WHY
CHOOSE US
CHOOSE US
A recent report from the ABA calls for a complete overhaul of the immigration court system. Under the ABA’s proposed reforms, Immigration Courts would become Article I courts, making them similar to bankruptcy court in that it would be independent of the Justice Department. This could give them what they need to restructure their services and provide a smoother, more efficient, and more just court.
The Justice Department is refusing to comment.
The ABA has no power to make new laws, but it can make strong recommendations which lawmakers may take into account. Sadly, many of these same recommendations were made in 2010, to no avail.
US Immigration Court is currently beset by a number of problems.
Low Funding
The US government has drastically increased funding for Immigration Law Enforcement, even as they’ve drastically cut funding for Immigration Courts.
This has led to a shortage of judges, which has, in turn, has led to many other problems including delays, backlogs, and unrealistic case loads. For example, some immigrants get as little as seven minutes to see their fate decided, one way or another.
The Washington Examiner says the backlog is up by 300%.
Funding isn’t the only factor. As immigration law enforcement gets more aggressive, the number of cases rises. And judges, well aware of the pressures and the absurdities of the system, are burning out in record numbers. Some news outlets report they’re burning out even faster than doctors and prison wardens.
Pro Se Defendants
Immigration courts are considered civil courts instead of criminal courts, even though ICE detains immigrants until their hearing and wants them deported when the hearing is done. This means there is no automatic right to counsel the way there would be in criminal court.
More than 80% are forced to go in without lawyers, which means they’re pitted against federal prosecutors and are held to the same standard as a fully trained lawyer. As one might imagine, this rarely ends well for the defendants. And as surreal as it is, some of these defendants are babies and toddlers.
If you know you have an upcoming case in Immigration Court one of the wisest things you can do is to get an immigration lawyer on your side so you don’t have to go up against a federal prosecutor alone.
If you or a family member is in trouble with immigration enforcement, call our office for help. We’re extremely experienced in deportation, separation, and detention cases. Hykel Law is ready to help.
At the end of 2018, we had several high-profile news stories break around immigration law in the United States. While several of these stories, from the border wall to expected changes to visa schemes in 2019, highlighted the complexities of current immigration policy, one story stood out from the rest – the status of asylum. Claiming asylum has been an important part of U.S. immigration policy since it’s modern inception in the Refugee Act of 1980, but rarely has the acceptance and policy around asylum been debated this extensively.
As we move into 2019, it is crucial to understand the current law on claiming asylum in the United States, and what could change in the months to come. It is also important to associate these particular immigration laws with events happening on the United States’ southern border. Read on to learn more from our top-rated immigration team in Philadelphia.
The United States has always welcomed immigrants and refugees from around the world. At certain periods in history, we’ve done this better and more effectively than others, but in many ways claiming asylum is part of the national DNA. As far back as 1951, the United States began entering treaties and international agreements that committed the country to accept refugees from various place and circumstances.
Then in 1980, the process of claiming asylum in the United States became an explicit part of federal law. The Refugee Act of 1980, as an amendment to the Immigration and Nationality Act, gave the Attorney General of the United States the power to grant an individual asylum when that person is unable or unwilling to return to his or her home country because of persecution or feared persecution.
However, not all persecution is included in the definition of “refugee” under this 1980 law. It must be persecution on the basis of, “race, religion, nationality, membership in a particular social group, or political opinion.” This remains the definition of refugee status in the United States, but the level of scrutiny applied to an asylum claim has changed drastically.
There are several procedures important to claiming asylum today, in a future blog post we will dive further into what these standards mean and how an immigration lawyer in Philadelphia can help someone claiming asylum. Here, we will focus on the law and more specifically on claiming asylum at the U.S. border or as an undocumented immigrant in the United States.
If an asylum seeker doesn’t have permission to be in the United States, such as a visitor visa or student visa, then the first step is approaching a U.S. immigration agent or Customs and Border Protection officer. Upon claiming asylum, the agent or officer should allow the asylum seeker to start the screening process for asylum. The initial standard for these asylum seekers is the credible fear test.
The individual claiming asylum must demonstrate a credible fear of persecution (or torture) upon returning to his or her home country. Credible fear is assessed in a one-hour interview with the asylum seeker. The standard is defined as a “significant possibility” that, if the asylum seeker’s statements were true, he or she would receive asylum in the United States. Passing this test is not a grant of asylum and it is a much lower bar than the test for eventually receiving asylum.
A bad outcome from a credible fear interview usually results in detainment and deportation. Sadly, there are few opportunities for an asylum seeker to navigate other options or avenues. The expediency of the process, particularly in today’s immigration climate, shows the importance of involving an immigration lawyer early on in your case.
A favorable outcome from a credible fear interview means the asylum seeker’s case becomes part of removal proceedings in an immigration court. A full hearing is conducted and both the government and asylum seeker are expected to present evidence on why asylum is appropriate or not. It can take years for this hearing to occur and the individual claiming asylum is permitted to stay in the United States in the meantime.
The number of asylum seekers refused asylum in the United States is growing. Former Attorney General, Jeff Sessions, even claimed that 80% of all asylum cases aren’t fit for approval. It is true that in 2017, only 20% of the asylum applications submitted, by undocumented individuals in the country and individuals abroad, were approved. Although, it isn’t clear that the remaining 80% were denied on the merits of the asylum seeker’s case.
The attributes of a typical asylum seeker in the United States has changed greatly in the past 10 years. Today, a large number of individuals claiming asylum are coming from Central America and a substantial number of them are women, children, and families. These asylum seekers are traveling thousands of miles to claim asylum at the border, but are now finding a long wait just to make their claim.
Migrants are waiting months, sometimes even longer, on the Mexican side of the border to make their claim for asylum. There is a long list of individuals hoping each and every day to hear their name called just for the opportunity to reach a U.S. border officer or reach the United States at an official point of entry. These long waits don’t include the process of a credible fear interview or asylum case, and the individuals still waiting aren’t counted in the 80% that have their asylum claims denied.
At Hykel Law, we regularly work with individuals wanting citizenship in the United States, people that need a work visa or temporary visitor visas, and people claiming asylum. If you or a loved one needs more information on asylum and the assistance of an immigration lawyer, contact us at (215) 246-9400.
The United States Supreme Court has agreed to decide whether President Obama’s DAPA and Extended DACA Programs will go forward. DAPA (Deferred Action for Parental Accountability) and DACA (Deferred Action for Childhood Arrivals) are program for persons who have resided in the United States for five (5) years and currently do not have a lawful immigration status, but who the government does not want to deport. President Obama announced these programs in November of 2014 and they were meant to begin in 2015, but a 26 States filed a lawsuit in District Court seeking an injunction to stop the programs. A federal court judge granted the injunction and the Court of Appeals for the Fifth Circuit upheld the ruling, which prompted the Obama Administration to seek review in by the highest court of the land.
The Supreme Court will hear the case and a decision will be rendered by June of 2016. This means that eligible persons will have a chance to apply for deferred action before the President leaves office. The following undocumented persons will be eligible for deferred action, a social security number and driver’s license:
Expanded DACA:
DAPA:
Call Hykel Law today to find out if you may be eligible for DAPA or Extended DACA: 215 246-9400.
On November 20, 2014, President Obama announced a series of immigration reform plans to be implemented in 2015. This plan came after Congress failed to pass a comprehensive immigration reform bill, despite its passage through the Senate. The President’s new plan has three objectives:
1) Crack down on illegal immigration at the border;
2) Deport felons – not families; and
3) Accountability for persons residing in the United States with US citizen or lawful permanent resident children through payment of taxes and background checks.
The President’s plan has two components – 1) deporting criminals and – 2) reforming existing programs to provide accountability, tax revenues and efficiency for persons who have long awaited lawful status and citizenship.
Immigration reform is needed to strengthen our society and our financial well -being. Something all Americans need to understand is that we cannot afford to deport 11 million people currently living in the United States without lawful status. AnImmigration reform update is needed for financial reasons as well as humanitarian reasons. Implementation of the President’s plan is predicted by a conservative think tank to reduce the deficit by 2.5 trillion dollars, strengthen the GDP and stimulate the economy.
Many people who do not have lawful immigration status come to our country to flee unstable, dangerous places and pursue a better life for their families. They have U.S. citizen children, they enrich our communities with an exceptional work ethic and strong family values. These people have no criminal infractions and often have been victims of crimes themselves.
Deporting Criminals, Not Families
Immigration and Customs Enforcement (“ICE”) has long exercised discretion as to who it should focus time and resources on deporting. This means that if ICE is aware of a convicted felon who lacks status and a mother of three US Citizen children who has no arrests, it will use resources to deport the convicted felon before it may ever contact the mother.
This is referred to as the exercise of prosecutorial discretion (“PD”). PD has been going on for decades as ICE has long recognized that resources are limited.
Contrary to what many think, President Obama has deported more people than any President in American history as can be seen by Pew Research here.
President Obama’s immigration reform detailed three types of people that are enforcement priorities, recorded here.
Here is a brief summary of the immigration plan:
strong>Priority 1 High Level Criminals
Priority 2 Lower Level Criminals and Illegal Entrants
Priority 3 Foreign Nationals with Final Orders for Deportation
The President has prioritized criminals for deportation from the United States by directing ICE to remove such persons. Hard-working, law abiding families are not prioritized by Obama on immigration reform plans.
Reforming Existing Programs
President Obama has made provisions for other existing programs and published detailed guidelines outlining the new program available here:
1) Deferred Action for Childhood Arrivals (DACA) will now include people who have been living in the United States as of January 1, 2010, before reaching the age of 16, and will no longer have an upper age restriction of 31 years of age. Additionally, DACA recipients will get work authorization for a period of three (3) years, not two (2) years. This program is currently subject to a temporary restraining order issued by a Texas District Court Judge. The Obama Administration appealed the order to the Fifth Circuit. Until a decision is made, the program is on hold.
2) Deferred Action for Parental Accountability (DAPA) is a new program that will allow persons who were parents of U.S. citizens or Lawful Permanent Residents (green card holders) as of 11/20/2014 who have resided continuously in the United States since January 1, 2010 and have not committed certain criminal offenses to obtain employment authorization. This too is on hold pending the Fifth Circuit’s decision.
3) Provisional Waivers of Unlawful Presence will now be available for undocumented persons who have lived in the United States for at least 180 days who are the sons and daughters of U.S. citizens or the spouses, sons or daughters of Lawful Permanent Residents (green card holders). This means that persons can ask for a waiver of unlawful presence from the United States without going abroad and waiting for a consular post to adjudicate the waiver request for several months outside the country.
4) Pre-registration for foreign nationals who have approved I-140 Petitions and are waiting for a visa number to file for adjustment of status (green card). This will be a huge benefit for persons who have an approved visa petition but cannot file for Employment Authorization (“EAD”) due to the waiting line for visas. The persons will be able to apply for a travel document and EAD.
5) H-4 Employment Authorization will become available for certain spouses of H1-B employees who have an approved visa petition but cannot file for adjustment of status because they are waiting for a visa to become available.
6) U.S. Citizenship Application Fees may be able to be paid with a credit card to encourage individuals to apply for U.S. citizenship.
The President’s Executive Action is estimated to provide relief to 5 million people.
The latest immigration reform news available from USCIS can be viewed here.
Criminal Background Checks and Taxes
In order to qualify for DACA, or DAPA persons must first pass a background check. If it is discovered that the applicant committed certain crimes, he/she will not be granted DAPA and will likely be referred to deportation proceedings before an Immigration Judge. Additionally, DACA and DAPA recipients will be required to pay taxes. In reality, these individuals are likely already working, but Uncle Sam receives no revenue from them. We will all benefit from the latest on immigration reform.
Who are undocumented, or illegal, immigrants? Politicians, news media, and others seem opinionated, but often ill-informed about who these people are, where they came from, and how they fit into American society. Recent changes to the U.S. immigration policy have been proposed, and in some cases passed into law, by the Obama administration.
Who are undocumented immigrants?
An undocumented immigrant and an illegal alien both refer to foreign nationals who do not currently possess a lawful immigration status in the United States. The term “illegal alien” or “illegal immigrant” is a bit disparaging; it sounds like a UFO landed and dumped out foreign creatures that are less than human. These are people; many of them are hard-working people with strong family values simply seeking a better life. The term “undocumented immigrant” though not entirely accurate, is at least not derogatory. Some people come to the United States pursuant to a lawful non-immigrant status such as visitor, student or temporary worker, but stay longer than they are authorized. These people do have immigration documents, therefore, they aren’t exactly “undocumented,” their documents are just expired. These foreign nationals are often referred to as “overstays.”
Many of these people came to the USA with a lawful non-immigrant status such as visitor, temporary worker, student, diplomat or spouse/child of a lawful non-immigrant, but remained in the United States after the expiration of their period of authorized stay.
Penalties For Unlawful Immigration
The Immigration and Nationality Act (“INA”), the federal statute which governs immigration throughout the United States, provides harsh penalties for foreign nationals who sneak across the United States border as opposed to those who are lawfully admitted to the United States after inspection from a US immigration officer.
The biggest penalty is that, generally, persons who sneak over the US border are not eligible to later adjust their status to a lawful permanent resident (green card holder) whereas, in some circumstances, people who are admitted and inspected but overstay their non-immigrant status can. This becomes particularly important for people who have accrued more than 6 months or 1 year of unlawful presence in the United States because once such persons depart, they are banned from re-entry for periods of 3 years and 10 years, respectively.
Amnesty Programs
Since 1986, there have been several “amnesty” programs for persons without a lawful immigration status residing in the USA. Amnesty is a broad term used to refer to laws that allow otherwise ineligible foreign nationals to regularize their status in the United States. The most recent bill to be passed through Congress was pursuant to the LIFE Act, passed in December 2000, which allowed foreign nationals who were present in the United States as of December 21, 2000 and who had an immigrant visa petition filed on their behalf to obtain lawful permanent resident status (green cards) if they paid a penalty of $1000.00. This is codified in Section 245(i) of the INA.
In 2013, another attempt was made to offer amnesty to additional people with a long physical presence in the United States who passed background checks and paid a $1000 fine. The bill passed the Senate, but not the House of Representatives. In response to Congress’ inability to pass a bill, President Obama issued executive ordersto defer action for childhood arrivals and parents of US citizen children who passed background checks. Some of the Presidents’ measures, including the Expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) have been stopped by a federal court judge in Texas, though the case is on appeal in the Fifth Circuit Court of Appeals.
Lacking Lawful Immigration Status
Many immigrants who lack current status – especially children – lack status through no fault of their own. Many childhood arrivals do not learn until they become teenagers and attempt to apply for driver’s licenses, apply to college or seek employment, that they do not have a lawful status. Many of them know no other home besides the United States and speak no other language besides English.
Though rare, a small number of adults are living in the United States without a lawful immigration status and they may not even know it. This comes up in the case of children of diplomats who are born in the United States. Most diplomats are not subject to the jurisdiction of the United States, therefore, under the 14th Amendment of the US Constitution, they are not U.S. citizens at birth because they too are not subject to the jurisdiction of the United States. Unfortunately, these families do not know this and in the case of children who break residence in the United States and later return thinking they are US citizens, in fact, they are not.
Cost of Deportation
Recent studies on illegal immigration statistics estimate approximately 11 million immigrants lack documentation. Why doesn’t the US government simply deport them? The most practical reason is that it is too expensive. Illegal immigration statistics show that it costs approximately $18,000 to apprehend a person, and $3,300 to detain a person for 30 days. Some estimate that it would cost over $200 billion to deport every undocumented immigrant, and the entire requested agency budget for the Department of Homeland Security (“DHS”) for fiscal year 2016 is $41.2 billion.
To put that number in perspective, DHS includes many sub-agencies: the immigration and citizenship agency (USCIS), Customs and Border Patrol (CBP), airport security (TSA), the Secret Service, Immigration and Customs Enforcement (ICE), emergency response (FEMA) and the US. Coast Guard. Funding DHS even for this amount proved challenging this year as political debates over immigration nearly resulted in Congressional failure to fund the agency.
Well aware of its limited resources, DHS focuses it efforts of deportation of criminal aliens and persons apprehended at the border. As of January 1, 2015, DHS has clear directives to first deport convicted felons and terrorists, then those convicted of three significant misdemeanors, then those who are apprehended at the border or have a final order of deportation after Jan. 1, 2014. DHS is also directed to disregard or “defer action” of deportation for those who have US citizen children, or may qualify for an immigration benefit and have no criminal infractions.
Immigration law is always changing, as is the social and cultural response to immigration. Undocumented immigrants are afforded certain rights in America, and deportation or going to jail is not typical for non-criminals. Proposed changes to immigration law may allow people to more easily immigrate to America, but the topic remains complex and politically charged.
In the wake of the November 2014 election, President Obama appears to be following through on his promise to millions of immigrants in the United States awaiting immigration reform. The President has stated:
“I indicated to (House) Speaker (John) Boehner several months ago that if in fact Congress failed to act I would use all the lawful authority that I possess to try and make the system work better. And that’s gonna happen, that’s gonna happen before the end of the year,” said Obama.
Though the details as to who will be eligible for benefits have not been announced, the changes are expected to provide work authorization for millions of people who may not otherwise qualify. Hykel Law will be ready to assess your case to determine if you qualify, prepare and file your case as soon possible after the formal announcement. Read about the President’s intentions here.
We look forward to helping you with your immigration case. We have the experience, knowledge and staff to handle your matter swiftly. Reach out today to discuss your needs for representation.