U.S.-Born Kids Of Deported Parents Struggle As Family Life Is 'Destroyed'

I stumbled upon an article with this very name by Helen O'Neill, a New York based national writer for The Associated Press. The article was published in Huff Post's “Latinovoices” section and can be found using the following link: http://www.huffingtonpost.com/2012/08/25/us-born-kids-deported-parents_n_1830496.html

Whether one agrees or disagreed with the author's angle of view, the problem of children of illegal immigrants is a pressing and heartbreaking one. Like many other Immigration-law related issues, the problem of broken illegal immigrant families with US-born children does not have a simple solution. In fact, it is always a tragedy, when children have to be separated from their parents, especially so when they end up in foster care. The ill effects of such stress on the young and vulnerable are hard to underestimate. Because most people feel compassion and heartache when confronted with stories of babies torn from the hands of their crying mothers, the issue is very appealing and is, indeed, in sore need of immediate resolution.

However, it is important to remember that, in many cases, the very reason for the problem does not lie in the US Immigration Law. Instead, it is caused by the irresponsible actions of illegal immigrant parents and their indifferent attitude toward the legalization of their status in the USA. All of these parents have either arrived in the country illegally, or remained in the country illegally. Most of them had been driven by economic reasons and a desire for better life, both of which are very understandable. Many of these individuals had been ordered deported or removed from the USA years ago, yet did nothing about it. Some may have had legal avenues to remain in the country, but never pursued them. What was their hope? Was it that they plainly be forgiven and granted legal residency for having born US-citizen children? Did they give any thought whether that would help their noncitizen children they had brought here illegally? After all, such a precedent had already been created during President Reagan's administration. One can only wonder how well that had gone and whether that program indeed created the incentive for people to keep breaking US immigration laws in a hope that they would be eventually legalized. Indeed, had the US laws been changed again in this manner, an even larger “Pandora 's Box” would have been opened. An atmosphere of impunity, permissiveness and total disregard for the laws would again be encouraged.

It is important to remember, that, in most cases, it was by ignoring the US immigration laws that the parents landed themselves and their children in trouble. Under most other circumstances, people would hardly argue that a person, convicted of breaking law, should not face punishment. In many criminal cases, such punishment is often associated with separation of the convicted from his or her family and especially, children as well as society at large. Breaking the law should lead to penalty. Should it not?

For many reasons, life in the US is more attractive for those who decide to come and stay here illegally than life in their respective homelands. It is understandable why many illegal immigrants would want to raise their kids in the US and not in their countries. However, should that mean that anyone can come and stay here illegally, ignoring and breaking the rules, laws and procedures others have to obey? Or, should everyone be required to follow the law?

The only way to make people respect the law of the land is to enforce it. All countries do it, and many deport illegal immigrants and break up families, with utter lack of humanity and total disregard for human rights. See, for example, http://enews.fergananews.com/article.php?id=1658. I think the United States can barely be accused of not providing proper safeguards to the rights of noncitizen. Immigration courts are working hard to ensure that people are not deported from this country without having been afforded an opportunity to present their claim for a relief from deportation, if they have any. The problem of illegal immigration is global. Everywhere there is a better economic opportunity, an influx of illegal immigrants ensues and creates this problem, regardless of the country's efforts to avoid it.

On the other hand, it is also true that children should not be responsible for their parents' actions. A child brought to this country by his or her parent at a young age, as a general rule, had no say in the matter and should not be kept responsible for the actions of the parents. Yet, unde the current law such child continues to suffer from the consequences of the parents' actions for the rest of his or her life in the USA. Having been brought up in this country, they cannot get employment authorization; apply for federal loans and do many other good things Americans take for granted. When they become adults, they often discover that in addition to dealing with normal life difficulties that most young adults have to face, they have to deal with the harsh reality of illegal life, which they had not bargained for. Many of these young adults have no connection to their countries of origin and very little knowledge of their respective cultures and people. Most of them identify themselves as Americans and know no other country. Deporting these people from the United States, though legally permissible, seems to be morally wrong and tantamount to holding children responsible for the illegal actions of their parents.

So, the hardest task is to reconcile these two fundamentally irreconcilable truths and find fair, reasonable, humane and acceptable ways of dealing with the problems of the children of illegal immigrants. There will never be any universal solution, except for one: illegal immigrants should take responsibility for their own lives and most importantly, those of their children they brought here illegally. Such parents should make every legitimate effort early on to obtain legal status in the USA, making such task into their number one priority. In many instances, timely and promptly sought professional legal help will eliminate the danger of heartbreak and family separation in the future.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Refugee Status and Removal Proceedings

The Board of Immigration Appeals (BIA) recently issued a precedent decision that addressed removal proceedings for aliens that entered the United States as refugees. Matter of D-K, 25 I&N Dec. 761 (BIA 2012). In the Matter of D-K, the BIA first determined “that a refugee who has not adjusted status to that of a lawful permanent resident (LPR) may be placed in removal proceedings without a prior determination by the Department of Homeland Security (DHS) that the alien is inadmissible.” Id. This decision overruled prior BIA precedent set in the Matter of Garcia-Alzugaray, which held exclusion proceedings had been improperly initiated against the alien as “the former Immigration and Naturalization Service (INS) failed to terminate the alien's refugee status or determine him to be inadmissible as an immigrant after examination under oath by an immigration officer.” Id. at 763-764 citing Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986). The BIA found the reversal was necessary as the Federal Regulations pertaining to refugees had been “amended to streamline the adjustment process, making the decision whether to interview a refugee seeking permanent resident status a discretionary determination for DHS.” Id. at 764.

The BIA further relied upon the fact that neither the Immigration and Nationality Act (INA) §209 nor the Federal Regulations “explicitly state that termination of refugee status is necessary before an alien is placed in removal proceedings.” Id. In the Matter of Smriko, the BIA relied upon 8 C.F.R. §209.1(e) to conclude “that a refugee who had adjusted status could be placed in removal proceedings even though his status as a refugee was never terminated.” Id. citing Matter of Smriko, 23 I&N Dec. 836, 839-840 (BIA 2005). Specifically, the BIA focused on the fact that INA §239 “refers to 'the alien' and does not distinguish between aliens who are refugees and other aliens.” Matter of Smriko, 23 I&N at 838. As such, the DHS may properly initiate removal proceedings against an alien who is a refugee without taking the preliminary step of determining the alien is inadmissible to the United States.

The second issue addressed by the BIA was whether a refugee placed in removal proceedings should be subject to charges of deportability/ removability or inadmissibility. The BIA determined that when removal proceedings are initiated against an alien who entered the United States as a refugee the charges against the alien in the Notice to Appear should be removability under INA §237 rather than charges of inadmissibility under INA §212. Id. Pursuant to INA §237(a) “any alien in and 'admitted' to the United States shall be removed if the alien falls within one or more specific enumerated classes of deportable aliens.” Id. at 765. An “admission” is defined as “the lawful entry of an alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A). Refugees are admitted into the United States at the discretion of the U.S. Government. Any alien who believes he or she qualifies for refugee status “may apply for 'admission' with the DHS or consular office in the area he or she is located.” Id. at 766 citing 8 C.F.R. §207.1(a) and 8 C.F.R. §207.2(a).

In the Matter of D-K, the BIA acknowledged “the conditional nature of a refugee's status.” Id. at 767 (emphasis in the original). An alien's admission as a refugee is conditional due to its impermanent and contingent nature. The BIA nonetheless specifically held “to the extent that the pertinent language is ambiguous, we believe that a construction recognizing that a 'conditional admission' is nevertheless a form of 'admission' for purposes of section 237(a) of the Act would best comport with the overall structure of the statute.” Id. at 768. In making this conclusion, the BIA focused on the fact that a refugee makes “a lawful entry into the United States after inspection and authorization by an immigration officer.” Id. at 769. While a refugee must be reinspected after a year “for admission in a different status, that of a lawful permanent resident, this requirement does not undermine his or her initial admission as a refugee under section 207 of the Act.” Id. As such, the BIA concluded a refugee was “present in the United States pursuant to a prior admission and any charges in the notice to appear must be based on the grounds of deportability under section 237 of the Act.” Id. Thus, a refugee who ultimately becomes an LPR will be “admitted” twice. The first admission will be a conditional admission as a refugee pursuant to INA §207. The second admission will occur after reinspection and adjustment of status to an LPR pursuant to INA §209(a). After each “admission”, the alien would be subject to removal proceedings under deportability charges not inadmissibility.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

K Visa Derivative Can Only Adjust status Based Upon Marriage Between K Petitioner and K Visa Principal

The Board of Immigration Appeals (BIA) has unequivocally held an alien who entered the United States on a K-4 non-immigrant visa can “only adjust his or her status to that of a lawful permanent resident based on the Petition for Alien Relative (Form I-130) filed by the United States citizen K visa petitioner.” Matter of Jean Ro Saclolo Valenzuela, 25 I&N Dec. 867 (BIA 2012). In the Matter of Jean Ro Saclolo Valenzuela, the respondent's mother married a United States citizen who petitioned for both the respondent and her mother to receive K non-immigrant visas. Id. at 868. The respondent was issued a K-4 non-immigrant visa, which she used to enter the United States on December 28, 2003. Id. She was authorized to remain in the United States until December 27, 2005. Id.

On May 2, 2007, the respondent's mother adjusted her status adjusted her status to a lawful permanent resident (LPR) based upon her marriage to the K non-immigrant visa petitioner. Id. The respondent's Form I-130 filed by the K non-immigrant visa petitioner was denied as the respondent failed to appear for an interview. Id. The respondent subsequently married and sought adjustment of status through her marriage. Id. Though the respondent's Form I-130 had been approved by the Bureau of U.S. Citizenship and Immigration Services (USCIS), the Immigration Judge (IJ) denied her application for adjustment of status. Id. The IJ found the respondent was “ineligible to adjust her status on any basis other than the Form I-130 filed by the K visa petitioner.” Id.

The respondent appealed to the BIA arguing she was eligible to adjust her status based upon her marriage to a United States citizen despite entering the United States with a K-4 non-immigrant visa, because the statutory language of Immigration and Nationality Act (INA) §245(d) was ambiguous. Id. at 869. Pursuant to INA §245(d)

The Attorney General may not adjust [ ] the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216 of this title. The Attorney General may not adjust, under subsection (a) of this section, the status of a nonimmigrant alien described in section 101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) of this title.

INA §245(d). On appeal, the respondent argued the statute only referenced the primary K non-immigrant visa beneficiary. The respondent argued “as long as the principal beneficiary of the K-1 or K-3 visa petition adjusted his or her status in compliance with section 245(d), a derivative beneficiary of the K-1 or K-3 visa holder may adjust status on any valid basis.” Id.

However, the BIA found the language of INA §245(d) was not ambiguous as it “expressly includes 'the minor children' of a principal beneficiary.” Id. Thus, INA §245(d) “applies to any K visa holder, whether a principal beneficiary or a derivative.” Id. While the BIA has previously identified ambiguities in INA §245(d), it has repeatedly found “the language in section 245(d) of the Act is unambiguous to the extent that it clearly precludes a [K visa holder] from adjusting status on any basis other than marriage to the K visa petitioner.” Id. at 870 citing Matter of Sesay, 25 I&N Dec. 431, 433 (BIA 2011). See also Matter of Le, 25 I&N Dec. 541 (BIA 2011).

The respondent further argued “the restrictions on adjusting status apply only to the principal beneficiary of the K visa petition, and that once the principal beneficiary has adjusted status based on his or her marriage to the K visa petitioner, the restrictions are 'lifted' as to any derivative beneficiaries.” Id. However, such an interpretation of the statute would place the K non-immigrant visa derivative beneficiary in a better position than the K non-immigrant visa principal. Id. Though Congress' goal through the Immigration Marriage Fraud Amendments Act of 1986 to combat marriage fraud would be achieved “once the K-3 nonimmigrant adjusts status based on a bona fide marriage to the K visa petitioner”, Id., it nonetheless opted to create “a broad prohibition on the adjustment of status of K visa holders on any basis other than the marriage between the K visa petitioner and the principal K visa beneficiary.” Id. at 870-871. See also INA §245(d). The express intent of Congress was to limit all K non-immigrant visa holders to adjustment of status based upon the K visa petitioner and the principal K visa holder. Id. at 871.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Deferred Action Is Here

Today, the Bureau of U.S. Citizenship and Immigration Services announced the process for filing for requesting deferred action for aliens who arrived as children. The Obama Administration-had previously announced a deferred action process for young aliens considered low enforcement priorities on June 15, 2012. Deferred action is a discretionary determination to defer removal of an individual as an act of prosecutorial discretion. Deferred action is not the DREAM Act. It is important to remember that deferred action does not confer lawful status upon an individual. It does not provide a path to lawful permanent residence and/ or United States citizenship.

An individual may request consideration for deferred action if you meet the following criteria:

1.     You were under the age of thirty-one (31) as of June 15, 2012;
2.     You came to the United States prior to reaching your sixteenth birthday;
3.     You have continuously resided in the United States since June 15, 2007 through the present time;
4.     You were physically present in the United States on June 15, 2012, and at the time of filing your request for consideration of deferred action with the Bureau of U.S. Citizenship and Immigration Services;
5.     You entered the United States without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6.     You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7.     You have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Aliens who demonstrate that they meet the above guidelines may request consideration for deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

To request deferred action, you must file Form I-821D Consideration of Deferred Action for Childhood Arrivals. This Form must be supported by evidence to establish you meet the above-referenced criteria. There is no fee for the Form I-821D Consideration of Deferred Action for Childhood Arrivals. However, applicants will be required to pay a biometrics servicing fee of $85.00. If you wish to request employment authorization, you must also file a Form I-765 Application for Employment Authorization and Form I-765WS Worksheet. You will need to pay a filing fee of $380.00 to file a Form I-765 Application for Employment Authorization.

While deferred action can be beneficial for some aliens, it is important to remember that deferred action does not confer lawful status upon an alien and can be terminated at any time at the Department of Homeland Security's discretion. Only Congress, through the enactment of legislation, can create a path to lawful permanent residence status or citizenship. Deferred action does not provide a permanent solution to young aliens present in the United States without lawful status. As such, it is important to discuss your unique facts with an experienced immigration attorney prior to applying for deferred action.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com