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How the Issue of Competence Affects an Immigration Proceeding

In criminal proceedings in which a person is charged with a crime, the prosecution cannot go on if a person is found to be incompetent or suffering from a mental illness. This is usually done in order to protect the defendant and ensure that the person is afforded constitutional due process rights. In immigration proceedings, a person’s incompetence due to a mental illness or condition can affect a person’s removal or deportation, but not in the same way as in a criminal trial.

In a deportation hearing, the person to be deported is presumed to be competent for purposes of the proceedings. However, if there is an indication that the person is not competent, for example because the person shows signs of mental illness, then the immigration judge has to make a determination of the person’s competency before the proceedings can go on.

A person who is able to communicate with his or her attorney and rationally understand the deportation proceeding is generally deemed to be competent, and the immigration proceedings can proceed without a legal challenge.

Once the judge makes a determination that a person who is facing deportation is not competent, the deportation proceedings do not stop as a criminal case would if the judge found a defendant incompetent to stand trial. The immigration judge is supposed to ensure that certain safeguards are in place, and then the removal proceedings can go on.

Some of the safeguards include ensuring that the person facing deportation is assisted by another person in presenting his or her case, not accepting admissions or other incriminating confessions from the person, and closing the hearing to the public. These safeguards do not truly address the issue of the person’s incompetence, and are therefore inadequate to offer real protections for a person suffering from mental illness and facing deportation.

Immigration judges make determinations of whether or not someone is incompetent by reviewing the evidence provided by the person facing deportation, as well as by the government. Neither the government nor the person facing deportation has a formal burden to provide the evidence upon which the judge relies. The judge also reviews all the evidence under a standard of proof that is lower than that required in a criminal case. This means that the person facing deportation cannot rely on the fact that the government has not produced evidence of competency to prove incompetency.

A person can prove that he or she has a mental illness that makes that person incompetent for purposes of the proceeding by calling witnesses to testify on his or her behalf, or by introducing medical records and evaluation reports that support the claims. If there is a long history of treatment and an indication that the treatment should be ongoing, it is likely that the immigration judge may find the person incompetent for purposes of the immigration proceeding.

Contact an Experienced Immigration Attorney

Having an attorney during an immigration proceeding is extremely important, especially for someone who cannot truly represent himself or herself due to mental illness. For more information on how a person’s mental illness can affect him or her during deportation proceedings, you should contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.

Effect of Expunging or Sealing a Criminal Record on Immigration

A criminal conviction can have a negative effect on a person’s application for immigration to the United States. Certain convictions immediately disqualify a person from migrating to the United States or changing status in order to stay in the country.

In most states, including California, there are certain procedures a person can follow to have a criminal record sealed or expunged, which wipes away some of the person’s criminal record. Even in situations where the person’s conviction has to be revealed to an employer, the employer is not allowed to discriminate on the basis of the criminal record. While this is a helpful process in terms of getting a job, it is not applicable for immigration purposes.

Even when a California arrest or conviction is removed from a person’s history, it still has to be reported as part of an immigration-related application. When applying for any visa, permanent residency, or citizenship, a person is required to disclose all criminal convictions both in the United States and abroad. This includes convictions that have been sealed or expunged either in California or in another state or country. When applying for permanent residency or citizenship, the applicant has to reveal even more, and reveal arrests in his or her history.

Revealing a conviction for some misdemeanors, for example driving under the influence of alcohol, does not necessarily mean that a person will be denied entry into the country if holding a nonimmigrant visa. However, if a person has multiple convictions, this could definitely affect the person’s ability to enter the country.

Providing false or incomplete information in order to immigrate to the United States could lead to the revocation of a visa, lawful permanent residency, and in extreme situations, the revocation of citizenship if the citizenship was obtained through naturalization. A person who provided false information on an immigration application may also be prosecuted criminally.

Expungement may also create a problem for an applicant who has to provide certified copies of a conviction or disposition of an arrest. Immigration officials require applicants to provide this information as part of providing evidence to prove good moral character. Expungement removes most records from central databases, and so it can make it difficult to get this information.

Not all convictions can be sealed, dismissed, or expunged, and these procedures generally only apply to some misdemeanor convictions. Sealing or expunging a criminal history in California does not take care of arrests or convictions from other states. If a person has multiple convictions in several states, he or she has to pursue sealing and expungement in all those states following the laws in those states. No matter where the expungement takes place, it still has to be reported to immigration officials as outlined above.  

Contact an Experienced Immigration Attorney

If you have been convicted of crimes in the United States or in another country and are thinking about applying for permanent residency or U.S. citizenship, you need to contact an experienced immigration attorney to discuss how the convictions could affect your application. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.

Family Based Immigration

The United States immigration system allows immigrants who have gained legal permanent residence or who are naturalized to become United Citizens to sponsor certain relatives to join them in the United States. The goal of this is to allow family reunification. This immigration system is sometimes referred to as “chain migration,” although the term is used derisively by some.

This system is disfavored because it is assumed that permitting family members to immigrate to the United States for no other reason than family ties puts a drain on government services and poses a danger to national security. While there are people who immigrate to the United States through this method who go on to commit crimes or claim government benefits, there are a great many others who go on to lead productive lives and never get into trouble with the law or pose a danger to society.

There is no guaranteed right to immigration through a relative, even if the relative is a United States citizen. There is a right for the citizen to sponsor an application; however, the person to be sponsored still has to go through a vetting process. If the person fails the vetting, the person’s application for permanent residence or a visa can be denied. In addition to the security checks that potential immigrants must undergo, the vetting process includes an assessment of the applicant and the sponsor’s finances, and the application can be denied on the basis of insufficient funds.

Additionally, depending on the familial relationship, it can take years or decades for the family member to be allowed to immigrate to the United States. It is faster for direct family members such as children and spouses to get the chance to immigrate, but it takes a much longer time for parents’ and siblings’ applications to be processed. Distant relatives are not eligible to be sponsored in this manner.

As we have written before, there is a proposal to change the current system to one that will be merit based. A merit based system is seen by critics of the current system as more beneficial to the United Stated because only potential immigrants with certain skills would be given preference when it came to applying to immigrate to the United States.

Allowing immigrants to come into the country to be reunited with their loved ones has been of benefit to the United States economy and society. The current system may need some changes or amendments. However, completely getting rid of the ability of lawful permanent residents and citizens to sponsor their family members would be a negative blow to both immigrant families and the communities in which they live.

Contact Us for Legal Assistance

The so-called chain-based immigration system may be changed in one way or another, so if you are a U.S. resident and would like more information on how you can sponsor an application for a parent or a sibling or another eligible relative, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.

ICE Sensitive Locations

The story of a young girl facing possible deportation after being apprehended by border patrol agents while she was on her way to a hospital to undergo surgery has raised questions about the so-called sensitive locations where immigration-based arrests are not generally conducted.

Sensitive locations refer to areas that the Immigration and Customs Enforcement agency has restricted immigration enforcement actions except in three situations:

  • If there are exigent circumstances;
  • The immigration officials are led to the sensitive location through other law enforcement investigations; or,
  • The immigration officials have prior approval to conduct the enforcement actions from a designated supervisory official.

In some cases, arrests and other enforcement actions can take place in a sensitive location as long as there is a prior agreement between the undocumented immigrant and immigration enforcement agents. For example, when an undocumented immigrant surrenders to immigration agents at a hospital or church.

Sensitive locations include hospitals, schools, daycare centers, rallies or demonstrations, and places of religious worship. Courthouses are not considered sensitive locations. The designation of these areas as sensitive areas is supposed to encourage people to seek the services offered at these locations without fear of deportation. It is also important to note that sensitive locations that are located near a border are treated differently. Sensitive locations near borders are afforded less protection that those away from borders, although immigration officers are supposed to use common sense in taking action in these areas so as to act within the spirit of the policy.

The young girl mentioned above was detained after being stopped at an immigration check point on her way to the hospital as opposed to being detained at the hospital. Therefore, and immigration officials argue that this distinguishes her from someone who would be arrested at a hospital after going there to seek treatment. While this seems like a hollow distinction, because the policy of not making arrests in sensitive locations is a government agency policy and not a law, there are few ways to challenge its application unless the agency failed to follow its own policies.

Because of deportation priorities, immigration agents do have some discretion when it comes to whom to detain and place in immigration proceedings, and this determination can be made on a case by case basis. In the past, undocumented immigrants who were convicted of crimes were priority targets for deportation. The priorities are less clear now.

Undocumented immigrants who need to go to sensitive locations for services should not rely on the designations of these spaces as sensitive spaces. Being improperly apprehended at a sensitive location is not a defense that will necessarily stop an undocumented immigrant from being deported.

Contact Our Team for a Consultation

If your family member has been detained pending deportation proceedings, you need an experienced immigration attorney to present your best case before the immigration judge. For legal assistance with seeking a change in your immigration status, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.

Sponsorship for Unaccompanied Minors

Thousands of children come into the United States each year as unaccompanied minors, often undocumented and seeking asylum or other status that may permit them to stay in the United States. When these children are apprehended at the border, they are taken into the custody of a federal agency known as the Office of Refugee Resettlement.

Once the minors are in the custody of the Office of Refugee Resettlement, they are often released to sponsors in the United States while immigration proceedings are pending. The sponsors are usually related to the unaccompanied minors, although they do not have to be immediate family members, such as parents.

Before the minors can be released to sponsors, the sponsors have to undergo background checks and register with the Office of Refugee Resettlement. Under the law, in order for a person to qualify as a sponsor, he or she does not have to be in the country legally. Therefore a parent can act as a sponsor to an unaccompanied minor even if the parent is undocumented. Interviews of potential sponsors are also conducted to ensure that they are suitable to care for the unaccompanied minors.

When unaccompanied minors are released to sponsors, they can go to school like other children in their community. Public schools provide educational services to children without considering their immigration status.

There is always the risk that an unaccompanied minor may be deported back to the country he or she fled. However, if the minor satisfies the criteria for asylum or refugee status, he or she can stay in the United States and receive additional benefits. The status of the sponsor does not generally affect the minor’s ability receive asylum or other legal status in the United States.

In the past, the parents or other relatives stepping forward to act as sponsors did not have to worry about being targeted for deportation. Unfortunately, parents and other relatives of unaccompanied minors are worried about the effects of coming forward to act as sponsors for their children under the current administration. Media reports have indicated that Immigration and Customs Enforcement officials plan to arrest and deport undocumented parents and relatives who step up to act as sponsors for their children. This is supposed to discourage unaccompanied minors from coming to the United States, which in turn may discourage their parents from staying if they are already in the country.

If unaccompanied minors cannot find sponsors who are related to the children, they may have to be placed in government run facilitated or group homes. In some cases, the minors may be placed in foster homes until the immigration hearings are held.

Contact Us for More Information

If a parent of an unaccompanied minor has a way to gain legal status in the United States, he or she should pursue this before applying to act as a sponsor. If you would like to be the sponsor for an unaccompanied minor but are worried about the effect this would have on your own immigration status, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP.

Proving Extreme Hardship for American Children When Undocumented Parents are Deported

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.

Contact an Experienced Immigration Attorney

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.

Differences Between a Certificate of Citizenship and a Certificate of Naturalization

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.

Contact an Experienced Immigration Attorney

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.