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Blandon Law Immigration

Saturday, March 27, 2010

The Board of Immigration Appeals

     Clients often wonder why one case is handled differently than another case.  The answer sometimes lies with the relationship between the Board of Immigration Appeals (BIA) and the Department of Homeland Security ("the Service" including the Citizenship and Immigration Service, Customs and Border Patrol and Immigration and Customs Enforcement).
     The BIA reviews cases from Immigration Judges as well as those from the Service.  Based on BIA decisions, immigration attorneys advise clients how they might fair in an appeal.  The BIA decisions are also available publicly through the Virtual Library of the Executive Office of Immigration Review.
     The BIA wields great power as it interprets the immigration laws.  It is not bound by precedent decisions of the Service or policy memoranda that have not been incorporated into regulations.  In this way, the BIA is the first fighting ground where a foreigner's case has been handled by the Service or an Immigration Judge in a way that is contrary to law. 
     Interestingly, the Service is only bound by decisions that the BIA designates as precedent decisions.  Therefore -- even though BIA decisions express the correct interpretation of the law -- the Citizenship and Immigration Serice is allowed to (and does) decide other cases in a manner contrary to the BIA's explicit guidelines.  Likewise, Immigration Judges do make decisions that are contrary to BIA holdings.  The only course of action left for the foreigner, expensive as it may be:  appeal.

Wednesday, March 17, 2010

Immigrants' List

     We cannot control the wind, but we can direct the sails. 
     Immigration reform sometimes seems like a pie in the sky idea.  When I am asked by clients what can be done to help their family members, who are waiting for years to enter the U.S. legally, I advise them to contact their elected representatives.  Although a single member of Congress is unlikely to speed the immigration process, it is important for him or her to know that the U.S. citizen constituent must wait over 10 years for a sibling to immigrate.  If the sibling is from certain countries, the wait can be over 20 years.
     Beyond contacting an elected official, there is something else that can be done:  contributing -- even if only $10.  Immigrants' List is a bipartisan political action committee that supports pro-immigrant candidates for Congress.  By contributing to Immigrants' List, as well as contributing to the election campaigns of the pro-immigrant candidates, humane comprehensive immigration reform is more likely to become a reality.
     There are U.S. citizens and legal permanent residents (citizens-in-waiting) who care deeply about immigration issues.  If Congress does not know these people are willing to get them elected, though, nothing will change. 

Tuesday, March 16, 2010

I, the Cog; You, the Cog

     We turn to the current presidential administration for health care reform, economic reform, leadership on world issues and immigration reform, just to name a few.  Why do we rely on one when the United States needs each person to perform his or her duty in order to work efficiently?
     Last week, President Obama -- in a carefully worded speech -- explained that his political clout just does not reach far enough to tackle the immigration reform hurdle by himself.  He said, "I also heard from a diverse group of grassroots leaders from around the country about the growing coalition that is working to build momentum for this critical issue. I am optimistic that their efforts will contribute to a favorable climate moving forward."
     Many clients often ask when and whether immigration reform will come to fruition.  An estimated 14 million persons, 70% of whom are parents of U.S. citizens, are here without authorized presence.  On March 21, thousands are expected to rally for immigration reform in Washington, D.C.
     The only way to get this needed legislation passed is for businesses, labor unions and religious organizations to back President Obama the way they did in 2008.  Contact your elected representative now.

Monday, March 15, 2010

Why Should Latinos Embrace the Census?

     The census -- which will be arriving in mailboxes shortly -- has a huge impact on communities, influencing everything from the funding of schools and roads to determining how many congressional representatives speak on behalf of the community at the national level.  This will be the first census in which Latinos make up the second largest population group.
     The census counts everyone in the country, whether here legally or illegally.  Unfortunately, this results in districts receiving money for persons whom the congress members may then decide not to represent -- because the undocumented have no political clout and cannot get a politician elected or re-elected.
    In fact, there is a Latino movement to boycott the census based on the theory that doing so will speed up immigration reform.  The slogan "Before You Count Us, You Must Legalize Us" states their case.  However, this idea throws out the baby with the bath water.  The census gives power to the population, whether legal or not.  Boycotting the census will leave the politically unrepresented without .... well, representation.

Saturday, March 6, 2010

Becoming an Immigration Specialist

     The highest recognition of an attorney’s expertise in a particular field is Board Certification by the Florida Bar, the organization of the state’s attorneys. Without Board Certification, an attorney cannot call herself a specialist in the field of immigration and nationality law.
     On March 12, this upcoming Friday, I will be taking the written examination for Board Certification in Tampa, Florida. It is an all day test.
     Before I was allowed to take the examination, five attorneys who are neither relatives nor current associates or partners provided information on my behalf. It was a requirement that they attest to my reputation for substantial involvement and competence in the field of immigration and nationality law as well as my character, ethics, and reputation for professionalism.
    In addition, an applicant must have been engaged in the practice of law for at least 5 years preceding the date of application and demonstrate completion of 50 credit hours of approved continuing legal education in the subject during the 3 year period prior to applying.
     I thank everyone for their support this far. Cross fingers, light candles.

Friday, March 5, 2010

How Much Are You Willing to Risk?

    In life, you can't get what you want without taking a risk.
     A young Colombian husband and wife came for a consultation  yesterday.  They have two U.S. citizen children and have been in this country for over 10 years without authorization.
     I gave them various options to "become legal."  The least risky was for the wife's employer to file labor certification and wait for employment-based residency.  I made it clear that according to the law as it currently exists it would be years before she became a legal permanent resident.  In fact, she and her husband might never become residents because of the unauthorized presence.  The most risky option was applying for asylum.  Although grounds for asylum exist, they missed the one year deadline.  Unless Immigration agrees that an exception applies, the Department of Homeland Security might wish to deport them rather than grant a benefit. 
     Given some strong factors -- including the health condition of one of her daughters -- they are great candidates for cancellation of removal.  The clients did not like the idea of ever going in front of an immigration judge although winning such a case meant definitely becoming legal permanent residents.
   In the end, they asked me what I thought they should do.  I told them to risk as much as they could stand to lose.  Not surprisingly, they decided to risk nothing and remain in the same illegal situation they have been for years.

Thursday, March 4, 2010

Negotiating with Immigration

     In the book I am currently reading, Last Night in Twisted River by John Irving, there is a surprise deal struck by two of the main characters.  I won't spoil it for those who have not yet read the book, but for those who have, they know the incredible agreement I am writing about.
     It occurred to me, as I read, that negotiations are possible in almost all aspects of life -- from reducing mortgages to reducing criminal sentences.  Not surprisingly, then, it is also possible to negotiate with the Department of Homeland Security when a foreigner is deportable.
     In fact, several programs exist in the regulations allowing DHS to negotiate with a foreigner in just this way.  The most well-known is Deferred Enforced Departure.  Everyone admits that the foreigner must leave, but DHS is willing to officially place a low priority on the removal, usually for humanitarian reasons.  There is also Extended Voluntary Departure, which grants safe haven in a way similar to Temporary Protected Status. TPS is a designation by the Attorney General permitting persons from a specific nationality to remain.
     Because it is never known whether a person will be able to benefit from these programs in the near future (as is the case of Chileans currently in the U.S. without authorization -- no TPS designation yet despite the earthquake), I rarely advise clients to leave the country voluntarily.

Tuesday, March 2, 2010

Does the Foreign Employee Control the Company?

     Before an employer can hire a foreigner permanently, s/he must undergo the complicated labor certification process.  The employer must first obtain permission from the Dept. of Labor (sounds socialist to me, but that's for another blog) that no U.S. worker qualified for the position.
     Of course, the Dept. of Labor wants to know whether the job offer is a valid one or whether, in truth, there is no job available to U.S. workers. The DOL looks to certain facts to determine whether the employer wants to hire this particular foreigner or actually is opening a job to anyone who qualifies.  The DOL considers whether the foreigner:

1.  influences or controls the hiring process
2.  is on the Board of Directors or is involved with management
3.  incorporated or founded the company
4.  is one of a small number of employees
5.  is related to the managers or employees
6.  had an ownership interest in the company
7. has qualifications for the job that are identical to very unusual requirements the employer is seeking
8. is so inseparable from the employer that the company could not survive without the foreigner

     Ironically, employers will seldom spend years on the employment residency process unless the foreigner -- for one reason or another -- is important to them.

Monday, March 1, 2010

We Are Not Our Circumstances

    We are not our circumstances.  We are not our car, our house, our clothes or our lack of money.  These things are our circumstances, the way we are living at this point in time in our life.  We may have had less or more in the past and we will have less or more in the future.  The word recession has been used too often to describe the U.S. economy.  Foreigners have abandoned the U.S. in droves to return to a worse situation in their home country.  They grow desperate waiting for the amnesty promised by presidents since 2000.
     The word I prefer is hope.  I hope I can help foreigners.  (The photo is of my weekend volunteer services for Haitians at Legal Aid of Broward.)  I hope the persons I help will pay it forward by helping others.  For each situation, there is a solution.  In my office there is a frame with the quote "In the end, it's going to be okay.  If it's not okay, it's not the end." 
    We are who we choose to be based on our actions.  If we read, we are learned.  If we help others, we are kind.  If we hold on to our hope despite our fears, we are brave.

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