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Truth Is Stranger Than Fiction

by Karen Pennington, Esq.

While the life of an immigration litigator has never been easy, the advent of the Department of Homeland Security and the division of INS into three agencies has made it immeasurably more difficult. One of the Machiavellian innovations added by the DHS was the requirement that all applications for relief in immigration court be fee'd in to the Texas Service Center rather than locally and the collection of biometrics triggered in that manner. At the same time, a requirement was introduced that no relief can be granted in immigration court without security clearance having been previously obtained.

The instructions provided by the trial attorneys in immigration court require that the application for relief, the filing fee, and the biometrics fee be submitted to the TSC. What happens when there is no application form and no filing fee? In my experience, the system implodes. In a case I am currently handling before the EOIR in Dallas, TX, my client is seeking an INA section 237(a)(1)(H) waiver. There is no application form and no filing fee for the application, but biometrics must be obtained. In the old days, the TA handed me a form in court, my client paid the biometrics fee at the District Office, the fingerprints were taken and the case was tried in immigration court.

Under the current system, the TSC had no idea how to handle the filing and returned it to me on three separate occasions. The case was originally set for hearing on the merits in August 2006, but I could not get the biometrics taken despite extraordinary diligence. First, I submitted the biometrics fee, attorney trust fund check, and detailed cover letter regarding the application and advising them that there is no application form or fee for the waiver. The packet was returned to me with instructions to follow the instructions of the EOIR.

So after the first return, I not only followed the instructions of the EOIR, I obtained an order from Immigration Judge Edwin R. Hughes ordering that the biometrics be taken and noting on the order that there is no application form and no filing fee for the application. I resubmitted the packet to the Texas Service Center with the original immigration court order, a new cover letter and my attorney trust fund check. The packet was again returned to me, this time with the notation that my attorney trust fund check was not acceptable because it was not drawn in American dollars. What kind of currency do you suppose a Chase Bank check is drawn in according to our illustrious government?

But just wanting to get the matter resolved, stupid me, I bought a money order and submitted the packet again. The third time it was returned to me stating that the biometrics fee must be submitted with the appropriate application. I also tried to work with the trial attorneys' office to resolve the problem and with Bill Finley, counsel for CIS who told me he would pass the information to counsel for the TSC in order to prevent embarrassment before the local federal court. I provided all of the documentation, but never heard back from anyone in CIS counsel's office regarding the issue. By the time I went back to immigration court on the case the last time, I was so angry that I was ready to quit the practice of immigration law.

Two immigration judges in Dallas are currently in the midst of retiring. This case is now on its third immigration judge because biometrics could not be triggered and it is now back to a master docket setting with merits probably not to be set for many long months. I have personally spent more than 20 hours simply trying to get the biometrics taken in this case. This precludes making a living from this practice when you take cases on a flat fee basis as I do.

At the last hearing in the case, Michelle Saenz-Rodriguez, our local EOIR liaison, graciously agreed to, and drafted, an order requiring that the biometrics be taken without fee to resolve the by then raging battle in immigration court which I was pretty much unwilling to resolve in any manner other than by federal litigation at that point. Michelle sensibly prevailed and the order was eventually signed by IJ Dietrich Sims. That does not end the saga unfortunately. My client presented herself to the Application Support Center to have her fingerprints taken. The ASC still refused to take prints for a waiver case even with the order of the immigration judge requiring it and I finally had to intervene by telephone and tell them that it was for a form I-485 for the prints to even be taken at that point. The ASC told me that they had no instructions allowing them to take fingerprints for a waiver application. For a form I-485 which is not at issue before the immigration court, biometrics collection was finally completed last week. Truth is indeed stranger than fiction.

Currently, Farmers Branch, a suburb of Dallas, has passed a municipal ordinance subjecting landlords to fines if they lease to undocumented aliens. How well do you think that a landlord, or even the municipality itself, are going to be able to understand USCIS paperwork when even the Texas Service Center doesn't understand it and rejects an attorney trust fund check on the grounds that it isn't drawn in US dollars?

Karen H. Pennington, Jan. 3, 2007

About The Author

Karen Pennington, Esq. is a 1986 graduate of University of Texas School of Law. From 1986-1997, she was a commercial/intellectual property litigator and federal practice specialist in Southern California who dabbled in pro bono immigration law practiced. Her practice has been limited to immigration law since her return to Texas in 1998. She is currently a sole practitioner in Dallas, TX. The primary emphasis of her practice is immigration litigation before the immigration courts and the federal courts. She can be contacted at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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