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.

For countless numbers of people, deferred action is the only relief from deportation that is available.  Non-citizens who entered, or were brought into the United States as children, without lawful status, and who have no pathway to lawful permanent residence may be eligible for some form of deferred action.  So what is deferred action exactly?

Deferred Action is basically a bandaid for a serious wound.  It is temporary relief for a permanent problem.  But sometimes it also serves as a bridge between unlawful status to lawful status, when a new pathway becomes available.  Deferred Action does not confer any immigration status on the person, but it does present some extremely valuable benefits.  When the government grants a person deferred action, they are providing a formal statement that the government will not seek to deport that person for a definite period of time.  The person can obtain an employment authorization card and lawfully work in the United States.  The person also can usually obtain a lawful driver’s license.

The most common form of deferred action is called DACA.  DACA is “deferred action for childhood arrivals.”  You may be eligible for DACA if you meet the following requirements:

We’ve had many clients who come into our office as lawful permanent residents eligible to become a United States citizen.  We tell them the same thing, every time.  Run, do not walk, to apply to become a U.S.C.  Why?  Because as a lawful permanent resident, the Immigration and Nationality Act applies to you.  As a United States citizen, it doesn’t.  What does that mean in regular terms?

A lawful permanent resident can be deported.  A United States citizen can’t.  A lawful permanent resident can be stripped of his or her green card.  A United States citizen cannot be stripped of their citizenship, unless procured by fraud.  A lawful permanent resident can be incarcerated for a long, long time if they are arrested on even minor crimes because ICE can launch a detainer on them preventing them from bonding out.  A United States citizen doesn’t have to worry about that.  A lawful permanent resident can abandon their green card by staying outside the country for too long.  A United States citizen cannot abandon citizenship, unless intentional and deliberate on the part of the citizen.

A United States Citizen Cannot Be Deported

Attorney General Jeff Sessions issued a memorandum (see bottom of this post to read the memorandum in full) to all federal prosecutors today demanding prioritization of immigration related prosecutions.  Specifically, he calls for the increased prosecution of 8 U.S.C. 1324 (Bringing in or Harboring Certain Aliens), 8 U.S.C. 1325 (Improper Entry by Alien), 8 U.S.C. 1326 (Reentry of Removed Aliens), 18 U.S.C. 1028A (Aggravated Identity Theft), and 18 U.S.C. 111 (Assaulting, Resisting or Impeding Officers).  It remains to be seen what practical effect this memorandum and future memorandums will have on increasing prosecutions.  Many critics of this policy fear that increased focus on immigration related offenses will result in decreased focus on other serious federal law violations, including large-scale drug offenses, firearms offenses, and other types of crimes.

There also is no indication that increased prosecution of immigration related offenses will decrease the number of people who come into the United States without authorization.  Those detained by ICE or CBP already face long terms of detention.  Charging those individuals with federal offenses will not necessary increase the amount of time those individuals are incarcerated.  The cost of prosecution to the taxpayer will far exceed any positive result relating to enforcing immigration laws.

The problem lies in prioritization memorandums like this one.  Assistant United States Attorneys across the nation will now not focus on individuals that pose the greatest risk of future immigration violations or future criminal conduct.  They will rather use a shotgun approach of prioritizing everyone, which is not only inefficient and costly, but impossible.  The government does not have the resources to implement the policies that AG Sessions has implemented.