By Kathleen Lord Black, Immigration Attorney
When a non-citizen is applying for a visa to visit the United States, he/she must be “admissible”. An admissible person has no conditions or characteristics which the U.S. government deems undesirable. Likewise, an “inadmissible” person falls into one of the categories of people that that the U.S. government seeks to exclude from entering the United States. These categories include people with various physical and mental disorders, people who have committed crimes, and people who have participated in activities the government deems subversive.
When a person who is seeking entrance into the United States, either on a permanent or temporary basis, falls into one of the categories of inadmissibility, he/she must either prove that inadmissibility does not apply in his/her case, or he/she must obtain a waiver (which is like a pardon). Waivers are not available for all the grounds of inadmissibility, as discussed below.
For instance, imagine a situation in which a man from Yemen (whose name is Fuad) comes to the United States as a visitor. He overstays his visa and remains in the United States for 2 years. Fuad then returns to Yemen to visit his family. He again wants to return to his second home in California, where he has a job and an apartment. When Fuad applies for a visitor’s visa at the consulate in Sanaa, he is refused. He has broken U.S. immigration laws by overstaying his visa. The consulate will not give Fuad a visa unless Fuad can prove that he is eligible for a waiver (a pardon) for violating U.S. immigration laws. How can he be eligible for a waiver? Unless Fuad has a wife or child in the United States who will suffer extreme hardship should Fuad not be allowed to return to the United States, Fuad will be denied a visa. In addition, since Fuad has been out of status for more than one year, unless he can obtain a waiver, he will be prevented from returning to the United States for 10 years.
The 1996 Immigration Reform law made many changes to the Immigration code. One of these changes is the “summary exclusion” law. This law empowers an immigration inspector at the airport to exclude and deport someone who is seeking admission to the U.S. without allowing the person the right to explain his/her case to an immigration judge. Under this law, if the inspector at the airport thinks a person seeking admission is making a misrepresentation about anything connected to his/her purpose in coming to the U.S., intent to return to his/her home country, or prior immigration history, the officer will exclude that person. Moreover, the person may not request entry for five years, unless a special waiver is granted.
Because of these harsh results, it is very important to understand the terms of your requested status (i.e., understand what you must need for the type of visa you are requesting). Never make any representations or use false documents.
If you are found by the officer to be inadmissible, you may request to withdraw your application to enter the U.S. in order to prevent having the five-year deportation order on your record. The immigration officer may allow you to do this in some cases.
Certain grounds for inadmissible cannot be overcome by a waiver. These grounds include (1) persons who have made false claims to U.S. citizenship, (2) persons who improperly obtain student status to attend a public elementary school or adult education program, or transfer from a private to a public program except as permitted, (3) persons who were previously deported and who subsequently attempt to enter the U.S. without permission, (4) stowaways, (5) draft evaders, (6) drug abusers or addicts, (7) drug traffickers, (8) spies and terrorists, etc.
As you can see, overcoming a ground of inadmissibility can be complicated. You will need to consult an experienced immigration attorney who will be able to analyze both the applicable immigration law and the maze of criminal laws that apply in a given case.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
Thursday, February 25, 2010
Marriage Bona Fides Checklist
Prepared by Kathleen Lord-Black, Immigration Attorney
In every marriage-to-foreigner case, the Immigration Service will be closely examining affidavits and other documents that may prove that the marriage was entered into in good faith, and not solely for immigration benefits. The below checklist will be useful in gather such evidence.
Evidence needed to prove good-faith marriage, per Matter of Laureano, 19 I&N Dec. 1 (1983), includes the following which must be in the names of both spouses:
1. insurance policies
2. tax returns
3. bank accounts, lease, utility bills, credit cards
4. correspondence from one spouse to another before marriage
5. photos of the couple before and after marriage, and at marriage ceremony
6. notarized letters or affidavits from family, friends, or acquaintances stating how they know the couple, how long they have known the couple, and whether they believe the marriage is a valid, good-faith marriage (sample letter below)
Name
Address
Phone Number
Date
To Whom it may Concern:
I have known (couples' names) since (date). I saw them as a couple before their marriage (when? where?)and know that they knew each other before their wedding. (If this is the case.) I have visited them at their home (or have been in contact with them since their wedding) and know that they have a home together and are sharing a life together. (State any other reason why you think the marriage is a real one.) I state under penalty of perjury that the above is true and correct.
Signature (notarized)
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
In every marriage-to-foreigner case, the Immigration Service will be closely examining affidavits and other documents that may prove that the marriage was entered into in good faith, and not solely for immigration benefits. The below checklist will be useful in gather such evidence.
Evidence needed to prove good-faith marriage, per Matter of Laureano, 19 I&N Dec. 1 (1983), includes the following which must be in the names of both spouses:
1. insurance policies
2. tax returns
3. bank accounts, lease, utility bills, credit cards
4. correspondence from one spouse to another before marriage
5. photos of the couple before and after marriage, and at marriage ceremony
6. notarized letters or affidavits from family, friends, or acquaintances stating how they know the couple, how long they have known the couple, and whether they believe the marriage is a valid, good-faith marriage (sample letter below)
Name
Address
Phone Number
Date
To Whom it may Concern:
I have known (couples' names) since (date). I saw them as a couple before their marriage (when? where?)and know that they knew each other before their wedding. (If this is the case.) I have visited them at their home (or have been in contact with them since their wedding) and know that they have a home together and are sharing a life together. (State any other reason why you think the marriage is a real one.) I state under penalty of perjury that the above is true and correct.
Signature (notarized)
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
How to Prepare for Your Marriage Fraud Interview
By Kathleen Lord-Black, Esq.
This article concerns primarily marriage cases, i.e., those cases in which a United States citizen marries a foreign national, files all the necessary papers for sponsoring his/her foreign spouse, and has received an appointment for an interview.
The interview notice is usually sent by mail. Therefore, it is essential that Immigration have your current address. Federal mail is not forwarded, and your appointment notice may be returned to Immigration undelivered, resulting in denial of your application based on abandonment. The interview is called the marriage fraud interview. If the interview date is not convenient, you may write or call the number listed on the form to reschedule the interview.
At the interview, the Immigration officer will ask questions in order to determine whether your marriage appears to be a true marriage, and not for the purposes of obtaining immigration benefits. These questions may include (1) all the questions on the Form I-130 you had previously filed, (2) descriptions of the documentation submitted with the I-130 and other forms, and/or (3) questions about your marriage itself.
Questions about the marriage are designed to determine whether a normal and valid family life exists. The Immigration officer is looking for a traditional marriage, and traditional family values. A prenuptial agreement, for example, shows separateness of assets and separate lives. It may be detrimental to proving a normal and valid family life. The officers are looking for shared risks and responsibilities, not preservation of individual assets at anticipated divorce or separation.
Questions an officer may ask at a marriage fraud interview may include:
What does he/she like for breakfast?
Who makes breakfast in the morning? Who does the dishes?
What does his/her father like to do with his/her spare time?
When is the last time you spoke to your in-laws?
Who knows about your marriage?
Do both families know each other? Were they present at the marriage?
What is his/her favorite food?
When is his/her birthday?
The officer may separate you and ask each of you the same question to see if you both give the same answer. If you each answer the question differently, you should be given a chance to explain the differences in your answers when you are brought back together.
The Immigration officer may videotape or record the interview.
Beware of the penalties of marriage fraud, including prison and fines. Immigration marriage fraud interviewers are skilled at detecting fraud, and it is very difficult to pass the marital interview unless there is a verifiable personal relationship.
Good ways to document and verify the marriage include (1) putting utility bills and property in both your names, (2) keeping a joint bank account and joint credit cards, (2) have both of your names on your lease or mortgage, (3) subscribe to magazines or newspapers in both your names listed above your home address, and (4) have joint insurance policies for health, auto, and life.
In addition, sworn affidavits from friends and family can help prove that you have a valid marriage. These affidavits are simply letters describing your marriage that are signed before a notary and contain a declaration stating under penalty of perjury that the information in the letter is true and correct.
Photographs of you and your spouse together are also very important. You should document your life with your spouse in photographs from the time you first met, through your wedding day, and until your spouse is granted full permanent residency. Whether you have a big wedding or you elope, you must take pictures of your wedding day. Take pictures of you with your spouse, but also take pictures of the friends and family members who attended your wedding. Photographs of you with your spouse in your daily lives together with friends and family in different places at different times show that you have a personal relationship with your spouse and his/her family.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
This article concerns primarily marriage cases, i.e., those cases in which a United States citizen marries a foreign national, files all the necessary papers for sponsoring his/her foreign spouse, and has received an appointment for an interview.
The interview notice is usually sent by mail. Therefore, it is essential that Immigration have your current address. Federal mail is not forwarded, and your appointment notice may be returned to Immigration undelivered, resulting in denial of your application based on abandonment. The interview is called the marriage fraud interview. If the interview date is not convenient, you may write or call the number listed on the form to reschedule the interview.
At the interview, the Immigration officer will ask questions in order to determine whether your marriage appears to be a true marriage, and not for the purposes of obtaining immigration benefits. These questions may include (1) all the questions on the Form I-130 you had previously filed, (2) descriptions of the documentation submitted with the I-130 and other forms, and/or (3) questions about your marriage itself.
Questions about the marriage are designed to determine whether a normal and valid family life exists. The Immigration officer is looking for a traditional marriage, and traditional family values. A prenuptial agreement, for example, shows separateness of assets and separate lives. It may be detrimental to proving a normal and valid family life. The officers are looking for shared risks and responsibilities, not preservation of individual assets at anticipated divorce or separation.
Questions an officer may ask at a marriage fraud interview may include:
What does he/she like for breakfast?
Who makes breakfast in the morning? Who does the dishes?
What does his/her father like to do with his/her spare time?
When is the last time you spoke to your in-laws?
Who knows about your marriage?
Do both families know each other? Were they present at the marriage?
What is his/her favorite food?
When is his/her birthday?
The officer may separate you and ask each of you the same question to see if you both give the same answer. If you each answer the question differently, you should be given a chance to explain the differences in your answers when you are brought back together.
The Immigration officer may videotape or record the interview.
Beware of the penalties of marriage fraud, including prison and fines. Immigration marriage fraud interviewers are skilled at detecting fraud, and it is very difficult to pass the marital interview unless there is a verifiable personal relationship.
Good ways to document and verify the marriage include (1) putting utility bills and property in both your names, (2) keeping a joint bank account and joint credit cards, (2) have both of your names on your lease or mortgage, (3) subscribe to magazines or newspapers in both your names listed above your home address, and (4) have joint insurance policies for health, auto, and life.
In addition, sworn affidavits from friends and family can help prove that you have a valid marriage. These affidavits are simply letters describing your marriage that are signed before a notary and contain a declaration stating under penalty of perjury that the information in the letter is true and correct.
Photographs of you and your spouse together are also very important. You should document your life with your spouse in photographs from the time you first met, through your wedding day, and until your spouse is granted full permanent residency. Whether you have a big wedding or you elope, you must take pictures of your wedding day. Take pictures of you with your spouse, but also take pictures of the friends and family members who attended your wedding. Photographs of you with your spouse in your daily lives together with friends and family in different places at different times show that you have a personal relationship with your spouse and his/her family.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
How and When to Replace a Green Card
By Kathleen Lord-Black, Immigration Attorney
In the old days, a green card (also referred to as a Permanent Residency Card or I-551) was actually green, and had no expiration date. Now green cards expire every 10 years and must be replaced. This article will explain why both old and newer green cards that are about to expire should be replaced or renewed as soon as possible.
It is important to note that an expired green card does not mean that permanent residency status has expired. If, for instance, Customs and Border Patrol (CBP) encounters a person who has an expired 10-year green card at the border, they will furnish him/her with information on how to replace the green card, and will take no further action.
A green card is proof of permanent resident status in the United States, serves as valid identification, and serves as proof that an individual is eligible to live and be employed in the U.S. It is important to keep the green card up-to-date because, without a valid card, it may be difficult to prove permanent residency, and it may be affect an individual's ability to travel or prove eligibility to be employed in the U.S.
Green cards should be renewed as soon as possible because of pending rules promulgated by the United States Citizenship and Naturalization Service (USCIS) that are in the comment period until September 21, 2007. USCIS is seeking to require replacement of all of the older green cards that do not have expiration dates with cards that expire within 10 years. This will lead to an avalanche of applications and slower processing times. Those with expired cards (an estimated 750,000 filers) should apply early to beat the rush. USCIS itself, in its proposal, encourages early filing. Form I-90, which is the application to replace permanent resident card, is filed in order to renew or replace a green card. This form can be found on the Internet at www.uscis.gov. In many cases, the I-90 can be filed electronically on the USCIS website.
Be aware of Permanent Residency Cards that are valid for only two years. These are conditional Permanent Residency Cards and cannot be renewed. A conditional green card requires filing a petition to remove the conditions of permanent residency within 90 days of the expiration date of the conditional green card. This scenario occurs most often in marriage-to-foreigner cases in which the couple has been married for less than two years when their application is approved. The foreign spouse is initially given a conditional green card, with the advisement that a petition must be filed one year and nine months after the conditional green card has been issued. This creates a three-month window of time in which to file to remove the conditions of permanent residency. Both the foreign spouse and the sponsoring spouse sign the petition jointly.
In some cases, the parties divorce or the U.S. spouse simply refuses to cooperate. Then the foreign spouse must file for the permanent green card him/herself. However, the foreign spouse must first show one of the following three things:
1. That the couple have divorced, but their marriage was initially entered into in good faith; or
2. The deportation of the foreign spouse will cause the foreign spouse extreme hardship, greater than that suffered by most people who are deported; or
3. The foreign spouse was abused by his/her U.S.-citizen or green card-holding spouse
In addition, if the three-month window of time is missed, the foreign spouse will lose his/her permanent residency status and may find him/herself in front of an Immigration Judge in removal proceedings. Form I-751 is the Petition to Remove Conditions of Residence, and is found on the Internet on the USCIS website, www.uscis.gov.
If permanent residency status was based upon being an investor/entrepreneur, the individual must file Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Residency.
A green card needs to be replaced (not simply renewed) if it is ever lost, stolen, or damaged. Also, if a permanent resident obtained a green card before the age of 14, he/she is required to replace his/her green card after turning 14.
The filing fee for the I-90 (Application to Replace Permanent Residence Card) varies according to the reason for filing the card, and the age of the applicant. In general, the fee is now $290, plus a biometrics (fingerprint) fee of $80. Also be aware that there are a number of service centers where the I-190 can be filed, depending upon the reason for filing. An application sent to the wrong service center will be rejected, and will probably be returned to the sender at a much later date.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
In the old days, a green card (also referred to as a Permanent Residency Card or I-551) was actually green, and had no expiration date. Now green cards expire every 10 years and must be replaced. This article will explain why both old and newer green cards that are about to expire should be replaced or renewed as soon as possible.
It is important to note that an expired green card does not mean that permanent residency status has expired. If, for instance, Customs and Border Patrol (CBP) encounters a person who has an expired 10-year green card at the border, they will furnish him/her with information on how to replace the green card, and will take no further action.
A green card is proof of permanent resident status in the United States, serves as valid identification, and serves as proof that an individual is eligible to live and be employed in the U.S. It is important to keep the green card up-to-date because, without a valid card, it may be difficult to prove permanent residency, and it may be affect an individual's ability to travel or prove eligibility to be employed in the U.S.
Green cards should be renewed as soon as possible because of pending rules promulgated by the United States Citizenship and Naturalization Service (USCIS) that are in the comment period until September 21, 2007. USCIS is seeking to require replacement of all of the older green cards that do not have expiration dates with cards that expire within 10 years. This will lead to an avalanche of applications and slower processing times. Those with expired cards (an estimated 750,000 filers) should apply early to beat the rush. USCIS itself, in its proposal, encourages early filing. Form I-90, which is the application to replace permanent resident card, is filed in order to renew or replace a green card. This form can be found on the Internet at www.uscis.gov. In many cases, the I-90 can be filed electronically on the USCIS website.
Be aware of Permanent Residency Cards that are valid for only two years. These are conditional Permanent Residency Cards and cannot be renewed. A conditional green card requires filing a petition to remove the conditions of permanent residency within 90 days of the expiration date of the conditional green card. This scenario occurs most often in marriage-to-foreigner cases in which the couple has been married for less than two years when their application is approved. The foreign spouse is initially given a conditional green card, with the advisement that a petition must be filed one year and nine months after the conditional green card has been issued. This creates a three-month window of time in which to file to remove the conditions of permanent residency. Both the foreign spouse and the sponsoring spouse sign the petition jointly.
In some cases, the parties divorce or the U.S. spouse simply refuses to cooperate. Then the foreign spouse must file for the permanent green card him/herself. However, the foreign spouse must first show one of the following three things:
1. That the couple have divorced, but their marriage was initially entered into in good faith; or
2. The deportation of the foreign spouse will cause the foreign spouse extreme hardship, greater than that suffered by most people who are deported; or
3. The foreign spouse was abused by his/her U.S.-citizen or green card-holding spouse
In addition, if the three-month window of time is missed, the foreign spouse will lose his/her permanent residency status and may find him/herself in front of an Immigration Judge in removal proceedings. Form I-751 is the Petition to Remove Conditions of Residence, and is found on the Internet on the USCIS website, www.uscis.gov.
If permanent residency status was based upon being an investor/entrepreneur, the individual must file Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Residency.
A green card needs to be replaced (not simply renewed) if it is ever lost, stolen, or damaged. Also, if a permanent resident obtained a green card before the age of 14, he/she is required to replace his/her green card after turning 14.
The filing fee for the I-90 (Application to Replace Permanent Residence Card) varies according to the reason for filing the card, and the age of the applicant. In general, the fee is now $290, plus a biometrics (fingerprint) fee of $80. Also be aware that there are a number of service centers where the I-190 can be filed, depending upon the reason for filing. An application sent to the wrong service center will be rejected, and will probably be returned to the sender at a much later date.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
Using the Freedom of Information Act
By Kathleen Lord Black, Immigration Attorney
The Freedom of Information Act (also called “FOIA”) is a federal law that was enacted in 1966. It establishes the public’s right to obtain information from federal government files. Any person can file a FOIA request for a copy of a government agency’s file, as long as the files are not classified for secrecy. This means that even non-citizens can make a request for a copy of a government file through FOIA. In 1974, after the Watergate scandal, the Freedom of Information Act was amended to force greater agency compliance with requests for information from federal agencies. FOIA was again amended in 1996 to allow for greater electronic access to information, and to allow the government 20 days in which to respond to a FOIA request for information.
The Freedom of Information Act tries to strike a balance between the need for protection of sensitive government information and the interests of private individuals who have an inherent right to known what the government knows about them. The Privacy Act of 1974 also addresses this issue, as it too tries to balance government and private interests when responding to the requests of individuals who wish to look at their government files.
There are nine exemptions to the Freedom of Information Act. These exemptions forbid private individuals from obtaining certain information that is in the hands of federal government agencies. Most of the problems and discrepancies with FOIA center around these exemptions, as individuals feel these exemptions abridge the personal right to know what is in one’s government file.
FOIA applies only to federal government agencies, such as the Department of Homeland Security (DHS). Every non-citizen and naturalized citizen should make a FOIA request in order to obtain a copy of his or her DHS file. The information in an individual’s file will help in sponsoring relatives from abroad, for instance, and is necessary in defending oneself against deportation, should the need arise.
Federal government agencies are mandated by FOIA to comply with public requests for information. They must make the application procedure both public and accessible, so that the public may petition for the documents they request relatively easily. If the government agency does not make it reasonably easy to obtain information from its files, FOIA imposes penalties on the agency for hindering the process of petitioning for information. FOIA provides for recourse to a Federal court is there is any possibility of tampering or delaying in the sending of requested records.
The government agency, on the other hand, can rely on one of the nine exemptions to a FOIA request. These nine exemptions range from a withholding of information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “clearly unwarranted invasion of personal privacy.” The President of the U.S. has virtually unlimited power in declaring something off-limits and can classify any FOIA request as an unwarranted national safety concern.
In the immigration context, Immigration Attorney Leon Wildes used a FOIA request to help his clients John Lennon and Yoko Ono obtain permanent residence status He used of the new Freedom of Information Act in order to uncover a government plot against John Lennon. Mr. Wildes states:
“By the [deportation] hearing date, I had still received no opposing affidavits from the government. It was strange, because in my affidavit requesting the injunction, I alleged that there was a government conspiracy to remove Lennon for political reasons.
Later, I uncovered documents, under the Freedom of Information Act, that showed that Lennon was being selectively prosecuted for political purposes by the Nixon administration. A memo dated February 4, 1972, was forwarded to former Attorney General John Mitchell and Bill Timmons of the White House by Sen. Strom Thurmond, describing Lennon as a threat to the US government and the reelection campaign of Richard Nixon because of Lennon's affiliations with members of the Radical Left, which was then trying to stimulate voter registration of 18-year-olds. The presidential election in 1972 was the first one in which 18-year-olds could vote, making 18- to 20-year-olds a very important constituency. I also uncovered a memo in which Marks is advised by Washington to deny all applications, to revoke the Lennon’s' voluntary departure privilege, and to schedule the deportation hearing for March 16, 1972--strong evidence of prejudgment of the case for political purposes.”
After a four-year struggle, John Lennon eventually obtained his green card. Cruelly and ironically, however, he was later shot to death in the new country he embraced -- a country that both welcomed and repelled him.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
The Freedom of Information Act (also called “FOIA”) is a federal law that was enacted in 1966. It establishes the public’s right to obtain information from federal government files. Any person can file a FOIA request for a copy of a government agency’s file, as long as the files are not classified for secrecy. This means that even non-citizens can make a request for a copy of a government file through FOIA. In 1974, after the Watergate scandal, the Freedom of Information Act was amended to force greater agency compliance with requests for information from federal agencies. FOIA was again amended in 1996 to allow for greater electronic access to information, and to allow the government 20 days in which to respond to a FOIA request for information.
The Freedom of Information Act tries to strike a balance between the need for protection of sensitive government information and the interests of private individuals who have an inherent right to known what the government knows about them. The Privacy Act of 1974 also addresses this issue, as it too tries to balance government and private interests when responding to the requests of individuals who wish to look at their government files.
There are nine exemptions to the Freedom of Information Act. These exemptions forbid private individuals from obtaining certain information that is in the hands of federal government agencies. Most of the problems and discrepancies with FOIA center around these exemptions, as individuals feel these exemptions abridge the personal right to know what is in one’s government file.
FOIA applies only to federal government agencies, such as the Department of Homeland Security (DHS). Every non-citizen and naturalized citizen should make a FOIA request in order to obtain a copy of his or her DHS file. The information in an individual’s file will help in sponsoring relatives from abroad, for instance, and is necessary in defending oneself against deportation, should the need arise.
Federal government agencies are mandated by FOIA to comply with public requests for information. They must make the application procedure both public and accessible, so that the public may petition for the documents they request relatively easily. If the government agency does not make it reasonably easy to obtain information from its files, FOIA imposes penalties on the agency for hindering the process of petitioning for information. FOIA provides for recourse to a Federal court is there is any possibility of tampering or delaying in the sending of requested records.
The government agency, on the other hand, can rely on one of the nine exemptions to a FOIA request. These nine exemptions range from a withholding of information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “clearly unwarranted invasion of personal privacy.” The President of the U.S. has virtually unlimited power in declaring something off-limits and can classify any FOIA request as an unwarranted national safety concern.
In the immigration context, Immigration Attorney Leon Wildes used a FOIA request to help his clients John Lennon and Yoko Ono obtain permanent residence status He used of the new Freedom of Information Act in order to uncover a government plot against John Lennon. Mr. Wildes states:
“By the [deportation] hearing date, I had still received no opposing affidavits from the government. It was strange, because in my affidavit requesting the injunction, I alleged that there was a government conspiracy to remove Lennon for political reasons.
Later, I uncovered documents, under the Freedom of Information Act, that showed that Lennon was being selectively prosecuted for political purposes by the Nixon administration. A memo dated February 4, 1972, was forwarded to former Attorney General John Mitchell and Bill Timmons of the White House by Sen. Strom Thurmond, describing Lennon as a threat to the US government and the reelection campaign of Richard Nixon because of Lennon's affiliations with members of the Radical Left, which was then trying to stimulate voter registration of 18-year-olds. The presidential election in 1972 was the first one in which 18-year-olds could vote, making 18- to 20-year-olds a very important constituency. I also uncovered a memo in which Marks is advised by Washington to deny all applications, to revoke the Lennon’s' voluntary departure privilege, and to schedule the deportation hearing for March 16, 1972--strong evidence of prejudgment of the case for political purposes.”
After a four-year struggle, John Lennon eventually obtained his green card. Cruelly and ironically, however, he was later shot to death in the new country he embraced -- a country that both welcomed and repelled him.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
Your Criminal Record
By Kathleen Lord Black, Immigration Attorney
If you have ever been taken into custody by the police, you have a criminal record. The record begins with the “mug shots” and fingerprints that were taken by the police. The record will also contain other information about you as a person as well as a summary of all your encounters with the justice system. The summary of your encounters with the police and the courts is called a “rap sheet” and contains a summary of your arrests, including the charges and sentences, fingerprint identification number Criminal Identification Information (CII) number, FBI number, Social Security number, and California driver’s license number.
Your record is sent to the state and federal agencies that keep criminal records. All California criminal records are kept by the State Department of Justice. National criminal records are kept by the FBI. You are entitled to have accurate records on file, but the California Department of Justice has been known to be slow to update criminal records to show dismissed charges and correct clerical errors. The FBI is apparently even worse in the area of correcting and updating criminal records.
Because of the likelihood that your criminal record may not be accurate, you should know (1) what your criminal record looks like, (2) where it is kept, and (3) who has authority to look at your criminal record.
You can get a copy of your criminal record in order to see what is on it and to check for errors. You can request your record from the FBI by sending them a letter asking for it, along with a copy of your fingerprints and a fee. California criminal records can be obtained from the California Department of Justice by filling out a form and returning it with a fee.
Your criminal records are not public record. They can only be released to a restricted group of individuals or agencies. For instance, if you are applying for a job, your potential employer cannot require you to get a copy of your criminal record as a condition of employment. However, if you are applying for a job as a policeman, in the courts, as a prosecutor, or in the probation and parole departments, these agencies are tied into the criminal justice system and can obtain access to your criminal record. Likewise, if you are applying for a job where you will been taking care of children or for certain security-related jobs, your potential employer may obtain your records from the California Department of Justice.
If you were convicted of crimes as a juvenile, the privacy of your juvenile court records is somewhat more protected than the records of adult offenders. However, if a juvenile court concludes that you have committed a felony, the judge in your case will report your felony conviction to the California Department of Justice, which will make it available for inspection, as it would with any adult record. The court will also notify the sheriff in the county where the crime occurred and also in the county where you now life, and the sheriff can notify other law enforcement agencies. Minors 14 years old or older who have committed serious felonies may have their name and crimes disclosed by law enforcement upon request to any “interested persons” (i.e., anyone in the public who has some legitimate interest in knowing your criminal record).
It is important to note that the California Department of Justice has an ongoing program of destroying records after from 2 to 10 years, depending on the offense. Therefore, when you request your record, you may receive a response that no record exists. This does not mean that you no longer have a criminal record. You should seek the advice of an experienced attorney to try to obtain the record, and have the record sealed, expunged or destroyed.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
If you have ever been taken into custody by the police, you have a criminal record. The record begins with the “mug shots” and fingerprints that were taken by the police. The record will also contain other information about you as a person as well as a summary of all your encounters with the justice system. The summary of your encounters with the police and the courts is called a “rap sheet” and contains a summary of your arrests, including the charges and sentences, fingerprint identification number Criminal Identification Information (CII) number, FBI number, Social Security number, and California driver’s license number.
Your record is sent to the state and federal agencies that keep criminal records. All California criminal records are kept by the State Department of Justice. National criminal records are kept by the FBI. You are entitled to have accurate records on file, but the California Department of Justice has been known to be slow to update criminal records to show dismissed charges and correct clerical errors. The FBI is apparently even worse in the area of correcting and updating criminal records.
Because of the likelihood that your criminal record may not be accurate, you should know (1) what your criminal record looks like, (2) where it is kept, and (3) who has authority to look at your criminal record.
You can get a copy of your criminal record in order to see what is on it and to check for errors. You can request your record from the FBI by sending them a letter asking for it, along with a copy of your fingerprints and a fee. California criminal records can be obtained from the California Department of Justice by filling out a form and returning it with a fee.
Your criminal records are not public record. They can only be released to a restricted group of individuals or agencies. For instance, if you are applying for a job, your potential employer cannot require you to get a copy of your criminal record as a condition of employment. However, if you are applying for a job as a policeman, in the courts, as a prosecutor, or in the probation and parole departments, these agencies are tied into the criminal justice system and can obtain access to your criminal record. Likewise, if you are applying for a job where you will been taking care of children or for certain security-related jobs, your potential employer may obtain your records from the California Department of Justice.
If you were convicted of crimes as a juvenile, the privacy of your juvenile court records is somewhat more protected than the records of adult offenders. However, if a juvenile court concludes that you have committed a felony, the judge in your case will report your felony conviction to the California Department of Justice, which will make it available for inspection, as it would with any adult record. The court will also notify the sheriff in the county where the crime occurred and also in the county where you now life, and the sheriff can notify other law enforcement agencies. Minors 14 years old or older who have committed serious felonies may have their name and crimes disclosed by law enforcement upon request to any “interested persons” (i.e., anyone in the public who has some legitimate interest in knowing your criminal record).
It is important to note that the California Department of Justice has an ongoing program of destroying records after from 2 to 10 years, depending on the offense. Therefore, when you request your record, you may receive a response that no record exists. This does not mean that you no longer have a criminal record. You should seek the advice of an experienced attorney to try to obtain the record, and have the record sealed, expunged or destroyed.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
Origins of U.S. Immigration
By Kathleen Lord Black, Immigration Attorney
The United States is a country of immigrants. Very few people in the United States can trace their ancestry to a Native American source. Over the last 200 years, the regulations concerning who can come to the United States, and who can stay, have become more and more complex. In general, the regulation of immigration has been solely a function of the federal government, and reflects the times in which the regulations were passed.
During the first 100 years (from 1776 to 1875), there was very little regulation of immigration in the United States. From 1776 until 1790, there was an “open door” policy in which virtually anyone could come to the United States and become a citizen. Congress even passed legislation encouraging immigration. The first immigration restrictions appeared in 1875, when Congress passed statutes excluding convicts and prostitutes from immigration to the U.S. A few years later, the first general federal immigration law was passed. It included a tax of 50 cents per immigrant, and excluded “idiots, lunatics, convicts, and persons likely to become public charges.”
American Immigration laws reflect the fears and changes in American society of the time. The Gold Rush of the 1850’s happened at a time of political turmoil and poverty in China, as the old empire collapsed in that country. Chinese flocked to American in search of opportunities. In California, the Chinese newcomers soon became an exploited work force; but their wages in California were still higher than what they could earn in China. Many Chinese became miners and worked on the railroads; and some developed the laundry business, which was very much in demand in the overpopulated San Francisco of the Gold Rush era.
Resentment against the Chinese grew for over thirty years. The Chinese faced discrimination from many groups, including American miners, who felt that the hard-working and low-paid Chinese were reducing their wages and taking their jobs. White miners and prospectors imposed taxes and laws to inhibit the Chinese from success in their business ventures. By 1882, the Chinese were hated enough to be banned from immigrating to the United States, and the Chinese Exclusion Act, initially to last only10 years, was extended indefinitely. It was not repealed until 1943. The Chinese Exclusion Act was the first immigration law passed in the U.S. that targeted a specific ethnic group.
Over the years, the list of excludable aliens grew. In 1885, laws were passed to exclude cheap foreign labor. In 1891, aliens with contagious diseases, criminals, polygamists, and paupers were excluded. In 1903, the fear of anarchists (the terrorists of the early 1900’s) led to their exclusion, along with “epileptics, insane persons, and professional beggars.”
Anti-Chinese sentiment in the U.S. was still strong in 1917 when the Asiatic Barred Zone Act was passed. This law was passed over President Wilson’s veto and barred all Asians except the Japanese from entering the United States. As times and fortunes changed, the Chinese became allies of the U.S. during World War II, and the Japanese who had immigrated to the United States and their U.S. citizen families were subjected to internment in relocation camps throughout the United States.
The large-scale immigration of persons from Southern and Eastern Europe led to the establishment of a national origin quota system. The fear was that Southern and Eastern Europeans would inundate the United States and take over the country. Only 3% of the number of foreign-born persons from certain countries could immigrate under the new laws. This quota did not include persons from the Western Hemisphere, and continued to completely bar the Chinese from immigrating to the U.S. The quota system still remains, but in 1965 it was modified to no longer base quotas on racial or national origins. Quotas were changed to be by hemisphere. Discrimination due to race and national origin is unconstitutional, and denied of the right to equal protection under the law.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
The United States is a country of immigrants. Very few people in the United States can trace their ancestry to a Native American source. Over the last 200 years, the regulations concerning who can come to the United States, and who can stay, have become more and more complex. In general, the regulation of immigration has been solely a function of the federal government, and reflects the times in which the regulations were passed.
During the first 100 years (from 1776 to 1875), there was very little regulation of immigration in the United States. From 1776 until 1790, there was an “open door” policy in which virtually anyone could come to the United States and become a citizen. Congress even passed legislation encouraging immigration. The first immigration restrictions appeared in 1875, when Congress passed statutes excluding convicts and prostitutes from immigration to the U.S. A few years later, the first general federal immigration law was passed. It included a tax of 50 cents per immigrant, and excluded “idiots, lunatics, convicts, and persons likely to become public charges.”
American Immigration laws reflect the fears and changes in American society of the time. The Gold Rush of the 1850’s happened at a time of political turmoil and poverty in China, as the old empire collapsed in that country. Chinese flocked to American in search of opportunities. In California, the Chinese newcomers soon became an exploited work force; but their wages in California were still higher than what they could earn in China. Many Chinese became miners and worked on the railroads; and some developed the laundry business, which was very much in demand in the overpopulated San Francisco of the Gold Rush era.
Resentment against the Chinese grew for over thirty years. The Chinese faced discrimination from many groups, including American miners, who felt that the hard-working and low-paid Chinese were reducing their wages and taking their jobs. White miners and prospectors imposed taxes and laws to inhibit the Chinese from success in their business ventures. By 1882, the Chinese were hated enough to be banned from immigrating to the United States, and the Chinese Exclusion Act, initially to last only10 years, was extended indefinitely. It was not repealed until 1943. The Chinese Exclusion Act was the first immigration law passed in the U.S. that targeted a specific ethnic group.
Over the years, the list of excludable aliens grew. In 1885, laws were passed to exclude cheap foreign labor. In 1891, aliens with contagious diseases, criminals, polygamists, and paupers were excluded. In 1903, the fear of anarchists (the terrorists of the early 1900’s) led to their exclusion, along with “epileptics, insane persons, and professional beggars.”
Anti-Chinese sentiment in the U.S. was still strong in 1917 when the Asiatic Barred Zone Act was passed. This law was passed over President Wilson’s veto and barred all Asians except the Japanese from entering the United States. As times and fortunes changed, the Chinese became allies of the U.S. during World War II, and the Japanese who had immigrated to the United States and their U.S. citizen families were subjected to internment in relocation camps throughout the United States.
The large-scale immigration of persons from Southern and Eastern Europe led to the establishment of a national origin quota system. The fear was that Southern and Eastern Europeans would inundate the United States and take over the country. Only 3% of the number of foreign-born persons from certain countries could immigrate under the new laws. This quota did not include persons from the Western Hemisphere, and continued to completely bar the Chinese from immigrating to the U.S. The quota system still remains, but in 1965 it was modified to no longer base quotas on racial or national origins. Quotas were changed to be by hemisphere. Discrimination due to race and national origin is unconstitutional, and denied of the right to equal protection under the law.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
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