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Can Local Police Arrest Me for Being Undocumented?
Undocumented immigrants are often said to be breaking the law simply by being in the country. Therefore, some people wonder whether local police in their neighborhood have the authority to arrest and detain someone based solely on the person’s status as an undocumented immigrant. This is a question that is likely to come up more often now that the issue of sanctuary cities is in the spotlight across the country.
Immigration law is a federal matter, which means that state police and local city police officers do not necessarily go out of their way to enforce federal immigration law. Generally, only federal law enforcement officers can take someone into custody for violation of immigration laws. There are some situations under which a non-federal police officer can take a person into custody for suspicion of an immigration law. Federal law enforcement officers can also work with local police to take an undocumented immigrant into custody.
If local police officers were to enforce immigration laws, there is also a problem with how local police would determine which people were illegally in the country and which ones had the valid paperwork to be here. Police officers need reasonable suspicion to stop someone to investigate a crime, and need probable cause or a warrant to make an arrest. These restrictions should make it more difficult for police to target people for harassment or arrest simply because they look “foreign.”
All this does not mean that some police officers do not make up reasons to stop people based on racial profiling, and then look for a reason to arrest a person who may be in the country illegally. Police officers do have the right to stop a person briefly and inquire about their identification.
Once arrested on a criminal charge, for example, driving without a license or driving under the influence of alcohol, an undocumented immigrant can be picked up by federal law enforcement officials. A civil warrant for an undocumented immigrant based on a removal order is not in itself grounds for local police officers to arrest the undocumented immigrant, especially if there is no evidence of an independent criminal act.
Once an undocumented immigrant is arrested and jailed for a criminal offense, he or she is processed in the police system as part of the arrest. Once in the system, federal immigration officials can send a detainer request to the local police department asking that the immigrant be held for federal law enforcement officials to pick him or her up. This is the current issue with sanctuary cities: In those cities, officials have decided that police officers are not required to honor federal detainer requests.
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If your relative or loved one was picked up by immigration enforcement officers after being arrested on a local charge, he or she may be facing deportation soon. A criminal conviction may affect the way the person is able to contest the deportation. For more information on how an experienced immigration attorney can help, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP today.
Non U.S. Citizen Immigrants and Public Assistance
Non U.S. citizens living in the United States are sometimes unsure of their rights when it comes to applying for and receiving public aid assistance. Part of the uncertainty comes from a fear that if a non U.S. citizen accepts public aid, it could affect the person’s chances at adjusting status later on and applying for citizenship. Others also fear being labeled a burden on the U.S. government.
When people talk about public assistance, they are usually referring to food assistance through either Women, Infants, and Children (WIC) or Supplemental Nutrition Assistance Program (SNAP, which is also referred to as food stamps); public housing; and, medical insurance through the Medicaid program.
Not every non U.S. citizen living in the United States qualifies for public assistance. For example, undocumented immigrants are generally not eligible to receive public assistance. Immigrants who are in the United States on temporary visas, such as student visas or tourist visas, are also not eligible for assistance. Non U.S. citizens who hold these temporary visas should not accept public aid, even if it is offered by an organization. It could lead to a revocation of their visas.
U.S. citizen children of undocumented immigrants may be eligible for benefits even if their parents are not. When this happens, the parents may later be penalized for accepting public aid on behalf of their children if the parents try and legalize their status. Accepting public aid is seen as the parent’s inability to financially provide for the children.
In some states there are special programs that do allow public assistance for undocumented immigrants in certain cases. For example in California, undocumented immigrants under the age of nineteen are eligible for medical care under California’s full-scope Medi-Cal program. Under such programs, undocumented children can receive full medical care, and not just emergency medical care as it was in the past.
Legal permanent residents, immigrants who have been granted asylum, or others who have immigrant visas to the United States are generally eligible to receive aid regardless of age if they meet the other economic factors. Public aid programs usually cut off eligibility based on household size and income.
Recent media reporting on proposed rule changes that seek to change immigration in the United States have indicated that under the proposed system, immigrants currently in the United States who receive public assistance would be targeted for deportation. Because these changes are not yet law, if a non U.S. citizen qualifies for public aid and needs it because of financial hardship, he or she should still be able to apply for the assistance. However, it may be wise to consult an attorney as to the implications of the application, especially since there is some uncertainty now as to how that application may affect the person’s chances of permanent status later on.
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For more information on what benefits you may be entitled to as an immigrant living in the United States, and how applying for those benefits can affect you later, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Proposed Legislation to Move to a Merit Based Immigration System
In a move to change the way the immigration system currently works in the United States, there is a proposed legislation that would move immigration towards a more merit or skill based immigration system. If this law were to pass, it would drastically change the way some family members are able to immigrate to the United States.
Under the current immigration system, a U.S. citizen or lawful permanent resident can apply for his or her family members to immigrate to the U.S. and live as permanent residents with a path to citizenship. U.S. citizens can sponsor certain family members that lawful permanent residents cannot. Under the current system, immediate and extended family members can immigrate to the U.S. as long as a qualifying family member who is a U.S. citizen or permanent resident sponsors their applications.
Under the proposed legislation, immigration based on family ties would be sharply restricted, with only spouses and minor children being allowed to immigrate through an application based on their relationship to a U.S. citizen or permanent resident. This would mean that a U.S. resident’s parents, adult children, and siblings would be restricted to immigration through a merit based system.
A merit based system would focus on an immigrant’s ability to work in the U.S. and in skilled positions. Similar merit based systems are used in other countries, such as Canada and Australia; however, it is not clear how closely the proposed system will resemble the systems used in those countries.
One issue of major concern is the proposal to give English speakers preference in the merits based system. This could affect a lot of immigrants who may have otherwise been able to immigrate to the U.S., especially if this policy is used to restrict applicants who do not speak English fluently. A merit based system would also look at a person’s education and job experience and rank him or her based on that, giving preference to more educated professionals than people with less education or job experience.
The law would also eliminate the diversity visa lottery program and reduce the number of refugees the U.S. accepts annually.
The proposed law has already met criticism, including concerns that it could dramatically affect the country’s economy. The law would cut down immigration numbers by half, and because immigrants contribute significantly to the economy, there will definitely be an economic impact to the law’s passage.
The proposed legislation is in its early stages and is not yet the law. If you are a U.S. citizen or lawful permanent resident seeking to sponsor your parents or siblings for residency in the U.S., you can still do that under the current law. Unfortunately, applications for these groups of relatives may take a long time to be processed, and especially in the case of sibling applications, could take years to finalize.
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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.
Seeking Asylum in the United States
Human rights groups recently filed a lawsuit against the federal government alleging that guards and officials at entry points along the U.S. – Mexico border are turning away asylum seekers using misinformation and even threats. This discouragement of asylum seekers has been alleged to have happened before the asylum seeker is even processed, and before a determination is made as to the validity of a person’s asylum claim.
The kind of discouragement of asylum claims that has been claimed in the lawsuit could act to discourage people from seeking asylum in the U.S. because they are afraid and unsure of what the law says about the processing of asylum cases.
A person may seek asylum in the U.S. if the person can show that he or she has a legitimate fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion. A person seeking asylum has to be physically present in the country or at a point of entry in order to make an application for asylum. If the person is already in the country, he or she has to make the asylum application within a year of arriving in the country, unless he or she can show an exception to this deadline applies.
When a person makes a claim for asylum at the border, he or she may go through an initial screening to determine the credibility of the asylum claim. This can lead to a full hearing later on.
In some cases, a person may claim asylum for the first time once the person is placed in removal proceedings. This is called a defensive claim for asylum, and can be used if the person is in removal proceedings for the following reasons:
- The removal proceeding is initiated by an asylum officer (who has made a finding that the asylum seeker has a credible fear of persecution in a preliminary screening);
- Immigration violations; or,
- Trying to enter the U.S. without proper documents.
In a removal proceeding, the asylum seeker will have to argue his or her case and present evidence that supports the claim for asylum. The asylum seeker is allowed to have an attorney, and because the government is also represent by an attorney in these proceedings, it is best for the asylum seeker to have an attorney present.
While awaiting the final word on an asylum case, the asylum seeker may be held in a detention center. However, if the asylum seeker has family members or other contacts in the U.S. who can provide for him or her financially, he or she may be conditionally released pending the resolution of the asylum claim. In order for a person to be released, he or she has to make an application for release.
Contact an Immigration Attorney
If you are in the U.S. and have yet to file an application for asylum, you need to act fast or miss the deadline for doing so. Failing to file within the appropriate time can interfere with your ability to file for protection even if you have a good claim. For more information on how an experienced immigration attorney can assist you, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Consequences for Overstaying on a Non-Immigrant Visa
Most people who visit the United States do so after applying for and being granted a temporary or non-immigrant visa. Although these visitors enter the country legally, they may then sometimes overstay their visas, and remain in the country in violation of immigration laws.
When non-immigrant visas are granted, they usually have a set date on which they expire, and at that point the person travelling on the visa can no longer use the visa to enter the country. When a traveler uses the visa to travel to the United States, the traveler is required to leave on a set date, if the traveler fails to leave, he or she is said to overstay the visa.
Most people who overstay do so because they were not able to get their visas renewed because it meant leaving the country, they found employment or better opportunities, or because they face hardship by returning to their home country. Asylum applications are not always processed in a short period of time, and so for some people, it is easier to get a non-immigrant visa and then fail to return home at the expiration of the visa. Unfortunately, overstaying a visa is as illegal as crossing the border without a valid visa.
A person who overstays a visa can face some of the same consequences as a person who entered the country illegally. For example, if the person leaves the country, he or she can be banned from reentering the country for three to 10 years. The three-year ban applies if the person was in the country unlawfully for 180 days, but less than a year, before voluntarily leaving the country. If a person overstays a visa for more than a year before leaving voluntarily, then the 10-year ban applies if he or she tries to return. If a person overstays and gets deported, he or she becomes permanently ineligible for reentry.
In some cases, a person who has overstayed may be able to apply for an adjustment of status while in the United States. This is an option that is available to people who overstay their visas, but not to people who entered the country illegally without a visa. Most people applying for an adjustment of status do so because they marry an American citizen and wish to apply for a green card.
In most cases, a person who has overstayed a visa and later applies for a green card is required to leave the country to complete the process, but because of the reentry bans, most people would prefer to file for an adjustment of status and avoid leaving the country. To find out if an adjustment of status is possible in your case, you need to talk to an experienced immigration attorney.
Let Us Help You
If you were granted a non-immigrant visa to travel to the United States as a student, tourist, or an employee, and overstayed beyond the time allowed, you may be limited in your options to legalize your status. For more information on how an experienced immigration attorney can assist you, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
A Criminal History can Affect Your Immigration Chances
When you are an immigrant seeking legal permanent residency or citizenship in the United States, there are many issues and questions that may come up when you are in the process of submitting your application. One issue that may be particularly worrisome is how a criminal record can affect a person’s application for legal permanent residency or U.S. citizenship.
Generally, having a criminal history can affect your application and does lower your chances of being approved for either permanent residency or citizenship. This usually depends on the nature of your crime, and in some cases how long ago the conviction was entered. In addition, as we have noted before, if a person already has permanent residency, being convicted of a crime can lead to the revocation of that status and the beginning of deportation proceedings.
Convictions for some crimes result in a person being temporarily ineligible for U.S. citizenship for a period of time, while others result in permanent ineligibility. If a person is convicted of murder or a crime that is considered an aggravated felony, the person is permanently banned from becoming a U.S. citizen. On the other hand, convictions for less serious crimes may result in a temporary ban of three to five years, after which time the person can apply for citizenship.
Being granted citizenship is still a matter of discretion on the part of the government, this means that even if you were only convicted of a crime that results in temporary ineligibility, you may still be denied citizenship based on your background.
Lawful permanent resident applicants who have been convicted of crimes involving moral turpitude and crimes involving the trafficking of a controlled substance are ineligible to receive a green card. There are other criminal offenses that can bar an applicant from receiving permanent residency. In some cases, applicants who are closely related to a person with a conviction for trafficking controlled substances are also considered ineligible for permanent residency if they received financial support that was from the proceeds of the trafficking.
Immigrants seeking either permanent residency or citizenship should remember that they are required to disclose all their criminal history, even convictions for crimes in other countries. Failing to make the appropriate disclosures, and then signing the application saying you provided accurate information could result in more legal troubles for the applicant.
If your criminal convictions were in another country and a result of political prosecution, you may be eligible for a purely political offense exception from ineligibility. It is important to discuss this kind of criminal history with an attorney. Applicants should remember that for immigration purposes, guilty pleas and other forms of criminal dispositions can count as convictions.
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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.
Motion To Reopen Removal Proceedings Based On Ineffective Assistance Of Counsel
In criminal cases, the accused have a right to be represented by a lawyer. If a person accused of a crime cannot afford a lawyer, the state is required to provide a lawyer at no cost. Immigrants facing deportation may be represented by a lawyer during immigration removal proceedings. However, unlike people accused of a crime, if the immigrant cannot afford a lawyer, one is not provided by the state. This means that in order to have an attorney present at an immigration removal hearing, the immigrant either has to pay for the lawyer or rely on a volunteer lawyer.
Unfortunately, simply having a lawyer during removal proceedings does not guarantee that the lawyer will provide adequate representation. The law recognizes that sometimes lawyers make mistakes that can affect their clients’ rights. Because of this, immigrants are allowed to file a motion to reopen removal proceedings that resulted in a removal order, if the immigrant can show that he or she received the ineffective assistance of counsel in those proceedings. Counsel is another word for lawyer.
The standard for showing ineffective assistance of counsel in immigration proceedings is similar to that required in criminal cases. The affected immigrant has to show there was deficient representation by the lawyer and that the immigrant suffered prejudice. Without a showing of prejudice, the court generally cannot reopen a case even with a finding that a lawyer was ineffective. To show prejudice, the immigrant has to prove that the lawyer’s mistakes materially affected the removal hearing, and if it was not for the lawyer’s actions, the immigrant would not have been deported.
The kind of things that a court may consider ineffective assistance can include:
- Failing to file required paperwork on behalf of the client;
- Telling the client he does not need to show up to hearings;
- Failing to file an appeal on behalf of the client, or
- Threatening to withdraw from a case two hours before the removal hearing if the client did not agree to voluntary withdrawal.
If an immigrant claims that his or her immigration lawyer was ineffective and that this led to deportation, the person is required to notify the accused lawyer and give him or her a reasonable chance to respond to the accusations. If the lawyer fails to respond, the case can still move forward; the immigrant filing the motion to reopen the case has to inform the court that he or she provided the lawyer with the opportunity to respond.
As can be seen from the discussion above, in order to prove the ineffective assistance of counsel, the immigrant client has to prove that there was an objective failure on the part of the lawyer or someone working for the lawyer, and that failure caused the client harm. Losing the case does not always mean that the lawyer was at fault. In other words, just because a client loses, it does not mean he or she had ineffective counsel.
Let Us Assist You
If you believe your lawyer failed to properly represent you in your case, and it resulted in an order for your removal, contact an experienced immigration lawyer for a consultation. You may have reasonable grounds to have your case reopened. Contact our multi-lingual staff to speak to experienced immigration lawyer, Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
The Supreme Court to Rule on the Travel Ban
The Supreme Court of the United States has agreed to hear a case involving the implementation of the travel ban proposed by the Trump Administration earlier this year. The travel ban was originally supposed to exclude people seeking to enter the United States from Iran, Libya, Somalia, Sudan, Syria, and Yemen, from entering the country. This included visitors on travel visas, workers, students, and even those who had previously been vetted by the government and given permission to enter the United States. Refugees from all countries were to be banned from entry for a period of time.
While the Supreme Court will hear the full case later this year, it allowed the travel ban to go into effect restricting the entry of some people, but allowing those with “bona fide relationships” to the United States to be allowed entry. The problem that is developing with this ruling is that there was no exhaustive definition of what made up those bona fide relationships.
The Supreme Court did give some examples of the kinds of relationships that would meet the definition, but the rules that are developing are more restrictive than most people expected. In the examples of bona fide relationships, the Supreme Court listed close family members, students, and workers who have an offer of employment.
The new guidelines that have been issued by the administration following the court’s ruling have restricted close family members to people who belong to a traditional nuclear family, as well as some in-laws. This has excluded grandparents, cousins, and others who may otherwise have been close family members. Fiancées were later added to the list of those who would be allowed to travel to the country despite the ban. For people wanting to come into the United States with a bona fide relationship with an entity, the relationship has to be formal and long established, not a relationship created to avoid the travel ban.
Refugees will still remain largely restricted from entering the United States, but those with bona fide relationships will likely be allowed entry. For example, if a father already entered the United States as a refugee, his wife and children will not likely be affected by the ban. On the other hand, a family of refugees whose only tie is to an aid agency is unlikely to be allowed entry under current rules.
The new rules have cleared up some of the confusion that came with the implementation of the first travel ban. Therefore, those with legal permanent residence in the United States should not have any issues coming into the country, as well as those with student or work visas that were previously granted and are still valid.
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More legal challenges are expected as the government begins to implement the new rules related to the travel ban. If you are concerned or confused about how the partial implementation of the travel ban will affect you or your family members in the six countries, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP today.
U.S. Guest Worker Programs
The United States has various visa programs aimed at letting foreign nationals work in the United States for a period of time. The two main guest worker programs for low skilled jobs are the H-2A program and the H-2B program. The H-2A program is for workers who take up temporary agricultural work, and H-2B program is for workers who will take up temporary nonagricultural work.
Employers usually recruit guest workers, some of whom may already be in the United States, for temporary work usually meant to be for less than a year. In order to obtain visas under these guest worker programs and allow foreign workers to legally work in the United States, the employer has to show that the need for the worker is temporary. The employer also has to show that there are not enough U.S workers who are able, willing, qualified, and available meet the need. The guest worker visas issued under H-2A and H-2B do not lead to legal permanent residence.
Because of the way the programs are set up, there have been reports of major abuses of immigrant workers by the employers and contractors who supply the workers to employers. These abuses generally relate to workplace abuses, such as time and pay issues, and even sexual harassment. In some cases, workers are also cheated out of large sums of money by contractors and recruiters who assure them that the guest worker programs lead to green cards or lawful permanent residence.
Unfortunately, most temporary guest workers do not know that they have rights even as temporary workers in the United States. Having these rights means that when employers do not pay the applicable minimum wage, cheat their workers out of hours worked, or engage in other employment abuses, the workers can sue or file complaints to enforce their rights.
For most workers who do know or are at least aware of their employment rights, there is a fear that they will not continue to get work after they complain or file a lawsuit. An employee generally cannot be fired for filing a lawsuit to enforce employment rights. However, employers under the guest worker program can terminate an employee at any time, which leads to the employee losing his visa and ability to stay in the country illegally. Employees who are fired in this way can still file lawsuits to enforce their rights against abusive employers.
If you are an immigrant looking to work in the United States under a guest worker program or any other employment visa category, you should do as much research as possible before signing on with a contractor or employee. Ask around in your community for any information about a prospective employer before you take on the job. While having an opportunity to work legally in the United States may seem an attractive offer, if you are working for the wrong person, it can quickly turn into a nightmare.
Contact us for Legal Assistance
If you need assistance with a visa application or immigration status change, an experienced immigration attorney may be able to assist you. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California and schedule a consultation.
DAPA Withdrawal Ends a Path to Legalization for Undocumented Parents of U.S. Citizens
This week brought some disappointing news for undocumented immigrants who would have qualified for deferred action under a program known as the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. President Barack Obama authorized DAPA in 2014 as a way to protect the undocumented parents of U.S. citizens and lawful permanent residents. However, the program never kicked off because it was blocked by courts. This week, the current administration withdrew the program, effectively ending any further litigation, and cutting off the possibility of deferred status for millions of eligible immigrant parents.
Like with DACA, the Deferred Action for Childhood Arrivals program, eligible parents who received DAPA status would have been able to apply to live in the U.S. and apply for work authorization for an initial period of three years. There was a lot of opposition against the grant of deferred status under DAPA, and it does not come as a surprise that the measure was blocked. However, with the withdrawal of DAPA comes the question of what will happen to the DACA recipients.
Fortunately, there does not seem to be any current move to revoke DACA, which means that those who are eligible under DACA can continue to apply for deferred action and work permits. DACA recipients are supposed to be protected under the program, but as we have previously discussed, some DACA recipients have recently been arrested and deported. This does not mean that it is not safe to apply for DACA; cases of DACA deportations seem to be the exception rather than the rule.
With the withdrawal of DAPA, there is currently no clear path to citizenship for millions of undocumented immigrants in the country. It is uncertain if congress will take action to craft an acceptable law that would provide the path to citizenship and allow undocumented immigrants to live without fear of deportation. It is unlikely that the current administration will take action through Executive Action as was done with DACA.
There are other alternatives for the undocumented parents of U.S. citizens to gain citizenship or lawful permanent residence. One way is through the U.S. citizen or lawful permanent resident children filing an application for an adjustment of status for their parents to be granted a visa or to receive a green card. However, this is not always easy depending on how the parents first entered the country, and if they were previously deported and reentered the country again illegally. There are several other issues that could come up when making these applications and it is often necessary to have an experienced immigration attorney handle the application.
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When weighing the advantages of applying for the benefits available under DACA versus the risk of deportation, it is important to speak to an immigration attorney about your individual situation. If you want to discuss your DACA application, or have received a removal order for your deportation, you should contact us for legal assistance. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP today.
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