Category Archives: Crimes and U.S. Immigration

Horror Story About Seven-Minute Immigration Hearings Isn’t the Whole Story

Breaking pointThe Washington Post‘s recent article, “In a crowded immigration court, seven minutes to decide a family’s future,” exposes one of the many weaknesses of the U.S. immigration system: Undocumented and other immigrants caught violating the immigration laws receive no free legal representation (unless a sympathetic attorney steps in pro bono), have little idea of what their legal rights might be, and enter a system where little individual attention is possible before they’re, in many cases, escorted away.

The Immigration Judge profiled in the article, Lawrence Burman of Virginia, had 26 cases on his morning hearing docket, or an average of seven minutes in which to make a decision on each case.

The results of such a system can be tragic. Let’s say, for example, that the person arrives at one of these hearings with no attorney, doesn’t realize that the bad experiences he fled from in his own country amount to persecution that might qualify him for asylum, and thus fails to convey this to the judge or attorney (assuming he’s even lucky enough to find an attorney serving pro bono and able to understand the person’s language).

If the judge has no more than seven minutes to talk with such a person — and if the person misguidedly fills up the time assuring the judge that he loves this country and works hard and would do well if allowed to stay (common errors, which usually get the immigrant nowhere) — it could be all to easy for the judge to order the person to depart the United States.

But let’s make one thing about the system clear: It is possible for immigrants facing deportation to have a full, private hearing before an immigration judge that lasts more than seven minutes. It’s a matter of knowing the procedural steps and what to ask for. What the article seems to have been describing was merely step one, the so-called “master calendar” hearing.

At a master calendar hearing, many people arrive all at once, and the judge decides which of them seem to have enough of a legal case for staying in the U.S. to be worth calendaring for a full, “merits” hearing. The merits hearing can last for hours, and be continued to future dates, with opportunities for testimony by the noncitizen as well as witnesses, introduction of documents and exhibits, and so on.

Many people won’t have any case for staying in the U.S. at all — they are undocumented, and have no immediate family connections, no grounds upon which to request asylum or “cancellation of removal,” and no other plausible defense to deportation.

But many will have some legal basis upon which to request either the long-term right to stay in the U.S., or at least “prosecutorial discretion” (meaning that the U.S. government agrees that the person is a low enforcement priority because of U.S. family ties and other equities, and will leave him or her alone for the moment). And they may not even know it. The judge will try to elicit such information, but as the article shows, has little time in which to do so.

The more that people called into removal proceedings can do to research their rights and find an attorney in advance, the lower the chance that their seven minutes will be wasted and lead to a hasty order of deportation.

The Justin Bieber Immigration Chronicles, Continued

If I blog about Justin Bieber for the third time in a row, does that make me a “Belieber?” (Nah, I still can’t hum a thing he’s recorded, sorry.)

But he’s become the world’s best object lesson regarding U.S. immigration law and policy.

drug dogIn his latest kerfuffle, reported on by CNN, U.S. Customs and Border Protection (CBP) officials searched his private plane, interviewed him for “several hours,” and brought in the trusty drug-sniffing dogs before letting him back into the U.S. from his recent trip to Canada.

(CBP are the same folks who meet you at the airport or border, examine your passport or other entry documents, and ask whether you’re bringing in any drugs, snakes, explosives, and so on before they hopefully wave you in).

Their reason for spending so many time on Bieber? To get autographs for their kids, of course! Oh, no, the officials say that they’d “detected an odor of marijuana after [the plane] landed in New Jersey.”

Uh oh, the dreaded weed. Maybe they’re getting into the spirit of the “let’s deport Justin” movement, because had drugs been found, that plus his earlier admission of having been smoking marijuana might very well be enough to have him removed from the U.S. as a drug abuser. (See my earlier blog, “Justin Bieber “Stuck in the Moment” of a Pending Removal Proceeding?“)

But either their sniffers were overactive that day or the Bieber entourage does a really, really good job of hiding its dope, because nothing was found. Justin was allowed into the U.S., with nary a stain on his record. That means he doesn’t get to join my list of  “International Celebrities Denied U.S. Entry Visas.” (Then again, by the pilot’s description, they may have simply smoked it all.)

Oh, and Justin Bieber’s Alleged Assault on a Limo Driver Probably Won’t Get Him Deported, Either

canada policeIn yesterday’s blog, I took a look at whether Justin Bieber could realistically face deportation (removal) for various types of trouble he’s gotten into while living in the United States on an O-1 visa.

But today’s headlines raise another question: If he’s convicted for assaulting a limo driver in Canada (as he’s been recently charged with by Toronto police), could that foreign conviction lead him to be deported from the United States?

The first issue here is whether a foreign conviction can be held against someone in the U.S. and make them deportable. No one should be surprised to hear that the answer is, “Yes.” However, to protect people against being deported for something that’s not even illegal in the U.S. (for example, depositing your chewing gum on the sidewalk, which I once read is illegal in Singapore, though you shouldn’t quote me on that), the foreign conviction has to parallel a crime on the books in the United States.

Of course, assault is illegal here. Bieber is said to have been one of six passengers picked up by a limo driver on December 30 of last year, who got into an altercation that led to the limo driver being hit on the head several times. (The driver’s okay, but will probably never allow his children to see Bieber in concert.) So finding a parallel U.S. statute will not likely be an obstacle, were U.S. immigration officials inclined to try to deport the Biebs.

The bigger issue is whether assault can be the basis for deportation of someone legally within the United States. To constitute a “crime of moral turpitude” (one of the main criminal grounds for deportability, depending on length of sentence and number of offenses), it would likely have to be an “aggravated assault.” Given that the driver in this case was able to stop the limo, get out, and call the police, I’m going to hazard a guess that this won’t be seen as rising to the level of “aggravated.”

But the analysis isn’t over yet: The next question is whether the assault is an “aggravated felony,” which is also a basis for deportation. Bieber’s lawyer says it’s likely to be treated as the equivalent of a misdemeanor in Canada — which doesn’t tell us much, because owing to the vagaries of U.S. immigration law, misdemeanors can be treated as felonies! Crimes of violence with a sentence of it least one year are considered aggravated felonies. Given the low level of injuries in this case, I doubt Bieber will get a year-long sentence — if he’s even convicted in the first place. (Let’s not forget, these are all allegations at this point, plus a lot of media hype.)

So, to the more than 200,000 petition signers who say that “We would like to see the dangerous, reckless, destructive, and drug abusing, Justin Bieber deported,”  don’t hold your collective breath. Solid legal grounds upon which to do seem not to have actually arisen yet. (And BTW, the headline on your petition is inaccurate: He doesn’t have a green card. It’s a temporary work visa.)

Justin Bieber “Stuck in the Moment” of a Pending Removal Proceeding?

After years of exploring immigration law’s darkest corners, I can say with some certainty that:

  1. throwing eggs at your neighbor’s house is not on the list of grounds of deportability, and
  2. nor is being the subject of a petition to the White House alleging that you have “wrongly represented” the U.S. “in the world of pop culture.”

I hope that’s of some comfort to Justin Bieber fans.

eggbrokenIf you’re unfamiliar with the hoopla, CNN did a fine job of outlining both what Canadian-born pop singer Justin Bieber is currently suspected of (felony vandalism, so far, based on the egg-throwing incident; with possible charges for driving while under the influence of drugs, though it’s not clear that he was doing the driving). See CNN’s “Could Justin Bieber be deported?” and “Justin Bieber egg probe ‘tightening up’; prosecutor wants more investigation.”

The CNN articles also discuss what these accusations might mean for Bieber’s immigration status. He’s apparently in the U.S. on an O visa, for people with “extraordinary ability in the sciences, arts, education, business, or athletics.”

People who are legally in the U.S., like Bieber, can be deported for committing a crime that’s listed on the grounds of deportability within U.S. immigration law. (Juvenile crimes are sometimes an exception, but contrary to appearances, the Biebs is already 19.)

Nothing Bieber is alleged to have done so far seems to make experienced immigration attorneys think he fits either of the main two criminal grounds of deportability, namely a “crime of moral turpitude” (one that shocks the public conscience) or an “aggravated felony (which doesn’t have to have “felony” in the name, but can include various types of misdemeanors).

Bieber could, however, face removal proceedings if he has drug issues. The immigration law contains two separate grounds of deportability for drug use: one that makes people deportable if they’ve been convicted of a drug crime (or an attempt), with an exception for a single offense involving possession for personal use of 30 grams or less of marijuana; and another for being a drug abuser or addict.

Notice that no actual court conviction is needed to be deportable under the drug abuse/addict section. The person’s own confession to drug use could be enough. Bieber appears to have already told the police who pulled him over in a traffic stop that he’d been drinking, using marijuana, and taking prescription pills. (Oops. It’s never a good idea to drink so much that you get into a confessional mood like that.)

Of course, one could face worse fates than being deported to Canada. But, depending how all this plays out, Bieber could face a bar on returning to the U.S. for a long time after deportation — long enough to lose those baby cheeks.

P.S. Should we be shocked or impressed that he poses for a mugshot like it’s just another publicity still?

How Much SHOULD a Diplomat’s Maid Be Paid?

illegal contractIf you’ve been following the headlines about the deputy consul general from India, Devyani Khobragade, whose arrest in New York over having submitted false documents to the U.S. government regarding the amount she was paying her housekeeper is sparking an international incident, you may have wondered: How much SHOULD she, by law, have been paying her maid?

If all that went by too fast, here’s a little more background: The deputy consul came to the U.S. on a diplomatic visa called an A-1. This visa allows its holders to bring along domestic staff from their home country — on the condition that they pay them the higher of:

  • the prevailing wage in that region, or
  • the federal or state minimum wage.

(Read more about this visa on the State Department’s page describing “Visas for Diplomats and Foreign Government Officials.”)

Ms. Khobragade brought a housekeeper along, and despite her apparent promises to the U.S. government that she would pay her housekeeper $4,500 a month, allegedly paid her a mere $573 a month, for work far in excess of 40 hours per week.

So, back to the original question regarding appropriate payment. For starters, the deputy consul obviously should have paid the amount promised in the visa application on behalf of the housekeeper, namely $4,500 a month. Making false statements on U.S. immigration applications is grounds for becoming inadmissible, that is, unable to receive future U.S. visas or immigration benefits.

As for the minimum the deputy consul should have offered, one must determine this by going to the Department of Labor’s “Foreign Labor Certification Data Center” website. For the New York Metro area, and the position of “Maids and Housekeeping Cleaners,” my search came up with a minimum figure of $10.32 per hour or $21,466 a year, which works out to $1,789 per month. Since that figure is higher than the federal minimum wage of $7.25 per hour, that’s what the housekeeper likely should have received at the very least — less than the amount originally promised, but far more than the amount apparently paid!

Obviously there are major questions about the way this case was handled, with an arrest outside the deputy consul’s daughter’s school, and alleged strip searches (looking for what?! the missing wages?). But setting that aside, should the deputy consul be allowed to claim diplomatic immunity to avoid meeting basic (and not overly generous) U.S. immigration and labor laws?

According to journalist Sandip Roy, India’s diplomats have a history of flouting U.S. labor laws. Roy concludes, “As consular staff member representing India abroad, Ms Khobragade enjoys many rights. The right to a domestic help at cut-rate wages however is not one of them.”

Foreign Student Numbers Recovered Since 9/11

Graduation-5502One of the unpredictable consequences of the September 11, 2001 terrorist attacks on the U.S. was that the number of foreign students coming to the U.S. plummeted — and remained low for several years thereafter. The reason was, in no small part, rumors indicating that many of the hijackers had come to the U.S. on student visas.

Only one of them did, actually, as detailed by FactCheck.org. The rest of the 19 hijackers mostly used business or tourist visas. But that fact did not slow down efforts to add security checks to the student visa application process and to the monitoring of students after arrival in the U.S. — efforts which went a little haywire and led, for a time, to massive delays, denials, and discouragement facing would-be foreign students.

Why should we care? Well, there’s the fact that foreign students tend to learn about the U.S. and adjust their preexisting stereotypes, — and vice versa as they meet U.S. students — potentially leading to greater worldwide understanding.

Foreign students also contribute financially, starting, but not ending, with their payments of tuition (out-of-state, in many cases). See this report from the American Immigration Council: “Record Number of International Students Add $24 billion to U.S. Economy.”

Also, the “bait and switch” aspects of American immigration law have always bothered me. We offer various visas and benefits, but then frequently treat the people who would like to take advantage of them as criminals, regardless of whether they’ve done the slightest thing to warrant suspicion.

In any case, things seem to have calmed down a bit, and statistics collected by the Institute of International Education show that, since approximately 2007, the numbers of foreign students in the U.S. have steadily risen. In 2013, the U.S. reached a record 819,644 foreign students, most of them from China, India, and South Korea. See the “Open Doors Data” portal for details.

And if you’re interested in studying in the U.S., the Nolo site offers a wealth of information in its “Student and Exchange Visitor Visas” section.

California Lawmakers Take Practical Approach to Treatment of Undocumented Immigrants

sanjoseAn estimated two-million plus undocumented immigrants live, work, study, and otherwise make their home in California.

So perhaps it’s fitting that the California legislature recently passed a number of bills (subsequently signed by Governor Jerry Brown) that seem designed to make sure that, as long as they’re here, the undocumented are not treated in ways that are either grossly unfair or lead to unfortunate or dangerous unintended consequences.

Here’s a brief summary of the new laws (click the links for details):

  • AB 4, which forbids law enforcement officials from detaining noncitizens beyond their release date on the basis of a U.S. Immigration and Customs Enforcement (ICE) hold, unless the person has actually been convicted of one of various crimes or meets certain specified conditions. (This seems designed to put a stop to the expense and absurdity of local law enforcement agencies serving as detention units for the federal government by holding undocumented immigrants even if the criminal charges against them were dismissed or were minor in nature.)
  • AB 35, which says that no one can charge fees for serving people applying for the immigration program known as “Deferred Action for Childhood Arrivals” (or DACA) unless they are either immigration consultants, attorneys, notaries public, or organizations that have received accreditation from the U.S. Board of Immigration Appeals (B.I.A.); and even those who have received such accreditation cannot engage in price gouging.
  • AB 60, which makes undocumented California residents eligible for a drivers’ license upon providing satisfactory proof of identity and state residency. The license will contain a notation stating that it “does not establish eligibility for employment, voter registration, or public benefits,” and will contain the initials “DP” (Drivers Privilege) instead of “DL” (Drivers’ License).
  • AB 524, which specifies that threatening to report the immigration status or suspected immigration status of an person or family may be considered an inducement of fear sufficient to constitute extortion, and thus punishable under the California Penal Code.
  • AB 1024, which allows undocumented persons to be admitted to the California State Bar Association as attorneys, and therefore to practice law in this state.
  • AB 1159, which attempts to crack down on the practice of immigration law without a license, by imposing financial penalties on people who pose as attorneys, in particular by calling themselves “notarios” or other terms which have a more elevated meaning in other countries. The law specifies that the proceeds shall be used to help people damaged by such con artists, as well as to provide free legal advice concerning federal immigration reform.
  • SB 141, which requires community colleges and universities within the California state system to charge in-state, resident tuition to U.S. citizens who live in a foreign country because their parent or guardian was deported or voluntarily departed from the U. S., so long as they will be entering in their first year as matriculated students, can demonstrate financial need, lived in California immediately before moving abroad, attended a secondary school in California for at least three years, and intend to establish residency in California.
  • SB 150, which authorizes community college districts to charge only in-state, resident tuition to certain special part-time students, namely high schoolers who would benefit from advanced scholastic or vocational work, if they are non-citizens in financial need, or students from other states who had to move due to Hurricane Katrina.
  • SB 666, which creates criminal and civil penalties for attorneys and businesses that retaliate against employees and others on the basis of citizenship and immigration status or who report or threaten to report the suspected immigration status of a witness or party to a lawsuit because the person exercises a right related to employment.

In related news, San Francisco’s Board of Supervisors recently passed an ordinance prohibiting law enforcement officials from holding for deportation noncitizens who have not been convicted of felonies or deemed public safety risks. (It’s called the “Due Process Ordinance for All on Civil Immigration Detainers.”) Mayor Lee is expected to sign it.

What “Deported to Mexico” Literally Means

ICE arrestWhen a foreign national is ordered deported from the U.S. (usually because the person was undocumented or committed some violation of the law), the one and only “perk” is a free trip to his or her home country. It’s a trip reportedly taken by a record 409,949 people in the 2012 fiscal year.

If my “free trip” comment sounds flippant, let me tell you a story I once heard from an immigrant rights advocate. He had a client from Mexico who would spend most of his time in the U.S. but then, when ready for a visit home, turn himself into the immigration authorities for deportation. Free ride! (The fun ended after Congress tightened up on the penalties for reentry after deportation.)

In any case, we’re not talking about luxury travel here.  Immigration and Customs Enforcement (ICE) typically flies deportees to the capital city of their home country, sometimes sedated or in manacles. There, if they’re lucky, their country’s government may provide them with van rides or other services. If not, they’re on their own — often after years or decades away.

Mexico is, however, a different case. Because it shares a land border with the U.S., ICE policy has, in the past, been to bus deportees to towns just across the border, such as Tijuana or El Paso. Recently, however, ICE has begun flying some deportees to Mexico City. They claim that this policy protects deportees from targeting by kidnappers and smuggling gangs who operate along the border, and say it will reduce return trips to the United States.

Critics of the policy note, however, that it is costly for the U.S. and has not resulted in any apparent reduction of attempts to unlawfully cross the U.S. border.

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.