// // It's true, one part of United States immigration policy has a major focus…
A Black former U.S. diplomat recently shared her experience of months of racial profiling by U.S. Customs and Border Protection (CBP) officials while she was stationed at the U.S. Consulate in Ciudad Juárez, Mexico. She was tasked with enforcing U.S. immigration law, but nevertheless found herself racially profiled and discriminated against by U.S. immigration,
A Black former U.S. diplomat recently shared her experience of months of racial profiling by U.S. Customs and Border Protection (CBP) officials while she was stationed at the U.S. Consulate in Ciudad Juárez, Mexico. She was tasked with enforcing U.S. immigration law, but nevertheless found herself racially profiled and discriminated against by U.S. immigration authorities.
The problem became so severe that she now suffers from post-traumatic stress disorder and had to quit her job. Unfortunately, this is just one example of immigration officials’ long history of racism at the border.
CBP Racially Profiles a U.S. Diplomat
In 2018, Tianna Spears was a new diplomat stationed at the U.S. Consulate in Ciudad Juárez, Mexico. She frequently crossed the border into El Paso, Texas, as thousands of other U.S. citizens do every day. However, she soon found that she was treated differently than others by CBP officers at the border.
Spears estimates that CBP officers required her to go through “secondary inspection” approximately two out of every three times that she crossed. This outcome should have been extremely rare given her diplomatic passport and SENTRI card allowing for expedited clearance. Her non-Black colleagues never had similar experiences.
Spears repeatedly raised the issue to CBP and her consulate supervisors, but the situation only worsened. She reports that CBP officers sometimes did not believe she was a diplomat and accused her of stealing her car. Their questioning was aggressive and threatening.
The mental health effects of the harassment eventually forced her to leave her job and return to the United States.
CBP Has a Long History of Racism
There is a long and documented history of immigration officials engaging in racial profiling and harassment at ports of entry.
Throughout the first half of the 20th century, Mexican citizens crossing into El Paso had to undergo a delousing process. CBP officials stripped them, shaved their heads, and forced them to take a bath in gasoline. This discriminatory process was based on a stereotype that Mexicans were dirty and diseased.
Much more recently, the Office of the Inspector General found that CBP improperly retaliated against one of their officers that reported misconduct he observed within the agency. The officer stated that CBP was disproportionately targeting Black drivers for further inspection at the ports of entry between Detroit, Michigan and Windsor, Canada.
But CBP’s history of racial profiling is not limited to people crossing the border. The agency also has the power to stop and question people within 100 miles of borders or coastlines. Approximately two-thirds of Americans live within this area, which is sometimes called the Constitution-free zone.
Border Patrol Targets People Who “Look Mexican”
CBP’s activities within the border zone are performed by one of its component agencies, the Border Patrol. The Border Patrol has targeted border residents appearing to be of Mexican descent for almost 100 years. Throughout that time, people going about their daily lives near the border have been racially profiled, stopped, and interrogated—regardless of U.S. citizenship or immigration status.
In 1975, the Supreme Court ruled that “Mexican appearance” could not be the sole reason a roving Border Patrol officer stopped someone. It could, however, be a “relevant factor” in deciding whether to do so.
The Border Patrol runs permanent and temporary checkpoints on roads leading away from the border. A 2015 American Civil Liberties Union report Guilty Until Proven Innocent revealed that CBP officers working at checkpoints racially profiled and even interfered with the medical care of border residents.
Residents of Arivaca, Arizona conducted observations of the checkpoint at the entrance to their community. Latino-occupied vehicles were more than 26 times more likely to be required to show identification while passing through the checkpoint.
In 2014, the Department of Justice modified its guidance on officers discriminating based on race or ethnicity. Previous loopholes gave law enforcement permission to discriminate. However, other loopholes remain, including some for CBP activities at or near the border.
Stories like that of U.S. diplomat Spears serve as examples of the historical and institutional racism within CBP and the U.S. immigration system more broadly. We need increased transparency and oversight to force cultural changes within CBP. These significant changes are necessary to prevent further injustices and ensure the Constitution applies equally to all people.
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The Green Card Process Through the Lens of a DMV Visit
As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful. One analogy I’ve found to work well to explain the green card process beyond describing its mere,
As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful. One analogy I’ve found to work well to explain the green card process beyond describing its mere sequence of form filings likens the process to a visit to a Department of Motor Vehicles (DMV) office.
In my practice area of business immigration law, green card processes are mostly employment-based and involve the successive filing of a labor certification application, immigrant petition, and adjustment of status application (with the first not always required and the latter two sometimes eligible for concurrent filing). So I’ll refer to these types of filings in describing the analogy here. But variations of the analogy may be equally applicable to other types of green card processes, such as those in which the aspiring permanent resident will apply for an immigrant visa overseas rather than adjustment of status within the United States, as well as those based on family relationships and those available to asylees and refugees.
The trappings of a visit to the DMV, no matter the state, may be familiar to you: the issuance of a waiting number determining your place in a queue, followed by a long wait for your number to be called at one of several counters to file required paperwork, followed yet again by a lengthy wait for your paperwork to be processed, and eventually – hopefully – approved without issue. The counter at which you’ll be called, and the length of the corresponding queue (or maybe in some fortunate instances, the absence of one altogether), often depends on specific factors, such as the type of service you’re seeking.
Just as you’re issued a waiting number upon entry into a DMV office, aspiring permanent residents are issued a priority date when the first major filing in their green card process (either the labor certification application or immigrant petition) is submitted. The priority date is the date this first filing is submitted and determines, once the immigrant petition is approved, the aspiring permanent resident’s place in any existing queue to apply for adjustment of status.
Similar to how you wait at the DMV for your number to be called to file your paperwork at the appropriate counter, aspiring permanent residents face varying wait times for their priority date to be “called” at a designated “counter” to apply for adjustment of status. The “counter” in the green card process at which aspiring permanent residents must apply for adjustment of status is based on a combination of two main factors: their immigrant classification (which, when speaking with clients, I refer to as their “green card category”) and their country of chargeability (which I refer to as their country of birth). Aside from some significant exceptions outside of the employment-based green card process, the law limits the supply of green cards available each fiscal year. Because the law allocates this limited supply based on a combination of both immigrant classification and country of chargeability, queues form at “counters” where the demand for green cards exceeds the available supply. And the more severely demand exceeds supply, the longer the queue will be. This analogy helps to show why EB-2 and EB-3 immigrants born in India and China are often confronted with waits lasting many years for their priority date to be “called” at their designated counters, while EB-2 and EB-3 immigrants born in most other countries often face no such queue. In technical terms, the existence of a queue at a given “counter” means the availability of green cards associated with that counter’s classification and chargeability combination is “retrogressed.” If there’s no queue, green card availability at that counter is “current.”
A visit to the DMV often entails a wait of several hours sitting and keeping watch of your designated counter at it serves the visitors who arrived before you until your own number is finally called. Likewise, many aspiring permanent residents monitor the often plodding, month-to-month movement of “cut-off dates” in the Bureau of Consular Affairs’ monthly Visa Bulletins for the designated “counter” at which they must apply for adjustment of status. The Visa Bulletin for a given month contains various charts showing whether a queue for filing an adjustment of status application exists for any classification and chargeability combination, and if so, how long the queue is. Combinations for which there is no queue are assigned a “C” notation, indicating that green card availability is current and that the adjustment of status application can thus be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming any prerequisite labor certification has been granted. Combinations for which there is a queue, and for which green card availability is thus retrogressed, are denoted by a “cut-off date,” with older dates reflecting longer queues. Aspiring permanent residents seeking to adjust status at a “counter” at which green card availability is retrogressed can track their place in the queue by comparing their priority date with the applicable cut-off date each month. Priority dates that fall before the applicable cut-off date in a given month are those that have been “called,” indicating that much like counters at which green card availability is current, an adjustment of status application can be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming again that any prerequisite labor certification has been granted.
Like processing of paperwork filed at a counter at the DMV, processing of an adjustment of status application may take a long time. But eventually – hopefully – the application is approved without issue. And unlike a visit to the DMV, having qualified counsel during the green card process can make all the difference in one’s chance of success.
 For example, “immediate relatives” (spouses and children of US citizens, and parents of US citizens if the citizen is at least 21 years old) are exempt from annual numerical limits on green card availability. INA 201(b)(2)(A)(i).
 Aspiring permanent residents for whom the queue for applying for adjustment of status involves a wait of several years, such as EB-2 and EB-3 immigrants born in India and China, commonly change jobs or employers in the course of their wait. Such a change can require a restart of the green card process since employment-based green card processes are generally job and employer specific. But to allow aspiring permanents residents who change jobs or employers to keep their place in queue, the law permits them to retain their priority date under certain conditions if they are the beneficiary of a previously approved EB-1, EB-2, or EB-3 immigrant petition, and likewise become the beneficiary of an approved EB-1, EB-2, or EB-3 immigrant petition based on their new job or employer. 8 CFR 204.5(e).
 US Citizenship and Immigration Service also publishes monthly updates indicating whether to use the Visa Bulletin’s Dates for Filing charts or its Final Action Dates charts, to determine whether an adjustment of status application may be filed.
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