Articles Posted in Deportation/Removal

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graduation-022-300x225On June 15, 2017, Department of Homeland Secretary John Kelly issued a Policy Memo regarding two programs:  the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of American Citizens (DAPA) and there was good news and bad news.  The bad news – Secretary Kelly rescinded the November 20, 2014 memo that created DAPA.  DAPA was an Obama program that awarded deferred action from deportation and a work permit to those parents of U.S. citizen children that met certain criteria, such as having lived in the United States continuously since January 1, 2010 and other factors.  But before the program could be implemented, 26 states joined in a lawsuit against DAPA, and a Federal Judge from the District Court for the Southern District of Texas enjoined the DAPA program, preventing it from ever being executed.    The good news – Secretary Kelly left in tact the Deferred Action for Childhood arrivals (DACA) program.  Unfortunately certain provisions in the DAPA policy memorandum that expanded DACA  such as allowing a 3-year work permit instead of 2 year, and eliminating the eligibility age cap of 31 years old were also eliminated.  So DACA remains as is for now, pursuant to the June 15, 2012 Memorandum.  Although this appears to be a reprieve for the DACA program for now, the Trump administration would not commit to the long-term fate of DACA.  For now, Work permits for DACA recipients will not be revoked, and the program continues to be open to new and renewal applications.  You can still apply for DACA if you meet the following requirements:

  • You were under the age of 31 on June 15, 2012;
  • You came to the United States before your sixteenth birthday;
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100203houston_lg-300x227If you are undocumented and approached by Law Enforcement, the Department of Homeland Security, ICE or other Immigration Officials – you do have certain rights.  If encountered at home, you do not have to open the door unless the officials have a search warrant.  You have the right to remain silent, and the right to speak to a lawyer if you are detained or taken into custody.  If you are approached in a Public area by immigration officers, you have the right to remain silent, you may refuse a search, and you have the right to speak to a lawyer if detained or taken into custody.  You can refuse to sign any and all paperwork presented to you until you have spoken to a lawyer.  Print out the attached Know Your Rights pages and keep them for your reference.  Cut out the Know Your Rights Card and carry it with you.  You may give it to immigration officers if you do not wish to speak to them.

Know your Rights – Home

Know Your Rights Card

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handcuffs-308899_640-300x221On April 11, 2017, Attorney General Jeff Sessions issued a memorandum to all federal prosecutors titled “Renewed Commitment to Criminal Immigration Enforcement,” in which he directs federal prosecutors to enforce the criminal laws against unlawful entry into the United States.  In the past, offenses such as unlawful entry, unlawful re-entry, document fraud or identity theft had noncriminal resolutions such as deportation or voluntary departure. The policies recently outlined by Sessions now encourage criminal prosecution of non-violent immigration violations as follows:

  1.  Offenses related to unlawful transportation of harboring of undocumented aliens, with priority on those smuggling three or more individuals.
  2. Any case where the defendant has two or more prior misdemeanor improper entry convictions, or one or more improper entry convictions with aggravating circumstances, such as criminal history, gang membership or affiliation or multiple prior voluntary returns, prior removal or deportation orders, will be referred for criminal prosecution.
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mex-border-300x225The latest Trump Executive Order on Border Security makes some significant changes on Expedited Removal and who will be subject to this Administrative Procedure.  Expedited Removal is a procedure that allows Department of Homeland Security to summarily remove or deport an undocumented individual without a hearing before an Immigration Judge.  This type of procedure can be applied to any person who is apprehended at a port of entry with no valid documents, or false documents; and also to any person who is apprehended somewhere other than a port of entry, who is inadmissible because of misrepresentations or has not been lawfully admitted, and cannot show he or she has been continuously present in the United States for two or more years.  Under the Obama administration, the use of expedited removal was limited and only applied for individuals who arrive at a port of entry, or individuals apprehended within 14 days of their arrival and within 100 miles of an international border.

Trump’s latest Executive Order on Border Security expands those individuals who can be subject to expedited removal to any individual who entered the U.S. without legal documents,  who cannot show continuous presence in the United States for two or more years.  This Expansion has not taken effect yet, and Secretary of Homeland Security John Kelly stated he was going to publish a notice in the Federal Register to designate who would be subject to the Expedited Removal provision.  If use of Expedited Removal is expanded to the fullest extent of the law- then it could be applied to anyone without proper documentation to enter, no matter where they were apprehended, and cannot show two years or more of continuous presence in the United States prior to the date of the Expedited Removal.

The number of people who will be effected by this expanded use of Expedited Removal will depend on how Secretary Kelly plans to implement the expansion.  This raises a number of questions – how will individuals be able to prove their continuous presence for two years prior to apprehension? Do these individuals need to carry documentation with them? Can the determination of less than two years of continuous presence be challenged? Certainly persons taken into custody for Expedited Removal or should contact an experienced immigration lawyer as soon as possible. Expedited Removal Orders may be subject to Administrative review.

 

 

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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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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.