Immigration Rights | Supporting Immigration Reform

We are relieved President Obama is preparing to take executive action to make reasonable changes to our immigration system, even if the fix is temporary and may not go far enough. 

We support efforts to expand rights for young foreign nationals who entered the U.S. as children, more protections for parents of U.S. citizens and permanent residents, and smarter security measures. The abysmal public approval rate of Congress shows that Americans are frustrated with Congress's inability to resolve urgent issues facing the country. 

Go for it, President Obama! Challenge and work with Congress to pass a better bill, but don't accept inaction.

Immigration Rights | DACA: Deferred Action For Childhood Arrivals

Some of my favorite cases I do are for Deferred Action For Childhood Arrivals (DACA), which awards a low level of immigration benefits for young people who have entered into the United States as children. Click here to learn more about DACA. 

If you have applied for DACA or wish to do so, it is a good idea to schedule a consultation with an immigration lawyer to understand your rights.

DACA approval enables a young person otherwise unlawfully present in the United States to gain work authorization, a social security card, narrow travel rights, and most importantly solidifies a favorable position of the subject to be on a path to U.S citizenship if comprehensive immigration reform were to pass. The subject must renew the status every two years, on the condition and strong likelihood that the U.S. government will continue extend the program. 

DACA comes from President Obama's executive order as a response to the Republican-controlled House's inability to pass the Democrat majority Senate's proposed immigration reform. When I attended a workshop for lawyers about DACA, every lawyer in the room raised their hands when asked if the lawyer would recommend the program to qualified candidates. As of the summer of 2014, only 55% of potential applicants have filed for this benefit. I encourage more candidates to apply for DACA because the chances of deportation are slim, it provides helpful immigration benefits, and it sends a message to the government to take DACA applicants seriously as potential future voters. 

So how do you qualify? Here are the elements you must satisfy:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;  
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. Had no lawful status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
8. Also, anyone requesting DACA must have been under the age of 31 as of June 15, 2012. You must also be at least 15 years or older to request DACA, unless you are currently in removal proceedings or have a final removal or voluntary departure order, as summarized in the table below:

Immigration Rights | Children Migration

Over the past year immigration enforcement has apprehended some 50,000 children, which President Obama has summarized as a humanitarian crisis. Many of these children are coming from Central American countries like El Salvador, Guatemala, and Honduras. The push and pull of increased gang violence and widespread poverty combined with a dream of a safer life with a better economy attracts youths to the U.S.

What are the children's legal rights once they enter the United States? There is no easy way for many of the children to remain in the United States if immigration police catch them. Many of the apprehended will apply for asylum. A large percentage of applicants will not have the proof, intellectual capacity, or resources to afford an immigration lawyer be able to articulate a winning case to an adjudicator, so they are deported. Other children may remain in the U.S. and live in the shadows without rights to travel outside the U.S., serve in the armed forces, vote, or receive various government benefits. 

Some children are held at detention facilities while others are released to live with relatives or guardians already living in the United States. Some of these children work rather than go to school, even though they have rights to attend classes but not permanently work. Asylum applicants wait for months and sometimes years before they are able to articulate their case before an immigration judge. 

Some parents smuggle their children into the U.S. at an early age. Parents who abandon, abuse, or neglect their children may lose legal custody over their children to the local government. Then these children may be able to apply for a green card if they remain unmarried and under 21. Other children, however, will not be eligible for a green card even if they are living with good-natured guardians in the U.S. In other words, children who enter illegally with abusive relatives have more legal options than children entering illegally who live with supportive guardians. 

Immigration Rights | Prosecutorial Discretion

Sometimes I hear interpretations from clients that contrast with what immigration lawyers know to be true.

Rumors began when Homeland Security Secretary Janet Napolitano, acting on behalf of President Obama, announced in a memo that the Department of Homeland Security will conduct a case-by-case review of about 300,000 cases currently in removal proceedings. The government will determine which care are low priority, which if so may close pursuant to prosecutorial discretion.

The policy is more political than practical, and it is certainly not ground-breaking. With this policy, the Obama administration can report to its constituents that it put forth a policy that targeted violent immigrants, protected favorable immigrants, and lessened immigration courts’ overburdened dockets.

In truth, barely so. According to an inside political source, an ICE officer reported that it was “business as usual,” at least for now.

The results from the new policy remain to be seen, but according to immigration lawyer communities, it is highly likely that the new policy will only minimally impact the status quo.

Prosecutorial discretion does not change any laws. It will enable a working group to look through current pending immigration cases – in Seattle immigration cases may be pending for six months before the hearing is set – and decide which ones should be weeded out.

The basis to weed out the cases is a criteria that examines various positive factors, like if the immigrant arrived in the US since childhood, minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans of the armed services, and even disabled people. ICE attorneys, the government attorneys that prosecute immigrants, will review every case scheduled in the next 1-2 months and will close the cases that meet the criteria.

Normally an immigrant faces removal proceedings because ICE agents apprehend the immigrant after he or she committed a crime, like a DUI, shoplifting, or domestic violence. The immigrant serves time in jail, and then immediately goes to immigration proceedings.

So, the practical implication of this prosecutorial discretion policy is that it will not affect most people in immigration proceedings, since most will not qualify. For example, if a person who came into the US as a child and has not criminal history but for a, he the ICE attorneys will highly exercise prosecutorial discretion and give the immigrant a free pass. He will still have to go through immigration proceedings and taxpayers will pay the courts and government attorneys to do it.

Immigration Rights | Border Patrol Interpretation Services for Local Law Enforcement

Six pro-immigrant groups with ties to northern Washington counties signed a letter to Washington Senators and Representatives that documented their concerns about a controversial interplay with local law enforcement and Border Patrol agencies.

The groups reported discriminatory tactics against community residents, primarily against Latino community members. The groups identified the following situations:

1.     Border Patrol agents frequently stopped vehicles away from the border under a pretext or for no reason. These vehicles were primarily full of Latino passengers. Legally there are no 4^th Amendment rights against searches and seizures for US citizens or noncitizens at the border. But, here, Border Patrol is not stopping vehicles at the border. Additionally, they do not have authority to arrest people for traffic violations.

2.     Local law enforcement is calling Border Patrol interpreters also ask questions about reported criminal activity, like for domestic violence reports. It has been reported that Border Patrol officers are conducting their own immigration investigations when they are called to interpret non-immigration issues. The consequence is that more immigrants will fear calling the police because they will fear that the police will be in contact with Border Patrol, and more crimes will go unpunished.

I would add that Border Patrol agents who conduct criminal investigations will likely produce inadmissible evidence that the courts will not consider in a trial. A police officer cannot legally just uncover any stone to find incriminating evidence, else a person’s 4^th Amendment reasonable expectancy of privacy will be violated.

The letter offers a solution to forbid DHS from providing interpretations assistance in routine law enforcement matters, unless in emergency circumstances. As an immigration lawyer, I favor this proposal.

Immigration Rights | Revenue from the Undocumented

Recently the Obama administration put forth a proposal to tax rich Americans and companies. Another method to raise revenue is to reform immigration laws that encourage undocumented immigrants to pay taxes and fines.

This is not a new idea, nor is it an idea that has only been embraced by left-leaning people. Most immigration lawyers embrace it. President Reagan adopted a law that enabled undocumented immigrants to pay a fine and earn legal status.

Already, immigrants are supposed to pay taxes. The IRS issues an ITIN number in place of a social security number that allows undocumented immigrants to pay taxes without informing the government of their identity. Yet many immigrants do not readily file for taxes because they feel generally afraid of immigration consequences whenever they communicate with a government agency.

Even though many low-skilled immigrants are not wealthy, many immigrants have large connections of friends and family to help pay for certain expenses. A payment to stay in the US is such an expense where the undocumented will pay.

Otherwise, if the undocumented will not pay, we will have a better idea of what enforcement to use.

If Someone Entered The US Without Inspection, Can This Person Marry A US Citizen To Lawfully Stay In The US?

Most likely not. But the undocumented individual has a long shot to stay in the US in rather unique circumstances. You should speak to an immigration lawyer if you are personally aware of these circumstances.

Imagine a person who entered the United States, then eventually married a US Citizen or Lawful Permanent Resident green card holder. They raise children together, earn paychecks, and live like a normal family for years.

Yet even if the couple has multiple children, stays out of trouble, behaves well, and lives in the US for a long time, the unlawfully present spouse will likely be deported if apprehended.

In this situation, the legal test to determine whether a person qualifies to stay in the US will likely be the “cancellation of removal and adjustment of status for non-LPRs” test found in INA §240A(b). The key element is to show that removal would result in exceptional and extremely unusual hardship to the United States citizen or Law Permanent Resident spouse, parent, or child.

The hardship must be “substantially beyond” the hardships ordinarily associated with a person’s ordered departure from the United States. See Matter of Monreal, 23 I&N Dec. 56, 63 (BIA 2001). Mere ordinary hardship includes hardship the children suffer without a biological parent, hardship two spouses suffer when they are separated, and hardship from a lack of job opportunity country designated for removal. This law is tough, so these reasons alone will highly likely deport the undocumented person.

The hardship must be “substantially beyond” ordinary hardship, so disabilities, relatives in the US and in the home country, number of years in US, employment and financial conditions, and community ties all play major roles to build a winning case. For example, if the undocumented person is the caretaker for a disabled US citizen spouse, then this case has a chance.

In addition to exceptional and extremely unusual hardship, one must also prove that the individual has (1) been physically present in the US for at least 10 years, (2) has been a person of good moral character for 10 years, (3) has not been convicted of an offense under INA §212(a) [crimes involving moral turpitude], §237(a)(2) [crimes for a sentence of one year or more may be imposed, two or more crimes involving moral turpitude, aggravated felony, and some others], and (4) a favorable discretion is warranted.

In a nutshell, cancellation of removal for a non-lawful permanent resident cases are not easy. Under current law, to marry a person who entered the United States unlawfully is a major risk to both spouses and their future family.