Archive for the Immigration, security, and fear Category.

Unjust DREAM Act Deportations Should be Suspended

In recent weeks, several students and student activists have been placed in deportation proceedings, or issued orders of deportation. The case of Ola Kaso, of Sterling Heights, Michigan, represents all that is wrong with the immigration system and should be the last of its kind. The need for passage of the DREAM Act is increasingly urgent. In the meantime, prosecutorial discretion should be exercised immediately to cease deportations of potential DREAM Act beneficiaries, including Ola.

Ola Kaso is about to graduate from high school (at the top of her class!) and start college at the University of Michigan. Strike that, she is about to graduate from high school (at the top of her class!) and be deported to Albania.

President Obama has made immigration enforcement a top priority of the Department of Homeland Security (DHS), including Immigration and Customs Enforcement (ICE). In fact, deportations and prosecutions have been occurring at a fast pace, eclipsing the statistics for enforcement under previous presidents. According to a DHS memorandum published last year, ICE is to focus on deporting non-citizens with criminal convictions, and particularly those with convictions for violent or serious crimes. On top of that, President Obama announced in August 2010, in response to pressure from DREAM Act advocates and a request by Senator Durbin, that the deportation of students with no criminal backgrounds would be suspended. In any case, ICE can exercise prosecutorial discretion in determining which cases it pursues. In the case of young adults who did not violate any laws by coming here but who were brought here as infants and children, and who have lived nearly their entire lives here, surely it makes sense to refrain from deporting them given these priorities.

Wait a second . . . Well now I’m confused. ICE just scheduled Ola and her mom, a small business owner, for immediate deportation, on the eve of Ola’s graduation. (Thankfully, it was postponed by a Federal District Judge’s order so she can attend her ceremony.) Why is someone like Ola Kaso, an excellent student with a spotless past and a bright future, being scheduled for deportation now?

Ola entered the U.S. legally with her mother, at the age of four. (Read, she was brought here.) Their asylum case was ultimately denied in 2003, but Ola and her mother had been reporting to authorities in Detroit under ICE Order of Supervision for quite some time.

What can she do? There is no form of relief from deportation available to her. No options exist for her at present to obtain legal status. Although ICE does not have to execute her deportation now, it seems to be pursuing it any way. Her only viable option, and it’s hardly viable for most, is to seek intervention on her behalf by members of Congress. Several U.S. Senators and Representatives have recently urged President Obama to again call for a suspension of deportations of potential DREAM Act beneficiaries, which he is apparently still considering. Perhaps that will persuade ICE to refrain from acting now. After all, its priority is criminals, right?

Well in case ICE does not change its course, some parting words to Ola are in order.

To Ola’s family and friends: I am sorry to say you will have to visit Ola in Albania if you want to see her anytime soon. She will not be able to return to the U.S. for at least 10 years and has little chance of returning sooner. I’m sorry, Cousino High School, you are about to lose one of your celebrated soon-to-be alumna, a role model to younger students. U of M, you are down one brilliant incoming freshman. State of Michigan, you are out an emerging leader and future doctor.

That’s ok, though, Ola. Think about it. If you were to remain in the U.S. and graduate from U of M, likely with excellent grades, you would have to turn down all the offers of employment anyway. Just like the hundreds of thousands of other college students and graduates who have lived here nearly their entire lives. U.S. law does not allow you to obtain lawful employment while out of status and, as already noted, no options exist for you to correct your status at this time. (Too bad Congress still has not passed the DREAM Act, which would fix this oversight.)

So maybe it’s just as well. It should be no problem for you to return to Albania, where you lived for your entire . . . infancy. Well, as long as you speak Albanian fluently, I’m sure you will feel right at home there. The standard of living is probably just like ours here. Ok, so it’s nothing like living in the U.S. and generally has a very low standard of living. And if you don’t speak Albanian, oh boy – you can forget about going to college there, let alone becoming a doctor.

Tough luck, Ola. Well done on striving to reach your full potential and congratulations on achieving that goal. By all accounts, you are a remarkable young woman. The thing is, there simply is not enough room for you and your mother in the U.S. Michigan, in particular, is bursting at the seams with its population. Moreover, the U.S. just is not interested in keeping ambitious, talented students like you, or hard-working small business-owners like your mom for that matter. I’m sorry if you got the wrong impression from complying for so long with all requirements placed on you by ICE.

It’s true, we are a country of immigrants . . . just not immigrants like you. Right?

Maybe I’m wrong about this, and I hope I am. Maybe your case will outrage other Americans, like it has me. Maybe your story will be the one to make people send an email and make a phone call. Maybe because of you, President Obama call for a moratorium on deportations of youth like you, will press in earnest for reform, and Congress will finally pass the DREAM Act. This is the only reasonable course of action, and quite frankly, you deserve it.

Posted in DREAM Act, Immigration, security, and fear, Inadmissibility & Deportation, Recent Posts, Reform, The undocumented | Leave a comment

U.S. Immigration Law and Morton’s Fork

A client filing for a hardship waiver has obtained letters of support from friends and family for the Immigration Judge, asking that discretion be exercised to grant the waiver. A common theme pinpointed in all of the letters was that denial of the waiver would give the U.S. citizen family members of the waiver applicant two undesirable choices that would each result in undesirable outcomes. This situation is known as Morton’s Fork.

The term comes from the tax collections carried out by Lord Morton, of England, in the late 1480s. He reasoned that someone who lived modestly could clearly afford to pay high taxes and someone who lived in poverty must have savings so they too could afford high taxes. The people were to be taxed at a high rate, no matter what they did.

In some cases, a non-citizen placed in removal proceedings may be eligible for a waiver that would prevent his or her deportation if granted. Such waivers are discretionary and may be granted only if the applicant can show that his U.S. citizen spouse or parents (and in some cases children) would suffer “extreme hardship” if he or she were to be deported from the U.S. What qualifies as “extreme hardship” varies from case-to-case, but generally must require a showing of more than simply financial or emotional hardship. The Immigration Courts have said that anyone facing separation from a loved one would likely face financial or emotional hardship, thereby making them, so goes the logic of the Immigration Courts, unextreme hardships. What makes hardship “extreme” can be a number of factors that might not meet the threshold separately, but taken together amount to an extreme hardship overall.

The two aspects of removal proceedings generally, and hardship waivers in particular, that have struck me most over time is that U.S. Immigration Law offers U.S. citizens Morton’s Fork by design, and that the vast majority of U.S. citizens are, or appear to be, completely unaware of this.

Making the case for extreme hardship underscores the gravity of deportation and the U.S. approach to it as established in a complicated and harsh body of law. As written and interpreted, U.S. Immigration Law puts every U.S. citizen family of someone being deported in the position of choosing between a rock and a hard place. And it is done with incredible non-chalance. Every day, U.S. citizens are effectively told, by the U.S. Government, ‘You can either accompany your loved one (spouse, parent, child, etc) to [his or her home country], or you can continue to live in the U.S. without him or her (spouse, parent, child, etc.).’ Simple. Right?

What this dilemma (and it is a dilemma more than a “choice”) can mean is as devastating as the U.S. is diverse. In many cases, it means U.S. citizens must consider living with their loved one in an impoverished country, where English is not spoken and whose language the citizen does not speak, where perhaps for women there are limited career opportunities, or for children there are limited educational institutions. For the elderly, transplanting to a foreign country after living nearly an entire lifetime in the U.S., the obstacles may be even greater. Conversely, the option would be to remain in the U.S., where all is familiar and a life is already established, without the deported non-citizen. To so many, this simply is no option at all. The idea of living separated from a spouse, raising a child without a parent or letting a child raise him- or herself, or spending the last days of one’s life without their children sitting bedside – this can seem even more unbearable.

The feeling of disbelief captured in these support letters written by U.S. citizens is nearly ubiquitous among the U.S. Citizens I have met who are experiencing the harsh nature of U.S. Immigration Law for the first time. The shock that their own U.S. citizen family and friends could find themselves in such a situation, be put in such a situation, by the U.S. Government is palpable. ‘How can they make this choice?’ and ‘Are they to choose between one child and another,?’ are questions that commonly appear throughout these support letters. Unfortunately, the answer is yes.

Yes, U.S. Immigration Law largely does not stand for the preservation of families. Yes, U.S. citizens are made to choose between separation from their own country and life, or separation from their beloved family member being deported. Yes, the results are equally implausible. Yes, this is harsh and unfair.

Yes. It can be changed.

Posted in Immigration, security, and fear, Inadmissibility & Deportation, Recent Posts, Reform | Leave a comment

Our Hypocritical Immigration Laws

What is meant by hypocritical law? There is no formal definition. My own is that a law is hypocritical when it punishes individuals for doing things many of us had done, when we would certainly consider such punishment unthinkable or unconscionable if applied to us.

Consider the following example: Someone who is a non-citizen and who was caught at any time is his life experimenting with marijuana would now face serious threat of deportation, or refusal of entry into our country. If he was caught twice, then deportation or exclusion becomes probable. If someone tries to smoke marijuana cigarette during his college years, but did not like the taste, and chose instead to sell it to a friend for five bucks, then this person will now be deported or excluded permanently as drug trafficker, regardless of the passage of decades. Under our immigration laws, offenses committed at any time often count as offenses committed yesterday, without regards to how the person developed or who is the person today.

But, how is the experimentation of marijuana in young age reflective of how a person might develop? The answer is that the correlation is zero. We have multiple Presidents who admitted to experimenting with worse than marijuana. We have had Supreme Court nominees who had admitted to the same. Thus, smoking marijuana is clearly not indicative of what the person might become at a later time of his/her life.

Note that the example above does not deal with undocumented aliens. It involves legal immigrants or visitors to our country. In case of green card holders, the deportation would destroy families and often separate kids from mother or father.

Other examples involve individuals who have committed relatively minor or non-violent crimes, such shop lifting, or other mistakes in their life, decades ago, and have been completely rehabilitated. Some might not have spent even one day in jail; yet, decades later our government is spending billions of dollars in salaries for federal agents trying to deport them. Does this make sense?

Our law justifies this travesty under the fiction that deportation is not a punishment, but administrative procedure of simply returning someone to the country they came from. And while that might be true for someone who jumped the border fence recently, it is a tragic fiction for those with families who had lived here for many years and have nowhere else to go. Unfortunately, our courts are happy participants in this fictitious nonsense since it gives them easy way out rather than face the difficult reality that deportation for some people is worse than jail.

I am convinced that if our current immigration law was in effect since the start of our country, and if somehow by magic the background history of those immigrating here could have been disclosed, many Americans, including some at DHS, would not be living here, as their ancestors would certainly have been denied entry. I am also convinced that in many cases, the federal agents or government officials doing the deportation have done in their life not much better than those they are deporting. It is just that even if caught, the fact they are US citizens meant that the consequences are minor.

What does that say about our society? We are spending fortunes in the billions of dollars trying to deport people, who otherwise are fully rehabilitated, for things they did decades ago, for which they have paid dues to society and some of which are minor, and in the interim, we are destroying families and devastating many lives. A society is best judged by how it treats its most vulnerable. Immigrants can not vote and hence are indeed among the most vulnerable among us. And how we are treating them does not make us look very good.

Posted in Bills & Laws, Immigration, security, and fear, Recent Posts | Leave a comment