Articles Posted in Deportation/Removal

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Senators 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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Documented 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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Data from TRAC Immigration

The Immigration Court system in the United States is notorious for its backlog of cases. This story gets attention every not and again from the national press. A little under a year ago, in order to help the chronic backlog facing the Immigration Courts, Congress provided funding for 55 new immigration judges. To put this is perspective, an immigrant rights group estimates that over 200 new immigration judges would be necessary to even make a dent in the chronic backlog of cases before the court. Fortunately, it appears there are plans to boost the number of immigration judges even more, but still short of the number necessary to reduce the persistent backlog of cases.

But despite these new judges, the backlog persists. According to the Hill, over 500,000 cases currently sit waiting to be heard by an immigration judge across the United States, the largest backlog in our nation’s history. In Illinois alone, there are over 20,000 cases waiting to be heard by an immigration judge. The average number of days cases have been pending in the United States is 672 days. Human Rights First also notes that the average number of days between when an immigrant files a case before the court and that case is actually heard is over 1,000 and just under 3 years. While these cases sit, the lives of the immigrants impacted by the case remain in immigration limbo.

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According to a recent article from the Chicago Reporter, several groups are calling on Mayor Rahm Emanuel to enact reforms in the way Chicago Police are allowed to interact with the undocumented population in Chicago. Right now it is estimated that nearly 7% of the Chicago population is undocumented. That equates to over 180,000 individuals that these reforms would protect.

Under current city ordinances and executive orders, it is against city policy for city employees to deny benefits based on the immigration status of an individual. Additionally, city employees are prohibited from inquiring about the immigration status of an individual. Mayor Emanuel also limited how Chicago Police can cooperate with federal immigration officials in order to deport individuals detained by Chicago Police. But Reform groups say those protections aren’t enough and would like to strengthen those prohibitions. According to the Chicago Reporter, under a proposal suggested by a collection of immigration reform groups, several more projections would be enacted, such as:

  • “Eliminate exemptions that allow police to work with federal authorities when dealing with undocumented immigrants who are either wanted on a criminal warrant, convicted felons, charged with a felony, or identified gang members,
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Domestic abuse and violence charges and convictions can have very serious consequences when it comes to immigration proceedings. Pleading guilty or being found guilty of a domestic abuse or violence crime automatically makes any non-U.S. citizen deportable.

Furthermore, a domestic violence conviction can make you ineligible for an adjustment of status in the United States because domestic violence type crimes have been found by U.S. courts to be a “crime involving moral turpitude.”

My experience in immigration law has allowed me to work on cases and remove clients from mandatory detention. A recent case I worked on, I was able to remove my client from mandatory detention because the crime they were originally charged with was a domestic violence type crime, but the actual crime they plead guilty to was simply an ordinance violation. Had this gone unnoticed, the client would still be in detention facing deportation.

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The Customs and Border Protection (CBP) agency has introduced a rule that would add a social media section to I-94W and Electronic System for Travel Authorization (ESTA) applications. According to a report from the British Broadcast Channel, the CBP plans to add a section to both applications asking applicants for social media platforms they use and for an account identifier, such as a user name.

According to CBP, the social media section would be optional and would be used for vetting purposes and contact information by the agency. A similar proposal was offered in 2014 but later abandoned for Visa applications. The Department of Homeland Security (DHS) has gone back and forth about vetting immigrant social media posts, particularly after the Department was criticized after the San Bernardino shooting.

The New York Times reports that a pilot social media screening program is already being utilized for fiancé visas and actually just ended its run this past June. Three other pilot programs are also being tested but details about those were not made available. While proponents point to additional information about potential immigrants as an advantage of screening social media, But opponents point to privacy concerns over having immigrants handover their social media information to the federal government.

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Last week, the United State Supreme Court issued its ruling in the case regarding President Obama’s executive actions on immigration. In United States v. Texas, the Supreme Court was split 4 to 4. Because the Supreme Court was unable to come up with a majority, the ruling of the 5th Circuit Court of Appeals is affirmed. The decision, which affects millions of individuals without status in the United States, was just nine words long: “The judgment is affirmed by an equally divided court.” As you may recall, the 5th Circuit struck down President Obama’s executive actions on immigration last year. That ruling is effectively still in place because the Supreme Court 4-4 split affirms that judgment.

This decision is a major setback for President Obama as he had hoped to have the new DAPA and expanded DACA in place prior to leaving office in January 2017. Because the 5th Circuit decision struck down the president’s executive actions, President Obama will not be able to implement his much anticipated reforms. After the decision, many politicians and activists criticized the Supreme Court as well as Congress for failing to pass comprehensive immigration reform.

Responding to the decision, President Obama said “I think it is heartbreaking for the millions of immigrants who made their lives here, who’ve raised families here, who hope for the opportunity to work, pay taxes, serve in our military, and fully contribute to this country we all love in an open way.” While the Supreme Court split effectively ends the legal battle regarding the president’s executive actions, attention will now shift to the presidential election as the two major candidates will have to outline their immigration policies for the country as the campaign wages on.

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A growing issue that Legal Permanent Residents are running into comes up when they travel abroad and are returning to the United States. Typically, LPRs will show their Green Card to a Customs and Border Protection agent, answer a few questions, and be allowed back into the country; however, some LPRs are running into trouble.

An issue that LPRs may face is that during their time in Customs, an arrest or conviction is being reported, which is grounds for inadmissibility, so the CBP Agent wants to investigate further. Typically, the CBP officer will then schedule the LPR for “deferred inspection.” Deferred inspection is a separate appointment that the LPR will have to return to a specified location on a specific date for another interview. Upon checking in, you will meet with a CBP officer that will conduct the interview. If your deferred inspection is because of a past arrest or conviction, that is what the interview will likely center around.

If you are a LPR and are asked to attend a deferred inspection interview, you can bring an attorney with you and in fact, it is advisable to do so because CBP can initiate removal proceedings. Consulting with an attorney prior to the deferred inspection interview will adequately prepare you for the interview as to how what types of questions will be asked, practice answering questions, and what type of documents to bring. If you have a deferred inspection interview coming up, you should contact a skilled immigration attorney to help you prepare for the interview.

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A recent Chicago Tribune article points out an ever growing issue in the United States. Under federal law, immigration authorities are prohibited from arresting and detaining United States citizens and are supposed to investigate the citizenship status of all detainees. But the Tribune articles points out that a growing number of American citizens that are being detained and sometimes even deported by ICE officials.

Since 2010, immigration advocates have represented over 11 United States citizens that have become entangled in legal battles with immigration officials despite being United States citizens. Once such case from New York involved an individual with disabilities that was mistakenly deported to Mexico. The ACLU sued the federal government and settled the case in 2011. Despite the eventual resolution in these cases, the problem still persists.

A Political Science professor that monitors immigration cases says that about 1% of all immigration court cases eventually get dismissed because the case involves a United States citizen. But the question remains as to why U.S. citizens are being detained. An immigration advocate says that the legal standards for ICE to stain someone are so low and woefully inadequate to protect United States citizens. ICE says that determining certain individual’s immigration status can be difficult and complicated at times which explains why some citizens may be detained. Until further protections are enacted, the possibility of U.S. citizens being detained by immigration officials remains a real threat for many citizens.

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The United States Supreme Court heard oral arguments in the case involving President Obama’s executive action on immigration, United States v. Texas. During oral arguments, it appeared from the questioning that the eight justices on the Supreme Court were divided among ideological lines, with the four liberal justices strongly questioning the twenty-six states challenging the President’s DACA and DAPA orders while the four conservative justices strongly questioned the government lawyers defending the President’s immigration orders.

In an extended oral argument session, each side laid out their case as to why the President’s expanded DACA/DAPA order should be upheld or struck down. Lawyers in favor of the President’s executive orders argued that Congress only gave the government so much money to deport alien’s unlawfully present in the United States so prioritization had to take place. Government lawyers argue that the President’s order simply grants Lawyers opposed to the President’s executive orders saw things differently, arguing that the President exceeded his discretion under the current immigration laws passed by Congress.

While it remains uncertain what the Supreme Court will do with the case, there are a number of scenarios that can play out. Firstly, a majority of justices might be able to agree on an opinion for the case, thus resolving the legal issues presented; however, most experts seem to agree that this outcome is unlikely. Secondly, the justices can decide to hold the case over to the next term for re-argument in the hopes that a new justice will be seated to replace the late Justice Antonin Scalia. Thirdly, a divided Supreme Court can issue no opinion and let the decision of the lower court stand. If you remember back in August of 2015, the 5th Circuit affirmed the injunction against the President’s expanded DACA and DAPA executive orders, which would mean the President’s executive action, could still not be implemented.