Articles Posted in Enforcement

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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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Marbury v. MadisonAn ongoing dispute in immigration law, which has taken on new urgency since January, involves the question of whether local authorities are obligated to cooperate with federal officials on immigration enforcement. Numerous judges have ruled that the Constitution prohibits the federal government from requiring local officials to cooperate. A recent court ruling held that a local policy requiring cooperation with federal officials is unconstitutional. LaCroix v. Junior, Nos. F17-376, F17-1770, order (Fla. 11th Jud. Cir., Mar. 3, 2017). While Immigration and Customs Enforcement (ICE) and others often claim that this issue only pertains to undocumented immigrants, it actually has the potential to affect all immigrants, from people here on tourist visas to permanent residents with green cards, and many citizens as well.

The term “sanctuary cities” refers—often pejoratively—to local jurisdictions that do not cooperate with ICE to some extent. ICE often places “detainers” on individuals in local custody when it suspects them of immigration violations. The detainer directs local officials to hold the person until ICE can take custody of them, even if the person is otherwise entitled to release. Many cities and counties have stated that they will not detain people solely based on a detainer, unless ICE also presents a warrant or court order. Reasons cited by local officials include due process concerns regarding warrantless detainer requests and Tenth Amendment concerns relating to the different roles of the federal and local governments.

Legislative and executive actions have sought to penalize “sanctuary cities.” Recent court decisions have directly addressed this issue, and the U.S. Supreme Court has more broadly limited federal authority to direct local officials. In Printz v. United States, 521 U.S. 898 (1997), the court ruled that requiring local officials to perform duties reserved to the federal government—in that case, enforcing provisions of the federal Brady Handgun Violence Prevention Act—violates the Tenth Amendment. The Constitution expressly reserves authority over immigration to the federal government, U.S. Const. Art. I § 8, cl. 4, so Printz would certainly seem to apply to federal efforts to direct local officials.

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Algodones sand-dune-fenceThe Deferred Action for Childhood Arrivals (DACA) program, first announced in June 2012, allows undocumented immigrants who arrived in the U.S. as children to remain here and work, provided they meet certain eligibility criteria. The purpose of the program is to focus immigration enforcement priorities away from people who contribute to American society. The status of the program under the new administration, however, remains uncertain. Some recent enforcement actions have resulted in the arrest and detention of DACA beneficiaries. One such individual has filed suit against the U.S. Department of Homeland Security (DHS) and an official of its agency, Immigration and Customs Enforcement (ICE). Ramirez Medina v. Asher, No. 2:17-cv-00218, pet. for writ of habeas corpus (W.D. Wash., Feb. 13, 2017).

DACA constitutes an agreement by the federal government to refrain from immigration enforcement actions against approved individuals for a two-year period. This was made renewable for additional two-year periods in 2014 and 2016. Beneficiaries are also granted work authorization. They are not, however, granted lawful immigration status, which is outside of the president’s authority under federal immigration law. The program attracted close to a million applications, more than 700,000 of which were approved.

To be eligible, a candidate had to be under the age of thirty-one as of June 15, 2012, and had to have entered the U.S. prior to their sixteenth birthday and before June 15, 2007. They had to be physically present in the U.S. without lawful immigration status on both June 15, 2012 and the date they applied for DACA. They could not have a felony or major misdemeanor conviction, nor more than three minor misdemeanor convictions. They had to pass a national security-related background check. Finally, they had to have a high school diploma or GED, honorable discharge from the U.S. Armed Forces, or current enrollment in school.
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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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George Washington BridgeThe recent presidential election has brought a massive amount of uncertainty for immigrants, prospective immigrants, their employers, and their families. The uncertainty ranges from the new president-elect’s rhetoric regarding deportations to the future of various permanent and temporary visa programs. The extent to which local governments participate in immigration enforcement potentially affects all immigrants. The U.S. Constitution gives the federal government exclusive authority over immigration, but enforcement efforts have expanded to include local law enforcement. Many local officials have pushed back in recent years, stating that they will not actively participate in federal immigration enforcement. Multiple court decisions support this position, but it remains controversial. Cities that have taken this position are often known as “sanctuary cities,” a term that can be both descriptive and pejorative, depending on the circumstances.

Part of the problem with addressing this issue is the lack of a clear definition of a “sanctuary city.” It does not mean that anyone in such a city is “safe” from immigration enforcement. At a minimum, it means that local officials will not cooperate with simple requests from a federal agency like Immigration and Customs Enforcement (ICE). Federal immigration officials routinely review county jail rosters to check for possible immigration violations, and they place “detainers” on people they believe may be undocumented or otherwise in violation of federal immigration laws.

Congress has the sole authority “to establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. This means that the federal government has exclusive jurisdiction over immigration questions. Immigration proceedings are federal civil matters. Local courts therefore have no jurisdiction to adjudicate such questions with regard to inmates in their custody. A detainer amounts to a request that local law enforcement continue to hold a person beyond the time they would otherwise be released, until ICE can take custody of them. Many local officials are saying that they will not comply with such requests unless they are accompanied by additional legal authority, such as a warrant or court order.

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Cuauhtemoc-Hidalgo Villa-Zapata [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via FlickrThe White House’s 2012 executive action on immigration, known as Deferred Action for Childhood Arrivals (DACA), has helped hundreds of thousands of people who arrived in the U.S. as children, many of whom know no other home but here. In November 2014, President Obama announced a new executive action intended to help parents of U.S. citizens and lawful permanent residents (LPRs) who are in this country without valid immigration status. This program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), prompted a lawsuit by 26 state governments challenging it on constitutional and statutory grounds. A court granted an injunction halting the program, which a federal appellate court upheld in November 2015. A petition for certiorari by the federal government is now pending before the U.S. Supreme Court.

DACA allows people who are in the U.S. without lawful immigration status to remain here if they meet various criteria. They must have been under the age of 31 on June 15, 2012, arrived in the U.S. as a minor, and remained here continuously since 2009 or earlier. They also must be enrolled in school, have a high school diploma or equivalent, or have an honorable discharge from the U.S. Armed Forces or Coast Guard. Finally, they must not have any felony or significant misdemeanor convictions. DACA status is effective for two years, with possible renewals, and it includes work authorization. It does not confer any other specific immigration benefit or status. It is merely an agreement by the federal government to defer immigration enforcement, including deportation, while the person maintains DACA status.

At the time it was announced by the White House and the Department of Homeland Security (DHS), DAPA would allow certain parents of citizens and LPRs to remain in the country for two-year periods, again without conferring any specific immigrant status. To be eligible, an individual must have been present in the U.S. on January 1, 2010 and resided here continuously since then. As of November 20, 2014, they must have had a son or daughter who is a citizen or LPR. Finally, they cannot be categorized as an “enforcement priority” by DHS.

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tpsdave [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe U.S. Constitution gives the federal government exclusive authority over immigration law and policy. State and local governments have no direct authority to enforce immigration law, and the federal government generally cannot compel state or local agencies to do so. See Printz v. United States, 521 U.S. 898 (1997). In certain cases, however, federal immigration enforcement requires local government input. The New Jersey Supreme Court recently ruled on two consolidated cases from the Family Division that involved children seeking Special Immigrant Juvenile (SIJ) status. H.S.P. v. J.K., et al., Nos. 074241, 074527, A-114 Sept. Term 2013, A-117 Sept. Term 2013, slip op. (N.J., Aug. 26, 2015). The court found that New Jersey family courts lack jurisdiction to rule on actual immigration benefits, but they play a limited role in the immigration process because of their expertise in family law and child welfare.

Federal immigration law allows “special immigrant” status for unmarried children under the age of 21, for whom a return to their country of origin “would not be in [their] best interest.” 8 U.S.C. § 1101(a)(27)(J). U.S. Citizenship and Immigration Services (USCIS) makes a determination as to whether a child qualifies for SIJ status. It must find that the child has been declared a dependent of a state-level juvenile court, that this court has ruled that reunification with the child’s parents is not viable, that it would not be in the child’s best interests to be removed from the U.S., and that this situation is likely to continue until the child reaches the age of majority. 8 C.F.R. § 204.11. This requires certain specific findings from a state juvenile court. Once a child receives SIJ status, they may be able to obtain permanent residency and naturalization.

The two cases consolidated in the H.S.P. ruling involve child custody proceedings. In the first case, the child came to the U.S. from India without documentation in 2011 at the age of 16. When he was 15, he took a construction job working 75 hours per week to support his mother, who was too sick to work. When he also became sick, his mother sent him to the U.S. to live with her brother, H.S.P. In 2012, H.S.P. petitioned for legal custody of the child and requested the findings needed to obtain SIJ status. The family court declined to make those findings, holding that neither parent had “abandoned” the child.

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OpenClips [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayImmigration law allows U.S. citizens and permanent residents to petition for immigrant visas for family members. Certain family members of U.S. citizens, including spouses, are not subject to any numerical restriction. Relatives of permanent residents fall into various preference categories and may face substantially longer wait periods before obtaining a visa. Once a family member has an immigrant visa, they can begin the process of applying to adjust status to permanent residence. Since marriage to a U.S. citizen is one of the fastest routes to obtaining a green card, immigration authorities are wary of fraud, such as through “sham marriages” between a U.S. citizen and a prospective immigrant. Two recent cases from New Jersey and New York illustrate how federal and state officials investigate and handle these types of cases.

U.S. Citizenship and Immigration Services (USCIS) places a high priority on detecting marriage fraud in immigrant visa petitions and applications for adjustment of status. They may require a substantial amount of evidence establishing that a marriage is genuine, and USCIS inspectors have broad discretion to determine whether a marriage is genuine or not. If an immigrant was married for less than two years at the time their application for permanent residence is approved, they receive “conditional permanent residence.” They may petition to remove the conditions after two years by showing that they are still married, that they are divorced or widowed, or that they were subjected to domestic abuse or other extreme hardship. A “bad” marriage is not necessarily a fraudulent one. The key question is whether the couple entered into the marriage primarily for the immigration benefits.

The head of a New Jersey immigration consulting firm was sentenced to two years in prison in March 2015, after pleading guilty to three charges arising from various acts of immigration and marriage fraud. United States v. Poku, No. 1:14-cr-00492, judgment (D.N.J., Mar. 30, 2015). The defendant was accused of creating sham marriages for numerous individuals, mostly from Ghana, to help them obtain immigrant visas and green cards. According to the government, he hired people to pose as spouses in USCIS interviews, forged documents demonstrating cohabitation in the U.S., and forged Ghanaian government documents. He pleaded guilty to one count of illegally inducing people to come to the U.S. without legal documentation for commercial advantage. 8 U.S.C. §§ 1324(a)(1)(A)(iv), (a)(1)(B)(1). He also pleaded guilty to two counts of money laundering and wire fraud.

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By Dabit100 / David Torres Costales  Pictures of Ecuador (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsThe Deferred Action for Childhood Arrivals (DACA) program, first announced by President Obama in 2012, allows undocumented immigrants who arrived in the U.S. as children, and who have graduated high school or served in the military, to remain in the U.S. and obtain work authorization. The program represents an agreement by immigration officials to defer any enforcement action. One question that seems to have received little public attention is whether a DACA recipient may leave the U.S. temporarily without jeopardizing their deferral. Any DACA recipient wanting to leave the U.S. must first obtain advance parole from U.S. Citizenship and Immigration Services (USCIS), a process that can unfortunately be both cumbersome and uncertain.

An article published by Vox in April 2015 describes the difficulties faced by a DACA recipient, who came to the U.S. from Ecuador at the age of eight, obtaining approval to travel to Ecuador for professional purposes. The woman works as an advocate for undocumented immigrant students, helps administer a $25 million scholarship fund, and frequently receives invitations to give speeches all over the country. When she was asked to speak at two events in Ecuador, she applied to USCIS for advance parole.

Advance parole is essentially an acknowledgment from the federal government that the recipient may leave the country without giving up their “continuous presence” in the U.S. Since DACA recipients are, by definition, potentially subject to deportation, voluntarily leaving the country could mean that they will not be allowed back in. Two immediate problems present themselves for people in the DACA program: USCIS can be very slow to process advance parole requests, and the applicability of advance parole to DACA is not at all settled.

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