Monthly Archives: May 2013

Packing a Weapon in a Carry-On Bag Could Get You Deported

xrayWith the recent announcement by the Transportation Security Administration (TSA) that its airline security staff discovered a record-breaking 65 firearms in carry-on bags last week, it seems like a good time to remind visa and green card holders of an important fact: Firearms crimes can get you deported from the United States. “Forgetting” that you packed a gun (which many of the people caught claimed) is not necessarily going to help you, either.

First, the basic TSA rule: You can carry a firearm in your checked baggage if you advise the airline first. But you cannot bring a weapon, explosive, or incendiary with you onto the plane, including in any carry-ons or other accessible property. Failure to comply with this is a civil violation, and you could be fined.

A civil violation is not, however, a crime; and U.S. immigration law specifies that anyone “convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device . . . in violation of any law is deportable.” (See Immigration and Nationality Act Section 237.)

But every airport is also located in some U.S. state — and state law may, in fact, criminalize the gun-toter’s actions. The person could be arrested for crimes with such descriptions as “carrying a concealed weapon in a restricted area,” or “unlawful possession of a weapon.” And those crimes could definitely make the person deportable. For more information on what it means to be “deportable,” and how to defend yourself in immigration court proceedings, see the “Crimes and U.S. Immigration” portion of Nolo’s website.

Will Immigration Reform Expand Rights to Government-Paid Attorneys?

briefcaseIf you were interested in the issues discussed in my recent post called “A Few Immigrants, at Least, Will Now Get Free Immigration Lawyers,” be sure to check out Mark Noferi’s article in Slate, “Deportation Without Representation.”

Noferi, a J.D. from Stanford who teaches immigrants’ rights at Brooklyn Law School, points to a little-noticed piece of the proposed Senate bill: one that would provide government-paid legal representation to some noncitizens in removal proceedings, namely unaccompanied children, people with a serious mentally disability, or those who are “particularly vulnerable” compared to others in the same situation. (See pp. 567-568 of the bill for the actual language.)

For my money, nearly every noncitizen who can’t afford a lawyer is “particularly vulnerable.” They often don’t speak much English, they’re unfamiliar with the U.S. legal system, and they’re up against a body of law that’s confusing, counterintuitive, and often bizarrely punitive.

Noferi, however, focuses on detained immigrants as especially high on the vulnerability list. His description of the detention centers in which tens of thousands of immigrants spend months and years of their lives waiting to see a judge is apt, noting that they are: “routinely denounced for substandard conditions, such as moldy food, poor medical care, overcrowding, excessive force, shackles, and solitary confinement.” Like all generalizations, this doesn’t even begin to convey the awfulness of putting human beings who have committed no crime into a prison being run by people who treat them as if they had. (I’ve visited these places. They suck.)

Let’s hope this portion of the Senate bill survives intact — and is eventually expanded.

Dual Citizens Can’t Claim Asylum Unless They Fear Persecution in Both Countries

sp-lgflagThe U.S. doesn’t, apparently, want asylum applicants to pick and choose among countries when deciding where to seek protection from persecution.  U.S. asylum law thus contains various mechanisms by which to prevent people from shopping around – but oddly enough, is silent on the matter of dual citizens, thus leading to a recent decision from the Board of Immigration Appeals (B.I.A.).

Let’s start with what is in the law, specifically in Section 208 of the Immigration and Nationality Act or I.N.A.) It forbids people from receiving U.S. asylum protection if they have already firmly resettled in another country – even if they otherwise meet the definition of a refugee.

The law similarly says that the U.S. government has the power to send an applicant to a country  that offers a legitimate opportunity to apply for asylum or similar relief in cases where the U.S. has signed an agreement with that country. So far, the U.S. has signed such an agreement only with Canada, and it applies only to applicants who arrive at a U.S. land border, however.

Now, for what’s new: A recent B.I.A. decision called Matter of B-R concerns a Venezualan journalist who applied for asylum claiming persecution by pro-Chavez groups. However, his father was born in Spain, a country where the applicant has no fear of persecution. Although the journalist had seemingly never lived in or laid claim to his Spanish citizenship, the immigration judge (IJ) hearing his asylum case, and the B.I.A. on appeal, seemed convinced that it was an option for him – and denied asylum accordingly.

The IJ and B.I.A. decided this not based on either the firm resettlement or the safe third country provision, but on the argument that  “he is a citizen or national of a country to which he does not fear returning.” This was despite the applicant’s arguments that “the statutory definition of a ‘refugee’ does not require that an alien claim persecution in every country to which he may be  returned . . . [but only in] one of the countries in which he has nationality or citizenship.”

This is one of those decisions that sounds reasonable in part based on individual facts. The Venezualan applicant presumably speaks Spanish, the same language as is spoken in Spain, his country of dual citizenship. And one could do worse than move to Spain. But the same logic is going to look a lot harsher in cases where asylum applicants are forced to continue their flight from persecution and relocate once again to third-world nations where they’ve perhaps never lived and don’t understand a word of the language being spoken.

A Few Immigrants, at Least, Will Now Get Free Immigration Lawyers

crackIn a country where we’re used to the idea that criminal defendants who can’t afford a lawyer are entitled to one at government expense, people are often surprised to hear that noncitizens placed into deportation (removal) proceedings don’t have the same basic due process rights. The Immigration and Nationality Act says that noncitizens in removal proceedings may be represented by counsel, but at no expense to the government.

It’s  certainly not that noncitizens don’t need representation — Department of Justice statistics show that an average of half the people in removal proceedings don’t have a lawyer. The exact figure was 56% for the year 2012.

And given that even a spokesperson for the immigration bureaucracy once said, “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold,” (Immigration (INS) spokeswoman Karen Kraushaar, quoted by the Washington Post on April 24, 2001), it would be absurd to presume that these immigrants don’t need legal help.

For anyone who might argue that people in removal proceedings deserve to leave the U.S. anyway, take note of studies such as that done in March, 2012 by the Vera Institute of Justice, a nonprofit group, showing that 40% of unaccompanied noncitizen children might qualify for statuses that would exempt them from deportation.

The law on representation for noncitizens  is at last, however, evolving. In a federal court decision called Franco-Gonzalez v. Holder, the judge ordered Immigration and Customs Enforcement (ICE), the U.S. Attorney General, and the Executive Office of Immigration Review (EOIR) to provide legal representation to immigrant detainees with mental disabilities who are facing deportation.

The case concerned a green card applicant who had an I.Q. below 55 and the cognitive abilities of a young child, but who had been arrested after getting into the middle of a fight between rival gangs. While the immigration judge found him incompetent to face proceedings, the lack of a right to free representation put him into legal limbo, and he sat in detention for nearly five years.

This right to counsel is obviously quite limited, and will take some time to fully implement. However, if you know someone facing deportation, or in detention, who has limited mental abilities, get in touch with an immigration lawyer or a nonprofit charitable organization serving immigrants.

Checked Your Diversity Visa Lottery Results Yet?

Tickets in a basketThe results of the “DV-2014″ Diversity Visa Lottery (also called the “Green Card Lottery”) are now available, as of May 1, 2013, from the U.S. State Department. Winners will not receive any calls, emails, or other communications advising them — they need to go online and check the results themselves. (In fact, if you’ve received any calls or emails claiming you’ve won, it’s probably a scam, so watch out!)

For detailed instructions on finding out whether you have won, see the “How Will You Know If You Have Been Selected for the DV Lottery?” article on Nolo’s website. And if you have won, you’ll need to act quickly, so be sure to read, “How to Read the Diversity Visa Lottery Cutoff Numbers on the DOS Visa Bulletin” and other articles on the “Diversity Visa Lottery Green Cards” page of the Nolo website.

If you didn’t win this time around, I’d like to wish you better luck next year — except that there may not be a next year. The current, Senate version of proposed comprehensive immigration reform would eliminate the DV lottery in favor of other grounds of immigration eligibility.

 

Yes, Tamerlan, You Narrowly Missed Being Deported for Domestic Violence

A couple of people who read my recent blog called “Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted” wanted more information on whether and under what circumstances an immigrant can be removed from the U.S. (deported) for committing domestic violence. (As you’ll see in that blog, the alleged older Boston Marathon bomber was apparently arrested in 2009 arrest for assaulting his girlfriend, though the charges were ultimately dismissed.)

The short answer is that, so long as the person was actually convicted, U.S. immigration laws come down hard on domestic violence crimes. The person may be deported under any of a number of sections of the federal immigration statutes, and likely barred from returning to the U.S. for a good long time, perhaps permanently. For more information, see this new article on the Nolo website: “Is an Immigrant Convicted of Domestic Violence Deportable?