The Supreme Court announced Tuesday that it will decide whether President Obama has the authority to declare that millions of immigrants can remain in the U.S. illegally. The Court will probably hear arguments in the case in April and likely rule in June. As we have reported previously, the lawsuit stems from provisions in the President’s November 2014 executive order expanding the Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parental Accountability (DAPA) program. These programs would protect from deportation millions of undocumented immigrants currently living in the U.S. A lawsuit brought by 25 states has kept the executive order from going into effect. A District Court in Texas and the U.S. Court of Appeals for the Fifth Circuit have both ruled against the Administration.
As many people have already heard, starting this month U.S. Immigration and Customs Enforcement (ICE) agents are targeting for deportation families who have fled violence in Central America. How many people could be affected by the raids is unknown, but it could be hundreds or thousands. In the first weekend of January, Department of Homeland Security announced that 121 individuals were taken into custody primarily from Georgia, Texas, and North Carolina. Although there are legitimate concerns within the immigrant community, only certain families are actually affected by the ICE raids.
The raids are “focused on adults and their children who (i) were apprehended after May 1, 2014 crossing the southern border illegally, (ii) have been issued final orders of removal by an immigration court, and (iii) have exhausted appropriate legal remedies, and have no outstanding appeal or claim for asylum or other humanitarian relief under our laws.” Since the raids are limited to individuals who meet all these criteria, many undocumented immigrants are not affected.
Getting a final removal order that says you must leave the country feels like the battle is over. You’ve lost and have no way to stay in the U.S. However, that isn’t always the case. That final order might not be as final as you think. There could be grounds for reopening the order and not only staying in the U.S., but also getting a green card.
What are some of the most common grounds for reopening a removal order?
“Happy New Year! Have an ICE raid! By now, everyone has heard that the Obama administration plans to celebrate the new year by rounding up families and removing them to Central America. The administration hopes that the images of Central American families coming off of planes in San Salvador and Tegucigalpa will dissuade thousands of Central Americans from fleeing the violence and persecution that threaten their lives on a daily basis. This dreadful idea puts the final nail in the coffin of the administration’s mantra that it seeks to deport “felons not families” and focuses on removing the worst of the worst. The baldfaced nature of this lie has been apparent for years, but it is unlikely to endure as the administration rounds up, using the vehicle of an old style ICE raid, women and children for return to the violence of their home countries. All that will be left in the empty space created by the departure of the lie will be the fact that the Obama administration has been a nightmare for immigrants while projecting a happy face to credulous partisans.
Reports have ICE raids on recent immigrants beginning as soon as January 2016. The reports have indicated that the administration will be seeking to enforce removal orders entered against immigrants after January 1, 2014.While there have always been removals of anyone with a removal order who is encountered by ICE, there is no indication that ICE will be seeking out those with removal orders entered prior to January 1, 2014. Should such a person come to the attention of ICE, ICE will seek to enforce the order. But, according to the reports, ICE will not be seeking to conduct raids to find such individuals, unless they have criminal convictions or present national security threats. Again, according to media reports, an ICE raid will target those with a final order of removal entered by an immigration judge after January 1, 2014. If a case is on direct appeal to the Board of Immigration Appeals from an immigration judge’s order of removal, that order is not yet final and can not be enforced. [Read more…]
It is all too common for nonimmigrants to be detained by U.S. Immigration and Customs Enforcement for a prolonged period with little hope of release while their case is pending. We have a case right now of a person who has been held for over a year already. Fortunately in a recent decision, the U.S. Court of Appeals for the Second Circuit stated that this detention raises serious constitutional issues. The court decided that individuals must be given the opportunity for a bail hearing and placed a high burden on the government to establish why an individual should be denied bail.
A frequent issue for people visiting the U.S. with a visa is how long they can remain in the country lawfully. A visa is a travel document that allows a foreign traveler to request admission to the U.S. at a U.S. border or port of entry. Typically, a visa will allow travel to the U.S. over an extended period. For example, B-1 and B-2 visas for business travelers are usually valid for 10 years. That permits these visitors to make regular trips to the U.S. over the 10-year period without having to apply for a visa for each individual trip. However, they cannot stay in the U.S. continuously for 10 years. This rule applies for any nonimmigrant visa although the overall length of the visa varies based on country and visa type.
A decision by the 5th Circuit Court of Appeals on November 9th means more delays in implementing rules to protect millions of nonimmigrants from deportation. Although the ruling is disappointing and frustrating, there is hope. The argument will now move to the US Supreme Court, where we expect the decision to be reversed.
As we’ve discussed previously, in 2014, President Obama signed an executive order expanding the Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parental Accountability (DAPA) program. A lawsuit by 25 states has kept the executive order from going into effect. The lower court in Texas held that the states could proceed with their lawsuit and the 5th Circuit has upheld that ruling. Despite this decision and the understandable fear among nonimmigrants, there are positives to this situation:
It’s one of the biggest fears of undocumented immigrants: getting a notice to appear for a removal proceeding that may end in deportation. Often this happens after an arrest for another offense and so it makes an already stressful situation even worse. Fortunately, some immigrants can avoid deportation and even get a green card in the process. Section 240A(b) of the Immigration and Nationality Act (INA) provides one of the most common ways immigrants are able to get cancellation of removal.
Under the rules, undocumented immigrants must meet the following requirements in order to cancel their removal:
- Continual presence in the US for at least 10 years.
This means the individual can’t have been outside the US at any time for more than 90 consecutive days or outside the US for 180 days in the aggregate over the last 10 years.
It also should be noted that the 10 year time frame may not be measured the way individuals think. The clock stops running:
- When the immigrant receives the notice to appear regardless of when they actually appear or when they receive the order of deportation; or
- In the case of commission of certain crimes listed in INA sections 237(a)(2) and (3), when the crime was committed regardless of when a notice to appear is served.
For example, you’ve been in the US for eight years and you are arrested for possession of a firearm. This would stop the clock right away – so you couldn’t satisfy the 10 year requirement.
- Demonstrate good moral character.
This is decided on a case-by-case basis, however, individuals who have committed any offenses listed under INA sections 212(a)(2), 237(a)(2) and 237(a)(3) are disqualified from proving good moral character. These crimes include those involving narcotics, firearms as well as other serious crimes.
You should note that paying taxes on a timely basis every year will help your case. This demonstrates continuing physical presence in the US because if you’ve been paying taxes every year, it is likely you’ve been present in the US. It also shows good moral character. However, you must have been paying every year, not a lump sum every few years. Also remember that you should be reporting actual income. It is not believable to be reporting income that is too low for you to be living on, particularly if you have family with you. You can refer to the poverty guidelines for your region, which provide information on income for your region.
- Your deportation would cause extreme and exceptional hardship to your spouse, child or parent who is a lawful permanent resident or US citizen.
What is important is the hardship caused to the spouse, child or parent, not the hardship to the undocumented immigrant. Also the hardship must be extreme and exceptional. For example, if the spouse, child, or parent is suffering from a serious and debilitating illness (i.e. cancer, cerebral palsy, or down syndrome).
If an immigrant can satisfy all three requirements, he or she can get cancellation of removal and obtain a green card. Meeting one or two of the requirements, no matter how strong your case, is not sufficient.
If you’ve been arrested or received a notice of removal, contact us for help with your case.