OC Immigration Attorney

On June 17, 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued two significant memoranda on the use of prosecutorial discretion in immigration matters.  Prosecutorial discretion refers to the agency’s authority to not enforce immigration laws against certain individuals and groups through deportation or removal proceedings.

The Morton Memo calls on ICE attorneys and employees to exercise prosecutorial discretion and refrain from pursuing noncitizens with close family, educational, military, or other ties in the U.S. Instead, the memo instructed them to invest the agency’s resources for people who pose a threat to public safety or national security. It also articulates the expectations for and responsibilities of ICE personnel when exercising their discretion.

Two Premises for Prosecutorial Discretion
There are two historical basis for the use of prosecutorial discretion. First, it provided a framework to use the agency’s limited financial resources wisely. ICE only has the resources to remove 400,000 aliens per year, less than four percent of the illegal alien population in the United States. Therefore, ICE policy requires priority categories of individuals ICE seeks to target for arrest and removal. Priority 1 includes aliens who pose a danger to national security or a risk to public safety. Priority 2 includes recent illegal entrants. Priority 3 includes aliens who are fugitives or otherwise obstruct immigration controls.

Secondly, it represented a compassionate and humanitarian use of law-enforcement tools. Humanitarian factors for prosecutorial discretion include older age, existence of medical or mental health condition, the presence of family in the U.S., and positive contributions to the United States.

Exercising Prosecutorial Discretion
Prosecutorial discretion can be exercised in various forms by any branch of Department of Homeland Security (DHS) in the enforcement process. For example, an office may decide not to bring charges against someone who is out of status and is otherwise in the U.S. working. After an arrest, an officer may decide not to detain a person who does not appear to be a danger or a flight risk. A DHS attorney many decide against serving the individual and the court with a Notice to Appear because he appears to be eligible for a family benefit with United States Citizenship and Immigration Services (USCIS). It is to be noted that, regardless of the way prosecutorial discretion is exercised, the act itself does not give any substantive benefit or right of action to the noncitizen.

Factors for Prosecutorial Discretion
The Morton Memo on Prosecutorial Discretion clarifies the standard for prosecutorial discretion in five ways. First, it builds upon pre-existing policies on the subject. Second, it allows ICE trial attorneys to review charging decisions by DHS employees and dismiss low-priority cases. Third, it directly addresses the role of ICE attorneys during a removal proceeding and virtues of exercising discretion in those proceedings. Fourth, it encourages ICE employees and attorneys to consider prosecutorial discretion without waiting for the alien or alien’s counsel to request favorable exercise of discretion.

Finally, the Morton Memo offers a list of 19 factors pertaining to humanitarian circumstances that should trigger favorable exercise of prosecutorial discretion, such as persons’ pursuit of education in the U.S., criminal history, immigration history, possible threat to national security or public safety, etc. Likely, the Morton Memo identifies classes or persons who warrant “particular care” when making prosecutorial decisions, such as veterans and members of U.S. armed forces, long-time lawful permanent residents, minors and the elderly, pregnant or nursing women, victims of domestic violence, handicapped individuals, etc.

If you or a loved one are in immigration court proceedings, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to discuss your options and whether we might be able to help you.

Immigration officials will soon have 1,300 additional beds to house detained aliens in Southern California who are suspected of being in the country illegally, according to news reports.

Immigration and Customs Enforcement (“ICE”) officials announced an agreement to set up a detention center in Adelanto to create more bed space, The Associated Press reported. Adelanto is northeast of Orange County.

The latest move is part of an effort by immigration authorities to create more detention space in a region where there is a high demand for detention space.

Last year, immigration officials reached an agreement with Orange County to house about 830 immigration detainees at the Theo Lacy Facility in Orange and James A. Musick Facility near Irvine.

The agreement made Orange County a vital partner in providing detention space for ICE detainees, officials said. Santa Ana has contracted with ICE, providing 200 beds annually since 2006.

If you have a loved one being detained in Theo Lacy or the Musick Facility, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to discuss your case and the options available to you.

California reached a milestone late last month when federal immigration officials quietly announced that all 58 counties in the state are now participating in Secure Communities, a controversial program created to track and deport dangerous criminals.

Unveiled in late 2008, Secure Communities is billed as a showpiece of immigration enforcement. Under the Immigration and Customs Enforcement program, state and local police must check the immigration status of people who have been arrested and booked into local jails by matching fingerprints against federal databases for criminal convictions and deportation orders.

But today, Secure Communities is mired in problems. About 60% of the 87,534 immigrants deported under the program had minor or no criminal convictions, according to the U.S. Department of Homeland Security’s statistics, even though the program was aimed at dangerous criminals.

Moreover, state and local law enforcement agencies are growing increasingly uneasy about participating in a program that they say thwarts their ability to work with communities with large immigrant populations. Police are concerned that taking on the role of enforcer makes it more difficult to build trust in immigrant communities that are already fearful of reporting crimes or providing crucial information. A report released last week by the Police Executive Research Forum, a Washington-based research group, found that police chiefs across the nation worry that checking suspects’ backgrounds against databases that include immigration warrants is blurring the lines between public safety and immigration enforcement.

The Department of Homeland Security is reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records.

According to Richard Rocha, an Immigration and Customs Enforcement spokesman, the review is part of the agency’s broader, nationwide strategy to prioritize the deportations of illegal immigrants who pose a threat to national security and public safety. Rocha declined to provide further details.

Critics assailed the plan as another sign that the Obama administration is trying to create a kind of backdoor “amnesty” program. An immigration attorney who was briefed on the effort by Homeland Security’s deputy chief counsel in Houston, said DHS confirmed that it’s reviewing cases nationwide, though not yet to the pace of the local office. However, they are following general guidelines that allow for the dismissal of cases for defendants who have been in the country for two or more years and have no felony convictions. In some instances, defendants can have one misdemeanor conviction, but it cannot involve a DWI, family violence or sexual crime.

Opponents of illegal immigration were critical of the dismissals. However, immigrants who have had their cases terminated are frequently left in limbo, and are not granted any form of legal status. These illegal immigrants still have no work permits and Social Security Numbers. ICE is not going to proceed with their removal from the United States. However, they are still here illegally.

In a June 30 memo, ICE Assistant Secretary John Morton outlined the agency’s priorities, saying it had the capacity to remove about 400,000 illegal immigrants annually. The memo outlines priorities for the detention and removal system, putting criminals and threats to national security at the top of the list. Recently, ICE officials provided a copy of a new policy memo from Morton dated Aug. 20 that instructs government attorneys to review the court cases of people with pending applications to adjust status based on their relation to a U.S. citizen. Morton estimates in the memo that the effort could affect up to 17,000 cases.

Records show that about 47,000 people have been removed or deported from the U.S. after the Homeland Security Department sifted through 3 million sets of fingerprints taken from bookings at local jails.

Additionally, according to government data obtained by immigration advocacy groups that have filed a lawsuit, about one quarter of those deported from the U.S. did not have criminal records. At issue is a fingerprint-sharing program known as Secure Communities that the government claims to be focused on getting rid of the “worst of the worst” criminal immigrants from the U.S.

However, Immigration and Customs Enforcement (ICE) who divides crimes into three categories, with Level 1 being the most serious, has mostly deported committed Level 2 or 3 crimes and non-criminals.

Peter Markowitz, director of the Immigration Justice Clinic at Benjamin N. Cardozo School of Law in New York, said that ICE has pulled a bait and switch, with local law enforcement spending more time and resources facilitating the deportations of bus boys and gardeners than murderers and rapist.

Furthermore, Markowitz’s clinic, the National Day Laborer Organizers Network and the Center for Constitutional Rights had requested and sued for the statistics. Immigration and Customs Enforcement released some of the documents late Monday.

Richard Rocha, an Immigration and Customs Enforcement spokesman, said non-criminals still may be people who have failed to show up for deportation hearings, who recently crossed the border illegally or who re-entered the country after deportation. He also said it’s important to remember that more people commit crimes that are considered Level 2 and 3, and that Secure Communities is beneficial for ICE, state and local law enforcement; helping to identify and remove convicted criminal aliens not only from the communities, but also from the country.

The Obama administration wants Secure Communities operating nationwide by 2013.

As of Aug. 3rd, 494 counties and local and state agencies in 27 states were sharing fingerprints from jail bookings through the program.

From October 2008 through June of this year, 46,929 people identified through Secure Communities were removed from the U.S., the documents show. Of those, 12,293 were considered non-criminals.

On March 12, while Leslie Cocche stood at the Fort Lauderdale Tri-Rail station awaiting the train to Miami, where she attends College, a U.S. Border Patrol agent suddenly began questioning her, and eventually discovered that the 18-year-old Peruvian was in the country illegally. Cocche then was arrested, handcuffed and handed over for deportation proceedings.

In contrast to the controversial Arizona state law that would allow police officers to request immigration papers from individuals, federal immigration agents are allowed to demand documents from any foreign national at any time.

Even after Homeland Security said that immigration authorities would focus on removing convicted foreign criminals, apparently the situation has not changed much.

Officials of U.S. Immigration and Customs Enforcement (ICE), the Homeland Security agency in charge of deportations, acknowledge that deportations of noncriminal immigration-law violators are continuing, but say the agency now views them as “low-priority.”

However, figures from Oct. 1 to June 7 show that the number of criminal and noncriminal removals are almost even. The number of noncriminal removals still exceeds that of criminal deportations, but only by 257 people.

According to Cheryl Little, executive director of the Miami-based Florida Immigrant Advocacy Center, the ICE definition of criminal includes people found guilty of minor violations, such as expired driver’s license and illegal entry into the United States.

The Cocche case is particularly galling to immigrant rights advocates because she is in the country not by choice but because her parents brought her here when she was a child and legislation repeatedly introduced in Congress as the DREAM Act would grant young undocumented students green cards.

The U.S. Border Patrol’s assistant chief patrol agent for the Miami Sector, stated that she was found to be illegally in the US, arrested and placed in removal proceedings. Subsequently, her sister and parents were placed in deportation proceedings as well.

Cocche was detained for 11 days and eventually released with the promise that she and her family would report later to immigration court in Miami.

If they lose their case they could all be deported.

The US Supreme Court released its opinion on Padilla v. Kentucky today. The Court held that criminal defense attorneys have a duty to correctly advise alien defendants of the deportation consequences associated with pleading guilty to a charged crime. The Court pointed out that the deportation consequences for some criminal charges might be unclear or uncertain, and, in those situations, the criminal defense attorneys’ duty to inform was more limited. However, the Court stated “when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”

The Padilla Court expressly struck down the argument that criminal defense attorneys should only be dubbed ineffective if the affirmative advice given is incorrect. The Padilla Court stated that “it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available.”  

Additionally, the Supreme Court stated that deportation cannot be considered a collateral consequence of a guilty plea.

This case is important because many aliens with lawful permanent resident status plead guilty to criminal charges without realizing that they will be deported if they plead guilty. Many aliens do not realize that negotiating with the District Attorney and making minor changes to the plea agreement can prevent the alien from being deported or keep certain relief options, such as cancellation of removal, available.

This case will likely make it easier for many criminal aliens to reopen their criminal proceedings in an attempt to change their convictions and pleas.

If you are currently an alien in criminal proceedings, you should talk to an experienced immigration attorney about the immigration consequences resulting from a guilty plea. Contact The Nunez Firm to discuss your case. Managing attorney Jay Nunez will personally speak with you about your situation and options.

An Orange County client that was detained in the Otay Mesa CCA detention facility in Eastern San Diego was granted cancellation of removal on Friday afternoon.

He was originally detained in September 2009 after his second conviction for a crime involving moral turpitude. Although he was eligible for removal and placed in deportation proceedings, he was eligible for cancellation of removal if we could convince the judge that he deserved to stay in the United States.

My client is a lawful permanent resident for over 40 years and since the age of six. His entire family is in the United States, and he has only visited his home country of Jordan on two occasions. Despite his criminal convictions, he is an upstanding member of his community known for being an excellent carpenter and always willing to help his friends and family when they are in need.

The judge agreed that my client deserved cancellation of removal and even stated that he was the most sincere and remorseful respondent she had ever come across. The government attorney echoed the judge’s statements.

In cancellation of removal cases, the judge weighs several factors when deciding whether to grant or deny the application. Respondents should show remorse for any crimes committed and hold themselves responsible for their convictions. If a respondent tries to convince the judge that the conviction was not his/her fault, the judge is not likely to grant the cancellation application.

If you are currently facing deportation and wish to discuss your case and the possibility of cancellation of removal, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will discuss your case thoroughly and help you understand your situation.

In U.S. v. Grageda, the Ninth Circuit held that a conviction under California Penal Code 245(a)(1) (Assault with a deadly weapon) is categorically a crime of violence as defined by Federal Sentencing Guidelines 2L1.2, which the Ninth Circuit held uses “materially” the same language as Section 16(a), which is the provision cited in the crime of violence definition cited in INA 101(a)(43)(F). The Ninth Circuit rejected an argument that California Penal Code 245(a)(1) is a general intent crime in which the “least touching” is sufficient to sustain a conviction.

If you or a loved one has been convicted of a crime and now face deportation or removal proceedings, contact The Nunez Firm to discuss your case during a free and confidential consultation.

A client detained in Lancaster’s Mira Loma Detention Center had his cancellation of removal application granted today. He had criminal convictions, which made him deportable; however, cancellation of removal was available because he had the required number of years as a legal permanent resident in the United States, and his criminal convictions were not aggravated felonies.

In a cancellation of removal case, the judge weighs positive factors against the negative factors. Positive factors include family in the US, military service, ownership of real estate or a business, extreme hardship to family members if deportation occurs, and others. Negative factors include nature of criminal convictions, immigration violations and other evidence of bad moral character.

In this case, my client had extensive family in the United States including his wife and two young daughters. His criminal convictions were not very serious and they occurred many years ago. For the last four years, he has not had any problems with the law. His wife and children would experience a great deal of hardship if he were deported to Mexico, because he was the sole source of income.  He has been given a second chance to stay in the United States with his family. I wish him and his family the best of luck.

If you or your loved one is in deportation proceedings or detention, The Nunez Firm can help you. Call for a free and confidential consultation.