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

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

Recent estimates place the number of illegal or undocumented immigrants in the U.S. anywhere from 10 to 15 million. With very few exceptions, the laws these individuals are violating are civil in nature – similar to most traffic laws, or parking ordinances. Thus, contrary to the pronouncements of countless talking heads in the media, these violators are not “criminals” and necessarily subject to criminal punishment such as a prison sentence. Instead, immigration law violators are subject to the deportation process (now known as removal proceedings) where they will face a judge and an attorney from Department of Homeland Security’s Immigration and Custom Enforcement division (ICE) and the possibility being sent back to their home countries. A significant portion of this population however, may actually emerge from these proceedings in better shape than how they entered, with many eligible for relief such as “cancellation of removal” – and awarded a green card, if they have otherwise obeyed the law, resided in the U.S. for more than 10 years and have U.S. citizen or permanent resident spouses, parents or children who stand to suffer extreme hardships in the event of their deportation. Additionally, other forms of relief in defense of removal proceedings may be available to certain foreign nationals, depending on the facts of their case. Most of the undocumented population however, will likely have no choice but to ultimately pack up and leave.

Given that the vast, vast majority of the undocumented population have no criminal records whatsoever – and are otherwise hard working members of our society, and that the U.S. government has neither the resources nor the will to proceed with removal proceedings against so many millions of people, ICE has recently announced its priorities FOR immigration enforcement. And the release of this announcement just days ahead of President Obama’s July 1 speech to strongly urge our nation’s Congress to push ahead with immigration reform is no coincidence.

Starting with a bold admission that it only has resources to remove, or place in proceedings, up to 400,000 foreign nationals per year, the recent ICE memo proclaims that the following types of immigration law violators will be the focus of ICE efforts to enforce U.S. immigration laws (listed in order of priority):

1. “Aliens who pose a danger to national security or a risk to public safety” – such as individuals suspected of engaging in terrorism or espionage, violent criminals or repeat offenders and criminal gang members.

2. “Recent illegal entrants”, including those recently entering legally, but remaining in the U.S. in violation of their status. The language of the memo implies that immigration law violators who have been in the U.S. for longer periods of time, will not necessarily be a priority for ICE.

3. “Aliens who are fugitives or otherwise obstruct immigration controls”: includes various criminal offenders, individuals previously removed from the U.S. but who have reentered, individuals who are the subject of orders of removal but who never departed, and foreign nationals known to have committed some form of immigration fraud.

The recent ICE directive also indicated that absent extraordinary circumstances, the following classes of immigration law violators should not be subject to detention: those suffering from serious illness, the disabled, the elderly, pregnant women and mothers who are nursing or who are the primary caretakers of children or an infirm person.

Given the context of this recent ICE memo, it is clear that most, if not all, immigration law violators will not be returning to their home countries unless they are ordered to and put on a plane back home (and notwithstanding recent state legislative measures like Arizona’s). We as a nation are then left with one simple question to answer: should an initiative to subject all immigration law violators to removal proceedings be implemented, and if so, are we prepared to hire tens of thousands of government workers to staff such a plan? For certain, based on our government’s immigration law enforcement policies over the past 2 decades, this is not a direction we are headed. If that is the case, then the logical answer that follows would be a legislative agenda featuring comprehensive immigration reform and a path to citizenship for our nation’s otherwise law abiding undocumented – a population who are ready, willing and able to continue as contributing members of our society. President Obama knows this as do most logical Americans, but whether logic will prevail in this discussion is a separate question altogether.

PUBLISHED June 30, 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

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 must be advised by counsel of deportation 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.

The right to counsel was first incorporated into the U.S. Constitution in 1791, with enactment of the 6th Amendment, and the Bill of Rights (the first ten amendments):

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense”

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 breath 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. 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.

PUBLISHED April 1, 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

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