Many clients and potential clients have been asking me about their rights under the laws of the United States with regard to immigration and the fact of their undocumented status in the U.S.  First, let me be clear that my advice is not based on recent experiences alone but upon a broad overview after twenty years past experience in the practice of immigration law.  Though the field involves rapidly changing and relatively complex issues of law involving federal statutes, agency rules and public policy, a lot remains unchanged.  I recently provided some attorneys attending a conference on immigration law with a presentation on removal and deportation proceedings.  This is one of the most misunderstood areas of immigration practice and cannot be overlooked.  One of the questions I fielded from the attorneys attending the conference was what law applies to immigrants in detention and removal proceedings before Homeland Security, Immigration Courts and/or related agencies.  The answer is simple: all of them.  A big difference in handling various types of immigration cases is the ability to provide informative guidance to individuals and families with tough questions at the outset regarding the future of their loved one or themselves.

First, a simple rule of thumb: with regard to detained individuals at local county jails prior to ICE transfer to U.S. custody, there is a 48-hour window in which ICE can request state and/or local police to hold/detain individuals while they review whether a transfer to ICE custody is appropriate or required.  Most local jails and state’s attorneys are familiar with this practice and have been observant of the regulation which ensures some fundamental rights of due process in these matters.  Once a decision is made whether or not to transfer an individual from state or local custody to ICE control, there is a transition to a local ICE field office where interview of the individual takes place.  Many of the factors affecting whether or not a transfer actually occurs or whether detention is ordered are discretionary factors in which ICE agents review the facts and circumstances of individual cases for family ties, previous deportations, and criminal activity. 

             In several recent cases, I have had individuals who were charged with a state crime who have been transferred out of state custody irrespective of bond in the local or state jurisdiction where the individual was initially arrested.  Undoubtedly, state's attorneys in some jurisdictions may view particular charges involving undocumented persons as secondary to federal immigration issues affecting that person, unless there are significant reasons against transfer to immigration authorities.  And, unfortunately that puts some immigrants in a difficult situation where they may be able to assert their innocence in the underlying case which triggered their initial arrest and involvement with law enforcement in the first place.  I have had both felony and misdemeanor cases where undocumented individuals have either paid their state court bond, and in some cases not, but without a preliminary hearing they have been transferred to federal custody facing removal.  This is something that attorneys should consider in addressing by motion to dismiss charges in state court where there has been no prosecution or conviction of an offense.  However, Immigration Courts consider public safety and risk to the public as a matter of bond eligibility and pending charges are considered in this analysis.  As has always been the case, if there are defenses to state or federal charges to be raised, they need to be raised as soon as possible by the defense attorney in these criminal proceedings.  Otherwise you can expect to have to address in immigration bond and other proceedings these yet unproven charges. 

Some ICE detentions start with a minor infraction or incident involving law enforcement where police confront the question of whether or not the individual's immigration status is relevant.  However, where individuals cannot verify their actual identity with appropriate government, including foreign government, credentials or travel documents, i.e. foreign passport, international driver's license, a referral to ICE for such verification is more likely.  Individuals who mistakenly decide to misrepresent their identity altogether makes it more likely that local law enforcement will contact to immigration officials to investigate and verify status and criminal background.  However, in many cases, where individuals are arrested or picked up for a minor offense, i.e., disorderly conduct, public intoxication, routine traffic violations and the like, a transfer to ICE custody is not certain, nor is continued ICE detention certain once verification of identity and criminal background conducted. 

In most instances, ICE will review the immigration background history of the person from database fingerprinting records on file with the Department of Homeland Security and make a further determination of eligibility for bond, placement in removal proceedings or even release with appropriate Notice to Appear for immigration court.  In the event of the latter, Notice to Appear before an Immigration Judge and Court in any jurisdiction, it is essential to contact an immigration attorney or reputable agency or service which can provide quality legal advice for immigrants.  In many instances, a notice to appear before an immigration judge can be an opportunity in fact to finally adjust one’s legal status or seek appropriate relief which was previously unavailable through administrative means.  It's important to remember that there are two components to immigration law: administrative and judicial, and undocumented persons do not typically have the ability to appear and request relief from an Immigration Judge without government approval with the exception of political asylum cases.

As I stated to members of the National Business Institute in Springfield, Illinois last week, appearance in Immigration Court is not a definitive end to a person’s remaining in the U.S., because appropriate judicial and other legal relief exists to qualified persons with sufficient family ties, number of years residing in the U.S., and a clean record.  Unfortunately this process can be quite complicated and take a good deal of time to resolve successfully. 

Thank you for your inquiries.  I will provide some additional information on forms of relief and other issues affecting removal and deportation in the next segment of this article.

Neal Connors

Suspense of the Obama administration executive order products of Deferred Action for Parents and Children--what does it mean?

As a lawyer who appears regularly in Federal District Court and frequently in the US Court of Appeals, I have some observations about the recent federal court decision granting injunctive relief preventing the implementation of the President's reform efforts which would have permitted parents and spouses of US citizens to obtain employment authorization and avoid temporary removal from the US by Immigration and Customs Enforcement. 

First, what the injunction does not do in my view: the injunction does not effect US immigration and Homeland Security policy toward removal (deportation) of undocumented persons.  If you are a criminal, or have an outstanding order of removal, you are on the A-list and a priority for removal.  Recently, the category of criminal aliens has slightly expanded to include those who may have a DUI or two, and therefore, demonstrate that they are a priority target for removal by ICE.  However, absent an outstanding order of removal by an Immigration Judge or someone who has received voluntary departure and reentered, I believe that ICE will remain selective about anyone who is simply unlawfully present.  If you have the qualifying immediate relative relationship necessary to file an I130 petition for immediate relative (spouse, parent, child) you should probably get that on file pending further national policy and legal changes to reform proposals that are likely recur. 

The Texas ruling found that the government violated terms and provisions of the Administrative Procedure Act, and a very basic tenet of administrative rulemaking and executive authority under U.S. law; namely, that the government must follow its own rules and observe the notice provisions set forth under federal law, particularly those contained in the Code of Federal Regulations setting forth notice and comment requirements concerning federal rulemaking authority.  In short, the policy changes recommended by the administration failed because they arguably failed to follow the procedural requirements affecting plenary executive authority.  That's my read anyway.  I think these shortcomings can be corrected and that the executive authority sought to be exercised by the President will be forthcoming.  The former is entirely a legal dilemma dependent on the administrative or DOJ's ability to conform to the APA, but the outcome is largely political. 

Consider the experience from a policy standpoint of President Clinton's extending the sunset provisions of 245i of the Immigration and Nationality Act in 1999 when he allowed those unlawfully present in the US to apply for adjustment of status and acquire lawful permanent residency upon filing of an immediate relative petition or labor certification prior to April 2000, effectively allowing the same folks the President seeks to help with not only work authorization but full lawful permanent residency!  What's the difference 15 years later?  

Currently, undocumented persons who are married to US citizens or have petitioning US citizen children must return to their country of origin to obtain their lawful permanent residency through consular visa processing abroad.  In those days, through President Clinton's executive fiat of extending the sunset provisions of INA 245i concerning adjustment of status, undocumented persons were able to resolve their entire case, right here at St. Louis immigration field offices.  Something to think about!

Here we will post information that you will find useful. Take a look around. And remember, if you have any questions, we would be happy to help.

Just click here for help with immigration legal matters.

View from the field: As part of an intelligent assessment of the prospects for success or failure of immigration reform proposals, an understanding of the historical, cultural and socio-economic underpinnings of our present system needs to be taken into consideration.  One glaring fact of our current immigration demographic is that the large majority of the present undocumented population is from Mexico, a historically Catholic country with a strong tradition of religious practice and belief.  Perhaps this is an underlying factor in the criticism of current attempts to reform, pardon, provide amnesty, increase opportunities, and otherwise expand access for these populations to legitimate legal and economic opportunity.  As a criminal lawyer for more than 25 years in the military and federal courts, it would be incompetence to overlook the credibility, motive to fabricate, and bias of any particular witness, including the defendant.  And at the risk of being presumptuous, perhaps it may be giving too much credit to critics and opponents of expanded immigration policy alternatives to suggest that some of the opposition may rest with an underlying hostility to these predominantly Catholic immigration populations themselves.  Recently, a journalist appeared on Bill O'Reilly's Fox News program suggesting that media folks who ascribed to organized religion were considered to be on the fringes of that industry, even suggesting that to be seen leaving mass might provoke suspicion and doubt about their free-standing abilities as journalists.  So, if this group questions the validity and relevance of organized religion, is it possible that strong resentment may similarly affect conservative opposition views regarding immigration reform policies affecting largely Catholic populations from Mexico and Central America? 

Amongst the roughly 1.5 million undocumented persons residing in Texas, nearly 80 percent are from Mexico according to the Migration Policy Institute.  The number of immigrants from Mexico decreases to less than 60 percent nationwide.  California has approximately double the undocumented population of illegals.  One tangible indicator of the assimilation trends of these groups is the strong Catholic component and hierarchical support for these communities.

In a high threat environment such as the Middle East and sub-Saharan and Horn of Africa where central governments are being challenged by Islamic extremist movements and terrorist organizations, the challenge is to realistically assess our own national security objectives wherein immigration and reform policies may benefit traditionally stable, and yes, religiously faithful populations seeking assimilation into the US cultural, legal and educational systems.  The dynamic of incorporating relatively law-abiding and modestly educated immigrants into the fabric of US mainstream existence where roughly a quarter of the population has attended some high school appears to be a positive at so many levels, not the least of which is our national security strategy and comprehensive approach to immigration reform. 

 

One of the common questions I answer for intending immigrants or those already visiting the US is "how much money do I need to be able to obtain an E-2 investor visa in the US?" The answer generally surprises people,namely, that there is no magic, specific amount, only the "right" amount. While there is a form of permanent residency that is available for the miliion dollar man, the need for the US to attract foreign investors and create jobs has opened a big gap in the number of visas available for people seeking to start their own business and the number of applicants.

When it comes to investor visas you need three things: a substantial and material investment in a business which is proportionate to the type of business started. More on this form of business and who is eligible for the visa, along with a few successful examples, when I return.

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