THE LATEST FROM SRW BORDER BLOG

ICE adds administratively closed cases to the docket

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ICE (Immigration and Customs Enforcement) is planning to restart thousands of deportation cases in accordance with the agency’s new policy. Specifically, ICE’s new policy affects foreign nationals in the U.S. whose cases are currently administratively closed. The initiative could result in the recalendaring of more than 355,000 cases – bringing the already overburdened immigration court backlog to over 1 million cases.

As background, administrative closure is a mechanism used to temporarily pause removal proceedings by removing the case from the immigration judge’s docket. Over the years, administrative closure has proven to be a vital docket-management tool for Immigration Judges across the country.  Both DHS and the immigrant have the ability to request that a case be administratively closed.   

Administrative closure does not terminate removal proceedings and it does not provide a noncitizen with any immigration status. It is merely a temporary measure that effectively tables the matter until either party moves to recalendar (reschedule) the case. Deferring removal hearings can allow the individual an opportunity to find relief that the immigration court cannot provide. During this time, the immigrant could possibly obtain an immigration benefit that is not available while an immigration case is active.

Recently, the highly effective docket-management tool has come under fire.  Thanks to a May 2018 decision issued by Attorney General Jeff Sessions, Immigration Judges and the Board of Immigration Appeals no longer have the authority to administratively close cases.  Additionally, ICE is now responsible for making the decision to recalendar cases that are currently administratively closed.  

Under the new policy, ICE prosecutors are instructed to prioritize the recalandering of cases in the following order:

  1. Cases involving a foreign national being detained.
  2. Cases pertaining to an immigrant with a criminal record.
  3. Cases where ICE’s most recent motion to recalendar was denied.
  4. Cases that were administratively closed over ICE’s objections.
  5. All other cases will be recalendared on a case-by-case basis at the local office’s discretion.

These recently released instructions make it clear that ICE intends to recalander virtually all cases that have been administratively closed. This development will put an already overwhelmed immigration court system even further behind. Currently, the immigration court backlog is at 730,000 cases. With ICE’s new guidance, the backlog will exponentially grow while immigrants with administratively closed cases wait for ICE to determine their fate.

As of today’s date, ICE has already started to recalander affected cases.

Policy Alert: USCIS Will Issue More Foreign Nationals Notices to Appear in Immigration Court

Last week, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that changed the agency’s policy regarding which foreign nationals will be issued Form I-862, Notice to Appear (NTA). An NTA is issued to begin removal proceedings against an individual and instructs them to appear in front of an immigration judge for a hearing. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) also have the authority to issue NTAs. According to a USCIS news release, “officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Purpose of USCIS Updated Guidance

This new guidance is intended to update USCIS procedure in accordance with Department of Homeland Security immigration enforcement priorities under President Trump. These priorities were defined in Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which was issued on January 25, 2017. The Executive Order states, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement…. It is the policy of the executive branch to ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens.” In a significant change from immigration enforcement under President Obama, the Executive Order states that the government will no longer exempt specific classes or categories of removable aliens from potential enforcement and removal.

Categories of Removable Individuals

Although all removable individuals are subject to immigration enforcement, the policy memorandum specifies that the following categories of individuals should be issued NTAs:

  • Aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4), to include aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal; and
  • Aliens who, regardless of the basis for removal:
    • Have been convicted of any criminal offense;
    • Have been charged with any criminal offense that has not been resolved;
    • Have committed acts that constitute a chargeable criminal offense;*
    • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
    • Have abused any program related to receipt of public benefits;
    • Are subject to a final order of removal, but have not departed; or
    • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

*A footnote indicates that chargeable criminal offenses include those defined by state, federal, international, or appropriate foreign law.

Expert Concerns Regarding the Updated Guidance

Unlike immigration policy under President Obama, the prioritized categories are no longer ranked, but are presented as being equally important. According to an analysis from the American Immigration Lawyers Association (AILA), “because it includes those who merely committed an act that could be charged as a crime, all those who entered without inspection become priorities because illegal entry is a crime under 8. U.S.C. §1325.” By targeting individuals who have been charged with a crime but not convicted, the new guidance also undermines the fundamental premise that individuals are innocent until proven guilty. AILA states that these new policies are “reshaping immigration enforcement in a way that is antithetical to American values and our country’s historical commitment to justice and due process.”

These policies will significantly increase the number of individuals who are targeted for removal, which AILA predicts will worsen the existing problems in immigration courts—currently more than 700,00 cases are already backlogged in immigration court. NTAs mark the beginning of immigration court proceedings, so this guidance will likely continue to overload immigration court dockets and strain government resources.

AILA also warns that the new USCIS policy mandates that “NTAs be issued to every person who is ‘not lawfully present’ in the United States at the time an application, petition, or request for an immigration benefit is denied,” except in very limited circumstances. This includes individuals who were denied due to government error, would otherwise have appealed the decision but are discouraged from doing so after receiving an NTA, or who would have willingly left the U.S. after receiving a denial.

What About DACA Recipients?

DACA recipients and requestors are a notable exception to the new guidance. In a concurrently released policy memorandum, USCIS specifies that “Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.”

The updated USCIS policy guidance represents a significant shift in the agency’s role in immigration enforcement and priorities, and removable individuals who were not priorities for deportation under previous guidance should be aware of how these changes will impact them. If you are concerned about how this may affect your immigration status and ability to remain in the U.S., please reach out to our attorneys to schedule a consultation.

Mexican Citizen Approved for Second Re-entry Permit

LPR Since: February 2011

Reasons for Residing Abroad: Client had previously retained our firm to obtain a two-year reentry permit. As his expiration date neared, he determined that his family circumstances prevented him from returning to the U.S. as soon as he had hoped. Sadly, his father had recently passed away, and he needed to remain close to his aging mother to continue assisting her with medical needs and support her emotionally as she dealt with the loss of her husband. Additionally, our client was in the process of petitioning for his foreign spouse to immigrate with him to the U.S. As a newly married couple, they did not want to be separated during the potentially lengthy process of obtaining her immigrant visa. Our client anticipated being able to transfer back to the U.S. after these family matters were resolved.

Ties to the U.S.: U.S. bank accounts and credit cards, filing U.S. Income Tax Returns, maintaining U.S. 403K account

Approx. Adjudication time: 3 months and 8 days

Re-entry Permit Validity: 2 years

Time outside U.S.: 4-5 years

Country of Citizenship: Mexico

Smoke and Mirrors: Marijuana’s Catastrophic Effect on Immigration Status

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Quickly-evolving marijuana laws are making many Americans optimistic that legalization is on the horizon. Just across the border, the legal use of recreational marijuana in Canada may be authorized later this year. Even so, a foreign national’s chances of staying in the states could go up in flames after a marijuana-related offense. Similarly, a foreign national may be denied entry into the U.S. for marijuana use or marijuana-related offenses.

The gradual legalization of marijuana in the U.S. is creating a false sense of security for noncitizens, who might be under the impression that using marijuana in accordance with state law is harmless. Don’t be fooled: although more states are jumping on the bandwagon of decriminalizing marijuana – marijuana is still illegal under federal law and for immigration purposes federal law is all that matters. Violating federal marijuana laws has serious implications for foreign nationals, affecting admissibility to the U.S. and the ability to apply for naturalization just to name a few. Notably, a noncitizen who admits to an immigration official that they possessed marijuana can be found inadmissible, denied entry to the U.S., or have their application for lawful status or even citizenship denied. Depending on the circumstances, admitting to marijuana possession, can make an LPR deportable – even if permitted under state law and/or the individual was never convicted of a crime.

As of January 2018, the use of medical marijuana is legal in 29 states as well as the District of Columbia. Recreational use has been legalized in the District Columbia and nine states: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont and Washington. While these state laws legalizing marijuana provide valuable benefits, they have proven to be a trap for unsuspecting immigrants. For example, foreign nationals living in one of these states may readily admit to immigration officials that they have used or possessed marijuana under the assumption that it is safe to do so.

According to a report by the Immigrant Legal Resource Center (ILRC) (as well as our experience), in some states including Washington State “ICE, CIS and CBP agents are aggressively asking noncitizens if they ever have possessed marijuana, in an attempt to hold people in admissible.” Accordingly, before crossing the border and potentially being interviewed by CBP, it is imperative that noncitizens are aware that immigration law treats any marijuana-related activity as a crime, with harsh penalties, even if it is permitted under state law.

Understanding Federal Marijuana Laws

Possessing, giving away, selling, cultivating, importing or exporting marijuana are all considered federal offenses. Working in the marijuana industry – even if it’s a state-licensed operation – counts as drug trafficking. Offenses are applicable to both recreational and medical marijuana because there are no exceptions under federal law for medical or other use. (A medical marijuana card is not a “get out of jail free” card.)

Using or being under the influence of marijuana, as well as possessing paraphernalia, are not federal offenses. Even so, committing one of the aforementioned transgressions will cause problems for noncitizens trying to cross the border. Notably, noncitizens who admit to using recreational or medical marijuana in accordance to state law can be found inadmissible to the U.S. under immigration law.

Consequences of Marijuana for Noncitizens

Potential consequences of marijuana for noncitizens include inadmissibility, removability and ineligibility for naturalization. Specifically:

  • A criminal conviction for a state or federal marijuana offense can make a noncitizen both deportable and inadmissible. (For reference deportability refers to a noncitizen being removable from the U.S. whereas inadmissibility refers to a noncitizen being ineligible to enter the U.S.)

  • Admitting to the commission of a state or federal marijuana offense can render a noncitizen inadmissible to the U.S. even without a conviction. The state laws legalizing marijuana have led to noncitizens mistakenly believing that it is okay to admit to marijuana use or possession when questioned by immigration officials causing irreparable harm to their ability to freely enter the U.S.

  • Noncitizens may be found inadmissible to the U.S. if immigration officials have “reason to believe” the individual participated in drug trafficking – this can include working legally in the marijuana industry. A noncitizen may also be found inadmissible if within the last five years, he or she has benefited from such trafficking by an inadmissible spouse or parent.

  • Admitting to the use of marijuana – even without a conviction – may render a noncitizen inadmissible or deportable for being an addict or abuser pursuant to U.S. immigration law.

  • Committing a marijuana-related offense or admitting to marijuana use may result in a U.S. Lawful Permanent Resident (LPR) being temporarily or permanently ineligible for naturalization. Specifically, an applicant must establish “good moral character” in order to become a citizen and committing a marijuana-related offense does not constitute “good moral character.” Inadmissibility resulting from an offense will count against an LPR. In some cases, it may bar an LPR from applying naturalization for a specified period of time or indefinitely.

As long as federal marijuana laws reign supreme, foreign nationals must remain vigilant and exercise extreme caution with marijuana including disclosing marijuana use – even if permissible under state law – at ports of entry, before USCIS in applications or interviews, to consular officials, at consular visa medical appointments or in removal proceedings.

Some practical advice for noncitizens and marijuana:

  • Simply put: stay away from marijuana if you are not a U.S. citizen.

  • Any photos or text related to marijuana need to be removed from your phone and social media accounts.

  • Do not carry or display any materials that refer to marijuana (for example, a bumper sticker or a T-shirt) when traveling to the U.S.

  • If you have ever used marijuana or worked in the industry do not depart the U.S. or apply for U.S. immigration status or naturalization without first speaking with an experienced immigration attorney.

  • Before obtaining a medical marijuana card speak with an experienced immigration attorney.

  • If you have a medical marijuana card, do not have it on you while traveling to the U.S.

  • This should be a given, but should be emphasized: don’t bring marijuana with you when traveling to the U.S.

  • Don’t discuss any conduct involving marijuana with immigration, border or law enforcement authorities. (The only exception is if your immigration attorney has advised that this is safe.)

Generally speaking, those who have possessed, used, or worked in the marijuana industry should not travel outside of the United States. This applies to anyone who is in the U.S. and is not a citizen – permanent residents included. Departing the U.S. and subsequently returning can put the noncitizen in a compromising position if a CBP officer questions them about marijuana. If questioned, the best option is to decline to answer, then contact an attorney.

If you need legal advice regarding marijuana and its effect on your immigration status, contact us at Serotte Reich: 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consulation.