Eber’s Evidence – Temporary Protected Status

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This blog entry is not about one particular client, but instead is a composite of several clients, that I will call Eber.

Eber is a hard-working young man from El Salvador. Up until the end of 2000, his family members were subsistence farmers. If their region had a bad year, they would borrow from friends and families in other regions, and then return the favor in better years.

But in December of 2000, Hurricane Mitch struck El Salvador, devastating more than half the country. Not only were thousands of small family farms washed away, the entire infrastructure necessary to support those farms was destroyed. Roads were gone overnight, so that the necessary farm machinery could not be delivered where it was needed. Land that had been carefully tended for generations was covered with rocks and mud, which could not be removed without the machinery. Thousands upon thousands of families were left to starve, with no way to earn a living and no government infrastructure to provide subsistence needs.

At the same time, the American economy was booming. Laborers were needed to build houses, pick crops, serve as housekeepers and work in factories and restaurants. But the immigration system for filling these unskilled positions requires a three to seven year wait, from the time the employer starts the process until the employee obtains work authorization.

So consistent with the history of the world, the law of supply and demand trumped man’s laws. Tens of thousands of Salvadorans, Eber among them, found their way to the United States. Eber became a construction laborer. He stayed in a rented room, often sharing a bed with a night shift worker. His employer, unable to find “legal” workers, was forced to pay Eber in cash.

On March 9, 2001, the US Department of State took pity on the Salvadoran workers. It designated them for “temporary protected status,” which meant that they could live and work legally in the United States, as long as they could prove that they had been born in El Salvador, did not have a serious criminal record, and had been in the United States before that day. Salvadorans would retain this status until the country’s infrastructure was back in place, which has not yet happened all these years later.

Proving that Eber had been born in El Salvador and did not have serious criminal records was easy. He had his passport and birth certificate and was fingerprinted as part of the application process. But how could we prove he had been in the United States before March 9, 2001? His passport was not stamped because he had entered the country illegally. He had no pay records or rent receipts and did not have a bank account or credit cards.

Finally, we found the necessary paper trail. Eber, who earned minimum wage on his best days, had a number of receipts from Western Union. As soon as he had earned $10, he had sent $5 back home. His very strong culture dictated that he share whatever he had with his starving family.

After we learned from Eber about this documentation, the rest of these cases became easier; an overwhelming majority of the Salvadorans were able to present similar receipts to include in their application packages.

In this case, the Salvadorans’ culture had provided them with the means to obtain documentation; once US Citizenship and Immigration Services had the evidence that these hard workers had been in the United States on the date that TPS was designated for El Salvador, they were given the means to get social security numbers, work legally, and contribute their share of taxes, participating in the Salvadorans’ legacy of giving back to the community.

Diana’s Difficulties – Special Immigrant Juvenile Status

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Teenage girl

All of my “Client” blog entries so far have endings. This one is still playing itself out but I am writing it now because it is an important story to tell.

“Diana” is fourteen years old. Like most other children, she has dealt with challenges in her life. I am imagining the challenges many of my readers faced by that age – final exams, not having the right clothes for the big party, losing a cellphone with important contact information.

Here are the challenges Diana has faced. She was born in El Salvador, the daughter of a gang member she never met, and a teenage mother. Diana’s mother had no way to earn a living, so after her own mother threw her out, she started renting Diana out to any man willing to pay to spend time with a very young girl. This went on for a couple of years, until Diana ran away from home. Her US citizen aunt in America had promised her that she would keep Diana safe from violence, if only Diana could get to America. Now Diana faced the challenge of how to pay the smuggler. The smuggler, a very helpful man, suggested that Diana could earn money for her journey with the skills her mother had taught her.

Diana made it to America after several months spent earning the smuggler’s fee, in El Salvador and all the way north through Mexico, and was promptly caught by immigration agents. Her aunt bonded her out of detention and brought her home to Prince William County, Virginia. The aunt is willing and able to support Diana emotionally and financially. Diana is eligible for “Special Immigrant Juvenile Status,” (SIJS) which is a procedure through which children who have been “abused, abandoned or neglected” by their parents can become lawful permanent residents of the United States. Congress has written these laws to protect the most vulnerable among us.

Diana’s case sounds like a slam dunk, right? She has been “abused, abandoned and neglected,” by any definition one could write. But Diana faces a huge obstacle, one which we are not sure we can overcome. Before she can apply to US Citizenship and Immigration Services for SIJS, she needs a court order, not only giving guardianship to her aunt, but also making the specific finding that she has been “abused, abandoned or neglected” by her parents. We have learned that the judges in certain parts of Virginia are reluctant to make these formal findings in potential SIJS cases, not wishing to interject themselves into the immigration process. Never mind that they make these findings on behalf of American children all the time.

We are cautiously optimistic that Diana’s very compelling case will be among the first to overcome one of these judges’ reluctance to act. I hope to update this blog entry in the next few months with the news that Diana has finally found the refuge that she has needed since birth.

I have included some video snapshots from AILA members on the ground of Artesia describing how others like Diana are being treated by “the system” when they are caught crossing the southern border:

Bao’s Brilliant Son – an Immigration Success Story

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“Bao’s” son “Xing” is a brilliant student. As a high school senior, he played violin in the college orchestra. He was captain of his high school’s math team, which won several state championships and then came in second on a national level.

Bao came to the United States with her family when Xing was about three years old. At the time, Bao and her husband were undergrad students. As foreign students, ineligible for FAFSA or in-state benefits, they subsidized the Americans attending their universities. They remained through Bao’s Ph.D. and eventual position as a professor.

Bao and her husband are athletes and her field of expertise is teaching coaches to excel. She ended up training one of the coaches whose team won an Olympic gold medal. The college team that her husband coached won a national championship.

Bao and her husband have always paid taxes. But as Xing approached college age several years ago, he was not eligible for FAFSA or even in-state tuition. The solution was for Bao and her family to become US permanent residents. When I met them, they had started applying for this status years before. Although they were fully qualified, quotas kept them from getting final approval; there were still many thousands “in line” ahead of them.

Bao had applied for permanent residence as a university professor, a category that is virtually guaranteed for approval. However, only 7% are allotted to citizens of any one country each year. Chinese and Indian citizens are severely effected by this quota, simply because of the sheer numbers of applicants.

Time was running out. Xing would be a high school senior within a year, but the family was not likely to have made it to the front of the “quota line.” So Bao contacted me to discuss a way to sidestep the line. She would submit a new application for permanent residence, paying a new set of fees. But this time, she would try a more complex procedure; “outstanding professor,” not just “university professor.” Although there is also a quota for the “outstanding professor” category, it is never over-subscribed.

So Bao and I got to work. We gathered certificates showing her achievements, a list of the many citations to her published papers, letters from her peers discussing how she stood out among them, and evidence that she had trained coaches who had gone on to highly successful careers. Her application package took well over a ream of paper.

It was late October of Xing’s senior year of high school. The deadline for early-decision applications to his first-choice university was drawing near. But he held off on submitting the application, waiting for the day he could check off “permanent resident” in the citizenship category section.

Coincidentally, I had planned a trip to visit Bao and several of my other clients at her university, several hundred miles from my office, in mid November. On about November 5, we received notification that Bao had been approved for permanent residence as an “outstanding professor,” with her husband and son obtaining the status as derivatives. They got their cards in the mail the day before I visited their university.

I had never met Bao before that day; like many of my clients, all of our interactions had been by phone, fax, email and Fed Ex. The day I met them, they were thrilled to show me the cards demonstrating their new status.

Xing ended up at his first choice, nationally-recognized university, where he excelled in his classes. The family is an American success story!

Edgardo and Maria’s intimate details: Couple’s immigration interview gone wrong

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Janet Leigh Screaming in Psycho Shower Scene

A client I will call Edgardo is a United States citizen with roots in Ecuador. On a trip home after his divorce, he met and fell in love with a wonderful woman, and decided to marry her and sponsor her for permanent residence, so that they would be able to share their life in the United States. “Maria” is in her late twenties and has a child from a previous relationship; Edgardo is in his mid forties. Edgardo filed an application for a “fiancee visa,” which took about six months for the first tier of approval. It was then sent to the United States consulate in Ecuador for further review. The consular officer who met with Edgardo’s fiancee, “Maria,” told her that Edgardo would need to appear in Ecuador for an interview.

Edgardo took time off from work, dropped what he was doing, and traveled to Ecuador. He brought with him photographs of the couple’s vacation in Panama, Western Union receipts showing that he had been sending money to help support his fiancee, and copies of dozens of emails the couple had exchanged. The consular officer declined to review the evidence, and instead separated the couple and asked them questions such as “When was the first time you made love with your fiancee?” “Why did you wait so long?” “How many times did you make love yesterday after you picked him up from the airport?” “Who took a shower first afterwards?”

The couple was mortified, which caused them to give slightly different answers. Maria’s application was denied because the couple “was unable to demonstrate the bona fide nature of their relationship.”

I advised the couple to skip the appeal, but instead to simply get married and try again. They arranged for a quick marriage, attended only by a few friends and family members. We fully disclosed that the reason for the quick, sparsely attended wedding was the couple’s desire to submit a new application so that they could live together in the United States.

We again provided extensive documentation of the couple’s relationship; photographs of their wedding and honeymoon (another trip to Panama), additional Western Union receipts showing that Edgardo has sent thousands of dollars to help support Maria and her child, and additional emails between the couple.

When Maria appeared for her interview, the consular officer again declined to review the evidence, but instead opined that Edgardo was too old for Maria. The application was denied.

This time we appealed and finally won the case.

Somewhere along the way, I had written to fourteen State Department officials, indicating my feeling that it was inappropriate, and demonstrated inadequate training, for consular officers to ask visa applicants about the intimate details of their relationships. The only response I got was from the chief consul in Ecuador, advising me that these questions were “the only way” to find out if a relationship is bona fide. For the record, as a veteran of hundreds of interviews for marriage-based cases, I have observed hundreds of ways that properly trained officers approach this issue.  Never once have I heard an officer ask questions like this.

It took Edgardo almost five years to be able to bring his wife to the United States. We don’t know how many years it will take for the couple to live down the trauma of being questioned by a stranger about the intimate details of their relationship.

Your electronic I-94, Travel History could be full of errors

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Screenshot of Online I-94 Retrieval Form

Screenshot of Online I-94 Retrieval Form


While you no longer have to worry about replacing a lost or damaged paper I-94, you still have to make sure CBP is doing its job. And you need to worry about more than just your I-94; you also need to make sure that your travel history log is complete and correct!

Recently I had a client go through what I will call ‘the CBP Nightmare.’ Multiple lessons were learned in the process but they all boil down to this: don’t assume CBP is doing their job right.

The CBP Nightmare

It all began with the officer who stamped my client’s passport at the port of entry. According to the stamp, he was approved for a 7-month stay on a B2 visa. The client, having flown multiple times on a B2 since he was a child, concluded this was just a discretionary grant and left it at that.

When my client had a little less than a month of authorized stay (based on the passport stamp), he went online and checked his I-94. The first mistake he saw was the ‘Most Recent Date of Entry.’ The date shown was from 5 trips ago; that is, my client had flown in and out of the U.S. on his B2 five times after the date that was shown! After looking at the Travel History, it was confirmed that CBP had failed to enter my client’s last five entries. This lead to the next mistake: according to the ‘Admit Until Date,’ my client was out of status!

And now, the next episode of the CBP Nightmare: Deferred Inspection.

I have now shown up with my client at the CBP Deferred Inspection Office in Chicago, a small and empty waiting room with a service window. The officer shows up–you have to ring a bell so that an officer will show up at the window–and, without giving us an opportunity to explain why we are there, she immediately tells us that they are no longer giving out paper I-94s and that we need to go online to print them out. Ok, good to know. I handed the officer a full set of copies of my client’s passport, as well as the passport, and printouts of the I-94 and Travel History. I offered the itineraries for all five trips after the one shown in the record, and explained that the last trip that was booked was changed and that my client did not leave the country as scheduled. The officer refused to even look at the itineraries, then she disappeared with passport and copies. We were eventually given back our documents and an updated printout of just the I-94. To our horror, the I-94 indicated that my client was authorized for the standard 6-month period and that he had fallen out of status just a few of days before, which was inconsistent with the information on the passport stamp. We pointed this out to the officer. The officer called her supervisor, and the supervisor instructed the officer to manually correct the stamp on the passport, writing in the previous month, and placing the mark “CWOP” (cancelled without prejudice). They shrugged their shoulders and told us to talk out the rest with CIS. Without prejudice indeed…

But it gets worse. When we get back to the office and check the Travel History, the record shows that my client left the country when he actually didn’t. Apparently, CBP taps only into airlines’ booking records, rather than their boarding records. Then I look through the passport copies that were handed back to me. They kept the page with the original passport stamp! Thankfully, I had made another copy for my records.

Based on the above experience, I have come up with the following:

Tips for the Travelling Nonimmigrant

  1. Check your I-94 and Travel History as soon as possible after your last entry and make sure it’s correct;
  2. Don’t rely on the information on your passport stamp–always check it against the information in your electronic record;
  3. CBP can change official travel documents on the spot with no record of the change–keep good copies of every original document you give them;
  4. Also make sure to keep copies/printouts of the I-94 and Travel History versions you are trying to correct;
  5. Hire an immigration attorney to help you navigate the Deferred Inspection process and help you file a complaint against CBP if necessary.

Raymond’s world travels – Geologist struggles to get permanent residence

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For this blog entry, I will let my readers play the role of the Immigration Service adjudicating officer.

“Raymond” is a geologist who is also an IT expert. At the time he contacted me, he was working in a temporary status (H-1B) for a US research university, in a very unique program. He spent several months at the university creating and perfecting software. Then he took the software with him to the other part of his job, which involved living on a very specialized ship, somewhere out in the Pacific. The project on the ship was funded by an international consortium of about two dozen nations. Its purpose was to study the earth’s core to help predict, and possibly prevent, earthquakes. Using a multi-million dollar budget, the ship uses specially-designed, one-of-a-kind drilling equipment to bring samples up from beneath the ocean floor. Each sample must be carefully analyzed and recorded, using the software that Raymond developed. The information is transmitted to consortium members, who are sometimes using computer systems that are different than the one on the ship. If the software breaks down, or isn’t properly designed in the first place, hundreds of thousands of dollars, or maybe more, in research will be lost.

 In order to get permanent residence for Raymond, I had to show that his work was exceptional, and that it would have nationwide benefits in the United States. I am guessing that very few of my readers’ friends and neighbors would be able to replace Raymond. And I am also guessing that many of my readers would like to know ahead of time if their city was about to be hit by an earthquake. But I will let you each play the role of the adjudicating officer before you read the next paragraph.

 Would Raymond’s employer have sent him out on the ship if his work was not exceptional? Would the consortium have invested many millions of dollars if the work would not have nationwide, and indeed international, benefits?

 The immigration officer found that Raymond’s work was not exceptional, and that it would not have nationwide benefits. It took over a year for me to win the appeal. By then, Raymond and his wife were living in Australia, where his work was appreciated, and where his wife settled into a PhD program that would keep them in Australia for several years.

Raymond is finally about to come back to the United States, now that his wife has finished her PhD. He is on the ship right now, and will be back at the university, further refining the software, in a few months.

For the past five years or so, the international consortium has had to do without his services.

ICE Detainers are creating civil liability for local counties and sheriffs

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On June 18, 2014, our Chicago Associate Noelia Rodriguez and I attended the annual AILA National Conference in Boston, MA. As immigration attorneys, it is very important for us to stay up to date on the most recent changes and trends in immigration law. The AILA National Conference is the most important symposium of the year where immigration attorneys from all over the United States gather to network and get educated in all things relating to immigration law.

Andrea and Noelia in Boston

Andrea and Noelia in Boston

Among the multitude of topics discussed at this year’s National Conference, one of the most intriguing was the seminar on ICE Detainers.

 What are ICE Detainers?

When a person gets arrested by a state law enforcement agency, if that community has an agreement with ICE, ICE will be notified of that person’s arrest. ICE will then issue an ICE Detainer to the local county or sheriff’s office, requesting that the jailer hold the individual for 48 hours after that person’s state imposed sentence is complete so that ICE can come to pick up that individual.

The only basis in law for an issuance of a mandatory ICE Detainer is for a non-citizen who has committed a drug-related crime. However these days, ICE Detainers are being used to pick up any non-citizen even with the slightest infraction such as driving without a license. ICE Detainers for these types of misdemeanors are supposed to be treated as requests and should never exceed 48 hours excluding weekends and holidays. If they do exceed 48 hours, then the local law enforcement agency is subject to civil liability.

How does the 48 hour rule work?

The law says that once an ICE Detainer has been issued, the local law enforcement may hold that individual for 48 hours. The clock starts running the instant that person is eligible to be released from local law enforcement custody. This happens when:

The charges against the person have been dismissed

  • A person is eligible to be released after paying his/her bond
  • A person is eligible to be released on defendant’s own recognizance
  • A person has completed his/her criminal sentence
  • The charges against the person have been dismissed

As soon as this event occurs, the clock starts running. So for example, if your charges were dismissed by the judge on Tuesday at 2:21pm, the local jail should only hold you until 2:21pm on Thursday. If ICE has not yet picked you up by then, the local agency is subject to civil liability because they are holding in violation of your 4th amendment rights to be free from seizure without probable cause.

What about federal holidays or weekends?

This rule states that the 48 hours does not include weekends or holidays. Therefore if your charges are dismissed on Thursday July 3rd at 3pm, the jail may hold you until Tuesday 3pm because Friday the 4th of July is a federal holiday and Saturday and Sunday are the weekend.

Why does all of this matter?

This is important because if you are the subject of an ICE Detainer you should know your rights and know your legal options. As always, consult an attorney before taking any action.

It also matters because if, as an attorney, you are aware of a pattern of practice in your local jurisdiction that violates these standards, you should file suit to correct it. Due to diligent clients and attorneys working together, a pattern of limiting or refusing to honor ICE Detainers has started emerging in many counties across the United States. Here is a list of counties that have already decided to limit or refuse honoring ICE Detainers due to their exposure to civil liability: https://cliniclegal.org/resources/articles-clinic/states-and-localities-limit-compliance-ice-detainer-requests-jan-2014.

Amara’s scars: Rape victim fights for political asylum

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Amara (not her real name) was beaten and raped by low level government employees in Ethiopia. Then she was abused by the American immigration court system.

I met Amara after her application for asylum had been denied. She was in the immigration court system and the US government was seeking to remove her from the United States. She turned to a nonprofit organization, which in turn referred her case to me, to renew her claim for asylum in front of an immigration judge.

 What was the crime that the Ethiopian government workers punished Amara for? She had been born and raised during a peaceful time. But during a time of border war between Ethiopia and Eritrea, Amara had the temerity to be of mixed Ethiopian-Eritrean descent. She had left the country before the tensions erupted, living in Italy and studying hairdressing. But when the tensions increased, her family, including her husband, disappeared. So Amara went back to Ethiopia to look for them.

 Upon her return, she was arrested at the airport based on her Eritrean ethnicity. She was held in a cell for several days, during which she suffered unspeakable abuse. On her release, the officers handed Amara a deportation order and told her to leave the country. She remained for a few weeks, hiding at a friend’s home to recover from her ordeal. Then she made her way to the United States, where she applied for political asylum. She was terrified to return to Ethiopia.

But Amara had a weak case. All she had to support it was her own testimony and two original documents from Ethiopia: the deportation order and her marriage certificate. The government attorney who was attempting to have Amara removed from the United States sent the documents out for forensic examination. An analyst who knew nothing about Ethiopia concluded that the documents were false. Although the government attorney had this information for six months, she chose to blindside Amara and me with the analyst’s report on the day of Amara’s hearing. The immigration judge found nothing wrong with this abuse of process, and allowed the testimony to proceed.

 In an attempt to be fair, the immigration judge told me that I could have a second hearing date, when I would have the opportunity to rebut the analyst’s testimony. My witness on that day was an emeritus professor who had spent some fifty years studying and teaching about Ethiopia, had lived in Ethiopia for several years, and had learned the native language, Amharic. Yet the judge would not allow him to speak because he was not a forensics expert.

In her decision denying Amara’s political asylum, the judge relied heavily on the evidence with which I had been blindsided, and which I had not been allowed to rebut. She substituted her own professional judgment for that of my client’s therapist, and misstated several facts of the case.

The Board of Immigration Appeals rubber stamped the immigration judge’s decision.

 Finally, the Seventh Circuit Court of Appeals, the highest federal court in Illinois, reversed the denials, calling for a new, unbiased judge to finalize the case in immigration court. Amara finally won political asylum, more than five years from the day she started the process.

 During the five years, Amara had to prepare for trial over and over, rehashing the story of her torture and rape, because of the government attorney’s delays. After the Board of Immigration Appeals denied her case, while she was waiting for the federal court to rule, she lost her right to work in the United States for over three months and had to survive on the charity of friends.

There are many thousands of stories like Amara’s; those who have sought the refuge promised by the words on the Statue of Liberty, only to learn how far this country has come from the spirit of those words.

Official DACA renewal process was finally announced

By | Deferred Action Status, Uncategorized | No Comments

On Thursday, USCIS finally released the new revised form I-821D for both Initial DACA applications and Renewal DACA applications. As of June 5, 2014, all DACA applications, both initial and renewal must be submitted on the new I-821D form.

Here is an overview of the requirements for filing a DACA renewal application:

When to file? 

  • You should submit your DACA renewal application no sooner than 150 days prior to the expiration of your status.
  • In order to avoid accruing unlawful presence you should submit your DACA renewal application no later than 120 days prior to the expiration of your status.
  • You may submit your DACA renewal application up to one year after the expiration of your status. However, as soon as your DACA status expires, you begin accruing unlawful presence, and your employment authorization is no longer valid.

What to file?

  • You must submit your DACA renewal application with 2 passport photographs and a copy of your current employment authorization card showing that you have DACA status.
  • If you have traveled without advance parole since August 15, 2012, you must include evidence of your travel
  • If you have incurred any new criminal arrests, charges, or convictions, for which USCIS does not have any records of, you must include those in your renewal application.

As you may notice, there is no requirement to submit evidence that you are still enrolled in school or that you have graduated from any program you were previously enrolled in. However, we encourage all DACA recipients to complete their courses of study or to continue to pursue an education as these requirements could change in the future.

To find out more about the renewal process or even about the initial filing process, please visit USCIS Frequently Asked Questions page (http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions).

Immigrants Keep Horse Lovers on Edge

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Horse racing

It has been 36 years since the horse racing community has produced a “Triple Crown” winner – a horse that wins the Kentucky Derby, the Preakness and then the Belmont Stakes. This year many people thought it would happen.

California Chrome, a horse that was owned by two newcomers to the racing community, won the first two races. One hundred thousand in-person viewers, as well as millions in front of their TV’s, were on the edge of their seats for the final race, the Belmont Stakes on June 7, 2014. Would it be a historical moment or not? Unfortunately for the history books, Tonalist, a 9-1 longshot, won the race.

But the story goes way beyond the horses. It takes countless hours of training and practice to get the horses to their moment of glory. And in the final moments, no matter how well-trained the horses are, the victory is in the hands of the jockey.

In the Belmont Stakes, would it be the Domincan or the Mexican jockey who brought the crowd to their feet? Many years before the 2014 horse races, Victor Espinoza was born on a dairy farm in Mexico, the 11th of 12 children. He loved riding horses, and at the age of 15 he traveled to assist his brother with training quarter horses. Later, at the age of 17, he paid for jockey school by driving a bus in Mexico City.

By 1994, Espinoza had moved to Northern California and become the leading apprentice rider at the Bay Meadows and Golden Gate Fields racetracks. Fast forward to 2002, where he won the Kentucky Derby and Preakness by riding War Emblem. Again in 2014 he had the same two nationally recognized accomplishments riding on California Chrome.

But once again, the day of the Belmont Stakes, Espinoza was to lose his bid for the Triple Crown. Espinoza’s challenger was Joel Rosario, a Dominican who had enrolled in jockey school and had his jockey’s license by the age of 14. He found his way to the United States and won his first Breeders’ Cup race in 2009, riding on Dancing in Silks. He came to national attention in 2013 by winning the Kentucky Derby on Orb. After numerous other nationally recognized appearances, Rosario ruined Espinoza’s Triple Crown quest by winning the Belmont Stakes on Tonalist.

Americans were enthralled by this contest between two outstanding immigrants!