U.S. Citizenship And Immigration Services. (USCIS) University Of Idaho College of law March 2012
Secretary ------------------Deputy Secretary Executive Secretariat Under Secretary Management Chief of Staff Chief Financial Officer Military Advisor Under Secretary Science and Technology Health Affairs Assistant Secretary Under Secretary National Protection & Programs Intelligence & Analysis Assistant Secretary Federal Law Enforcement Training Center Director Policy Assistant Secretary Operations Coordination Director Domestic Nuclear Detection Office Director General Counsel Citizenship & Immigration Svc Ombudsman Legislative Affairs Assistant Secretary Chief Privacy Officer Public Affairs Assistant Secretary Civil Rights and Civil Liberties Officer Inspector General Counter Narcotics Enforcement Director Transportation Security Administration Ass’t Secretary/ Administrator U.S. Customs and Border Protection Commissioner U.S. Citizenship & Immigration Services Director Immigration and Customs Enforcement Ass’t Secretary U.S. Secret Service Director Federal Emergency Management Agency Administrator U.S. Coast Guard Commandant Department of Homeland Security * highlighted boxes indicate immigration authority
OTHER ENTITIES • Department of Justice: Executive Office of Immigration Review (EOIR) includes administrative Immigration Courts (jurisdiction over individuals in deportation proceedings; Immigration Judges (IJs) may adjudicate cases of non-citizens claiming eligibilityfor relief from deportation—ICE attorneys serve as prosecutors) and the Board of Immigration Appeals (BIA) (jurisdiction over appeals from Immigration IJ decisions.
OTHER ENTITIES • Federal Appellate Courts: jurisdiction over certain petitions for review from BIA decisions denying relief. • U.S. Supreme Court: may grant certiorari to hear appeals from appellate court decisions. • Department of State: Visa processing overseas (“consular processing”). • Department of Labor: shares adjudicative jurisdiction w/CIS on work related visas.
What is a Non-Immigrant vs Immigrant? • Non-immigrants come for a period of time, do a specific activity, and then return home • Immigrants are also known as permanent residents, green card holders • Immigrants need an immigrant visa to come/live permanently in U.S.
What is a Visa? • A visa allows someone to apply for admission to U.S. • A visa does NOT guarantee entry to U.S. • State Department issues visas • Visas can be cancelled
Visa Categories Non-Immigrant visas are temporary • Tourists • Students • Specialized workers • Ag. Worker Immigrant visas are permanent • Family-based • Employment-based • Refugees • Miscellaneous Others
LPR (Green Card) Eligibility • Relationship to family member who is will to sponsor you – • USCS over 21 can file for: spouses, children of any age, parents & siblings (but sibling wait can be 10+ years). • LPRS can file for: spouse, children under 21 or unmarried sons/daughters over 21 (but for beneficiaries from Mx., India, & certain other countries, waiting period can be many years).
LPR (Green Card) Eligibility, cont’d • In limited circumstances, employer sponsorship; self-petition for truly unique “high level” individuals; investors. • Refugee or asylee. • Other opportunities may be available to reside permanently in the US: VAWA, T, U.
Becoming an LPR: Family Based • Step 1: must have approved family petition (I-130). • Even with an approved petition, there may be a long wait, immediate vs. preference (Visa Bulletin). • Step 2: application for green card (I-485), this determines if the applicant is eligible to be admitted to the US.
Becoming an LPR, cont‘d • Inside U.S. “permanently” but may be removed for a number of reasons, including many crimes. • Once approved, applicant is able to reside in the US “permanently” but may be removed for a number of reasons, including certain crimes. • Also may not be permitted to re-enter after travel abroad.
Inadmissibility vs. deportability • Inadmissibility grounds (INA sec. 212): may preclude temporary and/or permanent immigration. Note: criminal inadmissibility ground can be triggered by an individual’s admission to criminal conduct; conviction not required. • Deportability grounds (INA sec. 237): may preclude remaining in the U.S. and lead to permanent or temporary expulsion. Conviction required.
Inadmissibility vs. deportability • Both sets of grounds apply to non-USCs including long-time LPRs (green card holders). • Some inadmissibility and deportability grounds overlap; others are distinct: Must look at both 212(a) AND 237(a) to analyze possible immigration consequences.
REMOVABILITY BASED ON CRIMINAL CONVICTIONS Removal of a non-USC for a crime requires a conviction. INA sec. 101 (a)(48)
CONVICTION FOR IMMIGRATION PURPOSES Finding of Guilt Idaho deferred adjudication, w/held judgment Alford plea, are convictions for immigration purposes. May go away for state and other federal purposes. LENGTH OF SENTENCE INCLUDES SUSPENDED TIME! CONVICTION NEVER GOES AWAY FOR IMMIGRATION PURPOSES!
Criminal grounds • CIMT • Many violent crimes • Possession or Sale of a Controlled Substance. • Other activities relating to controlled substances: e.g. possession of drug paraphernalia. • Firearms offenses. • Theft crimes. • Multiple Crimes. • Crimes committed within a particular # of years of lawful admission to U.S.
Criminal Grounds • Immigration consequences of some crimes may depend on maximum sentence possible and/or sentence imposed: e.g. 1 petty theft exception to inadmissibility: 1.if CIMT and 2.maximum sentence does not exceed 1 yr. incarceration and 3. actual sentence imposed was not more than 6 mos. • Remember: suspended time counts!
Exemptions • Purely political offense. • Under age 15 - Any acts committed are acts of juvenile delinquency. • Ages 15, 16, 17 - Offense(s) without violence are acts of juvenile delinquency and not crimes. Drug offenses may have immigration consequences .
Immigration Consequences of Crimes • Crimes that may cause minor consequences for a citizen can mean certain inadmissibility and/or deportability for non-citizens even long-time LPRs. • Exs. petty theft (shop- lifting); drug paraphernalia; 1 marijuana possession of more than 30 grams; more than 1 marijuana possession of any amount; DUI while DWP.
AGGRAVATED FELONIES • I INA sec. 237 (a)(2)(A)(iii); • 8 USC sec. 1227(a)(2)(A)(iii) • Virtually certain deportation. • Provides for the deportation of any non-USC convicted of an aggravated felony as defined in Section 101(a)(43) of the INA; 8 USC sec. 1101(a)(43).
AGGRAVATED FELONIES • Aggravated felonies are “defined” at INA 101(a)(43) and include– • Murder, rape, illicit drug or firearms trafficking, most other firearms offenses, money laundering/fraud/tax evasion/forgery/bribery ($10,000+), COV for which the term of imprisonment imposed is 1 year or more, theft (including receipt of stolen property) for which term of imprisonment is 1 year or more, burglary, kidnapping, certain FTAs, obstruction of justice/perjury (1 yr. or more imposed; conspiracy to commit any AF.
IDAHO RULE 11 (d) • Requires Idaho trial court judges to advise every defendant that if s/he is a non-citizen, immigration consequences may result from a guilty plea and grant a continuance to allow defendant to consult defense counsel and/or an immigration attorney about such possible consequences.
Padilla v. Kentucky Counsel’s Duty to Advise Clients of Immigration Consequences of Criminal Dispositions 130 S. Ct.1473 (2010)
Padilla v. Kentucky • Held: 6th A. requires defense counsel to provide affirmative, competent advice to a non-citizen defendant about the immigration consequences of a guilty plea. • Failure to do so may be ineffective assistance of counsel (IAC) and render plea invalid.
PADILLA ADVISAL • Investigation of client’s criminal/immigration history + analysis of immigration impact of plea and sentencing alternatives + client goals.
Minimum duties of counsel • 1. Duty to inquire about immigration status • May be impossible to know if immigration consequences will be certain or uncertain w/o knowing specific immigration status. • 2. Duty to investigate and advise about immigration consequences of plea alternatives and of going to trial. • Immigration consequences may be minimized by choosing one plea option over another.
Minimum duties of counsel • 3. Duty to investigate and advise of sentencing alternatives. • Immigration consequences may be triggered by length or maximum possible length of a sentence. • Plea to willful concealment instead of petit theft may avoid immigration consequences; • Battery: 364 day instead of 365 day sentence may avoid deportation).
Determining Objective Standard of Reasonableness • Conviction NEVER goes away. • E.g. Deferred adjudication (as defined by Idaho law) may permit dismissal of conviction for state purposes but remains a conviction for immigration purposes. • Suspended sentences count.
Step 4. Defend the case according to the client’s priorities • Padilla makes clear that if client states that immigration consequences are highest priority, attorney must conduct the defense accordingly.
Step 5. • If offer fits client goals, take offer. • If offer doesn’t fit client goals: • Negotiate plea to a different statute • Negotiate plea to particular section of statute • Negotiate sentencing concession * Remember Padilla’s instruction on prosecutor’s duty
Summary • Criminal/immigration history investigation + analysis of immigration impact of plea and sentencing alternatives + client goals= PADILLA ADVISEMENT
Prosecutor’s role under Padilla • Padilla instructs that consideration of immigration consequences is a legitimate part of the bargaining process. • May be able to reach agreements that better satisfy the interests of both parties.
Special Interest Juvenile Status SIJS • The juvenile is dependent on a juvenile court or the juvenile court has committed or placed the juvenile into custody of an agency or department of the state • The Juvenile is eligible for long-term foster care due to abuse, neglect, or abandonment; AND • It is not in the juveniles best interests to return to his or her country of residence, or his or her parent’s country of residence .
SIJS • Reunification with 1 or both parents is not viable due to abuse, neglect, abandonment, or other similar basis found under State law. • A juvenile court determines that it is in the young person’s best interests to stay in the U.S., as opposed to return to their home country. • Factors such as family/friend support system, emotional well-being, as well as medical and educational resources may be included.
The Violence Against Women Act VAWA • VAWA’s immigration provisions allow certain individuals to self-petition for lawful permanent residency without the abuser’s knowledge or assistance. • This is the I-360 Self-Petition Process
Who is eligible to self-petition under VAWA? --Abused spouse and children of abusive USC or LPR. --Children includes step-children or adopted children --Unmarried children (under 21) may also be included in the petition even if the children have not been abused. --Abused parent of USC (21 yr.+) child.
What Must Self-Petitioner Show? • Qualifying relationship to a U.S. Citizen or Lawful Permanent Resident • If marriage-based must establish good faith marriage • If marriage-based, resided with the Abuser in the U.S. or Abroad • Physical Abuse or Extreme Mental Cruelty • Good Moral Character
Documenting the Domestic Violence & Extreme Mental Cruelty • Personal Declaration • Court Orders • Police Incident Reports • Hospital Records • Photographic Evidence of Abuse • Statements • Domestic Violence Advocates, Shelter Staff • Friends, Family Members, Neighbors, Classmates, Teachers
U visas • 2 Goals: • Assist law enforcement: Overcome victim fear of detection; encourage reporting and other cooperation • Humanitarian: protect vulnerable victims; assist domestic violence and other crime survivors • INA 101 (a)(15(U) Created by Victims of Trafficking and Violence Prevention Act Sec. 1513.
BENEFITS • Lawful U Visa status for 3 years • May be extended if victim’s help still required and has not applied for permanent residence • Employment Authorization • May apply for permanent status after 3 years
REQUIREMENTS • Victim of 1 or more of 26 designated crimes • Suffered substantial harm as result of crime • Applicant determined “admissible” to U.S. • Was/Is/Will Be helpful in: • -Investigation OR • -Prosecution • Can’t unreasonably refuse to help • Law Enforcement must certify helpfulness
STATUTORY LIST OF CRIMES • Rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage taking, peonage, involuntary servitude, slave trade, kidnapping, abduction, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury…
LIST OF CRIMES, continued • Plus: • attempt, conspiracy, or solicitation to commit any of the above-listed crimes, or any similar activity in violation of federal, sate or local criminal law.
WHO DOES WHAT • Role of Law Enforcement (Certification of Crime, Victim, and Cooperation [Supp. 918 B]) • vs. • Role of USCIS (Adjudication of U visa petition [Form I-918 and supporting documents] and related applications)
“T” TRAFFICKING VISA • Immigration Provisions: • May Provide Victims Legal Status and Benefits • T-visas if continued presence helpful in investigation and prosecution is necessary.
TRAFFICKING • Two Core Elements: • Bringing aliens to the U.S. for forced labor, servitude or slavery like practices; • Requires deception/Coercion/ fraud
PEOPLE ARE TRAFFICKED FOR • Domestic service • Commercial sex work • Servile Marriage • Factories • Begging • Agriculture • Criminal activity • Restaurant work • Construction • Hotel/motel housekeeping • Other informal labor sectors
RESOURCES • Statutes: Immigration & Nationality Act (INA); 8 USC et. seq. ; 18 USC (certain crimes); 21 USC 802(controlled substances); • 22 CFR 40-53, 514 (consular processing); 20 CFR (labor). • Administrative & Judicial Precedents
RESOURCES • Immigration Bench book for Juvenile & Family Court Judges Bench Book on Immigration, July 2010 available as pdf. download from the Immigrant Legal Resource Center (ILRC) www.ilrc.org • Other ILRC manuals available at www.ilrc.org: VAWA, U, T, asylum, SIJS, Hardship Waivers. • Richard Boswell, Essentials of Immigration Law.