San Bernardino County Sheriff to Partner with ICE in Immigration Enforcement

September 27, 2013 - According to an article in the Press Enterprise, the San Bernardino County Board of Supervisors approved, without debate, a controversial program wherein the San Bernardino Sheriff's Department will receive training in immigration enforcement from the US Immigration and Custom's Enforcement agency, commonly known as ICE. Under ICE's 287(g) program, state and local law enforcement enter into a partnership with ICE under a joint memorandum of agreement and receive delegated authority from the federal government for immigration enforcement within their jurisdictions.

San Bernardino County is one of only 35 or so law enforcement agencies nationwide that participate in the program. Sheriff's Deputies will receive training on how to determine whether any of their inmates are in the US illegally. The San Bernardino Sheriff's Department already participates in ICE's "Secure Communities" program, which screens the fingerprints of all incoming inmates through a federal immigration database. However, those who recently entered the country illegally or who have had no prior contact with law enforcement, would not show up in the Secure Communities database. Hence, 287(g) proponents advocate its use as another tool in apprehending those who are in the country illegally.

Already, nine San Bernardino County Sheriff's Department employees have received ICE training on conducting immigration interviews with potential immigration violators who enter the county jail system. Opponents of the program say that the 287(g) program unfairly singles out Hispanics for extra scrutiny and makes no distinction between lower level crimes and felonies. Opponents also state that programs such as these diminish the community's trust in law enforcement, especially when they see local law enforcement collaborate with ICE.

The Riverside County Sheriff's Department, whose agreement with ICE ended July 22, has yet to make a decision on whether to enter a new 287(g) agreement with ICE, and as such, has stopped conducting immigration interviews at their jails.

In the world of removal (deportation) defense, convictions for certain crimes can carry severe immigration consequences, with many crimes making one removable (deportable). It is therefore essential to consult with an immigration attorney the moment you or a loved one are arrested for most any crime. For example, a simple plea down to battery can avoid the deportation consequences associated with domestic violence, a removable offense per INA 237(a)(2)(E)(i). Only an Orange County immigration attorney who has the experience and familiarity with the immigration consequences of state criminal law should be trusted to handle a criminal matter for those aliens, documented or undocumented, given the extreme outcomes of certain convictions.

If you or a loved one has been arrested or is in immigration proceedings, contact an Orange County Immigration Lawyer at 949-440-3240 to speak with a licensed attorney about your immigration or criminal matter.

To read the Press Enterprise article, click on the link below.

http://blog.pe.com/multicultural-empire/2013/09/25/immigration-san-bernardino-county-sheriff-renews-287g-agreement/

BREAKING: CALIFORNIA TO ISSUE DRIVERS LICENSES TO UNDOCUMENTED IMMIGRANTS

September 14, 2013: The California legislature on Thursday passed a bill that would allow almost two million undocumented immigrants to receive their drivers licenses. Governor Jerry Brown late Thursday has indicated he would sign the bill into law. By passing this law, California becomes joins only a handful of states, 10 currently, that issue drivers licenses to undocumented immigrants. The new licenses will have special features that distinguish these licenses from others. Among the new features will be recognizable wording indicating that the ID is for "driving privileges" and not a traditional license. Also included will be a notice stating "this card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits." Critics of the new features have warned it could lead to discrimination and spur an increase in deportation. While that remains to be seen, the new law has led many vocal critics of immigration reform to cry that the new law is akin to "quasi amnesty". Proponents of the bill, while somewhat dismayed by the new security features, are nevertheless pleased that undocumented immigrants will no longer drive in fear of having their cars impounded upon a traffic stop and believe it will lead to a higher level of cooperation now between those here unlawfully and law enforcement personnel. Keep in mind, this license will only be issued upon successful completion of a written and driving test.

While a victory for immigration reform activists, this new law could have the unintended consequence of increasing deportations. If you or someone you know is in deportation proceedings, contact an Orange County Immigration Lawyer to see if relief from deportation is available to you. Call 949-440-3240 to speak to an immigration attorney.

DUIs and Immigration

September 11, 2013: DUIs (Driving Under the Influence of alcohol and/or drugs) are perhaps the nation's most common criminal offense. Many people from all walks of life - rich, poor, educated, young, old, Hispanic, Asian, you name it - have been convicted of DUIs. It's no wonder then that aspiring immigrants, or those already in the United States as nonimmigrants, undocumented, or lawful permanent residents ("Green Card" holders), are routinely faced with having to deal with DUIs in an immigration law context. So this week's post will focus on this how DUIs impact one's immigration status or application for immigration benefits.

DUIs, at least in the world of immigration law and according to the Board of Immigration Appeals and various federal appellate courts, are not "crimes involving moral turpitude" (also known as "CIMT's" and is defined as "conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between persons or society in general. See Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994)." Fraud, theft, embezzlement, forgery are typical CIMTs. Further, simple DUIs (no injury or death to others) are not aggravated felonies for immigration purposes. And numbers don't matter either, whether it's a1st, 2nd, or 3rd DUI, so long as the maximum sentence and time served for the DUI does not exceed one year, then the DUI will not be considered an aggravated felony (perhaps the harshest classification of a crime for immigration purposes, and one in which there is very limited form of relief from deportation).

So if a DUI is not a crime involving moral turpitude or an aggravated felony in an immigration context, what impact does it have? Well, the Obama Administration's "Deferred Action of Early Childhood Arrivals" or "DACA" program, wherein if a person came to the US before age 16 (either lawfully or unlawfully) and then graduates high school and has lived in the US for the previous 5 years (among other things), specifically states that applicants who have 3 or more misdemeanors, a felony, or a "significant misdemeanor" will not be eligible for the program. And unfortunately, a DUI is considered a "significant misdemeanor" for the DACA program, which provides undocumented immigrants a "stay of deportation".

A second area of concern for immigrants who have DUIs is a closely related crime to DUIs. In California, this crime is VC14601.2(a). 14601.2(a) is "Driving When Privilege Suspended or Revoked for Driving Under the Influence, With Excessive Blood Alcohol, or When Addicted". It is routinely found for repeat DUI offenders who choose to drive knowing that their license is currently suspended or revoked and the reason for the license suspension or revocation is because of a prior DUI offense. What makes 14601.2(a) special is that in a 2009 9th Circuit Court of Appeals decision, that court held that when DUI offenses are committed with the knowledge that one's drivers license has been suspended or otherwise restricted, that crime is a crime involving moral turpitude. See Marmolejo-Campos v. Holder, 558 F.3d. 903, 909-12 (9th Cir. 2009). And one need only look to sections 212 and 237 of the INA (Immigration and Nationality Act) to see that one CIMT makes a person inadmissible (not allowed into the country), and either one CIMT where the sentence imposed is > one year within 5 years of admission or two CIMTs at any time after entering the US, makes a person deportable. Suffice to say, CIMTs are very serious offenses for immigration purposes.

As criminal defense and immigration are so intertwined, this office routinely handles both Orange County DUI offenses and, of course, immigration matters. If you or a loved one is being charged with a DUI, especially immigrants who are repeat DUI offenders and those immigrants who drove on suspended licenses and got charged with a DUI, it is imperative that you speak to an Orange County DUI Attorney, one who has a vast knowledge of immigration law, to prevent you from having a crime involving moral turpitude appear on your record and possible subject you to exclusion and/or deportation. If you need to speak about DUIs, or another immigration matter, visit Orange County Immigration Lawyer Kapesh Patel's website at www.kpimmigrationlaw.com or call 949-440-3240.

Immigration Reform Talks Stalled by Syria Intervention Debate

September 4, 2013: Comprehensive immigration reform talks came to somewhat of a standstill amid talks of missile strikes and intervention in Syria. August was a busy month for advocates of immigration reform with ads and town hall meetings occurring nationwide. But as Congress prepares to end their summer recess, the hot debate in Washington is whether the United States should launch cruise missiles against the Syrian regime, led by Bashar Al Assad, in response to the purported use of chemical weapons. With committee meetings taking place in both the House and Senate, talk of immigration reform has come to a near halt. Adding to the quandary, Congress will also engage in fierce debate over  the budget and certain provisions allocated to fund the Affordable Care Act, colloquially known as "Obamacare".

So what does this mean for comprehensive immigration reform? Well a delay is obvious. What some pundits thought might be a Thanksgiving passage of some type of reform, is now looking like December or even early 2014. Immigration reform activists are likely scratching their heads over Syria, after an arguably successful August in which more Republican house members indicated their support for comprehensive immigration reform. I believe that the Syrian crisis, if mismanaged or if an attack leads to wider regional implications, could have the effect of derailing immigration reform, which (August aside) was facing an already uphill battle from House Republicans accusing the bill of providing "amnesty to illegals".

So as has been said here many times before, do not rely on any expectations of there being comprehensive (or even piecemeal) immigration reform. If you are facing an immigration matter that involves waivers of inadmissibility, deportation or removal, or are willing to sponsor loved ones (remember, the Senate bill eliminates the "brother/sister category" for green cards) who wish to immigrate to the United States, an Orange County Immigration Attorney can provide you with the best possible assistance to see that your immigration case sees a successful resolution. To learn more about immigration matters, visit www.kpimmigrationlaw.com or call 949-440-3240.

Immigration Law Basics: What is "Cancellation of Removal"?

August 27, 2013: Whenever I receive a phone call and topic revolves around "my husband is being deported, help!" or "I received an NTA (Notice to Appear) from the Department of Homeland Security, what can I do", one of my first thoughts is whether the person in question is eligible for "Cancellation of Removal". So what exactly is Cancellation of Removal? Cancellation of Removal is an immigration "benefit" if you will for those persons who are faced with removal (commonly known as deportation) from the United States before the Executive Office for Immigration Review (or immigration court).

There are two forms of Cancellation of Removal: 1) Cancellation of Removal for Certain Permanent Residents (green card holders) pursuant to Section 240A(a) of the Immigration and Nationality Act (or INA); and 2) Cancellation of Removal for Certain Non-Permanent Residents (all others) pursuant to Section 240A(b) of the INA. In many cases of removal, these may be the most viable way to remain in the United States and avoid being deported to one's country of origin. One of the best benefits of Cancellation of Removal, other than not being deported, is if you win your case and you are not a permanent resident (e.g. you win under INA 240A(b) for Non-Permanent Residents), you will also receive legal status in the United States in the form of a "Green Card".

Cancellation of Removal for Certain Permanent Residents requires that the Respondent (individual in immigration court proceedings) meet three general criteria, which are:

1. The person must have been a lawful permanent resident ("Green Card" holder) for at least 5 years;
2. Prior to being served with the Notice to Appear or committing the criminal violation that led to removal proceedings, the applicant has resided in the United States continuously for seven years after being lawfully admitted in any status; and
3. The individual has not committed an "Aggravated Felony" (which is beyond the scope of this article and will be addressed in a future post).

These are the minimum requirements in order to be eligible for Cancellation of Removal (for the Green Card holders). The immigration judge will then look to several other factors in order to determine whether the Respondent deserves a favorable exercise of discretion and is awarded the Cancellation of Removal Benefit. Those factors are, but not limited to: family ties in the United States; residence of long duration in this country; evidence of hardship to the Respondent and family if removal occurs; a solid history of employment; the existence of business and property ties; evidence of value and service to the community; proof of genuine rehabilitation; and other evidence attesting to a respondent’s good character (See e.g. Matter of C-V-T). If the applicant is awarded Cancellation of Removal, then the removal proceedings are terminated and he is allowed to remain in the United States. If not, then the individual is deported to their country of origin.

Cancellation of Removal for Certain Non-Permanent Residents is a much higher threshold to overcome and is less frequently awarded by immigration judges (perhaps owing to the difference between Green Card holders who are on a path to US Citizenship versus other non-immigrants, legal or otherwise). In order to demonstrate eligibility for this form of Cancellation of Removal (Non-Permanent Residents), the Respondent must, at a minimum, demonstrate the following eligibility criteria:

1. Must have resided in the United States for at least 10 years;
2. Has been a person of "Good Moral Character" for this period;
3. Has not committed certain criminal offenses covered under INA 212(a)(2) and INA 237(a)(2) relating to crimes involving moral turpitude, firearms offenses, controlled substance violations, aggravated felonies, among other things, and INA 237(a)(3) relating to falsifying documents; and
4. Removal would result in "exceptional and extremely unusual" hardship to a qualifying United States citizen or Lawful Permanent Resident spouse, child, or parent.

As one can see, even if you avoid the criminal barriers to Cancellation of Removal (which are far-encompassing and broad), you still need to meet residency requirements and show "exceptional and extremely unusual" hardship to qualifying immediate family members. And no, "they will miss me" or "won't be able to pay rent" won't work here. Think along the lines of an elderly family member (US Citizen or LPR) who solely depend on you for their support or a child with mental and//or physical limitations solely depending on your assistance. There are numerous other factors that the Board of Immigration Appeals (BIA) has set forth in rulings, but one thing remains: the bar is set incredibly high to show "exceptional and extremely unusual hardship".

As one can see, in addition to meeting the eligibility standards, ample amounts of supporting documentation and evidence are needed to meet the discretionary factors listed above. By consulting with and retaining an experienced Orange County immigration lawyer, you stand the best chances at winning relief for you or your loved ones case. For more information on this, or other immigration matters, call 949-440-3240 or visit Orange County Immigration Attorney Kapesh Patel at www.kpimmigrationlaw.com.

Mexican Asylum Seekers Accused of Abusing "The System"

August 13, 2013 - Senator Jeff Sessions (R-AL) has in recent days accused Mexican immigrants of abusing US immigration laws by stating they have a credible fear of persecution from drug cartels if they are forcibly returned to Mexico. A well-known critic of comprehensive immigration reform, Sen. Sessions has argued that the House of Representatives should not advance comprehensive immigration reform until this "loophole" is addressed. He said the recent surge in asylum cases originating from Mexico has "exposed another grave flaw" in federal immigration laws. Sen. Sessions added "They must use every power they have to end this absurdity. No immigration bill should advance until these abuses are ended."

Generally, when an immigrant enters the US unlawfully and is apprehended, a Customs and Border Patrol Officer will ask the person if they have a fear of persecution if returned to their home country. If so, they will have an interview with a USCIS (United States Customs and Immigration Services) officer who will make an initial "credible fear determination" to see if there is a "significant possibility" that the individual will be eligible for asylum. If so, then the immigrant will have a hearing before an immigration judge who will make the final decision on whether to grant asylum (or other associated forms of relief such as withholding of removal or the Convention against Torture). However, before they see an immigration judge, the immigrant will either be placed in a detention facility or released. Those released promise to appear for their hearing, but that is not always the case, with many just disappearing, forcing an immigration judge to order the immigrant "removed in absentia" (in effect, an order which has no real force since the immigrant is nowhere to be found). Very few Mexican nationals are found eligible for asylum, unlike say those individuals from Syria or China.

Fox News on August 13 also ran an "exclusive article" on the surge of Mexican asylum seekers. In its report, Fox News reported that some Mexican asylum seekers are being placed in $99/night hotels in the San Diego area due to overcrowding - a fact that is sure to fire up those opposed to immigration reform. The report also mentioned that illegal immigrants have recently learned that by using a few keywords - "credible fear of persecution from drug cartels" - they can extend their stay in the United States by applying for asylum and possibly being released into the community before their court dates.

Asylum seekers, who truly have valid claims, are wise to seek the advice and counsel from immigration attorneys. This office has handled numerous asylum applications and know what the immigration judges are looking for. If you have a credible (truthful) fear of persecution if returned to your home country, speak to an Orange County Immigration Lawyer at 949-440-3240 who is best positioned to determine the merits of your case and put you in the best position to be granted asylum.

Good News and Bad News for Immigration Reform

August 5, 2013 - Good news and bad news impacted immigration law last week as the nation still awaited action from the House of Representatives over comprehensive immigration reform. Let's start with the good news. Secretary of State John Kerry, while on a visit to London, England, announced that the US visa system will now treat same-sex couples the same as heterosexual couples. This would be a major development in US immigration law, which for as long as the laws have been on the books, has denied immigration benefits to gays and lesbians. Secretary Kerry said that the State Department was "tearing down an unjust and unfair barrier that for too long stood in the way of same-sex families being able to travel as a family to the United States." He went on to add that "[i]f you are the spouse of a US Citizen, your visa application will be treated equally." Just last month Secretary of Homeland Security Janet Napolitano announced that the Department of Homeland Security (which is also involved in the immigration process) would also treat same-sex couples as heterosexual ones. Kerry's announcement follows the landmark Supreme Court decision which overturned the federal Defense of Marriage Act (DOMA), effectively recognizing same-sex couples for the first time on a federal level.

Same-sex visas have been a lightning rod in the comprehensive immigration reform debate, which is the "bad news" referenced above. For seemingly months I've been reporting that comprehensive immigration reform would face a challenge in the Republican-led House of Representatives and it most certainly has. On Sunday's edition of CBS' "Face the Nation", Congressman Paul Ryan (R-WI) stated that inaction from the House of Representatives didn't necessarily mean the House did not support the Senate's immigration reform bill, just that the House would take the comprehensive immigration reform issue step-by-step. And as has been noted on this blog before, that approach is certain to encounter fierce opposition from House and Senate Democrats who want a comprehensive approach to immigration reform, as well as a path of citizenship.

With no end in sight to stalled developments in immigration reform, as well as 5 weeks of Congress' summer recess, we won't have an answer to the nation's immigration reform efforts until well into September now. And as many an undocumented immigrant knows, the Department of Homeland Security, through it's Immigration and Customs Enforcement division, is still deporting undocumented immigrants regardless of their criminal background. If you or a loved one are in removal proceedings, an Orange County Immigration Lawyer can be the only protection you have from being forcibly removed from your family and employment. Call 949-440-3240 or visit www.kpimmigrationlaw.com if you would like to speak to a licensed immigration attorney.