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!

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.”

How Will You Know When USCIS Declares a Snow Day?

whitehousesnowWhen local schools are closed due to snow, you will usually hear it announced it on local radio and TV stations (and you can hear the cheers from around the neighborhood).

But how do you find out whether the office of U.S. Citizenship and Immigration Services (USCIS) at which you are scheduled to attend an interview or provide your biometrics has been closed due to bad (sometimes called “inclement”) weather? Sometimes the media may mention the closure of federal buildings, but it’s best not to count on this as your sole source of information.

If you have a lawyer, and he or she is a member of the American Immigration Lawyers’ Association (AILA), your lawyer will likely receive an email with any notifications of USCIS office closings.

If you don’t have a lawyer working on your immigration case, however, you may need to do a little research on your own if the weather is looking bad. USCIS does not make any attempt to reach out to people individually — trying to call or even email the thousands of people who are scheduled for appointments on a given day would probably take well into that night!

USCIS will reschedule non-INFOPASS appointments due to its own closure automatically, but that’s done by letter, and could take weeks. (If you made an INFOPASS appointment to visit a USCIS office, however, you’ll need to go online and reschedule that one yourself.)

The most reliable source of such information is on the “Field Office Closings” page of the USCIS website. On most days, it will simply say (in the top paragraph under the date) “All offices are open on schedule today.” On other days, however, this page will state which of USCIS’s offices nationwide are closed. According to a USCIS spokesperson whom I contacted, they also make an effort to advise people via social media, including the USCIS Facebook page and Twitter.

If in doubt, you could also try calling the National Customer Service Center at 800-375-5283.

If you are still in doubt, do your best to make it to your appointment. Failure to do so could result in weeks of delay at best, and possible denial of your application for immigration benefits.

Immigration Scammers Love the Uncertainty About Immigration Reform

man tearing up agreementFollowing up on recent stories about the lawsuit against so-called “American Legal Services” for defrauding immigrants (discussed in my previous blog, “This Is News: Actual Enforcement Against Shady Immigration Consultants!”), the East Bay Express produced an interesting story titled “The American Immigration Nightmare.”

It gave broader coverage to the problem of sham lawyers and consultants defrauding undocumented immigrants in the East Bay and beyond, with promises of remedies that either don’t exist or aren’t available to the person seeking assistance.

The most alarming aspect of the story was the following: “‘I anticipate the amount of immigration-consulting fraud will go up dramatically,’ said [Oakland City Attorney Justin] Nishioka, noting the White House’s recent renewed efforts to enact immigration reforms.”

Scammers love uncertainty. They prey on people’s fear that if they don’t act quickly, they’ll miss the boat, or at least fall to the back of the line. Given the power of the rumor mill, this blog probably won’t reach the people it needs to, but let me say right here: Immigration reform has NOT passed (and probably won’t until 2014 if at all), there is no new way to get a green card yet, and you should never give money to someone you haven’t thoroughly checked out!

This Is News: Actual Enforcement Against Shady Immigration Consultants!

oakland courtIn today’s news piece, “Judge: Co. Owes $15M in Botched Immigration Forms,” NBC Bay Area states that the Oakland City Attorney has obtained a $15.1  million court judgment against a fraudulent immigration consulting  business, so-called “American Legal Services.” This company’s actions — we can’t call them legal services, because there seems not to have been a single attorney on staff — are said to have resulted in many Oakland families who were seeking immigration help losing vast amounts of money or winding up in removal (deportation) proceedings.

This story is both surprising and not. The “not surprising” part is that immigrants and their families are prey for unscrupulous fraudsters. That’s been going on for years.

Every immigration attorney has had clients come to them after their case was botched by someone who had no idea what they were doing, but pretended otherwise and charged a lot of money. Many use the name “notario,” because in the Spanish-speaking community, it implies someone with actual training, while in the U.S., it just means someone who’s a notary public — that is, can confirm your signature using a rubber stamp.

The surprising part is that someone is actually doing something about it! Immigrants are seemingly so low on the list of societal priorities that such issues often go unaddressed by enforcement authorities — even when all the evidence is right in front of their faces.

I once had a case where a client paid a fraudster to put a green card stamp in her passport (a stamp which he’d somehow acquired straight from U.S. immigration authorities). You’d think that would have been seen as a serious matter by anyone within the immigration system. But when I pointed it out to the attorney for the Department of Homeland Security, and urged him to go after the guy, he shrugged. As far as I know, that was the end of it.

But let’s hope the Oakland court judgement is a sign of more enforcement to come. If you’ve been harmed by a fraudulent immigration service provider, you can add to the push for further enforcement by reporting it to the police, district attorney’s office, and state bar association. And if you’re seeking immigration services, see “How to Avoid a Sleazy Immigration Lawyer” for more information.

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.

Check Your Passport BEFORE Submitting Form N-400 Naturalization Application

airplanePicture this: You fill out Form N-400, the application for U.S. citizenship. On one of the questions, you’re asked to list all your trips outside the U.S. for the past five years. “That’s easy, I haven’t taken any trips for at least five years,” you think, and enter “N/A” in this section.

The day of your interview arrives. You go over the list of what you need to bring to the interview. It includes the passport of your home county. You dig through your possessions until you finally find the passport, and rush to your interivew.

Everything at the interview is going well. Your spoken and written English are fine, and you’ve memorized the history and government questions and easily pass this part of the test. Then the U.S. Citizenship and Immigration Services (USCIS) examiner opens your passport. “Hmm, there’s a visa stamp showing that you HAVE traveled outside the U.S. in the last five years,” she notices.

Uh oh. This is exactly the situation faced by an applicant with whom I reasonably spoke — a careful, professional person, whose memory had just happened to lapse slightly when it came to the matter of recent travel. And now the applicant was facing a USCIS examiner who was suddenly suspicious about the discrepancy between what was written on the N-400 application and what the passport showed.

Fortunately, after some embarrassed explanation, this applicant was able to convince the examiner that the undisclosed travel was a mere oversight, and obtained approval for U.S. citizenship. But not every applicant is going to meet a similarly understanding examiner.

The lesson here is simple: No matter how good you think your memory, check your passport and any other official documents concerning matters to be entered on your N-400 application for U.S. citizenship. For more information on the application process, see the book, Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview (N0lo).

It’s National Hug Your Immigration Lawyer Day!

mexican immWell, no, it’s not really. (But with all the national days on the calendar, who’s checking?)

And immigration lawyers are one group that deserves more appreciation than it gets, in a world where lawyers consistently rank at the bottom of the public opinion scales.

Here are some reasons to give a little love to this country’s immigration lawyers (the good ones, anyway — there are some bad ones out there, too):

  • They’re not getting rich off their work. Immigration lawyers usually work as solo practitioners, which means paying a lot of office overhead in return for payments of flat fees or low hourly rates, at amounts that reflect their clients’ typical lack of ability to pay big bucks. (And forget chasing down payment if the judge orders the client deported!) Noodling around online, all the surveys I found put immigration lawyers’ salaries in the $70,000 range — which would be considered peanuts by most attorneys. It’s less if the attorneys work at a nonprofit organization.
  • They do a lot of volunteer work. Huge numbers of immigrants cannot afford even an hour of a lawyer’s fees, yet are desperately in need of representation, for example with cases for asylum (because they’ve fled persecution in another country) or  deportation defense. The U.S. government provides no funding at all to help with this. (There is no immigration equivalent to the “public defender” program for U.S. criminal cases.) So immigration lawyers, often with the coordination and help of perpetually underfunded immigration-service nonprofits, attempt to pick up the slack.
  • They’re grappling with the most complex body of law on the books. For real. As is often repeated, it’s more complicated than the tax code. And it’s treated as a political football, with clauses added and subtracted with every new Congress or President.
  • They can do everything right and still have the case go wrong. I don’t want to point fingers, but . . . well, yes I do want to point fingers. The entire immigration bureaucracy, including the State Department and U.S. Citizenship and Immigration Services, is a morass of paperwork, process, and inconsistency. Ask any immigration lawyer, and you’ll get tales of frustration — delays and lost files or checks, demands for documents that are legally irrelevant, denials that made no sense or were based on bias or lack of cultural awareness, and so on. These can be difficult to explain to clients, who’ve paid their fees and expect to see some results — or who even believe that the attorneys are somehow in league with the U.S. government.
  • They occasionally pull off miracles. Every time I attend an immigration lawyer’s conference, I hear some story of a lawyer who went to bat on a case I would have thought was a sure loser — and won. That kind of spirit and optimism is hard to maintain, and makes a big difference for other immigrants down the line.

Need I say more? Actually, I have said more, about the important process of choosing, hiring, or firing an immigration attorney.