As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful. One analogy I’ve found to work well to explain the green card process beyond describing its mere sequence of form filings likens the process to a visit to a Department of Motor Vehicles (DMV) office.
In my practice area of business immigration law, green card processes are mostly employment-based and involve the successive filing of a labor certification application, immigrant petition, and adjustment of status application (with the first not always required and the latter two sometimes eligible for concurrent filing). So I’ll refer to these types of filings in describing the analogy here. But variations of the analogy may be equally applicable to other types of green card processes, such as those in which the aspiring permanent resident will apply for an immigrant visa overseas rather than adjustment of status within the United States, as well as those based on family relationships and those available to asylees and refugees.
The trappings of a visit to the DMV, no matter the state, may be familiar to you: the issuance of a waiting number determining your place in a queue, followed by a long wait for your number to be called at one of several counters to file required paperwork, followed yet again by a lengthy wait for your paperwork to be processed, and eventually – hopefully – approved without issue. The counter at which you’ll be called, and the length of the corresponding queue (or maybe in some fortunate instances, the absence of one altogether), often depends on specific factors, such as the type of service you’re seeking.
Just as you’re issued a waiting number upon entry into a DMV office, aspiring permanent residents are issued a priority date when the first major filing in their green card process (either the labor certification application or immigrant petition) is submitted. The priority date is the date this first filing is submitted and determines, once the immigrant petition is approved, the aspiring permanent resident’s place in any existing queue to apply for adjustment of status.
Similar to how you wait at the DMV for your number to be called to file your paperwork at the appropriate counter, aspiring permanent residents face varying wait times for their priority date to be “called” at a designated “counter” to apply for adjustment of status. The “counter” in the green card process at which aspiring permanent residents must apply for adjustment of status is based on a combination of two main factors: their immigrant classification (which, when speaking with clients, I refer to as their “green card category”) and their country of chargeability (which I refer to as their country of birth). Aside from some significant exceptions outside of the employment-based green card process, the law limits the supply of green cards available each fiscal year. Because the law allocates this limited supply based on a combination of both immigrant classification and country of chargeability, queues form at “counters” where the demand for green cards exceeds the available supply. And the more severely demand exceeds supply, the longer the queue will be. This analogy helps to show why EB-2 and EB-3 immigrants born in India and China are often confronted with waits lasting many years for their priority date to be “called” at their designated counters, while EB-2 and EB-3 immigrants born in most other countries often face no such queue. In technical terms, the existence of a queue at a given “counter” means the availability of green cards associated with that counter’s classification and chargeability combination is “retrogressed.” If there’s no queue, green card availability at that counter is “current.”
A visit to the DMV often entails a wait of several hours sitting and keeping watch of your designated counter at it serves the visitors who arrived before you until your own number is finally called. Likewise, many aspiring permanent residents monitor the often plodding, month-to-month movement of “cut-off dates” in the Bureau of Consular Affairs’ monthly Visa Bulletins for the designated “counter” at which they must apply for adjustment of status. The Visa Bulletin for a given month contains various charts showing whether a queue for filing an adjustment of status application exists for any classification and chargeability combination, and if so, how long the queue is. Combinations for which there is no queue are assigned a “C” notation, indicating that green card availability is current and that the adjustment of status application can thus be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming any prerequisite labor certification has been granted. Combinations for which there is a queue, and for which green card availability is thus retrogressed, are denoted by a “cut-off date,” with older dates reflecting longer queues. Aspiring permanent residents seeking to adjust status at a “counter” at which green card availability is retrogressed can track their place in the queue by comparing their priority date with the applicable cut-off date each month. Priority dates that fall before the applicable cut-off date in a given month are those that have been “called,” indicating that much like counters at which green card availability is current, an adjustment of status application can be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming again that any prerequisite labor certification has been granted.
Like processing of paperwork filed at a counter at the DMV, processing of an adjustment of status application may take a long time. But eventually – hopefully – the application is approved without issue. And unlike a visit to the DMV, having qualified counsel during the green card process can make all the difference in one’s chance of success.
 For example, “immediate relatives” (spouses and children of US citizens, and parents of US citizens if the citizen is at least 21 years old) are exempt from annual numerical limits on green card availability. INA 201(b)(2)(A)(i).
 Aspiring permanent residents for whom the queue for applying for adjustment of status involves a wait of several years, such as EB-2 and EB-3 immigrants born in India and China, commonly change jobs or employers in the course of their wait. Such a change can require a restart of the green card process since employment-based green card processes are generally job and employer specific. But to allow aspiring permanents residents who change jobs or employers to keep their place in queue, the law permits them to retain their priority date under certain conditions if they are the beneficiary of a previously approved EB-1, EB-2, or EB-3 immigrant petition, and likewise become the beneficiary of an approved EB-1, EB-2, or EB-3 immigrant petition based on their new job or employer. 8 CFR 204.5(e).
 US Citizenship and Immigration Service also publishes monthly updates indicating whether to use the Visa Bulletin’s Dates for Filing charts or its Final Action Dates charts, to determine whether an adjustment of status application may be filed.
A three-judge panel of the US Court of Appeals for the First Circuit Tuesday overturned a ban prohibiting US immigration authorities from arresting undocumented immigrants at courthouses in Massachusetts.
In 2018, US Immigration and Customs Enforcement (ICE) formalized a policy of attempting to arrest undocumented immigrants when they appeared at state courthouses for judicial proceedings. Two Massachusetts district attorneys, the public defender’s office and a non-profit immigrant advocacy organization filed a lawsuit against ICE and asked for a preliminary injunction against the practice. They claimed that ICE was in violation of the Immigration and Nationality Act (INA) and lacked authority to make civil arrests at courts. The district court agreed, and granted an injunction last year.
At issue is a claim that the INA implicitly incorporates a common law privilege that protects those attending court from being subject to civil arrest. While nothing in the text of the INA prohibits these types of courthouse arrests, the plaintiffs argued that the law must be read in light of the nonderogation canon, a method of statutory construction that holds that courts must assume Congress is aware of long-standing common law principles and, absent express language to the contrary, intends to keep them.
Judge Bruce Selya wrote Tuesday that “the nonderogation canon does not give courts carte blanche to read a grab bag of common law rules into federal statutes simply to effectuate what those courts may perceive as good policy.” The circuit court held that the nonderogation canon applies if the facts of the common law rule and the statute in question are sufficiently analogous. The common law prohibited civil arrests at court by private litigants, while here the arrests are being carried out by a government agency. The panel vacated the preliminary injunction and remanded the matter back to the district court.
Rachael Rollins, district attorney for Suffolk County and one of the plaintiffs in the case, said in a statement that “this fight is far from over” and that the plaintiffs “are absolutely on the right side of justice here.”
Some 50,000 foreign nationals with approved Lawful Permanent Residency (Green Card) applications have been waiting for months to receive their cards, which provide proof of lawful permanent resident status. Without these cards, the foreign nationals will have difficulty travelling internationally and proving employment authorization. Causing further stress to these individuals is the requirement under the Immigration and Nationality Act (INA) that permanent residents should always carry their Green Cards.
How did this happen? USCIS cancelled its printing contract with an outside vendor, creating a delay in printing not only Green Cards, but also 75,000 Employment Authorization Documents. Once the printing was brought in-house with USCIS, it did not keep up with demand. The ongoing threat of USCIS employee furloughs and budgetary constraints has only exacerbated the issues. Like a Greek tragedy where everything goes wrong that can go wrong, the onset of the COVID-19 pandemic closed USCIS Field Offices, which made it impossible for individuals with approved cases to get temporary I-551 stamps proving permanent residence, foreclosing another way for them to prove their status.
Concerns over the printing problems have been raised and even litigated with respect to EAD cards. In Subramanya v. USCIS, a Consent Order was issued that set a specific schedule for EAD card production and adopted an interim rule that allows individuals with certain approved EAD applications to use their I-797 Notices of Approval as List C documents in the Form I-9 employment verification process. But that Order does not apply to and does not help those with approved Green Card applications.
Individuals with approved Form I-485 Adjustment of Status applications, but whose Green Cards have not been printed, can consider taking the following steps:
- Call the USCIS Contact Center at 1-800-375-5283 and request an appointment at a USCIS Field Office to obtain a temporary Form I-551 stamp (sometimes called an Alien Documentation, Identification and Telecommunications, or ADIT, stamp) as evidence of lawful permanent residence for purposes of employment or travel. Callers should eventually be connected to a “live” representative.
- The USCIS Ombudsman is sending weekly spreadsheets to USCIS confirming applicants whose cards are awaiting production. Requests for case assistance can be submitted to the Ombudsman at https://www.dhs.gov/topic/cis-ombudsman/forms/7001.
- If the Green Card is needed for employment authorization and USCIS will not schedule an appointment for a temporary Form I-551 stamp, try the Department of Justice Immigrant and Employee Rights (IER) Section hotline at 1-800-255-7688 (for employees) or 1-800-255-8155 (for employers) for assistance. In some circumstances, the IER can intervene with USCIS to seek additional guidance.
Those waiting for a Green Card renewal or replacement (not an initial Green Card) and have filed a Form I-90 Application to Replace Permanent Resident Card can use the receipt as a List A document for Form I-9 employment verification purposes (for up to 90 days). The receipt also may be an option for international travel, but first ask your immigration lawyer if travel is advisable.
If you have questions about your pending Green Card application, Jackson Lewis attorneys are available to assist you and to strategize about the best avenues to pursue.
Source: Waiting for Green Cards
President Donald Trump’s ban on “non-essential” border travel isn’t slowing down traffic coming from Mexico. Since the March 20 order was extended to Sept. 21, volumes have increased and sharply in some areas.
San Ysidro, the busiest port of entry in California, saw a 72 percent rise in northbound pedestrian crossings from April to July. The number of private vehicle passengers rose 62 percent, and the number of private vehicles increased 47 percent.
Pedestrians and private-vehicle passengers coming through San Ysidro combined for a total of 1,693,338 crossings in July, compared to 1,031,906 in April.
El Paso, the biggest border crossing in Texas, recorded a whopping 220 percent increase in pedestrians from April to July. Vehicle passenger counts were up 106 percent, with the number of vehicles climbing 79 percent.
Pedestrians and vehicle passengers at El Paso combined for 963,457 crossings in July, compared to 419,046 in April.
The tallies by the U.S. Department of Transportation include individuals who enter the country multiple times per month. The crossings may or may not be “essential”; U.S. Customs and Border Protection has not reported how many people are turned back.
But following a pattern FAIR reported on last month, entries into this country are increasing substantially at the southern border, even as Americans remain under coronavirus restrictions.
U.S. ambassador to Mexico, Christopher Landau, cited five- and six-hour delays at ports of entry as border agents focus on “essential travel.” He said many were crossing to shop, dine and visit families. “Such irresponsible behavior is exacerbating the health crisis,” he said.
Border counties in Texas have reported spikes in COVID cases and hospitalizations. Officials in Starr and Hidalgo counties started imposing curfews and voluntary stay-at-home directives in July, urging that non-essential business activities be curtailed or suspended.
Yet despite presidential edicts and local pleas, border traffic keeps building. At current rates, crossings will be back to pre-COVID levels by the time the administration’s non-essential travel ban expires — if they’re not already.
We are just 60 days away from Election day in the United States which falls on Tuesday, November 3rd. Do you know where your candidate stands on immigration? In this post, we cover Presidential nominee Joe Biden’s stance on important immigration issues, and everything you need to know about his vision for America.
We would also like to take this opportunity to remind those of our readers who are American citizens to exercise their right to vote. It is your civic duty and will help shape the nation’s immigration policy for the next four years. For voter registration information please click here.
Immigration under Joe Biden
If elected President of the United States, Joe Biden has stated that he will enact a number of policies during his four-year term. Among these policies, he promises to take urgent action to undo destructive policies implemented by the Trump administration, modernize the immigration system, reassert America’s commitment to asylum-seekers and refugees, and implement effective border screening.
Comprehensive Immigration Reform
First and foremost, Joe Biden supports working with Congress to pass a comprehensive immigration solution that would offer nearly 11 million undocumented immigrants a path to citizenship. As vice president, Joe Biden worked alongside former President Obama to push forward a bill that would do just that. Unfortunately, the Republican-led Congress refused to approve the bill, leaving millions of undocumented immigrants in limbo including Dreamers.
Joe Biden advocates for the creation and expansion of the Deferred Action for Childhood Arrivals program (DACA), the Deferred Action for Parents of Americans (DAPA) program, the Central American Minors program, which allows parents with legal status in the U.S. to apply to bring their children from Central America to live with them, and the creation of a White House task force to support new Americans to integrate into American life and their communities.
Overview of Biden’s Immigration Commitments
Temporary Seasonal Workers. Biden wishes to work with Congress to reform the current system of temporary work visas to allow seasonal workers in select industries to easily switch jobs, while certifying the labor market’s need for foreign workers. Employers would be required to pay prevailing wages and ensure the right of all workers to join a union and exercise their labor rights.
High-skilled Temporary Visas. Biden will also work with Congress to reform temporary visas to establish a wage-based allocation process and create fraud prevention mechanisms. Biden supports expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, eliminating the backlogs.
Legalization for Agricultural Workers. For agricultural workers, Biden would support legislation between farmworkers and the agricultural industry to provide them with legal status based on prior agricultural work history, to ensure a “fast track” green card process ultimately workers them to apply for citizenship.
Removing Per-Country Cap Limitations. Biden is strongly against the current per-country cap visa limitations and the long waiting periods families must wait to be reunited. Biden will support a family-based immigration system allowing any approved applicant to receive a temporary non-immigrant visa until a permanent visa is processed, and will support legislation that treats spouses and children of green card holders as immediate relatives exempting them from the caps, and allowing parents to bring minor children with them at the time they immigrate.
Preserving the Diversity Visa Lottery Program. Biden will continue to support the diversity visa lottery program and preserve the program.
Increase Employment Based Visas. Regarding employment-based visas, Biden will work with Congress to increase the number of visas for permanent employment-based immigration and temporarily reduce the number of visas during times of high U.S. unemployment. Biden would exempt from any cap recent graduates of PhD programs in STEM fields in the US.
New Visa Category for Cities and Counties Seeking Immigrant Work. Biden supports creating a new visa category that would allow cities and counties to petition for higher levels of immigrant to support their growth, provided employers certify there are available jobs and no workers to fill them. Holders of these visas would need to work and reside in the city or county that petitioned them and be subject to certification protections similar to employment-based immigrants.
Expansion of U Visa Program. Biden will expand the U visa program to include eligibility for workers who report certain workplace crimes.
Increase visas for Domestic Violence Survivors and Victims of Crime. Finally, Biden plans to triple the current cap of 10,000 on U-visas and increase visas for domestic violence survivors.
Policy on Removal and Enforcement Actions
Joe Biden plans to focus his administration on prioritizing removal and enforcement actions on persons who pose a threat to national security and public safety. The Biden administration would not target the removal of working-class undocumented immigrants and their families. Biden also promises to end mass workplace raids and prevent enforcement actions and operations at sensitive locations including schools, hospitals, and places of worship.
With regard to the influx of undocumented immigration from Central America, the Biden administration would address the root of the problem, by securing bipartisan support and funding to countries in the Northern Triangle to help these countries tackle violence and insecurity, lack of economic opportunity, and corruption in the region.
Joe Biden’s 100-Day Plan
Within his first 100 days in office, the Biden administration commits to:
- Immediately reverse the Trump Administration’s policies that have separated parents from children at the border, including ending prosecution of parents for minor immigration violations, and prioritizing family reunification.
- Immediately reverse the Trump administration’s public charge rule
- End the “national emergency” imposed by the Trump administration to enable the Department of Defense to build a wall along the U.S./Mexico border
- Protect Dreamers and their families, by reinstating the DACA program and exploring all legal options to protect families from inhumane separation
- Restore and defend the naturalization process for green card holders by removing roadblocks to naturalization, addressing the application backlog and rejecting imposition of unreasonable fees
- End the Trump administration’s detrimental asylum policies
- Rescind the travel and refugee bans also known as the “Muslim bans” by the Trump administration
- Review Temporary Protected Status (TPS) for vulnerable populations and introduce a bill that will allow TPS/DED holders who have been in the country for an extended period of time, a path to citizenship
- End the mismanagement of the asylum system to ensure asylum applications are processing fairly and efficiently
- Increase humanitarian resources at the border through a network of organizations including faith-based shelters, non-governmental aid organizations, legal non-profits, and other organizations
- End prolonged detention and investment in a case management program, by supporting the Flores agreement which prevents the detention of children indefinitely
- Restore sensible enforcement prioritizes targeting threats to public safety and national security, and not workers and their families
To read more about Joe Biden’s proposed policies on immigration please click here.
The Trump Administration is seeking to expand biometric data collection for those seeking U.S. citizenship. The Department of Homeland Security (DHS) confirmed the administration’s plan through the publication of the Notice of Proposed Rulemaking on September 1.
U.S. Citizenship and Immigration Services (USCIS) currently requires biometric data such as fingerprints, photographs and signatures from anyone over the age of 14 who applies for certain immigration benefits like a green card or work permit. This rule change would require many other visa-holders to provide biometrics as well. It would also expand the type of data collected to include DNA, eye scans, voice prints and photographs for facial recognition. The government would be allowed to request such biometrics at any point up until the individual is granted citizenship.
The notice is a move towards “modernizing” the biometrics collection process. By proposing a standard for the collection, DHS eliminates any ambiguity while improving the screening and vetting process by moving away from the dependence on paper documentation. Additionally, such tools will improve accuracy and efficiency as eye scans and facial recognition are fast, accurate ways to confirm the identity of an applicant that don’t require physical contact.
By collecting such data, the Department also greatly improves security, guarding the process, and to a greater extent, the American people, from identity theft and fraud. The proposed rule would allow DHS to collect genetic data from immigrants entering via chain migration when they are unable to provide “sufficient documentary evidence” to support the claimed relationship.
DNA would be collected from the applicant and the sponsor in order to establish family units. This would be especially helpful in cases where an illegal alien is apprehended and they claim to be related to a child that is with them. Through the proof of genetic evidence, DHS can ensure a “bona fide genetic relationship” between the adult and child, thus safeguarding the child from potential harm if the claimed relationship is fraudulent.
Biometrics would also prove to be extremely beneficial in screening out known criminals from entering. The Center for Immigration Studies (CIS) notes the misspelling or inaccurate reporting of names is an ongoing issue. The 19 hijackers in the 9/11 attacks had “over 300 spellings of their names.” Similarly, the name of the Boston Marathon bomber was spelled differently on a flight manifest – information that would have provided the FBI with important leads regarding his ties to terrorism. Biometric information can be checked against international databases when biographic information is faulty. You can change your name, or the spelling of your name, but changing biometric information is not so easily accomplished.
Finally, a modernized and efficient biometrics system would aid the DHS and USCIS in accurately tracking the entry and exit of visa holders and travelers. Entry and exit biometrics are required by law under 8 U.S. Code § 1365b, however, Congress has not taken the necessary steps to actually implement and enforce this measure.
It is estimated that half of the illegal immigrant population is a result of visa overstays. And while visa overstays are reported annually, the DHS admits to an inability to be able to calculate the totals accurately due to insufficient technology. Biographic information alone, such as passport numbers or names, are not sufficient ways to confirm identity and biological relationship.
The U.S. has several procedures to gather biometrics upon entry, and in FY 2019, new exit tests enabled continued progress toward the biometric and biographic verification of travelers. However, with such high numbers of immigration and tourism, the U.S. struggles to maintain order and prevent visa overstays. A system which integrates biometric and biographic data would improve Customs and Border Patrol’s ability to accurately capture and report immigration data.
This wooing is carried out with cynicism and fueled by the political ambitions of all concerned. Republicans and Democrats alike seem to rediscover us every four years, then forget about us until the next election. It’s such an open and flagrant display of opportunism that some people have called it the Christopher Columbus syndrome.
Historically, Latinos are more likely to vote for Democrats than for Republicans. According to a survey published by Latino Decisions in August, 66 percent of those registered to vote lean toward Joe Biden this year, compared to 24 percent who favor President Trump. If Mr. Trump can’t attract more Latino voters, he is likely to lose the election.
Given the growing number of Latino voters, the courting process has also become more sophisticated. Years ago, a candidate need only toss out a few words in Spanish — Ronald Reagan said little more than “Muchas gracias” in his speech proclaiming National Hispanic Heritage Week, just weeks before the 1984 election — but today specific promises are required, like the one made by Barack Obama during his 2008 campaign to introduce comprehensive immigration reform in Congress — a promise he did not keep.
But regardless of who wins on Nov. 3, Latinos will shape the future.
In 2020, the ritual is in full effect. President Trump boasted about the record low unemployment rates among Latinos before the pandemic. And a naturalization ceremony at the White House was featured during the Republican National Convention, showcasing Mr. Trump’s alleged commitment to America’s newcomers.
This stands in sharp contrast with his administration’s actions: constant attacks on immigrants; separating more than 5,000 children from their parents at the Mexican border, even detaining some in cages; and trying to end protections for the 700,000 Deferred Action for Childhood Arrivals recipients.
More recently Mr. Trump has taken to calling immigrants murderers and rapists again. No wonder one of those newly sworn-in Americans who attended the White House ceremony, Robert Ramírez, originally from Bolivia, wasn’t willing to say he would vote for Mr. Trump. “I will vote,” he told Univision, “but my vote is private.”
Democrats are also good at making promises, and lots of them. Their nominee has pledged something millions of Latino immigrants have been waiting decades for. “This is my promise to you,” Mr. Biden posted on Twitter. “On Day 1, I’ll send a bill to Congress that creates a clear road map to citizenship for Dreamers and 11 million undocumented people who are already strengthening our nation. It’s long overdue.”
Yet when Mr. Biden was serving as vice president, the Obama administration not only failed to offer comprehensive immigration reform, it deported over three million undocumented citizens. Mr. Biden’s promise is fundamental to making right that mistake and winning back the trust of the Latino community. Even so, those who think Democrats take Latino votes for granted remain wary, which could hurt turnout for Mr. Biden.
This year, a projected 32 million Latinos will be eligible to vote, making them the largest racial or ethnic minority ever to participate in a presidential election. And for the first time, Latinos will outnumber Black voters, according to the Pew Research Center.
The power of Latino voters is evident in states such as Florida and Arizona. Had the Latino turnout been higher in those states in 2016, Mr. Trump might not be president. But over half of all Latinos eligible to vote didn’t do so, and consequently history was written in Michigan, Pennsylvania and Wisconsin.
Despite the racist insults he hurled at Mexican immigrants during his last campaign (“They are bringing drugs. They are bringing crime. They’re rapists.”) Mr. Trump won 28 percent of the Latino vote. Though not even close to the 66 percent that voted for Hillary Clinton, it was enough to win him the election. Clearly, even insults couldn’t convince that small slice of the Latino electorate that Mr. Trump, who promised economic opportunity, a wall and a crackdown on dictatorships in Cuba and Venezuela, was unfit for office.
I myself have surfed the great Latino wave. When I arrived in the United States in the early 1980s, fewer than 15 million Latinos lived in this country; now we number more than 60 million. And in less than three decades we will be at 100 million, according to estimates.
These numbers mean no candidate will be able to achieve power in the United States without Latino support. Karl Rove, chief adviser to President George W. Bush, understood this perfectly. In 2004, Mr. Bush won 44 percent of the Latino vote, more than any other Republican presidential candidate ever. It was the first time Republicans tried to divide the Latino vote and prove the phrase attributed to Ronald Reagan: “Latinos are Republican. They just don’t know it yet.”
But instead of continuing their efforts to court Latino voters, Republicans turned their backs. As a candidate in 2016, Mr. Trump announced he would build his wall at the border, and that Mexico would pay for it. This is not how to win the hearts of Latinos.
The Latino vote is increasingly powerful, diverse and sophisticated. And in exchange for that vote, which can make or break a president, the Latino community expects concrete benefits. A few words in Spanish and a few empty promises are no longer enough.
At the end of the day, more than expecting Democrats and Republicans to pay attention to the major issues that concern Hispanics — jobs, education for their children, health insurance, immigration — it’s about having more political representation so that no one has to speak for us. We are more than 18 percent of the population and yet there are only four Latino senators.
The reality in United States politics today is that we have the power to open or close the doors to the White House. When it comes to Latino voters, this is the new meaning of that old campaign ritual.
Jorge Ramos (@jorgeramosnews) is an anchor for the Univision network, a contributing opinion writer and the author of, most recently, “Stranger: The Challenge of a Latino Immigrant in the Trump Era.”
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A Black former U.S. diplomat recently shared her experience of months of racial profiling by U.S. Customs and Border Protection (CBP) officials while she was stationed at the U.S. Consulate in Ciudad Juárez, Mexico. She was tasked with enforcing U.S. immigration law, but nevertheless found herself racially profiled and discriminated against by U.S. immigration authorities.
The problem became so severe that she now suffers from post-traumatic stress disorder and had to quit her job. Unfortunately, this is just one example of immigration officials’ long history of racism at the border.
CBP Racially Profiles a U.S. Diplomat
In 2018, Tianna Spears was a new diplomat stationed at the U.S. Consulate in Ciudad Juárez, Mexico. She frequently crossed the border into El Paso, Texas, as thousands of other U.S. citizens do every day. However, she soon found that she was treated differently than others by CBP officers at the border.
Spears estimates that CBP officers required her to go through “secondary inspection” approximately two out of every three times that she crossed. This outcome should have been extremely rare given her diplomatic passport and SENTRI card allowing for expedited clearance. Her non-Black colleagues never had similar experiences.
Spears repeatedly raised the issue to CBP and her consulate supervisors, but the situation only worsened. She reports that CBP officers sometimes did not believe she was a diplomat and accused her of stealing her car. Their questioning was aggressive and threatening.
The mental health effects of the harassment eventually forced her to leave her job and return to the United States.
CBP Has a Long History of Racism
There is a long and documented history of immigration officials engaging in racial profiling and harassment at ports of entry.
Throughout the first half of the 20th century, Mexican citizens crossing into El Paso had to undergo a delousing process. CBP officials stripped them, shaved their heads, and forced them to take a bath in gasoline. This discriminatory process was based on a stereotype that Mexicans were dirty and diseased.
Much more recently, the Office of the Inspector General found that CBP improperly retaliated against one of their officers that reported misconduct he observed within the agency. The officer stated that CBP was disproportionately targeting Black drivers for further inspection at the ports of entry between Detroit, Michigan and Windsor, Canada.
But CBP’s history of racial profiling is not limited to people crossing the border. The agency also has the power to stop and question people within 100 miles of borders or coastlines. Approximately two-thirds of Americans live within this area, which is sometimes called the Constitution-free zone.
Border Patrol Targets People Who “Look Mexican”
CBP’s activities within the border zone are performed by one of its component agencies, the Border Patrol. The Border Patrol has targeted border residents appearing to be of Mexican descent for almost 100 years. Throughout that time, people going about their daily lives near the border have been racially profiled, stopped, and interrogated—regardless of U.S. citizenship or immigration status.
In 1975, the Supreme Court ruled that “Mexican appearance” could not be the sole reason a roving Border Patrol officer stopped someone. It could, however, be a “relevant factor” in deciding whether to do so.
The Border Patrol runs permanent and temporary checkpoints on roads leading away from the border. A 2015 American Civil Liberties Union report Guilty Until Proven Innocent revealed that CBP officers working at checkpoints racially profiled and even interfered with the medical care of border residents.
Residents of Arivaca, Arizona conducted observations of the checkpoint at the entrance to their community. Latino-occupied vehicles were more than 26 times more likely to be required to show identification while passing through the checkpoint.
In 2014, the Department of Justice modified its guidance on officers discriminating based on race or ethnicity. Previous loopholes gave law enforcement permission to discriminate. However, other loopholes remain, including some for CBP activities at or near the border.
Stories like that of U.S. diplomat Spears serve as examples of the historical and institutional racism within CBP and the U.S. immigration system more broadly. We need increased transparency and oversight to force cultural changes within CBP. These significant changes are necessary to prevent further injustices and ensure the Constitution applies equally to all people.
If you feel our asylum laws have been gutted, that our nation’s protections for those fleeing persecution and violence have been systematically dismantled, and that the administration is using the façade of health concerns during a pandemic to make it worse, you are not alone.
You are not alone in your dread of the next case certified to the Attorney General, the next BIA published decision, the next proposed rule, the next executive order, the next policy change…and the ensuing scramble to understand how it impacts your clients who have been waiting in the backlog for months or years. You are not alone in feeling like you just can’t keep up with it all.
You are not alone in the justified outrage at how children and families have been treated by the administration. You are not alone in feeling ashamed by the way this country now treats those seeking protection at our borders.
You are not alone in feeling like every immigration court hearing is like pushing back against an ocean of injustice; there is no due process, no fundamental fairness for asylum seekers anymore.
You are not alone in sometimes, perhaps even often, feeling hopeless.
But, you are not alone. There are thousands of others working on these issues, fighting for what’s right. We are a regiment of seasoned asylum practitioners who know the ins and outs of this complex area of law and how to practice it effectively. We are the newcomers to asylum law who may feel uncertain but who know deep in our souls that fighting these battles is what we are called to do. We are the lawyers who take on pro bono asylum cases even when that requires preparing witnesses for their testimony while simultaneously entertaining our toddlers because our offices are now our dining room tables.
We are in this together, and that is what makes me feel inspired and determined, rather than hopeless.
Serving as chair of the upcoming AILA Virtual Asylum Conference and planning the program is one way that I’ve been reminded that we’re not alone, that we are part of a community of talented, passionate attorneys still fighting to keep asylum alive. Join me as we lay out the sweeping policy changes to the U.S. asylum system and the ever higher hurdles for asylum seekers and their advocates that the administration has implemented. Join me as we work through where litigation and advocacy efforts to combat the administration’s changes stand. Join me in fighting for asylum seekers in this country (and supporting each other in those efforts!). I promise you that you will leave this virtual conference with a solid understanding of where things stand and what that means for your clients, as well as expert guidance on new strategies to employ at the border and in the immigration courts as we continue to fight for asylum seekers and the soul of our nation.
I know this is a tough fight to keep up. I know you feel tired. But we can lift each other up, help each other succeed, and save our clients’ lives.
“The machete of memory cuts swiftly or slowly,” Roberto Lovato writes at the beginning of his groundbreaking memoir, “Unforgetting.” It “makes us hack at ourselves,” it “chops up our families” and it “severs any understanding that epic history is a stitching together of intimate histories.”
Fittingly, at the tender heart of this book is a treadle sewing machine used by his grandmother, Mamá Tey, to support the family in El Salvador and, later, San Francisco. At the dark heart of this book is a family secret fiercely kept by his father, having to do with the genocidal aftermath of an uprising in El Salvador in 1932. This massacre, called La Matanza (the slaughter), so traumatized the “tiny country of titanic sorrows” that today, according to Lovato, it is unknown to most Salvadorans, repressed during five decades of military dictatorship. A second uprising, beginning in 1980, led to 12 years of civil war between the Salvadoran military, supported by the United States, and the armed forces of the opposition. The war displaced more than one million Salvadorans, with half taking refuge in the United States. After the war, social and economic reforms promised during peace negotiations were abandoned, and until 2016 amnesty laws protected the perpetrators of war crimes, the majority committed by the military. Civilians, and combatants from both sides of the conflict, struggled to survive in a deteriorating postwar environment.
In the United States, young Salvadoran war refugees defended themselves from urban street gangs by forming gangs themselves, and when the government expeditiously deported them, gang life became a U.S. export, seeding criminal enterprises such as narco-trafficking, extortion, kidnapping and money laundering. In the absence of serious economic development and domestic security, Salvadoran parents despaired of keeping their children fed and safe, and sent them north, until whole families were fleeing on foot to the U.S. border. These families are often referred to as “migrants,” but in truth, they are the most recent refugees of the war and its aftermath, victims of a conflict that could not have been prosecuted without the support of the United States, the country that is now refusing to grant the vast majority of them asylum.
“Where most see the refugee crisis as ‘new,’” Lovato writes, “I see the longue durée of history and memory. Where many see the story beginning at the border, I see the time-space continuum of violence, migration and forgetting. … Where others see mine as a Central American story, I see it as a story about the United States.”
“Unforgetting” is a story of two countries, inextricably bound, and Lovato is uniquely positioned to tell it. As a U.S.-born son of immigrants, he grew up knowing the culture of gang life in the streets of San Francisco, spent his holidays visiting family in El Salvador, was briefly a born-again Christian, worked for nongovernmental organizations in both countries, joined the opposition as an urban commando late in the civil war and later witnessed, as a journalist working for The Boston Globe, the exhumation of mass graves. In one of his memoir’s most chilling chapters, he takes us into a forensics lab in San Salvador where “all the country’s documented and undocumented dead come to be analyzed and counted before being returned to their loved ones — or buried in anonymous graves.” We meet Saul Quijada, a forensic anthropologist skilled in “making the bones speak” — “from rural and urban areas where killings in El Salvador force migration,” he says, “to the deaths that take place during the migration through Mexico to the United States.” He shows Lovato one of the older skeletons from the massacre at El Mozote, early in the war: “We’re rebuilding the cranium piece by piece because it was in pieces, chopped up with a machete. The pieces were like a jigsaw puzzle.”
The jigsaw puzzle is one of the governing tropes of Lovato’s episodic narrative; his task is to piece together not only his fragmented identity, but the mosaic of testimony from the host of characters he assembles, all the while standing in the rubble of war’s aftermath. His grandmother tells him: “We’re all pieces of broken glass, stained with blood and struggling to put ourselves back together.” Lovato’s quest is “to do the personal forensic work of recovering the fragments of my childhood and adolescent memories, especially the ones that are often more painful to conjure.” These have largely to do with his violent, charismatic father, whose smuggling business, alcoholism, womanizing and secrecy bequeathed to the author a measure of “nihilistic rage” that animates his search to uncover his father’s secret regarding the massacre in 1932. The revelation of this secret guides Lovato in contemplating deeper questions about the personal and political silences that perpetuate violence; about prolonged mourning and the enduring effects of intergenerational trauma; about the collective inability to look down into the abyss of our history; and about “what turns salvageable kids … into stone-cold killers.”
In a particularly timely passage, he ties the militarization of policing in the United States to counterinsurgency tactics deployed, thanks to U.S. aid and training, by El Salvador during the civil war. The American military strategists who advised the Salvadoran government during that war later recommended using the same tactics in the “war on gangs” in Los Angeles, with “cops wearing puffed-up, RoboCop gear now worn by police everywhere.” Today, Lovato writes, “while the media popularizes the terrors of gang war, it ignores the fact that counterinsurgency policing is a multibillion-dollar industry for the arms dealers and military contractors that provide the tanks, semiautomatic weapons, and other equipment now supplied to local police forces throughout the United States.”
It is a complex puzzle indeed, and Lovato is among the first Salvadoran-American writers to assemble it, shuttling back and forth in time, between countries and languages, to retrieve the pieces for a kaleidoscopic montage that is at once a family saga, a coming-of-age story and a meditation on the vicissitudes of history, community and, most of all for him, identity.
If there is a defining moment in the narrative, it might be his visit to Corral de Piedra in 1990, just after a rocket attack by the Salvadoran military in which a number of children had been killed. “Looking at the crosses placed near the bombed-out adobe wall, thinking about the children — living as well as dead,” Lovato recognizes that his fight is not just against the government of El Salvador. “My new fight was also against the government that … put El Salvador on the path to becoming one of the longest-standing military dictatorships in the Americas,” he writes, “my own government, the one that had issued my passport.” Years later, one of his university students in California will say: “I remember the war and, yeah, I remember seeing dead bodies and things that cause terror, Lovato, but I also remember eating jocotes, always having lots of family around and playing escondelero in the cool shade at the foot of the volcán ’til late. I remember a lot more than ‘terror.’ And who paid for that terror? This country. That’s who.”
In a time of national reckoning, such truths must be faced if we are to be serious about who we are and what we have done. Lovato’s memoir confronts historical amnesia and “the myth of American innocence shared by conservatives and liberals alike.” The picture he assembles is a mural of our complicity in systemic violence and inhumanity, and the resilience of the people who endured it.
A Memoir of Family, Migration, Gangs, and Revolution in the Americas
By Roberto Lovato