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

Despite a 44 year history, the Cuban Adjustment Act (CAA) remains a mystery to many in Southern California.

Government lawyers are among those sometimes confused by CAA's simplicity.

A Defense To Deportation And Removal

Three weeks after arriving in Mexico City, Norma finally reached Tijuana, Mexico.  The next day she went to the San Diego port of entry.  She noted her fear about returning to Cuba.  The officer granted parole, allowing her lawful entry into the U.S. and releasing her from custody.

At Norma's deportation and removal defense hearing, government counsel objected to Norma's request to adjust her status to permanent residency. 

"Your honor, the only potential avenue of relief is her weak claim of asylum," insisted the DHS attorney not once, not twice, but three times.

Grasping the judge's growing frustration, I asked the court for a two-week continuance to allow opposing counsel to study the issue.

What Is The Cuban Adjustment Act?

The Cuban Adjustment Act was enacted on November 2, 1966.  Like many immigration laws, it was politically inspired.  It resulted out of massive Cuban migration to the U.S. after the 1959 Cuban Revolution and failed attempts to overthrown the Castro regime.

A large part of CAA's uniqueness lies in its "one year and one day" rule.

Cuban citizens can apply for permanent resident status if they have been present in the U.S. for at least one year after admission or parole.  They do not need to be beneficiaries of family-sponsored or employment-sponsored immigrant visa petitions.

The 1995 Wet Foot/Dry Foot Policy

Under the Clinton Administration, the Cuban Adjustment Act was revised in 1995. The changes became known as the wet foot/dry foot policy.

Under the 1995 provisions, the U.S. Coast Guard is required to repatriate Cubans intercepted at sea, those with "wet feet," back to Cuba - unless they prove a fear of persecution if they are sent back, in which case they are resettled in a third country.

Cubans who make it to U.S. shores, those with "dry feet," are permitted to stay here and adjust status the following year.

The Dusty Foot Trail To Southern California

The 1995 amendments led to unanticipated consequences.

Fearing apprehension at sea, Cubans changed their route to the U.S.  Entering via Miami became a less preferred option.

Over the past decade, like Norma, Cubans have opted for traveling first to Mexico, and then entering the United States at a Mexico-U.S. port.  

• Between 2004 and 2005, Coast Guard efforts were intensified. The interdictions of Cubans more than doubled from 1,225 to 2,712.  In 2007 the high of 2,868 was reached.  
• As a result, the number of Cubans arriving through Florida began to decrease, dropping below 1,000 per year by 2006.
• Meanwhile, the amount crossing the Mexican border rose from almost 6,000 in 2004 to approximately 11,000 in 2007 and 10,000 in 2008.  

The trend, dubbed "dusty foot," continues today.

The Difficulty With CAA Is That It's Not Difficult

Having practiced as a San Diego immigration attorney for more than 15 years, I feel the migration patterns of Cuban immigrants should have led to a better understanding of the Cuban Adjustment Act by now.    

Even though the number of Cubans entering the U.S. at California and other southwestern states dropped to 5,600 in 2009, this figure is large enough to justify increased training of government attorneys. 

Most immigration programs have complex requirements.  Not CAA.  

The Cuban Adjustment Act is not a difficult program to understand. 

Ironically, that's the difficulty.   

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For over a decade, deportation defense and immigration appeals attorneys have criticized the impact of minor criminal offenses on lawful permanent resident (LPR) immigrants and their families.  We've been lone wolves.

But last week, in Carachuri-Rosendo v. Holder, the Supreme Court provided hope the issue will finally receive constitutional scrutiny.

Now, a recently released study, "In The Child's Best Interests? The Consequences Of Losing a Lawful Immigrant Parent", adds numerical insight about the need for judicial reform of our deportation laws.

The study covers LPR parental deportation between 1997 and 2007.  The findings include:

Lawful Permanent Residents

• 87,884 LPRs were deported during the ten year period
• 68% of these LPRs were deported for minor, non-violent crimes
• The deported LPRs had lived in the U.S. an average of ten years, long enough to form families

Children of Lawful Permanent Residents

• 53% of the deported LPRs had at least one child living with them
• Deported LPRs had a total of 103,000 children
• 88,000 children of deported LPRs were U.S. citizens
• 44,000 children of deported LPRs were under the age of 5

Family Members of Lawful Permanent Residents

In addition, the study noted 217,000 other immediate family members (including U.S. husbands, wives, brothers, and sisters) were affected by the deportation of LPRs between 1997-2007.

Two Needed Reforms

As I discussed in "Immigration Fairness: The Need to Restore Judicial Discretion in Deportation Cases", there are two components to repair in these types of deportation cases.

First, differentiate minor and major convictions.  Several offenses deemed minor under state law are transformed into aggravated felonies under immigration law.  Once a conviction is classified as an aggravated felony, a lawful permanent resident is subject to automatic removal from the United States.

Second, restore judicial discretion.  Immigration judges lack the discretion to distinguish minor from major crimes.  Until this ability is restored, they lack the authority to intervene and exercise reason in separating which immigrants deserve a second chance at remaining lawfully here.

While the battle for reform is far from over, it's nice to know these issues have finally reached the attention of a broader audience.

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In the view of immigration restrictionists, a simple legal reform would reduce illegal immigration.

All that is required, writes George Will in the Washington Post, is to correct the misinterpretation of the 14th Amendment's first sentence:

"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."

Children of illegal immigrants were not part of the 14th Amendment's coverage, argues Will, since there were no laws in 1868 restricting immigration.

The Suggested Reform Is Not Simple

John Eastman, Dean at the Chapman University School of Law, supports Will's position.  He outlines three possible paths for changing the 14th Amendment.

The first path is via constitutional amendment.  In Eastman's view this path is redundant and not necessary.  Second, he suggests Congress could simply pass a statute re-defining the automatic citizenship requirement.  Third, he asserts if a City does not recognize the citizenship of children born to undocumented immigrants, this would force an expedited legal showdown.

Eastman concedes, whichever approach is taken, the federal courts and ultimately the Supreme Court will have to weigh in on the issue. 

Other constitutional scholars believe the position advanced by Will is dead wrong.

According to Elizabeth Wydra, Chief Counsel at the Constitutional Accountability Center, the Citizenship Clause was proposed, enacted, and ratified with the understanding that it provided automatic birthright citizenship to children born in the United States to alien parents.

"Providing for birthright citizenship regardless of race, color, or previous condition of servitude righted the horrible wrong of Dred Scott v. Sandford," stresses Wydra, "and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship."

Provoking a new civil war centering on the 14th Amendment doesn't seem like a simple reform to me.

Bad Politics, Bad Law, or Both?

When it comes to Immigration law, immigration politics is too often the tail wagging the dog.

The discussion over the 14th Amendment is no different.   Utilizing imagery of illegal immigrants capsizing the American ship, restrictionists seek to impose their political agenda on our nation's immigration laws.

Although Will relies on the work of Lino Gragli, a law professor at the University of Texas, it's hard to overlook the political basis of Gragli's position:

"A parent from a poor country . . .  can hardly do more for a child then make him or her an American citizen, entitled to all the advantages of the American welfare state."

On the one hand, few would argue the United States is not a special place to live.  On the other, in my 17 years as an immigration lawyer in Southern California, I've never met anyone who came here to obtain citizenship for an unborn child.  In all likelihood, this reason may motivate some immigrants - but the true figures are far less than the political rhetoric suggests.

The reality is love just happens, usually unexpectedly.  Having a child born in the United States is normally a byproduct of living here, not vice versa.    

Immigrants enter the U.S. for a host of reasons.  To name a few, persecution, economic opportunity, religious freedom, as well as poverty.          

If fixing our broken immigration system is the objective, eliminating birthright citizenship is not the answer.  The net effect would increase, not decrease, immigration problems.  A new underclass of children born here but not entitled to live here or anywhere else would be created. 

Political aims tend to be short-sighted.  Our legal system needs more durable standards.

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As an immigration attorney in Riverside, it's a question I hear almost every day.

"Do you think," ask clients, "we'll have immigration reform this year?"

It's a tough question.

Immigration reform resembles a ping pong match.

Ping.

According to the Los Angeles Times, the President met yesterday with two senators, Democrat Charles Schumer and Republican Lindsey Graham, whose support are crucial to immigration reform.  Presumably, the purpose was to ask them to hasten a blueprint.

Pong.

Just a month ago, immigration reform seemed dead.  After Scott Brown won the Massachusetts special election, Newsweek's blog, The Gaggle, reported the chances of having an immigration reform bill had become dramatically slimmer.

Obama's State of the Union Speech also contributed to the pessismistic outlook of pro-reform leaders.  Many observers felt his reluctance to address immigration reform was tantamount to abandonment. 

Reverend Samuel Rodriguez, head of the largest U.S. Hispanic Christian organization, labeled Obama's 38-word commentary "a crumb" to satisfy the hunger of immigrant communities.  He added it marked the death knell of immigration reform in 2010.

Ping.

The disillusionment articulated by Rodriguez was a stark contrast to sentiments last fall.

In November, DHS secretary Janet Napolitano stated the Obama Administration would push for immigration reform in 2010. 

Shortly afterwards, Congressman Louis Gutierrez introduced the Comprehensive Immigration Reform for America's Security and Prosperity Act (CIR ASAP) Act of 2009. 

Pro-immigrant leaders expressed optimism about the prospects of immigration reform.

Pong.

Prior to these gestures, despite Obama's bold campaign promises, immigration reform languished for several months after his victory. 

At a populist pit stop in my neck of the woods last spring, the president was taken aback when posed a question about immigration reform.  The question was not surprising for a Southern California audience.  Yet, Obama's response resembled a rookie batter swinging at one of Josh Beckett's curveballs. 

And The Winner Is . . . 

The president understands the volatility of reform.  He has tried to appease both sides of the immigration equation.  However, with midterm elections around the corner, the issue is reaching a boiling point. 

Very soon, the administration will have to fish or cut bait.

The Democratic Solution: Counting Votes

Before joining the bar, I spent several years working in political offices. 

I learned the art of counting votes.  Before diving in too deeply.

Given the uncertain political climate in a midterm election year, my guess is the president will take a middle-of-the-road approach. 

He cannot go too far in promoting pro-immigration legislation or he'll lose the support of many moderates. 

On the other hand, as Politico's Ben Smith points out, Obama must push some of his campaign promises to maintain the enthusiasm of immigrant communities which strongly voted for his party two years ago.

My hunch is that one or two "safer" pieces of the pro-immigrant agenda will be taken up in the spring or early summer. 

But like I tell my clients, don't bet the house on it.

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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. 

As an immigration lawyer who helps immigrants earn permanent residence and U.S. citizenship, I know there are no shortcuts provided by the DREAM Act. 

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 on deportation defense 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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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. 

Having been an immigration trial attorney in Riverside and San Diego 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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