JTIP Handout:Lesson 34 Immigration Consequences

Transcription

1 KEY IMMIGRATION TERMS AND DEFINITIONS INS DHS USCIS ICE CBP ORR Immigration and Naturalization Services. On 03/01/03, the INS ceased to exist; the Department of Homeland Security ( DHS ) now handles immigration services and enforcement. Sometimes people may use the old terminology INS, but they are usually referring to DHS. U.S. Department of Homeland Security (DHS): DHS enforces immigration law. DHS s immigration functions are carried out by three bureaus: 1. U.S. Citizenship and Immigration Services (USCIS); 2. Immigration and Customs Enforcement (ICE); and 3. Customs and Border Protection (CPB). USCIS: U.S. Citizenship and Immigration Services. USCIS is responsible for processing and making decisions on all applications for immigration benefits. These include applications for Special Immigrant Juvenile Status, asylum, lawful permanent residency, and citizenship. USCIS does not directly enforce immigration laws, e.g., initiate deportation proceedings, but may refer cases that are denied to Immigration and Customs Enforcement (ICE) to initiate deportation. Immigration and Customs Enforcement (ICE). ICE enforces immigration laws within the interior of the United States and has the authority to arrest, transport, and/or detain (except for certain youth) individuals in violation of immigration laws. Not only do ICE attorneys represent the government in removal proceedings, but ICE also carries out the actual removal of noncitizens that are ordered deported. ICE conducts the majority of enforcement within the juvenile justice system. Customs and Border Protection (CBP): CBP oversees inspections at ports of entry and monitors the border for illegal entry of individuals and contraband. CBP is also given the authority to arrest, transport, and detain noncitizens, but unlike ICE, it focuses on those who are caught in violation of immigration laws at the border and ports of entry. Statistics show that, each year, over 100,000 children are apprehended by CBP crossing the Mexico United States border. CBP is also the agency that juvenile justice systems near the border interface with most often. They play a similar role as ICE by initially detaining and effectuating the removal of minors. On March 1, 2003, DHS established that the care and custody of unaccompanied alien children would be placed with the Office of Refugee Resettlement (ORR). ORR, which is a division of the U.S. Department of Health and Human Services, created DUCS the Division of Unaccompanied Children s Services to provide care and services to this population pending the conclusion of the immigration case. However, ICE continued to retain control and oversight of accompanied alien children. Although some minors

2 EOIR from the juvenile justice system are detained upon arrest by ICE orcbp, the vast majority of youth apprehended by DHS are ultimately deemed unaccompanied and turned over to ORR. ORR is the agency that most often works with juvenile justice system after the youth has been apprehended, because they are mandated to reunify youth with family members where possible. The U.S. Department of Justice, Executive Office for Immigration Review ( EOIR ) is the body that adjudicatesimmigration court cases for people in removal( deportation ) proceedings. The EOIR is composed of more than 50 immigration courtsthroughout the country and the appellate body, the Boardof Immigration Appeals (BIA). BIA Immigration and Nationality Act (INA) Immigration Regulations (8 C.F.R.) Alien/Noncitizen Judges for the EOIR are attorneys appointed by the Attorney General to act as an administrative judge within the Executive Office for Immigration Review. They are qualified to conduct specified classes of proceedings, including removal proceedings. The Board of Immigration Appeals (BIA). Immigration court decisions are appealed to the BIA. BIA decisions are appealed to the U.S. Court of Appeals for the circuit where the immigration court is located. Some cases are then appealed on to the U.S. Supreme Court. Federal immigration laws are found in the Immigration and Nationality Act (INA). The INA is also codified at Title 8 of the United States Code. The INA is further interpreted in the Code of Federal Regulations located at 8 C.F.R. An individual who is not a U.S. citizen or U.S. national. Aliens/Noncitizens may include people who are undocumented, and those who are documented with some form of permission to be in the country, such as visa holders, asylees/refugees and Legal Permanent Residents (LPRs). U.S. citizen Only aliens are subject to federal immigration laws. Generally, a person is a U.S. citizen and not subject to federal immigration laws and removal if he or she was: 1. Born in the United States, Puerto Rico, the U.S. Virgin Islands, Guam or American Samoa and Swains Island; OR 2. Born outside the United States but acquired U.S. citizenship automatically at birth through birth to U.S. citizen parent(s); OR 3. Born outside the United States but derived U.S. citizenship during childhood through naturalization of parent(s) as U.S. citizen(s) before he or she reached age 16, 18 or 21 (depending on the law in effect at the time); OR

3 Naturalized citizen 4. Born outside the United States but naturalized as a U.S. citizen (either by his or her own naturalization application as an adult, or during his or her childhood by application of a U.S. citizen parent, generally followed by a swearing in ceremony). One who was not a U.S. citizen or national by birth or other means and who has applied for and been granted citizenship by federal immigration authorities.

4 Naturalization Benefits of citizenship Resident Alien LPR (Legal Permanent Resident) Naturalization is the process by which immigrants or noncitizens become citizens of the United States. Naturalization has specific requirements, including but not limited to having lawful permanent residence for five years, showing good moral character for five years (three years if married to a U.S. citizen), passing an English/history/government test and swearing a loyalty oath. Persons under the age of 18 cannot naturalize. Right to vote in U.S. elections Right to obtain certain government jobs and benefits Right not to be deported or excluded from the United States Right to help certain relatives immigrate to the United States at an expedited pace Right to move to another country, live there and be able to return legally to the United States at any time Resident Alien/Legal Permanent Resident (LPR): Synonymous terms referring to a noncitizen who has been lawfully allowed to permanently reside in the United States. Individuals can obtain legal permanent residence through a variety of means, including through family based immigration, grant of refugee or asylee status, Special Immigrant Juvenile Status and U or T Visas. The process to attain lawful permanent residence is called adjustment of status (if the person is able to apply in the United States) or consular processing (if the person must apply in the home country, outside the United States). LPRs are issued a green card, which is the evidence of the alien s LPR status. LPRs are generally required to renew their green card every 10 years, but will not lose their status if they fail to do so. LPRs are permitted to work without restrictions in the United States. It is important to note that permanent residents, as non U.S. citizens, do not have permanent status. They may be found deportable from the United States for many minor criminal convictions (not juvenile adjudications) regardless of how long they have been in the United States, their U.S. citizen and other close family ties, community ties and other significant equities they possess. Permanent residents may apply for citizenship after five years, or three years if they are spouses of U.S. citizens, but once they are naturalized, they are permitted to remain indefinitely, unless they obtained their citizenship fraudulently.

5 Nonimmigrant Undocumented person/ Illegal alien A noncitizen who has been granted the right by the USCIS to reside temporarily in the United States for a specific purpose noncitizens with some nonimmigrant statuses are employable in the United States. Some nonimmigrant statuses have strict time limits for the noncitizen s stay in the United States. Each nonimmigrant status has rules and guidelines, which must be followed in order for the nonimmigrant to remain in status. A nonimmigrant who violates one of these rules or guidelines will fall out of status, and be considered undocumented. An undocumented person is a noncitizen who is in the United States without legal permission, because they have either entered the United States illegally, or entered the United States legally, but fallen out of status. Without an avenue to obtaining legal status, they cannot work lawfully or live in the United States without fear of deportation. Some individuals who have applied for legal status, for example through a family member, may obtain a work permit while their application is pending. While they may be able to work lawfully, they are still considered undocumented by federal immigration authorities. Special Immigrant Juvenile Status (SIJS) Adjustment of Status Asylee Sometimes people derogatively refer to undocumented persons as illegals. Special Immigrant Juvenile Status (SIJS) is a path to lawful permanent residence for undocumented children who are: under the jurisdiction of a state juvenile court (defined broadly); cannot be reunified with one or both parents due to abuse, neglect, abandonment or similar basis under state law; and in whose best interest it is to remain in the United States. Congress has directed that state juvenile courts make the factual findings that establish basic SIJS eligibility. Without these findings, children may not apply for SIJS. Adjustment of Status is a process that allows a noncitizen to obtain LPR status in the United States without having to go abroad. Adjustment of Status is available only to people who meet certain eligibility requirements. An asylee is a person at a port of entry or in the United States, who is unable or unwilling to return to his or her country of nationality or habitual residence because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group or subscription to a particular political opinion. Asylee status is a protected status granted by USCIS or an

6 immigration judge (EOIR) upon a finding that the noncitizen has suffered past persecution or has a well founded fear of future persecution. Refugee Asylees are eligible to apply for adjustment to LPR status after living in the United States for one year following the grant of asylum. A refugee is a person outside his or her country of nationality and outside of the United States who is unable or unwilling to return to his or her country of nationality or habitual residence because of past persecution or a well founded fear of future persecution on account of race, religion, nationality, membership in a particular social group or subscription to a particularpolitical opinion. A refugee must be granted refugee status abroad by DHS and brought to the United States for resettlement. Refugees are eligible to apply for adjustment to lawful permanent resident status after living in the United States for one year. The federal Office of Refugee Resettlement ( ORR ) is charged with assisting these people to adjust to life in the United States through various means of support.

7 Admission Exclusion Deportation Removal, formerly known as Deportation or Exclusion Deportability Grounds of deportability and consequences for documented youth Admission is the lawful entry of a noncitizen into the United States after inspection and authorization by an immigration officer. A person who has been admitted is subject to the grounds of deportability under federal immigration law. A person who has not been admitted, such as an undocumented person who crossed the border illegally, is subject to the grounds of inadmissibility. See Removal. See Removal. A legal proceeding through which immigration officials seek to remove a noncitizen from the United States for violating an immigration law. Removal proceedings began on April 1, Before then, the terms deportation and exclusion were used. The process for deportation in 1996 differed from removal proceedings enacted in Conditions or acts that subject a person who has been admitted to be removed from the United States. If the DHS brings a person into removal proceedings, the DHS has the burden of proving that the individual comes within a ground of deportability. Lawful permanent residents are not immune; they may be ordered removed from the United States if they fall into a ground of deportability. These include but are not limited to certain crimes; lack of documentation; and immigration violations. See 8 U.S.C Consequences for Documented Youth Most criminal grounds of deportability require a conviction. Because delinquency is not considered a conviction for immigration purposes, there are very few instances where a child with lawful status, such as an LPR, will be found removable for a juvenile delinquency adjudication. Nonetheless, certain delinquency adjudications may provide evidence that the child falls into some conduct based grounds of deportability meaning, it is not the adjudication alone that would make the child deportable, but the conduct underlying the disposition. The adjudication, however, will serve as greater proof that the conduct was committed.

8 Grounds of deportability that could be implicated by delinquency dispositions include, but are not limited to: Drug addiction or drug abuse (this ground rarely comes up in practice); Violations of protective or nocontact ordersdesigned to prevent repeated harassment, credible threats of violence or bodily injury; and False claims to U.S. citizenship. Expedited Removal A process authorizing ICE to quickly remove certain noncitizens from the United States. Under the Trafficking Victims Protection and Reauthorization Act of 2008 (TVPRA), unaccompanied children must be placed in removal proceedings and, therefore, are not subject to expedited removal. Only in certain cases, such as when the youth is from a neighboring country and has been properly screened in accordance with the TVPRA, may he or she be subject to voluntary removal (withdrawal of his or her application for admission). Such youth do not have an order of deportation on their immigration record.