Stalking the INA chimera

Chimera: (a) in Greek mythology, a monstrous, fire breathing creature composed of the parts of multiple animals; (b) in our daily immigration practice, the Immigration and Nationality Act.

Everyone loves to watch lawyer and cop shows on TV; from Perry Mason in the ’50s and ’60s, through Hill Street Blues and LA Law in the ’80s and ’90s, to the various current incarnations such as Law and 0rder, NCIS and so forth. As a result, many people think that lawyers are basically courtroom warriors who engage in clever and passionate verbal combat with judge and jury on behalf of their innocent and hapless clients. Or that lawyers are sleazy operators who assist corrupt politicians and greedy big business types in dirty backroom deals. The reality, at least in our experience, is much less dramatic. Much of what we do is to read and try to understand the meaning of the cases, statutes, rules and regulations as they affect our clients’ problems.

Although all areas of law involve statutes and regulations, it is generally agreed that immigration law is one of the most convoluted and difficult legal practices. Immigration law is convoluted and difficult because it is a chimera (see definition above). It is an accretion of about 140 years of amendment and reenactment of the original Nationalization Act of 1870, and it is a reflection of our continually changing national policy regarding immigration. The last four major revisions to the Immigration and Nationalization Act (“INA”) occurred in 1952 (reflecting Cold War-era concerns about communist infiltration); in 1965 (reflecting liberal era elimination of national origin quotas and providing preferences to immediate relatives); 1986 (a mixed bag authorizing limited amnesty but also imposing penalties for hiring illegal aliens, and creating “conditional permanent” resident status, a bizarre concept indeed) and 1996 (reflecting a swing to the right with drastic restrictions on asylum, enhancement of governmental detention authority, and elimination of many forms of relief). Like the Chimera of Greek mythology, the current INA is made up of the core statute, from 1952, with additional laws-often reflecting major policy changes-slapped into place over and over again. And the INA, like the Chimera, can have ruinous effects on the lives of those who approach without due caution and preparation.

Another way to say it is that because the INA is the result of layers upon layers of amendments and changing policy in immigration law, it is very difficult to read and is often contradictory. It is organized in a manner that demands the dedication of a Talmudic scholar to locate references to any given issue. Even if you find the issue, you cannot be sure that you have found every cross reference, and cross references are where the various exceptions and exemptions to the general rules are hidden. The statute itself is subject to regulations published to assist implementation, and agency policy directives and memoranda to aid interpretation. On top of that, there are various manuals to assist field adjudicators and officers, both in USCIS (and its siblings CPB and ICE) and the Department of State. Then of course there is case law, both within the agency’s administrative procedure and on appeal by the federal courts. And on top of everything else there are the unresolved issues, and the resolved issues whose resolution may take years to filter down through the administering agencies.

So what is a poor lawyer to do? Well, we do our best with what we’ve got. We use our knowledge, our experience, and our intuition to do what makes sense in any given moment and move forward, ready to alter course when the situation or the available information changes. Lawyering is not an exact science. Which is our way of saying that our columns are just that, our best opinion, given all the circumstances of which we are aware.

All that being said, we happened on some interesting interpretations, these past several weeks, of things we thought we already knew.

Guam transit surprise: If you have advance parole and intend to travel through Guam, you need Guam transit parole (in addition to your advance parole) to travel outbound, but, it turns out, not to return. We recently had a client, a foreigner with a pending green card application who needed to go to the Philippines as the designated escort of her U.S. citizen husband; he was being medically referred for emergency heart surgery. Getting the advance parole was delayed and the couple grew quite anxious waiting. Finally the advance parole arrived, the medical referral office booked the tickets and the couple proceeded to the airport. They were not boarded by the airline because the alien wife lacked a transit parole through Guam. After a flurry of emergency contacts and an application to USCIS, she received her transit parole, but it was only good for two days. Panic set in. She was good to go out but how to return? After another flurry of emergency contacts with Guam USCIS, we learned that she needed no transit parole on the way back. She would re-enter the U.S. in Guam using her advance parole and pass inspection there. Traveling from Guam to Saipan is domestic travel, not requiring additional parole. It may seem obvious in retrospect, but it was not so obvious in advance. But that’s often the way it is.

Widows and widowers alert: Pursuant to a recent addition to the INA chimera, widows and widowers whose U.S. citizen (USC) spouses died prior to Oct. 28, 2009, were allowed until Oct. 28, 2011, to file their surviving spouse green card petitions, no matter when the USC spouse died. We have processed a number of these over the past couple of years. This past week we became aware of at least three widow applicants in the CNMI whose applications were denied, we are told, because the USC spouses died too long ago. We intend to investigate and report on this; although after Oct. 28, 2011, the familiar “apply within two years of the USC spouse’s death” rule snapped back into place, there are a number of timely filed applications still pending. We wrote columns on this important addition to the INA in February 2010 and February 2011. Looks like it’s going to be an annual project even though the filing deadline has passed. Stay tuned.

Beware the consul in Taiwan: Not all E-1/E-2 visa applicants (treaty traders and investors) are treated equally by the State Department and its proxies. In particular, expatriate citizens of the Republic of China (ROC, formerly known as Taiwan) get the short end of the diplomatic stick if they do not have close ties to the island of Taiwan itself. (This is an increasingly large political issue in the ROC-see, for example, http://tinyurl.com/7zu679b for a report on demonstrations by Filipino-Taiwanese demanding equal rights.) We have a client, an ROC citizen who has been a resident of the CNMI for more than 25 years, who has a well-established business here, who easily qualified for an E-2. The American Institute in Taiwan, which handles consulate matters for the U.S. in Taiwan, agreed-and issued our client an E-2 visa good for three months and two entries to the U.S. Clearly, that is insufficient status for our client to continue running his business and his life on Saipan. The excuse? The consular official said that the Taiwanese government is responsible for the restriction. Something’s wrong with the way our client was treated, and we’ll report on it in detail in a future column, once we figure out a solution.

Social Security Catch-22: Green card applicants must show a certain minimum level of income in order to qualify for permanent resident status. There are several exceptions to this requirement; one of them is a showing that the applicant has contributed to the social security system for at least 40 quarters or 10 years. The process for obtaining proof of this is simple: go to your local SSA office and ask for a printout of your contributions. If the printout shows 40 quarters, you are good to go. We have a client who initially entered the CNMI as a contract worker with a false birth date. She was deemed too old for the job and the recruiter “fixed her papers” before coming to the CNMI. Decades later, prior to applying for a green card, she went to her consulate, explained the situation, made an affidavit, and was issued a new passport under her true birth date. All of her intervening documents in the CNMI, however, had the false birth date, including her social security record. We realized she needed to change her birth date with SSA in order to use it as an exception to her income requirement. When she went to SSA, she was told that her record could not be changed until she becomes a permanent resident. Classic Catch-22: she can’t qualify for a green card unless she gets her SSA record changed and she can’t get her SSA record changed unless she has a green card. We are currently communicating with SSA to resolve the problem.

So we continue to stalk the INA chimera. It’s like what they say about bears: Sometimes you eat the chimera, sometimes the chimera eats you.

Maya Kara is a native of Hungary and comes to the practice of law by way of her interest in Asian history. Bruce Mailman is a native of Bakersfield, California and was a private investigator in California prior to becoming a lawyer. Both have lived and practiced law in the CNMI for over 20 years, Maya in government service and Bruce in private practice. They are married and are partners in the law firm of Mailman & Kara, LLC in Garapan, Saipan.

The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com.