The Tale of Judge Yoda: Or How I Learned to Appreciate the Tender Art of Persuasion

My clients ordeal started a decade earlier. However, in 2003, she attempted to return from her trip abroad.  Facts that were required to prove a crime were left out of the Criminal Court transcript.  What should have been a minor criminal offense was amplified. Now, it was time for her to learn about this mess.

Fifteen years later, and eighteen years after entering the U.S., the Department of Homeland Security caught up. Eventually, the client was charged with exclusion.  As a result, Judge Yoda was randomly assigned the Immigration Court case. The judge’s name, client’s gender will remain anonymous and facts slightly changed to protect identities.

In reviewing her criminal plea, I realized that the criminal transcript made little sense.   The criminal arrest record suggested that the client and her friend entered a dorm  room intended to make mischief and in the process moved a coat containing a calculator within the room, dropped it, and then fled.  It seemed a bit questionable to take such a risk over a jacket.  There did not seem to be much of a plan nor an intent to permanently deprive anyone of the jacket.  Yet, there were expensive items that could prove tempting.

Call it a dare or simply temporary stupidity, the die was cast.  They entered without permission.  They broke the law, but which law? The jacket was moved just when the occupying student returned.  The students left, the student victim reported the incident, and the offensive students were arrested. Of course there should have been an arrest.

Yet, in exchange, the foreign born defendent encountered an unforgiving prosecutor, who charged the defendants with both burglary and theft.  It seemed more like trespass and the physical movement of an item within someones space without permission. It was likely an act done under the influence.

The pressure placed upon the university student was allegedly intense. Offers to allow her to eventually return to the college in six months were proposed, tempting, and accepted.  She and the U.S. Citizen who persuaded her to take part in entering the open window pled guilty.  Life went on for a while.  She graduated, travelled abroad numerous times, and started a corporation.

A trip to Europe to visit her aging parents led her into this Jedi-like ordeal.  I put her in touch with what seemed like the most accomplished criminal attorney in the county where the convictions were entered.  This attorney was a former prosecutor, who ironically knew the case.  Years had passed.  The office’s actions had yet to be forgotten. A simpathetic attorney can do wonders.  Over a decade later, and within a year of her green card confiscation, a new District Attorney was elected to office.  Now, the original transcript and its glaring errors could be presented to a  more independent eye with more reasonable instincts toward the acts of a foolish college student.

Although the convictions were vacated, it was unclear if the acts that led to the changes were enough. There was the belief that one of the replaced convictions was still a crime involving moral turpitude. There was also concern that old conviction may have been improperly changed based upon immigration law.  This made little sense at the time, but my arguments to Judge Yoda and what appeared to be numerous unsympathetic civil immigration prosecutor seemed futile.

A claim was made that an published immigration decision held that one of the new crimes was still a deportable offense. At this moment I have yet to find such a case.  Yet, I hope to find the decision even if it is unpublished. I tried a similar matter only to have an immigration judge decide that the crime was not one involving moral turpitude.  As a result that matter was dismissed without the need for relief.

Well, Judge Yoda appeared, negotiated and with little notice executed one of the most amazing Jedi Mind Tricks that I have ever seen in Immigration Court. It happened with little notice and amazing grace.  It is hard to explain the unexplainable.

Just when it appeared that my client might be encouraged to concede the original yet vacated conviction; this, in spite of the current convictions that were arguably not significant convictions for immigration purposes, we recessed for lunch.  Two hours later,  it happened. The Immigration Judge began the hearing. He asked to start the questioning. He questioned the client. He did not ask her to concede to anything. Judge Yoda simply questioned. He wanted to find out the truth.  In response, the client answered. Upon conclusion, the immigration prosecutor asked his questions.

Within fifteen minutes, Judge Yoda again spoke. There was an impression. This was that relief was to be granted, but based upon what? The exact reason for the client’s removal remained unclear facts, but it was understood that grounds existed, even if not presented. This, due to the vacated criminal orders.

Now, with all of the information in front of him, Judge Yoda deliberated. He recognized that the client was inadmissible regardless of the charges levied. This hurt, but was not as fatal as it seems.  A appeal would prove aggravating and delay her right to closure. The client was told of the judge’s desire to approve the case. However, Judge Yoda presented a position that appeased the prosecutor into waiving appeal in spite of all previous concerns.  As Judge Yoda spoke, the prosecutor agreed to what seemed positions that he was unprepared to aggree to.

Well, at least the immigration court transcript is stealth.  With nearly twenty years past after the crime, the client may try to seek citizenship by naturalization. However, at a minimum, she can also remain lawfully in the U.S. after more than twenty years of residence unless something else happens.  Should people be permanently deported decades later without the opportunity ‘to request’ relief, even if it may not be granted?

Obama Unwilling to Take Immigration Stand on Lincoln’s Promise.

Our President, the son of an African Immigrant, wants to distance himself from the ongoing drama.  The Clinton Administration with its reactionaries within the Republican Congress left a wake in both Bush and Obama’s path with IIRAIRA.  Few Republicans realize the political responsibility for poor immigration enforcement that even President Ronald Reagan understood.  IRCA Legalization cut through unrighteous red tape and tried to aid enforcement efforts.  The Registry program did the same.

This is no longer an issue of I-9 audits, surveys and detentions.  Some have remained in the U. S. without relief since the flawed Legalization program passed under IRCA in 1986.  We still have J-1 visa holders who never waived their two year residency requirement per INA 212(e) for over 25 years.  They, among others, wait for a kinder and gentler immigration program.

Our nation has never had an actual amnesty; detractors ‘bait’ any benefits proposal like INA 245i with the word “amnesty.”  Sometimes, proposals are simply destroyed and remain unsupported by all.  Our nation rejects “amnesty,” but not Legalization or Registry. There is a need for a statute of limitations; our deportation laws lack this legal bar.  The anti-immigration lobby insists that proposals reward those who broke the law.  That is a half truth that ignores Federal responsibilities to enforce immigration laws, not merely enact laws and declare the challenge solved.

Actually, the current laws can permanently separate U.S. Citizens from their foreign spouses who overstay a visa or enter without inspection.  These minor infractions remain inadequately enforced with deficit damaging grace and no new taxes.  We continue to maintain an inept immigration enforcement system.

Enforcement must focus on realistic goals aimed at deporting hard core criminals.  We should aid rehabilitating alcoholics and former drug addicts with their loving families and/or programs. Instead, the foreign born are too often corraled into detention centers and deported.

Immigration reform is not just a law and order issue. It is a human drama.  The anti-immigration lobby successfully lobbied to severely restrict lawful family immigration visas in 1990.  When those who may have lawfully immigrated gave up, entered and overstayed, or simply entered without a visa, more restrictive laws emerged.  Dollars were needed, but instead Congress passed more restrictions. These laws too often barred the foreign spouses of U. S. Citizens from consular processing.

The net  sum is that instead of leaving the U. S. to lawfully process immigration visas abroad, families remain unlawfully together.  That is, the lawful U.S. Citizen husband and ineligle alien wife simply won’t take risks.  Some claim that a so-called ‘pardon,’ known in the law as a “waiver” is available.  This is dubious, since an applicant must prove that the spouse will suffer extreme hardship from the ten year separation to secure an INA 212(a)(9)(B)(v) waiver.

Efforts prove more uncertain than it seems.  The mere representation of hardship is not enough.  Hardship traditionally experienced by physical separation normally incurred by separation may prove insufficient.  Often, proof requires an attorney and too often an attorney is not enough.  Applicant must document the hardship in document form, not just verbally insist.  In a nutshell, this waiver process is abnormal to  an immigration system that was geared to encourage family unity.

We have an immigration system that now encourages foreigners to unlawfully remain, rather than risk divorce and separation from their spouses and children.  These arguable victims would rather forgo reasonable wages or normal work, then give up their desire to be with family in the U.S.  The results have proven tragic.  Job site safety hazards often goes under reported until companies like the Peanut Corporation of America destroy more lives.

The immigration system remains geared to seek the most serious offenders.  This means that those who have the most serious criminal convictions are prized for investigation.  The rest remain in fear, stuck in limbo and arguable oblivion.  The laws need not be made more harsh, where laws passed in 1996, 1990 and earlier are without the tax dollars needed to enforce more  reasonable compliance.  Enforcement is so inconsistent that no one knows the actual laws except immigration attorneys.

Should Napolitano act to enforce the laws and show how oppressive this can be under the Alieneage Clause of the Constitution?  Should Congress simply cut the red tape and move on?  Should legislators begin to provide immigration relief to the infants and children, among others, who were ferreted over the border decades ago?  These infants, many of whom are now adults are without hope for immigration.  The U. S. is their home, not China, Mexico, Nigeria, or Poland!

Americans lack fear of laws that penalize the children of lawbreakers.  Our Constitution, among other Declarations call that “corruption of blood.”  However, foreigners who were dependent on their parents are subject to a form of corruption of blood laws that our forefathers might find unconscionable.  Why do we do this to these newcomers?  What have they done other than minor violations left unpunished for decades?  Why do we deny our nation the DREAM Act, when so many lives are experiencing a nightmare handed down to the next generation?

When I hear people use the catchy phrase, we won’t reward law breakers, I think, when will Americans learn  to forgive?  Even criminal offenses have statutes of limitation, but not deportation. Will we continue to blame the blameless or those who simply have fallen through the cracks?  It seems unrighteous.  Have the anti-immigration folks whipped up too much hysteria  and ignorance about unlawful immigration? Will government  of the people, by the people and for the people perish from the United States?  What would Abraham Lincoln do?

What is 212(a)(9)(B)? Why can’t Mommy Come Home? A Legal History Lesson in U.S. Immigration Inhumanity.

We live at a time when television and the internet betray reality; do so called illegal aliens get their due?  The answer is no; American’s do! The tender fabric that separates a Mexican National from a U.S. Citizen is skin deep.  Mexico, through its own poor ethnocentric landed immigrant policies has ruined its economy.  Now, its neighbor to the north is doing ditto.

Why eliminate or alter INA 212(a)(9)(B)?  Simple, the definition of “extreme hardship” is too  subjective and difficult to pin down with evidence.  Our Government gives this dirty duty to a series of functionaries hunkered down in El Paso.  These often non-attorneys are shell shocked by the innundation of form I-601 coming from the U.S. Consular Officials in Ciudad Juarez.  Their insensitivity to the plight of U.S. Citizen family members is due to the law.

What are the results? Delays, some as long as a year; some indefinite! When the dust settles, U.S. Citizen spouses are often forced with a dilemma; move to Mexico or divorce.  Many of the anti-immigration folks have no clue of the consequences.  Certainly, more Americans have gone on food stamps simply because their Mexican husband or wife departed and lost a job.  Of course, foreclosure; well, that is a foregone conclusion.

Our U.S.C.I.S. is obligated to make these disappointing decisions, however fierce, because people are upset.  They are angered by images of people from the 1980s and 1990s running across the border. If those same people knew of the aggravation and havoc that they would suffer over coming decades in the U.S., then it is unclear how they would react. Why?

Well, they may have met the love of their life.  They may have a job, let alone, much better paying job in the U.S. in spite of not possessing a bona fide lawful permanent resident card.  Sure, there may be some whose Social Security number was invented by some cheap software program.  Yes, they may wonder why they cannot do anything to ‘fix their papers,’ even though  many are married to U.S. Citizens.

Why does it matter? Well, they may be married to your U. S. Citizen cousins, uncles and aunts.  They may be married to your brothers and sisters.  Some may have entered the U.S. at the age of one in the arms of their mothers.  In  fact, some may now have straight A grades, but cannot receive a scholarship or enter University.  Should we punish foreign children and infants who entered with mom.  They lacked the legal capacity to commit fraud?  Should we continue to penalize people simply because Congress has a legal loop hole to ruin American lives?

Let me explain.  In 1787, the framers of our U.S. Constitution had a dilemma.  They wanted to rid the U.S. of British Spies.  These spies were unknown entities.  We had the equivalent of witch hunts for British Loyalists.  Hysteria was at an all time high, then, when Chinese Coolies completed the railroad for Westward Expansion, and during the McCarthy Era Anti-Communist Era.

If there was equal rights in due process of law with judge and jury, then our Government would often not succeed.  Evidence was often flimsy, so eliminating legal rights expedites matters.  It is kind of like shooting someone and then finding out later that you were wrong.  Deported Patriots never got a second chance, nor did devoted Chinese railroad workers or politically active independents.  Most were labeled and deported with little consideration.

Our founding fathers created this system to quickly rid our nation of those who they thought were less than loyal.  Call it a witch hunt of sorts, but the “Alienage Clause” of our U.S. Constitution has done damage to liberties that many Citizens take for granted. This Constitutional Clause gives unfettered discretion to Congress with a President’s signature to pass laws that if applied ‘directly’ to U.S. Citizens will be deemed Unconstitutional.

Over the last two decades, we have racheted up our immigration laws to deport or permanently bar some of the most minor offenses. Some offenses will never lead  to a criminal conviction as a matter of discretion.  Selling flour as cocaine is an aggravated felony for immigration purposes, but a Class A misdemeanor under Illinois law.  Unfortunately, many rather petty, but permanent deportable criminal convictions are terminal.  Even a period of probation without jail time means nothing.  Yet, the law must ignore the U.S. Spouse in too many situations.

Some convictions that will even be expunged for good behavior still remain for permanent deportation.  However, all convictions and minor infractions can lead to the permanent departure of the loved  one of a U.S. Citizen.  Our U.S. Supreme Court is relatively helpless without a Marbury v. Madison type of power move.

The challenge is that many return to the U.S. and with the onslaught of others, so these laws may deter some, but simply don’t work well.  They impact on the full faith and credit of our laws.  How can Americans respect a nation that incapable of enforcing its own laws?  Well, perhaps, riding the red tape with repeals is in order.  All the gold in Fort Knox will not stop a family from trying to re-unite.  The tragedy on the Southern Front will not end until we periodically purge with legalization and focus upon the worst foreign criminal ex-convicts.

What about the lawful visa option?  Well, IMMACT 90 cut the number of lawful immigrant visas by more than half. It created delays in excess of 20 years in some family categories.  The child of a Mexican permanent resident can wait fifteen years before they undust the folder at the National Visa Center.  This outrageous drop in family visas created havoc for our family. My sister in law, a physician, could not enter unfettered for twelve years.  Many petitioners die before their loved one’s priority date is current; there are no refunds and compensation for that agony!

As an attorney, when I work with a family, it may only be one paid appointment. Families must be prepared to be physically separated from the U.S. and loved ones before they depart to a consulate.  Whether it is Albania or Zimbabwe, they take a significant risk.  When a person leaves  the U.S. after an unlawful stay or overstay of 180 days, they trigger the unlawful presence bar in most cases.

Why not wait until the moment the case is scheduled, you say?  Well, an INA 212(a)(9)(B)(v) waiver decision can take months, years, or suffer through denials.  Do you really know whether your brother’s wife is legal?

Can America really afford to pretend that this law, which often bars adjustment of status, is an appropriate penalty for your U.S. Citizen brother?  Would you like to repeatedly visit Budapest, when you want to see him or your mother?  INA 212(a)(9)(B) should be repealed!  The DREAM Act should be passed.  INA 245i should be permanent.  None are amnesties.  Let’s stop the madness!