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Alien Indifference

Los Angeles Daily Journal, April 2008

It was a typical morning in Immigration Judge Stephen Sholomson’s packed courtroom. Fifty or so people – immigrants, their lawyers, interpreters — crammed into the tiny room on the 17th floor of a bank building next to Pershing Square. More immigrants and lawyers ambled in the hallway outside, waiting to be summoned when their case was called. A security guard tried to manage the chaos.
Forty-five minutes or so into the proceedings, I managed to secure a seat on a courtroom bench for my client, a student from China who had just divorced her U.S.-citizen husband. Finally, our case was called. I spoke to Sholomson.
“There’s really no reason to waste the court’s resources on my client,” I argued. My client was in deportation proceedings because of a technicality – her divorce to her U.S.-citizen husband was not yet final at the time she was required to apply for her permanent green card. Had her divorce been final, she probably would have her green card by now. But because it takes six months in California to finalize a divorce, she ended up in deportation proceedings instead.
Immigrants who divorce their U.S. citizen spouses can retain their green cards if they show they entered the marriage in good faith. My client had done that, obtaining letters from her ex-husband, father-in-law and mother-in-law, as well as copious documents from the marriage itself. But because the divorce wasn’t final, U.S. Citizenship and Immigration Services refused to accept the documents and turned her case over to the already overburdened immigration courts for deportation proceedings. My client re-filed the papers with USCIS after the divorce finalized, but by then she was already in deportation.
Sholomson sympathized, but said there was little he could do. If the Department of Homeland Security wanted to keep these immigrants in removal proceedings, it had the authority to do so. And DHS wanted to, despite internal guidance that encourages the use of prosecutorial discretion on cases in which the immigrant is eligible for a green card. In June, my client and I will be back in Sholomson’s courtroom again, squandering more of the court’s precious time while we wait for the lumbering USCIS bureaucracy to approve her permanent green card.
There is a much simpler solution for this problem. USCIS could extend the filing period for immigrants in the process of divorcing so that these people are not thrust into deportation proceedings. Or Homeland Security could instruct its prosecutors to exercise discretion and not prosecute these cases.
But these options have not been taken. I am not sure why. Common sense often takes a back seat in the immigration world, where the bureaucracy seems to have a life of its own, pummeling everyone and everything in its wake.
In Anaheim, asylum seekers often wait hours to have their testimony heard by officers who obtain the files that morning and have scarce time to review themLast week, a client waited six hours for his case to be called. I had advised the client to smuggle in a little food in case we had a long wait, but the security guard seized his Power Bar and vitamin water at the entrance. No food, drinks or camera phones are allowed in the waiting room. There is no access to any other part of the building from the waiting room. If an immigrant exits the building in order to eat, he risks missing the moment when the officer calls him in for the interview.
Asylum cases rest almost entirely on the credibility of the immigrant. My client, a Christian from Iraq, was no different. He had some documentation to support his claim of religious and political persecution by Islamic extremists, but much of the evidence came from his oral testimony. By the time his case was called, he and I (my trail mix had also been seized by the guards) were in less than great shape.
I asked the officer if there was a candy machine where we could eat something quickly. She said there was, but it was not available to the public. We did the two-hoursplus asylum interview on empty stomachs.
This is not a huge deal. My complaint may seem insignificant and even trite. But to me it reflects something deeper: a lack of respect for immigrants and a lack of vigilance over the fundamental fairness of the immigration process. This may be because immigrants don’t vote, because they are poor, because many Americans don’t want them here or because they are just not like us. I don’t know why it is, but this attitude infects the entire system.
There are good, smart people within DHS and USCIS who are highly capable administrators. I know they work hard every day to make the process smoother and fairer. Yet the failures of the system often seem to trump individual efforts. I think we can do better. I am sure the problems are not insurmountable. Other bureaucracies perform much better. When I have a case in federal court, I am always awestruck by how well the system works compared with the immigration system. I hope that we can find a way to make the immigration process just as open and fair and efficient. It’s in everyone’s interest to make it so.
Pamela Hartman is secretary of the immigration section of the Los Angeles County Bar Association.

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