be on your deathbed wondering why you lived so haphazardly - and my guess is a whole bunch of people find themselves in exactly that situation. I'd submit that the appearance of organization personally might not mean you have a neat car or a neat house. The need for organization and functionality in one's personal life does not revolve so much around tidiness in the physical surrounding as it does in the emotional wherewithal of a person. What I mean by that is, to be fully functional - to be able to meet your goals, explore this incredible world, grow as a human being - you have to be able to convey your own needs, see to the other people's needs in your own life that you've promised that to, and have a nearly constant dialogue about both, or those relationships get screwed up in a hurry. That applies to spouses, partners, friends and family. A part of that is mapping out the boundaries that you will respect, as well as beyond which you won't feel/owe obligations to the other party. All of that is what constitutes organization on a personal level.

Some of that personal (emotional) organization bleeds over to us as professionals as well. Whenever I have a crying client in my office - and I don't often; generally that only happens at the first consultation when things are a mess before we have had a chance to make things better - I always tell the person I'm not going to be able to be in that place with them. I can't. My job is as simple as it is complicated: analyze the problem, map out a strategy for fixing the problem, and then getting to it. Line 'em up and knock 'em down, one by one, step by step, until we will the sought after result to happen in reality. I would like to empathize, hold the persons hand, and tell them I feel their pain, but that's beyond my role in their life. I understand their dilemma, and I'll do what I can to fix it (which is usually enough), but I can't be their friend or surrogate family.

Appearances do matter to the extent they impact function. Judging based on appearances is overrated, and usually not accurate, and maybe that is the point worth mulling over. Thanks for allowing the digression. Back to immigration law next time.

The Details are Everything

2006-10-12T20:24:00.000-05:00

Some people excel at details, while others avoid them because it's not their cup; lawyers, generally, had better be excellent at details. Immigration lawyers on the other hand, have to take it to a whole different level. The details are everything. I'll give you an example or two today.

There is a man who came to the United States as an asylee from Turkey in 1990. He gained political asylum by applying with the INS (now defunct; it's now the Department of Homeland Security, with separate divisions for different enforcement and benefits), explaining that his political activity in Turkey led to the government torturing him at length. The INS agreed, and granted him asylum. One year later, he applied for permanent residence, as the law allows asylees who have been here to adjust their status to that of a permanent resident. On the form, called an I-485, the question was asked, "Have you ever been arrested"? The spirit of the question is simple: the government wants to know whether applicants have had criminal problems with the police so as to screen out undesirables. This man had of course disclosed his prior arrests in Turkey, because those occasions were also when he was tortured. I was not his lawyer at that time, but the lawyer who filled out the Form I-485 checked "no", thinking the torture arrests did not count, and besides that, the government obviously knew about those incidences, because that is what brought him to the U.S. with their permission.

Seven years later, the same man applied for naturalization to become a U.S. Citizen. During that process, the government decided - for reasons that are open to interpretation, ranging from political reasons, to retribution for his asserting his right to a decision on his application by filing a lawsuit against the government - that he had lied on his adjustment of status form by checking "no" on the arrest question. In other words, they decided that he lied because he did not tell him again of the very reason he was allowed to be in the U.S. Not only did they deny his bid for citizenship, but they used the "no" box as one reason for charging him as deportable, and placed him deportation proceedings.*

The lawyer who filled out the form is someone I know, and is very competent. It wasn't his fault, plain and simple. The incident is illustrative though, because it shows that one box can make the difference in a client's life. It is insanely technical, this area of the law; and that makes it insanely stressful for us as lawyers and as staff. Everything we touch bears the weight of someone's future.

I once had an associate lawyer who worked for us who quit after handling a litigation matter where someone's life was quite literally at stake. If the person was deported, he would be killed by an opposing militia. The rest of his family had already been killed, and the militia hated his family so that they wanted to erase his family name from the country. That lawyer missed a detail, and I was quite irritated with the error. It wasn't an error that cost the case, or even changed the odds of success. But any error can - sometimes you don't know until the case plays out. This lawyer was smart enough to know himself, and knew this area of the law wasn't for him. I respected that insight and honesty.

The way to stay on top of, and ahead of, the details is systems. We have worked tirelessly to develop systems, with multiple checks, to monitor dates, to check for errors on forms, to be sure everything is included in evidence packets to the government and the courts. We are meticulous with the details, because they are everything with this area of practice. I catalog all 200 open cases in my mind, and constantly run though them whenever I have free time at work. My getting ready for work in the morning is part of my work day - I work through the cases in my mind. I do the same on my way to and from work. I do it while waiting for interviews at the CIS, or while waiting for my cases to be called in Court. I tote a list around with me, with my daily calendar, with other lists for each category. I get reports each day from my staff, and they each keep multiple lists themselves that I review on a daily basis. It might seem like overkill, but it is completely necessary. Mostly though, we use technology to our advantage by using good case management software, and by having checklists for every step of every case.

We have never had a malpractice claim, or had a bar complaint filed against us, so I think we are doing it right. But that doesn't stop me from constantly working on better systems, or from thinking about case #193 while showering in the morning. That is the life of an immigration lawyer.

*This person's story is detailed here; I am one of several attorney's working on his case, and he has waived confidentiality of his story so that the public understands what is happening to him. His case has been profiled on national media, including Nightline and NPR on several occasions.

An Overview of U.S. Immigrant Visas

2006-09-26T11:38:00.000-05:00

The term “Green Card” originated in the 1970s when the card was actually green. In the 1980s and 1990s, the card was pink, but the former name was stuck in popular culture. It’s now a high tech, holographic melody of colors, and will undoubtedly change again in about 8 years when the next generation is released. Whatever color or form it takes, it is the world’s most sought after immigration benefit.

A permanent resident of the United States enjoys living here with very few restrictions while still remaining a citizen of their homeland. One can work, travel, and otherwise live as if they are a national of the United States with permanent residency. There are a few things a permanent resident cannot do, which are usually also the reasons permanent residents apply for citizenship.

Permanent residents cannot vote. This limit is obviously one that is significant to some and not to others. Moving along the continuum of limitations, permanent residents cannot leave the U.S. indefinitely. If they leave for more than six months at a time, the time they accrue for the purposes of naturalization eligibility (to become a U.S. citizen) gets reset to 0, and if they stay out of the U.S. for more than one year, their permanent residency (which is also an immigrant visa document) loses its visa properties; in other words, it no longer is a valid entry document. For those that leave the U.S. for more than one year, a Re-entry Permit, or “white passport”, is required to re-enter the U.S. Last and most significantly, a permanent resident who leaves the U.S. for any significant length of time while failing to keep any ties to the U.S., such as employment, property and other assets, can be subject to a doctrine called abandonment. Abandonment can be alleged by the government if it believes the permanent resident left without any intent of remaining a resident of the U.S. The allegation is usually made when a permanent resident is returning to the U.S. after a long stay, or series of long stays, outside of the U.S. The resident’s green card is typically confiscated and a Notice to Appear is issued with a date to present defenses to the allegation in front of an Immigration Judge sitting at the Executive Office of Immigration Review.

The last, and perhaps most significant, inhibition a permanent resident faces is that petitioning for family-based visas on behalf of close relatives is not possible in certain categories. If it is possible at all, there are significant backlogs in the categories that a permanent resident can use. Those include petitions for spouses and for children under 21, and single children over 21. The Department of State’s Visa Bulletin details the waits in these categories.

A foreign national can gain permanent residency in one of four ways, though “can” is a qualified “can”. Perhaps it’s better to say it is possible to get it through one of these four routes, because each category has its own significant restrictions.

The first way of petitioning for a green card is through a close family member who is either a U.S. Citizen or a Legal Permanent Resident, though U.S. Citizen status is the ticket to a faster route. We’ll get into the ins and outs of family-based immigration in the future, but for now, suffice it to say that those who are eligible include spouses, minor children, children over 21 if their single (married adult children only qualify if the petitioner is a U.S.C.), and siblings of U.S.C.s, though that fourth category is so backlogged it’s not worth talking about. In general family-based petitioning starts with filing a Form I-130 with the Regional Service Center that has jurisdiction over the U.S.C/LPR Petitioner. There are four Service Centers: California, Texas, Nebraska and Vermont. The Immigration & Nationality Act ("INA") prescribes that 480,000 family-based visas are available under the quota system, but the number of immediate relatives (spouses and minor children of U.S. Citizens) is not limited.

The other major category of permanent resident applications is through the employment-based petition. It requires that an employee first acquire certification from the U.S. Department of Labor that the position at issue will not displace a U.S. worker. There are different categories of employment-based cases, much like there are in the family-based category. The similarities between the two tracks include the fact that some categories are current and some are not. Typically, the less skills and education the position requires, the lower the category, and the less likely the category is to be current and available for immediate issuance of a visa. 140,000 visas through employment are allowed each year under the INA. Employment-based visas are very complicated, and will require several days of blogging to explain. Stay tuned for a thorough discussion of that process.

The third way a person can acquire permanent residency is through the Diversity Visa program, also known as the DV Lottery. Only in America can a person get an approved visa through a true lottery! The program is administered by the Department of State, and is meant to even out the influx of immigrants to include a sampling from a wide-range of countries, thus the name “Diversity”. There is a limit imposed on each country, and many countries with high immigration levels to the U.S. are not included in the lottery. Those excluded from the drawing include Canada, Mexico, and the United Kingdom. The instructions for applying for the DV Lottery for the Fiscal Year 2008 program (which begins in October of 2006, go figure), can be found here.

Finally, foreign nationals who arrive in the U.S. as asylees or refugees can apply to become permanent residents after remaining in the U.S. for at least one year as an asylee or refugee. Again, there are annual quotas that restrict the number of people who can obtain their permanent residence in this category; this has led to lengthy backlogs (5 years+) for asylees applying for permanent residency. The number of asylees allowed in FY 2005 was 70,000, though far fewer actually entered the U.S. This is consistent with the general decline in numbers since 1995 when 99,490 entered.

Permanent residency in the U.S. is the most sought after immigration benefit in the world today. Acquiring it is not a simple process, and contrary to some Restrictionist’s opinions, the level of immigration in the U.S. is at a healthy level historically. Consider the following non-partisan statistics. In the 1990s, there were 4 new immigrants for every 1000 U.S. Citizens. This number is at about one-half of the historical number in the 20th Century; Immigrants pay about $80,000 more in taxes during their lifetime in the U.S. than they take in public benefits. That translates to some pretty astounding numbers. According to the IRS, immigrants paid $133 billion dollars in taxes in 1998, and that’s not all – their businesses paid an additional 100 billion….yes, that’s right – their total tax contribution was nearly a quarter of a trillion dollars.

Remember that stat the next time someone starts hammering immigrants for weighing down our economy.

A Narrative Resume

2006-08-31T11:02:00.000-05:00

Writing about the law, especially immigration law, will be a snap for me. I do it every day. Writing about myself isn't so easy. So here it goes, a quick summary of who I am, as it relates to who people hire when they retain me as their lawyer.

A defense lawyer I once had many cases with would always ask my clients during depositions where they went to high school. One day after he had deposed my client, I asked him, "Mike, why do you waste time on high school stuff 20 years later?" He explained that when he tries a case in front of the jury, he wants to know the plaintiff as best he can. To make a long story short, he firmly believed that you are where you come from. Defense attorneys bill by the hour, so my pessimistic intuition told me that that held the real explanation. But I remember his explanation, so there must be some measure of truth to it. We are where we came from, or perhaps more to the point, what we've been taught.

I had the good fortune to go to an exceptional high school in Oak Park, Illinois. While Hemingway described Oak Park as a town of "wide lawns and narrow minds", the Oak Park I grew up in was anything but closed-minded. It is a town that is renowned for forward thinking and diversity. Like most open-minded places, it had fantastic schools. I was a fairly serious student until high school when I learned to do well without trying terribly hard; for any of you who learned that skill, you know it's much easier to learn how to do that than it is to unlearn it. I learned later that when the competition and opposition become brighter, working harder is the easiest way to success. I've since learned to work with equal intensity on all things, because that becomes a core of one's self-perception and definition.

I was slated to begin college at the University of Illinois in Champaign, and decided at the last minute to attend the University of Florida instead. That decision was based on few things, not the least of which was I felt that going to Illinois would be a continuation of high school in some ways. While I enjoyed those years, and didn't want to continue them for four additional years, and was always aware that the world is an awfully big place. I'm not sure why I was aware of that - I had never traveled up to that point in my life, but guess that I knew because of my fascination with world geography and history.

Going to school in Gainesville was an eye-opening experience. Culture shock for sure; it is a wild, raucous town, in an Old South part of the State of Florida, that is home to a huge, intense, high-quality University. The University of Florida is consistently ranked near the top of state universities, as well as a top value in higher education. My first two years there forced me to examine and reexamine who I was; I was so different from everyone there. I was a Yankee in General Lee's Court; an outsider, a heathen in some ways. I learned though, that those characteristics that made me stick out like a sore thumb (like my Midwest accent - friends called me "Rab" because of my short vowels), were purely superficial. People were pretty much people, and I seized that realization and became much more than an outsider, assuming leadership roles in student organizations and taking in the atmosphere with a zeal I hadn't had before. I had overcome being different and succeeded in a very different world.

I came back to Chicago after graduating from Florida with a BA in Marketing, and a host of credits within the College of Religion, which didn't offer a formal Minor until the year after I graduated. I still say I have a Minor in Religion, which I suppose could come back to haunt me if I ever apply for the Head Football Coach position at Notre Dame, ala George O'Leary. But I digress. I learned a wealth of lessons at the University of Florida - about racism, about people, about friends and loyalty, about hard work, about confidence, about knowing who you are vs. pretending to know who you are, and about a few other things that I wouldn't ever put in writing. But Florida wasn't where I wanted to be for reasons I couldn't fully understand back then. Now I know that Chicago called me back more than anything. I missed it.

If you've ever lived in Chicago, and the Midwest in general, you know what I mean. The people are uniquely honest and hard working and fun, all at the same time. Over and over again, I meet people who tell me that they've lived all over the world and still feel that Chicago is the best big city they've found. Midwesterners usually venture out and about, but eventually come home, and so it was with me.

I went to law school at DePaul University's College of Law in downtown Chicago. Coming back was therapeutic until......law school started. First year of law school is much like boot camp. They try to overwhelm you to leave behind any vestige of comfort, as an initiation of sorts, to a new life. The day I went downtown from Oak Park, I took the Blue Line of the CTA to DePaul. I bought my books and a huge duffel bag. I filled up the duffel bag and walked back to the subway. It wasn't easy to walk that block. I spent my last $1.50 for my fare home. And got on the wrong train. I ended up 10 miles from home, and having no money in my bank account, I walked with about 97 lbs of books home. I came home and collapsed, blistered hands, back and feet throbbing. I couldn't believe that I would have to read that much weight. In the end I did; I applied myself seriously in law school and did well, but it was not easy.

Lest you get a picture that my life has been easy because of this thumbnail sketch that highlights the idyllic, I'll say this: I have been very fortunate with my life. I have not had anything given to me though; I was not a silver spoon kid, and do not come from money. I also have not lived a vanilla, picturesque life. I've made mistakes, learned, taken many risks, and chosen a life in law that reflects my believes and my strengths: fighting for the underdog, using the constitutional values that I believe are most important for the longevity of our country. I've also had many adventures that seemed to border on the insane until the lens of time made the lessons clearer. Those included a short but colorful time in the U.S. Army at Ft. Knox, a hockey and boxing (sanctioned and unsanctioned) career that left me with expensive but imperfect dental work, and a host of other youthful experiments that all are worthy of remembering if not repeating.

Another side note of my past: I am extremely lucky to have an unbelievably great family. I'm not talking about them here only because they are my personal life, and I try to keep that separate from my professional life by design. I could blog a lifetime about their talents, empathy and my love for them, but I'll spare you all of those details here.

I started my own private practice in the living room of my apartment as a newlywed, with an IBM electric typewriter and nothing else. I know that sounds like a cliche story your grandpa would tell, but it's the truth. My eternally generous father-in-law sent that typewriter, and we still use it today. I knew nothing about immigration law whatsoever, because up to that time, I had done trial work for an insurance defense firm and a plaintiff's firm. I was a lawyer who knew juries, not visas, but I decided that if I could practice immigration law and make a difference in people's lives, on my own, I had to at least try. So I did and it has worked out. Again, not easily. I was smart enough to join the American Immigration Lawyers Association, find good mentors, and have become a leader in the field that does a good bit of mentoring myself. It feels good to be in the prime of my career and to have gotten it right. I know exactly what I need to do for clients and how to do it, how much energy to pour into a case, how much of my personal self to give to clients. All of those lessons are hard to learn - I'd say a fair few lawyers never learn them. I have before the half-way point of my career, and that is probably a bit unusual.

I could be a whole lot wealthier if I stayed with firms and tried cases. But I couldn't be any happier with the way in which I practice law, and that is what the folks at MasterCard would say is Priceless. Next, I'll tell you about my practice, and then get into the nuts and bolts of immigration law itself.

Reader Beware: Novice Blogger Ahead

2006-08-28T12:22:00.000-05:00

Welcome! I am happy to start this endeavor of writing occasionally about our practice, and practicing law in general. My goals in writing here are several, and a word about the "whys" would be a good start. But reader beware: I know just enough about IT and blogging to be dangerous. Whether what I write even makes it to this mysterious place on a server that is who-knows-where is far from certain as I type.

First, yes, this is a blog relating to Carpenter & Capt, Chtd., and yes, it is to market our practice in a very fundamental way I suppose. It will help clients and would-be-clients know who they are paying. In a broader sense though, I won't be simply writing to hawk our services. Instead, the content will reflect 3 parts information, 2 parts color commentary. Though all blogging constitutes a pulpit of sorts, I hope this will be classroom first, pulpit second.

The title of this forum reflects what I hope it will convey. "Immigration Frustration" may be more appropriate; but Savvy is what I hope it makes you in the face of your frustration that if you haven't experienced, you will probably will.

A note about style. Lawyers write like, well, lawyers. I do that too, especially in briefs and correspondence. I don't plan to write like that here (note that I've really gone crazy and used very loose language already :)) . I plan to write with one thing in mind - allowing the reader to digest useful information and at the same time understand who it is we are as professionals and as people.

In the 12+ years I've been practicing immigration law, I've learned more than I'll ever be able to convey here. But the one resonating lesson I have pocketed so far is that people are good. Asylees who have been the victim of prolonged torture smile, joke and bring gifts. They call and ask about my family before talking about the fact that the rest of their own family is stuck in a refugee camp waiting for their own asylum status. In the face of horrendous hardship, at their core, most people are good and want to share that goodness. For the better part of the first 11 years practicing in this arena, my conclusions were different. I didn't focus on the smiling torture victim. I focused on the torturer. I didn't focus on the client asking about my family; I focused on the clients who call wanting to know what is taking so long. And then, like most people, I learned to grow a bit and change my perspective. That is a choice we can all make - we get to choose what angle, and what aspects of any situation we look at and give credence to. That will carry over here, anecdotally and practically.

What this forum is not is legal advice. This stuff is complicated. Please don't think you can check out this blog, or our website, and gain an understanding of the law that is sufficient to safely go at it alone. You may be able to do just that, but if you do, you'll be doing so knowing that it's a bad idea, because I just told you it is. Nor is anything here legal advice, or communication that establishes a lawyer/client relationship. It's thoughts, it's information, and the latter will be dead spot-on accurate in most cases. The thoughts - well - I can't vouch for those, and that's the essence of blogging, right?

Last, the photo in this posting was taken by Dianne Giancaspro, an enormously talented photographer who is also a friend. If you want her contact information, let me know.

Robert