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departments CONTENTS 6 President’s Page Preaching to the Unconverted: Enforcement Only Fall-out: 12 Americas Need for Skilled On-the-Ground Report from Reno Foreign workers by Michele R. Pistone and John J. Hoeffner 8 Pro Bono Minnesota Advocates for Human Rights

42 Reader’s Corner Nolo Press Tackles Immigration in Self-Help Books

4 6 Practice Pointer Marital Disharmony Preparing a Successful VAWA 22 Self-Petition Immigration Consequences of Separation and Divorce 5 0 Practice Management Passion and Perseverance by Jonathan S. Greene, Cheryl R. David, Amid Immigration Crisis and Suzanne Tomatore

5 4 Legal Action Third Circuit Adopts “Reasonable Likelihood” Standard for Ineffectiveness of Counsel Claims in Removal Proceedings We Asked for Workers 6 0 Status Checks 34 But Families Came ALSO Time, Law, and the Family in Immigration and Citizenship Pro Bono Profile: Meet Alan Goldfab by Hiroshi Motomura p. 10

Chavez World p. 10

Advertisers Index p. 58

On the cover: istock / BonoTom studio AILA’s Contact Information Immigration Law Reprint requests; editorial comments; letters to the editor; proposals for Today submission of articles: [email protected] Managing Editor tatia L. Gordon-Troy AILA National Officers Display advertising information: Assistant Editor Kristine L. Tungol President Kathleen C. Walker [email protected] Editor-in-Chief crystal Williams President-Elect charles H. Kuck or call (202) 216-2400 Contributors Y. Judd Azulay, Dan Berger, 1st Vice President Bernard P. Wolfsdorf Address changes: Kathleen Campbell Walker, Nick Chavez, www.aila.org/myprofile (AILA members) Cheryl David, Brian Green, Jonathan 2nd Vice President David W. Leopold 1-800-982-2839 (nonmembers) Greene, Phyllis Gould, John Hoeffner, Treasurer Eleanor Pelta Leslie Holman, Hiroshi Motomura, Ordering AILA publications: Secretary Laura Lichter Kathleen Moccio, Angelo Paparelli, www.ailapubs.org; 1-800-982-2839; Michele Pistone, Stephen Reich, Mark Executive Director Jeanne A. Butterfield or for general publications-related Silver, Suzanne Tomatore, Lun Tonsing, questions: [email protected] Rebecca Whiting, Stephen Yale-Loehr Disclaimer Design & Production Bono Tom Studio, Inc. AILA’s Immigration Law Today features and departments do not necessarily represent www.bonotom.com the views of AILA, nor should they be regarded as legal advice from the association Editorial Advisory BoarD or the authors. AILA does not endorse any of the third-party products or services Barbara Bower, Pittsburgh advertised in Immigration Law Today, nor does it verify claims stated therein. Ted J. Chiappari, New York AILA’s Immigration Law Today (ISSN: 1532-1398) is published six times a year by the American Neil Dornbaum, Newark, NJ Immigration Lawyers Association, 918 F Street, NW, Washington, DC 20004, (202) 216-2400. Mark Ivener, Los Angeles Copyright © 2007 AILA. All rights reserved. No part of this publication may be reprinted or Steven Klapisch, New York otherwise reproduced without the express permission of the publisher. “AILA” and the AILA logo Jonathan Montag, San Diego are registered trademarks of the American Immigration Lawyers Association. Periodicals postage H. Sam Myers, Minneapolis paid at Washington, D.C. POSTMASTER: Send address changes to Immigration Law Today, AILA, Martha Schoonover, McLean 918 F St., NW, Washington, DC 20004 Steven Thal, Minnetonka, MN Subscription Information and Rates: Annual subscription rate (six issues): $72. Single issue price: $16. Matt Trevena, Austin Additional charge for delivery outside continental United States. Call 1-800-982-2839 for details. A subscription to Immigration Law Today is included with AILA membership.

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4 Immigration Law Today november/december 2007

president’s page / by Kathleen Campbell Walker

Enforcement Only Fall-out: On-the-Ground Report from Reno

n my way to the AILA Fall Conference and execu- to the various community organizations tive committee meeting in Tahoe last September, I never anticipated assisting detainees and their families. Or- egon Chapter Chair Stephen Manning a close encounter of yet another worksite raid. But after landing in O responded accordingly in Oregon. Both Reno, we heard about a coordinated U.S. Immigration and Customs Enforce- efforts were aided by AILF and AILA ment (ICE) raid of 11 McDonald’s restaurants in the area, and 54 employees National staff. Using information shared were detained as a result. Reno’s mayor, Robert Cashell, stated that the im- by chapters responding to earlier raids in Colorado, Massachusetts, and else- pact on Reno’s economy would be devastating if the undocumented workers where, we were better able to anticipate were not able to continue to work in the area. Unfortunately, the number of how to approach the usual dual criminal nonprofit agencies and immigration lawyers to respond to the impact of the and civil challenges of the raids and the raid was not adequate even in this highly populated city. coordination of community responses, political mobilization, media exposure, Know Your Rights in Action support members’ needs—both from an and litigation support to those detainees As we watched the news in Tahoe and employer and an employee perspective— who were quickly moved from one part concluded our AILA executive commit- in the proliferation of worksite raids. For of the country to another. tee meeting, it was apparent that help was employees, chapter chairs and national needed. Through contacts forged by pre- committees have worked on developing Wasting Scarce Resources vious coalition and advocacy work, along an AILA worksite action plan to help co- Bottom line, using scarce ICE resources with help from American Immigration Using scarce ICE to focus on Mexican-national food ser- Law Foundation’s (AILF) Legal Action vice employees shows how broken our Center Director Nadine Wettstein, AILA resources to focus on current immigration system is. We want members and National staff managed to Mexican-national food legality to be the norm and our borders get word out in a few hours that we would service employees to be “secure” to the degree reasonably conduct a Know Your Rights presentation shows how broken our possible. But shooting ourselves in the in Reno that same night. We were met by current immigration foot economically in order to show we around 100 family members and inter- system is. are now “strong” on enforcement to those ested parties at a community gym for the for whom the application of discretion is presentation. The fear in the room was ordinate the support that AILA National an anathema is just flat wrong. While we palpable. Many undocumented mothers and AILF can provide through liaison, wait to find a presidential candidate who and fathers were under extreme stress to media, advocacy, and litigation. For em- can address our broken immigration determine their options and to plan for ployers, AILA submitted its comments system with a balanced approach, we the care of their U.S. citizen children. on the proposed no-match regulations, must do our best to support those on the AILA Immediate Past President Carlina and national committees conducted ground responding to the climate of fear Tapia-Ruano, Secretary Laura Lichter, the worksite enforcement conference in being created in this country after Con- Second Vice President David Leopold, Scottsdale, AZ, in November. gress failed to pass rational immigration and Nevada Chapter Chair Rex Velasquez reform. I am grateful to have taken part did a marvelous job translating and pro- Put to the Test in Reno’s Know Your Rights campaign, viding kind and sympathetic responses to Recently, the new worksite action plan and know that all of us in that communi- tearful and frustrated inquiries. was put to the test when the ICE raids of ty gym will never forget what we learned Del Monte in Oregon and Koch Foods and experienced that fateful night. ILT Prepping Employers and Employees in Ohio occurred. Each incident has Since the annual conference in Orlando, helped us hone our responses. Ohio Kathleen Campbell Walker is a partner several AILA committees have worked Chapter Chair Mark Nesbitt did an inin and chairperson of Kemp Smith, LLP’s to develop materials and programs to credible job coordinating AILA support immigration department in El Paso.

6 Immigration Law Today november/december 2007

pro bono / Kathleen Moccio Minnesota Advocates for Human Rights Building on a Tradition of Social Justice

here is something special about Minnesota, especially its from 80 countries, with claims that range people’s commitment to social justice. Minnesota politicians were critical from domestic violence to political defec- tions. Its youngest client was 4 years old, to the formation of international goodwill projects, such as the Peace Corps T and its oldest was well into her 80s. While and Food for Peace. In his address at the 1948 Democratic National Convention, there have been many successes, there also Vice President Hubert Humphrey, a Minnesotan, stated that “[t]he time has have been heartbreaks—mainly stemming arrived in America … to walk forthrightly into the bright sunshine of human from the government’s detention policy. Michele Garnett McKenzie, Refugee rights.” Following this lead, a group of Minnesota lawyers formed the Minnesota and Immigrant Program Director, tells of Advocates for Human Rights (Minnesota Advocates)—an organization that has an elderly Somali man who was detained earned world-wide recognition for its humanitarian efforts. in Minnesota. When she visited him in jail, he was gravely ill with liver disease. He was The Action Taken extremely weak and his liver was visibly dis- The Minnesota Advocates was founded in tended. Michele worked with local immigra- 1983 in response to the scope of human tion officers to obtain the man’s release for rights violations around the world. For medical treatment while he sought asylum. nearly 25 years, Minnesota Advocates has She also tells of the detained Sri Lank- effectively harnessed Minnesota’s special an man who could not tolerate remaining sense of social justice to promote human in jail during the lengthy appeals process. rights at home and abroad, with vital sup- He forwent an appeal of his case. Shortly port and leadership provided by AILA’s after departing the United States, he died Minnesota/Dakota Chapter. Since the in a tsunami. organization’s inception, AILA members The Good Deeds Performed have continuously served in leadership Minnesota Advocates annually provides Going Global positions and volunteered as mentors, free legal services on more than 1,000 im- Minnesota Advocates’s commitment to hu- pro bono attorneys, speakers, and train- migration cases, including between 400– man rights extends far beyond individual ers. Their commitment has been instru- 500 asylum cases per year, 500–600 clients case services at the local level. Since its in- mental to the development of Minnesota assisted at walk-in clinics, and pro bono ception, it has provided volunteers with Advocates’s programs. services to approximately 100 detained in- opportunities to work on national and in- One such program is the Refugee and dividuals who would face removal without ternational human rights projects. Immigrant Program. It started in the mid- representation if not for the organization. Shortly after it was founded, Minnesota 1980s when a group of local immigration To manage the caseload, the asylum proj- Advocates developed a model for the legal attorneys began raising concerns that the ect has more than 300 volunteers actively investigation of extra-legal, arbitrary, and number of asylum-seekers far outweighed working cases—and more than half these summary executions, which the United Na- the immigration bar’s ability to provide cases involve victims of torture. tions (U.N.) adopted. These standards are services. However, true to Minnesota’s tra- To address the injustices that detention internationally recognized and commonly dition of social justice, these AILA mem- often presents, a Minnesota Advocates cited as the “Minnesota Protocol.” bers did not just talk about the problem— staff member or volunteer is present for Minnesota Advocates also has moni- they acted on it. These attorneys worked detained master calendar hearings to en- tored human rights conditions and tirelessly together to establish the asylum sure that detained individuals appearing in produced reports documenting human project. They donated their time and re- the district receive pro bono services. Min- rights practices in more than 25 coun- sources to develop trainings and provide nesota Advocates also serves as co-chair of tries. With its expertise in the transition- pro bono attorneys with the materials the Detention Watch Network. al justice process, Minnesota Advocates and skills necessary to represent asylum- When initially formed, the asylum proj- is frequently relied on to provide the seekers. They also took pro bono cases and ect primarily represented individuals from legal, moral, and emotional support to served as mentors. Central America. Today, its clients hail victims testifying to truth commis- ➝

8 Immigration Law Today november/december 2007

Pro Bono Minnesota Advocates for Human Rights

Pro Bono Profile: Meet Alan Goldfarb he great Aristotle once said, “Moral excellence comes about as a result of habit. We become just by doing just acts.” Alan Goldfarb’s moral excellence comes from a long- Ttime commitment to pro bono on his quest for justice. As a third-year student, Alan participated in a human rights fellowship with the Center for Applied Legal Studies in South Africa. After graduation, Alan joined a corporate law firm and, like all young lawyers, focused on developing his practice. Although there was little spare time, he accepted a pro bono asylum case. Little did he know that it would influence his professional direction in unexpected ways.

Initially, the experience provided Alan with the satis- As an AILA member, Alan continues to give. He has faction of working with a “person.” Over time, it helped served as the Minnesota/Dakotas Chapter chair, and is cur- him develop case management skills that left him at ease rently an ambassador for the American Immigration Law in accepting responsibility. Foundation. Alan also continues to volunteer with Min- “As a corporate lawyer, I gained more responsibility nesota Advocates for Human Rights. He notes, “I learned with experience, but working as a pro bono attorney on that satisfaction wasn’t so much in winning as in working asylum cases helped me gain a sense of professional re- with the client, staying with them, guiding them.” sponsibility earlier,” said Alan. “Taking that responsibility Alan’s commitment provides a ray of hope to those helped me to develop as a lawyer.” hidden behind bars. His pro bono services have enabled Alan also discovered a new passion in immigration law. His dozens of asylees to move forward with new lives. Alan commitment to refugee and asylee issues led him to volunteer meets with former clients on a regular basis, including one day a week with the Asylum Law Project at the Minnesota a head soccer coach at a local high school, a success- Advocates for Human Rights. Through this experience, Alan ful business woman who serves other immigrants, and a met AILA members who shared his passion for service; this woman with whom Alan annually celebrates his birthday. prompted him to become an immigration attorney in 1997. Thanks to Alan, she has another year to celebrate.

CHAVEZ WORLD sions. For example, the Peruvian Truth and Reconciliation Commission invited Minnesota Advocates to monitor Peru’s recovery from more than 20 years of violence and repression. The commission credits Minnesota Advocates for empow- ering the widows and mothers to find their voices after suffering indescribable crimes in silence for decades. Recognizing that human rights abroad can have little meaning if human rights are not respected at home, Minnesota Advo- cates regularly works on national human rights issues in the United States. In fact, Minnesota Advocates has published recommendations to ensure immigrant women are safe from domestic abuse. To develop its recommendations, Min- nesota Advocates used international human rights methods to investigate and document immigrant women’s experiences in obtaining protection from domestic violence and accessing legal, medical, and other services in the United States. Working

10 Immigration Law Today november/december 2007 with volunteer lawyers—including AILA States a role in promoting international Minnesota Advocates supports AILA’s members—and other professionals, the justice and human rights. Minnesota Advo- advocacy efforts and has participated in report collected information from pros- cates’s volunteer statement-takers are now every AILA lobby day, while consistently ecutors, police, doctors, nurses, hospital working in U.S. cities with large Liberian providing information and support to administrators, lawyers, judges, and gov- populations and in the Budumburam Refu- the Minnesota/Dakotas Chapter’s advo- ernment agencies, as well as federal immi- gee Camp in Ghana. In August 2007, Min- cacy efforts. gration authorities, shelter advocates, and nesota Advocates released “Liberia Is Not Dipankar Mukherjee, a member of the community organizations. Ready: A Report of Country Conditions Minnesota Advocates board of directors, In 2006, Minnesota Advocates formally in Liberia and Reasons the United States states, “People in the U.S. underestimate responded to the U.S. report on its com- Should Not End Temporary Protected Sta- their power to have an impact on human pliance with the International Covenant tus for Liberians.” The law firm of Dorsey & rights.” Fortunately, the founders of Min- on Civil and Political Rights. Minnesota Whitney prepared the report as a pro bono nesota Advocates did not. They accepted Advocates’s report to the U.N. noted that service to Minnesota Advocates. the challenge Humphrey presented and the lack of access to counsel and dire con- took action nearly 25 years ago. The result ditions of immigration-related detention AILA Alliance is an organization whose work and rec- left noncitizens with valid claims for relief Many—if not most—members of AILA’s ommendations at the local, national, and in situations where they were effectively Minnesota/Dakotas Chapter volunteer with international level have served as a catalyst forced to stipulate to removal. Minnesota Advocates by donating hundreds for dramatic change. ILT Recently, at the request of the Liberian of hours of pro bono time to serve as volun- Truth & Reconciliation Commission, Min- teers, mentors, and speakers. AILA mem- Kathleen Moccio is a member of AILA’s nesota Advocates launched the Liberian bers also donate resources, and the chapter National Pro Bono Services Committee. Truth and Reconciliation Project, designed provides funding to enable the organization’s Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. to give Liberian refugees in the United staff to attend the AILA annual conference.

Orchid Cellmark* pu page 11

november/december 2007 Immigration Law Today 11 Preaching to the

by Michele R. Pistone and John J. Hoeffner

he Ewing Marion Kauffman Foundation recently released a report concluding that, in 2006, individuals with foreign citizenship working in the United States were named as inventors or co-inventors on 1/4 of the international patent applications filed from the United States. (See V. Wadhwa et alT., “Intellectual Property, the Immigration Backlog, and a Reverse Brain-Drain: America’s New Immigrant Entrepreneurs, Part III” (Aug. 2007)). This figure represents a three-fold increase in the contributions of foreign nationals since 1998. Previous Kauffman Founda- tion reports on the effects of skilled migration demonstrated, among other things, that immigrants founded 25 percent of technology companies established in the previous decade, and that these immigrant-founded companies employ 450,000 workers in the United States. In a world in which knowledge-based assets are of crucial importance, the significance of these findings is hard to overstate.

However, many people remain opposed to skilled The Academic Consensus migration, or at least opposed to increases in the ad- George Borjas is a professor at Harvard University mission of temporary and permanent skilled work- and the author of Heaven’s Door, a well-known book ers. On the discrete question of how much skilled that details the harmful effects of immigration on the migration is optimal, why doesn’t the political con- economic well-being of Americans. Indeed, Borjas is sensus reflect the academic consensus? The answer probably the leading academic advocate for a more re- has little to do with the triumph of narrow self-inter- strictive immigration policy. Yet, he is adamant about est. Rather, the academic consensus fails to translate the positive economic impact of skilled immigration. into a political consensus because, while striking, it is “Put simply,” Borjas has written, “high-skill immigra- incomplete. Three objections in particular—arising tion increases after-tax income of natives,” and “there from broad-based educational, moral, and national is little doubt that [it] is a good investment.” (See “The security concerns—serve to muddy the clarity of the Economic Case for Skilled Immigration: Hearing Be- researchers’ conclusions. None of these broad-based fore the S. Comm. On Health, Education, Labor, and objections is illegitimate—nor are they, on their face, Pensions,” 109th Cong. 3 (2006) (testimony of Prof. insubstantial. Accordingly, they need to be more di- George J. Borjas)). rectly, more consistently, and more compellingly ad- Peter Schuck, a law professor at Yale University, is dressed if the existing resistance to skilled migration another leading immigration scholar. A self-described is to be reduced. “militant moderate,” he has called for restrictions ➝

12 Immigration Law Today november/december 2007 Immigrants, as immigrants, see things differently than natives. And it is that different and unique perspective that adds value.

november/december 2007 Immigration Law Today 13 Preaching to the Uncoverted Americas Need for Skilled Foreign Workers

on family-based reunification visas and for the elimination of the For many Americans, the apparent lesser emphasis sometimes diversity lottery. He favored the failed comprehensive immigration given to the education of citizens bespeaks an unfortunate inver- bill recently considered by Congress while Borjas strongly opposed sion of priorities, and raises troubling and uncomfortable ques- it. But he is one with Borjas in his dismissal of the arguments of tions. Does the securing of additional visas for foreign workers those opposed to highly skilled migration. Schuck recommends receive priority because foreign workers are regarded as better adoption of a more “skills-sensitive” system for permanent mi- workers? Are they regarded as smarter, or more hard-working? grants, and argues that current limits on H-1B visas for temporary To the extent that these questions are left unaddressed by research workers “make[] no sense,” as such “workers contribute to more showing that skilled migration adds to U.S. productivity, growth, efficient production and higher growth.” (See P. Schuck, “Bordering and competitiveness, such research—by itself—always will be less on Folly,” The American Lawyer, October 1, 2007, at 83–4). than persuasive to a substantial portion of the population. Although Borjas and Schuck come from different ideological positions, the concurrence of their views on skilled migration—and The Moral Objection: Why Not Them? the certainty they display in asserting those views—is no odd coin- Another reason that the ever-increasing evidence about the eco- cidence. Among persons who have studied migration, perhaps no nomic benefits of skilled migration has not resulted in a signifi- statement finds wider acceptance than the proposition that skilled cantly liberalized immigration regime is that that evidence does migrants enhance U.S. productivity and growth. not address a long-standing and widely held moral qualm about Supportive analyses are legion, including those stating that the “brain drain.” If skilled migration benefits us, it is asked, “Who does United States could comfortably (and productively) absorb many it hurt?” To many people, to an unacceptable degree, the answer is more skilled workers than it currently admits. (See, e.g., H. Johnson that it hurts the poor in foreign nations. and D. Reed, “Can California Import Enough College Graduates to The U.S. Catholic Bishops, for example, have held for almost a Meet Workforce Needs?” at 2 (Public Policy Institute of California half-century that: May 2007) (concluding that California’s labor market could absorb a [T]he special preference afforded by the United States to highly doubling of the number of skilled migrants to the state); “Immigra- skilled persons should be restricted. Our immigration policy tion: The Economic Impact: Hearing Before S. Comm. on the Judi- should not encourage a flow of educated persons needed for ciary,” 109th Cong. (2006) (testimony of Prof. Barry R. Chiswick) development in other countries … It does not make good sense (stating that the United States has not reached “its absorptive capac- to direct foreign aid to developing countries and at the same ity for immigration”); S. Brooks Masters and T. Ruthizer, “The H-1B time receive reverse foreign aid in the form of professional per- Straitjacket: Why Congress Should Repeal the Cap on Foreign-Born sons whose talents are badly needed in the same countries. Highly Skilled Workers,” at 13 (CATO Institute, 2000) (recommend- (See “People on the Move: A Compendium of Church Documents ing that Congress abolish H-1B caps); S. Moore, “A Strategic U.S. on the Pastoral Concern for Migrants and Refugees” 64 (U.S. Catholic Immigration Policy for the New Economy” (Center for Immigration Conference 1988); see also “National Catholic Welfare Conference,” Studies 2001) (stating that doubling or even tripling “high-skilled Statement on World Refugee Year and Migration, at par. 31 (1959) immigration visas … will not take jobs from American workers”); (in one of their earliest statements on the matter, the U.S. Catholic see also Letter from Christine O. Gregoire et al., to Sen. Harry Reid Bishops asserted that laws allowing skilled migration “in effect bleed et al. at AILA InfoNet Doc. No. 07091262 (letter from 13 current a nation troubled with population problems of its best citizens, leav- state governors to congressional leaders, recommending “increased ing behind those who can contribute least to national prosperity”); availability of temporary H-1B visas, and permanent resident visas” “National Conference of Catholic Bishops,” Welcoming the Stranger to meet “a critical shortage of highly skilled professionals”)). Among Us, at 8 (2000) (the bishops reminded “our government that If a clear consensus exists that skilled workers add to U.S. pro- the emigration of talented and trained individuals from the poorer ductivity and growth, and a similar consensus asserts that the countries represents a profound loss to those countries.”)) demand for skilled workers is increasing, then why is there such Secular leaders, among others, have made the same point, and strong resistance to admitting more skilled workers? Examination have done so for many years. Thus, in 1966, then-Senator Wal- of educational, moral, and national security concerns will shed ter Mondale (D-MN) said that “the brain drain from developing some light on the matter. countries is particularly urgent. It compromises our commitment to development assistance, by depriving new nations of high-level The Educational Objection: Why Not Us? manpower indispensable to their progress. It runs counter to the The more proponents of skilled migration emphasize the enormity education and training programs which are so vital in our foreign of the need, the more others can reasonably ask why U.S. citizens aid.” (See 112 Cong. Rec. 21477–80 (daily ed. Aug. 31, 1966)). cannot be educated for these jobs. Even when a call for more re- Much more recently, the Federation for American Immigration sources for U.S. education accompanies a call for more skilled mi- Reform similarly has complained that “brain drain” causes develop- gration, one cannot help but notice that it is the latter call that is ing countries to lose “the people they can least afford to … the very often delivered with the most passion and sense of urgency. people most equipped to improve living conditions at home.” ➝

14 Immigration Law Today november/december 2007

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AILA Publications—WrittenAILA Publications—Written ...... Edited Edited ... Published Published ... byby Immigration Immigration Lawyers Lawyers Preaching to the Uncoverted Americas Need for Skilled Foreign Workers

(See “Brain Drain, Federation for American Immigration Reform” is likely to regard them as, in a sense, the currency of the penny wise (Oct. 2002) at www.fairus.org/site/PageServer?pagename=iic_im and pound foolish. To such persons, the incremental economic gains migrationissuecenterse514). associated with skilled migration can never provide a sound basis for The moral issue of how skilled migration affects sending coun- formulating policy, unless accompanied by a serious assessment of tries represents a particularly troublesome stumbling block for the fundamental security concerns raised by such migration. many immigration advocates. The economic basis of the moral argument against skilled migration is a zero-sum calculation of Addressing the Objections skilled migration’s economic benefits. Many arguments for skilled The first step in lessening the appeal of the most common ob- migration explicitly or implicitly accept this very premise, making jections to skilled migration is to grant them the respect due an it difficult or impossible to rebut the position of those who reject honest disagreement. They should not be ignored as unworthy of skilled migration on moral grounds. serious discussion. Nor should they be ignored as a tactical matter. The Kauffman Foundation study is a case in point. It states that If skilled migration is to gain additional proponents, the elephants global economic competition today is based on development and in the room need to be acknowledged. They are not, in all events, deployment of knowledge-based assets, and laments the specter as forbidding as some may think. of “reverse brain-drain” (i.e., when high-skill migrants return to their native lands), as detrimental to the United States’ position in Immigrants Are Not Interchangeable with Natives this competition. The study’s express statement of the matter as an Consider the objection that, instead of importing skilled workers, issue of “[g]lobal competition” presupposes other competitors and, the United States should do a better job of educating natives. Almost of course, winners and losers among them. everyone in the debate grants that putting more resources into edu- This framing of the issue, however appropriate and commonsen- cation is a good idea. Some defenders of skilled migration even view sical it may seem to some, has limited appeal to persons whose pre- migration as a temporary measure—to be discarded at some future eminent concern is not triumphing in an international competition, time when all Americans have an above-average education. The latter but working toward a common goal—in this case, development of approach is unnecessarily defensive, and yields far too much ground poor countries. We do not mean to imply that it was incumbent in its uncritical endorsement of the skilled migration-education con- upon the Kauffman Foundation’s researchers to frame their study nection made by skilled immigration’s opponents. differently. The study should be evaluated according to its own goals, The better approach is to attempt to de-link the issues of skilled which were to supply a refined measure of the economic importance migration and education. Skilled immigrants are not mere substi- of foreign workers to the U.S. economy and to highlight the pos- tutes for skilled natives. As is suggested by the vastly disproportion- sibility that immigration backlogs will cause “reverse brain-drain.” ate success of immigrants to the United States in winning Nobel The study ably accomplishes these intended ends. But the authors’ prizes,1 as well as by more rigorous social science,2 immigration achievements will not change the minds of those whose opposition does not merely duplicate what better education policy might pro- to skilled migration is rooted in moral concerns; thus, the study also duce on its own without immigration. stands as a good example for why the academic consensus on skilled To make this point—it must be emphasized—is not to say that migration’s positive economic effects has yet to be converted into a immigrants possess inherently superior intelligence or greater political consensus for more skilled migration. ambition and drive. Rather, immigrants’ great and non-duplicable creative advantage is inextricably intertwined with their status as The National Security Objection: What About “Them”? immigrants. Because they by definition come from different back- A third objection—national security—always has been a part of grounds, immigrants cannot help but make different observations the immigration debate, but has gained a higher profile in the wake and connections than most of their peers. of 9/11. Immigrants can be national security threats, and perhaps These observations and connections are best explained as simply skilled immigrants can be greater threats than most. In all events, an application of the law of supply and demand to the power of ideas. the widespread and amply documented tightening of border re- Sociologist and University of Chicago Professor Robert S. Burt has strictions against foreign academic, business, and student applicants examined this concept in the context of a study of American busi- for entry into the United States represents a response to this fear. ness. (See R. Burt, “Structural Holes and Good Ideas,” 110 Am. J. (For a discussion of post-9/11 enhanced border enforcement efforts Soc. 349, 355 (2004)). Burt explores the social origins of good ideas against skilled migrants, see M. Pistone and J. Hoeffner, “Rethinking by analyzing “[p]eople familiar with activities in two groups,” and Immigration of the Highly-Skilled and Educated in the Post-9/11 concluded that: World,” 5 Geo. J. Law & Pub. Pol’y 495, 496–97 (2007)). [Such people] are critical to learning and creativity. People Quantifying and cataloging the U.S. economic benefits of skilled whose networks span [several groups] have early access to di- migration does not directly speak to the problem of immigration-reverse, often contradictory, ideas. People connected to groups lated national security fears. Accordingly, no matter how substantial beyond their own can expect to find themselves delivering such benefits are proven to be, a certain segment of the population valuable ideas, seeming to be gifted with creativity. This is ➝

16 Immigration Law Today november/december 2007 november/december 2007 Immigration Law Today 17 Time to STEP OUT of the “Brain Drain” “Brain drain,” which apparently originated in Ayn Rand’s 1957 novel, Atlas Shrugged, entered popular usage in the early 1960s. For opponents of skilled migration, the phrase is a pointed and rhetorically effective label. For proponents of skilled migration, the term is an obstacle to the argument that not creativity born of deep intellectual ability. It is creativity as skilled migration can benefit developing nations, in that “brain an import-export business. An idea mundane in one group drain” is plainly a loaded term, whose use strongly suggests can be a valuable insight in another. serious loss on the part of sending countries. Curiously, however, journalists and even proponents of skilled migration often utilize the term without qualification or explanation. The creative value of immigrants, then—the paradigmatic example of “[p]eople familiar with two groups”—is not duplicable As inappropriate as such usage may be, the reason for by simply educating more native-born workers. Immigrants, as “brain drain’s” popularity is plain. “Brain drain,” despite its immigrants, see things differently than natives. And it is that dif- well-recognized flaws, is undeniably catchy and easy to remem- ferent and unique perspective that adds value. In economic terms, ber. It is for this reason that it has outlasted clunky alternative the relative scarcity of their viewpoints heightens the value of their phrases meant to replace it—is it really a surprise that headline writers have preferred “brain drain” to would-be replacements insights. So, more education, yes, but the wisdom of receiving such as “outflow of trained personnel” or “reverse transfer of skilled workers is not and should not be tied to current failures in technology”? The lesson here is that any term that presumes to the educational system. challenge “brain drain” must at least make an effort to com- pete with the vividness and memorability of the famous term. Skilled Migrants Aid Development in Homelands With regard to the concern that skilled migration to the developed The authors’ preferred alternative, which was introduced and world comes at the cost of development elsewhere, there is sub- discussed in a recent book, is STEP OUT migration. (See Stepping out of the Brain Drain at 9–19). STEP OUT migrants stantial evidence that such migration is mixed in its effects, and are Scientific, Technical, and Educated Professionals Out of may even tend to foster development in less developed countries. Underdeveloped Territories. This new term is appropriate when The more benign view of skilled migration is shared by many the intent is to describe a broad spectrum of skilled immi- developing countries—in marked contrast to their near-universal grants spanning every sector of society, including the scientif- disapproval four decades ago. (See M. Pistone and J. Hoeffner, ic, technological, cultural, political, educational, and corporate Stepping Out of the Brain Drain: Applying Catholic Social Teach- business fields. The “OUT” provides a short-hand way of ing in a New Era of Migration, 116 and 122 n. 5 (2007). See also communicating that the STEP migrants under consideration World Bank, Global Economic Prospects 2006: Implications of are from developing countries. Omission of the “OUT,” on the Remittances and Migration 68 (2005) (listing developing country other hand, provides a short-hand way of referring to the larger governments with favorable views of skilled migration)). universe of all skilled and educated migrants. Indeed, immigration researchers Anne Marie and Jacques Gail- The new term is thus more flexible than “brain drain,” superior to lard not only have stated that “[t]here almost seems to be a consen- it in clarity, and inviting of debate whereas “brain drain” prejudg- sus about” the great potential for skilled migration to benefit devel- es. It also may prove memorable, in that the spelling of the STEP oping countries, but also have noted that the evolving consensus OUT acronym creates a phrase whose meaning is suggestive of the includes “people who long rode the nationalistic [anti-migration] movement that is the migrant’s lot. In all events, the larger point wave [but] now recognize the advantages, for the home country, is that “brain drain” is seriously flawed as a neutral description. Immigration advocates should resist using the term and be careful that can be derived from the external migration of the elite.” (See to point out its shortcomings when they or others do use it. A.M. and J. Gaillard, International Migration of the Highly Quali- fied: A Bibliographic and Conceptual Itinerary (1998)). The changing consensus is linked to changes in the world, primarily economic globalization and the related and ongoing revolution in communications technology. These phenomena have combined to create new opportunities for migrants to contribute to their homelands. The Internet, for example, allows skilled migrants to more widely and more consistently communicate ideas, trends, and opportunities to their counterparts back home, and it also allows these communications to be immediate, two-way, and at much greater depth. As globalization and the communications revolution have combined to make overseas offices more practical, skilled migrants working in business have a greater opportunity to influence their companies to invest in their homelands. They also can help in developing technologies that can benefit the entire world, such as the Internet. Skilled migrants (and others) can more easily and more cheaply transfer funds. Remittances to developing nations have exploded in recent years, with the most recent estimate of $199

18 Immigration Law Today november/december 2007 billion for 2006—almost six times the amount remitted 15 years so with some success. (See “Gene Tweak Makes Cottonseed Edible” earlier. (See http://econ.worldbank.org for World Bank, Development at http://health.yahoo.com/news/169042). In retrospect, everyone can Prospects Group, Migration and Remittances Team, Migration and see that, where food is not plentiful and cotton is an important crop, Development Brief 2: Remittance Trends 2006, at 1 (2006) (provid- such a modification could greatly reduce hunger and malnutrition. ing 2006 data); World Bank, Migration and Remittances Datasets: But as a matter of foresight, who is most likely to see the problem Global Economic Prospects 2006, at 1 (providing 1991 remittance and a possible solution rooted in local circumstances? Other com- amount of $34 billion)). mon circumstances in the developing world that are often underap- Skilled migrants, it should be noted, “send a greater amount of preciated by U.S. scientists—and that often make developed-world remittances” than other migrants. (See M. Rosenzweig, Copenha- solutions impractical—include a lack of refrigeration, undependable gen Opposition Paper on Population and Migration 10 (2004)). As electrical power supplies, and a lack of clean water. to the effect of this explosion, a minister of labor in the Philippines Crucially, the communications revolution also facilitates migrants’ has stated that “overseas employment has built more homes, sent binding together to help their homelands. Organization of diaspora more children of the poor to college, and established more busi- communities is easier, cheaper, and more common than ever. By ness enterprises than all the other programmes of the government pooling their resources, hometown associations fund specific im- put together.” (See N. Harris, “Thinking the Unthinkable: The Im- provements to the general welfare in developing countries. More migration Myth Exposed” 89 (2002)). specifically, to cite a few examples: (1) the South African Network of In addition, skilled migrants by knowledge and inclination are Skills Abroad (SANSA) connects migrants from South Africa to par- more likely to succeed in tailoring new technologies to the needs of ticular scientific and technological projects in their home country; their homelands. Someone born in the United States, for example, (2) the Ghana Association of Distance Learning, established by Gha- might never think to use the tools of biotechnology to genetically naians in the disapora, seeks to improve education in Ghana; (3) the modify cottonseeds to make them safely edible for humans. However, Ethiopian North American Health Professionals Association works Dr. Keerti Rathore, an Indian migrant to the United States, has done to supply medical personnel and equipment to Ethiopia; and ➝

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november/december 2007 Immigration Law Today 19 Preaching to the Uncoverted Americas Need for Skilled Foreign Workers

(4) the Silicon Valley Chinese Engineers Association promotes entre- may well belong to those who would prefer to see increased levels of preneurship and the establishment of business ties to China. skilled migration. Certainly, skilled immigrants—as a group—bring Finally, persons inclined to doubt the effectiveness of these con- unparalleled foreign language skills that may be employed to benefit tributions—and to stress the negative effects of skilled migration— national security. In-depth understandings of cultural, political, and might consider the following: In 1968, a book titled The Brain geographical facts in foreign lands may be employed to a same end. Drain (Walter Adams Ed. 1968) was published by the reputable The economic productivity and growth gains attributable to skilled Macmillan Company. The first page of the book stated that “[t]he migration make it possible to support a better national security ap- drain from Asian nations, particularly Taiwan and [South] Korea, paratus. And the presence and prestige of foreign skilled workers in is the most serious.” Since 1968, Asia in general, and Taiwan and the United States contributes positively to the image of the United South Korea in particular, have experienced unsurpassed growth. States abroad, which also yields benefits that make us more secure. Development obviously is a multi-causal phenomenon, still, this is In addition, there is an increased and widespread recognition a striking result for nations presumed to be the greatest victims of post-9/11 that there is a security component to development of poor- “brain drain.” Combined with the other developments discussed er countries. (See, e.g., T. Barnett, The Pentagon’s New Map: War and in this section, it may and should give pause to even the staunch- Peace in the Twenty-First Century (2004) (arguing that the greatest est opponent of skilled migration as to the general impact of that threats to U.S. security now stem from the least developed nations). migration on developing nations. Thus, initiatives aimed directly at development (such as the Millen- nium Challenge Account introduced in 2002), as well as initiatives Skilled Migrants Are National Security Assets indirectly supportive of development (such as enhanced efforts to With respect to the assertion that foreign-born skilled workers can combat AIDS and malaria), are seen by policymakers as ways to ad- endanger national security, it must be recognized and emphasized dress “the problem of failed states and terrorism.” (See M. Fletcher, that the argument is a double-edged sword, and that the sharper edge “Bush Has Quietly Tripled Aid to Africa: Increase in Funding to

20 Immigration Law Today november/december 2007 Impoverished Continent Is Viewed as Altruistic or Pragmatic,” The might tip the scale of public opinion in one direction or the other. Washington Post, Dec. 31, 2006, at A4). To the extent that skilled The prudent course for immigration proponents is to exercise con- migrants can improve the prospects for long-term development in stant vigilance in identifying and neutralizing aspects of the debate poor countries, as recent evidence suggests and as argued above, they that appear to weigh against their position. ILT accordingly help to safeguard U.S. security interests as well. Thus, in various ways, skilled migrants enhance U.S. security. Be- Michele R. Pistone is a law professor and director of the clinical cause they do so, it is not only mistaken but also dangerous to treat program at Villanova University School of Law. John J. Hoeffner, skilled migration solely as a potential threat. An appropriate national her husband, is an attorney in Villanova, PA, and teaches an immigration course at Villanova University. They co-authored the security calculation requires that a complex balance be struck between recently released Stepping Out of the Brain Drain: Applying Catholic the risks (and benefits) of exclusion and the risks (and benefits) of in- Social Teaching in a New Era of Migration. clusion. When “national security” is invoked as a talisman capable of Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. ending any debate in favor of those who would restrict entry into the United States, the required complex balance is dangerously simpli- Notes fied. Those Americans who are the most sensitive to risks to national 1 More than one-third of U.S. Nobel laureates in the sciences in the last 15 years security should be the most opposed to this simplification. have been foreign born. See C. Schramm and R. Litan, “Immigrants and Laure- ates: America’s Two Other Winners of Nobel Prizes Show How Important It Is A Realistic Expectation that the U.S. Get Immigration Policy Right,” The Washington Post, Oct. 12, 2007. 2 Although advocates of increases in skilled migration have a strong See, e.g., G. Chellaraj, et al., “The Contribution of Skilled Immigration and International Graduate Students to U.S. Innovation,” World Bank Policy Research argument, to most people, it is not an overwhelming one. The set- Working Paper 3588, at 6 (May 2005) (the authors affirmatively conclude that ting of future policy on the issue of admitting more skilled foreign “skilled workers have a strong and positive impact on the development of ideas in the United States”), at http://search.ssrn.com/sol3/papers.cfm?abstract_id=744625. workers into this country may be subject to chance events that

november/december 2007 Immigration Law Today 21 arried couples take vows of unconditional love Mfor and support to each other for better or for worse, in sickness and in health, for richer or for poorer, until death do they part. However, when a marriage breaks apart, all of those nice platitudes go out the window. The process of separation and divorce is a painful and arduous experience. This matter is made more complicated when one or both spouses are in the immigration process during marital difficulties. Thus, when the unthinkable happens, attorneys should prepare their clients for difficult times ahead.

The USCIS Experience: be bona fide and the burden of proof rests with the Deconstructing the Romantic Journey applicant to prove the validity of the marriage. The Spouses of U.S. citizens and lawful permanent resi- marriage, however, does not have to be a strong dents (LPRs) are entitled to seek permanent resi- marriage, a good marriage, or even a sustainable dence in most cases, pursuant to Immigration and marriage. USCIS is not even focused on whether Nationality Act (INA) §§201(b)(2)(A)(i) and 203(a) the marriage is viable at the time of the adjustment (2)(A). A spouse of a U.S. citizen is categorized as interview. The key issue is whether the marriage an immediate relative, and a petition for permanent was valid at its inception. (See Matter of McKee, 17 residence and application for adjustment of status I&N Dec. 332 (BIA 1980); Matter of Jara Riero, 24 may be concurrently filed for the spouse with U.S. I&N Dec. 267 (BIA 2007)). Citizenship and Immigration Services (USCIS) if To determine marriage validity at inception, USCIS the spouse is present in the United States. Due to looks at whether the spouses intended to establish a backlogs, visa numbers for spouses of LPRs are not life together at the time of their marriage. (See Bark v. immediately available. Therefore, a petition for an INS, 511 F.2d 1200 (9th Cir. 1975); Lutwak v. U.S., 344 immigrant relative must be filed with USCIS initially. U.S. 604 (1954)). USCIS can examine the behavior If the spouse is in the United States and eligible for of the spouses both before and after the wedding to adjustment of status, the application for adjustment ascertain the intent to establish a life together. Such of status then can be filed with USCIS when the intent can be established through evidence of joint spouse’s priority date is reached or the LPR sponsor financial accounts, jointly titled property, creating becomes a naturalized U.S. citizen. An interview is beneficiary rights, sharing health and auto insurance, conducted at the local USCIS district office prior to and creating children together. (See Matter of Soriano, adjudication. However, if the spouse is in proceed- 19 I&N Dec. 764 (BIA 1988)). ings in immigration court, the petition for permanent residence is filed with USCIS, and the applica- Let’s Get Separated! tion for adjustment of status is filed directly with the An Adjustment in Status immigration court upon approval of the petition. A particular problem arises when spouses begin In order to be eligible to adjust status, the spouse living separate and apart between the date of the and the U.S. citizen or LPR must be married at the marriage and the date of the adjustment interview. time of filing and adjudication. The marriage must The separation itself is not a bar to approval ➝

22 Immigration Law Today november/december 2007 Immigration Consequences of Separation and Divorce

by Jonathan S. Greene, Cheryl R. David, and Suzanne Tomatore

november/december 2007 Immigration Law Today 23 Marital Disharmony Immigration Consequences of Separation and Divorce

of the adjustment application when the applicant can prove the Higher Burden for Removal marriage was valid at inception. However, separation can be Adjustment is always discretionary—before USCIS and the im- a highly relevant factor in determining whether the marriage migration court—but if there are no adverse factors, adjustment was bona fide. (See Matter of Adalatkhah, 17 I&N Dec. 404 is usually granted. (See Matter of Arai, 13 I&N Dec. 494 (BIA (BIA 1980)). If the spouses have scant evidence that they took 1970); Matter of Lam, 16 I&N Dec. 432 (BIA 1978)). However active steps to establish a life together and they separated a the burden is raised somewhat higher for a spouse facing re- month after they married and filed the adjustment application, moval from the United States. A person facing removal already they are going to have a difficult time proving the marriage was has adverse factors based on the facts justifying the commence- valid when they entered into it. ment of removal proceedings, such as failure to comply with The USCIS New York district office maintains a unique pro- immigration laws or criminal convictions justifying removal. cedure for adjudicating spousal petitions in which a question One of the great counter-balancing equities that factors into the of the bona fide nature of the marriage is at issue. The proce- exercise of discretion is the existence of strong family ties in the dure was created after a ruling in Stokes v. INS, 393 F. Supp. 24 United States. When a marriage is on the rocks and divorce is (SDNY 1975) and codified in an intra-agency memorandum. on the horizon, that key justification for favorable exercise of In every such case, a written notice describing the rights in- adjustment is severely undermined. volved must be given to the petitioner, a separate attachment Immigration court adjustment proceedings also may require of the list of rights must be sent out with the interview ap- greater preparation than a USCIS interview. Local court rules pointment letter, and a list of the documents to be submitted may require the advance submission of documentary evidence at the time of interview must be mailed to the petitioner. (See and a summary of witness testimony. Some immigration judges Adjudicator’s Field Manual (AFM) ch. 15.5.) The interview may (IJs) may conduct a separate hearing at the master calendar be conducted with both spouses present, or they may be sepa- stage—with the respondent and the sponsoring spouse—in or- rated and questioned in the presence of a video camera. The der to test whether the marriage is bona fide. interview will feature questions concerning the personal living arrangements and marital situation of the spouses. Questions The Road to Immigration Court can range from the layout of furniture in the marital residence Adjustment applicants can trigger immigration proceedings to the names of family members, friends, and pets, to product by failing to appear for an adjustment interview. Spouses brand names used by the other spouse. One tricky question who have been living separate and apart during the USCIS is on which side of the bed does your spouse sleep? A person adjustment process also might be divorced by the time the viewing the bed from the position of laying in it might indi- immigration court is ready to hear the case, thereby render- cate the “left” side, but that same person would have to say the ing the spouse seeking adjustment ineligible for such relief. “right” side if viewing the bed from the foot. Thus, drawing a Furthermore, adjustment applicants may experience the picture can help resolve any confusion. “double pleasure” of undergoing a USCIS interview—which Although the Stokes procedure is only required in New York, results in a denial and issuance of a notice to appear in im- USCIS has applied the basic concept to all marriage cases through- migration court. out the United States. A notice is sent to spouses in marriage In those cases where a denied petition for permanent resi- cases advising them to bring certain documents to the interview, dence was appealed to the BIA and immigration court proceed- and it is now routine to require spouses to provide at least some ings have commenced for the adjustment applicant, an IJ may minimum proof of the bona fide nature of the marriage. Spouses not wait for the outcome of the petition appeal. Insofar as the usually are not separated and videotaped during interviews unless petition appeal is filed at the USCIS district office and then sent USCIS has evidence indicating a sham marriage. When spouses to the BIA, it may take months before the appeal even leaves the are living separate and apart at the time of the interview, they may district office. be more likely to find themselves in such a situation. Sometimes immigration clients will get an opportunity If the Stokes interview results in a denial of the petition for to turn the lemons of love into lovely lemonade. If the first permanent residence, the denial can be appealed to the Board marriage does not work out and a divorce occurs after USCIS of Immigration Appeals (BIA), which has jurisdiction over visa denies adjustment, a new marriage to a more suitable candi- petitions. A new petition also could be filed, but the spouses may date may be available. The spouse can file a new petition for have to overcome the same issues that led to the denial of the first permanent residence and application for adjustment of status petition, including any allegations of marital fraud. based on the second marriage.

24 Immigration Law Today november/december 2007 The Mental Health Expert Witness: A Master Story Teller

The work of a mental health expert witness in immigration ☛ Practice Pointer: If a subsequent marriage occurs cases can be compared to that of a journalist: it is the expert’s job to while removal proceedings are pending, adjustment of status tell the client’s story in an interesting, detailed, and moving way. A judge’s decision is based on his or her understanding of the law and based on the marriage is not permitted, unless the spouses can how the facts of the case interface with this. A credible mental health prove the bona fide nature of the marriage by the heightened expert witness gives the judge sufficient factual information to grant clear and convincing evidence standard. (See INA §§245(e)(2) the client’s case—if such a decision is warranted. and (3)). A written waiver request will need to be submitted with the petition for permanent residence, along with evidence that Interviewing skills are important in getting the client to reveal personal meets the clear and convincing test. (See 8 CFR §§204.2(a)(1) but crucial information. Often, attorneys require a clinician who is an expert in a very narrow area (such as a particular country). Although (iii)(A) and (B); 8 CFR §245.1(c)(9)). specific knowledge is important, it can be equally important to hire an The IJ should give the spouse time to have the new petition for expert witness who is able to capture and describe in plain language permanent residence adjudicated. (See Matter of Velarde, 23 I&N a broader point of view. Dec. 253 (BIA 2002)). It probably is best to come to court prepared with a new petition for permanent residence or already have one An expert witness working in the immigration field may see the fol- filed before the first court appearance. lowing types of cases, all of which involve hardship: removal, asylum, VAWA/spousal abuse cases, and waivers for an illegal entry or stay. Conditional Residence Issues: The expert also can help clients with a prior conviction that has created or contributed to an immigration problem. Clients (and often their Understanding this Crucial Step families) are interviewed extensively about, but not limited to: Foreign nationals who obtain immigration status through marriage to a U.S. citizen or LPR are granted conditional resident status  health issues if the marriage is less than two years old at the time residence is  conditions in their country granted. (See INA §216). During the 90 days preceding the second  previous traumatic experiences and losses anniversary of the grant of conditional residence, the conditional resident and sponsoring spouse are required to take steps to make  special educational or medical needs for their children the conditional status permanent. (See 8 CFR §216.4(a)(1)). This  physical risk factors such as crime in their country is generally accomplished by jointly filing USCIS Form I-751, Peti- tion to Remove Conditions on Residence.  a dependent marital relationship USCIS can terminate conditional residence at any time during  their work and educational background the two-year period or if it adjudicates and denies the petition. (See INA §§216(b)(1), (c)(3)(C)). Conditional residence also is termi-  the ability to speak, read, and write in a particular language nated if the conditional resident spouse fails to file the petition Attorneys should require a sample report to showcase an expert within the 90-day window or fails to appear for an interview. (See witness’s excellent writing skills and fluency in other languages. A INA §216(c)(2)(A)). clinician who is multilingual has the ability to glean information by interviewing clients in their own language that would not be possible Saved by a Waiver otherwise. Even when the client speaks English, he or she may not If a conditional resident spouse’s marriage falls apart during this feel comfortable divulging personal information in a second language, and the ability to communicate with clients in their own language sets two-year period, it may be necessary to file for a waiver of the re- them at ease. Which languages are more important varies from one quirement that both spouses sign the petition. Under INA §216(c) community to another. For example, in Chicago, many immigration (4), there are four types of waivers available to the conditional resi- clients speak Spanish and Polish. dent spouse that are listed below. More than one waiver can be sought, and the waiver is filed by checking a box on Form I-751 The ability to choose wisely when selecting an expert witness cannot and providing supporting evidence. be overemphasized. An extensive, fully documented report is crucial. A solid report is often 15 to 20 pages in length. A one– or two-page report summarizing the expert’s conclusion is inadequate if one is to Death and Extreme Hardship Waivers provide a judge sufficient evidence to rule in the client’s favor. A conditional resident spouse may individually qualify for a joint petition waiver if the other spouse has died, or if it can be shown that Courtesy of Phyllis Gould, a licensed clinical social worker in he or she would suffer extreme hardship if removed from the Unit- Chicago and an expert witness to immigration lawyers and their ed States, but only if such hardship occurred during the two-year clients on the issue of hardship. conditional residence period. (See 8 CFR §216.5(e)(1)). ➝ Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.

november/december 2007 Immigration Law Today 25 Marital Disharmony Immigration Consequences of Separation and Divorce

Divorce or Annulment Waiver extreme cruelty by the U.S. citizen or LPR spouse during the A conditional resident spouse can individually qualify for a marriage. (See 8 CFR §§216.5(e)(2)(i)–(iv)). Evidence showing waiver if it can be shown that the marriage was entered into battery or extreme cruelty could include police reports docu- in good faith, but the marriage was terminated by divorce or menting physical abuse, restraining orders, medical records, annulment prior to the filing of the joint petition. (See INA and other forms of psychological or emotional abuse. §216(c)(4)(B)). If the spouses are separated but not divorced For spouses who have separated or divorced where battery or prior to and during the three-month period designated for fil- abuse was present, the waiver can be obtained, but no separation ing the joint petition, the conditional resident spouse cannot or divorce is actually required in order to obtain the waiver. Of file the joint petition until a divorce is obtained. (See AILA course, a conditional resident spouse who has not separated from InfoNet Doc. No. 03050643; Matter of Anderson, 20 I&N Dec. an allegedly abusive spouse may have a difficult time convincing 888 (BIA 1994)). If the conditional resident spouse is in im- USCIS that the relationship is abusive. migration court proceedings, a continuance may be sought to allow the divorce to become final. Back to Immigration Court A conditional resident spouse who filed a petition to lift the Extreme Cruelty Waiver conditions on residence, which USCIS eventually denied, will A conditional resident spouse can individually qualify for a receive a notice to appear in immigration court for removal waiver if it can be shown that the marriage was entered into proceedings. (See INA §237(a)(1)(D); AILA InfoNet Doc. No. in good faith, but the applicant was battered or subjected to 06090871). The conditional resident spouse can request that the IJ adjudicate the petition. If the petition denied by USCIS was filed with a waiver that also was denied, then the IJ can only adjudicate the waiver filed with USCIS and not alternate waivers. (See Matter of Anderson, 20 I&N Dec. 888 (BIA 1994)).

☛ Practice Pointer: If the only waiver sought from USCIS is based on extreme cruelty and/or hardship because the divorce is not final at the time of filing, a denial of that waiver precludes asking the immigration court to grant a waiver based on a divorce that has just been granted. A person facing this situation should file a new petition with USCIS seeking a waiver on the newly available ground. Similarly, if the petition filed with a waiver based on extreme cruelty and/or hardship has not been adjudicated by USCIS and the divorce becomes final, practitioners should file a new waiver request with USCIS, especially since USCIS has requested the filing of updated information in conditional resident cases. If conditional residence has been terminated by USCIS and a waiver request was filed with USCIS but not adjudicated, the conditional resident spouse placed in removal proceedings can ask the IJ for a continuation until the waiver is adjudicated. (See Matter of Stowers, 22 I&N Dec. 605 (BIA 1999)). A continuation can be obtained if the conditional resident spouse never filed a petition with USCIS and now seeks to do so. A waiver also can be requested at any time before the entry of a final order. (See 8 CFR §216.5(a)(2)). If USCIS denies the petition and/or waiver, the immigration court then can review the request for lifting the conditions on residence. Other forms of relief also may be available to the conditional resident spouse in removal proceedings, based on battery or abuse. ➝

26 Immigration Law Today november/december 2007

Marital Disharmony Immigration Consequences of Separation and Divorce

The VAWA Self-Petition:  spousal battery or extreme mental cruelty; and Permanent Residency for Battered Spouses  good moral character. The Violence Against Women Act (VAWA) provides certain relief to A VAWA self-petition is adjudicated at the Vermont Service spouses who have experienced battery or abuse from U.S. citizen or Center’s VAWA Unit. This unit comprises officers who have been LPR spouses, including cancellation of removal or suspension of de- trained on the dynamics of domestic violence and the special portation. VAWA, in part, allows battered immigrant spouses to seek exceptions and waivers for VAWA applicants. permanent residence without the assistance of the abusive spouses. A VAWA self-petition is filed on USCIS Form I-360. The peti- (See Immigration Act of 1990 §701, VAWA 1994, VTPA 2000, and tion must be well documented. Copies of identification documents VTPRA 2005). VAWA applies to men as well, and one of the authors for the applicant and the abuser should be submitted. The most has filed successful self-petitions for men. However, for the purposes compelling part of the application is the battered immigrant’s own of this article, and as statistics show, most victims of domestic violence personal statement, typically submitted as an affidavit. This affida- are women. A VAWA self-petition can be filed after the denial of a vit should be a chronologically arranged narrative including some regular spousal permanent residence petition or in lieu of it. In order background information about the battered immigrant, the court- to file a self-petition, a battered immigrant must have had: ship period of the relationship, and the decision to marry. It should  a valid marriage1 to a U.S. citizen or LPR2; include a thorough discussion of the incidents or patterns of domes-  joint residence in the United States in most cases; tic violence and a short statement about good moral character.

In a Nutshell: Forensic Evaluations in Immigration Proceedings

Political Asylum Cases country. For example, a U.S. citizen wife might to become a U.S. citizen. However, that individ- In these cases, an individual has been sub- have a sick parent or sibling, or be unable to ual is unable to pass examinations in U.S. his- jected to mistreatment and abuse in a foreign make a living in the country where her spouse tory and civics, or examinations demonstrating country. The mistreatment is frequently associ- is headed. The spouse also could be under capacity in reading, writing, and speaking the ated with a political, religious, ethnic, or gender treatment for a medical condition that could not English language. Psychological evaluations in factor. At some point during the period of be adequately treated outside the United States. this area involve the administration of a mental mistreatment, the individual leaves that foreign Furthermore, the children might be so far ad- status examination to determine whether there country and makes his or her way to the United vanced in their education in this country and are any cognitive incapacities, or deficits that States and files a political asylum claim. It is unable to speak, read, or write in the language interfere with new learning. For example, an in- very common that the individual has developed of the foreign country, that leaving the United dividual may have memory problems that inter- psychological problems as a result of the abuse. States might permanently bar their education. fere with the integration of subject-matter mate- Sometimes these problems include depres- In exceptional hardship cases, if one parent rial such as history or civics. In some cases, a sive disorders and/or a post-traumatic stress were forced to leave the United States, it can medical problem may interfere with the learning disorder. Some of these disorders occasionally produce a separation anxiety disorder on the process. Some individuals—especially the el- interfere with the ability to file a political asylum part of a child left behind. Some children also derly—may have developed senile dementia, or claim within the one-year filing period. In those might develop a depressive disorder, especially be in the early stages of Alzheimer’s disease. In cases, it is necessary to make an assessment those who are very young and do not have the others, an injury, especially head trauma, may whether the psychological problems experi- emotional maturity to understand why a parent have permanently affected learning ability. enced by the individual when he or she arrived might have to leave the United States. in the United States interfered with the filing of a Courtesy of Stephen Reich, Director of The Spousal Abuse Cases timely political asylum claim. It also is necessary Forensic Psychology Group. In cases of this nature, a woman or man from to assess whether an individual continues to a foreign country marries a U.S. citizen or LPR. Articles in ILT do not necessarily reflect the views of the American suffer from psychological symptoms after he or Immigration Lawyers Association. After the marriage, that person is then abused she has arrived in the United States. by the citizen or LPR. Such abuse can take the Exceptional Hardship Cases form of verbal, physical, sexual, or psychological The U.S. citizen or LPR spouse or child of an abuse. It is important in these cases to assess individual who may have to leave the United the type of abuse as well as the frequency, States applies for a waiver on the basis that the and to evaluate the impact that the abuse removal would result in an exceptional hard- has had on the individual. ship. Relevant factors in these cases would in- Citizenship Waiver Cases clude family relationships that would make it ex- In these cases, an LPR desires traordinarily difficult for the person to leave the

28 Immigration Law Today november/december 2007 If spouses seeking asylum are living separate and apart with the intention of ending the marriage,

The affidavit should be in plain language from the battered they still may pursue asylum, but immigrant’s perspective. Practitioners should avoid using “le- galese” when drafting the affidavit. It is important that the at- divorced spouses will be barred torney draft the affidavit of the self-petitioner—as well as any supporting affidavits—to ensure that the content satisfies the from obtaining derivative status. requirements under the law. For supporting affidavits, the battered spouse should compile a list of affiants and contact them in advance to ask if they are willing to speak with the attorney.

Separation and Divorce in Asylum Cases A person who obtains asylum may confer derivative asylee status to a spouse and unmarried children under 21 years of age. If an asylee has a spouse and/or children outside the United States, the asylee may obtain derivative status for them by filing a Refugee/ Asylee Relative Petition on USCIS Form I-730. If spouses seeking asylum are living separate and apart with the intention of ending the marriage, they still may pursue asylum, but divorced spouses will be barred from obtaining derivative status. The spousal relationship must be in existence at the time of the asylee’s grant of asylum, the filing of any Form I-730 petition, and a derivative beneficiary’s admission into the United States. (See R. Germain, AILA’s Asylum Primer 201 (AILA 2005 Ed.); 8 CFR §§1207.7(c) and 1208.21(b)). Thus, spouses who are present in the United States will not incur problems if they divorce after they are granted asylum. If the spouses divorce when the derivative beneficiary is outside the United States waiting for processing of the Form I-730 petition, the derivative beneficiary will not be able to enter the country as an asylee. Practitioners should bear in mind that the termination of asylum status of the principal applicant will result in the termination of the asylum status of derivative spouses and children. (See 8 CFR §1208.24(d)).

Ethical Issues: Double Trouble with Dual Representation Ethical considerations are extremely important in the immigration context. When an immigration lawyer handles a marriage- based permanent residence case, the attorney typically represents both spouses in the transaction. Dual representation presents many difficulties to an immigration practitioner, insofar as it may not be possible to limit the scope of representation to one spouse alone when a conflict arises between the intentions of the two spouses. If spouses begin living separate and apart while USCIS adjudication of a marriage-based permanent residence case is pending, the clients are in a state of conflict. The sponsoring spouse has the right to withdraw the petition for permanent residence prior to the commencement of the beneficiary spouse’s journey to the United States or completion of adjustment of ➝

november/december 2007 Immigration Law Today 29 Marital Disharmony Immigration Consequences of Separation and Divorce

status. (See 8 CFR §205.1(a)). Such withdrawal constitutes auto- realize that the case could be terminated? The lawyer then must matic revocation of the petition. communicate “adequate information and explanation about the The same problem can arise when the petition for permanent material risks” of going forward. residence is approved, but an adjustment of status application The lawyer also must communicate “reasonably available has yet to be adjudicated or consular processing is not complete. alternatives” to proceeding ahead. At a minimum, the attorney A sponsoring spouse, who has filed an affidavit of support for must convey to the sponsoring spouse the opportunity to re- the beneficiary spouse, may not want to continue to carry the voke the petition and the full extent of the liabilities associated liabilities required by the affidavit if the parties are undergoing with the affidavit of support. Furthermore, the lawyer must marital difficulties. communicate to the beneficiary spouse that the sponsoring Can these conflicts be waived? The answer is far from clear spouse has the authority to revoke the petition; and that there in the dual representation context. In the event of a concurrent is a risk that the sponsoring spouse will not sign the affidavit conflict of interest where the representation of one client is di- of support if adjustment or consular processing has not com- rectly adverse to the other client, the conflict can be waived if menced. The lawyer must inform both clients of the risks cre- the lawyer reasonably believes that competent and diligent rep- ated by the separation that are inherent in pursuing permanent resentation can be provided to each client and the clients provide residence, and the possibility for each spouse to obtain a sepa- signed, written, informed consent. (See ABA Model Rule 1.7). rate, independent attorney. Both clients then have to give their The concept of “informed consent” requires an “agreement by consent confirmed in writing. a person to a proposed course of conduct after the lawyer has What if spouses separate or divorce while a joint petition to communicated adequate information and explanation about the lift conditions on residence is pending? The attorney has to make material risks of and reasonably available alternatives to the pro- a similar conflict analysis as with the initial permanent residence posed course of conduct.” (See ABA Model Rule 1.0). case, including informing both clients about each opportunity to These are heavy requirements in the separation context for obtain separate, independent counsel. Similar issues apply if the immigration practitioners. First, the lawyer must believe that case has been referred to immigration court. competent and diligent representation can be provided to both clients. If one client wants to back out of The Triangular Conflict: sponsorship and the other wants to pro- When USCIS Gets Involved ceed, one lawyer cannot satisfy both The difficulties of dual representation take on a new dimension competing interests. What if the when considering the immigration practitioner’s obligations to sponsoring spouse is unsure whether present information to USCIS. Not only does the lawyer to proceed with the case or does not

30 Immigration Law Today november/december 2007 have obligations to two parties in conflict when the parties sepa- USCIS was not false when it was provided. Under this in- rate during the pendency of a joint petition to lift the conditions terpretation, state code requirements for maintaining the on residence, but there might be obligations to USCIS. attorney-client privilege or confidentiality of information USCIS apparently views the petition as a “continuing applica- might preclude an attorney from reporting the material tion” requiring immediate notification to USCIS if circumstances change of status if the clients are opposed to such disclo- change after filing. (See AILA InfoNet Doc. 06060761). USCIS sure. The American Bar Association Model Rules, however, appears to take the position that the petition will be judged on the permit an attorney to disclose information to the extent the law and facts in existence at the time of adjudication, as opposed lawyer reasonably believes necessary to comply with other to the time of filing. There is at least some support for this propo- law. (See ABA Model Rule 1.6). sition in the disciplinary ground contained at 8 Code of Federal To make matters worse, the petition may be set for an interview Regulations §1003.102(c), which requires that a practitioner take and the other spouse may refuse to attend the interview. Worst of all appropriate remedial measures if the lawyer offered material evi- perhaps, the other spouse may contact USCIS to withdraw the joint dence and came to learn of its falsity. If one reads the term “falsity” petition. Merely resolving the conflicts may not help in reaching a to mean that the fact of the marital status initially represented is satisfactory conclusion for the beneficiary spouse. now false, the duty imposed by the regulation is clear. Minimizing Conflict Damage ☛ Practice Pointer: The term “falsity” might Maximizing Client Resolution be open to some debate, inasmuch as the information Practitioners representing multiple clients in immigration concerning the marital status of the spouses provided to cases can reduce the potential problems created by con- ➝

november/december 2007 Immigration Law Today 31 Marital Disharmony Immigration Consequences of Separation and Divorce

flicts early on. Attorneys should have all represented clients ever, he or she can take steps to mitigate such loss—at least in sign written engagement letters that acknowledge the conflict the immigration process—by learning about the alternatives in of dual representation and allow the attorney to withdraw from obtaining and maintaining lawful status. ILT representation in the event a conflict cannot be waived. At- torneys may wish to have the clients sign an acknowledgment Jonathan S. Greene is the founder of The Greene Law Firm, that they understand the conflict provisions contained in the LLC in Columbia, MD, and a former chair of AILA’s Washington engagement letter. Communication issues also can be prob- D.C. Chapter. Cheryl R. David is a sole practitioner in New York City and a member of the AILA Board of Governors. lematic with dual representation. Attorneys should clearly Suzanne Tomatore is the director of the Immigrant Women indicate that all communications made by one client to the and Children Project at the City Bar Justice Center in New York. attorney may be shared with the other client. Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. Mitigating Marital Woes Going through separation and divorce is an emotional roller Notes coaster for both parties involved. It is adversarial in nature with 1 There is an exception for unintended bigamy. See AILA InfoNet Doc. No. no clear winners and losers. Furthermore, the couple’s pain and 02091042. difficulty are magnified when they add the stress of the im- 2 There is an exception when the abuser loses his or her status “related to” migration process. The beneficiary spouse has much to lose: a or “due to” an incident of domestic violence. See AILA InfoNet Doc. No. 05110961. family, a home, and lawful presence in the United States. How-

32 Immigration Law Today november/december 2007 november/december 2007 Immigration Law Today 33 From L–R: The author (at 3 years old) in Yokohama, Japan (1957), boards the U.S.-bound ship with his mother (clutching author’s doll) to join his father in San Francisco, while his mater- nal grandmother and grandfather say goodbye to their daughter.

34 Immigration Law Today november/december 2007 We Asked for Workers, but Families Came Time, Law, and the Family in Immigration and Citizenship

 by Hiroshi Motomura 

Swiss writer Max Frisch wrote a generation ago about guest workers in his own country: “we asked for workers, but people came.”1 The chronic failure to account for this gap in the perception of immigrants—between the stark austerity of their imagined lives as guest workers and the rich texture of their real lives as immigrants—has turned out to be the source of much of the trouble with immigration laws throughout the world, especially the failure in many countries to integrate immigrants fairly and humanely. The importance of recognizing immigrants as people with families should not come as a surprise, for migration is in large part a social process of network building, and no network is more basic to human life than the family.

It has become customary to analyze the role of the fam- the Fourteenth Amendment to the U.S. Constitution: ily in U.S. immigration and citizenship law by evaluating its “All persons born or naturalized in the United States, legal recognition in various forms (see, e.g., H. Motomura, and subject to the jurisdiction thereof, are citizens of the “The Family and Immigration: A Roadmap for the Ruri- United States and of the State wherein they reside.” (See tanian Lawmaker,” 43 Am. J. Comp. L. 511 (1995)). For U.S. Const. Amend XIV, §1). example, the vast majority of lawful immigrant admissions are based on family ties. Having a close family member Jus Soli Citizenship who is a citizen or lawful permanent resident (LPR) of the Jus soli citizenship strongly influences immigration law, United States may save noncitizens from deportation, even for it means that noncitizens in the United States of- if their stay in the United States was never lawful. ten have close family members who are U.S. citizens— Digging deeper than these legal rules, it becomes clear typically, their children who have been born here. The that the family adds the dimension of time to immigration realization that immigrants have families would com- and citizenship law. And in turn, the time dimension sheds plicate immigration law even without the legal badge of light on crucial legislative and policy choices not only for citizenship. But citizenship for U.S.-born children is the immigration law, but also for the integration of immigrants vehicle for immigration law to officially acknowledge into American society. that immigration is a matter of multiple generations. It does this by recognizing that denying citizenship to The Relevance of Family Ties these children will limit the cohesion—and even pro- Citizenship law is the logical starting point to see how mote the disintegration—of American society by liter- the family adds the dimension of time to immigration ally alienating a large resident population and inevitably law. Countries around the world have adopted blends encouraging a self-reinforcing circle of separatism and of two approaches to the acquisition of citizenship by anti-foreigner sentiments. birth. One is called jus sanguinis, a Latin phrase that Jus soli citizenship thus is based largely on the per- literally means law of blood. Jus sanguinis ties citizenship ceived need to recognize family ties that immigrants have to descent—the children of citizens generally become formed while living and working in the United States, citizens at birth no matter where they are born. Jus san- namely ties to the next generation—their children who guinis plays a role in U.S. citizenship, in that persons will come of age here. This alone would be enough for born outside the United States may be citizens at birth, if jus soli to introduce the dimension of time to immigra- one or both of their parents are citizens (see INA §301). tion law, but there is more. Jus soli also introduces the But the core principle of U.S. citizenship by birth is jus time dimension by laying the foundation for discretionary From L–R: The author (at 3 years old) in Yokohama, Japan soli, or law of land or ground, which makes citizenship relief from removal based on the fact that the children (1957), boards the U.S.-bound ship with his mother (clutching author’s doll) to join his father in San Francisco, while his mater- depend on place of birth—no matter who the child’s of immigrants are U.S. citizens, whether the immigrants nal grandmother and grandfather say goodbye to their daughter. parents are. Jus soli is embodied in the first sentence of themselves are documented or not. ➝

november/december 2007 Immigration Law Today 35 We Asked for Workers but Families Came Time, Law, and the Family in Immigration and Citizenship

The ticket voucher for the author and his mother’s voyage from Yokohama.

deportable noncitizens were part of American society and had committed only minor or technical immigration law violations, or that these noncitizens were deportable only for minor crimes for which they already had served a prison term and thus paid their debt to society. Immigration offi- cials responded to these arguments by providing relief from deportation under a previously obscure statute (see Act of Feb. 5, 1917, Ch. 29, §§3, 39 Stat. 874, 878)). This type of relief assumed several legislative incarnations, eventually becoming cancellation of removal. An IJ’s decision on cancellation of removal has two parts. First, the noncitizen must be eligible to apply for cancellation. A minimum residence period in the United States is required, and a criminal record may be disqualifying. Second, if a noncitizen is eligible to apply, an IJ may cancel removal as a matter of discretion. Cancellation allows noncitizens to retain the permanent resident status that they were in jeopardy of los- ing, or even to become LPRs for the first time. Having close family members who are U.S. citizens greatly enhances the chances for a noncitizen to avoid removal through waivers or cancellation. This happens for two reasons. First, family ties are often required for the noncitizen to be eligible for a waiver or cancellation. For example, immigrant noncitizens are eligible for the waiver in Immigration and Nationality Act (INA) §212(h) for certain crime-related grounds of inadmissibility only if they are the spouse, parent, son, or daughter of a U.S. citizen or an LPR. Second, statutes and administrative case law make clear that the exercise of discretion to grant or deny a waiver or cancellation of Waivers and Cancellation of Removal removal depends in large part on family ties. Noncitizens—even lawful immigrants—have no absolute guar- antee that they will be allowed to stay in the United States. Of Family Ties and Time course, noncitizens who are unlawfully present may be removed This role for family ties—evident both in jus soli citizenship and for that reason alone (see INA §§212(a)(6)(A), 237(a)(1)(B), (C)). discretionary relief—illustrates immigration law’s recognition of Lawful immigrants may be removed if, for example, they become U.S. ties in general. In turn, the recognition of ties is significant deportable for certain criminal convictions, or on national secu- because it adds the dimension of time to immigration law. For rity grounds (see INA §§237(a)(2), (4)). However, even removable cancellation of removal, for example, what counts are the ties that noncitizens may ask the government to waive some grounds and noncitizens have developed while having lived in the United States. let them stay as a matter of administrative discretion, exercised by Thus, cancellation of removal for LPRs requires seven years of con- an immigration judge (IJ) or by an official in the Department of tinuous residence in the United States after having been lawfully Homeland Security or Department of State. (See, e.g., INA §§103, admitted, including five years as a permanent resident (see INA 104, 212(h), (i), 237(a)(1)(H)). §240A). An IJ should exercise his or her discretion to cancel re- Even if a waiver is unavailable—or available but denied in the moval by looking at the noncitizen’s ties—not just family ties, but exercise of discretion—an IJ may still allow a noncitizen to stay also community ties, work history, and a clean criminal record (see in the United States under a form of discretionary relief called In re C–V–T–, 22 I&N Dec. 581, 584–85 (BIA 1998)). cancellation of removal (see INA §240A). The first precursor of Family ties and the dimension of time affect the reality of im- cancellation came into use in the 1930s, when advocates for case- migration enforcement in ways that go beyond immigration law by-case leniency cited the human cost of deportation in broken on the books. Members of a single immigrant household often families and economic hardship. These advocates argued that many include one parent who is an LPR and another who is ➝

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undocumented. Some of their children may be undocumented, 2006)). The core idea is viewing immigration as a set of expecta- while others are LPRs, and the rest are U.S. citizens based on jus tions and understandings that newcomers have upon entering their soli. Removing noncitizen breadwinners amounts to the de facto new country and, correspondingly, that their new country has of removal of children who are U.S. citizens. This is one reason for the newcomers. Violations within this context mean removal, or so tacit consensus that prevails in the United States to enforce immi- the thinking goes. gration laws in ways that are knowingly selective and, sometimes, The key feature of immigration as contract is its static nature. It just for the sake of symbolism and political show. looks to a fixed reference point for assessing claims of justice. What matters is providing notice and protecting reliance and expecta- The Meaning of tions, but not necessarily determining the contours of justice based Time in Immigration Law on the unfolding of events, including events that have taken place It is a policy choice to recognize ties and time, even if this choice in the lives of the immigrants themselves. To view immigration as is not deliberate or even conscious. To understand this choice, contract is to disregard time in immigration law, by disregarding compare it to a very different approach concerning the removal how an immigrant develops family ties as time goes by. of noncitizens from the United States—namely, that of removing noncitizens from the United Immigration as Affiliation States solely on the basis of having violated In contrast, the recognition of ties that have developed over their terms of admission. The most obvious time—the essence of what this author refers to as “immigration as violation is entry without inspection. But look- affiliation”—is a persuasive basis for both jus soli and discretion- ing only at the terms of admission would also ary relief from removal. Ties are a big reason why immigration justify automatic removal—without access law should provide relief to noncitizens even if they have violated to discretionary relief—if, for example, a the conditions of admission, or were never admitted at all. Rec- noncitizen overstays a lawful pe- ognizing ties that have developed over time is also the basis of an riod of temporary admission influential strand of court decisions that addresses the application or violates the condition of the Constitution to immigration and immigrants. Consider this that he or she not be con- passage from the U.S. Supreme Court’s decision in Mathews v. Diaz, victed of certain crimes. 426 U.S. 67, 80 (1976): Neither the overnight visitor, the unfriendly agent of a hostile Immigration as Contract foreign power, the resident diplomat, nor the illegal entrant, In Americans In Waiting, can advance even a colorable constitutional claim to a share in this author coined the term the bounty that a conscientious sovereign makes available to its “immigration as contract” own citizens and some of its guests. The decision to share that as one approach to im- bounty with our guests may take into account the character of migration and citizen- the relationship between the alien and this country: Congress ship. In this context, the may decide that as the alien’s tie grows stronger, so does the term “contract” means strength of his claim to an equal share of that munificence. a certain way of making immigration deci- Two Senses of Time sions that adopts ideas To establish that the family—and, thus, time—should make a dif- of fairness and justice ference in immigration law only begins the inquiry. The next ques- often associated with con- tion is how time should make a difference. The examples given tracts (see H. Motomura, here, both jus soli citizenship and discretionary relief from removal, Americans in Waiting: are typically justified by viewing immigration as affiliation—in oth- The Lost Story of Im- er words, by giving legal meaning to what has already occurred. migration and Citi- Thus, the time that an immigrant already has spent in the United zenship in the United States can yield the family ties that justify allowing him or her to States, 36–37, 57–58 stay through the use of waivers or cancellation, or to confer jus soli (Oxford Univ. Press citizenship for his or her U.S.-born child.

38 Immigration Law Today november/december 2007 Family ties and the dimension of time affect the reality of immigration enforcement in ways that go beyond immigration law on the books.

But this is not the only way that time and the family should mat- Immigration as Transition ter. In addition to retrospective recognition of ties, look prospec- To understand this prospective sense of time more fully, one must tively at time by focusing on immigrants’ future lives in the United view immigration as a transition to citizenship whose underly- States. Once time is examined in this way, a subtle but significant ing premise is to integrate immigrants. If the family is seen as shift occurs in the role of the family. It goes beyond mere recogni- a means of integration, then jus soli citizenship is justified not tion and adds a more instrumental view of the family in immigra- only because the ties that an immigrant already has developed tion law. The family becomes not only an object or recognition of in the United States should be recognized, but also because jus integration—something that should be acknowledged as having soli citizenship supports transition for families by assuring first- occurred—but also becomes a means or vehicle of integration, to generation immigrant parents that their future children born in help immigrants integrate into U.S. society. the United States will be citizens. Historically, this assurance was This prospective sense of time and the family implies a view especially important for Asian immigrants, who were barred from of immigration law that differs from immigration as affiliation naturalization but who knew that their U.S.-born children would and its retrospective recognition of the ties that immigrants have be citizens based on the Supreme Court decision in U.S. v. Wong developed. Now we must ask ourselves, how can immigration Kim Ark, 169 U.S. 649 (1898). law recognize not only family ties that already have developed Jus soli recognizes that transition can be a multi-generational as time has gone by, but also future family ties that can support process, and that it is important that the United States have no immigrant integration? second-generation or third-generation noncitizens—unlike ➝

november/december 2007 Immigration Law Today 39 We Asked for Workers but Families Came Time, Law, and the Family in Immigration and Citizenship

Come Gather Round Lawyers (Ode to “The Times They Are A-Changin’”) by Leslie Holman, AILA member Come gather round lawyers Wherever you file And admit that your cases Will all get denials And accept it that now USCIS is just vile countries where citizenship law relies and adult offspring. Hence, it may If your time to you principally on jus sanguinis. Similar be faster and more beneficial for an Is worth savin’ thinking justifies the provision in the LPR to wait the required three or five Then you better e-file Constitution that counts all persons years to naturalize and become a U.S. Can’t wait for a while for constitutional redistricting re- citizen before petitioning for family For the forms they are a-changin’. gardless of their immigration status. members. Come engineers and an’lysts This rule recognizes that legislators This current system of family re- who’ve long retrogressed represent not just current residents, unification for LPRs reflects a retro- Don’t e-mail us hourly but also a district’s future residents, spective recognition of ties. LPRs can You’re becoming a pest many of whom will be citizens petition for their spouses and children Yet you know so much law through jus soli. under the limited annual allotment Actually, more than the rest with a long waiting period. Alterna- And there’s no telling whose Family-Based tively, they can satisfy the residency Site your read’n Admissions period for naturalization and then For the rules we know Currently, if a noncitizen has a spouse petition as citizens for their spouses Will later be sin and children prior to becoming an and children. Both long waits are For the laws they are a changin’. LPR, his or her spouse and children consistent with immigration as affili- Come senators, congressmen may accompany and follow under INA ation, which recognizes immigrants’ Please heed the call §203(d). But if a noncitizen marries or ties but only after they have developed The last CIR it has children after becoming an LPR, over time. According to immigration Was destined to fall the new spouse or children cannot ac- as affiliation, new LPRs lack the ties to For what must get passed company or follow. Instead, they must justify favorable opportunities to peti- Has to benefit all There’s a battle inside qualify for admission as immigrants tion for close relatives. And its raging in their own right, and this means a Thus, immigration as affiliation Don’t call it an amnesty long wait. and its retrospective recognition of ties When building a wall In October 2007, new spouses and does not explain why long waiting pe- For the laws they need a-changin’. unmarried children of LPRs were be- riods for an LPR’s spouse and children ing admitted as LPRs after a five-year are highly troubling, but immigration Come mothers and fathers And minors alone wait (see DOS 8 Visa Bull. No. 111 as transition with its prospective sense Fiancés and lovers and (Oct. 2007)). And because only about of time tells us exactly why. These long Bad men atoned 25,000 LPRs from any single country delays seriously disrupt family life and Your sons and your daughters may come each year in the combined impede what it might become. Fami- But not if they’re stoned family-sponsored and employment- lies have to do without everything that And if you’re based preferences, natives of certain a missing spouse would bring to fam- An English investor, countries typically have had to wait ily life, from money to love. It is hard Don’t get used to your life here even longer (see INA §202(a)(2)). for an LPR to feel that he or she can es- E-2s there are none Anyone who applies today as an LPR’s tablish much of a life in America with- For the times they are a changin’. spouse or child may face still longer out his or her spouse and children. As The line it was drawn delays, depending on the demand for a result, some family members come The curse it was cast immigrant visas in this category. unlawfully, often at great physical risk When current not did In contrast, a U.S. citizen can peti- en route. Once here, they live under a moment it last, tion for a spouse and children as “im- threat of exploitation by employers Whose case do I file mediate relatives” who must wait only and arrest and removal by the govern- Whose time has not passed for the paperwork to be processed, al- ment. This is no way to nurture the The order was though this, too, can take some time sort of family life that integrates im- rapidly shaken And the next one filed (see INA §201(b)(2)(A)(1)). Another migrants into American society. Im- Will be my last advantage for citizens is their ability migration as transition suggests that For my nerves they are a shakin’. to petition for siblings and married immigration law should take family

40 Immigration Law Today november/december 2007 When this nation’s employers ask for workers, they will get people—with their families. And their families are essential to the successful integration of these immigrants into American society.

ties into account—not only by recognizing existing ties, but also by More generally, recognizing that families are key to immigrant promoting immigrant family life, especially by allowing immediate integration suggests that Congress should be very skeptical of pro- immigration of LPR spouses and children. posals to reduce family-based immigration. It is true that immigration policy should reflect economic reality. But this should not Family Ties and the Legislative Agenda blind people to the basic truth that when this nation’s employers In sum, the treatment of the family in immigration law shows not ask for workers, they will get people—with their families. And their only that the family introduces the element of time, but also that families are essential to the successful integration of these immi- time can have different meanings. The prevailing sense of time in grants into American society. ILT current law is retrospective. Recognizing existing ties is important. As a matter of legislative reform, it is important to broaden eligibil- Hiroshi Motomura is Kenan Distinguished Professor of Law at the ity for waivers and cancellation of removal. University of North Carolina School of Law. This is a summary of an It also is important to think of time prospectively. This means article that appeared in The Virginia Journal of Social Policy and the (Fall 2006). that immigration law should promote the immigrant family as a ve- Law hicle of integration into American society. This means eliminating Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. the waiting periods for the family-based second preference. Only Note if Congress takes this step can immigrant families realize their full 1 potential for fostering integration. See M. Frisch, Überfremdung I, In Schweiz Als Heimat? 219 (1990).

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november/december 2007 Immigration Law Today 41 reader’s corner / by Dan H. Berger

Nolo Press Tackles Immigration in Self-Help Books

olo prides itself on being “the only publisher in America with a staff of lawyers dedicated to creating books and software” to help readers prepare immigration applications without hiring a pricey at- Ntorney. (See I. Bray, U.S. Immigration Made Easy (12th Ed. 2006)). To Nolo’s credit, however, it is quick to point out when an attorney’s expertise is needed. Nolo recently published three immigration books written by AILA member Ilona Bray: U.S. Immigration Made Easy, 12th Ed. (Nolo; $39.99 paperback), How to Get a Green Card, 7th Ed. (Nolo; $29.99, paperback), and Becoming a U.S. Citizen, 3rd Ed. (Nolo; $24.99, paperback). These books offer the clearest, most accurate explanation of immigration law for nonlawyers thus far. And while no book can take the place of a lawyer’s knowledge and judgment, these volumes are better than most other nonattorney sources of immigration advice available today.

Plain English for the Masses Clear Explanation of These books seem to have three uses. Naturalization Process First and most obvious, they provide In many ways, the best of the three detailed information about immigra- books is Becoming a U.S. Citizen. For- tion processing for those who will not eign nationals tend to file naturalization be hiring a lawyer. There have been applications without attorneys, usually many instances in which people have acting on their own or with assistance received advice from pseudo-lawyers from community organizations. The (or lawyers who do not specialize in im- topic is discreet, and the 170-page book migration work), and the results have does a good job of reviewing the issues, been disastrous. Many of those foreign reprinting forms, and offering the text of nationals would have been better off to a sample interview. In reading Becoming have these books as references. a U.S. Citizen, this author felt a bit like Second, the books provide a useful a chess player trying to beat a computer background for those foreign nationals chess program—thinking of issues or working with attorneys or nonprofit approaches that would show how a hu- agencies, since they can refer to the man being can win. books for more information on a cat- To test the abilities of the book, this egory that is being suggested to them. This author’s firm prefers that its para- author considered complicated issues that Each book has sections that explain legals read articles written for attorneys, had arisen over the years. For example, what to expect from an attorney in but having some of the staff flip through can a widow apply for citizenship three terms of responsiveness, price, service, these books led to some good questions— years after she becomes a lawful perma- and how to choose an attorney. These particularly about topics that they might nent resident (LPR) if her husband died books actually may promote a better not have read about on their own. after that three-year period, therefore giv- relationship between attorney and cli- These books are well laid-out, and ing her three full years of living together ent by helping the client understand not clear icons are used to point out prob- in a bona fide marriage? The answer is in only the basics, but also the complexi- lem areas, cross-references to other sec- the book. “You need to stay married to the ties of immigration work. tions, and when to consult an attorney. U.S. citizen spouse all the way through the Third, the books provide a very acces- However, the books are for those with citizenship interview… [the three-year sible source of information and ideas for a good command of English. The lan- timeframe to file the N-400] won’t apply nonattorneys in a law office, or for staff guage is refreshingly clear and blunt on and you will be required to wait five years at a community or legal aid organization. important points. if … your spouse dies.” ➝

42 Immigration Law Today november/december 2007

Reader’s Corner Nolo Press Tackles Immigration

contact with the police in any country, since timing issue might well be worthwhile. sometimes a crime can be relevant for immigration purposes when the foreign na- When to Seek for Help tional believed it was dismissed. The book The books’ disclaimer appears on the back explains that the U.S. Citizenship and Im- of the inside front page at the bottom: migration Services (USCIS) examiner can Please note: We believe accurate, plain- look back beyond the five-year period English legal information should help preceding an application for evidence that you solve many of your own legal prob- might indicate a lack of overall good moral lems. But this text is not a substitute for character, such as issues with drugs, alco- personalized advice from a knowledge- hol, or violence. able lawyer. If you want the help of a The book does not mention mandamus trained professional—and we’ll always as a tool for moving a stalled case forward, point out situations in which we think nor does it list estate tax marital exemp- that’s a good idea—consult an attorney tion as a possible advantage to citizenship. licensed to practice in your state. While there were other concerns regarding clarification within this and the other Although this author disagrees with the books, much of the information was accu- placement of the disclaimer, the books point rate and detailed. out (in various ways all through the text) when a lawyer is needed or recommended. The Weakest Link The books acknowledge that good attorneys The weakest section was on “Getting a offer perspective on the regulations and poli- Green Card Through Employment”— cies, insights into interpretations and trends perhaps indicating that the author had less in gray areas, and the ability to consider cate- experience in that area. The employment- gories other than the ones the client might be based visa sections do appear intended to aware of. In addition, attorneys have up-to- inform the reader who is working with an date knowledge of processing times, which attorney, rather than on his or her own us- are a constantly moving target; and through ing the book as a self-help guide. Far fewer G-28s, attorneys should get notices of USCIS people will try an L-1 on their own than actions if the client’s copy does not arrive. they will an I-130 application. For example, Finally, attorneys who are AILA members the employment-based green card section have an excellent AILA case-liaison system advises concurrent filing of I-140 and I-485, to address delayed or problem cases. even though this can be a risk if there is Chapter 10 of the citizenship book, “Le- any potential weakness with the I-140 or gal Help Beyond This Book,” reviews areas in if the employer backs out before a request the naturalization context that should lead to for evidence. a consultation with a lawyer, and offers good Another weak aspect in all the books is advice about how to find an attorney. Cer- the estimate of timing—immigration prac- tain topics in each volume are flagged with Two more complicated questions in- titioners worry about estimating a time- “Get a Lawyer”—these include I-751 waiv- clude the timeframes for which asylees and frame in any case, given the tremendous ers, immigration court cases, and most cases refugees need to wait before naturalizing. variation. U.S. Immigration Made Easy, for involving criminal issues. Other topics sug- The book cites 8 Code of Federal Regula- example, estimates about 12 months from gest a consultation, such as for the “E” visa tions (CFR) §209.2(f) in stating that refu- filing to interview for an adjustment of sta- (where a consultation with an experienced gees who acquired LPR status have their tus through a family member, and refers immigration lawyer is listed as a “wise busi- permanent residence backdated to the date clients to the USCIS processing times on ness move”), or an H-1B (where the book they entered the United States, while asylees the website for estimates. The books can- suggests it is in the employer’s best interest to have a maximum one-year rollback. not hope to have current information on hire an attorney because of cap issues). So far, the book was doing quite well. processing times, and the online updates Chapter 6 in U.S. Immigration Made Then one final challenge was hurled at it—a for these volumes provide little additional Easy goes further by warning upfront that gray area to test the subtlety of the self-help information beyond advertising the books. “even a seemingly simple case can suddenly citizenship guide: good moral character. Since families and businesses try to plan become nightmarish.” It also advises that a Even there, the book fared remarkably well. around visa processing, consulting an at- foreign national should seek legal represen- The text warns the reader to consider any torney just for an accurate picture of the tation if a benefit might disappear in a finite

44 Immigration Law Today november/december 2007 period of time, such as a child aging out or In addition, there are issues that simply Worthy Read a diversity lottery winner filing for perma- cannot be digested in book form. By repu- Overall, having high-quality materials nent residence. Overall, the books accept tation, some USCIS offices require varying for foreign nationals about immigration the role of a good attorney in complicated levels of evidence for an I-601 waiver, and serves an important purpose. Many peo- cases, while trying to provide enough infor- some service centers have different standards ple who may not have the means to hire mation for the enthusiastic foreign national for O-1 and EB-1-1 petitions. In another ex- an attorney would pay $29.99 for How to file on his or her own. ample from last year, New York USCIS began to Get a Green Card before filing an ap- denying I-485 cases summarily (without an plication. These books are far above the No Substitute I-72) if the affidavit of support requirements level of information available to many for Legal Representation were not fully documented at the interview. people now, and they provide useful ref- It has been said—albeit only half jokingly— These trends and regional variations are erences for those working with attorneys that every foreign national in the United another moving target in this business and or nonprofit organizations on immigra- States should have a consultation with an im- can lead immigration practitioners to make tion cases. The books—along with oth- migration lawyer at least once to understand gut-level decisions on whether to file a chal- ers on fiancé(e) and marriage visas and the particular short– and long-term options lenging case. Again, no book can replace that student and tourist visas—are available available. Unless the foreign national reads kind of experience. at www.nolo.com. ILT the entire book, and accurately takes in a tre- Moreover, as U.S. Immigration Made mendous amount of material, mistakes can Easy points out, attorney cover letters and Dan H. Berger is a named partner at be made; and a very small mistake can lead presentation of materials can make a differ- Curran & Berger in Northampton, MA, and to tremendous consequences in this field. ence, especially with busy adjudicators, and chair of the AILA Board of Publications. Therefore, these books would work best as such written materials by attorneys “are dif- Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. a supplement to legal representation or con- ficult to produce if you are not experienced sultation, rather than a substitute. in immigration law.”

november/december 2007 Immigration Law Today 45 practice pointer / by Y. Judd Azulay, Rebecca Whiting, and Lun Tonsing

Preparing a Successful VAWA Self-Petition

ictims of domestic violence can be male or female, and immigration options for these victims are open to both genders. Nonetheless, the vast majority of victims of intimate partner violence are Vwomen (see, e.g., www.ncadv.org/files/DV_Facts.pdf), and according to the Department of Homeland Security (DHS) Office of Immigration Statistics, majority of immigrants who have availed themselves of protection under the Violence Against Women Act (VAWA) are spouses (as opposed to children) of abusive U.S. citizens or lawful permanent residents (LPRs).

LPR status. However, the loss of status declaration or in affidavits from friends must be a result of an incident of domes- or family members. tic violence and the self-petition must The practitioner must further advise be filed within the statutory limit of two a VAWA applicant that he or she has a years from the date the abuser lost his or substantial role in gathering informa- her LPR status (see INA §204(a)(1)(A) tion. Although clients often perceive (iii)(II)(aa)(CC)(bbb). this request as bothersome, it is in fact VAWA applicants must satisfy addi- a necessary step in order to prepare a tional requirements such as submission successful application. During the initial of proof that the self-petitioner is of good interview, it also is essential for the prac- moral character, and evidence that the titioner to fully explain the advantages U.S. citizen or LPR either physically or or the true immigration benefits of an mentally abused the spouse during the approved VAWA petition. marriage or the child during residence Lastly, the attorney should advise the VAWA immigration provisions ben- with the parent (see 8 CFR §§204.2(c)(1) client that VAWA petitions are within the efit husbands, wives, and children who (i)(E),(F), (e)(1)(i)(E),(F)). sole jurisdiction of the Vermont Service have been abused by their U.S. citizen or Center (VSC) and that once VSC ap- LPR spouse or parent. VAWA allows for Taking the First Step proves the petition—barring any future the filing of self-petitions that are com- When representing a VAWA applicant, finding of fraud—the beneficiary may parable to regular family visa petitions. several important steps must be fulfilled. then qualify for adjustment of status by However, one difference is that VAWA First, the practitioner should conduct filing Form I-485 (see 9 FAM 42.42 PN4). applicants benefit from important ex- an initial meeting in order to reiterate Clients should further be informed that ceptions to the customary statutory, the purpose of an I-360 petition and in the processing and adjudication of procedural, and documentary require- to establish a solid understanding with their I-485, USCIS’s district administra- ments that are associated with marriage- the client as to the documents and in- tive officers (DAOs) are required to con- based petitions. formation that will be needed in order duct local USCIS interviews and are not Applicants can file a petition even if to satisfy VAWA requirements. During permitted to question the facts, levels, or the marriage ended in divorce, so long this meeting, the practitioner should sufficiency of abuse. Nor are DAOs al- as there was a connection between the stress the reasons why VAWA petitions lowed to revoke an approved VAWA pe- divorce and domestic violence and the are demanding, so that the client is in- tition that has previously been approved petition is filed within the statutory limit formed from the beginning and aware by VSC (see 79 Interpreter Releases 1208 of two years from the termination of the that it will be necessary to comply with (August 12, 2002)). However, if a DAO purported marriage (see INA §204(a)(1) future documentary requests. The client reasonably believes that a self-petition (A)(iii)(II)(aa)(CC)(ccc)). Furthermore, also must be advised that U.S. Citizen- should be revoked, he or she may write applicants can immigrate to the United ship and Immigration Services (USCIS) a memorandum to his or her supervi- States, notwithstanding the fact that the requires detailed events of the abusive sor, who may then forward the opinion abuser has lost his or her U.S. citizen or relationship either in the applicant’s own to VSC’s VAWA unit. Appropriate client

46 Immigration Law Today november/december 2007 consultation as to the requirements and suitable organization offering these services. with regular activity in the form of regu- procedures of VAWA applications during lar deposits and withdrawals, joint stock the initial meeting should result in a more Evidence of a Bona Fide Marriage or mutual fund investments, or loans; workable attorney-client relationship, and To satisfy one of the key issues and require-  Federal income tax returns showing the enable the assembling and filing of a sound ments in this area of law, spousal VAWA ap- couple filed as “married, filing jointly”; and consistent VAWA self-petition. plicants must submit evidence to prove that  Evidence of additional commingling The second and final interview should the marriage was entered in good faith (see of financial resources containing both be for the purpose of conducting a detailed 8 CFR §204.2(c)(1)(i)(H); INA §§204(a)(1) names and the joint residence address review of the client’s personal statement. At (A)(iii)(I)(aa), (B)(ii)(I)(aa)). Inconsisten- on bills, invoices, credit card accounts, this time, the practitioner should request cies contained in these documents—specif- utility bills, and membership cards for additional information that may have been ically regarding dates and addresses—raise health clubs or video rental stores; lacking from the client’s original statement, issues of credibility, so the petition should  Birth certificates of children born to the including any substantial indicator of abuse be carefully reviewed prior to filing. marriage; in the statement itself and a timeline regard- To establish a bona fide marriage, docu-  Driver’s licenses showing both husband ing the same. In addition, the attorney also ments to be submitted include, but are not and wife at the same address; should request affidavits, specifically from af- limited to:  Life and health insurance records that fiants who may have witnessed any abuse and  Mortgages, deeds, property title, insur- show the spouse as a beneficiary or who are able to provide a timeline of these ance policies, or leases containing the dependent, joint wills, joint beneficiary events. For the well-being of the clients and names of both husband and wife to designation on 401(k) or pension funds; for corroboration of their statements, clients demonstrate joint ownership or tenancy  Proof of joint membership in clubs or also should be referred to psychologists, so- of a common residence; other organizations; cial workers, or other mental health workers  Automobile titles and insurance joint-  Photographs of the wedding ceremony for a series of counseling sessions. Clients ly held in the names of both husband or reception showing not only the cou- should be provided with a list of the avail- and wife; ple but other people in attendance; able resources so they can choose the most  Bank records showing joint accounts  Copies of bills related to wedding ➝

november/december 2007 Immigration Law Today 47 Practice Pointer Preparing a Successful VAWA Self-Petition

He Loves You, He Loves You Not: Evaluating Good-Faith Marriages

The following are key questions that forensic social workers should ask when evaluating the broader history of the client, and in gathering information about how the couple became ro- mantically involved:  What did you look for in the other person?  What attracted you to him or her?  Did you feel trust, comfort, or safe intimacy?  What role did you have in the relationship and how did you communicate?  What convinced you that you should make a life- long commitment to this person?  What parts of his or her personality or values do you identify with?  What common hopes or expectations did you have about the marriage?  What needs did you feel your spouse filled for you?  To what extent does your partner’s personality or behavior resemble or differ from other close relationships in your past?

Courtesy of Mark S. Silver, a forensic and mitigation specialist in immigration and criminal cases.

expenses, other documents pertain- self-petitioner must establish. This require- copies of the checks that Mrs. Doe wrote ing to the wedding arrangements, and ment becomes a critical issue in situations to Best Buy to purchase new appliances for mementos; where a client has never resided with his Mr. Doe’s apartment in Wisconsin.  Vacation or holiday photos taken over or her spouse or does not have substantial the last few years; proof of such residence. Regardless of this Evidence of Abuse  Statements (on letterhead stationery condition, the authors’ firm has been suc- VAWA regulations also require the self- whenever possible) from churches, cessful in handling these unique cases. petitioner to show that he or she, or his or civic groups, and other organizations in In one such case, a client (referred to her child, “has been battered or has been which the couple has joint involvement; as Mrs. Doe to protect her identity) lived the subject of extreme cruelty” by the U.S.  Notarized affidavits of third parties separately from her abusive husband, Mr. citizen or LPR spouse or parent (see INA (parents, relatives, friends, clergy Doe, due to their various employment §§204(a)(1)(A)(iii)(I)(bb) and (iv); (B) members, co-workers, etc.) having obligations. Mrs. Doe was employed as a (ii)(I)(bb) and (iii)). Mental or emotional knowledge of the bona fide marital re- nanny in a Chicago suburb, while her hus- abuse can include verbal abuse, social iso- lationship; and band worked construction in Wisconsin. lation, possessiveness, or diminution of  Copies of previously filed I-130, I-765, Mr. Doe lived in a rental apartment while quality of life. A finding of extreme cruelty and I-485 applications by the abusive Mrs. Doe owned a home in Illinois. They must be based on an examination of the spouse on behalf of the applicant, intended to sell the house so they could dynamics of the relationship, the victim’s if available. move in together to a location closer to sense of well-being before the abuse, the Under the current law, the self-peti- Mr. Doe’s work in Wisconsin. However, the specific acts during the period of abuse, tioner must provide evidence that he or plans were foiled before this occurrence. and the victim’s quality of life and ability to she resided at some point with the abuser, In order to overcome such a hurdle, the function following the abuse. either inside or outside the United States practitioner must secure documentation Since immigration regulations contain (see INA §§204(a)(1)(A)(iii)(II)(dd) and to show compliance with the legal require- broad definitions, it is important for prac- (iv); (B)(ii)(II)(dd) and (iii)). However, ment. For instance, to establish the facts titioners to utilize a coordinated approach there is no specified duration of time the of these circumstances, the firm submitted between: (1) immigration legal advocates,

48 Immigration Law Today november/december 2007 psychologists, and social workers (to obtain that the abuser was or currently is a U.S. was filed. Therefore, the applicant need not psychological reports and continued care); citizen or LPR. In the example above, Mrs. wait until the I-360 application has been (2) police personnel (to obtain criminal re- Doe was not in possession of Mr. Doe’s approved in order to seek LPR status (see cords); (3) friends and family members of birth certificate, nor did she know where 8 CFR §204.2(h)(2)). the abused (to obtain affidavits regarding she could obtain this record. Her former at- A VAWA self-petition can be a gruel- the abuse); and (4) family law practitioners torney was unable or unwilling to provide ing and difficult task; nonetheless, with (to secure divorces and for other family the requested documentation. Thus, the au- appropriate consultation, practitioners can law-related matters). thors’ firm contacted the county clerk and compile consistent and well-documented was able to secure an original copy of Mr. petitions. Self-petitions entail several docu- Evidence of Good Moral Character Doe’s birth certificate. mentary requirements, so practitioners must According to VAWA 2000 (Pub. L. No. 106- effectively communicate to their clients the 386, div. B, 114 Stat 1464, 1491–539), to show Beyond the First Step necessity in developing a cooperative rela- a client’s good moral character, practitioners The approval of a VAWA self-petition is the tionship. Lastly, practitioners should dis- should submit additional documents such as: first step in the immigration process. Once close to their clients the above-mentioned (1) notarized affidavits from friends, family, the self-petition is approved, the applicant requirements during the initial interview in landlords, employers, and community lead- may then proceed to the second step of order to schedule ample time to successfully ers regarding the applicants moral character; obtaining LPR status based on the ap- assemble a VAWA self-petition. ILT (2) written verification of any activities en- proved self-petition. According to VAWA gaged in such as religious, volunteer work, 2005 (Pub. L. No. 109-162, §§3(a), 801–34, Y. Judd Azulay is a founder of Azulay, Horn or charities; (3) and police clearance letters 119 Stat. 2960, 2964–71, 3053–77 (2006)), & Seiden, LLC in Chicago, where Rebecca demonstrating a lack of a criminal record. self-petitioners, on whose behalf an abuser Whiting is an associate, and Lun Tonsing is a paralegal. Furthermore, a self-petitioner will already has filed an I-130 and an I-485, can Articles in ILT do not necessarily reflect the views of the American qualify only if he or she is able to establish obtain the priority date of the date the I-130 Immigration Lawyers Association.

november/december 2007 Immigration Law Today 49 practice management / by Angelo Paparelli and Stephen W. Yale-Loehr Passion and Perseverance Amid Immigration Crises

his is the time of immigration crises, from H-1B cap issues, to worksite enforcement and raids— not to mention a rising popular sentiment against immigrants and their lawyers, just to catch the tip of the Ticeberg. However, immigration crises also create golden opportunities for immigration lawyers. Thus, it is important for you as the practitioner to forge ahead with persistence and perseverance. Now, more than ever, you need to keep your passion alive and remember why you have chosen this noble cause of advocacy and representation.

Call to Mission nent. Consider the special privilege that out to others, and find a mentor. Par- Recognize that there is a larger purpose lawyers have. We take on the government ticipate in AILA National and chapter to what you do, and that you stand in and force it to be reasonable. Few citizens events. Start a Brain Trust or Master- service of others. Immigration law is have that direct opportunity on a regular Mind group and meet regularly. Having more than a profession; it is a calling. basis, but immigration lawyers do. many people thinking about a hard is- Other lawyers are less fortunate, in that sue usually will result in a better answer they do not always see the direct benefit Rejuvenate and Refocus than just relying on yourself, and it is of the work they do. For example, the Change brings opportunities. But too more fun to brainstorm in a group. adversarial nature of litigation or divorce much change too quickly can lead to law results in a clear winner and loser. burnout. You know you need a break Happy Thoughts On the other hand, immigration law when the enactment of a new law or Focus on the law of attraction. If you per- can be a win-win situation for all parties promulgation of a new regulation ceive that only negatives are coming your involved, be it the employer sponsor, cli- causes you to cringe in fear of having way, be assured that they indeed will. But ent beneficiary, and even this country. to learn something new. Take a break the reverse also is true. Keep inspirational The purpose of immigration law is to to restore your balance and reinvigo- quotes on your desk and look at them ev- help the United States. Immigrants con- rate yourself. Book that much-needed ery day. Remember, nothing is as bad as tribute greatly to the American work- vacation, join a biking club, enroll in it first appears. Do not panic, for as moti- force and economy. Remembering this an acting class, schedule a therapeutic vational speaker Willie Jolley reminds us, will create a happier mindset and make massage, or take a walk in the park. “A setback is a set-up to a comeback.” you more motivated and fulfilled. Once refreshed, you will recognize that a new law or regulation creates oppor- Expand Your Horizon Walk in the Client’s Shoes tunities for new business, new product It is important to associate with people Put yourself in your clients’ shoes. offerings, and new ways to be creative outside the immigration arena and try Recognize the fears and unknowns in in serving your client. new activities to generate fresh ideas. immigration with which they must Make friends (and potential new clients) contend. No matter how fearsome the Mix It Up at cocktail parties or yoga classes. Create challenge may be to you, the challenge Mix up your immigration practice. For a video or write a poem rather than an to your clients is much greater. The cli- example, take on a pro bono asylum or article. Read widely, be it fiction, nonfic- ents are counting on you. You have the a Violence Against Women Act (VAWA) tion, or periodicals—it is a way to exer- knowledge, skills, and experience to case—under proper supervision, of cise the mind and avoid burnout. Also, help them achieve their goals. course, if you have not done one before. develop a niche around what you love. Winning asylum or VAWA for someone Look to what you enjoy and incorporate Know Your Opponent brings great psychological rewards, and that into your immigration practice. Avoid the temptation to think that the can help you regenerate passion for your government is necessarily a formidable overall immigration practice. Work and Play adversary. Often the government is Make time for fun in your everyday plagued by inefficiency. It is easier to beat Network or Not Work! work life. Conduct immigration con- a bureaucracy than a motivated oppo- Do not isolate yourself. Network, reach tests among coworkers, such as ➝

50 Immigration Law Today november/december 2007

Practice Management Passion and Perserverence Amid Immigration Crises

whoever uses the word “alien” in speech or writing AILA Podcasts for Members has to put 25 cents into a kitty that goes to buy snacks for the immigration group. Organize bowl- AILA enters the virtual world of pod- ing contests or softball games with other immi- casting! Members can subscribe for gration firms and local agencies. Consider a firm retreat. Add an immigration haiku poem or trivia free by going to www.aila.org/podcasts contest to your newsletter. and clicking on the “Subscribe Now” link. Once members have subscribed, Practice Makes Perfect they automatically will receive new Keeping passion alive in your immigration practice is the same as keeping passion alive in any long-term AILA podcasts each month. These relationship, such as marriage. Keep working at it, try podcasts are short audio files— something new and exciting to avoid complacency, approximately 15 to 20 minutes in ILT and make time for fun on a daily basis. length—that members can download Angelo Paparelli is managing partner of Paparelli & to their computer and listen to imme- Partners LLP with offices in New York and California, diately or anywhere by using a portable and Stephen W. Yale-Loehr is of counsel at Miller Mayer, LLP in New York and adjunct professor media player. The topics will vary each at Cornell University Law School. This article was month—from quick tips on tricky sub- adapted from a podcast accessible via download at stantive law issues to entertaining and www.aila.org/podcasts exclusively for AILA members. informative interviews. Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.

52 Immigration Law Today november/december 2007

legal action / by Brian Green

Third Circuit Adopts “Reasonable Likelihood” Standard for Ineffectiveness of Counsel Claims in Removal Proceedings

he U.S. Third Circuit Court of Appeals recently adopted a new standard that probably has many immigration practitioners thoroughly reviewing their work before filing anything on a client’s behalf. TIn Fadiga v. U.S. Attorney General, 488 F.3d 142 (3d Cir. 2007), the Third Circuit reversed a decision by the Board of Immigration Appeals (BIA) and held that a nonimmigrant need only show that there is a reasonable likelihood that the result of his or her removal proceeding would have been different given effective assistance of counsel. (See Fadiga, at 154, headnote 9).

Inadequate Counsel withholding of removal under the Im- were due to errors by his counsel, rather Soriba Fadiga entered the United States migration and Nationality Act (INA) than from inconsistencies in his memory. in 1991 using a fraudulent U.S. nonim- and protection under the CAT on the (See Fadiga, at 147). migrant visa and fraudulent Guinean merits, and ordering Fadiga removed to Fadiga testified that he was a close passport, which he obtained in Cote Guinea. (See Fadiga, at 145). relative of Sekou Toure, the first presi- d’Ivoire after fleeing his native Guinea. Fadiga then filed a motion to reopen dent of independent Guinea, who held Fadiga was served with a Notice to Ap- his removal proceedings through his office from 1958 until his death in 1984. pear in September 1992. He then filed an original counsel. Nine days later, he filed Fadiga had been active in Toure’s political application for asylum, withholding of a Notice of Appeal with the BIA using party, the PDG, which was ousted from removal, and protection under Article III newly obtained counsel. The BIA took power in a coup that occurred shortly af- of the U.N. Convention Against Torture jurisdiction over both the motion to re- ter Toure’s death. Fadiga testified that the and Other Cruel, Inhuman or Degrading open and the appeal. The sole ground murder of his uncle, Ismail Toure, was po- Treatment or Punishment (CAT).1 of the appeal and the motion to reopen litically motivated. Due to alleged political Prior to filing his U.S. Citizenship was the alleged ineffective assistance of repression and threats, both Fadiga and and Immigration Services (USCIS) counsel. In October 2005, a single mem- his father fled Guinea for Cote d’Ivoire. Form I-589, Fadiga was interviewed ber of the BIA filed a three-page decision Soon after his departure, the Guinean by a law clerk employed by his original dismissing Fadiga’s appeal and denying government issued a warrant for Fadiga’s counsel. Fadiga did not meet with his the motion to reopen (which the BIA arrest. Fadiga testified that he was abso- counsel until shortly before the hearing considered as a motion to remand). lutely sure that he would be arrested upon on his application for asylum and related arrival at an airport in Guinea and impris- claims. The Form I-589 that was filed Ineffectiveness Claims oned for the reasons he had set forth on on Fadiga’s behalf was not reviewed by The IJ found “glaring inconsistencies” be- the record. (See Fadiga, at 146). his counsel and contained numerous er- tween Fadiga’s testimony and his applica- Fadiga also testified that he was not rors. At his hearing in May 2004, Fadiga tion for asylum, including his education, informed by his original counsel of the testified and produced nine documents, alleged familial relationship with Sekou need to produce witnesses or to verify three of which supported his testimony Toure, technical names and abbreviations the authenticity of his proffered docu- about his fear of being arrested, tortured, of Guinean political parties, issues of mentary evidence. He stated that had he or killed if he was returned to Guinea. At credibility relating to his testimony about known, he would have produced “many the close of the hearing, the immigration these political parties, and the timing of witnesses and much more in the way of judge (IJ) issued an oral decision deny- his move to Ivory Coast. (See Fadiga, at evidence.” (See Fadiga, at 148). ing Fadiga’s request for asylum as being 147–48). Fadiga addressed the IJ in court Fadiga’s original counsel addressed time-barred, denying the requests for and explained that these inconsistencies the IJ and admitted that neither he nor

54 Immigration Law Today november/december 2007 A Related Resource:

Fadiga had reviewed the application Essentials of Removal and Relief for asylum—either before filing it or in preparation for the hearing. Original Essentials of Removal and Relief: Representing Individuals in Immigration Proceedings is written counsel proffered that his law clerk had by noted immigration attorney and former immigration judge Joseph A. Vail, and offers the practical met one time with Fadiga and that there guidance you need when representing a client in removal proceedings. Essentials of Removal and had been problems with other Form Relief provides the foundation necessary to understand the elements of removal and the relief available during immigration court proceedings, and includes: I-589s that this law clerk had similarly prepared. Original counsel also stated  History of Removability Laws that had he informed Fadiga of the need  Grounds of Deportability to produce evidence, they would have called at least four witnesses to testify.  Grounds of Inadmissibility The IJ rejected a proffer of the names  DHS Powers to Stop, Search, and and addresses of these purported wit- Seize, and the Steps of Proceedings nesses and denied Fadiga’s application  Forms of Relief and Tips on Preparing in its entirety. (See Fadiga, at 148–49). and Presenting Claims The BIA decision found that regardless of whether Fadiga had met the pro-  BIA and Federal Court Review cedural requirements for an “ineffec- and more! tiveness of counsel” claim, his motion would be denied because he had not Essentials of Removal and Relief is an indispensable been prejudiced. (See Fadiga, at 152). reference for new lawyers, pro bono attorneys, law students, and even experienced immigration practitioners The BIA also applied a “more likely than who may need a refresher on representing immigrants not” standard to Fadiga’s ineffectiveness and refugees facing removal. of counsel claim relating to his claim for withholding of removal. Concluding Visit www.ailapubs.org to view a table of contents and to order. that Fadiga failed to demonstrate prima facie eligibility for withholding under the INA or the CAT, the BIA found that Fadiga could not establish that he had spond. Fadiga did not file a bar com- BIA should apply a two-part, error-and- been prejudiced by the actions of his for- plaint and did not explain this failure as prejudice test. (See Fadiga, at 157, citing mer counsel. (See Fadiga, at 153). part of his motion or appeal. In its writ- to Zheng v. Gonzales, 422 F.3d 442 (3d ten opinion, the BIA cited to the Third Cir. 2005); cf. Strickland v. Washington, Applying Lozada and Strickland Circuit precedent in Lu v. Ashcroft, 259 466 U.S. 668 (1984)). Noting the government’s argument that F.3d 127, 131 (3d Cir. 2001), when dis- In deciding the proper formulation of Fadiga could not succeed on his petition cussing the affidavit that was submitted the standard by which prejudice is to be because he had not strictly satisfied the by Fadiga’s original counsel. In Lu, the measured in considering such a claim, the requirements of In re Lozada, 19 I&N Third Circuit noted the “dangers … in Third Circuit noted that the government’s Dec. 637 (BIA 1988), the Third Circuit applying a strict, formulaic interpreta- supplemental brief cited to its recent de- set forth its own standard. The court held tion of Lozada.” The court then empha- cision in U.S. v. Charleswell, 456 F.3d 347 that the proper inquiry in an ineffective- sized that the BIA cited to the portion (3d Cir. 2006). In Charleswell, the Third ness of counsel claim is whether there is of its opinion in Lu that held that “the Circuit adopted the position of “the ma- a “reasonable likelihood” (or, synony- filing of a complaint is not an absolute jority of courts that had addressed the mously, a “reasonable probability”) that requirement,” and that “failure to file issue” and held that a showing of “preju- the result would have been different given a complaint is not fatal if a petitioner dice requires a reasonable likelihood that effective assistance of counsel. The court provides a reasonable explanation.” (See the result would have been different if the found that the BIA had erred in requiring Fadiga, at 156 (emphasis in original)). error in the deportation proceeding had Fadiga to show a “clear probability” that The court noted that the BIA’s cita- not occurred. (See Fadiga, at 158, citing the result of his case would have been dif- tion to Lu—in relation to original coun- to Charleswell, 456 at 361–62). ferent. (See Fadiga, at 154). sel’s affidavit—would be construed as its After noting the similar Second Cir- The court noted that Fadiga had sat- acceptance of a reasonable explanation cuit decision of U.S. v. Copeland, 376 F.3d isfied the first two Lozada requirements of Fadiga’s failure to file a bar com- 61 (2d Cir. 2004), the Third Circuit agreed by filing an affidavit and providing his plaint. Furthermore, when the Lozada with the government that the Charleswell former counsel an opportunity to re- requirements are met or excused, the “reasonable likelihood” standard— ➝

november/december 2007 Immigration Law Today 55 Legal Action Third Circuit "Reasonable Likelihood" Standard

or its equivalent, the “reasonable probability” tion hearing had his original attorney per- (8th Cir. 2004), the Eighth Circuit rejected standard—also is appropriate to the prejudice formed effectively. (See Fadiga, at 162–63). an absolute constitutional right to effective inquiry in the context of an alleged denial of assistance of counsel for asylum claims. (See ☛ When fil- due process in removal proceedings due to Practice Pointer: Obleshchenko at 971). However, the Eighth ing a motion or appeal based on a claim of ineffective assistance of counsel. (See Fadiga, Circuit has recognized a due process right ineffectiveness of counsel, always include at 158–59, headnote 19). to fundamentally fair removal proceedings. any response received from the nonciti- However, the court explained, while a (See Al Khouri v. Ashcroft, 362 F.3d 461, 464 zen’s allegedly ineffective counsel with the “reasonable likelihood” of a different out- (8th Cir. 2004)). noncitizen’s pleading asserting the claim. come requires more than a showing of “a In Maravilla Maravilla v. Ashcroft, 381 plausible ground for relief from deporta- F.3d 855 (9th Cir. 2004), the Ninth Circuit tion,” it does not require that a different Other Circuits’ Interpretations held that the BIA abused its discretion by outcome was “more likely than not.” In The First, Second, Fourth, Fifth, Seventh, applying the wrong standard to a claim of discussing this standard further, the court Eighth, Ninth, and Eleventh Circuits have ineffectiveness of counsel. The BIA errone- stated, “This standard is not a stringent addressed claims of ineffectiveness of coun- ously required the aliens to make a prima on e .” ( See Fadiga, at 161, citing to Thomas sel in a variety of ways. In Campos-Javier facie showing of their eligibility for relief. v. Varner, 428 F.3d 491 (3d Cir. 2005)). v. Gonzales, 2007 U.S. App. 18108 (1st Cir. The court held that the BIA should have The Third Circuit held that the record 2007), the First Circuit refused to reverse asked only whether the attorney’s deficient made clear that Fadiga’s original counsel’s the BIA’s denial of a motion to reconsider, performance might have affected the pro- performance was deficient and “severely where an alien failed to meet the require- ceedings—not whether the aliens would compromised Fadiga’s capacity to pres- ments of Lozada by failing to inform his ultimately prevail on their claims. (See ent his claims cogently to the Immigration prior counsel of his claims, and for not af- Maravilla, at 857–59). Court.” The court then found that there was fording her the opportunity to respond to In Pavlova v. U.S. Attorney General, 2007 a reasonable likelihood of Fadiga achieving a such claims. (See Campos-Javier, at 5–7). U.S. App. LEXIS 18070 (11th Cir. 2007), the favorable outcome at his May 2004 immigra- The Second Circuit dealt with the issue Eleventh Circuit upheld an IJ’s denial of a of claims of ineffectiveness of counsel in motion to reopen where the alien failed to deportation proceedings in Iavorski v. INS, satisfy Lozada and failed to show that she 232 F.3d 124 (2d Cir. 2000). The court held was prejudiced by her counsel’s alleged in- that Iavorski was barred from succeeding effective conduct. (See Pavlova, at 11–12). on his petition because he failed to exercise due diligence in waiting more than Reasonable Likelihood two years to file his appeal. (See Iavorski, at of Effective Counsel 128–30 and 134–35). As seen by recent trends in other circuit In Barry v. Gonzales, 445 F.3d 741 (4th courts, the Third Circuit is the latest to Cir. 2006), the Fourth Circuit upheld a de- adopt a standard that is easier for the plain- nial of a motion to reopen where the alien tiff to satisfy when bringing a claim of inef- failed all three requirements of Lozada. (See fectiveness of counsel. So long as the plain- Barry, at 12–13.) tiff shows due diligence in satisfying at least In Mantell v. INS, 798 F.2d 124 (5th Cir. two of the Lozada requirements, he or she 1986), the Fifth Circuit held that an alien only needs to show a reasonable likelihood must show prejudice to his or her constitu- that the result of the removal proceeding tional rights in order to prevail on a claim of would have been different had there been ineffectiveness of counsel in a deportation effective assistance of counsel. ILT proceeding. (See Mantell, at 128, citing to Strickland, supra). Brian Green is a member of AILA’s In Patel v. Gonzales, 2007 U.S. App. Washington, D.C. Chapter. LEXIS 18765 (7th Cir. 2007), the Seventh Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. Circuit cited Fadiga when denying a motion to reopen where the alien failed to sub- Notes stantially meet the requirements of Lozada 1 See U.N. Convention Against Torture and Other by failing to inform his original counsel of Cruel, Inhuman or Degrading Treatment or Punish- his claims of ineffectiveness and not supplement (CAT), adopted Dec. 10, 1984, 1465 UNTS menting his later counsel’s responses to the 85, 23 ILM 1027, implemented in the U.S. by the Foreign Affairs Reform and Restructuring Act, Pub. BIA. (See Patel, at 6–12). L. No. 105-277, §2242, 112 Stat. 2681-822 (1998) In Obleshchenko v. Ashcroft, 392 F.3d 970 (codified as Note to 8 USC §1231).

56 Immigration Law Today november/december 2007

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november/december 2007 Immigration Law Today 59 statuschecks✓ Honors and Appointments ■ John Keller, Executive Director of New Parents the Immigrant Law Center of Minnesota, ■ Christopher Nugent was honored received the 2007 Minnesota Council ■ Lisa Palter and her husband, Edwin at the National Immigration Law of Nonprofits Advocacy Award in DeShazo, are thrilled to announce the Center’s Inaugural Awards Dinner for Duluth, MN. birth of their daughter, Olivia Louise, his contribution in advancing the rights of in June 2007. immigrants. Announcements ■ The Congressional Coalition on ■ In Memoriam Adoption Institute honored Irene The Denver immigration law firms Steffas Angel in of Stern Elkind & Curray LLP and in October as an ■ Long-time AILA member David Adoption™ in recognition of her excep- Carter & Alterman LLP merged to Carliner passed away on September tional contributions to international adop- form Stern Elkind Curray & Alter- tion and children issues. man LLP. 19, 2007. David spent a life-long career challenging state and federal laws on ■ Former AILA President Leon Wildes ■ Kimberly E. Harrison and Noure segregation, mixed-race marriage, ille- was honored by Yeshiva University for Alo have opened a boutique immigration gal immigrants, and homosexuality. his prominence as a community leader law firm, Harrison Alo, Attorneys at at an annual gala dinner in New York in Law, in Columbus, OH. ■ Mikre Michael Ayele passed October 2007. away in May 2007 while visiting fam- ■ Orit Levit recently opened a new of- ily in Addis Ababa, Ethiopia. Mikre’s fice, All Immigration Law Group, in On the Move memorial service included the inau- Sherman Oaks, CA. n Leigh Ganchan has joined gural fundraising event for the Mikre Haynes and Boone LLP in Hous- ■ Liam Schwartz is pleased to an- Michael Ayele Foundation, which ton and leads the firm’s immigration nounce the opening of his new office in provides legal services to those in need. practice group. Israel, Liam Schwartz & Associates.

n Ivener & Fullmer LLP in Los ■ Marc Van Der Hout and fellow Angeles is pleased to announce the counsel were successful in having the Calling All Writers! Nelson A. Cas- firm’s new partner, Board of Immigration Appeals dismiss all tillo , former president of the Hispanic charges against the two remaining student The skill of writing is to create a con- National Bar Association. activists who were arrested with six others text in which other people can think. n Crowe & Dunlevy welcomes in January 1987—Khader Hamide and —Edwin Schlossberg Jasmine Majid as director in the Michel Shehadeh—known as the LA8. Are you interested in writing for firm’s Oklahoma City office. The 20-year-old case is one of the nation’s longest-running and most controversial AILA’s Immigration Law Today, the n Trow & Rahal, P.C. in Washing- deportation cases. premiere journal serving the im- ton, D.C., is pleased to announce that migration law field? We’re always in Stacy Shore has joined as senior ■ Jeff Margolis testified before the New need of well-written, quality articles attorney. York City Council’s Immigration and Civil on matters of interest to the immigration bar. Our team of experienced n The Law Offices of Linda Rights Committees in September 2007 on legal editors can help you shape your W. Lau in Los Angeles is pleased “The Impact of Recent Federal Border Se- ideas and present them in a way that to announce its new associate, curity and Immigration Enforcement Ini- will engage the reader and provide Tina Lee Bay. tiatives on Civil Rights in New York City.” valuable insight and advice to our au- n Walter G. Unglaub, III recently ■ Karol Brown and Margaret (Peg- dience of experienced practitioners. became of counsel to the Law Of- gy) O’Donnell in May 2007 opened their For more information, contact us to fices of Jerry Goh in matters of firm, Global Law Partners LLP, in discuss your ideas and deadlines for immigration, federal jurisdictions, Seattle’s Pioneer Square district. submissions at [email protected].

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