Volume Fifteen, Number Five
SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with 40 years of experience practicing immigration law.
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SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.
Published by the Law Offices of Carl Shusterman, 600 Wilshire Boulevard, Suite 1550, Los Angeles, CA 90017. Phone: (213) 623-4592 x0.
“I have been dealing with immigration lawyers for almost a decade. This office is by far the best office I have worked with.”
- Faras Shakir, Detroit, Michigan
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TABLE OF CONTENTS:
- 1. 10 Things We Like About the Comprehensive Immigration Reform Proposal
- 2. H-1B Filing Season – Good News for Professionals with Job Offers
- 3. Arizona’s Version of Immigration Reform: Bring in Big Brother
- 4. Above the Law? Nominee for CBP Commissioner is an Immigration Violator!
- 5. Success Story: Helping a Person Qualify for a National Interest Waiver
- 6. Immigration Trivia Quiz: Immigrant Television Personalities
- 7. Ask Mr. Shusterman: Impact of Supreme Court’s Decision in Padilla v. Kentucky
- 8. Official Immigration Government Processing Times
- 9. Tam Ngoc Tran – She Died, But Her Dream Lives On
- 10. Winner of our April 2010 Immigration Trivia Quiz
- Blog – Our weekly blog is entitled “Nation of Immigrants”. Read our blog, which deals with current immigration issues, and you can sign-on as a follower of our blog.We welcome your comments!
- “Green” Green Cards – On May 11, the USCIS announced that the latest alien registration cards will include the following features:
- Optical Variable Ink
- Holographic Image
- Embedded Radio Frequency Identification Device (RFD)
- Laser Engraved Fingerprint
- Unique Background Design
- Optical Media Stores All Digital Files, Including Biometrics
- Micro-image, High Resolution Pictures of State Flags and Presidents
Last, but not least, the new green cards will, at long last, be green!
- I Beg Your Pardon – New York Governor to Pardon Certain Criminal Convictions for Immigrants The New York Times featured an article revealing that New York Governor David Paterson is establishing a state panel to review pardon applications for legal immigrants who may face deportation because they were convicted of minor crimes in the distant past.Governor Paterson, in a speech to judges, called some of our immigration laws “embarrassingly and wrongly inflexible.” He stated that “in New York, we believe in rehabilitation.”Does this mean that New York is following Arizona’s lead in usurping what is the responsibility of the federal government? Just the opposite. Federal immigration laws, at 8 U.S.C. 1227(a)(2)(A)(vi), specifically provide that certain classes of persons who would otherwise be subject to removal from the U.S. because of criminal convictions are automatically granted a waiver of removal “in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.”In reality, Governor Paterson is simply exercising his authority to pardon persons who were convicted of criminal offenses, and in doing so, federal law prohibits the USCIS from deporting the person. Previously, we wrote about the unrealistic and inhumane portions of the immigration law that if applied to any of the past three Presidents of the United States would result in them being deported.We hope that the other 49 governors follow Governor Paterson’s lead.The result would be that fewer lawful permanent residents would face deportation and separation from their families based on minor convictions which occurred many years ago.
- Immigration Court Backlog Grows – A new report by the Transactional Records Access Clearinghouse (TRAC) at the University of Syracuse shows that the backlogs at Immigration Courts across the U.S. continue to increase as Immigration Judges see their caseloads grow and grow. A total of a little more than 200 Judges are responsible for almost 250,000 active cases. The case backlog has grown more than 30% in the last 18 months alone. The average waiting time for a case exceeds 400 days and in some states, the waiting times average over 600 days. Given these numbers, we doubt that simply increasing the number of Judges by 10-20% is going to have much of an impact. It’s time for Congress to explore other approaches to fix our broken immigration system.
- Immigration Videos – Over 100,000 persons have viewed one or more of our 29 videos regarding various immigration laws and procedures. One of our videos, “Green Cards through Marriage,” has been viewed over 36,000 times. We now feature this video in three languages: English, Spanish and Chinese. Obtain free information about various aspects of U.S. immigration laws and procedures by viewing our “how-to” immigration videos.
- Obama to Send 1,200 National Guardsmen to the Border – On May 25, President Obama announced plans to send 1,200 National Guardsmen to the U.S. – Mexican border to supplement the Border Patrol. However, consider that since 1992, the annual budget for the Border Patrol has increased 700% and the number of Border Patrol Agents along the U.S.- Mexican border has increased almost 400%. Yet Senator John McCain (R-AZ) has criticized the President’s actions, maintaining that 6,000 National Guardsmen are called for. Given that the number of Border Patrol Agents is now around 20,000, most of them stationed along our southern border, how much more do the politicians expect the taxpayers to pay for the Border Patrol? Shouldn’t we adopt a guest worker program for Mexican citizens with jobs in the U.S., and focus our enforcement activities against smugglers, violent criminals and drug cartels?
- Temporary Protected Status (TPS) – On May 5, the USCIS announced that certain nationals of Nicaragua and Honduras will be eligible for an 18-month extension of their TPS, and that their EADs will automatically be extended for an additional six months.
- Visa Bulletin – We link to the June 2010 Visa Bulletin and to past Visa Bulletins. Although the employment-based numbers remained at a virtual standstill in May and June, some of the numbers in the family-based categories, particularly for persons born in the Philippines, moved ahead at a rapid pace.
- Visa Fees to Rise on June 4 – The State Department is raising the fees that it charges for visas and border crossing cards. The new fees will be as follows:
- Non-petition-based nonimmigrant visa except E category: $140
- H, L, O, P, Q, and R category nonimmigrant visa: $150
- E category nonimmigrant visa: $390
- K category nonimmigrant visa: $350
- Border crossing card for age 15 and over (valid 10 years): $140
- Border crossing card for under age 15; for Mexican citizens if
- or guardian has or is applying for a border crossing card
- 10 years or until the applicant reaches age 15, whichever is sooner): $14
- Web Site Redesign – After 15 years of being the webmaster of one of the world’s ugliest (but, I hope, informative) websites, I have decided to have our website redesigned. The new website will not only be more pleasing to the eye, but we hope that it will be even more helpful to our readers. If you have ideas about how our website can be improved, let us know by contacting us at
On April 28, Democratic Senators began circulating a 26-page comprehensive immigration reform proposal which may soon be introduced in the Senate in bill form. Some of the ideas in this proposal are good, some bad, and a few are ugly.
In this post, we discuss what we like about the proposal, in particular, some much needed reforms in the legal immigration system:
1) There would be no numerical caps in obtaining permanent residence for students with advanced STEM (science, technology, engineering or mathematics) degrees from U.S. universities who possess an offer of employment from a U.S. employer in a field related to their degree;
2) STEM F-1 student visas would be considered “dual intent”;
3) Country limits for employment-based immigration would be ended. Country limits for family-based immigration would be increased from 7% to 10%;
4) Backlogs in the family-based immigration system which currently range from 3 to over 22 years would be completely eliminated during the next 8 years;
5) Children and spouses of lawful permanent residents would be classified as “immediate relatives” which would remove all numerical restrictions from this category;
6) All unused green cards could be recaptured in later years;
7) Both the Conrad 30 Program for physicians and the R-1 non-ministerial religious worker program would be made permanent. It would be easier for all physicians working in medically-underserved areas to obtain green cards;
8) “Permanent partners” of U.S. citizens and permanent residents would finally qualify for green cards;
9) Refugees and asylees would be granted lawful permanent residence as soon as they qualified for refugee/asylee status; and
10) Widows and orphans of U.S. citizens would qualify for immigration benefits as would children of Filipino World War II veterans.
The American Immigration Lawyers Association (AILA) has released a summary of the proposal, (REPAIR) acronym for Real Enforcement with Practical Answers for Immigration Reform. In addition, the White House has released a statement regarding the proposal.
Since the H-1B “cap-subject” filing season opened on April 1st, the number of petitions received has been very small. We track the numbers on a weekly basis from our H-1B Cap Update page. During the first seven weeks, the USCIS received only 19,600 H-1B petitions toward the 65,000 general cap and 8,200 H-1B petitions toward the 20,000 masters cap. This means that there are over 55,000 H-1B slots up for grabs. Compare this with fiscal year 2009 when there were so many H-1B petitions received in the first week of the filing season that winners had to be chosen via a random lottery. Even during fiscal year 2010, the number of H-1B petitions received by the USCIS was double or even triple what they are this year. International students who received Optional Practical Training work permits after graduating with a degree from a university in the U.S. should take advantage of this opportunity to change their status from F-1 student to H-1B professionals as soon as possible. So should International Medical Graduates who will complete their medical residencies and fellowships in “cap-exempt” H-1B at the end of June. In fact, the decline in demand for H-1B status this year is a golden opportunity for all foreign-born professionals who wish to work in the U.S. be they IT professionals, healthcare professionals or whatever!
Senator Barry Goldwater (R-AZ) must be rolling in his grave. The conservative Republican senator from Arizona ran for President in 1964 on a platform condemning “Big Government”. As a kid, I read Goldwater’s “Conscience of a Conservative” and came away with a strong conviction that America was founded on the principle of individual freedom, and that no matter what the perceived threat was, internal or external, American citizens should beware of “trusting the government” rather than upholding our rights as individuals.
Today, the citizens of the State of Arizona are justifiably upset about the violence caused by Mexican drug cartels and coyotes who smuggle illegal immigrants into the U.S. So upset, that the Arizona Governor signed a bill into law which would require all persons in Arizona to carry proof of their legal status in the U.S. Police would be required to check the paperwork of persons who they suspect of being present in the U.S. unlawfully.
Why aren’t the citizens of Arizona protesting in the streets of Phoenix and Tucson about Big Brother and this governmental intrusion into our individual rights?
After all, how many of us routinely carry our U.S. passports or birth certificates every time we go to work, take our kids to school, or go out to a movie? The only time that I ever carry my passport is when I travel out of the country. If I lose my passport, how long before I get another one? And how much do I have to pay? No way am I going to carry my passport with me every time I work out at the gym!
I have the feeling that most U.S. citizens in Arizona are not going to carry around their passports with them either. Since most Americans have never bothered to get a passport, this is probably a pretty safe bet. So, why aren’t these people alarmed about the new law?
Probably because they don’t have foreign accents. If a police officer pulls them over for a speeding ticket, and in the unlikely event that they are asked for proof of their citizenship, they can smile and answer “Officer, I was born in Phoenix. I went through school here, and I work at the local bank. I am so American that I’m voting for J.D. Hayworth against John McCain because John is too soft on illegal aliens.” The officer will probably smile and send them on their way.
But suppose that the U.S. citizen is Hispanic or Asian or European and speaks with an accent. Same facts as above, except that the officer is not sure if the person is a citizen. “I was born in Mexico, but I became a naturalized U.S. citizen over ten years ago. I would carry my Certificate of Naturalization with me, but I have it framed on the wall in my computer room. Please let me call my wife on my cell phone, and she’ll read the certificate number to you.” But he can’t reach his wife because she is picking up the kids from school. The officer responds, “I’m real sorry sir, but you know that you are legally required to carry proof of citizenship with you. I’m afraid that I am going to have to take you down to the station.”
One prominent religious leader has likened the new Arizona law to “German Nazi and Russian Communist techniques.” In my opinion, that’s a bit over the top.
However, no one can deny that the new law forces us, for the first time, to carry around documents proving our citizenship or immigration status. If this isn’t a government power-grab, I don’t know what is.
If the average person felt personally threatened by the new law, the Arizona legislature never would have passed it and the governor would not have signed it. Fortunately, the law really doesn’t apply to you or me, but only to the “other guy.”
Shame on all of us for not standing up for traditional American freedoms. Arizona’s Governor should formally apologize to Senator Barry Goldwater.
This is a sad day for America.
Recently, Arizona’s Governor signed a law requiring local law enforcement officials to take into custody persons when they have a “reasonable suspicion” that they are present in the U.S. illegally. The person would be turned over to the Immigration Service, and be released from jail once they had demonstrated that they were present in the U.S. legally.
On May 17th, the ACLU and various other groups sued Arizona officials in Federal Court to void the law on a number of grounds including violation of the Constitutional rights of equal protection of the law and free speech. President Obama has questioned the validity of the law and a number of individuals, organizations, and governmental entities are protesting against the law.
Yet, polls show that a majority of Americans support the law.
I suspect that most Americans think that enforcement activity will be limited only to illegal aliens, and that as American citizens, they have nothing to fear. I hope that the following true story will make some people think twice about supporting a law that gives the government such tremendous powers over the lives of ordinary citizens.
In the 1980s, shortly after I had left my job as an INS Trial Attorney and entered private practice, I received a telephone call from Washington, D.C. from Congressman Edward Roybal. Rep. Roybal was angry about something that the INS had done to one of his constituents, and he asked me to help.
A young man had attempted to enter the U.S. from Mexico, and was being held in detention by the INS in Los Angeles. Although, he provided the officer with a birth certificate showing that he was born in Los Angeles (and was, therefore, a U.S. citizen), the officer did not believe him. Why not?
Because the birth certificate was typed with two different shades of ink. Some of the words on the certificate were dark black, others were typed in a lighter shade of black. The officer suspected that the birth certificate may have been altered.
It should have been very easy for the INS to verify the validity of the birth certificate since the Hall of Records was located just down the street from the Federal Building.
The same day, on Friday, I visited the young man in detention. He told me that he had been incarcerated for five days. I assumed that the INS had obtained a copy of the birth certificate from the Hall of Records, and that the two certificates did not match. Instead, to my surprise, I learned that no one from the INS had even tried to obtain a copy of the birth certificate. How long were they going to keep this man in custody before someone paid a visit to the Hall of Records? No one could answer my question.
So together with an aide from Congressman Roybal’s Los Angeles office, we obtained a certified copy of the birth certificate from the Hall of Records that same day. And guess what? The certified copy was also typed in different shades of ink. Maybe some secretary had replaced her typewriter ribbon midway through typing his birth certificate.
We quickly hurried back to the Federal Building, and presented the certified birth certificate to an INS Officer. “Oh, you’re right”, she said, “We will release him next Monday.”
Next Monday? She explained that she had a number of work-related tasks to perform that afternoon, so the young man would have to remain in jail over the weekend. My jaw dropped in amazement. Congressman Roybal’s aide was outraged. She demanded that the young man be released from detention immediately. And, in the end, the government relented. Still, he had been incarcerated, quite unnecessarily, for five days.
When I read the Arizona law (SB 1070) and the ACLU complaint (98 pages), before I can even start to think about all the legal arguments that will be raised in Federal Court, I think of that young man and the indifference of our government regarding his detention.
Is this what we mean by “liberty and justice for all”?
On May 13, the Senate Finance Committee took up the nomination of Alan Bersin to be the Commissioner of Customs and Border Protection (CBP), an agency with a staff of 57,000 and a budget of $11 billion. As the nation’s “border czar”, Bersin would be responsible for enforcing our immigration laws. As a matter of fact, Bersin is already serving as the CBP Commissioner as a recess appointment. However, he has yet to be confirmed by the Senate. Mr. Bersin has a well-deserved reputation as a tough prosecutor. From 1993 to 1998, he was the de facto head of Operation Gatekeeper, a Clinton-era initiative which massively increased border enforcement on the U.S.- Mexico border near San Diego. As a U.S. Attorney, Mr. Bersin’s office criminally prosecuted hundreds, if not thousands, of Mexicans who illegally crossed the border into the U.S. Some of the side-effects of these criminal prosecutions and increased border enforcement were approximately 500 deaths per year of illegal border crossers as the flow shifted from California to the deserts of Arizona. With Congress calling for ever tougher enforcement of our immigration laws, one would think that Mr. Bersin would be a shoe-in for Senate confirmation. However, documents released by the Senate Finance Committee today reveal what might be a problem for Mr. Bersin. Mr. Bersin and his wife have three children, and have, employed 10 different nannies to care for them. Were the nannies all legal to work in the U.S.? According to what Mr. Bersin told the committee staff, they were. So, what’s the problem? Given Mr. Bersin’s credentials as a tough enforcer of immigration laws, the Bersins certainly were careful to verify the legality of each of these nannies using the legally-required I-9 (Employment Eligibility Verification) form within three days of their hire as required by the Immigration Reform and Control Act of 1986, correct? This is where things go a bit awry. According to a memorandum composed by the committee staff, when Mr. Bersin was first interviewed by them in August 2009, he stated that he had completed an I-9 for the family’s current nanny. However, when he was later asked about this in writing, Mr. Bersin responded as follows: “If I stated that Ms. S had an I-9 in August 2009, then I misspoke and apologize for any misunderstanding.” Subsequently, Mr. Bersin provided the committee staff with an I-9 for the nanny dated November 12, 2009. Also, during his August 2009 interview, Mr. Bersin informed the staffers that he and his wife had hired three nannies. However, the staffers learned the number was actually ten, six since 2006. In a “due diligence” meeting with the staffers on March 17, 2010, Mr. Bersin acknowledged the additional employees. There were some claims raised, and later dropped, by Mr. Bersin that the nannies were “independent contractors” so that I-9s were not required. So what’s the bottom line? As stated by the committee staff memo, “Mr. Bersin did not timely or completely prepare and maintain Forms I-9 for any of the ten household employees he employed as required by law.” Should Mr. Bersin be confirmed as the CBP Commissioner? Should President Obama immediately withdraw his nomination? We leave this to the Senate and President Obama to decide what to do. However, in our opinion, Mr. Bersin’s responses to the questions posed by the committee staffers given his record as a “no-holds-barred” prosecutor of immigration law violators reveal a lack of candor, and are the latest example of the hypocrisy of our nation’s “enforcement-only” approach to our immigration nightmare. The men and women who were prosecuted, convicted of federal crimes, and imprisoned as a result of Operation Gatekeeper were, for the most part, seeking to enter the U.S. for the same reasons as did most of our grandparents, to find employment and a better life for their families. The same goes for those who died in our deserts trying to avoid detection and criminal prosecution. These people pick our crops, serve us in hotels and restaurants, work in our factories and care for our children and our elderly parents. We benefit from their labor, yet instead of changing our laws to enable them to work legally in the U.S., we treat them as criminals. I am a former INS prosecutor, yet I’ve always known this to be true. My wish is that both Mr. Bersin and Congress will reflect upon the hypocrisy of our current immigration laws and start to see beyond our present “enforcement- only” approach. Then again, maybe I am dreaming…
Dr. P is a Graduate Veterinarian who obtained his D.V.M. degree in India and is now pursuing his Ph.D. in a Residency/Training program in Laboratory Animal Medicine in the U.S. He was approaching his 6th and final year of H-1B status, and if he were forced to leave the U.S., he would not have the time to complete his program. He wanted to know our opinion of the best immigration strategy for him to stay in the U.S. and finish his program.
After a detailed review of his background, we advised that he might be qualified to file an I-140 EB-2 Immigrant Petition on his own behalf as an Alien of Exceptional Ability seeking a National Interest Waiver (NIW). If his self- petition was approved, he would be eligible for post-6th year extensions of his H-1B status. Pursuant to AC 21, his H-1B could be extended beyond 6 years, in one-year increments, if an I-140 petition had been pending for more than 365 days by the time that he reached his 6th year H-1B anniversary. Alternatively, his H-1B status could be extended, in three-year increments, if his I-140 petition were approved and he was ineligible to apply for Adjustment of Status due to the unavailability of visa numbers.
Generally, persons who qualify under the second employment-based (“EB-2”) category (Workers Holding Advanced Degrees and Persons with Exceptional Ability in the Arts, Sciences and Business) are subject to the labor certification requirement. However, an exception exists if the person’s employment is in the “national interest”. To qualify for a NIW, the individual must be a professional holding an advanced degree or an alien of exceptional ability and his/her work must benefit the national interest of the United States.
The term “national interest” is not defined in the statute. However, certain factors are taken into account in determining national interest. These factors include the improvement of the U.S. economy or wages and working conditions for U.S. workers and/or education, health care, the environment and housing. A request by an interested government agency is an added factor which is given considerable weight by the USCIS.
It has become more difficult to obtain NIWs since 1998, due to the New York State Department of Transportation (NYSDOT) case. Since then, the USCIS scrutinizes these petitions very carefully and applies very restrictive criteria in evaluating a NIW petition. Among these criteria are the following: is the alien seeking employment in an area of substantial intrinsic merit and will the proposed benefit be national in scope?; would the national interest be adversely affected if a labor certification were required for the alien?; would it be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien?; and does the alien’s past record justify projections of future benefits to the national interest?
In Dr. P’s case, he holds a D.V.M. degree and has an exceptional record of conducting research in the field of Laboratory Animal Medicine. Thus, he qualifies both as a professional holding an advanced degree and as an alien of exceptional ability. He plans to seek employment in working with laboratory animals in biomedical research, which is an area of substantial intrinsic merit, and his proposed benefit will be national in scope. Furthermore, there is a serious national shortage of veterinarians trained for both clinically-related and research positions.
Dr. P was efficient and diligent at obtaining letters of recommendation and collecting the documents that we requested. This enabled us to prepare and document his petition thoroughly and carefully.
We were thrilled when the USCIS approved Dr. P’s National Interest Waiver petition in less than one month!
Below is what Dr. P wrote about our law firm on a web site which allows clients to review law firms:
“I got excellent service from this group. They are ‘the best’ in Los Angeles…”
Read more of our Immigration Success Stories.
This month’s Immigration Trivia Quiz is entitled “Making Television History: Immigrant TV Personalities“. The first person to correctly answer our quiz (and supply their biographical information) wins a free legal consultation with me before the end of June.
Thanks to a healthy dose of jet lag (My wife and I returned from walking on the Great Wall of China in mid-April.), I finally found the time to read the Supreme Court’s new decision in Padilla v. Kentucky.
Although I was impressed that Justice Stevens, in the majority opinion, found that criminal defendants who are not U.S. citizens have a 6th Amendment right to be informed by their criminal counsel as to the immigration consequences of pleading guilty to a particular crime, it struck me that the most likely effect of this decision may be for criminal attorneys to have each client sign a statement saying something like “I understand that by agreeing to plead guilty (or nolo contendre) to the above offense, I may be exposing myself to removal from the United States.”
Of course, the majority did differentiate between convictions where the deportation consequences are “clear” and where they are “unclear or uncertain”. Here’s the key quote:
“Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”
Of course, reasonable minds may disagree as to what is “clear” or “truly clear” and what is “unclear or uncertain”. Can you imagine a criminal attorney having to discuss the “categorical” approach versus the “modified categorical” approach with an immigrant client, perhaps in Spanish or Chinese? Most immigration attorneys have trouble even discussing such issues in English!
How about contrasting “removability” with “inadmissibility” and “212(c)” with “cancellation of removal”?
Isn’t there going to be a lot of people with 20-year-old convictions filing habeas petitions?
Fortunately, Justice Stevens reminded me of something that hadn’t crossed my mind in decades: the JRAD. For those of you who think that JRAD was a character in the first Star Wars trilogy, please allow me to explain that it is actually a “Judicial Recommendation Against Deportation”. I had forgotten about it since my INS Trial Attorney days in the early 1980s. Armed with a JRAD by a state or federal judge, a person could not be ordered deported because of a criminal conviction.
Seems to make a lot of sense to me. The Trial Judge is the person who knows about the defendant and his culpability. If he issued a JRAD, then the IJ doesn’t have to concern himself or herself with any “modified” or “unmodified” mumbo-jumbo.
This, however, is only one man’s opinion.
What is clear is that Padilla v. Kentucky is a landmark decision for immigrants who pled guilty or nolo contendre to various crimes, but who were never informed as to the immigration consequences of such crimes. Since the decision is retroactive, convictions which are decades old can be wiped off the record.
Many of these convictions will now be vacated by criminal attorneys working in conjunction with immigration counsel. We believe that many thousands of persons will be spared deportation because of this new decision.
Do you have immigration questions of general interest to our readers? Send them to
If your question is neither short nor general, please schedule a 30-minute legal consultation with me.
* Citizenship and Immigration Services (USCIS) The Immigration Service (USCIS) lists its processing times for immigration petitions and applications on their website. Most immigration applications and petitions must be submitted to one of the following USCIS Service Centers: (1) Laguna Niguel, California;(2) Lincoln, Nebraska;(3) Mesquite, Texas; and (4) St. Albans, Vermont and (5) the National Benefits Center in Missouri. These service centers periodically issue lists of their processing times for various types of petitions and applications. We link to the latest list issued by each service center. Warning: Processing times may appear faster on the official lists than they are in reality. To see how fast (or slow) your service center or local USCIS office is processing a particular type of petition or application, see Government Processing Times Page. Administrative appeals of most types of petitions and waivers denied by the USCIS are adjudicated by the agency’s Administrative Appeals Office (AAO) in Washington, DC. We link to the AAO’s most recent published processing times (April 1, 2010). * Department of Labor The Labor Department’s website contains a tab entitled “PERM Processing Times”. This enables you to see how long it is taking the Labor Department to complete its final review of standard PERM applications, audited cases, standard appeals and appeals where there are government errors. * Department of State The State Department’s website contains a “Visa Wait List” page which permits readers to choose a particular U.S. consular post and learn how long it takes the post to process various types of temporary, nonimmigrant visas.
Tam Ngoc Tran died on May 16th in a car accident. She was a doctoral student in American Civilization at Brown University.
I had a brief encounter with this intelligent and lovely young lady in 2006 when I visited UCLA to assist foreign-born students in finding solutions to their immigration problems. Each of the students told me his or her story. Most shared the following themes: They were all born in other countries and brought to the U.S. as toddlers. They grew up believing that they were born in the U.S. and that if they studied hard and got good grades, they could be anything they wanted. All were honor students in high school and were in the process of applying for financial aid to attend UCLA. That’s when they got the news that changed their lives forever.
Their parents told them that they were all “illegal aliens” in the U.S.
How could that be? They only spoke English. They were going to be doctors and lawyers and scientists. Now what was the use of studying? How could they even get jobs when they graduated from college? Return to the countries of their birth? They didn’t even speak the language.
Tam’s story was the most unusual.
Her father was an ardent anti-Communist in Vietnam. After the Communist takeover, her family became “boat people.” They were rescued at sea by a German ship and taken to Germany, where Tam was born. Had the ship been from the U.S. things would have turned out much differently for Tam and her family.
When Tam was six years old, her family came to the U.S. and applied for asylum. This was an unwise move on her father’s part since Germany had already taken them in. Their applications were denied. Her father tried to move the family back to Germany, but Germany said that by moving to the U.S., they were no longer willing to let the family move back. Finally, an immigration judge granted them “withholding of deportation,” meaning that they would not be deported to Vietnam, but would not be able to apply for green cards in the U.S. They would remain in permanent “legal limbo” in the U.S. This is not as unusual as it sounds. Over 300,000 people who have been ordered deported are still in the U.S. because there is no country to deport them to. Every year, Tam’s parents went to the INS and renewed their work permits.
Tam was a star student, and when I met her in 2006, she was working to save money to pay for graduate school. She was also an active member of IDEAS at UCLA. This group fights for the interests of undocumented students and for passage of the DREAM Act.
In 2007, Senator Richard Durbin (D-IL) introduced the bipartisan DREAM Act in the Senate. The DREAM Act would grant certain undocumented college students permanent residence in the U.S., but only if they had entered the U.S. before age 16 and had graduated from a high school in the U.S. This legislation, which has yet to make it through Congress, would have resolved Tam’s dilemma.
Senator Durbin featured Tam and two other students at press conference when he introduced the DREAM Act. Congressman Tom Tancredo (R-CO), active among the anti-immigrant forces in Congress, called on ICE to arrest all three students at the press conference and deport them. Tancredo stated: “Just because these illegal aliens are being used for political gain doesn’t mean they get immunity from the law.”
Senator Durbin replied by saying that “what does it say about America that a member of Congress would call on these young people to be arrested?…They should be given a chance.”
ICE wisely decided not to get involved. If they had, Tam could simply have shown them her government-issued work permit.
However, what happened next I did not learn until after I read that Tam had died in the car accident.
In 2007, Tam testified before Chairwoman Zoe Lofgren (D-CA) and the House Immigration Subcommittee. Tam’s photo appeared on the front page of USA Today.
Three days later, ICE agents arrested and detained her family. Only after Congresswoman Lofgren intervened and accused ICE of “witness intimidation” were her parents released from custody.
The anti-immigrant crowd called for Tam to go back to “her country.” Which country is that? Germany? Vietnam?
Here is what Tam said to members of the Immigration Subcommittee:
“I hate filling out forms, especially the ones that limit me to checking off boxes for categories I don’t even identify with. Place of birth? Germany. But I’m not German. Ethnicity? I’m Vietnamese, but I’ve never been to Vietnam. However, these forms never ask me where I was raised or educated. I was born in Germany, my parents are Vietnamese, but I have been American-raised and -educated for the past 18 years….
The truth is, I am culturally an American, and more specifically, I consider myself a Southern Californian. I grew up watching Speed Racer and Mighty Mouse every Saturday morning. But as of right now, my national identity is not American, and even though I can’t be removed from American soil, I cannot become an American unless legislation changes….
Graduation for many of my friends isn’t a rite of passage to becoming a responsible adult. Rather, it is the last phase in which they can feel a sense of belonging as an American….
Without the DREAM Act, I have no prospect of overcoming my state of immigration limbo; I’ll forever be a perpetual foreigner in a country where I’ve always considered myself an American.”
Like Dr. Martin Luther King, Tam reached the Mountaintop, but not the Promised Land.
Let’s urge Congress to pass the DREAM Act this year so students without papers can contribute to society after they graduate and not be consigned to perpetual immigration limbo.
Our April 2010 Immigration Trivia Quiz was entitled “Dancing Without Borders: Immigrant Ballet Dancers“. Here is our winning entry:
Hi Mr. Shusterman, That was a tough one to crack, but finally I did it. I got it finally and here are the answers:
- Lorna Feijoo, born in Havana, Cuba
- Mikhail Nikolaevitch Baryshnikov: Born in Riga , Lativa
- Sofiane Sylve : Born in Nice, France
- Mikko Nissinen: Born in Finland
How I came about the answers: Number 2 was the easiest even without the clue offered on your website. He is the most famous male ballet dancer that everyone recognizes and he came up immediately when I googled “Male ballet dancers”. Number 3 was the next easiest after going through scores of images in google images for “ballet dancers”, I found out who she was. Number 1 was pretty difficult. Some countless research through google images and google web helped me with the answer. Also the clue that one ballerina had a sister helped. Her sister is the beautiful Lorena Feijoo. Number 4 was the toughest of all. Probably the innumerable images I scored through gave me a sore eye and I almost gave it up. But finally I found a few names on a Dance website and googled their images and found Mr. Nissinen, the current Director of Boston ballet. Well it was fun as I had absolutely no knowledge of ballet before; now know quite a bit about it. Thank you for allowing me to participate. Some info about me: I am a Physician in California and an Immigrant from India . My name is Vijay. Currently on an H-1 Visa. I have been a subscriber of the newsletter for over 2 years now though this is my first attempt at solving a trivia quiz. Vijay
Congratulations, Vijay! I’m impressed with your tenacity!
Certified Specialist in Immigration Law, State Bar of California (1988 – present)
Former U.S. Immigration & Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, California 90017
“People should remember that undocumented immigrants are witnesses in all kinds of crime, and this does not just affect them. If people don’t come forward to help the police solve and protect against crime, no matter what their status, then we are doomed to failure. It (the new Arizona law) threatens to destroy a lot of the work that has been done.”
- – Los Angeles Police Chief Charlie Beck
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May 26, 2010
Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.