Last Night I Listened to an Immigration Lawyer Speak

Last night I listened to an immigration attorney speak, and this is what I learned.
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There’s no one experience when it comes to dealing with immigration and immigration policy. There’s no easy “a-ha” answer. No obvious solution. It’s a topic torn between compassion and circumstances and law and policy.

How can something so broken be fixed? It’s the answer no one can come up with on either side of the aisle. And while we’re bickering over it, lives are being irreparably damaged.

Each year, by law, the U.S. grants about 140,000 visas. It’s an amount, by law, they can’t exceed. And the U.S. allots a certain amount from this pool to each country, based on the five categories that comprise institutionalized asylum: if you’re being persecuted because of your race, religion, political views, membership to a group, or nationality … you have cause to seek asylum. Now, depending on the administration, what determines “membership to a group” is debatable. For example, under the Obama administration, membership to a group expanded to include those persecuted for their sexual orientation, those fleeing female genital mutilation (FGM), those fleeing gang violence, and those fleeing domestic violence.

Those exposed to the expansion of this “membership of a group” category ask: where do we draw the line? 

And that’s a hard question to answer, isn’t it?

I often hear Republicans make the claim that Democrats support open borders. I don’t believe this to be true, but it’s an easy, effective message, regardless of the fact that it’s not founded in truth.

I don’t support open borders. However, I do believe that immigration reform should be a priority. And, I don’t view those who wish to come to America, as my ancestors did before me, as criminals. And so, how I talk about immigration comes rooted from a place of compassion and empathy, not fear and misplaced anger. Of course, I understand it’s easier to be angry and latch on to the perpetuated myth that all immigrants are dangerous lawbreakers, than take a closer look at whERE our country’s real problems stem from and who really is committing the crimes in America — white supremacists, for example. We have a white nationalist terrorism problem in this country … but that’s not convenient for our current administration to talk about, because they’ve stoked its flames for political support. And so, here we are, inundated by a 24-hour news cycle of coverage that seemingly never ends in documenting what feels like an endless array of human rights abuses — if you believe separating families qualifies as such — and, I do.

But, back to the categories for asylum. So, we have 140k visas per year to allot … but imagine the countries that are backlogged. If your country is allotted, say, 1,500 of these  a year for those seeking asylum because of religious persecution, and 2,000 apply … the 500 are put on a waiting list for the next year. And then say the demand the next year increases, but the amount of visas doesn’t. The waiting list grows longer. Some countries see waits of 15+ years when seeking asylum. 

And that’s just those who qualify for asylum.

Being poor, for example, does not qualify you for asylum. So, if you’re hoping to come to America, “the land of opportunity,” to make a better life for you and your family, and you can’t seek asylum … what then? “Well, why don’t they just get in line and do it the legal way,” people ask. And this part is important: there isn’t just some magical line you get in. There are limited pathways to citizenship. There are four paths to citizenship:

1. Citizenship through birth
2. Parent or Parents are U.S. citizens, and child obtains citizenship through acquisition
3. Citizenship through derivation - basically if a parent becomes naturalized, than children under 18 do as well, if permanent residents
4. Citizenship through naturalization - must have had a green card for 5 years, or lived with a spouse for 3+, usually

So lets talk about that 4th step, because basically naturalization is what you’re looking at if you’re hoping to immigrate here … and in order to be eligible for naturalization, you need to first obtain a green card. Easy peasy, right?

No. Because not everyone can obtain a green card, or is eligible. You may be eligible based on the following:

• you have refugee or asylum status
• through employment
• status as a special immigrant
• if you are an immediate relative of a U.S. citizen, fiance of U.S. citizen, etc. 

So … this leaves out a lot of people, right? So, the notion that everyone could simply hop in line and “do it the legal way” is simply not true. That doesn’t mean I’m advocating that everyone break the law to do it … but we can’t begin to have that conversation when most people aren’t operating off of factual information regarding the process and pathways to begin with.

So what do you do if you don’t have a pathway but are desperate? You hope to sneak across the border, or you hope to get to the border, apply for asylum, pass a “credible fear” interview, and then plead case for asylum before an immigration judge.

As we all know, we have thousands upon thousands of undocumented immigrants living and working in the United States. Many of these undocumented immigrants pay taxes. This can be done through the use of an individual taxpayer identification number (ITIN) for those non-citizens who do not have social security numbers. While data is limited, researchers at the Institute of Taxation and Economic policy have estimated that undocumented immigrants pay more than 11 billion in state and local taxes each year. 

For these immigrants who have been living here and working here for years, there is a process called “cancellation of removal” that they can potentially qualify for, which leads to a green card. The criteria for this is: 1) lived in U.S. for 10 years, 2) no criminal record, 3) have to show hardship. However, the Trump administration expanded on No. 3, which now states you must show extreme hardship … to a U.S. citizen, if you were to be deported.

Now, the Obama administration certainly carried out deportations. But we need to understand the difference in deportations between the Obama administration and the Trump administration. While the Obama administration focused on deporting undocumented immigrants with a criminal history, especially violent offenders, and practicing leniency toward undocumented immigrants whose only offense was their illegal crossing of the border (a misdemeanor), the Trump administration has implemented a “zero tolerance” policy, meaning those that were allowed to remain here during the previous administration, are at risk under the Trump administration.

Now … let’s talk about family separation, particularly as we talk about it in terms of what is happening at the border. To understand a lot of what is happening at the border, you should familiarize yourself with the Flores Settlement, which, in 1997, led to the government agreeing to set immigration detention standards for unaccompanied alien children (UACs), particularly regarding facility conditions and the timing and terms of the UACs’ release, after a series of lawsuits from activist groups regarding the mistreatment of alien minors in detention centers.

As a result of this settlement, after parents are detained at the border, the government has two options — either they can put the children in a shelter (due to legal prohibitions on keeping children in detention for over 20 days), or release the entire family into the interior of the country — "catch-and-release" — and hope that they don't simply disappear into the illegal immigrant population. Because the Trump administration alleges that “catch and release” doesn’t work, despite stats that state otherwise, it is the first of these two options that we hear about in the news, which has led to the family separation we see at the border. Logistically, it’s a nightmare.

1. The Trump administration advertised that it would be taking a more conservative approach to immigration hoping it would deter immigration. It backfired, instead resulting in thousands rushing to immigrate and seek asylum.
2. Because they can’t keep children for more than 20 days (must release children without necessary delay) in a detention center as the result of the Flores Settlement, the children are sent to “shelters” because the detention centers are so inundated they can’t process the number of individuals at the border seeking asylum or refuge within that 20-day time frame anyway.
3. For those families that do get to remain together and are processed within the 20 days, they’re dropped off at a bus station in the middle of nowhere, literally. And it’s up to them to figure it out from there until they’re called back to appear before an immigration judge for a green card hearing.
4. For those children separated into shelters, the sheer number has caused a breakdown in accountability and processes, which is exactly why we’re hearing stories about families that will never be reunited. 

And that’s if you present yourself at a port of entry.

There are other families desperate enough to cross that they separate from their children just before the border, with the belief that if they’re caught, it will be better for the children to be caught separately. Minors caught without parents are eligible for special juvenile immigration status. They will be referred to the office of refugee settlement and have a better basis for a green card.

We’re facing a real crisis and we need a government that prioritize true reform. We need to see processes that create a pathway for the undocumented immigrants we have in our country that do fit the criteria for cancellation of removal … the Trump administration isn’t just deporting violent or criminal undocumented immigrants (and, let’s be honest … no one, no Democrat I know, is advocating we protect violent offenders despite the misinformation campaign surrounding California’s SB54, for example and the concept of a sanctuary city.

What is a sanctuary city? Basically it’s based on the premise that the federal government cannot force the local government to enforce their immigration policy … the argument being that it’s not within the local government’s jurisdiction to do so. And, that’s really the crux of the SB54 issue. Fear-mongerers would have you believe that SB54 allows undocumented criminals to walk freely, without legal recourse, after committing a crime. This is not true. They would be processed for their offense the same way any person who committed the crime would be prosecuted. What SB54 does, is protect undocumented immigrants from local police working with ICE, after release. Basically, it’s ICE’s job to enforce immigration policy … not a local police department. As discussed at the meeting I was at last night, there’s quite a bit of irony involved when Republicans, who traditionally don’t believe in government interference with their local governments, are adamantly pro-government interference on this particular topic when it intersects with the local government and police force. Irony or hypocrisy. Both?

Anyway, we need pathways for our immigrants here, the ones who are contributing to our country and our community. We need a permanent process in place for DACA recipients to obtain their green cards. While they are authorized to work, they have no pathway to permanent citizenship. This is an issue. We need “shelters” that aren’t privately owned for-profit centers that are bankrolled by the administration without oversight, to carry out current immigration policy.

The topic of immigration and reform is messy. It’s complicated. I felt like I left with more questions than I came with. But it doesn’t have to be, and it shouldn’t be, cruel. The Trump administration has implemented an immigration policy founded in cruelness and in suffering.