The “American Dream” is a Fallacy

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Americans continue to kid themselves that if you work hard you can climb the ladder. But the perception and reality are moving farther apart.

Economists at Harvard University recently published research on actual and perceived economic mobility in the United States and four European countries. They found an American public in denial. The data show that Americans believe the chance that a person who is born into the bottom 20% of households in income in the US can reach the top 20% in adulthood is more than 50% higher than in reality.

Not all other countries suffer from such misconceptions. The four European countries the researchers studied—Italy, the United Kingdom, France and Sweden—actually underestimated the likelihood of a person moving from the bottom to the top.

Based on surveys of at least 1,000 people in each country, the following chart shows how likely people think children born into the poorest 20% of families will grow up to be among the richest 20%, along with the most recent high-quality data on the actual probability.

While the average American thinks that about 12% of those in the poorest fifth households make it to the top, the true number is less than 8%. In contrast, people in the other four European countries surveyed are all overly pessimistic about the economic chances of those born poorest. The French, who underestimate mobility from the bottom to the top by two percentage points, is the most erroneously dour.

People on the political right tend to perceive greater economic mobility than those on the left in each country studied. For example, in the US, the average person that the researchers identified as left-wing guessed that 11% of people from the bottom 20% move to the top, and the average right-wing person guessed that it was 12.5%. Due to this bias, European perceptions about intergenerational mobility are more accurate on the right, while in the US, those on the left tend to guess numbers closer to the truth.

Beyond just looking at perceptions of mobility, the researchers also gathered data on people’s beliefs about economic fairness. They found that even though climbing the economic ladder is least likely in the US among the countries they surveyed, Americans have unusually strong beliefs in the fairness of the economic system, and the relationship of hard work to succeed.

The researchers also discovered that, within the US, an overly optimistic outlook about economic mobility is concentrated in the parts of the country where actual mobility is lowest. The Southeast is the area of the US with the lowest economic mobility and highest inequality. Yet the average Southeasterner believes that the chances of someone from the bottom 20% reaching the top are almost double what they actually are.

ratioeconomicopportunitymap

The idea that anybody can make it in the US if they work hard enough has been a bedrock of American life since the country’s birth. At one time, this might have been truer than today. Because historical data is difficult to obtain, researchers are unsure of whether economic mobility has decreased in the US, but it likely has. Inequality and economic mobility are highly correlated, and inequality has been on the rise in the US for the last half-century. If it’s true that mobility has decreased, awareness has not caught up to reality.

These misperceptions matter. Beliefs about economic mobility are strongly related to support for higher taxes on the rich (pdf) and government spending on education and public health. Even for those who don’t believe the government is effective at solving social problems, accurate perceptions of how likely it is for the poor to reach the top may change attitudes to philanthropy and volunteerism.

The US is no beacon of economic opportunity. It’s time Americans realized it.

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BIA to Downgrade New Staff Attorney Hires

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Eugene Kiely and D’Angelo Gore, May 30, 2018 – “The claim: “Think of it, a lottery. You pick people. Now, let me ask you. So these countries that are sending people in — do you think they are sending us their finest?”

The facts: Trump is again distorting the Diversity Immigrant Visa Program, which uses a computer lottery system to randomly issue up to 50,000 immigrant visas each year to qualified applicants from countries with low rates of immigration to the United States. Countries aren’t “sending us” anybody. Individuals submit applications, and those eligible must meet certain requirements and pass a security background check. Stephen W. Yale-Loehr, who teaches immigration law at Cornell Law School, told us: “Among other things, the consular officer must make sure the individual is not ‘inadmissible.’ This means that the person has not committed a crime, doesn’t have a serious health problem, isn’t a terrorist, hasn’t committed fraud, and hasn’t overstayed in the U.S. before.”

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BIA to Downgrade New Staff Attorney Hires

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Jeffrey S. Chase, May 27, 2018 – “In another employment-related development that has drawn little public notice, the Department of Justice on May 17 posted a hiring ad for 38 vacant staff attorney positions at the BIA. The twist is that for the first time, the positions were advertised as being entry level grade positions with no potential for promotion. EOIR Director James McHenry had hinted since his appointment that he believed BIA attorney positions should be downgraded. There is something disingenuous about such statement. I can think of at least three immigration judges who were appointed to the bench directly from their positions as non-supervisory BIA staff attorneys. Two of the four temporary BIA Board Members at present are long-term BIA staff attorneys. The present BIA chairperson, David Neal, previously served as a Board staff attorney for 5 years, a position that apparently qualified him to directly become chief counsel to the Senate Immigration Subcommittee. Nearly all of the BIA’s decisions, including those that are published as precedent binding on the agency and DHS, are drafted by its staff attorneys.

Some of those attorneys have accumulated significant expertise in complex areas of immigration law. A number of Board staff attorneys have participated as speakers at the immigration judge training conferences. The question thus becomes: how are experienced attorneys who are deemed qualified to move directly into immigration judge and BIA Board Member positions, to craft precedent decisions and to train immigration judges only deemed to be entry-level, non-career path employees? There has been much attention paid to the nearly 700,000 cases pending before the nation’s immigration courts. As the agency moves to hire more judges and limit continuances, and recently had its power to administrative close cases revoked by the AG, the number and pace of cases appealed to the BIA will speed up significantly. It would seem like a good time for the BIA to be staffed with knowledgeable and experienced staff attorneys. Instead, the agency’s move essentially turns new BIA attorney hires into short-term law clerks. New attorneys undergo a full year of legal training to bring them up to speed to handle the high volume and variety of complex legal issues arising on appeal. However, attorneys are unlikely to remain in such positions for much more than a year without the possibility of promotion.”

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U.S. 9th Circuit Court of Appeals on Motions to Reopen – Miller v. Sessions (May 8, 2018)

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Miller v. Sessions (May 8, 2018) – “The question presented in this case is what happens when … two statutory provisions collide? If DHS reinstates a removal order that was entered in absentia, can the noncitizen still file a motion to reopen under § 1229a(b)(5)(C)(ii) “at any time” on the ground that she never received notice of the prior hearing? Or does § 1231(a)(5) preclude such a motion by directing that the prior removal order “is not subject to being reopened or reviewed”? … The BIA erred by holding that § 1231(a)(5) deprived the immigration court of jurisdiction to resolve Miller’s motion to reopen. We grant Miller’s petition for review and remand the case so that the agency can decide Miller’s motion to reopen on the merits.”

[Hats off to Professor Kari Hong!]

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Expert: Anne Frank Analogy Appropriate to DOJ Prosecution Proposal

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Stuart Anderson, May 9, 2018 – “Imagine your child faces death or enslavement at the hands of predators and all legal avenues of escape and refuge have been blocked. Would you attempt to enter another country unlawfully and seek asylum? Found hiding in an attic, Anne Frank died in the Holocaust after her father exhausted all legal means of escape, including being unable to get a visa to America. If her father had entered the United States without papers and asked for asylum should he have been prosecuted for illegal entry? Should he have been prosecuted for “smuggling” his own child?

“The Anne Frank analogy to the current Department of Justice policy is appropriate,” Stephen Yale-Loehr, a Cornell Law School professor and an advisor to the National Foundation for American Policy, told me in an interview. “The 1948 Universal Declaration of Human Rights recognizes the right of persons to seek asylum. It defeats that purpose to prosecute them instead for illegal entry or smuggling.” … Sessions said the Department of Homeland Security would refer “100 percent of illegal Southwest Border crossings to the Department of Justice for prosecution.” He is sending 35 prosecutors and 18 immigration judges to take up the new caseload. Sessions declared, “If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”  It is unclear whether parents are now facing charges for “smuggling” for traveling with their child across the border unlawfully but the threat is there. Attorneys have told me there already are many cases of parents being prosecuted for illegal entry even if they apply for asylum.

Moreover, if parents come to a lawful port of entry and request asylum, many parents are being separated from their children and held in detention facilities.  In other words, if mothers or fathers approach a lawful port of entry and request asylum, even if they are not prosecuted for unlawful entry, they will still be separated from their child. Not only can this be traumatic for both parent and child, attorneys argue doing so as a deterrent may be unlawful. … Some may argue that a parent with children fleeing from deadly gangs in Central America is not analogous to the situation of Anne Frank. Her family had no legal way to enter America, just like the girls fleeing today from Honduras and El Salvador. However, unlike them, Anne Frank did not attempt to enter the United States illegally. She died in the Bergen-Belsen concentration camp.”

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Class-Action Filed Against Bank of America for Employment Discrimination Against Non-Citizens

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MALDEF, May 3, 2018 – “Bank of America illegally denies employment to qualified applicants based on their immigration status even though they are authorized to work in the United States, a lawsuit filed in federal court today charged.

MALDEF (Mexican American Legal Defense and Educational Fund) and the law firm Elliot Morgan Parsonage PLLC of Winston-Salem, N.C., filed the suit on behalf of Daniel Marques, a 27-year-old native of Brazil who is a recipient of Deferred Action for Childhood Arrivals (DACA).

Marques is authorized to work by U.S. Citizenship and Immigration Services, but he was abruptly disqualified from consideration for a job with Merrill Lynch Wealth Management, a division of Bank of America after he informed the company of his DACA grant, the lawsuit states.

Bank of America is accused of violating the federal Civil Rights Act of 1866, which prohibits intentional discrimination based on alienage.

“Any company, like Bank of America, with a significant Latino customer base and that seeks to build further business with the growing Latino community, would do well to avoid policies or practices that discriminate, irrationally, on the basis of immigration status,” said Thomas A. Saenz, MALDEF president, and general counsel.

Marques submitted an application in March 2016 through Bank of America’s online job application portal for a position in New Jersey as a Practice Management Development Associate within the financial advisor program of Merrill Lynch Wealth Management. He received an email soon thereafter from Bank of America’s vice president, the executive recruiter for the mid-Atlantic market to schedule a March 30 telephone interview. The vice president informed Marques during the interview that as a non-citizen applicant, he was required to be eligible to work in the United States “without limitations.”

After the phone interview, the executive recruiter sent Marques an email the same day saying she would recommend further interviews. Marques responded with a request for further clarification of her statement that he would need work authorization “without limitations,” and attached a copy of his valid Employment Authorization Document, which is renewable every two years under DACA.

On April 4, 2016, the executive called Marques to say that he was disqualified from further consideration for the job because he is a DACA recipient. Marques sent follow-up emails seeking more specific information, but he did not receive any responses.

“We are determined to vindicate the full rights afforded to immigrants with federal work authorization,” said Burth López, MALDEF staff attorney, and counsel in the case. “Companies may not pick and choose among work-authorized job applicants based on the applicants’ immigration status.”

The lawsuit seeks class-action status on behalf of all non-citizens who were authorized to work in the United States, including other holders of deferred action, refugees, and visa holders, and who were denied employment by Bank of America after April 4, 2016, because of their immigration status.

“Elliot Morgan Parsonage PLLC is looking forward to working with MALDEF to fight employment discrimination against young people with DACA,” said co-counsel Helen L. Parsonage.

The lawsuit is the third filed by MALDEF in the past year challenging employment policies that discriminate against DACA recipients. Last July, MALDEF and co-counsel Outten & Golden LLP sued consumer product giant Procter & Gamble on behalf of a former college student who had been denied a paid internship based on his DACA status.

The case is Daniel Marques v. Bank of America Corporation, Case No. 3:18-cv-00228, in the U.S. District Court for the Western District of North Carolina, Charlotte Division.

Read the complaint here.”

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Two New AAO I-601 Hardship Waiver Victories

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Alan Lee writes: “The law firm won two recent non-precedential decisions at the U.S.C.I.S. Administrative Appeals Office which sided with us in our appeals of I-601 denials.  An I-601 approval is required to waive grounds of inadmissibility, which in these cases involved fraud or misrepresentation.  The standard required for waiver approval is the establishment of extreme hardship to a U. S. citizen or lawful permanent resident spouse or parent.  Following such a determination of extreme hardship, U.S.C.I.S. must also make a decision on whether a waiver should be approved in the discretion of the agency.  The decisions may be of some interest to the readers.

In the first one, Matter of L-C-, ID #553828 (AAO Nov. 2, 2017), a large factor in establishing extreme hardship was that although both applicant and qualifying spouse were Chinese, the spouse was born and raised in Hong Kong, and had no ties to mainland China, the home country of the applicant.  Also that he maintained that he was unfamiliar with the language, culture, and customs of China.

In the second case, Matter of P-Y-K-, ID #639671 (AAO Oct. 31, 2017), the AAO favorably balanced on the side of the applicant the negative factors on discretion of fraud or misrepresentation when procuring a nonimmigrant visa and subsequently entering the United States, the applicant’s failure to depart pursuant to a voluntary departure in 1987, her deportation order in 1993 (which we had previously reopened and terminated), and periods of unlawful presence and employment in the U. S. against a showing of many factors including her son’s service in the Armed Forces of the U. S.”

The full decisions can be read here: Matter of L-C-, and Matter of P-Y-K-.

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AAO 212(h) Hardship Waiver Victory: Matter of D-M-V-, ID# 15302

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Matter of D-M-V-, ID# 15302 (AAO Jan. 28, 2016) – “The Applicant was found to be inadmissible to the United States pursuant to section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of crimes involving moral turpitude. He filed a Form 1-601, Application for Waiver of Grounds of Inadmissibility, on October 10,2014. The Applicant seeks a waiver of inadmissibility pursuant to section 212(h) of the Act, 8 U.S.C. § 1182(h), in order to reside in the United States with his U.S. citizen family members. In a decision dated April 2, 2015, the Director denied the Form 1-601 as a matter of discretion, citing to a lack of evidence of rehabilitation or family contribution, additional criminal convictions, and sporadic employment as the negative factors that outweighed the positive factors in determining that discretion was not warranted. On appeal, the Applicant asserts that the Director did not consider all of the evidence, including evidence of the Applicant’s mental health condition, and failed to consider all of the hardship factors in the aggregate or follow and apply relevant case law, particularly Matter of Mendez-Moralez, 21 I&N Dec. 296, 299 (BIA 1996), with regard to the exercise of discretion. The Applicant submits a brief and resubmits evidence filed with the Form 1-601. … When considering the totality of the circumstances, we find that the positive factors in this case, including the Applicant’s family ties, length of residence in the United States, and hardship to himself and his family members if he is removed, outweigh the negative factors, and he merits a favorable exercise of discretion. … Accordingly, we will sustain the appeal.”  [Hats off to Michael Carlin!]

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