A Cry for Change: The Fallacy of the American Dream for K-4 Children

Adrienne Rodriguez

John and his mother were citizens of the Philippines when his mother met his stepfather, a U.S. citizen.  The marriage between his mother and stepfather subsequently took place in the Philippines.  John was nineteen at the time of the marriage.  After the marriage occurred, John’s stepfather returned to the United States and wanted to move his new family with him.  After filing the appropriate documentation, both John and his mother obtained non-immigrant visas that allowed them to join the stepfather and live in the United States as non-immigrants while they awaited their approvals of their green cards.  While in the United States, John’s mother obtained her green card, but unfortunately John was unable to do so because he didn’t qualify as the child of his U.S. citizen stepparent under his non-immigrant visa. Thus, he was sent back to the Philippines to apply for a green card abroad.  Suzie, also a citizen of the Philippines, was nineteen years old at the time of the marriage between her mother, a Philippian citizen, and stepfather—also a U.S. citizen.  When her mother and stepfather met in the Philippines, they decided they would move the family to the United States.  Once Suzie and her mother obtained their non-immigrant visas, they reunited with the stepfather and the marriage subsequently occurred in the United States.  Suzie and her mother then filed applications for green cards and both applications were approved.  Once they received their green cards, Suzie and her mother were happily able to start a new life in the United States with the stepfather.  Why was John sent abroad to await the approval of his green card while Suzie was permitted to stay with her parents within the United States?  John and Suzie were children of foreign parents who married a U.S. citizen stepparent, were unmarried, and were between the ages of 18–21 at the time of their parents’ marriage.  They both entered the United States using non-immigrant visas.  This situation presents a quirk in immigration law that remains overlooked despite recent judicial rulings in the Third and Seventh Circuits that aim to prevent this outcome.[i]

John was able to enter the United States with his foreign parent using a non-immigrant K-4 visa.[ii]  The Regulation at issue precludes a K-4 stepchild, between 18–21 years old, from qualifying as the minor stepchild of the U.S. stepparent and barred John from applying for an immigrant visa within the United States.[iii]  Because his non-immigrant status expired while he is awaiting the approval of his application to adjust his status, he was essentially left with “no recourse but to leave [his] family behind in the United States and return to [his] home country to apply for a permanent visa from abroad”.[iv]  Suzie, on the other hand, was the child of a foreign spouse-to-be of a U.S. citizen whose parent married the U.S. citizen within the United States.  She entered the United States using a non-immigrant K-2 visa.  Although she was nineteen at the time of her parents’ marriage she was protected under a gap-filling regulation that allowed her to adjust her status based on her parents’ marriage and did not require her to qualify as the stepchild of the U.S. citizen.[v]  Thus, a minor stepchild must be under the age of eighteen at the time of the marriage, if it took place abroad, to avoid the risk of being sent back to his natural parent’s homeland.

The available case law regarding this issue considers the application of the Regulation in this manner as an abuse of governmental agency’s discretion.[vi]  In a recent 2016 case, the court recognized in its holding that current immigration laws “offer older K-4 children nothing more than a legal dead end”.[vii]  In that case, Cen argued that because section 1255(d) authorized her “status adjustment ‘as a result of the marriage of’ the K-3 parent and the U.S. stepparent, all K-4 children [eighteen or over but] under twenty-one [were] unambiguously eligible to adjust status on the basis of the marriage alone rather than the parent-child relationship with their parents”.[viii]  Although the Attorney General has discretion in deciding who will ultimately be approved to adjust his status within the United States, that discretion does not reach as far as completely negating Congress’ purpose in implementing the existing statute.[ix]  The court held that the Regulation in the Cen case was invalid because it was manifestly contrary to what Congress’ purpose was for enacting section 1255(a) and amending the LIFE Act.[x]

The misapplication of the Regulation calls for an urgent change by the Attorney General to help fix the paradox that older K-4 children between ages 18­21 face and only causes more friction in the immigration system as it is contrary to the LIFE Act’s goals of reuniting families.[xi]  It is imperative to balance the powers granted to the government and the intent of Congress in enacting law.[xii]  Absent this balance, government agencies will continue to overstep their authority contrary to Congress’ will—merely due to misinterpretations of ambiguous statutory language.[xiii].  It is unclear why the same administrative fix made for K-2 children was not made for K-4 children.  One possible reason is that the negative outcome experienced by K-4 children may have simply faded from the government’s attention over the years since Congress amended the LIFE Act in 2000.[xiv]  Even so, the Regulation has posed several consequences for K-4 children trying to adjust their status within the United States after their parents have married abroad.[xv]  To advance Congress’ goals, statutory requirements in immigration law should be implemented with more flexibility.  The Attorney General must at least recognize the impact the misapplication of an invalid regulation can have on family members, who would otherwise be lawfully admitted to the United States, and take the necessary steps to effectuate a just solution.

[i]               8 C.F.R. § 245.1(i) (2016) [hereinafter “the Regulation”] (“An alien admitted to the U.S. as a [K-4] alien may not adjust to that of permanent resident status in any way other than as a . . . child of the U.S. citizen who originally filed the petition for that alien [parent’s] K-3 status.”); Cen v. Attorney General 825 F.3d 177, 198 (3d Cir. 2016).  The Regulation adversely impacts older K-4 children who are 18–21 years old at the time of their parents’ marriage by precluding this age group from applying for adjustment while present within the United States.  Cen, 825 F.3d at 198.
[ii]               See K-3/K-4 Non-immigrant Visas, USCIS, https://www.uscis.gov/family/family-us-citizens/k3-k4-visa/k-3k-4-non-immigrant-visas (last updated Apr. 1, 2011).  A child is eligible for a K-4 visa if he is unmarried, under twenty-one years old, and is the child of a qualified K-3 foreign parent.  Id.
[iii]              See e.g., Akram v. Holder, 721 F.3d 853, 856 (7th Cir. 2013) (explaining that “although Akram was her foreign mother’s minor child for K-visa purposes, she was not [her stepfather’s] minor child for I-130 purposes”).
[iv]              Cen v. Attorney General, 825 F.3d 177, 185 (3d Cir. 2016).; see also 8 C.F.R. § 214.2(k)(10)(i) (2016).  The K-4 visa holder over the age of eighteen at the time of the marriage is unable to apply for an extension of stay when the K-visa has expired after the two-year period, or if he turns twenty-one while his application to adjust status is pending, because he must show that either an I-130 petition, an immigrant visa based on an I-130 petition, or an application to adjust status based on an I-130 petition is pending approval.  Cen, 825 F.3d at 185.  However, the K-4 visa holder between the ages of 18–21 is barred from having an I-130 petition filed on his behalf because he does not qualify as the child of the U.S. stepparent.  Id.  Thus, the K-4 child is unable to successfully apply for an extension of stay.  Id.
[v]               See 8 C.F.R. § 214.2(k)(6)(ii) (2016) (“gap-filling” regulation for K-2 children).
[vi]              Cen, 825 F.3d at 184.
[vii]             Id. at 198 (emphasis added).
[viii]             Id. at 187; see also 8 U.S.C. § 1255(d) (2016).
[ix]              Id. at 190.
[x]               Id.
[xi]              Cen, 825 F.3d at 195.
[W]hile Congress was presumptively aware that the definition of child when it passed the LIFE Act, it was presumptively aware that the [USCIS] had long interpreted minor child to mean an individual under age twenty-one and already interpreted [section] 1255(d), through the gap-filler regulation, to relieve K-2 children of the strictures of [section] 1101(b)(1) for purposes of adjusting status.  Thus, had Congress intended to deviate from the gap-filler’s existing interpretation [regarding K-4 children], we would expect such deviation to have been explicit.
[xii]             See id. at 197.
[xiii]             See generally Akram v. Holder, 721 F.3d 853 (7th Cir. 2013) (discussing how K-4 children re left with no recourse but to return abroad due to the government’s impermissible construction of the statute).
[xiv]             Id.
[xv]             See Cen, 825 F.3d at 179 (explaining that “these aliens may spend significant time separated from their loved ones while they wait in their home countries for the appropriate visa approval”).

Is Hispanic A Race? Sí O No? The Second Circuit Recently Held In Village Of Freeport V. Barrella That Sí, Hispanic Is A Race Under The Federal Anti-discrimination Employment Law

Vanessa Fonts

The United States has come a long way in the prohibition of employment discrimination.  From the necessary passage of the 1964 Act, in particular Title VII of the 1961 Act, to the amendments of the 1991 Act, and the establishment of the Equal Employment Opportunity Commission to enforce antidiscrimination employment laws, the mission to stop and remedy unlawful employment discrimination is being accomplished.  The antidiscrimination laws, at least the ones I focused on my article—Title VII and Section 1981—prohibit discriminatory practices on an employee because of their membership to a certain class, whether it be sex, color, religion, but specifically on their race.[i] 

However, I particularly questioned whether Hispanic is a race under Title VII?  On February 16, 2016, the Second Circuit Court of Appeals answered yes in a recent case that involved a white, Italian-American employee who sued after he was denied a promotion that was awarded to a white, Hispanic candidate.[ii]  Christopher Barrella argued that although he got the highest score on the required exam and had better qualifications for the position of the town's police chief, the mayor designated the other candidate.[iii]  The defense attorney stated that Hispanic is not a race and therefore there could not have been any racial discrimination on behalf of the employer.[iv]  The Second Circuit classified this matter as a vexed and recurring question when holding that Hispanic does in fact constitute as a race.[v]

            It has been established through precedent that discrimination based on Hispanic ancestry amounted to racial discrimination under Section 1981 and the court referred to the Supreme Court’s decision in Saint Francis College.[vi]  Section 1981 also prohibits what is referred to as reverse discrimination, which protects against discrimination based on a lack of, in this case, Hispanic ethnicity.  The plaintiff in the case was alleging racial discrimination because since he was not Hispanic like the other candidate, he was not promoted to chief.[vii]  To be noted, Section 1981 prohibits discrimination on the basis of race, even though it is not explicitly stated, but not on the basis of national origin.

The equal employment provisions of Title VII of the Civil Rights Act of 1964, were passed to guarantee equal employment opportunities by prohibiting discrimination in the work place on the basis of race, color, religion, sex, or national origin, which are commonly known as the protected classes.  In the past, most courts have assumed that Hispanics constituted a protected class under Title VII, but have not specified whether that protection stemmed from the national origin class or the race class.

The court in this case resolved whether Hispanicity should be classified as a race, as it is in Section 1981.  They reached the conclusion that as a matter of law, Hispanic is a race not only for the purposes of Section 1981, but also for Title VII.[viii]  They held that race should be defined the same way as it is in Section 1981 for Title VII.[ix]  However, when racial discrimination claims based on Hispanicity arose, courts were split over whether to regard them as a racial discrimination claim or a national origin discrimination claim.[x]  This split caused for an overlap of both those claims when an individual would like to invoke both Title VII and Section 1981, since Hispanic was not recognized as a race under Title VII but under Section 1981 it was because race encompassed ethnicity.[xi]

To conclude, Village of Freeport v. Barrella could be heralded as a victory for the minority groups whom identify as Hispanic since they were never certain if they were recognized as a distinct race for purposes of Title VII.

[i].              42 U.S.C. § 2000e-2(a); 42 U.S.C. § 1981(a) (2012).
[ii].              Vill. of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016).
[iii].             Id. at 599–600.
[iv].             Id. at 601–02.
[v].              Id. at 598.
[vi].             Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987).
[vii].            Barrella, 814 F.3d at 600.
[viii].            Id. at 607.
[ix].             Id.
[x].              See Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 459 (S.D.N.Y. 1998) (stating the split in court decisions where Hispanic has been held a race and others where it has been held a national origin).
[xi].             Saint Francis Coll., 481 U.S. at 614 (Brennan, J., concurring).

The Downfall Of The Fourth Amendment: How The Latest Ruling By The Supreme Court Weakens The Exclusionary Rule And Our Privacy

Brittany Ehrenman
With a recent Fourth Amendment ruling from the Supreme Court of the United States, it seems that our privacy, and the Fourth Amendment, are becoming less protected.[i]  On June 20, 2016, the Supreme Court of the United States may have chipped away what little remains of our right’s governed by the Fourth Amendment.[ii]  The Court held, in Utah v. Strieff,[iii] that evidence found from an unlawful police stop would not be inadmissible in court, so long as the initial stop and evidence are attenuated by an active arrest warrant.[iv]

In Strieff, the police department received an anonymous tip that drugs were being sold out of a residential home.[v]  Officer Fackrell surveyed the home, for about a week, and observed guests leaving the house within minutes of arriving.[vi]  Edward Strieff was a visitor of the suspected home and was seen leaving and walking towards a convenience store.[vii]  Officer Fackrell stopped and detained Strieff and questioned his activities inside the home.[viii]  The Officer learned that Strieff had an outstanding arrest warrant for a traffic violation and subsequently arrested him.[ix]  When Strieff was searched, incident to the arrest warrant, a baggie of methamphetamine and drug paraphernalia were found.[x]  Strieff was charged with unlawful possession of the drugs found in his pocket after the search.[xi]

Strieff moved to suppress the evidence found against him, arguing that evidence found from an illegal search would be considered fruit of the poisonous tree, therefore, inadmissible in court.[xii]  Even though it was uncontested that the Officer lacked reasonable suspicion for the stop itself, the Supreme Court held that the exclusionary rule should not be used and that the evidence would be allowed to come in.[xiii] 

The protection that the Supreme Court has lessened in their ruling in Strieff was initially created to provide a safeguard that benefits everyone from police searching innocent people.[xiv]  It is not often thought about but anyone can acquire an arrest warrant, especially for such minor offenses.[xv]  Not all warrants that are given out have to do with criminally dangerous actions, many are just minor infractions, such as traffic violations.[xvi]  Arrest warrants are now so ordinary that they may be unbeknownst to the person it was written for.[xvii]  One woman in Ferguson was not aware that she had a warrant, from an old ticket for an expired car registration, until she tried to renew her license.[xviii]  Additionally, another woman was subject to being arrested at any moment because of a ticket she could never afford to pay for keeping an old car parked in a driveway.[xiv]  Forgetting to pay a traffic ticket could result in an arrest warrant.[xx]  Once a ticket has been ignored, a court has the ability to issue a misdemeanor, then an arrest warrant.[xxi]  Such minor violations can develop into arrest warrants for people; almost one hundred tickets in Ferguson were distributed out for things like having an overgrown yard of grass, playing loud music, or walking in the road inappropriately.[xxii]  Now, after the Strieff holding, if there is a pending arrest warrant out for you, for something so trifling as overgrown grass, it can justify an unlawful stop by the police and anything found on your person at the time of the stop can be used again you in a court of law.[xxiii]

Racial profiling can also occur with frequent police stops as well.[xxiv]  Justice Sotomayor’s fear is that the stopping of an individual will not be based on whether police had probable cause but rather on physical traits, like what someone is wearing or based on ethnicity.[xxv]  She stresses how hazardous this Court’s ruling can now be on minorities, specifically the Black and Hispanic communities.[xxvi]  More often than not, unfortunately, people of color fall victim more times than white people to suspicionless stops and searches.[xxvii]  The reality is that, although everyone should be considered innocent until proven guilty, most people aren’t treated as such.[xxviii]  Even though most officers do conduct their actions in good faith and with no malicious intent, the numbers speak for themselves.[xxix]  In a 2011 census for New York City, almost 87% of people who were stopped were Black or Latino descent.[xxx]  Going back to Missouri, specifically the town of Ferguson, 92% of the arrest warrants that were issued in the year 2013 were against African Americans.[xxxi]  In Philadelphia in 2015, 77.06% of the pedestrians who were stopped on the streets were Black or Latino, sadly demonstrating that Justice Sotomayor’s fears of what is to come of this Courts holding has already been taking place.[xxxii]  African Americans and Latinos have been racially profiled more frequently than white people.[xxxiii]  With this new Court holding it may very well disproportionally impact this specific demographic even more.[xxxiv]  It has already been demonstrated that police officers have been stopping people on the streets for questioning and not documenting those encounters, which creates skepticism in official counting of police stops in general.[xxxv]  Knowing this information, and looking at statistics of stops in the future after this Court’s holding, there is no measuring what is accurately being documented.[xxxvi]  As Justice Sotomayor asserts “it is no secret that people of color are disproportionate victims of this type of scrutiny.”[xxxvi]  If these police stops have already been occurring than this Court ruling may excuse minority discriminatory stops more often.[xxxvii]

Since our Second Amendment rights seem to always be of topical concern to the population, why should our Fourth Amendment rights be any different?  This ruling should be of concern to everyone since the Fourth Amendment provides a safeguard for all of our privacy rights. Because of the Court’s holding, evidence obtained by police officers from unlawful stops will not matter at all, so long as a warrant is present.[xxxix]  This ruling could be a demonstration as to when people speak of the justice system they say that it is corrupt.[xxxx]  We have policies and procedures set forth that the Court system seems to finds ways to dishonor and destroy so there is less and less protection for society.  We do not want to continue tainting the courts by allowing fruits in from unlawful searches. I am curious to see what is to come and what justifications and excuses will be added to another right we, as citizens, possess. What protections in the future will be taken away from us next?

[i].              See Orin Kerr, Opinion Analysis:  The Exclusionary Rule is Weakened but it Still Lives, Scotusblog (June 20, 2016, 9:35 PM), http://www.scotusblog.com/2016/06/opinion-analysis-the-exclusionary-rule-is-weakened-but-it-still-lives/; Matt Ford, Justice Sotomayor’s Ringing Dissent, Atlantic (June 20, 2016), http://www.theatlantic.com/politics/archive/2016/06/utah-streiff-sotomayor/487922/.
[ii].              Utah v. Strieff, No. 14-1373, slip op. (U.S. June 20, 2016).
[iii].             No. 14-1373, slip op. (U.S. June 20, 2016).
                [iv].             Id. at 1.
[v].              Id. at 2.
[vi].             Id.
[vii].            Id.
                [viii].           Strieff, No. 14-1373, slip op. at 2.
[ix].             Id.
                [x].              Id.
[xi].             Id.
[xii].            Id.
[xiii].           Strieff, No. 14-1373, slip op. at 1–2.
[xiv].           U.S. Const. amend. IV.
[xv].            See Strieff, No. 14-1373, slip op. at 7 (Sotomayor, J., dissenting).
[xvi].           Id.
[xvii].          See Blake Ellis & Melanie Hicken, One Year Later:  Ferguson is Still Pumping out Arrest Warrants, CNN Money (Aug., 06, 2015, 1:41 PM), http://money.cnn.com/2015/08/06/news/ferguson-arrest-warrants/.
[xviii].         Ellis & Hicken, supra note 17.
[xix].           Id.
[xx].            Kat Saks, Ignoring a Traffic Ticket? Be Prepared to Pay the Consequences, DMV (July 10, 2012),
[xxi].           Saks, supra note 20.
[xxii].          Ellis & Hicken, supra note 17.
                [xxiii].         See Utah v. Strieff, No. 14-1373, slip op. at 1 (U.S. June 20, 2016).
[xxiv].         Lynn Langton & Matthew Durose, Police Behavior During Traffic and Street Stops, 2011, U.S. Dep’t of Justice (Oct. 27, 2016), https://www.bjs.gov/content/pub/pdf/pbtss11.pdf.
[xxv].          United States v. Brignoni- Ponce, 422 U.S. 873, 886–87 (1975); see also Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).
[xxvi].          See also Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).
[xxvii].         Id.
[xxviii].        Jazz Shaw, Returning to the 4th Amendment and Utah v. Strieff, HotAir (June 30, 2016, 9:21 AM), http://hotair.com/archives/2016/06/30/returning-to-the-4th-amendment-and-utah-v-strieff/.
[xxix].          Id.
[xxx].           Christopher Mathias, NYPD Can’t Just Stop and Frisk People for the Hell of it Anymore, Says Department Memo, Huffington Post (Mar. 3, 2015, 10:39 AM), http://www.huffingtonpost.com/2015/03/05/nypd-memo-stop-and-frisk-restriction_n_6807710.html.
[xxxi].          Nathan Robinson, The Shocking Finding From the DOJ’s Ferguson Report That Nobody has Noticed, Huffington Post (March 13, 2015, 2:42 PM), http://www.huffingtonpost.com/nathan-robinson/the-shocking-finding-from-the-doj-ferguson_b_6858388.html.
[xxxii].         Sabrina Vourvoulias, What the SCOTUS Ruling on Police Searches Means for Philadelphia, Philadelphia (June 22, 2016, 10:15 AM), http://www.phillymag.com/news/2016/06/22/supreme-court-police-searches-utah-strieff; see also Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).
[xxxiii].        Vourvoulias, supra note 32.
[xxxiv].         See id.
[xxxv].          J. David Goodman & Al Baker, New York Police Department Is Undercounting Street Stops, Report Says, N.Y. Times (July 09, 2015), http://www.nytimes.com/2015/07/10/nyregion/some-new-york-police-street-stops-are-going-undocumented-report-says.html?_r=1.
[xxxvi].         Id.
[xxxvii].        See Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).
[xxxviii].       Id.
[xxxix].         Kerr, supra note 1.
[xxxx].          See Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).