House to house searches.  Bullhorn calls to assemble and gather for deportation processing.  Mass detention facilities.  As millions of families prepare to be torn apart, you will witness the tears and deafening wails of old and young, grandparents and parents, sons and daughters.  No doubt, these scenes will be unavoidable components of the mass round-up and deportation of 12 million undocumented foreign nationals.  For the folks who refuse to give an inch and forgive immigration law breakers, it’s a path to deportation, not a path to citizenship that is the right and only option.  However, as our elected officials in Washington embark on further debate in the coming month, it is time our nation comes to accept that a path to legalization or citizenship, albeit not a perfect option, is our best and only real option.

As it stands, it seems we have 3 possible options for addressing the issue.  Option 1 is the status quo, essentially a de facto amnesty where our nation mainly looks the other way and ignores the vast majority of immigration law violators living in the U.S.  Indeed we have seen unprecedented levels of immigration enforcement under President Obama - a record 400,000 deportations annually for each of the past 4 years, and surpassing the numbers put up by his modern day Republican and Democrat predecessors – but such measures barely make a dent.

So what about Option 2, souping up our nation’s deportation engine and shipping all of the undocumented back to where they came from?  As a matter of logistics and bureaucracy, can our nation truly make that happen?  Of course it can, assuming a collective hardening of our hearts, a cash infusion in the billions, and a 3000% increase in our corps of Homeland Security agents and prosecutors.  We need only go back to World War II for successful mass round up playbooks.

Then there are the judges and due process.  All but a few of the 12 million will be entitled to a removal hearing under current law, where a Department of Justice administrative judge presides and reviews the charges against the subject foreign national and considers  available defenses.  Thus, we have to figure on a 30 fold expansion of our current roster of immigration judges, and a commensurate budgetary expansion to cover the costs.

Strange as it sounds though, the path to deportation for a decent number of the undocumented may actually turn out to be a path to citizenship.  That is because individuals who have been living here more than a decade, have otherwise obeyed the law, and can demonstrate that their forced exodus would pose extraordinary hardships to a US citizen or resident spouse, child or parent, can be considered for “cancellation of removal” – a defense avenue that leads to issuance of a green card, and not deportation.

So that leaves option 3, a path to legalization.  No matter how you slice it, this option involves rewarding and forgiving the law breaker (albeit, the equivalent of a traffic law under our current system) and absorbing them into our society with the filing of specified documentation and the payment of a fine.  Yes, the vast majority of these applicants are good, decent and hard-working folks, who will no doubt continue to be an unquestionable net-plus for our society: paying taxes, buying houses, investing in our communities and even creating jobs.  Further, the entire program will be paid for by applicant filings fees and fines.

Even still, for certain constituencies in our nation, this does not sit well.  Sure, the “no amnesty” crowd has their decent share of xenophobes, but there are no doubt thoughtful folks out there who just do not like the idea of a nation conveniently disregarding its laws when they become practically or politically unworkable, and forgiving its lawbreakers.  Even so, the “round em’ up” option, in the end, is impractical and inhumane.  And given the status quo and the broken system now in place, a path to citizenship is the option that makes the most sense.

So let’s address the ever-present, ambiguous counterpoint that “we first need to secure the border,” let’s decide what a “secure border” means, then let’s commit to secure it.  Let us avoid letting side show issues serve as platforms for political theatrics, distraction or deal killers.  From there, let’s heed the calls of the legislative leaders from both sides of the aisle, and of our current and past President.  Let’s take the inevitable, sensible next step of absorbing a population of hungry, hard-working, tax payers and pass legislation that realistically addresses this lingering issue and serves the practical needs of our nation’s families and businesses.

PUBLISHED June 14, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

Published:  March 9, 2013

With over 11 million+ undocumented individuals living in the U.S. and only a fraction of that population currently the subject of removal proceedings, a commonly asked question is:  how does one become unlucky enough to end up under the radar of immigration authorities and placed in removal proceedings?

Firstly, the vast majority of folks in the U.S. without immigration status generally evade detection, and that’s because, they generally steer clear of criminal activity.  If you are in the U.S. living and working without immigration status (which, by the way, is not criminal behavior), and are otherwise abiding by our nation’s laws, there is only one reason you will end up in removal proceedings:  bad luck.  That’s because immigration authorities are not traveling from town to town rounding up folks and asking for their “papers”.  Simply, it takes some other stroke of luck…make that bad luck, for an undocumented individual to come to the attention of immigration authorities and placed in removal proceedings.

Based on experiences with clients who have visited my office and hired me to defend them in removal proceedings, the following seem to be the most common scenarios leading to the initiation of removal proceedings against an individual living in the U.S. without immigration status:

Traffic stop:  Depending on the jurisdiction, a local police officer may take delight in contacting U.S. Immigration and Customs Enforcement (ICE) during the course of a traffic stop.  Mind you, many municipalities across the nation have specific rules against their police contacting ICE, but most do not have such rules.  The chances a traffic stop will lead the police officer to contact ICE increases exponentially if the officer has reason to believe the driver of the automobile has been using alcohol, or has outstanding warrants for other criminal cases.

Criminal Arrest:  if an individual is arrested on criminal charges – be it a misdemeanor or felony, and whether substantiated or not – there is a decent chance the arresting officer will contact ICE if he comes to conclude the individual is in the U.S. without immigration status.

Denied Application for Permanent Residence:  If an individual applies for permanent residence, say based on a marriage to a U.S. citizen, and for some reason the marriage falls apart, or immigration authorities suspect the marriage is a sham, it is not uncommon for a denied applicant to receive a ”Notice to Appear” in the mail advising them to appear in court for the initiation of removal proceedings.

Denied Asylum Application:  If for one reason or another an application for asylum is denied at the initial Asylum Office level – the Asylum Office – and the applicant is no longer in valid immigration status, the Asylum Office will issue a “Notice to Appear”, instructing the applicant to appear in court.  The good news is that the individual will have another chance to present his case for an exhaustive reconsideration by an Immigration Judge.

Reported to ICE by a private individual:  ICE receives tens of thousands of complaints from private parties looking to have this or that undocumented individual deported.  Given obvious limitations in their investigative and prosecutorial capabilities, ICE can only act on a small fraction of such complaints, and usually only if there is evidence the reported individual is also engaging in some sort of criminal activity

Travel in the U.S. Near An International Border:  undocumented individuals riding in a truck, car or train near the U.S./Canada, or U.S./Mexico border have increasingly become the subject of stops by immigration authorities, specifically agents from Customs and Border Protection (an ICE sister agency under the Department of Homeland Security umbrella).  This is particularly true of truck drivers and train riders in the Northeast, and Northwest and truck drivers in the Central and South Texas area.  Also not uncommon is the sad case of automobile GPS systems gone bad, and unsuspecting undocumented folks being guided into Canada by a GPS system programmed to take them to their destination with the most “efficient” route.  When a GPS suggested route leads too close to Canada, the undocumented car driver/rider is better off being guided by a paper map.

Green Card Holders Can End Up in Removal Proceedings Too

The following are the most common paths through which lawful permanent residents end up in removal proceedings:

Lawful permanent residents who apply for U.S. citizenship or for renewal of their green card will have to appear for fingerprinting, a process that will reveal any and all criminal arrests – even cases that have been dismissed or expunged.  If the Homeland Security official who ultimately reviews the application sees a criminal conviction possibly places that resident in a “removable” class, the resident will likely, eventually receive a Notice to Appear for removal proceedings.  Further, applicants for citizenship sometimes will have their underlying green card application readjudicated to see if the basis of their green card application (e.g. marriage, job offer, etc.) was legitimate.

The criminal background of a permanent resident seeking reentry into the U.S. following international travel will always rear its ugly head.  That is, when a green card holder appears before an inspector from Customs and Border Protection, the resident’s criminal background will be a touch screen away.  That’s not to say that any kind of criminal background will prompt the initiation of removal proceedings, although it’s exceedingly important for green card holders “with a past” to have a sense of what is on the inspecting officer’s radar, and the type of criminal record that might prompt initiation of removal proceedings.

The completion of a criminal sentence:  individuals being released after a prison term, or merely just completing the terms of their probation, are sometimes surprised to get a visit from an ICE officer and served with a Notice to Appear due to the nature of their criminal conviction.

Lastly – Being Placed in Removal Proceedings Is Not Necessarily the End of the Line (and no matter the individual’s immigration status)

Rather, it’s the start of proceedings, and a longer “conversation”……, between the foreign national, an ICE attorney and an Immigration Judge.  Integral to that conversation are the legal defenses the foreign national, whether a permanent resident or undocumented, can assert.  Such defenses may very well lead an Immigration Judge to issue an order terminating proceedings, and allowing the individual to remain living in the U.S.  Sometimes an individual may enter removal proceedings in an undocumented state, and leave these proceedings being issued a resident card.  For those without many, or any options in terms of a legal defense in proceedings, it’s imperative that a maximum effort be extended to present humanitarian concerns to the prosecuting ICE attorney, and request an exercise of prosecutorial discretion.  Needless to say, an effective defense in removal proceedings, starts and ends with legal representation by seasoned and competent immigration counsel.

PUBLISHED March 9, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

On March 30, 2012, US Department of Homeland Security/Citizenship and Immigration Services first announced its plan to implement a “stateside” I-601 Waiver program, an initiative for processing a “waiver of inadmissibility” for certain applicants for permanent residence who under current law, are ineligible to undergo final green card processing in the U.S.  Under the current system such individuals must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country.  With the new stateside waiver program, however, instead of facing a 3 month or so wait to receive a decision on their waiver application while outside the US, applicants will only need to wait as little as a few days or week outside the US, since the 3 months of processing will now take place before the applicant’s departure.  With the most recent announcement, this program is set to take effect starting March 4, 2013.

Who benefits from this new program?  With some exceptions, the vast majority of applicants are spouses of U.S. citizens who have been present unlawfully in the U.S. for an extended period after previously entering the U.S. without being inspected/without a visa.  Unless they are covered under INA Section 245(i) (another discussion), these applicants are unable to “adjust” their status and undergo all immigrant processing in the U.S.  This class of applicants is to be distinguished from those who merely overstayed their nonimmigrant visas (excluding crewman and K-1 entrants), and who continue to be eligible to adjust status in the U.S. if they marry a U.S. citizen, notwithstanding their having overstayed their visa status or engaged in unauthorized employment.

What exactly is being processed “stateside” vs. at a U.S. consular post outside the U.S.?  It’s an I-601 Waiver Application to excuse an applicant’s period of 6+ months of unlawful presence in the U.S., and the consequent 3 or 10 year bars to reentering the U.S.    An I-601 application is approved only if the applicant can demonstrate that his denied reentry will pose extreme and unusual hardship for his U.S. citizen or permanent resident spouse or parent. Of course, there’s no guarantee all applicants for a waiver will be approved under the program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 or 10 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country.  Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there truly is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived or excused.

What is the first step for those benefitting from this new program?   An I-130 visa petition on behalf of the foreign national in question must be filed and US DHS/CIS must approve the petition, a process that takes anywhere from 3 to 6 months.  And such a petition can be filed immediately, and with no need to wait for March 4, 2013 to submit the petition.  As stated, it’s mainly spouses of U.S. citizens that will be benefitting from the program although other classes of family based immigrants may also be helped by the program.  But for spouses of U.S. citizens, an immigrant visa becomes immediately available upon the approval of the petition, and the foreign national’s immigrant visa is immediately ripe for processing.  Within weeks after the I-130 petition is approved by US DHS/CIS, processing shifts to the U.S. Department of State’s National Visa Center and the parties are contacted to facilitate immigrant processing, and under the new program, the processing of the stateside waiver application.

Must the applicant appear for an interview on the waiver?  No.  Applicants will be directed to file their I-601 application and supporting documentation with DHS/CIS by mail.  As of this writing, DHS/CIS’ California Service Center will be making a decision on the application based on the documentation presented, and without conducting a face to face interview.  Such a protocol makes the preparation of a thorough and well documented waiver application all the more important, since its only by way of documents that applicants get a shot of being approved.

More information about the program can be obtained by way of the US DHS/CIS website:  www.uscis.gov

In any case, before proceeding with such a filing, it is highly advisable for prospective applicants to first consult with a knowledgeable and trustworthy immigration attorney to confirm eligibility and provide a frank assessment of the risks at play and prospects for success.

PUBLISHED January 3, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

In the past week, Janet Napolitano, our top Department of Homeland Security official, announced that a removable foreign national’s “long term same sex” relationship in the U.S., like any other family relationship in the U.S., will be a relevant consideration in assessing whether that person should be a “priority” for immigration enforcement and appropriately the subject of removal proceedings (formerly deportation proceedings). This new factor will become a part of a formula that has emerged over the past year as part of a new Department of Homeland Security policy to determine against whom removal proceedings will be initiated, or whether proceedings will continue to be prosecuted in a given case.

Discretionary decision making by law enforcement authorities in terms of when and how law-breaking individuals are prosecuted has always been a part of our state federal, state and local governments’ modis operandi, especially when it comes to non-criminal infractions, such as violations of our country’s immigration laws. With more than 300,000 removal proceedings cases pending, the Obama administration program embarked upon the task of prioritizing these cases for enforcement and pursuant to a variety of factors. That assessment results in either an exercise of prosecutorial discretion to seek “administratively closure” of a pending removal case, or to continue prosecution for removal of the foreign national in question. Administrative closure effectively, and indefinitely, puts a halt to the deportation process. As initially envisioned when the policy was rolled out a year ago, the exercise of prosecutorial discretion would ultimately allow the subject foreign national to be eligible to obtain an Employment Authorization Document, an aspect of this initiative that continues to remain up in the air.

As stated, the priority assessment is also a component of Homeland Security agency decision making in deciding whether to initiate removal proceedings against a given “removable” foreign national in the first place.

Exactly what constitutes a “long term same sex relationship” remains to be determined, and no doubt, future administration guidance is forthcoming. Pursuant to previous administration policy, foreign nationals deemed a priority for initiation or continuation of removal proceedings include those with nearly any type of criminal conviction, especially those with convictions involving sexual abuse or exploitation, drug distribution or trafficking. Other priority foreign nationals include those posing a “significant threat to public safety”, human rights violators, gang members, individuals previously removed from the U.S., individuals who have committed immigration fraud, and individuals who have an egregious record of immigration violations.

Classes of removable foreign nationals that should be considered for “non-priority” enforcement status, and thus meriting an exercise of prosecutorial discretion, include: (1) current members or veterans of the military or the spouse or child of such an individual; (2) youths who have been in the United States for more than five years and have pursued educational opportunities in the United States – including those eligible for consideration under the new Deferred Action for Childhood Arrivals (“DACA”) program; (3) individuals over 65 and who have lived in the U.S. for 10 years or longer; (4) crime victims; (5) individuals who have been LPRs for 10 years or longer who have a single, “minor” conviction for a non-violent offense; (6) individuals with serious mental or physical conditions and (7) individuals who have a “very long-term presence” in the United States, and who have an immediate family member who is a U.S. citizen, have established compelling ties to the United States, or have made compelling contributions to the United States.

The year old policy has provided hope to many “non-priority” individuals who were previously facing deportation, but now are able to continue to live in the U.S., albeit in a limbo like status. Certainly, this most recent policy initiative will come as a huge relief to a whole new class of removable foreign national whose only family ties here is their long term same sex partner.

PUBLISHED October 1, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

Excitement and Confusion Reign as Obama’s Deferred Action Program is Implemented

Is this complicated? Could I end up in removal proceedings if I apply? Will my family end up in removal proceedings? Will a filing under the new program disqualify me from a green card through my pending family based petition? How long will it take for me to get my work permit? These are but a few of the dozens of questions raised by clients in the weeks immediately following the unveiling of the Deferred Action for Childhood Arrivals (DACA) program. Most recently, on August 14, the Department of Homeland Security (DHS) released the actual forms and filing instruction details, including news that as of August 15, DHS would start receiving applications. All the while an excited public remains understandably confused and scared about what they are getting into.

Although one might be tempted to answer the first question above with a “no”, the existence of the questions that follow speak to the fact that the program is as gray, as it is black and white. Its of course not to say folks should stay away from this program and not file. On the contrary, most eligible applicants may feel it worth whatever risk is at play since they stand to exponentially improve the quality of their lives and professional/educational opportunities with the issuance of an employment authorization document.

In sum, prospective applicants, in order to get a good night’s sleep after deciding to file – or not to file, must understand the risks at play and feel comfortable with the answers to their questions before putting their applications in the mailbox.

Back to the basics requirements. To be eligible under the program and receive a 2 year employment authorization, applicants must:

A) be in school, have completed high school or their G.E.D., or are an honorably discharged veteran from the U.S. armed forces or Coast Guard,
B) have continuously resided in the U.S. since June 15, 2007 and up to the present,
C) have not been convicted of a felony, a “significant” misdemeanor, or 3 “insignificant” misdemeanors,
D) came to the U.S. prior to their 16th birthday,
E) entered the U.S. without inspection prior to June 15, 2012, or whose immigration status expired as of that date,
F) were physically present in the U.S. on June 15, 2012, and at the time of submitting the DACA application and
G) were under the age of 31 as of June 15, 2012

Back to some more questions: Could the filing of a DACA application lead to removal proceedings? Unlikely. While the only thing we know for sure is that approved applicants will be issued 2 year employment authorization documents, it is most unlikely approved applicants, or any applicants – other than those with more serious criminal histories, will ever be placed in removal proceedings as a result of filing for DACA. Emphasis on the word “unlikely”.

But what if Mitt Romney is elected and he decides to not only reverse Obama’s DACA initiative, but to eventually turn against those applying by placing all applicants in removal proceedings? This is possible – as is a Chicago Cubs World Series win, but in my estimation, unlikely for a host of logistical and PR reasons. For prospective applicants truly concerned about such a scenario, the answer is quite simple: wait to decide until after the election.

If Obama wins, DACA applicants may feel more comfortable moving forward, knowing they are protected for at least another 4 years, and perhaps even beyond in the event Obama succeeds in pushing a permanent legislative mandate.

If Romney wins however, possible scenarios might include: a) a continuation of the DACA program (and also maybe even pushing Congress to enact a permanent legalization fix), b) a discontinuing of the program, but with no adverse action taken against applicants or c) adverse action taken against applicants, i.e. having applicants placed in removal proceedings.

There is no question that scenario “c” above, although remote, is scary, and so scary, perhaps, to prompt one to hold off. But also without question, the benefits of taking action now, no matter the risks, again, include the enormous life transforming event of being issued an employment authorization sooner, which means sooner eligibility to receive a social security number, which then means sooner eligibility to receive a driver’s license and/or state i.d. By holding off, the prospective applicant may very well find themselves at risk of scenario “b” where they are shut out of the program, and unable to benefit from whatever small window might now present itself.

Some quick answers to the remaining questions from above:

* Will my family end up in removal proceedings? Very, very, very (did I say, very?) unlikely.

* Will a filing under the new program disqualify me from a green card through my pending family based petition? In the vast majority of cases, no.

* How long will it take for me to get my work permit? No one knows for sure, but I would guess, within a 90 to 180 period following filing.

The decision to proceed, or not proceed, with a DACA application is of course a personal one, and depends on the individual’s circumstances, and overall risk tolerance. But the worst thing a prospective applicant can do is make an uninformed decision, whether it be to file, or not to file. A decision based on a mistaken impression of the law and process is something all prospective applicants must avoid.

PUBLISHED August 16, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

To address the various issues presented by the hundreds of thousands of undocumented individuals living in their state, including the security of their state’s border with Mexico and the drain on state coffers, the State of Arizona took the extraordinary step of enacting a state law criminalizing violations of U.S. immigration law. Specifically, the Arizona law was designed to empower state law enforcement agencies with 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 serving a state sentence. Violators of this law however, were to 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. On June 25, 2012, the U.S. Supreme Court, in a split decision, weighed in, declaring most of the law as unconstitutional, as it would enable the State of Arizona to intrude on authority the US Constitution specifically and exclusively delegates to the federal government.

The Supreme Court majority, in arriving at its decision to strike down most of the provisions, declared that 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. According to the decision, Arizona may not prosecute a violator of U.S. immigration law in a state criminal court, since a) U.S. immigration laws are almost entirely civil in nature (and not criminal laws) and b) are to be enforced solely within a federal law enforcement context. Left in place however, is one of the law’s most controversial features – the section some call the “show me your papers” provision, requiring local law enforcement personnel to inquire into a person’s immigration status if the official suspects the person is in the country illegally.

The Supreme Court’s decision can be seen as just one more percolating event as our society continues on the path of addressing, or perhaps not addressing, the reality of having 12 million living in the U.S. without legal immigration status. Other percolating events include President Obama announcing an executive “Dream Act” type initiative to allow certain young adults who were brought to the U.S. while under the age of 16, to live in the U.S. legally and with employment authorization for at least a 2 year period. The percolating big picture of course also features opposing voices in the conversation, including various prominent politicians, and even Supreme Court Justice Antonin Scalia, who accuse President Obama of failing to enforce current U.S. immigration laws and of exercising powers not within his authority by implementing this new Dream Act type program.

As stated previously in this column, 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. And of course, let’s not forget that when it comes to immigration law enforcement, contrary to what many vocal Republicans would today have us believe; it is President Obama who has been enforcing U.S. immigration law like no other President in recent history.

In realistically assessing the options available to address the question of what to do with our society’s undocumented population, one can be sure the option of initiating removal proceedings against 12 million individuals 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 July 3, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

Firstly, a review: On March 31, 2010, the U.S. Supreme Court issued a decision in the case of Padilla v. Kentucky, declaring that noncitizen criminal defendants seeking to plead guilty have a constitutional right to be advised by their criminal counsel of the deportation consequences of such a plea.

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.

In examining the evolution and current state of our immigration laws over the past century, the U.S. Supreme Court in Padilla expressed concern regarding non-citizen criminal defendants’ 6th Amendment rights and their unknowing acceptance of the disproportionate consequence of deportation:

“Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”

For non-U.S. citizens facing deportation (removal) because of their uninformed acceptance of a guilty plea, the recent Supreme Court decision may very well breathe new life into their deportation defense. That is, when a non-citizen relinquishes a legitimate defense to the underlying criminal charge based on the assurances of their then criminal counsel, a petition to vacate or reopen the underlying conviction (also known as post-conviction relief) may very well now be viable. One of the big questions that gets considered in the analysis, however, is whether in fact a legitimate defense to criminal charges was in fact relinquished, or whether the accused really had nothing to support a defense and their ignorance in taking the uninformed guilty plea was of no practical consequence. With post-conviction relief often being a non-citizen’s last line of defense in removal proceedings and final option to remain in the U.S., Padilla v. Kentucky may turn out to be the fresh pretext upon which the criminal court can hang its hat on in reversing the conviction.

However, left unaddressed by the Supreme Court in Padilla was the question of how the decision would impact those who accepted guilty pleas – with toxic immigration consequences – before Padilla was decided. Over the past 2 years, U.S. Courts of Appeal have issued conflicting rulings as to whether Padilla should be applied retroactively, that is to guilty pleas entered into prior the Supreme Court’s pronouncement in March, 2010.

In this regard, the U.S. Supreme Court just today, in Roselva Chaidez v. United States, agreed to consider whether Chicago resident Roselva Chaidez, a 56 year old Lawful Permanent Resident of the U.S. (but Mexican citizen) who came to the U.S. 40 years ago, should be deported as a result of her guilty plea to a 2003 charge of submitting a fraudulent auto insurance claim. Although she successfully completed a term of four years of probation and paid $22,500 in restitution, federal immigration authorities, in 2009, commenced deportation proceedings against her due to this criminal conviction. In response, Ms. Chaidez proceeded back to the criminal court to attempt to undo her criminal conviction – citing Padilla – on the basis that her criminal attorney failed to inform her that deportation was a potential consequence of her guilty plea.

Late last year, her effort to vacate her conviction was rejected by the U.S. Court of Appeals, 7th Circuit, because, according to the 7th Circuit, Padilla was not intended to be applied to guilty pleas entered into prior to the Supreme Court ruling. Oral arguments before the U.S. Supreme Court in Chaidez are expected in October, and a decision likely by early 2013.

PUBLISHED April 30, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

President Obama has always made it known that he favors the enactment of some form of comprehensive immigration reform to allow for a “path to citizenship” for at least some of the approximately 12 million living in the U.S. without legal immigration status. During his term, it’s been a Republican Congress that’s been the main obstacle to getting any type of immigration reform initiative passed, whether it be the DREAM Act, or more comprehensive reform proposals. If you are wondering how the Republican candidates for President would approach the issue – below are direct quotes attributed to each of them, along with my own peanut gallery assessment:

Mitt Romney
“My view is, people who have come here illegally, we welcome you to apply but you must get at the back of the line, because there are millions of people who are in line right now that want to come here legally. I want those to come here legally. Those that are here illegally have to get in line with everybody else.” [Republican Debate, December 15, 2011]

RH – What line are you talking about Mr. Romney? The vast majority of undocumented individuals currently have no avenue toward legal status in the first place, and thus have no line to get into! This sounds good, but has no basis in reality. Maybe, like most politicians, he is just saying what he thinks the public wants to hear just to get elected, and once elected will do whatever suits his political agenda and survival. After Iowa, it looks like BS and nice sound bytes take you places though. Slick guys finish first?

“If I were elected and Congress were to pass the DREAM Act, would I veto it? The answer is yes.” [Washington Post, December 31, 2011]

RH – Same assessment as above. Sounds tough, and that’s what Romney thinks he has to sound like on immigration issues. Any reasoning he would cite, like in the first quote, would likely have no basis in reality. Nevertheless, slick guys appear to finish first.

“As President, [I] will also work to establish a policy that staples a green card to the diploma of every eligible student visa holder who graduates from one of our universities with an advanced degree in math, science, or engineering. As President, a first step that [I] will take is to raise the ceiling on the number of visas issued to holders of advanced degrees in Math, Science, and engineering who have job offers in those fields from US companies.” [Believe in America, September 6, 2011]

RH – Great idea, and sounds great.

Newt Gingrich
“I do not believe that the American people are going to tolerate going after somebody who has been here 25 years, who has a family, has children and grandchildren, belongs to a local church. What I proposed is very standard things. Control the border by January 1, 2014. Make English the official language of government. Go to a much better visa program that’s much…that makes it more desirable to visit the U.S. legally. Go to a better deportation program to move people out who shouldn’t be here.” [CBS News, December 18, 2011]

RH – Congratulations Newt. You may win the award for the most honest of this bunch. Your answer is practical and real. Be careful though, honesty may not get you too far in this race. The tougher, “law and order” talk seems to be what most of the other politicians think will win the day.

“Let me start and just say I think that we ought to have an H-1 visa that goes with every graduate degree in math, science and engineering so that people stay here.” [Republican Debate, November 22, 2011]

RH- Great idea! Sounds great.

Ron Paul
“Somebody who’s been here and it’s their country I think there should be a program to bring them into the fold…but I want it to be done systematically. I think we need more efficiency at our borders, and allow the people to come in, especially for people who can take care of themselves. But you ask about what we do with 11 million and I would say you have to work out a program of assimilation, but you can’t just say borders don’t count and people should be rewarded for breaking the law.” [Univision, October 2, 2011]

RH- same commentary as for Newt. Its honest, real talk. Not as sexy as law and order though.

“End Birthright Citizenship – As long as illegal immigrants know their children born here will be granted U.S. citizenship, we’ll never be able to control our immigration problem.” [Ron Paul 2012]

RH- whether you agree with his stance or not, he is honest and truly believes what he is saying, particularly regarding the attractiveness of US citizenship for all children born here. His blunt commentaries appear to be getting him places.

Voted “yes” on H.R. 3736, a bill that increased the number of highly skilled workers from 65,000 to 115,000 by the year 2000. [U.S. House of Representatives, September 24, 1998]

RH- consistent with earlier commentary, he is honest and realistic on this issue as well. What planet he lives on other issues, such as foreign policy, is a whole other question.

Rick Perry
“Amnesty is not on the table period. There will be no amnesty in the United States. We’re a country of law and the idea that we’re going to tell people that somehow or another that that’s all forgiven is not going to happen.” [ABC News, November 29, 2011]

“But I do think that there is a way. That after we secure that border that you can have a process in place for individual who are law- abiding citizens who have done only one thing, as Newt says, 25 years ago or whatever that period of time was, that you can put something in place that basically continues to keep those families together.” [Republican Debate, November 22, 2011]

RH – Amnesty…a word loaded with toxicity in the immigration debate. However Rick, there is already a de facto amnesty in place now, as the US government is looking the other way for the millions in the U.S. without status. True to his inner character, Rick comes off like he wants it both ways and talks from both sides. He is not brave like Newt and some of the others – who says it like it is. Too slick for his own good it seems.

“But if you say that we should not educate children who have come into our state for no other reason than they’ve been brought there by no fault of their own, I don’t think you have a heart. We need to be educating these children, because they will become a drag on our society. I think that’s what Texans wanted to do.” [Republican Debate, September 22, 2011]

RH – sounds a little braver, but he tends toward back pedaling whenever one of his controversial positions, such as this, are taken issue with. After Iowa, he seems to be on his way out anyway.

“We need highly technical, trained engineers and biomedical scientists. And a lot of times, you can’t get those people because they can’t get an H-1B visa, for instance.” [CNBC, September 29, 2011]

RH- True!

Rick Santorum
“The idea people who are here 20 or 25 years and came here illegally only committed one illegal act, well, you can’t be here and commit one illegal act because almost everything you’re doing while you’re here is doing things against the law…So we say, we should let that happen. We shouldn’t break up families. We should let them all come…This is false compassion.” [CNN, December 6, 2011]

RH – Honest and practical. No waffling, so it seems.

“First off, I’m actually for a system that allows for people to come here, if they come here on a student visa or they come here on a visa that — you know, where they’re getting some sort of higher education or they’re learning some great skills that are good and necessary for the country — my feeling is, you know, if they graduate and do well, we should — you know, we should have — actually give folks the opportunity to have a green card and to stay here and work.” [Fox News, November 29, 2011]

RH – Sounds good. Is good.

Michele Bachmann
“Well, I don’t agree that you would make 11 million workers legal, because that, in effect, is amnesty. And I also don’t agree that you would give the DREAM Act on a federal level.” [Republican Debate, November 22, 2011]

RH – She sure is honest, and she does not waffle. Is she crazy? Is there any practicality to her approach? Those are separate questions. My take on the practicality of deporting 11 million people – including placing them in removal proceedings and providing “due process”? – HA, Good luck federal government! Anyway, after IOWA, all of her talk, and my commentary, is perhaps moot.

“We think about the United States and what’s in the best interests of the United States. If we can utilize these workers, like Steve jobs wanted to, then we need to offer those visas. That will help the United States. But I don’t agree that we should make 11 million workers who are here illegally legal.” [Republican Debate, November 22, 2011]

RH – Practical and smart on the visas for professionals and skilled workers. Not so much on the other issue.

Jon Huntsman
“I think you have to take a very practical approach to having them [undocumented immigrants] wait in line. There have to be certain requirements. Language requirements. English as an official language for example. Paying back taxes, if that is applicable. There needs to be some steps along the way that would suggest that they have paid whatever price and penalty in order to come out of the shadows and to gain citizenship in this country. You have to create a system whereby you can move towards citizenship. You can’t wish people away. You can’t just use rhetoric that says we’ll ship people back.” [Think Progress, September 19, 2011]

RH – Honest and practical, except for that “line” comment.

“I believe immigration is a human as well as an economic issue, and that children of illegal immigrants shouldn’t be punished for the sins of their parents.” [CBS News, September 23, 2011]

RH – Honest and practical.

“We can’t process people. The H1B visa process is broken. We need to bring in brain power to this country to shore up our economic might. We need to bring in foreign capital to raise real estate prices as well.” [Republican Debate, September 12, 2011]

RH – Smart, practical and honest!

PUBLISHED January 4, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

Not surprisingly, the Obama Administration’s announcement of a re-shuffling of ICE enforcement priorities, including the administrative closure of certain pending removal cases of non-criminals – and with issuance of employment authorization to affected individuals, has left many immigrant families confused and misinformed.   In this case, the confusion and misinformation stems from both a lack of specifics provided on the program to date and the vulnerability and desperation of many impacted and non-impacted individuals.

As previously discussed here, the cases of some 300,000 removal (deportation) cases pending on the immigration court docket will be reviewed and considered for “administrative closure”, assuming the individual is a non-criminal and has humanitarian factors at play in their case, such as U.S. citizen family and evidence of good moral character.  Administrative closure effectively, and indefinitely, puts a halt to the deportation process.  Furthermore, an individual benefiting from the new administrative closure mercy will be eligible to obtain an Employment Authorization Document.

Since the initiative was announced a few weeks back, no further details have been given on this program, although there seems to be no good reason these impacted individuals should not be taking immediate action to seek ICE’s exercise of prosecutorial discretion for the dismissal or closure of their cases. But, for an individual to benefit from this program, they must be in removal proceedings already. Further, as of yet, no details have been given how individuals benefiting from the closure of their removal cases can apply for employment authorization.

With the lack of specifics and the hysteria most undocumented individuals are prone to at the sound of any type of forgiving immigration initiative, there is much confusion and misinformation in the various communities of exactly what this program is all about.   Even worse, there are professionals and pseudo/wannabe professionals in these communities seeking to exploit the lack of information and the desperation of the undocumented population by presenting the program as an amnesty – where an application can be submitted by any undocumented person, and with a professional and filing fee to be collected for the processing of such a fictitious case.

So, for those interested in this new program, here are some key points to take away at this stage:

*  The individual must be in removal proceedings to benefit from the program,

*  A request seeking prosecutorial discretion and administrative closure of cases of impacted individuals can be started now, although the procedure to facilitate issuance of employment authorization has yet to be an be established and,

*  This program is not an amnesty, or a program to be signed up for by any undocumented person.

PUBLISHED September 12, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

I can’t help but think the Obama Administration is doing its best to set the groundwork for enactment of comprehensive immigration reform and a path to citizenship for the 15 million undocumented in the U.S., by ironically, instituting an unprecedented number of deportation cases and criminal prosecutions against employers and visa fraud perpetrators. I observed the same type of Executive Branch activity during the Bush II administration, where an administration attempts to give the population at large the impression that our immigration laws really do have teeth and that the U.S. government really means business when it comes to enforcing our laws and preserving the integrity of our visa regulations.

Of course there are so many factors, political and otherwise, that will determine whether a legalization plan will gain any traction, even if President Obama is reelected. Here are just a few examples of immigration enforcement related criminal prosecutions carried out by U.S. Immigration and Customs Enforcement on behalf of the U.S. Department of Homeland Security, as well as U.S. Department of Justice – all Executive Branch agencies – and all in the past month:

Manager of 2 staffing companies in Chicago area sentenced to 18 months in prison for hiring undocumented workers: The individual sentenced was the president of 2 companies for “knowingly hiring” 10 undocumented workers and assigning them to work in various warehouses in the Chicago area to perform janitorial services, freight loading and assorted construction duties. He paid the workers in cash and failed to withhold payroll taxes, among other violations.

Owner of Thai and Japanese restaurants in Boulder, Colorado and Louisville, Kentucky was sentenced to 1 year in prison for exploiting and harboring undocumented workers and tax evasion: This Thai national was working in the U.S. pursuant to an
E-2 investment visa and among his many criminal acts, he forced his undocumented Thai employees to enter into unconscionable employment agreements and pay exorbitant fees to facilitate fraudulent immigration applications. He also failed to withhold and pay payroll taxes. This individual also faces deportation from the U.S. following his release from prison since he is not a U.S. citizen.

New Jersey man sentenced to more than 2 years in prison for filing dozens of fraudulent visa applications on behalf of undocumented workers: This individual bilked foreign nationals paying anywhere from $5,000.00 to $30,000.00 to facilitate
the preparation and filing of fraudulent immigration paperwork, including applications premised on fictitious employment as religious workers or IT professionals, or fraudulent evidence to support an “amnesty filing” confirming their continuous physical presence in the U.S. prior to 1982.

Mexican national was sentenced to almost 5 years in prison for illegally reentering the U.S. after previously being deported: This individual was apprehended in Texas and had been previously deported back in 1994 after serving 4 years for a felony drug conviction.

For more information regarding the scope and nature of recent ICE enforcement activities, visit: http://www.ice.gov/news/releases/

 
PUBLISHED February 22, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois