In a case decided today, Sessions v. Dimaya, 584 U.S.____ (2018), 18 USC §16(b) has been struck down by the U.S. Supreme Court as void for vagueness.  Specifically, the provision stated that “a ‘crime of violence’ [is] ‘any offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’”  The Court likened the situation to a previous case, Johnson v. United States, 576 U.S. 133 (2015), in which the Armed Career Criminal Act’s residuary clause was struck down because it “created ‘grave uncertainty about how to estimate the risk posed by a crime.”  Specifically, it required the judge to make an assessment based upon a possible situation “but provided no guidance” to what a crime’s “ordinary case was” as well as providing that same imprecise reasoning with no guidance to making a risk assessment.  The Court also dismissed the notion that the a less demanding vagueness doctrine should apply, quoting its own precedent in Jordan v. De George, 341 U.S. 223 (1951), “’’in view of the grave nature of deportation,’ the most exacting vagueness standard must apply.”  The Court notes that removal proceedings have become increasingly connected to criminal matters as convictions have become more significant grounds in placement into removal proceedings and qualifying for relief.  This changes the viewpoint of aggravated felonies in that there must be clarity about what conduct leads to a finding of an aggravated felony and not open-ended speculation.  Subsequent litigation on these issues will be of interest as this new standard is applied and will change the analysis and argument that must be brought to relevant cases.

Information on 3 Year Work Permit Recall

We have received questions about the recall of some 3 year work permits issued for Deferred Action for Childhood Arrivals ("DACA") recipients.  Upon reviewing the information provided by United States Citizenship and Immigration Services ("USCIS"), here is what questions we can answer for you.

1. Do all 3 year work permits have to be returned?
a. No.  The recall does not apply to persons whose work permits were issued and mailed before February 16, 2015.  It only applies to work permits issued or mailed following the injunction placed on the changes to the deferred action program.
2. What do I need to do if I received a work permit after February 16, 2015?
a. USCIS will be reissuing work permits with the 2 year authorization period.  Included with the new 2 year work permits will be instructions for returning the 3 year work permits.
3. What will I need to return?
a. You will need to return both the 3 year work permit and any related approval notices.
We will update information as it is released by USCIS.  If you have additional questions during this time, please do not hesitate to contact one of our offices.

Hemos recibido preguntas sobre la retirada de algunos permisos de trabajo de 3 años emitidos para la Acción Diferida para los Llegados en la Infancia (“DACA”).  Al revisar la información proporcionada por los Estados Unidos Servicio de Ciudadanía e Inmigración (“USCIS”), esto es lo que podemos responder a preguntas que usted puede tener:
1. ¿Todos los permisos de trabajo 3 años tienen que ser devueltos?
a. No. El retiro no se aplica a las personas que se expidieron permisos de trabajo y fueron enviado por correo antes del 16 de febrero de 2015. Sólo se aplica a los permisos de trabajo emitidos o enviados por correo después de la orden colocada sobre los cambios en el programa de acción diferida.
2. ¿Qué tengo que hacer si he recibido un permiso de trabajo después del 16 de febrero 2015?
a. USCIS va a volver a emitir permisos de trabajo con el período de la autorización de 2 años. Incluido con los nuevos permisos de trabajo de 2 años, va a ver instrucciones para como devolver los permisos de trabajo de 3 años.
3. ¿Qué necesito devolver?
a. Usted tendrá que devolver el permiso de trabajo de 3 años y cualquier aviso de aprobación relacionada a la petición.
Vamos a actualizar la información en cuanto se publique por el USCIS. Si tiene preguntas adicionales durante este tiempo, por favor no dude en ponerse en contacto con una de nuestras oficinas.

New Deferred Action for Childhood Arrivals Filing Date

A date has now been released for filings based upon the new Deferred Action for Childhood Arrivals (DACA) requirements.  The date for those filings to be effective will be February 18, 2015.

What does this mean from a practical standpoint?  If you think you may be eligible under the new guidelines, now is the time to contact an attorney to evaluate your case and assist you in preparing your application.

Here are the guidelines for the expanded DACA from the USCIS website:

Deferred Action for Childhood Arrivals (DACA) program
Who	Individuals with no lawful immigration status who are seeking initial or renewal DACA.
What	Extends the deferred action period and employment authorization to three years from two years, and allows you to be considered for DACA if you: Entered the United States before the age of 16; Have lived in the United States continuously since at least January 1, 2010, rather than the prior requirement of June 15, 2007; Are of any age (removes the requirement to have been born prior to June 15, 1981); and Meet all the other DACA guidelines.
When	February 18, 2015 (USCIS will not accept requests for expanded DACA before that date.)

OJ Simpson Trial - 20 Years Later - Impact On Criminal Law Practices

Perhaps one of the most widely publicized trials in recent history and certainly one which has shaped criminal justice practices and teachings.  I still remember my law professors covering this case and the discussion of trial practice and how it made such an impact on this case.

Perhaps the most defining item to note from this case is that the outcome of the case ultimately comes down to which side presents the most compelling story.  It is the government's burden to prove guilt beyond a reasonable doubt.  Here, there was enough reasonable doubt created for an acquittal.  This case also highlights that cases don't necessarily move quickly.  The trial itself in this case took over 9 months.  Sometimes the best strategy for a case is to be patient and let things unfold.

http://www.cnn.com/2015/01/13/us/oj-simpson-trial/index.html

What Does the President's Announcement on Immigration Reform 2014 Mean for You?

President Obama announced this evening that he will be putting forth executive action for immigration matters.  This action shall not grant permanent status, however, it offers temporary relief from removal from the United States for certain individuals and allow them an opportunity to work legally in the United States, “get right with the law,” and pay their taxes.

My comments below are not legal advice and should be taken to create an attorney-client relationship.  These comments are my opinion based upon the information that I have at this time and cannot be applied to each case individually.  The purpose of this post is to be informative for you.

Based upon the President’s statements, he seeks to give protection to individuals that are parents of United States Citizens or Lawful Permanent Resident children that have been in the United States for a period of five (5) years, I anticipate that this program will very closely model the program offered on June 15, 2012, which is referred to as DACA – Deferred Action for Childhood Arrivals.  However, this program will likely require the following:

• ·        Proof of physical presence in the United States for the previous five (5) years with the beginning date currently unknown;
• ·                 Proof of Good Moral Character including any court dispositions for any citations, arrests, or charges; and
• ·       Proof that the individual has children that are either United States Citizens or Lawful Permanent Residents in the United States.  This may require showing marriage licenses, birth certificates, and proof of status documents.

It is likely that individuals convicted of certain crimes will be disqualified from this program.  Individuals having the following conviction criteria will likely not qualify:

• ·        Aggravated felonies;
• ·        Gang affiliations;
• ·        Three (3) or more misdemeanors;
• ·        Convictions for significant misdemeanors such as
• o   Domestic violence;
• o   Sexual abuse or exploitation;
• o   Burglary;
• o   Unlawful possession or use of firearm;
• o   Drug distribution or trafficking;
• o   DUI; and
• o   One with time in custody exceeding 90 days;
• ·       Those apprehended for violating the immigration laws and cannot establish that they have been continuously present in the United States since 1/1/2014;
• ·        Those that have abuse visa programs; and
• ·        Those with a final order of removal issued on or after 1/1/2014

For the disqualifying factors there may be ways to overcome those issues, depending upon many factors which will need to be evaluated on a case by case basis.

It is important that if you think that this executive action will apply to you that you schedule an appointment with an attorney and get started gathering your documentation.  Here at my office we are prepared to begin the process immediately, please contact our office to schedule a free consultation.

Update!  The executive actions by President Obama are being reported to include the following details:

For parents of U.S. Citizens and Legal Permanent Residents:

-        Have been in the United States for more than 5 years

-        Relief from removal for 3 years

-        Work permits will be granted to qualifying persons

DACA will be expanded:

-        Eligibility will be expanded to those who arrived as minors before 2010 instead of the current date of 2007

-        The requirement that applicants be under 31 years of age will be lifted

It is unclear when applications can be submitted; although the process of preparing the applications for filing with the government need to be started now.

There will be new deportation priorities, which have been highlighted in the blog post above and which will be discussed in more detail in a later blog post.  The new deportation priorities will make those who have been present in the U.S. for longer than 10 years a low priority absent other factors, such as criminal history.   

Immigration Reform 2014

Many reports are coming out that Immigration Reform is imminent.  What does that mean for you? Right now, there are few specifics, so it could mean a lot of things to different people.  Here's what we can tell you, current and potential clients, right now:

First - immigration reform in whatever shape or fashion will likely include certain eligibility standards.  Past practice tell us that the exact standards will be released by the Department of Homeland Security and United States Citizenship and Immigration Services, but, for now, we can look to the DACA requirements to say that there will probably be an entry date cut-off, good moral character requirements, and a filing fee.

Second - whatever reform occurs will likely only be available to a certain number of people and then everyone else will go on a "waiting list" so to speak.  Even without that, there have been rumors that there may be discounts available for a certain number of naturalization applicants under a "new" process that is potentially going to be released.  Practically, that means that you need to be preparing for immigration reform now.  Having your immigration history evaluated, being advised on documents to have in your immigration file, and having an attorney on retainer to call you the moment reform and the eligibility requirements are announced are all important steps.

Third - have you ever had your immigration history evaluated?  When DACA was first made available, we found that many people who came in were actually eligible for more permanent forms of immigration status and were simply unaware of their eligibility.  Don't wait just because you think there's nothing that can be done because you very well may have a path to legal status now.

We will be monitoring updates on Immigration Reform 2014 closely as well as making staff available for initial consultations.  All initial consultations are free, so why wait?  Schedule an appointment today so that we can begin the process of helping you gain legal immigration status.

Unaccompanied Minors and Due Process

I recently received a comment on my Facebook page relating to a news article that I shared which discussed the possibility of legal representation being made more readily available for unaccompanied minors.  To fully deal with all of the issues that our Immigration system faces would require numerous blog posts, so I am going to attempt to keep the issues narrowed down to those most relevant to the Facebook comment that I received.

Our Constitution offers certain protections for all person in the United States.  The presence of these protections arise from the principles that our country was founded upon; namely that all men are created equal.  More specifically, the 5th and 14th Amendments provide for due process of law.  

“Immigration proceedings, although not subject to the full range of constitutional protections, must conform to the Fifth Amendment’s requirement of due process.”[1]  As the U.S. Supreme Court outlined in Galvan v. Press, 347 U.S. 522, 531 (1954), policies concerning immigration are uniquely concerned with the political conduct of the government, but the executive branch of the government must respect the procedural safeguards of due process when enforcing immigration policies.  In INS v. Chadha, 462 U.S. 919, 940-41 (1983), the U.S. Supreme Court went further in stating that the power of Congress over immigration matters is not open to question, but how this power is implemented must comport with the Constitution as its implementation cannot offend some other constitutional restriction. 

Due process means that there is a right to a fair process and to be heard.  In Immigration proceedings, this means that immigrants are given the right to a fair hearing and to present their case for relief from removal.  Calling for due process does not mean that we are giving away everything and that we are picking and choosing between the laws.

When I hear people talk like the comment I received, it makes me disappointed.  Disappointed in our media system and our politicians who are so eager to score political points or to make it big that they report things as fact that are not true or are not the whole story.  And, because these are the things that are reported, people who are not in a position to know otherwise believe these things as gospel.

The reality is that our immigration system is broken.  Immigration reform is desperately needed and, when you talk to most who are familiar with the issues in the Immigration system, the Immigration reform that is being called for is not amnesty; rather it is something far from it that would require years and the payment of significant fines to navigate.  Most of the talking heads in the political world refer to any Immigration reform that offers any path to legalization as amnesty.  However, amnesty is a true forgiveness without any punishment, which is what was done under the Reagan administration in the 1980s.  The Senate has already passed a bill, which the House refuses to bring to a vote, which would call for approximately $10,000 worth of fines per person; a 10 year probationary period; plus other requirements such as paying back taxes, ineligibility for certain tax benefits, learning and passing an English proficiency exam (which is already required for citizenship), passage of a civics exam (which is also already required), as well as a requirement to refrain from breaking any other laws (including most minor traffic offenses) of this country.  All to only become Lawful Permanent Residents and then not be eligible to apply for citizenship, with all of the hurdles of that application, for at least 5 years.  In essence, this is a much harsher sentence than many drug offenders, murders, child molesters, or other criminals face in our criminal system; yet it is being referred to as amnesty.  Let's add that the bill proposed would include a cut-off date requiring persons to prove physical presence in the United States for at least 5 years prior to that date, so it is not a blanket invitation for continued migration.  The main reason this is opposed is not out of some moral obligation or a sense of saving our nation money (because it would actually help lower our national deficit and debt, which will require a separate blog post to explain); it is because 80% of those estimated 7 million voters would vote for the Democratic party once eligible to vote (which would be at least 15 years).

Today, enforcement continues to be stepped up, but provisions to allow the Immigration courts to function keep being stalled.  Immigration proceedings truly are death penalty consequences in a traffic court setting.  Our Immigration judges are forced to decide which immigrants qualify for the limited forms of relief available while denying many more heartbreaking cases; cases where they know that their decision carries the equivalent of a death sentence to the person in front of them.  The denial rate for asylum cases alone is about 75%.  The numbers for the other limited forms of relief are not much better.  Practically, for the current influx of children crossing the border, asylum is the primary form of relief for which they would even possibly qualify for; staggering numbers when you consider the denial rate.

When appearing before the Immigration courts, immigrants are afforded a right to be represented by an attorney; yet it is a limited right because they must hire and pay for their own attorney.  This has always been a difficult task, but it has become even more difficult in recent years with nonprofits and schools that provide pro bono legal services losing funding.  Having an attorney is vital, though, in a system that many attorneys find to be confusing at best.  From a practical standpoint, having attorneys allows the Immigration courts to function more efficiently because attorneys can guide the immigrants to the forms of relief from removal for which they are eligible, advise those who wish to return to their home country on how best to do so, and ensure that rights are protected.

Moving back to the unaccompanied minors.  When news reports are shown, oftentimes what's shown are teenagers who come across.  While still minors and in need of assistance to navigate the system, it is easier for people who are not dealing with the system day to day to dismiss the need for added protection when it is teenagers.  However, what many do not think about are the many young kids, 2, 3, 4, and 5 years old, just to name a few ages, who come across unaccompanied.  These children need assistance to navigate the system.  Yes, there may be some who do not qualify for immigration relief and the best that an attorney can do is to ensure that safeguards are in place when they leave rather than them simply being dumped a few miles across the border.  But, for others, they may be victims of crime at the hands of U.S. Citizens, have be kidnapped and trafficked across the border by the cartels, or be fleeing from persecution.  Without due process, these kids will not receive the protection they deserve; the protection that our laws call for.  How can we call the process fair or claim that they have been afforded the right to be heard with no protections?

Let us add that certain protections are necessary.  Some of these children being detained may very well be United States Citizens.  The comment on my Facebook page included a statement that we should be sending these children back their parents.  Yet, with these children, they may not even know who or where their parents are, may be orphans, or may be fleeing abusive situations.  They may also be runaways from within the U.S. who happened to be apprehended and sent to Immigration and Customs Enforcement solely because of their ethnicity and/or proximity to the border.  There have been numerous reports from reputable sources recounting cases where children or mentally handicapped individuals were deported from the United States when they were second or third generation U.S. Citizens with their families living in the United States and unable to locate them for months and may only find them after reporting them missing and an FBI photo search locating them if a photo was taken for there to be a photo match.  Perhaps the myth needs to be dispelled that ICE and Border Patrol officers are friendly at the border, within the U.S., or even have the time or resources to create an environment in which children would recount their stories.  In fact, ICE agents are on a quota for the number of individuals they must deport every week, month, and year.  It is simply impossible for ICE and Border Patrol officers to be able to make the determination for every person entering and due process be afforded without going through the Immigration courts.  And, for children, it is impossible for this determination to be made without representation because they are simply not capable, due to their legal disability of being minors and lacking capacity, to be able to answer the necessary questions or to know the information necessary to navigate the Immigration system.

In answer to the Facebook comment that we do not allow children to get away with stealing and murdering just because they are children.  No, our judicial system provides punishments but it also provides for protections to ensure that those children's due process rights are upheld.

As I understand it, what the Obama administration is requesting is not as much appointing and paying private attorneys, although that would certainly go great lengths in solving many of the issues.  Most of the funding would go to nonprofit organizations who would oversee volunteers who take on the cases pro bono.  The money would fund technology and basic supplies needed to do the casework and would possibly offer some student loan forgiveness to encourage more people to volunteer.  The problem with our judicial system as a whole, not just Immigration, is that the cost of getting a law degree and maintaining a law license has increased 20 to 30 fold in the past 20 years.  As such, attorneys have been required to raise their fees and take on fewer pro bono or reduced rate cases in order to cover their expenses.  Also, attorneys are limited in their ability to volunteer hours to oversee law students or other persons who desire to work through a nonprofit that offers representation.  This particularly hits your disadvantaged groups, such as the lower end of the socio-economic scale, handicapped, minors, etc... who may not have any other recourse for seeking representation, eliminating from our country the long-held motto that there is liberty and justice for all and is closing off the courts to these disadvantaged groups.  It is a proven fact that those with money and means have a much higher success rate in all courts, which is driving our nation to be a nation of, by, and for the wealthy and is contrary to everything that our founders set forth as our American way of life.  

I ask those that feel they must weigh in on the Immigration issue to stop solely listening to the politicians and news media who provide limited information.  I also ask our politicians to begin listening to those who are most familiar with the Immigration system to design Immigration reform that actually addresses the problems rather than only advancing political agendas.  Meaningful reform can only happen when real, accurate information is provided and when an attitude that there should be no rights is departed from.  Our founders fought for the principle that all men are created equal.  Almost every major conflict our nation has ever been a part of has been to protect the rights of people around the world.  The fight for civil rights came about because of the misguided perception that certain persons were not equal and therefore were not entitled to Constitutional rights.  Because of the courage of civil rights leaders, due process rights, among other rights, where finally afforded in the manner our Founders intended, equal justice for all.  We say that we have emerged from those days, yet here we are once again.  It is a slippery slope, and one that we should not enter lightly because the consequences are severe; not only to those too whom we deny rights but to ourselves as well.

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[1] Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005); see also Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009) (order); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999) (“The Fifth Amendment guarantees due process in deportation proceedings.”).