Category Archives: Immigration

If Obama Was “Deporter in Chief,” What Will Trump Be?

10year92_lgDuring President-Elect Donald Trump’s November 13, 2016 “60 Minutes” interview, he vowed to immediately deport up to three million immigrants. According to him, the U.S. needs to remove people who “are criminal and have criminal records, gang members, drug dealers.”

It sounds like a bold plan—but is it different from existing policy?

During President Barack Obama’s eight years in office, he earned the nickname “Deporter in Chief” from various immigration advocacy groups. His administration reportedly deported more than 2.5 million people from the United States.

And that doesn’t count the million-plus undocumented people who left the U.S. voluntarily or “self-deported” in recent years—in the case of Mexico, numbers that a Pew report said were higher than the number entering, as of late 2015.

And who, exactly, was tops on the list for the Obama administration’s deportation efforts? You can read the list yourself, in a 2011 memo by the Director of U.S. Immigration and Customs Enforcement (ICE).

The memo explains that ICE’s top enforcement priorities (given that the agency lacks the resources with which to deport or remove every undocumented or otherwise deportable immigrant in the United States) include:

  • individuals who pose a clear risk to national security
  • serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind
  • known gang members or other individuals who pose a clear danger to public safety, and
  • individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.

Sound familiar? But according to Donald Trump, there are still three million criminals who haven’t been deported. Except that his numbers don’t seem to have a verifiable source. According to a 2015 study from the Migration Policy Institute, there are a mere 300,000 first-priority undocumented felons in the U.S. and 390,000 “serious misdemeanants.”

It’s little wonder that immigrants’ rights groups are raising concerns that Trump’s intention is to create a pretext with which to justify massive deportations regardless of criminal backgrounds.

Does a Child Whose Parent Might Be Deported Experience Less Hardship Upon Turning 21?

Length of rope almost broken

A widely misunderstood portion of U.S. immigration law called “cancellation of removal” allows an immigration court judge to grant a green card to (instead of ordering deportation for) someone with no status in the U.S. who:

  • has been living in the U.S. continuously for at least ten years
  • has been a person of good moral character all that time
  • has not been convicted of any of various criminal offenses, and
  • who demonstrates to the satisfaction of the court that his or her removal would cause exceptional and extremely unusual hardship to the person’s spouse, parent, or child who is a citizen or lawful permanent resident of the U.S.

This is not an “amnesty.” Nor is it a remedy that immigrants can proactively apply for. It is simply a last-ditch defense for someone who finds him- or herself in removal proceedings, and whose U.S. citizen or green-card holding relatives would suffer greatly if he or she were removed from the United States.

Of course, anyone whose family member is about to be deported is (assuming their last argument wasn’t a doozy) likely to suffer emotionally. But the law requires more: It demands a showing of “exceptional and extremely unusual hardship,” which is a significant step up.

The classic example—and the first thing a lawyer representing someone with a potential case for cancellation of removal asks about—is when the U.S. citizen or green card holder has medical problems and relies on the soon-to-be-deported spouse or parent for some form of support.

Let’s say, for instance, that the U.S. citizen child is developmentally delayed, and requires help from the non-citizen parent with daily life tasks and basic coping. That might be grounds for cancellation . . . for as long as the child remains a child. Just how long is that? According to U.S. immigration law, childhood ends at age 21. One might query whether the hardship just disappears at age 21, but the law is written quite clearly, and can’t be changed except by the U.S. Congress.

Any possible unfairness will, however, be compounded by current long delays in the immigration courts. Due to understaffing and the added burden placed by the Central American migration crisis, many cases wait years before they’re heard by an immigration court judge. The odds that a child will turn 21 during this time are higher than ever, leading to a lot of unhappy birthdays.

This has led lawyers to attempt to argue that the child’s age should be considered as of the date the application for removal is submitted, rather than the date the judge makes a decision. Such an argument was, however, recently shot down by the federal Ninth Circuit court, in the case of Mendez-Garcia v. Lynch, 10/20/16.) The court upheld a decision by the Board of Immigration Appeals (B.I.A.), which said in essence that the application for removal is a “continuing” one, in which any new facts relevant to hardship (such as the birth of a child) must be taken into account—so that a child turning 21 cannot be ignored.

The facts of the Mendez-Garcia case actually weren’t very sympathetic. Mr. Mendez Garcia had some criminal activity on his record, and hadn’t done much to ensure that his case got through the immigration court system quickly. Immigrant advocates are no doubt wishing that the court had a more sympathetic case before it.

Until such a case comes along and provides cause for a rethinking of the Ninth Circuit court’s interpretation, however, anyone pursuing a case for cancellation of removal and relying on a U.S. teenager as a basis for a hardship finding would do best to talk to a lawyer right away. The lawyer might be able to request expedited hearings and avoid the problem altogether.

Wonder How Much This U.S. Citizen Would Have Been Awarded If He’d Been Deported, Not Just Detained?

American flag background - shot and lit in studio

Jhon Erik Ocampo, a U.S. citizen, was recently awarded $20,000 in damages to compensate him for his 2012 arrest by U.S. Immigration and Customs Enforcement (ICE) and subsequent seven-day detention. Yes, he attempted to explain to the ICE officers who arrested him that he was a U.S. citizen–but he couldn’t show proof.

This lack of proof is a common situation for people who “derive” U.S. citizenship. That’s a legal term meaning that, although the person him- or herself was not born in the U.S., a U.S. citizen parent was a citizen or became a naturalized citizen while the child held a green card and lived in the U.S., so that the child became a citizen automatically, by operation of law. (See Nolo’s articles on Acquiring or Deriving Citizenship Through Parents; the exact rules vary depending on the year in which the child was born.)

One way to obtain such proof is to apply for a U.S. passport; but the State Department isn’t always attentive to the rules of derivation, and may deny it.

Another way is to apply to USCIS using Form N-600, Application for Certificate of Citizenship (available from the Forms page of the USCIS website). Mr. Ocampo apparently sent in this form multiple times, with no results. (Normal USCIS processing times for Forms N-600 are several months, but it’s an application that often slips to the bottom of USCIS’s priority list.)

So, for lack of proof, Mr. Ocampo endured a week in custody, and was shuttled between two county jails in Illinois before finally someone at ICE took a closer look at his records, confirmed his U.S. citizenship, and let him go.

Is $20,000 enough to compensate for the loss of a week out of Mr. Ocampo’s life, not to mention the fear that no one would confirm his citizenship and he might be sent out of the country that had been his rightful home for years?

Impossible to say–though there may be some basis for comparison, because ICE has made similar mistakes in literally thousands of cases over the years, according to a 2011 Virginia Journal of Social Policy and the Law study conducted by Jacqueline Stevens, professor of political science at Northwestern University.

Let’s just say that Ocampo would likely have been awarded much more if he’d been among the many documented cases where ICE failed to discover its mistake until after having deported the person. (If deported is the right word at all. You can’t legally “deport” a U.S. citizen; commentators have suggested “kidnapped” or “banished.”)

Take the case of Andres Robles Gonzalez, also a U.S. citizen by virtue of derivation. He was reportedly arrested for allegedly violating U.S. immigration laws. ICE ignored his assertions that he was a U.S. citizen, and placed him in deportation proceedings, after which it removed him to Mexico, in December 2008. He wasn’t allowed back into the U.S. until 2011. His damage award? $350,000.

Then there’s Mark Lyttle, who was born in North Carolina, didn’t speak any Spanish, and yet was deported to Mexico. It took him approximately a year to find a sympathetic consular officer to help him make contact with his family (who had thought he might be dead). He received $175,000.

I wish I could find out what, if any damage award was made to Mario Guerrero Cruz. Born a U.S. citizen, he was mistakenly deported in 1995. When he tried to reenter the U.S., he was reportedly arrested and then convicted of illegal reentry and impersonating a U.S. citizen, and sentenced to over seven years in federal prison.

One thing is clear, however. U.S. authorities could save a lot of money if they’d stop pursuing people who never should have been in immigration custody in the first place–and then have to pay them for their trouble later.

Widespread Outrage Over Suggestion That Children Represent Self in Immigration Court

bordermapCount me in as another voice within the chorus of shocked responses to senior immigration court judge Jack. H. Weil, who said during a deposition that three- and four-year olds can learn immigration law well enough to represent themselves in court.

This wasn’t just a casual comment; Judge Weil was addressing the issue of whether children facing deportation are entitled to attorneys at taxpayer expense. And let’s not forget that he trains other immigration judges nationwide, many of whom are hearing cases of immigrant children by the thousands.

Here are Weil’s words, as reported by the Washington Post: “I’ve taught immigration law literally to 3-year-olds and 4-year-olds . . . You can do a fair hearing. It’s going to take you a lot of time.”

Darn right it’s going to take a lot of time. More time than immigration judges have these days, from all I’ve heard about their backlogged and overcrowded court dockets. And that’s not all it’s going to take.

How does one even begin to explain the reasons? Plenty of people have expressed doubt over Weil’s assertions, from experts like Laurence Steinberg, psychology professor at Temple University, who told the Washington Post, “I nearly fell off my chair when I read that deposition” to Harry Shearer, as part of his political commentary on the March 6 version of “Le Show.” (Even my mother called me after reading the headlines!)

The first thing to bear in mind is that the United States has, under international and national law, an obligation to treat refugees differently (i.e. better) than other immigrants. And make no mistake, these children are mostly refugees, or people afraid to return to their home countries due to past persecution or the possibility of future persecution.

According to an American Immigration Council Report by Elizabeth Kennedy, NO CHILDHOOD HERE: Why central american children are fleeing their homes, non-economic factors such as organized crime, gang threats, and violence appear to be the strongest determinants for children’s decision to emigrate. Many try moving within their home countries first, and flee to the United States only as a last resort. They’re afraid.

video prepared for the Center for American Progress by Tom Jawetz, Philip E. WolginAndrew Satter, and Kulsum Ebrahim called “Why We Must Protect Central American Mothers and Children Fleeing Violence” points out that, as potential refugees, the Central American migrant children and families are legally entitled to due process. Yet they are receiving the very opposite: in many cases, a quick trip out the door.

The next key point is that asylum law is not only complicated, but fact-based and ever-evolving. I’ve represented many applicants in court whose cases seemed marginal at first.  It was only after spending hours (often over the course of many meetings) that I was able to understand the true basis of their fear of returning home and then analyze whether that fit into a ground for U.S. asylum.

Sometimes the answer was no. A child who, for example, is simply afraid of random street violence, is going to have trouble proving that he or she would be singled out for persecution. (See Asylum or Refugee Status: Who Is Eligible?)

But what if that child is a boy who is particularly effeminate, and who is commonly picked on by anti-gay gangs who are beyond the government’s control?  That could be a ground of asylum.  But do we really expect a small child to understand that distinction? Or to admit, in front of a judge and an attorney for the U.S. government, that people make fun of him for possibly being gay?

I doubt it. And that’s just one of many possible fact patterns. Every case is unique, just as every child is unique, and deserves to be heard individually rather than pushed through an overloaded system.

Is There Time to Become a U.S. Citizen Before the November, 2016 Election?

American flag background - shot and lit in studio

While on the road today, I caught a snippet of a radio interview in which U.S. immigrants (presumably green card holders) discussed their eagerness to apply for naturalized U.S. citizenship as soon as possible, in order to be able to vote in the upcoming presidential election.

That made me wonder: Is there time? Anything to do with the U.S. immigration bureaucracy tends to take weeks and months longer than it should. But let’s take the best-case scenario for an applicant who decides today, February 19, 2016, that he or she wants to apply. Let’s also assume that that person meets the basic citizenship criteria.

The first step would be to fill out the paperwork; no small task, because it not only involves filling out a form, but figuring out the dates of all one’s absences from the U.S. over the last several years, making a copy of one’s green card, having two passport-style photos taken, rustling up a $680 fee, and including any other relevant documentation (for example, proof of marriage to a U.S. citizen if applying after three years rather than usual five on that basis, or a medical report if claiming an exemption from the English or civics exam based on a disability).

And then the person would need to make a complete copy of the application and send it via a secure method, to protect against the all-too-real possibility that U.S. Citizenship and Immigration Services (USCIS) will lose it.

Let’s assume that all of the above could be done in one week. The person would then need to mail the applications to a USCIS “lockbox,” which facility would then need to review and transfer the application to a local field office. That’s bound to take a few days right there.

Next, it becomes a matter of how quickly one’s local USCIS field office is moving. Applicants can check this on the “USCIS Processing Time Information” page, by choosing the appropriate office from the”Field Office” dropdown, then scrolling down to where it lists “N-400.”

Most offices are processing applications they received in July 2015, meaning it’s taking them seven months to interview the applicants. Los Angeles advertises only a five months’ wait. But it’s an eight months’ wait in Houston and Baltimore, and I didn’t check every field office, and the waiting periods can change depending on how many people apply at any given time.

Now let’s say the person attends the required in-person naturalization interview at a USCIS office, passes all the exams, and is approved for U.S. citizenship. That’s great, but it’s not the end of the process. First off, USCIS may not yet have received the results of the person’s fingerprint checks from the FBI and other sources, which can add weeks or months to process.

And no one becomes a U.S. citizen without attending the swearing-in ceremony. This, too, might be scheduled weeks or months after the person’s approval; though same-day swearing in is possible in some locations.

Oh, and let’s not forget actually registering to vote!

So, putting it altogether, and assuming that all goes smoothly, I’d guesstimate it would take approximately 8 1/2 months from today to successfully becoming a U.S. citizen. That’s almost exactly the amount of time left between now and the November presidential election.

If you’re hoping to apply, get moving on the process today!