Articles Posted in Deportation/Removal

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INS SealImmigration law in the United States involves a complicated set of laws and regulations, which are administered and enforced by agencies spread across several Cabinet-level departments of the federal government. The immigration system covers two main areas:  benefits and enforcement. While our law practice focuses on immigration benefits, namely immigrant and nonimmigrant visa petitions and applications to adjust status to permanent resident, everything in this system is connected, however distantly. The New Jersey immigration system, according to various studies, is particularly beset with problems, including massive case backlogs. It is useful to look at the entire process, from petitions to removals, since careful and thorough preparation during the petition part of the process can help prevent any contact with other parts of the system.

The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., is the country’s primary immigration statute. Prior to 2003, administration of the “benefits” part of the law was split between the Department of State (DOS) and the Department of Justice (DOJ). People seeking visas outside the U.S. applied at U.S. embassies and consulates operated by the DOS. Petitions and applications filed within the U.S. went through a DOJ agency that no longer exists, the Immigration and Naturalization Service (INS). The Homeland Security Act (HSA) of 2002 moved the INS to the newly created Department of Homeland Security (DHS), and it divided its responsibilities among several new agencies. It created U.S. Citizenship and Immigration Services (USCIS) to process immigration petitions and applications.

The enforcement side of the INA involved multiple DOJ agencies before 2003. The INS and the Border Patrol handled investigations of suspected immigration violations, and the INS represented the government in court proceedings seeking removal. Another DOJ agency, the Executive Office for Immigration Review (EOIR), operated a system of courts that heard removal cases and a Board of Immigration Appeals (BIA) to review those courts’ rulings. The HSA kept the the EOIR where it is but moved the enforcement functions of the INS and Border Patrol to two DHS agencies:  Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). The officers who enforce immigration law and the attorneys who represent the government in immigration court now work for the DHS, while the immigration court judges still work for the DOJ.

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Wedding cakeFederal immigration law provides multiple ways that a person can become a naturalized citizen of the United States. Children may be able to obtain naturalization if one or both parents successfully complete the naturalization application process, but this does not apply to all children of newly naturalized citizens. The Immigration and Nationality Act (INA) draws a distinction between children who were either born in wedlock or have been “legitimated” under the laws of their home country, as opposed to children who were born out of wedlock. While the United States has done away with most legal distinctions between children born in and out of wedlock, they persist in some countries, and they may still be a factor under the INA. A recent decision by the Board of Immigration Appeals (BIA) addresses some confusion over this process. Matter of Cross, Int. Dec. 3826, 26 I&N Dec. 485 (BIA 2015).

The INA states that a child born outside the U.S. automatically becomes a U.S. citizen if at least one parent is a citizen, the child is less than 18 years old, and the child lawfully resides in the U.S. in the citizen parent’s custody. 8 U.S.C. § 1431(a). This applies whether the parent obtained citizenship “by birth or naturalization.” This may seem straightforward, but the way the INA defines a “child” for the purposes of this provision makes it more complicated.

For the purposes of the naturalization provisions of the INA, a “child” is defined as an unmarried person who is under the age of 21 and who, before the age of 16, was “legitimated under the law of the child’s [or the father’s] residence or domicile.” 8 U.S.C. § 1101(c)(1). The concept of “legitimation” or “legitimacy” relates to whether a child’s parents were married at the time of their birth and whether the child’s father has gained legal recognition as the father. Amendments to the INA enacted in 1995 changed most instances of the terms “legitimate child” and “illegitimate child” to “child born in wedlock” and “child born out of wedlock,” respectively.

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flagsApplying for immigration benefits involves a substantial amount of paperwork, and it requires close and careful attention to detail. While mistakes can cause delays and other difficulties in an application, outright falsehoods have far worse consequences. The Board of Immigration Appeals (BIA) affirmed a removal order last year based, in part, on a finding that the respondent falsely represented himself as a U.S. citizen. Matter of Richmond, Int. Dec. 3867, 26 I&N Dec. 779 (BIA 2016). A key question before the BIA was whether a person’s intent in making a false statement is relevant.

The Immigration and Nationality Act (INA) provides a lengthy list of grounds for inadmissibility, including health problems, criminal activity, and national security concerns. Prospective immigrants with a history of immigration violations may also be deemed inadmissible. This includes someone “who falsely represents, or has falsely represented, [themselves] to be a citizen of the United States for any purpose or benefit under [the INA] or any other Federal or State law.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The words “purpose or benefit” are important.

According to the BIA’s ruling, the respondent in Richmond is a citizen of Trinidad and Tobago, who entered the U.S. on a nonimmigrant visa in May 2001. After a conviction for second-degree assault—which was later overturned on appeal—the Department of Homeland Security (DHS) brought removal proceedings. It alleged that he was deportable for overstaying his visa under 8 U.S.C. § 1227(a)(1)(B) and for a conviction of an aggravated felony under § 1227(a)(2)(A)(iii).

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visa mapThe new president issued three executive orders (EOs) in January 2017 regarding immigration. The most recent of the three, EO 13769, is the most well-known. Descriptions range from a “travel ban” to a “Muslim ban,” depending on who is describing the order. The EO, which bars entry to the U.S. from seven countries with majority-Muslim populations, is currently subject to a temporary restraining order, and multiple court challenges are pending in courts around the country. New Jersey’s Newark Liberty International Airport saw a considerable amount of confusion after the issuance of the EO, when federal agents attempted to enforce the order without clear guidelines. All we can offer is a very general overview of the EOs, since their impact—and even their legal validity—remains uncertain.

The first order, EO 13767, is entitled “Border Security and Immigration Enforcement Improvements.” 82 Fed. Reg. 8793 (Jan. 25, 2017). It directs immigration officials to increase patrols and deportations in response to an alleged “recent surge of illegal immigration at the southern border with Mexico.” Id. at 8793. It also makes “the immediate construction of a physical wall on the southern border” the official policy of the federal government. Id.

EO 13768 is entitled “Enhancing Public Safety in the Interior of the United States.” 82 Fed. Reg. 8799 (Jan. 25, 2017). It primarily sets enforcement priorities with regard to deportations. The order also addresses so-called “sanctuary jurisdictions,” which it defines as non-federal governments that “willfully refuse to comply with” a statute regarding communication between local and federal law enforcement. Id. at 8801, 8 U.S.C. § 1373. The federal government is probably limited, however, in its authority to require local governments to participate in immigration enforcement, an area of exclusively federal jurisdiction under the Constitution. See, e.g. Printz v. United States, 521 U.S. 898 (1997); South Dakota v. Dole, 483 U.S. 203 (1987).

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copyright symbolFederal immigration law identifies multiple criteria for admissibility to the U.S. on an immigrant or nonimmigrant visa, ranging from health issues to criminal history and national security concerns. An allegation of inadmissibility may result in the denial of a visa petition or the initiation of removal proceedings for someone who is already in the country. “Inadmissibility” is different from “deportability,” at least in a legal sense. In either case, the government may try to remove, or “deport,” the individual. A person alleged to be inadmissible may be able to obtain relief through a waiver or certain other procedures, such as cancellation of removal. The first issue to consider, however, is whether the government has alleged valid grounds for inadmissibility. A recent decision by the Board of Immigration Appeals (BIA) considered whether criminal copyright infringement constitutes a “crime of moral turpitude” under the Immigration and Nationality Act (INA). The court ruled in the government’s favor on this question in Matter of Zaragoza-Vaquero, Int. Dec. No. 3873, 26 I&N Dec. 814 (BIA 2016).

The INA defines an “inadmissible” person as someone who is “ineligible to receive visas and…to be admitted to the United States.” 8 U.S.C. § 1182(a). Perhaps one of the most common grounds for inadmissibility is “presen[ce] without admission or parole,” id. at § 1182(a)(6)(A)(i), meaning that the person entered the U.S. without a visa or other official permission from the federal government. A person who has been lawfully admitted to the U.S. as an immigrant or nonimmigrant could be deemed “deportable” under certain circumstances. The key difference is that an inadmissible person, by legal definition, should never have entered the U.S., while a deportable individual has lost the legal right to remain. Inadmissible people are also deportable under the INA, id. at § 1227(a)(1)(A).

The INA identifies several types of criminal convictions that could render someone inadmissible, including any “crime of moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). The statute does not define the term “moral turpitude,” but the BIA states that caselaw has defined it as an offense that is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.” Zaragoza-Vaquero, 26 I&N Dec. at 815

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klimkin [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayTitle 8 of the United States Code, which deals with immigration and nationality, defines multiple grounds for inadmissibility, by which the federal government may deny a prospective immigrant entry to the U.S., and deportability, by which it may remove an immigrant from the country. Drug abuse and drug addiction, even without a criminal conviction, are considered grounds for both inadmissibility and deportability. This has been the case since Congress passed the Immigration and Nationality Act of 1952. See Castaneda de Esper v. INS, 557 F.2d 79, 82 (6th Cir. 1977). As a report published by Vice several months ago notes, this can be difficult to enforce, since it relies on an immigrant’s honesty on immigration forms, or an inadvertent admission, such as through medical records.

U.S. courts have generally held that drug addiction does not, in and of itself, mitigate criminal liability for drug-related offenses, although some judges have expressed concern about criminalizing mere drug possession when addiction is involved. See, e.g., United States v. Moore, 486 F.2d 1139, 1243 (D.C. Cir. 1973) (Wright, J.; Bazelon, C.J.; Tamm, J.; Robinson, J.; dissenting) (“[I]in determining responsibility for crime, the law assumes ‘free will’ and then recognizes known deviations ‘where there is a broad consensus that free will does not exist’ with respect to the particular condition at issue.”) Federal authorities in immigration cases have a lower burden of proof than in criminal cases, so this principle would certainly seem to apply in decisions regarding inadmissibility and deportability.

Drug abuse and addiction are considered health-related grounds for inadmissibility. 8 U.S.C. § 1182(a)(1)(A)(iv). Federal law allows waivers for other health-related grounds, i.e., subsections (a)(1)(A)(i) through (iii), under 8 U.S.C. § 1182(g). Subsection (iv) is conspicuously absent from that list. For example, a prospective immigrant without a vaccination record for certain illnesses, who would be inadmissible under § 1182(a)(1)(A)(ii), may obtain a waiver by demonstrating that they have received a vaccination, that a vaccination would not be “medically appropriate,” or that it would go against their “religious beliefs or moral convictions.” 8 U.S.C. § 1182(g)(2). The only waiver that might be available for all health-related grounds, including subsection (iv), applies to victims of human trafficking and individuals involved in trafficking investigations. 8 U.S.C. §§ 1101(a)(15)(T), 1182(d)(13)(B)(i).

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By Apsu09 (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY 3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia CommonsThe U.S. immigration system offers certain protections to immigrants who would face persecution because of certain characteristics in their country of origin. Immigrants can affirmatively apply for asylum, but if they are already involved in removal proceedings or subject to an order of deportation, they must submit a defensive petition for asylum or withholding of removal through the immigration courts. The Ninth Circuit recently issued a ruling suspending the deportation of a transgender Mexican immigrant, finding that she is likely to face torture if she were to return to Mexico. Avendano-Hernandez v. Lynch, No. 13-73744, slip op. (9th Cir., Sep. 3, 2015). The case involves both federal immigration law and an international treaty.

The respondent is originally from the state of Oaxaca, Mexico. She began expressing her female gender identity at an early age. The Ninth Circuit’s ruling describes “years of relentless abuse that included beatings, sexual assaults, and rape,” Avendano-Hernandez, slip op. at 4, including physical and sexual abuse by members of her own family. She unlawfully entered the U.S. in 2000 from Mexico after one of her brothers threatened to kill her if she did not leave. She “struggled with alcohol abuse,” id. at 6, and was convicted of driving while intoxicated twice in 2006. After serving a sentence for felony DWI, she was deported in 2007.

Back in Mexico, the respondent again faced harassment and abuse from her family and others. She returned to the United States in 2008 after she was raped by a group of uniformed police officers. She was sexually assaulted by a uniformed military officer on the way to the U.S. In 2011, she was arrested for violating probation in her 2006 DWI case and placed in removal proceedings again.

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By WPPilot (Own work) [CC BY 4.0 (http://creativecommons.org/licenses/by/4.0)], via Wikimedia CommonsThe United States has long viewed itself as a beacon of freedom and hope for the rest of the world. The Statue of Liberty stands atop a pedestal bearing Emma Lazarus’ famous words “Give me your tired, your poor, your huddled masses yearning to breathe free.” Living up to these words is always a challenge, and those who advocate for immigrants seeking a better life in America often find themselves standing against a state that finds it easy to lock people away. A federal judge recently issued an important ruling affecting over 1,000 immigrant parents and children in the custody of the U.S. Department of Homeland Security (DHS). The judge ordered most of the children released under a settlement agreement that took effect in 1997. The government has until late October to comply.

More than 68,000 people, many of them children, were taken into DHS custody at or near the U.S.-Mexico border in 2014. Some were apprehended trying to cross the border, while others surrendered to Customs and Border Patrol (CBP) officials and requested asylum. Most of these people were fleeing crime and civil unrest in Central America. Immigration and Customs Enforcement (ICE) adopted a policy of detaining families headed by a female adult, including children, for the duration of any proceedings to determine if they qualify for immigration benefits. It is currently holding about 1,400 parents and children in three detention centers, one in Pennsylvania and two in Texas.

The current legal proceedings began as a class action filed by the National Center for Immigrants’ Rights (NCIR) and the National Center for Youth Law (NCYL), Flores v. Meese, No. 2:85-cv-04544 (C.D. Cal., Jul. 11, 1985). Litigation from 1985 to 1991 resulted in rulings that the Immigration and Naturalization Service (INS) policy “to strip search all juvenile aliens upon their admission to INS detention facilities, and following all visits with persons other than their attorneys” violated the Fourth Amendment. Flores v. Meese, 681 F.Supp. 665, 666 (C.D. Cal. 1988), rev’d 934 F.2d 991 (9th Cir. 1990), aff’d en banc 942 F.2d 1352 (1991). The Supreme Court reversed this ruling, finding the INS policy to be “a reasonable response to the difficult problems presented when the Service arrests unaccompanied alien juveniles.” Reno v. Flores, 507 U.S. 292, 315 (1993).

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By Yuvalr (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsApplying for immigration benefits requires opening up nearly all of your life history to scrutiny by the U.S. government. Failure to disclose requested information can have serious consequences. A federal judge recently sentenced a woman to eighteen months in prison after a jury convicted her of a single count of immigration fraud. Federal prosecutors claimed that the woman failed to disclose a prior conviction in Israel when she applied for naturalization in 2004. United States v. Odeh, No. 2:13-cr-20772, indictment (E.D. Mich., Oct. 22, 2013). Her story made headlines because of connections to terrorism, but the judge noted that immigration fraud was the key issue. After her conviction, the judge entered an order revoking her United States citizenship, meaning she could be deported when she finishes her term of incarceration.

The defendant was reportedly involved with the Popular Front for the Liberation of Palestine (PFLP) in the 1960’s. This organization, according to the government’s indictment, was one of the first Palestinian groups to use terrorism, including hijackings and bombings. The PFLP was involved in two bombings in Jerusalem in February 1969. One bombing killed two people and injured many more at a supermarket, while the other damaged the British Consulate.

The defendant was arrested and charged with five counts in connection with the bombing. In January 1970, a military court convicted her of membership in an illegal organization, participating in the supermarket bombing, and planting bombs at the British Consulate. She served more than ten years in an Israeli prison before being released in a prisoner exchange with the PFLP in 1979.
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Usnaturalization.jpgThe New York Times reported the story of a man who came to the United States from Pakistan as a child, faced possible deportation several times, and finally became a U.S. citizen after years of waiting. Mohammad Sarfaraz Hussain came to the U.S. with his mother, and remained here after she died. He became fully “Americanized,” according to the Times, but the nation’s response to the events of September 11, 2001 put him and others in a difficult position. He was required to register with the National Security Entry-Exit Registration System (NSEERS), a now-defunct program created as part of the “War on Terror.” He avoided deportation and obtained asylum. By enduring some of the worst the immigration system has to offer and becoming a citizen, Hussain offers quite the success story.

According to the Times story, Hussain’s uncle, a physician in Queens, New York, petitioned for an immigrant visa for his sister, Hussain’s mother. As her minor son, Hussain would share her immigrant status. While the petition was pending, she was diagnosed with cancer and traveled to the U.S. on a tourist visa for treatment, bringing eight year-old Hussain with her. Hussain’s mother died in New York, and he overstayed his visa to remain with his uncle. His father died of a heart attack in Pakistan when he was fifteen. Another relative petitioned for an immigrant visa for Hussain, but the September 11 attacks occurred while it was pending.

The Immigration and Naturalization Service (INS), the predecessor to U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), created NSEERS in 2002. The program required certain nationals or citizens of various countries in the Middle East, North Africa, and South Asia to register with INS. This included male nationals of Pakistan who were over the age of fifteen at the time. 67 Fed. Reg. 77136 (Dec. 16, 2002). NSEERS was heavily criticized as a form of racial profiling that was both offensive and ineffective. The Department of Homeland Security began scaling the program back as early as 2003, and effectively ended it in 2011. Hussain registered with NSEERS in early 2003, and managed to avoid deportation when massive public support led ICE, which had by then replaced INS, to exercise “prosecutorial discretion” and dismiss the case.
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