Jun
2

Individuals Claiming Fear at the Border Face Tougher Standard

When a person is apprehended by immigration officials at the border, that person may be placed in expedited removal proceedings, meaning that he or she can be deported without a hearing before an immigration judge. However, if the person claims to be afraid to return to his or her home country, that person is entitled to an opportunity to explain his or her fear to an asylum officer in what is known as a “credible fear interview.” The purpose of the credible fear interview is to determine whether there is a “significant possibility” that the person could be granted asylum by an...

Nov
1

Immigration Courts Must Consider Conditional Parole as an Alternative to Bond

In recent years, Immigration Judges (“IJs”) have universally denied requests for conditional parole under section 236(a) of the Immigration and Nationality Act (“INA”). IJs countrywide read this statutory provision to mean that a minimum $1,500 bond is required for releasing a detained immigrant. As a result of this interpretation, many indigent and low-income immigrants stay locked up in detention facilities because they could not afford to pay monetary bonds. Many of these individuals do not pose any public safety concerns, and alternative release conditions would...

Nov
29

Protection against Search and Seizure in Immigration Proceedings

The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. In criminal cases, evidence discovered during an unreasonable search or seizure, such as during a warrantless arrest, can be suppressed in court. However, in civil cases, this “exclusionary rule” is generally not available.

The American legal system views immigration law proceedings civil matters. This was determined by the Supreme Court in the decision INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). Because of this, the exclusionary rule usually cannot be used by respondents in immigration...

Feb
14

When Is a Conviction a Crime of Violence - the evolving interpretation of 18 USC Section 16

Challenging the Use of 18 U.S.C. § 16(b) in Deportation Proceedings.

The Armed Career Criminal Act of 1984 (ACCA) is a federal law that provides sentence enhancements for felons in possession of a firearm, if the felon has three or more previous convictions for a “violent felony.” The term “violent felony” includes any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). This portion of the definition, known as the “residual clause,” is unique in that it is not focused on the elements of a conviction...

Mar
19

The Effect of Special Findings in Protection or Harassment Cases on Immigration Status

Most attorneys are aware that a finding of guilt in a criminal matter may create a consequence for his or her client if he or she is not a U.S. citizen.  For certain crimes, pleading guilty or being found guilty at trial will cause loss of lawful status, denial of a future application of citizenship, deportation, and/or denial of eligibility for relief from removal.  What about a judicial or administrative finding, or adjudication outside of the criminal court? This is an area that is not as clear cut, and understandably creates apprehension for both parties and attorneys. 

Whenever...

Jun
18

Where's Mommy - Planning to Help Children When a Parent Is Unavailable

All parents panic at the thought of an emergency that separates a parent from a child and leaves the child temporarily with no immediate care provider.   No parent wants the state to take responsibility for their child, or consider foster care for a temporary situation when better options exists.   This parental concern is even stronger for parents who fear contact with Immigration & Customs Enforcement or another law enforcement agency.  There are legal tools that help a parent prepare for such a scenario.  

In many cases, the period of separation is less than twenty-four hours and...

Jan
29

Deportation by Speculation - the Rise of the Reason to Believe Charge

ICE has shown lately that it is becoming more willling to use any tool at its disposal to impact a removal proceeding.   One such trend has been the  notable increase in charging under section 212(a)(2)(C)(i) of Immigration & Nationalty Act.  This charge of removal or deportation is known by its standard, a “reason to believe” that an individual is knowingly involved somehow in drug trafficking.  This legal charge gives the government a powerful tool to try to keep a person in custody and bar him or her from staying in the United States.

In the bond and detention context, it is an...

Jan
12

Second DWIs and Unexpected Ramifications – Limiting a Person’s Ability to Prove Good Moral Character

DWIs and related offenses are already offenses that have grave consequences.  These offenses impact driving authorization, insurance costs, and expose a person to heightened criminal charges in the future.  A misdemeanor will morph into a felony quickly for repeat offenders.

The consequences of DWIs are not limited to more commonly known issues, such as licensing.  DWIs are now becoming a direct threat to a person’s ability to fight to remain in the United States regardless of the size of the person’s family, hardship imposed, or other positive contributions a person has made to his...

Feb
23

Credible Fear Interviews and the Third Country Transit Rule

For individuals seeking asylum in the United States, arriving at the US border may signify the end to their physical journey; however, it also marks the beginning of a longer legal journey navigating the credible fear screening process and, more recently, the “third-country-transit asylum eligibility bar.” Think of the credible fear screening process as the key to a locked door – if the individual can obtain the key (a positive credible fear determination), then he or she can “enter” the United States and apply for protection. But, if an individual cannot obtain the key (a...