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

All eyes are focused on whether the California Supreme Court will grant an undocumented lawyer a law license in the case of Sergio Garcia. If an undocumented lawyer like Garcia is granted a license, what would happen if he chooses to practice immigration law? In the past, undocumented lawyers who practiced immigration law have been disciplined by bar counsel within the immigration agencies.  The same fate should not befall future undocumented lawyers if they choose to practice immigration law after the state has granted them a license to practice law.

The first question is whether an undocumented lawyer can be granted a law license by the relevant state.  The Department of Justice has argued that 8 USC §1621 prohibits a state from granting a public benefit to an undocumented alien, which also includes a professional license. At the oral argument last Wednesday, September 4, the judges seemed to agree with the DOJ’s position. However, 8 USC §1621 also allows a state to bypass §1621 by enacting specific legislation that could grant a benefit to an undocumented alien. Thus, even if the California Supreme Court rules against Garcia,  the California legislature has passed specific legislation, AB 1024, that would authorize the granting of law licenses to undocumented aliens. This legislation, if signed by the governor,  will moot the case in the California Supreme Court, but the DOJ is likely to make the same argument in other states.

The DOJ’s hypertechnical argument clearly goes against the spirit of the Obama Administration’s deferred action for childhood arrivals (DACA) policy, although Garcia was too old to take advantage of it. The DOJ has also argued in a similar case in Florida that §1621 precludes a state from granting a law licenses to a person who has since received work authorization under DACA.  It boggles the mind as to why the DOJ would read §1621 so broadly so as to oppose the granting of a license to a lawyer who has been authorized to remain in the US and work under DACA.

There are compelling arguments why an undocumented lawyer should be granted a law license. A law license should be separated from the ability to work in the US. There are many foreign lawyers who get law licenses in this country even though they may not be eligible to work in the US. They have entered the US on student or tourist visas, and take the state bar exam. While they may not be able to remain in the US longer than their visa and plan to return to their countries, they are nevertheless granted a license based on their competence and fitness to be lawyers. Such lawyers can practice US law in their own countries, and even apply their knowledge of such law, when they legitimately visit the US for business purposes.

With respect to an undocumented lawyer who may remain in the US, he or she need not be employed by an employer in violation of federal immigration law. Such a lawyer could potentially work as an independent contractor or perform pro bono work as a volunteer without potentially violating the employer sanction laws. The DOJ in its brief cites Matter of Tong, 16 I&N Dec. 593 (BIA 1978) to argue that self-employment qualifies as working without authorization. But Matter of Tong was decided long before the Immigration Reform and Control Act of 1986, which made it unlawful for an employer to hire a person who is not authorized to work in the US. Matter of Tong only held that an alien who engages in self-employment, when otherwise not authorized to work, cannot adjust status under INA §245. It does not prohibit self-employment, and in any event, an undocumented person is ineligible to adjust status.

So, what would happen if an undocumented lawyer is granted a license, which is about to happen in California,  and then decides to practice immigration law? The DOJ’s brief in the Sergio Garcia case cites instances of disciplinary action taken against licensed attorneys who were not authorized to work in the United States by disciplinary counsel within the USCIS and the EOIR . See Matter of Ravindra Singh Kanwal, D2009-053 (OCIJ July 8, 2009) and Matter of Noel Peter Mpaka Canute, D2020_124 (OCIJ March 16, 2001). In both the cases, the attorneys had work authorization and then fell out of status, but never contested the charges and consented to the order of discipline. They were indefinitely suspended, but could apply for reinstatement if they could demonstrate that they had lawful immigration status or were granted employment authorization. Both of these attorneys were then reciprocally disciplined by their state bars in New York and Colorado and other states where they were admitted as attorneys.

Despite the groundswell of support for granting licenses to undocumented attorneys, bar counsel within the immigration agencies could potentially start disciplinary actions against them if they practice immigration law based on the prior precedents.  When a state has granted a law license to an undocumented lawyer, knowing fully well that the lawyer is undocumented, one is hard pressed to think about the ethical basis to discipline a lawyer who decides to practice immigration law. Under 8 CFR 1.1 and 1001.1, both the DHS and EOIR must recognize an attorney “who is eligible to practice law in and is a member in good standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the United States, or the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law.” An undocumented attorney who falls under this definition is recognized under federal law to engage in the practice of immigration law.

Although the two published decisions are devoid of details as the immigration attorneys conceded to the disciplinary charges, it is hard to find a disciplinary ground under the federal immigration rules in 8 CFR 1003.102 that would sanction an undocumented attorney who chooses to practice immigration law, especially if such an attorney is not employed in violation of the employer sanction provisions, practices as an independent contractor and otherwise engages in ethical conduct. Moreover, in the unfortunate event that such an attorney does get disciplined by the immigration agencies for merely being undocumented, it would be equally hard for a state disciplinary authority to find a reciprocal disciplinary ground under the various state rules of professional responsibility, which have largely adopted the ABA Model rules.  Even ABA Model Rule 8.4(c), which can sanction attorneys who “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or Rule 8.4(d), which sanctions attorneys who “engage in conduct that is prejudicial to the administration of justice” can hardly apply to an undocumented lawyer who has been granted a license by his or her state bar, and who otherwise does not engage in unethical conduct.

Even from a public policy standpoint, a foreign national lawyer, who is otherwise in H-1B visa status, can fall out of status unbeknownst to him or her if the employer forgets to timely file an extension of the H-1B status. This lawyer may have also mistakenly received an I-94 authorizing him or her to remain in the US up to a date earlier than the date on the H-1B approval notice, and the lawyer only finds out after it is too late.  A lawyer may have also applied for adjustment of status based on marriage to a US citizen, and timely applies for a renewal of the employment authorization document, but may not receive such a document from the USCIS in a timely manner. Lawyers who find themselves in such situations, and while waiting for the government to extricate themselves from this mess, may still wish to engage in a pro bono case for a foreign national client. Should such a lawyer be disciplined for unethical conduct?

The disciplining of an undocumented lawyer also goes against the grain of prevailing policies and attitudes towards undocumented immigrants. There are millions of undocumented people who are waiting for immigration reform, and the Senate has already passed S. 744, which will give them Registered Provisional Status, and then put them along the pathway to permanent residency and eventually citizenship. Indeed, being documented or undocumented is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria pursuant to INA §240A(b), such as by being physically present in the U.S. on a continuous basis for not less than 10 years, by demonstrating good moral character during this period, by not being convicted of certain offenses and by demonstrating “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child,” who is a citizen or a permanent resident. Such a person whose visa has long since expired could also possibly get wrapped up in a romantic encounter with a U.S. citizen, marry, and dramatically convert from undocumented to permanent resident within a few months. Until the recent fall of DOMA, a lawyer in a same sex marriage with a US citizen could not even apply for an immigration benefit through that marriage.  At times, Congress bestows such permanent residency, as we have already seen, through section 245(i) or the LIFE Act, or a person can obtain Temporary Protected Status (TPS), if a calamity were to befall his or her country such as the recent TPS program and its extension for Haitians after the devastating earthquake on January 12, 2010. Conversely, a documented person, such as one in H-1B status can according to the government also technically be considered not in status, during the pendency of an extension request, although this position has been successfully challenged.

The following extract from the U.S. Supreme Court’s decision in Plyer v. Doe, 457 U.S. 202 (1982), which held that undocumented children could not be deprived of a public education, is worth noting:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

As undocumented immigrants become attorneys, many may want to get involved in some way in the practice of immigration law. Many of them were brought to the US as children and are without status for no fault of their own.  They may engage in advocating for the rights of immigrants, for immigration reform and may also perform pro bono work in the immigration field.  They can hardly be accused of engaging in unethical conduct by bar counsel within the immigration agencies, especially when their states have granted them licenses after being fully aware of their undocumented status.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The power of online and social media to whip up a frenzy of vituperation in the immigration ecosystem surfaced vividly once again this week.  The first trigger event was action by nine Dreamers -- six who'd been deported to Mexico and three who left the U.S. and entered Mexico willingly. Protesting the Obama Administration's mass deportation and detention policies, the DREAM9, as these youthful activists are called, immediately approached the U.S. border and asked Customs and Border Protection officials to allow them in. 

The second trigger was an article by a well-regarded immigration lawyer describing the DREAM9 action as a "publicity stunt" and "flippant" behavior, when the focus should be on enacting comprehensive immigration reform.  He also expressed doubt that the three Dreamers who left the U.S. would qualify for readmission under the asylum laws or humanitarian parole.

All sorts of nastiness ensued.  Some protested that the lawyer had no right to criticize since he is not a Dreamer, while others suggested to these critics that the lawyer, as a citizen, has a higher right to speak under the First Amendment than undocumented protesters and their equally paperless supporters.  Both sides on this spat are wrong -- the First Amendment applies to everyone in the United States.  

The DREAM9 have reportedly been denied parole into the United States (the discretionary power of the government to admit individuals on a case by case basis under § 212(d)(5)(A) of the Immigration and Nationality Act for urgent humanitarian reasons or significant public benefit).  Shuttled off to the Eloy, AZ detention center as civil detainees, the DREAM9 sit in custody or solitary confinement, while they prepare to request asylum in the United States and participate in a hunger strike to protest detention conditions generally. 

As this dust-up shows, there have been collateral damage and casualties in this war of words, not the least of which are our nation's deservedly maligned, and mostly misunderstood immigration laws, as well as our tradition of activism and civil disobedience to spur changes in law and policy.  The lawyer (whom I respect) is right to consider the fine points of immigration law, but wrong to publicly prejudge the outcome of their requests for asylum and humanitarian parole since he is not privy to the facts.

Certainly, a case can be conceived of compelling humanitarian grounds and significant public benefits upon which to grant humanitarian parole or asylum. They have lived, been educated and are like the everyday Americans among whom they grew up.  Crime in Mexico, especially kidnappings of wealthy Mexicans or American tourists or those perceived as such have been acknowledged by the U.S. Department of State ("The number of kidnappings and disappearances throughout Mexico is of particular concern. Both local and expatriate communities have been victimized. In addition, local police have been implicated in some of these incidents").

Moreover, throughout American history our immigration laws have reflected the political sentiments of the times -- from the Alien and Sedition Act, the Chinese Exclusion Act, and our modern day Immigration and Nationality Act, a McCarthy-era law focused on preventing Communists from entering the country, to the Cuban Adjustment Act and the Chinese Student Protection Act.  Immigration law and politics are inextricably bound, as these Dreamers know well, given the Obama Administration's use of executive power to create the program known as DACA (Deferred Action for Childhood Arrivals) just in time to favorably influence the 2012 presidential election.

No less than voting, political protests and civil disobedience put pressure on the system, not just on the President. House leaders Cantor and Ryan have changed their tune to recognize a benefit for Dreamers. They now acknowledge the unfairness of depriving innocent youth who've lived like Americans their whole life a path to legality.

It's way too soon to critique the methods used by the DREAM9 and their supporters when immigration policy arguments are in flux. I commend them for their bravery and for their willingness to shed light on the whole rotten detention and removal system that needs to be reformed from its core. Criticizing these kids distracts from the real targets of criticism -- the dysfunctionality of the immigration laws, the prison-industrial complex and the border-focused government-contractor giveaway.

Or as another respected immigration lawyer reminded me, Frederick Douglas said:

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

At the time of writing this blog, more than 48,000 people have signed a petition on the White House website asking that CNN talk show host be deported for his comments on gun control in the wake of the mass shootings at Sandy Hook school.

According to one of the two petitions, "We demand that Mr. Morgan be deported immediately for his effort to undermine the Bill of Rights and for exploiting his position as a national network television host to stage attacks against the rights of American citizens."

The White House is obligated to respond if the petition gathers 25,000 signatures within 30 days. Mr. Morgan, a British citizen, is not a citizen of the United States. Non-citizens can be deported from the US for a number of immigration offenses, but can Mr. Morgan's strident comments favoring gun control truly lead to his deportation?

Not really, based on a quick analysis of some of the relevant provisions in the Immigration and Nationality Act.

Mr. Morgan certainly doesn't seem to be seeking "the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means," and so he is clearly not deportable under INA 237(a)(4)(A)(iii).  Nor is he one who "endorses or espouses terrorist activity", under INA 212(a)(3)(B)(i)(VII), and so he's not inadmissible under that broad provision.  And there's no reason to think that opposition to the Second Amendment would have serious adverse foreign policy consequences. Indeed, it is more likely the reverse given the international outrage against proponents of gun ownership, especially the ownership of automatic assault weapon, that led to the killings of 20 defenseless children and 6 others. So INA 212(a)(3)(C) does not apply.

Mr. Morgan has nothing to fear, if he indeed fears being deported from the United States, and the petitioners are truly wasting their time and losing more and more credibility  in the wake of an increasing number of gun related deaths. While the United States is clearly not the envy of the world with regard to its obsession for gun ownership that results in more homicides than most other nations, it can at least boast of freedom of speech enshrined in the First Amendment in the Bill of Rights. Anyone, citizen or non-citizen, whether within or outside the US, has the right to peacefully advocate for a change to the US Constitution, including a re-evaluation of the Second Amendment that forms the basis for people to easily own guns, including assault weapons that lead to the tragic and senseless slaughter of innocents.

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

Immigration lawyers are used to interpreting complex immigration statutes in the absence of regulations. Indeed, there has evolved a “common law” within immigration practice based on governmental guidance memos and even letters written by government officials in response to an attorney’s query. Immigration lawyers often refer to a letter of Efren Hernandez or Jacqueline Bednarz from more than a decade ago as if they have the halo of an authoritative and binding decision. The problem is that unless the government actually promulgates a regulation under the Administrative Procedure Act, such memos and letters are hardly binding. Still, stakeholders, including the government agencies, have conveniently created an illusion that they are binding, and readily cite to them, even when they are not.  From an immigration attorney’s point of view, the stakes are too high for challenging their authority. It is strategically prudent to demonstrate how their client qualifies under such informal agency guidance, and seek a quick approval, rather than challenge their validity in long drawn litigation.

Agency interpretations advanced in “opinion letters” neither justify nor enjoy Chevron-style deference. Christensen v. Harris County, 529 U.S. 576, 587 (2000) (contrasting interpretations in opinion letters with those “arrived at after…a formal adjudication or notice-and-comment rulemaking.”). Instead, “interpretations contained in less reliable formats such as opinion letter are ‘entitled to respect’ under Skidmore v. Swift., 323 U.S. 134, 140 (1944), but only if they have the ‘power to persuade.’” Christensen, 529 US at 587; see also Catskill Devel, LLC. V. Park Place Enter. Corp., 547 F.3d 115, 127 (2d Cir. 2008) (under Skidmore, agency viewpoint articulated in an opinion letter was “entitled to deference only to the extent that it ha(d) the power to persuade” the court).

Much of our legal reasoning rests upon a very uncertain foundation. One is reminded, for example, that all of the American Competitiveness in the 21st Century Act (AC 21) interpretations upon which we routinely rely are not the product of APA rulemaking but of agency memoranda or opinion letters. To the extent that these may benefit us or our clients, let us remember that they are not endowed with Chevron-style deference and can be ignored or overturned by subsequent court rulings.  We have seen this in the context of AC 21 adjustment of status portability. In a 2009 decision styled Herrera vv USCIS, No. 08-55493, 2009 U.S.App. LEXISs 14592 (2009), the Ninth Circuit held that the revocation of an I-140 petition under INA 204(j) without bothering to acknowledge or distinguish the facts of the case  sub judice  from the 2005 Aytes Memo on AC 21, which states that a withdrawal of an I-140 petition after 180 days did not undermine portability. See Cyrus D. Mehta, Ninth Circuit In Herrera v. USCIS Rules that Revocation of I-140 Petition Trumps Portability, http://www.cyrusmehta.com/Print_Prev.aspx?Subldx=ocrus200979113434.

Several years ago, stunned lawyers learned to their utter dismay that even opinions of the legacy INS General Counsel could not be counted on. Matter of Izumi, A 76 426 873 (decided by Associate Commissioner, Examinations, July 13, 1998). The absence of  guidance is the lawyer's worst nightmare. Without knowing how the game is played, the lawyer does not know when to advance or when to retreat. He or she is prone to putting in too much or not enough, placing undue emphasis on what is secondary and glossing over that which is truly essential. Some cases take an excessive amount of time to prepare while others are filed prematurely. Law becomes a high stakes poker game, justice by ambush. The USCIS adjudicator also is at sea. Uncertain what standards to employ, frustrated by a nagging suspicion that overly clever attempts by an unscrupulous bar will win benefits for clients who do not deserve them, the line analyst looks in vain for guidance that does not come. The process becomes complex, complicated and expensive. Conflict replaces cooperation leading to litigation and micromanagement. There seems no exit. When nothing is sure, almost anything can happen.  In the absence of borders, can order survive?

At the recently concluded CIS Second Annual Conference in Washington DC on October 18, 2012, Cyrus D. Mehta addressed key issues ripe for rulemaking involving unlawful presence, American Competitiveness in the 21st Century Act (known as "AC 21"), EB-5, Child Status Protection Act and more. A power point presentation, which is part of the conference record, lays out some areas that are in need of rule making as well as some areas that do not need new rulemaking. Of course, this presentation does not claim to cover every issue, but selects a narrow slice of issues, which can greatly benefit from rulemaking.  The need for rulemaking, in the opinion of the authors, can be broken into several components, as follows:

First, some areas are ripe for rulemaking especially when the law has been interpreted in a consistent and reasonable manner over several years through policy guidance memos.  Although there may be no compelling need for a rule, a rule affirming a guidance memo would create consistency and would guide all the agencies administering immigration law. One area that would benefit from such rulemaking is unlawful presence that triggers inadmissibility under INA 212(a)(9)(b)(B). There already exists a weighty USCIS May 6, 2009 Interoffice Memo providing guidance on unlawful presence, which has generally been accepted by the government and stake holders. Still, a   rule on unlawful presence  affirming this memo would bind CBP, where some offices have taken inconsistent position on Canadian overstays not being treated as if they are in duration of status (like students in D/S) and thus not accruing unlawful presence and triggering the 3 or 10 year bars. Such a rule could also potentially help to clarify the conundrum between maintenance of status and period of stay authorized by the attorney general (POSABAG)., as discussed in  this previous blog,  Cyrus D. Mehta, Victory in El Badrawi: Narrowing The Disconnect Between Status and Work Authorization, http://blog.cyrusmehta.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html. It is incongruous to allow ICE to attempt to remove one from the US while that person has filed a timely application with USCIS to extend nonimmigrant status or is in the process of adjusting status to permanent residence.  The promulgation of a rule may also avoid differences in interpretations by US consulates, such as minors accruing unlawful presence for purposes of INA 212(a)(9)(C) bar when  minors do not accrue unlawful presence for purposes of the 3 and 10 year years under 212(a)(9)(B)(iii)(I).  Finally, such a  rule should affirm informal USCIS Chief Counsel Divine letter, July 14, 2006, holding that time spent for purposes of 3 or 10 year bars can be spent in the US, and not necessarily outside the US, See Cyrus D. Mehta,  Can One Spend The 3-And 10-Year Bars In The US? http://cyrusmehta.com/News.aspx?SubIdx=ocyrus2008982149&Month=&From=Menu&Page=30&Year=All.

Second, some areas simply cry out for a rule because the absence of which renders the statute inoperable. A regulation long overdue   will assist a group of EB-5 investor applicants who have filed removal of their conditional resident applications more than a decade earlier. The 21st Century Department of Justice Appropriations Authorization Act, H.R. 2215; PL 107-273 – which affect investors who filed I-526 applications between January 1, 1995 and August 31, 1999 and I-829 applications before November 2,2002 -  can only take effect upon the promulgation of a regulation.  Their I-829 applications still remain pending in 2012 due tot the absence of a  regulation. Even in the absence of such a long overdue regulation, EB-5s should at least be found eligible for naturalization as they have been conditional residents for over a decade.

Third, we can and should advocate for new or modified regulations, where there has been harshness and the impact to those seeking immigration benefits that may not necessarily reflect the plain meaning of the statute. Such regulations may also be in the spirit of the Obama administration’s policies concerning prosecutorial discretion. We make a few selected proposals that can greatly improve both efficiency and fairness:

Finally, there are legal issues, where regulations have already been promulgated, that do not require modification through a new rule just because of a new sentiment. For example, since the economic downturn, there has been a tendency on the part of immigration officials to become self appointed guardians of our economy, and with misguided zeal, they endeavor to protect jobs of American workers by reinterpreting the law. The definition of the employer-employee relationship for H-1B purposes is quite clear under 8 CFR 214.2(h)(4)(ii), and attempts to modify it through the Neufeld Memo are  simply not necessary, See Cyrus D. Mehta, Halcyon Days In H-1B Visa Processing,  http://blog.cyrusmehta.com/2010/02/halcyon-days-in-h-1b-visa-processing.html.  The Neufeld Memo too has been treated as interpretive guidance and not binding in Broadgate v. USCIS, http://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2010cv00941/142518/15.  We propose that the Neufeld Memo be withdrawn. Similarly, the L-1B specialized knowledge definition under 8 CFR 214.2(l)(1)(ii)(D) reflects the intent of  the Immigration Act of 1990 (IMMACT90), and there is no need to muddy the waters by restricting the definition by resurrecting administrative decisions prior to IMMACT90 when the specialized knowledge definition was more restrictive, and included proprietary knowledge, which was eliminated after 1990.

What is blindingly transparent is that what we have now simply has broken down. Years pass after Congress enacts major immigration legislation and, time after time, implementing regulations are nowhere to be found. Is there anyone who knows anything about immigration practice who would not acknowledge a real and present need for rules that are clear, specific and accurate?  While the broad outlines of immigration policy are set by Congress what this policy means each day in real life is most often a matter of what the implementing regulations say. The job of Congress is to articulate a long- range vision while that of the Executive is to make short-term, tactical adjustments.

How the agency puts the law into practice often has more to do with its ultimate impact, of lack of one, than the black letter law itself. The gap between what Congress intended and what the regulation mandates can often be the distance between rhetoric and reality. The proposals we advance reflect our core belief that the American economy would benefit from a more cooperative relationship between regulators and those they regulate.  We urge that traditional notice and comment rulemaking be informed by a creative exchange about possible solutions to ultimate problems. Our hope is that the rulemaking process itself facilitates mutual education on the proposed rule’s practical effect so that honest strategies can emerge capable of resolving fundamental differences.

Those who believe as we do that immigration is good for America have their principles right. Our challenge as a nation is to translate these principles into practice. This is why we write. We do not expect that this will be easy but we ask our readers who shrink from the task to remember the story of the rebellious prince who ran away from the palace of his father the King. “Come back” said the King through his most trusted messenger, only to be told “I cannot.” Back came the royal reply: “Go as far as you can, and I will come to you the rest of the way.”

Nicole ("Nici") Kersey, Colleague of ABIL Immediate Past President Angelo Paparelli
Nation of Immigrators

[Blogger's Note: Nici Kersey, my colleague at Seyfarth Shaw who directs its Immigratio​n Compliance Center, offers another distinctive and entertaining guest post.  (Her earlier posts can be found here and here.) Today, Nici (on the right in the photo [the infant on the left is from a Hollywood casting agency]) shares the stories behind her resume, blaming the government for the fact that she now harms the same people she set out to help.  I can relate to Nici's angst, as I noted in "The Distressed Bearer of Bad Immigration Tidings."

There are of course so many immigration stories, as I noted in my post, "Telling Immigration Stories," which talked about the power of narrative as a way of humanizing immigrants.  That post also discussed the award-winning book -- Green Card Stories -- which masterfully depicts the personal journies of 50 immigrants to America. The back story on Green Card Stories is that it was produced with help from members of the Alliance of Business Immigration Lawyers, who urged their clients to allow their stories to be revealed as a way of inspiring others on the journey to achieving the American Dream.  

Perhaps, the Editors of Green Card Stories, Laura Danielson and Steve Yale-Loehr, might be persuaded to launch a companion volume describing how 50 immigration lawyers chose (or more likely, stumbled upon) immigration law as a career.  Nici's quirky story is certainly worthy of inclusion.] 

A note from Nici:

Angelo has graciously invited me to post here a couple of times, and I know that my topic and style differ vastly from his.  My topics are less timely (this one is about things that happened as many as 15 years ago), and my posts tend to be more about me than about immigration.  (I admit to being relatively self-centered.)  I’m also probably one of the least political people you’ll ever meet.  (Except for my Fry Okra, Not People t-shirt and my Let a Lady Lead button, you’d be hard-pressed to find any evidence of my political leanings.)  Still, I hope you enjoy this as a bit of thoughtful fluff to soften the space between Angelo’s always sharp and generally hard-hitting posts.

The other day, I received a phone call from a client.  He started:  I know how you feel about undocumented workers, but ….  (Well, he didn’t use the word “undocumented.”  He said “illegal.”)  And I thought:  Really?  I don’t think you do.  I told him as much, saying that, despite the advice I have to give my clients, I have nothing against undocumented workers.  In fact, they are the reason I do what I do.

My job requires me to get people fired from their jobs.  Often, the people getting fired are long-term, trustworthy employees who work hard and do their jobs well.  But they may be using someone else’s SSN or a fake green card, and once that comes to light, my duty is often to recommend that their employment be terminated. 

These workers are the same people I set out to help when I first thought of attending law school.  Yes, when I hear the terms “sell out,” “traitor,” “turncoat,” or “double agent,” I can’t help but think of the ways in which they may apply to me.   (I like double agent the best, because it’s the most dramatic, and I envision myself wearing a pretty bad-ass costume.  Though turncoat might lead to more Academy Awards, as those tend to go to the period pieces.)

But, in part because this is for Angelo’s blog, and in part because it’s true, I blame the government for my defector/deserter status.

Either way, I would be working with kids:

As a freshman in college, I applied for a summer job at F.A.O. Schwartz in Indianapolis at the Circle Centre Mall.  I was hired and scheduled to report just after classes let out.  I never started that job.  I had thought it would be fun to spend the summer in a toy store, though I’m sure the actual experience would have differed somewhat from what I imagined, which involved Tom Hanks and a giant piano.

Before the summer began, I received a phone call from my high school Spanish teacher.  (This was an actual phone call on what we now refer to as a land line.  Mike Maxwell called my parents’ house, and my parents relayed the message to me.  Then I had to key in a special code to make a long-distance call from my dorm room to call him back.  Cell phones existed, but walking around a college campus was a different experience then.)

Mr. Maxwell asked if I had a summer job yet, and I was excited to tell him of my toy store plans.  He quickly told me that I would not be working at F.A.O. and instead needed to make a phone call to the Indiana Department of Education. 

Crap, I thought, more long-distance charges.

For the next four summers, I worked for the Indiana Department of Education’s Migrant Education Program.  The program employed mostly college students with strong Spanish language skills.  We were paired up and sent off to travel around the state and tutor the children of migrant workers from Texas and Mexico.  The purpose of the program was to help these children, who spent much of the school year following the crops (melons, corn, beans, and tomatoes in Indiana; blueberries in Michigan, strawberries and citrus in Florida, etc.), to keep up in school. 

To be honest, I spent a large part of those four summers in the car.  I teamed up with Jill, and together we covered the southern half of the state.  We frequently spent four or more hours driving each day.  We were paid (more than minimum wage!) from the minute we left home until we returned in the evening, and we were reimbursed for mileage.  It was fantastic.

The families we worked with insisted on feeding us, and the food was the kind of authentic Mexican food that you can only get in someone’s home.  The kids were sweet and eager students, and I was grateful for the job.  Almost every family gave us melons, straight from the fields.  I did not worry then, as I would now, about being charged with possession of stolen fruit.  I proudly presented the melons to my mom, who occasionally kept one but re-gifted the rest.  (Jill and I probably could have supplemented our income with a road-side melon stand, but we were not particularly entrepreneurial at the time.) 

Side note (yes, I know this whole thing is made up of side notes and parentheticals):  Once, a family filled our whole backseat with melons.  I was paired with Andy that day, and he indicated - in Spanish - that he “wanted all the melons,” when he meant that he “liked all kinds of melons.”  We all had a laugh, but despite our attempts to clear up the confusion, we drove away that day in a car that would forever smell faintly of overripe cantaloupe.

It all comes back to immigration:

While my job was to teach math, science, history, geography (I pretty much avoided teaching geography; the kids were better off that way), and English to the children, their parents seemed to assume that we had a deep understanding of immigration law.  They asked, again and again, what papers they needed to file to “get legal.”  They asked where they could get help.  The brochures we had been given by the DOE to address these questions were generally unhelpful, as there was really not much that the workers could do.

Each summer, the state held a conference on migrant workers, and I was always interested to hear what the speakers said about immigration.  According to one speaker, 2/3 of the migrant workers in Indiana were authorized workers.  Looking back, I don’t think that could possibly have been accurate, but I was happy to repeat the statistic to anyone who complained about my helping “those illegals.” 

One thing that the speakers consistently said when asked what could be done to help the workers “become legal” was, basically, nothing.  Using the H-2A agricultural worker program was too slow and too expensive, and so the vast majority of farmers simply used the workers who showed up year after year.  Except in rare circumstances, these kids’ parents were, for lack of a better term (or for my lack of willingness to come up with one) screwed. (Many of the kids themselves had been born in the U.S., so they may now be able to file petitions for their parents.  But at the time, the kids were seven to 13 years old.  If they had been any older, they’d have been in the fields with their parents, not sitting and studying math with me.)

At the end of each conference, there was a drawing for door prizes.  Red Gold always provided gift boxes full of tomato products (picked and canned by the migrant workers), and I always wanted – very much – to win one of these door prizes.  I never did.  (I still don’t know why the idea of a large box of ketchup and tomato sauce was so appealing to me, and it has been suggested that I delete this whole paragraph, but I chose to leave it in as an experiment -- to see whether Red Gold, or anyone else, sends me tomato-related gifts after it is posted.)

I was pretty much doomed to work in immigration:

When college ended, and my summers with the DOE were done, I spent a brief period thinking that I would work in the theater.  That (surprise, surprise) didn’t “stick.”  And soon I got married and moved to Tacoma, Washington, where my husband, then a Lieutenant in the Army, was stationed at Fort Lewis.  It was 2002, and the job market was not great for someone with degrees in Spanish and creative writing.  I started leafing through the phone book, trying to find someone who might be looking to hire a responsible Spanish-speaker.  I stumbled upon a non-profit “immigration assistance center,” and was shocked to be more-or-less hired over the phone.

At the center, we saw walk-ins and took appointments, preparing family-based immigration petitions for those who were eligible. In most cases, however, we charged a small consultation fee, listened to sympathetic stories, and told our customers that we were very sorry, but there was simply nothing to be done.

I also recall being reprimanded for stapling papers the wrong way, which I still don’t understand.  (I was shown the “right way” a number of times, but I never grasped the difference.  I’m sure my employee file has something in it like “incompetent at stapling.”)

How I almost ended up on the other side:

During my time at the center, I applied for a number of other jobs, some involving the theater, and others relating to immigration.  I ultimately landed two:  one as a passport specialist at the Seattle Passport Agency and one with INS as an enforcement officer.  These jobs took a lot longer to get than did the F.A.O. Schwartz position, but they ended the same way – I never started either.

The INS job had taken nearly a year to get.  The FBI had visited friends, family members, neighbors, teachers, and professors to make sure I was not a traitor, turncoat, or double agent.  I had undergone the most extensive physical in my life.  (I was told not to eat prior to the tests, then asked to do a series of strenuous tasks – as many sit-ups and push-ups as I could, running as fast as I could, etc. – then had about a gallon of blood drawn.  It was while I watched the technologist draw vial after vial of blood that everything became pixilated, then went black.)  I was sure that I had failed the physical (as INS officers probably should not faint when chasing down would-be “illegals”), but I ultimately received a congratulatory letter, indicating that I would be assigned a training date in the coming months.

Then I received a letter explaining that INS was becoming part of DHS, and that if I wanted to work for DHS, I would have to start the application process anew.  I was a persistent person, but it seemed that DHS treated those applying for jobs much like those applying for immigration benefits - and I was afraid of having my blood drawn again - so I decided to work for the Department of State instead.

I accepted the Department of State job, but a few weeks before I was to start, my husband informed me that we were being transferred (PCS’d, in Army lingo) to Fort McPherson in Atlanta.  And that’s how I ended up not working for the government.

After we moved, I was lucky to find a position as a legal assistant at a law firm.  The law firm?  Seyfarth Shaw.  And I’d be working – gasp – in the immigration group.  My once-and-future boss (Jim King) swears that I worked as his assistant for a couple of years.  But it was only slightly more than six months.  I wonder now whether it was my incompetence at stapling things that made this period seem so much longer to him …

So I up and went to law school:

Before starting at Seyfarth, I had applied to law schools; I vaguely recall that my applications – like every law school application ever submitted – said something about my desire to help people.  (I know for a fact that I wrote a fair amount about elephants, diminutives, and contagion – but this story has already gone on for far too long to go into detail.)  The people I had in mind were the migrant workers in Indiana and the undocumented people in Tacoma who I had been unable to help.

During law school, however, and after I began to practice law, it became clear that being a lawyer would not dramatically change the fact that I could do nothing – or almost nothing – to help the undocumented farm workers or the people who had simply come to this country to make their families’ lives better, or safer, or easier.  Despite the many ways in which law school is like Hogwarts, being a lawyer did not mean that I could magically change the law.

At least at first, my job as an associate in the immigration group at Seyfarth allowed me to “help people” and to alter their lives through legal immigration.  I was obtaining H, L, TN, O, and even R visas.  Filing PERM applications.  Responding to RFEs.  And I was able to do a fair amount of pro bono work, even managing to help a couple of “those illegals.”

Then I began to specialize in compliance work, focusing mainly on I-9s and E-Verify.  I enjoy this work.  I help keep businesses from facing massive risk due to paperwork violations, and this means that I get to truly partner with my clients to build policies and practical solutions for their businesses.

The downside, however, is that I also face situations, almost daily, in which I advise a client to terminate the employment of an individual who lacks work authorization.  I spot fake green cards and tell my clients that they have to let the employees go.  But she’s my best worker, they say.  She’s been with us for 20 years.  She’s like family.  Isn’t there anything we can do? And I have to tell my client that we can look at the employee’s circumstances, but that in all likelihood there is nothing that can be done.

I love my job.  And I help my clients save boatloads of money by providing training and completing audits of their I-9s.  But it is hard – extraordinarily difficult sometimes – to know that instead of helping the migrant farmworkers, the cooks, the factory workers, the housekeepers, and the construction workers, I am a key player in their loss of jobs. 

And while I sometimes feel that I have let them down, I have to remind myself that I would try harder, do more – if only the immigration laws provided a path to legalization.  I know that it doesn’t always have to be one extreme or the other (get them green cards or get them fired), but short of quitting my job and helping people make better fake green cards (I think I might have a talent for that!), I’m not sure how to help.  I have not let go of my hope that the government will some day create a way for me to help the people I originally set out to assist.  It would be lovely, one day, to be able to say: Yes, there is something we can do.  This is how we start.