Last week, we saw politicians competing to put forward the most comprehensive immigration reform. The President outlined a plan. We saw Republicans and Democrats, who could not agree on anything for close to four years, all agree that immigration reform is needed and that a path to citizenship is an essential to that effort. We learned that the even the House has a bipartisan working group planning to develop its own immigration legislation. Simultaneously, a federal judge in Dallas, Texas dealt a near fatal blow to the ICE agents lawsuit, where they alleged potential injury if they refused to follow the DHS secretary’s directives regarding DACA. While the Judge did not entirely dismiss the lawsuit, FOBR Ben Winograd at the Immigration Policy Center described the lawsuit as” hanging by a thread.“ Bad week to be on the losing side of history.
With all due respect, the position of the ICE agents union is crystal clear. They so believe in an anti-immigrant policy where their actions are not subjected to meaningful review that their views are meaningless in an effort to reform the immigration law in a way to break their power. The ICE bureaucrats are afraid of being demonized for participating in the democratic process. Well, welcome to the arena, folks. You can’t continue to say outlandish and self-interested garbage and not be called out on it. The bureaucrats have always had a weak grip on the basics of democracy. While begging to be treated with kid gloves, the ICE bureaucrats union has staged a vote of no confidence in ICE’s political leadership, sued the Department to stop DACA, and has encouraged its members not to follow the direction of their management. In the military and any other law enforcement agency, that is known as insubordination and can result in dismissal or, in the case of the military, the brig. But ICE bureaucrats ask not to “be demonized.”
If the ICE bureaucrats do not want to be demonized, they should stop resisting efforts to create intelligent immigration policy and participate in implementing immigration law, both today’s and tomorrow’s in a more humane and useful way.
None of this is surprising to immigration attorneys. ICE runs a gulag archipelago of detention centers across the country, holding immigrants who have overstayed visas, entered without inspection, seek asylum, and committed minor offenses. ICE has continued to push in the federal courts for expansive definitions of mandatory detention, even if it means detaining people for offenses committed decades ago. In 2011, ICE detained over 429,000 people, more than any other single government entity. More than the Bureau of Prisons, the States of California, Texas, Florida, and New York. ICE operates in its own jails, rents out space at local jails and contracts with private companies like the GEO corporation to manage this enormous population. In addition, ICE has contracts with BI Incorporated to monitor individuals with final orders of removal. This often involves ankle bracelets with GPS, telephonic and in-person reporting. BI officials also monitor an individual’s efforts to obtain passports and plane tickets to depart the U.S. under an removal order. In other words, they do ICE’s job. And, frankly, they are pretty good at it. Over 400,000 removals in 2011 shows how good BI is. If budget hawks are serious about making government run like a business, how about saving money by eliminating the middleman?
The large budgetary excess for immigration enforcement also provides an explanation for the massive ICE resistance to immigration reform. After all, if undocumented youth are getting DACA rather than being detained and deported, bed spaced is being underutilized and removals may go down. In our current economic environment, it won’t be long before some budget-cutting legislator begins to question the excess of the the immigration enforcement budget. If ICE were to exercise discretion and not detain and deport everyone that they possibly could, can they fulfill their contracts with the private companies that have built jails throughout the country. If ICE were to take a more reasonable approach to enforcement, would they need to send out 20 agents before dawn to arrest four plumbers working a contract at Dulles because they are working on fake green cards?
The large amount of money at stake for immigration enforcement makes it clear that the efforts of some ICE bureaucrats to derail common-sense immigration reform is a result not of a principled belief in our national security and public safety, but rather to protect their exalted place at the public trough.
As we spend months debating the economic future of this country and what immigration reform will look like, it is worth contrasting the unproductive use of $18 billion tax dollars that ICE has commanded on an enforcement roid rage with the agreed-upon economic stimulus that would be provided by an immigration reform package.
The publication of the rule allowing for processing of provisional waivers for unlawful presence in the United States was another act of administrative rule-making that the President has undertaken to make the immigration laws more humane. Over the past year, the effort at prosecutorial discretion, the introduction of Deferred Action for Childhood Arrivals (DACA), and the provisional waiver have created a much improved immigration system that attempts to solve real immigration problems for families.
The President has been justly criticized for an enforcement-only approach to immigration. It is clear that, early in the first term, the White House miscalculated in believing that if it demonstrated that it could enforce U.S. immigration law, it could persuade Republicans in Congress to support sensible immigration laws. It did not work. Despite record removals, many members of Congress labor under the fallacy that the President has refused to enforce immigration laws. As the intransigence of Congressional Republicans made any meaningful immigration reform an impossibility, the administration has taken significant steps to make the immigration system better.
And make no mistake- these steps taken by the administration have made the immigration system better. Critics can cite the low numbers of cases where prosecutorial discretion has been applied and the individual instances where prosecutorial discretion has been refused where it seems like the individual fit within the criteria. The systems have not been perfect, but they are improved. If one case was terminated as a result of memoranda issued in the past year, a benefit was received. In the past, a request for the exercise of prosecutorial discretion was a last ditch and usually fruitless effort reserved for the saddest of cases. It is now a routine part of representation and utilized successfully in cases where the law provides no options for relief.
In addition, I have seen the exercise of prosecutorial discretion bleed into areas other than the termination of cases. I have seen the government agree to join motions to reopen to allow the spouses of citizens to adjust their status in the U.S. This was a rarity before. I won’t go so far as to say that they are regularly joined these days, but I have had more joined in the past year than in the previous five years. DACA has been an amazing experience. Watching all of these kids get a chance to go to college or put their education to work has been an inspiration. The country has benefited tremendously from the energy and vigor they have brought to our communities when the smallest of welcome was extended to them.
Finally, the provisional waiver will allow families to regularize their status without the risk of long term separation. Thousands of families have refused to risk separation and have thus continued with one partner without status fearful of being stopped by the police and unable to find meaningful work. The provisional waiver process should allow thousands of undocumented immigrants to get their residence properly.
The President has done this in the face of a hostile Congress colluding with an insubordinate agency. ICE bureaucrats have been in open rebellion against liberalized immigration policies since the beginning of the President’s terms. They have teamed with their Congressional supporters to accuse the administration of everything from allowing jihadis to roam free to making cynical ploys for Latino votes. Luckily, these rear-guard actions have failed. They are the death shrieks of a disappearing order, where once can say of Joe Arpaio, Russel Pearce, Kris Kobach, and Steve King, as Bob Dylan once did, “something is happening here, but you don’t know what it is.“
While there are countless other administrative actions that the administration can take, another step that would further demonstrate the administration’s willingness to place family unity and sensible immigration policy over “the way things have always been,” would be for the administration to forgo Supreme Court review in de Osorio v. Mayorkas, the decision of the 9th Circuit Court of Appeals that allows the unmarried sons and daughters of permanent residents who aged out of eligibility under petitions for their parents to receive credit for the time they waited under their parents’ petitions. In de Osorio, the 9th Circuit joined the 5th Circuit in Khalid v. Holder rejecting the Board of Immigration Appeals decision in Matter of Wang. Both Courts of Appeals decided that the plain language of the Child Status Protection Act allowed kids who aged-0ut of eligibility under petitions filed for their parents to recapture the time that they waited when their parents, now permanent residents, filed petitions for them. In Matter of Wang, the Board decided that the kids could not recapture that time and would have to go to the end of the line. This resulted in what one brief in de Osorio calculated would be a 115 year wait for an unmarried adult son or daughter of a Mexican citizen! The de Osorio decision has the potential to help ensure family unity for thousands of families where parents and minor children have received residence, but one or two older children aged-out.
Of course, the government does not have to file a petition for a writ of certiorari. They did not seek certiorari in Khalid. Moreover, WHY?? Why appeal this? What is the possible compelling interest for the government? The de Osorio decision allows the sons and daughters of permanent residents who waited in line with their parents only to lose their eligibility due to lengthy delays in the immigration process to rejoin their families. How does the government have an interest in avoiding that happy result. Immigration law has always been anchored in the concept of family unity? Prosecutorial discretion, the provisional waiver and, to a lesser extent, DACA, reflect principles of family unity. By letting the de Osorio decision stand, the administration can once again signal its firm alliance with immigrant families.
Congressman Gowdy will take over for Congressman Elton Gallegly, who ran the Subcommittee in the last Congress. Gallegly received an A- from the restrictionist NumbersUSA for support of anti-immigrant measures over the last three years, as did Gowdy. Goodlatte, the Judiciary Chair, received an A+! Congratulations, Bobby, now we know why you get the big chair! Anyway, who is Mr. Gowdy and what does he have to say about immigration? Unfortunately, it does not look good.
Now, for the less pleasant stuff. Trey Gowdy was elected in the Tea Party election of 2010. A former prosecutor, Congressman Gowdy has no particular expertise in immigration law or policy. Rep. Gowdy signed onto the “Prohibiting Backdoor Amnesty Act,” a rearguard action by immigration opponents to stop the President from implementing DACA. The Congressman has been vocal in spreading the lie that the Obama administration has been lax in enforcing the nation’s immigration laws and aggressive in denouncing the Justice Department’s lawsuits against Arizona and other states that have enacted punitive anti-immigrant legislation.
If there is any good news, it is that many prominent anti-immigrant voices believe that the Speaker intends to bypass the Committee and Subcommittee in writing immigration legislation. Mark Krikorian, of the reasonable-sounding-but-not-very-reasonable Center for Immigration Studies wrote in the National Review that conservatives have little confidence in Speaker Boehner to hold true to anti-immigrant principles, but are hopeful that the Speaker’s power will be diminished after the fiscal cliff negotiations: “But whoever writes the bill, it would seem that the bigger the crap sandwich Republican members have to swallow as the result of any fiscal-cliff deal, the less flexibility Boehner will likely have to force them to go along with his amnesty plans.”
Crap sandwiches, Ms. Spartanburg and Mr. Good Latte! Merry Christmas from Washington DC.
In Washington, we have very hot summers without a real beach to beat the heat. Our winters can be wet, sloppy messes or we can get pounded with multiple snow storms in a city completely unprepared for more than three inches of snow. Along with the occasional security scare, World Bank protest and Presidential motorcade, life in the Nation’s Capital can be challenging. However, certain things make up for that. I can see the Washington Monument from my window, the reflection of the Lincoln Memorial on the pool and the genuine devotion of DC area residents to ideas in the public sphere are some of them.
Last night, I had another opportunity to appreciate Washington life. I received an invitation to attend a meeting at the Office of Public Engagement of the White House to discuss priorities for the Obama administration in the second term. Now, I would have crossed continents and oceans for such an opportunity. Luckily, all I had to do was take a short two-block walk on a lovely night and I was in the West Wing. Amazingly, the security guards at the White House are far more relaxed and confident than the guards at your standard federal building. Perhaps that was due to the President being on the other side of the earth. Relieved that I got to keep my belt on, I entered the White House, with about seven other people– an impressive collection of people. An ornate, inviting, and comfortable lobby awaits:
In the lobby, a TV blared Chris Matthews talking Benghazi non-stop. It must be strange to sit all day in a lobby where national news is talking about your co-workers all day long. I asked the receptionist if that grows tiresome and she told me that the TV is usually tuned to ESPN. Good call. We were welcomed into the White House by the lovely Rumana Ahmed, pictured below:
What a great impression of inclusion and American diversity and unity all at once to be welcomed to the White House by Rumana.
Prior to the meeting, I reached out to many Friends of Benach Ragland and asked for advice as to what specifically should be said about immigration. Together, we came up with a wish list of immigration priorities, which grew to fifteen items. Briefly, however, they settled on a restoration of judicial review over most immigration decisions, a generous waiver of most grounds of removability, reform of visa numbers to eliminate lengthy backlogs, DREAM Act, Permanent Partners, enhanced protection for minors, and increased ease in admitting highly educated immigrants. I prepared my elevator speech to tell them what they needed to do on immigration. However, it is well known military truism that the best strategy evaporates in the first seconds of battle. The meeting grew in different ways and adaptation was necessary.
Rumana took us upstairs to meet Jon Carson. We walked through the internal guts of the working White House and I was surprised to see people piled on top of each other, still working hard at 6:30 with the President in Cambodia. The workspace was decidedly not plush. Jon Carson is a super affable guy who oozes sincerity. I learned that he has a son in Pre-K at my kids’ school, but, unfortunately, his son and my Pre-K son are in different classes! Washington Living, again.
He told us that the administration wanted to hear about what they can do better in the second term and how can they use the next four years to push progressive ideas. Jon said that the two main immediate issues were the fiscal cliff and immigration. He also mentioned the logistics of having to sign up millions of Americans for health insurance coverage. The results of the election really dawned on me as the administration was planning the implementation of the Affordable Care Act.
Jon said that the theme of the second term of the Presidency would be “citizenship,” a theme the President highlighted at the Democratic National Convention. We previously riffed on the meaning of citizenship as immigration lawyers, but, sitting in the White House talking about making policy and administrative moves that would affect the lives of millions of people, the active nature of the concept became clearer. It is about creating closer ties of community with volunteers, schools, religious institutions and neighbors. Naturally, therefore, the conversation turned to organizing. Many observers have attributed the President’s victory to an organized workforce and volunteer system that delivered the vote and the participants in the meeting discussed how the Obama volunteer organization, Organizing for America, can be deployed not only in service of an election but also in service of progressive ideals.
As the discussion turned to immigration, I offered that some of the best organized and effective advocates are the undocumented youth who have created networks that have pushed immigration to the forefront. Organizations like DreamActivist and United We Dream have regularly outpaced more traditional organizations in calling attention to immigration injustices. Jon mentioned that only once has the President urged the public to contact Congress and that was during the debt ceiling fight last year. That call to arms shut down the Capitol Hill switchboard. I mentioned that undocumented youth are pretty good at shutting down switchboards and that, if the President came out strong for immigration reform, he would have formidable allies ready to work. I told Jon that there was a lot of mistrust of the administration on immigration and that they needed to see strong Presidential leadership to get behind immigration reform. Jon replied that the White House was well aware of the mistrust and expressed hope that DACA represented a turning point.
Jon wanted to know if immigration reform could be a rallying point for progressives for the long term. Everyone in the room seemed to agree that it was. Someone pointed out that no matter what their political persuasion, business supports immigration reform and immigration could be a way to begin to repair damage between the President and business community. I offered that the important parts of the core of the President’s support of Latinos, Asians and women could be solidified with immigration reform. Latinos would be Democrats for a generation with a generous immigration reform program – one that does not offer some simple and easy fixes while tightening enforcement, but one that recognizes that we have overdosed on enforcement and are in need to benefit reform. More butter, less guns. In addition, an appeal to women could be made if Michelle Obama met with U.S. citizen children whose parents have been deported. The staggering human cost of enforcement on steroids needs to be examined.
This was not a meeting for detailed proposals about restoring 212(c) or eliminating the three and ten year bar. Rather, it was big picture. The White House is now preoccupied with the fiscal cliff. The top legislative priority after fiscal cliff is settled is immigration. I have no doubt that the White House recognizes the need for very strong Presidential leadership on the issue. I tried to emphasize over and over again that reform cannot be left to the Congress and the President must guide and frame the discussion. I also have little doubt that the President is starting from a very generous reform program. Lastly, I can tell you that the White House is prepared to deploy all its resources on this. This includes mobilizing the extensive volunteer network and the OFA system to build support for immigration reform. Remember all those emails you got during the campaign asking for $17? They are not going away. Instead of asking you for $17, whoever, they will ask you to call Congress to ensure that generous common sense immigration reform is passed.
This is the best opportunity in a generation for sensible and humane immigration laws and the White House appears committed to doing it right. I know that there are those of you who don’t trust the administration at all to do what is right on immigration. And I will concede that the air of the White House may have clouded my judgment. It is very hard to remain cynical and jaded in the White House. I hope that you can put aside your cynicism and can dare to believe that, in the words of Sam Cooke, a change is gonna come. (watch below!) What do you have to lose?
Since the election exposed the GOP’s serious problem with the Latino and immigrant communities, Republicans have been moving fast towards greater receptivity to immigration reform as a salve to their self-inflicted wounds with Latinos. On the heels of that stampede come details about Rubio reviving his alternate DREAM Act. Yesterday, the Daily Caller reported details on the Republican alternative to the DREAM Act. Additional details were provided by the National Review. They are calling it the ACHIEVE Act and it basically follows the ideas that Rubio floated last spring. According to the Daily Caller, the ACHIEVE Act would create a new nonimmigrant visa, dubbed the “W-1″ that would allow a young person to attend college or serve in the military. The details are a bit hazy, but it seems that the W-1 is to attend school or serve in the military. The requirements for W-1 status are:
- Applicant must have lived in the U.S. for five years prior to the Act’s enactment
- Must have entered the country before age 14
- Must have good moral character
- Applicant must not have committed a felony, must not have committed more than one misdemeanor with a jail term of more than 30 days, must not have committed a crime of moral turpitude, and must not have a final order of removal pending
- Must have knowledge of the English language, U.S. history, and of principles of U.S. government
- Applicant must be 28 or younger at time of application (or 32 if they have a bachelor’s degree from a U.S. college);
- Must pay a $525 fee
- Must submit to a medical exam and a background check, submit biometric and biographic data, and register with the Selective Service.
According to the National Review, to maintain W-1 status, a student must: (1) check in with DHS every six months; (2) avoid welfare or government sponsored financial aid, and (3) maintain studies. The National Review also says that W-1 students would also be able to work while attending school.
Upon completion of a degree, the student could seek a W-2 visa, which is a four year work visa. An applicant must have received a degree or served four years in the military, continue to maintain the requirements of status regarding crimes, good moral character, welfare and reporting. A $525 fee would also be required. After completing four years of work, an applicant could then seek a W-3 visa, which would be renewable indefinitely every three years. The program would provide no new means of seeking residence. Residence may be sought through any of the existing means of seeking residence and, presumably, W-3s would be eligible for to apply for residence.
So, there you have it. The first details of the Republican ideas regarding undocumented youth. The eligibility requirements are considerably stricter and less generous than DACA and they impose tremendous work upon applicants and the immigration service. In addition, the ACHIEVE Act would require undocumented youth to be in some form of temporary status for ten years before they could apply for a quasi permanent W-3 and/ or residence.
This proposal is a poor cousin to the DREAM Act. Nonetheless, it ought to be welcomed as a departure from the “deport them all” and “self-deportation” rhetoric that has passed for policy in the GOP. Republicans seem to have accepted the moral claim of DREAMers and have made a serious first offer as to a legislative solution. It is far from perfect, but it represents miles in the journey that Republicans have traveled since last Tuesday.
One of the most pivotal moments in the 2012 campaign was when former Massachusetts governor Mitt Romney attacked Texas governor Rick Perry for being soft on immigration. More than his famous “oops” moment, this moment doomed the campaign of Governor Perry. Perry never recovered from the sustained attack on him that occurred after the governor challenged GOP orthodoxy regarding the availability of in-state tuition for undocumented immigrants. Perry had signed the so called Texas Dream Act, which allows undocumented Texas residents to attend state institutions at tuition levels commensurate with their documented classmates. Despite Perry’s extreme conservative positions on everything else, this minor expression of compassion for the undocumented residents of his state ended the Tea Party’s romance with the Texas governor.
On this page, we have long argued that one of the motivating factors behind the emergence, and now, destruction of the Tea Party was antipathy towards undocumented immigrants. Tea Party politicians have long supported the “business death penalty,” as enacted in statutes like Arizona’s SB 1070, that would revoke business licenses from employers who were found to have employed undocumented immigrants. In addition, mandatory use of E-verify has been a staple of the GOP orthodoxy this year. The Tea Party’s antipathy to what they see as burdensome government regulation never trumped their effort to force employers to enforce federal immigration law and to provide draconian repercussions for their failure to engage in proper record-keeping. The Tea Party’s love of liberty also never stopped them from arguing that the government should deport over 12 million undocumented immigrants. The massive increase in the police authority that mass deportations would require hardly squares with the Don’t Tread on Me ethos the Tea Party claimed to represent.
Romney’s attack on Perry had the desired effect. Perry was gone within a month. But, it confined Romney in a box from which he never escaped. Romney brought in the anti-immigrant Kris Kobach as an adviser on immigration policy, he endorsed the Arizona and all the copycat laws, and he famously espoused the concept of self-deportation, the policy of making life in America so miserable for undocumented immigrants that they would voluntarily return.
Meanwhile, the President was having his own troubles with immigration. Latinos, who supported him strongly in 2008, were angry that the President who promised immigration reform had failed to deliver it and had presided over the most efficient deportation programs in history. With over a million removed during his four years, the President has “enforced the law” far more zealously than any of his predecessors. In addition, the DREAM Act failed in the Senate in 2010 with five Democrats joining nearly all the Republicans in killing the bill. Interestingly, Senator Lisa Murkowski, an independent who had been jettisoned by the Tea Party wing of the GOP in her native Alaska but returned to the Senate as an independent, voted for the bill, showing what reasonable Republicans can do when liberated from the Tea Party. The President’s failure on immigration led to a decided lack of enthusiasm among the Latinos who were responsible for the President’s election in 2008 and the Democrats maintenance of control of the Senate.
Perceptive Republicans saw their opening. Senator Marco Rubio began talking about reviving the DREAM Act, but with Republican modifications. Rubio teased and tantalized the country with his talk of introducing a new DREAM Act. He claimed to be in secret talks with members of the GOP caucus, but it became clear that he could not get any support from his own party. Republican stalwarts like Richard Lugar, a DREAM Act supporter, were facing serious Tea Party challengers. In fact, Lugar would be cashiered by the Indiana Republican party in favor of Richard Mourdock, who went down in defeat on Tuesday. However, Rubio’s tease drew some interest from the Latino community. Although the White House opposed the Rubio DREAM Act proposal (there never was a bill), because there was no path to residence, DREAM Act supporters reached out to Rubio. With Latino organizations and immigrant rights advocates considering supporting the Rubio alternative, the White House knew it had to act.
We are starting a new series here at Benach Ragland to introduce our readers to some of our clients who have sought and obtained Deferred Action for Childhood Arrivals (DACA) benefits. We profile these extraordinary young people who make up our community, contribute to its richness and have exemplary talents to offer to demonstrate the many good reasons to support the DREAM Act and common sense immigration reform.
Over the summer, all of us here at Benach Ragland were lucky to meet a couple of outstanding DREAMers, when Roxana and Silvana Bedia visited our offices from West Palm Beach, Florida with their parents. They were doing the obligatory trip for all American families- trudging through the muggy heat of a Washington summer to visit the monuments and memorials to American history. They made time to visit us. For the first time in their twenty years in the United States, Roxana and Silvana had hope that this country would accept them, if not as quite completely as they have accepted their adopted homeland.
Their father was an economist in Peru, when things went off the rails there. Eager to give his family a chance at a future without the Shining Path, the Tupac Amaru and Alberto Fujimori, the Bedia family made the great leap to el norte. Silvana was just six years old, and Roxana, three. They barely have memories of Peru. Their parents struggled to build a life for them in the United States. Their mother left a professional career at a bank in Peru. The only one in the family with English skills, Mrs. Bedia became the breadwinner, working all day as a secretary and late into the night at a grocery store.
The sacrifices made by their parents paid off as Roxana and Silvana thrived in the U.S. They gained admittance to a magnet school in law enforcement. Both women intend to pursue careers in law enforcement. Roxana attended the University of Florida and got a degree in Political Science/ Criminology with a minor in American history. She wants to go to law school to become a prosecutor. Silvana went to the University of Central Florida, where she majored in Criminal Justice- Crime Scene Investigation. Silvana also wants to go back to school—not to become a lawyer, but to deepen her understanding of forensic science.
As Roxana and Silvana have waited for relief from their immigration status, they have put their talents to good use. They both work at a rural health clinic where they help deliver medical care to a highly vulnerable population.
Roxana and Silvana have a lot to offer this country. Both women have outstanding potential to contribute to their community and both have sought a life of public service. With the recent approval of their DACA applications, Roxana and Silvana will be given the tools they need to make their contribution. We have been honored to have the opportunity to get to know the fabulous Bedia sisters.
Since we wrote about the landmark victory for undocumented youth in the U.S. Court of Appeals for the 9th Circuit in Cuellar de Osorio, we have been inundated by the following question: I think this covers me, should I apply for adjustment of status now? The answer, like so many legal answers, is the perpetually unsatisfying “it depends.” We have prepared this information to help you understand the issues and make a decision about whether applying is appropriate for you. However, this stuff is complicated and one size does not fit all. We strongly suggest that anyone contemplating applying for adjustment of status based upon Osorio consult with a reputable immigration lawyer.
Do I live in the 9th Circuit?
The Ninth Circuit is the judicial district that covers a large section of the American west. It includes the following states: California, Oregon, Washington, Alaska, Hawaii, Nevada, Arizona, Idaho, Montana and Guam. The Osorio decision is federal immigration law in these states. Immigration officials are obligated to follow the law of the circuit in which the office sits.
Who does the Osorio decision help?
The Osorio decision may help you if you were, as a child, the beneficiary of an immigrant petition for your parent (“derivative beneficiary”), but aged-out of eligibility by turning 21 before you could apply for your residence, and a new petition has been filed on your behalf. Osorio held that an aged-out derivative beneficiary can reclaim their earlier date in the new petition. So, for example, your grandmother filed for your mother, when you were sixteen. The petition was approved, but you and your mother could not apply for residence until the filing date became current. By that time, you were 22 years old. Your mother would have been able to adjust to residence, but you had “aged-out” of eligibility as the immigration law no longer considered you a child. At that point, your mother may have filed a petition for you as the unmarried daughter of a permanent resident. That petition, under the law prior to Osorio, would have gotten the date that your mother filed the petition. All that waiting on your grandmother’s petition would be lost and you would go to the back of the line of unmarried sons and daughters of permanent residents. Under Osorio, you would be able to transfer the date of your grandmother’s petition to your mother’s petition and be eligible to apply immediately for residence.
So, how do I know if I am in the Osorio class?
You would need to have:
A petition filed on behalf of a parent while you were a child
Aged-out of eligibility by turning 21
A new petition filed and approved on your behalf.
Is that all I need to apply for adjustment of status?
Just because you have an approved petition and a current date, you are not necessarily eligible for adjustment of status to residence. In order to qualify for adjustment of status, you need:
An approved petition. Check!
A current priority date. Check!
to be admissible to the United States
to have been inspected and admitted or paroled into the United States
to have maintained lawful nonimmigrant status since your entry
to not have worked without authorization since your entry
If you were not inspected and admitted or paroled and entered without inspection, overstayed your visa, violated your status or worked without authorization, you will need to be “grandfathered under 245(i).”
Well, it remains to be seen what the Citizenship & Immigration Service will do with the Osorio decision.
I thought you said that it was the law and CIS had to follow it?
Very simplistically, that is true. However, the government could choose to appeal or seek rehearing of the decision. In such a case, the government could ask a court to stay implementation of Osorio. The government could also instruct the CIS to simply hold the cases in abeyance until the CIS can come up with a plan to administer these cases nationwide. While such delay may not be entirely legal, an applicant who felt that her case was being delayed improperly and for an unreasonable amount of time would have to bring a lawsuit in federal court seeking to compel CIS to make a decision. A court will not entertain such a lawsuit until the application has been delayed for several months as the statute only provides a cause of action for “unreasonable delay.” Thus, it is not yet clear how CIS will react to these cases and how they will process them.
Is there any precedent for how they may react?
Yes. Osorio is not the first case to reach this conclusion. The Fifth Circuit reached the same decision in Khalid v. Holder in 2011. Anecdotal evidence is that the CIS has recently begun to adjudicate and approve cases that were filed on behalf of people covered by Khalid. Initially, cases were not being adjudicated, but as of July 2012, we have heard about approvals.
What are the risks of applying?
The risk of making yourself known to the government is always the same. The government will place you into removal proceedings and an immigration judge could order you deported. This is obviously a worst case scenario, but it is a possibility whenever you apply to CIS for a benefit. That being said, we do not think that that is a extremely likely outcome for the following reasons: (1) you may be able to apply for adjustment before the Judge, who is not bound by any bureaucratic inertia from CIS; (2) CIS’ guidelines about placing individuals into removal proceedings discourage putting people into proceedings when they are denied benefits unless they have criminal records, have been involved in immigration fraud or are security risks; and (3) many would-be Osorio beneficiaries are DACA eligible and benefit from the greatest amount of favorable discretion.
In addition, there is a risk of losing money and having dashed expectations. An application for adjustment will cost about $2500 in filing fees, which would not be returned if the case is denied.
So, what do I do?
Talk to a lawyer. Understand the decision, your application and the costs and benefits of seeking adjustment and come to an educated decision.
This is certainly welcome news, but the wording of Romney’s support is worrisome. First, I can not help but think that there is some sort of dog whistle to the anti-immigrant crowd in there. By stating that the President is allowing people to “purchase visas,” Romney alludes to a common wingnut belief that the President is simply selling visas to whomever can come up with $465. A common hallucination against DACA is that there is going to be extensive fraud and we will never know if we are helping the real DREAMers or whether we are giving status to criminals and terrorists. I wonder if Romney is consciously indulging this fantasy. Second, Romney views this as entirely transactional. He makes no mention of the compelling circumstances of DACA applicants. He views this as something that people have purchased and not as a program meant to shield a deserving class of youth from the fear of removal. People deserve this benefit, in Romney’s worldview, because they have paid for it, not because of the circumstances of their arrival and their potential to contribute to our society. By linking the program to a financial transaction, Romney undermines the moral validity of the claim to civil rights for the DREAMers. Third, it is not a visa. Come on, get it right. You are running for the Presidency not for the Topeka School Board. Get your terms and facts straight. I suppose the error can be easily explained by the fact that Romney’s number one immigration adviser is Kris Kobach, who rarely gets anything right on immigration law.
Romney also said that, at the end of the two years that DACA grants are good for, “Before those visas have expired we will have the full immigration reform plan that I’ve proposed.” Romney is dangling major immigration reform. Of course, we have no idea what his plan is or how he plans of getting it through a Congress that has been ceded to the likes of Steve King and Jeff Sessions. The Republican party, with the help of certain feckless Democrats, has repeatedly stymied even the most sensible immigration reform. Remember the DREAM Act passed the House and got 55 votes in the senate, which would have been enough had the Republicans not filibustered it. Romney is attempting to woo Latinos by blaming the President for the failure to pass immigration reform between 2008 and 2010. This fantasy argues that since the Democrats had a a filibuster-proof majority in both houses during that time (which is not strictly true- there was the Specter conversion and the Kennedy death) and failed to pass immigration reform, that a Republican president and a Republican Congress would do better. Hogwash. Republican President Bush could not get the wingnut portion of his party to support immigration reform and, since his first day in office, President Obama faced a Republican minority committed to defeating him and using the filibuster to prevent anything from happening in Congress. Now, they have the chutzpah to imagine that Republican obstruction had nothing to do with the failure to get immigration reform. While, we believe that most reasonable people reject this, it is disappointing to see otherwise astute observers of the political scene fall for this.
Finally, Romney also said this: “I actually will propose a piece of legislation which will reform our immigration system to improve legal immigration so people don’t have to hire lawyers to figure out how to get here legally.” Now, that is hitting below the belt! Romney wants to put us out of business. Now, we can understand that the federal government may be getting tired of getting sued by us and losing, but this is personal. We are small business owners. Since we embarked on this venture, we have created four new jobs in the country. We have obtained visas for people that have enabled them to open businesses and hire more workers. As business owners, shouldn’t we be squarely within Romney’s sights? Instead, he states that he wants a system that does not require lawyers. We are all for simplifying the immigration laws and making them work for the United States. We are tired of telling people that there is nothing we can do for them and their best option to is to save their money and spend it on a new home in their home country. However, we remain committed to fighting for our clients and we envision that whatever reform Romney proposes will only increase our business as he is likely to cede immigration policy to the Steve Kings, Joe Arpaios and Kris Kobachs. If that happens, our response is “see you in court.”
