August 12, 2018
Federal Judge this week declared Trump Administration's shut down of the DACA program was unconstitutional, but Texas judge expected to rule just the opposite next week.
This week, a Federal judge in D.C. ruled that the president's move to eliminate Deferred Action for Childhood Arrivals (DACA) was unconstitutional and that the program must continue. However, another Federal judge--a conservative in Texas--is expected to rule shortly that DACA was never constitutional to begin with. The Texas judge ruled against a similar program in 2014. It is not clear how the dualling rulings will affect the DACA program but likely it will be fought out in the Circuit Courts of Appeal and perhaps the U.S. Supreme Court. In the meantime, immigration lawyers recommend those who are due to renew do not wait to submit their application.
August 7, 2018
Criminal Convictions and Immigration - Aggravated Felonies
An aggravated felony is one of the worst things that can happen to someone who is living in the US but is not a citizen. What is an aggravated felony? It is a term in immigration law and it refers to many, many types of offenses that politicians decided will be considered aggravated felonies. I will list some examples but I first must say that if you have any type of criminal conviction and you are not a citizen of the US, you should talk to an attorney as soon as possible. You can call up an immigration attorney and ask if they practice criminal immigration law.
To list some examples of aggravated felonies in California: certain convictions of alien smuggling, bribery, child pornography, crimes of violence where the sentence is more than one year (PC section 245(a) for example), drug trafficking, forgery, fraud where the amount involved is greater than $10,000, kidnapping, murder, perjury, rape, and Sexual Abuse of a Minor. Not every conviction that falls within one of these categories is an Aggravated Felony - you need a consultation with an attorney to know for sure.
What are the consequences of having an Aggravated Felony as a conviction? First of all, it is a ground of deportation which is especially damaging for a legal permanent resident with a green card. And it disqualifies a person from several forms of relief such as cancellation of removal for both LPRs and non-LPRs, asylum, temporary protected status, U-visa, and more.
It is a permanent bar to naturalization if it was committed after 11/29/1990. It is also a bar to adjusting status (getting a green card). Another damaging consequence of aggravated felonies is that they cause a person to be subject to mandatory detention which means that someone guilty of an AF can be picked up at any time and detained. Also, someone who reenters the country after a deportation who has an Aggravated Felony can be subject to a sentence in federal prison of up to 20 years.
However, I want to give you hope. There is hope! An attorney who practices "post-conviction relief" may be able to get rid of that conviction after the fact. It is definitely not a sure thing but it is something to look into. Many criminal attorneys do post conviction relief. And many immigration attorneys will know someone who does post conviction relief. So please consult with a lawyer. That is what I want you to take away from this post. Consult a lawyer who is competent in the field of criminal immigration and post conviction relief.
July 18, 2018
Trump Administration Seeking to Reduce Migration to U.S. and Asylum Claims
Although the deadline imposed by a judge has passed, not all five and under children have been reunited with parents. Only about half the children were reunited with their parents in time to meet the federal judge's deadline. The separation of families, and slow pace for reuniting them, is all part of a strategy to discourage migration to the U.S. and to gravely reduce the availability of asylum. Last month, Attorney General Jeff Sessions of the Trump administration attempted to eliminate asylum for victims of domestic and gang violence. Whether that effort will truly be successful remains to be seen. Many immigration judges believe in an expansive application of asylum and will look for ways to poke holes in Sessions' decision.
June 28, 2018
Federal Judge Imposes Deadline for Reuniting Families Separated by the Trump Administration
A San Diego judge on Tuesday ordered U.S. border authorities to reunite separated families within 30 days. If children are younger than 5, they must be reunified within 14 days of the order. The judge also issued a nationwide injunction on future family separations. Additionally, he requires the government provide phone contact between parents and their children within 10 days. More than 2,000 children have been separated from their parents in recent weeks and placed in government-contracted shelters — hundreds of miles away, in some cases. Amid a national and international outcry, Trump last week issued an executive order to stop the separation of families and said parents and children will instead be detained together.
Health and Human Services Secretary Alex Azar told Congress on Tuesday that his department still has custody of 2,047 immigrant children separated from their parents at the border. That is only six fewer children than the number in HHS custody as of one week prior. The federal government never had any plan in place to get parents back together with their children and it is unclear how they will meet the judge's deadline.
Azar refused to state how long it will take to reunite families. Also challenging will be the requirement the judge set on phone contact. At a Texas detention facility, immigrant advocates complained that parents have gotten busy signals or no answers from a 1-800 number provided by federal authorities to get information about their children.
This whole episode has been a national disgrace, and surely, a violation of international human rights laws. To have men running the government who have no ability to feel empathy for others is a disaster waiting to happen, except there is no more waiting, the disaster has arrived.
June 21, 2018
Trump Ends Policy of Separating Parents from Their Children, but Has No Arrangements For Reuniting the Families
Donald Trump yesterday ended the policy of separating children from their parents at the Mexico-U.S. border. Over 2000 children had been forcibly parted from their parents and transported to different parts of the country to be put in detention centers and foster homes. About 100 children were brought to the SF Bay Area for housing. The policy was part of a "zero tolerance" approach and drew condemnation from politicians of every political persuasion.
Now that the policy has ended, the Trump administration has absolutely no strategy in place to help reunite the separated children with their parents. For that reason, it could be weeks or months before they will see their parents again.
June 12, 2018
Attorney General Sessions Seeks to Eliminate Asylum for Women, Victims of Gang Violence
Attorney General Jeff Sessions just issued an alarming decision that attempts to erode hard-won protections for women and girls fleeing violence at the hands of abusive partners and family members. His ruling overturns decades of precedent that allowed some victims of domestic violence to receive asylum. Asylum, Session claims, was designed to provide safety only to victims of governments. It has expanded too broadly in allowing victims of private actors to obtain relief in the United States.The fact that a government may be unable to protect victims of domestic violence is not sufficient grounds for relief. Similarly, victims of gangs, according to the Attorney General, should not be eligibile for asylum.
The Center for Gender and Refugee studies, which has pioneered asylum for domestic violence victims, is mobilizing supporters to fight the ruling. They will keep track of any cases in the court of appeals that might offer strong grounds to challenge Sessions' ruling, and will also track denials of compelling cases for purposes of advocacy.
Know Your Rights
What to say if ICE knocks on your door:
I do not wish to speak with you, answer your questions, or sign or hand you any documents based on my 5th Amendment rights under the United States Constitution. I do not give you permission to enter my home based on my 4th Amendment rights under the United States Constitution unless you have a warrant to enter, signed by a judge or magistrate with my name on it that you slide under the door. I do not give you permission to search any of my belongings based on my 4th Amendment rights. I choose to exercise my constitutional rights. These cards are available to citizens and noncitizens alike.
Usted tiene derechos constitucionales: • NO ABRA LA PUERTA si un agente de inmigración está tocando la puerta. • NO CONTESTE NINGUNA PREGUNTA de un agente de inmigración si el trata de hablar con usted. Usted tiene el derecho de mantenerse callado. • NO FIRME NADA sin antes hablar con un abogado. Usted tiene el derecho de hablar con un abogado. • Si usted está afuera de su casa, pregunte al agente si es libre para irse y si dice que sí, váyase con tranquilidad. • ENTREGUE ESTA TARJETA AL AGENTE. Si usted está dentro de su casa, muestre la tarjeta por la ventana o pásela debajo de la puerta.
May 21, 2018
President Trump announced the elimination of DACA although current recipients of DACA may apply for a final renewal. DACA establishes some criminal bars to eligibility - a conviction of any of the following may bar a grant of DACA: any felony (offense with a potential penalty of more than one year); three misdemeanors not arising on the same date; and one significant misdemeanor (a sentence of more than 90 days (not including suspended sentences) was imposed, or the crime involves drug trafficking, firearms, domestic violence, driving under the influence, burglary, or sexual abuse or exploitation). In many cases, DACA has been denied if a domestic violence offense was charged – even if the person was convicted of a non-domestic-violence offense such as disturbing the peace. People believed to be gang members will be barred and another common disqualifying offense is Driving Under the Influence (DUI).
When a conviction is expunged in California, the conviction normally retains its negative immigration consequences. But in the context of DACA, USCIS has treated expunged convictions as discretionary bars rather than per se. Therefore, expungement may be of some value in the DACA arena. Vacating a disqualifying conviction would be a surer bet but takes longer and is harder to get. It should be emphasized that any person who has a conviction, no matter for what, should consult with an attorney before applying for any immigration benefit.
Contact and Appointments
Law Office of K. P. Dwight
2001 Addison St.
Berkeley, CA 94704
(510) 666-0801510) 666-0801