Notario Fraud Warning: No, There\'s No Amnesty

08/26/2011

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Last week, the Department of Homeland Security announced  a new focus more on criminal aliens, and not immigration status violators who committed no crime.  Almost immediately, both sides of the band camp began to speak - with one side cautiously welcoming the move as a sensible use of limited resources, and the opposing side likening it to a backdoor amnesty.

Immigrants are among the most vulnerable of American society.  Due to a lack of familiarity with the culture, language and procedures in the United States, they make easy targets for people whose motives are not so helpful.

So how does one know whether their case will be selected?  What is considered a low priority case? Who gets a work permit? The American Immigration Lawyers Association (AILA) recently issued a consumer advisory outlining what the government's announcement is and is not.  


Here's what you need to know: (adopted from AILA)
  • Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the government's announcement.
  • There is NO “safe” way to turn yourself in to immigration and there is NO guarantee that your case will be considered “low priority.” ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.
  • DO NOT file anything without speaking with a lawyer.  Otherwise you might as well hold up a sign for ICE telling them to come get you.
  • Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell you about your rights. Do NOT seek legal advice from a notario or immigration consultant.
Although some are saying otherwise, the simple fact is: this is NOT amnesty.  It's not giving legal status.  There's no form to fill out, or a fee you can pay to get status.  It is only an announcement that many immigration cases will be set as high or low priority.  That's all.  If you're lucky you will be a low priority case.  It's a way for the immigration courts to clear out some of their backlog.

This comes on the heels of the new "Morton Memo" - a new set of prosecutorial discretion guidelines—taken from a June memo by ICE Director John Morton—agency wide and the created a high-level working group to review pending cases and assign low priority (and this is up to ICE - you don't get a say in whether your case will be low or high priority); and try to set guidelines so that there is more consistency in how people are placed in removal proceedings.  (Yes, there is a lot of inconsistency.)  There is also a directive to determine what to do in compelling cases where there has been an order of removal already. 


One issue I have not seen talked about much is the flip side to this announcement.  If 300,000 immigration cases are demoted to low priority, what does that do to the rest of the immigration court cases?  That's right: those cases are now, relatively speaking, "high priority." The court dates will be quicker, and DHS will have more resources available to it to prosecute the case, make legal arguments for removal, spend the time and money to sniff out and prosecute cases for fraud, work with other federal agencies, and generally do what it does: detain and deport people.  

If you have a question about it - talk to an LAWYER.  Do NOT listen to your friends.  Do NOT listen to notarios or other "immigration specialists." Do NOT try to file something by yourself.  ICE is still an agency that exists to deport people: dealing with them unrepresented is like sticking your head in a lion's mouth: it might not bite, but it's not a good idea.

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Padilla v. Kentucky: A Change is Gonna Come

04/11/2010

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On March 31, 2010 the US Supreme Court handed down a 7-2 decision in the case of Padilla v. Kentucky, 559 U.S. _____ (2010).  And boy, have we been waiting on this one.

Briefly, the case is about a long-term green card holder who was given a piece of very bad advice by his lawyer when pleading guilty to a drug offense.   The Sixth Amendment to the US Constitution guarantees that all criminal defendants will have a competent lawyer for their defense.  So the question is, is it incompetence if a lawyer either gives wrong advice or fails to advise his client about the clear risk of deportation?

The lower courts all said no, reasoning that deportation is not a direct criminal consequence of a guilty plea, so a criminal defense attorney has no duty to advise his client of it.  The defense attorney has to advise his client, for example, that he is giving up his right to appeal, to a trial, to confront witnesses against him, to the presumption of innocence, and many other rights, because these are direct consequences of a guilty plea.  But there are other potential consequences: ineligibility to vote, difficulty in finding a job, or loss of security clearance. 

What about deportation?  The lower courts found that deportation is not a direct consequence, but a collateral (or indirect) consequence of pleading guilty.  And these courts refused to place a duty on the defense attorney to advise about deportation, saying in effect it was the same as other indirect consequences, like ineligibility to vote.

The Supreme Court, thankfully, saw differently. It rejected this whole distinction between direct and collateral.  It is an artificial distinction, it has actually never been used, in this context, and it invites absurd results, allowing a defense attorney to misadvise his client regarding what may be the most important factor in his decision to plead guilty.  Even worse, it allows a defense attorney who does not know immigration law to merely remain silent, and fail to advise his client about what may be the most important factor in his decision to plead guilty.

Although deportation has long been considered a "drastic measure," (see Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948)) this is the first time the Court has found that because deportation is "intimately related to the criminal process" the defense attorney has an affirmative duty to advise about it correctly.  Other immigration consequences (such as ineligibility for naturalization, or eligibility for some form of relief in removal proceedings) should also be advised about, but the Court did not place the duty of knowing all immigration law on the shoulders of defense counsel.  Rather, the duty extends to saying, "Pleading guilty may have some adverse consequences," but if the risk of deportation is truly clear (e.g., the conviction is considered an aggravated felony by the immigration law) then the advice must be, "Pleading guilty will likely result in your deportation from the United States."

In my opinion, this is an important case.  But more importantly, I believe this will become a very important case.  Why?  Because for the first time, the highest court in the land has come down definitively to say that "changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction," and further that the Court found it "most difficult" to divorce the penalty from the conviction in the deportation context.  The law has severely limited judicial review, taken away the old trump card of the JRAD (judicial recommendation against deportation), made deportation virtually automatic for an ever increasing list of offenses, and has exalted form over function in the criminal immigration law.  This is the first time since IIRAIRA in 1996 that the Court has recognized that the current law is so strict that it can easily impinge on an individual's constitutional rights.  Deportation breaks up families and causes untold hardships on innocent people, the same as a criminal conviction.  I am not suggesting that the law treat immigrants and citizens the same in all contexts.  But to demote deportation to a "collateral civil consequence" like ineligibility to vote is just ludicrous.

It's time to start using common sense and stop pretending that a Vietnam veteran like Padilla who's been in the country for 40 years has the same rights as a person who overstayed their visa last month.  The system can't have it both ways: first making this incredibly complex (and frequently nonsensical) criminal immigration law with the power to automatically deport, but at the same time tell defense attorneys that there's no need to advise their clients about any of it. 

The Court's decision, to me, represents the dawning awareness that people's lives should not be easily destroyable. 

If you have a criminal conviction that has made you removable from the United States, contact an attorney to see if this new decision opens up any new options for you.
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Exceptional and Extremely Unusual Hardship

03/17/2010

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One of the forms of relief some foreign nationals who unhappily find themselves in removal proceedings can apply for is called cancellation of removal.  There are two types, one for people who have a green card but stand to lose it due to some violation or criminal ground, and the other for those aliens who never had a green card.  "LPR" means "lawful permanent resident," or green card holder - so the first type is often called LPR cancellation, and the second type non-LPR cancellation.  Each one has its own requirements, but the lynchpin is usually the showing of hardship.

The law doesn't care about hardship to the foreign national.  Instead, it focuses on hardship to family members (spouses and children) who are US citizens or green card holders.  Essentially, assuming they meet the other requirements, they have to show that their removal from the United States would result in hardship to their spouse and/or children.

If it's LPR cancellation, the hardship to the family must be "extreme."  And for non-LPR cancellation, it must be "exceptional and extremely unusual."  What do these terms mean?

In short - it depends.

Part of a lawyer's job is to conduct a very thorough investigation into the personal lives of their client, to determine exactly how a foreign national's removal will impact a family.  This is one of the hardest and most challenging things for a lawyer to do.  Because every foreign national's family thinks that the hardship they would have to go through is extreme.  (And, in the opinion of this lawyer, they're usually right.)  But the law doesn't necessarily agree. These hardship standards can be very difficult to meet.

LPR cancellation's "extreme" hardship, despite the way it sounds, is actually more workable of a standard than non-LPR's "exceptional and extremely unusual" standard.  Each form of hardship must involve the examination of many factors, not the least of which is family separation, particularly where there are young US citizen children involved.  We have found it is useful (if not essentially a requirement) to have a psychiatric or psychological evaluation to determine, in medically objective terms, the effect of a family member's removal. 

These standards date back to the original Immigration & Nationality Act of 1952.  In Matter of Monreal, 23 I&N Dec. 56 (BIA 2001) the Board of Immigration Appeals first considered the application of the standard for "exceptional and extremely unusual hardship." It noted that in the original Act, Congress intended for suspension of deportation (the old term for cancellation of removal) only if it would be "unconscionable" to deport the person.  According to the Board, this standard was meant to be very high indeed.  Yet Board case law from 1952 onward shows that in practice, the standard was (comparatively) not that difficult to meet.  In addition, it used to be relevant to show hardship to the foreign national in addition to the hardship to the family.

That all changed in 1996.  With the passage of IIRAIRA, the old suspension of deportation form of relief was replaced by the new scheme of cancellation of removal, one for LPR's and another for non-LPR's.  No longer would hardship to the foreign national be considered, no matter how extreme or exceptional it was.  In Monreal, the Board attempted to define the meaning of "extreme" and "exceptional and extremely unusual."

And here's the main point: They are both difficult, high standards.  Much higher than a mere showing of hardship.  But not necessarily to show that it would be "unconscionable." For both types of removal, there is a focus on the raw level of hardship, and it has to be pretty extreme.

For non-LPR cancellation, however, there is another focus.  That is the uniqueness of the hardship.  The year after Monreal, the Board considered two more cases to further define what "exceptional and extremely unusual hardship" means.  These two cases were Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) and Matter of Recinas, 23 I&N Dec. 467 (BIA 2002).  The Board found that “the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” Recinas at 470.  Recinas, which is the most recent of these three cases, noted further that any review of “exceptional and extremely unusual hardship” decisions from the Immigration Judges would start with a consideration of the factors in Monreal and Andazola. 

So what types of factors were looked at in these three cases?  Things like how foreign the culture would be to the US citizen children.  Financial and emotional support.  Family separation.  Family support in the US versus in the country of removal.  Educational opportunities for the children.  Medical conditions.  Whether the foreign national had any other form of relief available.  Quite literally, almost anything could be considered, but these factors would definitely be looked at.  Facts must be independently considered, and the hardship evaluated in the aggregate (per Matter of Ige, 20 I&N Dec. 880 (BIA 1994).

And once looked at, how would they be applied?  In the non-LPR cancellation scenario, the court will ask not only how hard would it be, but how unusual is the hardship.  In other words, removal almost always results in financial hardship.  There is almost always some degree of cultural readjustment.  There is almost always a loss of family support.  So if that's all that's there, then even if the hardship is extreme, cancellation will likely not be granted because these hardships, while extreme, are not unusual.

Contrast that with the case of a single mother with, say, 6 children who don't speak the language of the removal country.  Or where there's only one child but the child is autistic and there is no treatment for this condition in the country of removal.  These types of hardship are not as run-of-the-mill.  Caring for 6 children is not the same as caring for 1 or 2.  Assuming other requirements are met, these scenarios are more likely to result in the grant of cancellation of removal.

These are tough cases.  The burden is high, and the proof is very detailed.  We hope that legislation might be passed to allow the court to consider the hardship to the foreign national, because applying legal blinders to this hardship necessarily means that the hardship analysis will be shortsighted and incomplete.  If you are in removal proceedings, cancellation is one option that can work to save your life in the United States when there are no other options available.
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The BIA Resolves an Impasse They Created

03/01/2010

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It's always nice to share good news.  HMALF attorney Hassan Ahmad just completed a brief for an foreign national whose green card application had been stuck in limbo for 5 years.

The reason?  No one thought they had jurisdiction to decide his application!  This is what happens when your system is made up of so many parts that don't always work together.  It's kind of like driving a car pressing the gas and the brake at the same time.

In this case, it has to do with certain aliens in removal proceedings who have ported employers under INA 204(j).  This section of law was passed as part of the American Competitiveness in the 21st Century Act (often abbreviated "AC21") and helps remedy the interminably long process of getting a green card based on employment by a US employer.  Since these cases took so long, aliens took a big risk: there was no guarantee the employer would still be around by the time the government was able to decide his green card application.  So 204(j) allows aliens who have a green card application pending for more than 180 days to switch employers, so long as the new position is "the same or substantially similar occupation" as the one for which he was originally petitioned for.

The problem arose in the case of an alien in removal proceedings.  An employer petition is filed with USCIS, which is the only agency that can decide that petition.  Once an alien is in removal proceedings, the immigration judge is the only one who can decide the alien's green card application, and USCIS has no power to do so.

Ordinarily then, an immigration judge will wait for the petition to be approved or denied by USCIS, and then decide the green card application accordingly.  But when an alien changes employers, then someone has to judge whether the new position is the "same or substantially similar" occupation as the original.  Who decides? 

Well, USCIS refused to do so.  In 2005 the Board of Immigration Appeals decided Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), and said that immigration judges couldn't either.  So employment sponsored aliens in removal proceedings were at an impasse.  No one would adjudicate their green card applications!

Happily, the Board reversed itself.  After Perez Vargas was shot down by the Fourth, Fifth and Sixth Circuits, on January 21, 2010 the Board decided Matter of Marcal Neto, 23 I&N Dec. 169 (BIA 2010), concluding that immigration judges do in fact have the jurisdiction over 204(j) employer ports.

Great news for an undoubtedly large class of aliens whose files likely landed in the office of a Detention & Removal officer.  If you are (or were) in removal proceedings and your case was denied or administratively closed because the Court concluded it couldn't decide your application because you switched employers, contact an attorney now.
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