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The Golden Door

News and views on immigration law

Posts Tagged ‘immigration lawyer’

Lawyers for detained immigrants

Friday, August 9th, 2013

Immigration law is a strange beast.  Immigration is usually civil law, with the penalty for violations ultimately being deportation, that is, not being permitted to stay in this country.  While certain immigration violations are classified as criminal offenses, the majority of immigration laws fall into the civil arena.

In the world of immigration enforcement, “detention” (a value-neutral way of saying “imprisonment”) of immigrants is all-too-common and devastating to the individuals detained and their families.  It is a deprivation of liberty, a penalty that we reserve for our most serious criminals, and yet it is used routinely for alleged immigration violations.  I’ve said it before on this forum, but it bears repeating:  Immigrant detainees are caught in a Catch-22 because these individuals are treated as criminals but not given the rights of the criminally accused.  We should either treat immigrants accused of violating immigration laws as being accused of civil violations, with civil penalties and only civil protections and rights, or treat these immigrants as criminal defendants, with the concomitant protections of the criminally accused.  Straddling the middle of these categories – given only civil protections but faced with criminal penalties – exacts a high toll in human suffering (for the immigrant and the immigrant’s family) and economic resources, as we lose the value of that person’s contribution to the labor market and spending in our economy, and imprisoning unauthorized immigrants costs us about $2 billion a year.

Immigrant advocates have long pointed out this inequity, and now a new pilot program in New York City, funded by City Council, aims to ameliorate at least one aspect of this problem.  The New York Immigrant Family Unity Project is a one-year program aimed at providing pro bono counsel to detained New Yorkers.  Immigrants in deportation proceedings are told by judges that they have the right to counsel, but only at no cost to the government.  For low-income immigrants in proceedings this is a hollow right.  It is meaningless when one cannot afford to pay for competent counsel, and finding a good lawyer from prison… Well, try it yourself and see how far you get.

Like all sectors of the population, immigrants include good apples and bad apples.  For immigrants found to be dangerous to the community imprisonment is appropriate.  But for those accused only of non-criminal violations of immigration law, incarceration often unnecessarily rips apart families, prevents a parent from being able to look after and provide for U.S. citizen children, removes a needed employee from work, and costs about $164 a day (that’s $59,860 a year) to house and feed that individual on the federal dime.  Think of this just in terms of the cost of foster care for children left without a parent to look after them ($36,000 a year in New York City), and you start to get an idea of the real costs of unnecessarily jailing those accused of civil immigration violations.  Having a good lawyer in this situation often makes all the difference, according to the 2011 New York Immigrant Representation Study, which found that the percentage of detained immigrants who win their immigration cases without representation is 3%.  Having a lawyer, and being free from detention, can increase the chances of success to 74%.

The estimated cost of providing competent counsel for a detained immigrant is $3,000.  If this is the cost of proving that an immigrant should not be detained while defending against a deportation action then it will save the federal government about $60,000 a year per immigrant, and save in the costs of families having to rely on public support systems because a vital breadwinner is incarcerated.

I will keep an eye out to see how this pilot program fares.  It is a step in the right direction and I wish it the best.

The Meaning of Prosecutorial Discretion

Monday, September 26th, 2011

In the last few months, there has been a shift in the tenor of prosecution of immigration removal proceedings (deportation, in not-so-euphemistic terms).  Whether this shift is merely a superficial veneer that attempts to appease immigrant advocates but signifies nothing, or is an unlawful run-around of Congress that is allowing countless undocumented immigrants off the hook depends on who you ask.

The shift began with what is now known as the Morton Memo.  John Morton, Director of Immigration and Customs Enforcement (“ICE”), has issued several official memoranda during his tenure, but this memo has such potentially wide-ranging significance to ICE personnel and undocumented immigrants that it has been dubbed the Morton Memo.  In a nutshell, Director Morton’s June 17, 2011, memo directs all ICE personnel to take into account two factors when deciding whether to place a suspected undocumented immigrant into removal proceedings:  (1) that ICE has limited resources to deport everyone who is theoretically deportable and thus must pick and choose who to deport, and (2) that in deciding who to prosecute for deportation there are specific factors that will favor putting that person in removal proceedings and specific factors that favor leaving that person alone.  This is not new policy, but it shows a newfound boldness in announcing the policy and inviting immigrants and their advocates to request favorable prosecutorial discretion, and a renewed emphasis on the importance of implementing the policy.

The Obama Administration then followed up, through a letter dated August 18, 2011, from Department of Homeland Security Secretary Janet Napolitano to Senator Dick Durbin, by announcing that a review would be conducted of ALL individuals currently in removal proceedings to determine whether they fall within DHS’s high priority categories for removal or whether they would merit the favorable exercise of discretion under the Morton Memo’s specific factors.  For the latter group, removal proceedings would be suspended.

When I was asked by WHYY reporter Elizabeth Fiedler what I tell my clients as an immigration lawyer when they ask what this policy shift means to them, I told her that, “This is not a total out.  It does not get them out of the removal situation.  It is like a suspension of an ax over their heads.”  The new policy can make a difference when an undocumented immigrant is in removal proceedings – or threatened with removal proceedings – and has not committed any crimes or otherwise shown a lack of good moral character.  The policy helps if the immigrant came as a child, and has established deep roots here, such as having U.S. citizen or legal permanent resident spouses or children, or if the immigrant have served honorably in the military or is a well-educated individual ready to contribute to society, and so on.  But the Morton Memo and the shift it represents can change with the next presidential administration, and does not grant undocumented immigrants any new rights, such as work authorization or the golden ring, a green card.

So, while the new emphasis on prosecutorial discretion is a positive development for undocumented immigrants who, aside from their undocumented status, are free of criminal histories and are just trying to build good lives for themselves and their families, this policy shift is not any kind of amnesty, and can be revoked with the next change in administration. If you have concerns regarding the policy, you should consult your immigration lawyer. Pennsylvania residents can contact Tran Law Associates.

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

U.S. citizenship abroad, by birth – update

Tuesday, July 19th, 2011

As promised, here’s the update on the client who couldn’t renew his license to carry concealed weapons because he could not produce a U.S. birth certificate even though he is a U.S. citizen by birth.

The Philadelphia Police Department’s Gun Permit Unit re-considered its position, and this gentleman has been issued his license to carry, despite not being able to produce the mythical birth certificate.

When this client first came to me, I asked him out of curiosity what he carried and he answered, almost sheepishly: “Nothing.  But I want to be able to carry if I want to.  And now, it’s about the principle of the matter.”  Principles satisfied, case closed.