Articles Posted in Enforcement

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Dream ActivistJust over five years ago, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program, which allowed certain undocumented immigrants who had been brought to the United States as children to remain here. The idea behind the program was that people brought here as children, who had no say in the matter, and who have demonstrated commitment to certain ideals deemed particularly American, should be allowed to remain in the country they call home. The creation of DACA occurred after Congress had failed multiple times to pass legislation addressing this issue, known as the DREAM Act. Since DACA began in 2012, around 800,000 people have benefited. In early September 2017, however, the new White House administration announced plans to terminate the program. This would leave hundreds of thousands of people vulnerable to loss of work authorization and possible deportation. Multiple states have filed suit to challenge the termination of the program, and they have been joined by a group of DACA beneficiaries in Garcia, et al. v. United States, et al., No. 3:17-cv-05380, complaint (N.D. Cal., Sep. 18, 2017).

President Obama first announced DACA on June 15, 2012. At that time, Congress had considered but not enacted the Development, Relief, and Education for Alien Minors (DREAM) Act three times. In order to qualify for DACA protection, applicants had to have entered the U.S. as children and have been present in this country for at least five years. They must not have a felony criminal record, and they must have either attended college or served in the U.S. military. DACA status was initially valid for two years, and it has been subject to renewal several times. DACA beneficiaries are also eligible for work authorization.

On September 5, 2017, the White House announced that it would end the DACA program after a six-month period. The announcement included a request to Congress to enact legislation making DACA protections a formal part of federal immigration law. Senator Richard Durbin (D-IL) re-introduced the DREAM Act shortly afterwards, but if Congress does not act by March 2018, hundreds of thousands of DACA recipients—often known as “Dreamers”—could face deportation.

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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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New Melones LakeThe Immigration and Nationality Act (INA) identifies multiple grounds of inadmissibility to the U.S. These include criminal history, national security concerns, prior immigration violations, and health concerns. The INA allows the government to make exceptions with regard to fraud-related activities, based on the impact inadmissibility or removal would have on relatives in the U.S. The Third Circuit Court of Appeals in New Jersey recently reviewed the procedures for this type of waiver in Park v. Atty. Gen., 846 F.3d 645 (3rd Cir. 2017). This issue is unlikely to affect most prospective New Jersey immigrants, but it is important information to consider when planning a visa application.

A “§ 212(i) waiver of inadmissibility,” named for the section of the INA that defines it, applies to individuals previously held to be inadmissible for fraud, willful misrepresentation of a material fact, or falsely claiming U.S. citizenship in connection with seeking an immigration-related benefit. 8 U.S.C. §§ 1182(i), (a)(6)(C). An individual seeking a waiver must first establish that they are “the spouse, son, or daughter of a United States citizen” or lawful permanent resident (LPR). Id. at § 1182(i)(1). They must then show that denying them entry to the U.S. would cause “extreme hardship” to that individual’s relatives. Id. The Department of Justice (DOJ), through the Executive Office for Immigration Review (EOIR), has discretion to decide whether to grant a waiver.

The statute specifically denies the courts jurisdiction to review DOJ decisions regarding this type of waiver. Id. at § 1182(i)(2). Within the EOIR, however, a review process is available at the Board of Immigration Appeals (BIA). Both the immigration courts and the BIA are bound by their own precedential decisions and established practices. The impact of prior decisions on the BIA was a major aspect of the appellant’s argument in Park.

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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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