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The Impact Of Avoidable Immigration Actions

March 29, 2017

The Impact Of Avoidable Actions:
Small Mistakes, Huge Consequences

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The study of history, it’s been said, is the study of unintended consequences.

This is true on the personal as well as the public level. For immigrants, especially those from South and Central American countries, the proposition has dire meaning.

Beginning their journeys with uncertainty the norm, most of them realize unplanned events on the trail to the U.S. can lead to life-changing outcomes, abrupt endings, and death.

Arrival ensures no less unpredictability.

Small miscues can set in motion undesirable though foreseeable consequences.

Even when immigrants make it past the guardians of the gate, the details of their past, good and bad, follows them forever – whether they choose to acknowledge their personal history or not.

Yet, once here, many let down their guard and abandon their sense of caution.

Pillars Of Failure: Procrastination And Carelessness

In recent weeks, stories about immigration raids, detentions, and deportations have dominated the news. Immigrant communities are frightened and scared.

Despite the obvious threat to their families’ well-being, many at-risk immigrants remain reluctant to seek advice about their specific situations. Instead, they stay at home, watching the news, hoping a political cure will emerge to protect them from the danger of separation from family members.

Unfortunately, there are no simple solutions.

The past few weeks have been an eye-opener, even for me, a Riverside immigration trial attorney with over two decades of experience.

The more I meet with individuals, the more I learn abut the vast underground of immigrants who have waited for years, doing nothing to improve their legalization positions – and in many cases, missing golden opportunities to win permanent residency.

Others, having made careless mistakes on their own or with deficit assistance, ignored the need to clean up their errors and are now in a position where clean up is either only remotely possible, with grave risks along the way, or worse, no longer possible at all.

The past haunts. The future taunts.

Like a Brown Plague, procrastination and carelessness, the dual pillars of yesteryear’s mistakes, have infected the dreams and hopes of Hispanic immigrants throughout the Southwestern United States and beyond.

As a green card and citizenship lawyer, I am disheartened by such situations, to say the least.

Almost every one of these individuals have directly or impliedly told me that their decisions were based on costs. They sought the cheapest road to their end goal.

They failed to grasp those of us who are dedicated immigration professionals charge higher fees for reasons which have nothing to do with gouging clients . . .

. . . but for reasons critically related to putting an immigrant’s best case forward.

High quality help, in short, requires more than filling out forms and truncated responses to deceptively complicated questions.

So, yes, I am disheartened.

I cannot help those who have chosen not to help themselves and have damaged their immigration situations beyond repair.

This is not the world of immigration law I envisioned when I began my career.

In fact, as this video on fighting against deportation explains, procrastination and avoidance is tantamount to deserting one’s family in the midst of battle.

The Myth Of Unaffordable Legal Fees

Like many of my colleagues, I want to help immigrants who retain a fighting chance to survive the Age of Trump and are committed to doing what is necessary to live the life they claim they want.

Alas, even as roads to immigration success are being closed at record pace, attorney fees are often lambasted as the primary determinant of procrastination and carelessness.

Misunderstanding, if not exaggeration, fuels the allegation.

Most immigrant lawyers I know are willing to enter into some type of monthly payment plan with clients.

Even if their total fees cannot be reduced without sacrificing the quality of representation, the rate of compensation can be negotiated.

Contrary to public rumors, the majority of immigration lawyers are hard-working professionals who care about ensuring fairness for their clients and assist them at less than optimum profit.

Their role in protecting families over the next four years will be greater than ever before.

We face an administration committed to Fortress America, a change of policy in which only a select group of foreigners will be allowed legal status.

We’re in a battle, unlike any I have previously experienced during my many years on the front line of immigrant defense.

To fight back, sacrifices must be made. This includes financial sacrifices.

Among the protective steps immigrant families need to take, talking to a lawyer today about what may happen if they are detained tomorrow – as well as saving money for legal representation – should be urgent priorities.

If and when the day for court arrives, immigrants cannot risk fighting alone.

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In spite of the rise of sanctuary cities and the creation of public defender services, there are not enough subsidized resources to assist all immigrants.

When I have raised this point in earlier blogs, I have received a lot of push back. Here are a few:

  • “People earning minimum wage or less can save? You know, Carlos, some people are worse off than you think.”
  • “You’re wrong. Savings is not always possible.”
  • “Save money? You’re crazy. I have a wife and three children. I do my best to keep a roof over our head with enough food to eat.”

(By the way, these are the polite watered-down versions of such comments.)

Believe me, I get it. Saving money is hard.

For some, saving is in fact impossible.

For others, it is only temporarily impossible. Like many things in life, from buying a new car to earning a college degree, when you really, really want something, you can often discipline yourself to achieve, obtain, or reach that goal.

The “I don’t make enough money to start saving for my immigration case” mantra is not an absolute truism.

The key to saving is to start. That’s it. Just start.

Take Julia, an immigrant from Honduras, who told me it took her over 3 ½ years to save the money to pursue her immigration dreams. She started by saving 50 cents per week in a jar, money she earned by cleaning houses.

She had two daughters to raise without a husband. Over time, she gradually increased the amount and started saving $10 dollars each time she was paid.

Eduardo, a gardener born in Mexico, and his wife put away no less than $5.00 per week. The temptation to spend was nearly overbearing.

At various points, he wanted to buy a new truck. He wanted to buy new equipment. She wanted a new cell phone.

They persevered. They had made a promise to each other. They stuck to it. First, pay for help to win legal residence. Then buy the luxuries they wanted.

How much you save is irrelevant.

It doesn’t matter if you’re saving a few dollars a week or automatically having 5% deducted from your paycheck. What matters is the mindset that you can save and then build a habit to save regularly.

Both Julia and Eduardo won their cases.

Were the payments they made to their attorneys critical to their success?

Maybe. Maybe not.

It’s not a question they’ll ever have to ask themselves.

A Series Of Unfortunate Events

Let’s take a quick look at two stories in the news recently.

They illustrate that when it comes to immigration, relatively simple errors can cause huge problems for immigrants and their families.

(As a caveat, I would like to note that my knowledge of the cases cited is based on what I have read and heard in the news. I have no inside knowledge of actual facts.)

A Failure To Renew TPS Status: Jose Escobar

Recently, the Houston Chronicle reported Jose Escobar, a 31-year-old father of two U.S. citizen children had been deported to El Salvador despite no criminal convictions. He had been living here since he was 15.

An excerpt follows.

Immigration Agents Deport Houston Father Of Two

Unlike the violent criminals Trump has said he would focus on, Escobar landed in deportation proceedings because of a simple paperwork gaffe.

His mother sent for him when he was 15 and like her, he qualified for temporary protected status for people fleeing widespread disasters in certain countries.

She assumed his permit would automatically renew when she reapplied for hers. But it didn’t.

Because they had moved, they didn’t receive the paperwork informing him that he had missed the deadline.

When he finally figured out what had happened, he tried to reapply for the permit but it was too late. The government had already initiated deportation proceedings. Escobar’s wife, Rose, said their lawyer told him not to show up at the court hearing or he would be deported. In his absence, the judge ordered him removed in 2006.

 

Several years later, Escobar was apprehended by immigration agents. He was released after seven months in custody and granted supervised release under the Obama Administration’s prosecutorial discretion guidelines.

Reading between the lines, this article presents several questions related to the issue of hiring legal representation.

To begin, I wonder if Escobar’s mother consulted an immigration attorney before sending for her son? Were there no other short or long term options?

(Escobar’s arrival reminds me of the recent influx of Central American refugees at American borders. In those cases, during interviews, I’ve heard more times than I care to recount how families spend $5,000 to $10,000 to smugglers but cannot afford attorney fees to defend the child in asylum proceedings.)

Second, his mother’s assumption that Escobar’s TPS status would automatically renew when she filed for an extension appears to indicate she filed on a pro per basis or via a low-cost immigration assistant, without the help an immigration lawyer.

This is not the type of mistake competent TPS counsel would make.

Indeed, if a lawyer had been handling their applications, he or she would have been inclined to file a motion to reopen or reconsider the adverse decision.

Moreover, that Escobar’s mother did not know his application was denied reinforces the likely absence of an attorney.

After all, if she received her TPS renewal, why did she not question the non-receipt of her son’s renewal?

On the whole, it seems highly probable she handled the TPS applications on her own, and, at minimum, did not appreciate the importance of filing a change of address with the USCIS office handling their TPS applications.

There is a another, quite disconcerting, aspect of this immigration case . . . the allegation by Escobar’s wife, Rose, that “their lawyer told him not to show up at the court hearing or he would be deported.”

Though not unfeasible, it is difficult to imagine a true immigration lawyer said exactly that. It means an attorney “instructed” them not to appear. If notice of the hearing was properly served on Escobar, any immigration lawyer would know non-appearance leads to an in absentia deportation order.

Perhaps, I asked myself, a lawyer merely told them what might happen – i.e., the risk of deportation, due to a lack of a viable defense – if Escobar went to court?

Or maybe their lawyer was really just a notario or some similar community activist?

The Houston news article is hardly clear on the issues noted above.

However, it illustrates how immigrants commit avoidable mistakes on their own or with deficit assistance, then ignore the need to clean up their errors as soon as possible . . . placing themselves in harm’s way with positive solutions no longer available to them.

(For sake of brevity, I have chosen not to address the simplistic dependency on prosecutorial discretion over the past 24 months. Besides, if you are a regular reader of my blog, you already know my position on the previous administration’s various dead-end measures.)

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A Failure To Renew DACA Status: Daniela Vargas

The ordeal of Daniela Vargas, a 22 year-old spokesperson for the Deferred Action for Childhood Arrivals (DACA) program, was another detained immigrant story recently shared on multiple media outlets.

Because Vargas was taken into custody just minutes after she was a guest speaker at a local press conference, shock quickly spread in immigrant circles.

Her story goes much deeper.

The Washington Post explained:

ICE Nabs Young Dreamer Applicant After She Speaks Out At A News Conference

Vargas was in the process of renewing her status as a “dreamer” to remain in the United States legally — a status she had allowed to lapse.

She had been granted the two-year protection under DACA twice before, in December 2012 and in November 2014, Abigail Peterson, one of her attorneys, told the Associated Press. But her DACA status had expired in November 2016, and it was not until mid-February that she was able to come up with the $495 application fee to renew it.

Vargas was 7 years old when she came to the United States from Cordoba, Argentina, with her father, mother and brother on a three-month visitor’s visa in 2001. Their visa expired, but the family stayed, establishing a life in Mississippi.

She was recently studying at the University of Southern Mississippi, but had to take a semester off because she couldn’t keep up with the bills. As a DACA recipient, Vargas was not eligible for scholarships or federal student aid for college, so most of her father’s income went toward her tuition, she said.

 

Two aspects of this case caught my attention.

The first was the primary issue highlighted by most news accounts. Vargas had allowed her DACA status to expire.

She did not have sufficient funds to pay the filing fees to USCIS.

As a result of the failure to file for the extension, Vargas was no longer protected from deportation proceedings being commenced against her. This enabled immigration agents to apprehend her.

Had she filed, she was free from such problems for another two years.

Her application for renewal was due in November. She was arrested in March. (Were attempts to borrow $495.00 fruitless?)

Being a DACA recipient, she had been granted valid employment authorization. Unlike immigrants who are undocumented, Vargas had been entitled to work in the U.S. prior to November. Her ability to pay a lender, after her status was renewed, was not far-fetched.

Did she work while attending college?

When did she leave college to seek employment?

Were her efforts to find work successful?

The Washington Post did not delve into her employment history, making it difficult to gauge her ability to save money for the requisite filing fees. What reasons prevented her from putting away the necessary funds in the months prior to November are unknown.

Since Vargas served as a DACA spokesperson, her procrastination in filing was knowingly linked to a carelessness in assuming the risk of possible deportation.

There is a second troubling component to this case. Like Escobar, Vargas was the victim of her parent’s decision to place her in harm’s way.

Brought to the United States at the age of seven, Vargas entered under the Visa Waiver Program, which enables immigrants to enter the U.S. for three months without obtaining a visa. The ease of admission comes with certain restrictions.

Foremost, immigrants must agree to forfeit any challenge to removal if they overstay their three-month pass.

Although the decision to overstay was her parents’ decision, as a DACA beneficiary, she had called the government’s attention to her manner of entry in her original application.

The potentially adverse impact of her parents’ decision should have been calculated prior to applying for benefits under DACA.

On the one hand, if she prepared her original application on her own, the oversight points out the danger of representing oneself without an attorney.

It may be easy to fill out some immigration paperwork correctly. But if a petitioner does not know the meaning of each provision within that application, there exists the possibility for major legal missteps.

On the other, if she did have a lawyer or some other type of legal representative assist her, the question becomes whether she was advised about the consequences of her entry under the Visa Waiver Program.

In either instance, the Vargas case demonstrates how tiny mistakes, on the surface, can become the basis of immigration disasters later.

The surest protection, though not ironclad, is competent legal counsel, coupled with diligence and carefulness.

The questions posed about the Escobar and Vargas matters are not easy to ask.

Callousness is not intended.

But such inquiries must be pondered . . . for in the Age of Trump, immigrants must begin the tough task of looking and planning ahead or risk similar disastrous results.

By , Immigration Law, Policy, And Politics

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