Immigration Issues in

New Mexico

Rebecca Kitson, Esq

Immigration Status

• United States Citizens (USC’s): born in U.S., naturalized, or acquired/derived

• Lawful Permanent Residents (LPR’s / “green card holders”): permission to live and work in U.S.

• Non-immigrants: temporary permission to work, visit, study etc.

• Temporary Legal Status: permission to stay, sometimes work in U.S., includes applicants for LPR

• Undocumented people: no status, either overstayed a legal entry or entered illegally. Includes DACA recipients (deferred action status)

The Landscape of Immigration

A National View and Perspective

The Foreign Born: What’s their status and

where do they come from?

• According to estimates, about 75% of

immigrants are living in the US legally

(as of 2015). • However, only 45% of the US population knows this to be true.

• Currently, about 34 million lawful immigrants reside in the

United States.

• There are an estimated 11 million undocumented immigrants in

the United States.

Overall Undocumented Population

Length of time in the US: Undocumented

Population

The Landscape of Immigration

A Statewide View: New Mexico

Source of much info: https://www.americanimmigrationcouncil.org/research/immigrants-in-new-mexico

Immigrants in New Mexico

Undocumented in

New Mexico

• Estimated at 85,000 in 2014

• About 4% of state population

• About 37% of foreign born population in the

state

• Estimates place 6000 -7000 DACA recipients

in New Mexico

Immigrants in New Mexico: Employment

• One in eight workers in New Mexico is an

immigrant

• Immigrant entrepreneurs represent more than

one in seven business owners in New Mexico

• 15,224 immigrant business owners

accounted for 15 percent of all self-

employed New Mexico residents in 2015

and generated $375.1 million in business

income.

Economic Impact of Immigrants in NM

• 8.4% of all business owners are foreign born

• Purchasing power of immigrants in NM $23.4 billion

• NM has approx. 3,711 foreign students who contribute

$85.1 million in tuition, fees, and living expenses

• Undocumented pay $66.3 million in state and local tax

Immigrants and Taxes in NM

Immigrants and Crime

A look at the numbers

2017 CATO Study on Incarceration Rates

Visas and Green Cards

Nonimmigrant and Immigrant Options

• Department of Homeland Security (former INS)

• ICE: Immigration and Customs Enforcement

• USCIS: United States Citizenship and Immigration Service

• CBP: Customs and Border Patrol

• Department of State

• Consulates / visa issuance abroad

• Department of Justice

• EOIR: Executive Office for Immigration Review

• BIA: Board of Immigration Appeals

• Department of Labor

• BALCA : Board of Alien Labor Certification Appeals

Who are the agency players?

• A nonimmigrant is a noncitizen who seeks entry to the US for a specific

purpose to be accomplished during a temporary stay. INA §101(a)(15)

• The purpose of that stay defines which visa class the individual should

utilize – about 22 different types

• Most derivatives cannot work, but there are exceptions

Intro to Non Immigrant Visas

Alphabet Soup:

Some Common Non Immigrant Visas

• Employment (H, I, L, O, P, R)

• H1B Visa: Garden variety, typically need a BA and a job offer

• Student Visas (F, M, J)

• F Visa: Regular academic or language study

• M Visa: Non-academic or vocational studies

• J Visa: Exchange programs, research or teaching fellowships, medical studies, etc.

• Treaty Visas (TN, E)

• Family Visas (K, V)

• K1 / K3 : Fiancé visas

• Law Enforcement Visas (S, T, U)

H1-B visas

• The US H-1B visa is a non-immigrant visa that allows US companies to employ graduate level workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.

• Quota: 65,000 per annum (the H-1B cap); 20,000 for Masters Degree recipients

• FY 2016: 233,000 applicants

• FY 2017: 236,000 applicants

• FY 2018: 199,000 applicants

• FY 2019: 190,098 applicants

Immigrant Visas / Adjustment of Status:

1. Asylum

2. Employment Based

3. Family Based

4. Various Humanitarian

FOUR PRIMARY WAYS TO A GREEN CARD

Family Based Immigration

• “Immediate Relatives” are relationships exempt from quota-based waiting lists

• If you are:

• The spouse of a US citizen

• A child under 21 years old

of a US citizen

• Parent of a US citizen child over 21 years of age

• INA §201(b)(2)(a)(i)

Family Based Immigration: Preference Categories

F1: Over 21 years old unmarried child of US Citizen

F2A: Spouse or minor (under 21, unmarried) child of a Legal Permanent Resident

F2B: Over 21 years old unmarried child of Legal Permanent Resident

F3: Over 21 years old married child of US Citizen

F4: Brother or sister of a US Citizen Generally see 8 CFR §§204.1, 204.2

The Visa Bulletin July 2018

• Most important :

• A strong showing that the foreign worker is one of the best in the field or that there are

no US workers who are able, willing, available, and qualified to fill the position.

• Preference categories are by skill / level of achievement

• Very little forgiveness for immigration violations

• Generally require planning and timing considerations

Employment Based Immigration: General

Requirements

• EB-1: Persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers.

• EB-2: Members of professions holding advanced degrees or individuals of exceptional ability in the arts, sciences, or business

• EB-3: Skilled and professional workers

• EB-4: Religious Workers

• EB-5: Special Investors

Employment Based Immigration

Asylum and related relief: Applicable Law

• Asylum citations:

• Definition INA § 101(a)(42)

• INA § 241(b)(3) – withholding

• INA § 208 – asylum

• 8 CFR §§ 208; 1208 – CAT and asylum

Refugee / Asylee :

any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, 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

• INA §101(a)(42) ; 8 USC §1101(a)(42)

Asylum

Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided,

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

What asylum is NOT

• “The limited nature of the protection offered by refugee law is highlighted by the fact that it does not cover those fleeing from natural or economic disaster, civil strife, or war….”

• Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)at 235.

• “Mere lawlessness and violence between diverse populations, of the sort which abounds in numberous countries and inflicts misery upon millions of innocent people daily around the world, generally is not sufficient to permit the Attorney General to grant asylum…” Singh v. INS, 134 F.3d 962, 967 (3d Cir. 1998)

Humanitarian Relief

• Relief resulting in LPR status:

• Special Immigrant Juveniles (SIJS)

• Abused, abandoned or neglected children

• Self-petitioning under the Violence Against Women Act (VAWA)

• Can be for children, parents or spouses of abusers

• Defenses to Removal in Proceedings

• Temporary Relief

• Temporary Protected Status (TPS)

• U and T visas : assisting law enforcement

• U visas for victims of violent crime

• T visas for victims of human trafficking

Deferred Action for Childhood Arrivals

(DACA)

• You were under the age of 31 as of June 15, 2012;

• You entered the United States prior to your 16th birthday;

• You have resided in the United States since June 15, 2007 and currently are present in the U.S.;

• You were in the United States on June 15, 2012 and must be physically in the U.S. at the time of filing for your request for deferred action;

• You entered the United States without border inspection before June 15, 2012, or your immigration status expired prior to June 15, 2012;

• You must be currently in school, have graduated, or obtained an equivalent certificate of completion from high school, successfully obtained a general education development (GED) certificate, or must have been honorably discharged from the Armed Forces of the United States; and

• You must not have been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and must not pose a threat to national security or public safety.

DACA Update

• About 700,000 currently hold DACA

• What types of applications can be renewed

• An update on the current litigation

Starting Points: Entry

• The INA is bifurcated by definition of

“entry” : INA §101(a)(13)

• The terms "admission" and "admitted"

mean, with respect to an alien, the

lawful entry of the alien into the United

States after inspection and authorization

by an immigration officer.

Substantial Areas of Trouble:

Inadmissibility INA § 212

Criminal Grounds • Crimes involving Moral Turpitude (CIMT’s)

• Controlled Substances

• Reason to believe controlled substance trafficker or is a family member who receives benefit of trafficking

• Prostitution and commercialized vice

• Multiple convictions : aggregate sentence of 5 years

Non-Criminal Grounds • Admission to ground of inadmissibility

• Current drug addiction and/or abuse

• Gang affliation

• Fraud – visa, false claims to USC, etc

• Smuggling and Trafficking

• Unlawful entry/presence

• Security / Terrorism

• Previously removed – re-entry

Substantial Areas of Trouble:

Deportability INA § 237

Criminal Grounds • Aggravated felonies : the worst of the worst

• CIMT’s

• 2 @ any time after admission or 1 w/in five years of admission

• Controlled Substances

• Domestic Violence / Stalking / Child Abuse

• May include violation of protection order

• Firearms

Non-Criminal Grounds

• Controlled substance abuser or addict

• Fraud, including voter / false claims

to USC, marriage

• Security, espionage, terrorism

Getting into Trouble

Immigration Enforcement

Immigration Enforcement

• Border Enforcement (CBP)

• Includes both immigration enforcement and

criminal prosecutions

• Interior Enforcement (ICE)

• Includes processing both the documented

and undocumented for removal

• Worksite Enforcement (ICE)

Enforcement Authority

• Arrest authority

• A DHS officer has the power to arrest a person without a warrant if the officer has reason to believe the alien is in the US in violation of law or regulation and is likely to escape before a warrant can be obtained. INA § 287(a)(2)

• However, an arrest in violation of this does not result in the dismissal of removal proceedings..

• For stopping and questioning someone, an immigration officer requires reasonable suspicion, and whether or not the stop was justified depends on the totality of the circumstances.

• They ONLY have the right to stop to determine if the person has a right to remain in the US.

• See US v Brignoni-Ponce, 422 US 873 (1975) and Lau v INS

Enforcement Authority : Detention

• Detention - Authority to detain pursuant to authority to arrest

• Civil Detention - The stated purpose or goal of immigrant detention has been to ensure that individuals appear for their removal proceedings and do not abscond after a final order of removal has been issued.

• Most immigrant detention facilities are privately run by the prison industry

Immigration Detention Issues

• Detention and Bond

• Noncitizens may generally qualify for immigration bond if not a flight risk, a danger to the community, or subject to mandatory detention

• Mandatory Detention applies to any foreign national who is:

• Inadmissible for criminal grounds §212(a)(2)

• Deportable for criminal grounds §237(a)(2)

• NOT eligible for immigration bond and will remain in detention while awaiting removal or defending their case

Immigration Enforcement in

2018

http://trac.syr.edu/phptools/immigration/r

emove/

Worksite Enforcement

• Authority under INA § 274A

• Created by Immigration Reform and Control Act of 1986 (IRCA), also included anti-discrimination legislation

• Prohibits the knowing hiring or continuing to employ an unauthorized worker. Knowledge may be actual or constructive - knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, thorough the exercise of reasonable care, to know about a certain condition.

Worksite Enforcement: Procedure

• Form I-9

• Required to re-verify when

there is a change or an

expiration of status

• These can be audited. Normally

a Notice of Inspection arrives

with Special Agents from ICE.

• Proceedings are civil versus criminal

• Our immigration court sits in El Paso, Texas

• IJ’s are appointed through DOJ

• DHS-ICE counsel represents the U.S. government

• No rules of evidence, no right to paid counsel

• Subject to limited judicial review

• Defenses typically involve a way to stay in the U.S.

• Removal (previously termed deportation) can occur in absentia

The Immigration Court:

Removal and Defense

Current

Immigration

Court Backlog

http://trac.syr.edu/phptools/immigration/c

ourt_backlog/

Children in Removal

• No age limit as to removal

proceedings or detention

• https://vimeo.com/268812608

US Citizenship

Ways to obtain

How to be a USC?

• 3 ways to become a USC

• Naturalization – a formal process

• Derivative Citizenship – through the naturalization of parents

• Acquired Citizenship – through birth in the US / territories or abroad to one or both

USC parents

• See generally INA §§301, 309, 318, 320, 322

Naturalization Requirements

• STATUS: Lawfully admitted for

LPR status

• AGE: 18 years old

• PHYSICAL PRESENCE &

RESIDENCY

Naturalization Requirements

• GOOD MORAL CHARACTER :

• no definition, but see INA 101(f)

• 3/5 year period required, may look beyond in the agency’s discretion

• Lack of GMC may include not paying child support, commission of crimes, alcoholism, disregard for the laws, wellbeing of the community

• Selective service registration is required

• Attachment to the Principles of the Constitution

• And favorable disposition to the good order and happiness of the US

• Literacy and Knowledge of History and Government

• Exceptions: disability, 15/55 20/50 20/60

Derivative & Acquiring Citizenship

Derived through parent’s natz

• Usually after a child immigrates as an LPR

• While child is under 18 years old, one or both parents naturalize (custodial parent)

• Child Citizenship Act 2/27/01 broadened the qualifications

Acquired at Birth • Jus soli or jus sanguinis – by soil or blood

• By blood – born abroad to one or more USC parents, often involves requirements that the parents have lived in the US for a certain period of time in order to pass on US citizenship.

• Requirements have changed through time

Thank You!!

• Rebecca Kitson, Esq.

• rk@rkitsonlaw.com

• www.rkitsonlaw.com