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The 2013 Nation of Immigrators Awards - The IMMIs Are Announced

12/31/2013

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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Hindsight, the armchair pundits say, is 20-20.  The year 2013 has proven them wrong. The end-of-year's rear-view mirror onto the world of U.S. immigration shows impenetrable fog.  Unsurprisingly, as filmgoers know, vapory views of the recent past tend to diminish the apparent significance of events occurring early in the year ("never has a film released in July won an Oscar").

So how did a year that began with such thunder for comprehensive immigration reform (CIR), and that culminated in the mid-year passage of a massive reform bill in the Senate, end with such a thud? Chronicler Aura Bogado ably and graphically recounts key immigration events of 2013 that show how CIR ultimately died in the House.

A chronological description of events, however, reports what happened but not necessarily why.  For that, no matter how daunting the task, NationOfImmigrators is at your service, hereby conferring its 2013 IMMI Awards.  

Just as in years past (2010, 2011 and 2012), the rules are the same:  There are no rules.  These awards are merely one immigration insider's  opinions formed from the outside -- before, during and after a recent trip to Ellis Island (it had only partly reopened five weeks earlier after suffering damages from Hurricane Sandy).  Our national immigration monument, quite fittingly, is a substantial remove from Foggy Bottom and environs, the epicenter for most of the year's action and inaction.  

Modest Effrontery.  For all his huffing and puffing about taking action this year on CIR, President Obama seemed like just another old wheezer who bloviated at his teleprompter while failing to blow the House down.  He deserves kudos and an IMMI, however, for his decision to reach into his executive powers and extend the remedy of Parole-in-Place to undocumented immigrant relatives of military personnel.  If only he'd shown more verve and expanded the class of PIP beneficiaries. Too bad as well that he had to fib to hecklers that he lacked the power to stop deportations.  But at least the annual pace of removals is down by 10% and we will not be awarding the "Deporter in Chief" IMMI this year. Maybe he should receive an IMMI for Illegal Reentry Prosecutor of All Time.   Let's wait and see how he earns new stripes in 2014.

Profiles in Dithering.  The IMMI goes jointly to House Speaker John Boehner (who knew full well that the bipartisan votes to pass the Senate's CIR bill were there in the House but lacked courage to bring it to a vote) and to Tea Party Republicans (TPRs) in the House (who let kowtowing to their Districts prevail over patriotism, the nation's interest, and the welfare of the GOP).   At least Speaker Boehner has shown some spine of late in confronting his TPR wing on fiscal and other matters and hiring the former immigration policy advisor of the Gang of Eight's John McCain.

Devouring One's Own.  The IMMI goes to advocates for immigration reform who began attacking one another in social and traditional media over tactics (some labeling the stratagems as publicity stunts and others describing them as classic civil disobedience) while losing sight of the overarching need for CIR and creating head fakes to move the eyes of the public away from all temporizing in the House. 

Judges Got to Be Free.  The Board of Immigration Appeals (BIA) shares this IMMI with the Immigration Section of the Federal Bar Association (FBA).  The BIA receives it for demonstrating repeatedly that despite their members' unfortunate positioning as Justice Department employees who report to the Attorney General rather than truly independent jurists, they can and do rule on the law against the federal government regularly.  See, e.g., Matter of Douglas, 26 I&N Dec. 197 (BIA 2013)(child citizenship rights); Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013)(rights of incompetent respondents); and Matter of Lee (E-2 spouse's statutory right of employment authorization without need to apply for a work permit). The FBA Immigration Section earns the IMMI because it developed an extensive proposal for an independent immigration court no longer yoked to one party to the controversy, and secured the approval of the FBA Board of Directors to adopt as its formal policy on issues/advocacy an "Article I Immigration Court" proposal which can now be considered by Congress as part of CIR.  Honorable mention goes to the Immigrant and Refugee Appellate Center which has dutifully indexed unpublished BIA immigration cases for all to see.

Private, Off-the-Shelf Organization.  Epitomizing lawlessness in government, this IMMI is conferred in recognition of Oliver North's observation during the Iran-Contra Affair that then-CIA Director Casey had a "private, off-the-shelf organization" to run covert operations in lieu of nation's own spy agency.  The IMMI goes to the self-aggrandizing adjudicators at one or more regional service centers and at consular posts abroad who take the law into their own hands, concoct new extralegal evidentiary and procedural requirements, and deny requests of individuals and firms who deserve to receive the immigration benefits they seek.  The prime 2013 examples are the snitches who instigated a Homeland Security Department, Office of Inspector General (OIG), investigation of USCIS Director Alejandro Mayorkas through Sen. Charles Grassley  -- an investigation assailed for its partisan and ham-handed methods by Judiciary Committee Chair, Patrick Leahy.

Lifetime [of] Achievement.  This IMMI goes to USCIS Director Alejandro Mayorkas (since confirmed as Deputy Secretary of the Department of Homeland Security) who achieved more than any previous Director of USCIS or Commissioner of the legacy agency, Immigration and Naturalization Service, in my 35+ year lifetime as an immigration attorney.  A lawyer's lawyer, Mr. Mayorkas transformed the agency from a DHS backwater to a leader in public engagement and customer service, vastly improving stakeholder outreach, policy articulation, technological resources, and the speedier delivery (and concomitant reduction in backlogs) of new and existing benefits programs, while maintaining the integrity of the immigration system and allowing his agency to serve as a welcoming beacon to immigrants and nonimmigrants, petitioners and beneficiaries alike.  Mr. Mayorkas never veered from his duty to make sure that all cases are decided solely on the facts and the law, without fear or favor.  While we often disagreed, I know he will be sorely missed and that his salutary legacy will be felt for decades.

Rush to Pre-Ordained Judgment.  The IMMI is awarded to the DHS OIG for its recent report on the USCIS's administration of the EB-5 Immigrant Investor "Regional Center" program.  The OIG has long packaged immigration baloney, while claiming to produce an objective and impartial study of a particular government program or practice.  This new EB-5 report, if it is to be swallowed, should likewise be slathered liberally with mustard or another masking condiment of choice.  The report focuses on the gripes of low-level officers, interviews no one outside of government, largely disregards the views of senior EB-5 program leaders at USCIS, and ignores multiple improvements to the adjudication of regional center cases and enhancements to promote consistency, detect and prevent fraud and promote the program's mission of job creation (well documented in the accompanying memorandum of USCIS Director Alejandro Mayorkas).  It suggests, preposterously, that USCIS lacks legal authority to revoke a regional-center designation request based on fraud or national-security grounds, and that USCIS should study the program's effect on job creation (even though such a study is clearly outside of the agency's mission).  To be sure, the EB-5 program would benefit from greater regulatory clarity and closer liaison with the SEC and Commerce Department as the OIG proposed.  But it is as if this new OIG report essentially studied an old pre-op photo of a patient revealing an aquiline snout, disregarded the marvelous post-op results of rhinoplasty, and concluded that the patient has a big, ugly nose.  Clearly, the OIG has a nose for baloney; but it should not be given credibility as a pretext to eliminate the valuable EB-5 program.

DOMA's Wake and Post-Mortem.  This IMMI goes jointly to the Supreme Court for invalidating most of DOMA (the Defense of Marriage Act) in U.S. v. Windsor, and to the federal immigration agencies (USCIS and the State Department) that quickly responded by according equal treatment under the immigration laws to same-gender bi-national couples as have long been enjoyed by heterosexual spouses.

Immigration Champions.  The IMMI goes to the American people (documented and otherwise), from all walks of life and every political persuasion, who are way ahead of their government leaders in supporting immigration reform and to countless advocates who have protested, marched, attended Town Halls, been arrested, wrote letters to editors, visited Congress and the White House, convened forums, tweeted, blogged, found bittersweet humor, argued that immigration is "one of [the] biggest civil rights issues" of our time, and screamed to the rafters that the time is now to fix our dysfunctional system. It also goes to Pope Francis who has spoken widely on the plight of immigrants as well as to those who make the religious and moral case for immigration reform, and to all the think-tanks and studies that showed CIR would dramatically benefit our economy, create jobs and improve the lot of all who reside in America.

Best Random Immigration Quote.  The IMMI goes to the fashion retailer Louis in Boston for the quote emblazoned on its stairwell wall: "We create boundaries only to trap ourselves within them." View image.

No More Traffic.  The IMMI goes to the coalition of people, groups and agencies who have resolved that trafficking in humans must end.  

Perp Walk Blooper.  For insensitivity to cultural differences despite a shared ethnicity, the IMMI goes to the otherwise impressive Preet Bharara, the U.S. Attorney for the Southern District of New York. The Indian government and many of its people challenge his justification for the post-arrest strip search of Indian consular officer, Devyani Khobragade, who claims full diplomatic immunity from visa fraud charges based on her status as adviser to India's permanent mission to the UN. Whatever the merits of the visa fraud charges, the U.S. should not undermine its adherence to diplomatic immunity, a privilege from prosecution which protects our diplomats abroad as much as foreign diplomats in the U.S. charged with crimes.

Jackboot Welcome.  This IMMI goes to the U.S. Customs and Border Protection officers at the JFK port of entry who obliterated a permanent resident's livelihood by destroying his collection of musical instruments apparently claiming they were agricultural products.

We're not from DC - We Get It.  Kudos and an IMMI go to the cities, states and regions that recognize the value of immigrants as contributors to their communities.  Their welcome mats are out and, without waiting for Washington, they are taking tangible steps to be more inviting to the foreign-born while full-throatedly talking devolution.

* * *
That's it for this year's IMMI awards.  Maybe next year's top IMMI will go to Congress if it finally moves ahead to enact comprehensive immigration reform legislation.  We can only hope. Stay tuned.
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Immigration Voices - Immigration Reform Must Redress the Current Law's Gender Biases

12/22/2013

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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[Blogger's note:  Once again the prolific and ever lucid Careen Shannon offers fresh insights on another facet of our dysfunctional immigration system.  Today, she shows why gender bias taints America's immigration system, and what should be done to eliminate structural bias as part of comprehensive immigration reform.]

Immigration Reform Must Redress the Current Law’s Gender Biases
by Careen Shannon
As 2013 comes to a close, we are no closer to comprehensive immigration reform (CIR) than we were when a newly elected President Obama optimistically promised that such reform would occur during his first year in office.  Advocates for immigrants have not lost hope, but it seems clear that if and when reform comes, it is unlikely to resemble the compromise hammered out in the Senate’s bipartisan comprehensive immigration reform bill (S. 744). This does, however, give women’s rights’ advocates an opportunity to look at the ways in which both our nation’s current immigration system, and the reforms to that system that the Senate incorporated into its bill, fail to adequately address the special needs of immigrant women and their families. Maybe there is still hope that we can get it right.

As documented in a report (“Gendered Paths to Legal Status”) issued by the Immigration Policy Council, immigration laws which appear gender neutral “actually contain gender biases that create barriers for many women trying to gain [lawful status] within the current immigration system.”  Specifically, “immigration laws assume dependencies that privilege male applicants over females and that often make women an afterthought.” Below are just a few examples of how this is so.
Family-Based Immigration
Most people who immigrate to the United States do so on the basis of family ties. In Fiscal Year (FY) 2012, more than 1,000,000 people immigrated lawfully to the United States, and nearly 66 percent of them did so based on a family relationship with a U.S. citizen or lawful permanent resident. There is a notable gender imbalance, however, with approximately 70 percent of immigrant women (compared to 61 percent of men) obtaining lawful status by qualifying for family-based immigrant visas, according to government data. 

For persons immigrating as the spouses of U.S. permanent residents, there are lengthy backlogs—sometimes lasting many years—that keep families separated. Since the sponsor in these types of cases is generally the man, this means that it is mostly women who suffer the consequences of the statutory and administrative backlogs that plague these visa categories, often languishing abroad for years, or living in the shadows in the United States.

In addition, our family-based immigration system prioritizes the nuclear family, and makes it difficult if not impossible for extended family members to immigrate. For example, if an adult U.S. citizen were to file a petition today to sponsor her brother or sister for permanent residence, that sibling would have to wait anywhere from 15 to 30 years (depending on country of birth) for a green card. Under current law, adult U.S. citizens can sponsor their parents for permanent residence, but permanent residents cannot, which forces many families to make hard choices about how to care for elderly parents left behind in their home countries.
Employment-Based Immigration
Foreign nationals can also immigrate to the United States, or live here lawfully on a temporary basis, if a U.S. employer hires them and sponsors them for an employment-based visa. Here, there is an assumption that men are the breadwinners and women are dependents.

Most temporary work visa categories, for example, do not grant work authorization to spouses who accompany the sponsored worker, which perpetuates women’s dependency. Both the immigrant (permanent) and nonimmigrant (temporary) employment-based visa categories favor men, largely because they are increasingly skewed toward encouraging the immigration of workers in the so-called STEM fields (science, technology, engineering and mathematics), who are overwhelmingly male. Immigrant women in the United States mostly toil as domestic workers, and with only 5,000 immigrant visas available each year for unskilled laborers (and yes, childcare workers and other domestics are considered unskilled workers), it is virtually impossible for a nanny or other domestic worker to secure lawful status.
Asylum & VAWA
When it comes to asylum, which can be granted to foreign nationals who have a well-founded fear of persecution in their home countries, women often have a harder time qualifying than men. Women are often not recognized as independent political actors, and thus political activities which have subjected them to persecution are often dismissed.  Harms that are unique to women—including female genital mutilation, gender-based violence, forced marriage and honor killings—are often similarly rejected as constituting persecution. 

Even laws enacted specifically in order to benefit immigrant women, like the immigration-related provisions of the Violence Against Women’s Act (VAWA), often create obstacles to women seeking lawful immigration status. For example, VAWA allows a battered immigrant woman to self-petition for permanent residence (rather than having to rely on her citizen or permanent resident husband to file a petition on her behalf), but she needs to demonstrate that she was living with the man who battered her. This can be challenging when it is only the husband who has lawful status and when all relevant documentation—leases, bank accounts, utility bills, and the like—is in his name alone and under his control.
How the Senate Bill Would Have Helped Immigrant Women
So will immigration reform improve prospects for immigrant women and their children? There are a number of provisions in the CIR bill that passed the Senate (and in a similar House bill, H.R. 15, which was introduced by House Democrats in October) that would make it easier for undocumented women to legalize their status. For example, while the normal path to permanent residence under the Senate’s proposal would require applicants to be regularly employed, there would be waivers available that would benefit some women (such as those who are pregnant, or who serve as the primary caregivers to minor children). 

The existing family-based immigration system would be amended to allow spouses and minor children of lawful permanent residents to immigrate without any annual quotas (currently the case only for parents, spouses and minor children of U.S. citizens), although parents of permanent residents would still be excluded. 

Immigration judges would be empowered to close deportation proceedings if a person’s deportation would create hardship for his or her child or children (so long as those children are permanent residents or U.S. citizens). Currently, overzealous immigration enforcement disproportionately affects women, causing separation from loved ones and often leading to termination of women’s parental rights, but the Senate bill would protect women’s (and men’s) parental rights while they are detained pending deportation.
How the Senate Bill Failed to Redress Existing Gender Inequities
But there is much in the Senate bill that would be harmful to women, and these shortfalls should be addressed in any new reform efforts. For example, the requirement for an undocumented immigrant to document employment in order to maintain lawful status would create special barriers for immigrant women, who overwhelmingly work in the informal economy and would be hard-pressed to provide such evidence. 

Overall, the Senate bill proposes a de-emphasis on family-based immigration in favor of more immigration of persons with advanced educational credentials and professional skills, and this would make it more difficult for women, who typically do not have equal access to higher education in their home countries. The current immigrant visa category allowing adult U.S. citizens to sponsor brothers and sisters for permanent residence would be eliminated, and this category now primarily benefits women. Given that women largely depend on the family-based system to immigrate legally to the United States, all of these changes would have a disproportionately negative impact on women. 

The Senate bill would also require certain milestones related to border security and enforcement to be met before undocumented immigrants could become permanent residents—and any bill with any hope of passage in the House would undoubtedly contain even tougher security-related triggers. But the truth is that we have already exceeded all current goals related to border security and immigration enforcement, without accounting for the disproportionately negative collateral consequences of such enforcement on women and children. 

In a period of just over two years, the U.S. government issued more than 200,000 deportation orders against parents of U.S. citizens—children who were born in the United States—leaving many of those children behind in the child welfare system. Older children, who may have been brought to the United States as infants and consider themselves American notwithstanding their lack of lawful immigration status, are often shut out of educational and vocational opportunities. While some such youth have been able to benefit from the Obama Administration’s decision to decline to deport them, absent passage of The DREAM Act or similar legislation, the future remains bleak for these individuals.
Looking Forward
Immigration reform will not succeed if it fails in its obligation to protect women, who constitute 51.1 percent of the foreign-born population in the United States, or if fails to bring immigrant children into the mainstream. Once our dysfunctional Congress gets back to actually doing its job—to actually governing—immigration reform needs to find its way back onto the legislative agenda.  When it does so, the needs of women and children should be specifically addressed if immigration reform is to have any real meaning.
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Obama -- Still the Deportation President

12/20/2013

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Charles Kuck, ABIL President
Musings on Immigration

Much has been written in the last two days about the Obama Administration's release of its FY 2013 official "removal statistics."  Some have noted that the number of removals (this means displacement of people to foreign countries that they may have had no contact with for decades) went down by 10% from FY2012's record level. Yet, Obama's ICE still deported 369,000 men, women and children (yes children) in the 12 months of 2013. That is 30,750 people a month, 1,111 people a day, 42 people every hour, or almost one person, every 90 seconds, of every day, all year long.  This "lower" number of deportations is a higher number of people deported in one year than President Bush ever deported in one year in his entire presidency.  Let's not kid ourselves. Obama's ICE is a people deportation machine. Every part of that machine is well-oiled to either convince people to accept deportation by deceptive means (e.g. you have no relief), force them to accept it (by detention in remote hell-holes like the Stewart Detention Facility in Lumpkin, Georgia), or giving the Border Patrol summary removal authority at the border and airports.

A deep dive into these numbers reveals some startling facts.  About 40% of those removed in FY 2013 were not the "gang-bangers" Obama said he was focused on removing from the US. In fact, this 40% had NO criminal background whatsoever, and many of those considered "criminals" by ICE are actually only guilty of simple traffic offenses, euphemistically referred to as DWH, Driving while Hispanic, or even civil immigration status violations.  MANY of this 40% have lived in the United States for years, (the average is for over a decade), and most have U.S. Citizen children or spouses in the United States. Not to put too fine a point on it, but since July 1, 2010 and September 31, 2012, Obama's ICE removed 204,810 PARENTS of U.S. Citizen CHILDREN. There is anticipated long-term socio, psycho, and economic damage from ripping these children from their parent's arms. Are we not better than this?  Is this leadership?

Finally, an analysis of Obama as the Deportation President (a real legacy that will dog him through history) is how aggressive on immigration enforcement Obama has been since he took office.  He has now deported more than 2,000,000 people in just 5 years in office, something President Bush took 8 years to do.  Criminal prosecutions of immigration-related offenses (typically reentry after deportation--most people usually try to come back to their children) are at their highest point in history, up 468% since 2003, putting enormous strain on an already underfunded federal court system. And, Obama's ICE detains more than 430,000 people a year solely for immigration purposes, IN REAL JAILS (and for-profit private prisons with a mandatory daily number of 34,000 people), at a taxpayer cost of about $2,000,000,000 ($2 Billion) a year!

Obama's real legacy is one of destroying immigrant families, exacerbating an already broken immigration system, and in failing to lead out on an immigration reform package that will help our families AND our economy.  There is still time for him to recover, but that time is running out fast.  Let's pray he is successful before he destroys more families.
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One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India

12/20/2013

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

The question of immigration benefits to same sex couples is still a far cry in India. India not only disallows same sex marriages, it also currently criminalizes relationships between same sex partners, terming them as unnatural. Section 377[i] of the Indian Penal Code (“IPC”), an archaic law, was introduced in 1861 during the British rule in India, which criminalized "carnal intercourse against the order of nature with any man, woman or animal" with a maximum sentence of life imprisonment.

The struggle to strike down Section 377 of the IPC as unconstitutional has been a long one, spearheaded by several activists from Non-Governmental Organizations (“NGOs”) fighting for the rights of the Lesbian Gay Bisexual Transgender (LGBT) community.  On July 2, 2009, a historic judgment[ii] decriminalizing homosexuality was passed by the Delhi High Court in favor of Naz Foundation, an NGO working in the fields of HIV/AIDS intervention and prevention and for the rights of the LGBT community. An appeal was filed challenging this decision in the Supreme Court of India. On December 11, 2013, the Supreme Court reversed the decision of the Delhi High Court,[iii] thereby criminalizing homosexual intercourse between consenting adults. The apex court shifted the onus onto parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws. The apex court further observed that there was “no constitutional infirmity” in the 377 law. This judgment has sparked widespread condemnation throughout India and internationally, and has been criticized as regressive. Naz Foundation plans to file a review petition challenging the decision of the Supreme Court soon.

As Indian law does not recognize same sex marriages, there are no provisions in Indian law according immigration benefits to same sex partners. It is therefore not possible to qualify for an entry visa to accompany one’s partner who may be entering India on a long term employment visa.  At the most, the partner can come to India on tourist visa (for a maximum period of 180 days).

However, there have been isolated incidents and trends worth reporting. In November 2013, a senior IFS officer was demoted from her post in the Ministry of External Affairs (“MEA”) passport and visa division for refusing a visa to the same sex spouse of an American diplomat.[iv] She refused the visa on the ground that same sex marriages are not legal in India and the diplomat’s spouse could not therefore be granted a diplomatic visa and recognized as a “spouse” in India. A senior official in the MEA’s American division suggested that although there is no rule in India to give visa to a gay couple, the diplomat's partner could be given visa as a family member as it had been done in the past. In light of India’s opposition to the arrest of its Deputy Consul General in New York, one politician from the Bhartiya Janata Party has shrilly suggested that the same sex partners of American diplomats be prosecuted under Section 377 as a retaliatory measure. It is hoped that this inappropriate statement be viewed as an isolated one and not consistent with mainstream opinion.

As for domestic and unmarried partners, Indian law did not, till recently recognize the relationships between domestic, live-in partners. On June 17, 2013, the Madras High Court held[v] that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The Court held that if a woman aged 18 and above, and a man aged 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is “strong documentary evidence to show existence of such relationship,” they will still be termed “husband” and “wife.” However, this ruling is only applicable to the state of Tamil Nadu and cannot be enforced elsewhere in India.

In a recent judgment of November 26, 2013, the Supreme Court of India had dealt with the issue of live-in relationships but it was within the purview of the Domestic Violence Act 2005 (the “DV Act, 2005”). The Supreme Court has held[vi] that a “live-in relationship” would not amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the DV Act, 2005 if the lady in such a relationship knew that the male partner was already married. All live-in relationships are not relationships in the nature of marriage, but they can still come within the ambit of the DV Act, 2005.. The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and Pinaki Chandra Ghose in an appeal filed by one Indra Sarma (Appellant) against the decision of the Karnataka High Court. This ruling will only apply to domestic partners of opposite sexes and will not be applicable to same sex partners in view of the recent decision of the Supreme Court in the Suresh Kumar Koushal case[vii]

It has to be kept in mind that as these issues are very recent and path-breaking as far as Indian laws are concerned, there has been no recognition, thus far, in Indian law, of same sex partners or domestic / unmarried partners with respect to  Indian immigration. It is quite obvious that if India does not change its outlook to according benefits to same sex spouses or partners, it will be disadvantageous to the country as fewer people may wish to travel to India for tourism and business. More important, failure to recognize same-sex relationships, especially in light of a regressive penal provision in 377, is not in keeping with the principles and traditions of the world’s largest democracy country that has otherwise accommodated diverse people and beliefs through its history.

Update: In a very positive development, the Indian government filed a review petition in The Supreme Court on December 20, 2013 challenging the earlier judgment upholding Section 377 stating, "Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution."

(Guest writer Ramya Mahesh is an Associate at Little & Co., one of the oldest and most highly reputed law firms in Mumbai, India)

[i] Section 377: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

[ii]Naz Foundation vs. Government of NCT of Delhi 2010CriLJ94.

[iii] Suresh Kumar Koushal  vs. Naz Foundation decided by the Supreme Court of India on December 11, 2013.

[iv]http://www.indianexpress.com/news/ifs-officer-denies-visa-to-spouse-of-gay-american-diplomat-moved-out/1201023/

[v]Aysha vs. Ozir Hassan 2013 (5)MLJ 31.

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Please Help Me: I Have Just Found Out That My I-94 Has Expired!

12/16/2013

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by Cora-Ann Pestaina, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

Mark Thomas (not the actual name of any client, of course) is suddenly living a nightmare. He has just discovered that he has remained in the U.S. well after the expiration date of the Form I-94 issued to him the last time he entered the U.S. in H-1B status. His employer has informed him that he might be out of status and he wants to terminate his employment because he thinks Mark is no longer eligible to work in the U.S. Mark’s first desperate instinct is to get on the next international flight to anywhere and then re-enter the U.S. to receive a new I-94. However, his attorney advises him that this is too risky and warns Mark - leave and he could be barred from re-entering the U.S. for years! Mark Thomas feels hopelessly stuck.

Every foreign national who has visited the U.S. whether for business or pleasure, is familiar with the all-important Form I-94. The I-94 is the Department of Homeland Security’s (DHS) Arrival/Departure record. Customs and Border Protection (CBP) issues the I-94 to document a foreign national’s admission into the U.S.  whether the individual is admitted as a nonimmigrant or is the process of adjusting status in the U.S.   U.S. Citizenship and Immigration Services (USCIS) also issue the I-94 to foreign nationals who are extending their nonimmigrant status or changing from one nonimmigrant status to another in the U.S. This I-94 appears at the bottom of USCIS’ Form I-797A, Approval Notice indicating USCIS’ approval of the petition or application to extend or change the foreign national’s nonimmigrant status in the U.S.

Previously, whenever a nonimmigrant arrived in the U.S. by air or sea, he or she usually filled out a white arrival/departure record – the I‑94 (or green I-94W for foreign nationals entering on a visa waiver) - and presented it to the port’s CBP officer. The officer would then tear off the bottom portion of the form and stamp it to indicate the alien’s nonimmigrant status (i.e. B-2, L-1A, H-1B, etc.) and the expiration date of the alien’s authorized period of stay.  The I-94 was then stapled to a page of the alien’s passport, and upon departure, the alien had to turn in the I-94 at the port of departure as a record of timely departure.

CBP has now automated the I-94 process for all foreign nationals applying for admission at U.S. ports of entry. Air and sea travelers no longer need to complete the paper I-94 (or I-94W). CBP will still issue a paper I-94 at land border ports of entry and also to certain classes of aliens such as refugees and at other times CBP deems the paper I-94 to be appropriate. When issuing the electronic I-94, the CBP officer will stamp the foreign national’s passport with an admission stamp that indicates the class of admission; the date of admission and the admitted until date. Now, foreign nationals who need to present their I-94s as proof of their lawful status to employers, schools/universities or government agencies can access their CBP arrival/departure record information online at www.cbp.gov/I94.

Remaining in the U.S. beyond the period of authorized stay as granted on the I-94 may cause the foreign national to be out of status and unlawfully present in the U.S. Staying beyond the period authorized is a violation of U.S. immigration laws and may result in the foreign national being barred from reentering the U.S. in the future. More specifically, remaining in the U.S. for more than 180 days beyond the I-94 expiration date could cause the foreign national to be barred from reentering the U.S. for a period of three years and staying for more than one year beyond the I-94 expiration date could cause the foreign national to be barred from reentering the U.S. for a period of 10 years.

Unfortunately, many foreign nationals remain unaware of the importance of the I-94. Oftentimes, foreign nationals are confused as to which document governs their stay in the U.S. There could be one expiration date on the nonimmigrant visa stamped in their passport; another expiration date on the I-94 issued on Form I-797 by USCIS and yet another expiration date on the I-94 issued by CBP upon their last entry into the U.S. In some cases, foreign nationals and their employers can neglect to note the I-94’s expiration date and the foreign national could inadvertently remain in the U.S. well beyond the authorized period of stay possibly in violation of U.S. immigration laws. This is exactly what happened to Mark Thomas.

Mark is a national of Bermuda, who resides in Chicago, Illinois. Mark last entered the U.S. through Newark Airport in New Jersey on August 15, 2012 and presented his H-1B visa stamp valid until September 30, 2012 and his Form I-797, H-1B Approval Notice issued by USCIS indicating that his H-1B status in the U.S. had last been extended from January 1, 2012 until March 10, 2014. The Form I-797 bore an I-94 card on the bottom indicating an expiration date of March 10, 2014. At the airport, the CBP officer issued Mark an I-94 valid only until February 15, 2013, the same expiration date as Mark’s passport.

Under 8 CFR 214.1(a)(3)(i), any foreign national who applies for admission to the U.S. must present a valid passport and valid nonimmigrant visa unless either or both documents have been waived. The foreign national’s passport must be valid for a minimum of six months from the expiration date of the contemplated period of stay.  While the regulation requires the presentation of a passport with such validity dates, there is nothing mandating the DHS to grant the I-94 till the expiration date of the passport. Some countries have agreements with the U.S. whereby their passports are recognized as valid for return to the country concerned for a period of six months beyond the expiration date specified in the passport. The effect of these agreements is to extend the period of validity of the passport for six months beyond the expiration date appearing on the face of the document. The issue is discussed at 9 FAM 41.104 N2. The list of countries that extend passport validity for an additional six months after expiration is at 9 FAM 41.104 Exhibit I.

Mark presented CBP with a passport valid for at least six months but not valid for the full H-1B validity period indicated on the Form I-797A, Approval Notice. As a national of Bermuda, Mark’s passport ought to have been considered valid until August 15, 2014, six months beyond the expiration date listed in his passport. CBP issued Mark an I-94 with the same expiration date as the expiration date listed in his passport because, although the regulations do not mandate this, DHS appears to interpret “contemplated period of stay” in the regulation to correspond to the duration of the admission on the I-94. It appears that DHS does not want to grant a period of admission extending beyond the point that is six months prior to the actual expiration of the passport to line up with the regulatory requirement that the actual expiration date of the passport be six months past the expiration of the contemplated period of stay. Mark is realizing his problem now. What can Mark do?

Had Mark taken immediate note of his I-94 expiration date upon his entry in August 2012, Mark could have first sought to obtain an extension of his passport as soon as possible. Then, Mark or his attorney could have contacted the local CBP Deferred Inspection Site in Chicago where Mark lives or at Mark’s actual port of entry at Newark Airport to request that the I-94 expiration date be corrected to correspond with the end date of the I-94 issued by USCIS on Form I-797. This may or may not have been successful as it appears to depend on the particular CBP Deferred Inspection Site.  For instance, some CBP sites take the position that they can only correct this I-94 within 30 days of admission. Other CBP sites will not correct this I-94. And other CBP sites take the position that this I-94 does not even need to be corrected as I-94 on the Form I-797 governs.

If CBP refused to correct the I-94, Mark could have taken a quick trip outside the U.S. prior to February 15, 2013. If he re-entered the U.S. on a valid H-1B visa and he presented his Form I-797, H-1B Approval Notice valid until March 10, 2014 and his newly extended passport, CBP would have issued him an I-94 valid until March 10, 2014. If Mark was unable to travel, his employer could also have filed an H-1B petition for extension with the USCIS taking the position that Mark’s H-1B status was set to expire on February 15, 2013. But none of these things happened. Mark has now remained in the U.S. for more than 180 days beyond the expiration of his I-94.

As Mark’s attorney correctly advised him, it is too risky to travel now. If he travels, Mark will have to apply for a new H-1B visa at a U.S. Consulate abroad and there is the possibility that the Department of State could deny Mark’s visa application and find him inadmissible into the U.S. for 10 years. The only course of action now is for Mark’s employer to file an H-1B petition for extension of Mark’s H-1B status in the U.S. Mark’s employer can argue that Mark was properly maintaining H-1B status in the U.S. despite the expiration of the I-94 issued to him when he last entered the U.S. because the I-94 issued to him on the Form I-797, H-1B Approval Notice remains valid. On the strength of that same I-94, it can be argued that Mark’s employer could continue to employ him. As mentioned above, some CBP offices take the position that the I-94 issued with the Form I-797, Approval Notice governs, that despite the issuance of an I-94 with an expiration date of February 15, 2013, Mark could remain in the U.S. beyond February 15, 2013 and until the 2014 expiration date of his H-1B status as granted by USCIS and as indicated on the I-94 issued by USCIS. There has been no official guidance to indicate that CBP has officially taken this position.  H-1B extensions filed with USCIS on this basis, however, have been successful.

When filing the H-1B petition, Mark’s employer can also request that although the petition is being timely filed because Mark’s H-1B status will not expire until March 2014, should the USCIS take the position that Mark is not maintaining valid H-1B status, that USCIS forgive the unintentional delay in filing of the petition under 8 C.F.R. 214.1(c)(4). This regulation allows for an extension of stay for a beneficiary who has been unable to maintain his or her previously accorded status where it is demonstrated at the time of filing that (i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; (ii) The alien has not otherwise violated his or her nonimmigrant status; (iii) The alien remains a bona fide nonimmigrant; and (iv) The alien is not the subject of . . . removal proceedings under section 240 of the Act.

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Immigration Triangulation -- Another Dysfunctional Government Policy

12/15/2013

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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The dictionary defines the adjective, "passive-aggressive," as "a type of behavior or personality characterized by indirect resistance to the demands of others and an avoidance of direct confrontation."  That is an apt characterization describing how federal bureaucrats work their will in the immigration ecosphere.  The passive-aggressive behaviors show up in efforts by federal immigration officials to enlist and "deputize" third parties to enforce national immigration policies.   The ploy plays out in a variety of contexts -- from union-management relations to the interactions of corporate customers with their service providers, as well as to visa applicants trying to persuade American consular officials of not only their own their eligibility to receive U.S. immigration benefits but also the worthiness of persons and firms petitioning on their behalf.

How so?  Consider these familiar scenarios:

Verifying Employment Eligibility. Union dues are the mother's milk of organized labor. If workers cannot be hired or remain employed because they lack authorization to work in the United States, the union becomes less well nourished. In industries with historically high concentrations of unauthorized workers (say, manufacturing, hospitality, food service, construction, and janitorial services, among others), loss of dues payments from prospective members never hired, or current members terminated, for lack of work permission may force the union beyond suffering mere malnutrition to facing a life-threatening malady.

The federal government, however, has no statutory power to discourage unions from enrolling unauthorized workers as members. Its power rests with the Immigration Reform and Control Act which requires or allows various methods to determine employment eligibility and imposes burdens on employers to maintain proper records (the Form I-9 and, in some cases, digital records of immigration compliance contained in the E-Verify database) and refrain from (knowingly) hiring the undocumented.

Not surprisingly, federally induced immigration skirmishes between labor and management often ensue. Employers opt for strict compliance with the laws punishing unauthorized employment while unions urge on management only investigations that probe ever so lightly into questions of the union members' identity and work eligibility. Either way, the immigration triangulation strategy is a winner for the bureaucrats. Probe too deeply and the employer faces charges of immigration-related employment discrimination from the Justice Department's Office of Special Counsel for Unfair Immigration-Related Employment Practices or from state regulators and private litigants under laws such as those just passed in California.

Contracting with Vendors. In 21st Century America, technological innovation and globalization have transformed the way goods are produced and services provided -- a "duh!" statement of the highest order. Increasingly, American businesses are opting to "rent" rather than "buy" human capital; they prefer engaging third-party providers than hiring workers directly. This is not necessarily job-shopping or staff augmentation writ large. Rather, American corporate customers are finding it best to focus on their core competencies and to acquire sophisticated services from consultants, vendors and service providers which would otherwise be too costly or off-mission to develop internally.

Here too, the federal government has no statutory power under current immigration laws to regulate relations between private parties, in this case, between customers and vendors who legally contract for needed services.  Yet, immigration triangulation is the stratagem of bureaucratic choice.  The Labor Department insists that a contractor using employees in "H-1B"" status (the visa category for workers in specialty occupations) to fulfill its contractual obligations to its customers must post paper notices or publish electronic notices on the customers' premises or its intranet, and in some cases, must interrogate the customer about its layoff practices and plans under the "secondary non-displacement" obligation.  If the customer refuses to allow such intrusions, the government -- if it has its way -- would force the services vendor to breach its contract by pulling its H-1B employees from the customer's job site.  Similarly, U.S. Citizenship and Immigration Services (a component of the Homeland Security Department), relying on dubious legal authority (one of many infamous "Newfeld Memorandums") often refuses to approve H-1B visa petitions submitted by law-abiding contractors unless their customers disclose confidential and proprietary information about the terms of the contract for services.

Demonstrating visa eligibility.  A new form of triangulating behavior has recently surfaced among U.S. consular officers. This ploy involves a disinclination to consider evidence of work-visa eligibility unless it comes directly and solely from the applicant's mouth during a consular interview. While perhaps plausible at first blush, the new policy disregards the fact that certain "corporate facts" (e.g., strategic plans, proprietary information, financial conditions, contracts with third parties, etc.) are simply outside the ken of the visa applicant.  Until recently, however, consular officers routinely reviewed written submissions from petitioning employers seeking work visas for its foreign employees. Indeed, the State Department has long recognized the inability of a visa applicant to know and relay all of the corporate facts, and thus urged consular officers to make inquiry of the employer, as shown in this 1994 cable:

[C]onsular officers should note that in many cases involving third party contractors, the visa applicant may not be fully aware of the arrangements made by his/her employer. And the contracting company. Therefore, when questions arise as to the exact nature of such arrangements, consular officers should make it a point to confer with the employer or of allowing the alien to bring the matter to the attention of the employer before making a finding of fact.
* * *
Is there a legal basis for these sorts of immigration triangulation? No. But power is as power does. Bullying is now seen -- at least in America's schools -- as unacceptable behavior. Would that Congress reach the same conclusion with the bullying and passive-aggressive behaviors of America's immigration bureaucrats.
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I Pledge Allegiance: The Naturalization Oath and Dual Citizenship

12/8/2013

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

The oath ceremony is often one of the most significant and profound in an immigrant’s journey towards American citizenship. It signifies the end of the immigrant experience and is the final threshold before one’s acceptance as a citizen. It is also a happy moment, and the ceremony is generally accompanied by a stirring speech from a judge or well-known public official. Still, the oath, as prescribed by section 337 of the Immigration and Nationality Act (INA), requires a serious commitment from the immigrant to forever renounce former allegiances, and also insists that the naturalization applicant take the oath without mental reservation or evasion. People may still wish to keep their former citizenship even while becoming American citizens for a number of reasons, such as ease of travel to the country to conduct business or to continue to access the country’s social security and healthcare system. Our blog examines the impact of the oath on the immigrant’s desire to retain his or her citizenship of the former country.  At journey’s end, we suggest that, contrary to popular assumption or common understanding, American law is much more tolerant towards and accepting of dual citizenship than most of us, lay and lawyer alike, have ever believed.

The current format of the oath of allegiance is as follows:
"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God."
When a UK citizen takes such an oath and becomes an American citizen, what is the effect of this oath on his or her UK citizenship? The oath requires the intending citizen to “absolutely and entirely renounce and abjure all allegiance” to any country that he or she has been a citizen. At the same time, it does not seem that this individual is required to give up UK citizenship. Moreover, since the United States manifestly cannot alter the relationship that any subject or citizen has with the country of their birth or prior citizenship,  the import of the naturalization oath lies  exclusively as an expression of American attitude and belief. The requirement to renounce all allegiance to your former country does not mean that you have to cease being a citizen of that country. The concept of dual citizenship or dual nationality has long been recognized, and the State Department in recognizing dual nationality states, “A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another.”

UK does not seem to mind when its citizens takes up the citizenship of another country, including   American citizenship, which requires the taking of the oath of allegiance. German citizens, in order to retain their citizenship while obtaining the citizenship of another country, must file a Beibenhaltungsgenehmigung prior to applying for American citizenship.  Some attorneys have reported isolated instances of naturalization examiners denying the N-400 application on ground that such a person will not be able to take the US oath of allegiance without reservation. Moreover, the Beibenhaltungsgenehmigung asks for the applicant’s personal information such as name, address, date of birth, and the length of residence outside Germany. The form also asks about the applicant’s ties to Germany and detailed reasons why the applicant has to become a citizen of US or another country. No declaration of primary or exclusive allegiance to Germany is required nor does the German procedure  demand or expect any act in derogation of US citizenship.

INA section 349 specifies several conditions under which a US citizenship may be lost. These include:
  • becoming a naturalized citizen of another country, or declaring allegiance to another country, after reaching age 18;
  • serving as an officer in a foreign country’s military service, or serving in the armed forces of a country which is engaged in hostilities against the US;
  • working for a foreign government (e.g., in political office or as a civil servant);
  • formally renouncing one’s US citizenship before duly authorized US officials; or
  • committing treason against, or attempting or conspiring to overthrow the government of the US.

At no time is the newly minted naturalized American required to give up his or her foreign passport nor is the subsequent use of such passport a potentially expatriating act under INA 349.  If Congress had wanted to make post-naturalization travel on a foreign passport a potentially expatriating act, it knew full well how to do so. Under the well-known doctrine of expressio unius est exclusio alterius (“ the express mention of one thing is the exclusion of all others”), such a conspicuous omission is a clear indication that the naturalized citizen does not endanger his or her American citizenship by future travel on a foreign passport, so long as she leaves and enters the United States on an American passport as required by INA 215(b).

The primary effect of recent developments in the US regarding dual citizenship has been to add the requirement that loss of citizenship can only result when the person in question intended to give up his citizenship. At one time, the mere performance of the above (or certain other) acts was enough to cause loss of US citizenship. In Kawasita v United States, 343 US 717, 753(1952) the Supreme Court held that dual citizenship is “ a status long recognized in the law…the concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not, without more, mean that he renounces the other… when one has a dual citizenship, it is not necessarily inconsistent with his citizenship in one nation to use a passport proclaiming his citizenship in the other…” The trend in US law in recent decades has clearly and consistently been in favor or accepting dual citizenship. Former INA 352(a)(1) deprived a naturalized citizen of citizenship for residence in country of birth within 3 years of naturalization, which was found unconstitutional by the Supreme Court in Schneider v. Rusk, 401 US 815 (1971) and repealed in 1978. US citizens used to lose their citizenship for voting in foreign elections before the Supreme Court ruled otherwise in Afroyim v. Rusk, 377 US 163(1967) . In 1980, the Supreme Court  in Vance v. Terrazas, 444 U.S. 252 (1980) reaffirmed that US citizenship could not be taken away from a citizen absent the voluntary performance of an expatriating act done with the intent to give it up. Even the State Department since 1990 has adopted an administrative premise that a “routine” oath of allegiance to a foreign country that does not explicitly require the renunciation of US citizenship will be presumed to have been performed with the intent to retain such citizenship.

Afroyim and Terrazas, by making it more difficult to lose US citizenship, also served to cause the State Department to become more accepting of dual allegiance.  Danny Terrazas had obtained a Certificate of Mexican Nationality. Even though he lost his US citizenship, the effect of his case was to  make the USA more accepting of dual citizenship by making US citizenship more secure in a constitutional sense. This is further discussed at 7 FAM 1254(e):
“In light of Terrazas, the Department now presumes that U.S. citizens who naturalize as citizens of a foreign state or who declare their allegiance to a foreign state intend, absent evidence to the contrary, to retain their U.S. citizenship (22 C.F.R 50.40(a) and 7 FAM 1222). A U.S. citizen may readily rebut this presumption by either signing the “Statement of Voluntary Relinquishment of U.S. Citizenship” contained in DS-4079 (“Request for Determination of Possible Loss of United States Citizenship”) or by executing a written statement under oath indicating that he or she naturalized as a citizen of a foreign state or declared his or her allegiance to a foreign state voluntarily with the intention of relinquishing U.S. citizenship.”  7 FAM 1254(e)
Readers may also want to consult 7 FAM 1222(a) which  contains the post-1990 State Department presumption that naturalization in a foreign state, without more, is presumed by our State Department to have been done with  an intent to retain USC status and will not therefore cause loss of US citizenship.

During the late 19th and early 20th centuries, the US ratified a series of expatriation treaties (the "Bancroft treaties", named after American diplomat George Bancroft). The intent of these treaties was to prevent dual citizenship by providing for automatic loss of citizenship by foreigners who obtained US citizenship, or by Americans who obtained foreign citizenship. As a result of the various Supreme Court decisions on dual citizenship, however, the Bancroft treaties became legally unenforceable, and all of them have by now been formally abrogated by the US. One of these treaties (the one with Sweden) is mentioned in the Supreme Court's decision in Perkins v. Elg, 307 U.S. 325 (1939). The Bancroft treaties marked a rejection by the US of the common law doctrine of permanent allegiance that dates back to an old English case from 1608 called Calvin’s case.   Precisely because of its unique historical origins, born out of revolution and a rejection of the British monarchy, the US developed the notion of expatriation, that one can give up citizenship and acquire new allegiances.

The acceptance of dual citizenship represents a uniquely American return to the concept of permanent allegiance but in a new way. Under the Bancroft 19th century approach, the US embraced the right of its citizens to give up their old allegiances and become Americans. Indeed, the same Congress that defined citizenship in the 1866 Civil Rights Bill and the 14th Amendment, made the right of expatriation part of the corpus of US immigration law. Act of July 27, 2868, c h.249, Sect. 1, 15 Stat. 223 (now codified as INA 349(a)(6) and (7)) (“the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness.”) Now, in the 21st century, while expatriation remains a fundamental constitutional right, we are moving towards what may be called the “globalization of citizenship,” a more elastic but no less durable concept. Originally, common law denied the individual right to stop being a subject of the Crown. Now, the US embraces the right of naturalized citizens to retain their old allegiances while adding new ties to the USA. In effect, citizenship is shorn of its prior exclusivity and endowed with an expansiveness that it previously lacked so that a naturalized or birth right citizen can enjoy the privileges and protections of full membership in the American polity while still being able to retain traditional identities or benefit from the addition of new ones.

The final question is why do we need citizenship as a basis for defining the people of a country? There may come a time when a distinction between a citizen and a non-citizen may be as abhorrent as distinguishing people by the color of their skin. But until then, in a famous article by Alexander Bickel, Citizenship in the American Constitution, 15 Arizona Law Review 369 (1973), Professor  Bickel makes a point very much in alignment with our question, namely that one of the key reasons for the stability of the American political system, one of the “secret sauces” as we would like to say,  that has contributed to the acceptance and efficacy of our constitutional framework is the fact that traditionally citizenship does not play a supreme role nor endow its holders with rights and privileges far in excess of others. “It is gratifying,” he observes “that we live under a Constitution to which the concept of citizenship means very little.” Bickel at 367.   “Had citizenship been that important to the Founding Fathers, surely they would have bothered to define it.  Ironically, the surpassing relevance of citizenship lies not in the privileges it preserves or in the distinctions it enshrines but in  what Bickel terms its “minimalist role.”” It is precisely such modesty that serves to broaden opportunity for all, to give non-citizens what Jefferson called a “stake in society” so that even those who are not citizens identify the nation’s success and well being with their own.

Immigration law does not evolve in a vacuum but mirrors the society writ large. So, for example, the 1952 Act was chock full of ideological grounds of exclusion in the depths of the Cold War. The 1965 abolition of the national origins quota as an international civil rights bill passed the year after the 1964 civil rights act and the same year as the voting rights act.  The American Competitiveness in the 21st Century Act was passed at the height of Clinton prosperity So, with the growing acceptance of dual citizenship the fact that more Americans work abroad than ever before, that American business has gone global, that jet travel has long since become common and is no longer the province of the rich or powerful, that growing numbers of Americans go to college and beyond, that the world is increasingly flat with transfer of technology crossing national boundaries- all of this has made the world smaller, more of a global village. As this has happened, as our horizons have widened, the notion of dual allegiance has become more commonplace and more acceptable to Americans own sense of what kind of a people they are and what manner of nation we have become.

(Guest author Gary Endelman is the Senior Counsel of FosterQuan)
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Immigration Dreaming in California -- Assembly Bill 263 Will Bring Nightmares to the State's Employers

12/2/2013

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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“California deserves whatever it gets. Californians invented the concept of life-style. This alone warrants their doom.” ― Don DeLillo, White Noise “Political corruption, social greed, and Americanized quasi-socialism can ruin even the most wonderful places. California proved that.” ― Tiffany Madison

As a transplant from Michigan who has thrived in California since settling here in 1982, I've come to expect sneering and cynicism heaped upon this lovely, blessed state.  The foregoing quotes are of the genre, California sniping, expressed most frequently as Jack Frost approaches elsewhere, biting the rest of the country into its perennial frenzy of Golden-State envy.  We Californians are used to that kind of seasonally-induced, sour-grapes hurling.

But sometimes our state legislature and our governor, the monk formerly known as Moonbeam, take actions that all but invite ridicule.

Recent examples are plentiful, as my colleagues at Seyfarth Shaw, Dana Peterson and Coby Turner, noted in their Nov. 26 posting in the aptly titled, California Peculiarities Employment Law blog ("California Employees Have Even More Protections to be Thankful for This Year").  

Today's post will focus on just one section of one of two new laws critiqued in the Peterson-Turner post.   Section 4 of Assembly Bill 263, effective January 1, 2014, adds this new provision (Section 1024.6) to the state's Labor Code:

1024.6.  An employer may not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.
The new section sounds innocuous.  Of course no employer should be allowed to assail an employee who merely updates or tries to update "his or her personal information."  The transgression seems apiece with that cardinal California sin of violating one's "personal space."  The devil, however, is in the subtext.  

Consider these common scenarios:

#1:  An employer, aware that U.S. Immigration and Customs Enforcement (ICE) is increasingly auditing and penalizing employers for violations of the immigration-paperwork requirement to maintain proof of every new hire's identity and employment eligibility on Form I-9, decides to conduct a voluntary audit of its I-9 records.  The employer discovers mistakes or finds copies of identity documents and work permits that, on second look, appear to be less than genuine.  It wants to take corrective steps to mitigate any fines ICE might impose.

#2:  An employer receives a Social Security Administration letter (a no-match notice) announcing that the  employer's payroll tax contributions tied to particular employees' social security numbers (SSNs) contain information that conflicts with the SSA's own records associated with the earmarked SSNs. Or, an employer receives word from its health insurance carrier or pension administrator that the SSNs of certain employees do not square with SSA data.  This employer likewise wants to fix the problem and minimize potential fines before ICE shows up.
Assume that in scenarios #1 and #2, the employer first checks its own records and finds no reason such as a clerical error or typo to explain and resolve the discrepancy.  The employer then approaches the affected employees, explains that a discrepancy has been noted, and asks the employee to provide an acceptable explanation with documentation that resolves the discrepancy and demonstrates that the individuals in question have the right to work in the United States.  Failing the tender of acceptable evidence, the employee will be required to sign a new Form I-9 to verify identity and employment eligibility.
Rather than provide the requested documentation, each of the employees instead informs the employer that s/he has adopted a new name, a new date of birth, a new marital status, or other newly embraced "personal information" and then presents seemingly genuine and relevant original documents of identity and work authorization to confirm the change. 

Today, before Assembly Bill 263 takes effect, an employer is allowed to terminate the individual's employment if the submission of inconsistent personal information violated company policies requiring that employees be truthful in all of their dealings with the employer.  AB 263 takes away that power to sanction employee dishonesty.  Moreover, since the law also prohibits employers "in any manner" from discriminating, retaliating or taking any "adverse action against an employee" who has updated his or her personal information, AB 263 may even prohibit an employer from investigating whether the newly provided personal information is accurate or likewise false or flawed.

Suppose the employee(s) in fact lacked the right to work in the U.S. and had merely purchased a new set of papers from the local fraudulent-document purveyor.  Under federal immigration statutes and regulations, an employer may not hire or continue to employee an individual whom the employer "knows" lacks the right to work in the United States.  Knowledge of a person's unauthorized employment status can be actual or constructive, as provided in 8 CFR § 274a.1(l):
The term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.
In other words, an employer who is aware of certain unexplained facts (such as an "update" of "personal information"), but turns a blind eye to circumstances that seem suspicious or at least worthy of further inquiry, will be treated as knowing the facts that a reasonable investigation would have revealed.  Thus, if the workers were indeed unauthorized but the employer did not investigate the circumstances out of fear of violating the no-adverse-action prohibition of AB 263, ICE would likely fine the employer on two separate grounds.  The fines would be not just for a deficient I-9 but also for the more serious "knowing-continuing-to-employ" offense.

What should the employer do?  Depending on the facts at hand, the better approach would likely be to follow federal immigration law which probably preempts and trumps AB 263.  See, Arizona v. United States, the Supreme Court case which tossed out almost all of Arizona's SB 1070 on federal-preemption grounds.  Employers presented with personal-information updates should be prepared to defend against state charges under AB 263 by maintaining that merely conducting a reasonable investigation of the facts to determine if an employee is authorized to work in the U.S. is not a form of discrimination, retaliation or adverse action under the new California law.  But since California is indeed peculiar, employers should also be prepared to fight the good fight if organized labor, state authorities or the courts disagree.  At least the weather is nice.
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Free the Children: Parent's Abandonment of Green Card Should Not Be Imputed on Child

12/1/2013

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

There are a number of  unfortunate cases where the parent abandons lawful permanent resident (LPR) status by staying outside the United States resulting in the child’s LPR status also being abandoned. Should should the child’s LPR status be deemed abandoned even if the child had no intention to abandon that status?

The answer, unfortunately, is “Yes,” but there might still be grounds for putting up a fight. There is a precedent decision of the Board of Immigration Appeals, Matter of Zamora, 17 I&N Dec. 395 (BIA 198), which holds that if the parent abandons his or her LPR status while the child is in the custody and control of the parent, then the parental abandonment may be imputed to the child. The reasoning in Matter of Zamora is based on the premise that a minor child cannot legally possess an intent to remain in the United States distinct from his or her parent’s intent. Even the State Department’s Foreign Affairs Manual acknowledges that a child under the age of 16 years is not considered to possess a will or intent separate from that of the parent with regard to a protracted stay abroad. 9 FAM 42.22 N5.

Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has been subject to much interpretation by the Circuit Courts. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:
A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.”If as in (b) “the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.
Therefore, when an LPR is unable to establish that the trip abroad was temporary under the formula established in Singh v. Reno, and thus deemed to have abandoned that status, it would be imputed to the child. I question whether it is good policy as there may be a number of situations where a child may possess a separate intention from that of the parent. The Ninth Circuit Court of Appeals in Khoshfahm v. Holder, 656 F.3d 1147 (9th Cir. 2011), while affirming Zamora,  raised this possibility by citing the example of LPR parents who leave the country, but leave their child in the US to attend school or live with a relative. Under the principle set forth in Zamora, the parents’ length of stay abroad, along with a lack of continuous intent to return to the US, could result in a finding that they had abandoned status, but it would be unreasonable to impute the parents’ abandonment to the child who never left the US. There are other situations too, where say an abusive parent who is an LPR takes the child abroad and does not allow the child to return back to the US. This would result in an unfair outcome, and is inconsistent with prevailing immigration policy. The Violence Against Women Act ensures that battered spouses, children and other relatives do not need to depend on the abuser’s status to apply for immigration benefits by enacting INA sections 204(a)(1)(A) and (1)(B), which allow battered spouses of US citizens and permanent residents to self-petition for permanent residency even when the abusive spouse either refuses to sponsor or has withdrawn support on a previously filed I-130 petition.  The intent of an abusive parent can also be considered as analogous to the fraudulent conduct of a parent, which is not imputed to the innocent child.  See Singh v. Gonzales, 451 F.3d 400, 409-410 (6th Cir. 2006).

The argument to not attribute any abandonment by the parent on the child is further bolstered when the parent legally ceases to be a custodial parent, possibly due to the abusive relationship, and this is supported by the State Department guidance at 9 FAM 42.22 N5(c), which provides:
In the case of LPR children who you believe spend more than one year outside the United States as a result of an abduction by a non-custodian parent, please contact Overseas Citizen’s Services, Office of Children’s Issues (CA/OCS/CI) and the Post Liaison Division (CA/VO/F/P) to determine the proper course of action. While a returning resident visa is the preferred way for the child to return to the United States and be admitted in the proper status, a non-custodial parent may not be willing to cooperate in order to complete the returning resident visa process. CA/OCS/CI, CA/VO/F?P, and CA/VO/L/A can advise you on options in coordination with DHS to allow the child to travel back to the United States.
The Ninth Circuit in Khoshfahm also held that a child can have his or her own intent upon reaching 18th, which is like the State Department’s policy, although the State Department cuts off the age at 16.  Thus, a child should be able to establish his or her own intent independent o the parent’s intent after 16 or at least by 18.

It was thus heartening to find an unpublished decision by Immigration Judge Philip J. Montante, Jr. on AILA InfoNet at Doc. No. 13112247 (posted 11/22/13), which held that the abandonment of LPR status by a divorced parent could not be imputed to the child who was under the age of 18 where the divorce decree specifically required the child to travel to the US to visit her father resided in order to maintain her US residency. The child was also able to demonstrate that she visited her father in the US several times. Hats off to attorney Eric Schulz in Buffalo, NY, who was the attorney for the child respondent!

When an LPR child finds himself or herself in such a situation and has been outside the US for more than a year without a valid reentry permit, the child may be eligible to apply for an SB-1 visa as a returning legal permanent resident at a US consular post. Alternatively, the child can also arrive at a port of entry in the US and be prepared to submit a Form I-193 waiver under INA section 211(b) as a returning legal permanent resident who has a valid Form I-551 (green card) but has been outside the United States for more than one year. This is risky, however, because If the child is not waived into the US, then the child will be issued a Notice to Appear, alleging that he or she is an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the INA. The NTA will most likely charge the child as being subject to removal pursuant to INA section 212(a)(7)(A)(i)(I). Although the child will be subject to a removal hearing before an Immigration Judge, where an alien has a colorable claim to returning resident status, the government bears the burden of proving abandonment of lawful status “by clear, unequivocal and convincing evidence.” See e.g. Matadin v. Mukasey, 546 F.3d 85 (2d Cir. 2008).

Attorneys representing LPR children who have been deemed to have abandoned their LPR status through imputation should, where the facts warrant,  be prepared to chip away at the principle set forth in Zamora. It is no longer fair to reflexively impute the abandonment of a parent’s LPR status onto a child, especially in situations where the child has expressed an intent contrary to the parent.

(This blog is for informational purposes only, and should not be considered as a substitute for legal advice)
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