• An Immigrant’s Nightmare: The Case for More Reform
  • August 22, 2012
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • At a time when all we hear is how our country has a budget shortfall, and agencies are experiencing painful hiring freezes even for critical positions, the story of below is just too disquieting, and bizarre, not to report.  Especially against the back drop of a policy that calls for the deferred removal of thousands of young undocumented residents who are going to college or serving in our military, this story just seems inconsistent with what our government is trying to achieve.

    An Indian national, let’s call him Alok, was an engineer for a multinational software development company with outposts in Asia, the Americas and Europe.  He had been in the United States as an intra-company transferee (on an L-1 visa) for two years. When he sought a statutorily permissible extension of his stay, the same immigration agency that approved his first visa denied the extension.

    Rather than appealing the decision, Alok and his employer decided just to transfer him back to India. Within seven days after receiving the denial, Alok, along with his wife and two young children, had packed up their belongings and were headed to the airport for their flight back to New Delhi. It was then that the nightmare for Alok and his family began.

    After Alok and his family checked in their luggage and got their boarding passes, they sat down at a Cinnabon so the kids could eat something before embarking on their long flight home. Seemingly out of nowhere, agents from U.S. Customs and Border Protection (CBP) handcuffed and arrested Alok for being in the country illegally. Despite having never broken any of our federal, state or local laws, having always paid his taxes in a timely manner, and even respecting our immigration rules by trying to return to his home in India, Alok was thrown into a facility used by the Department of Homeland Security and charged with overstaying his visa. The government has presented no other allegations against this man that might make such an inexplicable action more understandable. 

    Eventually Alok was released on bond—of course not before enduring immense emotional and financial hardship. He now awaits a hearing before an immigration judge just to say that he wants to leave the country.

    This firm has been assisting Alok and his employer in trying to resolve this matter. In the course of our work, we have learned, sadly, that Alok’s story, though uncommon, is by no means unique.

    CBP’s actions here are not only blatantly wrong as a personal matter for Alok and his family. They are also against our own national interests. For starters, Alok’s detention does nothing to entice educated, law-abiding people like him to add their talents to the American workforce. Why would anyone want to risk being the focus of such a humiliating and confounding experience?

    Second, we keep hearing our government agencies complain about a budget shortfall.  If Alok’s case is any reflection at all on the way federal enforcement agencies prioritize their work, we definitely can see why.  It costs money to house and to feed Alok.  According to a National Immigration Forum report, Congress appropriated $2.75 billion for immigration detention in fiscal year 2012.  The average cost per detainee per day is $166.  What sense does it make to lock up Alok, who was as compliant as he possibly could be with our immigration and other laws?  In fact, it would have made more sense for DHS to put Alok in a two-star motel and treated him to free meals at a chain restaurant.  It would have served the government’s goal for only a fraction of the cost.

    Third, U.S. Immigration Court dockets are up by more than 30 percent in the past 18 months, according to a Syracuse University study.  The extra workload has also increased wait times for rulings, up to an average of 443 days. In addition, the backlog of immigration cases is at an all-time high, with the average wait time climbing to 526 days - and as high as 755 days in the busiest districts - before a case can be heard. Does it make any sense to add Alok’s case to this backlog?

    We do not suggest that Alok’s story necessarily reflects DHS policy. There also is nothing wrong with a culture of tough enforcement so long as it is infused with a culture of common sense.  To start changing this culture, we suggest that:

    1)    When the government denies a timely filed and legitimately sought application for any immigration benefit, the government grant a grace period of no less than thirty (30) days to depart the country voluntarily;

    2)    When exercising arrest and detention authority, use common sense to determine whether the government is spending its resources wisely. Enforcement officials should be commended for exercising discretion instead of creating a culture of “CYA” where denying a benefit or locking up a person is always the safer choice; and

    3)    When encountering a foreign national who is on his/her way out of the country, unless there are other enforcement interests to keep him/her here, such as criminal prosecution or a national security threat, let him/her go.

    Finally, the image of the United States is at stake here. How many stories like Alok’s can the most desirable members of the immigrant community endure before the U.S. is viewed as an arbitrary, intolerant nation rather than the land of democracy, due process, and opportunity. The answer seems obvious as more and more immigrants, educated at American schools and universities, simply chose to head home.