Friday, December 2, 2011

Prosecutorial Discretion Demystified

As many people have heard by now, the Director of Immigration and Customs Enforcement (ICE) issued two new memoranda in June of this year encouraging the expanded use of prosecutorial discretion by ICE officers, agents, and attorneys in all phases of civil immigration enforcement. In a nutshell, the new policy is aimed at moving prosecutorial discretion exercised by immigration enforcement officials away from an ad hoc system to a system that focuses government resources on only pursuing high priority cases—criminal aliens, national security threats, repeat immigration violators, and recent border entrants—and setting aside, closing or not initiating cases that are low priority.

The rationale is that government spending on cases that fall outside the enforcement priorities actually hinders the government’s public safety mission by clogging the immigration court dockets and diverting resources away from high priority individuals.
These memoranda announce substantial and, in my opinion, very positive positive policy changes that all immigrants—and their advocates—should be aware of. However, it has also confused many immigrants and citizens alike.
First of all, this new policy does not confer any lawful status on any non-citizen. Thus it is a far cry from amnesty. It will merely result in an indefinite reprieve for certain individuals who are already facing deportation but who are a low enforcement priority.
Second, there is no affirmative right created by this policy. In other words, someone who is undocumented cannot apply for the exercise of discretion. In fact, if you are undocumented or out of status and you surrender yourself and seek prosecutorial discretion it is very likely you will be placed in removal proceedings where you run a serious risk of being deported. In order to benefit from this policy you must be in removal proceedings already, or be very close to being placed in removal proceedings, for prosecutorial discretion to even apply.

Third, there is no enforceable right to appeal a negative prosecutorial discretion decision, though a good immigration lawyer should be able to utilize an informal appeal process by going up the chain of command within the enforcing agency.

Fourth, depending on the case, there could be a potential benefit linked to the exercise of prosecutorial discretion, such as the availability of employment authorization.

Now, in order to implement these new priorities, on August 18, 2011, the Department of Homeland Security (DHS) announced a review of all pending removal cases in order to identify those cases that reflect a high enforcement priority for DHS. Drum roll please. According to DHS, the highest enforcement priorities, meaning those that should generally be pursued in an accelerated manner involve a noncitizen:

  • who is a suspected terrorist or national security risk;
  • who has a conviction for—
    - a felony or multiple misdemeanors,
    illegal entry, re-entry, or immigration fraud, or
    a misdemeanor violation involving—
    - violence, threats, or assault,
    - sexual abuse or exploitation,
    - driving under the influence of alcohol or drugs,
    - flight from the scene of an accident,
    - drug distribution or trafficking, or
    - other significant threat to public safety;
  • who is a gang member, human rights violator, or other clear threat to public safety;
  • who entered the country illegally or violated the terms of their admission with the last 3 years;
  • who has previously been removed from the country;
  • who has been found by an immigration officer or immigration judge to have committed immigration fraud; or
  • who otherwise has an egregious record of immigration violations.

  • In contrast, the lowest priority cases—those that should be carefully considered for prosecutorial discretion on a case-by-case basis, involve a noncitizen:
  • who is a member in good standing of the U.S. military, honorably discharged veteran, or the spouse or child of such member or veteran;
  • who is a child, has been in the U.S. for more than 5 years, and is either in school or has successfully completed high school;
  • who came to the U.S. under the age of 16, has been in the U.S. for more than 5 years, has completed high school, and is now pursuing or has successfully completed higher education in the U.S. [yes, this is targeting Dream Act kids]
  • who is over the age of 65 and has been present in the U.S. for more than 10 years;
  • who is a victim of domestic violence in the U.S., human trafficking to the U.S.; or of any other serious crime in the U.S. [this is a particularly big deal];
  • who has been a lawful permanent resident for 10 years or more and has a single, minor conviction for a non-violent offense;
  • who suffers from a serious mental or physical condition that would require significant mental or detention resources; or
  • who has a very long-term presence in the U.S., has an immediate family member who is a U.S. citizen, and has established compelling ties and made compelling contributions to the U.S.
  • In addition to these enforcement priorities, one of the big two prosecutorial discretion memos that came out over the summer makes clear that it is generally against ICE policy to initiate removal proceedings against victims or witnesses to a crime, or to "remove individuals in the midst of a legitimate effort to protect their civil rights or civil liberties."  The language used here is expansive and is designed to protect those involved in labor, housing or similar disputes that are being fought outside of court.  This will hopfeully go a long way to removing the fear of retaliation and removal that noncitizens face when deciding whether or not to speak up and defend their rights.

    Noncitizens who are in removal proceedings or who are worried they are about to be placed in removal proceedings should talk with their immigration lawyer about the possibility of prosecutorial discretion, among other options. Often, it will be a last resort, but it may still be better than the alternative—if the alternative is deportation.


    Monday, June 20, 2011

    How are Non-citizens Detained by ICE?

    The most typical route starts when the non-citizen—this could be an undocumented person, a person with a valid or expired temporary visa or a green gard holder—is already in federal or local law enforcement custody. For instance, the non-citizen was just recently arrested on criminal charges and taken to the county jail, or maybe he or she was already convicted and was serving a sentence. ICE regularly visits jails and interviews inmates to see if they are deportable aliens. The non-citizen may not know he or she is even talking to an ICE officer when they are interviewed!

    You may have heard that your loved one had an “ICE hold” placed on him or her when they were in state or federal prison. What is going on? When ICE finds a non-citizen whom the agency thinks is deportable, ICE will issue a notice, called a “detainer” to the state or federal prison officials, requesting that the prison officials notify ICE if they intend to release the detained alien or to hold the person for ICE. It is ICE’s way of telling another law enforcement agency that ICE wants to arrest and remove an alien that another law enforcement agency has in its custody.

    For a detainer to be valid, it must be issued while the alien is still in custody. Once the alien has served his or her criminal sentence or paid the criminal court bond for his or her release, if a detainer has been issued, the state or federal prison officials must hold the alien for up to 48 hours (excluding Saturdays, Sundays and holidays) for ICE to come and assume custody of the alien. If ICE does not come to pick up the alien within 48 hours, he or she must go free!

    Unfortunately, many state and county officials either don’t know about the 48-hour rule (which is a federal regulation (8 CFR 287.7(d)), or, worse, they deliberately ignore it! If that appears to be the case, you should seek the help of a competent immigration attorney to enforce the 48-hour rule.

    Saturday, May 21, 2011

    Tips for Improving Your Chances of Getting Cleared by US Customs at an Airport

    1) Be honest, upfront, and polite with the Customs & Border Protection (CBP) agents. They are trained to detect when you are lying so don’t even try, it will only hurt you. Being upfront with the agents is especially in your interest because during the admission process at the border/point of entry they are the only people who can help you. You have no right to an attorney during this time. The CBP agents have a certain amount of discretion and you want to make sure that they will feel inclined to exercise it with you, if necessary, to admit you to the US.

    2) Make sure you bring detailed documents with you to present to the CBP. This means more than simply your visa. Most importantly, non-immigrant visitors need to show reasonable ties and equities to and in their home country. This means you need to have documentation showing employment, family, and social ties to a residence abroad, and adequate financing arrangements to carry out the purpose of your visit.

    If you are traveling to the US for an employer, make sure you have a letter from the employer detailing the purpose of your visit and the activities you will engage in during the visit. Remember, the burden is on you to prove that you are not inadmissible to the US. (No criminal convictions, prior immigration law violations, etc.) In general, this means you need to show that you have proper documentation and the requisite intent for the type of visa for which you applied. Common sense applies here. For example, if you are coming to the US for a three-day conference on a B-1 visa but your return ticket isn’t until 90 days later, you can expect that this will raise a red flag for CBP.

    3) Make sure that you have a good phone number for the employer sponsoring you or the employer’s immigration attorney, or, if visiting family or friends, then the family meeting you, or your own immigration attorney. It’s best to have both a regular phone number and cell number for one or more of these people. CBP may call them to help answer questions that the agents have about your situation. Having the phone number of someone who is knowledgeable about your situation and available can make the difference between having to withdraw your application for admission and fly back to your country of origin the same day or being admitted to the US.

    4) If you are offered the choice to voluntarily withdraw your application for admission because CBP does not believe you are telling the truth or you do not have proper documentation and they are unable to contact anyone that can clarify your situation (and you do not have a credible fear of returning to your own country or an asylum claim), it is always preferable to accept this offer rather than force CBP to use the alternative, which is expedited removal.

    If you have committed visa fraud, and/or made misrepresentations starting back with the US consulate in your home country--this does not apply to asylum cases--then you can expect that CBP will order an expedited removal. This means you will be returned to your home country (or country of last embarkation) with no hearing and a permanent bar from returning to the US. (If CBP issues an expedited removal order for simply lack of documentation, there is only a five-year bar to returning.) In most cases, you will be put on the next flight back, using your return ticket if possible. The air carrier is liable to the US government to return anyone who is inadmissible, so most likely you will be sent back on the same carrier, or a code share partner. And, even though the carrier must fly you back, it will certainly look to you to pay the cost of the ticket.

    An important note about the expedited removal power: an expedited removal order under INA 212(a)(6)(C) is for fraud and misrepresentation, and results in a LIFETIME bar from re-entry to the US. An expedited removal order issued under INA 212(a)(7) is for lack of documentation and results in a 5 year bar to re-entry. Not surprisingly, it is much harder to get a waiver to return to the US if you were removed under the (a)(6) ground than (a)(7).

    The bottom line is that the best way to improve your chances of getting cleared by US Customs at the airport is to make sure you are traveling on the correct visa, bring copies of the appropriate documentation with you, bring phone numbers for contacts in the US who are available to speak to CBP to address any problems that may arise, and, above all, be honest!

    If you have any concerns about you or a family member traveling to the US, consider consulting with an immigration attorney that is knowledgeable about CBP procedures. Advance planning can go a long way to improve the chances of CBP clearing you or your family member and admitting them to the US.

    Also, frequent international travelers—non-citizens and US citizens alike—should apply for the CBP’s Global Entry program, which allows you to enter the US using automated kiosks at the airport.

    Wednesday, May 11, 2011

    The Religious Worker Path to a Green Card

    If you work for a recognized religious organization, either as a minister or a religious worker, you might qualify for a green card as a special immigrant. You can apply for your green card as a minister or religious worker from inside the U.S.—if you are in lawful status and not working without authorization—or from abroad. You start the process by filing an I-360 petition on your own or through your employer. Whether you or your employer files the petition, the prospective U.S. employer must submit certain documentary evidence, including an attestation showing that certain requirements have been met regarding the organization, its history of filing this type of petition and the position and salary.

    Now, the immigration regulations define a “minister” as someone who is fully authorized by a religious denomination to conduct religious activities, such as a minister, priest, rabbi, imam, ordained deacon, or Buddhist monk. A “religious worker” is defined as someone who is in a religious vocation or occupation and is authorized to perform normal religious duties, such as religious instructors, religious counselors, missionaries, religious broadcasters, workers in religious hospitals and cantors. Purely non-religious workers and volunteers are not included in this definition. Over the years the regulations defining religious occupations have changed and there has been litigation over varying interpretations. Someone attempting to immigrate under this category would be well advised to consult with an immigration attorney about their specific circumstances.

    To qualify for a green card as a minister or religious worker, for at least 2 years immediately before filing the visa petition, you must have been a member of a religious denomination that has a bona fide, nonprofit, religious organization in the U.S.

    Also, you must be seeking to come to the U.S. to work full time (35 hours) in a paid position, purely to carry on your vocation as a minister or to work for a bona fide, nonprofit religious organization in the U.S. or its affiliate in the U.S.

    Finally, you must have been working as a minister or religious worker—abroad or lawfully in the U.S.—for at least 2 years immediately prior to filing the visa petition. (There can be breaks in the 2-year period but only in certain situations. And, unauthorized employment during the 2-year period stops the 2-years from accruing but it can be restarted again.)

    Because of a recent court decision, immigrants can no longer file both the visa petition for a special immigrant visa as a religious worker and the green card application at the same time. This applies specifically to the religious worker classification. Currently, any green card application (I-485) that is based on a special immigrant petition (I-360) for a special immigrant religious worker must be filed only after you have an approved I-360 petition.

    In addition, currently, all religious workers (not ministers) must enter the U.S. with a valid immigrant visa or adjust to permanent resident status (have an approved I-485) before September 30, 2012. This date might be extended in the future, but this is the current law.

    Monday, April 11, 2011

    Seattle Immigration Lawyer | Are Immigration Benefits Available to Same-Sex Spouses?

    One question that I have been asked as an immigration attorney is: what is the best way for a same-sex couple—when one person is a US citizen—to get married and live together in the US? Like the answer to many legal questions, the answer is not clear. The issue of how same-sex couples are treated under our immigration laws is currently being litigated and will probably have to be decided by the U.S. Supreme Court in the next several years. As of right now, the immigration laws in the U.S. only recognize marriage as being between a man and a woman. This is still true despite the fact that in February of this year, the Obama Administration announced that the federal law defining marriage this way (D.O.M.A.) is unconstitutional.

    Therefore, with this uncertainty in mind, it would be very risky for same-sex married couples to affirmatively seek immigration benefits based on their marriage. At the same time, it might be risky for same-sex couples to get married marry if the immigration status of one of them is dependent on that person maintaining a foreign residence, i.e., in the case of a non-immigrant visa holder.

    Caveats aside, theoretically, an unmarried, same-sex couple could contemplate moving to a U.S. state that recognizes and issues marriage licenses to same-sex couples (currently: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and D.C.) and then seeking adjustment of status to that of a permanent resident based on the state-recognized marriage. Of course, like any other marriage- based application, they would have to show that it was a bona fide marriage entered into not merely for immigration benefits.

    However, the safest option right now would probably be to wait for the law to change before filing any immigration application based on a same-sex marriage. Same-sex partners should speak with an immigration attorney before filing any immigration application and before getting married. It might well be worth exploring other non-marriage-based visa options for traveling and living in the U.S. temporarily or permanently. And, in cases where marriage to a partner who is in a foreign country is contemplated, it is often best if the U.S. citizen partner consults with an immigration attorney first, on his or her own, without involving the foreign-based partner.

    Friday, March 18, 2011

    It's Good to Be an Immigration Lawyer

    Last Friday was a great day. That evening, I rode the Amtrak from Portland to Seattle, heading back from the American Immigration Lawyers Association’s Northwest Conference, newly invigorated from two days of classes crammed with the latest immigration law information. AILA conferences are truly a must for immigration lawyers who need to stay up-to-date on constantly changing and complex laws, policies, and practices. I attended the family-based immigration classes, which covered a wide array of topics, such as the latest in waivers and consular processing, international adoption, asylum and cancellation of removal.

    David Leopold, president of AILA, gave a rousing speech during the conference lunch on Friday that was a call to arms for immigration attorneys and anyone who believes in protecting and fighting for the rights of immigrants to lobby for real immigration reform that is about actual solutions—not merely more enforcement. There was also promising mention of the so-called “Utah Solution,” which is a compromise plan that might pave the way for positive federal reform. One of the most effective things advocates can do, David suggested, is to talk around the dinner table, and to neighbors and friends about the need for solution-based reform since so many people, voters and politicians alike, simply don’t understand how existing immigration laws work, or, more accurately, don’t work.

    The conference made me proud to be part of a knowledgeable group of lawyers from both the nonprofit and for-profit sector who are truly dedicated to working together to help unite families and make it easier for immigrant entrepreneurs to help build our economy. It only reaffirmed my feeling lately that I have found my calling.

    Wednesday, February 9, 2011

    Visa Backlog Expected to Go Down For Spouses & Children!

    I have heard from a reliable source in Seattle earlier this week that the State Department backlog for the Family 2A preference category--spouses and children of permanent residents--will likely be going down very soon. This is a big deal. Currently, as of the February 2011 Visa Bulletin, there is a three (3) year wait for green card holders who are applying for their spouses and children (under 21). If this changes, and the backlog starts to be cleared up, we will start seeing much faster processing times for family-based visa petitions, meaning that families will not have to wait as long as they were expecting in order to be reunited.

    According to the same source, the number of visas available for the Family 2B preference category--unmarried sons and daughters (21 years of age or older)--will be increasing but processing times will not be as fast as the Family 2A. Currently, as of the February 2011 Visa Bulletin, there is a nearly eight (8) year wait for this category. Any improvement would obviously be welcomed.

    So, green card holders who are waiting for their priority date to become current or who are considering applying for their loved ones to join them should watch the Visa Bulletin closely for signs of movement. The March bulletin should be published in the next several days. Here is the link to check:

    Thursday, February 3, 2011

    Seattle Immigration Lawyer | Forcing DHS to Act, a Brief Look at Mandamus Actions

    In general, a “mandamus” is a written order issued by a court commanding a lower court or government officer to perform mandatory or purely ministerial duties correctly. In the immigration context, a person may file a mandamus petition in federal district court to force a DHS officer or other agency officer to perform a nondiscretionary duty, such as ordering USCIS to adjudicate an application or petition that has been unreasonably delayed (28 U.S.C. §1361).

    In one mandamus action that was granted, the court ordered the INS to adjust a diversity lottery applicant prior to the end of the fiscal year. In another mandamus action, the court denied the USCIS’s motion to dismiss a mandamus petition that was brought to compel adjudication of an adjustment of status application, and the court rejected the government’s claim that the time that USCIS and the FBI take to complete the name check is per se reasonable. In an example of a case where mandamus was denied, one court held that a 3-year delay in an adjustment of status was not so extraordinary that it required court intervention.

    In a mandamus action, the petitioner must show:

    (1) a clear and certain claim;

    (2) that the duty owed is ministerial and so plainly described as to be free from doubt; and,
    (3) that no other adequate remedy is available.

    (Belegradek v. Gonzales, 523 F.Supp.2d 1364 (N.D. Ga. 2007)).

    According to the nonprofit advocacy group, the American Immigration Council,* the following tips should be considered when bringing a mandamus action:

    (i) Request that the court order USCIS to adjudicate the application within a certain time frame, such as 30 or 60 days (otherwise the court may not impose any deadline!);

    (ii) Request that the court maintain jurisdiction over the action after granting mandamus relief (so that, if necessary, you can return to the same court to seek enforcement of its order without having to bring a new action), or alternatively, request that the court require USCIS to provide the court with periodic progress updates; and,

    (iii) If you know or suspect that security checks are causing the delay, name the FBI as well as USCIS in the petition so that the court has jurisdiction over both agencies.

    If you think that your immigration application is taking too long, it is worth asking an experienced immigration attorney about the possibility of bringing a mandamus action in federal court. Sometimes your only option is to sue an agency in order to force it to do its job.

    *I have paraphrased the three suggestions above from the American Immigration Council. See I have no affiliation with this nonprofit.

    Wednesday, January 5, 2011

    How a Divorce Can Hurt Your Immigration Case

    Three of the most common times when a divorce can negatively impact a person’s immigration case are: (1) when someone is waiting for their green card (a.k.a. applying to adjust their status); (2) when someone is trying to change a conditional residence status to permanent residence status; and (3) when someone is waiting on their naturalization (citizenship) application.

    First, if an immigrant is married to a U.S. citizen and applies for a green card, but divorces the U.S. citizen before the green card is approved, the immigrant will no longer be eligible for a green card. The only exception is when the U.S. citizen spouse was abusive.

    Second, as you may know, if an immigrant obtains a green card based on a marriage to a U.S. citizen, and that marriage occurred within the last two years, the green card is conditional and expires after two years. In order to remove the condition, the immigrant and the U.S. citizen spouse must file a petition (Form I-751) within 90 days before the card expires. (The petition must be accompanied by supporting documentation showing that the marriage is not a sham. USCIS will either: approve the petition; request additional evidence; refer the case for an interview; or, deny the petition and refer it to an Immigration Judge.) The petition must be filed jointly; however, if the couple is divorced, the immigrant will file the petition him or herself and seek a waiver of the joint filing requirement, which is only granted if: (a) the marriage was entered into in good faith but was legally terminated; (b) the immigrant’s deportation would cause the immigrant extreme hardship beyond the normal hardship of someone who is deported; or, (c) the marriage was entered into in good faith but the immigrant was abused by the U.S. spouse.

    If you are applying for a waiver it is highly recommended that you hire an immigration attorney since this is not a routine application but rather it requires submitting substantial documentary evidence. It is also important to note that the couple can still file the petition jointly if they are separated or their divorce is not yet finalized. But, if the couple files a joint petition and their divorce is finalized before the USCIS has rendered a decision then the petition will be denied and the immigrant will have to file a new petition with a waiver request.

    Third, divorce can negatively affect an immigrant trying to naturalize based on a U.S. citizen spouse. For example, in a recent California federal district court case, the plaintiff had applied for naturalization based on his U.S. citizen wife after he had been a lawful permanent resident for three years. However, while his naturalization application was pending, the plaintiff divorced his wife. The court found that the plaintiff was not eligible for naturalization because as a result of the divorce, the 5-year residency requirement for naturalization applied instead of the 3-year residency requirement after becoming a lawful permanent resident. Alenazi v. USCIS No. 09-cv-2053 (S.D. Cal. October 12, 2010).

    As you can see, the timing of a divorce can have real consequences in immigration proceedings, which are best dealt with by planning ahead and consulting with a knowledgeable immigration attorney.