Category Archives: Immigration

How will criminal history affect application or eligibility for the deferred action for young people process?

Applicants for the newly announced Deferred Action for Young People process will not be eligible if they have ever been convicted of a felony, a significant misdemeanor (defined further below), three or more misdemeanors or otherwise pose a threat to national security or public safety.

What constitutes a significant misdemeanor?

According to USCIS:

For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.

To communicate directly with Attorney Jamie Hernan regarding the Deferred Action Process, contact the Hernan Law Firm at (678) 275-4000 or click on the “Make an Appointment” tab on this website.

Information Submitted in Request for Deferred Action Plan – Can it be used for immigration enforcement purposes?

One of the main concerns regarding the Deferred Action Process for Young People is whether or not individuals that are not currently in removal proceedings could be subjecting themselves to possible immigration enforcement actions by submitting their information to USCIS. Because deferred action is a discretionary form of relief that can be revoked at any time, many young people are worried that submitting their information creates more risk than the reward of possibly being granted deferred action.

On August 3, 2012, US Citizenship and Immigration Services (USCIS) announced that it maintains the right to exercise its discretion in determining whether or not it is appropriate to refer applicants to Immigration and Customs Enforcement. In announcing their policy on this issue, USCIS has stated:

“If your request for consideration of deferred action
for childhood arrivals is denied, USCIS will apply its
policy guidance governing the referral of cases to U.S.
Immigration and Customs Enforcement (ICE) and the
issuance of Notices to Appear (NTA). If your case does
not involve a criminal offense, fraud, or a threat to
national security or public safety, your case will not be
referred to ICE for purposes of removal proceedings
except if DHS determines there are exceptional
circumstances.”

– “I Am a Young Person Who Arrived in the Unites States as a Child” – USCIS Brochure

USCIS (Immigration) announces more detail about the Deferred Action Process for Young People

US Citizenship and Immigration Services announced more details today regarding the Deferred Action for Young People process.

Application forms will be made available through USCIS on August 15, 2012. Any petition filed prior to that date seeking deferred action under the new policy will be rejected.

The total filing fee for the process will be $465. This will include the cost for the application for a employment authorization document.

To be eligible, applicants must:

1. Have been born after June 15, 1981;

2. Arrived in the United States before the age of 16;

3. Have continuously resided in the United States since June 15, 2007 up to the present time;

4. Been present in the United States on June 15, 2012;

5. Entered the United States without inspection before June 15, 2012 or had lawful immigration status that was expired as of June 15, 2012;

6. Be currently in school, graduated or received a certificate of completion from high school, obtained a general eductional development certificate (GED) or be an honorably discharged veteran of the Coast Guard or US Armed Forces,

7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors and do not otherwise pose a threat to national security or public safety; and

8. Be at least 15 years of age at the time of filing, if they have never been in removal proceedings or if their case was terminated before your request.

New Application Forms for Deferred Action Requests from Young People to be Release on August 15, 2012

The forms to request consideration of deferred action and employment authorization for young people who entered the United States as a child will be released by US Citizenship and Immigration Services on August 15, 2012. A link to these forms will be provided in the “Forms” section of this website.

DO NOT SUBMIT A REQUEST FOR CONSIDERATION OF DEFERRED ACTION BEFORE THE FORMS HAVE BEEN RELEASED. Any request submitted prior to August 15, 2012, or using the wrong forms, will be rejected.

To communicate directly with Attorney Jamie Hernan regarding the Deferred Action Process, contact the Hernan Law Firm at (678) 275-4000 or click on the “Make an Appointment” tab on this website.

What is an immigration hold?

Immigration Holds

“Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.”     – 8 C.F.R. §287.7(d)

If Immigration and Customs Enforcement (ICE) identifies an individual in the custody of a local criminal justice agency as someone they want to take into custody to place into removal proceedings, they can place a detainer on the person (referred to as an immigration hold).  The regulatory authorization for a jail to detain the person based on the immigration hold comes from the Code of Federal Regulations (8 C.F.R. §287.7(d)).  When the individual that is the subject of the detainer would not otherwise be detained by the jail (for example, because they paid a bond, completed a sentence or their case was dismissed), ICE has forty-eight (48) hours (not including Saturdays, Sundays or holidays) to take the individual into custody.   If ICE does not take the person into custody, the criminal justice agency is no longer authorized to detain the individual and “hold” them for ICE.

The personnel and management of many jails do not understand the forty-eight hour rule and miscalculate when the time period actually begins (which should be when the person would otherwise be released – such as when they pay their bond).  ICE has recently revised the detainer form (I-247) used to notify the criminal justice agency to hold the individual.  To stress to jails that the person should not be held longer than forty-eight hours, ICE has even titled the form “MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS” in all caps and bold face type.  Citing the conditions of 8 C.F.R. §287.7(d), the new form states:

“Maintain custody of the subject for a period NOT TO EXCEED 48 HOURS, excluding Saturdays, Sundays, and holidays, beyond the time when the subject would have otherwise been released from your custody to allow DHS to take custody of the subject. This request flows from federal regulation 8 C.F.R. § 287.7, which provides that a law enforcement agency “shall maintain custody of an alien” once a detainer has been issued by DHS. You are not authorized to hold the subject beyond these 48 hours.” (Emphasis in original)

Despite the clarity of the regulation and the I-247 detainer form, the personnel and management of local jails still believe that they are authorized (or, at least, justified by an “ends justifies the means” mentality) to hold an individual beyond the forty-eight hours if they think ICE is coming to take the person into custody.

The second and third pages of the form provided to detainees provide a notice in multiple languages regarding the forty-eight hour rule.  The form provides detainees with a number to call if they are not released timely, as well as a number for US citizens or victims of crimes to call for specialized support.

The notice reads in English:

“The Department of Homeland Security (DHS) has placed an immigration detainer on you. An immigration detainer is a notice from DHS informing law enforcement agencies that DHS intends to assume custody of you after you otherwise would be released from custody. DHS has requested that the law enforcement agency which is currently detaining you maintain custody of you for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) beyond the time when you would have been released by the state or local law enforcement authorities based on your criminal charges or convictions. If DHS does not take you into custody during that additional 48 hour period, not counting weekends or holidays, you should contact your custodian (the law enforcement agency or other entity that is holding you now) to inquire about your release from state or local custody. If you have a complaint regarding this detainer or related to violations of civil rights or civil liberties connected to DHS activities, please contact the ICE Joint Intake Center at 1-877-2INTAKE (877-246-8253). If you believe you are a United States citizen or the victim of a crime, please advise DHS by calling the ICE Law Enforcement Support Center toll free at (855) 448-6903.”

Many individuals are often held beyond the forty-eight hours authorized by federal regulations because the personnel and management of local jails have misinterpreted their limited authority to detain an individual so that they can be taken into custody by ICE, despite the efforts by ICE to clarify the forty-eight hour rule and dispel the belief amongst local criminal justice agencies that individuals can be held ad infinitum if ICE is coming to get them.  It is not uncommon for attorneys to hear “ICE wants ’em, and ICE is gonna get ’em,” even though ICE itself has stressed in the detainer form that after forty-eight hours the individual should be released.

Supreme Court strikes bulk of Arizona Immigration law (SB 1070)

The Supreme Court recently affirmed in part and reversed in part, in a 5-3 decision, the ruling of the Court of Appeals for the Ninth Circuit in the constitutional challenge to Arizona’s immigration law (SB 1070).  The Court ruled that the powers granted to the federal government by the Constitution of the United States preempt the attempted efforts of Arizona to regulate immigration within its borders.

The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.  – Opinion of the Court (No. 11-182)

The decision halted enforcement of sections 3, 5(C) and 6 of SB 1070 that had been challenged in the case.  The decision was based on the clear “broad, undoubted power over the subject of immigration and the status of aliens” held by the federal government.  Despite the well settled preemption of immigration regulation by the federal government, states such as Arizona have attempted to pass legislation that attempts to usurp such power and authorize its own regulation of immigration.  The Supreme Court has sent a clear message to Arizona and other states that such legislation must not violate the constitution no matter how frustrated the state is with the federal government’s abject failure to come up with a fair, reasonable and workable solution to the immigration problem in the United States.

The Court did allow Section 2(b) of SB 1070 to stand for the present time without fully addressing the constitutionality of such provision.  The section states: “For any lawful contact made by a law enforcement official or agency of this State or a county, city, town or other political subdivision of this State where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.”  The Supreme Court’s opinion, delivered by Justice Kennedy, does not state outright that such provision is constitutional but rather that the “nature and timing of this case counsel caution in evaluating the validity of Section 2(B).”  The Supreme Court is always very careful to address only those issues that are properly before it, from both a substantive and procedural basis.  The Court found, for example, that if the provisions of Section 2(B) could be interpreted or enforced in an unconstitutional way (such as “[d]etaining individuals solely to verify their immigration status”), and thus be subject to legal challenge.