Immigration Issues in New Mexico. Rebecca Kitson, Esq

Transcription

1 Immigration Issues in New Mexico Rebecca Kitson, Esq

2 Immigration Status United States Citizens (USC s): born in U.S., naturalized, or acquired/derived Lawful Permanent Residents (LPR s / green card holders ): permission to live and work in U.S. Non-immigrants: temporary permission to work, visit, study etc. Temporary Legal Status: permission to stay, sometimes work in U.S., includes applicants for LPR Undocumented people: no status, either overstayed a legal entry or entered illegally. Includes DACA recipients (deferred action status)

3 The Landscape of Immigration A National View and Perspective

4 The Foreign Born: What s their status and where do they come from?

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7 According to estimates, about 75% of immigrants are living in the US legally (as of 2015). However, only 45% of the US population knows this to be true. Currently, about 34 million lawful immigrants reside in the United States. There are an estimated 11 million undocumented immigrants in the United States.

8 Overall Undocumented Population

9 Length of time in the US: Undocumented Population

10 The Landscape of Immigration A Statewide View: New Mexico Source of much info:

11 Immigrants in New Mexico

12 Undocumented in New Mexico Estimated at 85,000 in 2014 About 4% of state population About 37% of foreign born population in the state Estimates place DACA recipients in New Mexico

13 Immigrants in New Mexico: Employment One in eight workers in New Mexico is an immigrant Immigrant entrepreneurs represent more than one in seven business owners in New Mexico 15,224 immigrant business owners accounted for 15 percent of all selfemployed New Mexico residents in 2015 and generated $375.1 million in business income.

14 Economic Impact of Immigrants in NM 8.4% of all business owners are foreign born Purchasing power of immigrants in NM $23.4 billion NM has approx. 3,711 foreign students who contribute $85.1 million in tuition, fees, and living expenses Undocumented pay $66.3 million in state and local tax

15 Immigrants and Taxes in NM

16 Immigrants and Crime A look at the numbers

17 2017 CATO Study on Incarceration Rates

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20 Visas and Green Cards Nonimmigrant and Immigrant Options

21 Who are the agency players? Department of Homeland Security (former INS) ICE: Immigration and Customs Enforcement USCIS: United States Citizenship and Immigration Service CBP: Customs and Border Patrol Department of State Consulates / visa issuance abroad Department of Justice EOIR: Executive Office for Immigration Review BIA: Board of Immigration Appeals Department of Labor BALCA : Board of Alien Labor Certification Appeals

22 Intro to Non Immigrant Visas A nonimmigrant is a noncitizen who seeks entry to the US for a specific purpose to be accomplished during a temporary stay. INA 101(a)(15) The purpose of that stay defines which visa class the individual should utilize about 22 different types Most derivatives cannot work, but there are exceptions

23 Alphabet Soup: Some Common Non Immigrant Visas Employment (H, I, L, O, P, R) H1B Visa: Garden variety, typically need a BA and a job offer Student Visas (F, M, J) F Visa: Regular academic or language study M Visa: Non-academic or vocational studies J Visa: Exchange programs, research or teaching fellowships, medical studies, etc. Treaty Visas (TN, E) Family Visas (K, V) K1 / K3 : Fiancé visas Law Enforcement Visas (S, T, U)

24 H1-B visas The US H-1B visa is a non-immigrant visa that allows US companies to employ graduate level workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc. Quota: 65,000 per annum (the H-1B cap); 20,000 for Masters Degree recipients FY 2016: 233,000 applicants FY 2017: 236,000 applicants FY 2018: 199,000 applicants FY 2019: 190,098 applicants

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26 FOUR PRIMARY WAYS TO A GREEN CARD Immigrant Visas / Adjustment of Status: 1. Asylum 2. Employment Based 3. Family Based 4. Various Humanitarian

27 Family Based Immigration Immediate Relatives are relationships exempt from quota-based waiting lists If you are: The spouse of a US citizen A child under 21 years old of a US citizen Parent of a US citizen child over 21 years of age INA 201(b)(2)(a)(i)

28 Family Based Immigration: Preference Categories F1: Over 21 years old unmarried child of US Citizen F2A: Spouse or minor (under 21, unmarried) child of a Legal Permanent Resident F2B: Over 21 years old unmarried child of Legal Permanent Resident F3: Over 21 years old married child of US Citizen F4: Brother or sister of a US Citizen Generally see 8 CFR 204.1, 204.2

29 The Visa Bulletin July 2018

30 Employment Based Immigration: General Most important : Requirements A strong showing that the foreign worker is one of the best in the field or that there are no US workers who are able, willing, available, and qualified to fill the position. Preference categories are by skill / level of achievement Very little forgiveness for immigration violations Generally require planning and timing considerations

31 Employment Based Immigration EB-1: Persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers. EB-2: Members of professions holding advanced degrees or individuals of exceptional ability in the arts, sciences, or business EB-3: Skilled and professional workers EB-4: Religious Workers EB-5: Special Investors

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33 Asylum and related relief: Applicable Law Asylum citations: Definition INA 101(a)(42) INA 241(b)(3) withholding INA 208 asylum 8 CFR 208; 1208 CAT and asylum

34 Asylum Refugee / Asylee : any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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 INA 101(a)(42) ; 8 USC 1101(a)(42)

35 Any person who is outside any country of such person s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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

36 What asylum is NOT The limited nature of the protection offered by refugee law is highlighted by the fact that it does not cover those fleeing from natural or economic disaster, civil strife, or war. Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)at 235. Mere lawlessness and violence between diverse populations, of the sort which abounds in numberous countries and inflicts misery upon millions of innocent people daily around the world, generally is not sufficient to permit the Attorney General to grant asylum Singh v. INS, 134 F.3d 962, 967 (3d Cir. 1998)

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38 Humanitarian Relief Relief resulting in LPR status: Special Immigrant Juveniles (SIJS) Abused, abandoned or neglected children Self-petitioning under the Violence Against Women Act (VAWA) Can be for children, parents or spouses of abusers Defenses to Removal in Proceedings Temporary Relief Temporary Protected Status (TPS) U and T visas : assisting law enforcement U visas for victims of violent crime T visas for victims of human trafficking

39 Deferred Action for Childhood Arrivals (DACA) You were under the age of 31 as of June 15, 2012; You entered the United States prior to your 16th birthday; You have resided in the United States since June 15, 2007 and currently are present in the U.S.; You were in the United States on June 15, 2012 and must be physically in the U.S. at the time of filing for your request for deferred action; You entered the United States without border inspection before June 15, 2012, or your immigration status expired prior to June 15, 2012; You must be currently in school, have graduated, or obtained an equivalent certificate of completion from high school, successfully obtained a general education development (GED) certificate, or must have been honorably discharged from the Armed Forces of the United States; and You must not have been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and must not pose a threat to national security or public safety.

40 DACA Update About 700,000 currently hold DACA What types of applications can be renewed An update on the current litigation

41 Starting Points: Entry The INA is bifurcated by definition of entry : INA 101(a)(13) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

42 Substantial Areas of Trouble: Inadmissibility INA 212 Criminal Grounds Crimes involving Moral Turpitude (CIMT s) Controlled Substances Reason to believe controlled substance trafficker or is a family member who receives benefit of trafficking Prostitution and commercialized vice Multiple convictions : aggregate sentence of 5 years Non-Criminal Grounds Admission to ground of inadmissibility Current drug addiction and/or abuse Gang affliation Fraud visa, false claims to USC, etc Smuggling and Trafficking Unlawful entry/presence Security / Terrorism Previously removed re-entry

43 Substantial Areas of Trouble: Deportability INA 237 Criminal Grounds Aggravated felonies : the worst of the worst CIMT s any time after admission or 1 w/in five years of admission Controlled Substances Domestic Violence / Stalking / Child Abuse May include violation of protection order Firearms Non-Criminal Grounds Controlled substance abuser or addict Fraud, including voter / false claims to USC, marriage Security, espionage, terrorism

44 Getting into Trouble Immigration Enforcement

45 Immigration Enforcement Border Enforcement (CBP) Includes both immigration enforcement and criminal prosecutions Interior Enforcement (ICE) Includes processing both the documented and undocumented for removal Worksite Enforcement (ICE)

46 Enforcement Authority Arrest authority A DHS officer has the power to arrest a person without a warrant if the officer has reason to believe the alien is in the US in violation of law or regulation and is likely to escape before a warrant can be obtained. INA 287(a)(2) However, an arrest in violation of this does not result in the dismissal of removal proceedings.. For stopping and questioning someone, an immigration officer requires reasonable suspicion, and whether or not the stop was justified depends on the totality of the circumstances. They ONLY have the right to stop to determine if the person has a right to remain in the US. See US v Brignoni-Ponce, 422 US 873 (1975) and Lau v INS

47 Enforcement Authority : Detention Detention - Authority to detain pursuant to authority to arrest Civil Detention - The stated purpose or goal of immigrant detention has been to ensure that individuals appear for their removal proceedings and do not abscond after a final order of removal has been issued. Most immigrant detention facilities are privately run by the prison industry

48 Immigration Detention Issues Detention and Bond Noncitizens may generally qualify for immigration bond if not a flight risk, a danger to the community, or subject to mandatory detention Mandatory Detention applies to any foreign national who is: Inadmissible for criminal grounds 212(a)(2) Deportable for criminal grounds 237(a)(2) NOT eligible for immigration bond and will remain in detention while awaiting removal or defending their case

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50 Immigration Enforcement in emove/

51 Worksite Enforcement Authority under INA 274A Created by Immigration Reform and Control Act of 1986 (IRCA), also included anti-discrimination legislation Prohibits the knowing hiring or continuing to employ an unauthorized worker. Knowledge may be actual or constructive - knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, thorough the exercise of reasonable care, to know about a certain condition.

52 Worksite Enforcement: Procedure Form I-9 Required to re-verify when there is a change or an expiration of status These can be audited. Normally a Notice of Inspection arrives with Special Agents from ICE.

53 The Immigration Court: Removal and Defense Proceedings are civil versus criminal Our immigration court sits in El Paso, Texas IJ s are appointed through DOJ DHS-ICE counsel represents the U.S. government No rules of evidence, no right to paid counsel Subject to limited judicial review Defenses typically involve a way to stay in the U.S. Removal (previously termed deportation) can occur in absentia

54 Current Immigration Court Backlog ourt_backlog/

55 Children in Removal No age limit as to removal proceedings or detention

56 US Citizenship Ways to obtain

57 How to be a USC? 3 ways to become a USC Naturalization a formal process Derivative Citizenship through the naturalization of parents Acquired Citizenship through birth in the US / territories or abroad to one or both USC parents See generally INA 301, 309, 318, 320, 322

58 Naturalization Requirements STATUS: Lawfully admitted for LPR status AGE: 18 years old PHYSICAL PRESENCE & RESIDENCY

59 Naturalization Requirements GOOD MORAL CHARACTER : no definition, but see INA 101(f) 3/5 year period required, may look beyond in the agency s discretion Lack of GMC may include not paying child support, commission of crimes, alcoholism, disregard for the laws, wellbeing of the community Selective service registration is required Attachment to the Principles of the Constitution And favorable disposition to the good order and happiness of the US Literacy and Knowledge of History and Government Exceptions: disability, 15/55 20/50 20/60

60 Derivative & Acquiring Citizenship Derived through parent s natz Usually after a child immigrates as an LPR While child is under 18 years old, one or both parents naturalize (custodial parent) Child Citizenship Act 2/27/01 broadened the qualifications Acquired at Birth Jus soli or jus sanguinis by soil or blood By blood born abroad to one or more USC parents, often involves requirements that the parents have lived in the US for a certain period of time in order to pass on US citizenship. Requirements have changed through time

61 Thank You!! Rebecca Kitson, Esq.