Author: tancincowp

In the last three years, more than one million people were deported under the Obama administration. This year alone, there were 368,920 removals. While President Obama promised immigration reform before being elected, the irony of deporting more immigrants than the past administration becomes really alarming.

Tears fell on a mother’s face as her son was walking along the court’s hallway with handcuffs on his wrists and metal chains on his legs. Her son, Roddy, is a green card holder.  He arrived in the United States when he was 18 years old as a derivative child on her mother’s petition.

Upon Roddy’s arrival in the United States, he was enrolled in high school. Her parents, just like many new immigrants, pre-occupied themselves with work. Roddy was left in the home most of the time while her parents were busy trying to make ends meet.

Roddy’s mother works two jobs. Three years after Roddy’s arrival, he got caught in illegal use of methampethamines and drug trafficking. These offenses were committed ten years ago in 2001 and Roddy served  three months of jail time as a result of his drug convictions. After 2003, Roddy was finally rehabilitated. He finished his associate degree and maintained a decent job at a retail store. Roddy has a one year old child and a U.S. citizen fiancé.

In his desire to become a U.S. citizen, like everyone else in his family, Roddy applied for naturalization at the U.S. Citizenship and Immigration Services (USCIS). He casually asked for a day of leave from work and appeared at his naturalization interview. Anticipating a favorable approval of his citizenship application, Roddy never expected that he would instead be taken into custody by the agents of the Immigration and Customs Enforcement (ICE). What happened was that the USCIS officer found out about Roddy’s 2001 criminal convictions for drug offenses. Despite having served sentences and having been rehabilitated, US immigration law provides “mandatory detention” for immigrants with certain drug convictions and other aggravated felonies.

Roddy appeared before an immigration judge, seeking leniency and compassion. The law is clear, he was told, that he remain in jail until he is finally returned to the Philippines.

Roddy’s mother is not blaming his son. She has not been sleeping since his son was arrested and blames herself for her son’s fate. According to her, if ten years ago, she had paid more attention to her son and not been caught up with working and making ends meet, Roddy would probably not have been gotten into trouble. She said that his son was raised well in the Philippines and never had any infractions with the law until he arrived in California where he hanged out with the wrong friends.

There are so many questions in the mind of Roddy and his family. Her mother asks why, if his son was rehabilitated and is reformed to be a good citizen, would he now be deported and separated from his family?

At the beginning of this year, all of Roddy’s siblings got their visas and also migrated to the US. Roddy will be by himself in the Philippines if he is deported.  The irony of this is that Roddy was the the only child who was able to migrate with his parents while his three older siblings aged out and were left behind awaiting for their petitions. Now that his three siblings finally arrived in the U.S. reuniting their family, Roddy is now being deported. The mother is experiencing pain and is left with the dilemma of whether she will give up her life in the U.S. and voluntarily return to the Philippines with his son. This is where a mother’s undying love of a child becomes apparent.

Applying for Citizenship

With the approval of dual citizenship law in the Philippines, immigrants now have more reasons to apply for U.S. citizenship in order to enjoy the benefits of both nationalities. One of the aspirations of an immigrant in attaining the American dream is to become integrated into the mainstream US society and be productive citizens of their adopted country. Immigrants also hope to derive benefits in order that they may exercise the right to vote, obtain federal and state entitlements, ease of travel and other political benefits.  A significant number of immigrants also apply for US citizenship to expedite processing of petitions for their spouse, minor children and parents.

While there are good reasons to apply for citizenship, immigrants with past criminal convictions or immigration violations must be cautious about applying for US citizenship. Legal and immigration consequences of one’s past actions or violations of the law may still have serious effects and may result in removal or deportation. Just like the case of Roddy, despite the passage of many years of being reformed, immigration law’s restrictive enforcement rules had caught up with him.

Another way for the ICE to arrest immigrants with past criminal cases or immigration violations is through the ports of entry. This happens when green card holders re-enter the United States after a trip abroad. These green card holders with previous convictions, after having traveled back and forth numerous times, are now (for the first time and to their surprise) being identified by the Department of Homeland Security’s computer database and being deferred for further inspection.

That fact that an individual has traveled successfully in the past, notwithstanding a criminal record, does not mean that the next time the previous conviction record will not come to light. If the arriving greencard holder with a conviction requiring mandatory detention is identified, the arriving passenger may be arrested just like Roddy. If one has had a prior criminal conviction he/she should be sufficiently aware of these possibilities.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

Two days before the interview for his green card, James’ wife, Diana, suffered a heart attack and died. As his wife was the petitioner, the application for green card was denied. James was married for only eighteen months at the time of Diana’s death. After the denial of his application, James decided to return to Manila in 2007.

A similar case happened to Thelma. Ten years ago, her U.S. citizen husband petitioned her. The petition was approved and Thelma was scheduled to attend an interview at the U.S. Embassy in Manila.  A week before the interview, Thelma received news that her husband died in a tragic accident at his workplace. Thelma’s application for green card was also denied because of the death of the petitioner. Thelma has been married less than two years at the time of her US citizen husband’s death.

On October 29, 2009, widow(er)s of U.S. citizens were given a compassionate and humanitarian opportunity to apply for green cards despite the death of their US citizen spouses . What steps do they need to take to apply for an immigrant visa? In the case of Thelma, the death of the husband took place almost ten years ago, can she still apply for the immigrant visa?

Prior Legislation on Two-Year Rule

Generally, one who is married to a U.S. citizen may be conferred immigration benefit as a green card holder. And when the U.S. citizen dies, the petition usually ‘dies’ with the petitioner. However, a humanitarian provision to give consideration to widows/widowers provides an exception to the rule. Those who have been married for at least two years to a U.S. citizen and those who file for immigrant petition within two years from death of the U.S. citizen spouse may still receive immigration benefit. This is on the condition that the widow has not re-married.

Before 2009, there were widows who were allowed to self-petition on the basis of the two-year rule. This requires a marriage of at least two years and filing of a self-petition also within two years from death of petitioner. While there are a significant number of widows who were able to get their green cards through self-petition within the two-year rule, there are many who lost this opportunity to self-petition because their US citizen spouses died less than 2 years into the marriage. These classification of widows who have been married for less than two years were deprived unjustly of immigration benefits. No consideration was given, at that time, even if the two-year wedding anniversary was just a few days from the death of the petitioner. There are also those who took care of their ailing spouses but whose marriage did not reach two years. The latter widows were forced to return back to their homeland while some continued to stay in the US without legal status.

Abolishing the Two Year Rule

To ameliorate the harsh effect of the two-year rule for widows who had valid marriages prior to the death of their U.S. citizen spouses, the law was amended on October 28, 2009 as part of the Department of Homeland Security Appropriations Act of 2010, P.L. 111-83, 123 Stat. 2145.The requirement of two years marriage was eliminated. This means that the marriage should have existed and the number of years as a married couple is no longer relevant. What is important to prove is that the marriage was entered into in good faith and that prior to the death of the US citizen, the couple lived together as husband and wife. Evidentiary proof of this marriage must be available for submission with the self-petition.

Transition Period

While the two-year marriage rule was eliminated, the law still requires that the self- petition by the widow must be filed within two years. And for those whose marriages were less than two years and failed to file within two years from death of their spouses, the amended legislation provides for a “transition period”. They are afforded only until October 28, 2011 to file their self-petitions with the U.S. Citizenship and Immigration Services.

Must Not Have Re-married

One of the requirements that still remain in effect is the fact that the widow of the U.S. citizen must not have remarried. If in the case given above, Thelma had remarried and is living with a new spouse, she will not be able to get her green card as the widow of a U.S. citizen.

In the case of James, even if the death occurred in 2007, he is still given until October 28, 2011 to file a Self-Petition. The US Citizenship and Immigration Service need not approve the petition before this date. All that is required is that it be properly filed and received by the USCIS on or before October 28, 2011.

So to all widow(er)s who were unable to self-petition because of the two year marriage rule ……do not delay. You only have until October 28, 2011 to file your self petitions to get the green card that you rightly deserve.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)