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Seal_of_the_United_States_Department_of_Homeland_Security-300x300On January 25th, President Trump signed and executive order “Enhancing Pubic Safety in the Interior of the United States.”  Early this week, Department of Homeland Security Director John Kelly issued a memo further defining removal priorities of the undocumented.  Although the new policy memo expands the deportation priorities to almost all undocumented immigrants, the DACA program (Deferred Action for Childhood Arrivals) remains in tact for now. Kelly states “the Department shall faithfully execute the Immigration Laws of the United States against all removable aliens.” Regarding prosecutorial discretion, DHS is directed to initiate removal proceedings against “any alien subject to removal under any provision of the INA.”  Clearly every undocumented person is at risk for deportation (with the exception of those who have DACA approval)

With limited resources, it is unlikely that the current number of CPB, ICE, and USCIS officers and officials will allow for mass scale deportation.  The priorities are meant to define individuals that the Department should seek out for deportation.  Individuals who have been convicted of any criminal offense, charged with any criminal offense that has not been resolved, or have committed acts that constitute a criminal offense are priorities for removal.  Criminal offenses are not defined and can presumably be anything from driving without a license to aggravated felonies.  Other priorities for deportation are those who engaged in fraud or willful misrepresentation in connected with any official matter before a government agency, anyone who has abused any program related to receipt of public benefits, subject to a final order of removal but failed to leave, or those who pose a risk to public safety or national security.  Within these categories, DHS is directed to fast-track removal of Criminal Aliens, bypassing the Immigration Court for any noncitizen convicted of an aggravated felony.  To quote Trump “Were getting really bad dudes out of this country and at a rate that nobody’s ever seen before. . . And they’re the bad ones. And its a military operation.”

Enforcing the Immigration Laws of the country also includes the due process afforded to legal permanent residents and undocumented persons that meet certain criteria.  In many most cases, undocumented persons are allowed a hearing before an immigration judge. There are certain defenses and waivers are available for some (not all) grounds of .  Make sure you talk to an immigration lawyer experienced in removal hearings if you come to the attention of any ICE, CBP, or USCIS official and are eligible for deportation.

 

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100203houston_lg-300x227The New York Times, CNN, Chicago Tribune and other news outlets are reporting an apparent “ramping up” of ICE enforcement actions.  Federal officials confirmed more than 600 people across 11 states were detained in the past week.  ICE announced that more than 200 people had been arrested in the midwest states that are overseen by the Chicago office.  ICE Tweets daily to announce  when criminal aliens are removed, such as a Dominican national wanted for murder, and a convicted felon deported to Mexico. Some of the Tweets by ICE over the past 3 days emphasize the Services broad powers: “ICE immigration enforcement actions target specific individuals according to the laws passed by Congress” and “ICE targets convicted criminals and others who are illegally present in the United States” and “ICE enforces our nations immigration laws in a professional manner.”  ICE claims this week’s aggressive enforcement is “business as usual” and denies conduction sweeps and indiscriminate roundups.  But the immigrant community remains fearful.  ICE officials denied that they were carrying out Trump’s enforcement priorities at this time, insisting these operations are executed two or three times a year.   Yesterday, Trump tweeted The crackdown on illegal criminals is merely the keeping of my campaign promise.  Gang members, drug dealers & others are being removed!”  But this did little to calm the fear in immigrant communities.  Immigration advocates are concerned that those arrested in the Midwest sweep will face criminal prosecutions by the U.S. Attorneys office for illegal entry and illegal re-entry after deportation, as they become enforcement priorities under the January 25, 2017 Executive Order “Enhancing Public Safety in the Interior of the United States.  Any undocumented person who is questioned by ICE should consult an attorney, if possible, before signing anything.

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Donald_Trump_August_19_2015_cropped-225x300A headline story in this week’s Sunday Chicago Tribune announced that up to 8 million people could be deported as a result of Trump’s Executive Order “Enhancing Public Safety in the Interior of the United States.”  Although the Trump administration insists that their intent is to find and deport “bad people”, the Executive Order allows immigration agents and local and state police to detain nearly anyone they come in contact with who has crossed the border illegally.  The consequences could be dire, for immigrants and their families, and for the United States.  While the enforcement priorities under Obama targeted 1.4 million people for deportation, under the new enforcement policies, nearly everyone who is in the country without proper documentation is at risk. The Tribune (citing a Pew Research Center study) said as many as 5.5 million people in the country crossed the border without proper documentation.  The remaining 6 million estimated undocumented people came to the U.S. on some type of legal visa, and overstayed  the time they were permitted in he United States.

The new Enforcement Policy includes anyone convicted of a crime, and also anyone charged with a crime, or anyone who committed a crime but was not arrested or charged.  This would include anyone who entered without a visa because illegal entry is a crime under 8 U.S.C. Sect 1325.  The order directs Department of Homeland Security to hire an additional 10,000 ICE officers for its deportation force, more than doubling ICE staffing.  Of course this expansion would require Congressional appropriations.

In additional to undocumented persons who were convicted of, arrested for, or committed but not arrested for crimes, the order targets those who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency, anyone having abused any program related to receipt of public benefits, any anyone who is subject to a final order of removal and failed to leave.  Note there is no ranking of these deportation priorities, making them equal in importance.

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Trump’s latest Executive Order on Immigration halted entry into the United States of all  individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.  The chaotic implementation of the order caused the detention of Legal Permanent Residents of the United States, non-immigrant visa holders, immigrant visa holders, refugees and derivative asylees.   The public outcry and protests over the “Muslim Ban” prompted several federal law suits, and by Saturday, a federal Judge in New York blocked part of the order, saying that travelers being held at airports across the United States should not be sent back to their home countries.  Opposition and criticism of the order has pushed this issue into the headline stories of broadcast and print news for a week and distracted our attention from two other flawed EO’s issued on January 25, 3 days prior to the travel ban.  The first is “Enhancing Public Safety in the Interior of the United States“, which drastically changes current immigration policies on border security, immigration enforcement priorities and admission of refugees.

Under the Obama policy, since 2014, the Department of Homeland Security prioritized placement in removal proceedings those with criminal felony convictions or aggravated felony convictions.  Priority 2 consisted of aliens convicted of 3 or more misdemeanor offenses or significant misdemeanors, and Priority 3 are those who have been issued final orders of removal after January 1, 2014.  Trump’s Executive order drastically changes those enforcement priorities.   The Trump order, includes anyone convicted of a criminal offense, anyone charged with a criminal offense – even if it has not been resolved, anyone engaged in fraud or willful misrepresentation in connection with any official matter of application, anyone having abused any program related to receipt of public benefits and anyone subject to final orders of removal but have not left the United States.

These directives are counter productive and destructive.  Trump’s order will dramatically escalate the use of immigration detention and expand the use of expedited removal without a hearing.   The Trump Enforcement Priorities draw no distinctions between potentially dangerous criminals and felons and those committing minor infractions.  The EO also prioritizes those charged with any crime – even before there is a conviction or resolution to the case.  Undocumented individuals need to be mindful of these enforcement priorities.  If you have criminal convictions or criminal charges, you need to see an experienced immigration attorney.  In most cases you may be entitled to a hearing before and immigration judge.

 

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bridge-1526248-640x480-300x225Senators Dick Durban (Dem.- Illinois) and Lindsey Graham (Rep.- South Carolina) have introduced legislation titled “The Bridge Act” to allow people who have received work authorization through Deferred Action for Childhood Arrivals (DACA) an extension of their status for a three-year period.  DACA is a program initiated by President Obama in 2012 creating work authorization for certain undocumented persons who came to the United States as children.  DACA was created by Executive Action and President -Elect Trump has promised to repeal all of President Obama’s Executive Action programs on the day he takes office, eliminating DACA and leaving DACA recipients in a vicarious position.    DACA provided more than 730,000 undocumented aliens with temporary work authorization and deferred action from deportation and was renewable every two years.  The Bridge Act would make it possible for DACA recipients and others that qualify under DACA eligibility “provisional protected presence” and work authorization for three years.  The Bridge Act also imposes restrictions on the sharing of information from DACA applicants with USCIS Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CPB).  The bill has bi-partisan support in the senate, however we don’t know yet whether it will pass both houses and become law.

The Bridge Act will have the same criteria as the DACA program.  Like the DACA program, The Bridge Act does not grant legal status or a path to a green card.  It merely provisionally protects qualified applicants from deportation and allows them temporary work status.  Since the new administration’s immigration policies are uncertain, be sure to consult a qualified immigration lawyer before you file a DACA application.

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statue_of_libertyAs discussed in our last blog post about provisional waivers, a requirement for obtaining the waiver for unlawful presence is a finding of “Extreme Hardship” to a US Citizen or LPR spouse or parent.  This person is known as the Qualifying Relative and must be a US citizen or LPR spouse or parent – not a US citizen or LPR child or children.  Recently, USCIS published new policy guidelines that define the term Extreme Hardship and guide USCIS adjudicators on the types of evidence that qualifies as Extreme Hardship.  In general, two types of Extreme Hardship are addressed: 1) Separation- when the qualifying relative remains in the United States and is separated from the applicant who is residing abroad, and 2) Relocation- when the qualifying relative suffers by having to relocate abroad to join the applicant.

Extreme hardship must be more that the common consequences of family separation and relocation.  Common consequences of being removed from the  United States or denied admission to this country are difficulties to the Qualifying Relative in adjusting to a new country, quality and availability of education opportunities abroad, inferior quality of medical care and services and the ability to pursue a chosen career abroad.  To establish extreme hardship, it is not necessary to prove that a single hardship alone rises to the level of extreme, but rather all of the relevant hardship factors are considered in the aggregate.  Further, extreme hardship determinations made are based on the “totality of circumstances,” which may be the hardship factors themselves, arguments made in the application and the types of evidence submitted.  The USCIS will consider as evidence of relocation hardship published documents such as Department of State travel advisories to particular countries, Department of State published Country Conditions and  Human Rights Reports.

One of the most important documents in an application for a Provisional Waiver is the statement of the Qualifying Relative.  This credibility of this statement is paramount in getting a provisional waiver application approved.  Putting together a good application for a provisional waiver requires well-organized documents and evidence  to support the QR’s statement.  You should seek the counsel of a qualified attorney experienced in waivers of inadmissibility, who can guide you in determining the best arguments for your particular circumstances and based on the evidence you are able to provide for a successful waiver application.

 

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we_are_all_immigrantsIn this posting, lets briefly take a look at Provisional Waivers.  Waivers for Unlawful Presence in the U.S. have been historically used by persons filing outside of the United States and undergoing Consular Processing to receive an immigrant visa to enter the United States.  Under this scenario, the applicant must remain outside of the United States while his/her I-601 waiver is being adjudicated.  In the past, families often had no choice but to be separated for periods of time of one year or more.  The Provisional Waiver was initiated in 2013 by the administrative rules process and is now a codified Federal Rule.  With an approved Provisional Waiver for Unlawful Presence, the applicant will eventually leave the United States to consular process,  but will be permitted to file the I-601 Application for waiver from the United States and can remain in the U.S. while the application is pending.  If everything else is satisfactory and there are other inadmissibility issues, the applicant will likely be out of the country for a just few days to complete visa processing at the consulate, and  re-enter the United States with permanent residence status.

Provisional Waivers can waive unlawful presence 3 and 10 year bars if a person meets the following criteria:

  • You are physically present in the United States
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handcuffs-308899_640Documented and Undocumented immigrants are understandably worried about what will happen in January when President-Elect Trump takes the Oath of Office.  Although his campaign began with a pledge to build a wall and immediately deport 11 million undocumented immigrants and their families, Trump seems to continue to walk back that promise.  In recent interviews Trump limited his threat of immediate deportation to those immigrants with criminal history.  As I discussed in a previous blog posts, that sounds sounds very much like Obama’s Enforcement Priorities for the Apprehension and Removal of Undocumented Immigrants.  It remains to be seen whether Trump can expedite removals without due process and a hearing before an immigration judge, protections that found in the current law.  Although most convictions for crimes trigger removability or inadmissibility, defenses are available to remain in the United States, and in some cases receive or maintain legal permanent residence status.    Some of these defenses come in the form of waivers.  There are many different types of waivers in the immigration law, but generally a 212(h) waiver can waive some criminal grounds of inadmissibility.   At 212h waiver can waive an admission for conviction for crimes of moral turpitude, engaging in prostitution, and conviction of two or more offenses of any kind with an aggregate sentence imposed of a least five years.  It cannot waive drug offenses for anything other than possession of under 30 grams of marijuana.  Also – it may not available to certain Legal Permanent Residents who have not held Legal Permanent Residence Status for 7 years prior to being put into removal proceedings.  In most 212h cases, the waivers require a finding of extreme hardship to a lawful permanent resident or United States Citizen spouse, child or parent. The law is very complicated in the area and one would be wise to seek counsel from an experienced attorney if you are placed in removal proceedings for a criminal conviction.  More about waivers – including provisional waivers for unlawful presence bars next week.

 

 

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USCISLogoEnglishOn December 23, 2017, USCIS fees for most applications will increase by an average 21%.  Any applications filed on or after December 23, 2016 will require the new fee.  Be advised that there are significant increases for some applications.  There is a new 3-level fee structure for Naturalization applications.  The N-400 application fee will increase from $680 (including the biometrics fee) to $725 (including the biometrics fee).  A reduced fee of $405 (with biometrics fee) will apply to applicants with household income greater than 150% but not more than 200% of federal poverty guidelines.  No fee will be charged to certain applicants with military service or those with approved fee waivers.  The fee for an Application for Certificate of Citizenship (N-600) for those applicants who derived citizenship through biological parents will increase by over $570- from $600 to $1,170 (without the biometrics fee.)   Temporary Employment Authorization fees will increase from $360 to $575 (plus $85 biometrics fee).  K-1 Fiance petitions will increase from $340 to $535 and I-130 immigrant petitions will increase from $420 to $535.  The new fees are located on the USCIS.gov website.

If you have been putting off filing your application – the new President taking the oath of office on January 20, 2017, and the upcoming fee increases should give you incentive to file immediately for any immigration benefit you might qualify for.  You should consult with an experienced immigration attorney to see if you qualify for legal status by means of immigrant visas through family members – even if you entered this country without documentation or overstayed a visa.  These things can sometimes be cured by a waiver for qualified applicants.

 

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The results of yesterday’s presidential election are weighing heavily on many immigrants in this country.  From the  start of the primary season, Donald Donald_Trump_August_19,_2015_(cropped)Trump made the removal of undocumented immigrants the cornerstone of his campaign.  Fear and uncertainty resonate throughout immigrant communities.  But Trump’s policy has gone through so many evolutions, it is hard to say what his policy will be by the time he takes office in January 2017.   Early on in his campaign, Trump was promising  to immediately deport 11 million undocumented people and their spouses and children.  Trump argued that children born in the United States to undocumented parents should be denied automatic citizenship and deported with their parents; a plan that  disregards the Citizenship Clause of the Fourteenth Amendment, conferring citizenship on all persons born within the United States.  Trump said that after removing all of the undocumented immigrants, he will immediately “bring the good ones back,” showing an astounding lack of understanding of current Immigration Law and bars to re-entry.   Trump has since backed away from those positions, stating his deportation priority will be undocumented aliens who have committed crimes; which, coincidently, has been Obama’s Policy for the removal of aliens in this country.  Under the Obama administration, the first priority for apprehension and removal includes public safety or terrorism risks, aliens convicted of criminal gang activity and aliens convicted of felonies and aggravated felonies.  The second enforcement priorities are those with misdemeanor convictions and new immigration violators, and the lowest enforcement priority are those aliens with other immigration violations.  So it would seem that Trump’s most recent policy announcement of prioritizing removal of the criminal undocumented maintains the status quo of the Obama administration.

It is not known how Trump will handle the recipients of work authorization permits under the Deferred Action for Childhood Arrivals (DACA) program, which was created by Obama’s executive order.  Trump has promised to immediately withdraw the executive order that creates the DACA work authorizations.  How he will treat those who currently have DACA status is another question.  One would hope that if Trump’s true priority is to remove criminal aliens from this country, he will leave those work authorizations in place for those who were brought to the U.S. as children, educated here and now are productive and working residents of our communities.

Keep following this blog as I will continue to update Trump’s immigration policy as it evolves.  I will also begin discussing some of the legal means to obtain status under the current immigration law for qualified individuals.