Family and Citizenship Marital Disharmony VAWA Petitions

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Vol. 26 / No. 6 NOVEMBER/DECEMBER 2007TodayImmigration Law

6 President’s PageEnforcement Only Fall-out: On-the-Ground Report from Reno

8 Pro BonoMinnesota Advocates for Human Rights

42 Reader’s CornerNolo Press Tackles Immigration in Self-Help Books

46 Practice Pointer Preparing a Successful VAWA Self-Petition

50 Practice ManagementPassion and Perseverance Amid Immigration Crisis

54 Legal ActionThird Circuit Adopts “Reasonable Likelihood” Standard for Ineffectiveness of Counsel Claims in Removal Proceedings

60 Status Checks

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Pro Bono Profile: Meet Alan Goldfab

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Advertisers Index p. 58

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We Asked for Workers But Families CameTime, Law, and the Family in Immigration and Citizenship

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22 Marital DisharmonyImmigration Consequences of Separation and Divorce

by Jonathan S. Greene, Cheryl R. David, and Suzanne Tomatore

12

by Michele R. Pistone and John J. Hoeffner

Preaching to the Unconverted: Americas need for Skilled Foreign workers

departments

4 immigration Law today novemBer/decemBer 2007

Managing editor tatia L. gordon-troy

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Contributors y. Judd Azulay, Dan Berger, Kathleen campbell walker, nick chavez, cheryl David, Brian green, Jonathan greene, Phyllis gould, John Hoeffner, Leslie Holman, Hiroshi motomura, Kathleen moccio, Angelo Paparelli, michele Pistone, stephen reich, mark silver, suzanne tomatore, Lun tonsing, rebecca whiting, stephen yale-Loehr

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AILA’s Immigration Law Today (issn: 1532-1398) is published six times a year by the American immigration Lawyers Association, 918 F street, nw, washington, Dc 20004, (202) 216-2400. copyright © 2007 AiLA. All rights reserved. no part of this publication may be reprinted or otherwise reproduced without the express permission of the publisher. “AiLA” and the AiLA logo are registered trademarks of the American immigration Lawyers Association. Periodicals postage paid at washington, D.c. PostmAster: send address changes to immigration Law today, AiLA, 918 F st., nw, washington, Dc 20004Subscription Information and rates: Annual subscription rate (six issues): $72. single issue price: $16. Additional charge for delivery outside continental United states. call 1-800-982-2839 for details. A subscription to Immigration Law Today is included with AiLA membership.

AIlA NAtIoNAl oFFICerS

President Kathleen c. walker

President-elect charles H. Kuck

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2nd Vice President David w. Leopold

treasurer eleanor Pelta

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executive Director Jeanne A. Butterfield

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TodayAILA’sImmigration Law

Action Bail Bondspu

page 4


president’s page / by Kathleen Campbell Walker

Know your rights in Actionas we watched the news in Tahoe and concluded our aILa executive commit-tee meeting, it was apparent that help was needed. Through contacts forged by pre-vious coalition and advocacy work, along with help from american Immigration Law Foundation’s (aILF) Legal action Center director Nadine Wettstein, aILa members and National staff managed to get word out in a few hours that we would conduct a Know your Rights presentation in Reno that same night. We were met by around 100 family members and inter-ested parties at a community gym for the presentation. The fear in the room was palpable. Many undocumented mothers and fathers were under extreme stress to determine their options and to plan for the care of their U.S. citizen children. aILa Immediate Past President Carlina Tapia-Ruano, Secretary Laura Lichter, Second Vice President david Leopold, and Nevada Chapter Chair Rex Velasquez did a marvelous job translating and pro-viding kind and sympathetic responses to tearful and frustrated inquiries.

Prepping employers and employeesSince the annual conference in orlando, several aILa committees have worked to develop materials and programs to

support members’ needs—both from an employer and an employee perspective—in the proliferation of worksite raids. For employees, chapter chairs and national committees have worked on developing an aILa worksite action plan to help co-

ordinate the support that aILa National and aILF can provide through liaison, media, advocacy, and litigation. For em-ployers, aILa submitted its comments on the proposed no-match regulations, and national committees conducted the worksite enforcement conference in Scottsdale, aZ, in November.

Put to the testRecently, the new worksite action plan was put to the test when the ICE raids of del Monte in oregon and Koch Foods in ohio occurred. Each incident has helped us hone our responses. ohio Chapter Chair Mark Nesbitt did an in-credible job coordinating aILa support

to the various community organizations assisting detainees and their families. or-egon Chapter Chair Stephen Manning responded accordingly in oregon. Both efforts were aided by aILF and aILa National staff. Using information shared by chapters responding to earlier raids in Colorado, Massachusetts, and else-where, we were better able to anticipate how to approach the usual dual criminal and civil challenges of the raids and the coordination of community responses, political mobilization, media exposure, and litigation support to those detainees who were quickly moved from one part of the country to another.

Wasting Scarce resourcesBottom line, using scarce ICE resources to focus on Mexican-national food ser-vice employees shows how broken our current immigration system is. We want legality to be the norm and our borders to be “secure” to the degree reasonably possible. But shooting ourselves in the foot economically in order to show we are now “strong” on enforcement to those for whom the application of discretion is an anathema is just flat wrong. While we wait to find a presidential candidate who can address our broken immigration system with a balanced approach, we must do our best to support those on the ground responding to the climate of fear being created in this country after Con-gress failed to pass rational immigration reform. I am grateful to have taken part in Reno’s Know your Rights campaign, and know that all of us in that communi-ty gym will never forget what we learned and experienced that fateful night. ILT

Kathleen Campbell Walker is a partner in and chairperson of Kemp Smith, LLP’s immigration department in El Paso.

Using scarce ICE resources to focus on Mexican-national food

service employees shows how broken our

current immigration system is.

Enforcement only Fall-out: on-the-Ground Report from Reno

On my way to the aiLa FaLL conFerence and execu-tive committee meeting in Tahoe last September, I never anticipated a close encounter of yet another worksite raid. But after landing in

Reno, we heard about a coordinated U.S. Immigration and Customs Enforce-ment (ICE) raid of 11 Mcdonald’s restaurants in the area, and 54 employees were detained as a result. Reno’s mayor, Robert Cashell, stated that the im-pact on Reno’s economy would be devastating if the undocumented workers were not able to continue to work in the area. Unfortunately, the number of nonprofit agencies and immigration lawyers to respond to the impact of the raid was not adequate even in this highly populated city.


pro Bono / Kathleen Moccio

Minnesota advocates for Human Rights Building on a Tradition of Social Justice

the Action takenThe Minnesota advocates was founded in 1983 in response to the scope of human rights violations around the world. For nearly 25 years, Minnesota advocates has effectively harnessed Minnesota’s special sense of social justice to promote human rights at home and abroad, with vital sup-port and leadership provided by aILa’s Minnesota/dakota Chapter. Since the organization’s inception, aILa members have continuously served in leadership positions and volunteered as mentors, pro bono attorneys, speakers, and train-ers. Their commitment has been instru-mental to the development of Minnesota advocates’s programs.

one such program is the Refugee and Immigrant Program. It started in the mid-1980s when a group of local immigration attorneys began raising concerns that the number of asylum-seekers far outweighed the immigration bar’s ability to provide services. However, true to Minnesota’s tra-dition of social justice, these aILa mem-bers did not just talk about the problem—they acted on it. These attorneys worked tirelessly together to establish the asylum project. They donated their time and re-sources to develop trainings and provide pro bono attorneys with the materials and skills necessary to represent asylum-seekers. They also took pro bono cases and served as mentors.

the Good Deeds PerformedMinnesota advocates annually provides free legal services on more than 1,000 im-migration cases, including between 400–500 asylum cases per year, 500–600 clients assisted at walk-in clinics, and pro bono services to approximately 100 detained in-dividuals who would face removal without representation if not for the organization. To manage the caseload, the asylum proj-ect has more than 300 volunteers actively working cases—and more than half these cases involve victims of torture.

To address the injustices that detention often presents, a Minnesota advocates staff member or volunteer is present for detained master calendar hearings to en-sure that detained individuals appearing in the district receive pro bono services. Min-nesota advocates also serves as co-chair of the detention Watch Network.

When initially formed, the asylum proj-ect primarily represented individuals from Central america. Today, its clients hail

from 80 countries, with claims that range from domestic violence to political defec-tions. Its youngest client was 4 years old, and its oldest was well into her 80s. While there have been many successes, there also have been heartbreaks—mainly stemming from the government’s detention policy.

Michele Garnett McKenzie, Refugee and Immigrant Program director, tells of an elderly Somali man who was detained in Minnesota. When she visited him in jail, he was gravely ill with liver disease. He was extremely weak and his liver was visibly dis-tended. Michele worked with local immigra-tion officers to obtain the man’s release for medical treatment while he sought asylum.

She also tells of the detained Sri Lank-an man who could not tolerate remaining in jail during the lengthy appeals process. He forwent an appeal of his case. Shortly after departing the United States, he died in a tsunami.

Going GlobalMinnesota advocates’s commitment to hu-man rights extends far beyond individual case services at the local level. Since its in-ception, it has provided volunteers with opportunities to work on national and in-ternational human rights projects.

Shortly after it was founded, Minnesota advocates developed a model for the legal investigation of extra-legal, arbitrary, and summary executions, which the United Na-tions (U.N.) adopted. These standards are internationally recognized and commonly cited as the “Minnesota Protocol.”

Minnesota advocates also has moni-tored human rights conditions and produced reports documenting human rights practices in more than 25 coun-tries. With its expertise in the transition-al justice process, Minnesota advocates is frequently relied on to provide the legal, moral, and emotional support to victims testifying to truth commis-

There is something speciaL aBout minnesota, especially its people’s commitment to social justice. Minnesota politicians were critical to the formation of international goodwill projects, such as the Peace Corps

and Food for Peace. In his address at the 1948 democratic National Convention, Vice President Hubert Humphrey, a Minnesotan, stated that “[t]he time has arrived in america … to walk forthrightly into the bright sunshine of human rights.” Following this lead, a group of Minnesota lawyers formed the Minnesota advocates for Human Rights (Minnesota advocates)—an organization that has earned world-wide recognition for its humanitarian efforts.

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sions. For example, the Peruvian Truth and Reconciliation Commission invited Minnesota advocates to monitor Peru’s recovery from more than 20 years of vi-olence and repression. The commission credits Minnesota advocates for empow-ering the widows and mothers to find their voices after suffering indescribable crimes in silence for decades.

Recognizing that human rights abroad can have little meaning if human rights are not respected at home, Minnesota advo-cates regularly works on national human rights issues in the United States. In fact, Minnesota advocates has published recom-mendations to ensure immigrant women are safe from domestic abuse.

To develop its recommendations, Min-nesota advocates used international hu-man rights methods to investigate and document immigrant women’s experienc-es in obtaining protection from domestic violence and accessing legal, medical, and other services in the United States. Working

Pro Bono minnesota advocates for human rights

PRO BONO PROfILE: MEEt ALAN GOLDfARB

the great Aristotle once said, “moral excellence comes about as a result of habit. we become just by doing just acts.” Alan goldfarb’s moral excellence comes from a long-time commitment to pro bono on his quest for justice.

As a third-year student, Alan participated in a human rights fellowship with the center for Applied Legal studies in south Africa. After graduation, Alan joined a corporate law firm and, like all young lawyers, focused on developing his practice. Although there was little spare time, he accepted a pro bono asylum case. Little did he know that it would influence his professional direction in unexpected ways.

initially, the experience provided Alan with the satis-faction of working with a “person.” over time, it helped him develop case management skills that left him at ease in accepting responsibility.

“As a corporate lawyer, i gained more responsibility with experience, but working as a pro bono attorney on asylum cases helped me gain a sense of professional re-sponsibility earlier,” said Alan. “taking that responsibility helped me to develop as a lawyer.”

Alan also discovered a new passion in immigration law. His commitment to refugee and asylee issues led him to volunteer one day a week with the Asylum Law Project at the minnesota Advocates for Human rights. through this experience, Alan met AiLA members who shared his passion for service; this prompted him to become an immigration attorney in 1997.

As an AiLA member, Alan continues to give. He has served as the minnesota/Dakotas chapter chair, and is cur-rently an ambassador for the American immigration Law Foundation. Alan also continues to volunteer with min-nesota Advocates for Human rights. He notes, “i learned that satisfaction wasn’t so much in winning as in working with the client, staying with them, guiding them.”

Alan’s commitment provides a ray of hope to those hidden behind bars. His pro bono services have enabled dozens of asylees to move forward with new lives. Alan meets with former clients on a regular basis, including a head soccer coach at a local high school, a success-ful business woman who serves other immigrants, and a woman with whom Alan annually celebrates his birthday. thanks to Alan, she has another year to celebrate.

chaveZ worLd

novemBer/decemBer 2007 immigration Law today 11

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with volunteer lawyers—including aILa members—and other professionals, the report collected information from pros-ecutors, police, doctors, nurses, hospital administrators, lawyers, judges, and gov-ernment agencies, as well as federal immi-gration authorities, shelter advocates, and community organizations.

In 2006, Minnesota advocates formally responded to the U.S. report on its com-pliance with the International Covenant on Civil and Political Rights. Minnesota advocates’s report to the U.N. noted that the lack of access to counsel and dire con-ditions of immigration-related detention left noncitizens with valid claims for relief in situations where they were effectively forced to stipulate to removal.

Recently, at the request of the Liberian Truth & Reconciliation Commission, Min-nesota advocates launched the Liberian Truth and Reconciliation Project, designed to give Liberian refugees in the United

States a role in promoting international justice and human rights. Minnesota advo-cates’s volunteer statement-takers are now working in U.S. cities with large Liberian populations and in the Budumburam Refu-gee Camp in Ghana. In august 2007, Min-nesota advocates released “Liberia Is Not Ready: a Report of Country Conditions in Liberia and Reasons the United States Should Not End Temporary Protected Sta-tus for Liberians.” The law firm of dorsey & Whitney prepared the report as a pro bono service to Minnesota advocates.

AIlA AllianceMany—if not most—members of aILa’s Minnesota/dakotas Chapter volunteer with Minnesota advocates by donating hundreds of hours of pro bono time to serve as volun-teers, mentors, and speakers. aILa mem-bers also donate resources, and the chapter provides funding to enable the organization’s staff to attend the aILa annual conference.

Minnesota advocates supports aILa’s advocacy efforts and has participated in every aILa lobby day, while consistently providing information and support to the Minnesota/dakotas Chapter’s advo-cacy efforts.

dipankar Mukherjee, a member of the Minnesota advocates board of directors, states, “People in the U.S. underestimate their power to have an impact on human rights.” Fortunately, the founders of Min-nesota advocates did not. They accepted the challenge Humphrey presented and took action nearly 25 years ago. The result is an organization whose work and rec-ommendations at the local, national, and international level have served as a catalyst for dramatic change. ILT

Kathleen Moccio is a member of AILA’s National Pro Bono Services Committee.Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.


THE EWING MaRIoN KaUFFMaN FoUNdaTIoN recently released a re-port concluding that, in 2006, individuals with foreign citizenship working in the United States were named as inventors or co-inventors on 1/4 of the inter-national patent applications filed from the United States. (See V. Wadhwa et

al., “Intellectual Property, the Immigration Backlog, and a Reverse Brain-drain: america’s New Immigrant Entrepreneurs, Part III” (aug. 2007)). This figure represents a three-fold increase in the contributions of foreign nationals since 1998. Previous Kauffman Founda-tion reports on the effects of skilled migration demonstrated, among other things, that im-migrants founded 25 percent of technology companies established in the previous decade, and that these immigrant-founded companies employ 450,000 workers in the United States. In a world in which knowledge-based assets are of crucial importance, the significance of these findings is hard to overstate.

However, many people remain opposed to skilled migration, or at least opposed to increases in the ad-mission of temporary and permanent skilled work-ers. on the discrete question of how much skilled migration is optimal, why doesn’t the political con-sensus reflect the academic consensus? The answer has little to do with the triumph of narrow self-inter-est. Rather, the academic consensus fails to translate into a political consensus because, while striking, it is incomplete. Three objections in particular—arising from broad-based educational, moral, and national security concerns—serve to muddy the clarity of the researchers’ conclusions. None of these broad-based objections is illegitimate—nor are they, on their face, insubstantial. accordingly, they need to be more di-rectly, more consistently, and more compellingly ad-dressed if the existing resistance to skilled migration is to be reduced.

the Academic ConsensusGeorge Borjas is a professor at Harvard University and the author of Heaven’s Door, a well-known book that details the harmful effects of immigration on the economic well-being of americans. Indeed, Borjas is probably the leading academic advocate for a more re-strictive immigration policy. yet, he is adamant about the positive economic impact of skilled immigration. “Put simply,” Borjas has written, “high-skill immigra-tion increases after-tax income of natives,” and “there is little doubt that [it] is a good investment.” (See “The Economic Case for Skilled Immigration: Hearing Be-fore the S. Comm. on Health, Education, Labor, and Pensions,” 109th Cong. 3 (2006) (testimony of Prof. George J. Borjas)).

Peter Schuck, a law professor at yale University, is another leading immigration scholar. a self-described “militant moderate,” he has called for restrictions

by Michele r. Pistone and John J. hoeffner

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Preaching to the



Immigrants, as immigrants, see things differently than natives. And it is that different and unique perspective

that adds value.


on family-based reunification visas and for the elimination of the diversity lottery. He favored the failed comprehensive immigration bill recently considered by Congress while Borjas strongly opposed it. But he is one with Borjas in his dismissal of the arguments of those opposed to highly skilled migration. Schuck recommends adoption of a more “skills-sensitive” system for permanent mi-grants, and argues that current limits on H-1B visas for temporary workers “make[] no sense,” as such “workers contribute to more efficient production and higher growth.” (See P. Schuck, “Bordering on Folly,” The American Lawyer, october 1, 2007, at 83–4).

although Borjas and Schuck come from different ideological positions, the concurrence of their views on skilled migration—and the certainty they display in asserting those views—is no odd coin-cidence. among persons who have studied migration, perhaps no statement finds wider acceptance than the proposition that skilled migrants enhance U.S. productivity and growth.

Supportive analyses are legion, including those stating that the United States could comfortably (and productively) absorb many more skilled workers than it currently admits. (See, e.g., H. Johnson and d. Reed, “Can California Import Enough College Graduates to Meet Workforce Needs?” at 2 (Public Policy Institute of California May 2007) (concluding that California’s labor market could absorb a doubling of the number of skilled migrants to the state); “Immigra-tion: The Economic Impact: Hearing Before S. Comm. on the Judi-ciary,” 109th Cong. (2006) (testimony of Prof. Barry R. Chiswick) (stating that the United States has not reached “its absorptive capac-ity for immigration”); S. Brooks Masters and T. Ruthizer, “The H-1B Straitjacket: Why Congress Should Repeal the Cap on Foreign-Born Highly Skilled Workers,” at 13 (CaTo Institute, 2000) (recommend-ing that Congress abolish H-1B caps); S. Moore, “a Strategic U.S. Immigration Policy for the New Economy” (Center for Immigration Studies 2001) (stating that doubling or even tripling “high-skilled immigration visas … will not take jobs from american workers”); see also Letter from Christine o. Gregoire et al., to Sen. Harry Reid et al. at aILa InfoNet doc. No. 07091262 (letter from 13 current state governors to congressional leaders, recommending “increased availability of temporary H-1B visas, and permanent resident visas” to meet “a critical shortage of highly skilled professionals”)).

If a clear consensus exists that skilled workers add to U.S. pro-ductivity and growth, and a similar consensus asserts that the demand for skilled workers is increasing, then why is there such strong resistance to admitting more skilled workers? Examination of educational, moral, and national security concerns will shed some light on the matter.

the educational objection: Why Not Us?The more proponents of skilled migration emphasize the enormity of the need, the more others can reasonably ask why U.S. citizens cannot be educated for these jobs. Even when a call for more re-sources for U.S. education accompanies a call for more skilled mi-gration, one cannot help but notice that it is the latter call that is often delivered with the most passion and sense of urgency.

For many americans, the apparent lesser emphasis sometimes given to the education of citizens bespeaks an unfortunate inver-sion of priorities, and raises troubling and uncomfortable ques-tions. does the securing of additional visas for foreign workers receive priority because foreign workers are regarded as better workers? are they regarded as smarter, or more hard-working? To the extent that these questions are left unaddressed by research showing that skilled migration adds to U.S. productivity, growth, and competitiveness, such research—by itself—always will be less than persuasive to a substantial portion of the population.

the Moral objection: Why Not them?another reason that the ever-increasing evidence about the eco-nomic benefits of skilled migration has not resulted in a signifi-cantly liberalized immigration regime is that that evidence does not address a long-standing and widely held moral qualm about “brain drain.” If skilled migration benefits us, it is asked, “Who does it hurt?” To many people, to an unacceptable degree, the answer is that it hurts the poor in foreign nations.

The U.S. Catholic Bishops, for example, have held for almost a half-century that:

[T]he special preference afforded by the United States to highly skilled persons should be restricted. our immigration policy should not encourage a flow of educated persons needed for development in other countries … It does not make good sense to direct foreign aid to developing countries and at the same time receive reverse foreign aid in the form of professional per-sons whose talents are badly needed in the same countries.(See “People on the Move: a Compendium of Church documents

on the Pastoral Concern for Migrants and Refugees” 64 (U.S. Catholic Conference 1988); see also “National Catholic Welfare Conference,” Statement on World Refugee year and Migration, at par. 31 (1959) (in one of their earliest statements on the matter, the U.S. Catholic Bishops asserted that laws allowing skilled migration “in effect bleed a nation troubled with population problems of its best citizens, leav-ing behind those who can contribute least to national prosperity”); “National Conference of Catholic Bishops,” Welcoming the Stranger Among Us, at 8 (2000) (the bishops reminded “our government that the emigration of talented and trained individuals from the poorer countries represents a profound loss to those countries.”))

Secular leaders, among others, have made the same point, and have done so for many years. Thus, in 1966, then-Senator Wal-ter Mondale (d-MN) said that “the brain drain from developing countries is particularly urgent. It compromises our commitment to development assistance, by depriving new nations of high-level manpower indispensable to their progress. It runs counter to the education and training programs which are so vital in our foreign aid.” (See 112 Cong. Rec. 21477–80 (daily ed. aug. 31, 1966)).

Much more recently, the Federation for american Immigration Reform similarly has complained that “brain drain” causes develop-ing countries to lose “the people they can least afford to … the very people most equipped to improve living conditions at home.”

Preaching to the Uncoverted americas need for skilled Foreign workers

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(See “Brain drain, Federation for american Immigration Reform” (oct. 2002) at www.fairus.org/site/PageServer?pagename=iic_im migrationissuecenterse514).

The moral issue of how skilled migration affects sending coun-tries represents a particularly troublesome stumbling block for many immigration advocates. The economic basis of the moral argument against skilled migration is a zero-sum calculation of skilled migration’s economic benefits. Many arguments for skilled migration explicitly or implicitly accept this very premise, making it difficult or impossible to rebut the position of those who reject skilled migration on moral grounds.

The Kauffman Foundation study is a case in point. It states that global economic competition today is based on development and deployment of knowledge-based assets, and laments the specter of “reverse brain-drain” (i.e., when high-skill migrants return to their native lands), as detrimental to the United States’ position in this competition. The study’s express statement of the matter as an issue of “[g]lobal competition” presupposes other competitors and, of course, winners and losers among them.

This framing of the issue, however appropriate and commonsen-sical it may seem to some, has limited appeal to persons whose pre-eminent concern is not triumphing in an international competition, but working toward a common goal—in this case, development of poor countries. We do not mean to imply that it was incumbent upon the Kauffman Foundation’s researchers to frame their study differently. The study should be evaluated according to its own goals, which were to supply a refined measure of the economic importance of foreign workers to the U.S. economy and to highlight the pos-sibility that immigration backlogs will cause “reverse brain-drain.” The study ably accomplishes these intended ends. But the authors’ achievements will not change the minds of those whose opposition to skilled migration is rooted in moral concerns; thus, the study also stands as a good example for why the academic consensus on skilled migration’s positive economic effects has yet to be converted into a political consensus for more skilled migration.

the National Security objection: What About “them”?a third objection—national security—always has been a part of the immigration debate, but has gained a higher profile in the wake of 9/11. Immigrants can be national security threats, and perhaps skilled immigrants can be greater threats than most. In all events, the widespread and amply documented tightening of border re-strictions against foreign academic, business, and student applicants for entry into the United States represents a response to this fear. (For a discussion of post-9/11 enhanced border enforcement efforts against skilled migrants, see M. Pistone and J. Hoeffner, “Rethinking Immigration of the Highly-Skilled and Educated in the Post-9/11 World,” 5 Geo. J. Law & Pub. Pol’y 495, 496–97 (2007)).

Quantifying and cataloging the U.S. economic benefits of skilled migration does not directly speak to the problem of immigration-re-lated national security fears. accordingly, no matter how substantial such benefits are proven to be, a certain segment of the population

is likely to regard them as, in a sense, the currency of the penny wise and pound foolish. To such persons, the incremental economic gains associated with skilled migration can never provide a sound basis for formulating policy, unless accompanied by a serious assessment of the fundamental security concerns raised by such migration.

Addressing the objectionsThe first step in lessening the appeal of the most common ob-jections to skilled migration is to grant them the respect due an honest disagreement. They should not be ignored as unworthy of serious discussion. Nor should they be ignored as a tactical matter. If skilled migration is to gain additional proponents, the elephants in the room need to be acknowledged. They are not, in all events, as forbidding as some may think.

Immigrants Are Not Interchangeable with NativesConsider the objection that, instead of importing skilled workers, the United States should do a better job of educating natives. almost everyone in the debate grants that putting more resources into edu-cation is a good idea. Some defenders of skilled migration even view migration as a temporary measure—to be discarded at some future time when all americans have an above-average education. The latter approach is unnecessarily defensive, and yields far too much ground in its uncritical endorsement of the skilled migration-education con-nection made by skilled immigration’s opponents.

The better approach is to attempt to de-link the issues of skilled migration and education. Skilled immigrants are not mere substi-tutes for skilled natives. as is suggested by the vastly disproportion-ate success of immigrants to the United States in winning Nobel prizes,1 as well as by more rigorous social science,2 immigration does not merely duplicate what better education policy might pro-duce on its own without immigration.

To make this point—it must be emphasized—is not to say that immigrants possess inherently superior intelligence or greater ambition and drive. Rather, immigrants’ great and non-duplicable creative advantage is inextricably intertwined with their status as immigrants. Because they by definition come from different back-grounds, immigrants cannot help but make different observations and connections than most of their peers.

These observations and connections are best explained as simply an application of the law of supply and demand to the power of ideas. Sociologist and University of Chicago Professor Robert S. Burt has examined this concept in the context of a study of american busi-ness. (See R. Burt, “Structural Holes and Good Ideas,” 110 Am. J. Soc. 349, 355 (2004)). Burt explores the social origins of good ideas by analyzing “[p]eople familiar with activities in two groups,” and concluded that:

[Such people] are critical to learning and creativity. People whose networks span [several groups] have early access to di-verse, often contradictory, ideas. People connected to groups beyond their own can expect to find themselves delivering valuable ideas, seeming to be gifted with creativity. This is ➝



not creativity born of deep intellectual ability. It is creativity as an import-export business. an idea mundane in one group can be a valuable insight in another.

The creative value of immigrants, then—the paradigmatic ex-ample of “[p]eople familiar with two groups”—is not duplicable by simply educating more native-born workers. Immigrants, as immigrants, see things differently than natives. and it is that dif-ferent and unique perspective that adds value. In economic terms, the relative scarcity of their viewpoints heightens the value of their insights. So, more education, yes, but the wisdom of receiving skilled workers is not and should not be tied to current failures in the educational system.

Skilled Migrants Aid Development in homelandsWith regard to the concern that skilled migration to the developed world comes at the cost of development elsewhere, there is sub-stantial evidence that such migration is mixed in its effects, and may even tend to foster development in less developed countries. The more benign view of skilled migration is shared by many developing countries—in marked contrast to their near-universal disapproval four decades ago. (See M. Pistone and J. Hoeffner, Stepping Out of the Brain Drain: Applying Catholic Social Teach-ing in a New Era of Migration, 116 and 122 n. 5 (2007). See also World Bank, Global Economic Prospects 2006: Implications of Remittances and Migration 68 (2005) (listing developing country governments with favorable views of skilled migration)).

Indeed, immigration researchers anne Marie and Jacques Gail-lard not only have stated that “[t]here almost seems to be a consen-sus about” the great potential for skilled migration to benefit devel-oping countries, but also have noted that the evolving consensus includes “people who long rode the nationalistic [anti-migration] wave [but] now recognize the advantages, for the home country, that can be derived from the external migration of the elite.” (See a.M. and J. Gaillard, International Migration of the Highly Quali-fied: A Bibliographic and Conceptual Itinerary (1998)).

The changing consensus is linked to changes in the world, pri-marily economic globalization and the related and ongoing revo-lution in communications technology. These phenomena have combined to create new opportunities for migrants to contribute to their homelands. The Internet, for example, allows skilled mi-grants to more widely and more consistently communicate ideas, trends, and opportunities to their counterparts back home, and it also allows these communications to be immediate, two-way, and at much greater depth. as globalization and the communications revolution have combined to make overseas offices more practi-cal, skilled migrants working in business have a greater oppor-tunity to influence their companies to invest in their homelands. They also can help in developing technologies that can benefit the entire world, such as the Internet.

Skilled migrants (and others) can more easily and more cheaply transfer funds. Remittances to developing nations have exploded in recent years, with the most recent estimate of $199

Time To STeP oUT of The “Brain Drain” “Brain drain,” which apparently originated in Ayn rand’s 1957 novel, Atlas Shrugged, entered popular usage in the early 1960s. For opponents of skilled migration, the phrase is a pointed and rhetorically effective label. For proponents of skilled migration, the term is an obstacle to the argument that skilled migration can benefit developing nations, in that “brain drain” is plainly a loaded term, whose use strongly suggests serious loss on the part of sending countries. curiously, how-ever, journalists and even proponents of skilled migration often utilize the term without qualification or explanation.

As inappropriate as such usage may be, the reason for “brain drain’s” popularity is plain. “Brain drain,” despite its well-recognized flaws, is undeniably catchy and easy to remem-ber. it is for this reason that it has outlasted clunky alternative phrases meant to replace it—is it really a surprise that headline writers have preferred “brain drain” to would-be replacements such as “outflow of trained personnel” or “reverse transfer of technology”? the lesson here is that any term that presumes to challenge “brain drain” must at least make an effort to com-pete with the vividness and memorability of the famous term.

the authors’ preferred alternative, which was introduced and discussed in a recent book, is steP oUt migration. (See Stepping out of the Brain Drain at 9–19). steP oUt migrants are scientific, technical, and educated Professionals out of Underdeveloped territories. this new term is appropriate when the intent is to describe a broad spectrum of skilled immi-grants spanning every sector of society, including the scientif-ic, technological, cultural, political, educational, and corporate business fields. the “oUt” provides a short-hand way of communicating that the steP migrants under consideration are from developing countries. omission of the “oUt,” on the other hand, provides a short-hand way of referring to the larger universe of all skilled and educated migrants.

the new term is thus more flexible than “brain drain,” superior to it in clarity, and inviting of debate whereas “brain drain” prejudg-es. it also may prove memorable, in that the spelling of the steP oUt acronym creates a phrase whose meaning is suggestive of the movement that is the migrant’s lot. in all events, the larger point is that “brain drain” is seriously flawed as a neutral description. immigration advocates should resist using the term and be careful to point out its shortcomings when they or others do use it.


billion for 2006—almost six times the amount remitted 15 years earlier. (See http://econ.worldbank.org for World Bank, development Prospects Group, Migration and Remittances Team, Migration and development Brief 2: Remittance Trends 2006, at 1 (2006) (provid-ing 2006 data); World Bank, Migration and Remittances datasets: Global Economic Prospects 2006, at 1 (providing 1991 remittance amount of $34 billion)).

Skilled migrants, it should be noted, “send a greater amount of remittances” than other migrants. (See M. Rosenzweig, Copenha-gen opposition Paper on Population and Migration 10 (2004)). as to the effect of this explosion, a minister of labor in the Philippines has stated that “overseas employment has built more homes, sent more children of the poor to college, and established more busi-ness enterprises than all the other programmes of the government put together.” (See N. Harris, “Thinking the Unthinkable: The Im-migration Myth Exposed” 89 (2002)).

In addition, skilled migrants by knowledge and inclination are more likely to succeed in tailoring new technologies to the needs of their homelands. Someone born in the United States, for example, might never think to use the tools of biotechnology to genetically modify cottonseeds to make them safely edible for humans. However, dr. Keerti Rathore, an Indian migrant to the United States, has done

so with some success. (See “Gene Tweak Makes Cottonseed Edible” at http://health.yahoo.com/news/169042). In retrospect, everyone can see that, where food is not plentiful and cotton is an important crop, such a modification could greatly reduce hunger and malnutrition. But as a matter of foresight, who is most likely to see the problem and a possible solution rooted in local circumstances? other com-mon circumstances in the developing world that are often underap-preciated by U.S. scientists—and that often make developed-world solutions impractical—include a lack of refrigeration, undependable electrical power supplies, and a lack of clean water.

Crucially, the communications revolution also facilitates migrants’ binding together to help their homelands. organization of diaspora communities is easier, cheaper, and more common than ever. By pooling their resources, hometown associations fund specific im-provements to the general welfare in developing countries. More specifically, to cite a few examples: (1) the South african Network of Skills abroad (SaNSa) connects migrants from South africa to par-ticular scientific and technological projects in their home country; (2) the Ghana association of distance Learning, established by Gha-naians in the disapora, seeks to improve education in Ghana; (3) the Ethiopian North american Health Professionals association works to supply medical personnel and equipment to Ethiopia; and

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(4) the Silicon Valley Chinese Engineers association promotes entre-preneurship and the establishment of business ties to China.

Finally, persons inclined to doubt the effectiveness of these con-tributions—and to stress the negative effects of skilled migration—might consider the following: In 1968, a book titled The Brain Drain (Walter adams Ed. 1968) was published by the reputable Macmillan Company. The first page of the book stated that “[t]he drain from asian nations, particularly Taiwan and [South] Korea, is the most serious.” Since 1968, asia in general, and Taiwan and South Korea in particular, have experienced unsurpassed growth. development obviously is a multi-causal phenomenon, still, this is a striking result for nations presumed to be the greatest victims of “brain drain.” Combined with the other developments discussed in this section, it may and should give pause to even the staunch-est opponent of skilled migration as to the general impact of that migration on developing nations.

Skilled Migrants Are National Security Assets With respect to the assertion that foreign-born skilled workers can endanger national security, it must be recognized and emphasized that the argument is a double-edged sword, and that the sharper edge

may well belong to those who would prefer to see increased levels of skilled migration. Certainly, skilled immigrants—as a group—bring unparalleled foreign language skills that may be employed to benefit national security. In-depth understandings of cultural, political, and geographical facts in foreign lands may be employed to a same end. The economic productivity and growth gains attributable to skilled migration make it possible to support a better national security ap-paratus. and the presence and prestige of foreign skilled workers in the United States contributes positively to the image of the United States abroad, which also yields benefits that make us more secure.

In addition, there is an increased and widespread recognition post-9/11 that there is a security component to development of poor-er countries. (See, e.g., T. Barnett, The Pentagon’s New Map: War and Peace in the Twenty-First Century (2004) (arguing that the greatest threats to U.S. security now stem from the least developed nations). Thus, initiatives aimed directly at development (such as the Millen-nium Challenge account introduced in 2002), as well as initiatives indirectly supportive of development (such as enhanced efforts to combat aIdS and malaria), are seen by policymakers as ways to ad-dress “the problem of failed states and terrorism.” (See M. Fletcher, “Bush Has Quietly Tripled aid to africa: Increase in Funding to



Impoverished Continent Is Viewed as altruistic or Pragmatic,” The Washington Post, dec. 31, 2006, at a4). To the extent that skilled migrants can improve the prospects for long-term development in poor countries, as recent evidence suggests and as argued above, they accordingly help to safeguard U.S. security interests as well.

Thus, in various ways, skilled migrants enhance U.S. security. Be-cause they do so, it is not only mistaken but also dangerous to treat skilled migration solely as a potential threat. an appropriate national security calculation requires that a complex balance be struck between the risks (and benefits) of exclusion and the risks (and benefits) of in-clusion. When “national security” is invoked as a talisman capable of ending any debate in favor of those who would restrict entry into the United States, the required complex balance is dangerously simpli-fied. Those americans who are the most sensitive to risks to national security should be the most opposed to this simplification.

A realistic expectation although advocates of increases in skilled migration have a strong argument, to most people, it is not an overwhelming one. The set-ting of future policy on the issue of admitting more skilled foreign workers into this country may be subject to chance events that

might tip the scale of public opinion in one direction or the other. The prudent course for immigration proponents is to exercise con-stant vigilance in identifying and neutralizing aspects of the debate that appear to weigh against their position. ILT

Michele r. Pistone is a law professor and director of the clinical program at Villanova University School of Law. John J. hoeffner, her husband, is an attorney in Villanova, PA, and teaches an immigration course at Villanova University. They co-authored the recently released Stepping Out of the Brain Drain: Applying Catholic Social Teaching in a New Era of Migration.Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.

Notes1 More than one-third of U.S. Nobel laureates in the sciences in the last 15 years have been foreign born. See C. Schramm and R. Litan, “Immigrants and Laure-ates: america’s Two other Winners of Nobel Prizes Show How Important It Is that the U.S. Get Immigration Policy Right,” The Washington Post, oct. 12, 2007.2 See, e.g., G. Chellaraj, et al., “The Contribution of Skilled Immigration and International Graduate Students to U.S. Innovation,” World Bank Policy Research Working Paper 3588, at 6 (May 2005) (the authors affirmatively conclude that “skilled workers have a strong and positive impact on the development of ideas in the United States”), at http://search.ssrn.com/sol3/papers.cfm?abstract_id=744625.


MaRRIEd CoUPLES take vows of unconditional love for and support to each other for better or for worse,

in sickness and in health, for richer or for poorer, until death do they part. However, when a marriage breaks apart, all of those nice platitudes go out the window. The process of separation and divorce is a painful and arduous experience. This matter is made more complicated when one or both spouses are in the immigration process during marital difficulties. Thus, when the unthinkable happens, attorneys should prepare their clients for difficult times ahead.

the USCIS experience: Deconstructing the romantic JourneySpouses of U.S. citizens and lawful permanent resi-dents (LPRs) are entitled to seek permanent resi-dence in most cases, pursuant to Immigration and Nationality act (INa) §§201(b)(2)(a)(i) and 203(a)(2)(a). a spouse of a U.S. citizen is categorized as an immediate relative, and a petition for permanent residence and application for adjustment of status may be concurrently filed for the spouse with U.S. Citizenship and Immigration Services (USCIS) if the spouse is present in the United States. due to backlogs, visa numbers for spouses of LPRs are not immediately available. Therefore, a petition for an immigrant relative must be filed with USCIS initially. If the spouse is in the United States and eligible for adjustment of status, the application for adjustment of status then can be filed with USCIS when the spouse’s priority date is reached or the LPR sponsor becomes a naturalized U.S. citizen. an interview is conducted at the local USCIS district office prior to adjudication. However, if the spouse is in proceed-ings in immigration court, the petition for perma-nent residence is filed with USCIS, and the applica-tion for adjustment of status is filed directly with the immigration court upon approval of the petition.

In order to be eligible to adjust status, the spouse and the U.S. citizen or LPR must be married at the time of filing and adjudication. The marriage must

be bona fide and the burden of proof rests with the applicant to prove the validity of the marriage. The marriage, however, does not have to be a strong marriage, a good marriage, or even a sustainable marriage. USCIS is not even focused on whether the marriage is viable at the time of the adjustment interview. The key issue is whether the marriage was valid at its inception. (See Matter of McKee, 17 I&N dec. 332 (BIa 1980); Matter of Jara Riero, 24 I&N dec. 267 (BIa 2007)).

To determine marriage validity at inception, USCIS looks at whether the spouses intended to establish a life together at the time of their marriage. (See Bark v. INS, 511 F.2d 1200 (9th Cir. 1975); Lutwak v. U.S., 344 U.S. 604 (1954)). USCIS can examine the behavior of the spouses both before and after the wedding to ascertain the intent to establish a life together. Such intent can be established through evidence of joint financial accounts, jointly titled property, creating beneficiary rights, sharing health and auto insurance, and creating children together. (See Matter of Soriano, 19 I&N dec. 764 (BIa 1988)).

let’s Get Separated! An Adjustment in Statusa particular problem arises when spouses begin living separate and apart between the date of the marriage and the date of the adjustment interview. The separation itself is not a bar to approval ➝



Immigration Consequences of Separation and divorce

by Jonathan S. Greene, Cheryl R. David, and Suzanne Tomatore


of the adjustment application when the applicant can prove the marriage was valid at inception. However, separation can be a highly relevant factor in determining whether the marriage was bona fide. (See Matter of Adalatkhah, 17 I&N dec. 404 (BIa 1980)). If the spouses have scant evidence that they took active steps to establish a life together and they separated a month after they married and filed the adjustment application, they are going to have a difficult time proving the marriage was valid when they entered into it.

The USCIS New york district office maintains a unique pro-cedure for adjudicating spousal petitions in which a question of the bona fide nature of the marriage is at issue. The proce-dure was created after a ruling in Stokes v. INS, 393 F. Supp. 24 (SdNy 1975) and codified in an intra-agency memorandum. In every such case, a written notice describing the rights in-volved must be given to the petitioner, a separate attachment of the list of rights must be sent out with the interview ap-pointment letter, and a list of the documents to be submitted at the time of interview must be mailed to the petitioner. (See Adjudicator’s Field Manual (aFM) ch. 15.5.) The interview may be conducted with both spouses present, or they may be sepa-rated and questioned in the presence of a video camera. The interview will feature questions concerning the personal living arrangements and marital situation of the spouses. Questions can range from the layout of furniture in the marital residence to the names of family members, friends, and pets, to product brand names used by the other spouse. one tricky question is on which side of the bed does your spouse sleep? a person viewing the bed from the position of laying in it might indi-cate the “left” side, but that same person would have to say the “right” side if viewing the bed from the foot. Thus, drawing a picture can help resolve any confusion.

although the Stokes procedure is only required in New york, USCIS has applied the basic concept to all marriage cases through-out the United States. a notice is sent to spouses in marriage cases advising them to bring certain documents to the interview, and it is now routine to require spouses to provide at least some minimum proof of the bona fide nature of the marriage. Spouses usually are not separated and videotaped during interviews unless USCIS has evidence indicating a sham marriage. When spouses are living separate and apart at the time of the interview, they may be more likely to find themselves in such a situation.

If the Stokes interview results in a denial of the petition for permanent residence, the denial can be appealed to the Board of Immigration appeals (BIa), which has jurisdiction over visa petitions. a new petition also could be filed, but the spouses may have to overcome the same issues that led to the denial of the first petition, including any allegations of marital fraud.

higher Burden for removaladjustment is always discretionary—before USCIS and the im-migration court—but if there are no adverse factors, adjustment is usually granted. (See Matter of Arai, 13 I&N dec. 494 (BIa 1970); Matter of Lam, 16 I&N dec. 432 (BIa 1978)). However the burden is raised somewhat higher for a spouse facing re-moval from the United States. a person facing removal already has adverse factors based on the facts justifying the commence-ment of removal proceedings, such as failure to comply with immigration laws or criminal convictions justifying removal. one of the great counter-balancing equities that factors into the exercise of discretion is the existence of strong family ties in the United States. When a marriage is on the rocks and divorce is on the horizon, that key justification for favorable exercise of adjustment is severely undermined.

Immigration court adjustment proceedings also may require greater preparation than a USCIS interview. Local court rules may require the advance submission of documentary evidence and a summary of witness testimony. Some immigration judges (IJs) may conduct a separate hearing at the master calendar stage—with the respondent and the sponsoring spouse—in or-der to test whether the marriage is bona fide.

the road to Immigration Courtadjustment applicants can trigger immigration proceedings by failing to appear for an adjustment interview. Spouses who have been living separate and apart during the USCIS adjustment process also might be divorced by the time the immigration court is ready to hear the case, thereby render-ing the spouse seeking adjustment ineligible for such relief. Furthermore, adjustment applicants may experience the “double pleasure” of undergoing a USCIS interview—which results in a denial and issuance of a notice to appear in im-migration court.

In those cases where a denied petition for permanent resi-dence was appealed to the BIa and immigration court proceed-ings have commenced for the adjustment applicant, an IJ may not wait for the outcome of the petition appeal. Insofar as the petition appeal is filed at the USCIS district office and then sent to the BIa, it may take months before the appeal even leaves the district office.

Sometimes immigration clients will get an opportunity to turn the lemons of love into lovely lemonade. If the first marriage does not work out and a divorce occurs after USCIS denies adjustment, a new marriage to a more suitable candi-date may be available. The spouse can file a new petition for permanent residence and application for adjustment of status based on the second marriage.

Marital Disharmony immigration consequences of separation and divorce


Kristine

Pencil

Kristine

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☛ Practice Pointer: If a subsequent marriage occurs while removal proceedings are pending, adjustment of status based on the marriage is not permitted, unless the spouses can prove the bona fide nature of the marriage by the heightened clear and convincing evidence standard. (See INA §§245(e)(2) and (3)). A written waiver request will need to be submitted with the petition for permanent residence, along with evidence that meets the clear and convincing test. (See 8 CFR §§204.2(a)(1)(iii)(A) and (B); 8 CFR §245.1(c)(9)).

The IJ should give the spouse time to have the new petition for permanent residence adjudicated. (See Matter of Velarde, 23 I&N dec. 253 (BIa 2002)). It probably is best to come to court prepared with a new petition for permanent residence or already have one filed before the first court appearance.

Conditional residence Issues: Understanding this Crucial StepForeign nationals who obtain immigration status through mar-riage to a U.S. citizen or LPR are granted conditional resident status if the marriage is less than two years old at the time residence is granted. (See INa §216). during the 90 days preceding the second anniversary of the grant of conditional residence, the conditional resident and sponsoring spouse are required to take steps to make the conditional status permanent. (See 8 CFR §216.4(a)(1)). This is generally accomplished by jointly filing USCIS Form I-751, Peti-tion to Remove Conditions on Residence.

USCIS can terminate conditional residence at any time during the two-year period or if it adjudicates and denies the petition. (See INa §§216(b)(1), (c)(3)(C)). Conditional residence also is termi-nated if the conditional resident spouse fails to file the petition within the 90-day window or fails to appear for an interview. (See INa §216(c)(2)(a)).

Saved by a WaiverIf a conditional resident spouse’s marriage falls apart during this two-year period, it may be necessary to file for a waiver of the re-quirement that both spouses sign the petition. Under INa §216(c)(4), there are four types of waivers available to the conditional resi-dent spouse that are listed below. More than one waiver can be sought, and the waiver is filed by checking a box on Form I-751 and providing supporting evidence.

DeAth AnD extreme hArDshIp WAIversa conditional resident spouse may individually qualify for a joint petition waiver if the other spouse has died, or if it can be shown that he or she would suffer extreme hardship if removed from the Unit-ed States, but only if such hardship occurred during the two-year conditional residence period. (See 8 CFR §216.5(e)(1)). ➝


the mental health expert Witness: A master story teller THE WORK OF A MENTAL HEALTH ExPERT WITNESS in immigration cases can be compared to that of a journalist: it is the expert’s job to tell the client’s story in an interesting, detailed, and moving way. A judge’s decision is based on his or her understanding of the law and how the facts of the case interface with this. A credible mental health expert witness gives the judge sufficient factual information to grant the client’s case—if such a decision is warranted.

Interviewing skills are important in getting the client to reveal personal but crucial information. Often, attorneys require a clinician who is an expert in a very narrow area (such as a particular country). Although specific knowledge is important, it can be equally important to hire an expert witness who is able to capture and describe in plain language a broader point of view.

An expert witness working in the immigration field may see the fol-lowing types of cases, all of which involve hardship: removal, asylum, VAWA/spousal abuse cases, and waivers for an illegal entry or stay. The expert also can help clients with a prior conviction that has creat-ed or contributed to an immigration problem. Clients (and often their families) are interviewed extensively about, but not limited to:

health issues

conditions in their country

previous traumatic experiences and losses

special educational or medical needs for their children

physical risk factors such as crime in their country

a dependent marital relationship

their work and educational background

the ability to speak, read, and write in a particular language

Attorneys should require a sample report to showcase an expert witness’s excellent writing skills and fluency in other languages. A clinician who is multilingual has the ability to glean information by interviewing clients in their own language that would not be possible otherwise. Even when the client speaks English, he or she may not feel comfortable divulging personal information in a second language, and the ability to communicate with clients in their own language sets them at ease. Which languages are more important varies from one community to another. For example, in Chicago, many immigration clients speak Spanish and Polish.

The ability to choose wisely when selecting an expert witness cannot be overemphasized. An extensive, fully documented report is crucial. A solid report is often 15 to 20 pages in length. A one– or two-page report summarizing the expert’s conclusion is inadequate if one is to provide a judge sufficient evidence to rule in the client’s favor.

Courtesy of Phyllis Gould, a licensed clinical social worker in Chicago and an expert witness to immigration lawyers and their clients on the issue of hardship. Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.


DIvorce or Annulment WAIvera conditional resident spouse can individually qualify for a waiver if it can be shown that the marriage was entered into in good faith, but the marriage was terminated by divorce or annulment prior to the filing of the joint petition. (See INa §216(c)(4)(B)). If the spouses are separated but not divorced prior to and during the three-month period designated for fil-ing the joint petition, the conditional resident spouse cannot file the joint petition until a divorce is obtained. (See aILa InfoNet doc. No. 03050643; Matter of Anderson, 20 I&N dec. 888 (BIa 1994)). If the conditional resident spouse is in im-migration court proceedings, a continuance may be sought to allow the divorce to become final.

extreme cruelty WAIvera conditional resident spouse can individually qualify for a waiver if it can be shown that the marriage was entered into in good faith, but the applicant was battered or subjected to

extreme cruelty by the U.S. citizen or LPR spouse during the marriage. (See 8 CFR §§216.5(e)(2)(i)–(iv)). Evidence showing battery or extreme cruelty could include police reports docu-menting physical abuse, restraining orders, medical records, and other forms of psychological or emotional abuse.

For spouses who have separated or divorced where battery or abuse was present, the waiver can be obtained, but no separation or divorce is actually required in order to obtain the waiver. of course, a conditional resident spouse who has not separated from an allegedly abusive spouse may have a difficult time convincing USCIS that the relationship is abusive.

Back to Immigration Court a conditional resident spouse who filed a petition to lift the conditions on residence, which USCIS eventually denied, will receive a notice to appear in immigration court for removal proceedings. (See INa §237(a)(1)(d); aILa InfoNet doc. No. 06090871). The conditional resident spouse can request that the IJ adjudicate the petition. If the petition denied by USCIS was filed with a waiver that also was denied, then the IJ can only ad-judicate the waiver filed with USCIS and not alternate waivers. (See Matter of Anderson, 20 I&N dec. 888 (BIa 1994)).

☛ Practice Pointer: If the only waiver sought from USCIS is based on extreme cruelty and/or hardship because the divorce is not final at the time of filing, a denial of that waiver precludes asking the immigration court to grant a waiver based on a divorce that has just been granted. A person facing this sit-uation should file a new petition with USCIS seeking a waiver on the newly available ground.

Similarly, if the petition filed with a waiver based on ex-treme cruelty and/or hardship has not been adjudicated by USCIS and the divorce becomes final, practitioners should file a new waiver request with USCIS, especially since USCIS has requested the filing of updated information in conditional resident cases.

If conditional residence has been terminated by USCIS and a waiver request was filed with USCIS but not adjudicated, the conditional resident spouse placed in removal proceedings can ask the IJ for a continuation until the waiver is adjudicated. (See Matter of Stowers, 22 I&N dec. 605 (BIa 1999)). a continuation can be obtained if the conditional resident spouse never filed a petition with USCIS and now seeks to do so. a waiver also can be requested at any time before the entry of a final order. (See 8 CFR §216.5(a)(2)). If USCIS denies the petition and/or waiver, the immigration court then can review the request for lifting the conditions on residence. other forms of relief also may be avail-able to the conditional resident spouse in removal proceedings, based on battery or abuse.


➝


the VAWA Self-Petition: Permanent residency for Battered SpousesThe Violence against Women act (VaWa) provides certain relief to spouses who have experienced battery or abuse from U.S. citizen or LPR spouses, including cancellation of removal or suspension of de-portation. VaWa, in part, allows battered immigrant spouses to seek permanent residence without the assistance of the abusive spouses. (See Immigration act of 1990 §701, VaWa 1994, VTPa 2000, and VTPRa 2005). VaWa applies to men as well, and one of the authors has filed successful self-petitions for men. However, for the purposes of this article, and as statistics show, most victims of domestic violence are women. a VaWa self-petition can be filed after the denial of a regular spousal permanent residence petition or in lieu of it. In order to file a self-petition, a battered immigrant must have had: a valid marriage1 to a U.S. citizen or LPR2; joint residence in the United States in most cases;

spousal battery or extreme mental cruelty; and good moral character.

a VaWa self-petition is adjudicated at the Vermont Service Center’s VaWa Unit. This unit comprises officers who have been trained on the dynamics of domestic violence and the special exceptions and waivers for VaWa applicants.

a VaWa self-petition is filed on USCIS Form I-360. The peti-tion must be well documented. Copies of identification documents for the applicant and the abuser should be submitted. The most compelling part of the application is the battered immigrant’s own personal statement, typically submitted as an affidavit. This affida-vit should be a chronologically arranged narrative including some background information about the battered immigrant, the court-ship period of the relationship, and the decision to marry. It should include a thorough discussion of the incidents or patterns of domes-tic violence and a short statement about good moral character.


political Asylum casesIn these cases, an individual has been sub-jected to mistreatment and abuse in a foreign country. The mistreatment is frequently associ-ated with a political, religious, ethnic, or gender factor. At some point during the period of mistreatment, the individual leaves that foreign country and makes his or her way to the United States and files a political asylum claim. It is very common that the individual has developed psychological problems as a result of the abuse. Sometimes these problems include depres-sive disorders and/or a post-traumatic stress disorder. Some of these disorders occasionally interfere with the ability to file a political asylum claim within the one-year filing period. In those cases, it is necessary to make an assessment whether the psychological problems experi-enced by the individual when he or she arrived in the United States interfered with the filing of a timely political asylum claim. It also is necessary to assess whether an individual continues to suffer from psychological symptoms after he or she has arrived in the United States.

exceptional hardship casesThe U.S. citizen or LPR spouse or child of an individual who may have to leave the United States applies for a waiver on the basis that the removal would result in an exceptional hard-ship. Relevant factors in these cases would in-clude family relationships that would make it ex-traordinarily difficult for the person to leave the

country. For example, a U.S. citizen wife might have a sick parent or sibling, or be unable to make a living in the country where her spouse is headed. The spouse also could be under treatment for a medical condition that could not be adequately treated outside the United States. Furthermore, the children might be so far ad-vanced in their education in this country and unable to speak, read, or write in the language of the foreign country, that leaving the United States might permanently bar their education. In exceptional hardship cases, if one parent were forced to leave the United States, it can produce a separation anxiety disorder on the part of a child left behind. Some children also might develop a depressive disorder, especially those who are very young and do not have the emotional maturity to understand why a parent might have to leave the United States.

spousal Abuse casesIn cases of this nature, a woman or man from a foreign country marries a U.S. citizen or LPR. After the marriage, that person is then abused by the citizen or LPR. Such abuse can take the form of verbal, physical, sexual, or psychological abuse. It is important in these cases to assess the type of abuse as well as the frequency, and to evaluate the impact that the abuse has had on the individual.

citizenship Waiver casesIn these cases, an LPR desires

to become a U.S. citizen. However, that individ-ual is unable to pass examinations in U.S. his-tory and civics, or examinations demonstrating capacity in reading, writing, and speaking the English language. Psychological evaluations in this area involve the administration of a mental status examination to determine whether there are any cognitive incapacities, or deficits that interfere with new learning. For example, an in-dividual may have memory problems that inter-fere with the integration of subject-matter mate-rial such as history or civics. In some cases, a medical problem may interfere with the learning process. Some individuals—especially the el-derly—may have developed senile dementia, or be in the early stages of Alzheimer’s disease. In others, an injury, especially head trauma, may have permanently affected learning ability.

Courtesy of Stephen reich, Director of The Forensic Psychology Group.Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.


In a nutshell: Forensic evaluations in Immigration proceedings

The affidavit should be in plain language from the battered immigrant’s perspective. Practitioners should avoid using “le-galese” when drafting the affidavit. It is important that the at-torney draft the affidavit of the self-petitioner—as well as any supporting affidavits—to ensure that the content satisfies the requirements under the law. For supporting affidavits, the bat-tered spouse should compile a list of affiants and contact them in advance to ask if they are willing to speak with the attorney.

Separation and Divorce in Asylum Casesa person who obtains asylum may confer derivative asylee status to a spouse and unmarried children under 21 years of age. If an asylee has a spouse and/or children outside the United States, the asylee may obtain derivative status for them by filing a Refugee/asylee Relative Petition on USCIS Form I-730.

If spouses seeking asylum are living separate and apart with the intention of ending the marriage, they still may pursue asylum, but divorced spouses will be barred from obtaining derivative status. The spousal relationship must be in existence at the time of the asylee’s grant of asylum, the filing of any Form I-730 petition, and a derivative beneficiary’s admission into the United States. (See R. Germain, AILA’s Asylum Primer 201 (aILa 2005 Ed.); 8 CFR §§1207.7(c) and 1208.21(b)). Thus, spouses who are present in the United States will not incur problems if they divorce after they are granted asylum. If the spouses divorce when the derivative benefi-ciary is outside the United States waiting for processing of the Form I-730 petition, the derivative beneficiary will not be able to enter the country as an asylee.

Practitioners should bear in mind that the termination of asylum status of the principal applicant will result in the termi-nation of the asylum status of derivative spouses and children. (See 8 CFR §1208.24(d)).

ethical Issues: Double trouble with Dual representationEthical considerations are extremely important in the immigra-tion context. When an immigration lawyer handles a marriage-based permanent residence case, the attorney typically represents both spouses in the transaction. dual representation presents many difficulties to an immigration practitioner, insofar as it may not be possible to limit the scope of representation to one spouse alone when a conflict arises between the intentions of the two spouses. If spouses begin living separate and apart while USCIS adjudication of a marriage-based permanent residence case is pending, the clients are in a state of conflict. The sponsor-ing spouse has the right to withdraw the petition for permanent residence prior to the commencement of the beneficiary spouse’s journey to the United States or completion of adjustment of

If spouses seeking asylum are

living separate and apart with the

intention of ending the marriage,

they still may pursue asylum, but

divorced spouses will be barred

from obtaining derivative status.

➝




status. (See 8 CFR §205.1(a)). Such withdrawal constitutes auto-matic revocation of the petition.

The same problem can arise when the petition for permanent residence is approved, but an adjustment of status application has yet to be adjudicated or consular processing is not complete. a sponsoring spouse, who has filed an affidavit of support for the beneficiary spouse, may not want to continue to carry the liabilities required by the affidavit if the parties are undergoing marital difficulties.

Can these conflicts be waived? The answer is far from clear in the dual representation context. In the event of a concurrent conflict of interest where the representation of one client is di-rectly adverse to the other client, the conflict can be waived if the lawyer reasonably believes that competent and diligent rep-resentation can be provided to each client and the clients provide signed, written, informed consent. (See aBa Model Rule 1.7). The concept of “informed consent” requires an “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the pro-posed course of conduct.” (See aBa Model Rule 1.0).

These are heavy requirements in the separation context for immigration practitioners. First, the lawyer must believe that competent and diligent representation can be provided to both

clients. If one client wants to back out of sponsorship and the other wants to pro-

ceed, one lawyer cannot satisfy both competing interests. What if the sponsoring spouse is unsure whether to proceed with the case or does not

realize that the case could be terminated? The lawyer then must communicate “adequate information and explanation about the material risks” of going forward.

The lawyer also must communicate “reasonably available alternatives” to proceeding ahead. at a minimum, the attorney must convey to the sponsoring spouse the opportunity to re-voke the petition and the full extent of the liabilities associated with the affidavit of support. Furthermore, the lawyer must communicate to the beneficiary spouse that the sponsoring spouse has the authority to revoke the petition; and that there is a risk that the sponsoring spouse will not sign the affidavit of support if adjustment or consular processing has not com-menced. The lawyer must inform both clients of the risks cre-ated by the separation that are inherent in pursuing permanent residence, and the possibility for each spouse to obtain a sepa-rate, independent attorney. Both clients then have to give their consent confirmed in writing.

What if spouses separate or divorce while a joint petition to lift conditions on residence is pending? The attorney has to make a similar conflict analysis as with the initial permanent residence case, including informing both clients about each opportunity to obtain separate, independent counsel. Similar issues apply if the case has been referred to immigration court.

the triangular Conflict: When USCIS Gets InvolvedThe difficulties of dual representation take on a new dimension when considering the immigration practitioner’s obligations to present information to USCIS. Not only does the lawyer



have obligations to two parties in conflict when the parties sepa-rate during the pendency of a joint petition to lift the conditions on residence, but there might be obligations to USCIS.

USCIS apparently views the petition as a “continuing applica-tion” requiring immediate notification to USCIS if circumstances change after filing. (See aILa InfoNet doc. 06060761). USCIS appears to take the position that the petition will be judged on the law and facts in existence at the time of adjudication, as opposed to the time of filing. There is at least some support for this propo-sition in the disciplinary ground contained at 8 Code of Federal Regulations §1003.102(c), which requires that a practitioner take appropriate remedial measures if the lawyer offered material evi-dence and came to learn of its falsity. If one reads the term “falsity” to mean that the fact of the marital status initially represented is now false, the duty imposed by the regulation is clear.

☛ Practice Pointer: The term “falsity” might be open to some debate, inasmuch as the information concerning the marital status of the spouses provided to

USCIS was not false when it was provided. Under this in-terpretation, state code requirements for maintaining the attorney-client privilege or confidentiality of information might preclude an attorney from reporting the material change of status if the clients are opposed to such disclo-sure. The American Bar Association Model Rules, however, permit an attorney to disclose information to the extent the lawyer reasonably believes necessary to comply with other law. (See ABA Model Rule 1.6).

To make matters worse, the petition may be set for an interview and the other spouse may refuse to attend the interview. Worst of all perhaps, the other spouse may contact USCIS to withdraw the joint petition. Merely resolving the conflicts may not help in reaching a satisfactory conclusion for the beneficiary spouse.

Minimizing Conflict Damage Maximizing Client resolutionPractitioners representing multiple clients in immigration cases can reduce the potential problems created by con- ➝


flicts early on. attorneys should have all represented clients sign written engagement letters that acknowledge the conflict of dual representation and allow the attorney to withdraw from representation in the event a conflict cannot be waived. at-torneys may wish to have the clients sign an acknowledgment that they understand the conflict provisions contained in the engagement letter. Communication issues also can be prob-lematic with dual representation. attorneys should clearly indicate that all communications made by one client to the attorney may be shared with the other client.

Mitigating Marital WoesGoing through separation and divorce is an emotional roller coaster for both parties involved. It is adversarial in nature with no clear winners and losers. Furthermore, the couple’s pain and difficulty are magnified when they add the stress of the im-migration process. The beneficiary spouse has much to lose: a family, a home, and lawful presence in the United States. How-

ever, he or she can take steps to mitigate such loss—at least in the immigration process—by learning about the alternatives in obtaining and maintaining lawful status. ILT

Jonathan S. Greene is the founder of The Greene Law Firm, LLC in Columbia, MD, and a former chair of AILA’s Washington D.C. Chapter. Cheryl r. David is a sole practitioner in New York City and a member of the AILA Board of Governors. Suzanne tomatore is the director of the Immigrant Women and Children Project at the City Bar Justice Center in New York.Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.

Notes1 There is an exception for unintended bigamy. See aILa InfoNet doc. No. 02091042. 2 There is an exception when the abuser loses his or her status “related to” or “due to” an incident of domestic violence. See aILa InfoNet doc. No. 05110961.



From l–r: the author (at 3 years old) in yokohama, Japan (1957), boards the u.s.-bound ship with his mother (clutching

author’s doll) to join his father in san Francisco, while his mater-nal grandmother and grandfather say goodbye to their daughter.


From l–r: the author (at 3 years old) in yokohama, Japan (1957), boards the u.s.-bound ship with his mother (clutching

author’s doll) to join his father in san Francisco, while his mater-nal grandmother and grandfather say goodbye to their daughter.

Swiss writer Max Frisch wrote a generation ago about guest workers in his own country: “we asked for workers, but people came.”1 The chronic failure to account for this gap in the perception of immigrants—between the stark austerity of their imagined lives as guest workers and the rich texture of their real lives as immigrants—has turned out to be the source of much of the trouble with immigration laws throughout the world, especially the failure in many countries to integrate immigrants fairly and humanely. The importance of recognizing immigrants as people with families should not come as a surprise, for migration is in large part a social process of network building, and no network is more basic to human life than the family.

WE aSKEd FoR WoRKERS, BUT FaMILIES CaME

TIME, LaW, aNd THE FaMILy IN IMMIGRaTIoN aNd CITIZENSHIP

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by Hiroshi Motomura


It has become customary to analyze the role of the fam-ily in U.S. immigration and citizenship law by evaluating its legal recognition in various forms (see, e.g., H. Motomura, “The Family and Immigration: a Roadmap for the Ruri-tanian Lawmaker,” 43 Am. J. Comp. L. 511 (1995)). For example, the vast majority of lawful immigrant admissions are based on family ties. Having a close family member who is a citizen or lawful permanent resident (LPR) of the United States may save noncitizens from deportation, even if their stay in the United States was never lawful.

digging deeper than these legal rules, it becomes clear that the family adds the dimension of time to immigration and citizenship law. and in turn, the time dimension sheds light on crucial legislative and policy choices not only for immigration law, but also for the integration of immigrants into american society.

The Relevance of Family TiesCitizenship law is the logical starting point to see how the family adds the dimension of time to immigration law. Countries around the world have adopted blends of two approaches to the acquisition of citizenship by birth. one is called jus sanguinis, a Latin phrase that literally means law of blood. Jus sanguinis ties citizenship to descent—the children of citizens generally become citizens at birth no matter where they are born. Jus san-guinis plays a role in U.S. citizenship, in that persons born outside the United States may be citizens at birth, if one or both of their parents are citizens (see INa §301). But the core principle of U.S. citizenship by birth is jus soli, or law of land or ground, which makes citizenship depend on place of birth—no matter who the child’s parents are. Jus soli is embodied in the first sentence of

the Fourteenth amendment to the U.S. Constitution: “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.” (See U.S. Const. amend XIV, §1).

Jus Soli CitizenshipJus soli citizenship strongly influences immigration law, for it means that noncitizens in the United States of-ten have close family members who are U.S. citizens—typically, their children who have been born here. The realization that immigrants have families would com-plicate immigration law even without the legal badge of citizenship. But citizenship for U.S.-born children is the vehicle for immigration law to officially acknowledge that immigration is a matter of multiple generations. It does this by recognizing that denying citizenship to these children will limit the cohesion—and even pro-mote the disintegration—of american society by liter-ally alienating a large resident population and inevitably encouraging a self-reinforcing circle of separatism and anti-foreigner sentiments.

Jus soli citizenship thus is based largely on the per-ceived need to recognize family ties that immigrants have formed while living and working in the United States, namely ties to the next generation—their children who will come of age here. This alone would be enough for jus soli to introduce the dimension of time to immigra-tion law, but there is more. Jus soli also introduces the time dimension by laying the foundation for discretionary relief from removal based on the fact that the children of immigrants are U.S. citizens, whether the immigrants themselves are documented or not.


Waivers and Cancellation of RemovalNoncitizens—even lawful immigrants—have no absolute guar-antee that they will be allowed to stay in the United States. of course, noncitizens who are unlawfully present may be removed for that reason alone (see INa §§212(a)(6)(a), 237(a)(1)(B), (C)). Lawful immigrants may be removed if, for example, they become deportable for certain criminal convictions, or on national secu-rity grounds (see INa §§237(a)(2), (4)). However, even removable noncitizens may ask the government to waive some grounds and let them stay as a matter of administrative discretion, exercised by an immigration judge (IJ) or by an official in the department of Homeland Security or department of State. (See, e.g., INa §§103, 104, 212(h), (i), 237(a)(1)(H)).

Even if a waiver is unavailable—or available but denied in the exercise of discretion—an IJ may still allow a noncitizen to stay in the United States under a form of discretionary relief called cancellation of removal (see INa §240a). The first precursor of cancellation came into use in the 1930s, when advocates for case-by-case leniency cited the human cost of deportation in broken families and economic hardship. These advocates argued that many

deportable noncitizens were part of american society and had committed only minor or technical immigration law violations, or that these noncitizens were deportable only for minor crimes for which they already had served a prison term and thus paid their debt to society. Immigration offi-cials responded to these arguments by providing relief from deportation under a previously obscure statute (see act of Feb. 5, 1917, Ch. 29, §§3, 39 Stat. 874, 878)). This type of relief assumed several legislative incarnations, eventually becoming cancellation of removal.

an IJ’s decision on cancellation of removal has two parts. First, the noncitizen must be eligible to apply for cancellation. a minimum residence period in the United States is required, and a criminal record may be disqualifying. Second, if a noncitizen is eligible to ap-ply, an IJ may cancel removal as a matter of discretion. Cancellation allows noncitizens to retain the perma-nent resident status that they were in jeopardy of los-ing, or even to become LPRs for the first time.

Having close family members who are U.S. citizens greatly enhances the chances for a noncitizen to avoid removal through waivers or cancellation. This hap-pens for two reasons. First, family ties are often re-quired for the noncitizen to be eligible for a waiver or cancellation. For example, immigrant noncitizens

are eligible for the waiver in Immigration and Nationality act (INa) §212(h) for certain crime-related grounds of inadmissibility only if they are the spouse, parent, son, or daughter of a U.S. citizen or an LPR. Second, statutes and administrative case law make clear that the exercise of discretion to grant or deny a waiver or cancellation of removal depends in large part on family ties.

Family Ties and TimeThis role for family ties—evident both in jus soli citizenship and discretionary relief—illustrates immigration law’s recognition of U.S. ties in general. In turn, the recognition of ties is significant because it adds the dimension of time to immigration law. For cancellation of removal, for example, what counts are the ties that noncitizens have developed while having lived in the United States. Thus, cancellation of removal for LPRs requires seven years of con-tinuous residence in the United States after having been lawfully admitted, including five years as a permanent resident (see INa §240a). an IJ should exercise his or her discretion to cancel re-moval by looking at the noncitizen’s ties—not just family ties, but also community ties, work history, and a clean criminal record (see In re C–V–T–, 22 I&N dec. 581, 584–85 (BIa 1998)).

Family ties and the dimension of time affect the reality of im-migration enforcement in ways that go beyond immigration law on the books. Members of a single immigrant household often include one parent who is an LPR and another who is

the ticket voucher for the author and his mother’s voyage from yokohama.

➝

We Asked for Workers but Families Came time, Law, and the Family in immigration and citizenship

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undocumented. Some of their children may be undocumented, while others are LPRs, and the rest are U.S. citizens based on jus soli. Removing noncitizen breadwinners amounts to the de facto removal of children who are U.S. citizens. This is one reason for the tacit consensus that prevails in the United States to enforce immi-gration laws in ways that are knowingly selective and, sometimes, just for the sake of symbolism and political show.

The Meaning of Time in Immigration LawIt is a policy choice to recognize ties and time, even if this choice is not deliberate or even conscious. To understand this choice, compare it to a very different approach concerning the removal

of noncitizens from the United States—namely, that of removing noncitizens from the United

States solely on the basis of having violated their terms of admission. The most obvious violation is entry without inspection. But look-ing only at the terms of admission would also

justify automatic removal—without access to discretionary relief—if, for example, a

noncitizen overstays a lawful pe-riod of temporary admission

or violates the condition that he or she not be con-

victed of certain crimes.

Immigration as ContractIn Americans In Waiting, this author coined the term “immigration as contract” as one approach to im-migration and citizen-ship. In this context, the term “contract” means a certain way of mak-ing immigration deci-sions that adopts ideas of fairness and justice

often associated with con-tracts (see H. Motomura, Americans in Waiting: The Lost Story of Im-migration and Citi-zenship in the United States, 36–37, 57–58 (oxford Univ. Press

2006)). The core idea is viewing immigration as a set of expecta-tions and understandings that newcomers have upon entering their new country and, correspondingly, that their new country has of newcomers. Violations within this context mean removal, or so the thinking goes.

The key feature of immigration as contract is its static nature. It looks to a fixed reference point for assessing claims of justice. What matters is providing notice and protecting reliance and expecta-tions, but not necessarily determining the contours of justice based on the unfolding of events, including events that have taken place in the lives of the immigrants themselves. To view immigration as contract is to disregard time in immigration law, by disregarding how an immigrant develops family ties as time goes by.

Immigration as AffiliationIn contrast, the recognition of ties that have developed over time—the essence of what this author refers to as “immigration as affiliation”—is a persuasive basis for both jus soli and discretion-ary relief from removal. Ties are a big reason why immigration law should provide relief to noncitizens even if they have violated the conditions of admission, or were never admitted at all. Rec-ognizing ties that have developed over time is also the basis of an influential strand of court decisions that addresses the application of the Constitution to immigration and immigrants. Consider this passage from the U.S. Supreme Court’s decision in Mathews v. Diaz, 426 U.S. 67, 80 (1976):

Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests. The decision to share that bounty with our guests may take into account the character of the relationship between the alien and this country: Congress may decide that as the alien’s tie grows stronger, so does the strength of his claim to an equal share of that munificence.

two Senses of time To establish that the family—and, thus, time—should make a dif-ference in immigration law only begins the inquiry. The next ques-tion is how time should make a difference. The examples given here, both jus soli citizenship and discretionary relief from removal, are typically justified by viewing immigration as affiliation—in oth-er words, by giving legal meaning to what has already occurred. Thus, the time that an immigrant already has spent in the United States can yield the family ties that justify allowing him or her to stay through the use of waivers or cancellation, or to confer jus soli citizenship for his or her U.S.-born child.




But this is not the only way that time and the family should mat-ter. In addition to retrospective recognition of ties, look prospec-tively at time by focusing on immigrants’ future lives in the United States. once time is examined in this way, a subtle but significant shift occurs in the role of the family. It goes beyond mere recogni-tion and adds a more instrumental view of the family in immigra-tion law. The family becomes not only an object or recognition of integration—something that should be acknowledged as having occurred—but also becomes a means or vehicle of integration, to help immigrants integrate into U.S. society.

This prospective sense of time and the family implies a view of immigration law that differs from immigration as affiliation and its retrospective recognition of the ties that immigrants have developed. Now we must ask ourselves, how can immigration law recognize not only family ties that already have developed as time has gone by, but also future family ties that can support immigrant integration?

Immigration as transitionTo understand this prospective sense of time more fully, one must view immigration as a transition to citizenship whose underly-ing premise is to integrate immigrants. If the family is seen as a means of integration, then jus soli citizenship is justified not only because the ties that an immigrant already has developed in the United States should be recognized, but also because jus soli citizenship supports transition for families by assuring first-generation immigrant parents that their future children born in the United States will be citizens. Historically, this assurance was especially important for asian immigrants, who were barred from naturalization but who knew that their U.S.-born children would be citizens based on the Supreme Court decision in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898).

Jus soli recognizes that transition can be a multi-generational process, and that it is important that the United States have no second-generation or third-generation noncitizens—unlike

FaMILy TIES aNd THE dIMENSIoN oF TIME aFFECT THE REaLITy oF IMMIGRaTIoN ENFoRCEMENT IN WayS THaT Go BEyoNd

IMMIGRaTIoN LaW oN THE BooKS.

➝

countries where citizenship law relies principally on jus sanguinis. Similar thinking justifies the provision in the Constitution that counts all persons for constitutional redistricting re-gardless of their immigration status. This rule recognizes that legislators represent not just current residents, but also a district’s future residents, many of whom will be citizens through jus soli.

Family-BasedadmissionsCurrently, if a noncitizen has a spouse and children prior to becoming an LPR, his or her spouse and children may accompany and follow under INa §203(d). But if a noncitizen marries or has children after becoming an LPR, the new spouse or children cannot ac-company or follow. Instead, they must qualify for admission as immigrants in their own right, and this means a long wait.

In october 2007, new spouses and unmarried children of LPRs were be-ing admitted as LPRs after a five-year wait (see doS 8 Visa Bull. No. 111 (oct. 2007)). and because only about 25,000 LPRs from any single country may come each year in the combined family-sponsored and employment-based preferences, natives of certain countries typically have had to wait even longer (see INa §202(a)(2)). anyone who applies today as an LPR’s spouse or child may face still longer delays, depending on the demand for immigrant visas in this category.

In contrast, a U.S. citizen can peti-tion for a spouse and children as “im-mediate relatives” who must wait only for the paperwork to be processed, al-though this, too, can take some time (see INa §201(b)(2)(a)(1)). another advantage for citizens is their ability to petition for siblings and married

and adult offspring. Hence, it may be faster and more beneficial for an LPR to wait the required three or five years to naturalize and become a U.S. citizen before petitioning for family members.

This current system of family re-unification for LPRs reflects a retro-spective recognition of ties. LPRs can petition for their spouses and children under the limited annual allotment with a long waiting period. alterna-tively, they can satisfy the residency period for naturalization and then petition as citizens for their spouses and children. Both long waits are consistent with immigration as affili-ation, which recognizes immigrants’ ties but only after they have developed over time. according to immigration as affiliation, new LPRs lack the ties to justify favorable opportunities to peti-tion for close relatives.

Thus, immigration as affiliation and its retrospective recognition of ties does not explain why long waiting pe-riods for an LPR’s spouse and children are highly troubling, but immigration as transition with its prospective sense of time tells us exactly why. These long delays seriously disrupt family life and impede what it might become. Fami-lies have to do without everything that a missing spouse would bring to fam-ily life, from money to love. It is hard for an LPR to feel that he or she can es-tablish much of a life in america with-out his or her spouse and children. as a result, some family members come unlawfully, often at great physical risk en route. once here, they live under threat of exploitation by employers and arrest and removal by the govern-ment. This is no way to nurture the sort of family life that integrates im-migrants into american society. Im-migration as transition suggests that immigration law should take family

CoME GaTHER RoUNd LaWyERS (Ode to “The Times They Are A-Changin’”)

by Leslie Holman, AILA member

Come gather round lawyersWherever you file

and admit that your casesWill all get denials

and accept it that nowUSCIS is just vile

If your time to youIs worth savin’

Then you better e-fileCan’t wait for a while

For the forms they are a-changin’.

Come engineers and an’lystswho’ve long retrogresseddon’t e-mail us hourlyyou’re becoming a pest

yet you know so much lawactually, more than the restand there’s no telling whose

Site your read’nFor the rules we know

Will later be sinFor the laws they are a changin’.

Come senators, congressmenPlease heed the call

The last CIR itWas destined to fall

For what must get passedHas to benefit all

There’s a battle insideand its raging

don’t call it an amnestyWhen building a wall

For the laws they need a-changin’.

Come mothers and fathersand minors alone

Fiancés and lovers andBad men atoned

your sons and your daughtersBut not if they’re stoned

and if you’rean English investor,

don’t get used to your life hereE-2s there are none

For the times they are a changin’.

The line it was drawnThe curse it was cast

When current not dida moment it last,

Whose case do I fileWhose time has not passed

The order wasrapidly shaken

and the next one filedWill be my last

For my nerves they are a shakin’.




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ties into account—not only by recognizing existing ties, but also by promoting immigrant family life, especially by allowing immediate immigration of LPR spouses and children.

Family Ties and the Legislative agendaIn sum, the treatment of the family in immigration law shows not only that the family introduces the element of time, but also that time can have different meanings. The prevailing sense of time in current law is retrospective. Recognizing existing ties is important. as a matter of legislative reform, it is important to broaden eligibil-ity for waivers and cancellation of removal.

It also is important to think of time prospectively. This means that immigration law should promote the immigrant family as a ve-hicle of integration into american society. This means eliminating the waiting periods for the family-based second preference. only if Congress takes this step can immigrant families realize their full potential for fostering integration.

More generally, recognizing that families are key to immigrant integration suggests that Congress should be very skeptical of pro-posals to reduce family-based immigration. It is true that immi-gration policy should reflect economic reality. But this should not blind people to the basic truth that when this nation’s employers ask for workers, they will get people—with their families. and their families are essential to the successful integration of these immi-grants into american society. ILT

hiroshi Motomura is Kenan Distinguished Professor of Law at the University of North Carolina School of Law. This is a summary of an article that appeared in The Virginia Journal of Social Policy and the Law (Fall 2006).Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.

Note1 See M. Frisch, Überfremdung I, In Schweiz Als Heimat? 219 (1990).

WHEN THIS NaTIoN’S EMPLoyERS aSK FoR WoRKERS, THEy WILL GET PEoPLE—WITH THEIR FaMILIES. aNd THEIR FaMILIES aRE ESSENTIaL

To THE SUCCESSFUL INTEGRaTIoN oF THESE IMMIGRaNTS INTo aMERICaN SoCIETy.


Nolo Press Tackles Immigration in Self-Help Books

reader’s corner / by Dan h. Berger

NoLo prides itseLF on Being “the only publisher in america with a staff of lawyers dedicated to creating books and software” to help readers prepare immigration applications without hiring a pricey at-torney. (See I. Bray, U.S. Immigration Made Easy (12th Ed. 2006)). To Nolo’s credit, however, it is quick to

point out when an attorney’s expertise is needed. Nolo recently published three immigration books written by aILa member Ilona Bray: U.S. Immigration Made Easy, 12th Ed. (Nolo; $39.99 paperback), How to Get a Green Card, 7th Ed. (Nolo; $29.99, paperback), and Becoming a U.S. Citizen, 3rd Ed. (Nolo; $24.99, paperback). These books offer the clearest, most accurate explanation of immigration law for nonlawyers thus far. and while no book can take the place of a lawyer’s knowledge and judgment, these volumes are better than most other nonattorney sources of immigration advice available today.

Plain english for the MassesThese books seem to have three uses. First and most obvious, they provide detailed information about immigra-tion processing for those who will not be hiring a lawyer. There have been many instances in which people have received advice from pseudo-lawyers (or lawyers who do not specialize in im-migration work), and the results have been disastrous. Many of those foreign nationals would have been better off to have these books as references.

Second, the books provide a useful background for those foreign nationals working with attorneys or nonprofit agencies, since they can refer to the books for more information on a cat-egory that is being suggested to them. Each book has sections that explain what to expect from an attorney in terms of responsiveness, price, service, and how to choose an attorney. These books actually may promote a better relationship between attorney and cli-ent by helping the client understand not only the basics, but also the complexi-ties of immigration work.

Third, the books provide a very acces-sible source of information and ideas for nonattorneys in a law office, or for staff at a community or legal aid organization.

This author’s firm prefers that its para-legals read articles written for attorneys, but having some of the staff flip through these books led to some good questions—particularly about topics that they might not have read about on their own.

These books are well laid-out, and clear icons are used to point out prob-lem areas, cross-references to other sec-tions, and when to consult an attorney. However, the books are for those with a good command of English. The lan-guage is refreshingly clear and blunt on important points.

Clear explanation of Naturalization Process In many ways, the best of the three books is Becoming a U.S. Citizen. For-eign nationals tend to file naturalization applications without attorneys, usually acting on their own or with assistance from community organizations. The topic is discreet, and the 170-page book does a good job of reviewing the issues, reprinting forms, and offering the text of a sample interview. In reading Becoming a U.S. Citizen, this author felt a bit like a chess player trying to beat a computer chess program—thinking of issues or approaches that would show how a hu-man being can win.

To test the abilities of the book, this author considered complicated issues that had arisen over the years. For example, can a widow apply for citizenship three years after she becomes a lawful perma-nent resident (LPR) if her husband died after that three-year period, therefore giv-ing her three full years of living together in a bona fide marriage? The answer is in the book. “you need to stay married to the U.S. citizen spouse all the way through the citizenship interview… [the three-year timeframe to file the N-400] won’t apply and you will be required to wait five years if … your spouse dies.” ➝


Two more complicated questions in-clude the timeframes for which asylees and refugees need to wait before naturalizing. The book cites 8 Code of Federal Regula-tions (CFR) §209.2(f) in stating that refu-gees who acquired LPR status have their permanent residence backdated to the date they entered the United States, while asylees have a maximum one-year rollback.

So far, the book was doing quite well. Then one final challenge was hurled at it—a gray area to test the subtlety of the self-help citizenship guide: good moral character. Even there, the book fared remarkably well. The text warns the reader to consider any

contact with the police in any country, since sometimes a crime can be relevant for im-migration purposes when the foreign na-tional believed it was dismissed. The book explains that the U.S. Citizenship and Im-migration Services (USCIS) examiner can look back beyond the five-year period preceding an application for evidence that might indicate a lack of overall good moral character, such as issues with drugs, alco-hol, or violence.

The book does not mention mandamus as a tool for moving a stalled case forward, nor does it list estate tax marital exemp-tion as a possible advantage to citizenship. While there were other concerns regard-ing clarification within this and the other books, much of the information was accu-rate and detailed.

the Weakest linkThe weakest section was on “Getting a Green Card Through Employment”—perhaps indicating that the author had less experience in that area. The employment-based visa sections do appear intended to inform the reader who is working with an attorney, rather than on his or her own us-ing the book as a self-help guide. Far fewer people will try an L-1 on their own than they will an I-130 application. For example, the employment-based green card section advises concurrent filing of I-140 and I-485, even though this can be a risk if there is any potential weakness with the I-140 or if the employer backs out before a request for evidence.

another weak aspect in all the books is the estimate of timing—immigration prac-titioners worry about estimating a time-frame in any case, given the tremendous variation. U.S. Immigration Made Easy, for example, estimates about 12 months from filing to interview for an adjustment of sta-tus through a family member, and refers clients to the USCIS processing times on the website for estimates. The books can-not hope to have current information on processing times, and the online updates for these volumes provide little additional information beyond advertising the books. Since families and businesses try to plan around visa processing, consulting an at-torney just for an accurate picture of the

timing issue might well be worthwhile.

When to Seek for help The books’ disclaimer appears on the back of the inside front page at the bottom:

Please note: We believe accurate, plain-English legal information should help you solve many of your own legal prob-lems. But this text is not a substitute for personalized advice from a knowledge-able lawyer. If you want the help of a trained professional—and we’ll always point out situations in which we think that’s a good idea—consult an attorney licensed to practice in your state.

although this author disagrees with the placement of the disclaimer, the books point out (in various ways all through the text) when a lawyer is needed or recommended. The books acknowledge that good attorneys offer perspective on the regulations and poli-cies, insights into interpretations and trends in gray areas, and the ability to consider cate-gories other than the ones the client might be aware of. In addition, attorneys have up-to-date knowledge of processing times, which are a constantly moving target; and through G-28s, attorneys should get notices of USCIS actions if the client’s copy does not arrive. Finally, attorneys who are aILa members have an excellent aILa case-liaison system to address delayed or problem cases.

Chapter 10 of the citizenship book, “Le-gal Help Beyond This Book,” reviews areas in the naturalization context that should lead to a consultation with a lawyer, and offers good advice about how to find an attorney. Cer-tain topics in each volume are flagged with “Get a Lawyer”—these include I-751 waiv-ers, immigration court cases, and most cases involving criminal issues. other topics sug-gest a consultation, such as for the “E” visa (where a consultation with an experienced immigration lawyer is listed as a “wise busi-ness move”), or an H-1B (where the book suggests it is in the employer’s best interest to hire an attorney because of cap issues).

Chapter 6 in U.S. Immigration Made Easy goes further by warning upfront that “even a seemingly simple case can suddenly become nightmarish.” It also advises that a foreign national should seek legal represen-tation if a benefit might disappear in a finite

reader’s Corner nolo press tackles immigration


period of time, such as a child aging out or a diversity lottery winner filing for perma-nent residence. overall, the books accept the role of a good attorney in complicated cases, while trying to provide enough infor-mation for the enthusiastic foreign national to file on his or her own.

No Substitute for legal representation It has been said—albeit only half jokingly—that every foreign national in the United States should have a consultation with an im-migration lawyer at least once to understand the particular short– and long-term options available. Unless the foreign national reads the entire book, and accurately takes in a tre-mendous amount of material, mistakes can be made; and a very small mistake can lead to tremendous consequences in this field. Therefore, these books would work best as a supplement to legal representation or con-sultation, rather than a substitute.

In addition, there are issues that simply cannot be digested in book form. By repu-tation, some USCIS offices require varying levels of evidence for an I-601 waiver, and some service centers have different standards for o-1 and EB-1-1 petitions. In another ex-ample from last year, New york USCIS began denying I-485 cases summarily (without an I-72) if the affidavit of support requirements were not fully documented at the interview.

These trends and regional variations are another moving target in this business and can lead immigration practitioners to make gut-level decisions on whether to file a chal-lenging case. again, no book can replace that kind of experience.

Moreover, as U.S. Immigration Made Easy points out, attorney cover letters and presentation of materials can make a differ-ence, especially with busy adjudicators, and such written materials by attorneys “are dif-ficult to produce if you are not experienced in immigration law.”

Worthy readoverall, having high-quality materials for foreign nationals about immigration serves an important purpose. Many peo-ple who may not have the means to hire an attorney would pay $29.99 for How to Get a Green Card before filing an ap-plication. These books are far above the level of information available to many people now, and they provide useful ref-erences for those working with attorneys or nonprofit organizations on immigra-tion cases. The books—along with oth-ers on fiancé(e) and marriage visas and student and tourist visas—are available at www.nolo.com. ILT

Dan h. Berger is a named partner at Curran & Berger in Northampton, MA, and chair of the AILA Board of Publications.Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.


VaWa immigration provisions ben-efit husbands, wives, and children who have been abused by their U.S. citizen or LPR spouse or parent. VaWa allows for the filing of self-petitions that are com-parable to regular family visa petitions. However, one difference is that VaWa applicants benefit from important ex-ceptions to the customary statutory, procedural, and documentary require-ments that are associated with marriage-based petitions.

applicants can file a petition even if the marriage ended in divorce, so long as there was a connection between the divorce and domestic violence and the petition is filed within the statutory limit of two years from the termination of the purported marriage (see INa §204(a)(1)(a)(iii)(II)(aa)(CC)(ccc)). Furthermore, applicants can immigrate to the United States, notwithstanding the fact that the abuser has lost his or her U.S. citizen or

LPR status. However, the loss of status must be a result of an incident of domes-tic violence and the self-petition must be filed within the statutory limit of two years from the date the abuser lost his or her LPR status (see INa §204(a)(1)(a)(iii)(II)(aa)(CC)(bbb).

VaWa applicants must satisfy addi-tional requirements such as submission of proof that the self-petitioner is of good moral character, and evidence that the U.S. citizen or LPR either physically or mentally abused the spouse during the marriage or the child during residence with the parent (see 8 CFR §§204.2(c)(1)(i)(E),(F), (e)(1)(i)(E),(F)).

taking the First StepWhen representing a VaWa applicant, several important steps must be fulfilled. First, the practitioner should conduct an initial meeting in order to reiterate the purpose of an I-360 petition and to establish a solid understanding with the client as to the documents and in-formation that will be needed in order to satisfy VaWa requirements. during this meeting, the practitioner should stress the reasons why VaWa petitions are demanding, so that the client is in-formed from the beginning and aware that it will be necessary to comply with future documentary requests. The client also must be advised that U.S. Citizen-ship and Immigration Services (USCIS) requires detailed events of the abusive relationship either in the applicant’s own

declaration or in affidavits from friends or family members.

The practitioner must further advise a VaWa applicant that he or she has a substantial role in gathering informa-tion. although clients often perceive this request as bothersome, it is in fact a necessary step in order to prepare a successful application. during the initial interview, it also is essential for the prac-titioner to fully explain the advantages or the true immigration benefits of an approved VaWa petition.

Lastly, the attorney should advise the client that VaWa petitions are within the sole jurisdiction of the Vermont Service Center (VSC) and that once VSC ap-proves the petition—barring any future finding of fraud—the beneficiary may then qualify for adjustment of status by filing Form I-485 (see 9 FaM 42.42 PN4). Clients should further be informed that in the processing and adjudication of their I-485, USCIS’s district administra-tive officers (daos) are required to con-duct local USCIS interviews and are not permitted to question the facts, levels, or sufficiency of abuse. Nor are daos al-lowed to revoke an approved VaWa pe-tition that has previously been approved by VSC (see 79 Interpreter Releases 1208 (august 12, 2002)). However, if a dao reasonably believes that a self-petition should be revoked, he or she may write a memorandum to his or her supervi-sor, who may then forward the opinion to VSC’s VaWa unit. appropriate client

Preparing a Successful VAWA Self-Petition

Victims oF domestic vioLence can Be maLe or FemaLe, and immigration options for these victims are open to both genders. Nonetheless, the vast majority of victims of intimate partner violence are women (see, e.g., www.ncadv.org/files/DV_Facts.pdf), and according to the department of Homeland Security

(dHS) office of Immigration Statistics, majority of immigrants who have availed themselves of protection under the Violence against Women act (VaWa) are spouses (as opposed to children) of abusive U.S. citizens or lawful permanent residents (LPRs).

practice pointer / by y. Judd Azulay, rebecca Whiting, and lun tonsing


consultation as to the requirements and procedures of VaWa applications during the initial meeting should result in a more workable attorney-client relationship, and enable the assembling and filing of a sound and consistent VaWa self-petition.

The second and final interview should be for the purpose of conducting a detailed review of the client’s personal statement. at this time, the practitioner should request additional information that may have been lacking from the client’s original statement, including any substantial indicator of abuse in the statement itself and a timeline regard-ing the same. In addition, the attorney also should request affidavits, specifically from af-fiants who may have witnessed any abuse and who are able to provide a timeline of these events. For the well-being of the clients and for corroboration of their statements, clients also should be referred to psychologists, so-cial workers, or other mental health workers for a series of counseling sessions. Clients should be provided with a list of the avail-able resources so they can choose the most

suitable organization offering these services.

evidence of a Bona Fide MarriageTo satisfy one of the key issues and require-ments in this area of law, spousal VaWa ap-plicants must submit evidence to prove that the marriage was entered in good faith (see 8 CFR §204.2(c)(1)(i)(H); INa §§204(a)(1)(a)(iii)(I)(aa), (B)(ii)(I)(aa)). Inconsisten-cies contained in these documents—specif-ically regarding dates and addresses—raise issues of credibility, so the petition should be carefully reviewed prior to filing.

To establish a bona fide marriage, docu-ments to be submitted include, but are not limited to: Mortgages, deeds, property title, insur-

ance policies, or leases containing the names of both husband and wife to demonstrate joint ownership or tenancy of a common residence;

automobile titles and insurance joint-ly held in the names of both husband and wife;

Bank records showing joint accounts

with regular activity in the form of regu-lar deposits and withdrawals, joint stock or mutual fund investments, or loans;

Federal income tax returns showing the couple filed as “married, filing jointly”;

Evidence of additional commingling of financial resources containing both names and the joint residence address on bills, invoices, credit card accounts, utility bills, and membership cards for health clubs or video rental stores;

Birth certificates of children born to the marriage;

driver’s licenses showing both husband and wife at the same address;

Life and health insurance records that show the spouse as a beneficiary or dependent, joint wills, joint beneficiary designation on 401(k) or pension funds;

Proof of joint membership in clubs or other organizations;

Photographs of the wedding ceremony or reception showing not only the cou-ple but other people in attendance;

Copies of bills related to wedding ➝


expenses, other documents pertain-ing to the wedding arrangements, and mementos;

Vacation or holiday photos taken over the last few years;

Statements (on letterhead stationery whenever possible) from churches, civic groups, and other organizations in which the couple has joint involvement;

Notarized affidavits of third parties (parents, relatives, friends, clergy members, co-workers, etc.) having knowledge of the bona fide marital re-lationship; and

Copies of previously filed I-130, I-765, and I-485 applications by the abusive spouse on behalf of the applicant, if available.Under the current law, the self-peti-

tioner must provide evidence that he or she resided at some point with the abuser, either inside or outside the United States (see INa §§204(a)(1)(a)(iii)(II)(dd) and (iv); (B)(ii)(II)(dd) and (iii)). However, there is no specified duration of time the

self-petitioner must establish. This require-ment becomes a critical issue in situations where a client has never resided with his or her spouse or does not have substantial proof of such residence. Regardless of this condition, the authors’ firm has been suc-cessful in handling these unique cases.

In one such case, a client (referred to as Mrs. doe to protect her identity) lived separately from her abusive husband, Mr. doe, due to their various employment obligations. Mrs. doe was employed as a nanny in a Chicago suburb, while her hus-band worked construction in Wisconsin. Mr. doe lived in a rental apartment while Mrs. doe owned a home in Illinois. They intended to sell the house so they could move in together to a location closer to Mr. doe’s work in Wisconsin. However, the plans were foiled before this occurrence. In order to overcome such a hurdle, the practitioner must secure documentation to show compliance with the legal require-ment. For instance, to establish the facts of these circumstances, the firm submitted

copies of the checks that Mrs. doe wrote to Best Buy to purchase new appliances for Mr. doe’s apartment in Wisconsin.

evidence of AbuseVaWa regulations also require the self-petitioner to show that he or she, or his or her child, “has been battered or has been the subject of extreme cruelty” by the U.S. citizen or LPR spouse or parent (see INa §§204(a)(1)(a)(iii)(I)(bb) and (iv); (B)(ii)(I)(bb) and (iii)). Mental or emotional abuse can include verbal abuse, social iso-lation, possessiveness, or diminution of quality of life. a finding of extreme cruelty must be based on an examination of the dynamics of the relationship, the victim’s sense of well-being before the abuse, the specific acts during the period of abuse, and the victim’s quality of life and ability to function following the abuse.

Since immigration regulations contain broad definitions, it is important for prac-titioners to utilize a coordinated approach between: (1) immigration legal advocates,

Practice Pointer preparing a successful vawa self-petition

he loVeS yoU, he loVeS yoU Not: eVAlUAtING GooD-FAIth MArrIAGeS

the following are key questions that forensic social workers should ask when evaluating the broader history of the client, and in gathering information about how the couple became ro-mantically involved:

what did you look for in the other person?

what attracted you to him or her?

Did you feel trust, comfort, or safe intimacy?

what role did you have in the relationship and how did you communicate?

what convinced you that you should make a life-long commitment to this person?

what parts of his or her personality or values do you identify with?

what common hopes or expectations did you have about the marriage?

what needs did you feel your spouse filled for you?

to what extent does your partner’s personality or behavior resemble or differ from other close relationships in your past?

Courtesy of Mark S. Silver, a forensic and mitigation specialist in immigration and criminal cases.


psychologists, and social workers (to obtain psychological reports and continued care); (2) police personnel (to obtain criminal re-cords); (3) friends and family members of the abused (to obtain affidavits regarding the abuse); and (4) family law practitioners (to secure divorces and for other family law-related matters).

evidence of Good Moral Character according to VaWa 2000 (Pub. L. No. 106-386, div. B, 114 Stat 1464, 1491–539), to show a client’s good moral character, practitioners should submit additional documents such as: (1) notarized affidavits from friends, family, landlords, employers, and community lead-ers regarding the applicants moral character; (2) written verification of any activities en-gaged in such as religious, volunteer work, or charities; (3) and police clearance letters demonstrating a lack of a criminal record.

Furthermore, a self-petitioner will qualify only if he or she is able to establish

that the abuser was or currently is a U.S. citizen or LPR. In the example above, Mrs. doe was not in possession of Mr. doe’s birth certificate, nor did she know where she could obtain this record. Her former at-torney was unable or unwilling to provide the requested documentation. Thus, the au-thors’ firm contacted the county clerk and was able to secure an original copy of Mr. doe’s birth certificate.

Beyond the First StepThe approval of a VaWa self-petition is the first step in the immigration process. once the self-petition is approved, the applicant may then proceed to the second step of obtaining LPR status based on the ap-proved self-petition. according to VaWa 2005 (Pub. L. No. 109-162, §§3(a), 801–34, 119 Stat. 2960, 2964–71, 3053–77 (2006)), self-petitioners, on whose behalf an abuser already has filed an I-130 and an I-485, can obtain the priority date of the date the I-130

was filed. Therefore, the applicant need not wait until the I-360 application has been approved in order to seek LPR status (see 8 CFR §204.2(h)(2)).

a VaWa self-petition can be a gruel-ing and difficult task; nonetheless, with appropriate consultation, practitioners can compile consistent and well-documented petitions. Self-petitions entail several docu-mentary requirements, so practitioners must effectively communicate to their clients the necessity in developing a cooperative rela-tionship. Lastly, practitioners should dis-close to their clients the above-mentioned requirements during the initial interview in order to schedule ample time to successfully assemble a VaWa self-petition. ILT

y. Judd Azulay is a founder of Azulay, Horn & Seiden, LLC in Chicago, where rebecca Whiting is an associate, and lun tonsing is a paralegal.Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.


Call to MissionRecognize that there is a larger purpose to what you do, and that you stand in service of others. Immigration law is more than a profession; it is a calling. other lawyers are less fortunate, in that they do not always see the direct benefit of the work they do. For example, the adversarial nature of litigation or divorce law results in a clear winner and loser.

on the other hand, immigration law can be a win-win situation for all parties involved, be it the employer sponsor, cli-ent beneficiary, and even this country. The purpose of immigration law is to help the United States. Immigrants con-tribute greatly to the american work-force and economy. Remembering this will create a happier mindset and make you more motivated and fulfilled.

Walk in the Client’s ShoesPut yourself in your clients’ shoes. Recognize the fears and unknowns in immigration with which they must contend. No matter how fearsome the challenge may be to you, the challenge to your clients is much greater. The cli-ents are counting on you. you have the knowledge, skills, and experience to help them achieve their goals.

Know your opponentavoid the temptation to think that the government is necessarily a formidable adversary. often the government is plagued by inefficiency. It is easier to beat a bureaucracy than a motivated oppo-

nent. Consider the special privilege that lawyers have. We take on the government and force it to be reasonable. Few citizens have that direct opportunity on a regular basis, but immigration lawyers do.

rejuvenate and refocusChange brings opportunities. But too much change too quickly can lead to burnout. you know you need a break when the enactment of a new law or promulgation of a new regulation causes you to cringe in fear of having to learn something new. Take a break to restore your balance and reinvigo-rate yourself. Book that much-needed vacation, join a biking club, enroll in an acting class, schedule a therapeutic massage, or take a walk in the park. once refreshed, you will recognize that a new law or regulation creates oppor-tunities for new business, new product offerings, and new ways to be creative in serving your client.

Mix It UpMix up your immigration practice. For example, take on a pro bono asylum or a Violence against Women act (VaWa) case—under proper supervision, of course, if you have not done one before. Winning asylum or VaWa for someone brings great psychological rewards, and can help you regenerate passion for your overall immigration practice.

Network or Not Work!do not isolate yourself. Network, reach

out to others, and find a mentor. Par-ticipate in aILa National and chapter events. Start a Brain Trust or Master-Mind group and meet regularly. Having many people thinking about a hard is-sue usually will result in a better answer than just relying on yourself, and it is more fun to brainstorm in a group.

happy thoughtsFocus on the law of attraction. If you per-ceive that only negatives are coming your way, be assured that they indeed will. But the reverse also is true. Keep inspirational quotes on your desk and look at them ev-ery day. Remember, nothing is as bad as it first appears. do not panic, for as moti-vational speaker Willie Jolley reminds us, “a setback is a set-up to a comeback.”

expand your horizonIt is important to associate with people outside the immigration arena and try new activities to generate fresh ideas. Make friends (and potential new clients) at cocktail parties or yoga classes. Create a video or write a poem rather than an article. Read widely, be it fiction, nonfic-tion, or periodicals—it is a way to exer-cise the mind and avoid burnout. also, develop a niche around what you love. Look to what you enjoy and incorporate that into your immigration practice.

Work and PlayMake time for fun in your everyday work life. Conduct immigration con-tests among coworkers, such as

Passion and Perseverance Amid Immigration Crises

This is the time oF immigration crises, from H-1B cap issues, to worksite enforcement and raids—not to mention a rising popular sentiment against immigrants and their lawyers, just to catch the tip of the iceberg. However, immigration crises also create golden opportunities for immigration lawyers. Thus, it is im-

portant for you as the practitioner to forge ahead with persistence and perseverance. Now, more than ever, you need to keep your passion alive and remember why you have chosen this noble cause of advocacy and representation.

practice management / by Angelo Paparelli and Stephen W. yale-loehr

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whoever uses the word “alien” in speech or writing has to put 25 cents into a kitty that goes to buy snacks for the immigration group. organize bowl-ing contests or softball games with other immi-gration firms and local agencies. Consider a firm retreat. add an immigration haiku poem or trivia contest to your newsletter.

Practice Makes PerfectKeeping passion alive in your immigration practice is the same as keeping passion alive in any long-term relationship, such as marriage. Keep working at it, try something new and exciting to avoid complacency, and make time for fun on a daily basis. ILT

Angelo Paparelli is managing partner of Paparelli & Partners LLP with offices in New York and California, and Stephen W. yale-loehr is of counsel at Miller Mayer, LLP in New York and adjunct professor at Cornell University Law School. This article was adapted from a podcast accessible via download at www.aila.org/podcasts exclusively for AILA members. Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.

AIlA PoDCAStS For MeMBerSAiLA enters the virtual world of pod-casting! members can subscribe for free by going to www.aila.org/podcasts and clicking on the “subscribe now” link. once members have subscribed, they automatically will receive new AiLA podcasts each month. these podcasts are short audio files—approximately 15 to 20 minutes in length—that members can download to their computer and listen to imme-diately or anywhere by using a portable media player. the topics will vary each month—from quick tips on tricky sub-stantive law issues to entertaining and informative interviews.

Practice Management passion and perserverence amid immigration crises


Inadequate Counsel Soriba Fadiga entered the United States in 1991 using a fraudulent U.S. nonim-migrant visa and fraudulent Guinean passport, which he obtained in Cote d’Ivoire after fleeing his native Guinea. Fadiga was served with a Notice to ap-pear in September 1992. He then filed an application for asylum, withholding of removal, and protection under article III of the U.N. Convention against Torture and other Cruel, Inhuman or degrading Treatment or Punishment (CaT).1

Prior to filing his U.S. Citizenship and Immigration Services (USCIS) Form I-589, Fadiga was interviewed by a law clerk employed by his original counsel. Fadiga did not meet with his counsel until shortly before the hearing on his application for asylum and related claims. The Form I-589 that was filed on Fadiga’s behalf was not reviewed by his counsel and contained numerous er-rors. at his hearing in May 2004, Fadiga testified and produced nine documents, three of which supported his testimony about his fear of being arrested, tortured, or killed if he was returned to Guinea. at the close of the hearing, the immigration judge (IJ) issued an oral decision deny-ing Fadiga’s request for asylum as being time-barred, denying the requests for

withholding of removal under the Im-migration and Nationality act (INa) and protection under the CaT on the merits, and ordering Fadiga removed to Guinea. (See Fadiga, at 145).

Fadiga then filed a motion to reopen his removal proceedings through his original counsel. Nine days later, he filed a Notice of appeal with the BIa using newly obtained counsel. The BIa took jurisdiction over both the motion to re-open and the appeal. The sole ground of the appeal and the motion to reopen was the alleged ineffective assistance of counsel. In october 2005, a single mem-ber of the BIa filed a three-page decision dismissing Fadiga’s appeal and denying the motion to reopen (which the BIa considered as a motion to remand).

Ineffectiveness ClaimsThe IJ found “glaring inconsistencies” be-tween Fadiga’s testimony and his applica-tion for asylum, including his education, alleged familial relationship with Sekou Toure, technical names and abbreviations of Guinean political parties, issues of credibility relating to his testimony about these political parties, and the timing of his move to Ivory Coast. (See Fadiga, at 147–48). Fadiga addressed the IJ in court and explained that these inconsistencies

were due to errors by his counsel, rather than from inconsistencies in his memory. (See Fadiga, at 147).

Fadiga testified that he was a close relative of Sekou Toure, the first presi-dent of independent Guinea, who held office from 1958 until his death in 1984. Fadiga had been active in Toure’s political party, the PdG, which was ousted from power in a coup that occurred shortly af-ter Toure’s death. Fadiga testified that the murder of his uncle, Ismail Toure, was po-litically motivated. due to alleged political repression and threats, both Fadiga and his father fled Guinea for Cote d’Ivoire. Soon after his departure, the Guinean government issued a warrant for Fadiga’s arrest. Fadiga testified that he was abso-lutely sure that he would be arrested upon arrival at an airport in Guinea and impris-oned for the reasons he had set forth on the record. (See Fadiga, at 146).

Fadiga also testified that he was not informed by his original counsel of the need to produce witnesses or to verify the authenticity of his proffered docu-mentary evidence. He stated that had he known, he would have produced “many witnesses and much more in the way of evidence.” (See Fadiga, at 148).

Fadiga’s original counsel addressed the IJ and admitted that neither he nor

Third Circuit Adopts “Reasonable Likelihood” Standard for Ineffectiveness of Counsel Claims

in Removal Proceedings

The u.s. third circuit court oF appeaLs recently adopted a new standard that probably has many immigration practitioners thoroughly reviewing their work before filing anything on a client’s behalf. In Fadiga v. U.S. Attorney General, 488 F.3d 142 (3d Cir. 2007), the Third Circuit reversed a decision by the

Board of Immigration appeals (BIa) and held that a nonimmigrant need only show that there is a reasonable likelihood that the result of his or her removal proceeding would have been different given effective assistance of counsel. (See Fadiga, at 154, headnote 9).

legal action / by Brian Green


Fadiga had reviewed the application for asylum—either before filing it or in preparation for the hearing. original counsel proffered that his law clerk had met one time with Fadiga and that there had been problems with other Form I-589s that this law clerk had similarly prepared. original counsel also stated that had he informed Fadiga of the need to produce evidence, they would have called at least four witnesses to testify. The IJ rejected a proffer of the names and addresses of these purported wit-nesses and denied Fadiga’s application in its entirety. (See Fadiga, at 148–49).

The BIa decision found that regard-less of whether Fadiga had met the pro-cedural requirements for an “ineffec-tiveness of counsel” claim, his motion would be denied because he had not been prejudiced. (See Fadiga, at 152). The BIa also applied a “more likely than not” standard to Fadiga’s ineffectiveness of counsel claim relating to his claim for withholding of removal. Concluding that Fadiga failed to demonstrate prima facie eligibility for withholding under the INa or the CaT, the BIa found that Fadiga could not establish that he had been prejudiced by the actions of his for-mer counsel. (See Fadiga, at 153).

Applying Lozada and StricklandNoting the government’s argument that Fadiga could not succeed on his petition because he had not strictly satisfied the requirements of In re Lozada, 19 I&N dec. 637 (BIa 1988), the Third Circuit set forth its own standard. The court held that the proper inquiry in an ineffective-ness of counsel claim is whether there is a “reasonable likelihood” (or, synony-mously, a “reasonable probability”) that the result would have been different given effective assistance of counsel. The court found that the BIa had erred in requiring Fadiga to show a “clear probability” that the result of his case would have been dif-ferent. (See Fadiga, at 154).

The court noted that Fadiga had sat-isfied the first two Lozada requirements by filing an affidavit and providing his former counsel an opportunity to re-

spond. Fadiga did not file a bar com-plaint and did not explain this failure as part of his motion or appeal. In its writ-ten opinion, the BIa cited to the Third Circuit precedent in Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001), when dis-cussing the affidavit that was submitted by Fadiga’s original counsel. In Lu, the Third Circuit noted the “dangers … in applying a strict, formulaic interpreta-tion of Lozada.” The court then empha-sized that the BIa cited to the portion of its opinion in Lu that held that “the filing of a complaint is not an absolute requirement,” and that “failure to file a complaint is not fatal if a petitioner provides a reasonable explanation.” (See Fadiga, at 156 (emphasis in original)).

The court noted that the BIa’s cita-tion to Lu—in relation to original coun-sel’s affidavit—would be construed as its acceptance of a reasonable explanation of Fadiga’s failure to file a bar com-plaint. Furthermore, when the Lozada requirements are met or excused, the

BIa should apply a two-part, error-and-prejudice test. (See Fadiga, at 157, citing to Zheng v. Gonzales, 422 F.3d 442 (3d Cir. 2005); cf. Strickland v. Washington, 466 U.S. 668 (1984)).

In deciding the proper formulation of the standard by which prejudice is to be measured in considering such a claim, the Third Circuit noted that the government’s supplemental brief cited to its recent de-cision in U.S. v. Charleswell, 456 F.3d 347 (3d Cir. 2006). In Charleswell, the Third Circuit adopted the position of “the ma-jority of courts that had addressed the issue” and held that a showing of “preju-dice requires a reasonable likelihood that the result would have been different if the error in the deportation proceeding had not occurred. (See Fadiga, at 158, citing to Charleswell, 456 at 361–62).

after noting the similar Second Cir-cuit decision of U.S. v. Copeland, 376 F.3d 61 (2d Cir. 2004), the Third Circuit agreed with the government that the Charleswell “reasonable likelihood” standard—

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or its equivalent, the “reasonable probability” standard—also is appropriate to the prejudice inquiry in the context of an alleged denial of due process in removal proceedings due to ineffective assistance of counsel. (See Fadiga, at 158–59, headnote 19).

However, the court explained, while a “reasonable likelihood” of a different out-come requires more than a showing of “a plausible ground for relief from deporta-tion,” it does not require that a different outcome was “more likely than not.” In discussing this standard further, the court stated, “This standard is not a stringent one.” (See Fadiga, at 161, citing to Thomas v. Varner, 428 F.3d 491 (3d Cir. 2005)).

The Third Circuit held that the record made clear that Fadiga’s original counsel’s performance was deficient and “severely compromised Fadiga’s capacity to pres-ent his claims cogently to the Immigration Court.” The court then found that there was a reasonable likelihood of Fadiga achieving a favorable outcome at his May 2004 immigra-

tion hearing had his original attorney per-formed effectively. (See Fadiga, at 162–63).

☛ Practice Pointer: When fil-ing a motion or appeal based on a claim of ineffectiveness of counsel, always include any response received from the nonciti-zen’s allegedly ineffective counsel with the noncitizen’s pleading asserting the claim.

other Circuits’ InterpretationsThe First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits have addressed claims of ineffectiveness of coun-sel in a variety of ways. In Campos-Javier v. Gonzales, 2007 U.S. app. 18108 (1st Cir. 2007), the First Circuit refused to reverse the BIa’s denial of a motion to reconsider, where an alien failed to meet the require-ments of Lozada by failing to inform his prior counsel of his claims, and for not af-fording her the opportunity to respond to such claims. (See Campos-Javier, at 5–7).

The Second Circuit dealt with the issue of claims of ineffectiveness of counsel in deportation proceedings in Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000). The court held that Iavorski was barred from succeeding on his petition because he failed to exer-cise due diligence in waiting more than two years to file his appeal. (See Iavorski, at 128–30 and 134–35).

In Barry v. Gonzales, 445 F.3d 741 (4th Cir. 2006), the Fourth Circuit upheld a de-nial of a motion to reopen where the alien failed all three requirements of Lozada. (See Barry, at 12–13.)

In Mantell v. INS, 798 F.2d 124 (5th Cir. 1986), the Fifth Circuit held that an alien must show prejudice to his or her constitu-tional rights in order to prevail on a claim of ineffectiveness of counsel in a deportation proceeding. (See Mantell, at 128, citing to Strickland, supra).

In Patel v. Gonzales, 2007 U.S. app. LEXIS 18765 (7th Cir. 2007), the Seventh Circuit cited Fadiga when denying a mo-tion to reopen where the alien failed to sub-stantially meet the requirements of Lozada by failing to inform his original counsel of his claims of ineffectiveness and not supple-menting his later counsel’s responses to the BIa. (See Patel, at 6–12).

In Obleshchenko v. Ashcroft, 392 F.3d 970

(8th Cir. 2004), the Eighth Circuit rejected an absolute constitutional right to effective assistance of counsel for asylum claims. (See Obleshchenko at 971). However, the Eighth Circuit has recognized a due process right to fundamentally fair removal proceedings. (See Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004)).

In Maravilla Maravilla v. Ashcroft, 381 F.3d 855 (9th Cir. 2004), the Ninth Circuit held that the BIa abused its discretion by applying the wrong standard to a claim of ineffectiveness of counsel. The BIa errone-ously required the aliens to make a prima facie showing of their eligibility for relief. The court held that the BIa should have asked only whether the attorney’s deficient performance might have affected the pro-ceedings—not whether the aliens would ultimately prevail on their claims. (See Maravilla, at 857–59).

In Pavlova v. U.S. Attorney General, 2007 U.S. app. LEXIS 18070 (11th Cir. 2007), the Eleventh Circuit upheld an IJ’s denial of a motion to reopen where the alien failed to satisfy Lozada and failed to show that she was prejudiced by her counsel’s alleged in-effective conduct. (See Pavlova, at 11–12).

reasonable likelihood of effective Counselas seen by recent trends in other circuit courts, the Third Circuit is the latest to adopt a standard that is easier for the plain-tiff to satisfy when bringing a claim of inef-fectiveness of counsel. So long as the plain-tiff shows due diligence in satisfying at least two of the Lozada requirements, he or she only needs to show a reasonable likelihood that the result of the removal proceeding would have been different had there been effective assistance of counsel. ILT

Brian Green is a member of AILA’s Washington, D.C. Chapter.Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.

Notes1 See U.N. Convention against Torture and other Cruel, Inhuman or degrading Treatment or Punish-ment (CaT), adopted dec. 10, 1984, 1465 UNTS 85, 23 ILM 1027, implemented in the U.S. by the Foreign affairs Reform and Restructuring act, Pub. L. No. 105-277, §2242, 112 Stat. 2681-822 (1998) (codified as Note to 8 USC §1231).

legal Action third circuit "reasonable Likelihood" standard

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Publication title: Immigration Law Today (Publication No. 1532-1398); filing date: Sep-tember 26, 2007. Published bimonthly (six times a year); annual subscription price: $72. Known office of publication and mailing address of general business office of publisher: 918 F Street, NW, Washington, D.C. 20004; contact person: Tatia L. Gordon-Troy, (202) 216-2400. Editor: Tatia L. Gordon-Troy. Complete mailing address of editor: 918 F Street, NW, Washington, D.C. 20004, and owner and publisher: American Immigration Lawyers Association (AILA), 918 F Street, NW, Washington, D.C. 20004. Known bondholders, mortgagees and other security holders owning or holding 1 percent or more of total amount of bonds, mortgages or other securities: none.

Publication title: Immigration Law Today. Issue date for circulation data below: July/Au-gust 2007. Extent and nature of circulation: “Average” (avg.) figures denote the number of copies printed each issue during the preceding 12 months; “actual” figures denote number of copies of single issue published nearest to filing date, the July/August 2007 issue. Total number of copies printed: avg. 11650, actual 11900. Paid circulation: (1) avg.10433, actual 10733; (2) avg. 0, actual 0; (3) avg. 0, actual 0; (4) avg. 181, actual 9—total paid circulation: avg. 10614, actual 10742. Free distribution by mail: (1) avg. 0, actual 0; (2) avg. 0, actual 0; (3) avg. 91, actual 100. Free distribution outside mail: avg. 50, actual 0—total free distribution: avg. 141, actual 100. Total paid/requested distribu-tion plus total free distribution: avg. 10755, actual 10842. Copies not distributed: avg. 895, actual 1058. Total distribution plus copies not distributed: avg. 11650, actual 11900. Percent paid/requested circulation: avg. 98.7 percent, actual 99 percent. Subscription is a benefit of paid membership. I certify that all information furnished on this form is true and complete. Tatia L. Gordon-Troy, Editor. COPYRIGHT ©2007 American Immigra-tion Lawyers Association, Inc.


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on the Move n Leigh Ganchan has joined Haynes and Boone LLP in Hous-ton and leads the firm’s immigration practice group.

n Ivener & fullmer LLP in Los angeles is pleased to announce the firm’s new partner, Nelson A. Cas-tillo, former president of the Hispanic National Bar association.

n Crowe & Dunlevy welcomes Jasmine Majid as director in the firm’s oklahoma City office.

n trow & Rahal, P.C. in Washing-ton, d.C., is pleased to announce that Stacy Shore has joined as senior attorney.

n the Law Offices of Linda W. Lau in Los angeles is pleased to announce its new associate, tina Lee Bay.

n Walter G. Unglaub, III recently became of counsel to the Law Of-fices of Jerry Goh in matters of immigration, federal jurisdictions,

honors and Appointments■ Christopher Nugent was honored at the National Immigration Law Center’s Inaugural awards dinner for his contribution in advancing the rights of immigrants.

■ the Congressional Coalition on Adoption Institute honored Irene Steffas in october as an Angel in Adoption™ in recognition of her excep-tional contributions to international adop-tion and children issues.

■ Former aILa President Leon Wildes was honored by Yeshiva University for his prominence as a community leader at an annual gala dinner in New york in october 2007.

Please send your “Status Checks” to [email protected].

Calling All Writers!The skill of writing is to create a con-text in which other people can think. —Edwin Schlossberg

are you interested in writing for aILa’s Immigration Law Today, the premiere journal serving the im-migration law field? We’re always in need of well-written, quality articles on matters of interest to the immigra-tion bar. our team of experienced legal editors can help you shape your ideas and present them in a way that will engage the reader and provide valuable insight and advice to our au-dience of experienced practitioners. For more information, contact us to discuss your ideas and deadlines for submissions at [email protected].

■ John Keller, Executive director of the Immigrant Law Center of Minnesota, received the 2007 Minnesota Council of Nonprofits Advocacy Award in duluth, MN.

Announcements

■ The denver immigration law firms of Stern Elkind & Curray LLP and Carter & Alterman LLP merged to form Stern Elkind Curray & Alter-man LLP.

■ Kimberly E. Harrison and Noure Alo have opened a boutique immigration law firm, Harrison Alo, Attorneys at Law, in Columbus, oH.

■ Orit Levit recently opened a new of-fice, All Immigration Law Group, in Sherman oaks, Ca.

■ Liam Schwartz is pleased to an-nounce the opening of his new office in Israel, Liam Schwartz & Associates.

■ Marc Van Der Hout and fellow counsel were successful in having the Board of Immigration appeals dismiss all charges against the two remaining student activists who were arrested with six others in January 1987—Khader Hamide and Michel Shehadeh—known as the LA8. The 20-year-old case is one of the nation’s longest-running and most controversial deportation cases.

■ Jeff Margolis testified before the New york City Council’s Immigration and Civil Rights Committees in September 2007 on “The Impact of Recent Federal Border Se-curity and Immigration Enforcement Ini-tiatives on Civil Rights in New york City.”

■ Karol Brown and Margaret (Peg-gy) O’Donnell in May 2007 opened their firm, Global Law Partners LLP, in Seattle’s Pioneer Square district.

New Parents

■ Lisa Palter and her husband, Edwin DeShazo, are thrilled to announce the birth of their daughter, Olivia Louise, in June 2007.

In Memoriam

■ Long-time aILa member David Carliner passed away on September 19, 2007. david spent a life-long career challenging state and federal laws on segregation, mixed-race marriage, ille-gal immigrants, and homosexuality.

■ Mikre Michael Ayele passed away in May 2007 while visiting fam-ily in addis ababa, Ethiopia. Mikre’s memorial service included the inau-gural fundraising event for the Mikre Michael Ayele foundation, which provides legal services to those in need.

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Family and Citizenship Marital Disharmony VAWA Petitions

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Transcript of Family and Citizenship Marital Disharmony VAWA Petitions