For certain, there continues to be a significant disconnect between criminal defense attorney perceptions and the realities of immigration law.  Don’t get me wrong –  I am not writing this article to scold, judge or blame the criminal defense bar, since I am well aware that keeping up with current criminal laws and procedures is challenging enough.  It’s just that I happen to bear witness to this disconnect at least a couple times a week in communications with criminal defense colleagues with whom I may share a client, and we engage in discussions ranging from the deportation consequences of a criminal plea bargain, to the necessity of disclosing an expunged criminal record in an application for permanent residence (Form I-485),  green card renewal (Form I-90), or Naturalization (Form N-400).  The following discussion features the most common misunderstandings:

Myth:  The expungement of a criminal record means its erased from ALL existing databases, such that the arrest and court proceeding never happened and disclosure of the arrest to immigration officials is unnecessary.

Fact:  The expungement only means it’s been erased from certain databases, such as a local court’s or perhaps state police records.  However, the fingerprint that was taken by the law enforcement agency in conjunction with the arrest forever leaves its mark for all future FBI analyses – no matter the success of efforts to dismiss the charge and/or expunge the record.  Foreign nationals seeking U.S. residence, green card renewal, or US citizenship should take measures to obtain several certified court dispositions or records from the clerk of the court where the criminal case took place before seeking expungment, since the immigration official reviewing the application in question will for certain know that there had been arrest (regardless of expungement) and will want to verify the outcome of criminal proceedings.  If no certified court disposition is obtained prior to expungement, the foreign national may very well find themselves having to ask their criminal defense counsel to unexpunge the record to facilitate final processing of their immigration related application.

Myth:  The “dismissal” of a criminal case, but only after an admission of wrongdoing, and imposition of fine, supervision or other penalty, still means there is NO “conviction” for purposes of US immigration law.

Fact:  Unless a criminal charge is outright “dismissed”, “stricken” or “nolle pros’d” and without an admission of wrongdoing and penalty, there is a decent chance the outcome will be viewed as a criminal conviction for immigration law purposes.  Much of the time, the quick plea deal offered to a criminal defendant is irresistible at the moment its offered, since the client a) will know they will not have to do jail time, b) will not have to pay their criminal lawyer any more money for future hearings or a trial, and c) is advised, mistakenly, by either their criminal defense attorney or the judge that the outcome is not considered a conviction.  Well, what’s considered a conviction for state criminal law purposes is not always the same
as what’s considered a conviction for immigration law.  The lesson:  before accepting a plea deal, non US citizens are advised to consult an immigration lawyer so they are “in the know” about what immigration law consequences, if any, are in store.

Myth:  Applicants for Permanent Residence (I-485), Green Card Renewal (I-90) or U.S. Citizenship (N-400), with any criminal record, even a conviction, can expect to have their application denied.

Fact:  Foreign nationals seeking such immigration benefits are not automatically disqualified because of their criminal past, even with one or more convictions.  What is determinative, of course, is the nature of the offense and conviction, and the number of convictions.  The only thing an applicant for immigration benefits should be afraid of is their impulse to proceed blindly with one of these applications, premised either on mistaken advice provided by their criminal attorney, or the hope or fantasy that “everything will be o.k.”  For certain, during processing of any of the above applications, all of the applicant’s arrests will come to light, and how these charges were disposed of, and the nature of any conviction(s) will determine what happens next – whether it be application approval, or application denial, with a notice for the applicant to appear in court for removal proceedings.  So, again, immigration applicants with any sort of criminal past, would be wise to confirm to enlighten themselves regarding how immigration authorities will view this past before embarking on what can be a scary and dangerous adventure.

PUBLISHED June 1, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

An important question that gets asked from time to time: Can an individual residing in the U.S. without legal immigration status access a federal or state civil court to recover damages for a contract breach, personal injury, or to facilitate a divorce? To the surprise of many, – almost always, YES!

In general, one’s ability to protect or assert their rights in a civil dispute – for example, relating to a contract breach, personal injury or divorce case – does not depend on the individual’s immigration status. The undocumented are not prevented by law from suing to collect money on a loan, to recover for damages as a result of a physical injury from a car accident or botched medical procedure, or to facilitate a divorce. The same applies for an undocumented individual who is being named as a defendant in a lawsuit – whether for contract breach, injury or divorce. The undocumented defendant is not prevented from defending himself just because he lacks lawful immigration status.

What about threats from the other side, such as: “if you do this or that…..I am going to have you deported?” Firstly, no single individual has the power to have someone deported, although nothing prevents them from saying these words, or even calling immigration authorities. Absent threats of terrorism though, the chances of authorities acting on a private citizen’s report of an undocumented individual living in our midst (among the other 15 million) are quite low.

What happens when I walk into a courtroom? Won’t a judge or other court personnel see to it that I am deported? No way.  Absent some really strange circumstance, the players in our civil judicial system have no interest in the immigration status of litigants, and that is assuming they even are in a position to understand a person’s immigration status and distinguish the documented from the undocumented. With an individual’s immigration status having no impact whatsoever on their rights as set forth in the underlying contract or statute, judges in civil courtrooms do not have, nor do they want, jurisdiction pertaining to the immigration status of litigants before them.

Of course, the reality is that much of the time an undocumented individual may be averse to putting himself in a situation where he is confronted with any of these issues or any legal system, on the chance, however remote, his stay in the U.S. could be endangered. This fear, although real, is usually not commensurate with the true risks at play – which are practically nonexistent. In truth, other than being in an especially vulnerable psychological state, an undocumented litigant is usually no worse off than a documented litigant when it comes to accessing our courts for any purpose. But to get an assessment of what, if any, risks an undocumented litigant faces in any given circumstance, a consultation with an immigration lawyer should put most questions to rest.

PUBLISHED October 14, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

The question has been lingering for years:  what is our nation going to do about the 15 million or so undocumented living in the U.S.? Commence removal proceedings against them? Grant legal status to most or all of them who are otherwise law abiding? Do nothing and essentially allow for a continued, de facto amnesty?    

In part to address the question of undocumented in their state, and in part to cry out for help regarding the security of their state and border with Mexico, the State of Arizona has taken the extraordinary and unconstitutional step of criminalizing violations of U.S. immigration law.  That means state law enforcement agencies in Arizona now have the authority to arrest and criminally prosecute immigration law violators present in their state, with violators turned over to federal authorities for the initiation of removal proceedings after being served a state sentence. Violators of this law however, only become subject to arrest and prosecution if the law enforcement officer has a “reasonable suspicion” that the suspect is living in the U.S. in violation of immigration law.     

Amidst huge political pressure, Arizona Governor Jan Brewer last week signed this state legislative proposal into law, although it is not set to take effect for several months. Regardless of the state’s plan though, the actual implementation of the law is unlikely to ever happen. Numerous groups, including the Obama administration, have signaled their intention to challenge the constitutionality of the legislation, and the legal battle may very well work its way up to the U.S. Supreme Court. In the meantime, an important national conversation will be taking place. 

Make no mistake; the numerous legal defects in this law are clear as day.  Most notably, the law flies in the face of the explicit constitutional prohibition against states acting in realms where the federal government has sole jurisdiction, such as immigration policy and border control. Just as flagrant is the law’s convenient disregard of individual (undocumented or otherwise) civil liberties such as constitutional rights to Due Process of Law and against Unreasonable Searches/Seizures, with Arizona law enforcement given carte blanche to essentially engage in racial profiling and arrest anyone who looks, sounds or smells undocumented, or is otherwise “reasonably suspected” to be in the U.S. without legal status. The constitutional issues are numerous, as are the logistical challenges, including the ugly reality of  violent criminals being given the upper hand against their undocumented victims or witnesses, with law enforcement now assigned the conflicting responsibilities of not only arresting the violent offender, but also their undocumented victim or witness.

For sure, this new Arizona legislation has gotten people talking, both in support and opposition, and ranging from civil rights leaders, politicians of all persuasions, and of course, to the media pundits. What is clear though is that the people of Arizona, through their state legislators, have spoken and most people in Arizona are not happy with the status quo when it comes to federal enforcement of our border with Mexico and our immigration laws in general. Although the people of Arizona have a right to have their health, safety, and property protected, the goal must be achieved within parameters allowed by our constitution, and thus they will not have the final say on the implementation of the new measure. Again, the new Arizona law has restarted an important conversation, but whether it will be an honest one or one involving politician/pundit posing opportunities remains to be seen. Unfortunately, from the looks of it, posing appears to be the dominant theme, as we seem to be becoming a society too quick to accept fear mongering and sensational presentations as foundations of our world views.

The importance of Arizonians’ concerns with regard to crime, border enforcement, and the use of its financial and natural resources should not be minimized. However, the answer lies not in draconian, desperate state action, but solutions that will come from our U.S. Congress and President.  Hopefully, strong Congressional and Presidential leadership will prevail, with the American public being reminded that it was former President George W. Bush, along with John McCain and legions of other Republicans who most recently championed legislation to strengthen U.S. borders AND enact comprehensive immigration reform – with a path to U.S. citizenship for most of our country’s undocumented population. Unfortunately, now that it is President Obama, and legions of Democrats who are championing this dual initiative, there are conveniently only a handful of Republicans supporting the cause, with most Republicans speaking to American voters’ fears, anger, and resentment.

In assessing the options outlined above with common sense and clear headed thinking,  one can be sure the option of initiating removal proceedings against so many millions of people is in no way financially, logistically, or even emotionally realistic.  Rather, the option advocated by President Obama, and previously advocated by President George W. Bush and presidential contender John McCain, featuring enhanced border enforcement and legalization of the undocumented is the sensible approach and one superior to mass deportations or the status quo.  But for this realistic, common sense answer to have a chance, we will need two important ingredients: 1) honest and gutsy presentations by politicians and 2) a clear thinking, and practical, public. That seems like a long shot these days.

PUBLISHED April 24, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

At the risk of sounding cliché’ or predictable, the first step a detained foreign national needs to take is to get an experienced, honest immigration lawyer on the case. That is not to say, there will always be a way to prevent the foreign national’s eventual deportation (now called “removal”) from the U.S., but at least all available legal options will be on the table, including a chance to possibly post bond or assert a defense in the context of removal proceedings , along with a big picture map as to how the process works. A foreign national does not have a right to free counsel, but an opportunity to contact an attorney or family member (who in turn can contact an attorney) will be provided. Further, a foreign national will never be detained by immigration authorities and immediately whisked away on an airplane out of the country. Thus, there is generally at least a small window of time to ascertain the facts and investigate what options may be available to prevent the foreign national’s removal.

The job of arresting foreign nationals who are considered “removable” under U.S. immigration law belongs to Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security (DHS). The circumstances under which ICE will most often be prompted into action to detain a foreign national are as follows:

1) The foreign national is present in the U.S. in violation of their status, without status, or working without proper authorization. BUT, given that there are anywhere between 10 to 15 million of this category in the U.S., these violations by themselves (with some exceptions) will generally not prompt ICE action. Simply, there are just plain too many of these violators, and usually, if ICE acts to detain a foreign national in this category, there is some other factor at play, which leads us to the next scenario.

2) The out of status/no status foreign national gets arrested by local, state or federal law enforcement authorities for alleged criminal behavior and in turn, are reported to ICE. Whether it is a DUI offense, a retail theft charge, or something more serious, a police department or law enforcement agency, just might take the opportunity to inquire into the alleged offender’s immigration status, and report the individual to ICE. Unfortunately, just being involved in a fender-bender where the police are called, may be enough to get ICE involved, assuming the foreign national runs into really bad luck. Other times, the foreign national only learns of ICE involvement when he shows up for court and is greeted by 2 or 3 ICE officers.

3) The foreign national is the subject of a previous deportation or removal order. If the foreign national was already the subject of deportation or removal proceedings, and previously ordered deported, but never left, ICE may very well learn about it, and thus a knock on the door will always be a concern. Whether it’s been 6 months or 16 years, an order of deportation or removal will eventually prompt ICE into action.

4) The foreign national is a lawful permanent resident and is convicted of a “removable” offense. The foreign national who is a U.S. permanent resident and serving a prison sentence, may have ICE waiting for them at the time of their release. Usually, ICE interest in the case is known to the foreign national and their family ahead of time when they place a “detainer” on the foreign national in question. That means that upon their release from prison, the foreign national is transferred into ICE custody, where he will remained detained throughout removal proceedings, unless they are able to secure release with the posting of a bond. Other permanent residents with older criminal records are brought to ICE’s attention through their own, seemingly innocuous actions, such as filing for naturalization, renewing their permanent resident card, or simply passing through immigration inspection upon return from a vacation abroad.

Can I post a bond? Sometimes yes, depending on the nature of the immigration charges. For individuals who are the subject of final orders of removal/deportation, generally no. However, a thorough investigation of the case background and even a Motion to Reopen, should be considered especially if there was an order entered against the foreign national “in absentia” and perhaps no proper notice of the court hearing was provided to the foreign national. Or, perhaps, the foreign national was denied effective assistance of counsel.

Also, a foreign national with a serious criminal conviction, or sometimes 2 or more non-serious ones, may have to fight hard before an immigration judge to have a bond set. Sometimes that fight can be in vain if the nature of the convictions at issue are such that the foreign national is subject to “mandatory detention” throughout proceedings. Importantly though, all foreign nationals who are in removal proceedings as a result of a guilty plea criminal conviction should give serious consideration into whether their convictions can get vacated by the underlying criminal court, due to ineffective assistance of criminal counsel and/or not being apprised of the immigration/deportation consequences before accepting the guilty plea.

Due Process of Law – Foreign Nationals and The Most Common Defenses In Removal Proceedings: If the foreign national is undocumented, or out of status, but has been in the U.S. for more than 10 years and has U.S. citizen, or permanent resident parents, children, or spouse, he may be able to eligible to plead his case before the immigration court and request “cancellation of removal”. If granted, the foreign national not only is not deported, but is awarded permanent residence.

Out of status/no status foreign nationals without 10 years in the U.S., or without the requisite U.S. family member, may be able to remain in the U.S. and even awarded U.S. residence by way of marriage to a U.S. citizen, assuming it’s a bona fide marriage. As one might expect, the nature of the marital relationship will be highly scrutinized given the timing of the marriage, and the desperate state of the foreign national.

If the foreign national is already a permanent resident, his first line of defense will likely be to request “cancellation of removal for a permanent resident”, where rehabilitation, good moral character and family ties can be a basis to terminate removal proceedings, and allow the foreign national to remain in the U.S. as a permanent resident.

Other foreign nationals may be eligible to argue an asylum based defense if they fear they may face persecution, political or otherwise, back in their home country.

PUBLISHED March 18, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

In recent years, Congress has enacted various pieces of legislation addressing the vulnerabilities of our undocumented population as targets of criminal activity. Whether they fall victim to crimes relating to their person or property, the undocumented victim will likely think twice about reporting the crime to authorities for fear of having their immigration status uncovered and ultimately being deported. However, with the U visa option, certain undocumented victims of crime have a vehicle toward both temporary and permanent lawful immigration status in the U.S.

Whether they overstayed their nonimmigrant visa status, or merely entered the U.S. without any visa at all, the out of status/no status victim of certain crimes may apply for one of 10,000 U visas made available yearly. Even individuals in removal proceedings, or who are the subject of a final deportation or removal order may be eligible for U visa status. To qualify, the applicant must demonstrate:

1. He has suffered substantial physical or mental abuse as a result of being a victim of “qualifying criminal activity”,
2. He is in possession of credible and reliable information, establishing their knowledge of essential details of the qualifying criminal act that is the subject of the U visa filing,
3. He has been of assistance or will be of assistance to a law enforcement agency to investigate or prosecute the crime AND
4. The criminal activity took place in the U.S. or U.S territory/possession (or violate certain U.S. federal law)

Qualifying criminal activity for U visa eligibility includes: abduction, blackmail, domestic violence, extortion, false imprisonment, felonious assault, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, perjury, prostitution, rape, sexual assault, torture, trafficking, unlawful criminal restraint and, witness tampering – among others.

An application for U visa status must be accompanied by certification from a local, state or federal government agency confirming that the applicant is indeed providing the requisite assistance in the investigation or prosecution of the crime at issue. Once approved, a U visa applicant will qualify for employment authorization and eventually permanent resident status. Spouses and children of eligible applicants may also be eligible for derivative U status, and eventually permanent residence as well.

Undocumented victims of criminal activity can find comfort in the protections the U visa provide. Unfortunately, the process of coming to terms with the reality that one has been the victim of a specified crime and trusting a law enforcement official in a U visa context, is by no means an easy one. But with careful analysis and planning, a qualified U visa applicant not only helps bring justice to the perpetrator and society, but also benefits himself by securing a path toward legalizing their immigration status.

PUBLISHED January 25, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

For about the tenth time in the past decade, I am writing about a new legislative initiative presented to allow for the legalization of the vast majority of those present in the U.S. in violation of our immigration laws. This time, the initiative is called Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (“CIR ASAP”). The measure was introduced before the U.S. House of Representatives on December 15, 2009 by Congressman Luis Gutierrez (D-IL), a lawmaker who has shown himself to be a leader in the comprehensive immigration reform movement. Gutierrez, like many other politicians in Congress, along with our President, realizes that eventually our society has to make a choice about what we will do about our nation’s 15 million or so undocumented individuals. Absorb? Deport? Some stay, some go?

Whatever the solution, for sure, by doing nothing our country ignores the issue and pretty much establishes a de facto amnesty, where the status quo is maintained and the undocumented population continues to be allowed to live and work in the U.S., albeit in the shadows. Based on the underlying premise of most undocumented workers’ embarking for the U.S. in the first place (“better to be in the U.S. illegally and make a living and get ahead than be in my home country legally”), this population will not be packing their bags for a trip home anytime soon, no matter the level of immigration enforcement.

CIR ASAP includes a broad range of initiatives, including enhanced border security and immigration law enforcement, improved verification systems for employers and otherwise establishing some integrity in our broken immigration system. The truly potent, provocative goodies in the legislative proposal involve the legalization of the undocumented population.

The most notable provision allows for the out of status/no status foreign national to establish an interim legal status by, among other requirements,

a) documenting their unlawful status in the U.S as of December 15, 2009,
b) paying an application fee, along with a $500 fine, and
c) attesting to having made societal contributions through employment, education, military service, or social service volunteering.

The applicant would also need to demonstrate a relatively clean criminal record, where a felony or three (3) misdemeanors will prompt ineligibility.

Other highlights of the CIR ASAP:

• Allows for adjustment to permanent status after a six (6) year interim, conditional status. In conditional status, while awaiting permanent status, an applicant will have the right to work in the U.S. and travel internationally; individuals in removal proceedings will be among the pool of eligible applicants.
• DREAM ACT: similar to above provision, except that students brought to the U.S. before 16 years of age would have an accelerated path to permanent residence upon high school graduation, completion of two (2) years of college study or several other milestones,
• Expands opportunities for U.S. employers to hire and keep foreign workers by liberalizing rules for facilitating temporary and permanent (immigrant) visas for foreign workers and
• Provides greater discretionary authority for Immigration Judges presiding over a long time U.S. resident’s removal (deportation) hearing.

There are at least another 100 interesting provisions included in this legislative proposal. Most likely, though, if and when any of these measures get signed into law, the details and language will probably only faintly resemble this proposed language. To many in Congress, a measure like CIR ASAP is toxic territory, where any type of support for this cause will open up the floodgates for criticism and accusations of “rewarding the lawbreaker.”

Certainly, for any sort of immigration reform to pass, courage and brutal honesty will have to find a way into the discussion — particularly to get past the argument that, in the end, the lawbreaker may very well be rewarded. But, looking at the potential benefits such reform may yield for our society, including a substantial economic shot in the arm (think of all the billions of dollars the 15 million undocumented will start spending knowing that their stay here is secure), as well as the cost of doing nothing, comprehensive immigration reform, in some form or another, is inevitable. Here’s hoping that the introduction of CIR ASAP at least gets an honest and courageous conversation started.

PUBLISHED December 16, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

On October 13, 2009, the U.S. Supreme Court will hear arguments in a case involving a U.S. lawful permanent resident facing removal from the U.S. as a result of entering into a criminal plea bargain (pleading guilty, as opposed to going to trial, in exchange for a reduced sentence) without being advised by his previous defense counsel of immigration law consequences.

The case arises out of the State of Kentucky, with Jose Padilla, a long time lawful permanent resident and U.S. Army veteran, facing removal to Honduras after agreeing to plead guilty to a state felony charge of trafficking marijuana. The kicker in Padilla’s case is that his defense counsel provided the wrong advice, assuring him that no deportation consequences would follow such a plea. Not only were there deportation consequences for Padilla, but the nature of the conviction he accepted was such that no relief or defense in removal proceedings was available. In essence, Padilla unknowingly accepted a one-way ticket to Honduras following the prison term that was part of his sentence.

With the U.S. Constitution guaranteeing criminal defendants Due Process of Law and legal representation, a criminal defendant who unknowingly accepts a plea deal that involves his removal from the U.S. is troublesome in many ways. Of course, not every case of a lawful permanent resident accepting a plea deal leading to his certain removal from the U.S. is problematic. For instance, it might be a perfectly legitimate decision for a permanent resident to accept a plea deal involving a shortened prison sentence along with deportation consequences, as an alternative to going to trial with a weak case and then facing deportation consequences after serving a longer prison term. The question ultimately boils down to whether the criminal defendant (the permanent resident) would still have accepted the plea deal knowing that deportation consequences may ensue.

At present, permanent residents in most states in the U.S. have an avenue of redress within their state court system by presenting a post-conviction motion to vacate their guilty plea. And as long as the state court’s action to reopen the case and vacate the conviction is premised on constitutional grounds (i.e., ineffective attorney assistance, uninformed decision-making, etc.), and not simply as a vehicle to allow the defendant to avoid deportation consequences, the resident may be able to undo the mistake and avoid removal. But in far too many cases, this remedy is unavailable for prejudiced permanent residents either because the state at issue does not allow such a post conviction motion, or too much time has passed since the time they accepted their guilty plea.

The importance of the constitutional and human rights issues coming before the Supreme Court in this case is reflected in the fact that dozens of immigrants’ rights organizations have submitted their own “friend of the court” brief in support of Padilla’s cause.

For the thousands, if not tens of thousands, of lawful permanent residents who enter into plea bargains every year without ever being informed of immigration law consequences and are prejudiced by their ignorance, the U.S. Supreme Court is ready to have a say, with a decision likely by Spring 2010.

PUBLISHED September 14, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

Published: June 4, 2009

Just over 4 months after the outgoing Attorney General declared that foreign nationals do not have the right to effective representation in removal proceedings, the Obama Administration’s new Attorney General, Eric Holder, has undone that act. Attorney General Holder’s action to vacate the earlier decisions in the cases of Matter of Compean, Matter of Bangaly and Matter of J-E-C, restores more than a decade of jurisprudence establishing that foreign nationals are constitutionally entitled to “effective assistance of counsel,” and that a claim of ineffective counsel is not merely subject to discretionary “administrative grace.”

Although the Attorney General upheld the underlying decisions denying the requests to reopen these particular cases, he did confirm that a right to effective assistance of counsel in removal proceedings is guaranteed by the U.S. Constitution. He also directed formal rule-making to take place to establish procedures and a legal framework by which Motions to Reopen based on claims of ineffective assistance of counsel are to be evaluated, These rules, according to the Attorney General, are to be consistent with constitutional principles and the substantial body of case law that has evolved on the issue up to this point.

PUBLISHED June 4, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

Last week the U.S. Supreme Court issued a unanimous decision rejecting the criminal prosecution of certain undocumented workers, under a federal identity theft statute, because of their use of fictitious social security or permanent resident cards. In a 9-0 decision, with several of the justices writing separate concurring opinions, the Supreme Court ruled that the federal identity theft provision at issue requires the offender to know that the identification document they were using actually belonged to another individual, as opposed to merely knowing the identification was fictitious or not their own.

The prosecutions of undocumented workers under identity theft statutes are being conducted as a recent outgrowth of workplace raids, such as the large scale ICE (Immigration and Customs Enforcement) operation in Postville, Iowa a year ago — where undocumented workers were discovered on site, and most of the workers had presented counterfeit social security and/or resident alien cards to secure their jobs. In the case before the court (Flores-Figueroa v. United States), the worker presented a counterfeit document containing fictitious information (i.e. the document did not belong to an actual person), in order to secure and maintain employment and for no other purpose. Consistent with what has recently become a common practice by federal authorities, the worker was placed on track for deportation. In an attempt to convince the worker to waive their right to a deportation hearing (and submit to expedited deportation), federal officials dangled the threat of a 2-year prison term for their alleged “aggravated” identity theft violation. In this case, the worker decided to challenge the charges. After two lower courts concluded that the worker’s presentation of false documents constituted a violation of the statute, the Supreme Court reversed the lower court rulings and declared, without qualification, that the prosecution was without legal basis since the worker did not have the requisite state of mind (i.e., the worker was not aware that the information on the document belonged to another person).

Responding to the government’s contention that proving the offender knew the document belonged to another person would create too insurmountable an obstacle for law enforcement and prosecutors, the Supreme Court stated:

In the classic case of identity theft, intent is generally not difficult to prove. For example, where a defendant has used another person’s identification information to get access to that person’s bank account, the Government can prove knowledge with little difficulty. The same is true when the defendant has gone through someone else’s trash to find discarded credit card and bank statements.

While the Supreme Court in no way struck down the validity of the criminal law at issue, it did declare that the use of this argument against undocumented workers who use fictitious identification, belonging to no one else, is not permissible. In the meantime, our nation continues to await a big picture solution to the big picture problem — i.e. what to do with the millions of undocumented immigrants who choose to continue to live in the U.S. regardless of their legal status. Pronouncements by President Obama in recent weeks continue to give a clear indication that enactment of comprehensive immigration reform, including a “path to citizenship,” is on his immediate agenda. For more information see the court’s decision in Flores-Figueroa v. United States – decided May 4, 2009.

PUBLISHED May 13, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

When a foreign national is prejudiced by the ineffective assistance of his attorney in the context of removal proceedings, the foreign national has historically had a right to redress – a Motion to Reopen based on ineffective assistance of counsel. That right, however, has been pretty much eliminated and transformed into a possible avenue of redress as a result of directives issued by Attorney General Mukasey on the eve of his and the Bush administration’s departure from office.

The Attorney General used three Board of Immigration Appeals (BIA) cases as a vehicle to declare that the right to effective assistance of counsel in removal proceedings is not guaranteed by the U.S. Constitution, and that previous BIA precedent recognizing such a right would be overruled. Aliens prejudiced by their counsel’s poor performance or non-performance still technically have a chance to have their case reopened, but the constitutional underpinnings have been declared non-existent and the bar has been raised substantially regarding the proof required. Last, but not least, the opportunity for federal court review of a denied claim appears to have been effectively eliminated.

In Matter of Compean, Bangaly and J-E-C-, the Attorney General confirmed the continued availability of an avenue of redress for affected foreign nationals, but only at the “administrative grace” of the Department of Justice (includes Immigration Courts and BIA) involving “extraordinary cases, where a lawyer’s deficient performance likely has changed the outcome an alien’s removal proceedings”. Included in the new, stricter administrative framework are the following provisions:

1. only the conduct of a lawyer, an accredited representative or a non-lawyer who the foreign national reasonably believed to be a lawyer, is relevant to such claims,
2. the lawyer’s (or perceived lawyer’s) failings were egregious,
3. the lawyer’s inadequate representation was the cause of the foreign national’s failure to obtain relief in removal proceedings,
4. impacted foreign nationals must present a detailed set of documentation relating to the attorney/client relationship, including: copies of any retainer agreement, correspondence to the attorney outlining his deficient performance, letter to the attorney or disciplinary authority in the state in question (but not necessarily sent).

Failure to adhere to all of the governing provisions, versus the previous standard of “substantial compliance”, can be a basis to summarily dismiss such a claim.

Where does this leave us? Reopening requests based on ineffective assistance of counsel will now be left to the unfettered discretion of the Immigration Courts and BIA. As a consequence, the chance for meaningful, if any, federal court review has been eliminated.

This is undoubtedly not the last word on the subject, as the various legal and constitutional conclusions set forth in this recent Attorney General directive continue to be the subject of ongoing federal court challenges. Clearly, a hearty and exhaustive federal court review is indeed in order especially when the highest law enforcement officer in the land, in a poof, does away with what was previously deemed to be a constitutionally guaranteed safeguard for foreign nationals in removal proceedings.

PUBLISHED February 9, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois