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It's Family Immigration, Not Chain Migration

1/26/2018

1 Comment

 
By now, you've probably heard one of the latest buzzwords in the immigration debate: chain migration. You'll hear it constantly now. Some horrendous threat that must end in order to move on the #DreamAct. (Plus a wall.)

But how new is it? And what does it actually mean? Humza Kazmi and I investigated.

First, the term "chain migration" exists nowhere in the immigration law. Not in the Immigration & Nationality Act, the CFR, field manuals, memos, or FAQ's. The term for individuals sponsoring their family members is called (surprisingly): family-based immigration. Our immigration laws only allow spouses, parents, children, and siblings to be petitioned for. You must be a permanent resident or US citizen in order to do it. Sometimes the wait is 1 year or so. Other times, decades. There's no direct way to sponsor an uncle, grandparent, etc.

​The term "chain migration" has no basis in the law. It is a made-up term. But made up by whom?
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Well, chain migration didn't always just mean a pejorative and misleading politically charged replacement of family-based immigration. It also referred to the phenomenon of immigrants from certain countries settling in the same area as others who had already moved there.
But it doesn't mean that anymore. One of the first modern, co-opted uses of chain migration was from Dr. Roy Beck in his 1996 book "The Case Against Immigration" when he described it as "family chain-migration wave." (see p 54).

 Interestingly, the concept was known in Nazi Germany. Propaganda posters showed the multitude of babies born to "inferior" races - and the charts look eerily similar to the ones used by the White House to warn o the dangers of multiplying immigrants.

It's time to end Chain Migration: https://t.co/kad5A8Slw7 pic.twitter.com/735JzAZIUa

— The White House (@WhiteHouse) December 18, 2017
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The idea behind chain migration is much older.
​​The term "chain migration" has no basis in the law. It is a made-up term. But made up by whom?
Dr. Beck was commissioned by Dr. John Tanton, a white nationalist sympathizer, to write "The Case Against Immigration." Beck's book led to the birth of NumbersUSA, perhaps the largest grassroots anti-immigrant organizations in the country.

Here is one of the first letters from Dr. John Tanton to Roy Beck, to start the project of writing that book in 1996, which grew into Dr. Beck being the President of NumbersUSA, perhaps the largest grassroots anti-immigrant organizations in the country.
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In 2006, CIS (Center for Immigration Studies), in an article by James Edwards, Jr. (of the Hudson Institute) cited Roy Beck and began using the term "chain migration." CIS, of course, is an alter ego of NumbersUSA and both are tied to FAIR and ultimately their founder, Dr. Tanton, whose private papers I am seeking to unseal in a FOIA lawsuit I filed against the University of Michigan.

CIS began to use the term in more and more and more papers, pushing this #CampOfTheSaints myth that immigrants were just going to take over the world. Terms like chain migration suited the concept very well.

A Google Trends search on the term shows about when Trump first picked it up in November. Now, all of a sudden, it's a national emergency.
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The term chain migration belongs in the same dustbin as illegal immigrant, criminal alien, and anchor baby.

IT IS A SLUR. A dehumanizing slur. Do not accept the framing. A lot of thought went into creating this term, and it goes back a long time.

It completely removes - mock, even - the idea of family unity. Even die-hard alt-right types know it's hard to sell "End Family-Based Immigration!" So - like "death taxes" - they came up with a much more convenient label. Never mind that it doesn't exist in the law. (Yet.)

It creates the false impression that an immigrant can immediately bring not only nuclear family members, but extended family members. A US citizen bringing a sibling takes 13+ years. A parent for an adult child may take 10 years or more. The only "quick" ones are spouses, children under 21, and parents of US citizens - they take just over 1 year. Of course, this assumes no delays caused by other reasons, such as the CARRP program for Muslims, lost files, or visa refusals.

I've heard Democrats use this term, and this fact has been thrown at me as proof that a) it's not a racist term, or b) Democrats are racist.

I don't care who uses it. It's a racist term, cooked up by those who've been clamoring for Muslim bans and ICE raids for decades. Ones who crippled the immigration law, turning it into a lumbering sloth that works neither in the national interest nor, as it stands, by common sense. And we're supposed to swallow some vague notion of "security" before being graced with an audience to talk immigration reform.

Sorry not sorry. Not buying the white sheet framing. Security comes from prosperity on either side of the border - walls don't help do that. Don't say things like "chain migration is what American immigration has always been about." It's not. It always centered around families. The least we can do is to honor that and not use a dehumanizing term. Dehumanization, after all, was a necessary precursor to near every genocide in history.

Labels matter. They create frames of thought. Repeating terms like "chain migration" reinforce that frame, limiting discourse to dangerously dehumanizing terms. Break free of the limits imposed by groups like CIS, FAIR, and NumbersUSA when talking about immigration. And learn a thing or two about the actual immigration system and how it (doesn't) work before opining on what you think immigrants should do.

"Why don't they just come legally?"

A HYPOTHETICAL CASE STUDY

35 year old Dreamer, #DACA expiring Mar 2018. Came to US with parents at age 4. No criminal record. Never left US.

— Hassan Ahmad (@HMAesq) January 25, 2018
1 Comment

Why Don't They Come Legally?

1/26/2018

5 Comments

 
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A HYPOTHETICAL CASE STUDY

Let's take the example of a 35 year old Dreamer,
#DACA expiring Mar 2018. He came to US with his parents at age 4. He has no criminal record, and has never left the US. He goes to see an immigration lawyer his family has been working with for years.

First: Our Dreamer is privileged, because many cannot afford counsel. Though they're maligned as "lawbreakers," the government doesn't provide them lawyers.

OK. Let's figure out how to help our Dreamer!


​
"Leave and come back legally."

Leaving will trigger a 10 year bar to reentry. A waiver (forgiveness) exists, but our Dreamer doesn't qualify. He has no parents or spouse who are US citizens or green card holders. An uncle is, but that doesn't help. Let's say he has US citizen kids. Well - to qualify for this waiver, hardship to kids doesn't count. He's out of luck.

"Afraid to go back? File for asylum!"

General fear of return is insufficient to win asylum. It must be on very particular grounds. Despite being federal, asylum law doesn't operate the same in all states. Failure to win asylum results in being placed in removal proceedings. And that's if Dreamer had no prior contact with ICE. If he has, he likely has an in absentia order of deportation. That means he would be barred from applying for asylum, unless he can show conditions in his country of origin have changed to create a new type of fear he didn't have before. Filing such a motion, if denied, would put him on the radar for deportation. 

"Just wait for the law to change."

Probably the best advice so far; "best" being relative. In the meantime, can't go to school, work legally, or drive. The #DreamAct has failed for 17 years and counting.

"Get married!"

And set down deeper roots into a country refusing to let him stay?

Even if he did, he still needs to win a waiver and return home to reenter. That waiver wasn't allowed to be filed inside the US until 2013. And still need to show hardship to USC spouse. Hardship to our Dreamer is legally irrelevant.

"Don't you have TPS or something?"

Only some Dreamers do; depends on their country. The largest proportion of Dreamers are Mexican and Mexico has never been designated for TPS. (And probably never will.) But this is being taken away by the administration, country by country, determined to leave #dedocumented as many immigrants as possible.

"Go talk to immigration."

In other words, serve yourself up to ICE. Not a good idea. They're not there to help. You're not setting up a payment plan with the IRS. Walk in, and you're on your own, buddy. No lawyer either.

"Ever been a crime victim? Maybe you can get a U Visa."

No, thank God. So no visa for me?

Nope.

Wait...I remember one time my work permit and valid SSN were stolen. I spent months fixing it. Does that count?

No. Not a qualifying crime. Sorry.

"Get your employer to sponsor you."

You're not eligible for a green card inside the US if you have more than 6 months of unlawful presence. So your employer could start the process but you couldn't file for the green card, so what's the point in starting? Also, you can't leave and come back because of 10 year bar. By the way, your employer has to test labor market first and give job to qualified US workers first.

"I'm from El Salvador. I've saved up $120k. Can't I invest and create a business that'll hire US workers?"

No. El Salvador isn't on the treaty investor country list.

"I'm from Honduras. Can I?"

No. Honduras is on the list but unlawful presence prevents you from getting a visa.

"What about the 10 years law?"

No such thing. Please don't listen to rumors on the street or what you read on the Internet. There is no law that prevents you from deportation if you've been here for more than 10 years. One of the dangers lurking for Dreamers and people like them is the bad advice floating around. One of the most persistent rumors is the "10 year law" - that if you're here for 10 years (and, in some versions, have kids here) then you cannot be deported. No such law ever existed.

"What if I serve in the military?"

There was a program called MAVNI that allowed getting citizenship for certain noncitizens with certain skills. But It expired in 2016. The current administration has failed to renew it. So, you can't serve.

"Can't I change status to a student visa?"

No. Unlawful presence requires you to leave. And once you do, you trigger the 10 year bar to reentry. You can't switch to ANY other status, actually. All for the same reason.

"Good news! I found out my grandpa became a US citizen and filed for all of us back in May 2001! I'm good now, right?"

So close, but no. Unlawful presence makes it impossible to qualify for a green card even though you have an approved petition. If it was filed before 4.30.01 you might have been ok under an old law that was never renewed. But May is too late.

"Ok my brother was born here. He can file for me, right?"

Yes, he can file a petition, but no, it won't lead to a green card. You still have to leave. And when you do, you trigger the 10 year bar. You can't get a green card inside the US. Besides, sibling petitions take 13+ years to become current. Filing a petition, then, gives ICE 13 years to find you.

I could go on and on. Immigration lawyers reading this will identify with a lot.

Remember: This isn't your granddaddy's immigration system. It is usually impossible to comply with. It is full of legal pitfalls. One mistake and boom! You're in immigration court fighting to stay.

So before you judge the 800,000-some Dreamers, or the rest of the 11 million plus undocumented population, or the forcibly dedocumented, or the ones currently in legal status struggling to remain so, ask yourself: "Were they given a fair chance to fix their status?"

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What You Need To Know About Partial DACA Reinstatment

1/10/2018

1 Comment

 
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DACA was rescinded on September 5, 2017, and USCIS has not accepted any renewal applications since October 5, 2017. On January 9, 2018 a federal judge ordered USCIS to resume accepting DACA renewal applications.


WHO CAN FILE


Any person who meets all the DACA requirements, and has held DACA at some point in the past may now prepare a renewal application. This includes those whose DACA is expiring, or has already expired. This applies nationally.
​

Only people who have never held DACA before are unable to apply.


SHOULD I FILE?


Generally, yes. However, there may be certain circumstances in which it may not be a good idea to file, such as picking up minor criminal convictions, or a large gap of time since your last DACA, other immigration violations, or something else in your background that makes you a priority for ICE.


ADVANCE PAROLE


Advance parole (travel permission for DACA holders) is still unavailable. The reinstatement of DACA does not cover advance parole, though exceptions may be made in truly deserving or emergency circumstances.


WHAT'S DIFFERENT THIS TIME AROUND


One of the legal issues that's being fought over is whether the President has the authority to stop or pause deportation of entire classes of people. As a result, DACA has a better chance of surviving if it's not perceived as quite so "automatic." That means we can expect USCIS to ask for more proof, and deny cases for people who they think might not deserve DACA relief, even if they technically meet all the requirements.


While it's still too early to tell for sure, this may well mean DACA renewals won't be so automatic. There may be requests for evidence. It may be a good idea to submit character evidence: things that show good moral character, community involvement, and educational achievement.


WHAT MAY HAPPEN TO MY DACA APPLICATION?


It is far too early to tell exactly how this will play out. We can expect the Trump administration to appeal this ruling, but it will go to the generally pro-immigrant 9th Circuit, where I do not expect them to prevail. From there, however, it would go to the Supreme Court, and there, its fate is far less certain. I would not be surprised if we saw rapid appeals and emergency hearings as we saw (and are seeing) with all the Muslim Ban litigation.


That means even if you file, there's a chance USCIS will wind up having to sit on your case, or deny it (if the administration prevails). You might even wind up with an approval, and later have that approval taken away from you. You will not get your $495 filing fee back under any circumstance.


However, there is a powerful reason to file anyway, besides the obvious chance it will get approved: having a pending application may convince an immigration judge not to order you deported if you find yourself before one. I don't want to give a false sense of security: pending DACA is no guarantee. But it's something that might help and will not hurt, so that makes it a good idea.


WHAT ABOUT THE DREAM ACT?


That is an ongoing battle. The President confuses DACA with the DREAM Act, but they are very different things. Some in the advocacy community may be concerned that reinstating DACA takes away the "emergency" of a firm sunset date (March 5, 2018), which was helping push Congress to come to a resolution. But remember: a legal loss for the administration on DACA, if ultimately upheld, is also leverage for political pressure for the DREAM Act. Moreover, as many as 122 Dreamers are losing DACA protection every day, according to the Center for American Progress, even before the so-called “sunset date.” Ultimately, DACA reinstatement does not mean the DREAM Act is any less urgent. DACA was thin ice, and this ruling only partially reinstates it. 


More fundamentally, we can't continue to play Pong with the administration and accept their limited frames of border security for Dreamers. Because meanwhile, they killed DAPA. They're attacking TPS countries, one by one. They banned Muslims. They're raiding businesses and homes. They're trying to crash the entire immigration court system to do away with it. They've continued to block meaningful immigration reform, peddling myths of "chain migration" and "anchor babies."


This is about one thing: doing what's right. Keep your eyes on that prize.
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Operation Janus

1/9/2018

2 Comments

 
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I've always advocated for clients to become US citizens as soon as possible.
Sometimes I get asked, "So once I'm a citizen, I'm good, right?" And I say, "Yes, generally. There is always a chance of denaturalization (revoking citizenship) but that is relatively rare."

Enter Operation Janus. I will not be alarmist, but I can no longer give such advice.

On September 8, 2016, the Office of Inspector General reported that 858 people had been granted US citizenship based on incomplete fingerprint records. Normally, fingerprints are checked against both immigration and FBI digital databases, but neither of these databases included all older, paper records. So some people's fingerprints may have matched older records but because they were not in either database, it failed to generate a positive hit, and was therefore never investigated.

Another 148,000 records were identified by ICE as not having been digitized (and hence not in the databases normally checked). These were of people who were fugitives, had criminal records, orders of deportation, or were otherwise potentially ineligible for citizenship. Some of those, perhaps, tried to (and maybe became) citizens.

On January 5, 2018 the first casualty of Operation Janus lost his citizenship: Baljinder Singh (aka Davinder Singh) of India. Two other Operation Janus cases (Parvez Manzoor Khan and Rashid Mahmood, both of Pakistan) in September apparently remain pending.

The DOJ is investigating 315,000 cases in which people were granted citizenship without the proper fingerprint data available. USCIS intends to refer approximately another 1,600 for denaturalization prosecution. It remains to be seen how they will decide which cases to pursue - most of these 315,000 may have been granted citizenship on incomplete data, but now the data will be checked and perhaps nothing will turn up. If there is any irregularity, however, prosecution becomes possible, and if there is a hint of fraud, it becomes likely.

Denaturalization can be prosecuted whenever citizenship was "unlawfully procured" - it does *not* require there to be fraud. Mistaken grants of permanent residence or citizenship count as "unlawful procurement" of citizenship. So it will be up to the DOJ to decide whether to prosecute. I need not remind you that Jeff Sessions heads the DOJ.

This will seemingly affect mostly people who have been US citizens for decades, where there is an older, non-digital fingerprint record that may not have been checked - until now.

Main takeaways from this story:
  1. Old issues can and will come back to haunt you. If you're on the path to citizenship, remember this and remember it well.
  2. Citizenship is not truly final. Do not be lulled into a false sense of security.
  3. It will be interesting to see the breakdown by country of former nationality of Operation Janus.


Attorney Lily S. Axelrod correctly points out: this is not a reason to panic, and it's certainly not a reason not to file for citizenship. What it does mean is that sound advice is very important. It also means citizenship is not an straightforward as it used to be.

2 Comments
    DISCLAIMER: If a blog post you read here contains case results, be advised that case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.

    Authors

    Sharifa Abbasi, Esq.
    Hassan M. Ahmad, Esq.
    Humza Kazmi, Esq.
    Faisal Khan
    ​Valeria Prudencio
    Carly Stadum-Liang, Esq.

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