San Francisco Immigration Lawyer Blog

Last year, the Obama Administration announced that it would pursue a different policy with respect to the 300,000 or so deportation cases languishing in the federal court system. Immigrants with "low priority" cases may be granted a stay, their immigration case would be "suspended," and they would be allowed to work in the U.S. To be clear, this is not amnesty because the stay could be revoked at any time and would not provide a "path to citizenship." They would not be able to adjust status to a lawful permanent resident and ultimately naturalize to become a U.S. citizen. "Low priority" immigrants in deportation proceedings are those that pose no threat to public safety or national interest. For example, a "low priority" immigrant would have no criminal convictions or at least no prior convictions for crimes of moral turpitude or aggravated felonies. It would also depend on how long they've been in the U.S. and whether or not they are students.

Unfortunate for many of those "low priority" immigrants in deportation proceedings, the Department of Homeland Security (DHS) didn't elaborate any further on their sudden policy change. DHS didn't provide the specific criteria for which an immigrant would qualify as a "low priority" case other than the aforementioned requirements. Nor did DHS explain whether the new policy change would be retroactive. In short, could immigrants who already have deportation orders from the judge appeal that order and request that the new policy change be applied to their case?

This brings us to March 19th - "judgment day" for the federal government. The immigration courts, specifically the 9th Circuit Court of Appeals, gave DHS, U.S. Immigration and Customs Enforcement (ICE), and the Department of Justice (DOJ) until March 19th to hammer out the details of their policy change. On that day, the government will hopefully provide guidance to the federal courts as to what to do with the many pending immigration cases and the potential appeals of deportation orders that could sprout up.

The government said that it intends to review 300,000 current cases. Although it seems like a great number, when compared to the total 1.6 million immigration cases currently in the court system, we're only considering the tip of the iceberg.

Over the past few months, I have received a couple of calls from people asking for cancellation of removal. When I tell them that cancellation of removal is only available in deportation proceedings, they ask, "So should I surrender myself to ICE?"

My first thought is absolutely positively not. You've done so much and sacrificed a great deal to come to and make a life in the U.S. To surrender yourself to Immigration and Customs Enforcement (ICE) for the slim hope of obtaining cancellation of removal doesn't sound like a good idea. Yet, many attorneys will tell an undocumented immigrant to do so. Only if your case is solid should you actually put yourself into deportation proceedings. For example, your wife is a stay-at-home mother of four minor children - one of which has a terminal illness that requires your presence and constant care, not to mention the money from your many jobs. Thus, deportation would mean an extreme hardship to your family of five.

Cancellation of removal was created in 1996 as a remedy for certain immigrants in deportation proceedings who had been in the U.S. for a long period of time and had "good moral character." Some immigrants must also prove it would be a great hardship to their relatives if the immigrant were deported. Cancellation of removal is available for lawful permanent residents and undocumented immigrants.

Strangely, some people might be told to go home if they try to surrender at certain ICE offices. The current rumor is that ICE offices are turning away people who ask to be put into deportation proceedings. Sometimes ICE will cite to limited resources or too much paperwork as reasons why they won't accept walk-ins. The downside to ICE's reaction is that many people will continue to live in undocumented status, despite their desire to clear their status.

My humble suggestion is that we make cancellation of removal available as an "affirmative request." Currently, it is only a defense to deportation, but if we allow undocumented individuals (and lawful permanent residents) to affirmatively request cancellation of removal through the application process, then we remove the extreme risk of actual deportation from the equation. Of course, the U.S. Citizenship and Immigration Services (USCIS) officer who reviews the application will still have the choice of denying the application and sending the case to deportation proceedings. But, at least immigrants will have a chance at freedom before a USCIS officer before appearing in immigration court "under the sword of Damocles."

When it comes to family members, people will do almost anything to ensure unity, be it a long lost cousin or their mother. When they hear that one family member might arrive by Christmas but another might arrive by Christmas 2014, they start to bristle. However, that is the way of things with the U.S. Department of Homeland Security (DHS).

The difference lies in the word "immediate." Immediate family members of a U.S. citizen include spouses, unmarried children under the age of 21 years (at the time of application), and parents. That is all. DHS doesn't care that you and your sister are as close as two peas in a pod or that Aunt Sue was like a mother to you. If they are not technically immediate relatives, then they will be waiting awhile before they can join you in the U.S. Once the immediate family relationship has been properly established with DHS and the proper visa has been obtained (assuming the family member is not present in the U.S.), then the immediate family member may travel to the U.S. and apply for adjustment of status to a permanent resident, a green card holder. For immediate family members, there is always a visa waiting for them.

Enter the "family preference categories." If your family member is not lucky enough to be an immediate family member, then hopefully they will fit into a family preference category. The categories are unmarried children over the age of 21 (includes 21 and a half years old), married children of any age, and brothers and sisters (only if the U.S. citizen is at least 21 years of age).

There is a limited number of visas available for the family preference categories; hence, the much talked of wait time for a visa. The family member/immigrant must wait for their "priority date" to become current. Most priority dates are found on the immigrant's notice of action, Form I-797. The immigrant receives the notice of action in the mail once the immigration process has commenced. Once their priority date becomes current, they are free to immigrant to the U.S. to be admitted as a permanent resident or "adjust status" to a permanent resident if already within the U.S. Wait times vary per county of origin. Look to the Visa Bulletin to find out which family petitions are currently being processed. For example, currently a brother or sister (of a U.S. citizen) wanting to emigrate to the U.S. from the Philippines whose petition to establish the relationship was filed in 1988 may now claim their visa to immigrate to the U.S. or adjust status to a permanent resident if already in the U.S. They had to wait over 22 years to see the arches of the Golden Gate Bridge! DHS claims its goal in most immigration cases is family unity, but 22 years is a long time to wait for unity.

Continue reading "Family Visas: How to bring family members to San Francisco?" »

On Tuesday, December 13, 2011, the San Francisco Board of Supervisors approved a resolution urging the city of San Francisco to ignore federal efforts to deport undocumented immigrants who live in the city. San Francisco joins a small group of Californian cities, such as Los Angeles , who have decided to take a stand against the federal government's tough stance on illegal immigration. (See our discussion about the Los Angeles City Council .)

Federal efforts to curb illegal immigration have taken form in a new program, the Secure Communities program (also known by its more intimidating name, S-Com). S-Com allows Immigration and Customs Enforcement (ICE) officers to zero in on undocumented immigrants who are in jail for one reason or another. S-Com also requires county jails to put a "hold" on incarcerated people that ICE agents suspect are undocumented immigrants. For example, even if one's criminal case is dismissed for lack of evidence (or because the arresting police officer made a mistake), the "hold" (also known as a detainer) will keep that person in jail until ICE collects them (which takes up to a week in some cases) or until ICE is satisfied that the person legally belongs in the U.S. In most cases, an ICE hold usually results in the incarcerated person being carted off to a federal detention center. What is most pernicious about S-Com is that it incarcerates people who have been arrested but not convicted of any crimes. A U.S. citizen who is charged with petty theft, for example, will most likely be able to fight their criminal case while out of custody. However, because of S-Com, an undocumented immigrant will have to fight their case from the confines of jail. And even if their criminal charge is ultimately dismissed (or they are found not guilty by a jury), they will still be locked up in jail at the mercy of the ICE hold.

Seldom do ICE holds end in the release of the incarcerated person - even if that person has a legal right to be present in the U.S. I remember one particular case in which my permanent resident client, Terry (name changed), was charged with a DUI. It was a simple DUI with a blood alcohol level of 0.11% - not especially high considering that the legal blood alcohol level is 0.7%. Despite the fact that he had valid documentation indicating he could legally remain in the U.S., an ICE hold was placed on him. Terry was forced to fight his criminal charges from jail whereas many of my other U.S. citizen clients, charged with much more serious misdemeanors, were allowed to fight their cases while out of custody. And, to top it all, a first-time DUI conviction in California will usually not result in the deportation of the non-U.S. citizen. Even if Terry had been convicted of the DUI, the DUI conviction would not have been grounds to initiate deportation proceedings against him. So, why place an ICE hold on Terry? I suspect ICE intentionally overstepped their bounds when they asked the county jail to hold him in custody. That is not surprising, considering ICE is a powerful branch of the U.S. Department of Homeland Security, and who, besides Terry and myself, would care if one man had to stay in custody longer than what was proper and legal.

Certainly situations like that of Antonio Montejano of Los Angeles, California can be avoided. As reported in The New York Times on December 13, 2011, Mr. Montejano was holiday shopping with his four children when he was arrested by Santa Monica police officers and put in jail for allegedly shoplifting a $10 bottle of cologne. (Mr. Montejano has no criminal record. In San Francisco County, Mr. Montejano would most likely have been charged with only an infraction, released on a citation, or ticket, and ordered to pay a fine of $100.) Instead, Mr. Montejano was booked into the Santa Monica jail and an ICE hold was placed on him - hindering his efforts to post bail and obtain his release. If you're wondering what the problem is, then you've probably assumed that Mr. Montejano is just another undocumented immigrant. You would be wrong. Mr. Montejano is a U.S. citizen, and ICE made a grievous error when it, through S-Com, ordered the Santa Monica jail to place an ICE hold on Mr. Montejano that resulted in his continued incarceration for 5 days. S-Com is not only unfair and pernicious, but it also doesn't work.

Authored by SAS

On November 17th, 2011, police officers from Oakland, California, a city in the San Francisco Bay Area, arrested Francisco Ramos Stierle, an immigrant from Mexico, for illegally protesting during the "Occupy Oakland" protests. According to an article, authored by Matt O'Brien, in the Oakland Tribune, Mr. Stierle was meditating outside Oakland City Hall immediately before Oakland police arrested him. The Alameda County District Attorney's Office dropped all charges against the Mr. Stierle, but, from his fingerprints, Mr. Stierle was flagged as deportable. U.S. Immigration and Customs Enforcement (ICE) then requested that a hold be placed on Mr. Stierle. A hold would keep him in custody in spite of his technical release on his own recognizance or the dismissal of his criminal charges. Mr. Stierle now faces a court date in federal immigration court where he must prove that he has a legal basis to remain in the U.S. All of this from meditating in front of City Hall.

Does meditating in front of City Hall during "Occupy Oakland" amount to enough probable cause to arrest someone? Actually, that question is now irrelevant in Mr. Stierle's case. Everybody is probably familiar with the rule that probable cause is required before a person can be arrested for a crime. Specifically, before the arrest, the police officer must have probable cause to believe that a crime has occurred and that the person arrested has committed that crime. An arrest without probable cause is an unlawful arrest. And, if the officer searches the person and finds contraband on the person, then the judge, under the Fourth Amendment of the U.S. Constitution, should suppress the contraband when the search is the result of an unlawful arrest. In some cases, most notably with drug charges, suppression of the contraband (drugs) significantly weakens the prosecution's case forcing the District Attorney to dismiss the case. The defendant is then released. Also, if the officer lacked probable cause to arrest the person for the crime, then the prosecution will most likely not be able to prove beyond a reasonable doubt that the person actually committed the crime. The prosecution might then dismiss the case or a jury might acquit the defendant of the charge. In both cases, the defendant would be released.

However, what happens when the defendant is not a citizen of the United States and subject to an unlawful arrest or an unlawful search by a police officer? The non-U.S. citizen/defendant will most likely remain in custody and will face possible deportation (removal) proceedings. The Fourth Amendment of the U.S. Constitution only has one remedy for an unlawful arrest or search: to suppress evidence - drugs, guns, etc. The Fourth Amendment cannot be used to suppress an arrest or a person even if that arrest was unlawful or if that person was subject to an unlawful arrest or search. Whereas, in California criminal court, the prosecution must prove the crime for which the defendant was arrested, in federal immigration court, the U.S. Attorney does not have to prove anything. Instead, the burden of proof lies with the non-U.S. citizen to prove that they lawfully may remain in the U.S. So where is Mr. Stierle's remedy for his unlawful arrest? Probably not in our U.S. Constitution.

Authored by SAS

Bernard Gari became a U.S. citizen through naturalization on October 4th, 1989. Thereafter, he was able to vote in the U.S. elections, find lawful employment, and bask in the glow of the red, white, and blue flag. However, the U.S. government will probably revoke his citizenship in the near future. Can it do that? Many people are under the impression that once they become a U.S. citizen through naturalization, then that's it - they are forever in the "Promised Land" and nothing they do or say in the future will affect their status. But, that is not the case, especially for Mr. Gari. He became a citizen in 1989, but, because of something he said in 1993, the U.S. government will probably strip him of his citizenship. (People v. Gari (2011) G044493.) (Clicking on this link will allow your computer to download the text of the Court's opinion in People v. Gari.)

Naturalization, in general

Naturalization is a common practice in immigration law. It allows a foreign-born individual to become a citizen of the U.S. However, most immigrants must prove their worthiness, among other requirements, before they become a citizen. Generally, before an immigrant can become a U.S. citizen through naturalization, he/she must, at the time of the application, (1) with some exceptions, be a lawful permanent resident; (2) be 18 years of age or older; (3) meet continuous residence and physical presence requirements; (4) have good moral character for 5 years prior to filing for naturalization and up to the time of admission; (5) show attachment to the U.S. Constitution and support to the general happiness and well-being of the U.S., (6) be willing to bear arms (i.e., fight in our wars) or support our wars in some other fashion; (7) be admissible; and (8) demonstrate some knowledge of the English language by taking a test.

Returning to Mr. Gari, technically, he will not lose his citizenship because he failed to meet one of these requirements. At the time of his application, he was able to show or attest to each and every one of these requirements. However, he made the mistake of saying something later in life that was in direct contravention of what he attested to during the naturalization process.

There are actually many ways in which a naturalized U.S. citizenship may lose his or her citizenship. The appropriate nomenclature is "revocation of naturalization" or "denaturalization." First off, one may voluntarily give it up through expatriation - renouncing the U.S. and moving to another country. If a naturalized citizen becomes a member of a subversive or an anarchist organization within 5 years of naturalization, then that is good cause to revoke naturalization because the person never really espoused the principles of the U.S. and its Constitution. Also, if someone lied or committed fraud with respect to their application for naturalization, then that is grounds for revocation of naturalization.

So, really, what did Mr. Gari do?

In May 1993, well after Mr. Gari had been a U.S. citizen, he pleaded guilty to 10 counts of child molestation. If you are thinking that the reason why he might lose his citizenship is because he admitted to such heinous crimes then you are wrong. Every day people admit to committing crimes like theft, rape, murder, but they don't lose their citizenship. Becoming a citizen of the U.S. means more than just being able to vote for your favorite candidate, it means you can thereafter commit almost all of the crimes you want and still remain in the U.S. But, there is one narrow exception to that rule, and criminal defense attorneys should be aware of this exception. Mr. Bari unfortunately admitted to committing child molestation on five separate occasions between January 1, 1989 and April 21, 1991. But, Mr. Bari also told U.S. Immigration and Citizenship Services (USCIS) that he had been a person of good moral character for the past 5 years before he became a citizen. Remember, one of the requirements for naturalization is good moral character for the past 5 years before application and admission. Mr. Bari lied to USCIS during the naturalization process. He didn't tell USCIS that, actually, no, he hadn't been a person of good moral character in the last 5 years.

*Romeo and Juliet, by William Shakespeare

Continue reading "San Francisco Criminal Defense Attorneys Beware: Citizenship, the Inconstant Moon*" »

If you know anything about immigration law and the process by which to obtain a visa, then you probably are familiar with the B-2 tourist visa or the H-1B visa, which helps immigrants come to the U.S. to work for long periods of time. But, do you know anything about the U visa? If an undocumented immigrant has suffered substantial physical or emotional abuse as the result of being the victim of a "qualifying criminal activity," then the undocumented immigrant (referred to as the victim) may qualify for a U visa. There are other requirements the victim must meet, such as being helpful to the investigation or the prosecution and being admissible into the U.S. And, the "qualifying criminal activity" cannot have occurred in the victim's home country; it must have occurred in the U.S. or its territories or possessions.

What is a qualifying criminal activity?

This is a fancy phrase for saying a crime that falls into a category, that category being a whole slew of crimes. The most common "qualifying criminal activities" are domestic violence and felonious assault. Specifically, in California, the most common "qualifying criminal activities" are Penal Code Section 243(e)(1) - Battery in a domestic relationship, Penal Code Section 273.5(a) - Battery causing a corporal injury in a domestic relationship, and Penal Code Section 245(a)(1) - Assault with a deadly weapon or with force likely to cause great bodily injury. However, many other crimes are eligible such as abduction, blackmail, perjury, sexual assault, involuntary servitude, murder, manslaughter, robbery, hostage taking, false imprisonment, etc.

What do the critics say?

Some critics of the U visa argue that it encourages undocumented immigrants to make up stories about being victimized. Other critics argue that it is another form of amnesty - granting immigration status to someone who didn't even earn it. And then there is always the random person who says, "giving a visa to a victim of a crime sounds so random and arbitrary, like giving visas to lottery winners." (If that particular process sounds familiar, then it should. Every year almost 15 million people from designated areas of the world vie for 1 of the 55,000 visas available in what is officially known as the Diversity Visa Program.)

Regarding the critique, there is a process that serves to weed out the falsehoods. When the victim files their U visa application, they file, among other documents, Form I-918 with the proper service center. Along with Form I-918, there is also a smaller and more compact form - Form I-918 Supplement B (sometimes referred to as Supp B.) The Supp B form is usually completed by law enforcement. Law enforcement? Yes, in order to obtain a U visa, you must be "certified" by law enforcement. Certification is then conveyed through the Supp B form. That does not mean that the police officer or the local district attorney comes over to your house and interviews you about your "victim status." Certification of a Supp B involves law enforcement or the district attorney's office looking for and reviewing your police report (that you hopefully filed when the crime occurred), running a background check on you, and sometimes seeking out your cooperation during the prosecution of your abuser. Sometimes, it's not enough if you were continuously abused but never called the police.

Because the U visa process can be susceptible to falsehoods, certification by law enforcement is a must. Calling the police immediately after the crime occurred, aiding the police officers with their investigation, returning that deputy district attorney's call are all musts. Aiding police officers doesn't mean you have to ride with them in their patrol cars everyday looking for your abuser, but it does involve giving the officers a good description and the location of your abuser, returning their phone calls, and, well, cooperating.

Continue reading "The U Visa: Visas for Victims" »

Jennifer Lopez is in a battle for the American Dream. She is a 21 year-old Floridian who would be Dream Act eligible if she was not in deportation proceedings. She was brought here as a child and currently cares for her critically ill and handicapped siblings, both of whom are United States Citizens. Most importantly she has no criminal background. So why is she in deportation proceedings? And why is a Californian immigration blogger writing about her? Because this can happen to anyone who is undocumented, at any time, and in any state.

The rules have changed: right now there is a moratorium on deporting undocumented people who do not have criminal records. There is just not enough resources for Immigration and Customs Enforcement (ICE) to deport every undocumented person living in the United States. Unfortunately, just like everything else there are cracks people fall through. One example is Miss Lopez. She was identified and removal proceedings were started after a routine traffic stop in which she was not arrested for any charges.

The new United States Immigration and Customs Enforcement (ICE) deportation guidelines state that someone exactly like Miss Lopez should not have removal proceedings continue against them. She also does not meet the other criteria for deportation: pose a threat to public safety and national security; is a repeat immigration law violator, or is prioritized for removal.

There are supposed to be safeguards in place to keep Miss Lopez from having to go before an Immigration Judge. On June 17, 2011 a memorandum was issued by John Morton, Director of ICE to all ICE Field Office Directors, Special Agents in Charge, and Chief Counsel stating that they are to use their prosecutorial discretion to determine who should stay in deportation proceedings. Director Morton listed factors to be taken into account on a case-by-case basis. The totality of the circumstances determined whether deportation proceedings should continue or end. Factors in Miss Lopez's favor (these are factors specifically listed by Director Morton): She has been in the United States for the last 10 years; she arrived in the United States as a minor; she received her G.E.D. here in the United States; she has no criminal record; she is the primary caregiver for her siblings who are disabled; and her mother holds United States resident status.

Miss Lopez has fallen though the cracks because prosecutorial discretion was not used in her case. Now she waits for a hearing in front of an Immigration Judge to determine if she will be able to stay with her family. Now we will waste tax payer money, precious court time and staff, and government resources on a case that should have been dismissed from the outset.

Sign the petition to dismiss Miss Lopez's case at www.change.org.

Authored by MWB

Sometimes the truth can seem insufficient. Embellishment is tempting. Besides, your story is most likely unverifiable. The judge will hardly be traveling to Haiti to check your facts. So, why not just make your story a bit more visceral? Exaggerate a few salient details? Well, for two very important reasons. Number one: this is a decision that will affect the rest of your life. And you want it to be predicated on a lie? Number two: you will probably be caught in that lie. And, even though, in principle, you probably deserve asylum, you won't get it because that little white lie tainted the rest of your story.

A recent decision by the Sixth Circuit Court of Appeals emphasizes how utterly crucial it is to tell the truth when seeking asylum. On September 7, 2011, in Jacques v. Holder, the Sixth Circuit Court of Appeals affirmed the decision by the Board of Immigration Appeals (BIA), which affirmed the decision of the original Immigration Judge, to deny asylum, withholding of removal, and any requests under the Convention Against Torture to a Haitian citizen, Rochenel Petit Jacques. The original Immigration Judge's reasoning was this: the appellant Jacques "was not credible . . .". The appellant appealed, and the case went to the BIA. The BIA affirmed the Immigration Judge's decision because "[t]he credibility finding goes to the heart of Jacques's claim that he has a well-founded fear of persecution if he returns to Haiti." In short, the BIA did not believe the appellant either. Sadly, the BIA also stated that "[o]n the other hand, if Jacques is telling the truth, his persecution claims merit a closer look . . .".

Too Many Stories

So, why did the Immigration Judge think that Mr. Jacques was not credible? The Immigration Judge based their decision on the "lack of expected details, and inconsistencies which are present in the record and were not adequately explained, which go to the heart of [the appellant's] claim and appear to be embellishments." (Emphases added.) Mr. Jacques submitted story #1 in the initial asylum application but then, blaming his interpreter, recanted some of what was contained in the initial asylum application. Story #1 included a first-hand narrative of the murder of Mr. Jacques's brother. What was most compelling about the changes in the story was that initially Mr. Jacques claimed to be present during the murder, and in story #2 he claimed not to be present during the murder but was later told by his neighbors what had happened. Compare first-hand personal knowledge about an event versus second-hand hearsay about the same event. This is the difference between night and day in most courts. The former is admissible in almost all courts, while the latter must adhere to strict hearsay exceptions and exclusions (not to mention the Confrontation Clause of the U.S. Constitution, a veritable federal firewall.)

The tricky part about asylum requests is that the asylee might find himself or herself not twice but thrice telling their story in an application, or to an asylum officer, or to the judge. If the asylee lies or embellishes any details of their account, then they will have to remember those deviations each and every time they tell their story. At some point, they'll make a slip, and a vigilant judge or asylum officer will take notice.

The dangers of lying are ever more apparent with the sad case of Nafissatou Diallo, also known, ironically, as the DSK maid. Ms. Diallo stated to authorities that, on May 14, 2011, she was sexually assaulted by the then managing director of the International Monetary Fund, Dominique Strauss-Kahn. There were apparently no other witnesses to the alleged assault. Unfortunately, Ms. Diallo had earlier made the mistake of lying on her asylum application about a very traumatic event, a gang rape by soldiers in her native country of Guinea. The lie on her asylum application blew up in her face and probably dashed any hopes of her becoming a U.S. citizen. It also was partly responsible for blowing up the sexual assault case against Dominique Strauss-Kahn. Prosecutors in that case argue that if you lie once, then you've probably lied before and will most likely lie in the future. Not only did Ms. Diallo possibly lose her dreams of becoming a U.S. citizen, she also lost her chance at justice.

Continue reading "Truth in Asylum Applications" »

A NEW PLAN

On August 18, 2011, the Obama Administration announced that the Department of Homeland Security (DHS) would be reviewing some 300,000 current deportation (removal) cases on a case-by-case basis with the intention of possibly dismissing some of those cases based on a number of factors such as education, date of entry, criminal record, etc. (Click here for CNN's article on the announcement.) After the announcement, many opponents were quick to label this new plan as "amnesty." Others said that the executive branch of the government (through DHS) is creating policy - a job that should be done by Congress. Hmmm, it took Congress about seven months to do something about the debt-ceiling problem and that was to save our country's collective skin. How long would it take Congress to finally agree on immigration reform? That's a rhetorical question. The obvious answer is a lot longer than seven months - probably longer than a year. And in the meantime, more and more states will be enacting strict immigration laws (a la Arizona and Alabama) in direct contravention of (1) the Supremacy Clause of the U.S. Constitution (Article VI, clause 2), (2) the Naturalization Clause of the U.S. Constitution (Article 1, clause 4), and (3) the U.S. Supreme Court in Chae Chan Ping v. U.S. (1889) 130 U.S. 581 and Fong Yue Ting (1893) 149 U.S. 698 .

But, what is amnesty? Merriam-Webster defines amnesty as "the authority (as a government) by which pardon is granted to a large group of individuals." Granting pardon to illegal immigrants is tantamount to giving them legal status as residents or citizens irrespective of current immigration status. Dismissing their deportation cases does not confer to illegal immigrants legal status. Instead, it saves the discussion for another day. Their immigration status is still listed as illegal. They are still deportable, but, for now, the government will table the issue of deportation - of whether they deserve legal immigration status - for the future. Because we can all agree that our current immigration laws are lacking, messy, and in sore need of overhaul. So, is this amnesty? No. Postponement of the inevitable? Maybe.

ARIZONA

Arizona is mad. Why are they mad? I thought the Arizona state legislature passed their strict immigration laws because the federal government was ignoring the problems of immigration. Well, the federal government has spoken. They didn't promulgate a collection of essays about their views and plans for immigration reform or enforcement, but DHS did give us a general idea about its plans. The federal government's plan does not miraculously cure our nation's immigration woes, but it could potentially decide the fate of certain illegal immigrants in our country - 300,000 of them to be somewhat exact. Isn't that what Arizona wanted - to goad the federal government to act on illegal immigration? Maybe Arizona is angry because they don't agree with the federal government's actions. Arizona wanted the federal government to get more involved, but not necessarily in that way. It's the classic case of having cake with the inability to eat it.

Arizona governor Jan Brewer called the new plan "backdoor amnesty." She states, "we're a country of laws, we believe in the rule of law, . . .". Continuing the theme of following the rules, Sheriff Paul Babeau (of Pinal County, Arizona) says "[t]his is about the rule of law and the king is not above the law, and the rule of law is king in America." Well, the state of Arizona is not above the rule of law. Yet, the Arizona legislature completely ignored the U.S. Constitution when it enacted their version of strict immigration laws. Didn't they learn about federal preemption in their Constitution class? Doesn't the Supremacy clause ring a bell? In short, there are some areas of law over which the federal government, directly under the U.S. Constitution or through implication, has dominion. A state law or county ordinance that regulates this particular area of law will then be preempted by federal law or repealed on the basis that the federal government has complete sovereignty over this particular area of law. By virtue of the Naturalization Clause of the U.S. Constitution, immigration is considered an area of law over which the federal government has complete sovereignty. If you don't believe me, then look to the Supreme Court cases of Chae Chan Ping v. U.S. and Fong Yue Ting v. U.S., both decided long ago in the 1800s. So, I say to the Arizona legislature - "You've been preempted!"

Welcome back to the limitations of the current version of the DREAM Act. (When I refer to the DREAM Act, I am referring to S.952, also known as the DREAM Act of 2011. Click here if you want to download a copy of the DREAM Act of 2011.) As mentioned in the title, there is hope. However, before I address that small bit of hope, I must first point out two more limitations of the DREAM Act.

Continuously Present

You must be continuously present in the U.S. for a narrow period of time. The DREAM Act provides that the "alien has been continuously physically present in the United States since the date that is 5 years before the date of the enactment of this Act...". (See Section 3(b)(1)(A) of the DREAM Act of 2011.) Let's assume, for argument's sake, that the DREAM Act is enacted on January 1, 2012 and takes effect later that year. Only people who have continuously been in the U.S. since January 1, 2007 fall into that narrow period of time. Let's say Little Lorie entered the U.S. illegally as a child (14 years of age) with her parents on February 1, 2007. She attended the wonderful and prestigious Lowell High School in San Francisco, California, graduated from that fine institution on June 15, 2012, and then considered her options. She could go to college, but that would be expensive for a non-resident (and undocumented immigrant) of San Francisco, California. She could continue to (illegally) stay in the U.S. and (illegally) find employment. But, Lorrie wants to abide by the law as much as possible. Can she benefit from the DREAM Act? No! She missed the window of opportunity by one month. Perhaps if her parents hadn't been so obsessed with celebrating the new year in their home town, she might have made it to the U.S. before January 1, 2007.

The point of this story is to illustrate a somewhat arbitrary and pointless part of the DREAM Act. This is endemic of most U.S. immigration laws. It seems that Congress only regards the problems of immigration in the U.S. as a snapshot view. Congress seeks only to aid a small group of people who neatly fit into a window of time. The DREAM Act might take care of most immigrants in the U.S. now, but what about the immigrants five years from now? Where is their DREAM Act? Instead, we must view immigration as an ongoing issue in our present as well as in our future. Often, you will encounter a bit of immigration law enacted years ago, but only available for people who entered the U.S. or filed immigration papers with the federal government before a certain date in the 70s or 80s. What use are those laws in 2011?

The Age Cap: Too Old at 36

The DREAM Act provides that once you reach the age of 36, you are no longer eligible to apply. The applicant must be "35 years of age or younger on the date of the enactment of this Act." (See Section 3(b)(1)(F) of the Dream Act of 2011.) There's another reason why undocumented immigrant Jose Antonio Vargas (a Pulitzer Prize winning journalist formerly with the Washington Post) is so hot to trot to pass the DREAM Act, besides the obvious reason. (See Mr. Vargas' article published in the New York Times My Life as an Undocumented Immigrant.) As of today, he is 30 years old. In approximately 6 years (on his 36th birthday), he will no longer be eligible for the benefits of the DREAM Act. If some of you are saying, "well, 6 years is a lot of time," then consider that the DREAM Act has been debated and kicked around for almost a decade now. And what has been accomplished? It barely passed the House of Representatives during the lame duck session in December 2010. And the DREAM Act was almost 10 years old at that time. Does that mean we have to wait another 10 years or so for the Democrats to take over the House again? This assumes that the current majority of Republicans in the House of Representatives will either ignore immigration completely or will rewrite the DREAM Act to the NIGHTMARE Act. The bottom line is that there are many undocumented immigrants out there who have good moral character, received their high school diploma in the U.S., have been continuously present in the U.S. for 5 or more years, haven't committed any inadmissible or deportable offenses, and yet happen to be approaching that fine age of 36. Those are the people that are sweating bullets each time the current version of the DREAM Act fails to become law. For them, each day that passes without the DREAM Act is another step towards ineligibility. Arbitrary? Yes. Will the age cap change for the better? Probably not. When the House of Representatives passed a version of the DREAM Act, the age cap was 30. So it could be worse...

If you are now thoroughly dejected about the current version of the DREAM Act, then meet Sergio C. Garcia - a Chico State graduate, a law school graduate, a successful California Bar exam taker, and currently an undocumented immigrant residing in the U.S. In the words of Scott Herhold (author of the San Jose Mercury News article Herhold: Why we should find a way for Sergio C. Garcia to practice law), "[i]f ever there were a poster figure for the Dream Act, which would give a path to citizenship to people brought to this country as children, it would be [Sergio C.] Garcia."

Authored by SAS

Last week, the 9th Circuit dealt an extreme blow to the idea that the justice system can be about rehabilitation and not just about meting out punishments. If you are a non-citizen with a drug problem, all you get is punishment and then removal. The decision in Nunez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010) was released last week, overturning the long standing case of Lujan-Armendariz v. INS, 222 F3d 728 (9th Cir 2000).

The Justices in Lujan-Armendariz decided that nonviolent non-citizen defendants with first-time drug convictions in which "rehabilitative relief" was available would still be able to stay in the country and become citizens if they availed themselves of a rehabilitative program; in California those programs were usually Deferred Entry of Judgment (DEJ) PC 1000 or Proposition 36 (Prop 36) PC 1210-1210.1. Once the program was successfully completed to the satisfaction of the court, the charge would be expunged or the defendant would be allowed to withdraw their plea; thus, giving a chance to a non-citizen first-time drug offender to get the help they need, instead of jail and removal proceedings.

All other circuit courts have decided not to follow Lujan-Armendariz in the 11 years it has been the case law in the 9th Circuit. When Nunez-Reyes was taken up, the 9th Circuit made this their chance to end Lujan-Armendariz and fall into line with the other Circuits. Nunez-Reyes overruled Lujan-Armendariz. Now in the 9th Circuit, as in the rest of the country, when a non-citizen is convicted of a drug offense, even one that is eligible for "rehabilitative relief," they will suffer adverse immigration consequences. Examples of non-citizens: a student getting their Masters Degree in Computer Science on a F-1 VISA or someone who has been a Lawful Permanent Resident (LPR or having a "Green Card") for 5 years and currently applying for naturalization.

The Court did make the Nunez-Reyes ruling prospective; thus, those who plead before July 14, 2011 will not face removal proceedings if they have successfully complete their drug program and have the convictions expunged or their plea withdrawn.

Incarceration and deportation have won out over rehabilitation, a far cheaper alternative. Benjamin Franklin said: "an ounce of prevention is worth a pound of cure." Lujan-Armendariz was our prevention, Nunez-Reyes our cure.

Criminal Defense Counsel Practice Note: It is imperative that defense counsel be aware that an easy plea to Deferred Entry of Judgment and a short term drug program may have far reaching and very serious consequences for the non-citizen defendant. Hopefully, you have a District Attorney who cares about rehabilitation (no eye-rolling, maybe they will care about the jury trial they will not have to do if they agree to your diversion suggestion), if they do, ask for a diversion program where the client does not enter a plea. Instead during a lengthy continuance have the client successfully complete a court-approved drug program and then returns to have the entire case dismissed. It is the conviction that is to be avoided.

Authored by MWB

Remember the time when United States immigration laws began with "Welcome immigrants! Pull up a chair!" No...well, neither do I. That's because the U.S. Congress hasn't put forth a comprehensive pro-immigration law in over fifty years. Yes, every so often, the U.S. has granted temporary protective status (TPS) to individuals originating from Haiti or El Salvador or Sudan, but TPS only gives you authority to legally remain in the U.S. TPS is not a "stepping stone" to citizenship or even to permanent residency.

Ever seen those black and white fuzzy pictures of your great grandfather entering the U.S. through Ellis Island with a big smile on his face and his family in tow? That was when the U.S. welcomed immigrants with open arms. That's when the U.S. wanted immigrants. Since that time, Congress has enacted one constrictive immigration law after another. And now the states are following suit.

Not so with the Development, Relief, and Education for Alien Minors Act (DREAM Act). (Click here if you want to download a PDF copy of the Dream Act of 2011.) And that is probably one of a few benefits of the DREAM Act. It actually paves the way for immigrants to become permanent residents (and soon naturalized citizens), irrespective of ethnicity or number of applicants. No quotas, no "must-originate-from-Haiti or El Salvador or some other under-represented country," and no requirement to invest million(s) of dollars into the U.S. economy in exchange for residency.

Generally, the DREAM Act would allow individuals who entered the U.S. as children, legally or illegally, to apply for permanent residency on a conditional basis IF they go to school in the U.S. or if they serve in the uniformed services, i.e., the U.S. military. There are other requirements such as maintaining good moral character and generally staying out of any criminal trouble. But, these requirements and provisions could change.

The first version of the DREAM Act was introduced in August 2001; although, at that time, it was not referred to as the DREAM Act. Since 2001, the bill has continuously been introduced in the U.S. Congress in various forms. It has been known as S. 726, S. 3992, and now S. 952. The age requirements or the length of residency have changed depending on who is editing the bill, but the intent of the DREAM Act has for the most part remained constant. Probably the most significant event in the history of immigration was the day the U.S. House of Representatives passed the DREAM Act: December 8, 2010. However, from that day on, except for a few hopeful moments, it has failed to gain any traction in the current U.S. Senate.

So what are the limitations of S. 952 also known as the DREAM Act of 2011?

Continue reading "The DREAM Act: Maybe not so dreamy ... Part I" »

Now that President Obama has decided that it is federally unconstitutional to bar recognition of same-sex marriage and civil unions, his administration will no longer defend the Defense of Marriage Act (DOMA) in court, which does not acknowledge the legitimacy of same-sex marriages. DOMA defines marriage as the legal union between one man and one woman, as husband and wife. The Obama Administration has indicated that this is now an Equal Protection argument and a heightened level of scrutiny will be used in any legal suit based on sexual orientation discrimination.

One effect of President Obama's decision not to enforce DOMA is that temporarily non-citizen spouses will not automatically be deported, denied citizenship, or denied K-1 and K-3 VISAS simply because they are the same-sex as their spouse or fiance.

The first such case to be examined under this higher level of scrutiny is that of Mr. Paul Wilson Dorman, an Irishman in a legally recognized same-sex civil union with a United States citizen. Attorney General Eric Holder, getting his marching orders from President Obama, has taken the unprecedented step of taking over a case from the Board of Immigration Appeals to review their deportation ruling in the case of Mr. Dorman. Attorney General Holder decided to vacate the order for Mr. Dorman's deportation and for the Board to revisit the question of whether Mr. Dorman is a legally recognized spouse, not taking into account the denial of same-sex marriages under DOMA. There are individuals who are currently challenging this view of DOMA, such as House of Representatives Speaker John Boehner. Mr. Boehner defends DOMA, believes it to be constitutional, and seeks to have a Supreme Court decision based on the appeals.

Mr. Dorman is lucky to have fallen into this temporary DOMA gray area. Hopefully, his reprieve will become permanent especially since 2012 approaches and DOMA is still on the books. It seems that now is the time to flood the Immigration Courts and U.S. Citizenship and Immigration Services (USCIS) with requests and challenges based on same-sex marriages. This is the only way for the gray area to become black letter. Because if DOMA is not overturned and again is defended by the government, either this administration or the next, then same-sex couples will no longer benefit from the same rights to citizenship and work authorization that their different-sex counterparts now enjoy. Some couples, never getting a legitimate chance towards citizenship based on their sexual orientation, have found that moving out of the United States is better than staying here and becoming criminals because they have overstayed their VISAS.

Hopefully, this current shift in how the government views same-sex marriages and the rights that flow from that union will continue, so that all spouses and fiances may be treated equally not just by immigration officials but eventually by society at large.

Authored by MWB

State legislatures in Arizona, Georgia, Utah, and now Alabama have sent a message to the federal government: "we want tougher immigration laws, you're not giving us those laws and refuse to enforce the current ones; therefore, we are going to make our own tough-on-immigration laws." On June 9th, 2011, Alabama's governor signed what is purported to be the most strict immigration enforcement legislation. This new bill is to take effect on September 1st, 2011. Not only does the bill require police to check the immigration status of detainees whom they suspect are illegal immigrants, but it also makes criminal any attempt to provide transportation or housing to an illegal immigrant. Hotel owners and managers, landlords, landladies, anyone driving a car and offering a seat to a hitch-hiker will have to check the immigration status of their boarders and passengers.

Let's think of what would happen if such a bill were made into law in California. You see a hitch-hiker along the side of the road. Can you imagine opening the door to your dusty Range Rover and yelling out "papers!" to your would-be hopeful passenger? What if you are a San Francisco bus driver or a BART operator? Would you be required to check the "papers" of every passenger on the bus or train?

If, unfortunately, California does enact such strict immigration laws, then be prepared for long lines at the BART and bus stations and higher prices for bus and BART tickets and hotel rooms.* Thankfully, public transportation in the San Francisco Bay Area is a necessity for many people such that higher prices and busier train and bus depots won't deter them from taking the bus or BART to work. However, strict immigration laws such as the one passed in Alabama will deter a great many people from taking public transportation. Instead, they will resort to their Range Rover (with miles per gallon of a meek 7...for the highway) to get them to work or to San Francisco for a holiday weekend. The end result: more cars on the highway, and not all of them will be environmentally friendly Teslas or Priuses.

There is a light at the end of the tunnel. As mentioned on the Los Angeles Times website, on June 7th, 2011, the Los Angeles City Council voted overwhelmingly to support legislation that allows certain communities in Los Angeles to opt out of a particular immigration enforcement program. Yes, the particular immigration enforcement program was from the federal government, more specifically ICE (U.S. Immigration and Customs Enforcement). But, it's a lot harder to snub your nose at the federal government than at the California legislature. If the Los Angeles City Council can vote to essentially ignore an unpopular bit of law from the federal government, then perhaps there's hope that San Francisco and the other liberal areas of California may opt out of any undesirable immigration laws. If the unthinkable happens and the California legislature does enact stricter immigration laws like Alabama's, then the San Francisco City Council could opt out of the stricter immigration laws. All it takes are a few thoughtful and intelligent people to recognize that these laws will hurt our cities more than help them.

*This may seem like a cold way of viewing the consequences - especially since millions of people's lives will be more drastically affected than just a longer wait at the bus depot. But in my experience, it helps your cause more if you show your audience how something will horribly affect them, not how it will horribly affect you.

Authored by SAS