Articles Posted in Deportation/Removal

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USGS_Rikers_Island.pngWhile programs like Deferred Action for Childhood Arrivals (DACA) offer hope and opportunity for many otherwise undocumented immigrants, the federal government continues to pursue an aggressive deportation program. The Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) deported 438,421 people in fiscal year 2013. That number reportedly represents an increase of over 20,000 from fiscal year 2012, which showed an increase of over 51,000 over fiscal year 2011. Since taking office in 2009, the Obama administration has deported more than two million people. DHS often relies on the cooperation of local governments, which it expects to abide by “detainers” issued for individuals held in custody by state and local law enforcement. Many local governments, however, are refusing to honor immigration detainers and are enacting legislation to this effect. The New York City Council passed two laws in October 2014 that place further restrictions on the city’s already limited cooperation with federal immigration officials.

DHS officials, which include ICE and CBP, are authorized by federal regulations to issue detainers to other law enforcement agencies. 8 C.F.R. § 287.7. A detainer notifies the other law enforcement agency that the federal government intends to take custody of an individual in that agency’s custody for the purpose of deportation. This frequently takes place before any adjudication of the person’s deportability or inadmissibility has occurred. Officially, a detainer asks the local agency to notify DHS before releasing the individual. In practice, it often means that the local agency is expected to continue to hold the person, even beyond the time he or she is otherwise entitled to release, until DHS can take the individual into custody. The federal government expressly disclaims any financial responsibility for the cost to local agencies of holding a person solely for a detainer. Id. at § 287.7(e).

New York City has passed several laws in recent years limiting the city’s cooperation with immigration detainers. In 2011, it enacted a law preventing police from holding a person in custody beyond the point when, in the absence of a detainer, he or she should be released. Police should only notify DHS of the person’s release in certain limited circumstances. Another law passed in 2013 bars the NYPD from turning certain individuals who are subject to a detainer over to DHS, such as those who are only charged with low-level offenses.
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Ebola_virus_virion.jpgThe outbreak of Ebola virus disease (EVD) in west Africa is a serious health crisis that threatens the entire region. The disease is only communicable through contact with infected bodily fluids, and therefore it is not likely to pose a major threat to people in the United States. Despite such reassurances from medical experts, some people have expressed concern regarding immigrants entering the country. Immigration laws and regulations allow officials to deny entry to people who have certain specified diseases, including EVD, or who lack certain vaccinations. Airlines are also permitted to deny service to people who have communicable diseases that appear to pose a threat to other passengers’ safety. The federal government has announced measures to assist people from the countries affected by the outbreak who are already in the U.S.

According to the World Health Organization (WHO), EVD first appeared in two simultaneous outbreaks in Africa in 1976. EVD causes a hemorrhagic fever with a mortality rate of up to 90 percent. It can only be transmitted from one person to another by contact with infected bodily fluids, such as saliva or blood. The WHO declared the current outbreak to be an international public health emergency in early August 2014. Cases have been reported in at least three west African nations: Guinea, Liberia, and Sierra Leone. The death toll exceeded 1,400 by the end of August.

In response to the outbreak, many countries have closed their borders or restricted access to people from affected countries. This has met with criticism from health organizations, who say that this is making the situation worse. Direct assistance from the U.S. has been sparse, but immigration authorities are offering some relief to people from these countries who are already in the U.S. This includes extensions of nonimmigrant visas, deferrals of deportation proceedings, and expedited approval of work authorizations and petitions for immediate relatives of U.S. citizens. These measures make it easier for people from these countries to stay here and support themselves and their families.
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CBP_UH-60_street.jpgThe federal government introduced the “Secure Communities” (S-Comm) program in 2008 as a means of focusing immigration enforcement on individuals deemed a priority for deportation. The program began in a small number of local jurisdictions and has since expanded to cover most of the country. Federal immigration authorities have long used “immigration detainers,” requests to local law enforcement to continue to hold a detainee beyond the point when he or she would normally be released, as part of their enforcement procedures. This procedure became more official under S-Comm, with holds of at least 48 hours, not counting weekends. Several court rulings have held that these detainers are not binding on local law enforcement, and multiple cities have enacted laws limiting cooperation with the program. Local law enforcement in many areas has been slow, however, to respond to the backlash against S-Comm, if they respond at all.

U.S. Immigration and Customs Enforcement (ICE) describes these high-priority categories as “criminal aliens, those who pose a threat to public safety, and repeat immigration violations.” These designations are made in the sole discretion of ICE, and detainers under S-Comm are not subject to challenge by a detainee. The Third Circuit Court of Appeals ruled in Galarza v. Szalczyk, 745 F.3d 634 (3rd Cir. 2014), that mandatory immigration detainers violate the Tenth Amendment’s prohibition on commandeering state or local law enforcement. A federal judge in Oregon ruled that a county violated a woman’s Fourth Amendment rights by holding her pursuant to an immigration detainer after she was eligible for release on bail. Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317, opinion (D. Ore., Apr. 11, 2014).

Numerous U.S. cities have enacted laws or policies limiting cooperation with ICE regarding immigration detainers. The New York City Council enacted Local Law 62 in November 2011, which added a new section to the city’s Administrative Code stating that police should not detain a person beyond the time that he or she would otherwise be released, nor should they notify ICE of the person’s release, except under specified circumstances. See N.Y.C. Admin. Code § 9-131. The law listed numerous exceptions, including conviction of any felony or misdemeanor, pending criminal charges, outstanding warrants, and gang membership.
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Dreamers_AZ_Sit-in_5-17-10.jpgIn June 2012, the White House and the Department of Homeland Security (DHS) implemented the Deferred Action for Childhood Arrivals (DACA) program, which allows qualifying undocumented immigrants to avoid deportation and obtain work authorization for at least two years. DHS announced that it would begin accepting applications to renew DACA status in June 2014, since the earliest approved DACA cases were nearing expiration. The program has benefited hundreds of thousands of young people known as DREAMers, after the DREAM Act that would have made the provisions of DACA into law has failed to pass in Congress. Critics of DACA include most Republicans in Congress, who recently voted to end the DACA program entirely. The bill has little chance of passing in the Senate, however, and President Obama would be unlikely to sign such a bill.

DACA was created by an executive order issued by the President. It is essentially a means of setting priorities for the enforcement of immigration laws, a process known as “prosecutorial discretion.” The focus is on undocumented immigrants with criminal records and those who pose a threat to national security, instead of those who came to the U.S. as children and have contributed positively to society. Contrary to what many critics of the program claim, DACA does not modify DREAMers’ immigration status. They remain officially undocumented, but DACA approval means that DHS agrees not to pursue removal action against them as long as they maintain that approval.

As of June 15, 2012, individuals who may qualify for DACA were under the age of 31, had no lawful immigration status, and were physically present in the U.S. They must have arrived in the U.S. before their sixteenth birthdays and have resided in the U.S. continuously since June 15, 2007. They must not have any felony or serious misdemeanor convictions, fewer than three minor misdemeanor convictions, and no concerns regarding national security. Finally, they must be enrolled in school and have a high school diploma or GED, or an honorable discharge from the United States Armed Forces.
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Smartphone_Bar_Code_Scanner.jpgThe Deferred Action for Childhood Arrivals (DACA) program offers a way for people who came to the United States as children, and who therefore lack legal immigration status through no fault of their own, to avoid deportation. Now in its second year, DACA continues to alleviate many young immigrants’ concerns about their status in this country, which many of them have always called their home. The criteria to qualify for relief under DACA can be complicated, with many ways a person could be excluded. Immigrant advocates have developed several tools that immigrants can use to determine if they can qualify, including a mobile app that people can use on their smartphones. Determining whether or not you are eligible for DACA, of course, is only the first step, and these tools should not be viewed as a substitute for the help of an experienced immigration attorney.

The White House announced the DACA program during the summer of 2012, after multiple unsuccessful attempts by members of Congress to pass legislation offering relief to people who entered the U.S. before a certain age and are either pursuing a college education or serving in the military. Since DACA is not based on legislation passed by Congress, but rather is an action of the Executive branch of the federal government, it cannot confer any permanent changes to a person’s immigration status. A person who is eligible for DACA may receive a two-year reprieve from removal. At the end of the two-year period, the person may apply for a renewal.

DACA relief is available to people who were age thirty or younger on June 15, 2012, who entered the U.S. at or before the age of fifteen, who have continuously resided in the U.S. since at least June 15, 2007, and who meet a variety of other criteria. The person must have either entered the U.S. without inspection, or their legal immigration status must have expired prior to June 15, 2012.
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file0001366447736.jpgAn indictment filed by the U.S. Department of Justice (DOJ) charges a New Jersey couple, who are famous for their roles on the Bravo program “The Real Housewives of New Jersey,” with multiple fraud-related offenses. United States v. Giudice, No. 2:13-cr-00495, indictment (D.N.J., Jul. 29, 2013). “Real Housewife” Teresa Giudice and her husband, Giuseppe “Joe” Giudice, are accused of defrauding multiple banks and mortgage lenders and committing fraud during a bankruptcy case. The husband is also charged with failing to file federal income tax returns for four years. Both defendants have pleaded not guilty, but the case may have further consequences for Mr. Giudice, who is reportedly not a U.S. citizen, but rather a citizen of Italy. A conviction for a fraud-related offense could result in his removal from the country, commonly known as deportation. The case highlights the sometimes tenuous grasp that immigrants have on their right to remain in this country, something that all immigrants, their families, and their employers should understand.

According to the DOJ’s indictment, the Giudices fraudulently obtained millions of dollars in loans, including mortgage and construction loans, between 2001 and 2008. They achieved this, the DOJ claims, by submitting fraudulent or falsified documents, such as tax returns and W-2 forms, which showed income or bank balances that did not exist. The indictment also alleges that the couple, during a bankruptcy case filed in 2009, concealed assets from the bankruptcy court and the trustee, and made false statements to the court and the trustee. Finally, the indictment accuses Mr. Giudice of failing to file federal income tax returns, despite allegedly having taxable income, for the calendar years 2004 through 2008. The indictment lists thirty-nine total counts, including bank fraud, loan application fraud, and bankruptcy fraud.

Federal immigration law identifies a range of criminal offenses for which a conviction would make an immigrant, including a lawful permanent resident, deportable. A conviction for a single count of a “crime of moral turpitude” can result in deportation, provided that the conviction occur within five years of the immigrant’s admission to the U.S., and that the underlying crime carry a possible sentence of one year or more. 8 U.S.C. § 1227(a)(2)(A)(i). If an immigrant has more than one conviction for offenses involving moral turpitude, however, the government may seek to deport them no matter when the convictions occur. 8 U.S.C. § 1227(a)(2)(A)(ii).
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2505997_761e2a76_01092012.jpgLorene Turner spent hours on the internet trying to find her missing granddaughter, 14 year-old Jakadrien Turner. She says she always remained hopeful that she would find Jakadrien, but she probably never expected to find her in Colombia. In a bizarre saga stretching out for more than a year, an African-American teenager from Dallas, Texas who speaks no Spanish found herself in the custody of immigration authorities being deported to South America. The Colombian government held her in detention for several weeks, and she reportedly headed home on January 6.

Jakadrien ran away from home in the fall of 2010. Her parents had recently divorced and her grandfather had died, and she was distraught. She made her way to Houston, where she was arrested for shoplifting in April 2011. She gave a fake name to police, which turned out to belong to a 22 year-old undocumented Colombian immigrant with multiple arrest warrants. Police turned her over to the custody of Immigration and Customs Enforcement (ICE), who apparently never verified her identity. They subsequently deported her to Colombia.

With help from police, Lorene Turner finally tracked Jakadrien to Colombia through Facebook messages from her. Jakadrien was apparently working as a cleaner in someone’s home. U.S. officials asked Colombian police to pick her up and take her to the American embassy. Instead, police took her to a detention facility. She reportedly remained there for at least a month.

This case raises many questions, and perhaps the most glaring question is how immigration officials could mistake a 14 year-old American who speaks no Spanish for a 22 year-old Colombian national. No details are available as to exactly how Jakadrien’s deportation case proceeded, but the unfortunate truth is that detention of American citizens by ICE is not at all uncommon.

American citizens have found themselves detained for days or even weeks because of mistaken identity or an incorrect entry in one of the many databases used by ICE and the Department of Homeland Security. ICE issued a statement saying it “takes these allegations very seriously” and promising to conduct a full investigation. An ICE official speaking to Dallas’ WFAA News also noted that people sometimes provide false information to ICE for “ulterior motives.” The official did not make it clear how such an accusation applies to Jakadrien’s case.
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657696_55005379_01072012.jpgThe U.S. Supreme Court issued an historic rebuke to the Board of Immigration Appeals (BIA) last week over standards the BIA applies in certain deportation proceedings. Justice Elena Kagan, writing for a unanimous court in Judulang v. Holder, held that the standards make no sense: “We must reverse an agency policy when we cannot discern a reason for it.” The ruling confirms something immigration lawyers have known for years, and hopefully it will cause the BIA to apply more consistent standards in the future.

At issue was the applicability of a type of waiver that “excludable” immigrants could request from the Attorney General. “Excludability” or “inadmissibility,” briefly stated, refers to an immigrant found to have never had legal status to enter the U.S., while deportability describes an immigrant whose legal immigration status is stripped by a court. The Immigration and Nationality Act (INA) sets out separate, sometimes overlapping, grounds for excludability and deportability.

Joel Judulang appealed his deportation order after the BIA held that he was not entitled to a waiver. He had come to the United States from the Phillipines as a child in 1974, and has resided here since then. He was charged as an accessory to a homicide and pleaded guilty to manslaughter in 1988. He later pleaded guilty to a theft-related crime in 2005, at which time the Department of Homeland Security (DHS) began deportation proceedings. DHS argued that the manslaughter conviction made Judulang deportable, as it fit the definition of an “aggravated felony” involving a “crime of violence.” The immigration court ordered him deported, and the BIA affirmed.

Judulang argued that he should qualify for a waiver under section 212(c) of the Immigration and Nationality Act. That section allowed people found to be excludable to request a waiver from the Attorney General. The BIA is an agency of the U.S. Department of Justice and is empowered to make or review decisions on granting 212(c) relief. The BIA has held for years that 212(c) also applies in deportation cases. Congress repealed 212(c) in 1996, but it still applies in cases, like this one, where the criminal offense leading to deportation occurred before 1996. The BIA has long applied a standard it calls “comparable grounds,” meaning that a deportable immigrant may only qualify for 212(c) relief if their particular ground for deportation has a similar counterpart in the list of grounds for excludablity. This is the standard challenged by Judulang and addressed by the Supreme Court.
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bay 5451New Jersey police and prosecutors are standing up for Charbel Chehoud, a 40 year-old Lebanese immigrant facing imminent deportation, saying that his help in solving a murder case was crucial and should entitle him to remain in the United States. Federal immigration officials do not agree, arguing that Chehoud has physically resisted previous deportation efforts, the New York Daily News reports. Chehoud, who is engaged to a U.S. citizen, is detained at the Essex County Jail and is currently awaiting an appeal.

Chehoud helped law enforcement solve the 1999 murder of Michael Augulis, who drowned on a fishing trip when two men, who knew he could not swim, threw him into Sandy Hook Bay. The case was originally ruled an accident. Chehoud had no involvement in the incident and did not know the victim. In 2006, one of the men who had been on the boat, a former co-worker of Chehoud, told Chehoud what had happened. According to Chehoud, the people on the boat that day had “sworn to secrecy,” but the man had to get it off his chest. Chehoud went to police with the information, who proceeded to arrest the two men. They pleaded guilty to manslaughter. Had Chehoud not come forward, police say, the case would have remained an “accident.”

Chehoud was born in Lebanon and moved to Germany when he was five years old. He came to the United States in 1989. Once here, he applied for asylum for fear of religious-based persecution (Chehoud is a Christian) and married a U.S. citizen. Chehoud’s marriage ended before he could obtain legal permanent residence. A judge ruled against his asylum claim and ordered him deported. Law enforcement officials in Monmouth County involved in the Augulis murder case have come forward to ask immigration officials not to deport him. Police in Jersey City have requested a witness visa for Chehoud. Chehoud’s attorney has asked for Chehoud’s release so he may finalize his divorce and marry his fiancee. He has an appeal pending, but that will not stop immigration officials from deporting him if they decide to.

Immigration and Customs Enforcement (ICE) agents allege that Chehoud has physically resisted deportation on five separate occasions. They describe his conduct as “physically and verbally disruptive.” ICE’s policy is to prioritize deportation of people who “obstruct immigration controls.” An ICE spokesman claims Chehoud assaulted an ICE officer last week. Chehoud argues that deportation would be the end of his chances to stay here, saying that “you can’t fight it from the outside.”
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New York and New Jersey lawmakers introduced a bill in Congress last week that would help a group of Indonesians remain legally in New Jersey, where they have lived under a conditional agreement with the federal government for years. About seventy Indonesian immigrants recently received deportation letters from Immigration and Customs Enforcement (ICE), according to the Wall Street Journal. The ICE letters either warn the immigrants of the agency’s intent to deport them, or they explicitly instruct them to come to the nearest ICE office with a one-way ticket to Indonesia. The immigrants have lived in a sort of legal gray area for years, lacking official immigrant status. The proposed legislation, the Indonesian Family Refugee Protection Act, would allow Indonesians meeting certain criteria to reapply for asylum, which could give them a chance at full legal permanent residence.

Most of the affected individuals are Christians who came to the United States in the late 1990’s. They were fleeing from instability and religious persecution in Indonesia, which has the world’s largest Muslim population and a history of political and economic upheavals. They mostly came on tourist visas and were able to get work authorization and Social Security numbers. They largely settled in New Jersey, but communities also formed in New York and New Hampshire.

These Indonesian immigrants have truly settled in the United States. They have jobs, they pay taxes, and they have U.S.-born, and therefore U.S. citizen, children. Many applied for asylum, but the applications were denied as untimely. In 2003, federal authorities implemented a program in response to the terror attacks of September 11, 2001, that required adult males from fifteen countries with large Muslim populations to register with the government. The immigrants complied with this requirement. Then, in 2006, ICE began deporting Indonesians.

A minister in Highland Park, Rev. Seth Kaper-Dale, intervened on behalf of a group who sought refuge in his church. Immigration authorities agreed to allow “conditional supervision” of the Indonesians. This allowed them to continue living and working in the United States while they “tried to sort out their paperwork.” This is the legal gray area under which they have lived for years.

The deportation letters started coming several months after the Obama administration announced a new policy of “prosecutorial discretion,” under which it will focus its efforts on deporting individuals with criminal convictions and those who pose a clear threat to national security. It is not clear what prompted ICE to send the letters out now, but the Indonesians affected by the letters do not appear to fit the profile covered by the White House’s new policy. They now face the prospect of leaving the homes they’ve know for over a decade and their U.S. citizen children.
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