Immigration Law, Policy & Politics : Southern California Immigration Lawyer & Attorney : Carlos Batara Law Firm : Riverside, San Diego, Los Angeles

Last week, a New America Media report disclosed 100 House members have asked President Obama to jump start the immigration reform debate.

When the issue returns, I hope Congress remembers the kids.

Immigrant children are innocent victims of our inability to shape a compromise on immigration.

Worse, their plight has been minimized by anti-immigrant forces.

They never met Henry.

The Nightmare of Graduation Day 

Henry and his parents visited my office about two months before his high school graduation.  They sought direction about his future.

On paper, Henry was the All American kid.  In person, he was polite, well-mannered, and soft-spoken.

Henry was an 'A' student.  He had won many scholastic and good behavior awards.  He took first place in a district-wide science project competition.  Henry was also ASB vice-president and an ROTC member.  He was the ace pitcher on his school's baseball team.

Henry's immediate goals were simple.  "I'd like to join the army," he told me, "so I can help protect my country which has given me so much."

As complete as Henry's resume looked, it lacked one major item - legal documents to live in the United States.

He was brought here at the age of 5 when his parents entered the country without permission.  Working at minimum wage, his parents supported Henry in a stable home.  They raised Henry to believe good behavior and hard work would open doors of opportunity.

Instead, with graduation nearing, Henry had nowhere to turn.

His dream of joining the U.S. army was not possible.  He could not legally work or go to college.

At the end of our meeting, the hopelessness of Henry and his parents was apparent.  As they left my office, light tears rolled down Henry's cheeks.

Henry deserves better.

A Light at the End of the Tunnel?

Whenever immigration reform discussions begin, Congress is expected to argue over the merits of the DREAM Act.  This proposal would allow young Henry and other immigrants students the possibility of lawful resident status.

Opponents will assert the legislation is a form of blanket amnesty.  They're wrong.

Under the most current version, lawful permanent resident status is only granted if immigrant children meet certain requirements over an 11 year period.

In addition, during a six-year period of "conditional resident status," they must (a) demonstrate a record of good moral character and (b) successfully complete at least two years of service in the armed forces or attendance at a college.

For innocent and deserving immigrant children like Henry, I hope Congress sees fit this round to provide them with light at the end of the tunnel.

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My son was beaten and stabbed a few nights ago.

By a group of young immigrants.

I've spent my career defending immigrants. My commitment faces constant criticism. 

Far too often, news stories tell about immigrants who perform bad acts.  Even friends and colleagues question my values when such events are reported.

I understand their concerns.  But I've seen the positive aspects of immigration in my own life.  From my perspective, the good which flows from immigrant contributions outweighs the bad.

My dad was an immigrant.  My mother had roots in two different countries.  My parents were laborers with little education.  My father spent the early part of his life here as a farm worker, the latter as a dishwasher and kitchen helper for a Chinese restaurant.  My mother worked in factories until her bad back forced her to move into housecleaning.  They made positive contributions to American society.  They were unsung American heroes.

Like many immigrants, they brought a solid moral foundation with them. 

I was raised to use good manners, to be polite and courteous, and to respect my elders.  I was taught to do my best at all times.  I was encouraged to study hard, to work hard, and to help others.  I was taught to obey the law - and not to harm others.

The incident a few nights ago shook the foundations of my world.  My personal views were again called into question.  This time I am the examiner.

The ugly realities about immigration and our society, which, for me, were way out there - are staring back at me.  And they've never been closer.

I'm shocked, hurt, angry, and saddened - all at once.

I suspect some of the youths who stabbed my son feel left out of the American mosaic.  It doesn't excuse their actions.

These types of misguided actions, whether committed by citizens or immigrants, destroy the fabric of society. 

For many immigrants, striving in all the right ways to be accepted into the American community, the negative effects are magnified.

Those who harmed my son did nothing to change the good that my parents accomplished.  But they undermine the efforts of new immigrants who, like my parents, simply want to earn an honest day's wage for an honest day's work. 

One consequence of such heinous behavior is the call for stricter immigration laws.  There are no exemptions.  Worthy immigrants who would benefit from positive reform are forced to continue hiding in the shadows of American communities.

In stabbing my son, these immigrant thugs stabbed all immigrants.

Thank God, I still have my son.

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Twelve and a half years ago, immigration law underwent a major shift. A broad piece of federal legislation, IIRAIRA, went into effect. 

By now the dust should have settled. 

However, due to the lack of guidance  by the nation's top immigration court, many immigrants and their attorneys are still wondering what some of the changes mean. 

IIRAIRA curtailed several avenues of relief available to immigrants, including those placed in immigration court proceedings. A new system, based on removal, replaced the system of deportation. 

Before the shift, undocumented immigrants could request suspension of deportation from an immigration judge. After the change, they were allowed to seek cancellation of removal. Both relief forms depend on the concept of hardship. 

The difference between the two hardship formulations is qualitative.

• Under suspension of deportation, immigrants were required to prove their deportation would result in extreme hardship to themselves or to their qualifying relatives (parents, spouses, or children who are U.S. citizens or permanent residents).
• Cancellation of removal compels immigrants to demonstrate their removal will cause exceptional and extremely unusual hardship - but only to their qualifying relatives. 

Understanding the parameters of this qualitative shift is critical for immigration trial lawyers and their clients. The Board of Immigration Appeals, as the nation’s highest administrative body for interpreting and applying immigration law, is responsible for providing this guidance. 

Immigrants seeking suspension of deportation were beneficiaries of a sizable body of case law, dating back over 35 years and covering a variety of family situations. In Matter of Anderson (PDF), the Board set forth a vast list of factors for judges to consider when determining whether hardship existed in a particular case. 

In sharp contrast, the BIA has only issued three opinions pertaining to hardship in the cancellation of removal context . . . and its most recent decision, Matter of Recinas (PDF), was published on September 19, 2002 – a period of 7 years ago.

All three opinions have centered on a narrow family situation involving U.S. children being raised by a single parent.  As an immigration trial attorney, I can testify this is not the only  set of circumstances presented to immigration judges in hardship cases.

I also know  the Board's silence cannot be attributed to lack of opportunity.  Immigration judges handle about 300,000 - 350,000 cases per year; appeals are filed in about 10% of these cases.

To say the least, the BIA's failure to provide a list of new hardship factors, even remotely akin to Anderson, is a failure of leadership.

The net effect is two-fold.

Immigration attorneys and their clients operate in a legal limbo. They seek relief without judicial guidelines regarding what evidence should be presented.

Immigration judges, too, are placed in an untenable situation, lacking benchmarks to determine whether an immigrant merits being allowed to remain in the United States.

Having slumbered, for well past a decade, it’s time for the BIA to get to work. 

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Careless judicial interpretation often leads to unjustified consequences.

For immigrants, it can mean deportation.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (PDF) transformed immigration law.  One change affected the relief available to undocumented immigrants when the government seeks their removal from the United States.

Before the revision, immigrants could ask for suspension of deportation.  This required them to prove extreme hardship.  After the change, they could seek cancellation of removal, which demands a showing of exceptional and extremely unusual hardship. If immigrants fail to meet the relevant standard, they are sent back to their country of origin.

The Board of Immigration Appeals issued its understanding of the differences between the two hardship standards in Matter of Monreal.  First, the Board explained that "under the plain meaning of the words of the two hardship statutes the standard for cancellation of removal was higher than the standard for suspension of deportation."  Second, the Board noted that even though the hardship standard under cancellation of removal was heightened, it was clearly set at a level less than "unconscionable."

In my view, the BIA was wrong on the first point.  And the Board's mistake on the first part of their analysis negated their second point.

The plain meaning of the words of the two statutes does not mandate a more restrictive evaluation of hardship.  Indeed, the only hardship more severe than an extreme hardship is an unconscionable hardship. 

The Board's careless interpretation overlooked a lesson I was taught in elementary school: the difference between adjectives and adverbs.

To understand hardship in the immigration context, four adjectives are important: exceptional, unusual, extreme, and unconscionable. According to well-respected dictionaries like Webster's, Oxford, and Cambridge, a comparative list of commonly accepted meanings follow:

• Exceptional – unusual, extraordinary, irregular, peculiar, rare, strange, unnatural, anomalous, abnormal
• Unusual – uncommon, extraordinary, exceptional, rare, strange, remarkable, singular, curious, queer, odd
• Extreme – utmost, greatest, rarest, highest, outermost, endmost, uttermost, farthest, furthest, remotest, ultimate
• Unconscionable – immoral, barbarous, preposterous, uncivilized, unethical, unjust, wicked conscienceless, unscrupulous

Based on this review, a spectrum of hardship emerges.

Three significant points can be gleaned from this spectrum:

1. The terms "exceptional" and "unusual" are equivalent. Both adjectives connote a situation which is extraordinary or rare. Both describe the same degree of severity.  As synonyms, their meanings overlap each other 100%.
2. The terms "exceptional" and "unusual" apply to a hardship which is less harsh than an "extreme" hardship. The terms "exceptional" and "unusual" address a hardship which is extraordinary or rare. "Extreme" pertains to a situation which is the ultimate, rarest, or remotest.
3. The circumstances described by the term "extremely unusual" are less severe than those described by the term "extreme." An extremely unusual hardship is more severe than an unusual hardship. But it is less severe than an extreme hardship. In the phrase "extremely unusual," the word extremely is an adverb. The adjective is still unusual. By definition, there is a qualitative difference between unusual hardship (even if "extremely unusual") and extreme hardship (even if "ordinarily extreme").

Based on the words used by Congress, the BIA flunked an elementary school grammar test.

The effect of their error is not simply grammatical.  The BIA's blunder created a false barrier to relief from deportation which many worthy immigrants cannot surmount.

Immigration judges, following the BIA's mistaken precedent, order the removal of immigrants who can show extreme hardship - because extreme hardship is not deemed severe enough under the new standard. 

Due to the BIA's careless interpretation, what immigration judges want is unconscionable.

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After waiting 2 1/2 hours, my client was finally called for her green card interview.

We headed to the hallway door to meet the U.S. Citizenship and Immigration Services officer.  I extended my right hand to greet the officer and introduce myself.  He turned and walked away.  With his back to us, he said, "Follow me."

My client's face turned colorless.  Fear ran up and down her spine.  I whispered, "Don't worry.  It's okay."

I again extended my right hand as we entered the officer's room.  He looked at me and said,"We do not shake hands with immigrants seeking benefits."

"Really," I asked, "is that a written policy?"

He ignored the question.

Maybe I'm too old-fashioned.  As I was growing up, my mother taught me to always shake hands.

President Obama has indicated he wants to implement changes to government bureaucracy.  I suggest starting with improved customer relations training for immigration office employees.

A Culture of Rudeness

The attitude displayed by the USCIS officer is not an isolated incident.  In my experience, too many immigration offices are infected with a culture of rudeness.  Not all, but too many.

• Filing window clerks who fling papers at clients and attorneys rather than respond to simple inquiries about procedures or forms
• Security guards who treat visitors as if they are enemy terrorist suspects
• Detention officers who place callers on hold for 20 minutes before asking the callers about their names or reasons for calling
• Immigration judges who act like having tantrums on the bench is a form of judicial discretion

Government lawyers are not exempt from this epidemic. 

For over 16 years, as I've walked into immigration court, I offer to shake hands with opposing counsel.  Most return my gesture.  Yet, some appear shocked. They stare incredulously at me .  .  .  as if I am doing something foreign to legal etiquette. 

And unfortunately, this handshake is sometimes the end of civility.  More often than I care to remember, I've needed to remind opposing counsel it is not necessary to personalize our legal dispute or vilify my immigration client.

A Lesson From Basketball

Like President Obama, I played a lot of basketball as a young man. 

I remember many intense games at a church playground with a dangling chain-link basket.  We would try our hardest to beat each other.  Afterward, we would head to a small neighborhood grocery store.  We would put our money together to buy and share twinkies and chocolate milk.  Despite the furious competition just minutes earlier, there was rarely lingering animosity.

I learned an invaluable lesson from those basketball games -- a lesson it appears our president has also learned.

Mere opposition does not justify belligerence.

This lesson guides my interaction with those on the other side when I represent clients.

Even though my clients are immigrants from foreign countries, the rude, and often mean-spirited, attitude displayed at many immigration offices is inappropriate.  Government employees are public servants, and role models for the public they serve.  

I am not alone in my position.  As the Institute for Civility in Government notes, if government will not model civic responsibility, how can we expect others in society to be any different? 

Just ask Kayne West, Serena Williams, or Joe Wilson.

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