The Impact of Immigration Status on Other Legal Issues

www.immigrantjustice.org

Basics, Issue Spotting and Resources

2011 Illinois Legal Aid Advocates Conference

October 7, 2011

Chicago, Illinois

National Immigrant Justice Center

• The National Immigrant Justice Center (NIJC), a program of Heartland Alliance for Human Needs & Human Rights, promotes human rights and access to justice for immigrants, refugees, and asylum seekers through legal services, policy reform, impact litigation, and public education. Throughout its 30-year history, NIJC has been unique in blending individual client advocacy with broad-based systemic change.

• NIJC serves more than 10,000 immigrants annually with the support of a professional legal staff and a network of over 1,000 pro bono attorneys.

• NIJC maintains a more than 90 percent success rate.

• NIJC provides direct legal representation to low-income individuals in immigration matters. NIJC represents immigrant families; individuals seeking protection, such as, victims of crimes including domestic violence and human trafficking, LGBT immigrants, asylum seekers, unaccompanied immigrant minors; and detained and non-detained noncitizens.

Involved Government Agencies

• Department of Homeland Security (DHS)– U.S. Citizenship & Immigration Services (USCIS)– Immigration & Customs Enforcement (ICE)– Customs & Border Patrol (CBP)

• Department of Justice (DOJ)– Executive Office for Immigration Review (EOIR)

• Office of Refuge Resettlement (ORR)• State/Local Law Enforcement/Agencies

– Sheriff– Police– Child Protective Services

Immigration Status

• US Citizen (most protected)• Lawful Permanent Residents (green

card holders)• Immigrants (family based, employment

based, asylees, refugees, etc.)• Non-Immigrants (tourists, students, U

visas, etc.)• Undocumented immigrants• TIP: Ask individuals about their

immigration status before adivising on other matters

Obtaining Immigration Status

• Family• Protection Based

– Refugees and Asylees– Crime Victims

• Employment• Other (very limited)

Family Immigration

• Priority System of Immigrating• 2 Steps

– Family Petition– Permanent Residency Process

• Step 1: The Petition• Step 2: Adjustment of Status

(green card application)• TIP: Step 1 holds place on list – it

does not protect from deportation

Petitions

• Family Petitions– USCs

• Spouse (immediate relative)• Children and Stepchildren (under 21, immediate

relative, over 21 priority date)• Parents (if USC child is over 21) (immediate

relative)• Siblings

– LPRs• Spouse• Unmarried children

• Protection Based Derivatives

Next Steps

• Once the petition is filed with USCIS, a priority date is given (usually the date it is received by USCIS)

• Except for Immediate Relatives, everyone else must wait for the priority date to be current before they can proceed with Adjustment of Status (to become LPRs)

Protection Based Immigration

• Asylum/Refugee Protection• Violence Against Women Act (VAWA)• T visas, for Victims of Human Trafficking• U visas, for Victims of Certain Crimes• Special Immigrant Juvenile Status (SIJ)

for certain children who are victims of abuse, neglect or abandonment

Asylum

• “[A]ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 USC §1158, et.al.

VAWA

• Abused spouse of U.S. citizens and LPRs;• Non-abused spouse of US citizens or LPRs

whose children are abused (need not be children of abuser);

• Abused children (must meet the definition of a “child” under 8 USC §1101(b)) of USCs or LPRs;

• Abused children of USCs may file until age 25 if central reason for delay is abuse

• Abused intended spouses, meaning a spouse who entered into a bigamous marriage in good faith. See 8 USC §1154(a);

• Abused parents of USC children

Abusers & Immigration

• Failing to file immigration papers on behalf of family members;

• Filing a family petition (or other application) and later withdrawing it;

• Threatening to contact immigration officials;

• Actually contacting immigration officials for the purpose of deporting family members; and/or

• Providing immigration officials with false information about family members.

Eligibility for VAWA

• Status of Abuser (USC or LPR) • Marriage Requirements

– Legal Marriage– Good Faith Marriage

• Battery or extreme cruelty• Residency Requirements• Self-petitioner lived with abuser• Self-petitioner’s current residence• Good Moral Character (3 years prior)• 8 USC §1154

U Visas: Crime Victims

• Immigrant suffered substantial mental or physical abuse as a result of having been a victim of certain criminal activity; and

• Immigrant (or in the case of a child under 16, the parent or guardian) possesses information concerning that criminal activity; and

• The criminal activity violated U.S. law or occurred in the U.S.; and

• The immigrant has been helpful, is being helpful, or is likely to be helpful to a Federal, State or local authority investigating or prosecuting the crime.

See 8 USC §1101(a)(15)(U)

Crimes Included• Rape• Torture• Trafficking• Incest• Domestic Violence• Sexual Assault• Prostitution• FGM• Being held hostage• Peonage• Involuntary Servitude

• Slave trade• Kidnapping• Abduction• False Imprisonment• Being held hostage• Peonage• Obstruction of Justice• Perjury• Attempt, conspiracy or

solicitation to commit any of these crimes, or any “similar activity”

Trafficking Victims

• T visas are for victims of human trafficking

• Requirements: victims of human trafficking as defined by 22 USC §7102 (the use of force, fraud, or coercion for sex trafficking and/or involuntary servitude, peonage, debt bondage or slavery); who assist or cooperate in reasonable request for investigation or prosecution; and who would suffer extreme hardship if removed.

8 USC §1101(a)(15)(T); 8 CFR §214.11

Special Immigrant Juveniles

• Minors who are abused, abandoned, or neglected by either parent, who have a dependency order from a State Court making such a finding and where the Court makes a determination that it would not be in their best interest to return to their home country.

• Dependency order must be entered before they turn 18

8 USC §1101(a)(15)(J)

Immigrant Victims

• TIPS– Immigrants often do not self-identify

as victims– Cultural sensitivity – Afraid to report crimes– Fear of government

Citizenship

• Acquired citizenship– Children born abroad to a USC parent

• Derived citizenship– Children who are LPRs and have USC

parents

• Naturalization– After becoming an LPR persons can apply

for naturalization after either 5 or 3 years depending on how they obtained their LPR status

Detention

• Adults and Children• Detained at county jails• Children detained separately• Persons arriving at port of entry• Immigrants in criminal proceedings

Who Can Be Deported?

ANYONE WHO IS NOT

A U.S. CITIZEN

Issue Spotting

• Crimes: Complicated for immigrants. May lead to a person losing their lawful status.

• Requirements for non-immigration attorneys. Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

• LPRs can be deported for old crimes• Children “repatriated” by DCFS or

others• Minor crimes may be considered

“aggravated felonies” 8 USC §1101(a)(42)

Issue Spotting

• Custody – immigration status should not impact custody

• Marriage fraud allegations• Allegations of abuse in divorce

proceedings, listing abuse in pleadings

• VAWA confidentiality provisions 8 USC 1367(a)

Other Issues

• Social Security Numbers/ITIN Numbers

• Filing Taxes• Driver’s Licenses• Employer’s Obligations to Report• Using False Documents• Public Benefits

Secure Communities

• Gives ICE technological, not a physical presence in jails

• Current process:– when arrested by local police, fingerprints

run through state and FBI databases to check for criminal record

• Secure Communities process:– when arrested by local police, fingerprints

automatically also run through DHS databases to check for civil or criminal immigration history

Secure Communities

• Currently operating in more than 41 states

• DHS’s stated goal is to have Secure Communities everywhere by 2013

• Concerns over whether communities can choose to opt out

Legal Assistance

• Private Attorneys –call the American Immigration Lawyers Association at 1-800-954-0254 for a referral

• Attorneys or Accredited Representatives at Board of Immigration Appeals Recognized Non-Profit Organizations – a list of these organizations can be found at www.usdoj.gov/eoir/statspub/raroster.htm

Unauthorized Practice of Law

• Notaries or notary publics are not attorneys and cannot give legal advice

• Well-intentioned, but unauthorized practitioners such as churches, community organizations, etc.

THANK YOU

Mony Ruiz-Velasco, Director of Legal ServicesKarolyn Talbert, Managing AttorneyNational Immigrant Justice Center208 S. LaSalle, Suite 1818Chicago, IL 60604312.660.1370mruizvelasco@heartlandalliance.orgktalbert@heartlandalliance.orgwww.immigrantjustice.org