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.

The scary truth for most immigrants is that until you become a citizen, there are serious and negative immigration consequences for every criminal arrest or prosecution, the only question is, how serious and how negative. Once a non-citizen immigrant is arrested for any crime, there will be negative consequences; some are more immediate and direct than others. The only thing that you can do after your arrest is find the best attorneys to help you mitigate the negative immigration consequences associated with every criminal arrest.

I provide trainings to criminal defense attorneys and public defender’s across the state of Florida on this exact issue. They all want to know the immigration consequences for a client charged with a specific crime and what charges to try and plead them to or what sentence to get them to keep them from being deported. The quick and dirty answer is always, “it depends.” Some questions are easy, “my client has a green card and he is facing a DUI, will he get deported?” The answer is, no not for the DUI, but that same DUI may get his citizenship application denied in the future.

Some questions are more complicated; for instance, “my client has a work permit, will this grand theft plea with no jail time get her deported?” That one is much more complicated . . .why does she have a work permit, what is her immigration status, does she have any other convictions and if so, for what? There are so many variables that no criminal defense attorney can possibly be expected to know or be able to find all of them. That is why we are here to help (check out our dedicated crimmigration consultation page for more information: http://www.floridacrimmigration.com)

Normally, I would begin with the BIA decisions and put the bonus case at the end, but this one is too important to miss. I blogged before about how the U.S. Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), could be monumental in destroying the ordinary case analysis used by the Board in cases involving crimes of violence under 18 U.S.C. § 16(b). This case from the Ninth Circuit has proven me correct:

Dimaya v. Lynch, 2015 WL 6123546 (9th Cir. Oct. 19, 2015); In the first Federal Circuit Court published opinion of its kind, the Ninth Circuit held that the U.S. Supreme Court’s reasoning in Johnson v. United States, 135 S. Ct. 2551 (2015), is applicable in immigration cases. In Johnson (a federal criminal sentencing case) the U.S. Supreme Court found the residual clause of the ACCA and the corresponding ordinary case analysis unconstitutional and void for vagueness. The Ninth Circuit in Dimaya found that the problematic language and analysis in the ACCA is substantially the same as 18 U.S.C. § 16(b). Therefore, the ordinary case analysis and 18 U.S.C. § 16(b), suffer from the same constitutional defects brought to light in Johnson and are therefore void for vagueness. This means that we finally have a case to support the argument that the Immigration Courts cannot use 18 U.S.C. § 16(b) to sustain a crime of violence charge under INA § 101(a)(43)(F).

Recent Published BIA Decisions: