Category Archives: Removal Proceedings

Diane Guerrero’s Story of Parents Being Deported Represents Experience of Thousands of Children

ICE arrestActress Diane Guerrero (“Orange Is the New Black,” “Jane the Virgin”) recently described her traumatic experience, at age 14, of coming home to find that her parents had been picked up by U.S. immigration authorities. They were detained and ultimately deported. (See “Op-Ed ‘Orange is the New Black’ actress: My parents were deported.”)

She literally came home to an empty house, receiving no communication, much less help, from U.S. authorities. Only by relying on help from friends was she able to keep her life together and ultimately achieve the success that she did. (Many others aren’t so lucky.)

If that sounds like a script worthy of a movie, realize that it happens every day — no exaggeration. As described in the Huffington Post‘s article by Elise Foley, “Deportation Separated Thousands Of U.S.-Born Children From Parents In 2013,” Immigration and Customs Enforcement [ICE] last year carried out more than 72,000 deportations of parents who said they had U.S.-born children.”

That’s despite the supposedly active policy of “prosecutorial discretion,” under which ICE agents are expected to follow specific guidelines in choosing who to spend precious government resources on prosecuting, giving lower priority to cases where the undocumented immigrant is law-abiding and has ties to the U.S. such as U.S. citizen children and other family members.

In fact, Diane may have been lucky to escape U.S. government workers’ notice. The all-too-common scenario when a parent is deported is for the child to be placed into the foster care system, lose contact with the parents, and ultimately have the parents’ legal rights and relationship to them terminated. (See, “Thousands of Kids Lost From Parents In U.S. Deportation System,” by Seth Freed Wessler, Colorlines, November 2 2011.)

So, on top of using U.S. government resources to break up families, this misused exercise of discretion is costing the foster care system untold amounts. It’s a problem that could be solved without waiting for immigration reform, with more rational behavior by ICE in following its own guidelines, and attention to maintaining family ties within the foster care system. Let’s hope Diane Guerrero’s story, by putting a face on this crisis, will spur efforts in this direction.

Need to Find Relative Arrested by Immigration? See Online Detainee Locator

usmexicoSometimes what’s going in in the headlines becomes all too personal. That’s what happened for me recently, when a friend called to say that her cleaning woman from El Salvador was in a panic, having received word that her sisters had been arrested by immigration authorities after crossing the border into Texas. They’re apparently part of the flood of young people fleeing countries beset by violence, attempting to cross the Mexican border into the United States.

The first question then becomes, “Where are they?”

Back when I was actively practicing immigration law, this question could take days of calling detention centers and desperately begging information out of disinterested guards and officials. But now there’s an “Online Detainee Locator” provided by Immigration and Customs Enforcement (ICE).

Would it work?

At first, no. (Probably not too surprising — data entry may not be the first thing on the to-do list after an immigrant is arrested.) But within about 15 hours, voila — we entered a name and birth date and received the name of the detention facility where one sister was being held, as well as a phone number for reaching that facility. The U.S.-based sister was able to call the facility and get more information about the status of her sister’s case.

Whether the online system is always this workable, I can’t say. It’s easy to imagine situations where the name might be misspelled, or a birth date taken down inaccurately, leading to a complete info void.

And an even more difficult aspect of the system is that it’s mostly in English. Yes, you can choose other languages from a dropdown menu when you first perform the search, but as far as I could tell, this doesn’t lead to any different screens when it’s time for the results.

Still, it was immensely satisfying to see the name pop up and know that, as alarming as the news of the arrest was, the sister hadn’t just disappeared into the system. Now, if Congress would only come up with an intelligent and humane way to deal with this influx.

Justin Bieber’s Immigration Woes. Again. (Sorry.)

Demonstrating for Justin BieberJustin, please tell me you didn’t get into legal trouble again.

I say that not because I’m in a moralizing mood, and not because I’m worried about what kind of example you’re setting for your fresh-faced, adoring fans.

No, I say that for one, much simpler reason.

I thought I was done writing about whether your various run-ins with U.S. law enforcement make you, as a non-citizen visa holder, deportable. Intellectually and emotionally, I am over it.

But now readers are asking, “So, is he deportable this time? The LAPD are going after him for attempted robbery! How ‘bout it? ”

Alright, here goes.

Justin’s latest “oops” was apparently grabbing a woman’s cell phone in order to erase photos that he suspected she had taken of him. (‘Cause who wouldn’t want to snap photos of the Biebs?)

If that doesn’t sound like robbery to you, read Nolo editor Micah Schwartzach’s analysis, “Breaking Down Bieber’s Alleged Attempted Robbery.”

Noncitizens of the U.S. can be deported if they commit certain types of crimes, found in Section 237 of the Immigration and Nationality Act (I.N.A.). Although some crimes are named on that list, attempted robbery isn’t one of them (nor is regular robbery.)

However, his lawyers would also want to look at whether the robbery conviction (if it indeed happens, and depending on the details) meets any of the following criteria for deportability found in the I.N.A.:

  • a crime involving moral turpitude that was committed within five years ) after the date of U.S. admission and is punishable by a sentence of at least one year
  • one of two or more crimes involving moral turpitude that took place at any time after U.S. admission, where the two crimes did not arise out of a single scheme of misconduct, or
  • an aggravated felony committed at any time after U.S. admission.

As explained further in the links provided above, the short answer is that, once again, he’s probably not deportable. Unless, that is, he gets a one-year sentence for grabbing a cell phone. Stay tuned!

Wait, no, don’t stay tuned to hear it from me. That’s it. My last blog on Justin Bieber. I swear it.

Bizarre New Enforcement Practice — Arresting Departing Nationals of Mexico

ICE arrestI nearly drove my car off the road yesterday listening to NPR’s report on “The Curious Practice Of Bringing Immigrants Back — To Deport Them.” This is truly something new in the world of immigration enforcement.

U.S. Customs and Border Protection officers are not only questioning people coming into the U.S., but addressing questions in Spanish to those driving or riding buses out of the U.S. into Mexico.

Their main goal is apparently to check for evidence of drug trafficking, such as transporting large sums of illegally obtained money. But apparently CBP officials have decided that, while they’re at it, they might as well arrest a few folks who were living in the U.S. without documents — even ones who’d committed no crimes and were minutes away from returning to Mexico anyway!

No one interviewed for the report, regardless of political affiliation, thought this was anything more than a waste of money and time. It’s especially bizarre at a time when — due to the government’s limited resources — the administration has specifically instructed immigration officials to follow a policy of “prosecutorial discretion,” focusing on deporting only those people who present the greatest risk to U.S. society.

And there’s been plenty of political talk of promoting “self-deportation,” too, which it appears some of the departing Mexicans were in the very process of doing.

Hard to say whether this new arrest pattern is misguided, mean-spirited, or simply motivated by some local CBP officers’ wish to get their arrest numbers up and then call it a day.

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?

What Will Happen If Dozens of Immigration Judges Retire?

Swimming pool at VIP villas, Antalya, TurkeyAccording to a recent report by Laura Wides-Munoz for ABC News, nearly half of the nation’s 220 immigration judges (IJs) will be eligible for retirement next year, in 2014.

I’ve got to confess, my first reaction upon reading that was to think “Phew, I know of one or two judges who should have found themselves a sunny beach in Florida years ago.” (More on that, I shall not say.)

But apparently, clearing away deadwood comes at a price. Wides-Munoz identifies a number of foreseeable problems if even the average number of judges retire next year (which would be 11), and quotes the president of the National Association of Immigration Judges as saying that the increasing difficulty of the job may push that number up higher.

It’s a burnout job. IJs deal with a complex law, a high number of unrepresented noncitizens, a lack of support staff to deal with an often overwhelming caseload, the emotional toll of issuing what may be life-or-death decisions, and so on.

The main issue to do with coming retirements that Wides-Munoz  discusses is the inevitable increased delay for hearings to be scheduled and conclude.  (Many hearings last for more than one session.) This will lead to deserving cases being harder to present convincingly, and undeserving cases consuming resources if the noncitizen is in detention.

Another possible issue is that, even in the best-case scenario, in which many of the vacant positions are filled (which doesn’t look likely to happen quickly), the immigration courts will be increasingly populated by judges who don’t really understand immigration law all that well. Sure, the government will pick qualified candidates, but most immigration practitioners specialize in one area, and may be unfamiliar with others.

So, I officially withdraw my initial reaction. Don’t go! Retirement is overrated! Excessive sun exposure is dangerous!

Got Immigration Court Oct. 18? BE THERE!

traffic_lightAs you may have heard, the U.S. federal government shutdown has been brought to an end (at least for this year). We can probably expect that immigration-related operations by the Department of Homeland Security and U.S. Citizenship and Immigration Services will pick up slowly, with some delays as workers who were furloughed get back to the piles on their desks.

In the case of Immigration Court proceedings, however (which are run by the Department of Justice), things are already moving quickly. While court hearings that were scheduled for today (October 17, 2013) in non-detained cases will not go forward, anyone with a hearing set for tomorrow, October 18, 2013, needs to be there! If you haven’t heard from your attorney about this, give him or her a call.

The “EOIR Operations for October 17, 2013” page of the Department of Justice website provides details.EEOIR Operations for October 17, 2013OIR Operations for October 17, 2013