Transcript USEFULL TIPS FOR PRACTITIONERS WORKING WITH …

Sonia Parras Konrad- ASISTA
USEFULL TIPS FOR PRACTITIONERS
WORKING WITH IMMIGRANT CLIENTS
POLK COUNTY BAR ASSOCIATION
CONTINUING LEGAL EDUCATION
Presented by: Sonia Parras Konrad
ASISTA
[email protected]
1
The Goal/Objectives
PowerPoint 2

Identify “red flags”

Consider immigration implications in




Civil cases
Criminal cases
Identify specific measures to take to
enhance access to justice
Proper referrals
Sonia Parras Konrad- ASISTA
True or False?
PowerPoint 3




Being undocumented is a crime
Undocumented people can apply to work
Undocumented people can apply to be US citizens
People without immigration status cannot access the
legal system i.e. file for divorce
Sonia Parras Konrad- ASISTA
True or False?
4




Anyone born in the U.S. is a US citizen even if her
parents are undocumented
A lawful permanent resident may be deported
The undocumented parents of US citizen children
may be deported
Someone born outside the US may be a US citizen
Sonia Parras Konrad- ASISTA
True or False?
5




Some people born outside the U.S. are U.S. citizens
Puerto Ricans are not U.S. citizens
A person in immigration removal proceedings has
the right to a lawyer
Marrying a U.S. citizen is an automatic path to legal
status
Sonia Parras Konrad- ASISTA
Immigration Terminology
6

Citizens:
 Acquired
by birth in the U.S. (or territories)
 Acquired by birth abroad
 Derived by naturalization of parent
 Derived by residence with citizen parent
 Naturalization
Sonia Parras Konrad- ASISTA
Aliens
7


Nonimmigrant
Immigrant – Lawful Permanent Resident (LPR)
 Family-based
visas
 Employment-based
 Refugee, asylum
 Defenses to removal
 Long residence
 Special immigrants - Diversity visa lottery
Sonia Parras Konrad- ASISTA
Undocumented
8


Without legal status – because entered without
admission or inspection (EWI)
Entered with legal status but overstayed or violated
conditions of stay
Sonia Parras Konrad- ASISTA
How Immigration System Works

DHS: Department of Homeland Security
 CIS: Citizenship and Immigration Services
Administrative applications for “benefits”
 ICE: Immigration and Customs Enforcement
Detaining and removing those inside US
 CBP: Customs and Border Protection
Airports, border, 100 miles inside border
Sonia Parras Konrad- ASISTA
PowerPoint 9
More on System
PowerPoint
10

EOIR: Executive Office for Immigration Review





If detained by ICE/CBP (most cases)
If denied by CIS and issued hearing notice
Immigration judges (no appointed counsel)
Board of Immigration Appeals
Federal Courts of Appeal
Sonia Parras Konrad- ASISTA
Family Based Immigration
1
1



U.S. citizen may immigrate: spouse, parents,
children (any age), and siblings
LPR may immigrate spouse and unmarried children
(any age)
Either as an immediate relatives (no annual limit) or
in preference system (under annual quota)
Sonia Parras Konrad- ASISTA
Section I
12

Intersection between Immigration
Law & Criminal Law
Sonia Parras Konrad- ASISTA
Reasons for Removal
PowerPoint
13
Inadmissible: Entered without permission
Seeking entry
Applying for lawful permanent residence
Deportable: Entered lawfully (admitted)
Stayed after visa/status expired
Committed crime or other offense
Sonia Parras Konrad- ASISTA
ICE ACCESS Programs
287g Program
Criminal Alien Operation
Program
Community
Shield
Secure
Communities
Rapid REPAT
Operation
Predator
Operation
Firewall
Law Enfcmt
Support Ctr
LESC
Intellectual Property
Rights Center
Fugitive
Operations
Teams
Document and Customs CrossBenefit Fraud Designation
Task Force
Border Enforcement
Security Task Force
Asset
http://www.ice.gov/oslc/iceac
Forfeiture/Eq cess.htm
uitable
14
Sharing
Where is my client?
15
 The



ICE ACCESS Programs use the criminal justice
system to channel immigrants into the deportation
system, regardless of whether they have convictions
that make them deportable
Immigration enforcement now happens at every
point of the criminal system: arrest, courts, jails and
probation/parole
Criminal bond/ public defender
Immigration detainer
 48
hours to issue NTA, process and charge
Sonia Parras Konrad- ASISTA
 Habeas
16
Rights of non-citizens detained by DHS
PowerPoint
17




Speak to an unappointed attorney
Hearing with Immigration Judge
Unappointed attorney at hearing and interview
Request release from detention unless subject to
mandatory detention INA Sect 236 (d)
Sonia Parras Konrad- ASISTA
18
Defense Goals For Undocumented Persons
(UPs)
1- Avoid ICE apprehension by getting/staying out
of jail.
- A UP who goes to jail for even one day is likely to
encounter ICE, get an immigration detainer imposed
and end up in ICE custody & removal proceedings.
- If no detainer has yet been imposed, getting out of
jail asap may be highest priority. Pay bond!
Sonia Parras Konrad- ASISTA
Cont.
19
2. Preserve avenues to obtain lawful status.
 Congress
currently debating immigration law changes that
will provide UP with avenue to get lawful permanent
resident (LPR) status.
 Many UPs already have avenues to obtain lawful status,
especially if LPR/USC spouse.
 Criminal convictions could render them ineligible to do this.
Preserving avenue(s) to obtain LPR status may be highest
priority. (ie, 2 simple misdemeanors will render a person
ineligible for TPS)
Sonia Parras Konrad- ASISTA
20
Defense Goals For Lawful Permanent
Residents (LPRs) & Refugees
1. Avoid a conviction that triggers deportation.
Even where you do, advise clients not to leave the
U.S. or apply for LPR status/citizenship without first
consulting an immigration attorney.
Sonia Parras Konrad- ASISTA
Cont.
21
2. If #1 is not possible, preserve avenues for relief
from deportation.
LPRs and refugees will get a hearing before an
immigration judge who has the power to grant
discretionary “relief from removal (deportation)”
through one of several legal avenues to qualifying
noncitizens.
Sonia Parras Konrad- ASISTA
Sample Cheat Sheet: Sentences
PowerPoint
22





All aggravated felonies
365 days or more = potential aggravated felony problem
Maximum possible sentence = year or more,
AND actual sentence of over 6 months
MAY trigger crime of moral turpitude
Any period of confinement of 180 days or more = Good
Moral Character bar
PADILLA-counsel must inform a client whether his plea
carries a risk of deportation. Mr. Padilla's Sixth Amendment
right to counsel was violated because counsel could have
easily determined that a guilty plea would make Mr.
Padilla eligible for deportation.
Sonia Parras Konrad- ASISTA
What You Can Do
PowerPoint
23

Refer your client to an immigration expert





Check AILA
Develop partnerships
Sign up for National Immigration Project
Explain rights and remedies to all parties and ensure
they understand them
Always give advisals about immigration consequences
of criminal convictions
Sonia Parras Konrad- ASISTA
Sonia Parras Konrad- ASISTA
SECTION II
A CROSSROAD
IMMIGRATION AND FAMILY LAW
24
INTERSECTIONS
25



Adoption Cases
Juvenile Court
Dissolution of Marriage (In General)
 Spousal
Support
 Child Custody/Visitation

Domestic Violence Cases
 Protective
Orders
 Remedies for Battered Immigrants
Sonia Parras Konrad- ASISTA
26
ADOPTIONS
Sonia Parras Konrad- ASISTA
ADOPTION CASES
27

Intercountry Adoption Act of 2000
 Adoption
under INA Sec. 101 (b)(1)(F)
 Orphan adoption under INA Sec. 101 (b)(1)(F)
 Hague Convention under INA Sec. 101 (b)(1)(G)

U.S. State Department
 Specific
information on international adoptions
htpp://Travel.state.gov.
Sonia Parras Konrad- ASISTA
ADOPTION CASES
28

Adoption-age limitation



Before child reaches 16
Matter of Cariaga, 15 I.& N. Dec. 716, 1976 WL 32364 (B.I.A
1976).
Two years residence requirement; Two years legal custody
prior to petition for immigration status (before or after the
adoption)
Physical custody is not necessary. Matter of Cho, 16 I &N. Dec.
188, 1977 WL 39247 (B.I.A. 1977)
 Exception to CINA


Must be valid in the country or state where it took place

Will need court decree or official document.
Sonia Parras Konrad- ASISTA
29
SPECIAL IMMIGRANT JUVENILE
STATUS
Sonia Parras Konrad- ASISTA
SIJS-REQUIREMENTS
INA Sec. 101 (a)(27)(J)
30
1.
2.
3.
The applicant must be under the jurisdiction of
the court or other juvenile proceeding
The applicant must have been deemed eligible
for long term foster care (amended)
The court or some administrative agency must
rule that it is not in the child’s best interest to
be returned to his/her home country
Sonia Parras Konrad- ASISTA
What you can do
31
4.
5.
6.
The court should make clear that it made its findings
and orders based on abuse, neglect or
abandonment of the child as opposed to assist the
child in gaining immigration status
The juvenile court should sign an order making the
above findings
Juvenile court must retain jurisdiction
Sonia Parras Konrad- ASISTA
32
DISSOLUTION OF MARRIAGE IN
GENERAL
Sonia Parras Konrad- ASISTA
FAMILY RELATIVE PETITION
WHO IS WHO?
33


PETITIONER
process
 Controls the petition
BENEFICIARY

 Initiates
 Can
cancel, withdraw,
not follow through


Family member who is
going to immigrate,
qualifying relative
No control over petition
Must overcome grounds
of inadmissibility
•Petitioner MUST have the immigration status
required for the petition (USC/LPR)
•Petitioner and Beneficiary MUST have a qualifying
Sonia Parras Konrad- ASISTA
relationship
Dissolution of Marriage
34

If no final immigration status, entering final decree
will destroy immigration process
 Careful
with “appearance of final immigration status,”
(I-751)
 Pending Family Relative Petitions no longer viable (I130/ I-485/I-765)
 Non-immigrant dependents also affected (F, H,)
 After 2 years bar for VAWA Self Petition relief
Sonia Parras Konrad- ASISTA
Top Strategy in Family Court
35


Bring immigration
status as the focus of
the case.


This only happens when the
other party has immigration
status and is often a tactic to
bring attention to the
immigration status rather than
the matter at hand.
Educate your Judge, bring
expert witness if needed
Lack of immigration does not
mean removal is imminent
Sonia Parras Konrad- ASISTA
Is Your Client a Victim of Domestic Abuse?
36

SPECIAL REMEDIES UNDER THE VIOLENCE
AGAINST WOMEN ACT

Dissolution will not prevent battered immigrant
from obtaining lawful permanent residency if Self
Petition filed within 2 years of final decree.
Sonia Parras Konrad- ASISTA
HELP FOR IMMIGRANT VICTIMS OF CERTAIN CRIMES
OF VIOLENCE
37

WAIVER OF JOINT FILING TO REMOVE CONDITIONS
FROM LPR


SELF PETITION


I-360, INA Sec. 204
CANCELLATION OF REMOVAL


I-751, INA Sec. 216
INA Sec. 240A
U VISA

Sonia Parras Konrad- ASISTA
INA Sec. 101(a)(15)(U)
Self-petition
U visa
38

Subjected to Battery or
Extreme cruelty

By USC or LPR spouse or
parent, o by USC son or
daughter


Residence


Good Faith Marriage

Good Moral Character


Substantial physical or
emotional abuse from
criminal activity
Possesses information
Criminal activity must
occur in US or violate US
law
Law enforcement
certification (was helpful,
is helpful, likely to be
helpful) in the
investigation or
prosecution
Sonia Parras Konrad- ASISTA
U Visa Crimes
PowerPoint
39
Rape
Torture
Trafficking
Incest
Domestic violence
Sexual assault
Abusive sexual contact
Prostitution
Sexual exploitation
Female genital mutilation
Being held hostage
Peonage
Involuntary servitude
Slave trade
Kidnapping
Abduction
Unlawful criminal restraint
False imprisonment
Blackmail
Extortion
Manslaughter
Murder
Felonious assault
Witness tampering
Obstruction of justice
Perjury
or attempt, conspiracy, or solicitation, to
commit any of the above mentioned
crimes
Sonia Parras Konrad- ASISTA
Call ASISTA!
40


244-2469
Asistahelp.org
Sonia Parras Konrad- ASISTA
41
SPOUSAL SUPPORT
Sonia Parras Konrad- ASISTA
I-864 Affidavit of Support
42


Required under INA § 213A with I-130
I agree to provide the sponsored immigrant(s) whatever
support is necessary to maintain the sponsored
immigrant(s) at an income that is at least 125 percent of
the Federal poverty guidelines. I understand that my
obligation will continue until my death or the sponsored
immigrant(s) have become U.S. citizens, can be credited
with 40 quarters of work, depart the United States
permanently, or die.”
Sonia Parras Konrad- ASISTA
Sonia Parras Konrad- ASISTA
CHILD CUSTODY AND
VISITATION
INTERNATIONAL PARENTAL KIDNAPPING
43
Preventive measures
44


Obtain preventive language in both a Protective
Order and a Custody Decree
Language should include the following:
 Court
ordered supervised visitation.
 Statement prohibiting the child from traveling outside
jurisdiction/state/U.S. without client’s or court’s
permission.
 Both parties agreeing not to have Embassy issue
passport on behalf of child.
Sonia Parras Konrad- ASISTA
Cont.
45



Ask foreign embassy or consulate not to issue a
passport to your child.
Include statement signed by both parties with
agreeing to the Hague convention terms
Inform foreign embassy that a copy is being sent to
U.S. Dept. of State.
Sonia Parras Konrad- ASISTA
Sonia Parras Konrad- ASISTA
IOWA CHAPTER 236
CROSS-ROAD;
IMMIGRATION LAW & CIVIL
PROTECTIVE ORDER
46
Know your facts
47



Abusers raise the issue of the victim’s lack of
legal immigration status.
Victims are often undocumented because of
their abusers or status is connected to the
abuser’s visa
Congress created different routes to protect
immigrant victims against abuser’s use of the
law to perpetuate control over their victims
Sonia Parras Konrad- ASISTA
Will my client be deported?
48


Issuance of a civil protection order does not trigger
immigration consequences.
Violation of the protective provisions is a deportable
offense.
Sonia Parras Konrad- ASISTA
Remember
49





Know your client’s immigration status
Partner with an immigration expert
Inform your client of rights if arrested by ICE
Connect with AILA, NIP, ASISTA
Asistahelp.org
Sonia Parras Konrad- ASISTA