Visa Lawyer Blog

Articles Posted in Criminal Convictions

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The Trump administration has ended an Obama-era policy that required immigration officials to release pregnant women in detention from federal custody. As of at least December, the Trump administration has directed Immigration and Customs Enforcement (ICE) to treat pregnant detainees as they would any other, except for women who have reached their third trimester. The new policy change aligns with the President’s hard line stance on immigration, and executive orders signed into law by the President during the past few months.

Under the new policy, immigration officials must now make a case-by-case determination “taking any special factors into account,” when deciding whether to release pregnant women in federal custody, including whether the alien has an asylum claim based on a credible fear of persecution. Other factors that are taken into account include the woman’s medical condition, potential danger to the public, and potential for flight. Pregnant women who remain in detention will continue to receive necessary medical care and a record of pregnant women in custody must be kept by immigration officials.

Philip Miller, ICE Deputy Executive Associate Director, divulged that 35 pregnant women are currently in federal custody subject to mandatory detention, and that 506 pregnant women have been detained by ICE since December. Miller however would not comment on how many of these women were deported, or released from detention. “In terms of risks to the community, we look at criminal history. Just as there are men who commit violent acts, heinous acts, so too have we had women in custody who have been convicted of committing heinous, violent acts,” Miller commented when discussing the factors that mitigate against release.

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Last week, United States Immigration and Customs Enforcement (ICE) launched a series of immigration enforcement operations nationwide, otherwise known as “raids” to crack down on illegal immigration. The operations took place over a five-day period in the metropolitan cities of Los Angeles, Chicago, Atlanta, San Antonio, and New York City, and resulted in the arrest of more than 680 individuals. According to the Department of Homeland Security, these raids were targeted at convicted criminals unlawfully present in the United States, persons who are a threat to our public safety, including gang members, and “individuals who have violated our nation’s immigration laws” by illegally re-entering the country after having been removed, including fugitives who could not be found after having been ordered removed by federal immigration judges. Additionally, DHS reported that of those who were arrested, approximately 75 percent were criminal aliens, convicted of crimes including “homicide, aggravated sexual abuse, sexual assault of a minor, lewd and lascivious acts with a child, indecent liberties with a minor, drug trafficking, battery, assault, DUI and weapons charges.”

Communities across the United States went into uproar, after reports began pouring in that hundreds of non-threatening individuals including mothers and children were being taken into custody and removed from the United States during these operations. One of the first such individuals to be arrested was Guadalupe Garcia de Rayos, a Mexican mother of two U.S. Citizen children, who was detained by ICE at a routine check point in Phoenix, after having lived 20 years in that state. Garcia de Rayos had come to the United States illegally as a child. She was arrested during a 2008 raid on her Arizona workplace on suspicion that the business was hiring undocumented immigrants using fraudulent IDs. Garcia de Rayos was taken into custody six months later, when investigators discovered discrepancies in her employment documents. She pled guilty in 2009 to criminal impersonation and was sentenced to 2 year’s probation. Despite these offenses, Guadalupe was considered to be a “low priority” of enforcement and was required to check in with immigration officials.

After news broke of her arrest, the Mexican Foreign Ministry issued a statement urging Mexican nationals to contact the Mexican consulate for immigration assistance, information relating to their immigration rights, and protections offered to them by the Center for Information and Assistance to Mexicans (CIAM). According to the Foreign Ministry, Mexican consulates in the United States have allocated additional resources to protect the rights of Mexican nationals. The Foreign Ministry added that they anticipate these immigration raids will increase in severity and are likely to violate the due process of rights of Mexican nationals.

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The Department of Homeland Security has released its end of the year statistics for fiscal year 2016 reflecting immigration enforcement priorities for convicted criminals, threats to public safety, border and national security. The report found that during fiscal year 2016, 530,250 individuals were apprehended nationwide, and a total of 450,954 individuals were removed and returned to their countries of origin. For their part, the U.S. Border Patrol reported a total of 415,816 apprehensions nationwide, an increase in 78,699 persons, when compared to fiscal year 2015. For their part, the U.S. Immigration and Customs Enforcement (ICE) arrested 114,434 individuals during fiscal year 2016, a decrease in 10,777 persons, when compared to fiscal year 2015. During fiscal year 2016, the U.S. Customs and Border Protection (CBP) Office of Field Operations identified 274,821 inadmissible individuals at ports of entry nationwide, an increase in 21,312 persons, when compared to fiscal year 2015. Lastly, ICE reported that during fiscal year 2016 they removed or returned 240,255 individuals, an increase in 4,842 individuals when compared to fiscal year 2015.

The report highlighted that the Department of Homeland Security has successfully honored the Obama administration’s immigration enforcement priorities announced in November 2014, which prioritize the deportation of national security threats, individuals attempting to enter the United States unlawfully, and convicted criminals. As evidence of this, the report states that during fiscal year 2016, ninety-eight percent of initial enforcement actions involved individuals which fell into one of three enforcement priority categories. The report indicates that ninety-one percent of apprehensions fell within the top priority for individuals who either presented a national security threat, attempted to enter the United States unlawfully, or were convicted of a crime (including gang members).

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On Friday December 9, 2016, Democratic Senator Dick Durbin of Illinois, and Republican Senator Lindsey Graham of South Carolina, introduced the “Bar Removal of Individuals who Dream and Grow our Economy” BRIDGE act before Congress to protect Dreamers from deportation, and allow them to keep the temporary employment authorization (EAD) they currently possess. This legislation was introduced to provide temporary relief to the young, undocumented, immigrant population that was issued Deferred Action for Childhood Arrivals (DACA) or “deferred status” by President Barack Obama in 2012. Amid mounting pressure to protect the existing DACA program, as well as feelings of fear and uncertainty surrounding the future of the program, several Democratic and Republican Senators have come together to save the program from the Trump administration including Senators Dianne Feinstein, Lisa Murkowski, and Jeff Flake. As you may remember, DACA was first introduced by President Obama in 2012 to provide undocumented immigrants who came to the United States at a young age, the opportunity to apply for employment authorization, and be protected from deportation. DACA is not a form of amnesty, and does not provide a path to permanent residency or citizenship. DACA recipients, commonly referred to as “Dreamers” in the media, are undocumented persons who came to the U.S. as young children, and are pursuing the American Dream through higher education or military service in the United States.

Last week, just before Congress went into recess before the winter holiday, Senator Graham along with other Senators introduced the “Bar Removal of Individuals who Dream and Grow our Economy” (BRIDGE) act which will give current DACA holders “provisional protected presence” for a three year period, as well as undocumented persons who are eligible for the program, but who have not yet applied.  Although this act is not a revelation, given that this “provisional protected presence” sounds a lot like “deferred status” which DACA has already conferred upon DACA recipients, the legislation does promise to protect this population of undocumented immigrants from deportation, and allow them to continue living, working, and studying in the United States without the need to fear deportation. The criteria will also be the same as the eligibility criteria for the DACA program. At the very least this piece of legislation if passed, will protect current DACA holders from losing the temporary employment authorization they already possess, and will shield young undocumented people who would otherwise be eligible for the program, from deportation under the Trump administration.

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One of the most common questions we often receive during in person and telephonic consultations is whether an aggravated felony may decrease a person’s chances to legalize their status in the United States. The harsh reality is that the immigration options for noncitizen aliens convicted of an “aggravated felony” are severely limited, and in most situations, the immigration laws of the United States subject these individuals to the harshest deportation consequences. Even if you have been lawfully admitted to the United States or are currently a Legal Permanent Resident (LPR) you may be subject to deportation if you commit an aggravated felony. In other words, so long as you are a noncitizen alien, you may be at risk of deportation if you are or have been convicted of what is considered an “aggravated felony” in the United States or any other country. What’s more, aggravated felons lose many of the privileges that are designed to provide relief to individuals from deportation, and in some cases these individuals may be prevented from re-entering the United States permanently, following removal from the United States. The immigration laws of the United States, passed by Congress, contain numerous provisions that are designed to keep criminals outside of the United States, and in turn prevent criminals from being allowed to remain in the United States. While Congress has recognized that there are few exceptions to the rule that should be made in cases where there is a compelling argument to be made in favor of allowing a person found guilty of an aggravated felony to remain in the United States, having taken into consideration the fact that an immigrant’s removal may result in extreme hardship for U.S. Citizens. Unfortunately, these exceptions are very few and far in between, and deportation is the most probable outcome. When it comes to crimes of moral turpitude and crimes that fall under the category of “aggravated felonies” the U.S. immigration system is very unforgiving.

What is an aggravated felony?

An aggravated felony is a term that describes a particular category of offenses that carry with them harsh immigration consequences as punishment for noncitizen aliens who have been convicted of these types of crimes. Noncitizens who have been convicted of an aggravated felony lose the opportunity to apply for most common forms of relief available to law abiding noncitizens, that would have shielded them from deportation. Noncitizens who have been convicted of an aggravated felony for example are ineligible to apply for asylum and may not be readmitted to the United States in the future. An “aggravated felony” is an offense that Congress has labeled as such, and does not actually require the crime to be considered “aggravated” or a “felony” to qualify to be an “aggravated felony.” In other words, the term must not be taken literally. Many crimes that are labeled “aggravated felonies” are nonviolent in nature and constitute minor offenses, nonetheless these crimes fall under the Congressional categorization of an “aggravated felony.”

The myth of what constitutes an “aggravated felony”

For purposes of immigration law, an offense does not need to be considered “aggravated” or a “felony” in the place where the crime was committed to be considered an “aggravated felony” under the Congressional definition of “aggravated felony.” There are numerous non-violent and trivial misdemeanors that are considered aggravated felonies per the immigration laws of the United States. At its inception, the term referred to crimes that were of a violent and non-trivial nature including such crimes as murder, federal drug trafficking, and illicit trafficking of firearms. Today, Congress has expanded the types of crimes that fall under the category of “aggravated felonies” to include non-violent crimes such as simple battery, theft, the filing of a false tax return, and failure to appear in court when summoned. To view the complete list of aggravated felonies under the Immigration and Nationality Act please click here. Other offenses that fall under this category include sexual abuse of a minor, although some states do not classify these crimes as misdemeanors or criminalize such behavior for example in cases of consensual intercourse between an adult and a minor. In most situations, a finding of any of these offenses will result in the loss of most immigration benefits, and in cases where the noncitizen is already a legal permanent resident or is in lawful status, the noncitizen will be subject to deportation.

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The eventual goal of most immigrants, residing in the United States temporarily, is to gain United States Citizenship, and later to immigrate their immediate relatives to the United States. It is very difficult however to obtain U.S. Citizenship, and there are important requirements that must be satisfied before applying. For starters, you must meet the minimum age requirement to apply, you must also be a legal permanent resident (LPR) of the United States (green card holder) for a certain period of time before you may apply. In addition, you must prove that you have maintained your legal permanent resident (LPR) status by demonstrating that you have remained continuously physically present in the United States. Lastly, you must be competent in the English language, and be a person of good moral character in order to apply for U.S. Citizenship. There are many valuable benefits conferred to U.S. Citizens. The most important benefit is that U.S. citizens are entitled to protection from the United States government in exchange for their allegiance to the country. Secondly, unlike green card holders, U.S. Citizens may leave the country and travel abroad for any length of time without having to worry about returning to the United States to maintain their immigration status. U.S. Citizens can also apply for immigration benefits for their immediate relatives and other family members more quickly than legal permanent residents. Legal Permanent Residents may also lose their immigration status and risk removal from the United States if they are convicted of serious crimes such as crimes of moral turpitude. U.S. Citizenship is also required for many jobs in the United States including law enforcement. Generally, there are also greater employment opportunities for American Citizens.

When applicants sign the N-400 application for naturalization they are promising to support the United States constitution, obey all of the laws of the United States, renounce foreign allegiances and/or foreign titles of nobility, and bear arms for the Armed Forces of the U.S. or to perform services for the U.S. government when called upon. The N-400 oath of allegiance must be taken very seriously. If you are not prepared to support the U.S. Constitution and bear arms for the U.S., you should not apply for citizenship.

General Naturalization Requirements

In order to apply for naturalization, applicants must satisfy all of the requirements below except for members of the armed forces and their immediate relatives. Members of the armed forces may apply for expedited naturalization as indicated below.

  • Language Requirement: You must be able to read, write, speak, and understand the English language in order to take the Citizenship test, although exemptions exist for certain applicants.

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Massachusetts Governor Charlie Baker has proposed a new policy that will allow State Police to contact federal immigration authorities for the purposes of verifying the immigration status of suspects already in custody on state criminal charges. In taking this step, Governor Baker, a Republican, is undoing the actions of his Democratic predecessor, ex-governor Deval Patrick. This new proposal will be put in place to allow federal law enforcement officials to better combat terrorism, gangs, and other activity of a criminal nature in the state of Massachusetts. This policy will affect undocumented immigrants, as well as legal permanent residents, with extensive criminal records or those convicted of serious crimes of moral turpitude.

State police will not be able to apprehend individuals based on immigration violations alone. Instead, as a result of this new policy, state troopers will be able to contact Immigration and Customs Enforcement (ICE) and inquire with ICE whether a person in custody is considered a ‘priority target.’ A ‘priority target’ is someone who has extensive criminal history or poses a security risk. By law, state police cannot enforce federal immigration law, but they will be able to assist federal law enforcement officials in detaining individuals in custody who pose a significant threat to the country’s national security.

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