Do You Have the Right to Stop Immigration Enforcement Agents From Entering Your Home if You are in the Country Illegally?
The Fourth Amendment to the U.S. Constitution guarantees that people have a right to be free from unreasonable searches and seizures. The limits of this guarantee have been tested in numerous court cases, and the basic rules are clear. Unless government agents have a reason that fits into a few narrow exceptions, they cannot enter your home without a valid search warrant issued based on probable cause. The question most immigrants living in the U.S. may ask themselves is, does the protection of the Fourth Amendment extend to them?
The possibility of immigration enforcement agents increasing raids to look for undocumented immigrants is one reason for this question. Immigration raids, where immigration enforcement agents go to businesses and even homes, looking for people who are in the country illegally are allowed under current immigration laws. Undocumented workers who find themselves in the midst of a raid or who are visited by agents should be aware that the U.S. Constitution and other U.S. laws do offer some protections, even to undocumented immigrants.
The Fourth Amendment protections are guaranteed to all people living within the U.S., both citizens and noncitizens. A person’s immigration status does not affect this basic protection. This Fourth Amendment protection is one more right that is aimed at ensuring the government follows due process in arresting and deporting an immigrant. These rights apply whether a person is in his or her car or home when stopped for a search. Police officers and immigration enforcement agents also cannot stop your car for a search based on your race or religion.
Therefore, if immigration enforcement agents arrive at your home and demand entry, ask to see a search warrant. If the agents ask your permission to enter, and you grant them permission to enter, then they do not need a warrant. Your permission satisfies the requirements of the Fourth Amendment because it makes the agents’ entry reasonable. There are other ways in which the Fourth Amendment may not protect you, and if you find yourself in a situation in which you believe your rights are being violated, it is better not to do anything such as resisting arrest or presenting false papers. It is best to wait for an opportunity to speak to your attorney.
There are some constitutional protections that are reserved for U.S. citizens only, such as the right to vote. Immigrants who are in the country illegally can make their immigration situation worse by exercising rights that are reserved for U.S. citizens only.
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Regardless of your immigration status, it is important to remember that there are laws that protect your rights. If your home is searched and you are arrested by immigration enforcement agents or local police officers, you should avoid making any statements or admissions before speaking to your attorney. You should also avoid signing any documents they present you with, even if they promise it will lead to your release. Be prepared by learning more about how the law can protect you as an immigrant; contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
A Green Card Does Not Always Prevent Deportation
Getting a permanent residency card can signal a new beginning for many immigrants seeking to settle in the United States. It sometimes takes years to get through the application process and can be expensive, depending on the circumstances of the applicant. Unfortunately, while legal or lawful permanent residency guarantees more for immigrants in the country, it is not a guarantee against deportation. In some instances, even legal permanent residents can be deported.
A person who is granted lawful permanent residency is allowed to live and work in the United States permanently. A person can become a lawful permanent resident through an application by an eligible family member, a job, as an asylum seeker or refugee, and through a few other special categories. Some applicants receive conditional permanent residency, for example if applying through marriage. After some time, the conditional status can be removed. Once permanent residency has been granted, a lawful permanent resident can go on to complete the naturalization process and become a citizen.
For an immigrant on conditional permanent residency status, committing crimes such as fraud can lead to removal proceedings and deportation. For example, if your conditional status is based on marriage, and the government learns that your marriage was a sham entered into for the sole purpose of getting you a green card, the government can terminate your conditional status and begin removal proceedings. During removal proceedings, you have a chance to seek a review of your case in order to prove that you are not guilty of fraud.
A lawful permanent resident can also lose permanent residency by being absent from the United States for a long period of time. If a person is gone for about six months or more without re-entry into the United States, he or she may not be allowed back into the country. To avoid this result, a lawful permanent resident can apply for a special re-entry permit before leaving the United States, or make sure that he or she is not absent from the country for an extended period of time.
Removal proceedings for lawful permanent residents can be initiated if the lawful permanent resident is convicted of what is described as a crime of violence. A person who is convicted of murder is permanently barred from naturalization. The definition of what constitutes a crime of violence is hard to pin down because in some instances it could mean that someone who commits a robbery and is convicted may be deported, and yet someone with an unregistered gun may not. This sort of ambiguity is being challenged in front of the United States Supreme Court, and a decision is awaited that will hopefully set out more clear guidelines as to which crimes may make a lawful permanent resident eligible for deportation.
Lawful permanent residents can also voluntarily choose to relinquish their status by filing United States citizenship and Immigration Services (USCIS) Form I-407.
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Receiving a green card is a significant step towards gaining citizenship. If you are a lawful permanent resident facing removal proceedings you can fight your removal at the hearing. For more information, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP.
Seeking Political Asylum in the United States
In one of his last executive actions before leaving office, on January 12, 2017, president Obama has ended a long-standing policy known as “wet foot dry foot.” Under this policy, Cuban nationals fleeing Cuba were granted entry into the United States without a visa and eventually, after being in the country for a year, were able to apply for and be approved for legal residency in the United States. The policy was supposed to protect people escaping political persecution in Cuba, but had also been used by economic refugees seeking better opportunities in the United States.
Cuban nationals entering the United States without a valid visa will now be treated as other hopeful immigrants, and be eligible for deportation. Like other immigrants, those with fears of political prosecution will still be able to seek political asylum upon arrival in the United States.
Asylum is a legal process through which a person can be granted permission to stay in the United States if the person has a well-founded fear of persecution in his or her home country based on race, religion, nationality, membership in a particular social group, or political opinion. Seeking asylum is not always an easy process, and the person seeking asylum has the burden of proving his or her case and showing that he or she has a well-founded fear of persecution. Generally, a person seeking asylum has a year from the date of arrival within the United States to seek asylum, and there is no fee for the application. If granted asylum, a person can also legally work here.
What constitutes a well-founded fear depends on the facts of each asylum seeker’s case. It is not as simple as just alleging that the government of the asylum seeker’s country will harm the person upon return. There has to be some evidence of the claim, for example, past incarceration for political reasons. For this reason, asylum cases can be difficult to prove and for the asylum seeker to be successful. If a person is not successful, removal proceedings or deportation may be the next step. In some cases, a person may be held in detention while an application for asylum is pending.
Even a person with a well-founded fear of persecution based on the above reasons may be unable to apply for asylum if the filing deadline has passed since his or her arrival in the United States, the person previously applied for asylum and was denied, or can be granted asylum in a third country as part of an agreement with the United States.
A person can also be denied or barred from asylum if the person engaged in terrorists activities or was a part of a terrorist group, participated in the persecution of people based on their race, religion, nationality, membership in a particular social group, or political opinion, committed or was convicted of certain crimes, was settled in another country before seeking asylum in the United States, and for several other reasons.
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Having an attorney assist you with your claim for asylum can make a difference in whether or not you are able to present your case in the best way. If you believe you have a reasonable case for asylum because of persecution you suffered in your country of origin, contact our multi-lingual staff in Pasadena, California, to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP to discuss how we can help you with your application.
Seeking an Option to Work Legally After DACA
Hundreds of thousands of undocumented immigrants applied for Deferred Action for Childhood Arrivals (DACA) after the program was implemented in June of 2012. Under this program, many were able to receive Employment Authorization Documents, allowing them to work legally in the United States. With the future of DACA uncertain, because it was authorized through Executive Order by President Obama, many with work authorization under DACA may begin to look into other kinds of work visas or permits for which they may qualify.
There are a number of guest worker visa program under the United States immigration laws. The most commonly referenced is the H-1B visa program which hires temporary workers who typically have a first degree and often more advanced degrees. The types of workers employed on this visa include engineers, teachers, and computer programmers. In order to receive an H-1B visa, a person must have a qualifying employer willing to sponsor his or her application.
An employer cannot seek an H-1B visa on behalf of an undocumented immigrant. Unfortunately, DACA as a program did not legalize its participants, and they are technically still eligible for deportation at a later date if the program is eliminated or the next administration reprioritizes deportation targets. This means that it is not generally possible for a person who is on DACA, and is therefore an undocumented immigrant, to get an H1B visa.
The Immigration and Nationality Act’s Section 212(d)(3) waiver presents a way for an undocumented immigrant with an employer willing to sponsor an H-1B visa to successfully gain legal admission into the country and work under the temporary H-1B visa. However, the waiver is also a huge gamble because the undocumented immigrant has to leave the country in order to apply for the waiver, and leaving after having been in the country unlawfully for more than one year triggers certain bans on re-entry. This is where the waiver comes in; an undocumented immigrant who received the waiver of inadmissibility can be allowed to return to the United States on a temporary non-immigrant visa such as the H-1B visa without having to serve out the period of the ban abroad.
This waiver would not remove the person’s inadmissibility permanently, and the person would still likely have to serve out the three- or ten-year bans once the temporary visa expired or he or she sought to change status to an immigrant visa. In addition, the H-1B visa restricts the worker to the sponsoring employer, if an employee want to change employers, the new employer has to sponsor a new H-1B visa or the employee has to leave the country.
While this option presents a way to exit the country and re-enter and work without fear of deportation if DACA gets revoked, it is also quite dangerous because the exiting immigrant is not guaranteed a waiver or an H-1B visa. Before deciding what action to take, it is always best to discuss your case with an experienced attorney.
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If you are in Pasadena, California, and looking to change your status from a non-immigrant visa to an immigrant visa, or looking for a way to adjust your status so you can legally live and work in the United States, contact our multilingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP.
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