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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 Chicago, Illinois. www.immigrantjustice.org. National Immigrant Justice Center .

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The impact of immigration status on other legal issues

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
National Immigrant Justice Center

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.


Involved government agencies
Involved Government Agencies

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

Sheriff

Police

Child Protective Services


Immigration status
Immigration Status

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.)

Undocumented immigrants

TIP: Ask individuals about their immigration status before adivising on other matters


Obtaining immigration status
Obtaining Immigration Status

Family

Protection Based

Refugees and Asylees

Crime Victims

Employment

Other (very limited)


Family immigration
Family Immigration

Priority System of Immigrating

2 Steps

Family Petition

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


Petitions
Petitions

Family Petitions

USCs

Spouse (immediate relative)

Children and Stepchildren (under 21, immediate relative, over 21 priority date)

Parents (if USC child is over 21) (immediate relative)

Siblings

LPRs

Spouse

Unmarried children

Protection Based Derivatives


Next steps
Next Steps

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)


Protection based immigration
Protection Based Immigration

Asylum/Refugee Protection

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


Asylum
Asylum

“[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.


VAWA

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


Abusers immigration
Abusers & Immigration

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.


Eligibility for vawa
Eligibility for VAWA

Status of Abuser (USC or LPR)

Marriage Requirements

Legal Marriage

Good Faith Marriage

Battery or extreme cruelty

Residency Requirements

Self-petitioner lived with abuser

Self-petitioner’s current residence

Good Moral Character (3 years prior)

8 USC §1154


U visas crime victims
U Visas: Crime Victims

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)


Crimes included
Crimes Included

  • Rape

  • Torture

  • Trafficking

  • Incest

  • Domestic Violence

  • Sexual Assault

  • Prostitution

  • FGM

  • Being held hostage

  • Peonage

  • Involuntary Servitude

  • Slave trade

  • Kidnapping

  • Abduction

  • False Imprisonment

  • Being held hostage

  • Peonage

  • Obstruction of Justice

  • Perjury

  • Attempt, conspiracy or solicitation to commit any of these crimes, or any “similar activity”


Trafficking victims
Trafficking Victims

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


Special immigrant juveniles
Special Immigrant Juveniles

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)


Immigrant victims
Immigrant Victims

TIPS

Immigrants often do not self-identify as victims

Cultural sensitivity

Afraid to report crimes

Fear of government


Citizenship
Citizenship

Acquired citizenship

Children born abroad to a USC parent

Derived citizenship

Children who are LPRs and have USC parents

Naturalization

After becoming an LPR persons can apply for naturalization after either 5 or 3 years depending on how they obtained their LPR status


Detention
Detention

Adults and Children

Detained at county jails

Children detained separately

Persons arriving at port of entry

Immigrants in criminal proceedings


Who can be deported
Who Can Be Deported?

ANYONE WHO IS NOT

A U.S. CITIZEN


Issue spotting
Issue Spotting

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)


Issue spotting1
Issue Spotting

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)


Other issues
Other Issues

Social Security Numbers/ITIN Numbers

Filing Taxes

Driver’s Licenses

Employer’s Obligations to Report

Using False Documents

Public Benefits


Secure communities
Secure Communities

Gives ICE technological, not a physical presence in jails

Current process:

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


Secure communities1
Secure Communities

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


Legal assistance
Legal Assistance

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


Unauthorized practice of law
Unauthorized Practice of Law

Notaries or notary publics are not attorneys and cannot give legal advice

Well-intentioned, but unauthorized practitioners such as churches, community organizations, etc.


Thank you
THANK YOU

Mony Ruiz-Velasco, Director of Legal Services

Karolyn Talbert, Managing Attorney

National Immigrant Justice Center

208 S. LaSalle, Suite 1818

Chicago, IL 60604

312.660.1370

[email protected]

[email protected]

www.immigrantjustice.org


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