Crimmigration

Immigration law is complicated in general, and even factors that might seem insignificant can have a major impact on the outcome.  It’s important to have proper legal counsel throughout any immigration process to make sure each step, every form and every action, is handled properly.  That’s especially true if the applicant has any factors that might complicate their case, in particular any kind of criminal charge, conviction or other history.  Due to immigration’s inadmissibility and deportability rules, most people accused of a crime will be looking at potential immigration consequences, if their criminal matters are not handled properly by a professional trained in U.S. immigration law. This often has an impact on the Latino community, who may be disproportionately targeted by police, and who often do not fully understand the consequences of relatively minor offenses, due to language barriers and lack of access to decent lawyers due to limited means. 

Any immigrant, even a green card holder, who comes in contact with the criminal justice system needs to make sure they understand the immigration consequences of any potential plea or admission right from the start. Pleading down to a minor misdemeanor that does not require jail time may still make the person permanently inadmissible or deportable from the United States. The factors that are important in criminal and immigration cases are oftentimes completely unaligned, so it’s important to recognize that a criminal defense attorney is not a replacement for an immigration attorney. A person convicted of a sexual offense against a minor who does a decade in prison might not be faced with any immigration consequences, while a person convicted of a petty shoplifting offense or a minor drug conviction may end up being removed from the United States with no option to return. It is absolutely imperative to seek advice of a seasoned immigration attorney any time an immigrant has an interaction with police or the courts.

It's important to keep in mind that immigration frequently uses a one strike and you’re out policy, so there may be no do-overs if things are not handled properly the first time. Immigrants convicted of certain crimes, regardless of their actual guilt or the balance of their charitable contributions and community service, will become deportable and permanently inadmissible from the United States. While in general most Americans believe in second chances, that ethic has not always transferred over to the world of immigration law.

Due to recent political discourse, it is unlikely that there will be a dramatic shift in this protocol. President Trump recently sought to inflame the narrative surrounding immigration, most famously accusing Mexicans and others of being rapists, drug dealers, and murderers. In the face of such accusations, many politicians will be cautious not to seem weak on crime, which will hurt immigrants, despite the disconnect in how these laws are applied in practice.  Despite a change in the Presidency and a far less provocative tone from the new administration, the presence of a criminal charge or record can still have a substantial impact on immigration matters under current laws, which require specific actions to alter. 

I was recently asked to participate in a forum with Justin Chon, who is the writer, director and lead actor in a movie selected by the Cannes Film Festival titled Blue Bayou, which includes this very subject matter.  Without giving away too much of the story, it’s about a Korean man who was adopted as a young child and grew up in the Louisiana bayou, so the culture, the language, and his relations there were the only home or family he had ever known.  Criminal charges come in to play as part of a legal battle to prevent his deportation, which would separate him from a wife and daughter and send him to a place where he didn’t know the language or a single person.  It’s a situation that is all too real for many immigrants who were brought here at a young age, had no say in their circumstances, and are faced with the prospect of being sent “home” to a place they know nothing about.  Any criminal factor can tip the scales against them in what is already a precarious immigration scenario.  I’m hopeful that drawing attention to the issue from this kind of human perspective might lead to positive reform, and am heartened to even see that this type of film was produced and is being recognized for the important social statement that it carries. 

While a massive legislative overhaul may be unlikely, the world of crimmigration is changing constantly. I spend a large part of my day keeping up to date on new court cases and making sure to analyze every part of a client’s file to see what options are available to them. Missing even one less obvious point, because it doesn’t come up as often, can lead to poor outcomes, when good lawyering could have easily avoided that. That’s one reason why I always schedule hour consultations when I first speak with clients and make sure that they give us a full debriefing on their background before we first speak. This allows me to ensure that there are no blind spots. I’ve had so many cases where clients thought all was lost, but one overlooked fact completely changed the picture. Those experiences have stayed with me and I make sure not to take anything for granted, in the complex and quickly changing world of immigration law. Recently our firm has had success undoing years old removal orders by noticing a change in the law that allows us to reclassify the crime an immigrant was convicted of. These successes sometimes literally save lives.

That is one reason that it troubles me when I see attorneys and others try to take advantage of immigrants, putting their own financial interests before the needs of their clients.  It devastates me, because I know how trusting immigrants usually are, and they don’t deserve that kind of treatment. No one does. Poor lawyers also sometimes look at the headlines and make snap judgments on whether all hope is lost, when the devil is usually in the details.  Another potential pitfall for the Latino community in particular can be the multi-purpose agencies that are common in cities that offer tax preparation, insurance sales, and immigration applications, among other services.  They will help someone fill out and submit paperwork for a small fee, but they typically don’t have lawyers on hand or any real knowledge of the immigration system, so they aren’t going to catch problematic factors or be able to answer in-depth questions that can have a major impact on the outcome.  They don’t have bad intentions, but they can give applicants a false sense of security that they are getting professional assistance, when in reality there are not experts in the immigration field involved who know how to properly navigate the process.

As I’ve done throughout my career, I intend to fight for immigrants 24/7. That means providing the best possible advocacy to the thousands of clients that are relying on me and my firm on any given day. As a practitioner for over 30 years, I know where the soft spots in the immigration laws are. Me and my father have both testified before congress on legislation and immigration programs that impact our clients. I’m not shy about using my position as a Mayor and leveraging political acquaintances in order to advocate for positive change in public discourse as well as within our legal system, and I am a frequent guest contributor asked to speak on immigration matters on major news networks such as CNN, CSNBC, and even going into the lion’s den on Fox News.  With only so many hours in the day, I can’t take on all the cases I’d like, but by pushing congress and the president and contributing to the public dialogue in both political and media circles, I’m able to expand my reach and help more immigrants than I can if I’m only assisting them one by one in my office. I will keep doing that on behalf of my clients, my constituents, and for the benefit of this whole country.

As I teach my children, it is important to be a good person and stay out of trouble. However, sometimes trouble inevitably finds us. When this happens to immigrants, the consequences can be much more drastic and severe than when it happens to U.S. citizens. It’s not fair, but this is the current reality. I spend my days trying to limit these injustices, as I know the criminal justice system does not treat everyone equally, which spills over into the world of immigration law. I implore any immigrant who interacts with the criminal justice system to immediately seek the guidance of a skilled immigration practitioner, because any misstep could be fatal to a person’s ability to live and contribute in this great country. Hopefully soon our antiquated immigration laws and unequal policing systems can be fixed. Until that day comes, it’s important for immigrants to be careful, educate themselves on their rights, and not to be shy in seeking assistance, when unexpected situations arise.

• If you are a permanent resident and get arrested, you should immediately consult with an immigration attorney to see how the charges will affect your status. Ideally, your criminal lawyer will work with your immigration lawyer to devise a plea deal that won’t affect your permanent resident status AND won’t bar you from becoming a citizen. Deportation is not the only concern for a permanent resident facing criminal charges. It can also affect their eligibility for citizenship. Don’t wait until after you’ve been convicted to talk to an immigration attorney.

 

• In determining whether a conviction makes a person deportable or ineligible for citizenship, the degree of the offense is irrelevant. What matters are the statutory elements of the crime of conviction. For example, a permanent resident can be placed in deportation proceedings for two disorderly persons Shoplifting offenses or a single disorderly persons CDS offense.

 

• A conviction may not make a permanent resident deportable while they are in the U.S., but may make them deportable if they travel outside the U.S. A different set of deportation grounds apply to lawful permanent residents in the U.S., and those returning to the U.S. after a trip abroad. The grounds of inadmissibility, i.e., the grounds applied when requesting admission after a trip abroad, are broader. So a lawful permanent resident who has been convicted of an offense listed in the criminal grounds of inadmissibility can be placed in deportation proceedings at the airport after returning from a trip abroad, even though that same conviction did not make them deportable while they were in the U.S. If you are a permanent resident and have been convicted of ANY offense, you should talk to an immigration lawyer before you travel abroad.

NJRC Beyond the Border conference – Wednesday, 9/15 @ noon – Family Separation

Outline [to follow Ariela Herzog’s presentation on the flow of unaccompanied children to NJ]

Thank you, Ariela for laying that all out. I’m going to speak briefly now about the Vera Institute of Justice’s role in this space and our broader position that family separation is a product of our immigration detention and enforcement system that can only be fully addressed by dismantling the use of immigration detention and providing government funded counsel to all people facing deportation.

Intro to Vera/CIJ, my role, the EOIR orientation programs

Vera was founded in 1961 to advocate for alternatives to cash bail in NYC.

Since then, Vera has grown into a national organization that works with impacted communities, advocates, and government leaders to reform the criminal legal and immigration systems.

The two efforts go hand in hand – immigration detention and mass incarceration are rooted in the same history of racism and xenophobia that disproportionately impacts communities of color and dehumanizes people, allowing for cruel practices like family separation to occur.

Vera’s Center on Immigration and Justice (CIJ) has spent the past two decades providing legal assistance to the adults, children, and families who are detained or otherwise forced to navigate our extremely complex immigration detention and court systems.

Most people don’t realize this, but people placed in immigration detention or deportation proceedings do not have the right to an attorney if they cannot afford one.

As such, thousands of adults, children, and families are forced to represent themselves alone in court every day, a spectacle that is even more harrowing when children as young as 5 or 6 do this after having been separated from their families.

This is true even though the stakes are incredibly high – not just continued separation from families and communities, but possible forced return to a country where the conditions are dangerous or deadly, not to mention COVID-19 in prolonged detention.  

CIJ’s programs are designed to inform adults, children, and families of their rights and legal options (LOP/ICH), or find them a lawyer to represent them, especially for unaccompanied children (UCP) and adults deemed mentally incapable of representing themselves in court (NQRP).

Family Separation and Universal Representation

Our work has convinced us that the very nature of immigration detention is to separate families. And the very public family separation debacle during the Trump administration was just one particularly cruel episode in a much larger project of tearing families apart. Let me share a little bit of history to contextualize the present moment:

The Obama Administration engaged in family separation under the “Secure Communities” program, which was initially launched in 2008 by President Bush. The program allowed ICE to heavily surveil immigrants for the purposes of taking them into custody for deportation. From 2008 through 2011, approximately 88,000 families with members who were U.S. citizens had a family member arrested under Secure Communities, meaning that tens of thousands of immigrant families were separated.[1]

According to the Applied Research Center, in 2011, at least 5,100 children in foster care had immigrant parents who had been detained or deported. They also estimated that by 2016, 15,000 more children would be in foster care while their parents faced immigration detention or deportation.[2]

According to a 2014 Washington Post article (no source for data given, and have not been able to find similar stats elsewhere): "a quarter of people deported from the United States now say they are parents of U.S.-citizen minors, which means more than 100,000 American children lose a parent to deportation each year. A few thousand of those children lose both parents."[3]

Vera launched the Immigrant Connection Project (ICON), a resource for family members who were separated from their children during the height of the family separation crisis in the summer of 2018. Through ICON, we helped family members, as well as their attorneys, locate and connect with the legal service providers working with their children while in the custody of the Office of Refugee Resettlement (ORR). During the time the ICON project was active, we received over 400 inquiries to connect separated family members and were able to successfully match over 94 percent of those inquiries. While the hotline and free calling system from ICE detention are no longer active, legal service providers in Vera’s Unaccompanied Children Program (UCP) network continue to regularly report family separations (e.g., as a result of the government’s Title 42 policy) through our referral database.

Indeed, the Trump Administration’s zero tolerance policies are partially what drove us to create the Safety and Fairness for Everyone (SAFE) initiative, which keeps families together and protects the health and well-being of all our neighbors by working with state and local governments to create deportation defense programs for anyone in detention, regardless of status or ability to pay.

In NJ, my colleagues at SAFE are in the process of partnering with immigration advocates, the state of New Jersey, and the Department of Human Services’ Office of New Americans. NJ also funds the Deportation Defense Initiative, which recently received a funding increase as compared to last year’s budget, that provides representation for detained adults via several legal service providers (LSNJ, AFSC) and local law schools (Rutgers, Seton Hall).

If we want to end family separation, we need to end detention, and one important way we can start moving in that direction – though it is certainly not the ultimate solution - is to have universal representation for everyone in deportation proceedings.

The difference a lawyer makes to the outcome of an immigration case is staggering. People with representation are 3.5 times more likely to be released on bond and up to 10 times more likely to win the right to remain in the U.S.

A lawyer also ensures that people show up to court, with government data showing that people with a lawyer virtually always show up (99%), obviating the need for any alternatives to detention, like mass surveillance.

One very important component of U-rep is the notion that everyone should have counsel, even if it seems like they may not have a strong case; and even if they have had contact with the criminal legal system before being detained. 

This is because as soon as we get into questions of who is deserving of a lawyer, we are drawing lines that reinforce racial inequity, disproportionately harming Black immigrants and other immigrants of color.

Instead, an investment in universal representation is an investment in chipping away at historic racial injustice, it is an investment in transforming our immigration system into one that is welcoming and inclusive, it can help support an end to inhumane immigration detention and the criminalization of our immigrant neighbors, promoting strength and stability in immigrant communities and the community at large.

With a program or policy of universal representation, we wouldn’t need policies of mass surveillance and detention. Access to a lawyer, to justice, is sufficient to keep families together.

This is why Vera has been working hard on the Hill and via our relationships with senior Biden Administration officials to secure universal, zealous, person-centered representation for immigrants, expanding upon the Administration’s budget request of $15M for children and families.

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[1] https://www.americanbar.org/groups/family_law/publications/family-law-quarterly/volume-54/issue-1/how-us-policy-has-failed-immigrant-children-family-separation-the-obama-and-trump-eras/

[2] https://www.americanbar.org/groups/family_law/publications/family-law-quarterly/volume-54/issue-1/how-us-policy-has-failed-immigrant-children-family-separation-the-obama-and-trump-eras/

[3] www.washingtonpost.com/sf/national/2014/07/05/a-band-aid-for-800-children/

1. The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.

The Secretary may designate a country for TPS due to the following temporary conditions in the country:

• Ongoing armed conflict (such as civil war)
• An environmental disaster (such as earthquake or hurricane), or an epidemic
• Other extraordinary and temporary conditions

During a designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases (prima facie eligible):

• Are not removable from the United States
• Can obtain an employment authorization document (EAD)
• May be granted travel authorization

Once granted TPS, an individual also cannot be detained by DHS on the basis of his or her immigration status in the United States.

TPS is a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status. However, registration for TPS does not prevent you from:

• Applying for nonimmigrant status
• Filing for adjustment of status based on an immigrant petition
• Applying for any other immigration benefit or protection for which you may be eligible

2. A person convicted of more than 2 misdemeanors or 1 felony may not be granted TPS.
3. Expungements of crimes are not recognized by USCIS. In order for a crime to be not recognized by USCIS it must be reopened and dismissed. The reopening may not have been done for immigration purposes. There must have been another reason. For example, violation of due process rights.

In re Christopher PICKERING, 23 I&N Dec. 621 (BIA 2003)

4. There is currently the Infrastructure Bill pending in Congress. As part of the Bill there is a section dealing with TPS. If passed, the new law would permit TPS holder to adjust their status to lawful permanent residence.