The Impact of Immigration Status on Other Legal Issues. Basics, Issue Spotting and Resources. 2011 Illinois Legal Aid Advocates Conference October 7, 2011 Chicago, Illinois. www.immigrantjustice.org. National Immigrant Justice Center.
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The Impact of Immigration Status on Other Legal Issues
Basics, Issue Spotting and Resources
2011 Illinois Legal Aid Advocates Conference
October 7, 2011
The National Immigrant Justice Center (NIJC), a program of Heartland Alliance for Human Needs & Human Rights, promotes human rights and access to justice for immigrants, refugees, and asylum seekers through legal services, policy reform, impact litigation, and public education. Throughout its 30-year history, NIJC has been unique in blending individual client advocacy with broad-based systemic change.
NIJC serves more than 10,000 immigrants annually with the support of a professional legal staff and a network of over 1,000 pro bono attorneys.
NIJC maintains a more than 90 percent success rate.
NIJC provides direct legal representation to low-income individuals in immigration matters. NIJC represents immigrant families; individuals seeking protection, such as, victims of crimes including domestic violence and human trafficking, LGBT immigrants, asylum seekers, unaccompanied immigrant minors; and detained and non-detained noncitizens.
Department of Homeland Security (DHS)
U.S. Citizenship & Immigration Services (USCIS)
Immigration & Customs Enforcement (ICE)
Customs & Border Patrol (CBP)
Department of Justice (DOJ)
Executive Office for Immigration Review (EOIR)
Office of Refuge Resettlement (ORR)
State/Local Law Enforcement/Agencies
Child Protective Services
US Citizen (most protected)
Lawful Permanent Residents (green card holders)
Immigrants (family based, employment based, asylees, refugees, etc.)
Non-Immigrants (tourists, students, U visas, etc.)
TIP: Ask individuals about their immigration status before adivising on other matters
Refugees and Asylees
Other (very limited)
Priority System of Immigrating
Permanent Residency Process
Step 1: The Petition
Step 2: Adjustment of Status (green card application)
TIP: Step 1 holds place on list – it does not protect from deportation
Spouse (immediate relative)
Children and Stepchildren (under 21, immediate relative, over 21 priority date)
Parents (if USC child is over 21) (immediate relative)
Protection Based Derivatives
Once the petition is filed with USCIS, a priority date is given (usually the date it is received by USCIS)
Except for Immediate Relatives, everyone else must wait for the priority date to be current before they can proceed with Adjustment of Status (to become LPRs)
Violence Against Women Act (VAWA)
T visas, for Victims of Human Trafficking
U visas, for Victims of Certain Crimes
Special Immigrant Juvenile Status (SIJ) for certain children who are victims of abuse, neglect or abandonment
“[A]ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 USC §1158, et.al.
Abused spouse of U.S. citizens and LPRs;
Non-abused spouse of US citizens or LPRs whose children are abused (need not be children of abuser);
Abused children (must meet the definition of a “child” under 8 USC §1101(b)) of USCs or LPRs;
Abused children of USCs may file until age 25 if central reason for delay is abuse
Abused intended spouses, meaning a spouse who entered into a bigamous marriage in good faith. See 8 USC §1154(a);
Abused parents of USC children
Failing to file immigration papers on behalf of family members;
Filing a family petition (or other application) and later withdrawing it;
Threatening to contact immigration officials;
Actually contacting immigration officials for the purpose of deporting family members; and/or
Providing immigration officials with false information about family members.
Status of Abuser (USC or LPR)
Good Faith Marriage
Battery or extreme cruelty
Self-petitioner lived with abuser
Self-petitioner’s current residence
Good Moral Character (3 years prior)
8 USC §1154
Immigrant suffered substantial mental or physical abuse as a result of having been a victim of certain criminal activity; and
Immigrant (or in the case of a child under 16, the parent or guardian) possesses information concerning that criminal activity; and
The criminal activity violated U.S. law or occurred in the U.S.; and
The immigrant has been helpful, is being helpful, or is likely to be helpful to a Federal, State or local authority investigating or prosecuting the crime.
See 8 USC §1101(a)(15)(U)
T visas are for victims of human trafficking
Requirements: victims of human trafficking as defined by 22 USC §7102 (the use of force, fraud, or coercion for sex trafficking and/or involuntary servitude, peonage, debt bondage or slavery); who assist or cooperate in reasonable request for investigation or prosecution; and who would suffer extreme hardship if removed.
8 USC §1101(a)(15)(T); 8 CFR §214.11
Minors who are abused, abandoned, or neglected by either parent, who have a dependency order from a State Court making such a finding and where the Court makes a determination that it would not be in their best interest to return to their home country.
Dependency order must be entered before they turn 18
8 USC §1101(a)(15)(J)
Immigrants often do not self-identify as victims
Afraid to report crimes
Fear of government
Children born abroad to a USC parent
Children who are LPRs and have USC parents
After becoming an LPR persons can apply for naturalization after either 5 or 3 years depending on how they obtained their LPR status
Adults and Children
Detained at county jails
Children detained separately
Persons arriving at port of entry
Immigrants in criminal proceedings
ANYONE WHO IS NOT
A U.S. CITIZEN
Crimes: Complicated for immigrants. May lead to a person losing their lawful status.
Requirements for non-immigration attorneys. Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
LPRs can be deported for old crimes
Children “repatriated” by DCFS or others
Minor crimes may be considered “aggravated felonies” 8 USC §1101(a)(42)
Custody – immigration status should not impact custody
Marriage fraud allegations
Allegations of abuse in divorce proceedings, listing abuse in pleadings
VAWA confidentiality provisions 8 USC 1367(a)
Social Security Numbers/ITIN Numbers
Employer’s Obligations to Report
Using False Documents
Gives ICE technological, not a physical presence in jails
when arrested by local police, fingerprints run through state and FBI databases to check for criminal record
Secure Communities process:
when arrested by local police, fingerprints automatically also run through DHS databases to check for civil or criminal immigration history
Currently operating in more than 41 states
DHS’s stated goal is to have Secure Communities everywhere by 2013
Concerns over whether communities can choose to opt out
Private Attorneys –call the American Immigration Lawyers Association at 1-800-954-0254 for a referral
Attorneys or Accredited Representatives at Board of Immigration Appeals Recognized Non-Profit Organizations – a list of these organizations can be found at www.usdoj.gov/eoir/statspub/raroster.htm
Notaries or notary publics are not attorneys and cannot give legal advice
Well-intentioned, but unauthorized practitioners such as churches, community organizations, etc.