Naturalization Security Checks—when the government does the wrong thing for the right reasons

As part of the naturalization process, all aspiring
candidates are required to provide their fingerprints for verification in the
law enforcement databases maintained by the Department of Homeland Security and
the Department of Justice, among others. 
In addition, the applicant must have his name checked across several
lists to make sure no ‘hits’ reveal them to be identities or aliases of bad
guys.  With a thorough security check,
the DHS prevents bad guys from attaining the coveted ‘citizen’ status, along with
the protections they would receive under the United States Constitution.  One would believe that this is the type of
well-reasoned, well-supported explanation that would almost verge on being a truism.  It is something that one can hardly object to
these days.

So why is a little old lady threatening to go to Federal
court and naming the Attorney General, the Director of the Department of Homeland
Security, the Director of the Citizenship and Immigration Services, among
others as co-defendants in a federal lawsuit?  It just so happens that the lady
comes from the Middle East and bears a Middle Eastern name.

Tough luck, you might say. 
Let her wait a bit longer while we make sure she is not a supporter of
terror activities.  You might be
surprised to learn that she understood the government’s position.  It would be understandable if her application
were somewhat delayed because of the rigorous name check and fingerprint
analyses that must be run.

But she never thought it would take eight years.

In eight years, the government had essentially bogged down her
application, denying her right to be considered for naturalization as a United
States citizen.  No prior record; her whole
family in the U.S., no history of raising a finger except to gauge the mood of
the next administration.  She had even
passed the English language and Civics/History test.  Countless inquiries deluged the Immigration
Services Officers.  They all came back
with the same words.  Words that became
an exasperating death knell for her hopes of ever being truly ‘American’:

“We are awaiting a security check.”

After unsuccessfully trying all of the lower levels of the
USCIS bureaucracy, we turned to our liaison contacts in the American
Immigration Lawyers Association, weighed in, trying to determine the reason
behind the inexplicable delay in the naturalization process.  The investigations ran dry, however, and were
smothered in “security check” responses. 

Fortunately, when it comes to the
naturalization process, the Immigration Service does not necessarily have the
last word.  There is a section of the
U.S. Code which allows the Federal court to intervene and essentially divest
the Department of Homeland Security of its jurisdiction.  In other words, the court takes over the case
and has a hearing where the heads of the Justice Department, the DHS and the
USCIS are named as defendants and are called before the judge to justify the delay.

Now, if there is one thing an
agency is loathe to do is give up its power. 
In a Petition for Naturalization, this is exactly what happens.  A Federal Judge is given the power to naturalize
the petitioner right then and then, if, in her or his judgment, the petitioner
has met the requirements for naturalization to United States citizenship.

The government knows this, and
rather than go through an embarrassing court procedure to justify what is
essentially unjustifiable, it will sit down and take a hard look at the “sticking
points” of the application.  By “sticking
points” I am referring to the TRUE reasons the application is being held up and
the PRETEXT used to hold it up.  While
the true reason may be inferred by the reader (and suffered by our client) the
pretext turned out to be that the USCIS could not obtain a clear set of
fingerprints.  That’s it.  During the past seven years of an old woman’s
life the only real problem was that her fingers, gnarled with age and decades
of toil, could not provide good prints for the USCIS's fancy new prints machine.

The DHS stepped in and ordered
that new fingerprints be taken as soon as possible and, failing a good result,
that criminal background checks be run at every jurisdiction she had lived in
the United States.

We presented ourselves at the
USCIS field office with a mixture of annoyance and guarded optimism.  We expected some new security check stumbling
block.  We were in for a big surprise.  In a dramatic reversal of their
years-long miring in red tape of the naturalization application, our client was
told she had received final clearance to be naturalized.

On that same, sunny day, during a short
ceremony attended by the applicant and her son, who had driven her to the
appointment, our client was naturalized as a Citizen of the United States.

Abused and Battered Immigrants DO have a Choice

Her will was slowly, inexorably eroding to nothingness.  The insults. The
threats. The beatings.  The demeaning
tone of his demanding voice telling her she could walk out the door at any
time—and that Immigration would be waiting for her outside.  She could leave and forget about the child
she left behind in her home country.  A
child she had not seen for three years.  She was trapped.  No papers,
no hope, no escape.  He was a United
States Citizen.  He knew the phone number
of the immigration officers that could come in at any time and take her away to
be deported.  She could
picture the last three years of agony, toil, and humiliating sacrifice
withering away as she returned rejected, defeated, and penniless.

He had long ago taken
away her passport and her birth certificate. 
He knew she couldn’t do anything without that.  He had promised to file her immigration
papers, but she knew now that it was just a lie.  Caged in a prison devoid of walls, she wailed
silently and unseen while the days and months became, what, three years
already?

Every year, thousands of immigrants suffer mutely, victims
of unscrupulous spouses that take advantage of the immigrants’ nonexistent
position of power.  But appearances can
be deceiving.

In 1994, the Violence Against Women Act (VAWA) was passed
into law.  The intention of this piece of
legislation was to provide a way for abused immigrants to escape their
tormentors.  Normally, a family petition
needs just that—a petitioner—to request the benefit for the immigrant (also
known as the beneficiary).  The way the
Immigration and Nationality Act (INA) was structured at the time, only through
the active and willing participation of the petitioning spouse could an
immigrant obtain family based immigration benefits.  VAWA made it possible for the victim to file
a petition on her (or his) own behalf.  The form is I-360 and can be obtained from the USCIS website at http://www.uscis.gov.  Protection from deportation and counseling resources were made available as part
of the aid provided to the victims.  The
result was a sliver of hope shining in a pitch-dark tunnel.

While the VAWA made significant inroads toward correcting
the plight of millions of immigrants subjected to extreme cruelty or abuse, it
was far from a perfect fix.  Many
oversights in this important law were addressed in the amendments to the VAWA
(Violence Against Women Act of 2000). 
Nicknamed the VAWA II, it fixed provisions that left abused immigrants unprotected
if they, among other situations, divorced the abuser before the filing of the
self petition.  It also provided renewed
funding for many support programs and permitted the adjustment to permanent
residents even if the victim had entered illegally.  It also lowered the standards that needed to
be met to show hardship if removed from the United States.

For the immigrant victim of a United States Citizen or Legal
Permanent Resident, the VAWA presents an opportunity to end the cycle of
violence and achieve a measure of social justice.  Help is available through the
National Domestic Violence Hotline on
1-800-799-7233 or 1-800-787-3224 [TDD]
for information about shelters,
mental health care, legal advice and other types of assistance, including
information about self-petitioning for immigration status.

So you’ve been deported and nobody told you?

We often see the same scene played out with different characters.  A person walks into our office and says they
have not heard from the Immigration Service in a long while.  They’ve called their 800 number, they have
visited the field office, they have checked on-line.  Their case seems to be in “legal limbo”.

Imagine their surprise when we call the Automated Query
System of the Immigration Court and learn that, according to their
computers, the person was deported months, or perhaps years ago.   He or she never received a letter, a phone
call, not even a warning on their visits to the USCIS field office.  Their whole case has been summarized by a
one-sentence automated blurb that dispassionately drawls, “The Immigration
Judge order you removed on [date]”.

For most people, this is a very hard thing to hear,
particularly those who have diligently asked after their case through one of
the many channels the government puts at immigrants’ disposal.  The truth, however, is that these “channels
of communication” are more like optimistic generalizations that cannot be
relied upon to ascertain the actual status of a case.  When the harsh reality comes crashing down,
one might think that the battle is over before it was actually begun.  Once ordered deported, there seems to be
little chance of obtaining any immigration relief.

So, what to do if you suddenly find out you were deported?  The solution is to retrace the steps of the deportation
or removal order.  This means going
through every bureaucratic step in reverse, fixing and correcting the government
mistakes that led to Immigration Court. 
This is where an attorney can come in handy.

An immigrant may authorize an attorney to represent her or
him before the Immigration Court.  This
is done using a form called EOIR-28.  In
this form, the attorney informs the court that he or she has been retained to provide
legal services on an immigrant’s behalf. 
The attorney has several options. 
The record of the court file may be inspected, or, if, enough details
are known, file to have the order of removal rescinded (taken back) and an immediate stay of
the deportation order put into place.  Of
course, this is not merely a matter of asking the court to reopen a case “just
because”.  The alien must provide a convincing
argument and, if available, proof, that they have never received notice of the
removal or deportation proceedings. 

Lack of notice is one of the grounds for reopening a case at any
time, and it is crucial to bolster the request with evidence that the alien has
dutifully informed all changes of address, and that copies or records of status
inquiries be submitted.  In many cases, a
sworn affidavit may have to be provided as the alien must state, under penalty
of perjury, that notice was never received. 
The government is then given an opportunity to respond to your request (or
“motion”) to reopen.  They may agree and
state that they do not oppose a reopening or they may challenge your
allegations by providing what they believe is proof that they did indeed give
proper notice.  These are definitely deep
waters that an immigrant should preferably tread with the aid of a competent attorney.

The proceedings at the Immigration Court will strip the
order of removal from your case file, but that does not mean your case is
finished.  Remember how the case arrived
at the Immigration Court?  That’s right.  You still need to have the USCIS look into the
denial of your case so that the reasons for the denial are corrected and overcome.  Sometimes it is simply a matter of correcting
a typographical error and sometimes it is a matter of evidence requested that
was never received. 

Regardless of the
reasons, the USCIS cannot give you an immigration benefit unless you prove that
you are eligible.  So, if you did not
receive that request for evidence asking for a clearer copy of your birth
certificate or a criminal record, you are still ultimately required to provide
these documents.  You do not
receive a free pass because of all the hoops you have had to jump through.

In conclusion, a recently discovered order of removal or
deportation is a very serious matter: it can interfere with employment, travel,
and general livelihood of an immigrant.  It
is not, however, the end of the road. 
There are ways to “remove” orders of removal, particularly in cases
where no notice was ever received.  With
patience, diligent record-keeping, and tenacity, you can reconstruct your case
and avoid being permanently removed from the United States.

Haiti TPS: Critical Dates and Addresses

The Department of Homeland Security (DHS) has issued the official notice on the Federal Register specifying the critical dates for Haitian Temporary Protected Status (TPS).

As part of Haiti’s designation for TPS, DHS has informed that:

  • 01/21/2010 – Start of TPS application period
  • 07/20/2010 – End of the TPS registration period (180 days after start)
  • E-Filing Possible? — No, form must be mailed in
  • Mailing Addresses

            If you live in the state of Florida:      

                US Postal Service:       USCIS
                                                 PO Box 4464
                                                 Chicago, IL 60680–4464

                Express mail and
                courier deliveries:     USCIS,
                                                Attn: Haiti TPS,
                                                131 South Dearborn, 3rd Floor
                                                Chicago, IL 60603–5520

                If you live in the state of New York:

                US Postal Service:     USCIS
                                                PO Box 660167
                                                Dallas, TX 75266–0167

                Express mail and
                courier deliveries:     USCIS
                                                Attn: Haiti TPS
                                                2501 S. State Hwy. 121 Business, Suite 400
                                                Lewisville, TX 75067

           

                All others:        

                US Postal Service:      USCIS
                                                PO Box 24047
                                                Phoenix, AZ 85074–4047

                Express mail and
                courier deliveries:     USCIS               
                                                Attn: Haiti TPS, 1820
                                                E. Skyharbor Circle S, Suite 100
                                                Phoenix, AZ 85034

After nineteen years of looking for answers, we ask the right question

We recently had a case which illustrates the rather obscure
way an immigration attorney can be of help. 
We received a young lady who had been to many attorneys asking the same
questions.  She had entered the country
illegally when she was a very young girl. 
Now, nineteen years later, with a husband (a United States Citizen) and their
young child (also a U.S. Citizen), she was being told repeatedly that she had
no recourse.  Conventional wisdom from
the sources she was consulting was that once section 245(i) of the Immigration
and Nationality Act expired on April 30, 2001, she was out of luck.  Immediately upon telling these people that
she had entered illegally, she was essentially ushered out the door; no visa,
no hope.

The Long Hand of the Grandfathering Law

But our heroine had one more stop to make.  As she entered our offices, she was understandably
crestfallen, and, to be fair, we initially felt her case was not eligible for
adjustment.  Her entry had been illegal
(what is called Entered Without Inspection—or EWI) and the law that allowed an
illegal entrant to adjust had ended.  It
is then that we asked a routine question regarding the procedural history of
her case:

“Has anyone in your family, other than your husband, ever file
a petition on your behalf?”

Her answer was as nonchalant as it was staggeringly
important:

“Sure.  My mom, but
that was a very long time ago, that doesn’t count anymore.”

And yet it did. 
According to USCIS policy documents, upon expiration of the LIFE Act enacted
at the end of 2000, any person who had a pending immigrant petition or labor
certification would be able to use the part of the law that allowed illegal entrants
to adjust their status–even after it was gone.  In short, that
petition filed by her mother many, many years ago proved to be the link that
would allow her to be grandfathered and use INA 245(i) to legalize her status.

Although skeptical at first, we convinced her that she
needed only to file an Adjustment Application with the special evidence
required by the LIFE Act and she would be adjusted.  After several months of administrative
processing, she received her Green Card two weeks before the New Year.  She also received her Social Security card
and put a down payment on a home.  With
her new credentials, she is now in school and studying while working—the promise
of the American Dream written on her smile.

What We Learned

No matter what people tell you, make sure you always seek
the advice of competent counsel, and DON’T be afraid to ask for a second
opinion; or a third, or a twenty-third. 
Although this person’s case had many unique elements, only a thorough,
honest and exacting history of your case can ensure that your lawyer has the
best chance to pull a residence out of a hat.