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Update on Rifqa Bary

On my personal blog I have posted an update on Rifqa Bary's situation. The short version is that there is good news along with continued concerns about her immigration situation. The good news is that the judge turned down her parents' most recent attempt to get her isolated again, to get her dependency declaration thrown out, and to send that dependency into doubt and to trial. The continued immigration concern arises from the fact that the judge is not yet making certain rulings that Rifqa's lawyers need to have in place in order to apply with the federal government for legal immigration status for her, independent of her parents. This application needs to be at least in the works (and possibly granted, I don't know which) before she turns eighteen on August 10, and while her eighteenth birthday will be a relief in the sense of relieving her from any fear of being sent back unwillingly to her parents, it also would leave her possibly open to deportation if the paperwork ducks aren't in a row. The judge needs to rule a) that reconciliation with her parents is impossible and b) that it would not (!) be in her best interests to be returned to Sri Lanka. This is a part of a special federal immigration status program for immigrant children in the foster care system. Once a local judge rules in those ways, those rulings can be used in making a federal application for a special juvenile visa before Rifqa's eighteenth birthday. But for the time being the judge is unwilling to rule that reconciliation with the parents is impossible, so that process is stalled.

On the one hand, the hysterical statement by some that Rifqa's dependency declaration in January was "useless," that she had been "tricked" into agreeing to it, and that her parents have simply "reneged" on the dependency "deal" has been shown to be false. As the lawyers were saying all along would happen, the judge did not grant the parents' motion(s). (Actually, there were several, including removal of her present guardian ad litem and of her entire legal team.) On the other hand, the time is getting short to get that immigration paperwork going, and it's worrisome that the judge is demanding that everyone continue "counseling" and meanwhile will not make the rulings that will make the immigration application possible.

There is some sort of hearing (labeled, weirdly, a "pretrial" at Atlas Shrugs) on April 5, but none of Rifqa's blogospheric supporters seems to know what it's about. My best guess, but only a guess, is that the judge will take up the "reconciliation impossible" motion at that time.

Comments (15)

I still don't know why the prominent supporters of Rifqa Bary and other anti-jihad, anti-shariah activists, Pamela Geller and Robert Spencer chief among them, aren't calling for the deportation of Bary's parents. Larry Auster made this point a few days back and it deserves to be taken seriously.

The answer is simple: neoconservatives are liberals. There exists not just a mountain of evidence, but a whole mountain range of evidence, to support that fact. As much as they support the War on Terruh, they buy into the liberal belief that all people and cultures are equal, dignified, worthy and should not be subjected to discrimination.

You can't rely on neoconservatives to advocate any means of defending this country that doesn't rely on police state tactics (torture, mass surveillance, etc.) instead of the most basic ones (border security, tight immigration controls to filter out undesirables). They'd rather waterboard a Muslim until he confesses to being a gay pink unicorn from the planet Mars than tell him he and his kind are not really welcome to stay permanently in the US.

Mike, that comment has made my day. Thank you.

They'd rather waterboard a Muslim until he confesses to being a gay pink unicorn from the planet Mars than tell him he and his kind are not really welcome to stay permanently in the US.
That would be even funnier if it wasn't the truth.

Several things need to be understood in this particular case: Deporting her parents without her would not solve her possible immigration problems later. Even if were possible to deport her parents right now without her, if her own immigration problems are not worked out, she could be deported when she turns eighteen. There might even be some stupid situation where some immigration official got it into his head that he needed to be "fair" and deport her as well. Her immigration status is right now not disentangled from that of her parents. Since their parental rights have not been formally terminated (her being a dependent of the state of Ohio doesn't mean that their rights are permanently terminated, I believe), it's even _possible_, though I don't know this for sure, that she would be in danger of being deported right now with them if they were deported right now, which would be the worst kind of disaster for her.

So in a sense, there is some danger to her if the eyes of the immigration officials turn to that family, especially during the next five months while she's a minor.

Despite this, and to be fair to Pamela Geller, it's _Geller herself_ who has documented that the parents are here illegally. Geller was pretty much made by God to be an investigative reporter (despite her other faults), and back when Rifqa was still in Florida and the Florida judge was demanding the parents' immigration documents, Geller went and found them. She has just _reposted_ them at her site to emphasize the parents' illegal status, because she is annoyed by the coy and misleading way in which the MSM article says that the parents' immigration status is "unclear" but that Rifqa is here illegally! That is indeed annoying, because the only reason the minor child is illegal is because the parents are illegal! Rifqa and her lawyers are just being _honest_ about the situation (because the lawyers are trying to do something about it).

So every indication is that Geller would be _very pleased_ if the parents (and the nasty older brother) were deported without Rifqa, though that would still leave Rifqa's own immigration problems unsolved.

Actually, the immigration situation isn't as urgent as you think: for purposes of the Special Immigrant Juvenile status, she only has to be under 21, not under 18. ("Juvenile" means different things in different parts of the immigration code, but for *this* purpose it means under 21.)

The judge does have to make a finding that it's not in her best interest to be returned to her country of origin, before she can apply. Once she has that, plus the dependency declaration, she can file the relevant forms (I-360 and I-485), and that will shield her from deportation while they're pending, no matter what happens to her relatives.

For those who want to look this up for themselves and make sure I'm not blowing smoke, the relevant section of law is section 101(a)(27)(J) of the Immigration and Nationality Act [8 USC 1101(a)(27)(J)]. The agency regulations are at Title 8, Code of Federal Regulations, section 204.11. (The part about not being deported isn't in there: that's a consequence of having a pending I-485.)

Craig, I appreciate the information. Question: Apparently the "no possible reconciliation with her parents" declaration is also relevant to the special juvenile visa application. Do you think the hurry is to get this declaration before she turns 18? According to lawyer Stemberger (who I really do believe has her best interests at heart and who evidently is not covered by the gag order) she will in some sense "age out of" the Ohio system at 18 and therefore needs these declarations before that time. In a sense, it's _good_ that she will age out of the Ohio system at 18, because frankly, the FCCS have acted like control freaks in the past, and one never knows when she'll be ordered not to have contact with this or that person so long as she is under 18. When she is no longer under that type of control by the FCCS, she can go where she wants and take better advantage of the help that is being offered to her. For example, she will probably at least want to visit her friends the Lorenzes who have been kind to her, and that will give her a chance to think what in the world to do with her life.

But the upshot is that it looks to me as though they won't be able to get the "no reconciliation possible" declaration after she is 18, as the Ohio system won't have any real jurisdiction to make such a declaration after that point.

This may be related to the new claim being made at Atlas Shrugs that Rifqa's dependency declaration is, officially speaking, "temporary dependency." Under many circumstances, it would make sense just to leave that formal situation in place for five more months and let the child age out of the system. Why bother declaring the dependency formally "permanent" if it makes no practical difference to what the state does with the minor and if the minor is going to be an adult in five months? But it may be that the "no reconciliation possible" declaration is necessary to a formally "permanent" dependency declaration and that it is a formally "permanent" declaration they need to apply for the SJLV. Do you know anything about that conjecture?

The law says "whose reunification with one or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law," so I expect that's it.

On looking into this a little more deeply*, it appears that actual USCIS adjudication focuses very little on the impossibility of reunification and much more on the requirement of a finding of abuse, neglect, or abandonment, as defined in the specific jurisdiction. My guess would be that the agency interpretation is pretty generous (based on how I know USCIS adjudicates I-360 petitions for some of the other miscellaneous categories, but not on Special Immigrant Juveniles in particular).

[*In the Adjudicators Field Manual, which would be used by the immigration officer making the determination. That's also publicly available: I'm looking at section 22.3(q).]

They definitely have to get the court declarations, and if the court can't or won't make them after she's 18, then the federal deadline of 21 doesn't matter so much.

Incidentally, if the federal government could express a collective preference, I'm confident it would rather go the SIJ route than put her up for deportation and face dealing with an asylum application based on the Muslim death penalty for apostasy. However, the different pieces of the immigration service don't actually communicate with each other very well, so I doubt that will make any difference.

However, the different pieces of the immigration service don't actually communicate with each other very well, so I doubt that will make any difference.

Could you explain a little more what you mean by that?

By the way, do you have any idea as to whether a minor can apply for religious asylum?

The question has arisen as to why the lawyers do not pursue asylum and the SIJ route concurrently. Given that I'm not a lawyer with any knowledge of immigration law, and given that one of Rifqa's lawyers _is_ an expert in minors and immigration law, I'm willing to give them the benefit of the doubt on this. I'm guessing that perhaps an asylum application has to come from an adult, but I don't know. I'm assuming they have some reason for not trying to put the asylum thing in motion now, but as her actual lawyers are under a gag order, they can't speak for themselves.

However, the different pieces of the immigration service don't actually communicate with each other very well, so I doubt that will make any difference.

Could you explain a little more what you mean by that?

I mean that the officer faced with making a decision on her SIJ petition (if they're concerned about public relations issues, which is likely but not certain) probably won't consider the PR implications of a possible asylum application. Asylum is handled by a different part of the bureaucracy, way over there on the organizational chart, and headaches over there don't transmit well to headaches over here.

By the way, do you have any idea as to whether a minor can apply for religious asylum?

I would have thought so, but I don't actually know. I could think of a couple of reasons her attorney might want to hold off on making an asylum claim, but they would be no more than wild guesses. There's a huge amount of case law about asylum claims (and growing all the time), so you pretty much do need a specialist to thread your way through it.

Lydia, the problem I have with Pamela Geller is that she has never to my knowledge said anything about ending and reversing Muslim immigration. She blogs about every Islamic outrage perpetuated in the West (jihad terrorism, honor killings, etc), yet never gets to the obvious manner to end these threats to our civilization. The same goes for people like Mark Steyn who write about the Islamization of the West.

Daniel, I'm inclined to make a distinction between people who simply neglect talking about the immigration issue and people who are definitely against stopping or slowing Muslim immigration. I think we can definitely put Geller in the former category. After all, today she had a "flying pigs moment" post on her site because Hannity was considering the possibility that moderate Islam doesn't exist! She's a huge Geert Wilders fan. She was very critical of CPAC for the difficulty she had getting a forum for discussing the truth about Islam. This is just not someone who is a mainstream conservative, much less "neoconservative" in the usual sense of that word.

Now, I'm sure she and I would have much to disagree about on a lot of fronts, starting with the extreme, extreme tackiness of her banner (which used to be tacky but which she recently made uber-tacky) and her habit of putting incredibly gruesome pictures in the reader's face without warning. And more. I don't think Geller is particularly fond of me, insofar as she knows anything about me. But being soft on Muslim immigration just isn't one of my criticisms of her.

I would agree that there is a difference between those who neglect the issue of Muslim immigration and those who would resist putting an end to it. Nor would I accuse Geller of being soft on Muslim immigration, rather I would say she doesn't approach the issue at all and this is a problem. I think that the criticism of Geller that Larry Auster outlines here is not without merit. Now I'm not trying to tear down Geller, but someone in her position needs to take her responsibilities seriously, as Auster notes:

So, to paraphrase Geller, what kind of Islam critic is Pamela Geller, when she complains about America becoming Islamized, but refuses to oppose or even mention the very policy by which it has become Islamized?

I bring this up because immigration restriction is the only way to ultimately stave off the Islamization of the West. Someone in Geller needs to use her platform to push for an end of Muslim immigration, especially if she wants to prevent further potential honor killings in the US.

Here is where the government's inability to actually deport illegals may come into both Rifqa and her parents' favor.

I don't know about inability, strictly speaking, but reluctance, certainly. But if she wants to live and work here long-term, she certainly needs to get her status legalized.

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