Tag Archives: Deportation

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?


2011: Will the Undocumented be Counted?

2010 demonstrates what the Democrats lost and what the Republicans may gain.  However, it seems like Newt Gingrich and the Bush Family are among a small handful of GOP Members listening.  The issue: is a legalization really an amnesty? The answer is no.

Who gains from calling a legalization an “amnesty?” I think those that want to encourage everyone to apply, even those who do not qualify, perhaps.  When will immigration attorneys begin to tell the truth?

Congress has passed “registry” and “legalization.” Neither were guarantees of a green card. Many were disqualified and others simply messed up their opportunity due to confusion over the program. Legalization was co-sponsored by Republican Alan Simpson, but  signed by President Reagan.  It was an effort to focus enforcement on newer offenders, since immigration enforcement is pitifully underfunded.

Our current Immigration law boldly states that those delegated by the Attorney General, namely the Department of Homeland Security, “may” place an alien in deportation proceedings. Many are left in limbo due to the lack of immigration judges and underfunded law enforcement.

In the end, when Congress has failed to impose its solutions, it must find rational alternatives. Legalization was an effort to normalize the lives of millions of U.S. Residents, who we depended upon to sustain our U.S. Economy. The challenge was that USCIS had to find a responsible way to evaluate these cases.

With whatever experience is left from the last legalization and registry, Congress should reasonably act to tap that experience for the next before all of these folks retire. Otherwise, it will cost Our Nation much more the next time.

Why some attorneys continue to call Legalization or Registry an amnesty confuses the public and is a disappointment to advocates for reasonable change.

The Morton Memo: How Does it Affect Deportations?

The ICE Memo on prosecutorial discretion is nothing new. It comes from a line of memos. It explains to ICE Attorneys what they can do. Many already knew. It is a memo geared to bring good faith to a messy situation.

ICE has to deport many who have lived without consequences or detection for years. The process of prosecuting people who wrongly believe that they rights to stay takes an emotional toll upon some. The Morton Memo let’s the prosecutors know that if certain facts exist, then they ‘may’ administratively close, continue or terminate cases where such foreigners can be easily removed.

The purpose is to focus deportation on foreigners with pending asylum and criminal convictions. There are some foreigners, who given enough time in the U. S., can lawfully immigrate. The low quotas mean two decade delays in processing for too many.

Some may have U.S. Children or a U.S. Citizen spouse. That spouse may suffer exceptional or extremely unusual hardship. Each time ICE deports a foreign born parent or spouse, the human rights consequence to a U.S. Citizen demonstrates how morally outrageous our deportation laws are to the rest of the world.

The Morton Memo reminds prosecutors to use morally appropriate solutions where they wish. The Memo is not an order. The memo is simply advisory. Immigration prosecutors must decide what is best. The memo lets a prosecutor know what is acceptable conduct for this administration.

It has similarities to the memo under Presidents George W. Bush and Bill Clinton. The Morton Memo goes into more detail that a few prosecutors may have feigned ignorance of, perhaps. Hopefully, the mentality and philosophy behind the Memo may be better honored based upon its detail.

The “A” Word: Who Gets to Be a Lawful Permanent Resident?

An “immigration amnesty” has never existed in U.S. Immigration History.  An immigration amnesty is imagined by the public.  Amnesty is a concept contrived by anti-immigration lobbyists.  Perhaps, also by those totally oblivious to the political reality of  the United States or Mexico.  Its use deters democracy and spurs injustice.  Yes, Mexico also has a serious mental block when comes to enacting realistic immigration laws, as well!  This hypocrisy is legendary.

For those who know, a person ‘may’ be placed in deportation proceedings upon denial for an immigration benefit.  This means that the DHS is sometimes lenient on those who make mistakes; civil immigration laws are complicated!  When the U. S. Citizenship and Immigration Services, based upon Congressional mandate, is not lenient, the consequences are devastating to both U.S. Citizens and foreign born residents!

An amnesty purest will not press their luck.  Yet, a few attorneys know the secret.  They know that there has always been a need for a form of perpetual legalization.  However, calling “legalization” an amnesty more often distracts supporters.

The U.S. Body Politique, in general, considers “amnesty” to be a dirty word in immigration.  Let’s get used to it!  A perpetual and reasonable “Legalization,” not amnesty, is what purges those from the system who are questionable casualties in the road to immigration enforcement and reform.

So what should advocates for immigration enforcement and reform do?  Well, if we understand the definition of how the so-called amnesty of it all functions, it helps.  Those with experience accept that there are not enough dollars to hire enough immigration officers and judges.  Those who come in throngs to apply may lose money, but not their right to try try, again, even if they continue to fail miserably at getting a green card.  A nicer and more proper phrase for “green card status” is “lawful permanent residence [also “LPR” for short].  Some are indefinitely or permanently barred from immigration for petty reasons that may persist in the system regardless of reform.

Too many for too long are reasonably frightened of the Department of Homeland Security, which was once known as the Immigration and Naturalization Service.  This Agency makes quite a few oversights, but this would be expected when Congress under funds training and passes unrealistic laws.  The limited form of amnesty is why those who could not prove that they entered the U.S. before January 1, 1981 to the satisfaction of a skeptical immigration officer could avoid being wronged statistics.

These alleged unsuccessful throngs were not immediately referred to immigration court for deportation when their Legalization application was improperly or properly denied!  Yes, to this day there may be some who have lived unlawfully, under the radar for three decades without relief!  Others eventually become victims of immigration witch doctors who promised that an amnesty exists until D.H.S. executes a final deportation order.  What do we do with these people, who often become burnt out and oblivious to U.S.Immigration Law? Pretend that they do not exist?  Pretend that big brother is gonna get them?  Well, they’re not leaving.  By ignoring them, do we encourage un-policed human rights abuses within our own borders?

If we ever understand and admit the historical truths caused by shortsighted immigration laws, then we will stop abusing the term “amnesty.” We must start accepting some form of legalization for those who entered without inspection or overstayed their visas.  Too many of our acquaintances, friends and neighbors were taken advantage of (at times) by unscrupulous attorneys, immigration witch doctors, employers or foreign born parents.  Too many lost wages and their future, because our Federal Government lacks the tax base and political will to enforce and arguably prosecute the general population into immigration compliance.  Let’s face it; it just isn’t going to happen, whether we like it or not!

When we can face the simplest fact that civil immigration laws merit some limitations and a purge valve, then we will appreciate the countless U.S. human rights abuses that result from confusion, ignorance, and insensitivity.  We can ill afford the mean spirited ignorance that labels every effort to normalize the lives our our foreign born residents, “an amnesty!”

A legalization, not an amnesty, that closes the door on perpetual human rights abuses within and around our own borders preserves democracy as we know it.  Taxation without representation is a challenge!  However, let’s face it, there may be no amnesty, but there must be understanding and reckoning.  Otherwise our system of laws and the democracy for which we stand or fall will deteriorate from a warped sense of our immigration realities!

Unlawful Immigration, Legalization, Propaganda and the International Condition.

We have reached the point where foreigners have remained unlawfully for a generation.  Now, their children are born and experience the fruits of U.S. Citizenship.  A few who entered as innocent infants still await forgiveness.  Yet, America supposedly does not believe in corruption of blood.  The reason why the DREAM Bill should become law is to protect these infants who have often reached adulthood.

The anti-immigration folks will continue steaming, because their job will never be done.  Many have concerns about zero population growth, which is an arguably lofty and reasonble goal.  Yet, this desire is distorted when it comes to the enforcement and enactment of some of our immigration laws.  They have made many American Citizens miserable psychological wrecks.  Too many feel compelled to ignore lawful immigration as a viable lifestyle.

Too many American Citizens continue to ignore our employment immigration laws, since the laws are too often dubious and unworkable.  The meanspirited, who cannot get Congress to spend enough of our tax dollars,  now want to make indefinite generations illegal and overcome with perpetual grief.

Such a plan will ultimately challenge our democracy as was done in the Middle East to Christians, Jews, and Palestinians, alike.  In essence, our current immigration laws eliminate representation of the people, by the people, and for the people.  These nativists have lived too long without a conscience to appreciate the current reality of major metropolitan America.

We persist with an immigration legal system akin to an unrealistic citizen state.  Like fallen Rome, will our nation be more content with a coliseum built to feed our unlawful immigrants to the lions?  This, for the sake of the feigned superiority of purportedly law abiding Americans?  We must put a halt to our hypocrisy!

There remains an unrealistic desire to create some sort of pure American Citizenry.  Such rhetoric neglects America’s roots as a nation of strength through diversity.  We are a nation of immigrants; lawful or unlawful. We must appreciate and strengthen our worldly bonds between nations.  Our friendship, peace, and tolerance reasonably exercised  improves international democracy and diplomacy.

America needs to get a grip on its people and its power.  America needs to welcome the newcomer, guest worker, or visitor with ‘reasonable safeguards’ in place. We need to greet with the appreciation, dignity and respect that each reasonable individual deserves to an appropriate extent.  Americans, among others, should try to be the best international citizens in a world even if challenged by bigotry, prejudice, persecution and xenophobia.  There should be funding for enforcement in conjunction with a reasonable statute of limitation on certain types of deportation.

We need to confirm to the world how we appreciate, care and understand culture; both ours and those of other nations.  Our media should promote and recognize the fact that most of us do quite well as ambassadors of good will.

Yet, a few in the media may thrive on exaggeration and ignorance for power and the almighty dollar.  Perhaps, they seek feeding frenzies with critiques and fixations upon the isolated, extremely bigoted, selfish, and vain.  Unfortunately, the folks that may sometimes deserve less of our attention are too often given the most. They can too often bully the pulpit away from more reasonable Citizens depending upon the issue and personalities involved.

A moral form of legalization for the eventual immigration of those who have slightly strayed just makes good sense. Sometimes, enforcement is just not enough!  We need to thin the herd!  We know that some will be disqualified for legalization; this will be based upon their criminal and immigration records.  There should be limits on how long Citizens hold a grudge against those who  entered without inspection. The United States must be part of the cure, not simply be allowed to perpetuate the mess.

Mexico also seems like a cesspool of insensitivity to lawful immigration. Perhaps, its economy is in need of a legalization upgrade, as well!  Enacting a form of legalization can create an immigration statute of limitations, albeit temporary.  Legalization is similar to more permanent laws enacted in developed nations like the United Kingdom.  America, it’s time to be civil with immigration.

Does the U.S. Now Encourage Emigration?

The newer immigration laws since IMMACT 90 on have created family disunity.  The newer employment based visa system means that the best and the brightest may have to choose between staying in the U.S. or keeping their families together.  Some can wait up to two decades for their siblings to immigrate.  Some can wait nearly that amount of time for their children to immigrate.

Many assume that petition for a husband or wife is automatic.  It’s not!  Some discover, after marriage and application, that their spouse cannot immigrate to  the U.S.  Even the simple possession of small amounts of cocaine may not necessarily be undone without extreme planning.  The law provides few options after 1996.

Without an opportunity to legally work, but many temptations to work with inconsistent and unpredictable enforcement, we create a nation in fear of the DHS.  Yet, we do little to penalize employers.  As a result, American employers view the immigration laws as a mere formality.  The laws  become a means to ‘encourage’ unlawful workers to do their jobs.  The insinuated threat of calling DHS is enough to forget about that paycheck.  In the end, with both sides depending upon each other.  Unfortunately, the DHS becomes an nearly predictable formality.

This is not the way that the anti-immigration forces expected the laws to be treated.  Yet, those who advocated for more harsh laws have been unable to do much to enforce them.  They choose instead to heckle unlawful employers.  They try to cover for the unfunded mandate with videocameras in an effort to get more funds for the walls that some tunnel under or simply drive over.  They also oppose reasonable efforts to reform the system with more enforceable options for legal immigration.

What was once lawful immigration is now unlawful.  There are too many unenforceable bars that simply chase residents into black market employment.  OSHA has few whistleblowers, because too many are afraid that DHS will come with it.

There are also other triggers which suddenly and unpredictable stop the immigration of the unwary.  We end up with a system of potholes with no asphalt to fill the gaps that prevent an unjust society.  For those who say, we told you so, imagine workers who look, speak and sound just like Americans, only they are not.  Who is a Citizen?  Who is not?  Even the DHS has trouble.  Employers can find a way, but not their co-workers.

For those Americans were never touched by the Immigration laws, consider yourself lucky.  All it takes is an unexpected twist and your U.S. Citizen son or daughter may be dangling out in Dusseldorf mit ihr ehegatte.  Auf wiedersehen? Nein!


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?