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The Other Immigration "Season": Many State J-1 Waiver Programs Will Begin Accepting Applications on October 1

9/28/2012

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by Sarah Baker, Associate with ABIL member, Bernard Wolfsdorf
Wolfsdorf Connect

Each year, the H-1B “season,” which commences when U.S. Citizenship and Immigration Services (USCIS) begins accepting H-1B visa petitions on April 1 for an October 1 employment start date, receives significant attention.  However, there is another less publicized, yet vitally important, immigration season that also deserves special mention: the Conrad 30 J-1 waiver program season.

On October 1, following the federal fiscal year, numerous state departments of health will begin accepting applications filed on behalf of foreign medical graduates (FMGs) to waive the J-1 two-year foreign residence requirement.  This requirement attaches to all FMGs who come to the United States in J-1 status to pursue graduate medical education, requiring them to return to their home country for a minimum of two years before applying for certain non-immigrant visas, including the H-1B, or seeking permanent residence in the United States.

Pursuant to the Conrad 30 J-1 waiver program, state health departments and agencies can recommend up to 30 J-1 waivers each fiscal year for FMGs who have agreed to practice medicine in designated Health Professional Shortage Areas (HPSAs), mental health HPSAs, Medically Underserved Areas (MUAs), or serve Medical Underserved Populations (MUPs) for 40 hours per week for a minimum of three years in H-1B status.  Some states consider waivers for what are known as “flex slots” for FMGs who will be serving patients from a designated area at a worksite location in a non-designated area.  States are allowed to grant up to 10 flex slots per fiscal year.  If recommended, the waiver is then considered by the U.S. Department of State (DOS) and finally, USCIS.

Below are some practical hints for FMGs to consider when evaluating their Conrad 30 J-1 waiver program options:
  • Before preparing and filing a waiver application with a state health department or agency, applicants must obtain a case number from DOS.  The case number application fee is $215.00.
  • Not all states begin accepting J-1 waiver applications on October 1.  Some states, such as Texas, which began accepting applications on September 5 this year, operate on a different application cycle.
  • Some states, such as South Carolina, require site approval, pre-authorization, or a slot pre-assignment before a waiver application can be filed on behalf of an FMG.  FMGs interested in relocating to or remaining in such states are therefore advised to begin the process early to make sure they do not experience a time crunch as they near completion of their training – if DOS does not recommend approval of the waiver within 30 days of the DS-2019’s expiration, the physician will likely be required to leave the country.
  • Many states express a preference for primary care physicians under their Conrad 30 J-1 programs, and will not accept waiver applications for specialist physicians.  For example, California will generally only consider J-1 waiver applications filed for primary care physicians, which are defined as “internist, family practice, pediatrician, psychiatrist, and OB/GYN.”
  • If the state to which you are applying does not accept flex slot applications, check and double-check (or have your attorney verify for you) that the practice site at which you will be working is located in a HPSA, mental health HPSA, MUA, or MUP.
  • While many states do not, some states, such as Ohio and Texas, charge an application fee to process J-1 waiver applications.  Ohio’s application fee is a whopping $3,571.00 and Texas’ is $2,500.00.
  • Not all states consider J-1 waiver applications on a “first-in-first out” basis.  Some states prioritize applications based on the state’s need for particular types of physicians, or based on the particular merits of the application.
  • H-1B petitions based on Conrad 30 J-1 waivers are exempt from the annual H-1B “cap” and allow for the physician to change status within the U.S. rather than applying for the H-1B visa abroad.
For additional information and more practical tips on state Conrad 30 J-1 waiver programs, please view: “Practical Guide to Conrad Waivers: Thirty, … Two, One, Gone!”


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Will Immigration Electrify the Presidential Debates?

9/26/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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Immigration has been dubbed the third rail of American politics, along with Social Security, Medicare, gun control, and a variety of other hot-button issues.  To me, it's more like a downed power line snaking low across the ground and electrocuting whomever fails to give it respectful attention. As the eyes of the nation turn to the first Presidential debate this Wednesday, will immigration supercharge the colloquy or -- as in years past -- be wholly ignored or disregarded as annoying static electricity? Will Candidate Romney repeat his offensively tone-deaf line, "I'm running for office, for Pete's sake, I can't have illegals"? 

Will President Obama be asked to explain why he waited so long, all along claiming a lack of authority to use his executive power to ameliorate immigration hardships, and then reversed course in the campaign's end-game as a seemingly craven political ploy to curry Latino votes?

No one knows what Jim Lehrer, debate moderator emeritus, will ask in the first debate?  A petition is circulating that implores him to "include immigration reform in the domestic policy debate."

Certainly there are many menu items in the candidates' recent campaign pratfalls, the parties' respective platforms and their Congressional antics that offer delectable interrogatory opportunities, as I suggest in these posts ("The Immigration Week That Was," "The GOP Position: Immigration under Glass," "The Democrats' Immigration Position: Better But Blemished," and "Immigration Buffets and Buffeting in Congress"), and in my recent LXBN interview:
While pundits handicap debate strategies, I offer a few more immigration questions for Mr. Lehrer to pose:
  • Governor Romney, do you think the federal government should tax employers $10,000 for each H-1B worker they sponsor?
  • President Obama, why should the American people believe your recent pledge to tackle immigration reform right away in your second term when you failed to honor the same commitment in your first term?
  • Governor Romney, your immigration advisor, Kris Kobach, has supported laws which reportedly have caused economic harm to states and localities adopting them.  What immigration measures would you adopt to spur their economies?
  • President Obama, your Secretary of Homeland Security has instructed Immigration and Customs Enforcement to treat LGBT couples as "family relationships" in removal proceedings, and your Justice Department no longer defends the Defense of Marriage Act.  Will you issue a regulation or executive order in your second term that authorizes the approval of same-sex, marriage-based immigrant visa petitions?
  • Governor Romney, the Mexican Government has accepted an American labor union claim that Alabama's anti-immigrant law (HB 56) violates a U.S./Mexico trade agreement.  How will a Romney Administration respond?
  • President Obama, why are 31-year-old and older DREAMers ineligible to file for DACA benefits?
Whatever the outcome of the debates and the November election, maybe all this electrifying talk about immigration is simply the wrong metaphor.  Americans seem far less troubled about immigration, according to a recent report from the Pew Research Center for the People & the Press:

Immigration is . . . less of a focus in 2012. In [our] new survey, 41% view the issue of immigration as very important – the lowest of 12 issues tested – compared with 52% in August 2008.
Maybe the best debate questions should therefore be posed to each of them:
  • What specific actions will you take to cattle-prod Congress into enacting comprehensive immigration reform?
  • Why won't you lead us, by solving, once and for all, our immigration challenges?
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The Immigration Week That Was

9/23/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Youthful fans of Saturday Night Live may be forgiven for assuming, however mistakenly, that SNL invented satirical television comedy. The patent for this invention probably ought to go instead to other earlier contenders, Jack Paar, Sid Caesar, Imogene Coco or Steve Allen.  While I love these past and present paragons of humor, I'll never forget the laughs my Dad and I shared watching an earlier NBC show, a precursor to SNL, the short-lived political revue, That Was the Week That Was.
TW3, as it was known, an émigré from the BBC, hosted in the U.K. and the U.S. by David Frost, ran here only for two seasons, from 1964 to 1965 -- but a hilarious two years they were. The format for the show was simple:  Take the news of the past week and turn it into song-and-dance sketches reeking with ridicule, irony, satire and scorn.  With ballads by piano-thumping political troubadour, Tom Lehrer, TW3 featured timeless classics like "National Brotherhood Week" (enjoy the audio here, and the lyrics here).

That Was the Week That Was came reverberatingly to mind with the news of the last seven days.

The week began with the airing of a surreptitiously recorded video of presidential candidate Mitt Romney wishing out loud to an audience of wealthy contributors that, if his dad, George, the late Michigan governor, had not been born in Mexico of an American mother and father but instead of "Mexican parents, I'd have a better shot at winning this. I mean, I say that jokingly, but it would be helpful to be Latino." As the week proceeded, his campaign staff had to walk back Romney's claim that he'd never met anti-immigrant lawyer and father of AZ's SB1070, Kris Kobach (according to CNN, "Romney and Kobach have, in fact, met before at campaign events — but not in formal policy meetings”). The week ended with the resolution of a controversy stirred up by Stephen Colbert suggesting that the candidate had applied tanning spray before his appearance on Univision as a pander to its Latino viewers. The truth is that Romney's Ricardo Montalban look, as Univision has confirmed, came at the heavy hand of the network's make-up artist who daubed on too much "MAC Studio Fix powder and foundation." 

President Obama likewise had his turn on the Univision hot seat, admitting (duh!) that his biggest failure was failing to pass comprehensive immigration reform, and splitting hairs with the moderators over whether he had promised or not promised to do so (or merely try) in his first year in office or first term.

Another laughable moment came when the White House issued a statement and the State Department a video claiming how much easier than perceived it now is to visit America. Yes, they are right that more consular resources, enhanced customer service training and better queuing at ports of entry, among other measures, will improve the inbound traveler's experience.  But nothing will fundamentally create better first impressions until minimal standards of fairness are established for consular visa interviews and CBP interrogations. Yet another Administration official, Homeland Security Secretary Janet Napolitano, surprised many with the risible observation that immigration hasn't been much of “a linchpin, red hot issue" in the presidential campaign.  Tell that to the 10 million Hispanic-Americans whose votes may be suppressed this year.

Congress too contributed to the week's fatuous merriment with the "BRAIN-STEM" follies.  Senator Schumer proposed a new BRAINS act which would allow a smart foreigner with family members to enter every time we deport an equivalent number of permanent residents. In the other chamber, House partisans bickered and failed to pass a green-cards-for-STEM-students bill that failed -- as Bill Clinton might say -- over "arithmetic."  Republicans wanted to eliminate 55,000 Diversity-Lottery visas to provide the immigrant-visa currency for the additional Science, Technology, Engineering and Math graduates from U.S. universities who would receive green cards, while the Democrats wanted to add, not subtract, green-card quota numbers for additional STEM graduates.

On the international front, an Italian court affirmed criminal convictions in absentia of 22 Americans (allegedly CIA operatives) by tossing a creamy tiramisu (a confection translated as "lift me up") at a Bush-era immigration policy known as rendition -- the act of removing (airlifting?) individuals from one country and forcibly immigrating them to another where they are likely to be tortured.  In other judicial news, a federal judge in Arizona lifted an injunction on the surviving piece of SB1070, known as the "show me your papers" provision, which many fear will play out as a "driving or walking while Hispanic" basis for arrest and removal.

The week's levity aside, some important and serious things happened as well:
  • 600 city and county government agencies in Georgia reportedly face penalties for failing to comply with the state's mandatory E-Verify enrollment law, an analogue to the Arizona statute upheld last term by the Supreme Court.
  • Reports like this one, entitled "Time to reject false choices and fears about immigration: Basic freedom of movement across borders is fundamental to human dignity," added to the body of work showing that economic prosperity and human rights can be married successfully by revising outdated immigration laws.
  • The pejorative, "illegal immigrant," continued to be lambasted by such courageous DREAMers as Jose Antonio Vargas and others as a grammatically and legally incorrect term meant to demean and demonize a population.
  • Rinku Sen of Colorlines wrote a must-read piece entitled, "Immigrants Are Losing the Policy Fight. But That’s Beside the Point," emphasizing the importance of real-world stories on immigrants and immigration as the best way to win over American hearts and minds.
  • R. Blake Chisam issued a report through the National Foundation for American Policy, "DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals" -- ironically, the very same H-1B workers entitled to DOL's statutorily mandated labor protections.
  • Both presidential candidates pledged, if elected, to fight for comprehensive immigration reform.
Thinking back to TW3, I am reminded that the polarization and class warfare we see today likewise existed in '64 and '65, as acerbic songster Tom Lehrer croons in his timeless ditty, "National Brotherhood Week":

Oh, the poor folks hate the rich folks,

And the rich folks hate the poor folks.

All of my folks hate all of your folks,

It's American as apple pie.
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STEM Green Card v. Green Card Lottery

9/21/2012

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by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

There is a raging debate presently in the halls of Congress. Almost all of our elected representatives, no matter whether they are Democrat or Republican, are in favor of providing an easier pathway for foreign students who have graduated with an advanced degree from a US university in a STEM (Science, Technology, Engineering or Math) field. In an age of polarization and gridlock in Congress - added by controversy over the expansion of immigration benefits to foreign nationals when unemployment is high - there is amazing bipartisan support for STEM foreign students. Indeed, 150 university presidents and chancellors have also appealed for green cards for STEM graduates.

Still, a Republican sponsored STEM Jobs Act, HR 6429, failed to pass the House on Thursday, September 20, 2012 with a two third majority. It was sponsored by Lamar Smith (R-TX), who otherwise generally favors bills that restrict immigration.   It was rejected 257-158 mainly on party lines that would have provided 55,000 green cards to foreign students graduating in STEM fields. First dibs would have gone to foreign students with doctorates in STEM fields from a US university, and the remaining would have gone to foreign students who have graduated with master’s degrees. These students would still need an employer to sponsor them, and they would need to agree to work for 5 years for that employer. The employer would also need to obtain a labor certification to demonstrate that there are insufficient American workers available for the job.

So why did it fail? The catch was that the STEM Jobs Act would have eliminated the diversity green card lottery, which provides 55,000 green cards for people born in countries with low sending immigration rates to the US. 5,000 of these 55,000 can be deducted for cancellation of removal grantees under the Nicaraguan Adjustment and Central American Relief Act (NACARA). The elimination of the green card lottery was opposed mainly by Democrats, and Zoe Lofgren (D-CA), the ranking member of the House Judiciary Subcommittee on Immigration Policy, proposed a similar bill, but preserving the green card lottery.

The reason why the STEM Jobs Act needed a 2/3 super majority is because it was being considered while the normal rules were under suspension. The rules are suspended generally for non-controversial bills but this bill was hardly that. It was a clever political ploy by the Republicans to force this bill without consideration of the Lofgren alternative under the normal House rules, which preserved the green card lottery, so that they could go back to their constituents and claim that they did favor an important immigration bill, which the Democrats did not pass.

In my opinion, I like STEM green cards to co-exist with the green card lottery, which provides an option for anyone anywhere in the world to come to American to make it. While most other immigration benefits require a family member or employer as a sponsor, unless you are a rich investor under the EB-5, the green card lottery is not tethered to any sponsor. While it is important for the US to attract STEM students to innovate and pioneer new technologies here, it is equally important to attract others who can also become successful and contribute to the US with their optimism and industry. Today’s halal vendor serving delicious falafel from his street cart, who came through the green card lottery, can tomorrow own a chain of restaurants employing others, and still delighting Americans with a unique ethnic cuisine. We need innovators with STEM degrees as well as folks who can enrich the fabric of America with their cuisine and other endeavors.  Moreover, not all lottery winners are unskilled or uneducated. The green card lottery could also attract educated people and those who have already succeeded in business.

Indeed, the green card lottery is reminiscent of what America used to be without a formal immigration program. Immigrants who came to America through the centuries were like the plucky green card lottery winners of today. They took a chance and came to the shores of America. They were not scientists or the equivalent of STEM graduates of their day. Yet, America’s greatness was built on the hard work and boundless optimism of these ordinary people.

Even though the STEM Jobs Act failed, it shows that there can be bi-partisan consensus. The bill was not perfect, and would not have improved the broken immigration system. For example, unused STEM green cards would not have been re-allocated to the backlogged employment-based or family immigration preferences, where some are waiting endlessly for decades before they can get a green card. Perhaps, in the future, if Republicans do not like the green card lottery, they can settle for an increase in the employment and family-based categories instead as a compromise with the Democrats.    But despite its failure to get passed, at least the STEM Jobs Act is a down payment for future bipartisan efforts on immigration. This effort also shows that immigration can be reformed in increments rather than comprehensively, although the latter would be more desirable in a perfect world.  For example, Senator Schumer (D-NY) has offered his own BRAINS Act, which would similarly grant green cards to 55,000 STEM students and preserve the green card lottery, and he has also invited Lamar Smith back to the negotiating table!
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Immigration Buffets and Buffeting in Congress

9/16/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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Congress has spread a table laden with reheated immigration delicacies, while still engaging in the usual posturing, pretend friendships and verbal fisticuffs.  In a spirit of convivial bipartisanship, the House on September 13 passed by a vote of 402-3 legislation the Senate had approved in August, S.3245 ("A bill to extend by 3 years the authorization of the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program"). Presumably, it will land on the President's signing desk before the September 30 sunset of the four programs.

Positioning has also begun in the House over competing Democratic and Republican versions of a STEM jobs act that would give green cards to highly-educated math, engineering, tech and science graduates of U.S. universities. The primary difference in approach is over whether to provide STEM green cards by eliminating the 55,000 Diversity Visa lottery (the GOP proposal). As explained by Rep. Luis V. Gutierrez (D-IL), the Democrats want to vote on "a clean STEM increase . . . without doing damage to other parts of our legal immigration system." Given the GOP's House majority, expect the Republican version to be approved soon and sent to the Senate where it will face an uncertain fate.
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Meanwhile, Congressional hearings, already convened or soon to be held, serve as mediagenic stages for Republicans to take swipes at the President and his Homeland Security Department.  Rep. Lamar Smith, Republican of Texas, held a Sept. 12 hearing with a pre-ordained conclusion obvious from its title, "The Obama Administration's Abuse of Power" -- which included DACA among its other "abuses." On September 20, Rep. Peter King, Republican of New York, will debut "An Assessment of the Department and a Roadmap for its Future," a drill-down of a July 25 hearing ("Understanding the Homeland Threat Landscape"). After next week, Congress will likely go dark until after the November election as each party campaigns for hegemony in the executive and legislative branches.  A lame duck session will likely follow. Perhaps then winners and losers will at last put country before party on immigration and a host of other issues. Maybe legislators whose careers are ending through a loss at the ballot box or retirement -- with nothing to lose -- will grow spines. Perhaps the losing side will become more pliant as demographic changes cause them to wake up and smell a new brand of java.  It's happened before with such major lame-duck legislation as the Immigration Act of 1990, which passed on November 29, 1990.

Almost anything is better than stalemate, as I've suggested before:
If there is to be an immigration meal, it must be piecemeal. If immigration supporters cannot have a multi-course feast at a single sitdown dinner, then tapas eaten seriatim will more than satisfy the hungry reformers' appetites.
The challenge will be to avoid modestly beneficial compromises that add to complexity and include something bad for everyone, and instead forge good deals that foster our bedrock immigration values of family unity, economic prosperity, and refuge for the persecuted.
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If Mitt Romney wins, perhaps the best we can hope for is a Nixon-to-China moment on immigration reform, with the scales tipped in favor of employment-based visas and heavier-than-Obama enforcement (if that's even possible).  More immigration hope and change can be foreseen if President Obama carries the day, and the Dems maintain control of the Senate while making gains in the House. Perhaps anti-filibuster reforms early in the new Congressional term (as explained procedurally here and here) will be the secret door to comprehensive immigration reform.

Wonks, stakeholders and, of course, citizens:  Stay tuned.

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After the October 2012 Visa Bulletin, A Decade Long Wait Under the Family Fourth Preference is a Piece of Cake

9/14/2012

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by Cyrus D. Mehta, ABIL Lawyer and Gary Endelman
The Insightful Immigration Blog

I write this blog with some sarcasm. The family fourth preference (F-4), which allows US citizens to sponsor their siblings for a green card, is horrendously backlogged. It takes over 10 years for a brother or sister of a US citizen to obtain a green card. If the sibling was born in the Philippines, the wait could well be over 25 years. So, why is it a piece of cake?

After the State Department released its Visa Bulletin for October 2012,   the F-4 at least for the worldwide category appears to be more advantageous in terms of waiting time than say the employment-based third preference (EB-3) for India, which is applicable to jobs that require bachelor’s degrees or at least two years of training or experience. The EB-3 for India is so backlogged that it could take a US employer 70 years before the Indian worker it sponsors gets a green card.

What was also disappointing with the October 2012 Visa Bulletin was that the employment-based second preference (EB-2), after being unavailable all summer, emerged in October with a cutoff date of September 1, 2004. This means that employers who filed labor certifications on behalf of foreign national workers with advanced degrees on or before September 1, 2004, can apply for their green cards today.  This does not bode too well because in April 2012 the cutoff date for the India EB-2 was May 1, 2010.  It should have emerged in October at the same cut off level, not back at September 1, 2004. Perhaps, the reason for this giant leap back in time is because many in the EB-3 with priority dates going back to 2004 and earlier are upgrading into the EB-2.  Noted immigration attorney Carl Shusterman has quite correctly called the October 2012 Visa Bulletin a disaster.

But jokes aside, the F-4 is actually a good hedge against the broken legal immigration system in the United States. If you have a brother or sister with kids who are 6 or 7 today, file the I-130 petition and then forget about it. Treat it like a long term stock in a new startup that will increase in value in the years to come.  By the time the green card comes through for your sibling, his or her kids would be 17 and 18, old enough to start college in the US as green card holders rather than  on an F-1 student visa. Note that spouses and children can derivatively get their green cards with the principal beneficiary.  If these kids were born in India, think of the benefit this would give them after they graduate from college and get a coveted job in the US – and let’s hope by then that the US economy would have turned around through some breakthrough technology that would result in an abundance of jobs!  Assuming that the EB-3 was as backlogged in 2023 as it is today, because Congress continued to remain in permanent gridlock, those kids would have to wait about 70 years to get their green card under the EB-3. Instead, the F-4 that you filed with a great deal of foresight today would benefit your nephews and nieces by the time they come of age and are ready to pursue their hopes and dreams in the USA.

What if the kids are no longer children by the time your sibling gets the green card under the F-4? What if they have already turned 21 or more as a child is one who is under 21 under the Immigration and Nationality Act? These are all good and relevant concerns. Fortunately, some of these kids may be able to freeze their age under the Child Status Protection Act. If the child is 23 years old at the time the date on the I-130 petition becomes current, then under INA § 203(h)(1) it is possible to subtract from that age the time that the I-130 petition took to get approved from the time it was filed. For example, if the USCIS took two and a half years to approve the I-130 petition from the date it was filed, then you can subtract 2.5 years from the child’s age, and if the age is reduced so that it falls below 21, then the child can still immigrate with the parent. Thus, it is actually to your advantage if the I-130 petition takes a long time to get approved as that much more time can then get subtracted from the age of a child who may have turned over 21 on the date of visa availability. Fortunately, the processing time at the Vermont Service Center for an F-4 today is just short of 2 years. Processing times will be longer if the USCIS issues a request for more evidence before approving the I-130 petition.  So don’t get too anxious if the I-130 under the F-4 does not get approved so quickly. This time will prove to be precious to reduce the age of a child who is over 21 a decade or more from today, when the visa becomes available under the F-4.

If we had a better immigration system, I would not waste time extolling the so called virtues of the F-4. But when so many preference categories have gone out of whack – 70 years for the India EB-3 and the EB-2 seems to also be going the same way– then we must grasp at straws and the F-4 is certainly one until Congress is able to bring sensible reforms to our immigration system.
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Opposition to Corruption as a Political Opinion Supporting a Grant of Asylum: Ruqiang Yu v. Holder and its Predecessors

9/10/2012

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by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

On September 7, 2012, the Court of Appeals for the Second Circuit issued a precedential opinion in Ruqiang Yu v. Holder, No. 11-2546-ag, reaffirming that opposition to corruption may under some circumstances qualify as a political opinion upon which a grant of asylum can be based under U.S. immigration law.  According to Ruqiang Yu, this may be the case even if an asylum applicant has failed to prove that similar corruption exists elsewhere in his or her native country beyond the specific context in which he or she opposed it.

Ruqiang Yu was initially denied asylum by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) despite their acceptance of his testimony that he had been mistreated after opposing corruption at the state-owned factory where he worked in China.  As the Court described the facts:
The IJ found that Yu credibly testified that, while an employee and a team leader at a state-run airplane factory in Shanghai, his employer corruptly refused to pay the wages of workers on his team and that, when Yu’s efforts to aid the workers and to bring the corruption to the attention of government officials was discovered, he was jailed and later fired.
Ruqiang Yu, slip op. at 2.  Despite these findings, the BIA “concluded that Yu failed to establish that his actions ‘constitute[d] a political challenge directed against a governing institution’ since he was objecting to ‘aberrational’ corruption by individuals.”  Id. at 5.  “Yu’s actions, the BIA reasoned, were “a personal dispute against his individual employers for misusing funds he believed should have gone toward the unpaid wages of the laborers on whose behalf he sought to intervene.”  Id.

The BIA and the IJ in Ruqiang Yu appear to have acknowledged that under Second Circuit case law, “opposition to government corruption may constitute a political opinion, and retaliation against someone for expressing that opinion may amount to political persecution.”  Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010).  As the Second Circuit had said in case law to which it appears that the BIA was referring in its decision when it set out the criteria that Mr. Yu purportedly had not met:
In considering whether opposition to corruption constitutes a political opinion, “[t]he important questions ... are whether the applicant’s actions were ‘directed toward a governing institution, or only against individuals whose corruption was aberrational,’ ” and “whether the persecutor was attempting to suppress a challenge to the governing institution, as opposed to isolated, aberrational acts of greed or malfeasance.”
Castro, 597 F.3d at 101 (quoting Yueqing Zhang v. Gonzales, 426 F.3d 540, 548 (2d Cir. 2005), and Mamouzian v. Ashcroft, 390 F.3d 1129,1135 (9th Cir. 2004)).

Before the Second Circuit’s decision in Ruqiang Yu, but after the Second Circuit’s decisions in Castro and Yueqing Zhang, the BIA had also recognized in a published opinion that “in some circumstances, opposition to state corruption may provide evidence of an alien’s political opinion or give a persecutor reason to impute such beliefs to an alien.”  Matter of N-M-, 25 I&N Dec. 526Matter of N-M-, 25 I&N Dec. 526, 528 (BIA 2011).  In Matter of N-M-, the BIA cited the Second Circuit’s Zhang decision, but found that at least with regard to asylum applications subject to the REAL ID Act because they were filed after May 11, 2005, more than retaliation for opposing acts of corruption linked in some way to a political system was required:
Since the passage of the REAL ID Act, a showing of retaliatory harm for exposing acts of corruption, coupled with evidence that the corruption is in some way linked to a political system, would appear insufficient to demonstrate that a victim’s anticorruption beliefs are “one central reason” for retaliation against him. Instead, an alien must persuade the trier of fact not just that the alleged persecutor was motivated in some measure by the alien’s actual or imputed political belief, but that the protected trait was “one central reason” for the persecution.
Matter of N-M-, 25 I&N Dec. at 532.

The BIA in Matter of N-M- described three factors that an IJ could use to determine whether actual or imputed political opinion was a central reason for retaliation against one who had expressed an anticorruption belief.  The first is “whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs”   such as whether the “alien denounced corruption in public or at work, published articles criticizing governmental corruption, or organized fellow victims of government extortion against this behavior.”  Matter of N-M-, 25 I&N Dec. at 532.  The second factor is “any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs,” such as “statements indicating that the persecutor viewed the alien as a political threat or subversive and was motivated as such.”  Id.  The third factor described by BIA in Matter of N-M-, citing the Second Circuit’s decision in Castro, looks to whether corruption was pervasive in an asylum applicant’s country:
An Immigration Judge should also consider evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials. Where the alien threatens to expose the corrupt acts of rogue officials acting without the support of the governing regime, it seems less likely that the act would be perceived as politically motivated or politically threatening. However, if corruption is entrenched in the ruling party, a challenge to the corrupt practices of this party may be more likely to represent a challenge to the political position of the ruling party, and not just the financial standing or reputation of a small group of corrupt officials. See Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010) . . . .  Whether the governing regime, and not just the corrupt individuals, retaliates against an alien for expressing anticorruption beliefs is relevant to this inquiry.
Matter of N-M-, 25 I&N Dec. at 533.

The Second Circuit in Ruqiang Yu concluded that the BIA had applied an erroneous legal standard in determining whether the corruption opposed by an asylum applicant was “aberrational” for purposes of the test that the Second Circuit itself had set out in Yuequing Zhang and Castro.  As the Second Circuit reminded the BIA: “Because the form and nature of political opposition can vary widely, the assessment of when opposition to corruption becomes an expression of a political opinion involves a context-specific, case-by-case determination.”  Ruqiang Yu, slip op. at 7.  For several reasons, the Second Circuit did not find the BIA to have performed such a determination properly in Yu’s case:
First, we note that the BIA’s factual conclusion that Yu opposed “aberrational” corruption is not supported by the record. Conduct is “aberrational” if it is “a deviation or departure from what is normal, usual, or expected” or something that is “abnormal, diverging from the norm.” Oxford English Dictionary (June 2012, online ed.) (defining “aberration”). Yu’s application indicated that “quite a few . . . workers in other groups did not get paid for a few months,” and that he personally escorted ten of them to confront factory officials. These facts indicate that the non-payment of wages was apparently recurring, not aberrational.

Second, the appropriate inquiry does not focus simply on the number of corrupt acts, but on an assessment of the overall climate and context in which the opposition takes place. Where opposition to corruption transcends self-protection and represents a challenge to state-sanctioned modes of official behavior, a petitioner may be eligible for asylum. . . .

The fact that the protests organized by Yu challenged corruption at a single workplace does not render the corruption categorically aberrational without regard to the nature of Yu’s conduct.  In several ways, Yu’s conduct is typical of political protest (and may have been perceived as such by the authorities). Thus, the record indicates that Yu had no personal, financial motive to oppose the corruption, undertook to vindicate the rights of numerous other persons as against an institution of the state (a state-owned factory), and suffered retaliation by an organ of the state – the police.
Id. at 7-8.

The single-workplace issue, the Second Circuit noted, was “sharply presented” because Yu had “failed to present . . . evidence of more broad-based corruption at state-owned factories in his native land.”  Id. at 8 n.2.  Nonetheless, the IJ and BIA erred by not “assess[ing] Yu’s claim in its full factual context” to determine whether Yu’s activities were “a challenge to the legitimacy of the government’s entrenched modes of conduct”, or whether the authorities had imputed a political opinion to him (which could be a basis for an asylum claim even if he did not hold such an opinion).  Id. at 8-10.

One should not lose sight even after Ruqiang Yu of the importance of submitting evidence of systemic, country-wide corruption in an asylum applicant’s home country, if possible.  This author recently represented a client whose application for asylum was granted by the New York Asylum Office based on past persecution and a fear of future persecution relating to his opposition to corruption at a Russian state-owned enterprise (and who has agreed that this limited information about his case can be made public).  In that case, we submitted voluminous evidence of widespread corruption in Russia.  We would do the same today: even within the Second Circuit and even after Ruqiang Yu, it is still highly advisable if at all possible to submit such background evidence regarding the prevalence of corruption in the country of feared persecution, because it will assist greatly in showing that the applicant’s claim relates to “a challenge to the governing institution” under Yueqing Zhang and Castro.  Outside the Second Circuit, evidence of pervasive corruption throughout the country of feared persecution is even more important, under the BIA’s reasoning in Matter of N-M-.

However, Ruqiang Yu teaches that at least within the Second Circuit (and perhaps elsewhere if the BIA or other Courts of Appeals accept the Second Circuit’s reasoning), some claims of asylum based on opposition to corruption may be viable even if evidence regarding country-wide corruption is for some reason unavailable.  In cases where reliable background evidence regarding the corruption in a particular country or region simply cannot be obtained despite vigorous efforts, applicants and attorneys need not despair.
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The Democrats' Immigration Position: Better But Blemished

9/9/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The Democratic Convention in Charlotte ended last week. The media has now turned to measuring and marveling at President Obama's post-convention bounce despite weak Labor Department data revealing persistent joblessness.

The inevitable comparisons of the two parties' convention performances give the edge to the Democrats' oratory, production values, crowd enthusiasm and diversity.  On immigration policy, the Dems offered more substantive messaging, while the GOP stressed photogenic speakers with ancestral memories of arrivals long ago. 

An historic moment occurred with a convention address in Charlotte by an undocumented immigrant, Benita Veliz, class valedictorian and DREAMer extraordinaire, whose brief remarks Dan Stein of the anti-immigration hate group, FAIR, predictably assailed as “nothing more than a celebration of lawlessness.”
Commentators contrasted Republican Marco Rubio and Democrat Julian Castro (“To Mr. Rubio, Hispanics are refugees from foreign oppression, who want government to let them alone. . . . In contrast, . . . Mr. Castro . . . sees government as an essential enabler of ethnic assimilation and success”). And insiders, perhaps unwittingly, assured full employment for dentists by their vigorous teeth-gnashing over the irreconcilable differences between the parties on immigration policy. The only item of apparent common ground is the issuance of quick green cards for STEM graduates. (See Immigration Impact's platform analysis here, and AILA's take on the same topic here [AILA InfoNet Doc. No. 12090541, membership required].)

Given the parties' chasmic differences, is comprehensive immigration reform (CIR) still a bridge to nowhere?  Perhaps not. A convention segment last week on POTUS (Politics of the United States), the satellite radio station, entitled "Hispanic Voices," offered a plausible route to CIR:

  • Latino voters turn out in large numbers;
  • Obama is reelected, but one Congressional chamber remains under GOP control; 
  • Some Republicans -- at last seeing a desolate future because the demographic tide has washed away so much of their base -- want the contentious issue of immigration behind them; 
  • Obama offers the GOP a choice of legislative compromise or more executive orders on immigration that whittle down the undocumented population by creating administrative avenues for relief; 
  • This time a deal is struck.
Central to the success of this prediction is heavy Latino turnout, something to be swallowed with a sizable chunk of salt. Many of his supporters are still smarting from the broken campaign promise to address CIR in his first year as President, as well as his Guinness-record reputation as Deporter-in-Chief. Others perhaps view jobs and the economy as more important than immigration. Still others fear that Obama may cave on CIR as he reportedly did in 2007 when casting an "Aye" vote on a killer amendment to limit the guest-worker program to five years, a move that derailed the Kennedy-Kyl CIR compromise, or question Democratic resolve to pursue immigration reforms that fundamentally help people or merely curry favor and votes.

Even if Latinos flock to the polls, and the "Hispanic-Voices" scenario begins to materialize, CIR will be no cakewalk.  

Democratic versions of CIR have favored more exacting worker protections in the H-1B and L-1 categories and more frequent audits of employers than the business community may be willing to tolerate. The allocation of visa quotas for H-1B jobs and family-versus-business green cards -- with family unity getting the lion's share over employment-based slots -- may create fissures in the CIR coalition.  There remains contention over the Draconian 1996 smack-downs of due-process protections for immigrants, a bone of T-Rex proportions in an era where even the protection of abused immigrant women is the sticking point in the current fight over renewing the Violence Against Women Act. And almost no one is talking about sweeping changes that would make the system more user-friendly, rational and simple -- a task that would require a kind of robust country-first statesmanship that, alas, has been AWOL for many years.

Maybe the parties can start building compromises on the business-immigration side, with solid assurances that other key elements of CIR will get their due as negotiations succeed on the low-hanging fruit; or maybe not.  

Until November's outcome reshakes the political Etch-A-Sketch, the future foretells more DREAMers like Benita Veliz stirring our hearts with DACA-spawned inspiration while immigration opponents remain intransigent and hateful like the GOP's Steve King of Iowa who still claims to have complimented immigrants by comparing them to dogs.

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The GOP Position: Immigration Under Glass

9/3/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Labor Day, the quaintly traditional start of the Presidential election season, arrived this year with the memory still fresh of self-mortification Republican style -- the projection of Second Amendment rights squarely into their collective feet.

Rather than enjoying a customary post-convention bump in the polls, GOP candidate Mitt Romney received "easily the worst rating given to any of the last eight convention acceptance speeches." In a different kind of bump, a bio-pic many thought tended to humanize the candidate was bumped on broadcast TV by a frizzle-haired Clint Eastwood (apparently trying to reprise his role in the 1969 film musical, Paint Your Wagon), who has moved from talking to trees to ad libbing with a chair.
The convention, however, was not without its own lyrical high note.  Former Secretary of State Condoleezza Rice, clearly repudiated the hate- and fear-filled immigration plank in the Republican platform (which, with double-bordered emphasis, urged self-deportation and ruled out any remedy for the unauthorized in our midst). In its place, she delivered a heartfelt tribute to the truest form of American exceptionalism, our tradition as a welcoming nation:
But the American ideal is indeed endangered today. There is no country, no not even a rising China, that can do more harm to us than we can do to ourselves if we fail to accomplish the tasks before us here at home.

More than at any other time in history — the ability to mobilize the creativity and ambition of human beings forms the foundation of greatness. We have always done that better than any country in the world. People have come here from all over because they believed in our creed — of opportunity and limitless horizons. They have come from the world’s most impoverished nations to make five dollars not fifty cents — and they have come from the world’s advanced societies as engineers and scientists to help fuel the knowledge based revolution in the Silicon Valley of California; the research triangle of North Carolina; in Austin, Texas; along Route 128 in Massachusetts – and across our country.

We must continue to welcome the world’s most ambitious people to be a part of us. In that way we stay perpetually young and optimistic and determined. We need immigration laws that protect our borders; meet our economic needs; and yet show that we are a compassionate people.
It's not that other convention speakers ignored immigration. Many waxed rhapsodic about their immigrant forebears who endured every form of privation so that their children might have a chance at freedom and prosperity in America.  As Sen. Mark Rubio offered, his father -- a Cuban émigré -- worked the bar at the back of the room so that his son "one day . . . could stand behind a podium in the front of a room."

Perhaps even more moving were the refugee sagas of George Romney, Mitt's father, and his father-in-law, both of whom fled revolution in Mexico for safety, succor and eventual success in America, as tearfully re-told by George's grandson, Craig. Other Republican speakers -- Nikki Haley, Mia Love, John Thune -- also regaled the crowd with their immigrant ancestors' sentimental journeys to America.  

While Marathon Man Paul Ryan's whopper of a speech did not touch on immigration, it could well have encompassed the subject in these stirring words:
Our different faiths [Ryan's Catholicism and Romney's Mormonism] come together in the same moral creed. We believe that in every life there is goodness; for every person, there is hope. Each one of us was made for a reason, bearing the image and likeness of the Lord of Life.

We have responsibilities, one to another – we do not each face the world alone. And the greatest of all responsibilities, is that of the strong to protect the weak. The truest measure of any society is how it treats those who cannot defend or care for themselves.
Apparently, however, given Ryan's decidedly anti-immigrant stance, for every undocumented person, hope begins only after self-deportation.  The GOP’s muddled message on immigration is not the way to win the Presidency or capture control of Congress.  

Republicans seemingly prefer their immigration under glass, viewed from the hermetically sealed distance of generations long extinct, observed through the prism of anodyne nostalgia.  With this profoundly dumb policy (read: insensate or, demographically speaking, just plain stupid, as you prefer), will they wake up after Election Day to consider their shared fate with the party's long extinct mascot -- no, not the Mastodon, but rather the Dodo Bird?
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