Immigrating from Yemen: USCIS has special rules that mean a long wait in the immigration line

Many people from Mississippi may not know where Yemen is on a map.  Nevertheless, this part of the country has many immigrants from this beautiful and ancient country.  Located on the southwestern tip of the Arabian Peninsula near the horn of Africa, Yemen is a country of simple, elegant beauty, along with stark contrasts and contradictions. It is a nation dominated by Islamic law and religious dogma that, in my view, inhibits its ability to modernize and integrate itself into the world community.   However, this is not the fault of the average Yemeni.  It is simply another example of those in power who are willing to use any means necessary to maintain their power. We had our monarchs, they have their mullahs and the patronage politicians. (sound familiar?) For an excellent review of the history of Yemen and the problems that it was facing prior to 2015, please review, Lackner, Helen, et al. Why Yemen Matters, A Society in Transition. Saqi Books, 2015.

If you study the country, you will find a country that has many problems, both economic and structural, that has led to the exodus of many people from that country. Why they have chosen to immigrate to this particular part of United States is not clear to me. However many of them are successful businesses owners, family oriented and deeply religious. Despite a strong adherence to religious dogma as a general proposition, they do not even remotely resemble the hardline religious dogmatists that dominate Mississippi politics and the talk radio airwaves, e.g. American Family Radio (AFR), SuperTalk Mississippi. Not even close.  Most are significantly less dogmatic when it comes to questions of religion.  With this in mind, I generally enjoy working with them and hope to continue to do so for the foreseeable future.

When someone from Yemen wants to have a family member (spouse, child, parent, sibling) immigrate to the United States, they will face special challenges that you do not encounter when dealing with immigrants from most other countries.  When I first began working with Yemeni clients, I was taken aback by how long it took for those cases to be processed by USCIS. During this time, I dealt with the special challenges regarding family records by trying to think of new ways to approach a case early on to make the approval process proceed faster.

As I have learned over the last few years, family records in Yemen are not maintained in a centralized fashion, whether at a provincial or national level, as they are in most modern, industrialized countries. Even compared to less industrialized, developing nations, Yemen lags far behind in this respect.  When anyone applies for a relative to immigrate United States, the US government requires that certain documents be produced to prove the relationship between the citizen (or lawful permanent resident) and the intending immigrant.   This requires the family member to produce documents such as birth certificates, death certificates, marriage and divorce records, medical records, vaccination records, utility bills, land records, etc.

It goes without saying that these records must be reliable and authentic.  This is where the specific problem with documents from Yemen results in extremely long wait times.  The USCIS adjudicator manual has a special section for Yemeni cases.  As the USCIS adjudicator’s manual states:

Chapter 21.2 (c)(6)(B) – Petitions on Behalf of Aliens from Yemen.

Since civil documents concerning marriage, birth, death, etc., are often issued in Yemen based solely on information furnished by an interested party, often the petitioner or beneficiary of the petition, they are usually not considered conclusive to establish claimed relationships. Both the petitioner and beneficiary should be interviewed. The consular officer will interview the beneficiary abroad; if an interview was possible and carried out by the district office, you should attach a record of the interview with the petitioner to the petition when you forward it to the consul. However, you may only be able to solicit an affidavit from the petitioner responding to specific questions.

Families in Yemen are very close; therefore, your questions should include all the information you can develop concerning family members, including grandparents, aunts, uncles, nephews, nieces, and cousins. You should also ask questions concerning the home village in Yemen, about the house structure and livestock owned. Be on the look out for subtle differences in interviewees’ testimony. Questions might include:

  • The type of house;
  • Number of rooms and location of each;
  • Names and relationship of everyone living in the house and where they sleep; and
  • The number of cows, donkeys, sheep, goats, and other livestock owned, if any.

The usual procedure is to request the petitioner’s “A” file, and upon receipt, make a careful check of the file in reference to the claimed relationship to the beneficiary. Question the petitioner regarding any discrepancies material to the petition, and deny the petition if those discrepancies cannot be reconciled to your satisfaction.

It is clear from this directive that USCIS does not consider family records from Yemen to be reliable or authentic.  As a result, the facts contained within the documents are not reliable enough to form the legal basis for a relative to immigrate to the US.   Though I have no way to verify this, I believe that this provision was added because of the large number of forgeries that originated from Yemen in the past (this is based on a conversation I had with a UCSIS officer off the record).  The lack of a central authority and the lack of contemporaneous recording of vital events make the credibility of these documents, and the facts contained in those documents, suspect.

As a result of this special provision, when beginning a case for client from Yemen special care must be taken to provide as much information as possible about the family member and the relationship to try to make the case proceed as fast as possible. However, my concern is that despite the production of any amount of compelling, probative evidence, (even when the marriage takes place in the US) these cases will continue take considerably longer to process than most other cases. It is important for family members to know this at the beginning.

Unfortunately, there is nothing that an immigration attorney can do to make the case go faster, especially if it’s a case from Yemen.  Calling your immigration attorney every two weeks for case status update will not make your case go faster, nor is your attorney neglecting your case because he/she doesn’t have any news to report.  Clients must understand that USCIS has special provisions for Yemeni cases. This is not fair, but is a consequence of the way USCIS and the Department of State perceive the records of vital events from Yemen.  Because of the inherent lack of reliability of family records, cases from Yemen will take longer and you must be patient while your case proceeds through the process.

If you’re trying to have a family member immigrate from Yemen, the only advice that I have boils down to three things:

  1. Work hard on the front end (with an immigration attorney)
  2. Patience.
  3. If you are feeling impatient, see #2 above.

The link to the USCIS adjudicator’s manual:

https://www.uscis.gov/sites/default/files/ocomm/ilink/0-0-0-3513.html#0-0-0-387

Photograph of a U.S. Department of Homeland Security logo.
Photograph of a U.S. Department of Homeland Security logo. US Citizenship and Immigration Services (USCIS) is the federal agency that decides who is eligible to immigrate to the United States.
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Mississippi Senate Bill 2306 tells your Sheriff how to do his job

Bouc émissaire, Juden…

Here we go again. Phil Bryant (PB) and his cronies have all the answers on how to end illegal immigration.  With all the grandstanding and the dubious participation by the “Guvener” in United States v. Texas (without approval or consent of Mississippi’s top elected attorney, Jim Hood, as far as we know), the temptation to find a scapegoat for all of Mississippi’s problems knows no limits.

Senate Bill 2306, introduced by Senator Sean Tindell for Gulfport, requires all law enforcement agencies (LEA) to affirmatively notify “federal immigration authorities” (whoever that may be, there are at least five different federal agencies that could be, but who really cares anyway) that someone in their jail is “not legally present in the United States.”  I’ll call them FIAs for short, but the lack of precision in this is stunning.  I guess if you sent President Obama an email that a guy named José is in the Newton county jail that would count as notifying a FIA.  Who knows for sure.

Despite the lack of precision, this bill places a specific legal duty on your county sheriff, chief of police, state trooper, etc. to somehow let FIAs know that a person is not here in the US “legally.”  So now, the agency has to determine if someone is not legally in the US.  Last time I checked that was something that those vaguely identified FIAs had the sole authority to determine pursuant to federal law, and, by the way, the Constitution of the United States.  (like Professor Cochran used to say: Who needs a constitution among friends anyway? It just makes life harder.)

So I am at a loss as to how the LEA is supposed to determine if a person is not legally in the US.  Of course, the detainee can tell you.  But in the absence of that, how will the LEA know when and when not to “notify” the FIAs?  Doesn’t speak English?  Has darker colored skin? Doesn’t have any identification?  Has a weird last name?  Exercises his 5th amendment right to remain silent? Can’t tell you who won the World Series last year? Doesn’t celebrate Confederate Pride Month (CPM) in April?  I simply don’t know.

Then the bill goes on to require the LEA to “fully honor” a detainer placed by FIAs.  Again the lack of precision makes this bill fertile ground for abuse.  I suspect that the word “detainer” refers to DHS Form I-247, Immigration Detainer-Notice of Action that requests a LEA to “Maintain Custody of Alien for a Period not to exceed 48 hours.”  Federal case law as well as precedent from SCOTUS has held that Form I-247 is merely a request and is not mandatory. See, Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) (citing, Printz v. United States, 521 U.S. 898 (1997) that struck down most of the Brady Bill as violating the 10th amendment).  To hold otherwise would be tantamount to the federal government nationalizing the state police.  I doubt PB would go for that given his love for President Obama and Attorney General Loretta Lynch.

So, this bill scuttles the distinction between the federal and state spheres of authority over the detention of criminal defendants in county jails and effectively deputizes state LEAs as extensions of the Federal Government.  So, now your local sheriff is no longer allowed to exercise his/her professional judgment as to whom to keep in his/her jail.  The sheriff is now a de facto immigration officer thanks to this unnecessary piece of political theater.

Of course, SB 2306 will be enforced consistent with federal law and “protecting the civil rights of all persons.”  Why is this in there?  Isn’t that always the case?  Do LEAs need to be reminded that they are sworn to protect the civil rights and dignity of ALL persons?  Have we become such a police state that we have to legislate what the constitution already requires?  My thought is that there is a perception out there that persons who are not “legally present” in the US have no rights whatsoever and cannot complain later if they are not treated the same as others.  “Those” illegals have no rights!  There illegal!  The Constitution doesn’t apply to them!  Thanks for reinforcing that idea, PB and Senator Tindell.

Under federal law, a LEA is only required to keep a suspected alien for 48 hours if it chooses to do so.  If a LEA detains a person beyond this time, the LEA and the individual officers are subject to liability for violating federal civil rights statutes, even if the detainee is not legally present in the US.  So, despite the dubious need for this legislation, if a LEA detains someone beyond 48 hours, it does so at its peril and SB 2306 will not immunize the LEA against liability despite its attempt to do so in section 4 of the bill.

The last clause of section three states: “and respecting the privileges and immunities of United States citizens.”  What the ___ does this mean?  Oh, I guess it would not be good if a FIA deported a US citizen.  That never happens because LEAs are provided with so much guidance on how to determine if someone is legally present in the good ole USA.

Reality check:  FIAs deport as many as 4000 US citizens each year.  FIAs have deported US citizens despite clear and obvious evidence of US citizenship.  The FIAs and the LEAs have been sued and paid out large settlements for their blatant disregard for basic human rights.  It is hard to distinguish between incompetence and outright willfulness in those cases, but SB 2306 certainly doesn’t provide any guidance on the issue.

If you want to protect your basic human rights you must protect the basic human rights of all persons, citizens and non-citizens.  History is replete with politicians finding a venerable group to blame for all that is wrong.  Mississippi has bigger problems than illegal immigration.  The story is different for border states like Texas and Arizona, but Mississippi’s foray into this issue is simply political scapegoating and the use fear as a means of political power.  Beware the politician selling fear.  She is selling snake oil that doesn’t cure anything.  Likewise, SB 2306 does nothing to solve the problem of illegal immigration.  Violent criminals who are US citizens are let out of jail all the time and go on to commit other heinous crimes as well.  The connection between illegal immigration and violent crime in general is the very definition of a non sequitur.

Mississippi has a dreadful history with regard to human rights and therefore has a special duty to be exceedingly vigilant guarding those rights of all people.  In 2016, poverty is rampant in large parts of the state, on par with many third world countries.  I have been told by immigrants from Mexico that they would rather live in Mexico than live in certain parts of Mississippi because the standard of living is higher in Mexico.  Not something to be proud of folks.

So, maybe our time would be better spent regulating fantasy football or celebrating CPM?

Tchüss!

James P. Tinsley, Esq.