USEFULL TIPS FOR PRACTITIONERS WORKING WITH IMMIGRANT CLIENTS Polk County Bar Association Continuing Legal Education

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USEFULL TIPS FOR PRACTITIONERS WORKING WITH
IMMIGRANT CLIENTSPolk County Bar
AssociationContinuing Legal Education

• Presented by Sonia Parras Konrad
• ASISTA
• Sonia_at_asistahelp.org

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The Goal/Objectives

• Identify red flags
• Consider immigration implications in
• Civil cases
• Criminal cases
• Identify specific measures to take to enhance
  access to justice
• Proper referrals

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True or False?

• Being undocumented is a crime
• Undocumented people can apply to work
• Undocumented people can apply to be US citizens
• People without immigration status cannot access
  the legal system i.e. file for divorce

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True or False?

• Anyone born in the U.S. is a US citizen even if
  her parents are undocumented
• A lawful permanent resident may be deported
• The undocumented parents of US citizen children
  may be deported
• Someone born outside the US may be a US citizen

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True or False?

• Some people born outside the U.S. are U.S.
  citizens
• Puerto Ricans are not U.S. citizens
• A person in immigration removal proceedings has
  the right to a lawyer
• Marrying a U.S. citizen is an automatic path to
  legal status

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Immigration Terminology

• Citizens
• Acquired by birth in the U.S. (or territories)
• Acquired by birth abroad
• Derived by naturalization of parent
• Derived by residence with citizen parent
• Naturalization

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Aliens

• Nonimmigrant
• Immigrant Lawful Permanent Resident (LPR)
• Family-based visas
• Employment-based
• Refugee, asylum
• Defenses to removal
• Long residence
• Special immigrants - Diversity visa lottery

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Undocumented

• Without legal status because entered without
  admission or inspection (EWI)
• Entered with legal status but overstayed or
  violated conditions of stay

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How Immigration System Works

• DHS Department of Homeland Security
• CIS Citizenship and Immigration Services
• Administrative applications for benefits
• ICE Immigration and Customs Enforcement
• Detaining and removing those inside US
• CBP Customs and Border Protection
• Airports, border, 100 miles inside border

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More on System

• EOIR Executive Office for Immigration Review
• If detained by ICE/CBP (most cases)
• If denied by CIS and issued hearing notice
• Immigration judges (no appointed counsel)
• Board of Immigration Appeals
• Federal Courts of Appeal

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Family Based Immigration

• U.S. citizen may immigrate spouse, parents,
  children (any age), and siblings
• LPR may immigrate spouse and unmarried children
  (any age)
• Either as an immediate relatives (no annual
  limit) or in preference system (under annual
  quota)

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Section I

• Intersection between Immigration
• Law Criminal Law

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Reasons for Removal

• Inadmissible Entered without permission
• Seeking entry
• Applying for lawful permanent residence
• Deportable Entered lawfully (admitted)
• Stayed after visa/status expired
• Committed crime or other offense

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ICE ACCESS Programs
287g Program Criminal Alien Program Operation Community Shield Secure Communities
Rapid REPAT Operation Predator Operation Firewall Law Enfcmt Support Ctr LESC
Intellectual Property Rights Center Fugitive Operations Teams Document and Benefit Fraud Task Force Customs Cross-Designation
Border Enforcement Security Task Force Asset Forfeiture/Equitable Sharing http//www.ice.gov/oslc/iceaccess.htm http//www.ice.gov/oslc/iceaccess.htm
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Where is my client?

• The ICE ACCESS Programs use the criminal justice
  system to channel immigrants into the deportation
  system, regardless of whether they have
  convictions that make them deportable
• Immigration enforcement now happens at every
  point of the criminal system arrest, courts,
  jails and probation/parole
• Criminal bond/ public defender
• Immigration detainer
• 48 hours to issue NTA, process and charge
• Habeas

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Rights of non-citizens detained by DHS

• Speak to an unappointed attorney
• Hearing with Immigration Judge
• Unappointed attorney at hearing and interview
• Request release from detention unless subject to
  mandatory detention INA Sect 236 (d)

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Defense Goals For Undocumented Persons (UPs)

• 1- Avoid ICE apprehension by getting/staying out
  of jail.
• - A UP who goes to jail for even one day is
  likely to encounter ICE, get an immigration
  detainer imposed and end up in ICE custody
  removal proceedings.
• - If no detainer has yet been imposed, getting
  out of jail asap may be highest priority. Pay
  bond!

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Cont.

• 2. Preserve avenues to obtain lawful status.
• Congress currently debating immigration law
  changes that will provide UP with avenue to get
  lawful permanent resident (LPR) status.
• Many UPs already have avenues to obtain lawful
  status, especially if LPR/USC spouse.
• Criminal convictions could render them ineligible
  to do this. Preserving avenue(s) to obtain LPR
  status may be highest priority. (ie, 2 simple
  misdemeanors will render a person ineligible for
  TPS) 

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Defense Goals For Lawful Permanent Residents
(LPRs) Refugees 

•  1. Avoid a conviction that triggers deportation.
  Even where you do, advise clients not to leave
  the U.S. or apply for LPR status/citizenship
  without first consulting an immigration attorney.
  

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Cont.

• 2. If 1 is not possible, preserve avenues for
  relief from deportation.
• LPRs and refugees will get a hearing before an
  immigration judge who has the power to grant
  discretionary relief from removal (deportation)
  through one of several legal avenues to
  qualifying noncitizens.

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Sample Cheat Sheet Sentences

• All aggravated felonies
• 365 days or more potential aggravated felony
  problem
• Maximum possible sentence year or more, AND
  actual sentence of over 6 months MAY trigger
  crime of moral turpitude
• Any period of confinement of 180 days or more
  Good Moral Character bar
• PADILLA-counsel must inform a client whether his
  plea carries a risk of deportation. Mr. Padilla's
  Sixth Amendment right to counsel was violated
  because counsel could have easily determined that
  a guilty plea would make Mr. Padilla eligible for
  deportation.

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What You Can Do

• Refer your client to an immigration expert
• Check AILA
• Develop partnerships
• Sign up for National Immigration Project
• Explain rights and remedies to all parties and
  ensure they understand them
• Always give advisals about immigration
  consequences of criminal convictions

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SECTION IIA CROSSROAD

• IMMIGRATION AND FAMILY LAW

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INTERSECTIONS

• Adoption Cases
• Juvenile Court
• Dissolution of Marriage (In General)
• Spousal Support
• Child Custody/Visitation
• Domestic Violence Cases
• Protective Orders
• Remedies for Battered Immigrants

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• ADOPTIONS

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ADOPTION CASES

• Intercountry Adoption Act of 2000
• Adoption under INA Sec. 101 (b)(1)(F)
• Orphan adoption under INA Sec. 101 (b)(1)(F)
• Hague Convention under INA Sec. 101 (b)(1)(G)
• U.S. State Department
• Specific information on international adoptions
• htpp//Travel.state.gov.

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ADOPTION CASES

• Adoption-age limitation
• Before child reaches 16
• Matter of Cariaga, 15 I. N. Dec. 716, 1976 WL
  32364 (B.I.A 1976).
• Two years residence requirement Two years legal
  custody prior to petition for immigration status
  (before or after the adoption)
• Physical custody is not necessary. Matter of Cho,
  16 I N. Dec. 188, 1977 WL 39247 (B.I.A. 1977)
• Exception to CINA
• Must be valid in the country or state where it
  took place
• Will need court decree or official document.

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• SPECIAL IMMIGRANT JUVENILE STATUS

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SIJS-REQUIREMENTSINA Sec. 101 (a)(27)(J)

1. The applicant must be under the jurisdiction of
   the court or other juvenile proceeding
2. The applicant must have been deemed eligible for
   long term foster care (amended)
3. The court or some administrative agency must rule
   that it is not in the childs best interest to be
   returned to his/her home country

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What you can do

1. The court should make clear that it made its
   findings and orders based on abuse, neglect or
   abandonment of the child as opposed to assist the
   child in gaining immigration status
2. The juvenile court should sign an order making
   the above findings
3. Juvenile court must retain jurisdiction

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• DISSOLUTION OF MARRIAGE IN GENERAL

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FAMILY RELATIVE PETITIONWHO IS WHO?

• BENEFICIARY
• Family member who is going to immigrate,
  qualifying relative
• No control over petition
• Must overcome grounds of inadmissibility

• PETITIONER
• Initiates process
• Controls the petition
• Can cancel, withdraw, not follow through

• Petitioner MUST have the immigration status
  required for the petition (USC/LPR)
• Petitioner and Beneficiary MUST have a qualifying
  relationship

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Dissolution of Marriage

• If no final immigration status, entering final
  decree will destroy immigration process
• Careful with appearance of final immigration
  status, (I-751)
• Pending Family Relative Petitions no longer
  viable (I-130/ I-485/I-765)
• Non-immigrant dependents also affected (F, H,)
• After 2 years bar for VAWA Self Petition relief

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Top Strategy in Family Court

• This only happens when the other party has
  immigration status and is often a tactic to bring
  attention to the immigration status rather than
  the matter at hand.
• Educate your Judge, bring expert witness if
  needed
• Lack of immigration does not mean removal is
  imminent

• Bring immigration status as the focus of the
  case.

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Is Your Client a Victim of Domestic Abuse?

• SPECIAL REMEDIES UNDER THE VIOLENCE AGAINST WOMEN
  ACT
• Dissolution will not prevent battered immigrant
  from obtaining lawful permanent residency if Self
  Petition filed within 2 years of final decree.

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HELP FOR IMMIGRANT VICTIMS OF CERTAIN CRIMES OF
VIOLENCE

• WAIVER OF JOINT FILING TO REMOVE CONDITIONS FROM
  LPR
• I-751, INA Sec. 216
• SELF PETITION
• I-360, INA Sec. 204
• CANCELLATION OF REMOVAL
• INA Sec. 240A
• U VISA
• INA Sec. 101(a)(15)(U)

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Self-petition U visa

• Subjected to Battery or Extreme cruelty
• By USC or LPR spouse or parent, o by USC son or
  daughter
• Residence
• Good Faith Marriage
• Good Moral Character

• Substantial physical or emotional abuse from
  criminal activity
• Possesses information
• Criminal activity must occur in US or violate US
  law
• Law enforcement certification (was helpful, is
  helpful, likely to be helpful) in the
  investigation or prosecution

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U Visa Crimes

• Rape
• Torture
• Trafficking
• Incest
• Domestic violence
• Sexual assault
• Abusive sexual contact
• Prostitution
• Sexual exploitation
• Female genital mutilation
• Being held hostage
• Peonage
• Involuntary servitude
• Slave trade
• Kidnapping

• Abduction
• Unlawful criminal restraint
• False imprisonment
• Blackmail
• Extortion
• Manslaughter
• Murder
• Felonious assault
• Witness tampering
• Obstruction of justice
• Perjury
• or attempt, conspiracy, or solicitation, to
  commit any of the above mentioned crimes

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Call ASISTA!

• 244-2469
• Asistahelp.org

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• SPOUSAL SUPPORT

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I-864 Affidavit of Support

• Required under INA 213A with I-130
• I agree to provide the sponsored immigrant(s)
  whatever support is necessary to maintain the
  sponsored immigrant(s) at an income that is at
  least 125 percent of the Federal poverty
  guidelines. I understand that my obligation will
  continue until my death or the sponsored
  immigrant(s) have become U.S. citizens, can be
  credited with 40 quarters of work, depart the
  United States permanently, or die.

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CHILD CUSTODY AND VISITATION

• INTERNATIONAL PARENTAL KIDNAPPING

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Preventive measures

• Obtain preventive language in both a Protective
  Order and a Custody Decree
• Language should include the following
• Court ordered supervised visitation.
• Statement prohibiting the child from traveling
  outside jurisdiction/state/U.S. without clients
  or courts permission.
• Both parties agreeing not to have Embassy issue
  passport on behalf of child.

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Cont.

• Ask foreign embassy or consulate not to issue a
  passport to your child.
• Include statement signed by both parties with
  agreeing to the Hague convention terms
• Inform foreign embassy that a copy is being sent
  to U.S. Dept. of State.

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CROSS-ROADIMMIGRATION LAW CIVIL PROTECTIVE
ORDER
IOWA CHAPTER 236
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Know your facts

• Abusers raise the issue of the victims lack of
  legal immigration status.
• Victims are often undocumented because of their
  abusers or status is connected to the abusers
  visa
• Congress created different routes to protect
  immigrant victims against abusers use of the law
  to perpetuate control over their victims

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Will my client be deported?

• Issuance of a civil protection order does not
  trigger immigration consequences.
• Violation of the protective provisions is a
  deportable offense.

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Remember

• Know your clients immigration status
• Partner with an immigration expert
• Inform your client of rights if arrested by ICE
• Connect with AILA, NIP, ASISTA
• Asistahelp.org