What Happens When a Person is Detained by Homeland Security?

This morning, undocumented journalist, filmmaker, and activist Jose Antonio Vargas was detained by the Department of Homeland Security at McAllen-Miller International Airport in Texas.  He has been in McAllen Texas with a film crew interviewing children and families who have been detained at the border after escaping the drug cartel and gang violence in the Northern Triangle countries of Central America.  Via Twitter (@joseiswriting), Vargas compared the Texas border to a militarized zone.  He revealed that the city has checkpoints around a certain radius, including a checkpoint at the airport.  Those who are undocumented are effectively trapped within a certain radius.  The use of the words “militarized” and “checkpoints” reminds me of asylum clients from Myanmar (Burma) and the West Bank describing their countries, not the U.S.


Vargas’s high profile and public support protect him, unlike the average person.  It is unknown how the events will play out today.  Could he be kept and questioned for a few hours and released on his own recognizance?  Will there be phone calls on his behalf from prominent people urging DHS to release him and reminding them of the public relations backlash it can face if it chooses to continue to detain him and prosecute him?  No doubt he also has an excellent immigration attorney or team as well.  I am hopeful that the government will exercise its discretion and that he will be released.


What normally happens when someone is detained by DHS?  Vargas’s scenario is unusual as he has been detained traveling within the U.S.  Interstate travel is a fundamental right under the constitution, and that is why there are no checkpoints between U.S. states, for example.  People may be detained at the airport after travel abroad, or of course, after an arrest outside of the airport for various reasons. Usually by Immigration and Customs Enforcement, or “ICE” after being processed by Customs and Border Protection (CBP).   At the airport, a person who is a lawful permanent resident can be detained because CBP sees that he or she has a conviction for an aggravated felony.  Outside of the airport, a person could be at the right place at the wrong time and be detained for being undocumented, or be arrested after a traffic infraction and turned over to ICE.


The average person could face a number of scenarios.  He could be released on his own recognizance.  Perhaps he has a U.S. citizen spouse and will apply for permanent residence based on that marriage.  He may be released after paying bond to ICE.  ICE may or may not choose to issue a Notice to Appear (NTA) in the Immigration Court for removal proceedings.  He may be detained and issued an NTA, and may then have a bond hearing before an immigration judge.  The judge would want to determine that he is not a danger to the community, has ties to the community, is not a flight risk and will appear at all immigration court hearings.  If the person is subject to mandatory detention for a particularly violent or serious crime, he may not be released on bond at all.


Once in the Immigration Court, the Respondent, as he will now be called, either himself or through an attorney, will have to inform the judge of the relief that may be available to him.  Unlike criminal proceedings, immigration proceedings are under administrative law, and it is not required that the government provide him with an attorney.  He will apply for some sort of defensive form of relief such as cancellation of removal, political asylum, a U visa, or adjustment of status.  If there is no relief available, he may be able to take an order of voluntary departure rather than an order of removal.  The problem with voluntary departure is, how does one return?  Will this person face a 10-year bar to returning for being an overstay?


Another option is for the government to exercise prosecutorial discretion and terminate proceedings, which is what the government should do if Vargas’s case were to go that far, for whatever reason (and it shouldn’t, as there would be too much backlash and political pressure in his case).  He is not high priority for deportation in the sense that he has no criminal convictions and is not a threat to national security.  He has resided in the U.S. for a long time and since he was a minor.  His services as a journalist and filmmaker are also important national contributions and are a significant equity.  Negative factors are that he doesn’t have any immediate relief available and has previously claimed to be a U.S. citizen, which is unfortunately a huge transgression in U.S. immigration and nationality law for which punishment is severe (including the inability to apply for permanent residence if he ever marries a U.S. citizen in the future).  However, the government would weigh the totality of the circumstances and make an individual determination.


For now, I am anxiously awaiting the news of Vargas’s release.  Tonight, friends in New York City are holding a vigil for him at Union Square Park.  Across the country, people are standing in solidarity with him, and with the refugee children of Central America whose plight he was documenting.


UPDATE: Mr. Vargas was released on his own recognizance and issued a Notice to Appear in immigration court.


By Grace Alano.  Grace Alano is an immigration attorney at The Law Offices of Grace R. Alano in San Francisco, CA. Find Grace Alano on Google+. 


The Central American Child Refugee Crisis in Brief

[Image: Twitter/JeffreyGuterman]
[Image: Twitter/JeffreyGuterman]

There is a humanitarian crisis happening at the Southwest border that has caused the White House to seek nearly 4 billion in emergency funding.  The U.S. has been experiencing an influx of thousands of young Central American children showing up at the border to escape gang and cartel violence.  This has been going on since before 2011, with numbers steadily increasing since then.  52,193 “unaccompanied minor children” were apprehended at the border between October 1, 2013 and June 15, 2014 alone.


The majority of these children are coming from the Northern Triangle region of Central America, which is comprised of Honduras, El Salvador, Guatemala and Mexico (listed in order of greatest numbers of children). Honduras alone as a homicide rate of 90.4 per 100,000 people, as compared to the war-torn Democratic Republic of Congo, where the homicide rate is 28.3 per 100,000 people.


Upon being detained by Customs and Border Protection (CBP), or sometimes turning themselves in to CBP, children are currently being detained in facilities that look and feel like prisons.  Children as young as eight months old are wearing prison uniforms, have restricted movement, and are threatened with separation from their parents if they misbehave.  Contrast this to Belgium, where there are open facilities for migrant families seeking asylum, where they can come and go with certain restrictions.  Ideally, the U.S. government should seek the latter type of system, and work with religious and humanitarian organizations to provide alternative housing for these children and families.  Other U.S. immigration programs that allow respondents to leave detention with monitoring have proven to be successful, with a high rate (96%) appearing for immigration court proceedings.  Alternative programs are less expensive than detention, more humane, and can prevent further behavioral and psychological problems in the future.


The government is deploying immigration judges, Immigration and Customs Enforcement (“ICE”) attorneys, and asylum officers to the border to process the childrens’ cases as fairly and quickly as possible, and initiating a public affairs campaign in Spanish in Central America about the dangers of the journey to the United States.


Possible forms of immigration protections and relief for the children include political asylum, special immigrant juvenile status (SIJS), and visas for victims of trafficking.  The U.S. has entered into treaties with other countries, including the United Nations Convention Relating to the Status of Refugees and the 1967 Protocol.  The U.S. also follows the international law principle of non-refoulement, and will not return people to countries where they will be persecuted or tortured.   International law is part of U.S. law per the Supreme Court as held in the famous case of the Paquete-Habana and must be followed.


In addition to the government trying to come up with humane solutions to this refugee crisis, private citizens, nonprofit groups, and religious organizations should also work together to help organize housing for volunteers, donations, and put into fruition any other ideas that can help.


Ultimately, as a moral issue, these children should not be sent back.  Journalists have been reminding us of the history of the St. Louis, a ship carrying Jewish refugees escaping Nazi Germany.  The U.S. was reluctant to accept them because it was seen as an immigration issue.  The ship was returned to Europe, with some countries accepting some refugees.  About a third of the passengers eventually died in the concentration camps.


A brief video about the Central American refugee crisis can be found here.


By Grace Alano.  Grace Alano is an immigration attorney at The Law Offices of Grace R. Alano in San Francisco, CA. Find Grace Alano on Google+


The Uber Wedding Has Arrived in Time for Pride Weekend

Uber weddingI was just remarking yesterday about how fantastic it is to live and work in San Francisco.  We have so many apps and companies at our fingertips that help us live better.  For example, Google Shopping Express, which will deliver products from Target and other stores the same day for free, or Sprig, which delivers hot, healthy meals in about 10 minutes.  One friend said she ordered from Sprig when she was upstairs in her loft and when she went downstairs the delivery person was at her door.  She swears that they employ fairies.  A big source of relief in the past year or two has been Uber.  It is an app for your smartphone that locates the closest driver.  You just keep a credit card on file.  I have been trying to get my 79-year-old auntie in Los Angeles to get a smartphone so that she can use Uber.  She is currently either driven around by an errand guy or a limo company and can spend 20 minutes trying to arrange a ride.

This Saturday, in honor of Pride, Uber is offering free wedding packages.  What a brilliant marketing idea by Uber and the participating vendors.  You just select “Uber wedding” on the app menu tomorrow during a certain time period.  Of course, you will need to have whatever documentation you will need for the wedding license ready.  And, obviously, I would never want to encourage anyone to spontaneously get married, as that can lead to, as a family law lawyer friend calls it, a “not-so-spontaneous divorce.”  It can also affect how a foreign national who is married to a U.S. citizen might be able to immigrate (so you might want to talk to me first before marrying, as I am an immigration attorney).  But for the couple who was planning to get married at City Hall this summer and who is able to get a spot, this could be a great thing.

The Uber wedding ceremony takes about an hour and includes flowers, candles and cake from local San Francisco companies Bloom That, Bella J and Susie Cakes.  There’s even a toast.  But – get this – a honeymoon is included (Hotel Tonight arranging accommodations and Alaska Airlines providing transportation).

Why am I blogging about this?  Well, as mentioned, I am an immigration attorney and most of my cases are marriage to U.S. citizen green card and fiancée visa cases.  I’ve also officiated a cousin’s wedding.  Basically – I see lots and lots of weddings and I love them and the happy energy couples bring into my office.

Is this marketing idea crazy or indeed brilliant?  Is it crazy to sign up for it?  Time will tell.  Is it a great service if you are able to book a wedding before they run out?  Or will things be a hot, chaotic mess tomorrow or turn out sub-par?  I think a lot probably depends on the couple.

By Grace Alano.  Grace Alano is an immigration attorney at The Law Offices of Grace R. Alano in San Francisco, CA. Find Grace Alano on Google+

My Review of “Documented”

With my colleagues and Jose Antonio Vargas at the Premiere of Documented
With my colleagues and Jose Antonio Vargas at the Premiere of Documented

Last month, I attended a screening of the film, Documented, by Jose Antonio Vargas.  Vargas is a Pulitzer Prize-winning journalist and undocumented immigrant who is leading the conversation about what it means to be an American, and the struggle undocumented immigrants face trying to become “legal.”  The screening was the night of my 10th wedding anniversary.  I skipped a night out with my husband to attend – that is how important it was for me to go.  Truth be told, my husband and I had a celebration of sorts with a trip to Mexico with our daughter this month, but that’s another story.  The screening was at the Roxie Theater in the Mission.  I remember the theater well because that is where I attended the screening for Ricki Lake’s The Business of Being Born.  I figured that Documented had to be a great film if Ricki Lake’s film was any indication.  Also, the Mission neighborhood is in such a flux these days due to the dichotomy of it being an old San Francisco ethnic neighborhood/newly gentrified techie neighborhood.  It is that mix of diversity and technology that is the Bay Area, where Vargas hails from.  The point is that I love the Mission, respect The Roxie Theater, and really had to see Documented with my colleagues even though it was the night of my 10th wedding anniversary.


Now to the movie – it didn’t disappoint and I was really touched by it.  The sign of a good film is when you are still deep in conversation about it on the BART ride home, as we were.  I have to describe the movie from my point of view.  I am an immigration attorney.  I tell people’s stories for a living.  I protect people. I empower them.  I advocate for them.  I reunite them, or keep them with, their loved ones.  I help them get to the place where they can “exhale” when the process is over and they are able to live here permanently, or take refuge here in the States when they are afraid to return to their own countries.  Immigration is stories.  It’s peoples’ stories and lives.  This movie is Vargas’s story, as well as others’.


Vargas’s story is that he was brought to the States by relatives when he was a little boy to give him a better life than what he had in his native Philippines.  It is unclear as to whether or not his mother knew that she would see him again (at this point, the future of Vargas’s immigration status and ability to travel abroad is unknown), or whether she would follow him here in the near future.  As a mother, that was hard for me to watch.  I did attachment parenting with my own daughter.  There is a pattern, not only in the Philippines, but in other countries, of immigrating without the children, or in this case, sending the child alone.  Over the last 14 years, I have seen the devastating psychological effects it has on the children and parents.  In my profession, the most important thing I do all day long is psychologize people, so I can best tell their stories and anticipate how an adjudicator would react to them.  No doubt, the separation has affected Vargas, and he makes his resentment towards his mother clear.  Much of the movie is Vargas’s story of this psychological conflict between his love for his mother and feeling of abandonment by her, and his feelings for his family of origin and adoptive U.S. family, who are his kindred spirits.


His mother is indeed the catalyst in his life.  I recently read Dr. Wayne Dyer’s new book, I Can See Clearly Now.  In it, Dyer realizes that his alcoholic father’s abandonment of him and his family was his greatest gift in life because it led to his resiliency and life’s work.  It’s the same with Vargas’s mother.  In a way, her abandonment may be his greatest gift, because it has led him to become the voice of the DREAMers and other undocumented immigrants.  Vargas is aligned with his purpose in life – how many people can say that?  He is especially magnetic and charismatic in person, and thus a great spokesperson for the cause.  His work is humanitarian and about civil rights as well.  He illustrates that the truth is empowering (in the movie, he says he “could not live in two closets”).  So I respect him a great deal.  A great scene in the film takes place in Alabama, a state where I honestly, as a woman of color, would feel slightly nervous visiting. He encounters a drunk bigot and gets him to see where he (Vargas), and other undocumented immigrants are coming from.  But we also get to empathize with the drunk man.  It all comes down to the fear of this mass of people who will come take away his construction job.  It’s that whole, “Are you coming from a place of fear or love?” way of living that John Lennon and others talk(ed) about.  It’s a humanizing scene, when the man removes his mask and shows that he is just scared, as we all are.  We see both sides of the story.


The other aspect of the storyline that I found interesting is about his mother and family of origin, and Planet Philippines.  I say that with love and humor and an from an admittedly American perspective.  I am Filipino American (my mother is from the Philippines, father from Venezuela), and have learned to differentiate that I am really American. The mindsets and cultures of the two countries are, of course, very different, no matter how “Westernized” the Philippines is.  Understanding this has helped me to recognize culture clash when I see it, and helps me cope or psychologize people accordingly.  Vargas and his mother are miles apart literally and figuratively.  What is the lesson in that?  I guess that it is to be cognizant of it and to try to be empathetic when dealing with people.  There is not only a cultural divide, but an intellectual and socio-economic one.  However, it ironically underscores the wisdom of his family of origin.  I may not like that he was separated from his mother at a young age and find it somewhat cruel.  But, you know what?  His life probably is better than if he had stayed in his socio-economic level in the Philippines (although I have a feeling he would have busted out of it there, too).  A simple example is when he tells the story of how he told his mother in grade school that he had won a spelling bee, and she didn’t know what a spelling bee was.  That is an example of the divide.  It doesn’t mean that she is stupid, just that a spelling bee is not in her consciousness.  And then, knowing that, learning how to communicate with someone who has that different world view.  It can be really complicated.


On a lighter note, though, the culture clash provides a lot of humor in the film.  Documented is actually very funny at times.  Also important to mention is that I think it will also be eye-opening for a lot of people when they discover that Vargas, although undocumented, is legally able to employ people.  And employ a lot of people he does.  I believe he said that he employs 40 people with his filmmaking company and possibly other ventures.  I only employ one person!  That’s the thing about immigrants, they are complementary.  They create jobs, or take the jobs that no one wants.  Vargas is a great example of that.


Obviously, I highly recommend the film.  You can’t beat thought-provoking, touching, funny, and empowering, and Documented is all of those things.


Documented will premiere on CNN this Sunday, June 29 at 9:00 and 11:00 p.m. ET.  More information about the film and Jose Antonio Vargas can be found on his website, www.defineamerican.com.


By Grace Alano.  Grace Alano is an immigration attorney at The Law Offices of Grace R. Alano in San Francisco, CA. Find Grace Alano on Google+ or on her law office website.

AILA Answers Questions on Asylum for Venezuelan Nationals

The American Immigration Lawyers Association (AILA) has posted a new video which answers questions about the possibility of political asylum for Venezuelans. It is natural that people are curious to know about whether there are any special provisions for people fleeing the political turmoil that is currently happening there. The short answer is no, unfortunately. However, they may apply for asylum if they meet the eligibility requirements.


Eligibility for political asylum depends on an applicant’s particular facts and circumstances. Generalized violence or strife in one’s country does not create blanket asylum eligibility. The basic requirements are that one must have been persecuted or have a well-founded fear of future persecution “on account of” his or her race, religion, nationality, political opinion, or particular social group, among other factors, and cannot be internally relocated. The video further summarizes asylum eligibility and talks about current advocacy for Venezuelans. It is important to speak with an immigration attorney (whether in private practice or at a non-profit) to review your asylum case before applying, because frivolous or non-eligible cases may be referred to the Immigration Court for removal proceedings.



By Grace Alano.  Grace Alano is an immigration attorney at The Law Offices of Grace R. Alano in San Francisco, CA. Find Grace Alano on Google+

What is Happening in Venezuela

As a person of Venezuelan heritage, I share this post with sorrow.  The world needs to know about what is happening there.  Warning – there are some graphic photos.  “Venezolanos somos todo.”



By Grace Alano.  Grace Alano is an immigration attorney at The Law Offices of Grace R. Alano in San Francisco, CA. Find Grace Alano on Google+


Meet Marilyn

collagegmmixI’d like to introduce our new Legal Assistant, Marilyn.  She is a graduate of UC Davis and has previous immigration law office experience.  Marilyn is also a Community Organizer at OCO (Oakland Community Organization).  She is fluent in Spanish and speaks conversational French, is big on sports such as swimming, baseball and soccer, and loves to dance.  Marilyn is drawn to immigration law because she comes from an immigrant background, has close ties to the immigration community, and likes helping people.  I agree that as a field of law, immigration is about healing and helping people.  In particular, Marilyn likes working on political asylum and K-1, fiancee visa cases.

We look forward to working with you!

By Grace Alano.  Grace Alano is an immigration attorney at The Law Offices of Grace R. Alano in San Francisco, CA. Find Grace Alano on Google+