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Archive for August, 2010

Critics assail the plan as a bid to create a kind of backdoor ‘amnesty’

By SUSAN CARROLL
Copyright 2010, HOUSTON CHRONICLE

Aug. 24, 2010, 9:00PM

The Department of Homeland Security is systematically reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records, according to several sources familiar with the efforts.

Culling the immigration court system dockets of noncriminals started in earnest in Houston about a month ago and has stunned local immigration attorneys, who have reported coming to court anticipating clients’ deportations only to learn that the government was dismissing their cases.

Richard Rocha, an Immigration and Customs Enforcement spokesman, said Tuesday that the review is part of the agency’s broader, nationwide strategy to prioritize the deportations of illegal immigrants who pose a threat to national security and public safety. Rocha declined to provide further details.

Critics assailed the plan as another sign that the Obama administration is trying to create a kind of backdoor “amnesty” program.

Raed Gonzalez, an immigration attorney who was briefed on the effort by Homeland Security’s deputy chief counsel in Houston, said DHS confirmed that it’s reviewing cases nationwide, though not yet to the pace of the local office. He said the others are expected to follow suit soon.

Gonzalez, the liaison between the Executive Office for Immigration Review, which administers the immigration court system, and the American Immigration Lawyers Association, said DHS now has five attorneys assigned full time to reviewing all active cases in Houston’s immigration court.

Gonzalez said DHS attorneys are conducting the reviews on a case-by-case basis. However, he said they are following general guidelines that allow for the dismissal of cases for defendants who have been in the country for two or more years and have no felony convictions.

In some instances, defendants can have one misdemeanor conviction, but it cannot involve a DWI, family violence or sexual crime, Gonzalez said.

Massive backlog of cases

Opponents of illegal immigration were critical of the dismissals.

“They’ve made clear that they have no interest in enforcing immigration laws against people who are not convicted criminals,” said Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for strict controls.

“This situation is just another side effect of President Obama’s failure to deliver on his campaign promise to make immigration reform a priority in his first year,” said U.S. Sen. John Cornyn, R-Texas. “Until he does, state and local authorities are left with no choice but to pick up the slack for prosecuting and detaining criminal aliens.”

Gonzalez called the dismissals a necessary step in unclogging a massive backlog in the immigration court system. In June, there were more than 248,000 cases pending in immigration courts across the country, including about 23,000 in Texas, according to data compiled by researchers at Syracuse University.

‘Absolutely fantastic’

Gonzalez said he went into immigration court downtown on Monday and was given a court date in October 2011 for one client. But, he said, the government’s attorney requested the dismissal of that case and those of two more of his clients, and the cases were dispatched by the judge.

The court “was terminating all of the cases that came up,” Gonzalez said. “It was absolutely fantastic.”

“We’re all calling each other saying, ‘Can you believe this?’ ” said John Nechman, another Houston immigration attorney, who had two cases dismissed.

Attorney Elizabeth Mendoza Macias, who has practiced in Houston for 17 years, said she had cases for several clients dismissed during the past month and eventually called DHS to find out what was going on. She said she was told by a DHS trial attorney that 2,500 cases were under review in Houston.

“I had five (dismissed) in one week, and two more that I just received,” Mendoza said. “And I am expecting many more, many more, in the next month.”

Her clients, all previously charged with being in the country illegally, included:

An El Salvadoran man married to a U.S. citizen who has two U.S.-born children. The client had a pending asylum case in the court system, but the case was not particularly strong. Now that his case is terminated, he will be eligible to obtain permanent residency through his wife, Mendoza said.

A woman from Cameroon, who was in removal proceedings after being caught by the U.S. Border Patrol, had her case terminated by the government. She meets the criteria of a trafficking victim, Mendoza said, and can now apply for a visa.

Memo outlines priorities

Immigrants who have had their cases terminated are frequently left in limbo, immigration attorneys said, and are not granted any form of legal status.

“It’s very, very key to understand that these aliens are not being granted anything in court. They are still here illegally. They don’t have work permits. They don’t have Social Security numbers,” Mendoza said. “ICE is just saying, ‘At this particular moment, we are not going to proceed with trying to remove you from the United States.’ ”

In a June 30 memo, ICE Assistant Secretary John Morton outlined the agency’s priorities, saying it had the capacity to remove about 400,000 illegal immigrants annually — about 4 percent of the estimated illegal immigrant population in the country. The memo outlines priorities for the detention and removal system, putting criminals and threats to national security at the top of the list.

Up to 17,000 cases

On Tuesday, ICE officials provided a copy of a new policy memo from Morton dated Aug. 20 that instructs government attorneys to review the court cases of people with pending applications to adjust status based on their relation to a U.S. citizen. Morton estimates in the memo that the effort could affect up to 17,000 cases.

Tre Rebsock, the ICE union representative in Houston, said even if the efforts involve only a fraction of the pending immigration cases, “that’s going to make our officers feel even more powerless to enforce the laws.”

susan.carroll@chron.com

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Visa Bulletin for September 2010

Number 24
Volume IX
Washington, D.C.

A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during September. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible under the numerical limitations, for the demand received by August 9th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.

Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been announced in this bulletin.

2. The fiscal year 2010 limit for family-sponsored preference immigrants determined in accordance with Section 201 of the Immigration and Nationality  Act (INA) is 226,000.  The fiscal year 2010 limit for employment-based preference immigrants calculated under INA 201 is 150,657.  Section 202 prescribes that  the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 26,366 for  FY-2010.  The dependent area limit is set at 2%, or 7,533.

3.  Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A.  Spouses and Children:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B.  Unmarried Sons and Daughters (21 years of age or older):  23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens:  65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Fourth: Certain Special Immigrants:  7.1% of the worldwide level.

Fifth: Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that  spouses and children of preference immigrants are entitled to the same  status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e)  apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, DOMINICAN REPUBLIC, INDIA, MEXICO, and PHILIPPINES.

5.  On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family All Chargeability Areas Except Those Listed CHINA-mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st 01JAN06 01JAN06 01JAN06 01JAN06 01DEC92 01JAN97
2A 01JAN10 01JAN10 01JAN09 01JAN10 01JAN09 01JAN10
2B 01JAN05 01JAN05 01JAN05 01JAN05 15JUN92 01AUG02
3rd 01MAR02 01MAR02 01MAR02 01MAR02 01MAR92 01JAN95
4th 15OCT01 15OCT01 15OCT01 15OCT01 01JAN94 01JAN91

*NOTE:  For September, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JAN09.  2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT the DOMINICAN REPUBLIC and MEXICO with priority dates beginning 01JAN09 and earlier than 01JAN10.  (All 2A numbers provided for the DOMINICAN REPUBLIC AND MEXICO are exempt from the per-country limit; there are no 2A numbers for the DOMINICAN REPUBLIC AND MEXICO subject to per-country limit.)

Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 08MAY06 C 08MAY06 C C
3rd 15DEC04 22OCT03 15DEC04 01JAN02 U 15DEC04
Other Workers 22MAR03 22MAR03 22MAR03 01JAN02 U 22MAR03
4th C C C C C C
Certain Religious Workers C C C C C C
5th C C C C C C
Targeted Employment Areas/ Regional Centers C C C C C C
5th Pilot Programs C C C C C C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States.  The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This reduction has resulted in the DV-2010 annual limit being reduced to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For September, immigrant numbers in the DV category are available to qualified
DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA CURRENT Except:
Ethiopia: 26,350
ASIA CURRENT
EUROPE CURRENT
NORTH AMERICA (BAHAMAS) CURRENT
OCEANIA CURRENT
SOUTH AMERICA, and the CARIBBEAN CURRENT

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2010 program ends as of September 30, 2010.  DV visas may not be issued to DV-2010 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2010 principals are only entitled to derivative DV status until September 30, 2010.  DV visa availability through the very end of FY-2010 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN OCTOBER

For October, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 9,000 Except:
Egypt 5,550
Ethiopia 7,450
Nigeria 7,450
ASIA 9,000
EUROPE 9,600
NORTH AMERICA (BAHAMAS) 1
OCEANIA 350
SOUTH AMERICA, and the CARIBBEAN 450

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More than 5 million children currently live in the United States with at least one undocumented parent. Close to 75 percent of those children are U.S. citizens. When one or both parents are deported, children often have to choose between living with their immediate family — in another country — or living without them in the United States.

By Erynn Elizabeth Reitmayer

Homeless & Hungry

Parents Deported

Placed in Foster Care

Getting an Education

When the police arrived at his father’s apartment, 1-year-old Christopher lay on the floor holding his 3-week-old brother. The boys were alone and covered in blood.

Christopher has vague memories of the event but says his mother and other relatives later described it to him in detail. He relies on memories and family stories as he recounts his early childhood.

Christopher was born in 1992 to a family of mixed immigration status. His father, a U.S. citizen, married his Mexican mother the year before his birth. Christopher says the relationship turned rocky because his father had a drug problem.

After the birth of her second son, Christopher’s mother decided to leave her troubled husband for the benefit of her children; but when the husband found out what she planned to do, he threatened to call the police. Christopher says his father threatened to tell them his wife was not really the mother of their sons and have her deported so she could never take the children away.

“My mom was not afraid of him,” Christopher said. “She said, ‘Call them, and you’ll see who your wife is.’”

His father wasn’t bluffing.

He called the police. His Spanish-speaking wife had little recourse, unable to understand the scene that was unfolding. She was deported to Sinaloa, Mexico shortly thereafter, her two U.S. citizen sons left in the care of their citizen father.

“She was going crazy, in Mexico without us,” Christopher said. “I was only 1 year and 7 months…my brother was just 3 weeks old.”

Christopher said when his mother’s best friend heard what had happened she went over to the apartment to talk to Christopher’s father, but instead she found the two boys alone and Christopher injured. It appeared that Christoper had climbed into his brother’s crib to comfort the crying boy. Lifting his brother out of the crib, he slipped, cutting his arm on the crib and falling to the floor.

“When they saw us like that, all covered in blood, everyone freaked out, wondering what was going on,” Christopher said. “When they found my father, he was passed out on the street, on drugs and drunk. So they gave my mother a permit to come and get us, to take us back to Mexico.”

[Repeated efforts to speak with Christopher’s father for this story were unsuccessful.]

Christopher’s story is not unique. According to a new study conducted by the Urban Institute, a research organization that focuses on social and economic issues, there are 5.5 million children that are currently living in the United States with at least one undocumented parent. Close to 75 percent of the children are U.S. citizens. When one or both parents are deported the result can be years of struggle for the citizen children. They often have to choose between living with their immediate family — in another country — or living without them in the United States. And, now, some conservatives are pushing legislation seeking to strip citizenship from children with two undocumented parents, meaning they would have no choice of which country to live in. The children would be deported along with their parents.

In the years following 1996’s reforms to the Immigration and Nationality Act, efforts to detain and deport undocumented immigrants living illegally in the country have ramped up significantly. Workplace and residential raids have become a relatively common occurrence in some communities. This type of enforcement often leaves young citizens behind with little or no family support.


Margaret Acuitlapa and her family.

Margaret Acuitlapa faced a tough decision after her husband, an illegal immigrant, was deported. A U.S. citizen and mother of three, Acuitlapa had to decide whether to raise the children alone or uproot them and move to Mexico so they could be with their father. With her children’s education in mind, Acuitlapa stayed in the United States for a month after her husband’s deportation. However, she says the resulting emotional strain on the family proved overwhelming, and Acuitlapa decided to leave her home in Georgia to reunite her family in Mexico.

“The first year we were here, we were treated as strangers,” Acuitlapa said of her family’s arrival in Malinalco, a small town in southwestern Mexico. “Things were unpleasant for all of us.”

Acuitlapa’s family will have been living in the town three years as of this October — years she describes as very challenging.

“We have not been back home to visit once — and as you may have guessed, it is because of financial difficulties,” Acuitlapa said.

Acuitlapa says that when she lived in the United States, her parents depended on her for rides to their many doctor’s appointments. Her husband, Jose, would often help her father with strenuous jobs around the house, as he could no longer take care of everything on his own.

“They aren’t in good health. So they can’t even come visit us.” Acuitlapa said. “We don’t have the resources. I do feel trapped sometimes.”

Although she moved to keep her family together, the life they have faced in Mexico has put different strains on her marriage, and her children.

“Our kids didn’t speak any Spanish when we moved here. Even now, my 10-year-old daughter is reading at a second-grade level,” she said of the struggles her children have faced in school. “My 15-year-old son is still having a hard time with everything.”

Though she tries to keep in touch with her family back home, Acuitlapa says she has a hard time with being unable to see them.

“Tension has grown between my husband and I, and he blames himself that I’m depressed about missing my family,” she said. “But I know things will work out. Because love does work.”

The Push to Undo Citizenship

Because Margaret and her children were citizens, they had a choice of which country to live in. If some politicians and activists in the United States get their way, citizen children with two undocumented parents would have no choice but to return their parent’s country. They would be stripped of their citizenship and deported. Supporters of the concept often call citizen children of illegal immigrants “anchor babies,” meaning they are an anchor that keeps illegal immigrants in the United States.

Former U.S. Rep. Nathan Deal, R-Ga., a leader among those targeting so-called “anchor babies,” introduced Birthright Citizenship Act in 2009. The bill has 91 co-sponsors. (Until March of this year, Deal represented Georgia’s 9th District. He has since resigned to make a run for governor of Georgia.)

The proposed legislation would amend the U.S. Immigration and Nationality Act so that children of illegal immigrants would not be considered citizens under the 14th Amendment to the Constitution, which grants citizenship for those born or naturalized in the United States and who are “subject to the jurisdiction thereof.” The bill states that illegal immigrants and their children are not subject to the jurisdiction of the United States for the purpose of citizenship. The bill was sent to various U.S. House committees for consideration in 2009 but went no further.

One of the bill’s well-known supporters is U.S. Rep. Brian Bilbray, a Republican who represents California’s 50th district, which covers part of the greater San Diego area.

“The 14th Amendment of the Constitution has a conditioning clause: ‘subject to the jurisdiction thereof,’” Bilbray said. “Undocumented immigrants, like tourists, are not subject to the jurisdiction of the United States; they aren’t subject to the draft, you can’t try them for treason.”

Bilbray and other supporters of the legislation argue that it is constitutional. Under the Birthright Citizenship Act, any child born within the U.S. who has at least one citizen parent, a parent who is a legal permanent resident or a parent serving in the military would still be granted citizenship.

Therefore, Bilbray contends, if a parent is subject in one of these ways to the jurisdiction of the government, then the child could rightfully be considered a citizen.

Bilbray says that citizenship is a right that must be earned.

“It isn’t the soil or the climate,” Bilbray said. “It’s the parent, through their obligation to the government, that earn their children citizenship.”

Kevin Johnson, the dean and professor of law at the University of California, Davis, disagrees. He says Bilbray and others are misinterpreting the “jurisdiction” clause in the 14th Amendment.

“That language was designed to deal with the children of foreign diplomats, who are immune from suit and the laws of the United States while in the United States,” he says. “If proponents of this idea were correct, that would mean undocumented immigrants are not subject to the civil and criminal laws of a state and could not be sentenced to prison for crimes.”

Lino Graglia, a law professor at the University of Texas, supports the idea of revoking the citizenship of children with illegal immigrant parents, arguing that automatic citizenship creates an incentive to break the law.

“It doesn’t really make sense,” Graglia says. “If you’re going to prohibit something, why create a powerful inducement to do it? We make it illegal to come into the country without permission, but if you do it anyway and have children your children are rewarded with citizenship. It’s contrary.”

Graglia says it does not matter that children who have spent their entire lives in the United States may suddenly find themselves deported to a completely unfamiliar environment, where they don’t speak the language or understand the culture.

“Their parents broke the law and came to the country illegally,” Graglia says. “Just as their parents are, they should be subject to deportation.”

Hiroshi Motomura, a professor at the UCLA School of Law has the opposite opinion.

“These children are innocent, even if conceding their parents culpability, so we shouldn’t penalize them,” Motomura says. “Regardless of how they got here, the law should recognize the ties developed and contributions made in this country- especially economically — by unauthorized migrants and their families.”

Other lawmakers are urging reform that would help protect citizen children of undocumented immigrants. U.S. Rep. Jose E. Serrano, D-N.Y., introduced the Child Citizen Protection Act in 2006; the act would amend the immigration reforms of 1996 such that judges would have discretion to consider the best interests of children in deportation hearings. Deportation would not be a forgone conclusion.

Born in the Air?

Kendrick Nunez, 18, is one of those citizen children who would be affected if the “anchor baby” bill became law. He and his citizen sister currently live in Arkansas without their parents, who were deported to Mexico. He finds the logic of the movement confusing.

“That seems unreasonable. What, you’re just born in the air?” Nunez says. “I recognize there is a problem, but there has to be a better solution.”

Nunez and his younger sister initially followed their parents and other siblings to Mexico but returned to the United States so they could continue studying within the American education system.

“I didn’t go to school when I was in Mexico. I spent my time working — in a car wash, a water park, a field,” Nunez said. “I was illegal there. All my best friends in Arkansas were graduating. I felt like I was missing out on something.”

Returning Home

Hope for an education brought Christopher back into the United States nearly 13 years after his departure. As a teenager growing up in Mexico, Christopher would often daydream about the future he could have in America and the possibilities that might await him if he returned.

“We were home-schooled through elementary, and my mother was very protective,” Christopher recalls of the years he spent in Sinaloa with his mother. “I always wanted to be doing what the other kids were doing.”

When he finished elementary school, Christopher begged his mother to place him in a public school so he could experience more than the small world he knew living in their small home. She enrolled him in, and he started in the fall.

“I was shocked at seeing so many kids!” Christopher said. “They all called me a nerd because I was studious, and I was better educated from being home-schooled.”

Christopher said there were 56 students to a room — a hard adjustment for someone who had constant attention while being home-schooled.

It wasn’t long before his dreams once again outgrew his circumstances.

“I started thinking, ‘What am I going to be, what kind of man am I going to become?’” Christopher said. “At the same time, I was realizing how exciting I found America to be.”

Part of Christopher’s extended family resides in Texas, and he describes visiting as a young teenager and being in awe of his home country.

“Seeing the United States was like a dream,” he said. “Everything was so perfect. I was amazed. I told my mother, one day I wanted to come to the United States and study English so I can live my life here.”

Christopher says his mother agreed that he should return to the United States and take advantage of the future available to him as a citizen, but she hadn’t expected that he would make the decision to go by himself at the age of fourteen.

“A dream was placed in my mind,” Christopher said. “I knew that the goal would be difficult for me, but I was motivated to make this change.”

Christopher returned to America to as a bright-eyed teenager, intent on making the most of the opportunities he would not have in Mexico. He didn’t realize that what lay ahead were years of struggle.

Parents Deported, Children in Foster Care

Because Christopher’s only legal parent, his citizen father, was unable to be his guardian, he accompanied his mother back to Mexico as a young child. When a citizen child is left in this situation — either because both parents are deported or a legal parent is unable to take custody — they often end up staying with relatives who have legal status, entering public foster care or wandering homeless. Complications surrounding a parent’s ability to come to the United States after they have been deported can make it difficult, or impossible, for some deported parents to regain their parental rights, meaning that their children can be put in foster care for long periods of time or put up for adoption.

Such was the case for Nathaly Perez’s mother, who was deported in June 2008, leaving her three teenage daughters behind.

Perez, now 18, was born in San Diego to a large family with varying immigration status. Her parents and four older siblings were all born in Mexico. Nathaly’s sister Eralia, now 19, was just over a year old when the Perez family moved the to the United States. Her two older brothers and eldest sister were nearly grown. Over the next two years, her mother had Nathaly and another daughter.

Although Perez’s father immigrated legally, his status was revoked when he and Perez’s mother were both jailed for a domestic disturbance. He was subsequently deported in 2006. Perez’s mother was given probation. Following her father’s deportation, Perez recalls her mother struggling to support the family alone, sometimes working two or more jobs to care for her three young daughters.

Eralia Perez points to her father’s sudden, complete absence as the catalyst for a pattern of unhealthy behavior that would continue for years to come.

“I was only 14 years old when he was deported. Everything changed,” Perez said. “I started making bad choices. I wouldn’t listen to my mom.”

Eventually, the Perez sisters would also have to deal with losing their mother. Two years after their father’s deportation their eldest sister filed a report alleging that the girls’ older brothers were abusive towards their youngest sister. As the boys both had prior records, they were not legally allowed to be living with their mother, because probationers can only live together if they have court permission.

“Before this happened, my mom had been doing really well. She was doing awesome,” Nathaly recalls. “I don’t know if anything was going on with my brothers. We didn’t know about it. ”

Perez’s mother and two older brothers were arrested and deported in the following months, and all three girls were placed in public foster care.

After losing so many close family members, Nathaly says she struggled to find stability.

“Little by little I felt like everybody was getting taken away from me. To me, in my head, I was just ready for my sister Eralia to be deported,” Nathaly said.

Eralia, also an undocumented immigrant, had been struggling for some time before her mother’s deportation, and it took her several years to get back on solid ground. During that time, she was separated from her younger sisters and sent to live in a different home in the small, rural town of Jackson, Calif.

“The part that killed me the most was that when I finally wanted to stop doing all that running around and come home and make up for that lost time with my mom, it was too late,” Eralia said.

In time, Eralia finally found a foster mother who helped her realize who she wanted to be and gave her the structure and stability she needed to get there. She recently graduated from high school and received her green card.

Nathaly also graduated this past June, and looks forward to attending college in the future.

“I don’t know for sure what I’m going to do yet,” she says. “I just know I’m going to do my best, and keep striving.”

The Perez sisters were able to find foster parents that not only made them feel loved but provided them with role models they could respect. That is not the case for many children who are placed in the system.

Hemal Sharifzada is a former foster youth who now works for California Youth Connection, an organization that advocates for foster care support and educates foster youth on how they can navigate the world of adulthood when they may not have family support.

Sharifzada says that one of the biggest hurdles many foster youth will face is trying to find a place where they feel loved and supported.

“You build a lot of barriers. Everyone is kind of a question mark,” he says, speaking from years of experience. “You’re always thinking, ‘Who are you, how long are you going to be around- are you going to leave, are you going to stay? Does it matter?’”

Sharifzada says that the trust issues and emotional struggles common among foster youth often carry into adulthood and can complicate future relationships.

There are no nationwide statistics on the number of citizen children placed in foster care after a parent’s deportation.

But according to numbers reported by the Department of Health and Human Services, if 10 percent of the approximately 5 million children of undocumented parents were placed in foster care, this would double the number of children in the system, which is already overburdened. In 2009 by the Child Welfare League of America reported the cost for public foster care exceeds $4 billion per year.

Financial estimates don’t take into account the human costs of placing a child in foster care. According to the report by the Child Welfare League of America, an estimated 85 percent of all youth in public foster care have an emotional disorder, a substance abuse problem or both. Statistics indicate that children who grow up in foster care will experience a wide variety of hardships at a much higher rate than the general population.

Homeless, Hungry and Wandering

Not all children of deported parents will end up in foster care, but even those who don’t often lack basic family support.

Stephen Coger, a social worker in Arkansas, has worked with many undocumented immigrants in his town of Fayetteville. Coger says that even the loss of one parent tends to have an extremely negative effect on the upbringing of a child.

“Food hardship is one of the most common occurrences for children in these situations,” Coger says. “Often these families need both incomes. When a parent is deported the household income decreases significantly.”


Christopher, 18, in downtown Phoenix’s Civic Park.

Homelessness can also become a consequence. When Christopher returned to America, he found friends and family members in Arizona willing to take him in — but only for a time.

In many ways, he lived like most American teenagers. He attended high school and played tennis on the school team. Having always been a creative child, he found the arts especially stimulating.

“It was really hard at first because I didn’t speak English. My mom thought that after a month I would give up,” he said, laughing. “She was amazed how well I did after only a semester. She said she was really proud of me.”

But Christopher struggled trying to find a place within families that weren’t his own. One night, after his presence caused a bitter argument among relatives who had taken him in, he ran away. After spending a terrifying night alone in a park, he was able to find a friend’s family willing to take him in.

The family lived close to some of Christopher’s other relatives. The mother of the family remembers her son’s friend as being isolated from family.

“I know he sometimes talked to his grandmother and aunt in California … and of course his mother. But his father didn’t seem to be in the picture,” she said. “He didn’t really have anyone to depend on.”

Unfortunately, things didn’t get easier from there; in just a few months, the economic downturn resulted in his friend’s father losing his job.

“It was some of the best times of my life, living with that family,” Christopher says. “When they told me they couldn’t afford to have me anymore, I told them it was OK. I told them that they had saved my life.”

At the age of 15, Christopher found himself cleaning his community church to earn room and board there. In time, he found another family willing to take him in.

“I was glad to have a place to live, but I was doing a lot of work around the house to earn my keep,” he said. “That was my junior year. It was hard for me to see all the other kids having fun, being kids.”

In spite of these struggles, Christopher says he never regretted his decision to return to the United States. Instead of seeing a country that has let him down, he sees the country of the American Dream — a dream that as a citizen he is entitled to.

The American Dream

The desire to help immigrants take part in the American Dream drove Jose “Joe” Kennard to take action. A successful real estate investor and land developer, Kennard founded the Organization to Help Citizen Children with hopes that he might find like-minded community members to spark a movement toward providing better options for citizen children.

Until two years ago, Kennard and his wife lived in Seattle — as did Ana Reyes, a woman Kennard had never met. Unlike Kennard, however, Reyes was living and working in the country illegally. In 2007, U.S. immigration officials came to arrest Reyes early on the morning of her birthday. It was also the day her 13-year-old daughter Julie Quiroz was to graduate from seventh grade. Instead, Quiroz spent the afternoon helping her grandmother empty her family’s Seattle home, preparing herself and her younger sister to move to Mexico.

“I just remember looking out the window and seeing my mom in handcuffs,” Quiroz says. “My little sister was crying. Then we had to empty out the house … It kind of felt like this was it.”

Shortly after, Quiroz was reunited with her mother, brother and stepfather — in Mexico. The whole family had been deported. She began attending school, but was soon frustrated by her inability to keep up.

“I couldn’t read or write Spanish! I felt out of place, like I didn’t belong,” she said. “I only went to school for two weeks … then I guess I just gave up. I couldn’t understand anything.”

After she dropped out of school, help came to Quiroz’s family in an unexpected way. Having read an article about her family’s plight in The Seattle Times one Sunday, Joe Kennard felt compelled to help Julie — and all citizen children placed in these situations.

“I read the follow-up article about what was happening with Julie since her family was deported. I found the article really heart wrenching,” Kennard remembers. “I couldn’t shake it. We went to church and continued our usual routine, but when we got home I told my wife about it. I told her I felt like maybe the Lord was calling me to help this family.”

Kennard says his wife was supportive of what he felt he had to do.

“She just says, ‘If that’s what you think he’s telling you, then that’s what you ought to do,’” Kennard said.

Kennard began communicating by phone with Ana Reyes, trying to think of a solution her daughter Julie and other kids in her situation.

“I did some research, and I thought that the best way to help would be to get churches involved,” Kennard says. “I thought if we could get a network of families started through churches on both sides of the border we could create a support system for the children to go back and forth.”

Kennard provided funding for Reyes to move from Mexico City to Juarez so that Julie could attend school across the border in El Paso. He arranged for a family to take Julie in during the school week, and she would return to her mother on weekends.

“The idea was to minimize the trauma on these children by finding legal alternatives,” Kennard says of his idea.

In time, the violence in Juarez became a concern for Reyes, and she worried for the safety of herself and her two young daughters. She decided to move back to Mexico City. Kennard, who was committed to helping Julie achieve her dreams, extended her the offer of taking up residence with himself and his family for the entire school year.

“I had to make the choice to go with my mom in Mexico or stay here with the Kennards,” Quiroz says. “It was a really hard choice, but I decided to stay.”

Kennard and his wife returned to his native Texas. He opened an authentic Mexican restaurant that serves his mother’s traditional dishes in the downtown square and continues to advocate for the rights of citizen children.

“The problem is that we are punishing the children, and they are innocents in this situation,” Kennard says. “The laws aren’t protecting them — and as citizens they deserve to have their rights taken into consideration.”

According to a 2009 study by Human Rights Watch, nearly every major human rights treaty recognizes the need for special protection of children. The United Nations Convention on the Rights of the Child, for example, explicitly states that every child has the right to know and be cared for by his or her parents.

Though Kennard is glad to be doing his part to find a solution, he says he has been disheartened that his organization hasn’t gotten much traction.

“What was really surprising to me was that we couldn’t really get churches to help,” Kennard says. “To me, at the time, fellow evangelicals weren’t acting very Christian. They were saying that these people were illegal, and obeying the law is a biblical mandate …. To me, the overriding biblical mandate is ‘Love your neighbor.’ I couldn’t believe fellow Christians were taking such a cavalier-or sometimes outright hostile- attitude toward these families.”

But luckily for Julie Quiroz, now 15, Joe Kennard stepped up to become the defender of her rights. Quiroz currently lives with Kennard and his family at their home in Waxahachie, Texas. She attends a local school, where she is excelling, but the opportunity comes with a downside. She only sees her family on Christmas and summer vacation, when she travels to Mexico for the school break.

“It’s hard, always having to leave them again,” Quiroz says. “It’s like I almost don’t want to get very attached to them, because I know I have to go — but of course it’s hard not to get attached.”

Quiroz knows she is lucky. Many children in her situation may see their families even less, if at all. Kendrick Nunez hasn’t seen his family in more than six months; the Perez sisters haven’t seen their mother since she was deported more than two years ago. In spite of the obstacles that have been placed in front of these children, each of them has expressed a desire to remain in the United States.

“I don’t know what I’d be doing if I stayed there [in Mexico],” Quiroz says. “Probably doing nothing with my life, making nothing of myself.”

For Christopher, the future is getting brighter — but his achievements have been hard won with years of difficulty and uncertainty. He was able to find a home at the Tumbleweeds Center for Youth Development in Phoenix and was accepted to Arizona State University for the coming fall. He puts his creativity to good use, participating in Phoenix’s popular art walk on the first Friday of every month.

“I am glad that I came here, even if I had to go through those hard times,” he says. “It’s made me who I am.”

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Number 23
Volume IX
Washington, D.C.

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during August. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by July 9th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been announced in this bulletin.

2. The fiscal year 2010 limit for family-sponsored preference immigrants determined in accordance with Section 201 of the Immigration and Nationality Act (INA) is 226,000. The fiscal year 2010 limit for employment-based preference immigrants calculated under INA 201 is 150,657. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 26,366 for FY-2010. The dependent area limit is set at 2%, or 7,533.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation,
of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, DOMINICAN REPUBLIC, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family All Chargeability Areas Except Those Listed CHINA-mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st 01AUG05 01AUG05 01AUG05 01AUG05 15NOV92 01JAN96
2A 01MAR09 01MAR09 01MAR08 01MAR09 01MAR08 01MAR09
2B 01JAN04 01JAN04 01JAN04 01JAN04 15JUN92 01AUG01
3rd 01JAN02 01JAN02 01JAN02 01JAN02 01MAR92 01MAY94
4th 01JUN01 01JUN01 01JUN01 01JUN01 01JAN94 01APR90

*NOTE: For August, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01MAR08. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT the DOMINICAN REPUBLIC and MEXICO with priority dates beginning 01MAR08 and earlier than 01MAR09. (All 2A numbers provided for the DOMINICAN REPUBLIC AND MEXICO are exempt from the per-country limit; there are no 2A numbers for the DOMINICAN REPUBLIC AND MEXICO subject to per-country limit.)

Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 01MAR06 C 01MAR06 C C
3rd 01JUN04 22SEP03 01JUN04 01JAN02 U 01JUN04
Other Workers 15MAY02 15MAY02 15MAY02 01JAN02 U 15MAY02
4th C C C C C C
Certain Religious Workers C C C C C C
5th C C C C C C
Targeted Employment Areas/ Regional Centers C C C C C C
5th Pilot Programs C C C C C C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2010 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For August, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 64,300 Except:
Egypt: 26,000
Ethiopia: 25,625
Nigeria: 22,000
ASIA 28,700  
EUROPE CURRENT  
NORTH AMERICA (BAHAMAS) 5  
OCEANIA CURRENT  
SOUTH AMERICA, and the CARIBBEAN CURRENT  

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2010 program ends as of September 30, 2010. DV visas may not be issued to DV-2010 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2010 principals are only entitled to derivative DV status until September 30, 2010. DV visa availability through the very end of FY-2010 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN SEPTEMBER

For September, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA CURRENT Except:
Ethiopia: 26,350
ASIA CURRENT  
EUROPE CURRENT  
NORTH AMERICA (BAHAMAS) CURRENT  
OCEANIA CURRENT  
SOUTH AMERICA, and the CARIBBEAN CURRENT  

D. RETROGRESSION OF THE MEXICO FAMILY FOURTH PREFERENCE CUT-OFF DATE

It has been necessary to retrogress the Mexico Family Fourth preference cut-off date to keep visa issuances within the annual numerical limitations set by law. It is anticipated that for October, the first month of the new fiscal year, this preference will return to the latest cut-off date reached during FY-2010.

E. APPLICABILITY OF INA SECTION 202(a)(5)(A)AS IT RELATES TO THE ALLOCATION OF “OTHERWISE UNUSED” NUMBERS

INA Section 202(a)(5)(A), added by the American Competitiveness in the 21st Century Act (AC21), provides that if total demand will be insufficient to use all available numbers in a particular Employment preference category in a calendar quarter, then the otherwise unused numbers may be made available without regard to the annual per-country limits. This provision helps to assure that all available Employment preference numbers may be used. In recent years, the application of Section 202(a)(5)(A) has occasionally allowed oversubscribed countries such as China-mainland born and India to utilize large quantities of Employment First and Second preference numbers that would have otherwise gone unused.

For example, let us assume that 11,600 Employment Second preference numbers are available in a calendar quarter. There is heavy Employment Second preference demand by China-mainland born and India applicants; however, each country is oversubscribed and would ordinarily be limited to about 800 of the available numbers due to the prorating provisions of INA Section 202(e). Applicants from other countries that have not yet reached their per-country limit have reported a total demand of 6,500 numbers. After taking the worldwide demand into account, it is determined that as a result of the China-mainland born and India per-country limits only 8,100 of the total available Employment Second preference numbers would be used in that quarter. In this instance, the otherwise unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits. Should that occur, the same cut-off date would be applied to each country, since numbers must be provided strictly in priority date order regardless of chargeability. In this instance, greater number use by one country would indicate a higher rate of demand by applicants from that country with earlier priority dates.

F. DETERMINATION OF THE NUMERICAL LIMITS ON IMMIGRANTS REQUIRED UNDER THE TERMS OF THE IMMIGRATION AND NATIONALITY ACT (INA)

The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an annual basis. These calculations are based in part on data provided by U.S. Citizen and Immigration Services (CIS) regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year. Without this information, it is impossible to make an official determination of the annual limits. To avoid delays in processing while waiting for the CIS data, the Visa Office (VO) bases allocations on the minimum annual limits outlined in Section 201 of the INA. On July 7th, CIS provided the required data to VO.

The Department of State has determined the Family and Employment preference numerical limits for FY-2010 in accordance with the terms of Section 201 of the INA. These numerical limitations for FY-2010 are as follows:

Worldwide Family-Sponsored preference limit: 226,000
Worldwide Employment-Based preference limit: 150,657

Under INA Section 202(A), the per-country limit is fixed at 7% of the family and employment annual limits. For FY-2010 the per-country limit is 26,366. The dependent area annual limit is 2%, or 7,533.

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NEW YORK TIMES

By JULIA PRESTON
Published: August 12, 2010

The Obama administration has granted asylum to a Mexican woman who was sexually abused and severely battered by her common-law husband. The decision, in a closely watched case, clarifies the exacting standard that domestic abuse victims must meet to win asylum.

Department of Homeland Security officials found that the woman had proved that she could not expect the Mexican authorities to protect her from the violence and murder threats of her attacker, and that she could not safely relocate anywhere in the country to escape him.

During decades of abuse, the man repeatedly raped her at the point of guns and machetes, and once tried to burn he 

alive, according to court documents in the case in San Francisco.

Based on a favorable recommendation from Department of Homeland Security officials, an immigration judge on Aug. 4 approved asylum for the woman, who is known only as L.R., because asylum cases are confidential. Her lawyers announced the decision on Thursday.

The outcome of the case of L.R., 43, brings new clarity to asylum law after almost 15 years of arcane and tangled litigation, when claims from domestic abuse victims were regularly dismissed by immigration judges.

“The Department of Homeland Security has recognized that asylum should be available to women who have suffered domestic violence and whose governments won’t protect them,” said Simona Agnolucci, a lawyer with the Howard Rice law firm in San Francisco who represented L.R. “Now the day finally came when the department said these are the criteria required to show a case for asylum.”

In the case of L.R., who first filed for asylum in 2005, Homeland Security Department officials had tipped their hand in papers they submitted in immigration court in April 2009. They confirmed that L.R. could be eligible for asylum as a domestic violence victim, but laid out narrowly defined requirements she would have to meet. Since then, her lawyers presented new evidence designed to meet those standards.

In a declaration in March, Alicia Elena Pérez Duarte y Noroña, a former special prosecutor in Mexico City for crimes against women, said L.R. could not turn for help to the police in Mexico because of “the enormous social and cultural tolerance of this abuse, resulting in the virtual complicity of authorities who should prevent and punish these violent acts.”

L.R. testified that she had asked Mexican courts for protection for herself and her two children. One judge had offered to help her if she would have sex with him, she said.

In a novel argument, a Mexican lawyer specializing in information access, Jimena Avalos Capin, declared that L.R. could not find safety by moving to any new location in Mexico because her common-law husband could easily track her down using the Internet. For L.R. to be able to work in her profession as a schoolteacher, Ms. Capin said, she would have to post her current address in a public registry.

L.R.’s lawyers said the case was not likely to lead to any new surge of refugees in the United States because the hurdles remain high for battered women.

“It shows what kind of evidence would be enough to make a case, but it doesn’t mean every case is successful,” said Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California Hastings College of the Law in San Francisco, who also represented L.R.

Homeland Security Department officials said they would proceed cautiously with asylum claims based on sexual abuse. “The department continues to view domestic violence as a possible basis for asylum in the United States,” said Matthew Chandler, an agency spokesman. But he said each case “requires scrutiny of the specific threat the applicant faces.”

The government and the courts never questioned the account L.R. gave of her treatment by a man who she said had first forced her to have sex with him when she was a teenager and he was her school athletics coach. Once when he discovered she was pregnant, she said, he set fire to the bed where she was sleeping.

Asylum was also granted to L.R.’s two sons, now 22 and 20 years old. After years of “extreme anxiety” over the case, Ms. Musalo said, L.R., who is living in California, is “ecstatic, grateful and relieved” that she will be able to remain in this country.

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By Maria Sacchetti
Boston Globe Staff / August 17, 2010

The immigration judge who granted President Obama’s aunt asylum three months ago based his decision on the fact that an anonymous federal official had disclosed information about her immigration status to the media, a “reckless’’ act that exposed her to heightened threats of persecution in her native Kenya, according to the ruling, obtained yesterday by the Globe.

Although the grant of asylum to Zeituni Onyango in May was made public, the written decision detailing the reason for it was kept under wraps because of federal privacy laws. But the secrecy sparked accusations that she had received favorable treatment.

The decision was released yesterday through the Freedom of Information Act.

Onyango, a 58-year-old resident of Boston public housing, had tried twice to win asylum allowing her to stay in the United States and had been rejected both times. But her third attempt came under different circumstances brought about in part by an anonymous government official, according to the decision.

Immigration Judge Leonard I. Shapiro, who presided over her deportation case in February, said a federal law enforcement official’s public revelations about her confidential case catapulted Onyango into the spotlight in a “highly publicized and highly politicized manner’’ just days before Obama’s historic election in November 2008. The publicity and her status as Obama’s aunt are the crux of his 29-page decision.

Shapiro, a veteran immigration judge and Republican appointee, wrote harshly of the anonymous Bush administration official’s leak to the Associated Press for using confidential information for political purposes and said it was a “clear violation of federal regulations.’’

“Moreover,’’ he wrote, “the disclosure . . . was a reckless and illegal violation of her right to privacy which has exposed her to great risk.’’

The decision cleared the way for the former computer programmer to remain in the United States and one day become a US citizen. Asylum applicants must prove that they have a well-founded fear of persecution in their homelands, and because of that their cases are generally kept confidential. The Globe argued that the widespread attention to the case, plus Onyango’s decision to grant some media interviews, warranted the release of the judge’s decision.

Shapiro’s ruling ignited national debate over whether Onyango had received special treatment because she is the president’s aunt. She is the half-sister of his late father, who was a distant figure in the president’s life before he died in a car crash in 1982. The president met Onyango during a trip to Kenya in 1988 and included her in his 1995 memoir, “Dreams from My Father.’’

The president has said he refused to intervene in the case. Yesterday, a spokesman did not respond to requests for comment. Until 2008, Onyango had lived in near-obscurity in a Boston public housing development, never confiding to neighbors that she was related to the man who would become the first African-American president of the United States.

Onyango came to the United States in 2000 on a “pleasure’’ trip and stayed after her visa expired the next year, according to Shapiro’s ruling. She filed for asylum in December 2002, but was denied and ordered deported. She soon reapplied but was again rejected, in 2004.

Days before the November 2008 election, an anonymous US official confirmed to the Associated Press that Onyango was here illegally because she had lost her asylum claim — a report that injected the volatile immigration debate into the final moments of the presidential election and raised questions about how an illegal immigrant managed to stay in public housing.

In December 2008, Onyango’s lawyers
persuaded the immigration court to reconsider her request for asylum. They argued that news of her attempts to gain asylum in the past would render her a “traitor’’ in Kenya and that the media had singled her out as the “illegal immigrant aunt’’ of Obama.

Her lawyers said she also asked to stay because of health problems. Details of these problems were redacted in the report — along with details of her past asylum cases — for privacy reasons, said Cecelia M. Espenoza, the lawyer who released the decision from the Executive Office for Immigration Review, which governs the immigration courts within the Department of Justice.

The Department of Homeland Security, which sought her deportation, countered that the Associated Press article did not create a new risk for Onyango because it did not reveal details about her asylum claim and because Onyango and her lawyers had talked to the media. An agency spokesman declined to comment yesterday.

Shapiro agreed with Onyango’s assertion that she had been singled out for publicity and, unlike her relatives in Kenya, would be a “target.’’ He also outlined “serious interethnic conflict’’ that had consumed Kenya in recent years and resulted in hundreds of deaths. She belongs to the minority Luo ethnic group and said that she feared for her life if she had to return to Kenya.

In his ruling, Shapiro said Onyango’s testimony in February was sometimes confusing and inconsistent with what she said during her last quest for asylum six years ago. While Onyango did not prove that she suffered persecution while she lived in Kenya, he said he believed that her fear of future persecution was genuine.

He also acknowledged Onyango’s illegal status but did not hold it against her because there was no evidence that the federal government had ever pursued her deportation.

Some disputed the basis of Shapiro’s decision yesterday, and reiterated calls to release the full case to the public.

“The fact that she is the aunt of the president of the United States does raise questions of whether she received any special treatment,’’ said Ira Mehlman, spokesman for the Federation for American Immigration Reform.

But her Cleveland-based lawyer, Scott Bratton, said Obama had no influence over the case.

Shapiro’s ruling cleared the way for Onyango to apply for a work permit and a green card and to become a US citizen, after a required waiting period. She has settled into a new apartment in public housing in South Boston, Bratton said.

“If people actually got to know her, they would realize she is a really good person with a really good heart that has volunteered in the community,’’ he said.

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