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On September 5, 2017, President Trump announced that he was ending DACA . . . sort of.  Its true, DACA, formally known as Deferred Action for Childhood Arrivals, is ending as we have known it since 2012 when President Obama created the program.  However, its important to remember, the program is not ending immediately for people who already have DACA or who have already applied for DACA for the first time.  If you have already applied for DACA, or applied to renew your DACA, or have DACA, today’s announcement does not effect you immediately.  But that doesn’t mean you have nothing to worry about.

Today’s announcement immediately stops anyone who does not already have DACA from applying for it.  It also stops anyone who has DACA from applying for advanced parole, which is a benefit that allows people without a lawful immigration status to leave the U.S. and return without a visa.  Advanced parole is important for DACA recipients for two important reasons, 1) people without status in the U.S. cannot usually travel abroad and return to the country legally without advanced parole and 2) once a DACA recipient travels outside of the country and returns on advanced parole, they may be eligible to apply for adjustment of status through a family member when they were not eligible previously because they had entered the country without inspection and admission or parole.

If you have DACA, or have already applied for DACA for the first time, it is important to know how today’s announcement affects you and what you can do to protect your immigration status.

Recently, memos have surfaced that the Trump administration is working to expand the use of Expedited Removal in an effort to become tougher on immigration enforcement. This is bad news for anyone in the United States who doesn’t carry around their U.S. birth certificate, passport, or green card at all times. This is really bad news for anyone who entered the country without inspection or valid immigration documents less than three months ago.

What is Expedited Removal?

Expedited Removal is a way that immigration officers can detain and order someone removed from the United States without taking them before an Immigration Judge. This is one of many “alternatives to removal proceedings” that the government can use to obtain an order of removal against a non-citizen while trying to keep them out of court.

The government is deporting people at a record rate.  The current administration has said that it is focused on “bad hombres,” but people who have been here for many years with no criminal convictions are being targeted as well as those with criminal charges.  There are things that can be done to protect yourself or those you love from deportation.  Here is a list of some of the more common ways:

1. Become A U.S. Citizen – So many lawful permanent residents (greencard holders) put off becoming a United States citizen for a variety of reasons.  Whether they don’t want to pay the fee or go through the administrative process or study for the test or renounce their loyalty to their country of birth, they put off becoming citizens. This is a mistake.  Once you become a United States citizen, you can disregard the Immigration and Nationality Act.  This means that you can come to and go from the United States as any other U.S. citizen does.  This means that if you are ever convicted of a minor crime, you would not be deportable.  This means that you would not have to deal with the hassle and uncertainty of being inspected by Customs and Border Protection agents in the same way as non-citizens, including random secondary inspections.  If you wanted to reside outside the United States with the option of coming back, you could do this as a United States citizen.  You may be able to apply for your non-citizen relative or help keep that relative from being deported, if you are a U.S. citizen.  The naturalization process takes several months and often times it can be too late for people to apply when they need it.  For example, if you are arrested for battery, minor drug possession, theft, criminal mischief, fraud, or any other criminal charge, it could prevent you from applying for citizenship for 5 years, and sometimes forever.  Or even worse, it could be a basis for deportation, no matter how long you have lived in the United States and been a lawful permanent resident.  The immigration laws are complicated.  Do yourself a favor and become a U.S. citizen as quickly as possible.
2. File a Petition – In some cases, you may be able to file a Petition on behalf of your non-citizen spouse or other family member, even if they are here without authorization.  For example, a spouse of a person who came into the United States without authorization may be able to file a petition and that person may be able to file a provisional waiver to excuse their unlawful presence in the U.S. An approved petition alone could help if the person is placed in removal proceedings or taken into custody by ICE.  The immigration laws are designed to be more forgiving of certain immigration violations if the person is an immediate relative of a U.S. citizen.  Filing a petition may or may not be beneficial in your case.  Consult with an immigration attorney to see whether it would help or hurt you or your loved one.

In a recent decision affecting Florida, the Eleventh Circuit Court of Appeals held that a conviction under Florida Statute §893.13(1)(a) for Sale or Delivery of a Controlled Substance is not necessarily an Aggravated Felony for immigration purposes.  In Lannie Gordon v. United States Attorney General, Case 15-13846, the Court held that a conviction under Florida Statute §893.13(1)(a) will serve as an Aggravated Felony only if the conviction included “unlawful trading or dealing,” which in turn requires commercial conduct.  It is irrelevant what the police allege happened or even what did actually happen.  The court can only look to the “record of conviction” to determine whether there was “unlawful trading or dealing.”  Therefore, as in Mr. Gordon’s case, even though he actually sold marijuana in exchange for money, the Eleventh Circuit held that because he pled to “sale or delivery,” the conviction could not serve as an aggravated felony.  Had the record of conviction been more specific and omitted “or delivery,” then the conviction would have served as an Aggravated Felony.

So, when a non-U.S. citizen is convicted under Florida Statute §893.13(1)(a) and an immigration judge is deciding whether that conviction is an Aggravated Felony, the immigration judge should look to determine under which portion of the Florida statute the person was convicted. Florida Statute §893.13(1)(a) makes it illegal to:

1. Sell

A little used provision of the Immigration and Nationality Act may be making a lot of noise during the Trump administration.  Attorney General Jeff Sessions has sent a memo to Assistant United States Attorneys nationwide asking them to start requesting Judicial Orders of Removal in federal criminal cases involving non-United States citizens.  The effect of these requests would be to place the federal district judge, who may not be familiar with immigration issues, in the seat of an administrative immigration judge.  The federal judge who presides over the criminal case would determine whether the person was deportable and whether there were any forms of relief available to the person.  If the judge determines that the person is deportable and no form of relief is warranted, the district judge would order the removal of that person and there would be no further immigration proceedings.  That means, the non-citizen would never go before an actual immigration judge.

An inherent problem within this process is the lack of statutory or regulatory guidance for the process.  What is the burden of proof?  How strictly are the rules of evidence construed?  Will these hearings (presumably held within the criminal sentencing hearing) look like the immigration individual hearing equivalent?  The Department of Justice has previously issued guidance to its Assistant United States Attorneys suggesting that legislative changes should be made to provide more guidance for how these proceedings should be conducted.

Should the Assistant U.S. Attorneys start to pursue judicial orders of removal on a regular basis, federal criminal defense attorneys will have to make a choice between fully immersing themselves in learning immigration law and deportation defense, or probably more wisely, employing outside immigration counsel experienced in removal/deportation defense.  This is even more important in the federal criminal courtroom context because lawyers will have to educate federal judges who have no experience handling deportation cases.

Many potential clients who call our office ask this question:  Why do I need to pay for a consultation with your immigration attorney?  There are two easy answers to that question.  First you get what you pay for.  And second, an attorney’s time and knowledge are what they have to offer to a client.  If an immigration attorney is willing to do a comprehensive telephonic or in-person consultation on every immigration case for free, that may not be the attorney you want to handle your case.

There are exceptions to this rule; low or no-cost organizations, legal aid, Catholic Charities and other places may offer free consultations and they can still provide quality legal services.  There are also certain types of cases that an immigration attorney may provide a free consultation to talk about, but they may charge a fee for other types of cases.

Immigration clients should be very careful when deciding which attorney to trust with their case, their future, and their families’ futures.  All immigration attorneys are not the same.  Some have many years of practice and experience, while others are very new to the law.  Some have expertise in certain areas of immigration law that other immigration attorneys simply don’t have.  Some immigration attorneys are Board Certified by the Florida Bar, which means that they are experts in immigration law.  Florida Bar Board Certified attorneys have to pass very rigorous ethical and educational requirements along with passing a board exam.

Many non-U.S. citizens believe that they will be able to enter the United States without issue because they have a valid visa or are entering under the Visa Waiver Program.  Unfortunately, for some of those people, they will find out that they can not only be denied entry, they can be held in a jail until they can be returned to their home country.  Take Molly Hill for example.  Molly Hill is a citizen of Australia with an American boyfriend.  She recently flew to Hawaii on the Visa Waiver Program expecting to have a nice vacation with her boyfriend.  When she tried to enter through customs at the airport, Customs and Border Patrol (CBP) agents read through her diary, questioned her, and determined that she had not proven that she was going to return to Australia within the timeframe of the visa waiver program, which is 90 days.  Instead, they believed that she was entering to marry her U.S. boyfriend and planning to stay inside the U.S., which would be a violation of the visa waiver program.  Ms. Hill was taken into custody, spent the night in a jail, and returned to Australia the next day.  She is also banned from using the Visa Waiver Program and must now apply for a B visa (visitor visa) at an embassy if she wishes to visit the United States.  Of course, the probability of a B visa being approved in her case is low because CBP has already made a determination that she did not intend to depart the U.S. within the terms of the Visa Waiver Program.

Immigration officials have the power to refuse entry, detain in a jail, and send arriving aliens back to their home country.

So, what happened here?  Why did CBP deny Ms. Hill’s admission?  Under the Visa Waiver Program (INA §217) , the alien must prove:

I can’t tell you how many clients we’ve had that come in and can’t believe that a first time, minor drug conviction could lead to the deportation of themselves, their sons, their daughters, or their husbands and wives.  Countless clients who came to the United States as children and know no other home.  They may not even speak the native language of their country for citizenship.  They may have held a greencard nearly all their lives.  Lawfully going to school in the U.S. Making friends.  Playing on soccer teams.  Going to prom.  But one day, they, like so many other young people in this country, made a mistake.  Maybe they were with friends and there were controlled substances and everybody got arrested.  For the U.S. citizen, if he or she has little or no prior record, they will probably receive a withhold of adjudication, probation, counseling, community service hours and get their record sealed.  But for the non-U.S. citizen, the consequences of a drug conviction can be catastrophic.

Immigration and Nationality Act (INA) §237(a)(2)(B) states that “[a]ny alien who has been admitted to the U.S. and thereafter convicted of any controlled substance offense is deportable.”  That’s it. No ifs, ands or buts.  You are deportable.  Even if you received a withhold of adjudication and probation.  You are deportable.  The only exception is for one single offense of possession of less than 30 grams of marijuana.  There are very few forms of relief available which would allow an immigration judge to waive or cancel this basis of deportation.  You are either eligible for these forms of relief or you are not.  If you are not eligible, the immigration judge has no discretion to block your deportation, even if he or she wants to.

Too many people take the “I’ll worry about it later” approach when they are charged with a criminal drug case.  They worry about the criminal case first, and worry about the immigration consequences later.  It is paramount that any non-U.S. citizen charged with a criminal case start thinking about the immigration consequences immediately.  The criminal defense attorney may be able to work out a deal that does not make you deportable.  For example, the criminal defense attorney may be able to get you referred to a Pretrial Diversion Program where the State drops the charges if you successfully complete the program.   Even though you may have to complete more community service hours, go to drug counseling, pay supervision fees, and complete other provisions of PTI, this would be exponentially better than a withhold of adjudication and court costs on any drug case.  This is because it is the conviction, not the sentence, that makes a non-U.S. citizen deportable.  So, if the criminal defense attorney doesn’t understand immigration law, that attorney may think he or she is getting you a great deal that will save you time and money and allow you to get your record sealed, only to later find out that you pled to a deportable offense.

USCIS, the government agency in charge of handling Temporary Protected Status (TPS) recently recommended to President Trump that he end TPS for Haiti. On April 10, 2017, USCIS sent a formal memo to John Kelly, the Secretary for the Department of Homeland Security, concluding that the country conditions in Haiti no longer support its designation for TPS. This is very scary news for the 58,700 Haitians currently in the United States under the safety and security of TPS status. Haiti’s current TPS designation is set to expire on July 22, 2017.  What can Haitian nationals do both before and after July 22, 2017 to prepare for losing TPS status? —consult with an experienced immigration attorney NOW!

What is TPS and why does Haiti have it?

TPS is a law that allows any president to designate a country for temporary protected status due to extraordinary and temporary conditions resulting from national disasters and internal conflicts (among other things). TPS allows people from that country to remain in the United States legally, apply for a work permit and live here safely, rather than having to return back to their country.