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You have a family friend or relative who has made the perilous journey to come to the United States seeking protection from persecution and harm in their home country.  They made it halfway across the world through multiple other countries just for the chance to come to the U.S. and request asylum and a safe, better future.  They either walked up to the border with Mexico and asked for asylum or came over the border and were caught by Border Patrol.  Your friend or family member told the U.S. immigration officers about a history of harm or persecution they’ve endured in India, Pakistan, Nepal, Colombia, Venezuela, Somalia or one of a dozen other countries currently facing political and social strife.  The immigration officer heard their account of what happened and said, “welcome to the United States, here is an order of removal and we will keep you in jail until we can deport you.”

This scenario is happening on a daily basis to hundreds of people seeking refuge and asylum here in the U.S.  People who are seeking protection and safety are detained at the Mexican border and shipped to one of a dozen or more detention facilities across the country to have their immigration cases heard by an immigration judge. One of those detention facilities is in Folkston, Georgia and asylum-seekers are arrested and detained at the U.S. border on a daily basis and sent directly to Folkston.

WHAT IS THE FOLKSTON ICE PROCESSING CENTER?

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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

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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.

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Any criminal arrest or conviction will have some negative consequence for a non-citizen.  Whether it is prolonged delay at the border while Custom and Border Protection (CBP) agents ask you questions, whether you are denied a bond in immigration court, whether you are denied the right to become a United States citizen or whether you are placed in deportation proceedings, criminal charges are bad.  Some criminal cases will have more severe consequences than others.  When it comes to the worst possible criminal conviction you can have, Aggravated Felonies are at the top of that list.

AGGRAVATED FELONIES ARE BAD!

Aggravated Felonies are bad!  Real bad.  They are referred to in many different provisions of the Immigration and Nationality Act.  They almost always will result in deportation.  They prevent a person from ever becoming a United States citizen.  And they preclude you from obtaining almost all forms of relief in immigration proceedings.

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Despite Emma Lazarus’ poignant words inscribed at the Statue of Liberty suggesting a welcoming embrace to asylum seekers, a troubling new implementation of policy is in direct conflict with our nation’s ideological fascination with freedom.  Immigration attorneys throughout the country are finding that people seeking asylum at our borders and within are being held in custody without parole or bond pending their asylum cases. Not only is this a strong deterrent to those who are being persecuted in other countries from finding freedom in the greatest free country in the world, it directly contradicts our longstanding ideals as a nation.

The United States was founded on the idea of freedom.  Religious freedom.  Political freedom.  Freedom in our daily lives.  Give me liberty or give me death.  We welcome the best and brightest from other nations and other cultures.  We incorporate the best ideas and the best practices from those best and brightest minds.  That is how we became the greatest nation on earth.  A melting pot of brilliance.  Yet, the message we see now coming from our government is very clear.  Asylum Seekers – You are not welcome.

I LIFT MY LAMP BESIDE THE GOLDEN DOOR!

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Deferred Action for Childhood Arrivals (“DACA”) has been a saving grace for countless people who have no other form of relief from deportation.  DACA is available to people who came into the United States without “admission,” when they were children.  In its simplest form, it is a declaration by the government that they will not institute deportation proceedings for a specified period of time.  The practical benefits to the individual are that the person becomes eligible for certain benefits, like a driver’s license and employment authorization, and they don’t have to look over their shoulder and worry that they are going to be taken into ICE custody.

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In order to be eligible for DACA, you must meet the following requirements:

  1. Were under the age of 31 as of June 15, 2012;
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Criminal defense lawyers don’t typically know anything about immigration law.  Immigration law is federal.  Most criminal defense attorneys practice only state law in state courts.  Even if they do practice in federal criminal courtrooms, it is a completely different area of law from immigration.  Asking a criminal lawyer about immigration law is kind of like asking a podiatrist about cataracts.  That is unless the lawyer practices in both fields, which is becoming more common.  The problem is that when you ask a lawyer about an area of law they don’t know anything about, they may give you an answer.  “Uh, I’m sure this conviction won’t hurt you.  You’ve been here 30 years.  You have a greencard.  Don’t worry about it.”  And that answer may not only be wrong; it may be dead wrong with deadly consequences.

Case in point – Jae Lee is going before the United States Supreme Court because his criminal defense attorney told him that his plea to Possession of a Controlled Substance with Intent to Distribute would not make him deportable.  Not only did it make him deportable, it is considered an aggravated felony and he has no form of relief to prevent his deportation.  His criminal defense attorney’s nonchalant dismissal of such a critical issue has led to a lifetime of catastrophic consequences for Mr. Lee, including being incarcerated for seven years while he fights his deportation.  If you’d like to learn more about Mr. Lee’s case, check out this wonderful article written by Manny Vargas from the Immigrant Defense Project.  Mr. Vargas provides a very detailed history of Mr. Lee’s case and discusses exactly how Mr. Lee went from thinking his criminal conviction would not lead to deportation to realizing he would not only be deported, but would be detained for many years while fighting that deportation.

Don’t get me wrong.  Many criminal defense attorneys do an amazing job of actually looking at the immigration statutes, calling up immigration lawyers, and sending their clients to immigration lawyers.  But many do not.  So, you should trust your criminal defense attorney, but verify.  Trust, but verify.  Ask your lawyer if they have any experience in immigration law.  Go seek the advice of an immigration lawyer. The consequences are too severe for you to leave it in the hands of an attorney who may view the immigration consequences as a collateral consequence of the plea, rather than a potential life shattering experience.

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There has been great fear rising within immigrant communities regarding the new policies directed at certain non-citizens.  On January 25th, 2107, President Trump issued an executive order titled Executive Order: Enhancing Public Safety in the Interior of the United States.  This Order provided guidance to federal agencies on how to implement certain provisions of the Immigration and Nationality Act.  Specifically, President Trump called for the targeting of non-citizens who 1) have criminal convictions, 2) have been charged with crimes even though the criminal court proceeding shave not been completed, and 3) have committed criminal acts that have not even been charged.  The Order addresses other individuals to be targeted.  It also calls for 10,000 additional deportation officers to be hired.

So how could this affect you, if you a non- U.S. Citizen.

Any criminal charge, no matter how minor, no matter how long you have been in the U.S., and no matter what your status is could lead to prolonged detention pending criminal and/or immigration proceedings and to deportation.  The law has not changed since President Trump took office, but the way it is implemented has.  It is still too early to tell just how drastic the change will be from the Obama administration, but it is clear that there will be change.

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What am I eligible for? That is a very common question for many immigrants who call or visit our immigration office for legally advice. “I came into the country illegally,” how do I get a work permit or a green card? The truth is if you are in the United States and you do not have status and you did not enter after having been inspected and admitted or paroled, your immigration options can be quite limited. Our immigration laws changed dramatically in the 1990s and early 2000s and one of the big changes was to punish people who entered the country illegally by greatly limiting their ability to stay in the U.S. legally.

There are five basic immigration options possibly open to you if you entered illegally and are currently out of status; 1) Asylum/Withholding/CAT; 2) U/T/S Visas; 3) 245(i) Adjustment; 4) Cancellation of Removal; 5) TPS.

At first blush, you may say, wow those are quite a few options, sounds great, how do I sign up. Therein lies the problem, most people who are in the United States without status after entering without inspection will not qualify for any of these forms of immigration relief. That’s right, unfortunately, just because you have been in the U.S. for many years, have family here, have a job here or have a fear of going back to your home country does not mean you qualify for any form of immigration relief. Lets briefly review what it takes to qualify for these immigration benefits/relief.