Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENT...
Upcoming SlideShare
Loading in …5
×

Amicus Brief to USCIS Director on DAPA Parent-Child Relationship REVISED 2-17-2015

426 views

Published on

Amicus Brief to USCIS Director on DAPA Parent-Child Relationship REVISED 2-17-2015--IT NEEDED SOME ADJUSTMENTS DUE TO RECENT BIA PRECEDENT.

Published in: News & Politics
  • Be the first to comment

  • Be the first to like this

Amicus Brief to USCIS Director on DAPA Parent-Child Relationship REVISED 2-17-2015

  1. 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 1 Submitted by: Joseph P. Whalen 238 Ontario Street, No. 6 Buffalo, NY 14207 (716) 604-4322 (cell) (716) 768-6506 (land-line) joseph.whalen774@gmail.com OFFICE OF THE DIRECTOR U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS) DEPARTMENT OF HOMELAND SECURITY (DHS) 20 Massachusetts Ave., NW Washington, D.C. 20529 AMICUS BRIEF PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) I. Introduction On November 20, 2014, President Obama announced certain Executive Actions on Immigration and the Secretary of Homeland Security issued Directives via Memoranda to various Agency Heads within his Department. One such Memorandum directs USCIS to establish a program that will offer “Deferred Action for Parents of Americans and Lawful Permanent Residents” (also known as “Deferred Action for Parental Accountability”). “DAPA” as it has already come to be known will afford eligible parents of Americans (specifically: U.S. citizens (USCs) and lawful permanent residents (LPRs) or “green-card” holders) official work authorization and perhaps advance parole. I suggest, and I believe that many would agree, that the critical factor for these potential program beneficiaries is proving the required relationship to a qualifying relative, that is to say, their USC or LPR “child”.
  2. 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 2 II. The Parent-Child Relationship Section 101 of the Immigration and Nationality Act (INA)1 contains definitions of key terms applicable to this program. The following few paragraphs are those key definitions. The critical terms are “child” and “parent” (parent includes: “parent”, “Mother” and “father”). The BIA has weighed-in on the subject of the wide variety of ways in which a “relationship” can be formed and has recognized a variety of permutations. There are biological, step, in-wedlock, out-of-wedlock, acknowledged, legitimated, bona fide, and adoptive parent-child relationships that are proven in variety of ways. Also, when a child has been given up for irrevocable adoption, the biological parent-child ceases to afford any rights from that former relationship to either party. Also, I would like to point out that these definitions are prefaced with the qualification that they apply to subchapters I and II. The definitions themselves are in subchapter I and the Secretary is defining the parent’s status and authorizing work for these parents under provisions in subchapter II2 and corresponding regulations. III. Statutory Definitions INA § 101 [U.S.C. § 1101] Definitions. (b) As used in subchapters I and II- (1) The term "child" means an unmarried person under twenty-one years of age who is- (A) a child born in wedlock; 1 The INA is officially codified as Title 8 “Aliens and Nationality” of the United States Code [U.S.C.], Chapter 12-Immigration And Nationality, Subchapter I-General Provisions. 2 INA § 274A(h)(3) [8 U.S.C. § 1324a(h)(3)] ("As used in this section, the term ' unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (8) authorized to be so employed by this chapter or by the [Secretary]."); 8 C.F.R. § 274a. 12 (regulations establishing classes of aliens eligible for work authorization). “Subchapter” is used in the U.S.C. while the INA uses the term “Title” instead.
  3. 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 3 (B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; (C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation; (D) a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person; (E) [Standard Adoptions] 3 (i) a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or (ii) subject to the same proviso as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (F)(i); (II) was adopted by the adoptive parent or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child was adopted while under the age of 18 years; (F) [Non-Convention Orphans] (i) a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151(b) of this title, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen 3 Headings added for convenience—they do not exist in the statute.
  4. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 4 and spouse jointly, or by an unmarried United States citizen who is at least 25 years of age, at least 1 of whom personally saw and observed the child before or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child's proposed residence; Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or (ii) subject to the same provisos as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (E)(i); (II) has been adopted abroad, or is coming to the United States for adoption, by the adoptive parent (or prospective adoptive parent) or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child is under the age of 18 at the time a petition is filed in his or her behalf to accord a classification as an immediate relative under section 1151(b) of this title; or (G) [Hague Convention Provisions] (i) a child, younger than 16 years of age at the time a petition is filed on the child's behalf to accord a classification as an immediate relative under section 1151(b) of this title, who has been adopted in a foreign state that is a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, done at The Hague on May 29, 1993, or who is emigrating from such a foreign state to be adopted in the United States by a United States citizen and spouse jointly or by an unmarried United States citizen who is at least 25 years of age, Provided, That- (I) the Secretary of Homeland Security is satisfied that proper care will be furnished the child if admitted to the United States; (II) the child's natural parents (or parent, in the case of a child who has one sole or surviving parent because of the death or disappearance of, abandonment or desertion by, the other parent), or other persons or institutions that retain legal custody of the child, have freely given their written irrevocable consent to the termination of their legal relationship with the child, and to the child's emigration and adoption; (III) in the case of a child having two living natural parents, the natural parents are incapable of providing proper care for the child; (IV) the Secretary of Homeland Security is satisfied that the purpose of the adoption is to form a bona fide parent-child relationship, and the parent-child relationship of the child and the natural parents has been terminated (and in carrying out both obligations under this subclause the Secretary of Homeland Security may consider
  5. 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 5 whether there is a petition pending to confer immigrant status on one or both of such natural parents); and (V) in the case of a child who has not been adopted- (aa) the competent authority of the foreign state has approved the child's emigration to the United States for the purpose of adoption by the prospective adoptive parent or parents; and (bb) the prospective adoptive parent or parents has or have complied with any pre-adoption requirements of the child's proposed residence; and (ii) except that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or (iii) subject to the same provisos as in clauses (i) and (ii), a child who- (I) is a natural sibling of a child described in clause (i), subparagraph (E)(i), or subparagraph (F)(i); (II) was adopted abroad, or is coming to the United States for adoption, by the adoptive parent (or prospective adoptive parent) or parents of the sibling described in clause (i), subparagraph (E)(i), or subparagraph (F)(i); and (III) is otherwise described in clause (i), except that the child is younger than 18 years of age at the time a petition is filed on his or her behalf for classification as an immediate relative under section 1151(b) of this title. (2) The terms "parent", "father", or "mother" mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in subdivision (1) of this subsection, except that, for purposes of paragraph (1)(F) (other than the second proviso therein) and paragraph (1)(G)(i) in the case of a child born out of wedlock described in paragraph (1)(D) (and not described in paragraph (1)(C)), the term "parent" does not include the natural father of the child if the father has disappeared or abandoned or deserted the child or if the father has in writing irrevocably released the child for emigration and adoption. IV. Clarifications, Exceptions, and Provisos The first point that needs to be made clear is that the qualifying USC or LPR relative need not now currently meet the definition of a “child” in so far as their current age is concerned. USCIS and INS before it as well as the BIA have long since recognized that the current adult son or daughter and the parent needed to meet the appropriate portion of the “child” definition applicable to their version of the “parent-child” relationship when the son or
  6. 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 6 daughter was the appropriate age. There are many “exceptions” and “provisos” riddled throughout the multi-part definition of “child” as it is intended to be used for the “immigration” provisions of the INA. Title III relates to “nationality” which is a collective term encompassing “citizenship, nationality, and naturalization”. There is a separate definition of “child” for Title III purposes which for the most part simply engulfs the Titles I and II definition with only minor alterations and exclusions. Although there is that Title III definition of child and one of the qualifying relatives for the parent is a USC child, the modifications to the child definition made by the Title III definition need not come into play for the DAPA Program. The DAPA benefit is temporary and falls so far short of “citizenship” that the appropriate definitions should be the Titles I and II definitions. Other Title II provisions depend upon proving relationships of all sorts and other qualifications and eligibility or admissibility factors as well. Visas of all sorts, whether family- based or employment-based, whether immigrant or nonimmigrant; are based upon, and depend upon, a variety of statutory definitions. Since the authorities involved in DAPA derive from Titles I and II the definitions found at INA §101(b)(1) and (2) [U.S.C. §1101(b)(1) and (2)] are the ones that should be used for DAPA Program purposes. V. Pertinent Precedent Decisions Regarding the “step-relationship”, Matter of Otiende, 26 I&N Dec. 127 (BIA 2013) holds as follows: Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.
  7. 7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 7 Regarding the “adoptive relationship” the BIA has published numerous decisions over many years. One such decision is Matter of Polidoro, 12 I&N Dec. 353 (BIA 1967), which contains an often quoted clear statement of interpretation. Anyone interested in this subject matter needs to memorize and internalize this concept. Here is that essential passage: “In the instant case the adoption took place on May 20, 1960. The adopted person, the petitioner, was at that time 35 years old. It is concluded that the adoption is invalid for immigration purposes and that the petitioner is not eligible to seek immediate relative status on behalf of the beneficiary as her adoptive parent. The argument of counsel has been noted. The issue in visa petition proceedings is not one of discretion but of eligibility. The appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed.” Id. at 354. [Emphasis Added.] It is the sentences highlighted in yellow above that say the most. They refer to the “argument of counsel” which in that case was simply a plea for the use of “discretion” to grant the desired visa classification petition. The problem with that was that the determination as to eligibility for a statutorily defined visa does not involve any discretionary authority. No discretionary authority may be exercised in that decision-making process. There is some confusion on the part of many petitioners, beneficiaries, legal practitioners, and adjudicators in these matters. If a relationship meets the applicable statutory definitions then it is acceptable for immigration purposes as stated in the controlling law otherwise you’re out of luck. The Precedents pertaining to “familial relationships” are sometimes described as being in the Bardouille-line of cases. Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), directly addressed legitimation but even more importantly it reinforced the requirement that the alleged qualifying relationship actually existed at time of filing the visa petition. In that DAPA is
  8. 8. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 8 also based upon a qualifying familial relationship, it is easiest and most sound to import, in its entirety, the existing principles and adjudicative framework surrounding the family-based visa petition as it relates to the parent-child relationship. Also, in addition to the many BIA Precedents, older INS Precedents also need to be reviewed. VI. One Last Statutory Definition DAPA purports to benefit the longtime illegally present “parents” of sons and daughters who themselves are lawful residents of the United States. Those sons and daughters do not presently have to be “children” based on their current age. Many parents will benefit from their valid relationships to their lawfully present “kids” regardless of the kid’s present age or marital status. There are some instances where the parent may no longer benefit from that relationship. Those are instances where the relationship no longer exists. You might wonder how that can be. There are several ways. In the case of a child born out of wedlock, a legally cognizable father-child relationship might have never been established in the first place. Legitimation usually demands some act upon the part of the unwed father before the child reaches a certain age (a cut-off age or point of no return). As noted above, INA §101(b)(1) presents scenarios for legitimation and for establishing a bona fide parent-child relationship. Legitimation was most recently addressed by the BIA on February 12, 2015, in Matter of Cross, 26 I&N Dec. 485 (BIA 2015), which in part prompted the revision of this Brief. In Cross, the BIA overruled, in part, two Precedents and reinstated and reaffirmed two others. A few years ago, the Second Circuit Court of Appeals directed the BIA to closely examine the issue when it remanded Watson v. Holder, 643 F. 3d 367 (2nd Cir. 2011) [No. 09-0657-ag, May 31, 2011]. Cross does not mention Watson.
  9. 9. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 9 INA §101(b)(2) excludes parents who have given a child up for adoption from ever gaining any benefit under the INA based upon the relationship as it existed at time of birth. Several I&N Precedent Decisions address how an adoption might be affirmatively voided through judicial proceedings. The Title I and II definition of child also recognizes a step relationship and Administrative Precedents also address how that relationship can be severed by a divorce but that relationship can also survive a divorce from (or the death of) the natural parent. We are at last left with the statutory definition of one class of “Special Immigrant” under INA §101(a)(27), in particular we must examine clause (J) as follows: (J) an immigrant who is present in the United States- (i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and (iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that- (I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and (II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; As clearly stated in (J)(iii)(II), no the granting of Special Immigrant Juvenile (SIJ) status precludes the natural parent and any prior adoptive parent from thereafter being accorded any right, privilege, or status based on that relationship. Considering what SIJ demands as conditions precedent to being granted, this is no surprise and if we rationally examine those Precedents
  10. 10. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PARENT-CHILD RELATIONSHIP FOR DEFERRED ACTION FOR PARENTS OF LEGAL AMERICAN RESIDENTS (DAPA) PAGE 10 relating to “step-relationships”, this same reasoning logically extends to former stepparents of SIJ status lawful permanent residents or naturalized citizen sons and daughters. VII. Conclusion One last consideration are the severe circumstances that give rise to SIJ status. The child must has been given up by, abandoned by, or taken away from, the parent and has become or became a ward of the state. It is also possible that the child could have been subsequently adopted in which case the exclusion of the former parent is doubly bared from DAPA. Unlike the adoption scenario, no precedent has been issued yet which directly speaks to the SIJ situation. AAO has, however, addressed the SIJ situation from the other angle. USCIS had denied a Form N-600, Application for Certificate of Citizenship, filed by a child who had been taken away from a parent who later naturalized; and sought recognition of derivative citizenship based upon that unfit parent’s naturalization. In that case, AAO agreed with the adjudicator below and upheld the denial. (AAO JUL312014_01E2309) (AAO found and held that a “Special Immigrant Juvenile” (SIJ) could not derive USC from the unfit parent from whose legal and physical custody he had been removed). Dated this 17th of February, 2015 Joseph P. Whalen /s/ Joseph P. Whalen

×