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 [email protected]@heartlandalliance.orgwww.immigrantjustice.org
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