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Tuesday, November 3, 2009

No Way Out: Bi-national, Same-Sex Couples

People are NOT Created Equally
Photo Credit: Jon Feingersh, Getty Images

Steve Orner does not receive the same immigration rights as others. He was forced to sell his home and his family was torn apart. He lost a loved one, who was forced to return to Indonesia. But there's nothing he can do about it.

Orner, a gay American citizen, was unable to sponsor his partner for legal permanent residency. He is just one of approximately 35,820 bi-national, same-sex couples living in the United States in 2000, according to U.S. Census data reported by the Human Rights Watch (HRW), an international organization for human rights.

The Price of Love
Photo Credit: Plus Studios/DH Hong Kong, Getty Images

An unnamed man said in "Family, Unvalued," a publication of the HRW, "The U.S. government does not want to acknowledge that homosexuals are entitled to be happy, just as any human beings…Now that I have finally found my soul mate, the U.S. government wants to tell me that I do not have the right to be with him. If immigration laws don't change in the near future, I will be leaving the United States, even if that means being unemployed and living in misery. At least I'll be with the one I love."

Love: Your Country v. Your Partner

Photo Credit: Jeffrey Hamilton, Getty Images

Because of restrictive immigration laws, couples are oftentimes forced to choose between their country and their partner.Approximately 19 nations give same-sex couples the right to petition for their partner, but why doesn't the United States?

Why is there no protection?
Photo Credit: Patrick Lane, Getty Images

The reason these bi-national couples do not qualify for any form of immigration benefits is simply due to the Defense Against Marriage Act (DOMA). DOMA defines marriage between a man and a woman; therefore, immigration law is not applicable to even those who were legally married in U.S. territories. U.S. citizens cannot petition for their same-sex partner to receive any form of immigration benefits.

Evaluating Options
Aliens are able to apply for asylum on the basis of sexual orientation based on the matter of Toboso-Alfonso, which was decided in 1994. A national organization known as Immigration Equality has published a handbook to help lesbian, gay, bisexual, transgendered, and HIV-positive individuals apply for asylum.

Photo Credit: Jeffrey Hamilton, Getty Images

Taking Action
Photo Credit: Roy Hsu, Getty Images

Immigration Equality is a leading national organization that is working to end discrimination in immigration law, specifically for lesbian, gay, bisexual, transgendered, and HIV-positive individuals.

American Dream: Immigrant Designs USCIS Buildings in Tri-County Areas

"The American Dream" is a reality for architect Rodolfo Acevedo, an Argentinian immigrant who designed five United States Citizen and Immigration Services (USCIS) buildings, including one in each of the tri-county areas of Florida.

Acevedo, 47, a recently naturalized U.S. citizen, helped change the overcrowded and unwelcoming image of immigration buildings. Ironically, JMWA Architects, where Acevedo received his first job after working as a busboy, was commissioned for the project. He went on to design the very offices where he once applied for citizenship in the 1990s.

"Lady Liberty": Oakland Park immigration facility

Photo Credits: JMWA Architects

Immigration center in West Palm Beach

"They were kind of makeshift facilities in a strip mall," Acevedo said in an interview with the Associated Press. "There was no welcoming, no warmth from the facilities. The furniture, the finishes, even the colors, the location within the town -- it was never feeling like they were there to actually help you."

According to USCIS, Florida has one of the longest processing times at immigration centers, taking longer than 14 months in Miami or Orlando, summarized the AP article.

Overall, Acevedo's designs attempt to change the processing times and the image of immigration centers as a whole.

Calender Hearings: What happens after the NTA

Photo Credit: Jamie Grill, Getty Images
Many people panic when they receive any form of paperwork regarding immigration, but it is important to keep in mind what the immigration process looks like and, if possible prepare ahead of time.

After an alien is served an NTA (Notice to Appear) in Immigration Court, the removal process follows one or both routes:

1. Master Calendar Hearing
2. Individual Calendar Hearing

Master Calendar Hearing
What happens...
  • The first hearing during removal proceedings
  • Usually many people are scheduled for a master hearing at the same time
  • It is used to set the tone for what may or may not lead to an individual hearing
  • The time and date of the Master Calender Hearing may be stated in the NTA
  • Informs the alien of their right to an attorney, the availability of free and/or low-cost attorneys
  • Explains that the alien has the right to present evidence and object to any evidence
  • Explain charges (usually criminal)
  • Hear pleadings
  • Set deadlines for applications, forms of relief, statements, witnesses, and other documents
  • Explain consequences of missing a hearing
  • Inform the alien of the right to appeal any decision to the Board of Immigration Appeals (BIA)
You should be prepared to...
  • agree with or deny the NTA
  • admit or deny allegations
  • designate a country for removal, if applicable
  • designate forms of relief
  • estimate time needed for case
  • set a date for individual case
  • arrange for an interpreter to be present, if necessary
Photo Credit: Comstock, Getty Images

Individual Master Hearing
What happens...
  • aliens have the ability to introduce evidence and call witnesses to the stand
  • this is the time where removability or deportability is contested with forms of relief
  • aliens can object to government's evidence and witnesses as well
  • judge will issue a final ruling in court or at a later date, after hearing both defense and prosecution
You should be prepared to...
  • discuss all of your arrests, if any
  • provide compelling reasons for your previous behavior
  • have your lawyer discuss your forms of relief
  • present any witnesses that can testify to your personal character and/or why you are seeking relief
  • present documents supporting the type of relief you are seeking
  • give your own detailed personal testimony in regards to the relief you are seeking
(Source: Personal Experience and some basic information from Chicago Immigration Attorneys)

The Real Numbers: Immigration Apprehensions, Removals

Be careful not to violate the Immigration and Nationality Act (INA), or you may find yourself among the 792,000 foreign were apprehended by the Department of Homeland Security as of July 2009 . You might even find yourself among the 359,000 aliens who were actually removed from the United States. (Source (pdf): Office of Immigration Statistics, Annual Report from July 2009)

The INA is most typically violated by "losing legal status by failing to abide by the terms and conditions of entry or by engaging in crimes such as violent crimes, document fraud, terrorist activity, and drug smuggling," according to a July 2009 Annual Report from the Office of Immigration Statistics.

The leading country of descent of those aliens removed was Mexico (69 percent), followed by Honduras and Guatemala.

DO NOT: Ignore a Notice to Appear

Photo Credit: Jim Arbogast, Getty Images

A "Notice to Appear," also known as an NTA, is a document that the Department of Homeland Security uses to initiate an immigrant's removal from the United States.

An NTA is an extremely important document and should be handled with immense caution. If you receive an NTA, DO NOT ignore or disregard it:

"If you fail to attend the hearing at the time and place designated, or any date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your absence and you may be arrested by the INS [Immigration and Naturalization Service]," reads all official NTAs.

*If you are not sure whether or not you have been served an NTA, check out an example (pdf) of one.*

All NTAs serve to inform the alien of:
  • The nature of the hearing
  • The alleged immigration laws he/she has violated
  • Their right to be represented by an attorney
  • The consequences of missing a hearing
"[Penalties could include] imprisonment for up to 10 years for aliens who do not appear at hearings," according to the Department of Homeland Security.

Photo Credit: Tom Smart, Deseret News (Salt Lake City)

If you are served an NTA, there are a few things you need to do:
1. Do not ignore the NTA. Make sure that you appear (the earlier, the better) at your scheduled hearing. Some judges, especially in Miami, Florida, will not hesitate to put out a removal order.

2. Do not panic. This notice constitutes information. It does not necessarily mean that you will be deported.

3. Immediately consult an immigration lawyer.
- Do not let anyone, including an immigration officer, convince you that you do not need a lawyer and that you can represent yourself.
- Colleges and universities nationwide have legal programs, such as the University of Miami, and are a good starting point for free referrals.
- Even if you cannot afford a lawyer, a list of local pro-bono lawyer can be found just by performing a Google search.

4. Be aware of your options and your consequences. You most certainly do not want to end up in a detention center, like Krome in Miami. Do not think, "It won't happen to me"--it can. Keep in mind the recent story of the father, whose Marine son is serving in Afghanistan, suffering from lung cancer who was held at Krome for 11 days and is awaiting deportation.

Sivan's Immigration Glossary

United States Citizenship and Immigration Services (USCIS) has their own glossary of immigration terms. However, I thought it would be helpful if I included a glossary of terms, taken directly from their website, I thought were most important for Real Immigration Stories.

Photo Credit: Digital Vision, Getty Images

Any person not a citizen or national of the United States.

Asylee: An alien in the United States or at a port of entry who is found to be unable or unwilling to return to his or her country of nationality, or to seek the protection of that country because of persecution or a well-founded fear of persecution.

Cancellation of Removal: A discretionary benefit adjusting an alien’s status from that of deportable alien to one lawfully admitted for permanent residence. Application for cancellation of removal is made during the course of a hearing before an immigration judge.

Conditional Resident: Any alien granted permanent resident status on a conditional basis (e.g., a spouse of a U.S. citizen; an immigrant investor), who is required to petition for the removal of the set conditions before the second anniversary of the approval of his or her conditional status.

Deportable Alien: An alien in and admitted to the United States subject to any grounds of removal specified in the Immigration and Nationality Act. This includes any alien illegally in the United States, regardless of whether the alien entered the country by fraud or misrepresentation or entered legally but subsequently violated the terms of his or her nonimmigrant classification or status.

Derivative Citizenship: Citizenship conveyed to children through the naturalization of parents or, under certain circumstances, to foreign-born children adopted by U.S. citizen parents, provided certain conditions are met.

Employer Sanctions: The employer sanctions provision of the Immigration Reform and Control Act of 1986 prohibits employers from hiring, recruiting, or referring for a fee aliens known to be unauthorized to work in the United States. Violators of the law are subject to a series of civil fines for violations or criminal penalties when there is a pattern or practice of violations.

INA or Immigration and Nationality Act: The Act (INA), which, along with other immigration laws, treaties, and conventions of the United States, relates to the immigration, temporary admission, naturalization, and removal of aliens.

Inadmissible: An alien seeking admission at a port of entry who does not meet the criteria in the INA for admission. The alien may be placed in removal proceedings or, under certain circumstances, allowed to withdraw his or her application for admission.

Lawful Permanent Residents: Any person not a citizen of the United States who is residing the in the U.S. under legally recognized and lawfully recorded permanent residence as an immigrant. Also known as "Permanent Resident Alien," "Resident Alien Permit Holder," and "Green Card Holder."

Migrant: A person who leaves his/her country of origin to seek residence in another country.

Nonimmigrant: An alien who seeks temporary entry to the United States for a specific purpose. The alien must have a permanent residence abroad (for most classes of admission) and qualify for the nonimmigrant classification sought. The nonimmigrant classifications include: foreign government officials, visitors for business and for pleasure, aliens in transit through the United States, treaty traders and investors, students, international representatives, temporary workers and trainees, representatives of foreign information media, exchange visitors, fiance(e)s of U.S. citizens, intracompany transferees, NATO officials, religious workers, and some others. Most nonimmigrants can be accompanied or joined by spouses and unmarried minor (or dependent) children.

Parolee: an alien, appearing to be inadmissible to the inspecting officer, allowed into the United States for urgent humanitarian reasons or when that alien’s entry is determined to be for significant public benefit. Parole does not constitute a formal admission to the United States and confers temporary status only, requiring parolees to leave when the conditions supporting their parole cease to exist.

Port of Entry: Any location in the United States or its territories that is designated as a point of entry for aliens and U.S. citizens. All district and files control offices are also considered ports, since they become locations of entry for aliens adjusting to immigrant status.

Principal Alien: The alien who applies for immigrant status and from whom another alien may derive lawful status under immigration law or regulations (usually spouses and minor unmarried children).

Refugee: Any person who is outside his or her country of nationality who is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution. Persecution or the fear thereof must be based on the alien’s race, religion, nationality, membership in a particular social group, or political opinion.

Refugee Parolee: A qualified applicant for conditional entry, between February 1970 and April 1980, whose application for admission to the United States could not be approved because of inadequate numbers of seventh preference visas. As a result, the applicant was paroled into the United States under the parole authority granted to the Secretary of Homeland Security.

Returning Resident: Any Lawful Permanent Resident who has been outside the United States and is returning to the U.S. Also defined as a "special immigrant." If outside of the U.S. for more than 180 days, must apply for readmission to the U.S. If outside of the U.S. for more than one year and is returning to his or her permanent residence in the United States, usually must have a re-entry documentation from USCIS or an immigrant visa from the Department of State.

Stateless: Having no nationality.

Temporary Protected Status: Establishes a legislative basis for allowing a group of persons temporary refuge in the United States. Under a provision of the Immigration Act of 1990, the Secretary of Homeland Security may designate nationals of a foreign state to be eligible for TPS with a finding that conditions in that country pose a danger to personal safety due to ongoing armed conflict or an environmental disaster. Grants of TPS are initially made for periods of 6 to 18 months and may be extended depending on the situation. Removal proceedings are suspended against aliens while they are in Temporary Protected Status.

Transit Alien: An alien in immediate and continuous transit through the United States, with or without a visa, including, 1) aliens who qualify as persons entitled to pass in transit to and from the United Nations Headquarters District and foreign countries and 2) foreign government officials and their spouses and unmarried minor (or dependent) children in transit.

A U.S. visa allows the bearer to apply for entry to the U.S. in a certain classification (e.g. student (F), visitor (B), temporary worker (H)). A visa does not grant the bearer the right to enter the United States. The Department of State (DOS) is responsible for visa adjudication at U.S. Embassies and Consulates outside of the U.S. The Department of Homeland Security (DHS), Bureau of Customs and Border Protection (BCBP) immigration inspectors determine admission into, length of stay and conditions of stay in, the U.S. at a port of entry. The information on a nonimmigrant visa only relates to when an individual may apply for entry into the U.S. DHS immigration inspectors will record the terms of your admission on your Arrival/Departure Record (I-94 white or I-94W green) and in your passport.

Voluntary Departure: The departure of an alien from the United States without an order of removal. The departure may or may not have been preceded by a hearing before an immigration judge. An alien allowed to voluntarily depart concedes removability but does not have a bar to seeking admission at a port-of-entry at any time. Failure to depart within the time granted results in a fine and a ten-year bar to several forms of relief from deportation.

Withdrawl: An arriving alien’s voluntary retraction of an application for admission to the United States in lieu of a removal hearing before an immigration judge or an expedited removal.

Source: United States Citizenship and Immigration Services Glossary

Monday, November 2, 2009

"Hidden in Plain Sight": Human Trafficking

Billboards and PSAs advocating "Hidden in Plain Sight," Immigration and Customs Enforcement's (ICE) newest program to raise awareness about human trafficking can be found nationwide.

ICE now has an "overall goal of preventing human trafficking in the United States by prosecuting the traffickers, and rescuing and protecting the victims," according to a November 2 press release.

Many victims of human trafficking are helpless and were promised a better life but are now trapped in a modern form of slavery; however, the public program aims to provide solutions that will bring relief to victims and help stop other crimes. Both solutions require participation from victims that will aid law enforcement in investigation and prosecution and are granted by United States Citizenship and Immigration Services (USCIS):

1. T Nonimmigrant Status (T visa):
- victims of human trafficking
- expected to comply with reasonable requests from law enforcement to investigate or prosecute human trafficking
- must prove that it would be an extreme hardship if removed from the United States

2. U Nonimmigrant Status (U Visa):
- victims of human trafficking and/or rape, murder, sexual assault, abduction, prostitution, and various other related criminal activities
- "were helpful, are helpful, or are likely to be helpful to law enforcement" with investigation and prosecution of the crime
- have suffered substantial mental and/or physical abuse as a result of the crime

Immigrants holding a T or U Visa are eligible to apply for legal permanent residency after maintaining legal presence in the United States for at least three years. For more specific details, visit USCIS's Frequently Asked Questions section: T Visa or U Visa.