On June 15, 2012, President Obama issued an executive order that enabled certain youth and young adults under the age of 31 who were brought to the United States under the age of 16 without inspection, or whose permitted period of stay had elapsed, to legally live and work here without fear of deportation. The order did not help everyone who came here as a minor, and did not provide a path to citizenship, but for those who qualified, it enabled them to get a driver’s license, obtain a social security number, and depending on where the person lived, to pursue a college education at in-state resident tuition rates. In short, the Order made it possible for the 800,000 persons granted deferred action to pursue their dreams of a future in the United States (hence the term “dreamers.”) The rationale behind the Order was both moral and practical: the children were not responsible for their violation of law; this was in many cases the only home they had ever known; the vast majority are law-abiding; and they have much to contribute to our country. In the five years that have passed since being granted deferred action, the dreamers have proven the last point, as the income generated from their application fees and taxes has totaled billions of dollars. https://itep.org/state-local-tax-contributions-of-young-undocumented-immigrants/. Many have married U.S. citizens and had children here as well.
Today, the Department of Homeland Security announced that it is winding down the DACA initiative and leaving the fate of the dreamers to Congress, which has up until now not been willing to do anything about the issue. It is an unsatisfactory political strategy that makes no guarantees for the dreamers. Therefore, it is more important now than ever to contact your Congressional representatives to express your support for Dreamer legislation that will allow them to remain with their families and to even become the good citizens we know they could be. Until then, here is the reality that dreamers must face:
- No new initial applications for DACA will be accepted, although if an application has already been submitted, it will be processed.
- Those who already have DACA can continue to work and have deportation deferred until their status expires, assuming their benefits are not revoked sooner for cause, e.g. a disqualifying arrest.
- Those who have DACA that will expire prior to March 5, 2018 MUST file to renew by October 5, 2017.
- USCIS will not go out of its way to refer people who have received DACA to U.S. Immigration and Customs Enforcement (ICE) unless they are deemed to pose a threat to national security or public safety, or it would normally do so under other criteria found in www.uscis.gov/NTA.
- Advance parole, which allowed DACA recipients to travel and lawfully return to the United States, is no longer an option. USCIS will refund the filing fees for anyone with DACA who has an application for advance parole pending at this time.
If you have any other questions about DACA termination, please do not hesitate to contact us.
The Statue of Liberty was placed in the New York harbor as a welcoming beacon to immigrants arriving for processing at Ellis Island and became an important symbol of the American Dream throughout the world. Emma Lazarus, a Jewish-American woman involved with helping poor Jewish refugees, wrote the famous poem engraved on its pedestal called “The New Colossus:” This work is a part of our national identity, but its essence is at risk due to intended refugee policies announced by President Trump.
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”
As a young girl, I believed my teachers when they told me that the United States was unlike any other nation because it welcomed everyone, and I cherished this ideal. Over time I learned that the poem was mostly a myth. Just one year before this poem was published in 1883, the United States passed the Chinese Exclusion Act of 1882 and stopped Chinese immigration for nearly six decades. That same year, we banned anyone likely to receive public assistance. We specifically excluded paupers from immigrating in 1891. In 1924, the United States outlawed immigration from Japan, and over a million U.S. citizens of Mexican heritage were forcibly returned to Mexico without due process during the Great Depression. Because of what turned out to be unfounded fears, we interned Japanese-Americans during World War II. We were also influenced by the racist eugenics movement and decided that certain nationalities were biologically better and more compatible with ours than others. As a result, we gave preference to immigrants from white-skinned countries until 1965. However, despite their tension with reality, we continue to honor the New Colossus poem and the symbolism of the Statue of Liberty concerning immigrants.
Refugees are one of the few groups allowed to enter the United States that match the description of immigrants written on our Statue of Liberty. Having lost everything, they can come here with nothing. They can receive public assistance for a certain period of time. They are welcome even though they are hated in their own lands. Now, however, we are faced with the prospect of a “No Muslim” policy in the Trump Administration that applies even to refugees, even though over half of all refugees originate from Muslim countries and we are currently experiencing the highest number of displaced persons ever recorded. http://www.unhcr.org/en-us/figures-at-a-glance.html. Refugees are now regarded by our government and many other Americans as particularly dangerous, either because of their religion or where the person was born, and this notion persists regardless of the fact that our security procedures are tougher on refugees than any other category of persons coming to the United States. For more information, see https://obamawhitehouse.archives.gov/blog/2015/11/20/infographic-screening-process-refugee-entry-united-states. Others complain about the limited costs of supporting refugees. For refugee economic facts, see http://www.migrationpolicy.org/research/ten-facts-about-us-refugee-resettlement?gclid=Cj0KEQiAzZHEBRD0ivi9_pDzgYMBEiQAtvxt-Oea8TJRzB9EHaK1JAQheOpuJdW8Ao34fDlJvLHwdqgaAoFT8P8HAQ. We need our immigration policy to be driven by facts, not fear.
A colossus is defined as a statue that is larger than life, or a person or thing of enormous size, importance, or ability. It is a very fitting word for our precious Statue of Liberty, which represents our great American openness and spirit toward immigrants. The words written on the colossus are equally powerful, but only to the extent they are true. We discard this distinctive policy toward “the wretched refuse of teeming shore” at the risk of our American soul.
President-elect Trump launched his campaign vowing to get tough on undocumented immigrants, choosing to characterize them as rapists and drug dealers, and this was a very effective and popular stance with his followers. Who could forget the sad mothers he presented during his campaign who had lost children to undocumented drunk drivers? Shortly after his election, President-elect Trump once again promised in a “60 minutes” interview to make deporting “criminal aliens” his first priority: “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, where a lot of these people, probably 2 million, it could be even 3 million, we are getting them out of our country or we are going to incarcerate.” This policy seems to be a no-brainer – except nothing is black and white. Here are a few reasons why some undocumented immigrants should be given a second chance.
The purpose of our criminal justice system is not only to punish criminals but to rehabilitate them. In theory, once criminals have served their time, they have paid their debt to society and should be able to go on to lead productive lives. However, attorneys know this is often not what happens, even for U.S. citizens. After being imprisoned for a felony (a crime with a punishment of a year or more in jail), the vast majority find it very hard to find housing and jobs. Non-citizens may not be released at all, but will instead be transferred to an immigration detention facility (usually privately owned, but that is a subject for a different blog) to wait for a judge to decide their fate. If they have families here, the penalties they pay will be doubly harsh.
Our immigration laws are already very tough for immigrants convicted of felonies. It is simply not possible for immigrants convicted of certain crimes to use certain defenses to deportation, such as asylum. Some immigrants may be deported even without a hearing. For the immigrant who was recently convicted of rape or murder, this makes perfect sense. But what about the immigrant who committed crimes 10 years ago, who was released, and did not get in trouble ever again? What if this same immigrant has close U.S. citizen relatives who need them to be here, or if he or she dedicated time to charitable causes? What if all this is true and the immigrant was brought here as a child, only speaks English, and doesn’t have any connections left in the native country? I have had several cases like this. I even have one client who I helped get a pardon from the Governor who still has a removal order hanging over his head.
The case of one of my clients, Mayra, recently made the papers. http://www.nbclosangeles.com/news/local/We-Have-No-Time-Woman-on-Brink-of-Deportation–403939546.html. Mayra was brought here as a very young child from El Salvador while it was undergoing civil war. She was later granted status but lost it as a young woman after she was convicted of crimes relating to forgery and theft. Ten years later, she was picked up on a traffic stop and put into removal proceedings. At this point she had her life together. She had a good job, a U.S. citizen fiancé, and three young U.S. citizen children. She went to church regularly and volunteered for several different organizations. After fighting her case from detention for over a year, she lost everything she worked for and was deported to a country ravaged by crime, where she has no one to help her. Her children have essentially lost their mother because U.S. policy does not allow her to ever return. Was this the right thing to do?
Crimes Committed as a Young Adult and Crimes Relating to Marijuana Possession
Like Mayra, Malik (not his real name) was brought to the United States as a young child. When I first met him, he was in high school and came to me to help him obtain deferred action as a childhood arrival (DACA). His grandmother told me she was concerned because he was hanging around with a “bad crowd.” My mother instinct kicked in, so I took him in my office and I did my best to give him a “come-to-Jesus” talk. “You are not like your American friends,” I told him. “You cannot get into any trouble or have any friends who get into trouble or be anywhere near where there is trouble.” “All you need to be is in the wrong place at the wrong time and you could end up deported.” By his smirk, I knew he didn’t get it. Like nearly every other teenager on the planet, he felt he was invincible. By the time he needed to renew his DACA, he had three misdemeanor convictions for possession of small amounts of marijuana, and his case was denied. Now that he cannot get DACA, cannot continue his education here, cannot get residence through marriage as he could before, and is facing the prospect of an eventual deportation to a country where he has no future, he gets it. Should he be given a second chance? He is a “criminal alien,” isn’t he? Unfortunately, he did not live in Colorado, where he would not have even been prosecuted for possessing marijuana. Should his youth, or the fact that his actions are not considered a crime elsewhere in the United States be taken into consideration?
Misdemeanor Crimes Related to Unlawful Presence
It is very difficult for immigrants here without permission to survive without committing certain crimes, such as driving without a license, criminal impersonation (e.g. using a fake driver’s license or social security number) and working without authorization. They do these things to better support their families. This does not justify their choice or mean they should not be prosecuted once they commit these crimes, but should any consideration be given to the level and type of offense committed when deciding who to target for deportation? Should they be considered “criminal aliens” under the Trump Administration? If they can obtain a driver’s license and or a social security number legally, they will not continue to commit these offenses.
Not all immigrants who have been convicted of crime should be treated the same. In my opinion, judges should not be prevented from granting relief to immigrants who deserve it. President Obama came up with a sound policy for prosecutorial discretion that directed immigration officers who to place into removal proceedings. President-elect Trump should do the same. For every drunk driver here without permission, there is someone else here without permission who is doing good. The latter immigrants are not expendable to their families and communities and can usually be quickly converted to solid, tax-paying residents once their legal status is resolved. To do otherwise is not real justice.
What to Do if You are an Immigrant With a Criminal Record or Arrest
If you have been convicted of a crime, even a misdemeanor, you should consult with an immigration attorney or a criminal attorney to see if it is necessary or possible for you to try to modify your conviction in any way. Expungements do not count for immigration purposes, but in a few situations, there may be waivers available. If you have been arrested but not yet convicted, be sure to understand the immigration consequences of a conviction before you make a guilty plea. Call me if you have any questions.
Deferred Action for Childhood Arrivals (DACA) was enacted as the result of an Executive Order by President Obama to aid those who came to the United States and were unlawfully present while under the age of 16. See http://www.wheatleyimmigrationlaw.com/practice-areas/daca/. Applicants provided the U.S. government with all the details concerning their unlawful presence in exchange, they received a deferral (postponement) of deportation for renewable two-year periods. Once approved, DACA immigrants could remain in the United States and work, enabling them to obtain driver’s licenses, social security numbers, and to contribute to the social security system. Studies have shown that DACA has made a very positive impact on the U.S. economy. See full citation here.
President-Elect Trump has not taken consistent positions about the future of DACA. He has threatened to end the program and to deport the nearly 750,000 recipients. At other times, he has indicated that he will focus on deporting criminal aliens first and be more humane toward those who were brought here as children. While it is unclear what, when or how his plans will take effect, there is something now that U.S. citizen friends and family of DACA recipients can do to help.
Republican Lindsey Graham and Democrat Dick Durbin introduced S. 3542, the BRIDGE Act (Bar Removal of Individuals Who Dream of Growing Our Economy) last year to preserve the deferral of removal and right to work for current DACA beneficiaries. This Act should be passed regardless of whether Trump takes any adverse action against the DACA initiative.
Why The Bridge Act Is Even Better than DACA
Because DACA was enacted by Executive Order during the Obama Administration, there is no law in place to support it, and it has been ruled unconstitutional by at least one federal court judge. President-elect Trump could quickly and easily end the program and place every beneficiary into removal proceedings. If the BRIDGE Act is enacted, however, it will be law, and could only be terminated by an act of Congress. The BRIDGE Act would not provide a path to citizenship, but those who qualify would be allowed to remain and work in the United States in renewable 3-year increments.
Republican Senator Jeff Flake of Arizona has also introduced S.3546, the SAFE Act (Securing Active and Fair Enforcement Act). The SAFE ACT seems to be very similar to the BRIDGE Act, but it includes harsh criminal penalties for unlawful presence, along with new provisions for mandatory detention and rapid removals.
How You Can Help (U.S. Citizens)
If you are a U.S. citizen, you can best help DACA immigrants by contacting your local Congressman to ask him or her to support the BRIDGE Act, not the SAFE Act. If you do not know who your representative is, click here: http://www.whoismyrepresentative.com/.
What to Do if You Have DACA Now
In my opinion, DACA immigrants should renew their status until it is no longer possible. If you have DACA you should consult with an attorney to check if it is in your best interest to apply for advance parole, which could lead to possible permanent residence. You should also contact an attorney immediately if placed in removal proceedings or if you are arrested for any reason. I am ready to help.
October 3, 2016
Court to Rescind Class Members’ Detainers, Nullifying Centerpiece of ICE’s Priority Enforcement Program (PEP)
CHICAGO – The federal district court of the Northern District of Illinois has invalidated the federal government’s practice of issuing detainers against people in law enforcement custody, ruling that the practice exceeds the government’s limited warrantless arrest authority under federal immigration laws. The decision, issued Friday evening, will nullify thousands of detainers issued out of the U.S. Immigration and Customs Enforcement (ICE) Chicago Field Office to law enforcement in Illinois, Indiana, Kansas, Kentucky, Missouri, Wisconsin, as well as some detainers sent to law enforcement in 24 other states.
Immigration detainers are written requests sent by ICE that ask local police to detain individuals beyond the time when they otherwise should be released, ostensibly so the immigration agency may take the individuals into custody. Detainers have formed the foundation for many immigration enforcement policies, most recently the Obama administration’s Priority Enforcement Program. These policies have relied on local law enforcement agencies to assist in the detention of more than one million immigrants – including some U.S. citizens. The resulting blurred lines between local police and immigration enforcement undermine community safety because immigrant communities often fear that reporting a crime will lead to deportation.
While the ruling in the class-action lawsuit Jimenez Moreno et al v. Napolitano only invalidates detainers issued out of the Chicago Field Office’s area of responsibility, its legal reasoning means that nearly all of the millions of detainers issued by ICE over the past decade have been unlawful. The detainer program, the court ruled, violates federal law because it exceeds ICE’s limited warrantless arrest authority. The court’s ruling leaves open the question whether the detainer program also violates the Fourth and Fifth Amendments to the U.S. Constitution, as the plaintiffs had argued.
“The court has affirmed what advocates and communities have been trying to tell the federal government for years–ICE’s detainer program is built on a foundation of illegality,” said Mark Fleming of the National Immigrant Justice Center and co-counsel in the case. “If I were a sheriff or police chief, I would be extremely wary to entangle my local agency in the program. ICE has, in effect, requested law enforcement to make hundreds of thousands of illegal arrests.”
Co-counsel Linda Coberly of Winston & Strawn LLP remarked, “Under this decision, if a person in custody is really subject to deportation, the federal government can still detain them; but it needs to get a warrant first, like any other law enforcement agency.”
Jose Jimenez Moreno was subject to an immigration detainer in Winnebago County, Illinois, despite being a U.S. citizen and thus not amenable to deportation. Maria Jose Lopez, another lead plaintiff in the case, is a lawful permanent resident whose jail time at a Florida correctional facility was extended as a result of an unlawful detainer. Ms. Lopez’s criminal conviction was not grounds for deportation under U.S. immigration law.
Detainers issued out of the Chicago Field Office will become invalid on October 7, 2016 at 5 p.m. Central Standard Time, unless the federal government informs the court that it will seek a stay pending appeal. A public hearing will be held in the case on October 7 at 2 p.m.
View the court’s decision and order.
Did you know that you may qualify for a U Visa if you were the victim of sexual harassment or other unlawful discrimination in your workplace? Recently the Fifth Circuit ruled in a lawsuit filed by the EEOC that the employer, Koch Foods, could not obtain the names of the U visa applicants who filed complaints against it. By doing so, the Fifth Circuit protected employees from retaliation. If you have experienced sexual or racially-related discrimination in your workplace, please call us!
Never before has obtaining information been so easy. We have become used to quick and easy answers. Need a recipe for spaghetti sauce, or to unplug your kitchen drain? Just google it. Similarly, a person looking for quick and easy answers for immigration answers can find websites providing stock answers for seemingly simple questions. Some of these websites are fueled by attorneys providing superficial, one-paragraph opinions (I know, I have done this myself). There is nothing wrong with this sort of hypothetical guidance. However, there is no way to know if the right question is being asked, and all attorney advice is disclaimed with warnings not to rely on what they say. No attorney intends to form an attorney-client relationship in this manner or to be responsible for what they write.
Outside of the internet, “notario” or “immigration services” providers hold themselves out as qualified professionals (except they aren’t) offering less expensive fees than attorneys (except when they aren’t). In the face of these other quick, easy and apparently lower cost services, why hire a lawyer?
Immigration law is not simple. It is full of contradictions and changes constantly. It is one of the most complex and heavily regulated areas of legal practice in the United States. Only attorneys or accredited representatives by the Board of Immigration Appeals (BIA) are authorized to represent persons before government agencies or courts. The unauthorized practice of law is a crime. It is very important to understand that “notarios” are not recognized as legal service professionals in the United States as they are in Latin America. Notaries in the United States are only allowed to verify identities for legal purposes by checking personal identification. While unauthorized providers of legal providers often operate without getting into trouble, the client will suffer from their mistakes. At best, a legal problem could delay a case for months, or it may merely be denied. At worst, a loved one will be deported or become stuck outside the country for five, ten, twenty years, or even permanently.
It is also not wise for persons to try to handle their immigration cases on their own. There is truth to the saying that a person who acts as his own lawyer has a fool for a client. People will often start out without any problems by completing a two page form, but then will quickly end up over their heads when the case reaches the next level. They might call the 1-800 number for USCIS and get bad advice because the persons who answer the phone are not attorneys. If the foreign citizen is already in immigration detention or is stuck overseas, there will not be time to fix a mistake. Ignorance is no excuse, and errors are very costly. For all these reasons, why not schedule a consultation with a qualified immigration attorney to discuss your case?