OC Immigration Attorney

We attended a merits hearing last week for one of our clients in Anaheim Hills. The hearing was scheduled for cancellation of removal for lawful permanent resident, and we were prepared and confident in moving forward with the case. Our client committed a minor crime almost forty years ago, but Immigration and Customs Enforcement pursued deportation several years ago. The client has lived in the US for decades and all of his family lives in the US. He has almost no family in his home country.

We were prepared to show evidence that our client was eligible for cancellation of removal and it should be granted as a matter of discretion. However, when we arrived at the hearing the government attorney notified me that they intended to move for termination. She had reviewed the file and she did not believe deportation was appropriate in this case.

My client was not forced to testify, and he and his family were pleased that this matter would be put to rest. Over the last few years, he was very stressed about this case. Although I assured him countless times that our case was very strong and I was confident we would win, the prospect of moving back to his home country and being separated from his wife and children terrified him.

Now that the case is over, he is considering naturalization so he can become a US citizen. If you or a loved one is in immigration court, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you to help you better understand the options available to you.

WASHINGTON,D.C., August 23, 2012 – Ten officers and agents for United States Immigration and Customs Enforcement (ICE) including ICE Agents Union President Chris Crane,today filed a lawsuit against Secretary of Homeland Security Janet Napolitano and Immigration and Customs Enforcement Director John Morton challenging the Obama Administration’s deferred action Directive and associated Prosecutorial Discretion Memorandum that prevent ICE officers, employees, and agents from fulfilling their sworn oath to uphold the law and defend the US Constitution.

The Directive and the earlier memorandum instruct ICE officers to refrain from placing certain aliens who are unlawfully present in the United States into removal proceedings. The Directive further instructs officers to take actions to facilitate the granting of deferred action to aliens who are unlawfully present in the United States.  The Directive, entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” also directs DHS personnel to grant employment authorization to certain beneficiaries of the Directive.

“Both the Directive and memorandum command our agents to violate federal law and our oaths to uphold federal law.  We are federal law enforcement officers who are being ordered to break the law.  This directive puts ICE agents and officers in a horrible position,” said Chris Crane, veteran ICE agent and President of the National Immigration and Customs Enforcement Council.

“The Directive is an extension of the DREAM Act, which was rejected by Congress, and aims to grant an amnesty to 1.7 million illegal aliens.  It violates federal immigration laws that require certain aliens to be placed in removal proceedings, it violates the Administrative Procedure Act, and it encroaches upon the legislative powers of Congress as defined in Article I of the United States Constitution,” said Kris Kobach, the attorney representing the plaintiffs.

“Any threat of harm to our nation’s immigration officers for enforcing the law is a threat against the livelihoods of average American workers,” said Roy Beck of NumbersUSA, the organization that is underwriting the suit. “Congress passes laws to determine how many and which citizens of other countries are allowed to enter U.S. job markets to compete with American workers.  Fortunately during this long period of high unemployment,Congress has refused to add further competition through amnesties that would give millions of illegal aliens access to the legal U.S. job market.  The Napolitano amnesty directive does the opposite.  If immigration agents are not allowed to enforce the laws as decided by Congress, the wages and jobs of American workers are at risk,” said Beck.

“This Directive not only circumvents Congress, it also infringes on the plaintiffs’ ability to fulfill the oath they made to uphold the laws of this country. The plaintiffs seek to prevent law enforcement officers from being forced to either violate federal law if they comply with the Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary,”said Kobach.

About Deferred Action for Childhood Arrivals

What is deferred action?

Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of previous or subsequent periods of unlawful presence.

Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time at the agency’s discretion.

What is deferred action for childhood arrivals?

On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.

If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?

Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?

This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?

You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years old at the time of the request. If you are under 18 years old at the time you submit your request but turn 18 while your request is pending with USCIS, you will not accrue unlawful presence while the request is pending. If your case is deferred, you will not accrue unlawful presence during the period of deferred action. Having action deferred on your case will not excuse previously accrued unlawful presence.

If my case is deferred, am I in lawful status for the period of deferral?

No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status.
There is a significant difference between “unlawful presence” and “unlawful status.” Unlawful presence refers to a period an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.)

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States.  Because you lack lawful status at the time DHS defers action in your case you remain subject to all legal restrictions and prohibitions on individuals in unlawful status.

Does deferred action provide me with a path to permanent residence status or citizenship?

No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. So, write your congressperson and demand that they pass The Dream Act!

Will my immediate relatives or dependents be considered for deferred action for childhood arrivals?

No. The new process is open only to those who satisfy the guidelines. As such, immediate relatives, including dependents of individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals (DACA) process, may not be considered for deferred action as part of this process unless they independently satisfy the guidelines.

Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?

The DACA process is only for individuals who meet the specific guidelines announced by the Secretary. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.

Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?

Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA).  Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals (DACA) process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

Does this Administration remain committed to comprehensive immigration reform?

Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.

Is passage of the DREAM Act still necessary in light of the new process?

Yes. The Secretary’s June 15th memorandum allowing certain people to request consideration for deferred action is the most recent in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.

If you are considering the DACA process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the process and your eligibility.

Department of Homeland Security announced eight items pertaining to the new deferred action plan:

In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE. Only individuals in detention will go through ICE to make a deferred action request.

Information provided as part of the deferred action request process is protected from disclosure to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS’ November 2011 NTA memo.

If a departure from the U.S. was due to removal, voluntary departure, etc., the absence was not brief, casual and innocent and would interupt the continuous residence that is required since June 15, 2007. Short absences before August 15, 2012, reasonably calculated to accomplish the purpose of the trip, would not be interuptive.

Only people who are currently not in status and were not in any lawful status on June 15, 2012 are eligible.

A “significant misdemeanor” is one for which the individual was sentenced to more than 90 days, or a conviction for domestic violence, sexual abuse, burglary, firearm violation, drug distribution or trafficking (but not possession), or DUI, regardless of the sentence.

Minor traffic offenses, such as driving without a license, are not considered misdemeanors that count toward the “3 or more” standard.

The Form I-765 will be required, along with another form that will be made available on August 14 or 15. Total fees, including biometics, will be $465. Fee waivers will not be available, but fee exemptions will be permitted in very limited circumstances, and must be requested and approved before submitting a deferred action application without a fee.

Whether a person has reached age 15, and whether the requestor meets the education requirements, will be determined as of the date the request for deferred action is filed, NOT the June 15, 2012 date.

By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against certain young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.

The following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum:

• came to the United States under the age of sixteen;
• has continuously resided in the United States for a least five years preceding the date of
this memorandum and is present in the United States on the date of this memorandum;
• is currently in school, has graduated from high school, has obtained a general education
development certificate, or is an honorably discharged veteran of the Coast Guard or
Armed Forces ofthe United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, multiple
misdemeanor offenses, or otherwise poses a threat to national security or public safety;
and
• is not above the age of thirty.

Our Nation’s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.

As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.

1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and
Immigration Services (USCIS):

• With respect to individuals who meet the above criteria, ICE and CBP should
immediately exercise their discretion, on an individual basis, in order to prevent low
priority individuals from being placed into removal proceedings or removed from the
United States.

• USCIS is instructed to implement this memorandum consistent with its existing guidance
regarding the issuance of notices to appear.

2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:

• ICE should exercise prosecutorial discretion, on an individual basis, for individuals who
meet the above criteria by deferring action for a period of two years, subject to renewal,
in order to prevent low priority individuals from being removed from the United States.

• ICE is instructed to use its Office of the Public Advocate to permit individuals who
believe they meet the above criteria to identify themselves through a clear and efficient
process.

• ICE is directed to begin implementing this process within 60 days of the date of this
memorandum.

• ICE is also instructed to immediately begin the process of deferring action against
individuals who meet the above criteria whose cases have already been identified through
the ongoing review of pending cases before the Executive Office for Immigration
Review.

3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:

• USCIS should establish a clear and efficient process for exercising prosecutorial
discretion, on an individual basis, by deferring action against individuals who meet the
above criteria and are at least 15 years old, for a period of two years, subject to renewal,
in order to prevent low priority individuals from being placed into removal proceedings
or removed from the United States.

• The USCIS process shall also be available to individuals subject to a final order of
removal regardless of their age.

• US CIS is directed to begin implementing this process within 60 days of the date of this
memorandum.

For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.

For a copy of the memorandum signed by Janet Napolitano, click here.

We recently received good news that our motion to reopen was granted. The client was ordered deported a couple years ago after her previous attorney abandoned her in immigration court. After she was ordered deported, she married a US citizen and he filed for her to obtain a green card based on the advice of a previous attorney. The I-130 visa petition was approved; however, the I-485 application to adjust status was denied because she had an outstanding removal order. The client came to me very frustrated with her experiences with other immigration attorneys. She had received bad advice numerous times.

I advised that we must first file a motion to reopen the removal proceedings before we can pursue the adjustment of status. I suggested that we contact Immigration and Customs Enforcement to seek a joint motion to reopen, and the client agreed.

I prepared the request for joint motion to reopen and provided ICE with proof that the husband had significant medical problems and would experience extreme hardship if his wife is not permitted to adjust status and remain in the United States. After some negotiations the ICE attorney agreed to the joint motion to reopen. We filed the motion with the court and the judge granted the motion.

The next step is to ask the judge to terminate proceedings so that we can adjust status through USCIS. There will be an interview and I plan to attend it to make sure the process is concluded smoothly.

If you have an outstanding removal order in Los Angeles Immigration Court, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to discuss the options available to you.

Immigration agents arrested about 200 people in Northern California and more than 3,100 nationwide in a 6-day sweep last week looking for immigrants who can be deported because they have a criminal record or ignored deportation orders.

U.S. Immigration and Customs Enforcement, or ICE, agents arrested 37 people in Santa Clara County, 18 in Alameda County and 16 in Contra Costa County as part of the 50-state “Operation Cross Check,” which ended on Thursday.

The arrests include legal and illegal immigrants who are deportable because of crimes they committed. Also arrested were immigration fugitives, who are people living in the country illegally who have ignored deportation orders. Agents also arrested more than 500 people who had illegally re-entered the United States after being deported.

About 90 percent of the people arrested nationwide had criminal convictions; 47 percent of all those arrested had felony convictions.

Of the 200 arrested in Northern California, half had convictions “for serious or violent crimes,” according to an ICE statement. The agency did not release the names of all those arrested or their crimes.

President Obama has repeatedly stated that he wants to focus resources on criminal aliens and fugitive aliens with outstanding deportation orders. Recently, he announced that he plans to halt deportations in several immigration courts nationwide in order to focus efforts on priority cases.

If you or a loved one is currently in immigration court proceedings in Los Angeles, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will help you better understand the options available to you.

The Department of Homeland Security (DHS) and Executive Office for Immigration Review (EOIR) today announced its plans to expand backdoor amnesty.  Beginning in late April, DHS will suspend all non-detained dockets for illegal immigrants in four additional jurisdictions, as it previously did in Baltimore and Denver, for two weeks.  These jurisdictions include Detroit, New Orleans, Orlando, and Seattle.  In May, DHS will partially suspend the non-detained docket in New York City and then in July, it will implement the same procedures in San Francisco and Los Angeles.

This means that DHS intends to solely focus on detained cases in these jurisdictions, meaning those who come to the attention of law enforcement.  But if the illegal or criminal immigrant bonds out of jail, they can be put on the non-detained docket and could potentially remain in the U.S.  This decision is just another part of the Obama administration’s plan to grant administrative amnesty to potentially millions of illegal immigrants.

If you or a loved one is in immigration court in Los Angeles or San Diego, contact The Nunez Firm to schedule a free consultation.

A Miami high school valedictorian who gained national attention with her fight to avoid deportation back to Colombia has been granted a two-year reprieve by federal authorities who now say that their bigger goal is going after illegal immigrants who are criminals — and not dutiful students.

Daniela Pelaez, and her sister, Dayana, were ordered to leave the country just last week by a federal immigration judge. But U.S. Immigration and Customs Enforcement on Tuesday issued a statement saying the agency would defer carrying out the court order for at least two years.

The decision, which elated many in South Florida, followed growing local protests aimed at keeping the two teens in the United States, not to mention a steady din of news coverage about the family’s plight. Several lawmakers also interceded on the girls’ behalf, including Republican congresswoman Rep. Ileana Ros-Lehtinen.

Thousands took to the streets just last week in North Miami to protest the court ruling. They held banners and chanted “Justice for Daniela.” The Miami Herald said it was the single largest immigration demonstration in the area since then-President George W. Bush proposed legalizing millions of undocumented immigrants back in 2004.

Immigration officials announced Tuesday a new public advocate tasked with tackling questions and complaints about immigration law-enforcement policies.

The Obama administration appointed Immigration and Customs Enforcement Senior Adviser Andrew Lorenzen-Strait to serve as the point person for inquiries from people – including U.S. citizens and people who are in the country illegally and in deportation proceedings.

“We want the public to know that they have a representative at this agency whose sole duty is to ensure their voice is heard and their interests are recognized, and I’m confident Andrew will serve the community well in this capacity,” ICE Director John Morton said in a written statement.

The announcement quickly drew fire from some GOP leaders.

House Judiciary Committee Chairman Lamar Smith (R-Texas) criticized the move, saying the appointment of an “in-house lobbyist for illegal immigrants” would cost taxpayers more money.

“It’s outrageous that the Obama administration has appointed a taxpayer-funded activist for illegal and criminal immigrants who are detained or ordered deported,” Smith said in a written statement. “The administration all too often acts more like a lobbying firm for illegal immigrants than as an advocate for the American people.”