LegalMatch: Immigration Law

Temporary Protected Status for Haitian Immigrants

2010-04-08T15:55:47-07:00

A few months ago, President Obama issued an order extending Temporary Protected Status (TPS) to Haitians within the United States. This was a response to the major earthquake suffered in Port Au Prince, and was designed to protect those Haitians who found themselves in the US illegally after the disaster. There may be some confusion about what TPS actually is (and understandably so). Temporary Protected Status, as the name implies, is a temporary order that is generally given when war or extreme crisis strikes the country who receives it. The effects of TPS for Haiti are that the government cannot deport individuals to Haiti for the duration of the order, neither can it initiate removal proceedings against most illegal aliens who are citizens of Haiti.

In practice, TPS has often served simply as an ad-hoc stopgap for difficult to handle situations. It basically puts the entire intricately reasoned body of immigration law on hold, and due to this sweeping effect, officials have been reluctant to use it. For example, the immigration and refugee issue with Somalia was due to the absence of any sitting government to accept those deported. US officials couldn’t just drop people off within the nation’s borders, and since no one was there to officially receive them on behalf of the country, there was nothing left to do but grant TPS. Similarly, Honduras, El Salvador, Nicaragua, and Sudan are also designated as having temporary protected status. Accordingly, the US government cannot deport people back to those countries.

There are certainly many people injured and displaced by wars and natural disasters. It’s a good thing when others find sympathy for these people. But, the area of immigration law has evolved to handle a very wide range of issues, from the routine to the extremely rare. It works like the rest of our legal system: on a case by case basis to secure help for those individuals who really need it. TPS discards that honored system in favor of blanket protections for all.

Understandably then, there is an abundance of problems with the frivolous or unnecessary use of TPS. First, there is the problem of TPS being over-inclusive. Sure, those who innocently boarded an airplane in Port Au Prince while the ground was shaking do not have to worry about going to court. But TPS can also be claimed by Haitians who were already in the US illegally when the earthquake happened. These must still apply for TPS, but the immigration authorities do not examine these cases as closely. If the records of these individuals had gone before an immigration judge, it may have been discovered that their intentions for being here were not entirely wholesome. It’s also not hard to imagine that someone might use TPS as a cover to more easily plant terrorists within the US.

Foremost in the criticisms, Temporary Protected Status is anything but Temporary. There is an implicit doctrine within immigration law that the right to work is fundamental and basic. Therefore, anyone allowed to remain within the US legally for an indefinite period of time is almost always granted a right to work. And if this right to work is exercised by someone with TPS, their job can serve as a basis of an application for adjustment of status. If accepted, the individual can remain as a permanent immigrant, called a Lawful Permanent Resident (LPR). There is also a problem with the executive branch getting into the habit of renewing TPS automatically. Some countries have had TPS for almost twenty years as a result. It’s reasonable for campaign officials to assume that when TPS expires, there will be small but perceptible surge of complaints. Too much complaining against a president is bad for reelection campaigns.

And perhaps that’s why immigration issues are so volatile. Unlike criminal law, for example, the judicial branch is not allowed to consider whether specific acts of immigration law are permissible. In standing aside, the judiciary itself has referred to this as the plenary power doctrine. That means that congress and the president, known as the political branches of government due to their need to be reelected, have unrestrained control over this area of law. And when something gets as much media coverage as the Haiti disaster, it’s not hard to understand why elected officials would respond in a way that they think will appeal to the popular culture.

Take a look at what happened in the case with Haiti. Originally, the government responded simply by halting deportations to Haiti, but certain political forces were extremely vocal in this instance. Ironically, those who advocated for Haitians insisted that something more permanent was needed, specifically “Temporary” Protected Status. The Obama administration then began to consider the issue one of its top priorities, and Newsweek eagerly published a release by the white house press office where President Obama explains why the Haiti issue is so important. To dissect it bit by bit for its inconsistencies would take too long. It’s enough to say that more than a century of belligerent US policy toward Haiti was ignored, and instead the President now contemplates a great opportunity for America to show that we’re the most charitable, most giving, most compassionate nation on earth. He’s said that “[w]hen we show not just our power, but also our compassion, the world looks to us with a mixture of awe and admiration. That advances our leadership.” In other words, the most significant thing about the destruction in other countries is that it gives the US a chance to show how much better it is.

And the way we do that is by sweeping aside our own laws when enough people agree. The determining factor for whether someone can stay in such an evolved country is not whether they need it or deserve it, but whether their case is politicized enough. I’m grateful that deserving Haitians can find a refuge within a nation that abides by the rule of law, whether that is the US or some other country. But I can’t help but think that there might be others who need a safe place to stay also. Maybe their case flew under the radar of those at the associated press. I’m only speculating, of course, but the one group of people who really know who should stay and who should go, immigration judges, have just been passed over in favor of the TPS order.

United States To Lift Ban on HIV+ Travelers.

2009-11-04T13:56:37-08:00

A two-decade ban on HIV+ travelers may soon be lifted in the United States.

Established in 1987 during the height of the AIDS scare, the anti-AIDS ban has worked to bar all immigrants with HIV or AIDS from entering the U.S., whether as visitors or potential residents. During these years, even famous speakers, public figureheads, and leading researchers who were confirmed as HIV+ were blocked on the basis of their infectious status. But a new bill, poised to pour $50 billion into the fight against AIDS in Africa and other high-risk areas, is also prepared to break the long-maintained ban.

Many other countries that once held the same strictures regarding immigration have now dropped it, with China being the most recent sovereign state to shake the discriminatory ban. Sudan, Libya, and Russia are among the few remaining countries (along with the United States) that still bars entry to HIV+ travelers.

AIDS discrimination in the United States is otherwise illegal, as HIV+ citizens are protected by the Americans with Disabilities Act (ADA) and nationwide employment discrimination laws.

Political Asylum and Refugee Status.

2008-05-06T13:07:50-07:00

Prior to 2002, we had Immigration and Naturalization Services (INS) in charge of refugees, green cards, amnesty agreements—the whole immigration shebang. Then President Bush launched the Homeland Security Act, and the INS disappeared. In its place grew the more serious-timbered Bureau of Citizenship and Immigration Services (BCIS), an agency built to handle all questions of political asylum and refugee status from 2002 onward.

The idea of political asylum is as old as Ancient Egypt, with laws of “sanctuary” in place since 511AD. Our modern concept of political asylum is not so different from its ancient predecessors. Political asylum allows people from one country to seek “asylum” or protection in another country if they fear persecution from their home country. This type of asylum is occasionally extended to suspected criminals as well, as in the case of France’s recent protection of Georgia’s former defense minister.

Those who are granted political asylum have the extra benefit of becoming eligible for a green card. Once a year has passed under asylum status, the protected individual can apply for a green card and become a permanent citizen.

Refugee status is similar to political asylum, but generally concerns a group of people who are seeking asylum. There is a limit on the number of people who will be selected for refugee status, so it is important to apply early if you are seeking this kind of protection.

For those who qualify for neither political asylum nor refugee status, there are two other options: temporary haven and amnesty. While temporary haven provides refuge for those who face dangerous conditions in their home country, it is still temporary. A person who is protected by temporary haven will not be able to apply for a green card. Amnesty, on the other hand, is for people who are already living illegally in the United States. Amnesty is occasionally granted to specific groups of people who live illegally in the US, providing them with the chance to gain legal citizenship.

In any case, it is usually in your best interests to speak with a qualified immigration attorney—especially if you are living in the country illegally. You can file your case at no cost by visiting our main site, www.legalmatch.com, or discuss your particular situation with others at our online Immigration Law Forum.

By Kate Beall

Deportation Laws Stack up Against San Jose Minister.

2007-10-17T15:09:19-07:00

The arrest of Lucio Caciano Miranda, a 37 year-old minister and illegal immigrant, sparked a debate this week about unflinching deportation policies in the United States. Miranda was arrested while visiting his goddaughter’s mother, despite the fact that the Immigration and Customs Enforcement (ICE) agents who came to the door were looking for someone else. The ICE stated that “agents are required while conducting their raids to arrest anyone found to be in the country illegally”.

Deportability grounds not only cover illegal immigrants, but legal immigrants as well. Criminal offenses, possession of false documents, espionage, welfare abuses, fraudulent marriage (to obtain a visa or green card), and unlawful voting are all valid reasons for expulsion or deportation from the United States.

Luckily, there are detained alien lawyers who specialize in dealing with ICE. Such lawyers can assist you in obtaining a bond if you have been detained, which will allow you to return home until you either (a) return to trial or (b) voluntarily depart the United States by a specified date.

Unfortunately, many illegal immigrants who already live in the United States are in a precarious position. Even in the case of Miranda, who spent over eight years working to help youths in gangs, the lack of a valid visa almost always leads to deportation. This is because the United States requires that immigrants obtain a visa before entering the United States.

If you are considering immigration to the United States, you should discuss your options with an inadmissibility lawyer to make sure that you qualify for a visa. For more information about the different kinds of visas offered to immigrants, please see my previous post on green cards.

By Kate Beall

The Sky is Blue for Many Awaiting Green Cards.

2007-06-22T18:39:28-07:00

The wait to obtain a “green card,” or permanent visa, has been an excruciatingly long one for thousands of immigrants. But starting July 1^st, that situation promises to change.

In the U.S. State Department’s July visa bulletin, it was announced that the government would be accepting new applications from India, mainland China, and other countries that had previously suffered through almost decade-long waiting periods. The Houston Chronicle reports that Reshma Soni, a 33 year-old legal student, was so happy that she almost ran of out of the office where she worked.

News, Views, and Analysis marks this long delay up to overwhelming backlogs in the I-485
department:

For years the I-485 stage was backlogged beyond belief. As of early June they were processing applications from 4 years ago. So all of us who had applied for the Green Card were resigned to a long wait. So imagine then that we get the news that this is all current.

Unfortunately, the July 2007 visa bulletin cannot help most new visa applicants. Only those who can file the I-485 while the visa bulletin is active will be able to benefit.

For those who have not yet begun the application process for a green card, there are several stages yet ahead. For those who wish to enter the U.S. as a specialized worker, it is necessary to have both a sponsor and an H-1B Temporary Work Permit. It is highly recommended that both the sponsor and the alien consult with a reliable alien immigration lawyer before beginning their application. However, once the H-1B permit is obtained, an alien is permitted to live for up to 6 years in the U.S. as a working citizen.

Employment-based immigrants fall into three merit-based categories: EB-1, EB-2, and EB-3. But even at the most permitting level (EB-3), an immigrant must be a skilled worker or professional, and often must hold a Bachelor’s degree. The EB-4 category, while also employment-based, is reserved for religious workers.

If you are considering application for a green card, temporary visa, or other permit, you may wish to consult our Legal Library’s articles on immigration law and working with an immigration lawyer. Explore further for answers to specific questions about immigration and visa law.

By Kate Beall