Immigration 101: IMMIGRATION FOR THE NON-IMMIGRATION ATTORNEY 1

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<ul><li>Slide 1</li></ul><p>Immigration 101: IMMIGRATION FOR THE NON-IMMIGRATION ATTORNEY 1 Slide 2 PRESENTED BY: Sue Swanson Anna Stenson North Dakota States Attorneys Association Summer Conference June 22, 2012- 11:00 AM- 1:00 PM 2 Slide 3 3 Slide 4 GOVERNMENT AGENCIES 4 Slide 5 1)U.S Department of Homeland Security (DHS) USCIS- United States Citizenship and Immigration Services ICE Immigration and Customs Enforcement CBP Customs and Border Protection 2)U.S. Citizenship &amp; 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 3)U.S. Customs &amp; Border Protection (CBP) Reviews immigration paperwork at all U.S. Ports of Entry Determine whether a foreign nationals eligibility to enter the U.S. Airports, at the border, within 100 miles of border 4)U.S. Immigration &amp; 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. 5)U.S. Department of State (DOS) Issues visas and passports to foreign nationals that allow them to enter the U.S. 5 Slide 6 GOVERNMENT AGENCIES, cont. 5)U.S. Department of Justice Office of Special Counsel for Immigration Related Unfair Employment EOIR- Executive Office of Immigration Review 6)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 7)Board of Immigration Appeals Reviews decisions made by immigration judges 8)Office of Refuge Resettlement 9)Department of Labor (DOL) 6 Slide 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 7 Slide 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. 8 Slide 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. 9 Slide 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. 10 Slide 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 11 Slide 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. 12 Slide 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. 13 Slide 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. 14 Slide 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. 15 Slide 16 United States Visa 16 Slide 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- Visitors visa. Many visitors 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. 17 Slide 18 I-94 Card Example 18 Slide 19 Proof of Status in the U.S. Student Visa holders are an exception to the rule. They may have a visa, which doesnt 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. 19 Slide 20 I-20 Example 20 Slide 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 21 Slide 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. 22 Slide 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 23 Slide 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. 24 Slide 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 25 Slide 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) 26 Slide 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 27 Slide 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 28 Slide 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 29 Slide 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). 30 Slide 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 govt 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 31 Slide 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 32 Slide 33 Plea Deals Consult an immigration attorney BEFORE entering your client into a plea agreement Safe haven offenses Minimize immigration consequences 33 Slide 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 34 Slide 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 &amp; 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 35 Slide 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 36 Slide 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 o States the nature of proceedings and legal authority o Lays out the facts and alleged illegal conduct o Specifies the Charges and statutes allegedly violated o must give address and telephone number; time and place of hearing and consequences of failing to appear. 37 Slide 38 Deportation Court Terms, cont. Unlawful Presence- if an alien is present in the U.S. after expiration of stay author...</p>

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