News From CLINIC's Case Files
The following are examples of vulnerable immigrants and developments that negatively impact the population served by the Catholic Legal Immigration Network, Inc. ("CLINIC's") affiliate agencies. These examples represent a sampling of problematic cases and issues from across the country.
November 2003: Issue One
1. I-601 Denials (Report from Catholic Social Servies of Phoenix): In late 2002, Catholic Social Services of Phoenix noted a dramatic increase in I-601 waiver denials. Prior to this time, the Phoenix INS district routinely granted I-601 waivers without much documentation of hardship. For example, according to Supervising Attorney Bill DeSantiago, if an I-485 applicant married to a USC submitted a marriage certificate, birth certificates of their children and proof of joint home ownership with the I-601, the INS officer would grant the I-601, presuming that hardship would result if the spouses would separate. Since November of last year, this documentation is no longer sufficient. CLINIC drafted an op-ed on this subject which Mr. DeSantiago placed in the Arizona Republic on February 5, 2003. For a short time after this op-ed appeared, a decrease in I-601 denials was noted. That decrease was short lived and Catholic Social Services continues to see I-601 denials on a regular basis. The office has filed 20 appeals to the Administrative Appeals Court (AAU) for "walk-in" clients (clients whose original I-601 waiver the office did not prepare).
The cases that the office has seen are compelling because (1) the violations committed by the I-485 applicants are so minor (used my brother's border crossing card or used a false green card once to enter the U.S. 10-15 years ago) and (2) the family relationships are very strong.
Case Example: In July of 2003, Mr. DeSantiago had a I-601 denied involving Mrs. X. Mrs. X has been married to a U.S. citizen for more than 16 years, and the couple has two U.S. citizen children, ages 16 and 10. In 1988, Mrs. X falsely claimed to be a U.S. citizen in order to enter the United States from Mexico. Recently, when Mrs. X attempted to adjust her status to that of a lawful permanent resident based on her marriage to her U.S. citizen spouse, the CIS denied her case and her I-601 waiver, finding her inadmissible for willful misrepresentation of a material fact. If the Administrative Appeals Unit does not overturn this decision, Mrs. X will not be able to obtain lawful status and remain in the United States with her family. That would leave Mr. X to raise their children on his own. In addition, Mrs. X would also be separated from her elderly father, who suffers from Parkinson's disease and diabetes.
2. Disabled Elderly Refugee Loses SSI Due to 7 Year Limit
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) limits the amount of time that refugees can receive SSI to seven years from their date of entry into the United States, regardless of whether or not they received SSI during this entire 7-year period. Refugees who began receiving SSI after 8/22/96 (and those who are unable to naturalize) lose their primary source of income seven years after their initial arrival. The first refugees to reach their 7-year limit are beginning to receive SSI cut-off letters.
Case Example: Mrs. G, 60, was a Cuban entrant who became a lawful permanent resident in August 1996. She worked on a farm in Orlando as a fruit-picker for several years until she was physically unable to continue. In September 2001, she applied for SSI benefits and was approved in March of 2002 because she met the income limits and was disabled. On August 22 2003, she was notified that her SSI benefits would expire the following week because she had been in the U.S. for 7 years and her SSI eligibility had come to an end. Because of a mental disability, Mrs. G never learned English and was unable to become a U.S. citizen. SSI is Mrs. G's main source of income and she does not know how she will manage without it. She has no family to assist her other than a brother who lives elsewhere in FL. CLINIC has received reports from more than a half dozen social service agencies with clients in similar situations.
3. Citizenship Delays and Backlogs
a. Elderly Man Waiting for Oath Ceremony Since 1996 Mr. X-, a national of China, turned 80 years old in October 2003, and has been waiting since May of 1996 for his N-400 (naturalization application) to be processed. He has to drive 1½ hours to Houston for all his immigration appointments.
Mr. X- immediately filed his N-400 application in May of 1996. After hearing nothing for two years, in July of 1998, Mr. X- completed a status inquiry form and submitted it to his local then-INS District Office. In August 1998, the INS replied requesting that he update his fingerprints in order to continue processing his application. The next correspondence from the INS was in December 1998, which was a request to appear for a naturalization initial interview in January 1999. He appeared for the interview and passed his citizenship test. In March 2002 Mr. X- again updated his fingerprints.
In May 2002, Mr. X-'s application was recommended for approval. However, he heard nothing from the INS until his fingerprints were expired. In May 2003, he again updated his fingerprints. In August 2003, he filed a case status inquiry and requested to be scheduled for an oath ceremony.
Also in August 2003, an accredited representative at the Catholic Charities Diocese of Beaumont, contacted CIS. CIS informed her that Mr. X- was going through a name check and indicated that they would try to expedite Mr. X-'s case. In October 2003 he was again requested to update his fingerprints and is still waiting for an oath ceremony.
b. Oath Ceremony Cancellations Delay Citizenship
In Houston, Catholic Charities has three clients who passed their citizenship exams and were scheduled to attend oath ceremonies in December 2002. Due to the implementation of changed FBI security checks for naturalization applicants, the oath ceremonies were cancelled and have yet to be rescheduled. After these cases were brought to the attention of CIS Headquarters by CLINIC, all three of the individuals were scheduled to have their fingerprints taken again. Catholic Social Services of Lansing/St. Vincent Home, Inc. in Michigan also has an Iraqi client, Mr. A-, who was originally scheduled to attend his oath ceremony in December 2002. He received a Notice of "De-Scheduling" just before his scheduled oath ceremony. Despite inquiries, he has yet to be rescheduled for an oath ceremony. In May 2003, the Office of Senator Carl Levin assisted Mr. A-'s legal representative in ascertaining the status of his oath ceremony. CIS recently informed CLINIC that his FBI name check had still not cleared, thus the delay in scheduling him for an oath ceremony.
c. Other Citizenship Backlogs
Catholic Charities of Amityville has ten clients who filed naturalization applications in December 2001. The clients all had their fingerprints taken in April 2002, but despite repeated inquiries as to the status of their applications, have yet to be scheduled for citizenship interviews
4. Somali Clients Beaten and Transferred from Orleans Parish Prison (OPP)
On September 14, 2003, a Somali asylum-seeker represented by Hiroko Kusuda, a CLINIC Detention Attorney in New Orleans, was involved in a fight with an American inmate/trustee at the Orleans Parish Prison (OPP). The fight arose from a disagreement over a T.V. channel. When a second Somali asylumseeker (also represented by Ms. Kusuda) intervened to break up the fight and was severely beaten by another American inmate, he fell unconscious for approximately 20 minutes. He was later taken to the hospital for medical attention. The fight was blamed on the Somali asylum-seekers, who are commingled with criminal inmates at the OPP. A few days after the incident, a third Somali asylum-seeker (also a client of Ms. Kusuda), who witnessed the fight and who translated for the other Somalis, was beaten by a criminal inmate/friend of the trustee involved in the September 14th fight.
On October 3, 2003, Ms. Kusuda learned that all three of her clients had been transferred from OPP to the Tensas Parish Detention Center in the Western District of LA (five hours from the CLINIC New Orleans Office). These transfers were intentional and punitive. Two of the asylum-seekers had pending habeas petitions and temporary restraining orders in the Eastern District of LA. In these two cases, the government had previously filed a motion to dismiss for lack of jurisdiction because the individuals had previously been moved out of the Eastern District of LA. When they were transferred back to the OPP in the summer of 2003, Ms. Kusuda filed a memorandum in support of her objection to the government's motion to dismiss, since the individuals were now in back in the Eastern District of LA. After the October 3, 2003 incident at OPP, Ms. Kusuda did not want these clients transferred out of the jurisdiction of the Eastern District of LA, because such transfer would bolster the DHS' motion to dismiss the habeas for lack of jurisdiction. In the case of the third Somali, a judge had actually issued an order prohibiting the DHS from moving the client out of the Eastern District of LA. The DHS' move of that individual to the Western District of LA clearly violated that order. After two weeks of intense advocacy with attorneys in the DHS Civil Rights Office, two of the three Somali asylum-seekers were released and are now at home with their families. CLINIC continues to advocate with the DHS to obtain the release of the third Somali asylum-seeker.
5. I-94 Replacement Problems
CLINIC has received SEVERAL examples of I-94s issued to asylees and refugees by both CBP and CIS, with errors. Four of the most common errors involve (1) I-94s marked with an expiration date instead of "for an indefinite period of time," (which is inconsistent with INA Sections 207 and 208 which state that asylee and refugee status is granted for an indefinite period of time) or I-94s that are not stamped at all; (2) I-94s with incorrect dates of birth, or incorrectly recorded dates of birth, which consequently appear inconsistent with the individual's date of birth that is correctly recorded on his/her EAD; (3) I-94s with incorrect names; and (4) I-94s with incorrect alien registration numbers. These errors result in an array of problems for asylees and refugees. Employers, medical care providers, the Social Security Administration (SSA), the Department of Motor Vehicles (DMV), and other government agencies often require I-94s before providing vital services to asylees and refugees. Currently, there is a 15-month backlog at the Nebraska Service Center to receive a replacement I-94 originally issued by CIS. There is no mechanism in place for individuals issued I-94s with errors by CBP to get a replacement I-94.
At an August 26, 2003 CIS-CBO Meeting, CIS stated that it would not correct an I-94 issued by CBP. At that meeting, the only solution that CBP offered to asylees or refugees issued an I-94 with an error was to return to his/her point of entry to receive a corrected I-94. This solution is not realistic, as many refugees and following-to-join asylees often enter at points of entry, and then continue on additional flights or via land to their final destination. Some refugees and asylees do not realize that their I-94s were issued with errors until after arriving at a final destination, which may be several hundred miles from their initial point of entry. It would be burdensome and costly for such an individual to return to the original point of entry to obtain a corrected I-94. Moreover, once a refugee or a following-to-join asylee exits a point of entry at an airport, it is nearly impossible for him or her to return, through security (without a plane ticket or a prearranged escort) to the CBP office/area where the I-94 was initially issued.
After CLINIC drafted and sent a follow-up sign-on letter to CIS and CBP this issue remains unresolved. At a September CIS-CBO meeting, CIS agreed to issue a memo instructing local CIS District Offices to issue new I-94's on-the-spot, to individuals who have been issued I-94's with errors by the asylum office or CIS offices. CIS informed CLINIC that they would continue to work with CBP to find a solution to the problem of I-94's issued with errors by CBP, but that replacement I-94 applications filed with Service Centers for I-94's issued by CBP would not be processed by CIS, since CIS did not have the authority to make changes to CBP issued I-94's.
Case Example: Incorrect Expiration Date on I-94 Causes Family Hardship
Ms. X was granted asylum in the United States and filed an asylee relative petition for her children. When her children entered the United States at the JFK airport point of entry, the CBP issued her children I-94's with one-year expiration dates. Since the children entered as following-to-join asylees, their I-94's should have been issued "indefinitely". Due to this error, her son has not been able to obtain an unrestricted Social Security card and cannot work (even though he has his EAD). Her daughter was refused financial aid by a school that determined her I-94 to be "invalid".
6. Missing File Results in 1 Additional Year of DHS Custody after Travel Documents Issued
Mr. E entered the United States as an LPR at the age of 14. He has two U.S. citizen children and a criminal conviction that landed him in removal proceedings. In October 2001, the BIA dismissed Mr. E's appeal of an IJ's decision to deny his request for protection under the Convention Against Torture. In mid-May 2002 the INS requested the Guyana Embassy to issue travel documents for Mr. E. At his first custody review hearing in late summer 2002 he was informed that the Embassy had yet to issue his travel documents. At the custody review hearing Mr. E was informed that he would not be released because the INS was unable to verify his home address, when, in fact, E's father had provided this information to Mr. E's deportation officer. After multiple phone calls to the Guyana Embassy, in November 2002, Mr. E's attorney confirmed that the Guyana Embassy had received and was still processing Mr. E's travel document request.
In December 2002, Mr. E sent a request for release to the Headquarters Post-Order Detention Unit (HQPDU). Over the following seven months, Mr. E's attorney was directed to HQPDU, the Boston District Office and Immigration and Customs Enforcement (ICE) in Boston, each location providing conflicting information over where a release request should be sent and where it should be on file. Finally, on April 11, 2003, after placing a call to a supervisory officer at HQPDU, Mr. E's file was located by HQPDU. After reviewing the file HQPDU discovered that the Guyana Embassy issued Mr. E's travel documents in November 2002. HQPDU assured Mr. E's attorney that Mr. E would be put on the next available flight to Guyana.
Mr. E received a custody decision letter from HQPDU on July 10, 2003, informing him that DHS would continue his detention, ignoring evidence that demonstrated that Mr. E had travel documents, family in the United States, employment upon his release, and that he had successfully completed anger management and alcoholism courses.
On July 24, 2003, Mr. E's attorney learned from ICE in Boston that Mr. E's file had been moved to the "Transportation Unit" but due to an office move, travel set up was taking longer than normal. The officer assured Mr. E's attorney that he was in line for an escort to Guyana. Finally, in November 2003, after a newspaper article was published detailing Mr. E's prolonged detention, he was removed to Guyana.
7. Unaccompanied Minors and the Office of Refugee Resettlement (ORR):
The transfer of custody of minors from the former INS to ORR has been ongoing and fraught with many challenges. According to the Homeland Security Act, ORR has authority over custody and care of unaccompanied minors. However, policy or procedures have yet to be written out delineating this authority, and there have been problems with adequate funds for this program being allocated to ORR. DHS Uncooperative with ORR Transition: DHS officials have been reluctant to concede control over the custody and release decisions of unaccompanied minors. ORR holds authority to release minors in detention to family; this is done after they complete a thorough home assessment. However, when DHS disagrees or does not like a release decision made by ORR, they initiate a bond hearing and effectively prevent release by setting an extremely high bond that the child's family cannot meet.
DHS juvenile coordinators previously had authority over custody and release decisions, and since the ORR transition the DHS coordinators in Los Angeles and San Francisco have become less cooperative with legal services. In what used to be usual practice, the DHS juvenile coordinators now inconsistently provide CLINIC attorneys with current lists of children in custody.
Reduced Access to Legal Services: ORR has been seeking new shelter facilities better suited to meet the child welfare needs of unaccompanied minors. In one instance, ORR found an alternative facility to the frequently used (and frequently criticized) Central Juvenile Hall in Los Angeles. However, the alternative facility is in Alamosa, CO, which is four hours south of Denver, severely hindering access to legal and support services for unaccompanied minors. CLINIC supports the transition of shelter facilities away from the disruptive juvenile hall settings to safer and more appropriate housing options, where legal services (an important component for the long-term well-being of the child) are accessible.
A memorandum of understanding between DHS and ORR is currently in process to clarify the custody and care authority ORR holds. CLINIC remains hopeful that in the long run the transfer of custody to ORR will benefit children, as it breaks the conflict of interest that INS/DHS had when acting as a child's caregiver at the same time that it sought their removal. ORR should be given the clear authority and adequate resources to do the job well.
8. San Diego Border Patrol Announcement:
On August 15, 2003 the Bureau of Customs and Border Protection (CBP) announced that Border Patrol Agents in San Diego possess the authority to question people on city streets and workplaces about their immigration status. The announcement came in response to a memo issued on August 8, 2003 by William Veal, the chief of the San Diego Border Patrol sector, which reaffirmed a "long standing agency policy" preventing Border Patrol agents from conducting ‘neighborhood sweeps' or other interior enforcement or city patrol operation in or near residential areas and places of employment. The memo stated that enforcing U.S. immigration laws away from the border and at workplaces should be left to Immigration and Customs Enforcement.
This recent announcement gives Border Patrol agents free reign to stop whomever they suspect to be undocumented immigrants in the streets, neighborhoods, and workplace. This will most likely lead to an increase in the number of stops by Border Patrol based solely on appearance. This opposes longstanding policy and a 1999 9th Circuit Court Decision in US v. Montero-Camargo that established "Hispanic appearance is [not] a relevant factor" in determining whether an officer has "reasonable suspicion" of an individual to justify an investigatory stop.
9. Border Patrol Implements Lateral Repatriation Pilot Program
Newspaper sources at the beginning of September 2003 report that the Lateral Repatriation Program moves undocumented immigrants arrested in Arizona by plane or bus to four Texas border towns, El Paso, Del Rio, Laredo and McAllen. From these towns they are escorted back to Mexico. According to newspaper reports, the program, which ran from September 8 through September 30, involved two chartered flights a day. Each flight took about 150 migrants each from the Tucson sector to one of four Texas border cities: El Paso, Del Rio, Laredo and Harlingen. Each charter flight cost $28,000. The stated goals of the program were to reduce smuggling along the Arizona border, keep migrants from returning to the same coyotes , and to "remove undocumented Mexican nationals from high-risk areas in the Arizona-Sonoran Desert region to lower-risk locations along the Texas-Mexico border."  The program raises several concerns. It results in the return of migrants who have no money and no connections to an area that they are unfamiliar with and that is far away from their initial point of departure along the Mexican-U.S. Border. Mexican authorities also expressed concerns that the influx of migrants in these areas would overwhelm local authorities and local resources such as shelters and other social service agencies.
Officials in Washington cited a reduced number of deaths and arrests in the Tucson sector as proof the program was successful. According to the Border Patrol only four migrants died of heat-related causes in the Tucson sector between Sept. 8 and Sept. 30. CBP also said arrests in the Tucson sector dropped to 915 for September, compared with 1,100 for the same month last year. CBP spokesman Villarreal said only 80 of the migrants sent on the charter flights were caught attempting to reenter the US through Texas, and even fewer were found returning to Arizona.
The Catholic Legal Immigration Network, Inc.'s ("CLINIC") Division of Public Education and Advocacy plans to circulate a compilation of its current cases on a bimonthly basis, in an effort to regularly document and report on problematic developments facing the population served by its network. CLINIC believes that documentation and media coverage of the human impact of our nation's immigration laws and policies are crucial to advocacy efforts to create a more just immigration system. CLINIC relies heavily on the case examples that it receives from its affiliate agencies in order to effectively advocate with officials at the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR). Please contact Vanessa Waldref at firstname.lastname@example.org or (202) 635-5812 with your examples of backlogs, poor customer service, and other problem cases.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.