My daughter Sarah wrote the following on her Facebook page today, understandably upset about an apparent screw up in our immigration "system" (if you want to call it that--IMO, "system" means a well-functioning, well-thought-out process for getting a productive result that doesn't hurt anybody.--but I digress).
I asked her if I could post in on my blog, and she agreed as long as I also preface it with a disclaimer:
"Please put in a giant disclaimer that it was written in haste and should not be construed as legal advice or even a correct statement of the law (outside of the 9th circuit it's different. Small changes in facts could drastically change the outcome of this scenario).
Part 1 of many responses to the question "what part of illegal don't you understand"
by Sarah on Thursday, April 14, 2011 at 12:57pm
A few days ago I posted a link to a case that I was really upset about. It’s a super complicated issue but really highlights how arbitrary and unfair immigration laws can be. I’ll try to explain it here.
Two brothers, around 20 years old, cross the border from Mexico (or any country, really) to the United States in let’s say the year 2000. Their dad is a lawful permanent resident, or heck even a U.S. Citizen. Dad files a petition to sponsor his sons for lawful permanent resident status that same year. Because of the backlog in cases, they know they will have to wait around 15-20 years for their green cards. (As of April 2011, CIS is processing cases filed back in 1992 – an almost 20 year wait)
While they are waiting, the brothers live and work in the United States. They pay taxes. They don’t commit any crimes. They learn English.
At some point, their mother, who is still living in Mexico, dies. Brother #1, for whatever reason, can’t go to Mexico for the funeral, so he stays in the U.S. Brother #2 decides to go to Mexico for the funeral. He’s gone for less than a week and then comes back to the U.S. to resume his life.
At some point, the brothers get married and have children. Their wives and kids are U.S. citizens. Now that the brothers have U.S. citizen wives, they can apply for their green cards right away instead of having to wait for their dad’s petition to be ready.
If they visit my office today, in 2011, I will tell Brother #1 that he and his wife need to submit a bunch of documents and forms, pay nearly $1500 in application fees, plus a $1,000 penalty fee for crossing the border illegally (those are just government fees. That doesn’t include what I would charge him). Assuming CIS belives that his marriage is valid and that a background and medical check clear, he will have his green card and be a lawful permanent resident in 4-6 months.
I will tell Brother #2 that the only way he can get his green card is if he returns to Mexico for at least 10 years. There is no other option.
Why the difference? It’s that little trip to Mexico for mom’s funeral that screwed him.
Had he not left, the petition that his dad filed for him back before 2001 plus a $1,000 penalty fee would have excused the first illegal entry, and the petition through his wife would make him immediately eligible for a green card, just like his brother. But because he left, he triggered a 10-year bar to reentry. Because he came back, that 10 year bar cannot be waived.
A few years back the 9th circuit (a federal court) looked at this law. There’s a bit of complicated legal analysis and background that went into the decision, but basically the court decided that the father’s old petition, which acts as an amnesty for one entry, should also act as an amnesty for the second. In other words, the court decided that Brother #1 and Brother #2 should be treated the same.
Relying on this case, which was binding federal law, thousands of people in Brother #2’s position applied for their green cards. Under the law at the time they applied, they were all entitled to green cards. The federal circuit court said so.
CIS was pissed. They did not want to grant these cases, even though the law said they had to. They couldn’t outright deny these cases, so instead they just sat on them. They took all these applications and didn’t make decisions. They just kept people in limbo, waiting for the law to change, so that they could later deny them.
A few years later, the Board of Immigration Appeals came out with a case that interpreted the law differently than the Ninth Circuit did. The BIA, an administrative court, is a lower court than the 9th and normally should defer to the 9th, but there are some complicated legal reasons why, in some cases, what it says can trump what the higher federal court says.
As soon as this opposing BIA decision case came out, CIS started adjudicating the cases they’d put on hold for years. They denied all of the cases under the BIA decision.
When someone applies for a green card and are denied, they don’t just get to go back to their lives. They get placed into deportation proceedings.
So all of tese people, relying on valid, binding law, applied to become legal. Under the law as it was when they applied, they qualified to do so. They paid the penalty fee, they met all the requirements. They should have gotten their green cards in 4-6 months. But CIS refused to decide their cases until they had a way to deny them. Once they did, they denied all of them and put everyone in a far worse situation than they had been in before.
We immigration lawyers have been scrambling to save all our Brother #2 clients. If someone in Brother #2’s position comes into our office now, and has never applied for a green card, we tell him to just hang out, or go home, or do anything but apply for a green card. But if he has already applied for a green card, he’s screwed. He’s going to be deported – even though he has a U.S. citizen father, wife, and kids. Even though he’s been in line for a green card since 2000. Even though he’s never committed a crime and has always paid his taxes. Even though he did what the courts told him to do to become legal.
The only thing we can do for him now is argue that the law is wrong, and hope that the 9th circuit tells the BIA that its decision is wrong, and tells CIS that they can’t follow it.
We have presented two arguments to the 9th circuit. The first is a complicated statutory interpretation and judicial deference argument, the details of which I will spare you. Our second argument is that, even if we lose on our statotory interpretation argument and the BIA case becomes binding law, the people who applied under the 9th circuit law should not be punished now over the BIA law. To apply the BIA law retroactively would just be unfair.
The 9th circuit heard these arguments recently. They rejected both of them.
As to the first argument, the 9th circuit basically said that when they initially said people could apply for green cards under the law, they were wrong. They say that the BIA set them straight and now they have to follow the BIA. Ok fine. I disagree, but I understand how they came to that conclusion. But then they go on further to reject the second argument and say that it’s perfectly fine to apply this interpretation of the law retroactively to people who applied relying on the first interpretation of the law. They’re basically saying that what CIS did was ok.
How can they think it’s ok to tell people they qualify and invite them to apply, then refuse to give them what the law entitles them to, then wait until the law changes back, then punish them for applying? Even if I thought the underlying law as it stands now (Brother #2 can’t get green card, while Brother #1 can) was fair, I don’t see how it’s fair to tell Brother #2 that he can, then not only refuse to give it to him, but deport him for trying.
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I appreciate Sarah's breaking down this particular case for me. I agree with her analysis and her conclusion 100%. Anyone with any common sense (and lacking that--compassion, for heaven's sake!) also has to agree.
I know the post is a little long, but it really describes just one of the many injustices prevalent in our immigration laws. Why is it that immigration laws seem to overlook the fact that our country would not be the world leader it is without all of its different ethnicities and cultures? And why do they tend to punish the many for the evils of a very few? Justice will only prevail, I fear, when the world comes to truly understand the 2nd Commandment that Christ gave us, "to love one another".
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