When an undocumented immigrant who has American born children is in removal proceedings facing the possibility of deportation, the immigrant may seek a waiver from being deported because the immigrant’s deportation would cause extreme hardship to his or her children. This is a recognized exception, and if the immigrant can meet certain factors, he or she may be able to avoid deportation.
In claiming that the children will face undue hardship, there is a difference in the kind of information required as proof of the hardship when the children have another parent present in the United States and that required when the parent facing deportation is the only parent present in the United States.
If the parent being deported is the only parent, the court presumes that the children will leave the country with the parent who is being deported. Because the children are American citizens, the court cannot order the children to leave the country with a parent who is ordered to be deported. In order to rebut the court’s presumption that the children will leave with the parent, the parent must present an affidavit in which the parent expresses his or her intention for the children to remain in the United States. The parent has to show how the children will be cared for if they remain in the United States.
When the children’s other parent is in the United States, the parent claiming extreme hardship does not have to provide these affidavits. The assumption is that the children will remain in the United States and be cared for by the remaining parent. There is no requirement of supporting affidavits even when the parent with whom the children would remain is also an undocumented immigrant. The court does not consider the remaining parent’s undocumented status as a barrier to caring for the children. The parent being deported can still claim the children will face extreme hardship if he or she is deported, even when the children remain in the care of a parent who is also undocumented.
If the parent does not intend to leave the children in the United States upon his or her deportation, he or she can still allege that the children will suffer undue hardship from returning to the parent’s country. This may be a more difficult way to prove hardship because the children still have the option of staying in the United States since they are citizens.
As we have discussed before, if a parent of a United States citizen is deported before he or she has the chance to make arrangements for the care of the children, and the children’s other parent cannot care for the children, the children may be sent to foster care. It is therefore important for an undocumented parent to have a contingency plan in place for other family members or friends to care for his or her children if the parent is unexpectedly deported.
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Undocumented immigrants facing deportation generally have a better chance at deportation hearings if they are represented by an attorney than if they represent themselves. If you have a loved one facing deportation, you need to contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
Naturalization is one way in which a person born in a country outside the United States can acquire U.S. citizenship. A foreign born individual can become a naturalized citizen by marrying a U.S. citizen and being a lawful permanent resident for three years, being a lawful permanent resident for five years through means other than marriage, by having qualifying military service, or by being a qualifying child of a U.S. citizen. A person can also become a U.S. citizen by acquiring derivative citizenship.
Once a person becomes naturalized, he or she receives a certificate of naturalization to show that the person has become a U.S. citizen after meeting the necessary requirements. A certificate of naturalization should not be confused with a certificate of citizenship.
A certificate of citizenship is given to a foreign born individual who acquires derived citizenship through a U.S. citizen parent or parents, whether the parent is a birth parent or an adoptive parent. The child who obtains this kind of derivative citizenship usually must be under the age of 18. A certificate of citizenship is used as proof of citizenship, but does not confer citizenship status.
After a person becomes a naturalized citizen, the status cannot be revoked or the certificate of naturalization cancelled, without a hearing before a federal judge. On the other hand, a certificate of citizenship can be revoked without a hearing as an administrative matter if the underlying derivative citizenship is shown to be fraudulent or invalid. For example, a person lies about being the natural or adopted child of a U.S. citizen, and provides fraudulent documents to prove this, and is issued a certificate of citizenship based on this information. The certificate of citizenship can be cancelled as soon as it is discovered that the person provided false information.
The cancellation of the certificate of citizenship does not cancel or revoke a person’s otherwise valid citizenship. If the person can prove derivative U.S. citizenship another way, he or she may do so.
This administrative procedure for cancelling a person’s certificate of citizenship is not applicable to naturalized citizens. The process of revoking a person’s naturalization is more complicated. There are some situations in which an immigrant’s naturalization can be revoked, and the immigrant can lose his or her status as a U.S. citizen. This usually happens if there is a problem with the person’s initial qualification for naturalization. If the person did not meet the criteria for citizenship, whether fraudulently or through a mistake, the person’s citizenship through naturalization can be revoked.
However, the United States Supreme Court has held that if the basis of revoking a person’s naturalization is misstatements on a person’s naturalization application, the misstatements have to be material. The government has the burden of proving that the misstatement was material to the granting of citizenship. Therefore, minor misstatements cannot be the basis of stripping someone of U.S. citizenship.
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For more information on how an experienced immigration attorney can assist you in a proceeding to revoke your naturalization, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
The federal government extended its travel ban to immigrants of three additional countries over the weekend. The countries added to the original list of countries are Venezuela, North Korea, and Chad. Sudan, which was on the original travel ban list, has since been removed from the list. The addition of these countries to the travel list will mean tight restrictions for immigrants from these countries trying to enter the United States.
The reasoning for adding these countries to the travel list has been reported to be a failure by the governments of these countries to cooperate with the United States in terms of providing information on potential travelers. Specifically, the information that the U.S. government seeks from foreign governments about potential travelers has to do with the traveler’s criminal past or ties to terrorist organizations. The government uses this information to screen travelers before granting them permission to enter or remain in the United States.
Having a criminal record may affect a person’s ability to enter into the United States, even if the person is only planning on temporarily visiting the country. If a person has numerous misdemeanors, or has been previously convicted of what is referred to as a crime of moral turpitude, or of trafficking controlled substances, the person is not likely to gain admission into the country. Depending on what kind of criminal record a person has, he may be able to obtain a waiver from the United States embassy or consulate in their country in order to travel to the United States.
One category of traveler who will always face obstacles when coming into the United States is anyone connected to a terrorist organization. There are many organizations in many countries that are regarded as terrorist organizations by the U.S. government. A person’s suspected connections to these groups increases the background checks that must be performed before letting the person travel to the United States. There are no waivers available for a person who is denied entry into the United States on the basis of connection to a terrorist group.
The effects of the revised travel ban are yet to be seen, and therefore, it is hard to tell whether there will be additional legal challenges to the addition of the new countries, or to the government’s reasoning for adding them. The United States Supreme Court is yet to make a final ruling on the constitutionality of the travel ban.
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If you are in the United States, have been convicted of crimes in the United States or in another country, it can interfere with your ability to remain in the United States, and you need to contact an immigration attorney before filing to change your status. Similarly, if your family member or loved one is seeking entry into the United States but has a criminal record, you need to contact an experienced immigration attorney to discuss how the convictions could affect the person’s entry into the country.
Sanctuary cities across the United States scored a small victory earlier this week when the city of Chicago was able to secure a nationwide injunction stopping the U.S. Attorney General Jeff Sessions from withholding public safety grants from certain cities in the U.S. The Attorney General had previously vowed to withhold public safety grants from cities that refused to cooperate with federal immigration enforcement in deporting undocumented immigrants. This was in keeping with an earlier promise by the Trump Administration to strip away public service grant money from sanctuary cities.
Having local police help to deport undocumented immigrants would speed up immigration efforts by the federal government. This is because federal authorities would get notified sooner if an undocumented person was arrested for a criminal offense, and then detained. Federal authorities could also require local police office to hold the immigrant in order for federal authorities to come and pick him or her up for deportation.
Sanctuary cities’ refusal to cooperate with the federal government on deporting undocumented immigrants stems from the argument that providing such assistance would affect the trust the immigrant community has in the police. In granting the injunction, the court recognized that this community trust is a valid concern that cannot be easily regained if the cities were forced to comply with the federal government.
The judge made the injunction a nationwide injunction even though it was the city of Chicago filing the lawsuit because these issues affect cities throughout the country. Therefore, the injunction on withholding funds from Chicago would apply to cities in California, as well.
The nationwide injunction does not mean that the battle is over. The injunction only stops the Attorney General from withholding funds while a lawsuit is pending to determine whether the Attorney General does have the authority to take such action. Whenever that decision is made, the injunction may be lifted or become permanent. If the injunction is lifted, some cities may choose to comply with the requirement to coordinate and assist federal immigration officials in deporting people in order to get the grants.
Right now, this decision does not change anything in terms of the federal government’s ability to enforce federal immigration law by deporting undocumented immigrants. Therefore, if the federal government is able to track an undocumented immigrant without relying on the assistance of local police, the federal officers will arrest the person and begin deportation proceedings. There are expected to be several immigration related laws enacted during the Trump Administration’s tenure. How these laws may affect immigrants in the long term is yet to be determined.
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If you are an undocumented immigrant seeking to legalize your presence in the U.S., you should speak to an experienced immigration attorney to learn about your options. If you have been in the United States for some time, or if you are married to a U.S. citizen, you may have options to legalize your status. For more information on how you can fight deportation, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California and schedule a consultation.
News of the elimination of the Deferred Action for Childhood Arrivals program, also known as DACA, has caused widespread disappointment, and in some cases fear, among the hundreds of thousands of immigrants who were offered protection from deportation under the program. Under DACA, undocumented immigrants who were brought to the United States as children by their parents, and who registered with the federal government were able to work and attend school without fear of deportation.
DACA will officially begin to be scaled back in March of 2018. Therefore, DACA recipients whose permits are due to expire have one opportunity to renew them by October 2017. No new applications for DACA work authorization will be accepted. In addition, no applications for advance parole will be granted, allowing a DACA recipient to leave the country and legally return despite his or her undocumented status.
Until the program is phased out, DACA recipients are still entitled to the benefits and protections they receive under the program. This means that an employer cannot fire a DACA recipient on the basis of his or her immigration status if the DACA’s recipient work permit is valid. Similarly, a DACA recipient cannot be kicked out of school on this basis.
The end of DACA will mean that DACA recipients can more easily be deported. This is a fear among DACA recipients, that the information they provided in order to gain DACA protection could not be used against them. DACA recipients may also be encouraged to self-deport, that is, voluntarily leave the United States before their permits expire.
However, depending on the circumstances, a DACA recipient may have other legal options to stay in the country despite the end of DACA. If a DACA recipient has another legal avenue for changing his or her immigration status to avoid deportation, this would be the best time to take advantage of that avenue. While it is a good idea to prepare and have a plan ready in case of deportation, it is also important for DACA recipients to speak to an experienced immigration attorney before self-deporting. Speaking to an attorney can help a DACA recipient evaluate his or her legal rights under the law before taking drastic action.
There may be further changes coming that could affect DACA recipients. The University of California system has filed a lawsuit in federal court arguing that the abrupt end of DACA violates the due process rights of the undocumented immigrants who were granted certain rights under the program. Depending on how the court rules on this issue, DACA recipients may be able to retain some of their rights for a while longer. There is also pressure for congress to pass the DREAM Act, which would provide many of the same benefits as the DACA program.
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If you were registered under DACA and need legal assistance to understand how the program’s termination will affect you, or how you can continue working and going to school, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP today.
We have previously discussed the worrying presence of United States Immigration and Customs Enforcement officers at courthouses for the purpose of identifying and arresting people who are in the country unlawfully. Earlier this year, the chief justice of the California Supreme Court wrote a letter to federal officials asking them to reconsider the tactic in light of the effect it was having on victims and witness who were too scared of deportation to help with criminal investigations.
Because of concerns such as these, and the issues surrounding sanctuary city status, California lawmakers passed a law that is aimed at protecting victims and witnesses. Under this law, that is currently awaiting the governor’s signature, police officers in California will not arrest a victim or a witness based solely on an actual or suspected immigration violation.
There is an exception under this new California law for the arrest of a victim or witness if there is a warrant for arrest presented to the police officers. A warrant will be honored even when it is issued by a federal court as part of a federal investigation or case. There may be a warrant issued for the arrest of a person who is a victim or a witness based on their immigration status, or based on the person’s involvement in another criminal case.
Currently under California law, the only victims and witnesses who are protected from arrest and deportation are victims and witnesses of hate crimes. This new law would expand this protection to victims or witnesses of all crimes.
Undocumented immigrants should also remember that depending on a person’s involvement and participation in a federal criminal investigation, he or she may be eligible for a visa that would help him or her stay in the country legally and assist with the investigation.
Federal officials have stated that a person’s status as a victim or a witness alone is not enough to stop the person from getting deported. The law the California legislature has approved will not stop a person’s deportation, it simply slows down the process. California law will not make changes to federal immigration law, and so a person can still be picked up in courthouses by federal agents whether the person is a victim, witness, or a person charged with a crime. The California law would simply block local police officers from taking action to assist with the deportation of victims and witnesses.
If the governor signs the law and does not veto it, it is expected to take effect in January of 2018. There are additional proposed laws aimed at assisting undocumented immigrants, such as a law that would make California a sanctuary state. The success of these laws would be greatly beneficial to many undocumented immigrants who live peacefully in California without committing criminal offenses.
Contact an Experienced Immigration Attorney
For more information on the protection from deportation available to victims and witnesses of crimes, or for legal assistance with your immigration issues, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.