The debate is raging over whether children born on US soil to parents who are not legally in the US should be considered US citizens. In my view, the Constitution has made that perfectly clear. The 14th amendment states:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”
Seems pretty clear to me. But some state and federal lawmakers are arguing that the “subject to the jurisdiction thereof” clause renders the section inapplicable to children born to parents who do not have authorization to be in the US. I disagree, and I can prove it with one word – deportation.
Technically called “removal” in the immigration law, deportation is the act of the federal government expelling an individual from the US. In 2009, the government reported deporting approximately 300,000 individuals. If those individuals were not “subject to the jurisdiction” of the United States, then how were they deported? They were deported because they were subject to the enforcement of US immigration law, which is under the jurisdiction of the United States. Anyone on US soil is subject to the jurisdiction of the United States, other than those who have specific immunities, including foreign dignitaries with diplomatic immunity, as an example – the targets of the original language.
We must oppose strongly oppose any effort to amend the US Constitution on this point, or to legislate around it. There are enough sociological problems in this country without creating a subclass of individuals who have done nothing to deserve their status, by being born on US soil – something over which they had no control. Where would we deport a child born in the US to parents who had no status to be here were these laws to be enacted? Would they just be stateless individuals, doomed to remain in the US as nomads with no nation willing to claim them? That is not an acceptable course for this great nation.
Contact your state representatives and tell them you oppose these measures. Contact your US Representatives and Senators and put an end to this discussion. They will end it if they hear from enough of us. Make those calls!
Garry L. Davis
Attorney at Law
Senate majority leader Harry Reid has decided to bring the DREAM Act to the Senate floor before the end of this session of Congress. See an article here discussing the state of the law: http://americasvoiceonline.org/press_releases/entry/senate_majority_leader_reid_advances_the_dream_act/. The Development, Relief and Education for Alien Minors Act (The “DREAM Act”) is a law that would allow high school graduates who do not have legal status to become legal residents under certain conditions. For example, the applicant would have to be a person of good moral character – meaning in general no criminal record, no tax evasion, etc. The applicant would also need to establish that he or she arrived in the US as a minor, and have lived in the US for five years prior to the bill being passed. The law would grant an applicant conditional permanent residence, which would lead to full permanent residence based on the completion of at least 2 years of honorable military service, obtain a college degree, or complete at least two years of college in good standing.
This is a law worth pushing, without question, in my view. Children often are the real victims of our immigration laws. Often I meet with families with high school age children, children who grew up and were educated in the US, who do not have legal immigration status. In those meetings, the most common question is, “How do I get a social security number so I can go to college?” They have scholarship offers, are excited about their futures, and have big dreams and goals for their lives. It breaks my heart to be the bearer of bad news. The system certainly does not make it easy for them to reach those goals. It’s tragic because in most, if not all, cases, the person was brought to the US illegally through no fault of his or her own. Often the student had no idea he or she was illegally in the country until applying to the university or for financial aid to pay for it. Dreams are shattered, and the disappointment can be overwhelming.
Because the children who would qualify for benefits under this law are the good ones, the ones who will be productive and motivated to excel – not to mention incredibly grateful – we should all jump in to support this bill fully. No one loses. The child gets a chance to be productive in the US. The country gets another brave soldier or college student. The rest of us get another educated member of society or another serviceman or servicewoman to help protect our interests and freedom. So, why has the law been floating around since 2001 without being passed? There are lots of reasons why things stall in Washington. The bill has been used as a political tool and often demonized as a “back door legalization.”
It’s time to put the rhetoric and politics of this bill aside and get it passed. For the sake of these children, and our nation. I urge you to call and write your Senators and Congressmen, urging them to support this bill. If you don’t know who they are, go to www.senate.gov and www.house.gov, put in your zip code, and they will come up right away – phone numbers and addresses. Call them, write them – let’s work together to pass this bill!
Garry L. Davis
Attorney at Law
The November 2010 national election resulted in huge gains for the Republican Party in the House of Representatives. The result leaves many to wonder, “Now what happens to immigration reform?” See an article from the Washington Independent on the issue: http://washingtonindependent.com/10…2414/house-immigration-policy-now-in-the-hands-of-gop-and-steve-king.
US Immigration law is a political landmine. Politicians who take a position either for or against any provision affecting US immigration law suffer political consequences, which frequently cannot be predicted. It is often a no-win situation for a politician who wants to keep his or her job, resulting in a lot of discussion and no action. Republicans campaigned in part and with success on a promise to secure the borders and to stem the flow of illegal immigration into the US – a very important but incomplete goal in my view. However, I don’t think that this necessarily means that positive immigration reforms are dead.
Politically speaking, immigration law and policy does not divide cleanly down party lines. Some examples: President George W. Bush, a Republican, worked hard to try to get positive immigration reforms, including a Guest Worker program. The DREAM Act was first introduced in the Senate by Republican Senator Orrin Hatch. http://hatch.senate.gov/newsite/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=207109&Month=7&Year=2003&IsTextOnly=True. The last general amnesty we had in 1986 was pushed through by President Ronald Reagan, a Republican. And the last quasi-amnesty, Section 245(i) of the Immigration and Nationality Act, was passed by a Republican Congress – note that it was signed by President Clinton.
On President Barak Obama’s watch, a Democrat, record numbers of individuals have been deported from the US. http://www.washingtonpost.com/wp-dyn/content/article/2010/07/25/AR2010072501790.html. President Bill Clinton, also a Democrat, did not veto the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, two of the harshest immigration reform laws in US history – note that they were passed by a Republican Congress. The Democrats had control of the Presidency, the House and the Senate for the last two years and did not pass immigration reform. During the last half of President Bush’s second term, the Democrats controlled Congress, and with the support of the President did not pass immigration reform.
There are numerous political reasons and explanations for each of these examples, and they are admittedly over-simplified. This analysis is not written to criticize or show support for either party, but just to make it clear that US immigration law attitudes do not divide cleanly down party lines. My point in writing this article is to let the readers know that now is not the time to give up hope for positive changes to our immigration laws. Each of you should contact your Congresspersons and Senators and urge them to support immigration reforms you believe would be positive ones and beneficial to the country and to your families. Do not let the shift in Washington discourage you into inactivity.
If your family has been affected by US immigration law in a negative way, send letters telling your story. Congress cannot know the personal impact the laws they pass have on individuals and families unless someone tells them. Do your part to change the attitude many US citizens have against immigration by sharing your stories with others, writing to the newspapers, and relating your experiences. Don’t give up hope!
Garry L. Davis
Attorney at Law
There are numerous stories of children brought illegally to the US at a very young age who succeed in school and have big dreams and aspirations. Here you will find one of many such stories: http://www.freerepublic.com/focus/f-news/2559372/posts. Congress has considered for years the The Development, Relief and Education for Alien Minors Act, or DREAM Act, and yet somehow it has never passed. I cannot understand why.
No one blames a small child for coming to the US illegally. If there is any fault to be had, it lies with the parents. But unfortunately, the consequences still fall to the child. The DREAM Act, if passed, would create a way for these children to legalize their status and pursue their dreams in the US. For the child to become a full permanent resident of the US, honorable service in the US military or completion of some college education would be required. How can anyone object to such an opportunity for our country, to have a motivated group of individuals going to college or serving in the military with full permanent residence as the reward. There are no losers with this law.
So, why can’t Congress get it passed? I’m not sure anyone has an answer to that question. Immigration is such a hot political issue in the US. Everyone talks about it, and if any politician commits to either side, there is a price to be paid at the polls. So, they do nothing. One of the biggest challenges is that no one who does not have to deal with it really understands US immigration law. I’ve been practicing for 10 years, yet some people in my family don’t even understand it. So many focus on the negatives, the illegal side of immigration. They say things like, “We are happy to have immigrants come, if they would do it legally – do it the right way!” They say things like that without realizing that in many cases there is no right way.
Being married to a US citizen does not allow someone to become a permanent resident or US citizen automatically. I consult with many US citizens whose spouses cannot come to the US legally. Having children in the US does not guarantee legal status in the US either. Imagine waking up one morning to a phone call that your husband, wife or parent has been arrested by US immigration authorities. In many cases, the family members did not know their relative was illegally in the US. You cannot look at a person and tell whether or not that person is illegally or legally in the US. As long as that is true, enforcing immigration law will continue to be a challenge. And with President Obama anxious to deport as many folks as possible (see http://www.washingtonpost.com/wp-dyn/content/article/2010/07/25/AR2010072501790.html), including hundreds of US citizens in the frenzy (see http://www.huffingtonpost.com/2010/05/25/deportation-nightmare-edu_n_588788.html), the DREAM Act has become that much more important.
If you are a US citizen, contact your senator or congressperson and urge them to pass the DREAM Act. You will find them at www.senate.gov and www.house.gov. Regardless of your stance on immigration law, these successful, goal-oriented, motivated children deserve a chance to become great, regardless of the sins of their parents.
Garry L. Davis
Attorney at Law
In a recent study, Penn State Law released its finding that about 20% of political asylum applications were denied because of late filing. Read the report here:
http://law.psu.edu/_file/Immigrants/One_Year_Deadline_Joint_Release.pdf. This report begs the question, why do we have a filing deadline in the US at all?
Offering asylum is an obligation the US agreed to with the signing of a convention on refugee status in 1951. Those who have endured or who fear persecution in their home countries due to their political opinion, religious beliefs, race, national origin or membership in a particular social group can seek protection from the US government. However, if someone in that situation does not file an application within 1 year of entry, he or she is barred from obtaining that protection from the US.
What is it about requiring someone to file within 1 year that changes the person’s fear from credible to not credible? I’m not sure there is a clear answer to that question. As an attorney, I have consulted with many individuals who are seeking asylum protection after the 1-year filing deadline. They have been afraid of going back throughout their time in the US, but had never heard of asylum, or did not know they had to file within 1 year. Others are still in legal status, even though it has been 1 year since the filing deadline, and relied on their status to keep them in the US. Sometimes we can argue for an exception to the 1-year filing deadline, but it is a challenge and is often not granted.
The Immigration authorities in the US have an inherent disbelief of asylum claims. Frequently to make it to the US, the person has to have committed some kind of fraud, such as obtaining a student visa for a school that the person never intends to attend, or obtaining a passport in a fake name so he or she can leave that country. Also, at inspection, if the individual did not tell the officer conducting the inspection that he or she would be seeking asylum, that creates doubt as to the validity of the person’s fear of persecution. The thought process is if you were really afraid to go back because you thought you might be killed or tortured, why did it take you so long to tell us? Finally, the US government has found that up to 90% of all asylum claims contain some false statements, and many are completely fabricated. This inherent disbelief of asylum claims, at least in part, led to the 1-year filing deadline, as well as all the other restrictions US law puts on granting asylum protection.
If you honestly believe you would be a victim of persecution in your home country because of your race, religion, national origin, political beliefs or your being a part of an identifiable social group, and you are in the US or considering coming to the US, don’t be discouraged. I and other attorneys who do what I do have won asylum cases in the US. If the claim is real, and you follow the rules, you should be able to look to the US for asylum protection. Here are some tips to improve your chances for success:
1. Tell the truth. The truth will always be the best story you can tell, whatever you believe its weaknesses might be. Don’t give into the temptation to tell a worse story than what really happened to you or your family. If you try to embellish your story with things that are not true and it is discovered, even the truth you have told will be discounted. Credibility is so important in this process, as is consistency between your application, your written statement and your testimony in an interview or in court.
2. Document everything. If you have not come to the US, but plan to come and believe you qualify for asylum, bring proof. If you were part of a political party that is persecuted in your home country, bring your membership application, certificates, identification cards, etc. If there is a warrant for your arrest because of your political activities for a minority party or because you chose to practice your religion, bring those documents. If you were hospitalized after being persecuted for your race or national origin, bring hospital records. These are just some examples. If you are already in the US, and are thinking about filing for asylum, have your family gather these kinds of documents to send to you. The more evidence you have to prove your claims, the more likely you will be to succeed.
3. Don’t return to your home country. If you have made it to the US and are thinking about filing for asylum, do not return to your home country before filing. If you return to your home country, and then file for asylum after returning to the US, the immigration authorities will have a hard time believing you are afraid to go back – because you did go back.
4. Consult with someone who can help before you file. There are many agencies in the US who help with asylum applications at little or no cost, and many attorneys who do asylum work as well. Even if you decide to file on your own, you should consult with an agency or an attorney before filing to improve your chances.
Garry L. Davis
Attorney at Law
A former New York Supreme Court judge was sentenced today for running a fraudulent immigration practice. Read the entire article here:
http://www.ibtimes.com/articles/73615/20101019/former-judge-sentenced-in-immigration-fraud-case.htm
According to the article in the International Business Times, the judge and his paralegal were preparing and filing fraudulent applications for immigration benefits with US Citizenship and Immigration Services. They were charging exorbitant fees to their clients, claiming the fees were filing fees paid to USCIS, but keeping the funds. Each was convicted and sentenced to serve time in prison.
Immigrants come to the US in hopes of a better life. Many don’t know what the answers are when they come to the US, how they are going to stay. That lack of knowledge drives them to seek help. Often they believe anyone who gives them hope for a chance to stay in the US permanently. Cost is not an issue, considering the amount spent arranging the trip to the US in many cases. Unscrupulous attorneys prey on those who are looking for answers, give them false hope and destroy any future or legitimate opportunities the victims may have had.
How do these attorneys get away with it? When a fraudulent case is filed with USCIS, it will eventually be processed. If (or more likely, when) the fraud is discovered, frequently the person who applied is put into immigration court to be processed for deportation. If the person ultimately is deported from the US, who is around to sue the seedy attorney who filed the fraudulent case? No one. Who is around to file a grievance with the State Bar? No one. The victim has been deported, and suing the attorney is the farthest thing from a person’s mind when that person is facing deportation. The lesson to all immigrants: be careful who you talk to, and more careful who you put your trust in. Always get a second opinion from another attorney, particularly if what the first attorney is promising sounds too good to be true. Ask friends and family for referrals to someone with a good reputation in the community, a reputation that would be put at risk if that attorney messes up a case. Check with the State Bar to confirm the attorney is in good standing and has had no complaints or grievances.
Have the confidence in yourself to do your homework. Don’t just trust what the attorney tells you. When an attorney makes a suggestion, feel free to ask for a copy of the law that allows for what the attorney claims can be done. Then take that law and research it online. Get all your questions answered before retaining an attorney to make sure you are comfortable with the suggestion.
Finally, and most importantly, be aware that trying to beat the system is not a good strategy in US immigration law. The consequences for committing fraud are severe. Do not give false information to the US government. And never sign anything given to you by an attorney or anyone in his or her office without carefully reviewing it first. There is good a chance that a legitimate immigration lawyer can find a valid solution for you to reach your goal of staying in the US. If an attorney makes a suggestion that requires you to provide false evidence or information, talk to someone else. Fraud is a cardinal sin in immigration law and generally will destroy the legitimate options you may have. Just be careful.
Garry L. Davis
Attorney at Law
If a non-US Citizen is facing criminal charges, does he or she have a right to competent advice on the consequences of the decisions in the criminal case on the person’s immigration situation? The US Supreme Court in a recent decision answered that question with a resounding “Yes.” Criminal defense attorneys who represent non-US Citizens have a duty to advise their clients of the immigration consequences of the advice they give and the options for resolution. See Padilla v. Kentucky, 559 US ___ (2010), (decided 03/31/2010).
Although I do not practice criminal defense, my understanding is that usually the goal is to minimize consequences and costs to the client, the defendant in criminal court. The game plan is to figure out a way to resolve the case without the client spending time in jail or incurring the costs of going to trial. When there are potential immigration consequences, the strategies that accomplish those goals can be fatal for the non-US citizen.
Would it surprise you to learn that a dismissed criminal case can be a conviction under US Immigration law? It can – happens all the time. Frankly in my experience, it is rare that an immigrant takes a case to trial in criminal court. Usually they accept a plea bargain, spend no time in jail, and just go on about their business while on probation. In the end, the case is usually dismissed and the person walks away with no criminal record. In Texas, this is called a Deferred Adjudication process. Other states have similar options.
The problem is, under US Immigration law, a plea of guilty or no contest coupled with any form of punishment or penalty is a “conviction.” The law does not take into account the motivations for plea bargaining, assuming instead that an acceptance or even an failure to contest the accusation of guilt is sufficient for consequences to follow.
Criminal Defense attorneys who are willing to accept the representation of non-US citizens must be able to advise their clients of the immigration consequences of their decisions and options. If you are in the US on a visa or a lawful permanent resident and you find yourself in criminal trouble, make sure your criminal defense attorney has a relationship with an immigration lawyer or is competent to advise you of the immigration consequences of your decisions. Saving money and staying out of jail are obviously important goals, but so is avoiding deportation from the US.
Garry L. Davis
Attorney at Law
There are two huge problems with enforcing immigration law that most American Citizens do not think about. First of all, no one can look at another person and guess whether or not the person has a legal right to be in the US. It is not identifiable in this nation, a nation of immigrants. I used to live in Japan. If someone who is not Japanese is in Japan, you can guess that person is most likely not a Japanese citizen. The same cannot be said in the US. Since a enforcement officer cannot look at a person and tell whether or not the “suspect” is a US citizen, what to do? Of course, ask for proof, right?
Now the second problem: What does a US citizen give a police, FBI, immigration officer or whoever to prove he or she is a US citizen? If you are a US citizen reading this, think about it? What do you carry with you to prove your citizenship? Most people I ask say, “My driver’s license.” Where does it show nationality on the driver’s license? A person does not need to be a US citizen to obtain one, so that is not evidence. The next response I get is, “My birth certificate.” I then point out a couple problems with that – it is not photo ID, so how does an officer know it is yours; and how many people carry their birth certificates with them? I know of no one who does.
So, what to do? Carry a US passport with you wherever you go? How many Americans do not carry US passports? Many, and maybe most, since there is no law that requires US citizens to carry them, and they really are only necessary for returning to the US after international travel.
So, what to do? Everyone is sceaming for greater immigration enforcement, but no one supports the idea of a Federal ID. Next time you are visiting Arizona, if you are a US citizen and they stop you and ask for your papers, I would be interested to hear what you said or used to prove your citizenship. My guess is as long as you’re white and speak English without an accent, you would be fine. And therein lies the problem.
Ask Marco Guevara of Carbondale, Colorado who recently had to track down his US passport to prove he was a citizen when questioned by authorities. They were going to deport a US citizen – not an uncommon occurrance these days. Luckily he has his passport. If you don’t I strongly recommend you get one.
Garry L. Davis
Attorney at Law
I sent the following letter to the Governor of Arizona in opposition to the recently passed law, our readers might find interesting:
You’re going to get a lot of emails I’m afraid in response to this. As an Immigration Attorney in Dallas, obviously I am interested in seeing where this goes. I would imagine most folks would think immigration lawyers would oppose such a law because such a law would limit their business. Nothing could be further from the truth.
In fact, such a law would probably increase business for us. People would be motivated to come to our offices to get help who might not otherwise take the time to do so. Also, for those of us who represent folks facing deportation, obviously we would also see an increase in business from the enforcement of such a law. So, our opposition is actually counter to my interest as a business owner and legal practitioner.
This law is a recipe for disaster. I have seen it so many times in my career – any time anyone who is not trained to enforce immigration law becomes obligated to enforce it, whether it be local police, employers through verification laws, or property owners seeking tenants, unconstitutional discrimination is inevitable.
No one can look at a person and determine whether the individual is legal or not. Very few can look at a document and ascertain its authenticity. Those with brown skin will all become targets for enforcement, and US citizens will inevitably be harrassed, hurt and offended.
Imagine the frustration of a US citizen being deported from the US by ICE. Often times, even with no ties to Mexico, these folks wind up dropped off in Mexico City with no ID, no money, no family ties, all because they are Hispanic. In fact over 300 US citizens in this situation have been deported illegally by Immigration and Customs Enforcement recently.
If ICE can’t figure out who is legal and who isn’t, how can local law enforcement be reasonably expected to? It is not possible. Signing this law will lead to discrimination, disparate enforcement of law, and I expect, considerable fallout litigation for all of the errors local law enforcement will inevitably make.
The City of Farmer’s Branch, Texas passed an ordinance a few years ago that required landlords to check for immigration status. They have lined greedy lawyer pockets (I expect some of whom are somehow related or connected to members of the city council) to the tune of $3,800,000 and counting to try to convince the federal courts the ordinance should be upheld. They have become a joke and have cost their constituents over $140 per person that could have been used to improve the city.
Please don’t become another Farmer’s Branch. Send a message that you will not tolerate laws that will inevitably discriminate on unconstitutional grounds. Thank you.
J and Q Visas allow noncitizens to enter the United States in order to exchange artistic, academic, and scientific knowledge and skills, and to share the history and culture of their native countries.
The J Visa is for:
- secondary school, college or university students
- teachers or professors
- research or short-term scholars
- trainees
- nonacademic specialists
- physicians
- camp counselors
- au pairs
- summer students in travel/work programs
- visitors for the purpose of traveling, observing, consulting, conducting research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs
Q Visas are for noncitizens coming to the US to provide practical training, employment, and the sharing of the history, culture, and traditions of the person’s home country in the United States.
J Visa General Requirements
A person seeking to obtain a J Visa must demonstrate sufficient financial means to support themselves during the entire length of their stay in the US. They must have the academic training and English language skills necessary to support their participation in their particular program. English skills are not required if the exchange program is designed to accommodate non-English speakers.
Q Visa General Requirements
Q Visa exchange visitors do not need to show financial support because they are paid by their employing sponsor at the rate equal to similarly-employed local domestic workers. The person must be at least 18 years old, and able to effectively communicate information about the culture, history, and traditions of their country.
Medical Education and Training
Noncitizens seeking a J Visa in order to obtain graduate medical education or training must pass the Foreign Medical Graduate Examination in Medical Sciences and possess competent English language skills. They are subject to time limits on the duration of their education or training and are automatically subject to the two-year foreign residence requirement once the education or training is complete. Physicians coming to the United States to observe, consult, teach, or conduct research, and who will have little or no patient care, are not subject to these requirements.
Applying for a J or Q Visa
The J Visa program is overseen jointly by the Department of State and the Bureau of Consular Affairs. Those people seeking J Visas must obtain a Form DS-2019, Certificate of Eligibility for Exchange Visitor Status, prepared by a sponsoring organization designated by the Department of State and the Bureau of Consular Affairs. The Q Visa program is run by USCIS. People wishing to receive Q Visas must have Form I-129, Petition for Nonimmigrant Worker, submitted on their behalf by a sponsoring organization designated by USCIS.