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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.
DACA Recipients and the Fear of Deportation
Undocumented immigrants who were brought into the country illegally as children were given an opportunity to apply for protection from deportation through the Deferred Action for Childhood Arrivals (DACA) program implemented under the Obama Administration in 2012. Under this program, DACA recipients, also known as Dreamers, were allowed to work legally and go to school as long they registered with immigration officials and met other conditions. It has generally been understood that DACA recipients would not be subject to deportation if they consistently met their requirements.
Recent news of a California resident who is reportedly the first DACA recipient to be deported since the change in government may have other DACA recipients worried that the safety afforded by the program may soon become a liability because registration make it easier for them to be found by immigration officials. However, while the news of DACA recipients being deported may be surprising, nothing has changed in the law to specifically allow for the deportation.
Deportation was always possible under the DACA program, but a DACA recipient was eligible for deportation if he posed a threat to national security or public safety. This means that for the most part, as long as the DACA recipient did not get into major trouble with the law, the chance of deportation was low. This also means that currently immigration officials may exercise more discretion to deport more DACA recipients based on a more relaxed definition of who poses a threat. However, there has been no public announcement of a shift in policy to increase the deportation of DACA recipients.
If you are a DACA recipient and your status is not expired, you can take some steps to ensure that you are not immediately deported if immigration officials pick you up on another matter. The most important thing is to make sure you carry your DACA documentation with you at all times. This will not protect you in every case, and you may still get detained for a period of time. However, immediate deportation will be less likely if you can show you have current DACA status.
Another key step is to know your rights. Police cannot stop you to question you about your immigration status without probable cause or a warrant. You also have the right to remain silent if you are arrested, and you should exercise that right. Do not give the police details that could hurt you later. Finally, if you are picked up and detained, do not sign any paperwork presented by immigration officials without your attorney.
The feeling of security that DACA may have given some may be decreasing, and eligible dreamers who had not yet filed applications for DACA status may be more reluctant to do so now. There are benefits to applying for and updating DACA status, however, before applying, it may be best to talk to an immigration attorney and decide if it is the best move for you.
Contact an Experienced Immigration Attorney
If you have an immigration related issue, 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.
Can Undocumented Workers Receive Workers’ Compensation?
Undocumented workers are just as likely to be injured on the job as other workers who are legally allowed to work in the United States. However, when they are injured, undocumented workers may be hesitant to apply for the workers’ compensation benefits they are entitled to because they are afraid that will lead to them losing their jobs or being deported. Some workers also argue that undocumented workers should not receive benefits because they are not really employees, as they are not legally permitted to work.
States have their own laws governing workers’ compensation, and can include undocumented employees into the definition of qualifying employees under the law. California’s workers’ compensation law does this, and therefore, undocumented workers who are qualifying employees are eligible for workers’ compensation benefits.
If the undocumented worker is an independent contractor, he or she cannot receive these benefits because they are only available to workers who qualify as employees. In some cases, the employer may improperly label an employee as an independent contractor. In those cases, a court can determine if the employee is properly classified.
If an undocumented worker does not qualify as an employee for workers’ compensation purposes, he or she may still file a personal injury lawsuit against the employer and anyone else who is liable for injuries sustained in a workplace accident. As with workers’ compensation benefits, a person’s immigration status is not a factor in who is allowed to file a personal injury lawsuit in California, and undocumented immigrants can legally file lawsuits.
While the law allows undocumented workers to collect workers’ compensation benefits, it may be difficult to do so in reality. Some employers may threaten to report workers who claim these benefits to immigration officials. This can force workers to forgo important rights in order to avoid deportation. Unfortunately, undocumented workers may be deported even if they have a valid claim against their employer, and the employer’s action in trying to blackmail the worker would not be applicable as a defense to deportation.
However, workers should remember that the employer also faces fines under the federal law for hiring undocumented workers. The employer’s threat may be just that, a threat, because the employer may not want to bring attention to his or her employment practices. Undocumented workers who believe they have a workers’ compensation case should seek advice from a workers’ compensation attorney.
Undocumented workers have additional workplace rights regardless of their immigration status. If an undocumented worker feels unsafe due to workplace conditions, he can file a complaint with the California Department of Industrial Relations.
Contact Us for Employment Related Immigration Issues
All workers should be protected and offered a safety net in case they get injured on the job. Being an undocumented worker in California does not mean that you do not have workplace rights. If you have any immigration issues related to working in the United States illegally, we may be able to provide legal assistance. 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.
Birthright Citizenship and Immigration
Birthright citizenship has at times been a controversial topic when discussed in the context of immigration. This is because critics argue that allowing children born in the United States to automatically become citizens encourages illegal immigration. However, birthright citizenship is guaranteed under the United States constitution and cannot be changed without a constitutional amendment.
What does this mean for foreign citizens who are in the country, legally or illegally, when they give birth? Generally, the immigration status of the mother and father of a child born in the United States does not change the minute the child is born and acquires automatic citizenship. In some cases, the child may also automatically acquire the citizenship of the parents’ country upon birth, but this does not mean that the child is not also an American.
Parents cannot renounce American citizenship on behalf of their children. Therefore, a parent who does not wish for his or her child to gain automatic citizenship should not give birth to the child in the United States. There are many benefits to citizenship, so it is rare for a parent to want to renounce the child’s American citizenship.
This is part of the reason that there is a booming business in what is known as birth tourism. This term is used to describe travel to the United States, generally on tourist visas, by foreign women who are pregnant with the goal of having their children in the country. Once the child is born, the parents return to their country of origin and raise their children there.
When the child grows up, he can apply for lawful permanent resident status for his parents if he so chooses. In addition, the child can access other opportunities that would be difficult for a foreigner to get, for example, a better chance at admission to a university, employment in the country, or owning property.
Pregnant women traveling to the United States for the sole purpose of giving birth here may run into some issues gaining a visa and being allowed into the country. Immigration officials may require evidence that the woman does not intend to stay permanently within the country, if she is applying for a nonimmigrant visa. The parents may also be expected to prove that they will be able to pay for the cost of the delivery and any other medical complications that may arise. This is because immigration officials do not want the mother and child to be dependent on government resources.
It is important to remember that even if the consulate or embassy in your home country approves a visa, the border patrol agent at the border could still deny you entry into the country. It is therefore best to have a backup plan.
Contact Us for Legal Assistance
If you are an American citizen seeking to sponsor an application for lawful permanent residence on behalf of your parents or siblings, contact us for assistance with the process, and to learn more about what information you will be required to provide in the application. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Applying to Remove Conditions of Permanent Residency After a Divorce
When a foreign national marries an American citizen, he or she may want to apply for lawful permanent residence and eventually U.S. citizenship, with the American spouse as a sponsor. Initially, a spouse seeking permanent resident status on the basis of a marriage that is less than two years old receives conditional permanent resident status, which may be adjusted to permanent status after a period of time. If the couple divorce before the conditional period is over, the conditional permanent resident may still be able to get permanent residence under certain circumstances.
A conditional permanent resident generally needs to file a joint petition with his or her spouse in order to remove the conditions on his or her residency and become a permanent resident. However, if you are divorced from your spouse, you may not be able to file a joint petition. The U.S. Citizenship and Immigration Services (USCIS) allows a conditional permanent resident in this situation to apply for a waiver of the joint filing requirement, and apply for the removal of the conditions alone.
The most important factor in analyzing an application for a waiver on the joint filing requirement is that the couple has entered into the marriage in good faith, and did not commit marriage fraud. This means that if USCIS investigates and determines that the marriage was a sham, in other words, really an arrangement for the foreign national to get permanent residency and citizenship, the waiver will not be granted.
A domestic violence survivor who was battered, or had a child who was battered by an American spouse during the course of the marriage can also apply for a waiver without being divorced. This again requires the couple to have entered the marriage in good faith.
There are many things that can be considered indicators of a sham marriage, for example, if the couple never lived together or does not know details about each other’s lives. In order to prove that the marriage started out as a real marriage or in good faith, a conditional resident seeking a waiver can send in bank statements, evidence of having jointly owned property with the ex-spouse, and birth certificates of children born to the couple. Sometimes, if the couple went through marriage counselling before the divorce, letters from the counsellor or therapist may be helpful. Statements from friends and neighbors who can attest to the legitimacy of your marriage before the divorce may also be helpful.
Let Us Help You File Your Petition
If you fail to file a petition for the removal of conditional status by the time your conditional permanent resident status expires, USCIS can start removal proceedings against you. If you have a valid claim for a waiver, you may still be able to receive permanent resident status even if you are divorced or widowed.
To preserve your rights, make sure you file your petition before your time is up. For more information and assistance on filing a petition for the removal of the conditions on your residency, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
H-1B Visa Premium Processing Suspension
The United States Customs and Immigration Services (USCIS) has recently announced that it will temporarily suspend premium processing of H-1B work visas starting in April 2017. The temporary suspension is supposed to only affect the premium processing service, which guarantees that an H-1B application is processed within 15 days.
USCIS explained that it was suspending premium processing in order to go through a backlog of other applications and improve the overall processing times. An ordinary application can take six months or longer. The suspension of premium processing is worrying for workers who may need an approved visa faster in order to have their work continue uninterrupted from another visa, such as a J-Visa.
The suspension of premium processing can also affect how a company or business plans for foreign workers. Without the certainty of this faster processing of H-1B visas, a business may not be able to adequately plan projects that require certain foreign workers with specific expertise.
However, even with the suspension in place, applicants who need to have their H-1B work visas processed more quickly than the time it takes to process a visa in regular time can request expedited processing. However, the applicant has to show that he or she meets the expedited processing criteria.
Changes to the Law
The move by USCIS to suspend premium processing follows H-1B visa changes proposed through the H-1B and L-1 Visa Reform Act of 2017, which was introduced in the U.S. Senate in January 2017. This bill proposes several changes to how H-1B visas are awarded, for example, moving away from a lottery system to one where workers are given visas based on USCIS established preferences. The bill would also reduce the length of time an H-1B visa would be valid, and have more reporting requirements for employers. There would be more focus and investigation on work visa fraud.
The use of H-1B visas has been criticized as making it easy for some companies to abuse the system and take advantage of foreign workers. Some outsourcing companies apply for visas on behalf of workers and then pass them on to other companies, taking a large percentage of the worker’s salary afterwards. The changes proposed in the bill are supposed to address issues of fraud and abuse such as these.
However, if the bill becomes law, it will mean significant changes in the way some foreign employees receive working opportunities in the United States. It may also reduce the employment opportunities available for foreign workers because it will be harder or less cost effective for employers to assist foreign workers get work visas.
For some workers who have been working in the country under previous policies need to ensure that they are in compliance with any new rules or laws that may be announced in the coming months or years.
Contact an Experienced Immigration Attorney
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.
Asylum Seekers and Undocumented Immigrants Held in Detention Centers
An immigration policy that allowed asylum seekers to be released pending a hearing before an immigration judge is about to end. The policy, sometimes referred to as catch and release, allowed immigration officials to release asylum seekers into the United States and sometimes track them using ankle monitors until their hearings.
This policy was mainly put in place in response to the shortage in suitable places to hold asylum seekers waiting for hearings. Critics of the policy argued that it made the immigration problem worse because people who were released could simply disappear into society and not reappear for hearings or be otherwise tracked.
Ending the policy now and seeking to detain all asylum seekers as they come into the United States while they wait for a hearing could mean longer detention times for the asylum seekers. Currently, immigration detention centers are often overcrowded, and the conditions are not ideal. Adding more people into the detention system may make these problematic conditions worse than they already are. Asylum seekers have rights that should be honored even in detention, although sometimes this does not happen.
If your loved one is held in a detention center, you can try and locate him or her using the detainee locator on the Immigration and Customs Enforcement (ICE) website. You can also speak to immigration officials and try to get into contact with the detained person. In communicating with immigration officials, you should be careful about what information you provide, as it may be used against the detained person. Even something as simple as providing the person’s country of origin and information on what they are doing the United States can make matters worse for the detainee. Ensuring that the detained person has an experienced attorney could be the best help you can give him or her.
An immigrant held in a detention center can be released if a judge grants the asylum claim or otherwise allows his or her release. Immigration officials may also offer to release the detained person if he signs paperwork for voluntary departure. However, signing these forms can mean that the detained person, who may have a good legal claim for asylum, loses that opportunity and has to leave the country.
Bond is sometimes available for some detained immigrants, and if they can pay the bond, they can wait for their hearing without being in a detention center. If the detainee has been convicted of a criminal offense, bond may not be possible in their case. This is especially true if the convictions are for aggravated felonies involving violence or for drug crimes.
Contact an Experienced Immigration Attorney
If someone you know is detained and waiting for an immigration hearing, it is important that they be represented by an attorney during this hearing. Having an attorney during a hearing for an asylum claim or during an appeal increases the applicant’s chances of being granted asylum. For legal assistance, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Making a Plan for Your Children in Case You are Deported
When you are an undocumented immigrant living in the United States, you may live in constant fear of deportation and wonder what will happen to your family if you are separated. This fear can be increased if you have minor children and you are the only parent they have to take care of them. While you cannot predict when you will be deported, you can come up with a plan to give you more control over what happens to your children if you are deported.
In California, the parents of a minor child can grant another person the power of attorney over that child by completing a Caregiver’s Authorization Affidavit. This person can be named as the child’s caregiver and be allowed to make legal decisions on behalf of the child. After filing paperwork with a court, the caregiver can enroll the child in school as well as make medical decisions for the child.
This arrangement is not adoption, and the parent does not give up parental rights to the child. If you have someone you trust who is legally in the country and who would be willing to care for your children if you were deported, you should talk to them and decide how they would care for your child.
If you sign a power of attorney or a Caregiver’s Authorization Affidavit granting rights to make decisions for your child to another person, you can cancel it at any time. You also do not have to make the power of attorney immediate, you can have your lawyer write the documents in such a way that it becomes effective if you are deported or if something else happens to you, and you are unable to take care of your children.
You can choose to arrange for your children to join you in your home country once you are deported, but if you want them to remain in the United States, and your children are U.S. citizens or otherwise legally in the country, you may have to make more permanent arrangements for their custody. You can discuss your options with an attorney in order to make the best choice for your family.
Keep in mind that a power of attorney can give the person you grant it to a wide range of authority. You can give the person the right to sell your house, business, and take care of your other financial matters to wrap up your affairs in the United States if you do not anticipate returning after some time. You can also give a different person the power of attorney over your financial matters than the one who will care for your children. You may want to make sure they can work together so that your children have everything they will need in terms of food, clothing, shelter, and other basic needs in your absence.
Contact Us for Legal Assistance
For more information on how you can put together a plan to take care of your children in case you are deported, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Denial of Entry into the United States Despite Valid Visa or Immigration Status
The executive order on immigration signed by President Trump on January 27, 2017, affected many immigrants headed to the United States from seven particular countries, until a temporary pause was placed on it by a federal judge. This nationwide pause was upheld on appeal on February 4, 2017, and immigrants from the seven countries are now allowed to continue coming to the United States as further appeals are made to higher courts. The confusion caused by the executive order raised the question of what discretion United States customs and border protection agents have to refuse entry to travelers who have valid visas previously issued through the Department of State.
United States customs and border protection agents have to follow the policies and rules issued under law and through executive orders. Therefore, if the ban on the president’s executive order is lifted, these agents will again follow the language of that order. However, with or without the executive order, United States customs and border protection agents have broad powers to conduct searches and conduct inquiries of the people seeking to enter the country.
United States customs and border protection agents also have discretion when admitting people into the country, and in some cases they can refuse a person entry despite the person’s possession of a valid visa. Denial of entry usually happens for reasons such as possession of improper travel documents, stated travel activities that do not match those given for the visa application, smuggling prohibited items, and a history of criminal activity or immigration violations. A person who holds an expired visa will also be denied entry under that visa.
A nonimmigrant travelling to the United States who is refused entry and has his visa cancelled at the port of entry is usually limited in the way he can appeal the denial of entry. Denial of entry usually results in the person being returned to his home country, where he can try to get another visa through the United States embassy there. Immigrants with valid green cards, and who have not been away from the Unites States for long periods of time, have more avenues to seek an appeal of denial of entry based on a United States customs and border protection agent’s discretion.
The ultimate validity of the executive order on immigration is unknown at this time, and may keep changing until the case is heard before the United States Supreme Court. In the meantime, people with valid visas to travel to the United States should make plans to travel as soon as possible in case the executive order’s ban is reinstated.
Contact Us for Legal Assistance
Any green card holder who was detained under the Executive Order and signed paperwork unknowingly, relinquishing his or her green card status can challenge the loss of rights, especially if the green card holder signed paperwork following false representation by border agents. For more information on what rights you have to challenge cancelled visas or a loss of lawful permanent resident status, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
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