5 GOVERNMENT AGENCIES U.S Department of Homeland Security (DHS) USCIS- United States Citizenship and Immigration ServicesICE – Immigration and Customs EnforcementCBP – Customs and Border ProtectionU.S. Citizenship & Immigration Services (USCIS)Issues visa petitions that allow aliens to live and work in the U.S.Worker can be in U.S. or abroad when visa petition is approvedU.S. Customs & Border Protection (CBP)Reviews immigration paperwork at all U.S. Ports of EntryDetermine whether a foreign national’s eligibility to enter the U.S.Airports, at the border, within 100 miles of borderU.S. Immigration & Customs Enforcement (ICE)Investigates as to whether someone entered into the U.S. legally and/or is in a legal immigration statusDetaining and removing persons inside the U.S.U.S. Department of State (DOS)Issues visas and passports to foreign nationals that allow them to enter the U.S.
6 GOVERNMENT AGENCIES, cont. U.S. Department of JusticeOffice of Special Counsel for Immigration Related Unfair EmploymentEOIR- Executive Office of Immigration ReviewExecutive Office of Immigration ReviewEOIRImmigration CourtRemoval/ deportation from the United StatesNo right to free legal representationImmigration judges are appointed by the Attorney GeneralBoard of Immigration AppealsReviews decisions made by immigration judgesOffice of Refuge ResettlementDepartment of Labor (DOL)
7 Immigration Status United States Citizens Non-Citizens Birth in the U.S.NaturalizationAcquisition at BirthDerivation of CitizenshipNon-CitizensImmigrantFamilyEmploymentHumanitarianConditional Permanent ResidentNon-ImmigrantStudentsWork VisasVisitorsTPS- Temporary Protected StatusUndocumentedOverstay of visaEntered without authorization
8 United States Citizen (USC) By Birth: Birthright citizenship.Through Naturalization: Permanent resident who goes through application process and demonstrates eligibility for citizenship.Acquisition: Born outside of US to United States citizen parent or grandparent. Depends on year of birth and other qualifying factors.Derivative: Many children under 18 who have their green card who are in the physical and legal custody of a parent who becomes a citizen derives citizenship through that parent by operation of law.
9 Non-Citizens: Immigrants Lawful permanent residents are noncitizens that make the U.S. their home, have authorization to work in the U.S. and have the most stable immigration status. They may serve in the U.S. military but they cannot vote in federal elections (or other elections unless authorized by statute. They must follow certain guidelines when they travel or stay outside the U.S., and DHS may still remove them for certain reasons. Anyone with a Permanent Resident Card can work legally in the United States.FamilyImmediate RelativesNo “waiting” or numerical limitsSpouse, parent, or minor unmarried children under age of 21 of US citizensMust sponsor and prove ability to financially support themPriority BasedUp to 480,000 visas per yearLengthy waiting list: family of lawful permanent residents, adult sons and daughters and siblings of U.S. citizens.
10 Non-Citizens: Immigrants Employment“Priority” workers such as professors, researchers, high-level managers of multinationalsProfessionals with advanced degreesSkilled workers in high-demand fields“Special Immigrants” such as clergy and religious workers“Investor immigrants” who will invest $500,000 to $1 million to start or buy a US-based business that provides at least 10 full time jobs.
11 Other Immigrants Diversity Lottery Humanitarian Up to 55,000 visas per yearAllotted to countries that are underrepresented in other forms of US immigrationApplicants must be 18 or older with equivalent of high school diplomaHumanitarianRefugeesLimit set by President with consultation by Congress (70, ,000)Requires showing of well-founded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinionProcessed through the United Nations High Commission on Refugees
12 Other Immigrants- continued Humanitarian- continuedAsylee- a person who obtains refugee status after entering the United StatesSpecial Immigrant Juvenile StatusSome children whose parents have abandoned, neglected , or abused them may be able to obtain lawful permanent resident statusThey need to show dependents of juvenile court or placed by court into custody of a government or agency.Reunification of parents not viable. It is not in the best interest of the child to be returned to their home country.Nicaraguan, Cuban, and Haitian AdjustmentIn 1997, Congress passed Nicaraguan Adjustment and Central American Relief Act (NACARA). Allows certain non-citizens to apply for lawful permanent resident status. Had to been in the US before a certain date to be eligible.
13 Non-Citizens: Non-Immigrants Broken down into groups based on intent, reason person is here, length can stay hereStudents: F-1 Degree Seeking Student, M-1 Vocational Student, J-1 Exchange StudentWork Visas: In ND will see H-2A, H-1B Specialty Visa, L-1 Intracompany Transferee, E1/E2 Treaty Trader VisaVisitors: Visa Waiver, B1/B2TPS: Temporary Protected Status – designated countries. Examples: Haiti, El Salvador, Honduras, Nicaragua, Somalia, Sudan, South Sudan, Syria.Asylees: Aliens who claim refuge to the US either at the border or after they have already entered the US. They are eligible to apply for permanent residence after having asylum for one year.Refugees: Aliens who seek refuge outside the US who are granted refugee status and enter the US in refugee status. They are eligible to apply for lawful permanent resident status after being in the US one year.
14 Non-Citizens: Undocumented Overstay of Visa: Alien who stays longer than their authorized non-immigrant period of stay as dictated on their I-94 card.Out of Status: Alien who does not comply with their non-immigrant visa status.Entered Without Authorization: Alien who enters the US without being inspected, admitted or paroled.
15 How People Come to the US VisasPermission to “knock on the door” to seek entry into the USVisa are issued to non-immigrants and immigrantsIssued by the U.S. Embassy/ Consulate where foreign national was interviewed.Placed in “home country” passport.Visa does not give immigration “status” in the United StatesJust because visa is unexpired does not mean person is legally in the United States.Similarly, if a visa is expired does not equate with unauthorized presence in the United States.
17 Immigration Status in U.S. I-94 Card- Arrival Departure RecordDocuments lawful entry, inspection, and admission to the United StatesIn most instances indicates in what manner the foreign national entered and duration of legal stay in the United States.B –Visa- Visitor’s visa. Many visitor’s visa may be valid for entry into the United States for 10 years.However, each visitor to the United States on a B-1 visa is only permitted to stay in the United States for 180 days or less.Unless otherwise granted an extension of stay or change of immigration status, foreign national must exit the United States before the date listed on his I-94 card.Should be stapled in home country passport.
19 Proof of Status in the U.S. Student Visa holders are an exception to the rule.They may have a visa, which doesn’t give them status.They may have an I-94 card, however, it is likely stamped “D/S”They are permitted to be in the United States for “Duration of Stay”Their ability to remain in the United States is determined by their educational institution.Controlled by an “I-20”Generally, student visa holders are not permitted to accept employment off of campus without permission.
21 Immigration Documentation Temporary Employment Authorization CardBased on Status in the United StatesIn some instances can apply for permission to work while waiting for a change of immigration status
22 Immigration Documentation Permanent Resident (Green) CardI-551Contains biographic informationContains information regarding how obtained immigration status in the United StatesJust because card expires does not mean status is terminated.
23 Good Moral Character Issues Any crime against a person with intent to harmAny crime against property or the Government that involves evil intentTwo or more crimes where aggregate sentence was 5 years or moreViolating any controlled substance law of the U.S., any state, or any foreign countryHabitual drunkennessIllegal gamblingProstitutionPolygamyLying to gain immigration benefitsConfinement to jail, prison, or similar institution for 180 in 5 yearsFailing to complete any probation, parole, suspended sentenceTerrorist actsPersecution of anyone because of race, religion, national origin, political opinion, or social group
24 Naturalization Requirements Areas of concern for naturalizationLiving outside of the U.S. for more than 6 months since came hereAlcohol or drug problems, including Khat or illegal drugsArrested, charged, or convicted of crime (traffic violations included)Were charged or convicted of domestic abuseFailed to pay child supportDid not file income tax returns or owe taxesMale who did not register with Selective Service (18-26)Not being truthful on your application.
25 Immigration and Criminal Law Padilla vs. KentuckyImmigration Consequences of a Criminal ConvictionInadmissibilityRemovabilityCrime Involving Moral Turpitude (CIMT)Aggravated Felony for Immigration PurposesMandatory detentionExpedited RemovalIneligible for many forms of reliefForms of Relief From DeportationVoluntary DepartureCancellation of RemovalAsylum/CATAdjustment of Status
26 Immigrants Are Subject to a Secondary Layer of Punishment DeportationBar to getting lawful immigration status (e.g. asylum, green card, student or work visas)Loss of current immigration statusBar to citizenshipBar to relief from deportationBar to returning to the US after travel abroadDetention (sometimes mandatory, out of state, no fixed release date)
27 Padilla v. Kentucky, 130 S. Ct. 1473 (2010) Counsel MUST advise of the specific immigration consequences of a criminal disposition based on the client's individual factsFailure to do so + prejudice is a basis to vacate the conviction based on Ineffective Assistance of Counsel (IAC)Padilla applies retroactively, at least to convictions on or after 1996Must advise on how to avoid being deportable/inadmissible, avoid bars to relief from removal, and address client's "clear and unclear" questions
28 Immigration Definition of Conviction Under 8 USC 1101(a)(48)(A): means"[a] formal judgment of guilty" ORWhere no formal finding of guilt:If defendant pleads guilty, nolo contendere or has admitted sufficient facts to warrant a finding of guilty, ANDThe judge has ordered some form of punishment, penalty, or restraint on the noncitizen's liberty.Youthful Offender adjudication IS NOT a conviction if analogous to a fed'l juvenile delinquency adjudication
29 Immigration Definition of Conviction, cont. Restraint on LibertySentence to incarcerationProbationFineCommunity ServiceReq'd Classes (i.e. anger management)Court CostsStrategiesAvoid guilty plea: waive trail rights to get pre-plea probationAvoid guilty plea: Admit to Prosecutor, not JudgeAvoid guilty plea: Drug Courts as a pre-plea diversionPlea to safe haven offense
30 Record of ConvictionCharging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trail judge to which the defendant assented. Shepard v. U.S., 544 U.S. 13 (2005).Can be used to consider whether a conviction is a deportable offense or makes the Respondent inadmissible. Vue v. INS, 92 F.3d 696, 700 (8th Cir. 1996).
31 Inadmissibility, INA 212, 8 U.S.C. 1182 Barred from getting new lawful status, admission or re-admission to the US, relief from removal, or other new benefit the gov’t grantsWill NOT take away lawful permanent residency as long as the alien remains in the US - it is triggered upon departure from the USHurts the undocumented person because it makes it may bar him/her from obtaining a legal status
32 Deportability, INA 237, 8 U.S.C. 1227Alien can lose whatever legal status s/he hasMay be removed from the USUsually doesn't hurt an undocumented person because s/he has no status to lose
33 Plea DealsConsult an immigration attorney BEFORE entering your client into a plea agreementSafe haven offensesMinimize immigration consequences
34 SentencingMay affect whether a conviction is an aggravated felony for immigration purposesWant to plea to 364 days or lessSometimes, you may need to plead your client to less than 180 daysSometimes better to plea to safe haven offense + jail time
35 Effects of a Conviction Crime Involving Moral Turpitude (CIMT)Aggravated felonyAlien is subject to mandatory detentionIneligible for most forms of reliefAlien who is deported and then re-enters the US illegally & is convicted of illegal re-entry is subject to significant sentence enhancementMandatory detentionNo set release dateCan be moved to multiple detention facilities throughout the US - affects attorney effectivenessHeld with violent offenders
36 Overview of the Deportation Process Typically alien taken into custody during minor traffic stop or via criminal convictionMust complete criminal proceedings first.Detained on immigration hold.Issued a Notice to Appear (NTA) - Immigration charging documentHeld at Grand Forks, ND correctional facilityTransferred to MPLS Sherburne County JailMaster Calendar Hearing - First Appearance before an Immigration Judge -Individual Hearing - Immigration Trial
37 Deportation Court Terms Immigration Judge (IJ)Office of Chief Counsel (OCC) – Government AttorneysMaster Calendar Hearing (MCH) – First AppearanceIndividual Hearing – Trial/Presentation of CaseNotice To Appear – Immigration Charging DocumentStates the nature of proceedings and legal authorityLays out the facts and alleged illegal conductSpecifies the Charges and statutes allegedly violatedmust give address and telephone number; time and place of hearing and consequences of failing to appear.
38 Deportation Court Terms, cont. Unlawful Presence- if an alien is present in the U.S. after expiration of stay authorized or present in U.S. without being admittedBetween 180 days and one year- three year barMore than 1 year – ten year barTriggered on leaving the U.S.
39 Relief From Deportation - Terms Voluntary DepartureAbility to leave the US and avoid an order of deportationClient pays for his/her cost of travelMay avoid the "3 year bar" for unlawful presence - INA 212(a)(9)(B)(v)
40 Relief From Deportation Terms, cont. Cancellation of RemovalMay be available to both Legal and Non-Legal Permanent ResidentsMust meet statutory guidelines for eligibilityOnce meet statutory guidelines, judge has discretion whether to approve/denyMust show "exceptional or extremely unusual hardship" to USC/LPR spouse, parent or childOne bite at the apple - can only granted once in a person's lifetime.
41 Relief From Deportation Terms, cont. Adjustment of StatusDeferred Enforced Departure (DED): Not a specific immigration status; Individuals covered by DED are not subject to removal from the United States, usually for a designated period of time; Have right to work.Withholding of Removal, Asylum & Convention Against Torture (CAT)
42 WaiversSections of the Act which waive a person's grounds for inadmissibility or deportabilityRequire a LPR/USC immediate family member - LPR/USC spouse, parent, son/daughter, depends on the type of waiver soughtThe foreign national must show:Extreme hardship to a qualifying relativeExceptional or extremely unusual hardship" to a qualifying relativeSometimes no hardship req'd - instead is a "weighing of the equities"Waivers are discretionarySometimes can "stack" waivers - apply for more than one at a timeSome waivers are only granted once in a person's lifetime
43 ADVOCATE FOR IMMIGRATION REFORM We have an immigration system in this country that not only doesn't work, in many cases it doesn't even make any sense. Kendrick MeekWe, as a country, have not seen a significant change in immigration policy in nearly two decades, even though all Americans agree that current immigration policy is outdated and malfunctioning. Raul GrijalvaWe will never stop illegal immigration until this country has a comprehensive, realistic immigration policy. Ruben HinojosaGoing forward, as we work to strengthen our border in the interests of homeland security, we must also recognize the economic importance of immigration reform. Dave Reichert
44 Cultural Competency Defined: Cultural competency skills allow us to learn, appreciate, and understand cultural differences we bring into any interaction with another personUnderstand our own worldviews, attitudes, beliefs, and opinionsNot just about nationality, but also ethnicity, language, religion, and other factorsNot just tolerance, but shaping our behaviors to work and interact effectively and respectfully with othersAlways a lesson in progress
45 Importance of Cultural Competency Building trusting relationshipsLearn how to evaluate credibilityDeveloping client centered case strategies and solutionsSome common sense, awareness, and willingness to learn new information
46 “Treat others the way they wish to be treated” The Platinum Rule“Treat others the way they wish to be treated”Try and put your own perspectives and beliefs aside
47 Be Aware of Generalizations & Categorizing People into Groups Don’t assume anythingLearn to understand and appreciate different cultures, perspectives, and experiencesAvoid jumping to conclusions or making assumptions about individualsTry and avoid assumptions about other’s cultural origins.Engage, listen, and experience what others have to offer
48 LanguageDon’t assume because someone doesn’t speak English well, that they are uneducated or not intelligentExample- Most Cameroonians in the US are a tiny minority of financially connected and well educated individuals. Many have held influential positions in their home countryMany immigrants know multiple languagesAsk whether they read and write EnglishDo they read and write in their native languageWhat language do they feel most comfortable speaking
49 Don’t be Afraid to Ask… You can plead ignorance. Ask your client about their background, history, and heritageHow they came to the United States may affect the way they view the legal system and their understandingDon’t be afraid to ask clarifying questions.It may take awhile to get a client to fully open up about very sensitive subjects.In family law area, ask about the marriage process, courtship, engagement, wedding practices.What is a “traditional” wedding in their culture?Did they have a “religious” wedding, a “traditional” wedding, a “legal” wedding?What is the process of divorce in their culture?What is their concept of “marriage” and the relationship between husband and wife?Who gets the children?Understanding your client’s background and ideas of marital relationship may affect how they view process. It also may make it easier to explain the US legal process and what needs to happen.
50 Cultural Competency Components Awareness - Be aware of your personal reactions to those who are different from youAttitude - being aware of your cultural biases and beliefs while also closely examining your beliefs and values about cultural differencesKnowledge - learning about various cultural practices and learning to identify where personal behaviors are inconsistent with personal values and beliefs about equalitySkills - practicing behaviors, attitudes, and values that allow effective communication
51 Immigration StatusBe sensitive when asking about immigration status. Explain your role (I don’t report to Immigration. I don’t report to the government.)Realize because of complexity of immigration laws, someone may not know what their immigration status is.If they “know” what their immigration status “is” they may not fully understand what that means.Just because someone doesn’t have a green card or “immigration papers” does not make them “illegal”
52 Different Cultural Backgrounds Body Language- Visual CuesRealize we can take our visual cues for grantedBody language, gestures, general roles, communication, and story telling styles may vary dramaticallyLearning about gestures, client’s eye contact, tone of voice and manner of answering questions provides cues to client’s comfort with the relationship and process of obtaining legal services
53 Different Cultural Backgrounds ReligionWorking with clients from Muslim countriesNot all Muslims practice the same religious culturesPersonal mannerismsMany Somalis won’t answer a direct question, but will give a long winded answerMeeting clients on Fridays, or notDifferent Greetings Across CountriesShaking handsNot touching Muslim menKissing the cheekPlacement of feetEye contact and form of respect
54 Understanding Cultural Differences Misunderstandings or inaccurate descriptions by immigrant may have grave consequencesNegative credibility findingsDenial of family reunification petitionsRevocation of immigration statusRemoval from the United States
55 Understanding Cultural Differences Cont. For immigration purposes, family relationships can be very important and have a precise legal definition for immigration purposesMisrepresentation, whether intentional or not, made on immigration applications can come back and haunt immigrants years laterYou may need to listen more to create a trust and authentic working relationship.You may need to open up about you, and share information about yourselfAsk about something they may be interested in
56 Make sure you are using the same definition… Words of Art – different interpretations of “English”Telling a refugee we want to send you to “camp” is different than our idea of sending someone camping. Slang vs. direct communicationExample- Many Bosnians in the area ask for a “passport.” This could mean they are looking for assistance in applying for US citizenship. OR they want assistance in applying for a US travel document.
57 Ask from Different Angles You may have to ask the same question different ways to obtain all of the information needed.“Please list all of your children” Which means list your children whether they live with you, whether they are in the United States, and whether they are alive or dead. Also includes step-children and adopted childrenHow many children do you have?How many times have you been pregnant? Was the child born alive? When did the child die?Is that a child between you and your spouse?Does your spouse have any children from another wife, another relationship?Is that a child you gave birth to?Do you have any other children living in the US?Do you have any other children living back in home country?
58 Terminology is not Always Quid Pro Quo There may be certain terms or concepts that may not have a comparable word or concept in their cultureMany other cultures do not have terms for mental health treatment or servicesMental health or “crazies” are not talked about. Or has a certain social taboo associated with it
59 What Information is “Vital”? Not all cultures place the same importance on “vital information”Definition of Family membersOther cultural systems may have a very different concept of definition of family membersFor many Africans “siblings” may be someone who has same linage, a “cousin” may be someone from the same tribeIn Somalia, if you are 15 you are an adult and can get marriedImmigration has a different definition of relationships. In the refugee process and other immigration processes you could be considered a child if you are unmarried and under 21.
60 What Information is “Vital”? Names- in some cultures, a person may have multiple names. The name they use depends on the contextTribal nameChristian (religious) nameNickname/ family nameBirthdatesNot all countries use our calendaring systemIn many instances date record keeping is not possible.Some refugees “know” what their real birthday, but because of the refugee process have been assigned a different birth date.
61 Tips for Working with Different Cultures May initially take more time, but better client services and understanding is likelyMay need to make special accommodationsMany African cultures have poor sense of time. You may need to call and remind of appointmentMake it clear you are (or are not) representing them. Reassure them you will not share information with others (especially others in their cultural community).
62 More Tips . . .Family issues pertaining to abuse, children, discipline, and problems in the family may not be discussed in the presence of family members and/or non-family members. Depending on persons present, clients may be reluctant or refuse to open up to attorneys.Some clients may be shy and ashamed of the experiences they have gone through. They may be ashamed of the feelings they are having. It is important to be cautious in helping them bring out their stories so that you can adequately represent them in seeking relief.Realize in many cultures the notion of attorney-client privilege is a foreign concept.Try and be non-judgmental when the client describes relationships or backgrounds that may not be commonly recognized, or accepted, in the U.S.PolygamyAdulteryIllegitimate children
63 Do not make assumptions based on appearance. Do not assume what they know and do not know.Ask them to repeat back what you’ve told them, so you know they understand and are not just trying to appease you.Avoid imposing your goals and your ideas about the right outcomes. What they “want” or “need” is likely different than what you think they “want” and “need.”If clients are signing a retainer agreement, explain to them what the agreement means. Explain the fee arrangement and potential costs. Make sure they understand when work begins on their case and when work ends on their case.Be aware of not only your actions, reactions, but also those around you. How do other attorneys in your office, or other office staff respond to clients.
64 Working with Refugees and Asylees Refugee - A person fleeing his or her country because of persecution or a well-founded fear of persecution on account of race, religious, nationality, membership in a particular social group, or political opinion.Asylee- A person who obtains refugee status after entering the United StatesWhat’s the difference?
65 Quick Overview of the Refugee Process Refugee process is started by the United Nations High Commission on Refugees- three pronged durable solutions framework to resolve the plight of refugeesRefugees can repatriate to their home countries when conditions allow for safe, voluntary returnRemain in the country to which they fled and integrate locallyResettle to a third country that is willing to grant them permanent residency.The average refugee spends 17 years in a refugee camp before being resettled.
66 Admission and the INAAdmission of refugees to the US and their resettlement is authorized by the Immigration and Nationality Act (INA) as amended by the Refugee Act of 1980.Refugee Act of 1980 purposes:To provide uniform procedure for refugee admissionsTo authorize federal assistance to resettle refugees and promote their self-sufficiencyINA definition of refugee:“a person who is outside his or her country and who is unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
67 World-Wide Refugee Issue 20.6 million people live outside country of origin10.4 million refugees worldwide1 million additional “persons of concern” to United Nations High Commission on RefugeesNot all refugees live in “camps” about 50% are considered “urban refugees”
68 Hitting the “Ceiling”Typically the annual number of refugees that can be admitted into the US, is known as the refugee ceiling.Allocation is set of these numbers by region are set by the President after consultation with Congress at the start of each fiscal yearFY ,000 with 73,000 allocated among regions of the world3,000 unallocated reserve- use if, and when, a need develops for refugee slots in excess of 73,000.FY allocationAfrica 12,000 (Somalis, Congolese, Eritreans)East Asia 18,000 (Burmese)Europe and Central Asia 2,000Latin America/ Caribbean 5,500Near East/ South Asia 35,500 (Iraqi, Bhutanese, Iranians, Pakistanis, Afghans)
69 Processing Refugees Overseas Overseas processing of refugees is conducted through a system of three priorities for admissionPriority 1- cases involving persons facing compelling security concernsPriority 2- cases involving person from specific groups of special humanitarian concern to the USPriority 3- family reunification cases involving close relatives of persons admitted as refugees or granted asylumOn October 22, 2008, U.S. refugee program stopped accepting applications under Priority 3 due to indications of extremely high rates of fraud obtained by DNA testing.
70 Processing Refugees Overseas, Cont. Department of Health and Human Service’s Office of Refugee Resettlement (HHS/ ORR) administers an initial transitional assistance program for temporarily dependent refugees and Cuban/ Haitian entrants.Refugees are process and admitted to the US from abroad. The Department of State handles overseas processing of refugees.US aims to consider for resettlement at least half of the refugees referred by the United Nations High Commission for Refugees (UNHCR) for resettlement worldwide each year.Refugee numbers dropped after September 11, 2001Admissions rebounded for FY 2002 and FY 2003In FY 2011 admissions were lower largely due to the introduction of additional security checks during the year
71 Admissibility of Refugees In order to be admitted to the United States, prospective refugee must be admissible based on U.S. immigration law.Health related grounds (communicable disease of public health significance)Security related grounds of admissibility (terrorist grounds)Refugees have background checks being done on them by 4 different agencies prior to arrival in the US.FBI,CIADHS (Department of Homeland Security)Department of StateRefugees do not get to “choose” where they goException for certain family reunification situations
72 “Survivors”By definition they have been persecuted and are survivors of violence and trauma. Survivors often face specific trauma related challenges:DepressionPost-traumatic stress disorderAnxietyFear of authorityMany women have been victims of sexual assaultMany refugees entering the US have spent years in refugee camps, which often is very stressfulAlso likely have had lack of access to sound legal advice while in the refugee campsAt the same time it’s not uncommon for rumors and “here’s what you need to do” misinformation to be spread in the refugee camp.
73 Refugee “Life Experiences” The experience for each refugee is different.Refugees throughout the world are not the same, other than sharing the definition of being a refugeeNot all refugee camps are safe. Many camps are overcrowded, have food shortages, and have high prevalence of crime (both by refugees and workers).Realize asking the client about their “story” may indeed re-traumatize themClient may have to confront issues of loss- loss of family, home, work, community, and culture.
74 The Different Phases of Trauma Pre-flightLoss of livelihoodLoss of home/ possessionsRepeated relocation/ living in hidingSeparation from familySocietal chaosLack of medical care/ malnutritionharassment/ intimidation/ threatsFear of arrestNeed for secrecy/ silence/ distrustBeing followed or monitoredImprisonmentTortureOther violenceWitnessing violenceDisappearances/ deathsFlightFear of being caught/ returnedDetention at checkpoints/ bordersIllnessRobbery/ exploitation/ bribedPhysical assault/ rape/ injuryCrowded, unsanitary conditionsLong waits in refugee campsUncertainty about future
75 The Different Phases of Trauma, Cont. Post-flightLack of legal statusLanguage barriersTransportation/ service barriersShock of new climateRepeated relocationSocial/ cultural isolationConflict: internal, marital, generational, communityFamily separation/ reunificationUnresolved lossesBad news from homeUnrealistic expectations from homeUnmet expectationsLow social, economic statusLoss of identity/rolesUnemployment/ underemploymentRacial/ ethnic discriminationInadequate/ dangerous housing
76 Phases of Trauma, cont.In each stage clients will experience fears and losses that influence their ability to participate in legal proceedings.Symptoms of trauma may interfere with client’s ability to participate in their caseClients may have difficulty remembering details of eventsTheir emotional reactions may seem inappropriateThey may miss appointments or not follow through on directions if it is going to trigger re-traumatizationMay have distrust or fear of the process or those involvedSmall things may trigger memories of the pastMay be poorly motivated
77 Dealing with Immediate Needs Realize many refugees are dealing with complicated and emotionally stressful resettlement concerns.What they were told about the United States likely does not equate to what “real life” in the United States is likeInitially there may be a wide range of issues that need to be addressed: housing, employment, isolation, medical problems, lack of transportation, lack of English skills, schooling for children, and meeting other basic needs.
78 Cultural Differences That May Affect an Attorney’s Ability to Provide Effective Representation Refugee DocumentationRealize not all refugees are going to have access to basic, key documents we are accustomed to having.If they were persecuted in their home country, they may not have been eligible for a birth certificate.They may have fled with the clothes on their back, and were unable to take any vital documentation with them.They may know what their real birth date is, but because of the refugee process, their true birth date may not be reflected on their paperwork.Differing Concepts of Civil and Criminal lawAt the same time you must make sure your client understands US legal system and terminology, don’t assume they are unfamiliar with legal concepts or lack sophistication or education. Refugees can come from all backgrounds. Some may be highly educated and trained in their home country. They may be scientists, professors, journalists, or business owners.
80 Public ChargePublic charge can be a term used to deny a person the ability to obtain permanent legal status in the United States“likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long term care at government expense”Cash assistance for income maintenanceCash assistance from programs such as TANF (Temporary Assistance for Needy Families)General AssistancePublic Assistance, including Medicaid, used for supporting aliens who reside in a long term care facilityIn some cases, Supplemental Security Income (SSI)
81 Public Charge Cash Assistance does not include: Medicaid (generally received not for long term care)WIC/ Nutrition ProgramImmunizations, prenatal care, testing and treatment of communicable diseasesEmergency AssistanceChild Care ServicesFoster Care and Adoption AssistanceTransportation VouchersEducation Assistance for Job Training ProgramsNon-cash benefitsSoup KitchensCrisis CounselingShelter ServicesDoes not include Cash Payments that have been earned
82 Government Benefits for Noncitizens Welfare changed dramatically between 1996 and todaySince 1996, many non-citizens lost their eligibility for, or received limited time frames to receive, government benefitsTo understand qualifications for federal programs including SSI, Food Stamps, State or Federal Benefits one needs to understandQualified non-citizenBattered Immigrant
83 Qualified Non-citizen Person is a refugee, asylee or paroleePerson who has been lawfully admitted for permanent residencePerson who was granted conditional entry prior to April 1980Person who has withholding of deportation or cancellation of removalPerson with T visaPerson who has been battered
84 Non-Citizen Eligibility for SSI Must be a “qualified non-citizen” as defined under federal lawMust meet residency requirementsMust meet the income, asset and disability requirementsNon-citizens unqualified for SSIPerson with no or expired documentationPerson who entered as a fiancéePerson is a non-immigrant with Temporary Protected Status (TPS), student visa, visitor status, or temporary worker visa
85 Residency Requirement for SSI Date of AdmissionPre- 8/22/1996If legally in the US and receiving SSI on date may continue to receiveIf legally in US but not on SSI on date, meet disability criteriaPost 8/22/1996Generally NOT eligibleThree ExceptionsRefugees/ Asylees or Withholding of Status- BUT only for 7 years from date of admissionVeterans and their dependents (no time limits)Workers who have worked 40 qualifying quarters or more of SSI covered work. However, can’t receive benefits for the first 5 years.
86 Ineligibility for Public Benefits Ineligible for BenefitsGenerally, qualified noncitizens are not eligible for federal or state funded benefits unless they have been a permanent resident for 5 yearsQualified Noncitizens cannot receive benefits due to Sponsor Deeming through the Affidavit of Support
87 Affidavit of SupportForm I-864 creates a sponsorship requirement in petitionerUnder U.S. law, every person who immigrates based on a relative petition must have a financial sponsor.Sponsor must agree to financially support foreign national family memberPurpose is to help ensure new immigrants will not need to rely on public benefits.If foreign national is later given certain public benefits, the agency that gave the benefits can require sponsor to repay the money.Sponsor must demonstrate ability to support up to 125% of Federal Poverty Guidelines for sponsor’s household size (including foreign national beneficiary)
88 Affidavit of SupportIf a sponsor does not provide basic support to the foreign national, the foreign national, or the Federal or State agency that gave the benefits to the family members, can seek reimbursement of the funds through legal action against the sponsor.State will not provide benefits to sponsored immigrantDoes not apply toRefugeesAsyleesDV lottery winnersTPSVAWA applicant
89 Affidavit of SupportThe Affidavit of Support is enforceable against the sponsor until the foreign national:Becomes a U.S. citizenIs credited with 40 quarters of work in the U.S. (usually 10 years)Leaves the United States permanently; orDiesObligation does survive divorce
90 Food StampsAll qualified noncitizens are eligible for food stamps after being in qualified permanent resident status for five yearsException to 5 year requirementDisabled legal immigrantLegal immigrants under 18Refugees, asylees, withholding of removalUS Veterans and active duty members, their spouses, surviving spouses and unmarried dependent childrenCertain select others
91 Medical Assistance Available to qualified immigrants who Are low incomePermanently and legally in the USMeet categorical eligibility requirements by:Being pregnantHaving minor children or living in an MFIB householdBeing under 21Being 65 or older, ORHaving a certified disabilitySponsor deeming from Affidavit of Support AppliesUndocumented immigrants are not, and have never been eligible for food stamps
92 Federal Action to Enforce Immigration 287(g) ProgramsProgram for state and localities to enter into specific cooperative agreements with federal governmentFederal government trains local law enforcement and allows local police departments to enforce civil immigration law enforcementSecure CommunitiesIs supposed to be nationwide in 2013All of Minnesota (February 2012) and North Dakota (April 26, 2012) are Secure CommunitiesInformation sharing between federal, state and local communitiesState and local jurisdictions submit arrestee’s fingerprints to criminal and immigration databasesICE is notified about immigration status of those fingerprintedDetainersCriminal Alien Program
93 “I’m an attorney . . . how hard could completing this immigration form be?”
95 How Hard Is It? Sources of Immigration Law Immigration Law is the second most complicated area of law to practice in.Federal Law:US CodeCode Federal RegulationsImmigration and Nationality ActFederal RegisterCircuit LawPublic Laws: IMMACT90, AEDPA, IIRIRA, Patriot Act, Real ID Act and Other Public LawsAgency Memos, Letters, etc.Department of State CablesState LawAdministrative LawBIA: Board of Immigration AppealsBALCA: Board of Alien Labor Certification AppealsOCAHO: Office of the Chief Administrative Hearing OfficerAAO: Administrative Appeals Office (was AAU: Administrative Appeals Unit)Foreign Affairs ManualPractice AdvisoriesLocal Practices - Liaison Meeting Minutes, Personal Relationships with Adjudicators
96 Daily Interactions Courts Departments Agencies Immigration Court Federal CourtState CourtAdministrative CourtDepartmentsDepartment of Homeland SecuritiesDepartment of JusticeDepartment of LaborDepartment of StateAgenciesUSCIS: United States Citizenship and Immigration ServicesICE: Immigration and Customs EnforcementCBP: Border Patrol
97 Consequences Advising someone to file for a benefit they shouldn’t i.e. Naturalization when client has a criminal recordNot knowing all the paths/options available – time and moneyVisa FraudPreconceived IntentReason to Believe Standard – no conviction necessaryInadmissibilityDeportationImmigration Law is constantly evolving – you have to practice it full time to stay abreast with current trends!!
98 CLOSINGCONTACT INFORMATION:Sue Swanson: Swanson Law Office(PH)Anna Marie Stenson: Immigration Law Professionals(PH)