Thursday, August 9, 2012

Caveat Advena

Three days ago I wrote about two groups of extremist attorneys. One group, what I termed the "extreme pessimists", was advising that individuals avoid applying for Deferred Action at all costs. The other group, who I called the “extreme optimists", advocated mass applications without regard for qualifications or consequences. In that post I explained how I felt it was unwise to follow the advice of either group.

Today, I wish to discuss another group. Their position is far more dangerous than the extreme pessimists or the extreme optimists. Let us call them the "caveat advenas." You have probably heard of the phrase, caveat emptor. It is Latin for "let the buyer beware." The phrase is a warning to buyers to be cautious about the quality of merchandise that they are buying. In U.S. property law, caveat emptor tends to apply to the sale of a residential home where the homeowner is selling to another buyer. The homeowner-seller is generally not liable to the new buyer for defects on the property so long as the seller does not actively conceal latent defects or make material misrepresentations about the property. In other words, the buyer is warned that he has virtually no protection against a bad purchase.

I present to you another phrase, caveat advena- "Let the immigrant beware". The group that I mention here is advising against anyone getting any sort of advisement as to their rights to apply for Deferred Action. What would they have the individual do who wonders if he qualifies for Deferred Action? Apply blindly, as the extreme optimists would advise? Avoid Deferred Action as the extreme pessimists would suggest? The decision is irrelevant to the caveat advenas, so long as the decision is made without consulting about one's rights.

The idea sounds as absurd to me as it probably does to you. Is obtaining information bad? Should consulting about one's rights be discouraged? The idea goes contrary to everything that this country stands for. The preamble of the Declaration of Independence includes the word "rights" 5 times in a span of just 202 words. The U.S. Constitution was first amended in 1791 to include a Bill of Rights. Anyone who is arrested is informed of his rights- he has a right against self-incrimination and he has a right to counsel. The right to counsel in criminal cases is so paramount that if the individual is unable to afford an attorney, he has a right to have one appointed for him at no cost to him. As you can see, the ability to know one's rights is a centerpiece of our republic.

The caveat advenas do not want immigrants to know their rights.  They discourage potential Deferred Action applicants from becoming informed about their particular situation.  At this point, you are probably thinking that I am describing some group of individuals who stand on the street corner proclaiming insanely that immigrants are the cause of problems ranging from unemployment to the summers becoming increasingly hotter.  It would be easier if that was who I was speaking of, because then we could spot the mad man in the crowd.  He would be the one with the dirty clothes, unkempt hair and long beard waving his arms frantically in the air as he proclaims that the world is going to end. 

The fact is that many of the caveat advenas are indistinguishable from you and I.  Some were immigrants and others children of immigrants. Some of them are even members of Congress.  Most of them claim to be in favor of immigrant rights.  Yet, none of them want immigrants to know their rights. Let the immigrant beware.

What would cause them to claim to be on the side of immigrants, while advocating that immigrants wallow in the waters of ignorance and risk getting caught in the cataracts of failure?

What could be their rationale for causing harm the very people they say they want to help?  I do not know.  The answer must dwell in the deepest reaches of their minds, where malevolent thoughts find fertile ground.

The U.S. Citizenship and Immigration Services (USCIS), fortunately does not share the sinistrous view of the caveat advenas.  On its website, USCIS states, “Not sure what immigration benefit to apply for or which USCIS forms you need to file? Then you may need immigration legal advice.” 

Finally, I write these words after meeting a lady who came into our office in tears.  Her immigrant husband is detained and runs the risk of being removed from the country, for filing for the wrong benefit at the wrong time.   They did not seek legal advice before applying.   They went into the process blindly as the caveat advenas would have them do.  Now their dreams of being together forever have turned into a nightmare of separation and incarceration.

The immigrant should not have to beware. Unlike in the case of caveat emptor, the immigrant does have protection against a bad process. He, along with anyone else on this land, has rights and one of those rights is the right to seek counsel.

The above information is provided for information purposes.  It should be construed as legal advice or the formation of an attorney/client relationship.

Monday, August 6, 2012

Deferred Action: Two Extremes and the Real Way

Today’s post involves Deferred Action.   On June 15, 2012 the U.S. Department of Homeland Security (not the White House or President Obama, as has been erroneously reported) announced that undocumented immigrants (or illegal aliens), between 15-30 years could apply for a temporary legal status valid for two years if they could show that they entered the U.S. before turning 16 years of age, have resided in the U.S. for at least the last five years since June 15, 2012, pass a background check, and have a high school diploma/GED/honorable discharge from the U.S. military.
This post is not about the requirements for Deferred Action.  You can find out about the requirements on our facebook page,  Rather, I want to discuss the reaction that I have heard from some immigration attorneys, who are in what I would consider two extremes. 

The first extreme is a group of attorneys that are advising that individuals not apply for Deferred Action.  Their rationale can be summed up as such:  A person is in this country illegally and therefore is removable (or deportable).  However, this person is cloaked by the millions of illegal aliens in the country.  The U.S. government will never find him, unless he does something that causes himself to be identified, such as get arrested or file for an immigration benefit.   This group of attorneys argues that by applying for Deferred Action, the individual is identifying himself to the government.  Although, Deferred Action protects the individual from removal, it only provides protection while the person is in status.  Since Deferred Action is only valid for two years and there is no guarantee that the government will extend the status for a longer period of time, then these attorneys allege that after the two years have expired the individual runs the high risk of being removed from the country.
I do not agree with this argument.
There is another group that is in the other extreme.  They advocate that anyone and everyone who remotely appears that they could qualify should apply for Deferred Action.   Their rationale is that the benefits of Deferred Action are so great that anyone who is an undocumented immigrant who does not apply is a fool. 
I do not agree with this argument either.

The first group is the extreme pessimists, while the second is the extreme optimists.  The proper place to be is with a third group, the realists.  You must be a realist to get ahead in life.   Realize the obstacles and dangers, yet seize opportunities when they present themselves.  That is what makes life worth living!

If the guidance of the first group were to be followed then nothing would get done.   Fear of what could happen would freeze the individual in a permanent state of inertia.  The truth is that if a person is given status under Deferred Action, that status is valid for two years. During those two years, he will have many of the same rights that a Legal Permanent Resident has.  He can work with a work permit, he can travel with a travel permit, and while remaining in valid status, he cannot be removed from the country.  After the two years have elapse, he might have a right to renew his status for an additional two years.  There are also other possibilities.  Some of the Deferred Action applicants can become Permanent Residents in the future under family petitions filed over a decade ago under INA 245(i). Others can obtain their residency if their relevant waiver is granted.  There is also the ever-present possibility of immigration reform.  The DREAM Act proposal has existed for nearly a decade in one form or another.  The STARS Act was presented in Congress this year and there have been rumors of the possibility that a so-called "DREAM Act 2.0" bill could be introduced next year, which might have a better chance of enactment than the DREAM Act.  Hence, there is a lot of hope for Deferred Action applicants.  I remind the reader, it is okay to hope for the "what if", so long as you recognize the possibility of "what if not".   That is what it is to be a realist.

The extreme optimists are also wrong.  They ask that you conveniently ignore the "what if not".   Perhaps that is acceptable to the irresponsible lawyer who only charges the client for representation regardless of whether such representation is to the benefit of the client.  But, it is not acceptable for the individual who has worked hard most of his life for the opportunity to be on the right side of the law.   And it definitely does not work for the attorney who takes pride in the integrity, competence and honesty of his practice.    Many will qualify for Deferred Action.  However, not everyone who hopes to obtain Deferred Action, will, in fact, be granted.   That is the realist perspective.   The extreme optimists, on the other hand, will take advantage of the hopes of many, to enrich themselves selfishly and immorally.  Do not fall into their trap.     

So there you have it, two schools of thought that can either get you into trouble or make you miss all of the fun.   Stay away from them.  You're better off simply following the quote from Theodore Roosevelt-- "Keep your eyes on the stars but keep your feet on the ground."

None of the above information should be construed as legal advice or the formation of an attorney/client relationship.