Monthly Archives: July 2017

Permanent Residency for UK Baby – Where’s the Compassion for the Other Children?

Today’s New York Times includes an article by Emily Cochrane titled Lawmakers Push to Give Ill Baby US Residency. The story is worthy of commentary for a number of reasons most notably that it references two Republican lawmakers (and the Trump Administration) as eager to grant permanent residency for the purpose of granting extensive experimental medical coverage to a non-citizen. The story of this child’s plight is gut wrenching and calls for a compassionate response. I do not and am not competent to address the medical issues but I can speak to some of the immigration themes.

Republicans and immigration restrictionists for years have complained that non-citizens have been flocking to this country illegally in search of free medical care. While these stories are way overblown and unfounded, I find it odd that these members of Congress would through private legislation try to grant permanent residency to a UK citizen with a rare genetic disorder with the purpose of extending to him highly expensive experimental medical care. Lawful permanent residency does not normally confer access to free medical care since an intending immigrant with a medical condition would be barred from admission because of their likelihood of becoming a public charge. In addition a person admitted to permanent residency is ineligible to receive a whole array of public benefits for 40 quarters (10 years) following their admission. And a person who accepts one of these benefits could be deported unless they can show that condition which required the benefits occurred after their admission to permanent residency. These restrictions in US immigration have long been at the core of US immigration law. The inscription which appears on our Statue of Liberty of welcoming the poor and rejected is not reflected in our immigration statutes.

The mechanism used to grant permanent residency to this child is most extraordinary and is commonly known as a “private bill” effectively bypassing the normal visa requirements. The “normal” visa procedure would require the child’s parent’s to have any one of the following: 1) close family ties with a US citizen or permanent resident; 2) a skill for which there is a US employer willing to sponsor either of the parent’s; or 3) either of the parents winning a visa under the annual “diversity” immigrant visa lottery administered by the US for nationals from certain countries (of which the UK is one). Even if the child’s parents could fit into any of these categories they would still have to wait their turn because of the immigrant visa quota that controls how many persons can come to the US each year. More importantly the parents would also have to overcome the extensive “grounds of inadmissibility,” the most ominous being the likelihood that they would need extensive medical care in the US and therefore be unable to show that they were not likely to become a public charge. The inadmissibility grounds bar the admission of people such as the family mentioned in this story.

Of course there are other legal avenues short of permanent residency, but even those would require the parents to show that they had medical care lined up through private sources or that it would be paid through some insurance plan. Short of that, if this case were handled like most, the Department of Homeland Security (DHS) official at the border or the US consular officer in London would not allow this child and his parents to come here. That is what happens to most people in desperate need even if they have supporters in this country.

This brings us back to the original story and begs the question of why an Administration which is perhaps one of the most most restrictionist in a century, would want to bypass all normal procedures and grant permanent residency to this family? The generosity which these lawmakers and the Trump Administration would extend to this family should also go out to others from countries where people have no access to medical care.

[For those interested in private bills I highly recommend a thorough exploration of the material by a colleague, Ana Marie Gallagher titled AILA’s Focus on Private Bills and Pardons (American Immigration Lawyer’s Association Foundation 2008)]

US – Cuba Relations and Immigration Policy

On June 16 of this year President Trump announced that he would role back many of the openings made by President Obama in US-Cuba relations in July 2015. You might recall that in the last two years of President Obama’s presidency the Department of State announced ongoing meetings with the Castro government. These talks led to the establishment of full diplomatic recognition in July 2015. In addition to establishing diplomatic relations the Obama Administration did all that could be done by the Executive Branch to normalize travel and commercial relations with that country. It was not within President’s powers to many of the economic and travel sanctions previously imposed by Congress. While it remains unclear what the Trump Administration has done, it appears that the relative open travel by average US citizens sanctioned by the Obama Administration will be rolled back.

This commentary addresses how some of the changes will impact on matters related to immigration between the US and Cuba.

Travel to Cuba from the US

The President does not have full control of the economic embargo on Cuba. However he does implement many elements of the embargo. What this means is that he has the authority to issue travel and commercial licenses by US citizens visiting Cuba or engaged in business activity. Changes instituted by President Obama, meant that a larger group of Americans would not need to obtain separate permits each time they visited. Previously academics, journalists and traveling under an organization license could visit as long as their expenditures were kept within limits set by the Treasury Department. In recent memory Cuba has not imposed travel restrictions on foreigners visiting the island nation. In fact all that was required of visitors was that they purchase their visa on arrival. The visa and not the person’s passport would be stamped avoiding any evidence of the person’s Cuba visit. Prior to Obama’s lifting of some of the restrictions, Americans with family ties in Cuba could travel to Cuba only twice a year. Academics, journalists and others with a Treasury Department license could travel for their work. Travel outside of these restrictions risked possible criminal prosecution for violation of the embargo.

Strictly speaking, the embargo is not really a ban on travel to Cuba. Instead it places restrictions on how travelers spend money, how businesses trade or transfer technology with Cuban entities and individuals. For this reason an American national who visits Cuba at the invitation of an entity in Cuba and does not spend his or her US dollars in Cuba would not be in violation of the embargo.

Perhaps the main violators of earlier iterations of the embargo were Cuban-Americans who returned to Cuba for a third, fourth or fifth trip (the embargo permitted only two such “family” trips per year). These travelers could often be found traveling from locations in Mexico or other countries into Cuba after completing their two legal visits. The Cuban government was complicit in these violations because they did not place an entry or exit stamp into the travelers passport. Their complicity was rewarded for Cuba received a healthy injection of foreign (hard) currency into its economy. The changes instituted by the Obama Administration in 2015 broadened the group of Americans who didn’t need to obtain a specific travel license to visit and that is one of the major impacts of the Trump Administration rollback of the restrictions. One report noted that in 2016 more than 285,000 US tourists visited the island from representing a 74% increase from the previous year. No doubt that number will drop significantly this coming year as well as the group visits.

Travel to the US from Cuba

If the Trump Administration applies the immigration laws as they were written by Congress, there could be a number of significant immigration impacts.

Expedited Removal
– The 1996 immigration law amendments created major changes to US immigration law, of which one of the most far-reaching was a procedure called “expedited removal.” Expedited removal gives the immigration inspector at the border the authority to turn back an arriving person with only the approval of his or her supervisor. The basis for invoking expedited removal need only be where the immigration officer believes that the arriving person (Cuban) obtained their US visa through a fraud or misrepresentation or has not travel documents. The decision is wholly discretionary and no immigration judge gets involved in the case unless the person can establish a “credible fear of persecution” on account of race, religion, nationality, political opinion, or membership in a particular social group. As enacted in 1996, the expedited removal statute specifically exempted Cuban nationals until the US entered into full diplomatic recognition. To the extent that the Trump rollback does not rescind diplomatic recognition, expedited removal should be applied to Cubans arriving.

Expedited removal ties in closely with another statute. In 1966 Congress enacted the Cuban Adjustment Act which provides that any Cuban who is admitted or is allowed to physically enter parole may apply for permanent residency within one year of their physical entry without regard to having the normal family or employment relationship with a US citizen or entity as is required of all other immigrants. Normal immigration law restricts immigration to the US to a strict quota where the applicant must show that they have a close family relationship with a US citizen or permanent resident. Alternatively the person must be able to show that they have skills that are in short supply and if they are hired by a US employer that they will not displace US workers. The general immigration statute imposes numerical limits on the number of persons who can be admitted under these family and employment relationship categories, thereby creating waiting lists for most persons who want to immigrate to the US. The Cuban Adjustment Act bypasses most of these obstacles, but the application of expedited removal on Cubans could diminish the opportunities to take advantage of it.

Greater Difficulties for Cubans in Qualifying for Visas – Many Cubans labor under the misunderstanding that it is the Cuban and not the US government which imposes the greatest restriction on their travel to the US. As noted previously the first thing that Cubans coming on shorter visits will encounter will be the presumption that they are actually intending to immigrate and that will place a heavy burden on them. Most nonimmigrants are denied visa on this basis and it doesn’t require an explanation from the consular officer reviewing the application. Even if they can overcome this presumption they will need to fit into one of the narrow nonimmigrant visa categories, i.e. tourism, education, etc. These will require them to show that they have funds to support themselves for the entire time that they will be in the US and that they will not be working. If a family member in the US is supporting their request, that could serve as a disqualifier since it may indicate that they are really an intending immigrant.

If they would like to immigrate then they will have to fit the narrow categories under the statute which limit these visas to persons who designated close familial relations with US citizens or permanent residents. Except for those who are children or spouses of a US citizen or whose adult children are US citizens there is a long waiting list to immigrate – meaning that the immigrant may have to wait years to come to the US. These delays are not because of processing times but because the US maintains a rigid quota system.

So the Cuban who would like to try to come to the US whether for a short or long term visit, they are going to learn very quickly that immigration to the US is going to be more difficult than ever, for visas will be difficult to obtain not because of any impediments created by the Castro government but as a result of the normal immigration rules.