Legal Rights for Undocumented Immigrants

Immigration LawI often am asked what rights undocumented immigrants have in the United States. Many assume they have no rights; however, all persons living in the United States, regardless of immigration status, have certain protections.

In 1896, the U.S. Supreme Court held that, under the Fourteenth Amendment to the Constitution, all people living in the United States, including non-citizens, are entitled to equal protection under the law and cannot be deprived of life, liberty or property without due process of law. Wong Wing v. United States, 163 U.S. 228 (1896). Additionally, all persons physically present in the United States, regardless of immigration status, have the Fourth Amendment’s protection against unlawful searches and seizures and the Fifth Amendment’s privilege against self-incrimination.

So what does this mean for immigrants? It means that, like everyone else, an undocumented immigrant has the right to refuse an Immigration and Customs Enforcement (ICE) officer entry to their home unless the officer has a valid search warrant signed by a judge. Interestingly, ICE officers almost never have a valid search warrant when they approach the home of an undocumented immigrant. They rely on the fact that most undocumented immigrants will not know their rights.

Undocumented individuals who unknowingly allows ICE officers into their home still have the right to remain silent when questioned about their immigration status or country of birth. Why? Because answering such questions would be self-incrimination. It may seem ludicrous that a person does not have to answer questions as to their immigration status, but answering such questions can subject the person to removal (“deportation”) proceedings. Also, many people do not know that ICE has the burden to prove a person lacks lawful immigration status. By remaining silent, an undocumented individual holds ICE to its burden of proof, and ICE must produce evidence showing the person’s unlawful immigration status. As with criminal defendants, an undocumented immigrant is innocent of lacking lawful status until ICE proves otherwise.

This background helps illuminate why Texas’s SB4 “show me your papers” bill has been so controversial. Pending a ruling by the Fifth Circuit Court of Appeals, SB4 has not fully gone into effect, but it is a move by the State to impose stricter rules than those mandated by the federal government, and it infringes on the constitutional rights of all persons in Texas.

What happens if ICE meets its burden and proves an individual is in the country unlawfully? Immigrants do not have the right to enter the United States unlawfully, but, once here, they are entitled to equal protection and due process under the law. This means that an individual facing removal is entitled to a hearing before an immigration judge to determine eligibility for relief from removal. The term “relief” refers to certain remedies available under the Immigration and Nationality Act (INA) for immigrants facing removal. Additionally, all persons in removal proceedings have the right to an attorney (but not at government expense), reasonable notice of the charges against them, notice of the place and time of the hearing, the opportunity to examine the evidence and witnesses presented against them, interpretation for non-English-speaking individuals, and clear-and-convincing proof that the government’s charges are valid.

Family Of Military Members Are Eligible For A Special Immigration Benefit

American Flag with U.S. Citizenship Immigration paper

Military Parole in Place – Immigration Attorneys

Do you have an immediate family member who has served in the U.S. military? If so, you may be eligible for Military Parole in Place, or Military PIP for short, a special immigration benefit for family members of those who have served in the United States Armed Forces.

What is Military Parole in Place and Who is Eligible?

With Military PIP, the undocumented parents, children, and spouses of those who have been in the military, whether active duty or retired, can ask the government for permission to remain in the United States for renewable one-year periods. Family members also may apply for a work permit based on PIP, and in some cases, can apply for a green card without leaving the United States to obtain an immigrant visa.

Military PIP is discretionary, meaning that it is not a “right,” but a privilege granted to individual applicants on a case-by-case basis. It was designed to give military service members peace of mind that allows them to perform their military duties without fear that an undocumented family member will be detained or deported in their absence.

In the years since its creation, Military PIP has evolved to apply to parents, children, and spouses of military members, whether deployed, active duty, or retired, as long as those no longer serving were honorably discharged. Immediate family members of the Selected Reserve or Ready Reserve also are eligible to apply for Military PIP.

Application Process for Military Parole in Place

Applying for the benefit is fairly straightforward, and there is no filing fee to be paid to the government. Applicants must provide proof of the familial relationship on which the Military PIP application is based, as well as proof of the family member’s military service. Other evidence to be included depends on the individual applicant’s situation, but it can strengthen an application to include information showing the applicant is a person of good moral character. Proof of home ownership, payment of taxes, membership in a church or other community organization, and letters of affidavit from friends, neighbors, employers, and family are all good evidence to include in any PIP request.

Contact Bailey & Galyen’s Military Parole in Place Immigration Attorneys

If you think you qualify for Military PIP, please schedule a consultation with us to explore the possibilities. Many people are eligible for this life-changing benefit and do not even know about it!

Legal Rights for Undocumented Immigrants

Immigration LawI often am asked what rights undocumented immigrants have in the United States. Many assume they have no rights; however, all persons living in the United States, regardless of immigration status, have certain protections.

In 1896, the U.S. Supreme Court held that, under the Fourteenth Amendment to the Constitution, all people living in the United States, including non-citizens, are entitled to equal protection under the law and cannot be deprived of life, liberty or property without due process of law. Wong Wing v. United States, 163 U.S. 228 (1896). Additionally, all persons physically present in the United States, regardless of immigration status, have the Fourth Amendment’s protection against unlawful searches and seizures and the Fifth Amendment’s privilege against self-incrimination.

So what does this mean for immigrants? It means that, like everyone else, an undocumented immigrant has the right to refuse an Immigration and Customs Enforcement (ICE) officer entry to their home unless the officer has a valid search warrant signed by a judge. Interestingly, ICE officers almost never have a valid search warrant when they approach the home of an undocumented immigrant. They rely on the fact that most undocumented immigrants will not know their rights.

Undocumented individuals who unknowingly allows ICE officers into their home still have the right to remain silent when questioned about their immigration status or country of birth. Why? Because answering such questions would be self-incrimination. It may seem ludicrous that a person does not have to answer questions as to their immigration status, but answering such questions can subject the person to removal (“deportation”) proceedings. Also, many people do not know that ICE has the burden to prove a person lacks lawful immigration status. By remaining silent, an undocumented individual holds ICE to its burden of proof, and ICE must produce evidence showing the person’s unlawful immigration status. As with criminal defendants, an undocumented immigrant is innocent of lacking lawful status until ICE proves otherwise.

This background helps illuminate why Texas’s SB4 “show me your papers” bill has been so controversial. Pending a ruling by the Fifth Circuit Court of Appeals, SB4 has not fully gone into effect, but it is a move by the State to impose stricter rules than those mandated by the federal government, and it infringes on the constitutional rights of all persons in Texas.

What happens if ICE meets its burden and proves an individual is in the country unlawfully? Immigrants do not have the right to enter the United States unlawfully, but, once here, they are entitled to equal protection and due process under the law. This means that an individual facing removal is entitled to a hearing before an immigration judge to determine eligibility for relief from removal. The term “relief” refers to certain remedies available under the Immigration and Nationality Act (INA) for immigrants facing removal. Additionally, all persons in removal proceedings have the right to an attorney (but not at government expense), reasonable notice of the charges against them, notice of the place and time of the hearing, the opportunity to examine the evidence and witnesses presented against them, interpretation for non-English-speaking individuals, and clear-and-convincing proof that the government’s charges are valid.

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CONDITIONAL PERMANENT RESIDENT vs PERMANENT RESIDENT

Family LawPermanent residency can be obtained by immigrants who marry U.S. Citizens. This is a green card renewable every 10 years. There are also cases in which the foreign spouse is given what is called “Conditional Permanent Residency” status. In short, this is only a temporary 2-year residency card that cannot be renewed.

If you are given the conditional permanent residency, how do you become a permanent resident? Well it is important to understand what must be done prior to the expiration of the conditional permanent residency. There is an application that must be submitted to USCIS in order to remove those conditions and become a permanent legal resident.

What if your family situation has changed since your conditional permanent residency was granted? There are many family circumstances that may alter or affect the application process of removing conditions. Such changes include a divorce, abuse or battery, or death of a spouse. It is important to review these changes with an attorney before your deadline approaches to ensure you are filing for removal of conditions properly or you may risk losing your residency all together. Speak with an immigration attorney today to discuss the next steps in your immigration process.

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To set up a free initial consultation, contact us online or call us at 844-402-2992. For your convenience, we answer our phones 24 hours a day, 7 days a week. We will meet with you evenings or weekends upon request.

Family Separation and Criminal Prosecution and Lack of Due Process, Oh My!

Immigration LawRecent images of children caged in holding cells without parents forced the Trump administration to re-think its “Zero Tolerance” policy and family separation policy at the border. The Zero Tolerance policy was implemented in April of 2018 and mandated that all individuals apprehended at the border, including asylum seekers, be prosecuted for the federal criminal offense of illegal entry. As families were apprehended at the border, children were stripped away from their parents. While parents were sent to federal custody to face prosecution, their children were first held by Immigration and Customs Enforcement (ICE) and processed for removal or “deportation” proceedings and then placed under the care of the Office of Refugee Resettlement (ORR). Under the family separation policy, there was no indication that children would be returned to parents once they served their sentence for the illegal entry. What’s interesting is that once a child is taken into ORR care, the agency must try to reunify the child with a relative or family friend in the United States. This relative or friend ensures ORR that he or she will take the child to all of the removal hearings in immigration court and will care for the child. If the child cannot be reunified, then the child remains in ORR care. The Zero Tolerance and family separation policy created a strange system in which the government took a child away from his parents and then tried to “reunify” the child with someone else.

President Trump, in his June 20, 2018, Executive Order (EO), decided to quit separating children from parents, but there was no guidance as to how to reunify families who were previously separated. Now, if a family is apprehended at the border, the family is detained in a family detention center. This was the prior practice under the Obama administration, which caused a huge expansion in family detention centers in Texas. However, the whole family usually is not kept intact. In practice, what we saw during the Obama administration was that fathers were sent to a male detention center while mothers and children were housed together in family detention. Also, children over the age of eighteen were separated from the family and placed into adult detention.

Once the family is apprehended and detained, the family may qualify for an immigration bond to be released from detention while they await their immigration court dates. The minimum bond is $1,500 and it has no upward limit. Under the Obama Administration and into the Trump Administration, we saw prohibitively high bonds set to keep families detained. The thought was that keeping families detained would have a deterrent effect on border crossings. RAICES, a local Texas non-profit, partnered with other non-profits to provide legal counsel to detained families and also helped families pay their bonds. Setting high bonds and keeping families detained was not a deterrent for border crossers, many of whom flee persecution and violence in their home countries. This caused detention centers to fill and slowly bonds crept downward. Eventually, we saw families be released under detention alternatives such as ankle monitors. Now, thanks to President Trump’s former family separation policy, this issue is in the limelight and RAICES has received millions to continue serving and helping families and children currently held in immigration detention or recently released from immigration detention.

Looking back, studies show that the Zero Tolerance policy on the border is unlikely to have a deterrent effect on unlawful border crossings. Back in 2005, Operation Streamline was launched on the Southwest border of the United States and was in effect until 2014. Much like the Zero Tolerance policy, Operation Streamline mandated, in most cases, the criminal prosecution of all unauthorized border crossers in hopes of deterring unlawful border crossings. The Department of Homeland Security (DHS) claims the program has been effective, citing statistics that show decreases in border apprehensions under the program. Other studies find no evidence that Operation Streamline deterred unauthorized border crossings or was even taken into account by immigrants who planned to cross the border without inspection. Instead, research consistently demonstrates that the social, economic and political conditions in Mexico and Central America are the primary culprits for unlawful border crossings along our Southern border.

Operation Streamline, the current Zero Tolerance policy, and the numerous restrictions Attorney General Sessions has placed on immigration judges also opens the door for severe due process violations. These policies and restrictions limit or even eliminate prosecutorial discretion. This causes resources to be stretched to the max as dockets fill, jails fill, and immigration detention centers fill. Prosecuting all unauthorized border crossers limits the ability of federal prosecutors to focus on serious immigration offenses. In addition, the Sixth Amendment requires that all immigrants facing federal criminal charges receive counsel. The vast majority of immigrants cannot afford counsel, leaving federal public defenders with more work than they can handle. Most immigrants criminally prosecuted for illegal entry (a misdemeanor offense) or illegal reentry (a felony offense) plead guilty. Additionally, under Operation Streamline, judges were forced to hold group hearings as the only means to process the mass influx of cases.

Once an immigrant serves his or her sentence for illegal entry or illegal reentry, he or she is then transferred back to ICE custody for removal proceedings. Now, the question most often asked is “what happens to the children when mom or dad is sent off for federal prosecution?” ICE is only allowed to hold a child for twenty hours before it must transfer the child to ORR care, which leads to family separation. This is why there is a push to reform the law to allow ICE to hold children longer so their parents can face prosecution. The idea is, once prosecution is over and they serve their sentence, the parent will be reunified with the child and housed in detention while the family faces removal proceedings. The problem there is that history and lawsuits show that ICE is underequipped to humanely handle adult detainees, much less child detainees.

Even if a family is not separated and is detained together and then bonds out of detention, the family must now apply for a defense from being removed from the country. Most families apprehended at the border have no relief from removal other than asylum due to violence they faced or suffered in their home countries. Most of the time, such violence is perpetrated by criminal gangs that run rampant in Central America. With the 5th circuit refusing recognize asylum claims based on forced gang recruitment or extortion threats and with Attorney General Session’s recent decision in Matter of A-B-, stating that individuals subject to private acts of violence, including severe domestic violence, are not eligible for asylum, a family released from family detention usually faces an uphill battle to stay in the country.

Path to Green Card for Victims of Crimes in the United States

visa immigration The U nonimmigrant (U visa) status was specifically created for victims of certain crimes who have suffered mental or physical abuse due to the crime and are helpful to law enforcement or government officials in the investigation or prosecution of the criminal activity. The U visa process is a path to residency, also known as a green card, which grants permanent legal status in the United States. The U visa process is long and tedious and involves several steps, but if granted, it can provide you with legal status in the country.

Congress enacted the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. This legislation was intended to reinforce law enforcement agencies’ ability to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. This legislation also helps law enforcement agencies to better serve victims of crimes.

To be eligible for a U visa, you must meet the following requirements: (1) be a victim of a qualifying criminal activity; (The Immigration and Nationality Act (“INA”) contains a list of qualifying crimes.) (2) have suffered substantial physical or mental abuse as a result of the criminal activity; (3) have information about the criminal activity; (Minors have their own rules for this.) (4) were helpful or are being helpful to law enforcement efforts to investigate and prosecute; (5) the crime occurred inside the United States or violated U.S. laws, and; (6) are admissible to the United States. A waiver is available for qualified individuals who are otherwise not admissible.

Certain qualifying family members are eligible for a derivative U visa based on their relationship to you, the principal, filing for the U visa. The principal petitioner must have his/her petition for a U visa approved before his/her family members can be eligible for their own derivative U visa.

Before applying for the U Visa, the applicant must first obtain a signed U visa certification, which verifies that the crime is a qualifying crime and that the applicant was a victim. This can be done by contacting the police department where the report was made or the district attorney’s office of the county where the crime is being prosecuted and requesting a certification. It is imperative that the applicant obtain a copy of the police report in order to present it to either of these two agencies when requesting a certification. Once the police report is obtained and the certification is acquired, then the rest of the evidence can be collected, such as medical reports, counseling records, etc. to prove substantial mental or physical abuse due to the crime.

After filing the U visa petition, then the applicant will wait for, in most cases, many years before receiving an answer on his/her request. Congress placed a cap of the number of U visas which are granted annually, so every applicant is subject to this wait time. Once U visa status is granted, then the applicant can apply for lawful permanent residency after three years of obtaining U visa status. If you believe you may qualify for a U visa, please consult with one of our immigration attorneys. We can determine your eligibility and guide you through this difficult process.

How Do I Bring My Fiancé Into The United States?

ImmigrationThis winter, a sizable number of clients became engaged. Namely, to foreigners that they met on business trips, study abroad programs, or arranged marriages. No matter the reason, they all come to an immigration attorney to ask the same question: How do I bring my fiancé into the United States?

The answer is deceptively simple. One may bring a fiancé over on what is called the K-1 Visa, or otherwise known as the Fiancé Visa. The love ridden United States citizen can fill out a Form I-129F, and send it in with evidentiary documentation and a money order to United States Citizen and Immigration Services (USCIS). While the process, on the exterior, is not complicated, it is in fact time consuming, emotionally draining, and will test the strength the couple’s love and relationship months before the actual marriage.

The K-1 Visa process to immigrate a loved one into the United States is long one. There are three parts to the K-1 process. First, the Form I-129F must be approved by USCIS. USCIS approval normally takes anywhere between four to six months. Also note that the Form I-129F is not the only document sent in; the couple must prove that it is a bonafide engaged, meaning that, in most cases, a lot of evidence must be sent in. This includes, but is not limited to, pictures, emails, letters, divorce decrees of prior marriages, birth certificates, etc… This step, however, only recognizes the bonafide relationship. The foreign fiancé must obtain permission to travel to the United States, and must complete the second step.

After USCIS approval, the second step is applying for the K-1 Visa with the Department of State at the Consulate/Embassy of the foreign fiancé. This process, before Department of State approval, generally takes two to three months. The foreign fiancé will apply for the K-1 Visa at the Consulate/Embassy abroad, and submit documentation such as civil identity documentation, medical exam documentation (from a doctor approved by the Consulate/Embassy), and, again, proof of the bonafide relationship. The foreign fiancé will also need to undergo a consulate interview with a Department of State officer. This second step gives permission to travel to the United States, but does not grant admission into the United States. For admission into the United States, one must complete the third step.

The foreign fiancé will now need to arrive in the United States and seek admission at a port of entry (i.e., DFW Airport). CBP will conduct biometrics, check background information, and conduct an interview of the foreign fiancé. Once finally admitted, the couple has 90 days to marry.

The K-1 Visa process is long and emotionally draining. Therefore it is not a surprise that a lot of couples separate while the process is ongoing. The K-1 Visa is only the beginning. After marriage, the foreign fiancé must adjust status through USCIS and also possibly remove conditions from their green card. These processes also take a long time. It is highly recommended that the couple hire an experienced immigration attorney to guide them through the K-1 Visa Process.

Contact Us

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas immigration law attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

DACA Reinstated, For Now, But Dreamers Still Left Hanging

Immigration LawOn January 13, 2018, the federal government, under a federal court order, reinstated the Obama-era Deferred Action for Childhood Arrivals (DACA) for certain individuals who currently hold or previously held DACA. DACA provides temporary protection from deportation and work authorization for qualifying individuals and was rescinded by the Trump administration on September 5, 2017. Now, however, the DACA policy that reigns is the one that was in effect prior to rescission, which is a breath of fresh air for many DACA-mented individuals who were left with no status or whose status expiration loomed in the future. This is also a breath of fresh air for employers employing individuals with DACA.

The Trump administration is appealing the federal court order that reinstated DACA. It is very important that those who now qualify to renew DACA apply as soon as possible. Below are the guidelines in effect:

  • Individuals whose DACA status expired on or after September 5, 2017, may now file a renewal request with United States Citizenship and Immigration Services (USCIS).
  • Individuals whose DACA expired before September 5, 2017, or whose DACA was previously terminated, may request DACA. However, the request must be filed as an initial request with all of the supporting evidence showing the person meets the DACA eligibility requirements as initially laid out by the Obama administration in the June 2012 memo.
  • Individuals who never received DACA may not submit a renewal or an initial request.

The bipartisan Dream Act was first introduced in 2001. Congress still has not acted to protect this group of young people even though the majority of constituents and members of Congress support measures to protect Dreamers. Many individuals held hope that the latest government shut down would fuel Congress to finally act, but the latest deal did not address the Dream Act and instead moved it to the Senate’s February agenda. Not only are Dreamers standing by for Congress to act, but they also hold hope that when Congress does act, it will be by passing a “clean” Dream Act. So, what options are on the table? Below is a list of proposed legislation affecting Dreamers.

 
The 2017 Dream Act has the most bipartisan support. It provides a pathway, albeit a long pathway, to citizenship for Dreamers who came to the country before the age of eighteen, have been physically present in the United States for at least four years, meet certain educational requirements, have not been convicted of certain enumerated crimes, and who are not subject to certain grounds of “inadmissibility” listed in the Immigration and Nationality Act (INA). Such qualifying individuals may apply to become Conditional Permanent Residents (CPR). Then, after complying with another list of conditions, including meeting a developmental milestone, such as obtaining a college degree, two years of service in the military, or three years of employment, the CPR may apply for the coveted “green card” or Lawful Permanent Resident (LPR) status. Once the individual has been an LPR for five years, he or she becomes eligible to naturalize to become a U.S. citizen.

 
The BRIDGE Act does not provide a pathway to citizenship for DACA recipients, but allows individuals who came to the United States before 16 years of age and who were born on or after June 15, 1981, to apply provisional protected presence (PPP). The individual must also comply with certain educational, physical presence, and security requirements. PPP is valid for three years after the date of enactment of the BRIDGE Act.

 
The American Hope Act of 2017 provides a pathway to citizenship by allowing those who entered the country before the age of 18, have not been convicted of a crime which makes him or her inadmissible, and who have continuous physical presence in the United States since December 31, 2016, to apply for CPR status. After three years in CPR status, the applicant may then apply for LPR status. Once the applicant has obtained five years in status (CPR or LPR) he or she may then apply to naturalize to become a U.S. citizen. There is no education or employment requirement in the Hope Act.

 
The Recognizing America’s Children Act provides a pathway to citizenship by allowing those who entered the U.S. prior to the age of 16, received a high school diploma or went to college, have employment authorization, and who have not been convicted of certain crimes to apply for CPR status. After five years in CPR status, individuals may apply to extend such status if they meet certain requirements including graduating from an institution of higher education, working for 48 months, or being on active duty for at least three years. Once CPR status is renewed, the CPR may then apply for LPR status. After five years in LPR status, the individual may then apply for naturalization to become a U.S. citizen.

 
The SUCCEED Act provides a pathway to citizenship by allowing individuals who entered the country before the age of 16, were born after June 15, 1981, and have been physically present in the United States since 2012 to apply for CPR status. CPR status will be granted for five years. To qualify for naturalization, the CPR must be in CPR status for 10 years, then apply for LPR status, then be in LPR status for another five years. While the individual is in LPR status, he or she may not petition for family members, which is a benefit all other LPRs enjoy. An additional downfall is that if the individual accepts CPR status and subsequently violates such status and is placed in removal (deportation) proceedings, he or she must agree to waive most forms of relief from removal.
 
For now, though, Dreamers wait and hope for favorable legislation.

The Violence Against Women Act and its Application to Immigrant Victims of Crime

The Violence Against Women ActSeptember 30, 2018, is the current expiration date for the Violence Against Women Act (VAWA), a law originally enacted in 1994 that increases protection for both men and women suffering from domestic and dating violence. In July, House Democrats introduced a measure to reauthorize VAWA, but then House lawmakers went on recess until September 4th, leaving very little time for reauthorization before VAWA’s expiration.

VAWA has provided more than 6 billion dollars in grant funding nationwide, leaving in limbo shelters and programs that protect victims of domestic violence. Historically, VAWA has had bipartisan support, but if neither the house nor the senate passes a bill to reauthorize it, funding will be cut. It is expected that the House will pass a short-term extension of the current law until December 7, 2018, however lawmakers are still nervous. VAWA was reauthorized with bipartisan support in 2000, 2005 and 2013, but the current House bill does not have the bipartisan support necessary to ensure a long-term reauthorization.

Immigrant victims of domestic violence who do not have lawful immigration status in the United States are in an even more vulnerable state because abusers that are U.S. citizens and lawful permanent residents habitually use immigration status and the threat of deportation as a means to keep victims under their control in order to perpetuate domestic violence. Thus, VAWA includes provisions that protect immigrant victims of crimes. Luckily, such provisions are codified in the Immigration and Nationality Act (INA), and therefore, do not require reauthorization from Congress. Despite this fact, the current administration’s hard line on immigration coupled with headlines stating that VAWA is expiring keeps immigrant victims of crimes anxious.

The VAWA protections for immigrant victims of domestic violence allow for an undocumented battered spouse, child or parent of a U.S. citizen or lawful permanent resident abuser to “self-petition” and essentially step into the role of the abusive spouse or parent for immigration purposes and submit a petition to immigration to change his or her legal status without the help of the abuser. This protection allows immigrant victims of crimes to break the cycle of abuse and seek safety for themselves and their children without fear of deportation. If approved, the self-petitioner is first placed on deferred action status and receives protection from deportation and work authorization. This VAWA deferred action status then opens the door for the Petitioner to apply for lawful permanent resident status (a green card) in the U.S. Even more importantly, the Petitioner’s minor children may also be included as derivatives on the VAWA petition. The abuser is not notified of the filing and the VAWA petitioner’s information is kept confidential.

Many people, including politicians, are skeptical of VAWA’s protections for immigrants stating that immigrants may easily lie about abuse with the sole purpose of obtaining a green card. As a practitioner who has worked in shelters and helped hundreds of abused immigrant women and men obtain lawful status through VAWA, I can attest to the fact that my clients’ scars, tears, custody battles and the psychological impact of domestic violence is real. I have personally witnessed clients transform from sad, even suicidal, victims to happy, productive members of society through the VAWA process, which allows them to come out of the shadows and obtain legal status.

Even given this, of course there may still be a liar or fraudster out there, and to that I always counter with this: a VAWA petition is an up-hill battle. They are frequently denied and it is the immigrant Petitioner’s burden to prove that he or she merits a grant of protection under VAWA. The application process from start to finish takes years and is virtually impossible to win without the help of an experienced immigration attorney.

To qualify as a VAWA self-petitioner, the immigrant applicant must prove the following: (1) that he or she resided in the U.S. with the abuser, (2) that he or she was subject to battery or extreme cruelty (for spousal abuse the battery or extreme cruelty must have occurred during the marriage), (3) that he or she entered into the marriage in good faith and not for an immigration benefit (for spousal abuse), (4) that he or she has not committed any crimes or immigration offenses that disqualify the petitioner from receiving an immigration benefit, and (5) that the self-petitioner is a person of good moral character.

To win a VAWA case, the Petitioner must submit documents such as shelter records, CPS records, police reports, protective orders, counseling records, psychological records and/or evaluations, and letters from friends, family, and witnesses to both the abuse and the good faith marriage. I always tell VAWA petitioners that we have to prove the bad and also the good because, on top of the evidence previously listed, the Petitioner must also submit photos, leases, bills, children’s birth and school records, joint bank account statements and whatever else he or she can gather up to prove the “good faith marriage” and “cohabitation” elements. Further, the Petitioner must also submit awards and certificates, criminal history reports and police clearances, taxes, and any other relevant document to prove the “good moral character” prong.

As you can see, gathering this type of evidence as well as re-living the trauma suffered as a victim of domestic violence is not for the feign of heart and the process itself naturally weeds out false claims of abuse.

Though the current expiration date of VAWA does not impact immigrant victims of crimes in their ability to file for immigration benefits, VAWA expiration does affect self-petitioners because if funding is cut for shelters and domestic violence programs, VAWA self-petitioners have nowhere to run to for help in breaking the cycle of domestic violence. Victims’ inability to leave a household ridden with domestic violence in turn puts everyone in the community in danger.

New Supreme Court Decision May Help Reopen Old Deportation Orders

New Supreme Court Decision May Help to Reopen Old Deportation OrdersWhen the U.S. Supreme Court issued their most recent decisions last June, their decision in Pereira v. Sessions gave new hope to individuals that are currently barred from legally immigrating due to an old removal (deportation) order. In that decision, the Court ruled 8-1 that a Notice to Appear (NTA), the document that places an alien in removal proceedings and under the jurisdiction of an immigration judge, is not valid if it does not list a specific date, time and place when and where the alien, who is the subject of the NTA, must present him or herself in court.

This is potentially very good news to many thousands of people whose removal was ordered under such a defective NTA. The Supreme Court’s ruling offers an avenue for those with removal orders to seek reopening and termination of those orders. Further, it can be argued that the immigration court never had jurisdiction over their case in the first place. Therefore, their removal orders are also invalid just like the NTAs that placed them in removal proceedings.

In the Pereira decision, the alien seeking review by the Supreme Court argued that his NTA was defective, so he was eligible for relief, a 42B Cancellation of Removal, before the immigration court. This relief, if approved, can grant the alien lawful permanent resident status.

42B cancellation is available to certain non-permanent residents who have either a U.S. citizen or lawful permanent resident spouse, minor children or parents (known as “qualifying relatives), have no disqualifying criminal history which makes them ineligible for relief, and who have resided continuously in the United States for at least 10 years.

Filing an NTA with the court “stops time” for continuous residence in the United States. As a result, many aliens, like Pereira, who meet the first two requirements—no serious criminal history and a qualifying relative— are unable to meet the third requirement of 10 years or more of continuous physical presence in the U.S. because the NTA was issued before they hit the decade mark.

Pereira argued that because his NTA was defective, lacking a specific place and time to appear in court as required by regulation, his “clock” never stopped, and he continued to accrue time toward the 10 years required for 42B cancellation. Therefore, he argued, he was eligible at the time of his removal proceedings for relief. The immigration judge did not agree with Pereira’s contention and ordered him removed. Pereira appealed the judge’s decision to the Board of Immigration Appeals (BIA), which agreed with the immigration judge and dismissed Pereira’s appeal.

Pereira then filed a Petition for Review the BIA’s decision with the 1st Circuit, which agreed that the language in the statute governing the proper service of an NTA was ambiguous, but the court deferred to the BIA’s interpretation of the statute. Pereira’s next stop was the Supreme Court, which accepted the case for hearing before the nine justices.

As stated above, eight of the nine Supreme Court Justices agreed with Pereira. In their decision, issued on June 21, 2018, the Court found that an NTA for a removal hearing that does not specify the time and place of the hearing does not trigger the stop-time rule. Writing for the Court, Justice Sonia Sotomayor reasoned that an NTA that does not specifically state both “when” and “where,” as required by regulation, cannot reasonably be expected to result in a person appearing at their hearing.

The Court’s decision made it possible for Pereira to file a Motion to Reopen and/or Reconsider his removal order to seek termination of the proceedings against him or, in the alternative, to seek the 42B relief for which he argued he was eligible all along. For thousands of others, this ruling may make it possible to get a second chance at relief, such as 42B cancellation, which would not have been available to them at the time they were ordered removed by the immigration judge.

Perhaps many of those ordered removed have since married U.S. citizens or had U.S. citizen children, making them now eligible for new relief before the court. A Motion to Reopen or Reconsider based on a defective NTA, if in fact their NTAs were defective, may be the miracle they’ve needed to sort out their immigration status.

For those who would like to investigate this new avenue of relief, a quick check of their NTAs will reveal whether or not it was valid; the bottom left-hand side of the document should list a specific date and time to appear in court. However, if it reads “to be set” where the date and time should be included, the NTA is defective under the Pereira holding and may be the basis for a motion to the court or the BIA, whichever entity last had jurisdiction over the case. If individuals with old removal orders no longer have their NTAs, they can file a Freedom of Information Request (FOIA) with the Executive Officer for Immigration Review (EOIR) and/or ICE to obtain a copy.

Because the Pereira decision came down so recently, immigration practitioners (including immigration judges) are still uncertain about how the Supreme Court’s decision will be interpreted by the lower courts. At the moment, ICE attorneys are arguing that the Court’s decision was “narrow” in scope and applies only in the context of the “stop time” rule governing eligibility for 42B cancellation.

However, many immigration attorneys disagree; if an NTA is invalid because it lacks a specific date and time for a hearing, then it is invalid, period. If a defective NTA fails to “stop the clock” in the context of 42B because it was improperly filed and did not give the immigration judge jurisdiction over the alien charged, then it is defective across the board for all aliens said to be placed in proceedings by an alleged NTA.

It is important to review qualifying cases with defective NTAs and take action on them as soon as possible, while things are still in flux; waiting too long to file a Motion to Reopen or Reconsider and Terminate may jeopardize an alien’s ability to do so later.

If you think your order of removal, or that of a loved one, was issued in error due to a defective NTA, please do not hesitate to speak to an immigration attorney regarding your case.

Legal Rights for Undocumented Immigrants

Immigration LawI often am asked what rights undocumented immigrants have in the United States. Many assume they have no rights; however, all persons living in the United States, regardless of immigration status, have certain protections.

In 1896, the U.S. Supreme Court held that, under the Fourteenth Amendment to the Constitution, all people living in the United States, including non-citizens, are entitled to equal protection under the law and cannot be deprived of life, liberty or property without due process of law. Wong Wing v. United States, 163 U.S. 228 (1896). Additionally, all persons physically present in the United States, regardless of immigration status, have the Fourth Amendment’s protection against unlawful searches and seizures and the Fifth Amendment’s privilege against self-incrimination.

So what does this mean for immigrants? It means that, like everyone else, an undocumented immigrant has the right to refuse an Immigration and Customs Enforcement (ICE) officer entry to their home unless the officer has a valid search warrant signed by a judge. Interestingly, ICE officers almost never have a valid search warrant when they approach the home of an undocumented immigrant. They rely on the fact that most undocumented immigrants will not know their rights.

Undocumented individuals who unknowingly allows ICE officers into their home still have the right to remain silent when questioned about their immigration status or country of birth. Why? Because answering such questions would be self-incrimination. It may seem ludicrous that a person does not have to answer questions as to their immigration status, but answering such questions can subject the person to removal (“deportation”) proceedings. Also, many people do not know that ICE has the burden to prove a person lacks lawful immigration status. By remaining silent, an undocumented individual holds ICE to its burden of proof, and ICE must produce evidence showing the person’s unlawful immigration status. As with criminal defendants, an undocumented immigrant is innocent of lacking lawful status until ICE proves otherwise.

This background helps illuminate why Texas’s SB4 “show me your papers” bill has been so controversial. Pending a ruling by the Fifth Circuit Court of Appeals, SB4 has not fully gone into effect, but it is a move by the State to impose stricter rules than those mandated by the federal government, and it infringes on the constitutional rights of all persons in Texas.

What happens if ICE meets its burden and proves an individual is in the country unlawfully? Immigrants do not have the right to enter the United States unlawfully, but, once here, they are entitled to equal protection and due process under the law. This means that an individual facing removal is entitled to a hearing before an immigration judge to determine eligibility for relief from removal. The term “relief” refers to certain remedies available under the Immigration and Nationality Act (INA) for immigrants facing removal. Additionally, all persons in removal proceedings have the right to an attorney (but not at government expense), reasonable notice of the charges against them, notice of the place and time of the hearing, the opportunity to examine the evidence and witnesses presented against them, interpretation for non-English-speaking individuals, and clear-and-convincing proof that the government’s charges are valid.

Family Separation and Criminal Prosecution and Lack of Due Process, Oh My!

Immigration LawRecent images of children caged in holding cells without parents forced the Trump administration to re-think its “Zero Tolerance” policy and family separation policy at the border. The Zero Tolerance policy was implemented in April of 2018 and mandated that all individuals apprehended at the border, including asylum seekers, be prosecuted for the federal criminal offense of illegal entry. As families were apprehended at the border, children were stripped away from their parents. While parents were sent to federal custody to face prosecution, their children were first held by Immigration and Customs Enforcement (ICE) and processed for removal or “deportation” proceedings and then placed under the care of the Office of Refugee Resettlement (ORR). Under the family separation policy, there was no indication that children would be returned to parents once they served their sentence for the illegal entry. What’s interesting is that once a child is taken into ORR care, the agency must try to reunify the child with a relative or family friend in the United States. This relative or friend ensures ORR that he or she will take the child to all of the removal hearings in immigration court and will care for the child. If the child cannot be reunified, then the child remains in ORR care. The Zero Tolerance and family separation policy created a strange system in which the government took a child away from his parents and then tried to “reunify” the child with someone else.

President Trump, in his June 20, 2018, Executive Order (EO), decided to quit separating children from parents, but there was no guidance as to how to reunify families who were previously separated. Now, if a family is apprehended at the border, the family is detained in a family detention center. This was the prior practice under the Obama administration, which caused a huge expansion in family detention centers in Texas. However, the whole family usually is not kept intact. In practice, what we saw during the Obama administration was that fathers were sent to a male detention center while mothers and children were housed together in family detention. Also, children over the age of eighteen were separated from the family and placed into adult detention.

Once the family is apprehended and detained, the family may qualify for an immigration bond to be released from detention while they await their immigration court dates. The minimum bond is $1,500 and it has no upward limit. Under the Obama Administration and into the Trump Administration, we saw prohibitively high bonds set to keep families detained. The thought was that keeping families detained would have a deterrent effect on border crossings. RAICES, a local Texas non-profit, partnered with other non-profits to provide legal counsel to detained families and also helped families pay their bonds. Setting high bonds and keeping families detained was not a deterrent for border crossers, many of whom flee persecution and violence in their home countries. This caused detention centers to fill and slowly bonds crept downward. Eventually, we saw families be released under detention alternatives such as ankle monitors. Now, thanks to President Trump’s former family separation policy, this issue is in the limelight and RAICES has received millions to continue serving and helping families and children currently held in immigration detention or recently released from immigration detention.

Looking back, studies show that the Zero Tolerance policy on the border is unlikely to have a deterrent effect on unlawful border crossings. Back in 2005, Operation Streamline was launched on the Southwest border of the United States and was in effect until 2014. Much like the Zero Tolerance policy, Operation Streamline mandated, in most cases, the criminal prosecution of all unauthorized border crossers in hopes of deterring unlawful border crossings. The Department of Homeland Security (DHS) claims the program has been effective, citing statistics that show decreases in border apprehensions under the program. Other studies find no evidence that Operation Streamline deterred unauthorized border crossings or was even taken into account by immigrants who planned to cross the border without inspection. Instead, research consistently demonstrates that the social, economic and political conditions in Mexico and Central America are the primary culprits for unlawful border crossings along our Southern border.

Operation Streamline, the current Zero Tolerance policy, and the numerous restrictions Attorney General Sessions has placed on immigration judges also opens the door for severe due process violations. These policies and restrictions limit or even eliminate prosecutorial discretion. This causes resources to be stretched to the max as dockets fill, jails fill, and immigration detention centers fill. Prosecuting all unauthorized border crossers limits the ability of federal prosecutors to focus on serious immigration offenses. In addition, the Sixth Amendment requires that all immigrants facing federal criminal charges receive counsel. The vast majority of immigrants cannot afford counsel, leaving federal public defenders with more work than they can handle. Most immigrants criminally prosecuted for illegal entry (a misdemeanor offense) or illegal reentry (a felony offense) plead guilty. Additionally, under Operation Streamline, judges were forced to hold group hearings as the only means to process the mass influx of cases.

Once an immigrant serves his or her sentence for illegal entry or illegal reentry, he or she is then transferred back to ICE custody for removal proceedings. Now, the question most often asked is “what happens to the children when mom or dad is sent off for federal prosecution?” ICE is only allowed to hold a child for twenty hours before it must transfer the child to ORR care, which leads to family separation. This is why there is a push to reform the law to allow ICE to hold children longer so their parents can face prosecution. The idea is, once prosecution is over and they serve their sentence, the parent will be reunified with the child and housed in detention while the family faces removal proceedings. The problem there is that history and lawsuits show that ICE is underequipped to humanely handle adult detainees, much less child detainees.

Even if a family is not separated and is detained together and then bonds out of detention, the family must now apply for a defense from being removed from the country. Most families apprehended at the border have no relief from removal other than asylum due to violence they faced or suffered in their home countries. Most of the time, such violence is perpetrated by criminal gangs that run rampant in Central America. With the 5th circuit refusing recognize asylum claims based on forced gang recruitment or extortion threats and with Attorney General Session’s recent decision in Matter of A-B-, stating that individuals subject to private acts of violence, including severe domestic violence, are not eligible for asylum, a family released from family detention usually faces an uphill battle to stay in the country.

The Naturalization Exam

Immigration LawLegal permanent residents in the United States are given the opportunity to become U.S. citizens. This process is labeled as “naturalization.” In order to start the naturalization process, legal permanent residents must apply by sending in the pertinent forms and supporting evidence. Also, applicants are interviewed by USCIS officers, where they will be tested on the four (4) areas listed below:

  • Civics Test
  • Applicants will be asked up to ten (10) questions by the interviewer, out of a list of 100 civics questions. Applicants must answer correctly at minimum six (6) of the 10 questions to pass this portion.

  • English Speaking Test
  • The USCIS Officer determines the applicant’s ability to speak English throughout the duration of the interview.

  • English Reading Test
  • USCIS requires that applicants be able to read in English. Applicants are required to read aloud to the officer one of three sentences correctly.

  • English Writing Test
  • Applicants are required to write one out of three sentences, read by the officer, to prove that they are able to write in the English language.

Naturalization applicants are also asked questions about their application and their background at the interview. If the applicant fails the first exam, they need not worry! Applicants are given another opportunity at the test between 60 and 90 days after the initial interview. Also, there are a couple of exemptions for the English language portions of the naturalization exam:

  • “50/20”
  • If the applicant is over the age of 50 and has lived 20 years in the United States as a legal permanent resident, he/she is exempted from the English language portion.

  • “55/15”
  • Also, if the applicant is over the age of 55 and has lived in the United States as a legal permanent resident for 15 years, he/she is exempted from the English language portion.

Please note that applicants are still required to take the civics portion of the exam. However, those who qualify for the exemption are allowed to have a translator present during the interview and are permitted to take the civics portion in the native language. For those who are over the age of 65 and have been permanent residents for at least 20 years, they are given special consideration for the civics exam.

Immigration and Public Benefits: Facts, Fiction, and Current Proposals

Immigration LawA leaked draft executive order dramatically changes policies and practices long held by the Department of Homeland Security and the Department of State relating to admission of immigrants into the United States, grants of lawful permanent resident status to foreign nationals, and removal of out-of-status immigrants and persons in the country unlawfully. The draft order permits officers to scrutinize more closely any taxpayer-funded public benefits received by an intending immigrant—as well as those received by the immigrant’s U.S.-citizen children—when determining eligibility for immigration benefits or deciding whether to initiate removal proceedings.

Undocumented immigrants have never been eligible for public benefits. However, until 1996, lawful permanent residents were eligible for public benefits on the same terms as U.S. citizens. In 1996, the Clinton administration barred lawful permanent residents who have been in the U.S. fewer than five years from means-tested benefit programs, including Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid/Children’s Health Insurance Program (CHIP), and food stamps (the Supplemental Nutrition Assistance Program, or SNAP). The 1996 law also created the “public charge” ground as a basis to deny admission to the U.S. or lawful permanent resident status for those considered to be primarily dependent on the government for subsistence.

The Immigration and Nationality Act (INA) also contains a provision allowing for removal of any lawful permanent resident who becomes a public charge within the first five years of obtaining permanent resident status. Under the INA, a “public charge” is limited to those who receive cash welfare benefits or long-term, government-funded institutional care. The INA further requires each person petitioning for permanent resident status to have a sponsor sign an Affidavit of Support. The Affidavit serves as proof of the sponsor’s ability to financially support the petitioner so that he or she will not use public benefits. If the immigrant ever does receive public benefits, the government may seek reimbursement from the sponsor; however, actually obtaining reimbursement from the sponsor is rare due to the cost of enforcement.

The current guidelines regarding public charges specifically bar officers from taking into consideration an intending immigrant’s receipt of non-cash benefits when determining whether to admit an immigrant to the U.S., grant lawful permanent resident status, or initiate removal proceedings. The draft executive order reflects a huge departure by allowing officers to look at an immigrant’s receipt of any public benefit, including benefits received by the immigrant’s children, such as government-funded Head Start. The draft order also limits intending immigrants’ ability to file for child tax credits, even if the immigrant has a valid social security number and pays taxes. Though only in draft form now, the order has scared many intending immigrants, and advocates predict that many will take their children out of school programs and health and nutritional programs, thereby creating public health risks.

The Department of State has already revised its instructions to allow officials abroad to consider non-cash benefits received by an intending immigrant, his or her family members, or even his or her sponsor, when determining whether or not to admit the immigrant into the U.S.

It is important to note that under federal law, certain immigrants are not subject to the public charge determination, and this cannot be changed by regulation or executive order. Those not subject include immigrants granted asylum; those granted protection as victims of trafficking, domestic violence, or other crimes perpetrated in the United States; and those granted Special Immigrant Juvenile Status (SIJS). Also, lawful permanent residents applying to become U.S. citizens cannot be denied citizenship based on public-charge grounds.

There may be hope for certain immigrants subject to the public charge determination. The intending immigrant may use positive factors to tip the decision in his or her favor and prove that he or she will not use public benefits in the future. Factors that may be considered are current income, age, health, family members’ incomes, education, and employment opportunities.

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