Category Archives: Removal Proceedings

Green Card Holder Forever?

usil-blog.jpgSome U.S. immigrants literally count the days from when they receive their green cards, waiting for the five (or in some cases, three) years to pass before they can apply for naturalized U.S. citizenship. And given all the benefits that come with U.S. citizenship — easier travel in and out of the U.S., ability to sponsor a wider group of family members for a green card, access to government jobs, and so on — this is widely assumed to be the sensible approach for anyone planning to live permanently in the United States.

As pointed out in a recent article in The New York Times, however, called “Making Choice to Halt at Door of Citizenship” (by Kirk Semple), that’s not how many immigrants see the matter. Many are content with a green card alone — even if they fully qualify for citizenship and would be permitted dual citizenship in their home country — for reasons that include:

  • national identity — they want to retain a tie to their home country and don’t necessarily “feel” American
  • trauma — the process of dealing with U.S. government officials the first time around is more than they want to face again (don’t laugh, it can be a hellishly difficult bureaucracy to deal with)
  • the $680 application fee
  • the perception that they already have nearly all the same rights as U.S. citizens, including the right to work in the U.S.
  • dissatisfaction with U.S. government or its foreign policy
  • the “cool” factor — a U.S. passport seems less glamorous than it once did, and finally
  • inertia — they just haven’t gotten around to applying.

This is, of course, a personal decision, and nothing in the law requires green card holders to apply for U.S. citizenship. For the people dealing with “inertia,” however, I offer just one phrase: “Change of address requirement.”

If you’re having trouble getting it together to apply for U.S. citizenship, might you also fail to do as required — or have you already failed in this required task — and advise the U.S. government within ten days of every time you move to a new address? It sounds trivial, but messing this one up is a deportable offense. For real. See the articles on the “After Getting Your Green Card: How to Keep It” page of Nolo’s website for details.

Me, I’d pay the fee, deal with the symbolic significance, and lower my cool factor just to know I couldn’t be deported on grounds as seemingly minor as these. (And the change of address notice is just one item on the list of grounds of deportability . . . . )

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.

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.

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.

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?

Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted

flagThe New York Times, in the grand tradition of exploring the psychological drama behind criminal behavior, recently tried to make hay out of alleged Boston Marathon bomber Tamerlan Tsarnaev’s “stalled” application for U.S. citizenship.

In “A Battered Dream, Then a Violent Path,” writers Deborah Sontag, David M. Herszenhorn, and Serge F. Kovaleski assert that being barred from the 2010 national Tournament of Champions because the 23-year-old Tsarnaev was not a U.S. citizen was “a blow the immigrant boxer could not withstand.”

Okay, let’s back up here. Why wasn’t Tsarnaev a U.S. citizen already? A green card holder (which Tsarnaev was) can apply to naturalize at age 18, after spending at least five years in the United States. According to a CNN timeline, Tsarnaev entered the U.S. in 2003. So if he’d wanted to apply for citizenship before 2010 — a prudent thing to do for anyone pursuing opportunities within the U.S. — one would think he could have.

The NYT article says that Tsarnaev still had a year to wait (until 2011) before being eligible to apply to naturalize, though it unfortunately doesn’t explain why. Meanwhile, the L.A. Times suggests that Tsarnaev may have made a 2009  bid for citizenship. It states that Toronto-based photographer and scientist Johannes Hirn published a photo essay called ‘Will Box for Passport’ showing the young man training for the U.S. Olympic team and stating that he “hoped to become a naturalized U.S. citizen by earning a place on the team.”

True, that’s not exactly conclusive evidence of an application. If boxing his way to citizenship was Tsarnaev’s hope, he probably should have spoken to a lawyer first. Joining the Olympic team is not a prerequisite for citizenship. Submitting an application on Form N-400 and passing a test and interview, as well as showing good moral character, is.

But if Tsarnaev had submitted an N-400 in 2009, it could easily have been denied; perhaps for lack of good moral character. Tsarnaev had a 2009 arrest on his record, for — speaking of battered dreams — domestic abuse and battery, after allegedly assaulting his girlfriend. The charges were ultimately dismissed, so they wouldn’t have had any direct legal affect on his application for citizenship. But Tsarnaev would have had to disclose the arrest on his N-400 application, and it wouldn’t exactly have bolstered the “good moral character” that was his obligation to show.

The New York Times article goes on to state that Tsarnaev submitted a citizenship application a couple of years later, in September of 2012. It refers to that application as having been “stalled” — though the seven months he’d waited by the time of his death is hardly out of the ordinary. Many immigrants wait a year or more after submitting Form N-400 to be called in for their citizenship interview. The average time in the Boston office is five months, as anyone can check on the following website:
https://egov.uscis.gov/cris/Dashboard/ProcTimes.do

The New York Times and other reports state, however, that Tsarnaev’s N-400 filing led to investigations in 2013 by federal law enforcement agencies, curious about his travels to Russia and warnings about him that came straight from Russian security agencies. So if his activities in Russia were as suspicious as they seem to have been, a “stalled” application for citizenship was the least of his worries — Tsarnaev should have been worried about deportation from the U.S. on criminal grounds. (See the “Crimes and U.S. Immigration” page of Nolo’s website.)

All in all, the facts surrounding Tsarnaev’s bid for U.S. citizenship are a bit thin. But the one thing that seems clear is that this is, at best, a minor case of an immigrant being stymied by the system. The worst hurdles Tsarnaev apparently faced were a boxing tournament that was only open to U.S. citizens and an opportunity for citizenship that was only a matter of months away — if he hadn’t messed things up.

Ordered to Immigration Court? Expect Long Waits as the Backlog Grows

Being summoned for immigration court proceedings can be terrifying, whether you are in the U.S. without documents or are a green card holder whom the U.S. government believes should be deported.

But whatever fears you may have about the process, there’s little need to fear that anything will happen overnight. This is particularly true if you have a defense to removal (and will not simply request “voluntary departure” at the earliest opportunity), which will justify holding a full (“merits”) hearing.

The reason? The immigration court system is getting more and more backed up with cases. According to statistics kept by TRACImmigration, by September of 2012 the backlog had grown to an all-time high of 325,044 cases nationwide. That’s 23.7% more people than were awaiting the conclusion of their court cases in September 2010.

This backlog has translated into waits of up to a year or more, depending on the type of case. The average wait has reached around 203 days to resolve cases that ended with removal orders and 781 days to resolve cases that ended with relief orders. (To check on details in your region, go to TRACImmigration’s “Immigration Court Backlog Tool.”

Part of the reason that such backlogs grow is that, if the person in proceedings (usually called the “alien”) has a lot of information to present to the immigration judge (such as personal testimony and that of witnesses), it’s unlikely that the merits hearing will be concluded in one day. And because the calendar is jam-packed, the judge will not, at the end of the first day’s hearing, say “Come back tomorrow.” Instead, the judge will put a new or “continued” court date on the calendar for many weeks or months into the future. (Expect weeks rather than months if you applied for asylum and were referred for immigration court proceedings.)

It can start to feel all very casual, as if the U.S. government really isn’t interested in finishing up your hearing. But don’t let this make you careless about keeping track of upcoming court dates, and arriving well in time. One missed court date and you could find yourself with an “order of deportation” on your record, and no further opportunities to defend yourself in court. See Nolo’s articles on “Immigrants in Deportation or Removal Proceedings” for more information.

Attending Naturalization Oath Ceremony Could Have Saved Immigrant From Deportation

A recent case out of the Third Circuit Court of Appeals, called HECTOR DURAN-PICHARDO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, is a good reminder of why attending and passing your naturalization interview (for U.S. citizenship) is not enough by itself. You’ve got to actually complete the oath ceremony before you will be considered a U.S. citizen — and receive the benefits and protections that come with that status.

Mr. Duran-Pichardo, originally from the Dominican Republic, became a U.S. lawful permanent resident in 1981. He applied for naturalization in 1997, and attended his naturalization interview in 1998.  Apparently, he passed the examination, though he was given only a document stating that the “INS will notify you later of the final decision on your application.”

The trouble arose when the INS never got around to sending him that “decision,” much less an appointment for his oath ceremony. Mr. Duran-Picardo tried to call the agency many times, but says he ultimately was told that all or part of his naturalization file had been lost. At that point, he seems to have given up.

That was a bad idea, especially in light of Mr. Duran-Pichardo’s later activities: In 2008 (nearly ten years later), he pled guilty to conspiracy to distribute and possess narcotics and possession with intent to distribute cocaine. The sentence was 51 months’ imprisonment.

Later in 2008, the U.S. government began removal proceedings against Mr. Duran-Pichardo, alleging that he was deportable both due to the controlled substance violation and as an aggravated felon. In his defense, he claimed that he was either a U.S. citizen or should have been, given that the U.S. government itself was at fault in failing to finalize his naturalization application.

That argument got him nowhere. As is typical in cases where the U.S. immigration bureaucracy is at fault, it takes no responsibility for the consequences. This also illustrates the severe immigration consequences of any type of drug crime.

This case might not create much sympathy or worry for other U.S. citizenship applicants who think, “No problem, I’m not planning to sell drugs.” Nevertheless it’s an important reminder of the need to track the scheduling of your citizenship oath ceremony, and attend it when scheduled. Far less severe actions than a drug crime can make a person deportable — for example, see my article, “Can I Really Be Deported for Failing to Advise USCIS of My Change of Address?” What’s more, you need to maintain your eligibility for citizenship right up to the day of the oath ceremony. The longer it gets put off, the greater the risk that something will happen to affect your eligibility.

Nearly 10% of Immigrant Removal Cases Being Closed Based on Prosecutorial Discretion

It’s no secret that the agency responsible for immigration enforcement, namely U.S. Immigration and Customs Enforcement (ICE), does not have the time or resources to deport or remove every undocumented or otherwise deportable immigrant who lives in the United States. So, it must set enforcement priorities — in other words, figure out who, or what type of foreign national, should be at the top of its list for arrest and removal. The rest, the agency routinely overlooks.

This policy leaves plenty of room for inconsistency and for concentration of agency resources on people who aren’t doing any harm in the U.S. — who may in fact have close family or other ties here. That’s why the policy was clarified and adjusted in a June 17, 2011 memo by ICE Director John Morton.

The Morton memo recommended that ICE agents exercise discretion by focusing mainly on cases where the undocumented or deportable immigrants have a criminal record or are otherwise threats to public safety — and to give a break to upstanding immigrants with strong or longstanding ties to the U.S., who contribute to their community.

In particular, the memo recommended giving consideration to people who arrived in the U.S. as children, are successfully pursuing advanced degrees or have graduated from U.S. high schools, have served in the U.S. military, whose removal from the U.S. would split up a family, and so on. By extension, the memo offered a possible way for gay and lesbian partners of U.S. citizens, who are not eligible for a green card based on marriage, to avoid deportation.

What does this new policy mean, in practical terms? It’s not an amnesty, nor a way for undocumented immigrants to apply for a green card. What it does mean is that not only should ICE agents stop arresting people who are low on the priority list, but the Department of Homeland Security (DHS) will close active cases in the immigration court system that fit the new guidelines. The cases will be put on pending, inactive status — essentially placing the person in limbo.

Implementation of this policy has itself been a bit inconsistent. However, reviews of immigration court cases under the new policy has begun. And according to a recent report by Ben Winograd, called “Crunching — and Clarifying — the Numbers on Prosecutorial Discretion,” 13,000 of the 165,000 cases reviewed so far were found eligible for a favorable exercise of prosecutorial discretion– though proceedings have not yet been suspended in all these cases. (The need for background checks may be creating a holdup.)

Clearly, this area of  immigration policy is still developing, and we are likely to see more adjustments — and possibly opportunities — as it does so.