Articles Posted in Deportation & Removal

We all have been reading about The Obama administration changing the federal immigration enforcement strategy, in ways that reduce the threat of deportation for millions of illegal immigrants.

The changes focus enforcement on immigrants who have committed serious crimes, an effort to unclog immigration courts and detention centers. A record backlog of deportation cases has forced immigrants to wait an average 459 days for their hearings. But recent statistics paint a slightly different picture.

U.S. Immigration and Customs Enforcement Director John Morton said today his agency deported nearly 400,000 individuals during the fiscal year that ended in September, the largest number of removals in the agency’s history.

This is interesting. An illegal immigrant who filed a civil lawsuit over the ownership of a $750,000 lottery ticket has won the right to stay in the country to fight his legal battle. His lawyer, successfully sought a deferred action on Cua-Toc’s removal order from the U.S. Department of Homeland Security. The deferred action allows Cua-Toc to temporarily remain in the U.S. to have his day in court.

Deportation, also known as removal, is the process of expelling a foreigner from the country. Because it can be tough to fight your case when you’re no longer living in the United States–and because deportation can cause tremendous stress to you and your family–you should ask to have your deportation postponed while pursuing all legal avenues. This postponement is called a stay of deportation or stay of removal. A stay is a temporary suspension of an action. When we talk about a stay of deportation or a stay of removal, it means that the judge or court has postponed a scheduled deportation.

Different government agencies are involved in the immigration process. Each agency handles requests for a stay of deportation differently. Typically, a stay of deportation would be requested while you are appealing your case. An appeal occurs when you ask a higher court to review the decision of a lower court in hopes that the higher court will decide that the lower court made a mistake in its decision.

Using a little-known government program, the United States Department of Homeland Security (DHS) has pushed nearly 160,000 immigrants — many with deep ties to the United States — through an expedited deportation process, sometimes without adequately informing them of their right to a day in court. Federal authorities are increasingly deporting illegal immigrants through a fast-track program that bypasses court hearings, an effort by the federal government to save money, reduce backlogs and clear detention beds. We see this everyday in our practice as well.

The U.S. has deported more than 160,000 immigrants, the vast majority of whom had no legal representation — and signed documents they may not have understood — under a program that carries severe penalties should they reenter the country. According to the National Immigration Law Center and professors at Stanford Law School and Western State University College of Law, immigrants often signed the so-called stipulated removals because they believed it was the only way to avoid prolonged detention. But by agreeing to the removal order, immigrants can be barred from returning to the U.S. and be subject to criminal prosecution for illegal reentry.

According to a new report, the program, which began nearly a decade ago and dramatically expanded in 2003, has been encouraged by U.S. Immigration and Customs Enforcement (ICE) officers at various levels of the organization. According to documents reviewed by the authors of the report, field offices were encouraged to use the program to boost deportation numbers and given incentives to increase the number of stipulated orders of removal signed by detainees in their jurisdictions.

We wanted to be the first to report of an alarming trend that we just learned about last month. Over the past month we received calls from family members of detained individuals who were picked up coming into San Diego via domestic flights from NYC, Miami and Atlanta. Most of the individuals were here on expired visas, but with no criminal records. Until now, Immigration officials were not looking for individuals moving in the US on internal flights without a special reason.

We also learned from a TSA official, and from a Delta employee, that the government is acting on a tip connected to a drug enforcement operation from the above referenced destination. We feel that this may be also related to Immigration enforcement at the same time.

In the past, increased border vigilance in Arizona has caused a spike in human smuggling traffic moving through Los Angeles International Airport, but not through San Diego’s Lindbergh Field.

Attorney Andrew Desposito of our office wrote this brief commentary on the split in courts across the country with their application of Padilla v. Kentucky

The U.S. Supreme Court case Padilla v. Kentucky (2010) was an important ruling for many aliens facing deportation. In that case, the U.S. Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation. The problem with the ruling is that the U.S. Supreme Court failed to clarify whether this decision could apply retroactively with regards to direct and collateral appeals. The main concern is whether the decision announced a new constitutional rule and should not be applied retroactively, unless an exception applies, or whether it is not a new constitutional rule and could therefore be applied retroactively. This distinction has been critical for many Circuits in its decisions on whether to apply Padilla to other cases in their jurisdictions.

Recently, the Seventh Circuit held that Padilla does not apply retroactively. The Court concluded that because Padilla announced a new constitutional rule, that unless there is an exception to retroactively applying the case, Padilla will not apply to cases already resolved on appeal. The Tenth Circuit has also held that Padilla does not apply retroactively for the same reason. In addition, the Third District Court of Appeal of the State of Florida has sided with the Seventh and Tenth Circuits on the issue, leaving it open for the Eleventh Circuit to make a decision on the case if it goes up on appeal to that court.

It is tempting to imagine that the Department of Homeland Security (DHS) has adopted a kinder and more just approach to its immigration enforcement mission. After all, the department announced in recent days that it will henceforth focus its enforcement efforts on “high priority” immigration cases; that is, those cases involving serious criminals and individuals who are a threat to public safety or national security. While this is a welcome, long overdue announcement, we must keep in mind that there are still DHS enforcement policies in place that are in dire need of repair.

For instance, according to a story in the New York Times earlier this month, U.S. immigration agents stationed along the U.S.-Mexico border have taken to detaining and sometimes arresting unauthorized immigrants as they try to leave the United States and return to Mexico. In other words, after pouring billions of dollars into immigration enforcement programs to make the United States as unwelcoming as possible to unauthorized immigrants, the Obama Administration has decided to make their departure just as difficult and to torment them as they leave. This policy is as nonsensical as it is cruel.

To be fair, the Administration is snaring unauthorized immigrants as it attempts to do what previous administrations have not: stem the flow of drug money and guns from the United States to Mexico, into the waiting arms of drug cartel leaders. But this neither explains nor justifies why immigration agents are arresting immigrants who have no connections to drug money or gun smuggling—and who are leaving the country. As the Times notes, even some vehemently anti-immigrant groups oppose this practice on the grounds that it slows, and perhaps even discourages, the departure of unauthorized immigrants from the country. In a surreal moment last year, the president of the nativist organization Americans for Legal Immigration issued a statement saying that:

A couple weeks ago, Representative Luis V. Gutierrez, a Democrat from Illinois who has become a perennial thorn on immigration for President Obama, was arrested Tuesday afternoon along with about a dozen activists in a protest outside the White House.

The protesters were arrested peacefully after they sat down on the White House sidewalk, following a rally where demonstrators denounced the Obama administration for deporting more than one million immigrants in the last two years.

In a letter to Mr. Gutierrez on Monday, Mr. Obama rejected his proposal to suspend deportations of illegal immigrant college students with clean criminal records. Last week, Mr. Gutierrez and three other House Democrats had sent a letter to the president requesting the suspensions and also asking him to take executive measures to make it easier for illegal immigrants married to American citizens to remain in the United States.

Ekaterina Powell from our office brings us up to date with this recent development. Aliens who have controlled substance convictions are generally deportable and ineligible for adjustment of status (with certain exceptions for simple possession of 30 grams or less of marijuana).

Whenever an alien enters a guilty plea or nolo contendere or admits sufficient facts to warrant a finding of guilt, for which the judge has ordered some form of punishment, penalty or restraint on the alien’s liberty, the alien becomes deportable and inadmissible. See definition of conviction in 8 U.S.C. section 1101(a)(48)(A).

This definition of conviction leaves most of the aliens with simple possession convictions out of luck. These individuals cannot apply for adjustment of status through their immediate relatives U.S. citizens and may be deported from the United States even after years of being in lawful permanent resident status. The length of time that has passed since the entry of judgment does not matter for immigration purposes. Thus aliens that had drug convictions adjudicated years ago would be treated the same way for immigration purposes.

A New York judge released Dominique Strauss-Kahn from house arrest Friday, after prosecutors presented evidence questioning the credibility of the hotel maid who accused the former International Monetary Fund chief of sexual assault.

The alleged victim, a 32-year-old immigrant from Guinea, admitted to prosecutors that she lied about the specifics of her whereabouts following the incident, the details of an asylum application and information she put on tax forms.

According to a New York Times report, the 32-year-old hotel maid may be linked to drug dealing and possible money laundering. The unidentified woman also lied to investigators about previously being raped in her native Guinea.

In line with what we heard at the National Immigration Law Conference Last week, John Morton, the head of Immigration and Customs Enforcement, said the deportation program would continue to expand as planned in order to be operating nationwide by 2013, despite criticism from many police chiefs and from the governors of Illinois, New York and Massachusetts, who sought to withdraw their states.

In a fix likely to have broad practical effect, Mr. Morton issued a memorandum that greatly expanded the factors immigration authorities can take into account in deciding to defer or cancel deportations. Agents are now formally urged to consider how long an illegal immigrant has been in the United States, or whether the immigrant was brought here illegally as a child and is studying in high school or college.

Under Secure Communities, tens of thousands of immigrants who were here illegally but had not been convicted of any crime were detained by local law enforcement and swept into deportation proceedings. Until now, once immigration agents in the field had started a deportation, government lawyers had little authority to decide which cases were worth pursuing in immigration court. Many immigration violations are civil, not criminal, offenses.