Articles Posted in Removal & Immigration Courts

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Now that the government has reopened, there are a few lingering immigration related issues. Today, USCIS issued this advisory concerning work visa applications:

We would like to share the following information on Form I-129 H-1B, H-2A, and H-2B petitions.

If an H-1B, H-2A, or H-2B petitioner submits evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements.

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In the world of immigration and citizenship law, our clients deal with many government agencies. My readers know that I like to cite directly to government sources; so, let’s take a look at the contingency plans of various federal agencies in case Congress puts us all over the fiscal cliff into a government shutdown next week. Keep in mind that things are changing by the hour. If ever there is a time for it, should there be a shutdown, patience will certainly be a virtue while our crazy Congress gets its act together. As of this writing today, none of the agencies have posted plain language-speak on their home pages to let the public know what they plan to do. The agency documents cited below have a lot of budget management-speak, and have been sent to the White House. This is my attempt to decipher and summarize them as they could affect our clients. Stay tuned to the news.

US Department of Homeland Security

Based on a September 27, 2013 US Department of Homeland Security contingency plan, here are some ways your immigration or citizenship case may be impacted:

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Today, the Supreme Court of the United States (SCOTUS) heard oral arguments in Arizona v. US. The statement of the case as presented to SCOTUS was as follows:

Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) to address the illegal immigration crisis in the State. The four provisions of S.B. 1070 enjoined by the courts below authorize and direct state law-enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law and impose penalties under state law for non-compliance with federal immigration requirements.

The question presented is whether the federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.

The outcome of this case, as well as the “Obamacare” case heard a few weeks ago, will greatly influence the role of states’ rights and federal powers. A transcript of the arguments in Arizona v. US can be found on the Scotusblog.com, while the audio version will be posted on Friday. The briefs for both sides and all of the amici briefs can be found here. There is excellent commentary about today’s arguments by Scotusblog.com. Five key points people should know about this case are made by Immigration Impact.

NPR reporters interviewed people of all persuasions out on the streets in D.C. while the court was in session. Of particular interest were the comments of Europeans who are used to cross-border movement, whereas the Justices asked counsel for Arizona about whether states could seal their own borders or recognize the identification documents issued in other states, [such as Washington], that do not require proof of legal status.

As a Seattle immigration lawyer and Chair of the Washington Chapter of the American Immigration Lawyers Association, my colleagues and I hear daily about cases involving people arrested by local law enforcement agencies, who because of the federal ICE Secure Communities and Criminal Alien Programs, are referred to ICE for removal proceedings through the detainer process. Although Washington does not have the same state laws enacted by Arizona and other states, existing federal programs already result in thousands of lawful permanent residents and undocumented individuals being referred to ICE by virtue of their contact with local law enforcement because of these two nationwide federal programs. Immigration lawyers deal daily with the fallout of these state and federal programs. My colleagues see many people picked up for low level offenses or no offenses at all – just being in the wrong place at the wrong time, or trying to report crimes in their communities only to be arrested. Most are in mixed status families, only to end up being separated from their US citizen spouses and children.

According to ICE’s statistics for FY 2011 ending on September 30, 2011, 319,000 individuals were removed, up from 245,601 in 2007. This does not include Mexican interior repatriation or border removals/returns or voluntary departures or returns. Of the 319,000 people removed in 2011, ICE reports that 216,698 were “criminal aliens.” But only 87,547 of the 216,698 individuals were convicted of “felonies and misdemeanors” including homicide, sexual offenses, drugs and DUI, with drug and DUI offenders being the greatest number of people removed as “threats to national security or public safety”. What about the other 129,151 “criminal aliens”? Who were they? Safety and national security risks such as those driving without proper ID? Broken tail lights? Shoplifters? Those accused of crimes but not convicted? Those driving under the influence of accents or brown skins? Anyone who comes in contact with the criminal justice system through the Criminal Alien Program or Secure Communities, whether charged or not, and whether convicted or not, can end up in removal proceedings and be classified as a criminal offender if ICE places a detainer for transfer to their facilities, even if local law enforcement decides not to prosecute for a local offense. ICE defines “criminal offender” as an alien convicted for one or more crimes, immigration fugitives (i.e., have outstanding orders of removal) or those previously removed or returned. Therefore, those not convicted of any crimes at all may be part of the 216,698 “criminal offenders”, or they are part of the 73,399 people not labeled as criminal offenders.
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In an earlier post, Prosecutorial Discretion: “Backdoor Amnesty”? 9 Myths Debunked, I discussed the latest announcement from the Department of Homeland Security (DHS), that it will work with the Immigration Courts to cull from its docket “low priority” cases. The August 18, 2011 announcement by Homeland Secretary, Janet Napolitano, makes reference to two June 17, 2011 memos from Immigration and Customs Enforcement (ICE) discussing the criteria ICE should be using to determine if and when it will exercise prosecutorial discretion. As mentioned in the earlier post, discretion comes into play when the agency decides, weighing the good facts with the bad for a particular individual believed to be in the U.S. without proper documents, whether to arrest, detain, place in removal proceedings, continue with removal proceedings, or carry out an order of removal. So, just what are the criteria ICE will consider, and what will the courts consider in deciding whether to keep a case on its docket? Keep in mind that there were actually two memos issued on June 17, 2011 addressing broader enforcement priorities and one devoted to victims and witnesses of crimes and plaintiffs in civil proceedings.

General Enforcement Memo
The broader, more general memo on civil immigration enforcement priorities, mentions these factors to consider in deciding whether to favorably exercise discretion:

• the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
• the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
• whether the person, or the person’s immediate relative, has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in combat;
• the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
• the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person’s ties and contributions to the community, including family relationships;
• the person’s ties to the home country and conditions in the country;
• the person’s age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
• whether the person or the person’s spouse is pregnant or nursing;
• whether the person or the person’s spouse suffers from severe mental or physical illness;
• whether the person’s nationality renders removal unlikely;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and • whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

ICE states: “This list is not exhaustive and no one factor is.determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.”
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On August 18, 2011, Secretary Janet Napolitano, announced that her office, the U.S. Department of Homeland Security (DHS), will work with the Immigration Courts in the Executive Office of Immigration Review (EOIR), to review over 300,000 pending court cases to determine which ones are “low priority” and can be closed or terminated. This will enable DHS and EOIR to focus scarce resources on dangerous criminals and terrorists. Locally, DHS has already been reviewing the detention status of immigrants currently locked up in immigration jails to determine who is low risk and can be released. This announcement follows two DHS memos issued on June 17, 2011 clarifying “prosecutorial discretion” criteria for victims and witnesses of crimes, and summarizing enforcement priorities for the field based on prior memos on the subject.

What is “prosecutorial discretion”? It is the agency’s and individual law enforcement officer’s decision making process, weighing the favorable facts with the unfavorable facts to determine whether to prosecute, in this case civilly, any individual who has broken the immigration laws. There are three main areas where prosecutorial discretion can be carried out in the immigration enforcement area: 1) before a person is placed in removal proceedings in Immigration Court (whether to arrest, detain and/or commence removal proceedings), 2) while in removal proceedings (whether to continue or terminate removal proceedings) and 3) after an order of removal has been issued (whether to carry out removal of the person, defer or withhold removal). Criminal law enforcement agencies and prosecutors use their discretion every day to decide who to prosecute or not. (A current example would be the Dominque Strauss-Kahn affair.) Similarly, immigration officers decide every day whether to put someone in removal proceedings, continue proceedings or carry out removal orders if there other other equities or already existing eligibility for immigration benefits. Therefore, prosecutorial discretion is not new.

However, a combination of recent factors have contributed to the most recent pronouncement dealing with court backlogs. Last year, DHS deported almost 400,000 people and is on target to do the same this fiscal year. As a result, the Immigration Courts are experiencing stunning backlogs with the average case taking 439 days for a merits hearing. In addition, the Administration has mandated that Secure Communities will be in every state along with the Criminal Alien Program in which DHS combs the jails for individuals without status, whether or not they have been charged or convicted of a crime.
Therefore, it makes obvious sense for the courts to prioritize cases based on the objectives mentioned above.

MYTH 1: DHS and the Courts can’t do that!

Congress makes the laws and Courts interpret the laws. The administrative agencies of the Executive Branch (under President Obama) carry out the laws enacted by Congress. Inherent in each agency’s authority is the discretion to determine how the agency will enforce the law within the bounds of the agency’s legal authority to act. When Congress enacts a law, it is generally with broad strokes. Then, each agency involved implements regulations and policies about how the statute will be implemented. In this case, Congress has not enacted any new statutes. The agencies involved with immigration enforcement are taking a look at the way in which they carry out the regulations and polices with the resources they have. There is both agency-wide prosecutorial discretion as well as individual officer prosecutorial discretion out in the field. Where a particular action is mandatory in the law, the agency/officer must carry it out. In an era of limited resources, the agency must consider how and where to spend its resources. This applies to all agencies of the government. With severe budget cuts to look forward to, all federal agencies are prioritizing how they will spend limited funds within the bounds of their authority. In this case, DHS has announced that its priorities are to protect national security, public safety, border security and to proect the integrity of the immigration system. While it is arguable that every single person found to be in the U.S. without status should be prosecuted to the fullest, the fact is, the surge in arrests has clogged the jails and the courts. In additional, the states that now prohibit immigrants from getting drivers licenses are clogging their local courts with cases involving driving without a license or similar minor offenses. Secure Communities and the Criminal Alien Program route these individuals to ICE and the Immigration Courts, creating huge pressures on the system and lengthy backlogs in the Immigration Courts.

MYTH 2: Prosecutorial Discretion is “Backdoor Amnesty”

Congressman Rep. Lamar Smith (R-Tx), leader of the House immigration restrictionists, and others with his view, such as the Center for Immigration Studies, FAIR and other anti-immigrant groups, claim the exercise of prosecutorial discretion by DHS and the Courts is “backdoor amnesty.“. This simply is not true! Because Congress has refused to enact meaningful immigration reform legislation, immigrants’ rights organizations have asked the Obama administration to make use of already existing powers the agencies have to exercise discretion in order to provide some humanitarian relief to long term residents and to cut back on splitting up families. However, even among immigrants’ advocates, the prosecutorial discretion memos do not solve what is broken about our immigration system. After three years of President Obama as the greatest “Deporter-in-Chief” in the nation’s history, his office is exhibiting some common sense by having DHS concentrate its limited resources on “high priority” cases, depending upon how that is ultimately defined and actually carried out.
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A new report out by Transactional Records Access Clearinghouse (TRAC) at Syracuse University details asylum denial rates by individual judges across the country from 2006-2010 and compares them across national trends. The national denial rate is 53.2%. TRAC states that denial rates can vary among judges because of nationality of the applicant, whether the person is represented, and the individual personal perspectives brought to the court by the judges. TRAC statistics are for judges reporting having at least 100 cases in the reporting period and having decided at least 25 of those. Nationally, 11% of asylum seekers do not have counsel, and of those, 88% of their cases are denied by immigration judges. The nationality of asylum seekers can make a difference in the statistics because asylum seekers have different types of grounds for which they seek asylum depending upon where they are from and the country conditions. The top four countries from which people seek asylum are China, Haiti, El Salvador and Columbia. However, people from over 100 countries sought asylum. Where members of a particular nationality tend to settle in the U.S. can also affect the denial statistics by judges or regional courts. Because of the risk of harm and even death to asylum applicants if forced to return home, immigration court proceedings can be, as Immigration Judge Dana L. Marks told the New York Times, “like trying death penalty cases in traffic court.” Because of substantially increased enforcement, the immigration courts are inundated with cases having substantial backlogs, and judges are pressured to conclude cases.

Seattle Judges Deny More Cases Than the National Average, According To TRAC
In the Seattle Immigration Court, there are three judges downtown and one or more judges at the Tacoma based Northwest Detention Center. On occasion, some judges do double duty at both locations, and sometimes there are roving judges in Tacoma from other parts of the country. The TRAC report gives detailed statistical information by judge about caseload, denial rates, and nationality of applicants before the Court. Collectively, the Seattle/Tacoma judges denied more cases than the national average, 59-79% compared to the national 53.2% denial rate. The judge at the Tacoma Northwest Detention Center denied 79% of her cases. This is primarily because 53% of her case load are detainees who lack legal counsel compared to the national average of 11% of asylum seekers lacking counsel. In Seattle, the top countries of origin for asylum seekers were from India, Mexico, China, Guatemala, El Salvador, Kenya, Eritrea and the Ukraine.

Detainees Lack Access to Counsel and Face High Asylum Denial Rates
In a September 2010 study called Isolated in Detention, the National Immigrant Justice Center, which surveyed 150 detention facilities nationwide, found that a majority of detainees around the country lacked sufficient access to counsel. This included limited phone privileges, lack of “know your rights” briefings, lack of available affordable legal services, and insufficient pro bono services for the detainee population, with most non-governmental organizations having staffs of five or less. Given that the Obama administration has been deporting 400,000 people a year, and at any given moment there are 32,000 beds filled at detention centers, the lack of available legal services directly impacts success in court.
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For 24 immigrants in New York, Santa could not have brought a better gift. Outgoing Governor David Paterson pardoned 24 individuals for crimes he felt had immigration consequences that were “excessively harsh and in need of modernization.” Earlier this year, Governor Paterson set up an immigration pardon board after he learned that even the most minor of crimes can have devastating immigration consequences including deportation of the offender, permanent separation of families in mixed status homes, and even death to a deportee depending upon the country to where the person is removed.

Unfortunately, immigration laws impose another layer of punishment on criminal defendants who have already had their cases dealt with by a criminal court judge. “Did the crime and served the time” is essentially meaningless when it comes to U.S. immigration law. It’s like fitting a square peg into a round hole. In fact, immigration law does not even recognize expungements or other case closures (erasing or sealing files or post- conviction dismissals), or deferred actions where there is a finding of guilt, or a suspended sentence. In some cases a mere admission to a crime, even if not prosecuted, or an immigration agency’s “reasonable suspicion” that a crime was committed, is enough to deport someone. Immigrants can be deported for offenses that occurred decades ago and for which a small fine was paid. Because of these harsh realities, Governor Paterson established the pardon board since pardons are one of the few types of post-conviction relief that will be honored under immigration law.

Keeping in mind that not every offense is a ground for deportation, it is essential for immigrants, whether in the U.S. lawfully or not, to seek legal advice about the immigration consequences of the offense, if any, the availability of post-conviction relief, and whether there are any waivers available. As a Seattle immigration lawyer, our firm is frequently hired to analyze both U.S. domestic and foreign convictions to determine whether there are any immigration consequences of convictions, admissions or charges. We work closely with a network of domestic and foreign criminal lawyers who are able to determine if there is any post-conviction relief available. Every time Congress passes enforcement-only legislation, the list of deportable minor offenses and their perpetual retroactivity grows. Our immigration laws have become excruciatingly harsh, and Governor Paterson recognizes this (and for political reasons, probably has nothing to lose by his stance, either). But the reality for many people is that our harsh immigration laws affect not just the offender, but the U.S. citizen and legal resident family members, and the immigrant’s employer when they lose a relative or worker to deportation because of old or minor offenses, even after years of rehabilitation and good standing. In fact, the U.S. Supreme Court in Padilla v. Kentucky ruled earlier this year that it can be ineffective assistance of counsel if a criminal lawyer does not advise an immigrant of the immigration consequences of a plea. The Supreme Court articulated why deportation consequences are so intricately wound up in criminal law:

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The American Immigration Lawyers Association (AILA) has launched a new website, www.stopnotariofraud.org, to help consumers of immigration services avoid becoming victims of dishonest behavior by non-lawyers who hold themselves out as providing immigration services. The site also has state-by-state guides on how to verify information about lawyers, what kinds of questions to ask when entering into an agreement, and how to file complaints against notarios and unscrupulous lawyers. The site is in Spanish and English for now.

In many countries, public notarios or consultants are allowed to provide legal advice. But in the United States the rules are different. First of all, the U.S. Department of Homeland Security (DHS), which is responsible for issuing benefits, border control and enforcement, as well as the Immigration Courts or Executive Office of Immigration Review (EOIR), have specific rules about who can appear before their agencies. An authorized representative making an appearance whether in person or filing an application on someone’s behalf must file specific forms with applications or litigation documents verifying their eligibility to appear. Eligible persons are attorneys admitted to any state in the U.S., its territories or possessions provided there are no orders of suspension or disbarment against the attorney. Accredited representatives are also allowed to represent people. They must be certified by the Board of Immigration Appeals and usually work for charitable or religious organizations that charge no fee or a minimal fee. Certain law students or graduates who meet specific requirements may also assist immigrants. Friends, relatives or clergy may assist an applicant provided no fee is paid and the agency or the court agrees to their presence at an interview or hearing.

An attorney’s credentials can be verified with the State Bar organization in which the attorney is admitted. For example, here in Washington, that would be the Washington State Bar Association, which has a lawyer directory. The attorney can then be checked against the EOIR website to see if he or she has been disciplined by the courts. USCIS also has extensive information about hiring a representative and how to avoid notario fraud, as does the American Bar Association.
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In a very important 9th Circuit Court of Appeals decision, Dent v. Holder, No. 09-71987, November 9, 2010, the Court held that Mr. Dent was entitled to his immigration files in order to have a full and fair hearing under the Due Process Clause of the 5th Amendment to the U.S. Constitution. Mr. Dent represented himself in an Immigration Court Proceedings. He was charged with being deportable because of an aggravated felony. However, he alleged that he had been adopted by a U.S. Citizen when he was eleven years old. The Immigration Judge gave him opportunities to produce his adoption papers and his adoptive mother’s U.S. citizenship status papers. Ms. Dent was born in 1904 when birth records were not kept, and she died while on an annual trip to Honduras from where she had originally met Mr. Dent and decided to adopt him. Mr. Dent claimed his adopted mother’s papers were in the government files because she had to present them in order to bring him to the U.S. Unbeknownst to Mr. Dent, for years there was a government file never turned over to him that contained his mother’s and his applications for naturalization. In what looks like an abhorrent set of circumstances, the government may have denied the mother’s naturalization 27 years after she filed it and long after the Immigration Judge denied his case and he appealed. The Court was concerned about the authenticity of the adjudication of the naturalization applications.

The Court held that Mr. Dent was entitled to copies of his A files so that he could challenge the deportation charges against him, particularly since he claimed to be a naturalized U.S. citizen. (Immigration application files are often referred to as “A files” because each immigrant is assigned a number starting with A followed by several digits.) The Court stated:

It would indeed be unconstitutional if the law entitled an alien in removal proceedings to his A-file, but denied him access to it until it was too late to use it. That would unreasonably impute to Congress and the agency a Kafkaesque sense of humor about aliens’ rights. Prejudice here is plain, because the A-file, when it is fully examined and this case adjudicated on all the facts, may show that Dent is a naturalized citizen of the United States.