I’m listening to attorney Eleanor Adams, who’s been practicing immigration law locally for 25 years. By phone, she’s outlining, breathlessly, our labyrinthine federal system of percentage quotas, monthly resets, and congressional reform proposals for the two big categories of immigrants: family-sponsored (relatives) and employment-based (workers). As of 2009, immigrants composed 12.5 percent of the population — 38 million souls. A little less than half of those are naturalized; the rest reside here legally or illegally.
Immigration discussion with Harun Kazmi
Harun Kazmi, an immigration attorney in the Kearny Mesa offices of Kazmi and Sakata, discusses the process of becoming a legal immigrant to the United States, from a San Diego perspective.
I dare not interrupt Adams: such a seminar is like a first-semester course at Thomas Jefferson School of Law.
Seventeen minutes into her monologue, I’m muzzy-brained from listening to her legalese: status, exemptions, chargeability tumble together like Cirque du Soleil performers. Finally, I find a space to enter: maybe, I say, we can take a step back and define legal and illegal.
“It’s very easy,” she says, “to say that this person is legal and this person is not legal — then you feel like these guys are the good guys and those guys are the bad guys.”
Adams says that when people come to her she tries to determine whether they have “potential status,” that is, they may have a legal case. Some people she helps “apply and are put into a court proceeding. Some go in or out of detention. There’s a lot who are in between. You get to stay so long as you do not fall out of status.” This limbo is your home long before you get that most prized possession, a green card, making you a permanent legal resident.
Here’s an example of limbo: A Mexican woman, a client of Adams’s, came to the U.S. as a child. When the child was a teenager, her mother, a U.S. citizen, applied for her daughter to stay permanently on the basis of hardship — she needed her daughter to care for her. The daughter received a temporary work permit or visa and was allowed to stay. But she cannot travel outside the country. If she did leave and reenter, she’d be detained and deported. Eighteen years later, the woman, whose work permit is renewed yearly, is still waiting, despite her being married to, and abandoned by, her American-born husband. Why? Adams says it’s the quotas.
Mexican nationals have one of the longest waits for dependent visas of anyone except Filipinos. Some Mexicans have been in America and idling, legally, since 1990. For Filipinos, only now is the United States Immigration and Customs Enforcement Service processing those who applied 24 years ago.
Adams says that people come to her for a consultation; they listen; they nod their heads; they seem to understand. “But then a point comes when their exasperation erupts: ‘This doesn’t make any sense.’ And then I say, ‘Ah, you do understand.’”
The moment of levity is such that we both burst out laughing.
Is it true, I ask, that we can label these folk “legal” immigrants?
True, she says. There are 4.4 million on the so-called waiting list (it’s an estimate, not an actual list), with actual or potential status. Forget the 11 million illegals whose plight the media and anti-immigrant politicians concentrate on far more than the plight of the legal. Though legal immigrants follow the rules, they are largely silent, fearing immigration officials will investigate their claims or send them packing. I know; I could find few who would talk about their status.
From the Philippines to Canada to America
One who did is Kare, a nurse in her mid-30s, who asks, her voice as thin as Bible paper, that I use no identifying details about her, beginning with her real name. Kare spoke with me beside her lawyer, Harun Kazmi, an immigration attorney in the Kearny Mesa offices of Kazmi and Sakata.
A Filipina, Kare came to San Diego via Canada. Growing up, she wanted to go abroad because of low wages there and the high wages everywhere else. “Sixty percent of Filipinos want to come to America,” she says. After nurse training, she emigrated to Canada to work. (“I thought I would like Canada, until I felt those winters”) and became a Canadian citizen. But she always wanted to come to the U.S. To work. Not to be a citizen. To practice nursing. That was her goal.
Within two months of her November 2006 arrival, she was hired at one of San Diego’s two monster S-initialed hospital chains. She loves her job. Her boss supports her and reminds her each year to renew her temporary work permit: go out of the country and come back in at a port of entry with her job offer letter.
Another reason she came is that under North American Free Trade Agreement, Mexicans and Canadians can come to the U.S. for job interviews as part of the trade agreement. The government classifies certain jobs — nurses, software engineers, doctors, scientists — as necessary to our economy. Half of scientists and engineers who have doctorates are immigrants. We simply do not graduate enough in those highly specialized fields.
Though she was given a one-year temporary visa and earned a driver’s license, hers is not a secure position. “Every year when I renew my visa,” she says, “there’s the possibility that I’ll be denied. I might answer the questions wrong.” This, she says, made her nervous, especially the first few years before her work experience here gave her confidence.
The irony is, “the longer she extends her visa, the more it appears” to Immigration and Customs Enforcement “that she’s going to be here forever,” say Kazmi. The agency starts to “red-flag” her, asking, in essence, what is her plan and why doesn’t she go back to Canada. Kare says that she intended to stay and work for five years but now wants to get a green card because “I love my job.”
We hear all the time about the nursing shortage. Hospitals fill the breach with nurses from other countries. Not a surprise, there’s also a high turnover in the field — the hours, the patients’ and the doctors’ demands, the emergencies — which means that Kare is needed more than ever. “In my department, U.S. nurses come in, work six months or a year, then quit.” Over-stressed, they move on to clinics where they hear things are a bit calmer. Another plus is that a shortage of nurses means the immigration-renewal process for temporary, noncitizen nurses is much less of a hassle. The government recognizes the need, says Kazmi.
So, after three years at the hospital, in 2010, Kare met with Kazmi to become permanently legal. Now her problem is the backlog. In her case, he estimates, six years from 2010. Kare tells me that the whole slog for her green card will take ten years, to 2020. And that as long as her employer renews her visa and the government doesn’t renegotiate her “chargeability.”
A fine example of doublespeak, chargeability means the degree to which your nationality is over- or under-represented in the system. You’re charged though you’ve done nothing. Some nationalities (Filipino, in her case) are “oversubscribed,” Immigration and Customs Enforcement’s word, while Cubans and certain Africans have slots perennially open. The country order from shortest to longest waits is China, India, Mexico, and the Philippines.
Kazmi says that five years ago the nursing shortage was so severe that the government was processing applications to move from temporary to permanent immediately. Those days ended, but “there’s always the hope that they’ll speed up the process again.”
This is one of the most quixotic elements about legal immigration: one’s flotation in the backlog. Typically one is bundled by education level — highly skilled, skilled, unskilled — and there are seldom preferences extended to critical professions. Moreover, Immigration and Customs Enforcement can push the backlog back to open up another category — say, Iraqi refugees in 2002 after the Iraq War began. The bureaucratese for pushing the legal immigrant back down the line is “retrogress a cut-off date.”
Kare gets frustrated. She just came back from Europe, going through a port of entry in Philadelphia. “They weren’t familiar with my visa, so they looked at me, they looked at my card, my passport, they called someone over.” It’s often a committee decision to allow her in, even though they can check to see her status is legal on a computer.
Kazmi explains the risk differently. He says that when Kare first came here, she said it would be temporary — work for several years and go back. That went on her record. Now he’s filed for her to be permanent because the hospital has offered her a permanent job — work here indefinitely. And not go back. That, too, went on her record. So, immigration officials see this “change of heart” and “it works against her,” especially at ports of entry.
He says that officials could detain her at the border and despite her job offer and despite her stellar employment history and valid driver’s license, they could say, “Since you have applied for a green card, why not return to Canada and wait for it there?” “That,” which he doesn’t see coming, “is the worst-case scenario.”
Finally, Kare says that her sympathies for immigrants doesn’t extend to illegals. She sees too many in her hospital environment — whether working there or as patients. “I think the U.S. should be stricter about illegals than it is.”
Kazmi agrees. “I think about the lives of my clients — they go through a lot of money and time. Doing it legally. And then they hear news reports about the ‘other side.’ [Anger at illegals] is a common feeling to have. ‘Why am I bothering?’ my clients think. ‘Why?’”
The most egregious example of a broken system is the Tsarnaev case, the Boston Marathon bombers. Brothers Dzhokhar, who survived, and Tamerlan, who died, came to Boston as minor children refugees with their parents and sisters in 2007. With green cards, they joined the five-year wait to apply for citizenship. After the bombing, the New York Times reported that Tamerlan’s application for U.S. citizenship had been held up because the FBI was investigating him. He was interviewed in January 2011 because he may have had ties to Chechen terrorists. Dzhokhar’s application for citizenship was approved.
The government is not saying which crack the brothers slipped through. Immigration officials may have been monitoring terrorist ties in both. And yet even Tamerlan’s known associations were, apparently, not enough to get the FBI’s full attention. It’s one thing to collect mountains of information and cross-process it among dozens of agencies. It’s another thing to search a stack of needles for the sharpest and most deadly needles.
Post-Boston, and in a non-election year, here comes Congress with immigration reform. A slew of measures are on the table, including one to fast-track investigations of suspected terrorist ties in the 4.4 million. But given sequestration, a government shutdown, and another debt-ceiling crisis — despite Band-Aid fixes — nothing with immigration is getting done.
Enter the American Civil Liberties Union, which has condemned the government’s surveiling of noncitizens such as the Tsarnaevs, made public in its Department of Homeland Security’s Controlled Application Review and Resolution Program for immigrant visas. In a recent report, the ACLU argues that the FBI cast too broad of a net over individuals, typically with “ethnic” and religious identities, it deems “national security concerns.” The watchdogs criticize the government for creating “secret exclusions,” as Jennie Pasquarella, an ACLU attorney, put it. “Before we learned about” this program, “we were seeing patterns of delays and denials, but nobody understood what was behind this.” The ACLU says it amounts to targeting people because of their Muslim faith.
Another immigration attorney I emailed, Allan S. Lolly, added a few more qualms about reform. “If the backlog is reduced,” he writes, “the U.S. population would mushroom quickly without end. Families,” who are waiting for visas, “do not need to live in the U.S. They live in the Philippines or in other countries too. Why here?” He’s also suspicious of so many family-sponsored claims. “Why hand out too many privileges to those who are not immediate family members. A minor child, OK, but an adult child? Wait. Why is that person even in the U.S.?”
Yet another injustice, Lolly notes — and an “incentive not to change the system” — happens with “private companies” who may “benefit by keeping illegals in jail.” Plus, there’s pressure from labor unions not to reform. “If you allow too many work visas, it drives down the cost of labor.”
In California, where legal noncitizens are 10 percent of the population, the state has enacted several new laws: legal immigrants can now serve on juries and monitor voting polls while their misdemeanor crimes will not be reported to federal authorities. But, in the national debate, legal change is kneecapped by politicians, political action committees, and vocal constituents who object to a “path to citizenship” for the undocumented. Congress appears unwilling to legislate the two statuses separately and, thus, the waffling continues.
Legal is invisible
At the breakfast-busy University Club atop Symphony Towers, Brian Johnson is enjoying his scrambled eggs. The 31-year-old tells me that he began practicing immigration law in 2004 as a clerk in the office of the Department of Homeland Security’s chief counsel. He discovered soon that any expertise in the Byzantine complexity of immigration law was an asset; he went from Homeland Security to private practice, filing deportation and green-card cases in Houston. Four years ago he relocated to San Diego to open the Guerra & Johnson law firm.
Johnson says “there’s no question” that people whose cases end up in immigration court have “violated the law. The accusations the government makes against an immigrant are almost 100 percent accurate.” They have overstayed their visas, entered illegally, and committed crimes like marriage fraud, a false claim for citizenship, a frivolous asylum request, a fake passport, the rare aggravated felony — and the government starts proceedings to remove them.
“You hire a lawyer to try and stay here.” He’ll take a person’s case if he believes “relief from removal” is possible. Time and again, Johnson has cases move from “hopeless” to a green card. He charges flat fees, $5000 to $10,000, and cases take an average of three to five years.
Two recent changes have helped open the logjam and unleashed volatile public reaction. President Obama directed immigration courts to use “prosecutorial discretion,” meaning government attorneys could select whom and whom not to deport. In 2012, a new law, Deferred Action for Childhood Arrivals, allowed those who came to the U.S. as children to stay without fear of deportation for two years.
I pose the slippery query: What is the line between legal and illegal?
Johnson says that people who have “claims to status through their families” are legal. “They might think they are illegal, but if they were detained they’d be released because they have documents.” Even if the person has no documentation, immigration will find out they are in the system, have a case pending, and “allow them to stay.”
Illegal, he goes on, means a person who either has snuck over the border and has not made a claim for status or has violated his or her status by overstaying a visa. The standard is, “Are you in compliance with the law, or are you violating the law?”
As for the 11 million illegals, he says, “it’s hard to get your mind around that number. How many of them are border crossers? How many of them are criminal immigrants? How many are overstays? How many have a few violations here or there and need to get legal counsel to have their case resolved? I don’t know what percentage that is.”
Really, the odds are not in a legal immigrant’s favor unless one is highly educated or has an “extreme hardship” case. Even if the government allows in 400,000 immigrants per year — a number that changes based on complex percentages, the occasional political wind, and congressional representatives who go to bat for separated spouses, military cases, and asylum reviews — only one in ten of the “qualified” get permanent legal residency. Poor odds, but not impossible.
Johnson says most of the 4.4 million are safe. Even though they have restrictions — they could be deported if they violated their status via drugs or crime or if they left the country and tried to return — they do have status and their cases, by definition, are pending. Though it may sound counterintuitive, he says, it’s a good thing to be “stuck in a category.”
Why won’t Congress separate legal and illegal immigration reform?
Johnson’s answer surprises me. “It’s hard to address one without understanding the other. Let’s say your concern is border crossers. Do you want to build a wall, add officers? In my experience, everyone who crosses the border — it’s all family. It’s the father who goes back and forth.” And they’ve been doing this border run for decades. They use the mountains, not the port of entry. “Legal clients,” he says, “have the same motivation, family and work. Whether they do it legally or illegally seems to be more their personal option than what the immigration system sets up. They’re going to come either way.”
Green card happy
Not all in Immigration Land are sitting in a stalled van on the freeway. For every ten cases in the race, one crosses the finish line. How easily we forget that for many the goal is citizenship. When I speak with new citizens or immigrants, it’s as if I’m meeting my grandfather — once a 16-year-old Swede, traveling steerage across the Atlantic in 1882, then by barge down the St. Lawrence River, and by train through Ontario to the Iron Range of northern Minnesota, where he toiled with pickaxe and wheelbarrow and dynamite charges in the open-pit mines and saved money to sponsor a brother who came later. How little English he would have known, how dependent he was on his employer, how frightened he felt.
But how free, too, no longer to be in Sweden where military service was compulsory.
I’m reflecting on his adventure and trial when I meet Octavio, 40, an immigrant who has shown the patience of Job in his long haul from Mexico to Fallbrook.
We’re in the North Park immigration “family law” offices of Barbara Strickland, a second-story set of rooms as busy as a hospital ward. A half dozen young Hispanic women, a couple of whom chase and shush two-year-olds, do office chores and make calls for Ms. Strickland, who’s been helping for decades. The office lingua franca is Spanish. “Ninety percent of my clients are from Mexico,” she tells me, “so I had to learn the language.”
Octavio arrives dressed all in black: flimsy nylon shorts, snug black shoes with no socks, black T-shirt, and a cap with a sports logo and frayed bill. He wears black-framed rectangular glasses.
Having freeway-struggled from Fallbrook where he runs his own body shop, Octavio cannot repress a smile: “I’m happy,” he says, “I just got my green card.” Like an adoring son, he looks at Strickland, who lowers her expression, though I catch beams of pride and satisfaction.
In 2006, Octavio came to America. Yes, he was illegal, “hiding” in the shadows, he says, but in his mind he had potential status. He arrived because his father, a first-generation U.S. citizen from Mexico, had applied for him to come. His “papers” took too long to get to him, so he just walked across the border.
Strickland tells me that with her help Octavio was categorized F1, a son or daughter of a U.S. citizen. In 2006, his group was current, which is to say there was no wait. But not long after his arrival, the F1 numbers were lowered and the category lost its currency. Octavio thought he’d get a green card “pretty quick.” He also hoped to bring his own family — a wife and two children — to America once he qualified for permanent legal residency.
In Fallbrook, he began working in his father’s body shop. Family-sponsored, he had obtained a work permit. With a cell phone, he talked with his family in Mexico “almost every day,” sometimes using Skype. He sent money home and saved to pay Strickland. But then, he says, months of languishing turned into years and his slot, based on the date he applied, kept getting pushed back due to “retrogression.” As a result, he hasn’t seen his wife and kids in seven years.
I ask, once more, the infelicitous question—legal vs. illegal. Strickland says, yes, there’s a difference. But any legal clarity falls apart when “looking at the whole family. It’s not unusual where some in a family are citizens, others have green cards, and others are undocumented.” Her job, she says, is to get the undocumented documented. She does warn that if an immigration officer came in and found one of her clients undocumented, he could arrest and place that person in custody. “Subject to removal,” it’s called. “And then he or she has a problem.”
But immigration officials “rarely chase illegals. They almost never raid a law office or detain the undocumented in a Home Depot parking lot because such immigrants may be “in extreme hardship. Even if you are here illegally, your deportation may not happen because your citizen spouse or citizen children would lose support. Or you may have a serious illness that, with removal, would go untreated.” Immigration judges have to be very careful because there’s a limit of 4000 “extreme hardship” exceptions given each year.
Octavio says he doesn’t “feel sad about,” missing his family because he’s “happy right now. I was okay waiting. It takes what it takes.” The main difference between living here and in Mexico is, “you work harder over here but you live more comfortable.”
What’s the biggest change having a green card brings? “I have a lot of responsibilities now that I am part of the society. Plus, I can go back and forth to Mexico.” He’ll soon be on a plane flying home. A reunion, at last. Ironically, the green card’s great advantage for many is to be able to leave the U.S.
Strickland says Octavio can petition for green cards for his children. But his daughter will soon turn 21, which means she’ll have to follow in his footsteps — slotted in the backlog. “It may take her years to get here,” Strickland says. At 21, she is no longer eligible to emigrate on her father’s new status. “That’s a real tragedy,” she says. Octavio’s son is 18, so he may get to come once he applies for a visa.
Does Octavio think of himself as an American, a Mexican, in between?
“I don’t think of myself like any of that. I am what I am.”