Much ink and anguish has gone into what is now one of the most pressing national concerns of our times. Here, we examine the extent to which the system is broken, and how it affects South Asians.
At a recent oath ceremony at the Richard Russell building in downtown Atlanta, it was a solemn affair as close to a hundred starry eyed immigrants from all around the world were about to receive their much vaunted American citizenship. There were speeches from senior officials, a recorded video message from President Bush, a sundry list of do's and don'ts about being an American citizen. All of the immigrants had just passed a citizenship exam dealing with American history and civics. There was excitement in the air; cameras and camcorders were working overtime, recording this momentous day. Most sacred of the proceedings was certainly the oath itself, wherein the prospective citizens, with their hand over their heart, pledged allegiance to the United States of America and its Constitution, the highest law of the land.
At the very same time, it is safe to assume that scores, if not hundreds, of determined souls were sneaking across the southern border of the country with not so much as a single official paper in hand. Chances are most of them couldn't tell you how many stars there are on the Star-Spangled Banner (one of the questions on the citizenship test).
Such is the schizophrenic state of the nation's immigration system. What makes an outright mockery of it is that there are an estimated 12 to 14 million undocumented immigrants in the country. [By no means are they all from our southern neighbors. As per a recently released study, the largest percentage of increase in undocumented immigrants was from?India. At a 133% increase from 2000 to 2005, Indians claim the dubious distinction as the 4th largest group of undocumented immigrants in the U.S.]
Add to that the post-9/11 complexities, and the issue of immigration is an all-around headache for everyone concerned: the proud patriot who feels his country is being virtually taken over by those who have not pledged allegiance to it; the undocumented immigrants who feel disenfranchised in spite of playing a vital role in the nation's economy; the various agencies and bureaucracies that appear to be overtaxed handling just the documented immigrants, let alone an ocean of undocumented ones; and the legislators in Capitol Hill who are simply flummoxed by the competing interests and agenda.
A bureaucracy at the "edge of chaos"
When asked about the state of the immigration system of the nation, immigration attorney George R. Willy categorically said, "Absolutely, the system is botched up, it's broken. It is widely broken. As INS (Immigration & Naturalization Services) it was bad enough. Then they brought all these agencies [U.S. Citizenship & Immigration Services (USCIS), U.S. Immigration & Customs Enforcement (ICE), U.S. Customs & Border Protection, etc.] under one giant umbrella – The Department of Homeland Security; and as a result just the administrative headaches have gone from bad to worse."
We talked to several Atlanta area attorneys for this story to get a feel of the situation from their vantage position. "Botched up," "inconsistent," "inequitable" and "unpredictable" are just some of the descriptions used by them to describe the current system. Attorney Kenneth S. Levine who described the bureaucracy as one that has been operating "on the edge of chaos for many years" said, "Immigration keeps trying to adopt what I call the ‘band-aid' approach." According to him, each time there is a crisis in one area, regardless of the extent and depth of it, they slap on a "band-aid" and move on to the next crisis.
Pointing to the fickleness of the system, Levine cites an example regarding the employment based H1-B visa. Just a day before the visa cap for H1-Bs was reached, officials circulated a notice saying there were still certain many thousands of visas available. Those clients and attorneys who scrambled around hectically to take advantage of that were rudely disappointed the next day when another notice informed that not only had the cap been hit, but also that the applications submitted within the last five days would be rejected. "We think that the upper management of the system leaves a lot to be desired, because every time they try to take steps to improve the process or to bring down the backlog, it never seems to work." Levine surmises.
Attorney Parmesh Dixit feels that the severely overtaxed system no longer represents the best of American values. Family as well as employment-based visas face tremendous backlogs that he feels break apart families for years at length. A green card holder who wants to call his spouse and children to join him has to contend with as much as seven years of waiting before they are eligible to come. "That's just a disgrace to the notion of family values that America talks about," says Dixit. Moreover, thanks to the general chaos, the bureaucracies are not able to offer any projections or estimates of a window of time when a visa or application is expected to come through. "I have clients who filed in 2001 calling me to find out when their Green Card will come through," he adds. Sadly, no one knows for sure.
Wherever the demand exceeds supply—as is certainly the case for the number of available visas compared to those seeking them—backlogs are to be expected. However, when no reasonable estimates can be offered by a clueless system, it points to its failure in considering the human consequences that it leaves in its wake. Lives are on hold—and worse—lives are derailed for no other reason than an overburdened and inefficient system.
Incidentally, the supply-demand inequity of visas is not reflective of the ground realities of the nation. The limited visa caps in most cases are arbitrary rather than dictated by necessity. According to Charles H. Kuck, the National Vice President of American Immigration Lawyers Association ("AILA"), "The bottom line is our immigration laws don't reflect the economic and familial realities of American life today. There aren't enough work visas, there aren't enough family visas. For example, the demand for employees is far greater than the native supply that the U.S. has and therefore there is a screaming need for immigrants. It forces some people to cut in line by possibly overstaying their visas – putting them in the untenable position of never being able to leave to correct their status."
Besides not being family-friendly, the system-wide lack of humane considerations has damaging effects. Mrs. Raji Chauhan* feels she is "imprisoned" in America, all because she had the misfortune of having come to America by marriage to a husband who turned out to be abusive. When the abuse got progressively worse, Chauhan was in the no-win situation of having to break free from the only person who was an anchor to her official American life. Being on a H-4 (spousal dependent) visa, she had several restrictions, the worst of it, she was not eligible to work in the U.S. "Those were dark times," she recalls. "On foreign soil and with no support system, how do I break free and make it on my own, if I am not even allowed to work?" she exclaims. To its credit, immigration did eventually come up with a provision for such scenarios. The U-visa was created specifically for victims of crime, including domestic violence. But while it allows for living and working legally in the U.S., it doesn't allow for traveling overseas until the temporary status afforded by the U-visa is converted to a permanent residency visa. The problem is, no one knows how long this could take. "I am dying to see my parents and family in India. But unless I am willing to forget about coming back to America, I can't go. And I don't want to go back to India to settle there as it is tough for a divorcee woman to make it on her own over there. What frustrates me is if I can live and work here legally, why can't I travel? I don't know what my future holds. I don't know how long I could go on. My parent's visitor visa was rejected. I am the only daughter in my family. I had never been away from the family, so it is very hard."
At the mercy of arbitrary interpretation
What compounds the problem of a dysfunctional system is the human factor on which it is heavily dependent. Kenneth Levine says officials are frequently moved to different sections of adjudication, and they receive "very poor training." According to him, decisions are routinely contrary to regulations. So, even when immigration law on paper is just and equitable, its application is often not. There are complex and ever-changing laws that leave a lot of room for gray areas which are then being implemented by poorly trained officials.
Not surprisingly, very often, the amount of time, money and emotion invested by meticulous applicants who round up a formidable amount of paperwork can often be lost to arbitrary and fickle interpretations. Levine cites a case where his firm had filed a H1-B and a H-4 (spousal) visa for a couple on behalf of their employer. "The request for evidence that came back was enormous; it was unreasonable and completely irrelevant." Yet, they responded with a large amount of documentation. There was one detail which they contended was simply not applicable, and it involved a trade secret for the company in question. A detailed explanation was submitted as to why the information was sensitive and, more importantly, why it was not applicable. "Our application was denied for failure to answer each and every question, and they underlined ‘each and every'. That was a horrible decision! Because, the standard for an immigration officer to approve a case is only the preponderance of evidence – the evidence must be more likely than not that the applicant meets the requirement for the benefit sought. Well, we have filed an appeal with the administrative appeals office, and we fully expect to be vindicated. But the system has no consideration of the fact that trying to get bad decisions overturned is an extremely time consuming and dreadful process for both clients and attorneys," he adds.
The degree to which applicants are vested onto their immigration situation is often rudely undermined, not for valid legal reasons, but on account of vagaries of personnel who seem to have no regard for the domino effects of their brash decisions. Most applicants start and build their American lives in good faith that the system will be fair and equitable rather than fickle and frivolous with their cases. According to Levine, by the time an applicant runs into such a poorly executed decision, "they have so much vested in the country, particularly if they have started families here. Often they are also heavily monetarily invested and have acclimated themselves to the American way of life. Remaining here undocumented then becomes their only practical choice."
Stacked against South Asians
What makes a system that is dysfunctional across the board worse for South Asians is the added grievances that seem to be stacked against them. When asked if profiling has crept into the immigration system of the nation, attorney Charles Kuck replied empathically, "No doubt about it! After September 11 it has escalated for Muslims and Muslim look-alikes such as South Asians. It's not just profiling, but also discrimination. There is clearly discrimination. I don't see it in the courts; but I do see it in the adjuratory process – who gets put into deportation and whose benefits are denied or delayed."
"While folks at ICE, CIS, CBP, the agencies in charge of our immigration policy will publicly say that there is no profiling, they clearly do engage in profiling," adds Kuck as he cites the NSEERS (National Entry-Exit Registration System) program as one of the biggest examples of such profiling.
A watchdog website, www.watchingjustice.org, that monitors the U.S. Department of Justice, describes NSEERS as follows:
Almost a year after September 11, 2001, the Justice Department issued a regulation creating a program under which men residing in the U.S. on temporary visas from certain Middle Eastern countries are required to register with the INS, and to inform that agency of every address, school and employment change undertaken while they have been in the U.S. They also must report when they entered and exited the country. These men have been interviewed, photographed and fingerprinted, and their information has been entered into a government database. The program has created a climate of fear and suspicion in Arab and Muslim communities.
It is estimated that about 14,000, many of them Pakistanis and Indians, have been arrested and placed in deportation proceedings through this program, though none of them have been charged with terrorism offenses. According to attorney Joe Rosen, their removal was based solely on the fact that they had overstayed their visas. "Thousands of Europeans, Africans, and South and Central Americans are in the U.S. as overstays. Unlike the South Asians and Middle Easterners, they are not uniformly put into removal?" he observes. In 2003, after it had been roundly ridiculed as a failed and unfair program, the Department announced that it would discontinue NSEERS.
According to Kuck, another area of poor enforcement that routinely impacts South Asians has to do with the high number of small business owners in this group. "There are many South Asians who have applied for the 245-I labor certifications. These are employers at convenience stores and other type of small operations. Immigration decided to take a very aggressive stance after the labor certifications were approved. They were looking at the ability of those companies to pay the wages of their workers without recognizing that most companies minimize their net income for tax purpose – a legitimate, legal way to do it. But by doing so, while they were minimizing taxes, they were also unable to show that they can pay the wages. So, many folks who try to legalize their status through the labor certification process are foiled in their attempt by an over aggressive interpretation of the law; and I think the South Asians were specifically negatively impacted by it," says Kuck.
The profiling, bias and discrimination is much broader than ill-conceived programs or certain visa categories. According to George R. Willy, "the law being what it is, on the enforcement side, there are tiers of biases. On the first tier are the Muslims. That much is clear. Then, on the second are South Asians, because they are similar looking people. It is a reflection of the bias against Muslims. They are all painted with the same brush." Parmesh Dixit feels that South Asians face higher scrutiny in the processing phase. "People from India will be more scrutinized than people from other countries that may not have the same volume [of applicants]. And volume doesn't mean fraud; but I think that's the way they take it."
Overstayed your visa? You are in trouble! Crossed the border? No worries!
A sizeable portion of the over twelve million undocumented immigrants are those who are technically described as EWIs (Entered without inspection). In other words they are the ones who came into the country illegally to begin with – by crossing over the country's porous borders. While there are many South Asians that are EWIs, the majority of them are not. Rather, they are the ones who came into the country legally but became illegal by overstaying their visas. Many, if not all, in this latter group end up taking the worst brunt of a severely dysfunctional immigration system coupled with the arbitrariness of poorly trained personnel. They are the ones who have fallen to the dreaded "undocumented" status despite their best good faith efforts to abide by the law. Far too frequently, it is the failure of the defunct system, and not the intent or actions of the immigrant, which has resulted in their status as undocumented. It is this class of the South Asian immigrants who feel that it is downright unfair that the system that seems to be giving virtually a free hand to the EWIs are so exacting with them.
Despite a national mood increasingly inimical towards undocumented immigrants, the vast numbers of EWIs find themselves largely outside the radar of law enforcement. Individually, they may be at a constant risk of deportation, but as a group they enjoy system-wide immunity, even if by omission rather than commission – thanks to political, economical and logistical factors favoring them.
The sight of millions of border-crossers living and working here with implied impunity can undermine the system in ways that are often subtle. Sam Murthy* has had a long-standing saga dealing with what used to be the INS, and later with the USICS. He came to the country in 2000 on H-1, but lost his status in less than two years on account of losing his job. After going through two attorneys and thousands of dollars, his status still remains in a flux. "One day last year I was headed to my attorney with another $500 check, and half way there I was overwhelmed knowing that there are millions of illegals living and working all around us. I was also thinking of the increasing buzz about proposals for some kind of amnesty program, and I suddenly made a decision to not spend any more time or money pursuing my hopeless file. I said to myself, whatever happens to them [the EWIs] will happen to me. At least I came in legally."
While one can empathize with Murthy's sense of resignation, abandoning one's legalization process is not a prudent choice. Moreover, not all are comfortable in drawing such distinctions between EWIs and other undocumented immigrants. Attorney Romy Kapoor cautions, "Someone who came here legally and failed to maintain their status is just as illegal as someone who came across the border. Both have violated the immigration laws of the United States. To justify in one's mind that it is okay to fall out of status because there are so many others here who have crossed the border illegally is a dangerous position to take."
Kapoor also maintains that the immigration laws are equally harsh against both groups. That being so, it is the imbalanced enforcement of those laws that creates the misplaced dual standards that are stacked against those who have overstayed their visas. Attorney Layi Eskandari feels "Immigration has had a habit of making an exception for people that come across the border and they have a difference in application of the rules when dealing with someone who has fallen out of status." Kenneth Levine is of the opinion that, at the Congressional level too, "there is a sledgehammer approach characterizing all undocumented immigrants as one, rather than looking at the reasons one may be illegal, such as bad decisions made by immigration officers."
It is as if the same system that has practically catered broad impunities to EWIs, dons on a stern cap when dealing with South Asians and others who have fallen out of status. It appears bent on penalizing those who abide by it. Attorney Sadia Subhani sees the NSEERS program as a clear validation of such paradoxical standards whereby crossing the border appears to be more beneficial than entering legally and running out of status. "When this program was instituted, only those who had entered on a valid nonimmigrant visa had to report. Those who entered through undocumented border crossing were exempt," she says. Referring to the deportations and other mistreatment suffered by thousands who came forward to register themselves in NSEERS, Joe Rosen remarks, "The tragic part is that if there is legalization [through some form of amnesty program], had they not reported themselves, they would be in a better position than they are because they obeyed the law."
Immigration blogs on the Internet are full of stories of frustrated citizens who have repeatedly reported massive illegal employment to various immigration and law enforcement agencies, with not a stir of a response from them. In striking contrast, those who enter legally are overzealously pursued, often errantly and without any regard to practical and humane considerations. On January 20, 2000, the U.S. Immigration and Naturalization Service (INS) arrested forty Indian computer professionals in San Antonio on the suspicion that they had violated their contracts. According to various news reports, armed INS officers herded all non-U.S. citizens into designated rooms, and asked to produce their work visas and passports for inspection. Forty Indian nationals were arrested, handcuffed, and forced to a humiliating march through their office building, escorted by armed guards. All of them, including two pregnant women, were denied food and bathroom breaks for hours at end. This was a case of blatant abuse of power considering that there was no wrongdoing on the part of the programmers who were later released without charges being filed.
Immigration is a foundational block of the American chapter in the lives of those who willingly uproot and displace themselves from their native lands, enticed by the promise of the great American dream. When that becomes a rude encounter for so many, it taints the great American dream. The Statue of Liberty has for generations stood as a symbol of solace for migrants from around the world. The current depressed state of this American institution seems a disgrace to Lady Liberty.
By Anu Ghosh Bharucha
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