New York Immigration Lawyers Blog

childrenThe immigration debate of whether Congress will act on comprehensive immigration reform or whether President Obama will take executive action to change immigration law has taken a dramatic turn with the sudden surge of undocumented children crossing the southern border into the United States.

Now, a President who once wished to take action to provide a path to legalization to the millions of undocumented immigrants in the United States, has now promised to quickly deport the people who are crossing our borders in great numbers from Central America.

Before this surge, illegal border crossings had actually been dropping. The lower numbers were the result of stricter enforcement and more border patrol agents along the border. An interesting point regarding the children crossing the border is that they are taking advantage of an immigration law that Congress passed in 2008, when George Bush was President. The law provides protection for children to ensure that they are not victims of trafficking. These children are permitted to have their case heard before an Immigration Judge, many of them asking for political asylum.

The sudden surge in children and families from countries like Guatemala, El Salvador, and Honduras is due, largely in part, to poverty, gang violence, and parents’ desire to send their children to a safe haven. Children are being recruited by gangs, killed, and raped and worse in these Central American countries.

Opponents of President Obama, however, blame him for this surge in border crossings based on his executive action that created legal status for some early childhood arrivals in the form of deferred action known as DACA. What these opponents fail to recognize or admit is that the children currently crossing the border do not qualify for DACA because one of the requirements are that they were present in the United States in 2007 before they were 16 years old.

President Obama has asked Congress to authorize 3.7 billion in spending to help with this immigration crisis. Part of the money would be used to help deport people back to their countries. There is also a call to change the 2008 law to deal with minors from these Central American countries like those from Mexico who are sent back to their country much quicker. Part of the change called for is to add more immigration judges and to allow more applications for refugee status to be processed in the Central American countries. As it stands now, the Department of Homeland Security is processing these recent arrivals ahead of an otherwise overwhelmed immigration court system so that it may show others thinking of making the dangerous border crossing that their efforts will be futile.

Of course, any change in the 2008 law would have to result from an agreement of members of Congress which is unlikely since they have not to date shown that they can come to consensus when it comes to immigration.

imagesThe city council of the state of New York has decided to vote this month on two plans which would essentially aid immigrants. The first plan includes providing all New York residents with a municipal identification card, regardless of their legal status. This plan is in great debate since this identification card would technically allow undocumented immigrants to use the cards as proof of residence to open bank accounts, sign leases, as well as other perks that come to those who are legal residents.

Supporters of the bill are determined to make sure the card would be identifiable by New York police officials in order to avoid a problem if someone is stopped by law enforcement. Another concern is the increased risk for potential documentation fraud. The council plans to find a viable way to alleviate these concerns and implement the program in 2015.

The city council will also be discussing a separate plan, which includes financial assistance for immigrants who are in need of legal representation by providing them with an immigration attorney. If approved, this plan would provide “pro bono” legal assistance to all undocumented immigrants residing in New York, aiding them in their fight against detainment, deportation or removal proceedings.

It has been recorded that these public defenders would be representing approximately 1,380 detained, and/or poor New Yorkers who are facing deportation. This would make New York the first and only area in the United States to have a fully covered public defender system in order to specifically assist poor immigrants in removal proceedings.

If both of these plans are approved, New York will continue to be the most accommodating state in the U.S. for immigrants. City Councilman Carlos Menchaca, has stated that he hopes these measures will inspire other cities and states to help their residents. As a result, Los Angeles, New Haven, and San Francisco are also taking measures to assist immigrants within their vicinities as well.

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immigration-detention-transfersAlthough President Obama has made it clear that he will use his executive powers to fashion some sort of immigration reform should Congress refuse to put a Bill to a vote, the fact is that deportations are at the highest point in years, much higher than before he took office for his first term.  Defending one’s self in what is called, Removal Proceedings, can be confusing at best.  There are terms that amount to a legal maze complicated by the fact that everything is in English.  Immigrants often do not understand that they have some legal rights to relief from removal in the forms of various waivers, adjustment of status, political asylum, cancellation of removal to mention a few.  Each of these forms of relief have distinct requirements to qualify to apply and further requirements to prove that the immigrant deserves a favorable act of discretion.  Complicating matters more is the various personalities and views of the Immigration Judges that hear cases in removal proceedings.

Last month, lawmakers in New York approved a 4.9 million dollar appropriation to fund a Public Defender system for immigrants facing deportation.  Many of these immigrants are poor and detained by Immigration and Customs Enforcement.  It is called the New York Family Immigrant Project and is a pilot program being run by the Vera Institute of Justice.  The immigrants who qualify cannot afford to hire an attorney to represent them and, as a result, they are representing themselves against highly trained government lawyers.  These immigrants need attorneys to not only defend against removal but, in cases where removal is certain, to expedite the process to avoid the immigrant being detained for long periods of time.

The Vera Institute hopes to expand the Public Defender program to other cities.

As more illegal immigrant children continue to cross the U.S. border into Texas, the U.S. government has begun to send children back to their home countries. In fact, it has been reported that in 2011 approximately 13,525 children crossed the border, but then in 2012 that number rose to nearly 25,000. Since October of last year the number of unaccompanied minors illegally crossing the U.S. border has risen to 47,000.

The Foreign Ministry had recorded that from January to April of this year, the Mexican Consular assisted approximately 6,233 unaccompanied minors back to Mexico in a process referred to as repatriation. Many of these children had in fact been detained while crossing the U.S. border. However 77% of them had been captured at least once prior to their repatriation this year, and 21% had been recorded in attempting to cross the border up to 5 times.

Marc Rosenblum, Migration Policy Institute Specialist, believes this increase could be the result of the Trafficking Victims Protection Reauthorization Act passed in 2008 by former President, George W Bush.  This Act provides protection for unaccompanied minors that are not from Mexico or Canada.  According to research, Mexican children come to the United States in search for protection against poverty, violence, and drug cartels and in some cases to be reunited with family. However, throughout the first few months of 2014 the Mexican government has reported that over 6,000 Mexican children were returned to Mexico.

The Obama administration has requested 2.3 million USD from Congress in order to help fund the Health and Human Services organization that caters to the needs of these illegal immigrant minors. However, the government claims that the lack of preparedness is due to an unexpected surpass of their estimations of children entering the country illegally. Either way, the U.S. government does not appear to have all the resources necessary to care for this large intake of children. As a result, the President Barack Obama, has not only arranged for facilities in Texas, Arizona, and Miami, but also in Oklahoma, to receive these children and help with the process of either giving them U.S. residency or returning them home.

imagesCAC60DRDAfter months of convening, the Supreme Court has finally come to a decision regarding the extensive debate on “aged-out” immigrant children. Lawmakers questioned whether the current immigration law could, in fact, be altered to allow immigrant children who entered the United States with their parents to keep their place in the system if they turned 21 prior to receiving residential status.

The Supreme Court was divided on the subject, throughout the trial. However, in early June, the Court agreed on one principal factor and concluded that the children of immigrant parents will not be given priority even if they turn 21 before the slow immigration system grants them a permanent resident status. This decision is presumed to affect a countless number of young adults, including those children who came with their parents to New York during the years 1990-2000, so their parents could teach.

During the Supreme Courts convening, the law signed by George W Bush in 2002, which was introduced after the Scialabba vs. Cuellar de Osori et al case, was challenged. It appeared as though the law protected ‘aged-out’ children by allowing them to hold their status, or at least their original priority date, ensuring that the process of applying for a new status would not pull the children completely out of the system, or make them start from the beginning. The Supreme Court, however, found that after analysis, parts of the law were unclear.

In conclusion, despite the law introduced in 2002, these children will not be given priority, despite the fact that essentially they are American, culturally and socially. This means that these children will need to follow the immigration law as is in order to receive their residential status. There will be no exceptions, regardless of how slow or backed up the immigration system is, or will be in the future.

immigration-detention-transfersIn 2013, the Department of Homeland Security deported 368,644 immigrants from the United States.  That comes to more than 1,000 people daily.  President Obama has instructed Immigration and Customs Enforcement to only focus on “criminal aliens”.  The problem is that this policy, when filtered down to the end-user, loses its effectiveness.

In other words, people with minor infractions or only one misdemeanor are being detained and deported.  In New York city, immigrants have been turned over to the immigration authorities for minor offenses like sleeping in the subway or public intoxication.  Clearly, not the result the Obama administration intended.

To make matters worse, these immigrants are housed in private detention facilities who make their profits on the amount of people in detention.  In addition, public jails are being used for the detention of immigrants as well.  The conditions in these facilities are deplorable.  Those detainees with medical conditions requiring medication are ignored or, in the best case, are made to wait in pill lines for more than three hours.

In New York City, immigration officials routinely enter Riker’s Island and other detention facilities to look for immigrants and place detainers on them, flagging them for removal proceedings.

These people with minor offenses who are being detained often have families who depend on them.  Their custody is devastating to their families and businesses.

President Obama has made it clear that he is willing to change the policies regarding deportation of the undocumented immigrants in the United States who are not dangerous felons.  He has decided to delay the implementation of this policy to give Congress a chance to pass comprehensive immigration reform.

As over 1,000 people a day are being deported, there is no time to waste and the President must act if Congress will not.

 

imagesAccording to current Federal Law, when applying for visas or a change of status, immigrants are permitted to name their children as dependents if they are under the age of 21. However if these children turn 21 before their parents have received permanent residency status, little options are left, as they are then “aged-out” of the process as a dependent child. In order to pursuit a change of status they must start from the beginning. Because they have lost their place in the immigration system, they may be placed in removal proceedings, or they can either remain in the United States illegally, or return to their home country, which many have not lived in for years.

In 1990, officials of the New York City School Districts, searched the world for teachers, and pledged to provide a pathway toward U.S. citizenship. Between 2002 and 2007, approximately 6,000-8,000 immigrant teachers came to the U.S., and many brought their families, an estimated 300 children. However, due to a slow, inefficient system, as well as some misleading visa information, many of the immigrants did not receive permanent residency in time for their children to qualify for their permanent residency. At the age of 21, their young adult children, lost their spot in the system.

After months of convening, the U.S. Supreme Court is expected to rule in a case that will determine whether or not “aged-out” immigrants should keep their place in the immigration system even though they are now 21 years old. Immigration experts have deemed the current federal law unjust arguing that many of these young adults have been partially or wholly raised in the U.S. and are unfamiliar with the culture and lifestyles of their home country. They believe it is cruel to force them to leave America when they are, in a social and cultural context, an American.

In addition, some claim that when children “age-out” of the immigration system, it is a direct violation of the federal law signed by President George W. Bush in 2002, which was meant to freeze a child’s immigration status and allow them to keep their place should they turn 21 before their parents receive green cards. In response, the government has argued that the law was ambiguous, and that it actually referred to freezing the priority date of a 21-year-old immigrant, which is the date when the parents of the child had filed their petitions. This of course does not necessarily protect the immigrant, but instead prevents them from obtaining a new priority date. This could further delay the initial review and decision of their status.

Immigration advocates have pointed out that there is no specific category for “aged-out” beneficiaries. The immigrants themselves are outraged at the fact that they are categorized as illegal immigrants, even though they entered the U.S. with legitimate documents at the mercy of their parents. Today, these young adult immigrants have their fingers crossed as they wait to hear the Supreme Courts final decision, in hopes that they their life will no longer be on hold.

h1bIn May of this year, the Department of Homeland Security (DHS), released information in an attempt to introduce a bill that would allow the spouses of skilled temporary workers or H1B visa holders, the right to maintain work in the United States. For thousands of immigrants, this would open doors and numerous opportunities for their families.

This news specifically affects immigrants from China, India, and the Philippines due to the large number of H1B visa holders who specialize in science, engineering, and other specialty areas that migrate from these countries. Aside from the visa holders themselves, many of their spouses are highly educated as well, but are not permitted to work in the U.S. under current immigration laws. Of course, life in the United States becomes difficult for these single income families, as the spouses are unable to use the knowledge and degrees that they worked so hard to obtain.

As of now DHS has only discussed this possibility for the spouses of H1B visa holders that have begun the process of seeking permanent residency or their green card (GC). Therefore, this benefit will still have its limitations. Critics argue that DHS should consider providing this option to the spouses of all H1B visa holders regardless of their attempt to apply for a GC. Either way, the approval from Congress for this immigration bill will be a difficult feat since Republican opposition has already been noted toward this new announcement.

The United States seeks immigrants with superior skills that are the best in the world, in order to compete in the global market. To achieve that goal, the spouses and families of these highly skilled immigrants must be taken into consideration. If the spouses of H1B visas are able to work, the probability of these skilled workers remaining in the country for longer periods of time increases. Supporters of this bill believe that if these immigrant families are happy and thriving, it is more likely that they will also create a home here, which would be an ideal solution since higher skilled and specialized workers, are the types of immigrants that America wants.

imagesCAC60DRDAs the debate for immigration reform continues, the conservatives insist on the need to essentially stop illegal immigration and punish those who are caught. Republican, former Governor of Florida and husband to a Mexican native, Jeb Bush, believes the punishments that the conservative tea party wishes to give are too severe. He has stated that many of these illegal immigrants are not criminals, but instead migrate to the US in hopes of economically providing for their families. He believes they risk everything to do so, and he deems these actions as “an act of love”.

Since 2000, approximately 6,000 immigrants have died in their attempt to migrate the United States. When asked, many illegal immigrants, would prefer to remain in their home countries, but are forced to leave due to the political and economic instability and suppression that has limited their opportunities. Some go as far to say that, “if you’re born poor in my country, you stay poor… there is no opportunity for growth.” The promise of opportunity alone is a good enough reason for migrants to risk everything to enter into the United States.

For over 35 years, immigration reform has not progressed. Today only 5,000 permanent visas are distributed for low-skilled workers, leaving little opportunity for migrant workers. In addition, many of the temporary visa programs and diplomatic agreements such as the Bracero Program, have proven to be inefficient, and again, the legal routes to migration are limited for the lower skilled workers. However, since the demand for laborers persists in the United States, workers continue to migrate without legal representation and with the risk of mistreatment. When surveyed, the majority of migrant workers stated they would prefer to take the legal avenue to receive the appropriate visa if given the opportunity and accessibility.

Former Gov. Jeb Bush has stated that these illegal immigrants are not criminals, but victims of love. While some Americans disagree, when surveyed, the majority of Americans stated that if these illegal immigrants pay a practical fine for breaking the U.S. immigration laws that is punishment enough. They also stated they would support giving the immigrants the opportunity to apply for legal status after the fine was paid. One thing is clear Americans are ready for a change, and it is time to develop and introduce reasonable immigration reform.