Immigration 101: - PowerPoint Presentation

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Immigration 101:

IMMIGRATION FOR THE NON-IMMIGRATION ATTORNEY

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PRESENTED BY:Sue Swanson

Anna Stenson

North Dakota State’s Attorneys’ Association Summer ConferenceJune 22, 2012- 11:00 AM- 1:00 PM

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GOVERNMENT AGENCIES

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GOVERNMENT AGENCIES

U.S Department of Homeland Security (DHS)USCIS- United States Citizenship and Immigration ServicesICE – 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 EntryDetermine 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 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.

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GOVERNMENT AGENCIES, cont.

U.S. Department of JusticeOffice 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 AppealsReviews decisions made by immigration judgesOffice of Refuge ResettlementDepartment of Labor (DOL)

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Immigration Status

United States CitizensBirth in the U.S.

NaturalizationAcquisition at BirthDerivation of Citizenship

Non-Citizens

Immigrant

Family

Employment

Humanitarian

Conditional Permanent Resident

Non-Immigrant

Students

Work VisasVisitorsTPS- Temporary Protected StatusUndocumentedOverstay of visa

Entered without authorization7Slide8

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.

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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.

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Non-Citizens: Immigrants

Employment“Priority” workers such as professors, researchers, high-level managers of multinationalsProfessionals 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.

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Other Immigrants

Diversity LotteryUp to 55,000 visas per yearAllotted to countries that are underrepresented in other forms of US immigration

Applicants must be 18 or older with equivalent of high school diplomaHumanitarianRefugeesLimit set by President with consultation by Congress (70,000- 80,000)

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

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Other Immigrants- continued

Humanitarian- continuedAsylee- a person who obtains refugee status after entering the United States

Special Immigrant Juvenile StatusSome 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.

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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. 13Slide14

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.

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How People Come to the US

VisasPermission to “knock on the door” to seek entry into the USVisa 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.

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United States Visa

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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.

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I-94 Card Example

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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.

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I-20 Example

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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

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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.

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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 more

Violating any controlled substance law of the U.S., any state, or any foreign countryHabitual 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

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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 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.

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Immigration and Criminal Law

Padilla vs. KentuckyImmigration Consequences of a Criminal ConvictionInadmissibility

RemovabilityCrime 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

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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 deportation

Bar

to returning to the US after travel abroad

Detention (sometimes mandatory, out of state, no fixed release date)

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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 1996

Must advise on how to avoid being deportable/inadmissible, avoid bars to relief from removal, and address client's "clear and unclear" questions

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 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

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Immigration Definition of Conviction, cont.

Restraint on LibertySentence to incarceration

ProbationFineCommunity ServiceReq'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

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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).

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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 US

Hurts the undocumented person because it makes it may bar him/her from obtaining a legal status

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Deportability, INA 237, 8 U.S.C. 1227

Alien can lose whatever legal status s/he has

May be removed from the USUsually doesn't hurt an undocumented person because s/he has no status to lose

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Plea Deals

Consult an immigration attorney BEFORE entering your client into a plea agreement

Safe haven offenses

Minimize immigration consequences

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Sentencing

May affect whether a conviction is an aggravated felony for immigration

purposesWant 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

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Effects of a Conviction

Crime Involving Moral Turpitude (CIMT)

Aggravated felonyAlien is subject to mandatory detentionIneligible 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

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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

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Deportation Court Terms

Immigration Judge (IJ)Office of Chief Counsel (OCC) – Government

AttorneysMaster Calendar Hearing (MCH) – First AppearanceIndividual 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 violatedmust give address and telephone number; time and place of hearing and consequences of failing to appear.

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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 bar

More than 1 year – ten year barTriggered on leaving the U.S.

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Relief From Deportation - Terms

Voluntary DepartureAbility to leave the US and avoid an order of deportation

Client pays for his/her cost of travelMay avoid the "3 year bar" for unlawful presence - INA 212(a)(9)(B)(v)

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Relief From Deportation Terms, cont.

Cancellation of Removal

May be available to both Legal and Non-Legal Permanent ResidentsMust 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.

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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)

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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 soughtThe 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 lifetime42Slide43

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

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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

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

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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

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The Platinum Rule

“Treat others the way they wish to be treated”

Try and put your own perspectives and beliefs aside

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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

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Language

Don’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 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

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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 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.

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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

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 communication50Slide51

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”

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Different Cultural Backgrounds

Body Language- Visual Cues

Realize we can take our visual cues for grantedBody 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

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Different Cultural Backgrounds

ReligionWorking with clients from Muslim countries

Not all Muslims practice the same religious culturesPersonal 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 feetEye contact and form of respect 53Slide54

Understanding Cultural Differences

Misunderstandings or inaccurate descriptions by immigrant may have grave consequences

Negative credibility findingsDenial of family reunification petitionsRevocation of immigration status

Removal from the United States

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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 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

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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.

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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?

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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 servicesMental health or “crazies” are not talked about. Or has a certain social taboo associated with it

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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 membersFor 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

.

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What Information is “Vital”?

Names- in some cultures, a person may have multiple names. The name they use depends on the contextTribal nameChristian (religious) name

Nickname/ family nameBirthdatesNot 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.

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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).

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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

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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. Slide64

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

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What’s the difference?Slide65

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 returnRemain in the country to which they fled and integrate locally

Resettle to a third country that is willing to grant them permanent residency.

T

he average refugee spends 17 years in a refugee camp before being resettled.

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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 admissionsTo 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.

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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 Refugees

Not all refugees live in “camps” about 50% are considered “urban refugees”

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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 2012- 76,000 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 2012- allocation

Africa

12,000

(Somalis

, Congolese, Eritreans)

East

Asia 18,000 (Burmese)Europe and Central Asia 2,000 Latin America/ Caribbean 5,500Near East/ South Asia 35,500 (Iraqi, Bhutanese, Iranians, Pakistanis, Afghans)

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Processing Refugees Overseas

Overseas processing of refugees is conducted through a system of three priorities for admissionPriority 1- cases involving persons facing compelling security concerns

Priority 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 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.

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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

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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

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“Survivors”

By definition they have been persecuted and are survivors of violence and trauma.  Survivors often face specific trauma related challenges:

DepressionPost-traumatic stress disorderAnxiety

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.

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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.

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The Different Phases of Trauma

Pre-flightLoss of livelihood

Loss of home/ possessionsRepeated relocation/ living in hidingSeparation 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

TortureOther violenceWitnessing violenceDisappearances/ deaths

FlightFear of being caught/ returnedDetention at checkpoints/ bordersIllnessRobbery/ exploitation/ bribedPhysical assault/ rape/ injuryCrowded, unsanitary conditionsLong waits in refugee campsUncertainty about future

74Slide75

The Different Phases of Trauma, Cont.

Post-flight

Lack of legal statusLanguage barriersTransportation/ 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 expectationsLow social, economic statusLoss of identity/rolesUnemployment/ underemploymentRacial/ ethnic discrimination

Inadequate/ dangerous housing75Slide76

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 eventsTheir 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

76Slide77

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.

77Slide78

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 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.

78Slide79

Public Benefits and Immigration

75Slide80

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)76Slide81

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 diseasesEmergency AssistanceChild Care ServicesFoster Care and Adoption Assistance

Transportation Vouchers

Education

Assistance

for Job Training Programs

Non-cash benefits

Soup Kitchens

Crisis Counseling

Shelter

ServicesDoes not include Cash Payments that have been earned77Slide82

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-citizen

Battered Immigrant

78Slide83

Qualified Non-citizen

Person is a refugee, asylee or parolee

Person 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 removal

Person with T visa

Person who has been battered

79Slide84

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

80Slide85

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 criteria

Post 8/22/1996Generally NOT eligibleThree ExceptionsRefugees/ 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.

81Slide86

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

82Slide87

Affidavit of Support

Form 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 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)

83Slide88

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 RefugeesAsyleesDV lottery winners

TPS

VAWA applicant

84Slide89

Affidavit of Support

The 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

85Slide90

Food Stamps

All qualified noncitizens are eligible for food stamps after being in qualified permanent resident status for five yearsException to 5 year requirementDisabled legal immigrant

Legal immigrants under 18Refugees, asylees, withholding of removalUS Veterans and active duty members, their spouses, surviving spouses and unmarried dependent children

Certain select others

86Slide91

Medical Assistance

Available to qualified immigrants whoAre low incomePermanently and legally in the USMeet categorical

eligibility requirements by:Being pregnantHaving minor children or living in an MFIB householdBeing 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

87Slide92

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

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 communitiesState and local jurisdictions submit arrestee’s fingerprints to criminal and immigration databasesICE is notified about immigration status of those fingerprintedDetainers

Criminal Alien Program88Slide93

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

93Slide94

94Slide95

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 RegulationsImmigration 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 AppealsOCAHO: Office of the Chief Administrative Hearing OfficerAAO: Administrative Appeals Office (was AAU: Administrative Appeals Unit)Foreign Affairs Manual

Practice AdvisoriesLocal Practices - Liaison Meeting Minutes, Personal Relationships with Adjudicators 95Slide96

Daily Interactions

CourtsImmigration CourtFederal Court

State CourtAdministrative CourtDepartmentsDepartment 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

96Slide97

Consequences

Advising someone to file for a benefit they shouldn’ti.e. Naturalization when client has a criminal recordNot knowing all the paths/options available – time and money

Visa FraudPreconceived IntentReason 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!!

97Slide98

CLOSING

CONTACT INFORMATION:Sue Swanson: Swanson Law Office

(PH) 701-787-8802Anna

Marie Stenson: Immigration Law Professionals

(

PH) 701-298-7720

98