There are at least 11 million folks in the U.S. who are more than a little curious whether immigration reform and a legalization program will ever become law.  With legislators in Congress “marking up” proposals and negotiating the details of a new law, we will no doubt have a better sense of the viability and substance of an eventual measure in the coming months.  In the meantime, undocumented childhood arrivals qualifying for 2 year work permits under the Deferred Action for Childhood Arrival (“DACA”) program continue to receive approvals.

As of March 31, 2013, more than 488,000 Deferred Action for Childhood Arrival (“DACA”) applications have been received by U.S. Department of Homeland Security. DACA applicants are also known as “DREAMERS” since they make up the demographic that would presumably benefit from previously proposed legislation known as the DREAM Act – i.e. young adults brought to the U.S. as children and who have remained in the U.S., through no fault of their own, for an extended period.  The vast majority of DACA applicants have been scheduled for, or have completed, their biometric fingerprinting process.  Importantly, to this point, more than 268,000 applicants have been approved and issued 2 year deferred action status notices and 2 year employment authorization documents (EAD).  These numbers and milestones are consistent with developments our office has seen with our clients’ applications, with clients receiving approvals and EAD’s within 8 weeks of filing in most cases.

In general, our office has been seeing processing times range from 60 days to 150 days, although as more applications are received by DHS, an expanded processing time frame can be expected.  Further, to extent an applicant’s background may involve a complicating factor, such as a criminal arrest or pending removal proceedings, application processing may be a bit slower.   Additionally, the U.S. Department of Homeland Security recently announced that the scheduling of interviews at local CIS offices for certain applicants in the coming month.  In general, interviews will be scheduled for randomly chosen applicants, as well as for applicants whose cases involve factors possibly impacting eligibility.

Demographic Breakdown of Applicants:

Country of Origin and States of Residence

Origin:                                                 Received to Date                                                Approved
Mexico:                                                    354,002                                                             209,978

El Salvador:                                               18,949                                                               10,840

Honduras:                                                  12,603                                                                 6,019

Guatemala:                                                11,817                                                                  6,424

Peru:                                                            6,631                                                                  4,468

South Korea:                                               7,030                                                                   5,476

Brazil:                                                          5,589                                                                    3,374

Colombia:                                                   4,998                                                                    3,038

Ecuador:                                                      4,814                                                                    3,048

Philippines:                                                 3,315                                                                     2,370
 

Top 10 States of Residence:         Received to Date                                                 Approved
California:                                               134,167                                                                   73,104

Texas:                                                       76,438                                                                  49,297

New York:                                                 26,365                                                                  12,324

Illinois:                                                       24,928                                                                   19,055

Florida                                                        20,764                                                                    9,065

North Carolina:                                           17,006                                                                    6,425

Arizona:                                                      16,653                                                                   10,592

Georgia:                                                      15,417                                                                     8,647

New Jersey:                                                 14,390                                                                    8,483

Colorado:                                                     10,105                                                                    6,050

PUBLISHED May 10, 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

As of February 19, 2013, more than 438,000 Deferred Action for Childhood Arrival (“DACA”) applications have been received by U.S. Department of Homeland Security. DACA applicants are also known as “DREAMERS” since they make up the demographic that would presumably benefit from previously proposed legislation known as the DREAM Act – i.e. young adults brought to the U.S. as children and who have remained in the U.S., through no fault of their own, for an extended period. The vast majority of DACA applicants have been scheduled for, or have completed, their biometric fingerprinting process. Importantly, to this point, close to 200,000 applicants have been approved and issued 2 year deferred action status notices and 2 year employment authorization documents (EAD). These numbers and milestones are consistent with developments our office has seen with our clients’ applications, with clients receiving approvals and EAD’s within 8 weeks of filing in most cases. In general, our office has been seeing processing times range from 60 days to 120 days, although as more applications are received by DHS, an expanded processing time frame can be expected. Further, to extent an applicant’s background may involve a complicating factor, such as a criminal arrest or pending removal proceedings, application processing may be a bit slower.

Demographic Breakdown of Applicants:

Country of Origin and States of Residence

Origin                                                                                                        Received to Date
Mexico                                                                                                                 313,722
El Salvador                                                                                                            17,662
Honduras                                                                                                               11,509
Guatemala                                                                                                             10,644
Peru                                                                                                                         6,244
South Korea                                                                                                             5,475
Brazil                                                                                                                        5,283
Colombia                                                                                                                  4,694
Ecuador                                                                                                                    4,585
Philippines                                                                                                                3,128

Top 10 States of Residence                                                                   Received to Date
California                                                                                                               119,466
Texas                                                                                                                       68,005
New York                                                                                                                 24,585
Illinois                                                                                                                       21,602
Florida                                                                                                                      19,336
North Carolina                                                                                                          15,637
Arizona                                                                                                                     14,938
Georgia                                                                                                                     13,946
New Jersey                                                                                                               13,374
Colorado                                                                                                                     8,877

PUBLISHED February 19, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

As of December 13, 2012, more than 350,000 Deferred Action for Childhood Arrival (“DACA”) applications have been received by U.S. Department of Homeland Security. DACA applicants are also known as “DREAMERS” since they make up the demographic that would presumably benefit from previously proposed legislation known as the DREAM Act – i.e. young adults brought to the U.S. as children and who have remained in the U.S., through no fault of their own, for an extended period. The vast majority of DACA applicants have been scheduled for, or have completed, their biometric fingerprinting process. Importantly, to this point, more than 100,000 applicants have been approved and issued 2 year deferred action status notices and 2 year employment authorization documents (EAD). These numbers and milestones are consistent with developments our office has seen with our clients’ applications, with clients receiving approvals and EAD’s within 8 weeks of filing in most cases. In general, our office has been seeing processing times range from 60 days to 90 days, although as more applications are received by DHS, an expanded processing time frame can be expected. Further, to extent an applicant’s background may involve a complicating factor, such as a criminal arrest or pending removal proceedings, application processing may be a bit slower.

Demographic Breakdown of Applicants:

Country of Origin and States of Residence

Origin                                                                   Received to Date
Mexico                                                                       258,708
El Salvador                                                                  15,697
Honduras                                                                       9,998
Guatemala                                                                     8,960
Peru                                                                               5,607
South Korea                                                                   5,167
Brazil                                                                              4,807
Colombia                                                                        4,249
Ecuador                                                                          4,143
Philippines                                                                      2,862

Top 10 States of Residence                              Received to Date
California                                                                      98,531
Texas                                                                           57,542
New York                                                                     21,635
Florida                                                                          17,241
Illinois                                                                           17,224
North Carolina                                                              13,314
Arizona                                                                         12,924
Georgia                                                                         11,914
New Jersey                                                                   11,779
Colorado                                                                         7,124

PUBLISHED December 14, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

As of November 15, 2012, a total of almost 300,000 Deferred Action for Childhood Arrival (“DACA”) applications have been received by U.S. Department of Homeland Security. DACA applicants are also known as “DREAMERS” since they make up the demographic that would presumably benefit from previously proposed legislation known as the “DREAM Act” – i.e. young adults brought to the U.S. as children and who have remained in the U.S., through no fault of their own, for an extended period. The vast majority of DACA applicants have been scheduled for, or have completed, their biometric fingerprinting process. Importantly, to this point, more than 53,000 applicants have been approved and issued 2 year deferred action status notices and 2 year employment authorization documents (EAD). These numbers and milestones are consistent with developments our office has seen with our clients’ applications, with clients receiving approvals and EAD’s within 8 weeks of filing in most cases. In general, our office has been seeing processing times range from 50 days to 100 days, although as more applications are received by DHS, an expanded processing time frame can be expected. Further, to extent an applicant’s background may involve a complicating factor, such as a criminal arrest or pending removal proceedings, application processing may be a bit slower.

As a reminder – The Basics – eligible applicants are “young adults” who:

A) are 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

A filing fee totaling $465.00 is required, as will the submission of documentation to support the applicant’s claim of eligibility. Following the submission of the application and supporting documentation, applicants are being scheduled for biometric processing within approximately 6 weeks.

Important Details in Response to the Most Common Questions:

*“Brief and casual” departures from the U.S. during the above qualifying periods will not negatively impact eligibility, so long as the departure did not take place in the context of a removal proceeding or immigration court order,

* Individuals in removal proceedings are indeed eligible to apply and the application is made directly with DHS/CIS, as any other applicant would proceed,

* Misdemeanors deemed “significant” and thus causing ineligibility – include any conviction for driving under the influence, domestic violence, sexual abuse, burglary, firearms violation, drug distribution or trafficking (but not possession), no matter the jail term, or absence thereof,

* Applicants with any conviction involving a sentence of more than 90 days in prison will be deemed ineligible,

* Applicants with 2 or fewer “insignificant” misdemeanors continue to be eligible for this benefit,

* Applicants with minor traffic violations, such as driving without a license, will not be deemed ineligible because of such offenses,

* Applicants must be at least 15 years old at the time of the application, although if the prospective applicant is in removal proceedings, or has already been ordered removed (but is still in the U.S.), the applicant can even be under the age of 15.

* Following approval of the application, applicants may possibly be eligible to apply for a special document to allow for international travel. Any travel prior to issuance of a travel document may lead to disqualifying consequences.

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

According to many of our nation’s leading pundits and political commentators, it was the “Hispanic Vote” that made President Obama’s reelection possible. What exactly is the “Hispanic Vote”? It seems to have a variety of meanings, although the common theme would be that it is the demographic composed of U.S. citizens with origins in Mexico and Central and South America. President Obama won an overwhelming majority of this segment of our electorate, and no doubt that was as much as result of what President Obama made clear he stood for, as it did with what Candidate Romney’s shortcomings in making clear what he stood for, most notably in the area of immigration law.

Throughout his presidency, including his reelection campaign, Obama was definite about where he stood on immigration and how he would address the issue of having 12 million individuals living in the U.S. without legal immigration status. Whether you agreed with his position or not, you knew what it was – that a path to legalization must be enacted for long-time residents with no significant criminal background and are not burdens on society. In other words, if you are a hard-working, honest, otherwise law abiding, de facto American – albeit undocumented, then there is a place for you continue to live in American society. From there, we have – among other benefits, millions of workers coming out of the shadows, paying taxes and investing in houses and other aspects of our economy.

Obama’s plan is not a perfect solution of course, but to his thinking (which I agree with), it’s better than the alternatives – which would be to 1) commence an unprecedented initiative to place 12 million folks in removal proceedings or 2) continue the status quo – our society’s de facto amnesty – where the spotty enforcement of our immigration laws that has been going on in the U.S. for decades continues, and those here working and living illegally continue to do so, but with always an eye in the rear view mirror.

Romney’s position, I mean positions, on immigration, depended on the day and time you asked him about it. At the Republican debate he unequivocally stated he’d veto the DREAM Act, and was opposed to talk of any comprehensive immigration reform. After getting the Republican nomination, he did an about face, and stated that DREAM Act type legislation is not enough, and that some sort of comprehensive immigration reform, legalization program for all the country’s undocumented was needed. And he had the gall to criticize Obama for implementing Deferred Action of Childhood Arrivals (DACA) – the program which allows certain young adults to obtain a 2 year work permit, stating that such a temporary remedy is inadequate.

Speaking of DACA, it was the point at which Obama announced the program on June 15, 2012, that was one of the most critical moments in his bid for reelection. It was at that moment, he forced Romney into a corner and pressed him for his stance on immigration. It was Romney’s indefinite, flip flopping on this issue that sealed his fate.

From Karl Rove’s melt down on national TV during election night coverage, to the emergence and failures of the mega-financed Super Pacs, the commentators have had excellent material to comment on as they look back on the election and the shortcomings of today’s Republican Party. As to the Republican approach to our nation’s immigration problem, most telling is the fact that the farthest right commentators and politicians – Sen. Lindsey Graham, House Speaker John Boehner, Sean Hannity and Charles Krauthammer all included- appear to have now hopped on the Comprehensive Immigration Reform bandwagon. Along the lines of “if you can’t beat em, join em”, it’s my sense the Republicans will show up to be a meaningful partner to the Democrats on an immigration reform, path to legalization, deal within the coming year.

PUBLISHED November 12, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

The battered spouse, whether a man or woman, is a protected class in the world of immigration law. Sensing that foreign nationals who marry U.S. citizens or residents can become vulnerable to the U.S. spouse’s physical or extreme mental abuse, Congress enacted a variety of laws aimed at protecting these foreign nationals. These laws create avenues for the foreign national to obtain U.S. resident status, no matter the cooperation or support of the abusive U.S. citizen. The avenues are available in the following contexts:

I-360, Battered Spouse Self Petition (for those not yet issued a green card):

Whether the foreign national is in lawful nonimmigrant (temporary) status, overstayed their nonimmigrant status, or entered without a visa in the first place, the I-360 Battered Spouse Self Petition can be a vehicle for a battered spouse to obtain U.S permanent residence, and again, without the assistance or support of their U.S. spouse. Battered spouse self-petitioners must be of “good moral character”, and document their petitions with one or more of the following types evidence: 1) their own detailed affidavits, as well as those of witnesses to the abuse, 2) hospital or police records, 3) order of protection, 4) records detailing any therapy or other mental health services sought by the abused spouse, 5) photographs of any physical injury, 6) affidavits from clergyman. With the approval of a Battered Spouse Self Petition, the foreign national has a direct path to proceed with an I-485, Application to Adjust Status to Permanent Resident.

I-751, Waiver of Joint Petition to Remove Conditional Basis on Permanent Residence (for those issued only a 2 year, conditional green card)

When a foreign national is first accorded resident (green card) status based on marriage, it’s usually for only a 2 year conditional period. At the end of this period, ideally the marriage is intact, and the husband and wife file a Joint, I-751 to confirm and document their cohabitation at time of filing and for the two years following conditional green card issuance. However, when the marriage does not work out, including when the foreign national has been the victim of the U.S. spouse’s physical or extreme mental abuse, a waiver, or an excusing, of the joint petition, is available, and where only the immigrant spouse’s signature is required. An I-751 waiver request will be granted when the foreign national can prove:

a) that the underlying marriage has been dissolved and that the relationship was entered into good faith and not just for the purpose of obtaining immigration benefits,
b) that the denial of the waiver request would result in extreme hardship to the applicant and their family, OR
c) the applicant is a battered spouse and was the victim of physical abuse or extreme mental cruelty at the hands of their U.S. petitioning spouse.

In support of the waiver request, the applicant should be ready to submit documentation, if available, reflecting that for at least some period of time the couple shared a residence, such as joint bank account statements, tax returns, insurance records, credit account statements, photos or other documentation reflecting a shared residence or cohabitation is helpful.

Even more important to waiver filings submitted on a battered spouse basis – as is the case with the self-petition discussed above, is the inclusion of detailed affidavits from the applicant, witnesses and sometimes even a mental health professional, attesting to the sincerity of the marriage and the abuse inflicted upon the foreign national by their US spouse. These affidavits are especially valuable when the joint residence documentation described above is not available – as is not uncommon when the marriage at issue is filled with turbulence or disharmony.

Cancellation of Removal for Battered Spouses: If the foreign national is placed in removal proceedings after, for example, the underlying marriage based application is withdrawn by the US spouse – leading to the denial of the green card application, the foreign national also has the option of applying for Cancellation of Removal as a Battered Spouse before the Immigration Court. This application, if approved, also leads to the foreign national being accorded resident status, with the decision on such an application resting with the Immigration Judge. This application involves many of the same requirements as the I-360 Battered Spouse Self Petition, although applicants for Battered Spouse Cancellation of Removal also must document their physical presence in the U.S. for a three year period leading up to their application AND that their removal from the U.S. would cause them, their child, or their parent, “extreme hardship.” Importantly, battered spouses awaiting a final court date for a hearing on their Battered Spouse Cancellation applications (sometimes up to 2 years), are eligible to receive an employment authorization document.

Obtaining approval of any of these types of immigration filings is never easy. However, half the battle for so many foreign nationals in most any immigration law quandary is getting straight information about their options, and simply knowing which options exist and which do not.

PUBLISHED November 3, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, 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

No doubt by now you have heard the one about the foreign national who walks into the local Secretary of State’s office to get a driver’s license, and walks out a licensed driver, an organ donor AND a registered voter. As a voter registrant, that’s where the story begins to go downhill for many foreign nationals. Whether or not the foreign national goes on to vote, he ends up facing harsh consequences within the green card or citizenship application setting as a result of voter registration or voting. In many circumstances the application is denied, and in some cases, the applicant is placed in removal proceedings. In a decision handed down by the U.S. Court of Appeals, Seventh Circuit this past week, however, the court gives new life to individuals who are facing a denied application, or fighting deportation, as a result of being misled by a government official into registering to vote, or voting in a U.S. election.

In the interest of disclosure, I am the attorney who has been representing the foreign national at issue throughout removal proceedings, from the initial removal hearing stage, to the Board of Immigration Appeals, and now most recently, the U.S. Court of Appeals for the Seventh Circuit. (Importantly, as a federal court case, the matter is of public record, and that includes the identities of the parties and all of the surroundings facts) The case involves a Filipina who was petitioned to live in the U.S. by her U.S. citizen spouse. She eventually joined her spouse in the U.S. on a K-3 visa, and was to undergo the final processing of her green card while in the U.S. But between the time she arrived on her visa, and the time she appeared at her green card interview at the local Homeland Security/Citizenship and Immigration Services office in Chicago, she had an encounter with a government official that would turn her life upside down for the next 6 years.

The encounter was with an official at the Illinois Secretary of State’s office in Bloomington, Illinois, where she applied for her driver’s license. In support of her application, our Filipina presented documentation establishing her identity and legal status in the U.S., including her Philippines passport, and K-3 nonimmigrant visa. In response to her submission, the government official asked her 2 questions: 1) do you want to be an organ donor? and 2) would you like to register to vote? Not supposing her own ineligibility for either – since it was a government official offering up these choices AND after he reviewed her identity and immigration documents – she said yes to both. At no point during this process, did she claim to be a U.S. citizen. From there, she signed where told, was issued her driver’s license, and went home on her merry way. Weeks later, she gets a voter registration card in the mail, thus further, and reasonably, establishing in her mind her eligibility to vote in the U.S. Eventually, she carries out what she sees as her civic duty, and votes in a U.S. congressional election.

At her green card interview several months later, she honestly discloses all of these events in response to the immigration official’s questions about registering to vote or voting in the U.S. And that’s where things get really bad. Not only is her green card application denied, but her work permit is cancelled, and she is eventually placed in removal proceedings.

So how is it that two well-intended, honest folks who go through the trouble of adhering to every rule and instruction in legally bringing a spouse to the U.S., end up having to fight off the recently arrived spouse’s deportation? Answer: the law can be a tangled web, and these folks got caught in it.

No doubt, each of the laws at play were enacted with the best of intentions. Most notably, we have an immigration law that says foreign nationals are to be denied U.S. residence and removed from the U.S., when they vote in violation of state or federal law. And the federal voting law at issue here is such that a non-citizen who votes is considered to be unlawfully voting – no matter what – and even if the voter is acting innocently and does not know it’s wrong to be voting. i.e. no mens rea is required.

However, after many years of litigation, and appeals, the U.S. Court of Appeals has declared that in the context of immigration proceedings, such as in this case, the defense of “entrapment by estoppel” – or official authorization – is relevant in determining whether the specified unlawful conduct took place. That is, when a person reasonably relies on the guidance of a government official in committing some act, that person should not be deemed a criminal or legally penalized if that act turns out to be unlawful.

Put simply, just as we would never ticket a motorist who is waved through a stop sign by a police officer, a foreign national should not be denied their green card and deported after being waved through the voter registration and voting process by government officials. In remanding the case for further proceedings, the Seventh Circuit stated: “if the Immigration Judge does credit (her) statements about what occurred, the Department of Homeland Security should give serious consideration to withdrawing its proposal that she be declared inadmissible and be removed from the United States. A person who behaves with scrupulous honesty only to be misled by a state official should be as welcome in this country in 2012 as she was when she entered in 2004.”

Last week was a good week for this foreign national, and hopefully the process will play out as urged by the Seventh Circuit. For more details on this case, see KEATHLEY v. Eric H. HOLDER, Jr., Attorney General of the United States – No. 11–1594 (Seventh Circuit, August 22, 2012).

PUBLISHED August 27, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

In the past week, the Obama Administration announced it will implement its “Deferred Action for Childhood Arrivals” or “DACA” program on August 15, 2012. That’s the program that will allow certain undocumented young adults who arrived in the U.S. prior to turning 16 to apply for a 2 year employment authorization, and a grant of temporary “Deferred Action” status. Last week’s news release provides more details on the program requirements and answers the most common questions on the minds of prospective applicants. Below is a review of the program’s basic requirements and a discussion of the most common eligibility questions.

The Basics - eligible applicants are “young adults” who:

A) are 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

According to last week’s news release, U.S. Department of Homeland Security/Citizenship and Immigration Services on August 15, 2012 will release and begin accepting a form to be submitted, in tandem with Form I-765 (Application for Employment Authorization) to facilitate DACA processing. A filing fee totaling $465.00 will be required, as will the submission of documentation to support the applicant’s claim of eligibility.

Important Details in Response to the Most Common Questions:

* “Brief and casual” departures from the U.S. during the above qualifying periods will not negatively impact eligibility, so long as the departure did not take place in the context of a removal proceeding or immigration court order,

* Individuals in removal proceedings are indeed eligible to apply and the application is made directly with DHS/CIS, as any other applicant would proceed,

* Misdemeanors deemed “significant” and thus causing ineligibility – include any conviction for driving under the influence, domestic violence, sexual abuse, burglary, firearms violation, drug distribution or trafficking (but not possession), no matter the jail term, or absence thereof,

* Applicants with any conviction involving a sentence of more than 90 days in prison will be deemed ineligible,

* Applicants with 2 or fewer “insignificant” misdemeanors continue to be eligible for this benefit,

* Applicants with minor traffic violations, such as driving without a license, will not be deemed ineligible because of such offenses,

* Applicants must be at least 15 years old at the time of the application, although if the prospective applicant is in removal proceedings, or has already been ordered removed (but is still in the U.S.), the applicant can even be under the age of 15.

* Following approval of the application, applicants may possibly be eligible to apply for a special document to allow for international travel. Any travel prior to issuance of a travel document may lead to disqualifying consequences.

* Additional filing instructions will be available when the form is released on August 15.

PUBLISHED August 6, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois