Immigration policy hasn’t always been the friendliest to migrants entering the country illegally, especially young children. Activists and all those in favor of a more lenient policy will be happy with the U.S. 9th Circuit Court of Appeals’ recent decision that handed down a ruling confirming migrant children who cross the border accompanied by a parent are afforded the same protections as children who cross without one. The aspect gaining the most attention requires migrant children held in family detention centers be released without unnecessary delay, regardless of whether they crossed the border alone or with a parent.
Why is this important, you ask? Well, in the past, unaccompanied children were the only ones afforded any protection. Situations affecting children accompanied by parents went, for years, largely unnoticed. It wasn’t until members of a nearly two-decade-old class action lawsuit brought the issue to the forefront and requested the court order authorities to enforce the Flores Agreement.
A Little History on the Flores Agreement
Back in the 80’s, a few organizations filed a class action lawsuit on behalf of immigrant children who had been detained by the Immigration and Naturalization Service (INS). The lawsuit basically challenged the procedures regarding detention, as well as the treatment and release of children detained after illegally entering the country. In 1997, the lawsuit eventually ended up settling and, thus, the Flores Settlement Agreement was born. That Agreement required government authorities to:
The Office of Refugee Resettlement (ORR) replaced the INS and now oversees responsibility for the care of these unaccompanied children. Herein lies the crux of the question before the Court of Appeals. Does the Flores Agreement apply to all children—unaccompanied and those that are accompanied by their parents?
Lower court Ruled Yes Based on Contract Law
In July 2015, Judge Dolly Gee of the U.S. District Court for the Central District of California ruled that the government violated the terms of the Agreement. Not only did she find the detention centers to have deplorable conditions, but she ruled the Flores Agreement applied not just to children who cross the border alone, but to children accompanied by parents as well.
The enforcement of the Agreement is based solely in contract law and that’s where the courts get their power to interpret and enforce such an agreement. This means the courts must consider the contract as a whole and give effect to the mutual intention of the parties; following plain language only controls when the contract terms are clear. Judge Gee ruled the plain language of the Agreement encompassed accompanied children.
Here’s an excerpt from the Agreement:
“All minors who are detained in the legal custody of the INS.”
All minors. Looks pretty clear, right? To further back her decision, the Agreement defines a minor as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS.” Simple contract law tells us that when language is ambiguous, extrinsic evidence of intent is admissible. Judge Gee considered this language as wholly unambiguous and, therefore, even if the government had offered any evidence to a contrary intent, which they didn’t, it wouldn’t have mattered—the language is clear and doesn’t place any restrictions on a child’s travel partner (or lack thereof).
What About the Parents?
The Court of Appeals agreed with Judge Gee’s decision. Not only is the language clear, but, secondly, the Agreement provided special provisions in relation to unaccompanied minors. As Judge Gee reasoned, it wouldn’t make much sense to include extra guidelines specifically for unaccompanied children if the intention was to only applied to unaccompanied minors. Third, the Court of Appeals affirmed that the Agreement included two different definitions of minors that would not be protected—accompanied minors were not one of them.
The unfortunate part of this case is that because the decision rests solely on contract law principles, this means the court had no place to determine issues outside the Agreement. The Flores Agreement pertains strictly to migrant children—parents aren’t protected. Since neither court could address any issues outside the contract of Flores, it raises potential issues.
Where does that leave accompanying parents when the law requires that their children be timely released from detention? The only alternative is to release the children and let their parent(s) be released with them. The government could employ alternative means to detention, but this is definitely an area that will need to be addressed and we’ll likely see the effects of the ruling sooner rather than later.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
Competitive video games, often called eSports, are taking the world by storm. In 2014, more people tuned in to watch a video game tournament—the League of Legends championship—than the World Series, NBA Finals, or Stanley Cup. With a worldwide audience of over 134 million people and yearly revenue of over half a billion dollars, eSports is here to stay and only getting bigger.
The U.S. gets one of the biggest slices of the eSports pie, making over $143M per year. The U.S. has also long offered temporary P1 visas to professional athletes, allowing them to come to the country and compete. So maybe it should come as no surprise that, in 2013, the US provided the first P1 visa to a professional League of Legends gamer. This has set the precedent for several other professional gamers to receive P1 visas.
Smashed Hopes: Visas Denied
Super Smash Brothers is an incredible popular video game from Nintendo. The game features classic Nintendo characters—as well as a few special appearances—pitted against each other in combat. The game has seen numerous versions, each with its own competitive scene. The version with perhaps the most persistent competitive scene is Super Smash Brothers Melee.
William Hjelte, known as “Leffen” in the competitive community, is considered a top Super Smash Brothers player. He has been controversial in the scene, considered a bit of a villain for his brusque manner and rude behavior, but is known for high placements at the biggest tournaments and consistently defeating players considered to be the best Smash Brothers Melee has to offer.
In 2015, on his way to a large Smash Brothers tournament in the U.S., Leffen was turned around and deported from the country—his P1 visa had been denied. He was told that he did not qualify for a P1 visa because "Super Smash Bros. Melee is a grassroots game that is not institutionalized, Melee is not considered a legitimate sport, there is no real ranking system other than a few non-legitimate websites." This inability to get a P1 visa kept Leffen out of the biggest tournaments until he managed to finally secure a visa with the help of his sponsors—Red Bull and Team Solo Mid.
This uncertainty in treatment for visas leaves international players in an eSport uncertain of their future. In the last few weeks, however, the Smash Brothers community has taken advantage of Obama’s “We the People” initiative. They’ve launched a petition to the White House, requesting U.S. Citizen and Immigration Services (USCIS) to officially recognize all eSports as actual sports.
The petition was started April 29th and already has about 64,000 of the 100,000 signatures it needs for the petition to be given to the White House for review. There are several potential advantages to eSports being an officially recognized sport. However, the most important one to the Smash Brothers community seems to be consistent P1 visas.
Petitioning for P1s: Will it Work?
A P1 visa is a temporary visa that allows entertainers and athletes to enter the U.S. for a specific event or performance for up to 5 years. Entertainers must apply as part of a group, while athletes can apply as a team or individually. An athlete seeking a P1 visa must first show evidence of having legally contracted with a major U.S. sports league as well as providing a written consultation from labor organizations with expertise relevant to their sport. They must also provide evidence that the athlete meets at least two of the following criteria:
If eSports are indeed sports, many eSports players could at a minimum show honors in their sport, rankings, and provide written statements from experts on their sport. However, even if eSports are sports, this won’t be enough to guarantee high tier players P1 visas. The question may simply shift from whether eSports are sports to which competitive video games are true eSports. There are countless games that are played competitively, arguably any multiplayer video game that has organized tournaments could be considered a legitimate sport.
The issue the USCIS had with Leffen’s P1 application was not whether he was an athlete, their issue was that competitive Smash Brothers Melee was not organized enough to be a legitimate sport. Many of the larger competitive video games, such as League of Legends, have leagues associated with them in much the same way as the NBA represents basketball. The League of Legends competitive scene is governed by regional leagues under the League of Legends Championship Series or LCS.
In order to truly ensure P1 visas to their players, regardless of whether eSports are sports, competitive video games will need to restructure themselves. This will require investment on the part of game developers, just as has been done with League of Legends. As they are, many competitive games are mostly ranked and organized through the fans of that game. Without a true organized league, receiving P1 visas will be difficult.
P1 visas leave a great deal of discretion to the agent of the USCIS that is handling them. Even if the recent petition becomes law and competitive video games organize themselves into leagues, there is a real chance that some agents will look at requests with substantial skepticism. Many P1 visas for eSports players require refiling, which can be done immediately after rejection, or appeal.
The first P1 visas for eSports athletes that were actually granted required a long back-and-forth process. League of Legend’s LCS stated “This was a lengthy process; we had a lot of people fighting for this and it wasn’t something that happened overnight. This was a constant back and forth of ‘show us more proof… is this realistic?’ and that sort of thing. Eventually it got to the point where they were like ‘we have no reason to say no… okay, this is legitimate.”
A Good First Step
The fact that USCIS has provided P1 visas to some eSports players in the past indicates that there are at least some situations where they believe eSports to be legitimate sports and its players athletes.
A classification of all eSports as official sports is a huge step, but it is unlikely to have the effect the petition’s proponents hope it will have. An unorganized video game competition will be unlikely to be treated as an eSport. Just like with Leffen, the efforts of the sponsors, organizers, and game developers will be necessary to structure competitive gaming into true eSports.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
In the United States, around 1.4% of students in kindergarten to high school are considered undocumented. Often, the children come to the U.S. when they were young and their parents were undocumented. At the moment, 1.4% means around 1 million children are in the U.S. illegally. Many of these individuals were raised in the United States, speak English, and are trying to become productive members of society.
In New York State though, the State Education Department voted to allow qualifying individuals to receive certifications and licenses for professions in education despite unauthorized immigrant status. This is a great step forward to helping the young and growing population, but it brings a lot of unresolved issues into the light.
What is the situation that undocumented immigrants face? Who benefits from the State Education Department’s decision? Why is this so important in the first place?
When There is No Place To Call “Home”
Under the current immigration law, there are 4.4 million undocumented immigrants. These young individuals who grew up and lived in the United States, unfamiliar with their country of origin, may be forced to return to a country they know nothing about.
These young individuals were brought to the U.S. when they were children. They did not have a choice whether to come to the U.S. or stay in their family’s home country. Now, they live in a country that wishes to deport them to a country that they never considered to be their home.
Along with isolation and fear of deportation, they do not have a right to work and cannot receive welfare or food stamps. The decision from the State Education Department can be a real step forward to help them gain valid employment and become U.S. citizens.
But the Number of People that Benefit From the Decision is Limited
To benefit from the State Education Department’s new policy, all applicants need to qualify under the Deferred Action for Childhood Arrival (“DACA”). Individuals need to apply for DACA and must fulfill the following requirements:
Due to the nature of illegal immigration, it is not clear how many people fall under this category. But, as of 2012, the U.S. government estimates that there are 11.4 million illegal immigrants in the nation. Of the 11.4 million illegal immigrants, only 1 million of them are children and even then, not all will be able to apply for DACA.
A Limited Number Will Benefit from the New Policy, So Why is this So Important?
Right now, immigrants in the U.S. face many struggles to join and integrate into society. But it is far more difficult for illegal immigrants who fear detention or deportation at any moment. They face the options of deportation or accepting a job that may pay less than minimum wage.
As the number of illegal immigrants raised in the United States grows, Development, Relief, and Education for Alien Minorities Act (“DREAM Act”) have been enacted throughout various states. But even then, Acts like the one in California only offer illegal immigrant students a chance to apply for financial aid. It does not give them a path to apply for citizenship.
The reality is that there is no clear, guaranteed way for illegal immigrants to gain citizenship. They may marry a U.S. citizen, they may be sponsored by their employer, or they may apply for asylum/refugee status. In each case, the government will track and regulate those paths to citizenship. It may put relatives that cannot pursue those paths in danger of detention or deportation.
In 2015 alone, 96,519 individuals with no criminal ties were deported. The number may seem high, but in fact 2015 was the lowest year of deportations since 2008. Families were separated, with many U.S. born children forced to follow or say good-bye to their parents and older siblings. The State Education Department’s decision to allow qualified individuals to apply for professional license and certification gives young immigrants a chance to find legal employment. It will give these individuals a chance to become citizens of our nation and forge a path for those that will follow.
Authored by Janice Lim, LegalMatch Legal Writer
Here’s some background: Salomon Ledezma-Cosino illegally entered the United States in 1997. Except for a couple brief departures, he hasn’t left the country. Currently, he has eight children. Only five are natural-born U.S. citizens. Ledezma-Cosino works in the construction industry.
In 2008, Immigration and Customs Enforcement, or ICE, detained him. After several hearings in front of an immigration judge, Ledezma-Cosino stopped fighting deportation and conceded to be removed from the country. However, he sought to cancel voluntary, or removal departure.
The request was denied.
According to the immigration judge, Ledezma-Cosino was ineligible for cancellation because, as a former alcoholic, he lacked good moral character. According to his medical records, for 10 years he drank an average of about one liter of tequila every day. In addition to the chronic alcoholic diagnosis, he’s also been diagnosed with acute alcoholic hepatitis. The condition destroys the liver. He’s had at least one DUI, conviction.
Ledezma-Cosino appealed the denial. His appeal was denied. He petition for review. His review petition was based on 1101(f)(1) violating of his due process or equal protection. In other words, he was being discriminated against because of his alcohol problem, not absence of good moral charter.
The government made a strong argument against cancelling the voluntary departure. Ledezma-Cosino is an illegal immigrant. Illegal immigrants aren’t protected by due process or the equal protection claim. On March 24, 2016, Ledezma-Cosino won. The 9th Circuit Court of Appeals panel agreed with his argument. The Court conceded the government’s point of illegals not having rights, but the Court determined the law the government used to deport him was illegal.
If the government doesn’t appeal the verdict, Ledezma-Cosino can petition to stay in the country or voluntarily leave.
For More Than 50 Years Immigration Law Associated Good Moral Character with Deportation
In a 2-to-1 decision, the 9th Circuit Court of Appeals struck down part of 8 U.S.C. 1101(f)(1). The law outlined the reasons why an illegal immigrant can be deported. One part of the statute focused on good moral character. Among the things considered immoral are things like:
The court had a very simple rational for striking down the law. Judge Stephen Reinhardt wrote this question in the majority opinion:
“Is it rational for the government to find people with chronic alcoholism are morally bad people solely because of their disease?”
Reinhardt wrote the answer, “No.”
Was the Decision to Strike Down 1101(f)(1) a Good or Bad Decision?
Yes, it was a good decision, but a complicated issue. Let’s look at this 50-year-old bad law. The public connected alcoholism with morals, even though there is almost no evidence that alcoholism is a result of bad or lack of morals. Just because someone drinks doesn’t mean they are morally bankrupt. It means the person has an issue to overcome. Whether it is deemed a disease or temporary setback on a person’s life journey depends on a person’s view of alcoholism.
So the problem with the law is that it connects moral character with drinking. Judge Richard R. Clifton, who dissented, wrote the law was applied wrong. He claimed it should be upheld because the person with an alcohol problem doesn’t lack the free will or is susceptible to moral evaluation. He missed the point. Alcoholism doesn’t define a person’s moral, personality, or who they are. Thus, to deport some people because their “habitual drunkenness” makes them have bad morals is wrong.
The Moral Issue
Many people who disagree with the decision may cite the good moral character involved in immigration. According to the Immigration and National Act, or INA, to become a naturalized citizen one must have good moral character. Unfortunately, there’s no clear definition of good moral character. It’s just used to mean the person’s behavior meets the moral standard held by the average American citizen.
Bad, or poor, moral character can stop someone from becoming a naturalized citizen. It can also get an illegal immigrant or permanent resident deported.
It’s Not About Good or Bad Moral Character—It’s About Being Illegal
The complicated part about this entire legal issue is the government is deciding whether to deport someone based on an arbitrary list of moral behavior. However, when an individual enters the country without a visa, or proper documentation, he or she is an illegal immigrant. When an individual enters the country legally, but remains after losing legal status, he or she is an illegal immigrant. They’ve broken the law and is a criminal under immigration law.
Why does the country have to have a reason to deport them? The issue shouldn’t be about Ledezma-Cosino’s past drinking problem or what defines good moral character. Those issues just muddy the waters. Immigration should be overhauled to require those here illegally to return to their native country—no exceptions. Every year, those who enter the country legally and follow the rules are rewarded with citizenship. Those who can’t follow the law shouldn’t be rewarded with citizenship or allowed to stay in the U.S.
Authored by Taelonnda Sewell, LegalMatch Legal Writer
Last year, a Taiwanese woman in labor may have forced a plane to divert to Alaska in an attempt to give her baby American citizenship. It worked, but she was sent back to Taiwan without her American baby.
While she could face a hefty bill for forcing the plane to land, there’s a larger legal issue. According to Alaska state officials, the baby is eligible for U.S. citizenship. Any baby born in flight has the right to be an American citizen if that is where the baby first arrives—even if born in international air space.
Automatic Citizenship vs. Automatic Birthright Citizenship
Children born to two U.S. citizens are automatically citizens. This is different from receiving automatic birthright citizenship, which comes if only one parent is a U.S. citizen. If only one parent is a U.S. citizen at the time of a baby’s birth, the parent must have lived in the country for at least five years after reaching 14 years old for the baby to qualify for automatic birthright citizenship.
Even if one parent is a U.S. citizen, there’s no conditions on the child keeping citizenship. The only glitch is regarding illegitimate children. Typically, automatic citizenship applies—with no conditions—but the U.S.-born father must acknowledge paternity before the child’s 18th birthday. The acknowledgment must be in writing or by court order. In addition, the father must financially support the child until his or her eighteenth birthday.
A baby eligible for automatic birthright citizenship is one who either has one or both parents without U.S. citizenship status. According to the Pew Research Center, at least 4.5 million children live in this country who have at least one parent not authorized to live here. Approximately 4 million illegal immigrants live in the country with their U.S.-born children.
The debate on whether to get rid of the automatic birthright citizenship has raged on for years. Opponents of this type of citizenship claim parents who aren’t allowed in the U.S. shouldn’t be rewarded. Some proponents argue it’s not the parents or the children that is the problem.
Pros of Citizenship by Being Born in the U.S.
1. Birthright Citizenship Doesn’t Guarantee Parents’ U.S. Citizenship
My colleague Jay Rivera wrote in his blog that “anchor babies” don’t give their parents automatic U.S. citizenship. Indeed, having a baby who has automatic birthright citizenship won’t stop a parent or parents from being deported. Yes, once 21 years old, the child can decide to petition for the parents to become citizens. However, the child has to meet income requirements and the parent or parents must meet eligibility requirements. If they were here illegally and left, they probably face a 10-year reentry ban.
2. The 14th Amendment Supports Automatic Birthright Citizenship
Many other countries based their citizenship on bloodlines, or in Latin: “jus sanguinis.” In contrast, the U.S. has long been a nation of immigrants. This is reflected in the 14th Amendment, which grants anyone born on American soil—or airspace—citizenship.
3. Stopping Birthright Citizenship Won’t Solve the Immigration Problem
The U.S. definitely has an immigration problem. According to the U.S. Department of Homeland Security, or DHS, 11.4 million illegal immigrants reside in the country. However, changing automatic birthright citizenship ignores the fact that most people living here illegally arrived after they were adults.
Cons of Citizenship by Being Born in the U.S.
1. Maternity Tourism
For decades, temporary foreign workers, foreign students, international travelers and permanent visa residents and those who’ve entered the U.S. illegally have used birthright citizenship to their advantage. One prime example is the Taiwanese woman who wanted to give birth in America and diverted the plane just to do so. The problem is, temporary foreign workers and foreign students are here to either work or go to school. They are here to travel. They shouldn’t be able to use the system to remain in the United States longer or give their children something that isn’t rightfully theirs to give: American citizenship.
2. Automatic Birthright Citizenship Should Be Eliminated
Automatic birthright citizenship is an antiquated practice. Many countries have already eliminated this practice. America should do so too. No matter how bad the term “anchor babies” may sound, that is what happens. The baby eventually will anchor some relative to America. The child will grow up and may decide to bring the former temporary foreign worker or foreign student back to the U.S. Maybe she will decide to bring a grandparents or siblings to the country. The point is that the baby who receives automatic birthright citizenship is a possible pipeline to American citizenship for others.
3. Automatic Birthright Citizenship Hurts The Immigration Process
The process of giving U.S. citizenships to babies just because they were born on U.S. soil hurts the immigration process. About 779,929 people became naturalized U.S. citizens in 2013. They earned their American citizenship. They worked hard and played by the rules. Granting citizenship to babies just because they were here is a great incentive for more illegal immigration, not less.
4. The 14th Amendment Isn’t Connected to Automatic Birthright Citizenship
Many proponents of automatic birthright citizenship point to the 14th Amendment as the reasons not to get rid of the “right.” Well, they’re wrong. The language of the Amendment has two criteria. The first is one must be born in the United States. The second is the person must be to the jurisdiction of thereof. Both requirements can’t be met by just being born in the country.
To be “subject to the jurisdiction thereof” refers to a citizen not owing an allegiance to any other foreign country. It was designed to ensure people granted U.S. citizenship were loyal to the country and jurisdiction there resided.
In fact, according to U.S. Senator Jacob Howard, the 14th Amendment specifically excluded people born in the country who are foreigners, ambassadors’ families, foreign ministers accredited to the U.S, and Native Americans born within the U.S. and whose tribes retain relations with the federal government.
Should America Continue Automatic Birthright Citizenship?
No. It’s doesn’t make sense to continue automatic birthright citizenship. This system rewards those on maternity tourism who want U.S. citizenship, but not willing to work for it. Besides, American citizenship is too precious just to give away to anyone. Stop the practice now.
Children born in the U.S. because of their parents’ choices should be eligible for U.S. citizenship at the age of 21. Ultimately, it should be their choice if they want to become a U.S. citizen or remain a citizen of their parents’ country.
Authored by Taelonnda Sewell, LegalMatch Legal Writer