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.

Immigration Rights | Non-legal Immigration Services Prohibited

In Washington State, Governor Gregoire signed SSB 5023 "Addressing non-legal immigration services." As a lawyer that practices immigration law, I support this bill. I believe this bill will improve the quality of immigration legal services. 

This legislation forbids non-lawyers from giving legal advice in several immigration matters. Many lawyers came together to provide examples of harm to clients.

On Section 3, RCW 19.154.060 is amended to include law that states that non-lawyers cannot charge money for practicing immigration law.

Specifically, non-lawyers CANNOT:

-- determine if a person’s status is legal or illegal,

-- select or suggest an appropriate visa program,

-- interpret the meaning or intent of a government agency in an immigration matter,

-- charge a fee for referring another to an immigration lawyer,

-- draft or complete legal documents affecting legal rights of another in an immigration matter,

-- imply that the person possesses professional legal skills in the area of immigration law.

Note that a lawyer may supervise a non-lawyer to perform immigration law activities.

This bill is directed against “notarios” and other people who misrepresent themselves to prospective immigration clients.

Immigration Rights | Congressmen from Washington State

On April 7, 2011 I had the pleasure to visit Washington DC, a city full of picturesque monuments, diverse faces, and people in suits.

I feel proud to be American. To be fair, every country has its positive and negative qualities, much like a real person. But America, at its finest, is a living and breathing beacon of freedom. We elect our representatives to make the laws, elect the President to enforce the laws, and we appoint Judges to interpret the laws.

I traveled with seven other AILA attorneys who practice immigration law to speak with Washington State Congressmen about immigration policy. This was part of a nation-wide effort to inform our representatives who make our immigration laws.

We met with staff persons from almost every Congress person, except McMorris Rodgers, Republican from the 5th District centered around Spokane, and Jaime Beutler, Republican from the 3rd around Vancouver, Washington.

The feeling from each individual Democrat staff was that immigration is an important issue that affects the economy, security, and our values, but it's not high on the "to do" list. Comprehensive immigration reform will not likely take place until after the 2012 elections.

We cited highly specific examples to describe to each individual Congress representative about how our immigration laws need refinement. For example - just one of many - the amount of business visas have not changed for decades. The US is not able to grant enough visas to highly qualified immigrants that create jobs, which harms the economy. The lack of availability for visas for family members is just a dire. In some cases a family member must wait 20 years before being able to lawfully immigrate into the US to be with a relative.

In all, immigration issues are not going away. The sooner the government is able to address immigration policy wisely, the better.

Immigration Rights | Citizenship Day Is A Worthy Event

To address the value of Citizenship Day, here is a letter to anyone with state budget-making authority:

I am a lawyer who has volunteered for Citizenship Day events in Pasco, Tacoma, Aberdeen, and Vancouver, Washington. These day-long events naturalize low-income immigrants.

Many voices support these events because they encourage lawful permanent residents to become US citizens, which is essentially encouraging responsible citizenship.

For the purposes of this response, I voice my support for those who work on behalf of the immigrants. Citizenship Day is not just about rewarding green card holders, but it also rewards the attorneys, paralegals, students, community groups, and New Americans and OneAmerica participants.

Volunteers benefit from effective training workshops for attorney, paralegal, and intake participants. Veteran attorneys mentor the newer attorneys and paralegals, which help newer volunteers grow into more responsible and knowledgeable resources.


The idea in America is that the more educated you are, the easier it is. Yet, because of a slumping economy, many lawyers and other individuals in the legal world are currently struggling to make a living. I am a chair for the state American Immigration Lawyers Association and I meet numerous talented, driven, and compassionate new attorneys who are reaching out to populations like immigrants that are in great need, and are very thirsty to secure jobs and experience.

Citizenship Day events benefit the professionals and workers who assist immigrants, not just the immigrants themselves. The events attract a diverse scope of generous people who donate their valuable time because they care about the future of the United States. Please keep this program alive and do not cut New Americans or OneAmerica's budget.

Immigration Rights | Change of Status

A person temporarily present in the United States may change status from one temporary (nonimmigrant) status to another temporary status. For example, a foreign student who acquires a job in the United States may, upon graduation, change status from a student visa to a temporary work visa.

A change of status is a different idea than “adjustment of status.” An adjustment of status describes the process used by a foreign national who is physically present in the United States to become a lawful permanent resident. In contrast, change of status deals with getting another type of temporary – not permanent – visa.

If you are eligible for change of nonimmigrant status, you may change the status at a US consulate abroad or in the United States.

The key is that you must properly file an application to change status before the authorized stay expires. If you timely file your change of status, then you are permitted to remain in the United States while your application is pending, even the application is decided only after your stay. If you fail to file on time, then you have some wiggle room for an exception, but it is not easy.

If you are admitted to the United States even though you were unlawfully present during a previous stay, then you are not eligible for change of status.

There are some tricky exceptions for J visa holders, K nonimmigrant fiancés, and if you are admitted as a nonimmigrant without a visa under the visa waiver program. 

If there is any complications involved with your status, see an immigration lawyer.

Immigration Rights | Access to Justice Concerns

Many immigrants are financially well-off with white-collar jobs or advanced degrees. They come from relatively prosperous families or they earn enough money in the US to afford immigration legal counsel. Yet many immigrants are not so lucky. They are poor and work on jobs most Americans will not take. 

Many immigrants do not fully grasp American language, culture, and laws. Immigration law, which is as complicated as tax law, is hard for native Americans – much less immigrants – to comprehend.

The unfortunate result is that many immigrants rely on bad information, generally from people who may not have immigration law expertise. Mexicans, for example, are accustomed to go to notaries for legal issues in Mexico, but fail to realize that notaries in the United States do not do what lawyers do in the United States. A person who claims to be qualified to handle legal immigration matters but who does not have a bar license is called a "notario."

The educational requirements for US lawyers dwarf what is required to become a notary. Almost all lawyers must get a four-year undergraduate degree, followed by three years of law school, then they must pass the bar exam. 

Although being part of groups like the American Immigration Lawyers of America (AILA) is not required, many lawyers who practice immigration law become members. These professional organizations provide a means for lawyers to share ideas and solutions. Immigration government agencies are also in communication with AILA. A "notario" does not have these resources.

Stakes are high in immigration matters. If a person relies on the wrong advice, then removal may follow. Families may be broken.

Many immigrants are reluctant to speak to lawyers because they fear that a lawyer will expose them to removal. Cultural issues may prevent an immigrant from seeing an attorney. Money, too, may be a major concern.

The unfortunate truth is that immigration cases logjam courts and the Board of Immigration Appeals. About five years ago, each BIA member had to address about 80 cases per week. If an immigrant cannot articulate a case succinctly or clearly, he or she may suffer adverse consequences.

In 2006, Immigration Courts handled almost 369,000 cases, and 35% were represented by a lawyer. ICE removed 186,000 people in the fiscal year. Less than 50% of lawyers undertake pro bono (unpaid) work in a given year ("The Legal Profession and the Unmet Needs of the Immigrant Poor" by Robert Katzmann, judge on US Court of Appeals for the Second Circuit).

Immigration Rights | Employment Verification, SSN, ITIN

Employers must require workers to prove identity and eligibility to work within three business days of hire. An I-9 form verifies that a worker is eligible to accept employment in the US.

An employer and the worker both fill out the I-9. A social security number often proves identification.

Note that if the social security number does not match the designated worker, then an employer may later receive a “No-Match” letter. There is no immigration consequence. The letter does not prove whether the worker is undocumented or not. Also, the employer does not need to reverify status.

For the workers who are not eligible to get a Social Security Number, they may acquire an Individual Tax Identification number, or ITIN number.

In 2006 1.4 million people used ITIN when filing taxes, of which more than half were likely illegal immigrants. Opponents argue that ITIN numbers institutionalize illegal immigration. Supporters argue that our economy benefits when undocumented immigrants pay taxes.

If an individual is in removal proceedings, whether or not the immigrant paid taxes is a discretionary factor the Immigration Judge will consider, in totality with other factors. Matter of C-V-T-, 22 I&N Dec.7 (BIA 1998).

See a lawyer or accountant with knowledge of immigration issues if you seek tax advice related to immigration. A lawyer with an employment law background will help you hire new workers.

Immigration Rights | Economic Impact of Illegal Immigrants

According to a New York Times/CBS News Poll, 74% of Americans believed that illegal immigrants weakened the US economy, while only 17% say that illegal immigrants strengthen it.

As a lawyer who practices immigration law, most of my colleagues agree with the minority. Myself included.

According to Newsweek, both legal and illegal immigration boost the US economy, but unevenly and not dramatically. 

Many immigrants do jobs that most Americans refuse to take, which is likely a positive factor. These jobs are the hard-labor dirty jobs that pay relatively poorly. Such jobs include construction, cleaning, and agriculture. 

On the other end of the spectrum, many American employers sponsor immigrants because they have special skills that are not available in the US workforce. 

Generally, the law requires an American employer to hire an immigrant only if insufficient available, qualified, and willing US workers exist. And the employment must not have an adverse effect on the wages and working conditions of similarly situated US workers. INA section 212(a)(5)(A).

For many of the 13 million undocumented immigrants in the US, most economists agree that the low wages keep costs down for items like food and homes. Also with an aging workforce in America, more workers are needed to fund retirement programs.

A Harvard economist concluded that immigration hurts some Americans, like the Americans with less education. Many may compete for the same low-skilled, low-paying jobs as immigrants.

What about all the services illegal immigrants use? An economist from the University of California, San Diego, concluded that these immigrants boost federal funds (Social Security contributions, income tax) but cost the states (schools, health benefits, welfare). Overall? A slightly positive gain.

Many Americans believe that immigrants contribute to rising crime rates. According to studies cited in Time Magazine, there is no correlation. Many immigrants have fear of getting arrested because they may be deported. According to the same article, immigrants bring a sense of community to otherwise dilapidated communities.

The scope of this article is limited. Several important considerations are not explored, like differences between different immigrant groups, what immigrants experience in other parts of the world, and how different circumstances in different areas of the US respond to immigrants.

As an immigration lawyer, I meet many people who arrive the US without documentation. Most often I hear stories of sacrifice and hope. I believe that if the 74% of Americans who believe immigrants weaken the US economy were to listen to the stories of more legal and illegal immigrants, many more Americans would accept immigration as a positive economic influence.

Immigration Rights | Same-Sex Couples

As long as a marriage is not fraudulent - and immigration will scrutinize information to weed out fraudulent claims - and there are no other reasons for exclusion, an American citizen may bring a foreign spouse into the US because he or she is considered a qualifying "immediate relative."

Also, lawful permanent residents - green card holders - may bring a spouse into the US on a permanent basis. But this is subject to a quota system which can take years.

If you are a homosexual and your partner is a foreign national living abroad, then your opportunities to permanently bring your partner into the US plummet. True, the trend is that some states legally recognize the rights of same-sex couples. But immigration law, which is federal law, does not protect you.

Recently, the State Department carved a very narrow exception for same-sex partners. The catch? The exception protects diplomats only.

If you are a diplomat that is posted in the US, then your foreign same-sex partner may get a visa to get into the United States.

What would typical same-sex couples do to stay united? Your best bet is to immigrate into the US on other grounds, especially if you can find a US employer and you intend to work and live in the US permanently. See an immigration lawyer to look at alternative solutions.

Immigration Rights | USCIS Website

Lawyers who practice immigration law always use the USCIS webiste.

The U.S. Citizenship and Immigration Services website provides access to all the right immigration forms. There are also articles and alerts to instruct people as to where they need to go.

But do not use USCIS as a substitute for complicated immigration issues. I hear from many people who get information from USCIS but fail to get the results they want. Often there are several reasons to describe poor results, which good lawyers who practice immigration law can detect.

The USCIS website cannot easily communicate immigration alternatives. Maybe a person qualifies for a certain type of visa, but a better visa may be available. For example, there are several different visas available in employment circumstances with unique benefits and risks.

Also, a website does not have an ability to organize your documents if you must submit supporting evidence. Law in America requires documentation, and many people fail to provide it in a manner favorable to USCIS.

In addition to organization, an ability to link the facts from the information to the relevant immigration law is crucial. A good immigration lawyer has the capacity and resources to do this.

So, if you have immigration concerns, then the USCIS website is the place for you! But be careful when you apply what you learn to what you submit, because you may not see the larger picture.

Immigration Rights | Driver Licenses Debate

Not many states grant drivers' licenses to undocumented immigrants. Washington, New Mexico, and Utah are the only states that grant the licenses.

Earlier this week, the Washington State legislature introduced a number of bills to potentially prevent these licenses.

When I am not working as a lawyer on immigration issues, I enjoy taking a hard look at issues that affect our country. The following is an imaginary discussion of the pros and cons of the proposed Washington bills.

Advocate in favor of the new legislation: Awarding a license to undocumented immigrants rewards a group of people who entered into the US without lawful inspection. We want to encourage obedience to our laws, not reward illegal behavior.

Someone against the new legislation: How severe should the punishment be for undocumented immigrants? Taking away someone's driver's license takes away a person's freedom. Taking away someone's license for unlawful entry into the US is not an appropriate punishment. Should an average American be put in prison for running a red light? A punishment must be reasonable.

Pro: Unlawful entry is a serious problem and we need strict laws to discourage it. Our country has around 13 million undocumented immigrants. In the recession, we need to hold jobs open for Americans first, immigrants second. If driving licenses repel immigrants, then we save jobs.

Against: First, America is a nation founded on immigrants, both legal and illegal immigrants, so a high number of undocumented immigrants does not undermine America's standing. Our society has benefited from the differences and hard work many immigrants bring to the US. Many undocumented immigrants do labor-intensive jobs that Americans will not typically do. The money they earn and spend is deserved and helpful to our economy.

Pro: No, immigrants take away jobs that Americans have a right to get. America is also a nation that values the law. We need to enforce our immigration laws, else we undermine our justice system.

Against: If undocumented immigrants are able to get drivers' licenses, then they may feel more responsible to obey laws and pay taxes with an ITIN number.

Pro: We can all use tax dollars, but most undocumented immigrants won't pay them. One major reason is because they want to keep a low profile. Sending in a tax form requires disclosure, even if there is confidentiality protections for ITIN holders.

Against: We should focus our energies on getting undocumented immigrants to come of the shadow and pay taxes. We cannot possibly deport 13 million people. Many of these people are decent, hard-working people who follow the law more closely than American citizens . . .

Let's keep talking.

Immigration Rights | Community Involvement

I am happy to say that I believe that many immigration lawyers around Western Washington help each other. Many of us feel like we are part of a community. This is wonderful news, because no individual succeeds completely alone. Success demands a team or community.

I strive to be an excellent immigration lawyer. One way to develop one’s abilities is to play an active role in the community.

The major immigration lawyer association is AILA. I am a member of AILA, and I serve on the Executive Committee as the New Member Division Chair. We discuss issues important to immigrants and immigration lawyers. We provide workshops to educate lawyers, support groups that promote equal access to law and social justice, and provide other services.

I also work on the ground. I have been on several Citizenship Day events, which provide legal services for immigrants who wish to become American citizens. I have participated in legal clinics to advise members of the community. I have also organized educational workshops for newer attorneys in immigration law.

One major issue important to me is the access to justice question. I also provided direct representation on a pro bono basis for people with no means to pay. I won all four cases: two removal defense and two asylum cases. These clients would otherwise not have access to a lawyer, and very likely would have lost without a lawyer.

I want a lawyer for real people, one who reaches out into the community. I believe an excellent lawyer meets people, follows news and events, and understands the greater social and political issues that affect the community.

Immigration Rights | Cancellation of Removal for Non-LPRs

The Daily Record reported that federal immigration agents raided a group of 50-80 Ellensburg, WA residents, all Hispanic.

I also read from inside sources that the raid happened in a church, and the methods were heavy-handed. A low-flying helicopter was involved, as well as collaboration with ICE, local law enforcement and a standard fugitive ops team. There were also reports that raids happened in trailer parks.

Children suffer the most. If a child is born in the US, but her parents are from a foreign country and are subject to removal, then it is uncertain if the parents are able to stay in the US. Contact a lawyer familiar with immigration law if you are in these circumstances!

One possible form of relief to keep the family together is cancellation of removal for non-LPRs. To qualify, the parent must have a US citizen or lawful permanent resident child, have resided continuously in the US for at least 10 years, have good moral character, and have not been convicted of any crimes described in deportability and inadmissibility provisions. Finally, the parent must show that if they are removed from the US, exceptional and extremely unusual hardship would result for their child, spouse, or parent. 

Immigration law is broadly designed to keep families together. But, at the same time, the law also breaks up parents and children in traumatic ways. Enforcement may come suddenly, as what happened in Ellensburg.

Immigration Rights | Unlawful Presence

When I am practicing immigration law, people often ask, “What if someone stays in the US unlawfully?” There are exceptions, but it normally depends on the amount of time a foreign national is "unlawfully present."

If Don Miguel, from Honduras, enters the US without proper inspection or documentation, it’s easy to calculate unlawful presence. It starts when he sets foot onto US soil.

If Genius Gabriella, a foreign national from Israel, gets a temporary visa to go to school in the US, then she will only accumulate unlawful presence after the I-94 date expires (the I-94 is the official US Arrival-Departure record).

So, after Gabriella finishes school in the US, unless there are unusual circumstances Gabriella must get a new visa, like a work visa, or go back to Israel. Or, she accumulates unlawful presence.

If the unlawful presence is 180 to 365 days of unlawful presence before she decides to take a flight from the US back to Israel, then she receives a “3-year bar” under INA section 212(a)(9)(B)(i)(1). This means that Gabriella won’t be able to visit her American friends in the US for 3 years.

If Gabriella accumulated 1 year or more of unlawful presence before taking the flight back to Israel, then the consequences are more severe. She suffers a “10-year bar” under INA section 212(a)(9)(B)(v).

Whenever a person is unlawfully present, there may be grounds for removal, when the government forces you to leave the US. Because people who overstay are barred from re-entering the US, the laws convince many foreign nationals to stay in the US! If person must leave the US and cannot return for long periods of years, then the person may risk removal, rather than voluntarily departing and waiting in the foreign country.

Certainly seek a lawyer's help if you had unlawful presence. Sometimes your record can be cleared. Specifically, there is a waiver available of the 3 and 10-year bars in INA section 212(a)(9)(B)(v). Or, there is other relief available that you will highly likely need help pursuing.

That's the law in a nutshell: the 3 or 10-year applies to someone who stays int he US without permission.