Statutes of Liberty

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

You, our patient readers, asked for pro bono success stories in our Readerpalooza poll, and we’re glad to provide!

All names and some small details have been changed to protect the identity of the individual client. In all cases, we’re providing the name of the referring organization and a donation link — these are great places, and every contribution helps.

Mrs. M — the Arlington Volunteer

Some of our most wonderful pro bono cases are referred to us by our friends at St. Charles Borromeo Church, right here in Clarendon. Mrs. M. is one of them. Mrs. M won asylum in the United States based on political persecution in her home country, then sought and obtained a green card. When we met her, she was eligible for U.S. citizenship, but she needed careful assistance to get through the process of becoming a citizen. Like many of our clients, she was worried about the naturalization interview process, so we did several practice interviews with her. We brought her to the interview, she passed with flying colors, and she brought us sweets afterward. She also volunteered to coach other pro bono clients of ours on how to pass the naturalization examination, which fits very well with her generous nature — she has been volunteering to help with COVID response here in Arlington as well.

Ms. N — Domestic Violence Survivor

Catholic Charities of the Archdiocese of Washington called us to tell us about a good person with a major problem: Ms. N and her abusive United States citizen spouse. Laura Lorenzo had recently joined our office, and so we immediately matched Laura with Ms. N to begin the process of applying for immigration relief. Ms. N’s husband — a real jerk, to use the proper legal term — was physically and psychologically abusive, and, on top of that, leveraged her lack of immigration status in family court to deprive her of custody of their children. Laura has worked with Ms. N to prepare a Violence Against Women Act petition, which will permanently free her from relying on her abusive husband for immigration protection. When Laura’s work succeeds, Ms. N will be able to apply for a green card in her own right.

Mr. O Knows: The Government Can’t Argue Both Sides of the Same Case

The Board of Immigration Appeals Pro Bono Project matches private attorneys with cases that wouldn’t ordinarily find a way to the private bar. That’s how we met Mr. O, who was sitting in immigration detention in Arizona. Mr. O had an interesting legal problem. While representing himself pro se, Mr. O had presented a request for asylum, and the Department of Homeland Security had (perhaps unadvisedly) conceded that he was eligible for asylum, only to retract its concession on appeal. Mr. O, happily, had two friends on his side — our law firm, and more importantly, the doctrine of judicial estoppel, which prevents a party (in this case, DHS) from taking contradictory positions at different stages of litigation. We presented a brief to the Board of Immigration appeals, in which we argued that Mr. O’s grant of asylum should survive DHS’s change of heart. DHS, to its credit, withdrew its appeal, and Mr. O was promptly released.

We’re proud of our work with pro bono clients, and we would be delighted to provide additional resources if you have questions about what organizations are best positioned to help particular types of cases.

As a final note, for the sake of disclosure — one of our lawyers, James Montana, volunteers with the Borromeo Legal Project, Inc., which is associated with St. Charles Borromeo Church in Arlington but has a separate organizational structure. The link above is to donate to St. Charles Borromeo Church directly, not to the organization with which James volunteers. We just want you to know that we aren’t engaging in self-dealing.

As always, we would love to hear your thoughts and we will do our best to respond.

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

In the wonderful world of immigration, legal terminology matters hugely. In this column, we’ll explain what a few of the most important words mean, so our loyal readers (hi, commenters!) can understand more clearly what our clients have to learn. The three words of the day are: Petitioner, sponsor and admissible.

There are three layers to every green card application. The first layer is figuring out who the petitioner is. Sometimes clients refer to petitioners as sponsors. For example, many clients say “I have a U.S. citizen who can sponsor me.” The accurate way of putting it is that the U.S. citizen is petitioning the U.S. government to allow you, the client, the benefit of becoming a permanent resident.

Family members can serve as petitioners. U.S. citizens can file petitions for spouses, children, parents and siblings, and permanent residents can file petitions for spouses and children. Companies can file petitions for employees or potential employees. However, just because the immigrant has a family member who can petition for her does not mean that she automatically qualifies for a green card.

The second layer is finding a sponsor. A sponsor is a U.S. citizen or permanent resident who agrees to serve as a financial guarantor; the sponsor is liable in a civil action if the new permanent resident receives certain government benefits or falls below the poverty threshold. Not all petitioners are good sponsors because the U.S. government demands that the sponsor have enough financial resources to serve as a guarantor. Under such circumstances, you need a second sponsor as a backup. That sponsor is liable in precisely the same way if the new permanent resident falls on hard times.

Got a petitioner and a sponsor? Good, you might be eligible, but we still need to figure out whether you are admissible. To determine this, thorough immigration lawyers ask you a laundry list of questions. For example, “Did you enter the United States by crossing the border without a visa, or did you come through an airport with a visa?” and “Have you ever been arrested or convicted of a crime?”

Criminal convictions frequently render an immigrant inadmissible. For example, sometimes a misdemeanor theft offense can render a person ineligible for a green card. Another common example is crossing the border without a visa or entering the United States multiple times in that manner.

In some cases, this is fixable via an application for a waiver, which adds a fourth layer of complexity (and cost) to the case. But it all depends on the family relationships that the immigrant has. In the case of someone who enters the United States across the border without a visa, the immigrant must have a spouse or parent that is a U.S. citizen or lawful permanent resident. On top of that, the immigrant has to prove that the spouse or parent will suffer extreme hardship if they are separated or must relocate to the immigrant’s home country. Notice that having U.S. citizen or permanent resident children does not help in these circumstances.

To waive criminal convictions, the immigrant must have a spouse, parent or child that will suffer extreme hardship. However, some criminal convictions cannot be waived. For example, many controlled substance convictions make an immigrant permanently inadmissible.

Determining whether someone is eligible to get a green card is a complex issue that, as we can see, requires multiple layers of analysis. We recommend that immigrants work with reputable attorneys during their green card journey.

As always, we would love to hear your thoughts and we will do our best to respond.

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

U.S. citizenship is the ultimate goal for most of our clients. It can take decades to obtain, but it can be lost in an afternoon appointment before a single consular officer. How that is done — and why — is the subject of this week’s column.

First, a key distinction: People who have green cards (“lawful permanent residents”) can lose their permanent residency without their consent; United States citizens cannot lose their citizenship, other than in extremely rare cases, without affirmatively applying for denaturalization. You can lose your green card by spending too much time abroad or by stealing a candy bar; a United States citizen can live abroad for decades and commit every crime in Title 18 of the United States Code without losing citizenship. Under the 14th Amendment as interpreted in Afroyim v. Rusk, Congress cannot revoke the citizenship of an individual citizen or pass a law depriving an entire class of citizens of their privileges.

So, citizenship is difficult to lose. How might you manage it? The most common way is to affirmatively renounce your citizenship in an interview before a U.S. consular officer abroad. Once renounced, the expatriate is in the same position as a foreigner who never held U.S. citizenship. He must obtain a visa if he ever wants to travel to the United States.

There are many legitimate reasons to relinquish United States citizenship. Tina Turner, for example, decided that she wanted to live in Switzerland with her husband for the rest of her life because, to paraphrase only lightly, Switzerland is fantastic. Alexander Boris de Pfeffel Johnson was, to paraphrase not at all, angry about an “absolutely outrageous” tax bill on the sale of London property and, one imagines, embarrassed to be both a U.S. citizen and an ambitious striver in Whitehall. Eduardo Saverin did not want to share his Facebook bajillions with the likes of you.

Those are rather boring cases, though. For pure appeal, we like the case of William Ash, a Texan and farmworker who was righteously furious about U.S. neutrality at the outset of World War II and did something about it — he went to England and joined the RAF. He was shot down, captured, imprisoned at Stalag Luft III and attempted escape repeatedly. (Steve McQueen, in “The Great Escape,” portrays a fictionalized version of William Ash’s adventures.)

After demobilization, Ash tried to return to the U.S. only to find that he had been denaturalized simply for joining the British armed forces. Undeterred, he studied at Balliol College, Oxford. He attempted to join the British Communist party but was rejected for being too quirky and individualistic. He wrote 12 novels and seven works of nonfiction. He died at 96 — a British citizen to the end.

The second most common way to lose your U.S. citizenship is a judicial denaturalization. This deeply unpleasant process is only applied to naturalized citizens and is never applied to natural-born citizens of the United States.

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This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

In one of our recent columns (A cry for help if there ever was one. – Ed.), we suggested that DHS Secretary Alejandro Mayorkas’ days were numbered. So far, Secretary Mayorkas has kept his post. We want to explain why we think he has rough sailing ahead, and, in the course of doing so, offer some information about what’s going on at the U.S.-Mexico border.

Mayorkas is an old immigration hand. When he became DHS Secretary, wise observers described his elevation as a signal that the Biden Administration intended to return to normalcy.

Returning to normalcy only works, as a policy, in normal times. Unfortunately for Mayorkas, these are not normal times at the U.S.-Mexico border. The number of unaccompanied minors apprehended at the border (typically from El Salvador, Guatemala and Honduras) is setting new records, and the numbers are expected to increase over the next six months.

So, it’s a crisis. Crises force people — even bureaucratic infighters — to take a position. Mayorkas has accordingly found a position, and it is much more dovish on irregular migration than we would have expected. His recent statement to Congress lays out his position in a straightforward way:

1. DHS is set to encounter more irregular migration at the U.S. border this year than it has for at least twenty years.
2. DHS is receiving so many unaccompanied minors that it cannot always transfer them to the care of the Department of Health and Human Services.
3. DHS continues to use its Title 42 pandemic authority to expel single adult asylum seekers. (Title 42 empowers the President to take actions to protect public health, and, under color of Title 42, U.S. Customs and Border Protection (CBP) is expelling immigrants on the basis of the COVID-19 pandemic.)
4. The Trump Administration released one — no, several — live ferrets into the immigration machinery, and it’s taking time to sort that out.
5. Root causes of migration in Central America need to be addressed.

That’s all well and good, but the effectiveness of these arguments will diminish over time. The use of Title 42, in particular, is going to become increasingly untenable as the coronavirus pandemic recedes; and if the Administration does not stop using Title 42, we predict with confidence that a sympathetic federal judge will, at some point, force it to do so.

If Mayorkas’ approach fails, and unaccompanied minors continue to strain federal resources at the border, what will the Biden Administration do? Our prediction is that the Administration will do what past Presidential administrations have done, right and left: shoot the messenger. James predicts by September.

We don’t envy Mayorkas’ problems, and we wish him every success in administering U.S. law fairly and humanely. But he has a tough job. There’s only one tougher job at DHS right now: ICE Director. No one, it seems, wants the position.

As always, we would love to hear your thoughts and we will do our best to respond.

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

“Tax Law and the Undocumented” was one of the less-popular choices on our glorious Readerpalooza poll, but it’s tax time, and we want to make sure this information is out there, because someone really needs it. (Our motto here at Statutes of Liberty is “Decreasing Needless Suffering: It’s Taking Longer Than We Thought.”)

So, it’s time for a Q&A between our imaginary interviewer, Cosell, and our non-imaginary founding partner.

Cosell: Let’s cut to the chase. Do illegal immigrants — undocumented people, what-have-you — do they have to pay taxes?

Montana: Yes. Paying taxes on U.S. income is required under federal law whether you are here legally or illegally.

Cosell: But they don’t have Social Security numbers, do they?

Montana: Some of them do. Immigration is complicated. (Until 1974, you didn’t have to submit any evidence at all to get an SSN — you just asked for one. See here.)

Cosell: OK, wise guy, but how do you pay your taxes without a Social Security number?

Montana: The IRS will issue you something called an Individual Taxpayer ID Number (ITIN), which serves as a substitute for an SSN. An Individual Taxpayer ID Number allows the IRS to keep track of you from year to year.

Cosell: But come on. It would be stupid to tell the federal government your address and name if you’re living illegally in this country. Why on earth would anyone do that?

Montana: Many of our clients genuinely want to pay taxes. They see it as part of being responsible residents in this country. Also — again, immigration is complicated! — there are lots of families with mixed status. For example, Dad has TPS, Mom is undocumented, one kid is undocumented and the two younger kids were born here. In that family, there are three legitimate Social Security numbers and two ITINs. Dad’s employer will withhold his income, and he’ll want to file a tax return.

Cosell: But won’t the IRS report you to ICE?

Montana: There are plenty of people who fear that, but federal law generally forbids the disclosure of tax information for immigration purposes. This is a contested area of law, but our view is that people should pay their taxes. First of all, it’s the right thing to do. Second, paying your taxes is useful evidence of physical presence and compliance with U.S. law, which your immigration lawyer will love to see.

Cosell: So, let’s say I’m undocumented. Should I have my cousin’s friend prepare my taxes? I hear he’s super good at it — always gets the best refund!

Montana: God, we get this all the time. NO NO NO NO.

Cosell: Why not?

Montana: Because your cousin’s friend is an idiot. He will, without fail, (1) claim incorrect numbers of dependents, (2) write down that you are “head of household” when you aren’t, (3) put down his address rather than yours “just to keep things simple” and generally make a dog’s breakfast of the whole thing.

Please go to a licensed tax preparer or a CPA. Free tax preparation is available right here in Arlington from Enterprise Development Group (EDG). If you live in D.C. or suburban Maryland, check out the Catholic Charities Financial Stability Network. If neither of those works for you, go to a physical H&R Block office. H&R Block takes more of your refund than a free preparer would, but they’re still better than the alternative.

Cosell: What’s your favorite unlicensed tax preparer story?

Montana: There are so many. My personal fave is Kenneth Mwase, whose unlicensed tax business not only fleeced clients out of their refunds but also (allegedly) drove them to ATMs to demand more money. After his conviction, he fled to South Africa using a bogus Zimbabwean passport. It took an international manhunt to find him. Why would you pay for that kind of service when you can get actual, sane tax advice for free from a kindly retired accountant?

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

We’ve inflicted 40 columns on you — this, speaking generously, is our 41st.

We’ve riffed on “Cool Hand Luke” (Immigration Court is Dystopian), “Batman and Robin” (Trump Admin Regulations Frozen) and “Animal House” (Love, Marriage and Immigration). Our august founder woke up one day under the mistaken impression that he was Misty of Chincoteague (Local Lawyer Hangs Out with Wild Ponies).

We like writing these columns, but we want to take a breather for a moment to ask what you, our favorite readers, what you want to read. So, we created a poll below.

Pick your favorite option or write your own ideas in the comments below. As always, we will try to reply to them all.

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Reality TV, just like 2020, is a train wreck — but we can’t stop watching. The TLC blockbuster show “90 Day Fiancé” is no different. Even Laura and Doran are highly invested in the cast of characters. (James is too busy watching “Wolf Hall” reruns. — Ed.) But how much of this reality TV show is actually real?

First, a crash course on fiancé(e) visas. One of the most important aspects of the fiancé(e) visa is that only U.S. citizens can file a petition for a fiancé(e); green card holders can’t. It is also true, as the spinoff “90 Day Fiancé: Before the 90 Days” shows, that the couple must meet in person within the two years prior to filing the paperwork to start the fiancé(e) visa process, with limited exceptions.

After meeting, the U.S. citizen files a petition (Form I-129F) to prove the basic facts to the US government: I’m a citizen, I’m free to marry, and I’m in a genuine relationship with my fiancé(e). The petitioner and prospective immigrant have to sign a statement of intent to marry — we enjoy reading those; they’re as cute as you might imagine.

If the petition is approved, the immigrant goes for an interview at his or her local U.S. embassy. Hopefully, the immigrant gets the visa and can come to the United States. From the day the immigrant enters, the 90-day clock starts to run. But what actually has to happen in those 90 days?

*Cue dramatic music.* *Cue reaction shots.*

It’s very simple, which is why it works so well on TV: They have to get married. But they can’t marry just anyone — they have to marry each other. (Tricking the U.S. citizen into filing the fiancé petition just so you can marry someone else and get a green card through the latter relationship simply doesn’t work. The law expressly forbids it.)

Do they have to meet an immigration lawyer within the first 90 days? No. (Hence the appalling lack of immigration lawyer cameos.) Do they have to file a green card application within the first 90 days? No. It’s very simple, which is why it bears repeating: They have to get married.

So, what could reasonably happen with some of our favorite (or most hated) couples? Let’s take Larissa and Colt, aka Coltee, for example. As we saw, Larissa, who is from Brazil, immediately clashed with Colt’s mother upon arriving in the United States. The first 90 days were tumultuous. There were demands for a large monthly allowance and Chanel purses, accusations of Colt being a mama’s boy, and even Larissa’s arrest on domestic violence charges. They still managed to marry within the 90-day period, but split soon after. What now?

Surprisingly, Larissa is still in the United States as far as we know. Larissa has maintained that Colt was violent toward her, and he told the police a different story, so she may be attempting to file as an abused spouse of a U.S. citizen. She may also be continuing the green card process based on her marriage by arguing that, despite their breakup, the marriage was valid at inception and therefore valid for green card purposes. Neither of these options seem very promising.

Then there’s Nicole and Azan. Nicole, a young single mom from Florida, met Azan, from Morocco online.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The best things in life are free. The best things in law are expensive, with one exception: Freedom of Information Act requests, which are free, free, free.

The Freedom of Information Act is, as readers surely know, a useful tool for journalists and ordinary citizens to obtain information about what our government does. But it is extremely useful and vastly underused in the immigration context. Submitting FOIA requests for immigration records is a simple process that helps immigrants and practitioners alike by giving us a look at someone’s entire immigration history.

FOIA requests are filed with USCIS’s National Records Center online or by mail on a simple form called the G-639. The form can be used to request specific documents, such as an old application or certificate of naturalization, or an individual’s entire immigration file. There is no charge unless the government sends a bill; in our experience, the government never, ever does.

The results of FOIA requests have given us some of our most exciting cases. We’ve found:

• A client who thought they were waiting for an asylum decision had been granted asylum years ago. The approval notice had been lost in the mail.
• A client who thought he was simply a green card holder had actually been a U.S. citizen for many years.
• A client who did not know about youthful interactions with immigration officials discovered, with our help, that he had an old deportation order. (There are many ways to find out that unpleasant fact, but believe us: filing an FOIA request is the least painful by far.)

Any time you have questions about what happened in an immigration case or if you’ve lost your documents, file an FOIA!

FOIAs are also helpful for American citizens researching family history. You can submit a G-639 seeking the records of a deceased family member using an obituary or death certificate. For example, Doran wanted to learn more about her grandmother Lillian’s immigration history and submitted an FOIA request to USCIS with a copy of her grandmother’s obituary.

In the FOIA results, Doran received a copy of Lillian’s Argentine birth certificate, a copy of Lillian’s visa application and Lillian’s application for U.S. citizenship. Doran also learned that her grandmother did not legally change her name from Luisa to Lillian until Lillian became a U.S. citizen in 1956. All of this information was sitting in a government office waiting to be discovered and would have otherwise been unknown.

Analyzing FOIA results are some of our favorite things to do at our office. We’re happy to help our clients request their file and make recommendations about how to move their cases forward. We do an FOIA request at no extra charge whenever we think it is necessary as part of a consultation — information wants to be free, and we want to help you liberate it.

We’ve participated in the immigration FOIA review process at an even nerdier level — helping sue USCIS to try to compel the production of allegedly exempt material — but that’s a story for another day. For now, our message is: File an FOIA request! You’ll learn a lot, and your future lawyer will be deeply grateful.

As always, we welcome any thoughts or comments and will do our best to respond.

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

In the fair city of Washington D.C., we have a semi-quadrennial tradition. After we vote the bums out, the bums spend their last weeks in office working to enshrine their political program via last-minute regulatory and personnel actions. It’s not the most picturesque tradition, but it’s ours.

The Trump administration did exactly this with respect to immigration law and policy. It promulgated all sorts of regulations concerning asylum, student visas and the H-1B program: Asylum applicants would have to show “extreme and severe” harm, students would have to renew their visas frequently, and H-1B petitions would be cherry-picked for the highest-paying jobs.

The Biden administration — like Mr. Freeze, the most delightfully awful Batman villain of all time — has put all of these changes on ice with a memorandum entitled The Regulatory Freeze Memorandum. In short, it says that all of these midnight rules are being sent to the cooler.

Here is the actual text. In paraphrase, it says:

• No new regulations may be sent for publication in the Federal Register until a Biden-appointed agency head says so.
• Regulations sent to the Federal Register but not yet published in the Federal Register shall not be published until a Biden-appointed agency head says so.
• Regulations sent to the Federal Register and published but with an effective date in the future will not become effective for at least 60 dates from Jan. 28, 2021.

What this means, in practice, is that recently proposed changes to the H-1B visa system, the asylum system and the immigration courts will be frozen until the Biden administration decides (probably) to withdraw them. All regulations, which were effective before Inauguration Day, will remain in force. It takes as much administrative paper-shuffling to repeal a regulation as it does to promulgate one, so the Trump administration’s approach to immigration questions will be with us for some time.

The Biden administration has announced, with great fanfare, that the Department of Justice will be ending contracts with private prisons. That’s all to the good, but we want our readers to notice the dog that isn’t barking: the Department of Homeland Security, which holds the lion’s share of private prison contracts, will be renewing its contracts with the very same contractors.

We enjoy answering questions about immigration from commenters. We also enjoy the oeuvre of Arnold Schwarzenegger. Ask us anything, and we’ll do our best to answer.