my first case (that I understood, not handled)

For the last several months I have been acclimating myself, bit by bit, to the language of the law. I started by skimming a few library-lent ‘nutshell’ books on broad legal topics like contracts and torts that I will tackle as a 1L. Then, I hooked up with two other pre-law bloggers and began working through exercises and discussing the concept of legal writing in plain English via an excellent and practical book on the subject. I bought a pocket Black’s law dictionary and looked up words and phrases I came across. I sat through session after session of the American Immigration Lawyers Association conference, at times wondering where on earth I was, at other times totally following the legal discussion of immigration law. At times, I even appeared to know more that an attorney or two.

During the conference, I heard a discussion of a certain recent case, which, without getting too technical, altered a common way of determining what constitutes an admission to the U.S. for purposes of adjusting one’s status. For an example, like countless Mexicans and other Central Americans, Fermin entered the U.S. back in 1998 “without inspection.” He had no visa, he was never stopped at a border patrol checkpoint, he was never inspected. Generally, people who enter this way, cannot adjust their status from within the U.S. even if they marry a U.S. citizen and are eligible for an immediate visa. This is why he had to have his visa interview in Mexico, despite being married to me. And upon leaving the U.S., his unlawful presence triggered a 10-year bar which required  the I-601 waiver.

If Fermin had entered the U.S. ten years ago on a tourist visa, even if he had overstayed it by 9.5 years, he could have adjusted his status within the U.S., never needing a waiver. There are, however, legal questions when it comes to determining if a person has entered legally, “with inspection,” and was “admitted.” What if Fermin had entered the U.S. at the border with someone else’s green card?  Is that with or without inspection? That is the question, as I understand it, in my non-lawyer, not-even-law-student view, in Orozco v. Mukasey, which I have been meaning to read since the AILA conference and finally did tonight.

Thus it becomes the first legal case I have ever read with any hint of understanding. And frankly, I understood all of it. The decision is clear and well-stated, yet unfortunate for many people who once were eligible for adjust their status despite a fraudulent entry and now may not have that opportunity. I know someone in this situation, and I don’t envy her awkward limbo right now… but this is not supposed to be another sad immigrate2us.net post, it’s more of a triumph – I read a case, and I got it. It wasn’t even a challenge. I have to do all the hard work so that one day I can be a great lawyer.

On to contracts, civil procedure, torts and criminal law!

a brief recap

Vancouver is very beautiful. It’s a city where unexpected views of snow-capped mountains rising over the sparking ocean trigger photo ops, most people seem to walk or take public transportation on a regular basis and American-style fast food is not on every corner. Well, Starbucks, yes, but McDonalds, thankfully, no. I learned the other day that Vancouver is the largest city in North America without a major highway running through it. I saw dozens of Smart Cars and many of the taxis are hybrids. Every public garbage station has a slot for paper, a recycling spot, as well as a hole for other trash.

At the downtown conference center, cruise ships dock daily, there is a Chevron station in the middle of the bay (for boats!) and the weather is mild year-round. In summer, the sun rises very early, and sets completely around eleven. It’s clean and historic and has a huge Chinatown as well as a gorgeous, mostly wooded urban park. It is great.

The conference was wonderful. It was different than I expected. Who knew there are 11,000 immigration lawyers just in the American Immigration Lawyers Association? And thousands of them were at this conference. So, it was not at all likely that I would just run into someone from the forum’s attorney. I hung out with Laurel Scott, her assistant and my long-time forum buddy Lynette, Laurel’s new-ish associate Veronica Tunitsky as well as Southern California attorney Heather Poole and her assistants Carla and Mindy. This is a fabulous group of people and I feel so blessed to have met them all.

This was also the first time I have been surrounded by lawyers, or even in the presence of any lawyers. I don’t think I have ever been in a law office in my life (still). There are no lawyers in my mother’s, father’s or stepmother’s family. I don’t have any friends who went to law school. Now that I am in the law school mode, a few people in my real life have mentioned that such and such acquaintance from college or whatever is an attorney, but I’ve just never been around lawyers.

Most of the people I met at the conference seemed very nice. They are, after all, immigration lawyers, and while a fair share of them do business law or other things that are not directly related to families, these are people who commit their lives to helping foreigners come to the U.S. on a temporary or permanent basis. They seem overwhelmingly cultured and open-minded. There were some people I wasn’t too sure about, but overall they made a good impression on this outsider.

terrible terrible terrible

Does everyone remember my immigration journey? If not, and you have a little time, refresh yourself here and here. If you are unable to invest a few extra minutes – Fermin was an undocumented immigrant when he met. He had been working in the U.S. for six years — never arrested, no trouble with the law, worked steadily, often at two jobs, spoke English, went to technical school, held a driver’s license, etc, etc.

After we married and some time after we filed a petition for his legal residency, he returned to Mexico for a visa interview (because people who enter the U.S. without inspection are generally not allowed to adjust their status inside the United States). He was found ineligible for a visa based on unlawful presence but eligible for a waiver of the ban. In order to get a waiver approved one has to prove that the U.S. citizen half of the relationship will suffer extreme hardship if the immigrant spouse is not allowed to return to the U.S. for ten years. Our waiver was approved nine months later, and he got his visa and returned to the U.S. a total of eleven months after he left.

I’ll admit it: Those were not good times. I managed, I think better than many, because I’m very independent, stayed busy, was enjoying my new job and got to do a lot of writing that year. But I also wasted a lot of money, ate too much, exercised too little, constantly wondered if our waiver would be approved and constantly wondered what we would do it were not approved (move to Mexico for ten years until he could reapply…. yeeah).

But “not good times” doesn’t begin to explain the travesty of an immigration journey I just read on immigrate2us.net today:

“Sunflower,” (forum name) a U.S. citizen, and her husband, an undocumented Mexican immigrant, started the same petition process more than four years ago. Mr. Sunflower was a minor when he entered the U.S. for the first time. He stayed for at least one year and was still a minor when he left the U.S. and then re-entered a second time without inspection. I don’t know how young he was but it’s entirely possible his parents brought him from Mexico into the U.S., then took him back to Mexico, then brought him here again. I’m not sure. Mr. Sunflower had his initial immigrant visa interview in the fall of 2005. Just like Fermin, his visa was denied, but he was allowed to file a waiver for his unlawful presence.

Sunflower waited in the U.S., her husband in Mexico, for nearly a year before their waiver was denied for not proving enough extreme hardship. (Lots of people submit very emotional letters and don’t include documentation, which can result in denial.) One month after receiving the denial Sunflower filed an appeal of the denial. They waited 18 months before hearing that the appeal had been approved this past March. But in order to actually receive his visa and return to the U.S., Mr. Sunflower had to return to the Consulate in Ciudad Juarez. And because it had been more than a year since initial his consular interview (waaaay back in 2005), he had to interview a second time. Here’s the kicker:

Sometime either late 2007 or early in 2008, the Consulate in Ciudad Juarez suddenly altered, without notice to attorneys or anyone, their interpretation of a subsection of the law which deals with multiple illegal entries into the U.S. Generally (and there are some exceptions) if a person enters the U.S. illegally, acquires more than a year of illegal presence, then leaves, then re-enters without inspection another time, they are not eligible for a waiver until they have spent ten years outside the U.S. Well, hypothetically, because Mr. Sunflower did this, he’s not eligible for the waiver. But because he was a minor when all that happened, it was not counted against him. All they took into account at his interview in 2005 was that since he was 18 he had been in the U.S. illegally. And since he had not left and re-entered since he was 18, he was eligible for the waiver.

The suddenly-instated interpretation. however, no longer applies the exception for minors. This means that no matter how old someone is, if they lived in the U.S. illegally for more than a year, then returned to Mexico (or wherever), and then re-entered again without inspection, they have to stay outside the U.S. for ten years before they can be eligible for immigrant visa. Ridiculous but all-too-plausible example: Let’s say Fermin’s parents had brought him here illegally to the U.S. when he was three. Then, when he was 10 and had already half grown up in the U.S., they decided to return to Mexico. They make it in Mexico for a year, and then decided they have to go back to the U.S. They take their son back across the border when he is 11 or 12. He continues to grow up in the U.S. Ten years later he meets me. We date, marry, file petitions for him, etc. He goes to his interview in Ciudad Juarez and is completely honest about his history. The officer bans him for life with the chance to file a waiver after he’s been out of the U.S. for ten years. For a decision wholly made by his parents. This is utterly, completely possible, and the very real scenario for a number of completely frustrated and stuck people from immigrate2us.net.

Worst is that there absolutely no way around this interpretation of the law. It doesn’t matter if you have a U.S. citizen spouse and three U.S. citizen children. It doesn’t matter if the U.S. citizen spouse is completely unable to move abroad because he or she is in the military or has medical problems that require treatment in the U.S. There is no overcoming this besides waiting for ten years.

Back to Mr. Sunflower – after three years outside the U.S., thousands spent on fees, petitions, medical exams, a waiver and an appeal, the consular officer at the interview looks over Mr. Sunflower’s history in March 2008 and determines he is not eligible for the waiver the way they interpret the laws today, and therefore, cannot get his visa. They retroactively apply their new interpretation of the law to this poor family, essentially leaving them no way to live together in the U.S. for another six to seven years. I fully understand that the law is the law, and I’m not going to even get into the intricacy and basically unclear wording that “justifies” their no longer forgiving minors their illegal presence. But trust me that it is RIDICULOUS. It is beyond freaking ridiculous.

I am pissed today, let me tell you… It’s not pretty. I wish there was something that could be done for this family, but with immigration, and all of this happening outside the United States, there is essentially no checks on their decisions. There is no one to even complain to. It’s a travesty.

life and liberty

I have a great calender hanging on the beige wall adjacent to my computer monitor at work.  I picked the calendar carefully, knowing it would provide, besides whatever I view on the web each day, the only source of art during the many hours I spend at work. After perusing the racks of my area bookstore, I decided on a Graphique de France black & white photograph calendar of New York City scenes. It’s significant because I have never been to our nation’s largest city, very much want to visit, and the majority of people I speak to while doing my job live and work in New York City and the surrounding boroughs. This year I have looked at a 1950s photo of the Brooklyn bridge for one month and a gorgeous shot of the inside of Radio City Music Hall on its opening night in 1932.

Monday morning, December 3, I was feeling stressed. I was thinking about waiting three whole weeks to hear about my LSAT score, and wondering if I might have scored terribly (or rather, far worse than what I am hoping for) and trying to balance that with feeling like the test went fine. It’s a little bit of a crazy time at work, and I was thinking about needing to complete my Marquette application, and what my “optional” statement should be about, and what if there was a typo on the resume I submitted to UW-Madison, and why am I doing this anyway? I have a great, relatively easy job that I am good at and earns me a nice living. While Fermin is totally supportive of me going to law school he doesn’t really understand my desire to have a career that assists other people. He feels that no one is ever going to appreciate the stress I will eventually feel over my cases, and that it’s not worth it to lay awake at night, as I was telling him my attorney friend does, worrying about other people. Obviously I disagree, and that is fine.

So Monday morning I looked at the November photo of the Flatiron building at Broadway and Fifth Avenue, just a block from a doctor’s office I would talk to later that day, and got up to switch it over to December. I didn’t know what the last photo was, and encountered a close-up with the face of the Statue of Liberty, my favorite representation of what I wish America could be. It reminded me of why I want to pursue law, and that I’m too young to be so cynical, and that having a job that makes a person feel like they have accomplished something good in the world, even if that’s just helping relatively few stay together, one immigrant at a time, will be totally totally worth it.

It’s time to get a new calendar for 2008, but I think I’ll cut out lady liberty and leave her up as a reminder of the values I want my life to be about.