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.”).

Tennessee State Senate Bill Regarding Pregnancy Drug Abuse

The Tennessee State Senate now holds a bill that passed the State House that would allow Tennessee authorities to arrest women for damage done to their infants as a result of their drug abuse.  The passage of this bill would reinstate the ability of state authorities to punish pregnant drug abusers, which was taken away two years ago when such criminal penalties were removed from the books.

This should create concern for Tennesseans.  Such action may prevent many people that are drug abusers from seeking professional help for their addictions once they have learned of their pregnancy, thereby putting the mother and the child at greater risk.  Mothers coming off of the addictions without the proper help could become suicidal or go into severe withdrawals, which would put both them and their child at risk, or they may be unsuccessful in their attempts.  Additionally, such legislation may prevent mothers from seeking prenatal help for their children.

Regardless, infants addicted to drugs when they are born pose a major problem that must be addressed.  Many had hoped that a bill labeled as the Safe Harbor Act passed last year would address this issue as it incentivized mothers to get treatment and kick their addiction.  Apparently, many state legislatures are giving up hope on that Act, which many assert has not had enough time to have an impact.

It will be interesting to see how this law can be enacted.  The big questions that remain to be answered are: when would a woman become liable for the damage to a fetus?  Is it with drug abuse after knowledge of pregnancy or after conception?  How does this apply to alcohol abuse?

Stay tuned as we watch to see what actions the Tennessee State Senate will take.

UPDATE - The Tennessee State Senate has now passed this bill and it is on way to the governor.

Immigration Detainers and Governmental Liability When A Person Is Wrongly Held - Galarza v. Szalczyk

In an opinion filed on March 4, 2014, (Galarza v. Szalczyk, Case No. 12-3991) the 3^rd Circuit potentially dealt Immigration and Customs Enforcement (“ICE”) a major blow, subjecting local law enforcement to new litigation and liability, and offered those held on ICE detainers an avenue for relief.

In this precedential decision, the 3^rd Circuit ruled that a plain language reading of the federal law made the ICE Detainer a permissive basis for local law enforcement to extend the detention of individuals in local custody, but stated that the extended detention was not a requirement.  The Court reasoned that ICE could not mandate continued detention through the detainer as doing so would violate the anti-commandeering principle found in the Tenth Amendment to the U.S. Constitution.  As a consequence, the Court removed liability for wrongful detention from ICE and placed it firmly on local law enforcement officials.  To understand the importance of this ruling you must understand the ICE detainer system.

When ICE learns that an individual is in the custody of local law enforcement officials, it has the authority to issue a detainer to the local sheriff’s department requesting that the sheriff’s office notify them when the person has satisfied their terms of imprisonment and retain that individual in custody for 48 hours, allowing ICE an opportunity to take custody of that individual.  This must be broken down a little more in depth for greater understanding.  A person satisfies their terms of imprisonment when they have either completed the sentence of imprisonment imposed by a court or tribunal or posted a bond allowing them to be released from criminal custody. Additionally, it is important to know that the 48 hour period does not include weekends or holidays, and begins running upon the completion of the criminal custody.

With that brief explanation of the ICE detainer, let us now explore what Galarza tells us and the potential impact that it might have.  Currently, many local law enforcement officials are under a belief that the detainer is a federal mandate and will adhere to the detainer even when ICE has not done the same.  Galarza, at least within the 3^rd Circuit, for now, clarifies that this is not the case.  In Galarza, ICE had local law enforcement (Lehigh County) detain an individual following his completion of a sentence on a conviction for a drug crime.  This detention continued for three days beyond the completion of his sentence, and, as it turned out, the individual was a United States Citizen.  Mr. Galarza sued Lehigh County and the county attempted to argue that they were issued the detainer which was mandatory and should exempt them from suit.  The 3^rd Circuit ruling allowed the lawsuit against Lehigh to proceed.

The consequences of this decision are multi-faceted.  First, individuals wrongfully detained on an ICE detainer may have the ability to sue the local law enforcement entities detaining them. This is good news for many as they have been caught in that limbo world of attempting to find out who is responsible for the violation of their constitutional rights. 

As a result of their potential liability, many local law enforcement entities should think long and hard about whether or not they want to comply with an ICE detainer.  In fact, local entities lack the ability in many cases to determine the immigration status of an individual and they are at the mercy of ICE to get it right and do so very quickly.  As a result it is likely that litigation adverse local law enforcement entities may start refusing to cooperate with ICE detainers.  This could be a boon for the immigrant community allowing them to avoid ICE detention.  However, it will likely become much more difficult for ICE to detain potentially dangerous criminals, jeopardizing the safety of our communities.  Regardless, one impact that is will be seen is that ICE will become much more taxed and enforcement initiatives will be much more difficult to attain.           

If you or a loved one are detained by local law enforcement, it is still in your best interest to consult with an attorney trained in immigration law prior to paying a criminal bond.  This ensures that your (or your loved one’s) interests and rights are protected.  

U.S. Supreme Court Ruling on the Right to Possess a Firearm and Misdemeanor Domestic Violence Convictions - United States v. Castleman

Yesterday the United States Supreme Court in United States v. Castleman, 572 U.S. ____ (2014) confirmed what many people feared:  All misdemeanor domestic violence convictions, even in states where no violence is required for a conviction, bar individuals from possessing a firearm.

At issue in Castleman is 18 U. S. C. §922(g)(9), which forbids the possession of firearms by any­one convicted of a “misdemeanor crime of domestic violence.”  Castleman challenged that his conviction did not qualify under this law because Tennessee law did not require an act of violence.  The Court ruled that any conviction that required the use of force would qualify as a misdemeanor domestic violence conviction under 18 U. S. C. §922(g)(9).  The Court's opinion can be found here: United States v. Castleman.

The practical take-away from this decision is that persons convicted of crimes must be proactive to learn exactly what they are or are not allowed to do or possess.  With this specific holding, arguments can easily be made for either side; however, the Supreme Court has spoken, making this holding binding across the land. 

The consequences of even innocent ignorance can be seen with the recent issue here in Grundy County where a man’s firearms were taken from his home because his son, who was on probation and not allowed to be in possession of a firearm, was living in his home.  There were other issues at play in that situation that are not relevant to this blog post, but the lesson to be learned remains.  If in doubt about your rights and responsibilities upon receiving a conviction (or those of family members), consult with an attorney who can explain such.  In all reality, the consequences of a conviction, especially when the result of a plea bargain, should be fully explained to you before the conviction occurs.

Be on the lookout soon for a blog post explaining the far-reaching consequences of convictions and plea bargains on immigration proceedings and why it is so important to be advised of these consequences.  Although post-conviction relief may be available in some situation, it is much better to avoid a situation where this relief is needed. 

Facing criminal proceedings and need legal representation?  Already have a conviction and want to see what its impact will be on your rights and responsibilities?  Contact The Law Office of Russell S. Mainord for a consultation today.  

Why I Offer Free Consultations

Why do I offer free consultations?

Many law offices charge consultation fees for individuals seeking to have their cases evaluated.  The idea is that the law firm is spending time and resources to evaluate your case and that they should be compensated for that time.  However, I do not share this belief.

An individual should never hire an attorney unless they are confident in that person or firm to meet their needs.  Many times, people pay a consultation fee and then hire the attorney because they already have an investment in the services that the attorney is providing; settling for that attorney regardless of their personal feelings for them.  Hiring an attorney, in most cases, is like taking in a family member and you should be very comfortable with that person before you sign a retaining agreement.  Paying a consultation fee, in my opinion, clouds that relationship. 

Furthermore, an attorney should attempt to answer your questions as honestly and quickly as possible.  To meet these needs, you must meet the attorney, discuss your case openly and honestly while the attorney gives honest feedback.  If a consultation fee has been paid, the attorney may feel a compulsion to tell you what you want to hear, take a designated time period to answer your question, or many times leave potential clients with a feeling that they have been taken advantage of.  There have been many times that I have sat across the table from a potential client and informed them that there is nothing that can be done to assist them or I have been able to resolve their situation within a couple of minutes without any costs to myself or the client.  Charging a fee would have left the potential client feeling like they were ripped off and, frankly, I would agree with them.

Legal services should be open and available to all people regardless of financial status.  Charging a consultation fee closes off access to legal services for many people.

When you come to my office for a consultation, you will never pay a consultation fee.  You will come in and sit down with either myself or a member of my staff and have an opportunity to explain your situation and what you are seeking.  I will then evaluate your case, explain the options as I see them, and outline how I can help you meet your needs. I will do my very best to make sure that you do not feel pressured to retain my services unless you feel ready to do so.

Call today to schedule your consultation. 

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