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Temporary Protected Status Ended for Haitian Citizens
Acting Secretary of Homeland Security Elaine Duke recently announced that tens of thousands of Haitians living in the United States under Temporary Protected Status have until July 22, 2019, to return to Haiti.
The Haitian citizens were given protected status to live and work in the United States after Haiti’s infrastructure was heavily damaged in a 2010 earthquake. Since then, the status of those protected and their ability to safely return to their country was evaluated periodically and the status extended. After the most recent review, the Department of Homeland Security announced its decision to end the protected status for the Haitian citizens, who must now return to Haiti by the July 22, 2019, deadline or face deportation.
Temporary Protected Status may be granted to citizens of a foreign country who are already in the United States and cannot return to their countries due to temporary conditions that make it unsafe to return, or because their government cannot handle their return. The status is granted by the Secretary of Homeland Security. Even undocumented immigrants in the country illegally when a Temporary Protected Status is designated for their countries are protected.
Haitian citizens are not the only group that is protected under the Temporary Protected Status. In addition to Haiti, there are other large groups from nine other countries that are allowed to live and work in the United States without fear of deportation. Citizens of El-Salvador living the United States under Temporary Protected Status are reported to represent the largest group of people living in the United States under this status, and will be next to hear if their status will be extended.
As the name suggests, the program is supposed to offer temporary relief for humanitarian reasons. The situations for which Temporary Protected Status may be approved for citizens of a foreign country include:
- Ongoing armed conflict,
- An environmental disaster, or an epidemic, and
- Other extraordinary and temporary conditions
Depending on the country in question however, these situations may not be temporary, and may impact the ability of the foreign government’s’ ability to receive its citizens for a long time. This is part of the criticism against the program, that it is not temporary, and is used as a back door to allow immigrants to settle in the country.
Because most people who are granted the chance to live and work in the United States under this program have children and otherwise settle into their lives here, going back to their countries of origin is not an easy task. For those with children who were born in the United States and are therefore citizens, the decision to take their children back or leave them in the United States will be a very difficult one to make. The parents will either have to find others who are willing to take care of their children, or stay beyond the deadline and face deportation. People who are facing this choice should explore their options in terms of adjusting their status in order to stay in the United States legally.
Contact an Experienced Immigration Attorney
For more information on how an experienced immigration attorney can assist you in reviewing your options to change your status and stay in the United States, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
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.
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.
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.
What Happens Now That the DACA Program is Being Phased Out?
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.
Contact an Experienced Immigration Attorney
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.
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.
Contact Us for Legal Assistance
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.
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.
Contact Us for Legal Assistance
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.
Avoiding Deportation by Applying for Cancellation of Removal
Although legal permanent residents in the United States usually enjoy many rights that U.S. citizens have, unlike U.S. citizens, there are certain circumstances under which a legal permanent resident can be deported. For example, legal permanent residents can be deported for committing certain crimes. When a legal permanent resident receives notice that he or she is to be deported, he or she can apply for relief from deportation if he or she can show that he or she meets certain conditions.
Cancellation of Removal
When a legal permanent resident receives a Notice to Appear from the government, it usually means that removal or deportation proceedings against the person may be started. The notice usually has details about removal proceedings and the reason for the proceedings.
Legal permanent residents who are facing deportation have a form of relief available to them known as the cancellation of removal. The legal permanent resident can apply for a cancellation of removal by showing that he meets three conditions.
The lawful permanent resident must show that he or she:
- Has been an immigrant lawfully admitted for permanent residence for not less than five years;
- Has resided in the United States continuously for seven years after having been admitted in any status; and,
- Has not been convicted of any aggravated felony.
Once these three conditions are met, the Attorney General can exercise his authority to cancel the deportation proceedings against a lawful permanent resident. However, even if the three conditions are met, the application may still be rejected.
Stop Time Rule
Under what is known as the stop time rule, the seven years of continuance residence required for a cancellation of removal stops running when the lawful permanent resident commits a crime that makes him eligible for deportation, or at the time he receives a Notice to Appear. If more than one Notice to Appear has been issued, then the stop time rule applies to the most recent notice. Therefore, if the lawful permanent resident began residing continuously in the U.S. in 2000, and received the Notice to Appear that leads to deportation in 2006, he would not have the seven years required to apply for a cancellation of removal.
Other Cancellation of Removal Cases
Other immigrants who do not have lawful permanent resident status can also apply for the cancellation of removal relief, but they must meet different conditions than lawful permanent residents. These conditions are often harder to meet. An applicant for cancellation of removal who is not a lawful permanent resident is required to show that removal will result in exceptional and extremely unusual hardship to the applicant’s spouse, parent, or child, who is either a U.S. citizen or a lawful permanent resident.
The residence requirement is shortened to three years for a person who is a victim of domestic abuse by a U.S. citizen or permanent resident. In addition, the victim of domestic abuse must show that he or she was of good moral character during the three years, and that removal will result in extreme hardship to his or her parent or child.
Contact Us for Legal Assistance
If you are a legal permanent resident and have received a notice informing you of deportation proceedings against you, you need to contact an experienced immigration attorney immediately. Deportation will mean a loss of important rights you hold as a permanent resident. Do not delay; contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Exclusionary Rule and Deportation Hearings
When a person is arrested and charged with a criminal offense, evidence collected against the person cannot be used in a trial against him or her if the police got the evidence in violation of the person’s Fourth Amendment rights. Fourth Amendment rights are those protections that people have against unreasonable police searches and detentions. Unfortunately, the rules that do not allow evidence collected in violation of the Fourth Amendment to be used against a person accused of a criminal offence do not apply to deportation proceedings.
The United States Supreme Court has decided that deportation proceedings are civil proceedings, and as such, the rules applicable in criminal proceedings do not apply. Therefore, even if a person is arrested after an illegal stop by the police, the fact of the illegal arrest and any evidence of the person’s status that was pulled because of the arrest will be admissible at a deportation hearing.
However, even if the exclusionary rule that works in criminal proceedings does not apply in deportation hearings, it is still applicable to everyone in a criminal trial despite their immigration status, and can still protect an undocumented immigrant accused of a criminal offence. So, if in addition to being taken to a deportation hearing, the immigrant is also facing criminal charges, the criminal charges may be dropped if the evidence collected during an illegal arrest is suppressed. This is important because criminal convictions and plea bargaining can affect a person’s future chances at a deportation hearing or when seeking a change of legal status.
This difference between criminal law and immigration deportation hearings does not mean that undocumented immigrants do not have rights. Constitutional rights apply to everyone equally. When dealing with police officers, immigrants still have the right to remain silent and keep from answering questions that could affect both a criminal case and a deportation proceeding. If an undocumented immigrant is not near a border or a port of entry, he or she does not have to answer questions about how long he or she has been in the country or got into the country in the first place.
If immigration agents ask for immigration papers, the immigrant usually has to produce them. This is true of both legal immigrants in the U.S. on a visa, and illegal immigrants. If a person does not have papers on him or her, it is best to keep quiet and not try to explain his or her way out of the situation. Remember, the statements made to the agents can be used in a deportation hearing even if the arrest that led to the asking for papers was illegal.
Let Us Help You
Your immigration attorney can always present evidence that supports you in your efforts to avoid deportation. In some situations, some immigrants have sued in civil court for compensation after being illegally arrested by police officers or detained for long periods of time.
If your loved one has been arrested and is facing deportation, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
What Happens to Children Who are U.S. Citizens When Their Parents are Deported?
We recently wrote about undocumented immigrants with U.S. born children making arrangements for others to care for their children in case the parents are deported. Many parents take steps to legally give power of attorney over their children to U.S. citizens or other immigrants who are in the country legally. Unfortunately, this is not a choice that is available to all parents, either because they have no one to turn to who is willing to care for their children, or because they are deported before they can make plans.
When undocumented parents of underaged children are deported without notice, the most likely outcome is that the children end up in foster care. The parents often cannot challenge the placement of the children in foster care because the parents are in detention or already deported. When the parents are deported, there is no requirement for their children to be deported along with them because the children are U.S. citizens. The children are taken into the state’s foster care system, and in some cases, eventually put up for adoption after parental rights are terminated.
The termination of parental rights does not have to be voluntary, and in some cases, if the court finds that a parent has abandoned the children, even when the parent is absent against his or her own will, parental rights can be terminated. The criteria for what makes someone an unfit parent is not always clear, and it is easy for a parent’s illegal immigration status to be used as an excuse to terminate parental rights.
Deported parents can fight for their children from their home countries after deportation, but that is often a difficult situation. They also may not be able to see their children and may be restricted in other forms of communication.
In some rare situations, it is possible for parents who are primary caregivers to their children to avoid being deported on humanitarian grounds. However, if the children have another parent in the U.S. who is not subject to deportation, the undocumented parent is likely to be deported even if he or she is the primary caregiver.
Fortunately, in most states, a sibling can take on the role of guardian to younger siblings if his or her parents are deported. This can be the best way to ensure that the children stay together and they can be eventually reunited with their parents.
Undocumented immigrants who are married to U.S. citizens or who have children who are over the age of 21 years old who are U.S. citizens should explore the legal options available to them to change their status. The process may often be expensive and may require the undocumented immigrant to return to his or her home country for a period of time.
In the past, not every undocumented immigrant who had an avenue to apply for legal status did so because of the expense and the lengthy process. However, under changing immigration policies, it is best for undocumented immigrants to take advantage of any legal option that can lead to legal status, instead of waiting for immigration officials to come knocking.
Contact us for Legal Assistance
If you are an undocumented immigrant who may be eligible for legal permanent residence or naturalization through a family member sponsoring your application, contact us for more information about eligibility and the application process. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.