Tom Roach, Roach Law, LLP (Pasco, Washington)
Two weeks ago, I shadowed two local immigration attorneys. First, I drove to Pasco and shadowed Tom Roach, who has been in the field for nearly thirty years. Tom attended the University of Seattle for his undergraduate studies, earned a Master’s Degree in International Politics from Columbia University, and later graduated from the University of San Francisco Law School. After law school, Tom worked as a legislative staffer for Senator Mike Gravel of Alaska from 1977 to 1980. Tom commented that during his time in Washington, he worked closely with the Committee on Fisheries and Ocean Affairs. On a related note, Tom worked for ten summers on fishing boats in Alaska. Fun fact, eh?
Tom is the third of nine children, many of whom also went on to practice law in Washington. I actually met Tom’s brother Dan first, as he is one of the attorneys practicing with the BMAC Pro Bono Program (my placement with AmeriCorps). I also had the opportunity to meet Tom’s son Eamonn, who has acted as a Rule 9 intern (allowing limited practice for law school students) in the Roach Law Office.
Tom’s firm has nine bilingual paralegals, many of whom deal primarily with Deferred Action for Childhood Arrivals (DACA) clients. Tom noted that since DACA was signed, his firm has taken over 250 related cases. I also had a chance to briefly shadow Alva Guizar, who often assists Tom with immigration cases that involve criminal charges. He explained that the immigration consequences of criminal convictions vary and often require special attention from attorneys. Tom noted that behind tax law, immigration law is seen by many attorneys as the most challenging field to practice. For nearly twenty years, he was the only full time immigration lawyer in eastern Washington. Tom noted that while he has worked with clients from 120 countries, about 70% of his clients have origins in Mexico.
Wendy Hernandez, Hernandez Immigration Law, LLC (Walla Walla, WA)
After shadowing Tom for a day in Pasco, I headed back to Walla Walla to observe Wendy Hernandez. Wendy graduated from Gonzaga University Law School in 2003 (like many of the attorneys we work with in Walla Walla). Like Tom, she is also a member of the American Immigration Lawyers Association (AILA). Wendy gained extensive experience in immigration in law school, while working as an intern representing immigrant children with Columbia Legal Services. After graduating, Wendy continued to expand her knowledge, creating an immigration clinic for World Relief Spokane. Later, Wendy developed a similar clinic in Walla Walla, where she has remained. Wendy actually started practicing law a little later than most and was formerly a registered nurse and mental health counselor.
Deferred Action for Childhood Removals (DACA)
Tom walked me through the process for individuals applying for work visas under the recently passed Deferred Action for Childhood Arrivals (DACA), signed by President Obama on June 15, 2012. The memo was designed to allow undocumented individuals who arrived in the United States as children and have since pursued education or military service to receive employment authorization. Tom noted that while around 400,000 immigrants have applied for DACA status, nearly 1.2 million could’ve applied. Both attorneys noted that while DACA does allow approved applicants to live legally in the United States, it does not necessarily ensure eventual green card or citizenship status (though many of their clients do plan to apply for more extended visas in the future). The Employment Authorization Document (EAD) portion of DACA grants applicants a two year work permit if approved and may be renewed.
There are a number of qualifications that applicants must meet to be considered for DACA status. Individuals must have arrived in the United States before the age of 16 and must have been under 31 when the memo was signed by President Obama. Further, applicants must prove that they have lived in the United States continuously since June 15, 2007 (bank or school records are often used as proof). This portion seemed to present a barrier to a number of Tom and Wendy’s clients, since many have traveled out of the United States during this period. Immigrants must prove that they entered the United States without inspection prior to the June 15, 2012 or that their lawful residence expired at that point.
Applicants must also provide proof that they were present in the United States on the day that the memo was signed, as well as on the date of their DACA request. Additionally, immigrants must meet certain educational criteria. Applicants must prove that they are currently enrolled in school, have a high school degree or GED equivalent, or have been honorably discharged from the military. Tom noted that he has had clients who have been “other than honorably discharged,” which can hinder the DACA (and citizenship) process, since applicants must prove “good moral character.” Finally, individuals must prove that they have not been convicted of a felony, a “significant misdemeanor” (including burglary, domestic violence, sexual abuse, unlawful firearm possession, DUI, or drug distribution or trafficking), more than three “nonsignificant misdemeanors,” and that they do not pose a threat to national security. I was surprised by the size of the applications, which were relatively small. Perhaps I’m just accustomed to the volumes of documents that we send our clients to court with…
One potential barrier to DACA applicants is gang involvement. Subsequently, the presence of gang-affiliated tattoos presents an obvious problem. Tom allowed me to read a memo sent from the United States Consulate General in Ciudad Juarez, Mexico. The author noted that the American Immigration Lawyers Association (AILA) had noticed refusal or significant delay for applicants with “suspected gang affiliation based solely on the applicant’s tattoo(s).” The memo continued, stating that even “innocent tattoos” are often referred to the visa office, potentially hindering the DACA process for months or even years. However, the author does stress that “the mere existence of a tattoo” is not adequate grounds for denial and that interviewers are expected to “consider the totality of an applicants’ circumstances.” Tom noted that he remains concerned about the potential rejection of multiple DACA clients who have seemingly innocent tattoos.
While DACA status does allow for temporary lawful residence, it does not affect an individual’s overall immigration status and is not meant to act as a path to citizenship or lawful permanent residence. Additionally, deferred action status does not ensure that approved applicants will be forgiven for earlier unlawful residence in the United States. Both attorneys emphasized the very delicate nature of the DACA applications. When illegal immigrants apply, they risk being deported. If USCIS or ICE agents don’t grant DACA status, the applicant may be immediately placed into removal proceedings. Furthermore, deferred action status may actually be revoked in the future. For this reason, attorneys must be especially prudent with DACA applicants. Wendy noted that she is very careful not to include too much documentation in her clients’ DACA applications. Applicants often include falsified Social Security records, which can ultimately hurt them in the future if they pursue permanent resident or citizenship status.
Many of Tom’s cases involve clients seeking H1B visas, which allow immigrants to work temporarily in the United States. If the immigrants are fired or quit, they must apply for another visa ensuring legal status, find a new job, or leave the country. Applicants for this kind of visa must have a “specialized” college degree, because H1B is considered a professional work visa.
Tom let me sit in on a meeting with a client whose business was audited by I.C.E. (U.S. Immigrations and Customs Enforcement, a branch of the Department of Homeland Security). When immigration agents investigate businesses, they ask owners for their I-9 forms for all employees. In cases of undocumented workers, the Social Security numbers of workers are often deemed invalid. The client had been notified that multiple employees on her payroll presented false numbers. The I.C.E. letter stressed that if she continued to employ these individuals without providing valid documentation of their legal status, she could be fined between $375 and $3,200 (for the first offense) by Homeland Security Investigations. The letter stated that subsequent offenses would be punished more heavily, if the employer engaged in a pattern of hiring “undocumented aliens.”
The Hague Convention
Tom also discussed a number of his cases that have dealt with the Hague Convention, which binds signatories to particular standards of practice in international law. Tom noted that if both countries in a legal dispute are parties to the convention, certain procedures must be followed. These requirements complicated a number of adoption cases in Tom’s firm, particularly the portion regarding inter-country adoption which states, “Proper effort has been given to the child’s adoption in its country of origin.” He explained that this required him to prove that no one in the country of origin would adopt the child. Additionally, two authorities from government entities in the country the child is being adopted from must provide written authorization for the adoption, which is not always an easy process.
Tom also discussed U Visas, which allow victims of crimes to acquire legal status in the United States for up to four years. After three years of physical presence in the United States, U Visa recipients may apply for a green card. After holding a green card for five years, the immigrants may then apply for full citizenship. For many of Tom and Wendy’s clients, U Visas are granted to victims of domestic violence. This nonimmigrant visa also allows approved individuals to work legally in the United States and Employment Authorization Documents (EAD) are included in the U Visa petition (similar to the DACA paperwork). The application must also demonstrate that the victim is or was willing to assist law enforcement in solving or learning more about a crime or related investigation. Wendy actually noted that U Visas are only granted to victims of verbal domestic violence (or in cases of “extreme cruelty”) if they are married. So unmarried victims of verbal domestic violence (who are also unlawful immigrants) cannot be granted U Visas, but similar married individuals can. Additionally, this visa can extend to protect other family members, called “derivatives” of the applicants.
Violence Against Women Act (VAWA)
Wendy explained that many of her clients who are victims of domestic violence are also protected by the Violence Against Women Act (VAWA), originally passed by Congress in 1995. The legislation contains provisions which allow abused illegal immigrants to apply for temporary visas. However, in April of 2012, the Senate removed the provision of the bill that the House re-passed, which offers the protection of DV immigrant victims. It is unclear if this portion of the bill will remain in force. Wendy commented that many of her clients are undocumented immigrants whose husbands are lawful permanent residents or citizens. Their husbands often threaten the women with deportation if they report the abuse. VAWA offers protection to women in these kinds of situations.
Hardship Waivers: A bit of a catch-22?
Wendy discussed an immigration predicament faced by many of her clients. For undocumented immigrants to apply for a green card, they must first leave the United States. Under the Immigration and Nationality Act of 1996, any individual who entered the U.S. without being inspected upon arrival (crossed the border illegally) is automatically subject to a three or ten year ban from reentry. The three year ban applies if the illegal immigrant has lived in the country for less than one year. At the one year residency mark, the ten year ban applies. One way to get around this barrier is to apply for a hardship waiver (or more formally, an I-601 Application for Waiver of Grounds of Inadmissibility).
This document asks immigrants to prove that their removal from the country would impose serious hardship on their spouse or children. Wendy explained that many of her clients cite the departing parent in question as the primary income earner, noting that the person’s departure would impose a financial burden on the family. Even applying for the waiver also sometimes requires immigrants to leave the country, creating a precarious situation for reentry. While there was some protection for the spouses and children of lawful permanent residents (LPR) under the Legal Immigration Family Equity Act of 2000 (the V Visa), that protection only extended to those who applied for their visas on or before December 21, 2000. So current LPR immigrants do not have any similar protection. However, domestic violence victims can be granted an immediate waiver under VAWA (as discussed in the previous section).
Wendy noted that this process is an ongoing issue for her Mexican clients. If they go to Mexico and the ban is triggered, the immigrants must complete their application process from Mexico. Due to the serious risk of attempting to reenter the United States, many immigrants simply avoid applying for green card status to ensure they can remain with their families. Obama proposed a rule earlier this year which would allow illegal immigrants to avoid deportation and complete their paperwork in the United States. However, this change is hugely controversial and has not yet been enacted. Wendy noted this as one of the most necessary aspects of immigration reform. Also, because hardship waivers only cover the spouse and children of the immigrant in question, parents and other extended family are not protected. Wendy commented that for her clients, this often results in deportation of extended family, primarily parents of the applicants.
Tom allowed me to scan over some of the applications for various immigration documents. There are some pretty interesting items included on the I-485 Application for Permanent Residence. Here are a few of the questions, if you’re curious:
- Did you act in association with Nazi Germany between March 23, 1933 and May 8, 1945?
- Have you ever been affiliated with any Communist or other totalitarian party?
- Have you ever engaged in genocide?
- Do you plan to practice polygamy in the United States?
Towards the end of my visit, Wendy briefly discussed her asylum cases. She explained that to apply for asylum, applicants must prove that they have been or will be subject to persecution based on their race, religion, or political affiliation in their home country. The asylum seeker must also prove that they face danger from government institutions in that country. She emphasized that asylum cases require an immense amount of research, as attorneys must become familiar with the political climate and human rights conditions in a given country. Asylum applicants must attend a “credible fear interview,” where the reality of the threat they claim is gauged. If approved, the immigrant receives a work visa valid for one year. At the end of that year, the person may apply for a green card. I won’t go into too much detail, but the asylum cases Wendy discussed with me were fascinating. She has represented child slaves, persecuted Christians, former practicers of voodoo, and domestic violence victims of female circumcision. Wendy noted that these cases are also very delicate, as the applicants will immediately be placed in deportation proceedings if their asylum is denied. For this reason, she is very careful with the asylum cases she accepts.
Many thanks to both Tom and Wendy for allowing me to visit and observe!
A Few Links to Check Out
Northwest Immigrant Rights Project: http://www.nwirp.org/
NWIRP is devoted to representing and protecting low-income immigrants by providing legal services.
The American Immigration Lawyers Association (AILA): http://www.aila.org/
This site is devoted to assisting immigration attorneys and providing current information on changes in immigration law.
Roach Law Offices, LLP: http://www.roachlaw.com/tom.html
Hernandez Immigration Law, LLC: http://hernandezimmigrationlaw.com/index.php