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IMMIGRATION FOR THE NON-IMMIGRATION ATTORNEY

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Presentation on theme: "IMMIGRATION FOR THE NON-IMMIGRATION ATTORNEY"— Presentation transcript:

1 IMMIGRATION FOR THE NON-IMMIGRATION ATTORNEY

2 PRESENTED BY: Sue Swanson Anna Stenson
North Dakota State’s Attorneys’ Association Summer Conference June 22, :00 AM- 1:00 PM

3

4 GOVERNMENT AGENCIES

5 GOVERNMENT AGENCIES U.S Department of Homeland Security (DHS)
USCIS- United States Citizenship and Immigration Services ICE – Immigration and Customs Enforcement CBP – Customs and Border Protection U.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 approved U.S. Customs & Border Protection (CBP) Reviews immigration paperwork at all U.S. Ports of Entry Determine whether a foreign national’s eligibility to enter the U.S. Airports, at the border, within 100 miles of border U.S. Immigration & Customs Enforcement (ICE) Investigates as to whether someone entered into the U.S. legally and/or is in a legal immigration status Detaining 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 Justice Office of Special Counsel for Immigration Related Unfair Employment EOIR- Executive Office of Immigration Review Executive Office of Immigration Review EOIR Immigration Court Removal/ deportation from the United States No right to free legal representation Immigration judges are appointed by the Attorney General Board of Immigration Appeals Reviews decisions made by immigration judges Office of Refuge Resettlement Department of Labor (DOL)

7 Immigration Status United States Citizens Non-Citizens
Birth in the U.S. Naturalization Acquisition at Birth Derivation of Citizenship Non-Citizens Immigrant Family Employment Humanitarian Conditional Permanent Resident Non-Immigrant Students Work Visas Visitors TPS- Temporary Protected Status Undocumented Overstay of visa Entered 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. Family Immediate Relatives No “waiting” or numerical limits Spouse, parent, or minor unmarried children under age of 21 of US citizens Must sponsor and prove ability to financially support them Priority Based Up to 480,000 visas per year Lengthy 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 multinationals Professionals with advanced degrees Skilled 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 year Allotted to countries that are underrepresented in other forms of US immigration Applicants must be 18 or older with equivalent of high school diploma Humanitarian Refugees Limit 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 opinion Processed through the United Nations High Commission on Refugees

12 Other Immigrants- continued
Humanitarian- continued Asylee- a person who obtains refugee status after entering the United States Special Immigrant Juvenile Status Some children whose parents have abandoned, neglected , or abused them may be able to obtain lawful permanent resident status They 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 Adjustment In 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 here Students: F-1 Degree Seeking Student, M-1 Vocational Student, J-1 Exchange Student Work Visas: In ND will see H-2A, H-1B Specialty Visa, L-1 Intracompany Transferee, E1/E2 Treaty Trader Visa Visitors: Visa Waiver, B1/B2 TPS: 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
Visas Permission to “knock on the door” to seek entry into the US Visa are issued to non-immigrants and immigrants Issued 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 States Just 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.

16 United States Visa

17 Immigration Status in U.S.
I-94 Card- Arrival Departure Record Documents lawful entry, inspection, and admission to the United States In 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.

18 I-94 Card Example

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.

20 I-20 Example

21 Immigration Documentation
Temporary Employment Authorization Card Based on Status in the United States In some instances can apply for permission to work while waiting for a change of immigration status

22 Immigration Documentation
Permanent Resident (Green) Card I-551 Contains biographic information Contains information regarding how obtained immigration status in the United States Just because card expires does not mean status is terminated.

23 Good Moral Character Issues
Any crime against a person with intent to harm Any crime against property or the Government that involves evil intent Two or more crimes where aggregate sentence was 5 years or more Violating any controlled substance law of the U.S., any state, or any foreign country Habitual drunkenness Illegal gambling Prostitution Polygamy Lying to gain immigration benefits Confinement to jail, prison, or similar institution for 180 in 5 years Failing to complete any probation, parole, suspended sentence Terrorist acts Persecution of anyone because of race, religion, national origin, political opinion, or social group

24 Naturalization Requirements
Areas of concern for naturalization Living outside of the U.S. for more than 6 months since came here Alcohol or drug problems, including Khat or illegal drugs Arrested, charged, or convicted of crime (traffic violations included) Were charged or convicted of domestic abuse Failed to pay child support Did not file income tax returns or owe taxes Male who did not register with Selective Service (18-26) Not being truthful on your application.

25 Immigration and Criminal Law
Padilla vs. Kentucky Immigration Consequences of a Criminal Conviction Inadmissibility Removability Crime Involving Moral Turpitude (CIMT) Aggravated Felony for Immigration Purposes Mandatory detention Expedited Removal Ineligible for many forms of relief Forms of Relief From Deportation Voluntary Departure Cancellation of Removal Asylum/CAT Adjustment of Status

26 Immigrants Are Subject to a Secondary Layer of Punishment
Deportation Bar to getting lawful immigration status (e.g. asylum, green card, student or work visas) Loss of current immigration status Bar to citizenship Bar to relief from deportation Bar to returning to the US after travel abroad Detention (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 facts Failure 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 1996 Must 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" OR Where no formal finding of guilt: If defendant pleads guilty, nolo contendere or has admitted sufficient facts to warrant a finding of guilty, AND The 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 Liberty Sentence to incarceration Probation Fine Community Service Req'd Classes (i.e. anger management) Court Costs Strategies Avoid guilty plea: waive trail rights to get pre-plea probation Avoid guilty plea: Admit to Prosecutor, not Judge Avoid guilty plea: Drug Courts as a pre-plea diversion Plea to safe haven offense

30 Record of Conviction Charging 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 grants Will NOT take away lawful permanent residency as long as the alien remains in the US - it is triggered upon departure from the US Hurts the undocumented person because it makes it may bar him/her from obtaining a legal status

32 Deportability, INA 237, 8 U.S.C. 1227 Alien can lose whatever legal status s/he has May be removed from the US Usually doesn't hurt an undocumented person because s/he has no status to lose

33 Plea Deals Consult an immigration attorney BEFORE entering your client into a plea agreement Safe haven offenses Minimize immigration consequences

34 Sentencing May affect whether a conviction is an aggravated felony for immigration purposes Want to plea to 364 days or less Sometimes, you may need to plead your client to less than 180 days Sometimes better to plea to safe haven offense + jail time

35 Effects of a Conviction
Crime Involving Moral Turpitude (CIMT) Aggravated felony Alien is subject to mandatory detention Ineligible for most forms of relief Alien who is deported and then re-enters the US illegally & is convicted of illegal re-entry is subject to significant sentence enhancement Mandatory detention No set release date Can be moved to multiple detention facilities throughout the US - affects attorney effectiveness Held with violent offenders

36 Overview of the Deportation Process
Typically alien taken into custody during minor traffic stop or via criminal conviction Must complete criminal proceedings first. Detained on immigration hold. Issued a Notice to Appear (NTA) - Immigration charging document Held at Grand Forks, ND correctional facility Transferred to MPLS Sherburne County Jail Master 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 Attorneys Master Calendar Hearing (MCH) – First Appearance Individual Hearing – Trial/Presentation of Case Notice To Appear – Immigration Charging Document States the nature of proceedings and legal authority Lays out the facts and alleged illegal conduct Specifies the Charges and statutes allegedly violated must 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 admitted Between 180 days and one year- three year bar More than 1 year – ten year bar Triggered on leaving the U.S.

39 Relief From Deportation - Terms
Voluntary Departure Ability to leave the US and avoid an order of deportation Client pays for his/her cost of travel May avoid the "3 year bar" for unlawful presence - INA 212(a)(9)(B)(v)

40 Relief From Deportation Terms, cont.
Cancellation of Removal May be available to both Legal and Non-Legal Permanent Residents Must meet statutory guidelines for eligibility Once meet statutory guidelines, judge has discretion whether to approve/deny Must show "exceptional or extremely unusual hardship" to USC/LPR spouse, parent or child One bite at the apple - can only granted once in a person's lifetime.

41 Relief From Deportation Terms, cont.
Adjustment of Status Deferred 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 Waivers Sections of the Act which waive a person's grounds for inadmissibility or deportability Require a LPR/USC immediate family member - LPR/USC spouse, parent, son/daughter, depends on the type of waiver sought The foreign national must show: Extreme hardship to a qualifying relative Exceptional or extremely unusual hardship" to a qualifying relative Sometimes no hardship req'd - instead is a "weighing of the equities" Waivers are discretionary Sometimes can "stack" waivers - apply for more than one at a time Some 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 Meek We, 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 Grijalva We will never stop illegal immigration until this country has a comprehensive, realistic immigration policy. Ruben Hinojosa Going 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 person Understand our own worldviews, attitudes, beliefs, and opinions Not just about nationality, but also ethnicity, language, religion, and other factors Not just tolerance, but shaping our behaviors to work and interact effectively and respectfully with others Always a lesson in progress

45 Importance of Cultural Competency
Building trusting relationships Learn how to evaluate credibility Developing client centered case strategies and solutions Some 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 anything Learn to understand and appreciate different cultures, perspectives, and experiences Avoid jumping to conclusions or making assumptions about individuals Try and avoid assumptions about other’s cultural origins. Engage, listen, and experience what others have to offer

48 Language Don’t assume because someone doesn’t speak English well, that they are uneducated or not intelligent Example- Most Cameroonians in the US are a tiny minority of financially connected and well educated individuals. Many have held influential positions in their home country Many immigrants know multiple languages Ask whether they read and write English Do they read and write in their native language What 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 heritage How they came to the United States may affect the way they view the legal system and their understanding Don’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 you Attitude - being aware of your cultural biases and beliefs while also closely examining your beliefs and values about cultural differences Knowledge - learning about various cultural practices and learning to identify where personal behaviors are inconsistent with personal values and beliefs about equality Skills - practicing behaviors, attitudes, and values that allow effective communication

51 Immigration Status Be 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 Cues Realize we can take our visual cues for granted Body language, gestures, general roles, communication, and story telling styles may vary dramatically Learning 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
Religion Working with clients from Muslim countries Not all Muslims practice the same religious cultures Personal mannerisms Many Somalis won’t answer a direct question, but will give a long winded answer Meeting clients on Fridays, or not Different Greetings Across Countries Shaking hands Not touching Muslim men Kissing the cheek Placement of feet Eye contact and form of respect

54 Understanding Cultural Differences
Misunderstandings or inaccurate descriptions by immigrant may have grave consequences Negative credibility findings Denial of family reunification petitions Revocation of immigration status Removal 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 purposes Misrepresentation, whether intentional or not, made on immigration applications can come back and haunt immigrants years later You 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 yourself Ask 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 communication Example- 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 children How 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 culture Many other cultures do not have terms for mental health treatment or services Mental 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 members Other cultural systems may have a very different concept of definition of family members For many Africans “siblings” may be someone who has same linage, a “cousin” may be someone from the same tribe In Somalia, if you are 15 you are an adult and can get married Immigration 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 context Tribal name Christian (religious) name Nickname/ family name Birthdates Not all countries use our calendaring system In 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 likely May need to make special accommodations Many African cultures have poor sense of time. You may need to call and remind of appointment Make 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. Polygamy Adultery Illegitimate 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 States What’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 refugees Refugees can repatriate to their home countries when conditions allow for safe, voluntary return Remain in the country to which they fled and integrate locally Resettle 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 INA Admission 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 admissions To authorize federal assistance to resettle refugees and promote their self-sufficiency INA 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 origin 10.4 million refugees worldwide 1 million additional “persons of concern” to United Nations High Commission on Refugees Not 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 year FY ,000 with 73,000 allocated among regions of the world 3,000 unallocated reserve- use if, and when, a need develops for refugee slots in excess of 73,000. FY allocation Africa 12,000 (Somalis, Congolese, Eritreans) East Asia 18,000 (Burmese) Europe and Central Asia 2,000 Latin America/ Caribbean 5,500 Near 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 admission Priority 1- cases involving persons facing compelling security concerns Priority 2- cases involving person from specific groups of special humanitarian concern to the US Priority 3- family reunification cases involving close relatives of persons admitted as refugees or granted asylum On 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, 2001 Admissions rebounded for FY 2002 and FY 2003 In 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, CIA DHS (Department of Homeland Security) Department of State Refugees do not get to “choose” where they go Exception 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: Depression Post-traumatic stress disorder Anxiety Fear of authority Many women have been victims of sexual assault Many refugees entering the US have spent years in refugee camps, which often is very stressful Also likely have had lack of access to sound legal advice while in the refugee camps At 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 refugee Not 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 them Client may have to confront issues of loss- loss of family, home, work, community, and culture.

74 The Different Phases of Trauma
Pre-flight Loss of livelihood Loss of home/ possessions Repeated relocation/ living in hiding Separation from family Societal chaos Lack of medical care/ malnutrition harassment/ intimidation/ threats Fear of arrest Need for secrecy/ silence/ distrust Being followed or monitored Imprisonment Torture Other violence Witnessing violence Disappearances/ deaths Flight Fear of being caught/ returned Detention at checkpoints/ borders Illness Robbery/ exploitation/ bribed Physical assault/ rape/ injury Crowded, unsanitary conditions Long waits in refugee camps Uncertainty about future

75 The Different Phases of Trauma, Cont.
Post-flight Lack of legal status Language barriers Transportation/ service barriers Shock of new climate Repeated relocation Social/ cultural isolation Conflict: internal, marital, generational, community Family separation/ reunification Unresolved losses Bad news from home Unrealistic expectations from home Unmet expectations Low social, economic status Loss of identity/roles Unemployment/ underemployment Racial/ ethnic discrimination Inadequate/ 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 case Clients may have difficulty remembering details of events Their emotional reactions may seem inappropriate They may miss appointments or not follow through on directions if it is going to trigger re-traumatization May have distrust or fear of the process or those involved Small things may trigger memories of the past May 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 like Initially 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 Documentation Realize 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 law At 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.

79 Public Benefits and Immigration

80 Public Charge Public 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 maintenance Cash assistance from programs such as TANF (Temporary Assistance for Needy Families) General Assistance Public Assistance, including Medicaid, used for supporting aliens who reside in a long term care facility In some cases, Supplemental Security Income (SSI)

81 Public Charge Cash Assistance does not include:
Medicaid (generally received not for long term care) WIC/ Nutrition Program Immunizations, prenatal care, testing and treatment of communicable diseases Emergency Assistance Child Care Services Foster Care and Adoption Assistance Transportation Vouchers Education Assistance for Job Training Programs Non-cash benefits Soup Kitchens Crisis Counseling Shelter Services Does not include Cash Payments that have been earned

82 Government Benefits for Noncitizens
Welfare changed dramatically between 1996 and today Since 1996, many non-citizens lost their eligibility for, or received limited time frames to receive, government benefits To understand qualifications for federal programs including SSI, Food Stamps, State or Federal Benefits one needs to understand Qualified non-citizen Battered Immigrant

83 Qualified Non-citizen
Person is a refugee, asylee or parolee Person who has been lawfully admitted for permanent residence Person who was granted conditional entry prior to April 1980 Person who has withholding of deportation or cancellation of removal Person with T visa Person who has been battered

84 Non-Citizen Eligibility for SSI
Must be a “qualified non-citizen” as defined under federal law Must meet residency requirements Must meet the income, asset and disability requirements Non-citizens unqualified for SSI Person with no or expired documentation Person who entered as a fiancée Person is a non-immigrant with Temporary Protected Status (TPS), student visa, visitor status, or temporary worker visa

85 Residency Requirement for SSI
Date of Admission Pre- 8/22/1996 If legally in the US and receiving SSI on date may continue to receive If legally in US but not on SSI on date, meet disability criteria Post 8/22/1996 Generally NOT eligible Three Exceptions Refugees/ Asylees or Withholding of Status- BUT only for 7 years from date of admission Veterans 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 Benefits Generally, qualified noncitizens are not eligible for federal or state funded benefits unless they have been a permanent resident for 5 years Qualified Noncitizens cannot receive benefits due to Sponsor Deeming through the Affidavit of Support

87 Affidavit of Support Form I-864 creates a sponsorship requirement in petitioner Under 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 member Purpose 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 Support If 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 immigrant Does not apply to Refugees Asylees DV lottery winners TPS VAWA applicant

89 Affidavit of Support The Affidavit of Support is enforceable against the sponsor until the foreign national: Becomes a U.S. citizen Is credited with 40 quarters of work in the U.S. (usually 10 years) Leaves the United States permanently; or Dies Obligation does survive divorce

90 Food Stamps All qualified noncitizens are eligible for food stamps after being in qualified permanent resident status for five years Exception to 5 year requirement Disabled legal immigrant Legal immigrants under 18 Refugees, asylees, withholding of removal US Veterans and active duty members, their spouses, surviving spouses and unmarried dependent children Certain select others

91 Medical Assistance Available to qualified immigrants who
Are low income Permanently and legally in the US Meet categorical eligibility requirements by: Being pregnant Having minor children or living in an MFIB household Being under 21 Being 65 or older, OR Having a certified disability Sponsor deeming from Affidavit of Support Applies Undocumented immigrants are not, and have never been eligible for food stamps

92 Federal Action to Enforce Immigration
287(g) Programs Program for state and localities to enter into specific cooperative agreements with federal government Federal government trains local law enforcement and allows local police departments to enforce civil immigration law enforcement Secure Communities Is supposed to be nationwide in 2013 All of Minnesota (February 2012) and North Dakota (April 26, 2012) are Secure Communities Information sharing between federal, state and local communities State and local jurisdictions submit arrestee’s fingerprints to criminal and immigration databases ICE is notified about immigration status of those fingerprinted Detainers Criminal Alien Program

93 “I’m an attorney . . . how hard could completing this immigration form be?” 

94

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 Code Code Federal Regulations Immigration and Nationality Act Federal Register Circuit Law Public Laws: IMMACT90, AEDPA, IIRIRA, Patriot Act, Real ID Act and Other Public Laws Agency Memos, Letters, etc. Department of State Cables State Law Administrative Law BIA: Board of Immigration Appeals BALCA: Board of Alien Labor Certification Appeals OCAHO: Office of the Chief Administrative Hearing Officer AAO: Administrative Appeals Office (was AAU: Administrative Appeals Unit) Foreign Affairs Manual Practice Advisories Local Practices - Liaison Meeting Minutes, Personal Relationships with Adjudicators

96 Daily Interactions Courts Departments Agencies Immigration Court
Federal Court State Court Administrative Court Departments Department of Homeland Securities Department of Justice Department of Labor Department of State Agencies USCIS: United States Citizenship and Immigration Services ICE: Immigration and Customs Enforcement CBP: Border Patrol

97 Consequences Advising someone to file for a benefit they shouldn’t
i.e. Naturalization when client has a criminal record Not knowing all the paths/options available – time and money Visa Fraud Preconceived Intent Reason to Believe Standard – no conviction necessary Inadmissibility Deportation Immigration Law is constantly evolving – you have to practice it full time to stay abreast with current trends!!

98 CLOSING CONTACT INFORMATION: Sue Swanson: Swanson Law Office (PH) Anna Marie Stenson: Immigration Law Professionals (PH)


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