A reader’s interesting question

A few days ago, I received an email from one of our readers asking me a question which I find very interesting. I am sharing it with you here so that you have a better understanding why this issue of immigration in the United States is not only a matter of policy at the highest levels of the government but also a justifiable, emotional issue for some.

A reader asks:

"Dear Counselor:

As you are an immigration lawyer, I understand your advocacy for favorable immigration policies. What I cannot understand is why you continue to advocate the interests of the illegals instead of advocating for the interests of those who followed the legal pathway for immigration and admittance to this country. There are thousands who have been waiting for their green cards for as long as 25 years. It is totally absurd that the illegals who are already in-country be given legal status to remain in-country ahead of bringing in those who have been legally waiting outside for as long as they have. How can you justify that? Any fair-minded person could see that bringing in those already legally approved for immigration should be the imperative as a requisite for granting amnesty to illegals who are in this country. My whole point is that all those waiting outside should be brought in ahead of these illegals who are already here. They have been lost in the shuffle among the noise about amnesty. Nobody advocates for them because they are outside the country and their status have already been adjudicated."

Here is my answer to him:

Foremost, allow me to tell you that as a lawyer and officer of the court, I and my fellow lawyers do not encourage people to break the law. It is against the ethics of our profession and it is also beyond the norms of decency to do such.

Second, the immigration bar does advance the interests of those who have obtained or choose to obtain their status legally. The American Immigration Lawyers Association lobbies strong and hard and even litigates for and in behalf of all immigrants in advancing the latter's rights and welfare. Our service as immigration attorneys do not necessarily end when one receives her greencard or citizenship, rather we continue to ensure that immigrants, minorities and non-natural born citizens receive equal rights, benefits and privileges as US-born citizens do. As to your specific concern about those who have been waiting for so many years for their greencard and should be brought in as a requisite before granting amnesty to illegals who are in this country, I acknowledge that it is a valid point. I am assured though that your concern is also shared by the vast majority and I am sure will be taken into consideration in order to craft a fair and just immigration policy. Heck, I too would love to have no quotas for the preference categories - family based or employment based. In that case, there would be no waiting. But this is a congressional mandate and only Congress could speed up this process. I assure you that there is also some sort of lobbying going on in that front.

However, something needs to be done to those who are already inside the US. I stand by my statement that it is impractical to deport 11-12 million undocumented immigrants, with families and communities forcibly separated and torn apart. Keep in mind that while they work and live behind the shadows, their contribution to the economy of this country is immeasurable. Crazy as it my sound, I even ventured out the proposition that because the Republicans possess the White House, the Senate and the House of Representatives, a comprehensive immigration law passed during their term would be a wise political move. Whatever the shape and form of the law, it is still waiting to be seen. Frankly, in a highly divided country presented with a highly polarizing issue such as illegal immigration, I do not foresee that a wholesale grant of "amnesty" would even be considered.

Also, another point on the advocacy for the undocumented. As we live in an imperfect world, people commit mistakes and violate laws - intentional or not, reasonable or not. However, the State, through its constitution and its inherent legislative power ensures that even those accused of a crime or violation are accorded with rights and remedies. As an advocate, for as long as these defenses and remedies are permitted by law, I will continue to use whatever available legal tools at my disposal in order to properly defend a client. It would be at the height of grave injustice to the client and equally grave malpractice on the part of the lawyer if these tools are not used. Thus, while I acknowledge your concern about one person waiting for 25 years for his visa but because of the particular visa category and priority date, there is no visa yet available to him, however, on the other hand if a client who is here in the US undocumented but had a valid claim to an asylum, or a clear basis for a waiver based on extreme hardship or a qualification for humanitarian grounds or his country of origin is in turmoil qualifying him for a temporary protected status, or she was a victim of domestic violence, no lawyer would probably not want to avail of those legal options for the client. If you were my client in any of these circumstances, would you tell me to allow the US government to have you deported because you know someone else is waiting for 25 years? What if your son or daughter who knows nothing about your home country is in deportation proceedings for the simple reason that he was brought here illegally when she was still a child, would you tell me not to file a DACA application (Deferred Action for Childhood Arrivals) because someone else's child is waiting for his visa to be approved?

Yes, there are people waiting in line but the law itself allows for those who are here even illegally to avail of any remedy afforded to them. It is a sad reality that unless Congress passes a law making the availability of visas in the preference categories much faster and even erasing quotas and waiting times, those people would have to wait. In the meantime, for those who are here illegally but have remedies available to them, their own immigration journey would not be halted just because there are other people waiting in line. If we have to wait until all those people waiting in line arrives here in the US first before something gets done for the undocumented who are here, two things could happen- either have a moratorium on the preference categories as somehow the filings would have to be stopped in order to give a chance for the undocumented, or nothing gets done for the undocumented because it is impossible to wait for all those in the preference categories to all arrive here.

Again, there is also an active advocacy on behalf of those who are in the preference categories such as expanding the number of visas available, speedier processing times, advancing priority dates, etc. Specifically, there is the Filipino World War II Veterans Parole Program to allow certain Filipino World War II veteran family members who are beneficiaries of approved family-based immigrant visa petitions an opportunity to receive discretionary grants of parole on a case-by-case basis, so that they may come to the United States as they wait for their immigrant visas to become available.

Advocating for a fair and humane immigration policy while at the same time defending and protecting the rights of the undocumented are not mutually exclusive. Both can co-exist without any moral or ethical conflict. Any fair-minded person could see that.

This column is not a substitute for professional legal advice obtained from a US licensed immigration attorney. The information contained herein does not constitute a warranty or guarantee or legal advice regarding a reader's specific immigration case. No attorney-client relationship is and shall be established with any reader.

For any questions, comments and observations, please contact Atty. Marco Tomakin at [email protected].