Immigration 101:

1. Immigration 101: IMMIGRATION FOR THE NON-IMMIGRATION ATTORNEY

2. PRESENTED BY:Sue SwansonAnna Stenson North Dakota State’s Attorneys’ Association Summer Conference June 22, 2012- 11:00 AM- 1:00 PM

4. GOVERNMENT AGENCIES

5. GOVERNMENT AGENCIES • U.S Department of Homeland Security (DHS) • USCIS- United States Citizenship and Immigration Services • ICE – Immigration and Customs Enforcement • CBP – Customs and Border Protection • U.S. Citizenship & Immigration Services (USCIS) • Issues visa petitions that allow aliens to live and work in the U.S. • Worker can be in U.S. or abroad when visa petition is approved • U.S. Customs & Border Protection (CBP) • Reviews immigration paperwork at all U.S. Ports of Entry • Determine whether a foreign national’s eligibility to enter the U.S. • Airports, at the border, within 100 miles of border • U.S. Immigration & Customs Enforcement (ICE) • Investigates as to whether someone entered into the U.S. legally and/or is in a legal immigration status • Detaining and removing persons inside the U.S. • U.S. Department of State (DOS) • Issues visas and passports to foreign nationals that allow them to enter the U.S.

6. GOVERNMENT AGENCIES, cont. • U.S. Department of Justice • Office of Special Counsel for Immigration Related Unfair Employment • EOIR- Executive Office of Immigration Review • Executive Office of Immigration Review • EOIR • Immigration Court • Removal/ deportation from the United States • No right to free legal representation • Immigration judges are appointed by the Attorney General • Board of Immigration Appeals • Reviews decisions made by immigration judges • Office of Refuge Resettlement • Department of Labor (DOL)

7. Immigration Status • United States Citizens • Birth in the U.S. • Naturalization • Acquisition at Birth • Derivation of Citizenship • Non-Citizens • Immigrant • Family • Employment • Humanitarian • Conditional Permanent Resident • Non-Immigrant • Students • Work Visas • Visitors • TPS- Temporary Protected Status • Undocumented • Overstay of visa • Entered without authorization

8. United States Citizen (USC) • By Birth: Birthright citizenship. • Through Naturalization: Permanent resident who goes through application process and demonstrates eligibility for citizenship. • Acquisition: Born outside of US to United States citizen parent or grandparent. Depends on year of birth and other qualifying factors. • Derivative: Many children under 18 who have their green card who are in the physical and legal custody of a parent who becomes a citizen derives citizenship through that parent by operation of law.

9. Non-Citizens: Immigrants • Lawful permanent residents are noncitizens that make the U.S. their home, have authorization to work in the U.S. and have the most stable immigration status. They may serve in the U.S. military but they cannot vote in federal elections (or other elections unless authorized by statute. They must follow certain guidelines when they travel or stay outside the U.S., and DHS may still remove them for certain reasons. Anyone with a Permanent Resident Card can work legally in the United States. • Family • Immediate Relatives • No “waiting” or numerical limits • Spouse, parent, or minor unmarried children under age of 21 of US citizens • Must sponsor and prove ability to financially support them • Priority Based • Up to 480,000 visas per year • Lengthy waiting list: family of lawful permanent residents, adult sons and daughters and siblings of U.S. citizens.

10. Non-Citizens: Immigrants • Employment • “Priority” workers such as professors, researchers, high-level managers of multinationals • Professionals with advanced degrees • Skilled workers in high-demand fields • “Special Immigrants” such as clergy and religious workers • “Investor immigrants” who will invest $500,000 to $1 million to start or buy a US-based business that provides at least 10 full time jobs.

11. Other Immigrants • Diversity Lottery • Up to 55,000 visas per year • Allotted to countries that are underrepresented in other forms of US immigration • Applicants must be 18 or older with equivalent of high school diploma • Humanitarian • Refugees • Limit set by President with consultation by Congress (70,000- 80,000) • Requires showing of well-founded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion • Processed through the United Nations High Commission on Refugees

12. Other Immigrants- continued • Humanitarian- continued • Asylee- a person who obtains refugee status after entering the United States • Special Immigrant Juvenile Status • Some children whose parents have abandoned, neglected , or abused them may be able to obtain lawful permanent resident status • They need to show dependents of juvenile court or placed by court into custody of a government or agency. • Reunification of parents not viable. It is not in the best interest of the child to be returned to their home country. • Nicaraguan, Cuban, and Haitian Adjustment • In 1997, Congress passed Nicaraguan Adjustment and Central American Relief Act (NACARA). Allows certain non-citizens to apply for lawful permanent resident status. Had to been in the US before a certain date to be eligible.

13. Non-Citizens: Non-Immigrants • Broken down into groups based on intent, reason person is here, length can stay here • Students: F-1 Degree Seeking Student, M-1 Vocational Student, J-1 Exchange Student • Work Visas: In ND will see H-2A, H-1B Specialty Visa, L-1 Intracompany Transferee, E1/E2 Treaty Trader Visa • Visitors: Visa Waiver, B1/B2 • TPS: Temporary Protected Status – designated countries. Examples: Haiti, El Salvador, Honduras, Nicaragua, Somalia, Sudan, South Sudan, Syria. • Asylees: Aliens who claim refuge to the US either at the border or after they have already entered the US. They are eligible to apply for permanent residence after having asylum for one year. • Refugees: Aliens who seek refuge outside the US who are granted refugee status and enter the US in refugee status. They are eligible to apply for lawful permanent resident status after being in the US one year.

14. Non-Citizens: Undocumented • Overstay of Visa: Alien who stays longer than their authorized non-immigrant period of stay as dictated on their I-94 card. • Out of Status: Alien who does not comply with their non-immigrant visa status. • Entered Without Authorization: Alien who enters the US without being inspected, admitted or paroled.

15. How People Come to the US • Visas • Permission to “knock on the door” to seek entry into the US • Visa are issued to non-immigrants and immigrants • Issued by the U.S. Embassy/ Consulate where foreign national was interviewed. • Placed in “home country” passport. • Visa does not give immigration “status” in the United States • Just because visa is unexpired does not mean person is legally in the United States. • Similarly, if a visa is expired does not equate with unauthorized presence in the United States.

16. United States Visa

17. Immigration Status in U.S. • I-94 Card- Arrival Departure Record • Documents lawful entry, inspection, and admission to the United States • In most instances indicates in what manner the foreign national entered and duration of legal stay in the United States. • B –Visa- Visitor’s visa. Many visitor’s visa may be valid for entry into the United States for 10 years. • However, each visitor to the United States on a B-1 visa is only permitted to stay in the United States for 180 days or less. • Unless otherwise granted an extension of stay or change of immigration status, foreign national must exit the United States before the date listed on his I-94 card. • Should be stapled in home country passport.

18. I-94 Card Example

19. Proof of Status in the U.S. • Student Visa holders are an exception to the rule. • They may have a visa, which doesn’t give them status. • They may have an I-94 card, however, it is likely stamped “D/S” • They are permitted to be in the United States for “Duration of Stay” • Their ability to remain in the United States is determined by their educational institution. • Controlled by an “I-20” • Generally, student visa holders are not permitted to accept employment off of campus without permission.

20. I-20 Example

21. Immigration Documentation Temporary Employment Authorization Card Based on Status in the United States In some instances can apply for permission to work while waiting for a change of immigration status

22. Immigration Documentation • Permanent Resident (Green) Card • I-551 • Contains biographic information • Contains information regarding how obtained immigration status in the United States • Just because card expires does not mean status is terminated.

23. Good Moral Character Issues • Any crime against a person with intent to harm • Any crime against property or the Government that involves evil intent • Two or more crimes where aggregate sentence was 5 years or more • Violating any controlled substance law of the U.S., any state, or any foreign country • Habitual drunkenness • Illegal gambling • Prostitution • Polygamy • Lying to gain immigration benefits • Confinement to jail, prison, or similar institution for 180 in 5 years • Failing to complete any probation, parole, suspended sentence • Terrorist acts • Persecution of anyone because of race, religion, national origin, political opinion, or social group

24. Naturalization Requirements • Areas of concern for naturalization • Living outside of the U.S. for more than 6 months since came here • Alcohol or drug problems, including Khat or illegal drugs • Arrested, charged, or convicted of crime (traffic violations included) • Were charged or convicted of domestic abuse • Failed to pay child support • Did not file income tax returns or owe taxes • Male who did not register with Selective Service (18-26) • Not being truthful on your application.

25. Immigration and Criminal Law • Padilla vs. Kentucky • Immigration Consequences of a Criminal Conviction • Inadmissibility • Removability • Crime Involving Moral Turpitude (CIMT) • Aggravated Felony for Immigration Purposes • Mandatory detention • Expedited Removal • Ineligible for many forms of relief • Forms of Relief From Deportation • Voluntary Departure • Cancellation of Removal • Asylum/CAT • Adjustment of Status

26. Immigrants Are Subject to a Secondary Layer of Punishment • Deportation • Bar to getting lawful immigration status (e.g. asylum, green card, student or work visas) • Loss of current immigration status • Bar to citizenship • Bar to relief from deportation • Bar to returning to the US after travel abroad • Detention (sometimes mandatory, out of state, no fixed release date)

27. Padilla v. Kentucky, 130 S. Ct. 1473 (2010) • Counsel MUST advise of the specific immigration consequences of a criminal disposition based on the client's individual facts • Failure to do so + prejudice is a basis to vacate the conviction based on Ineffective Assistance of Counsel (IAC) • Padilla applies retroactively, at least to convictions on or after 1996 • Must advise on how to avoid being deportable/inadmissible, avoid bars to relief from removal, and address client's "clear and unclear" questions

28. Immigration Definition of Conviction • Under 8 USC 1101(a)(48)(A): means • "[a] formal judgment of guilty" OR • Where no formal finding of guilt: • If defendant pleads guilty, nolo contendere or has admitted sufficient facts to warrant a finding of guilty, AND • The judge has ordered some form of punishment, penalty, or restraint on the noncitizen's liberty. • Youthful Offender adjudication IS NOT a conviction if analogous to a fed'l juvenile delinquency adjudication

29. Immigration Definition of Conviction, cont. • Restraint on Liberty • Sentence to incarceration • Probation • Fine • Community Service • Req'd Classes (i.e. anger management) • Court Costs • Strategies • Avoid guilty plea: waive trail rights to get pre-plea probation • Avoid guilty plea: Admit to Prosecutor, not Judge • Avoid guilty plea: Drug Courts as a pre-plea diversion • Plea to safe haven offense

30. Record of Conviction • Charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trail judge to which the defendant assented. Shepard v. U.S., 544 U.S. 13 (2005). • Can be used to consider whether a conviction is a deportable offense or makes the Respondent inadmissible. Vue v. INS, 92 F.3d 696, 700 (8th Cir. 1996).

31. Inadmissibility, INA 212, 8 U.S.C. 1182 • Barred from getting new lawful status, admission or re-admission to the US, relief from removal, or other new benefit the gov’t grants • Will NOT take away lawful permanent residency as long as the alien remains in the US - it is triggered upon departure from the US • Hurts the undocumented person because it makes it may bar him/her from obtaining a legal status

32. Deportability, INA 237, 8 U.S.C. 1227 • Alien can lose whatever legal status s/he has • May be removed from the US • Usually doesn't hurt an undocumented person because s/he has no status to lose

33. Plea Deals • Consult an immigration attorney BEFORE entering your client into a plea agreement • Safe haven offenses • Minimize immigration consequences

34. Sentencing • May affect whether a conviction is an aggravated felony for immigration purposes • Want to plea to 364 days or less • Sometimes, you may need to plead your client to less than 180 days • Sometimes better to plea to safe haven offense + jail time

35. Effects of a Conviction • Crime Involving Moral Turpitude (CIMT) • Aggravated felony • Alien is subject to mandatory detention • Ineligible for most forms of relief • Alien who is deported and then re-enters the US illegally & is convicted of illegal re-entry is subject to significant sentence enhancement • Mandatory detention • No set release date • Can be moved to multiple detention facilities throughout the US - affects attorney effectiveness • Held with violent offenders

36. Overview of the Deportation Process • Typically alien taken into custody during minor traffic stop or via criminal conviction • Must complete criminal proceedings first. • Detained on immigration hold. • Issued a Notice to Appear (NTA) - Immigration charging document • Held at Grand Forks, ND correctional facility • Transferred to MPLS Sherburne County Jail • Master Calendar Hearing - First Appearance before an Immigration Judge - • Individual Hearing - Immigration Trial

37. Deportation Court Terms • Immigration Judge (IJ) • Office of Chief Counsel (OCC) – Government Attorneys • Master Calendar Hearing (MCH) – First Appearance • Individual Hearing – Trial/Presentation of Case • Notice To Appear – Immigration Charging Document • States the nature of proceedings and legal authority • Lays out the facts and alleged illegal conduct • Specifies the Charges and statutes allegedly violated • must give address and telephone number; time and place of hearing and consequences of failing to appear.

38. Deportation Court Terms, cont. • Unlawful Presence- if an alien is present in the U.S. after expiration of stay authorized or present in U.S. without being admitted • Between 180 days and one year- three year bar • More than 1 year – ten year bar • Triggered on leaving the U.S.

39. Relief From Deportation - Terms Voluntary Departure • Ability to leave the US and avoid an order of deportation • Client pays for his/her cost of travel • May avoid the "3 year bar" for unlawful presence - INA 212(a)(9)(B)(v)

40. Relief From Deportation Terms, cont. Cancellation of Removal • May be available to both Legal and Non-Legal Permanent Residents • Must meet statutory guidelines for eligibility • Once meet statutory guidelines, judge has discretion whether to approve/deny • Must show "exceptional or extremely unusual hardship" to USC/LPR spouse, parent or child • One bite at the apple - can only granted once in a person's lifetime.

41. Relief From Deportation Terms, cont. • Adjustment of Status • Deferred Enforced Departure (DED): Not a specific immigration status; Individuals covered by DED are not subject to removal from the United States, usually for a designated period of time; Have right to work. • Withholding of Removal, Asylum & Convention Against Torture (CAT)

42. Waivers • Sections of the Act which waive a person's grounds for inadmissibility or deportability • Require a LPR/USC immediate family member - LPR/USC spouse, parent, son/daughter, depends on the type of waiver sought • The foreign national must show: • Extreme hardship to a qualifying relative • Exceptional or extremely unusual hardship" to a qualifying relative • Sometimes no hardship req'd - instead is a "weighing of the equities" • Waivers are discretionary • Sometimes can "stack" waivers - apply for more than one at a time • Some waivers are only granted once in a person's lifetime

43. ADVOCATE FOR IMMIGRATION REFORM • We have an immigration system in this country that not only doesn't work, in many cases it doesn't even make any sense. Kendrick Meek • We, as a country, have not seen a significant change in immigration policy in nearly two decades, even though all Americans agree that current immigration policy is outdated and malfunctioning. Raul Grijalva • We will never stop illegal immigration until this country has a comprehensive, realistic immigration policy. Ruben Hinojosa • Going forward, as we work to strengthen our border in the interests of homeland security, we must also recognize the economic importance of immigration reform. Dave Reichert

44. Cultural Competency Defined: • Cultural competency skills allow us to learn, appreciate, and understand cultural differences we bring into any interaction with another person • Understand our own worldviews, attitudes, beliefs, and opinions • Not just about nationality, but also ethnicity, language, religion, and other factors • Not just tolerance, but shaping our behaviors to work and interact effectively and respectfully with others • Always a lesson in progress

45. Importance of Cultural Competency • Building trusting relationships • Learn how to evaluate credibility • Developing client centered case strategies and solutions • Some common sense, awareness, and willingness to learn new information

46. The Platinum Rule “Treat others the way they wish to be treated” • Try and put your own perspectives and beliefs aside

47. Be Aware of Generalizations & Categorizing People into Groups • Don’t assume anything • Learn to understand and appreciate different cultures, perspectives, and experiences • Avoid jumping to conclusions or making assumptions about individuals • Try and avoid assumptions about other’s cultural origins. • Engage, listen, and experience what others have to offer

48. Language • Don’t assume because someone doesn’t speak English well, that they are uneducated or not intelligent • Example- Most Cameroonians in the US are a tiny minority of financially connected and well educated individuals. Many have held influential positions in their home country • Many immigrants know multiple languages • Ask whether they read and write English • Do they read and write in their native language • What language do they feel most comfortable speaking

49. Don’t be Afraid to Ask… • You can plead ignorance. • Ask your client about their background, history, and heritage • How they came to the United States may affect the way they view the legal system and their understanding • Don’t be afraid to ask clarifying questions. • It may take awhile to get a client to fully open up about very sensitive subjects. • In family law area, ask about the marriage process, courtship, engagement, wedding practices. • What is a “traditional” wedding in their culture? • Did they have a “religious” wedding, a “traditional” wedding, a “legal” wedding? • What is the process of divorce in their culture? • What is their concept of “marriage” and the relationship between husband and wife? • Who gets the children? • Understanding your client’s background and ideas of marital relationship may affect how they view process. It also may make it easier to explain the US legal process and what needs to happen.

50. Cultural Competency Components Awareness - Be aware of your personal reactions to those who are different from you Attitude - being aware of your cultural biases and beliefs while also closely examining your beliefs and values about cultural differences Knowledge - learning about various cultural practices and learning to identify where personal behaviors are inconsistent with personal values and beliefs about equality Skills- practicing behaviors, attitudes, and values that allow effective communication