HOW TO FIGHT YOUR DEPORTATION, Part Two

In the first segment of this series, I discussed what to do if you are arrested by Immigration (ICE).  In short, don’t sign anything and you will likely be able to fight your deportation in court. 

Once you tell ICE that you want a court hearing, you also can ask for your release on bond, so you can be reunited with your family while your case moves forward.  Below, I will explain how to convince the immigration judge that you deserve to be free on bond, to make the bond as low as possible, and to get the bond paid and get out of immigration custody.

How is the bond set.

If a person is detained but eligible for bond, the government will often set an initial bond amount.   ICE under the Trump Administration has been setting bonds higher than in previous administrations or often dismissing deportation cases altogether.  We can expect that ICE under Trump will set bonds at $10,000 or higher, even for immigrants without any real criminal record.  But this can be lowered by an immigration judge.

In most cases, you have the right to ask the immigration court for a bond re-determination hearing.  The immigration court will then consider the arguments you make and often lower the bond set by ICE.

In setting the amount of bond, the judge will look at a number of criteria.  The most important criterion is whether the person is a “flight risk”; that is, whether he would likely come back to court if released.  In making that decision, the judge will consider factors which tend to show good moral character on the part of the individual held.  These factors include:

• Relatives in the United States: does the person have relatives here who are in legal status?  Do they have a citizen or permanent resident spouse or child?

• Employment: does the person have a regular job and income?

• A residence: does the person have a place to live if released?

• Immigration Court History: Has the person ever failed to show up in court on any of his prior criminal or immigration cases? Can they show the judge that they always went to court when required to do so in the past?

• Tax Records: has the person paid his taxes in the U.S.?

• Eligibility for Relief:  What immigration status does the person qualify for?  Do they have an immigrant petition filed by a relative?  Or can one be filed? Do they have a credible argument that they would fear persecution in their home country?  Do they qualify for some other status here?

How to Pay the Bond.

Once the bond is set, a relative or friend can post the bond if they can show that they are a U.S. citizen or lawful permanent resident.   That person must agree to be responsible for ensuring that the person attends any immigration hearing or interview whenever requested to do so.

The person posting the bond will need to know the last name of the person in ICE custody and their “A” number--the case number which begins with A followed by 9 numbers.   The bond can be paid with a cashier’s check from a bank, or a money order – not by cash or personal check. 

In San Francisco, the person paying the bond must present the money in person at the immigration office located at: 630 Sansome Street, 5^th Floor.  Hours are: Monday – Friday, 8:00am to 3:00pm.

If you pay the bond directly to the government, the bond money will be returned to your family only when your court case is completed and only if you have complied with the court’s order, even if that order is to leave the country.

Next post on this topic will deal with how to fight and possibly win your deportation case in the Immigration Court.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law since 1984 and has been recognized as one of the top immigration lawyers in Northern California for 7 years by “Super Lawyers”.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

Obtaining a visa for foreign-born workers

[This article was published in the Sonoma County Gazette, July issue. https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-by-christopher-kerosky-july-2018.  Thanks to Liliana Gallelli, who cowrote this article]

The federal government has long had a sort of “don’t ask, don’t tell” policy toward much of our economy here – vineyards, other agriculture, restaurants, hotels, among others.  It goes something like this: we won’t ask if your workers are legally here and please don’t tell us, or we’ll have to deport them and your industry won’t have workers to hire.    

Now, Sonoma Count is suffering from an ever-growing shortage in labor.  Contributing factors are low interest rates leading to an increase in business development and a tight housing market, made worse by the fires.  Draconian immigration policies have further worsened the situation.    

Unknown to many employers, a guest-worker visa program exists to supposedly help fill the gap in business personnel needs.  One such visa is the H2 visa--H2A for agricultural workers, and H2B for temporary, nonagricultural jobs.  But the bureaucracy an employer is required to navigate and the costs of the process are too daunting for most.

The H-2B temporary non-agricultural program allows U.S. employers to bring foreign nonimmigrant workers to the United States to fill temporary nonagricultural jobs.

This visa is a highly technical process that involves multiple state and federal government agencies, including State Workforce Agencies, the U.S. Department of Labor, the U.S. Department of Homeland Security, and the U.S. Department of State.

  

While there are numerous reports that businesses throughout the nation are being hurt by the inability to count on a labor force, H2 visas are capped at only 66,000 per year  (33,000 for workers required during April 1 – September 30, and 33,000 for October 1 – March 31). In fiscal year 2018, U.S. Citizenship and Immigration Services (“ USCIS”), received approximately 2,700 H-2B petitions requesting approximately 47,000 workers, which is more than the number of H-2B visas available. As a result, USCIS, conducted a lottery February 28 to randomly select enough petitions to meet the cap. 

Despite the Trump Administration’s focus on “Buy American, Hire American”, U.S. businesses depend on immigrant workers.  After strong lobbying by companies ranging from tech to Maine lobster, The Secretary of Homeland Security, in consultation with the Secretary of Labor, decided to increase the numerical limitation on H–2B nonimmigrant visas to authorize the issuance of up to an additional 15,000 through the end of Fiscal Year (FY) 2018.

Temporary worker visas usually are contingent on the employer’s showing that it tried to locate and hire U.S. workers but was unable to do so.  This includes obtaining the requisite prevailing wage  determination from the US Department of Labor.   Thus, before requesting H-2B classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL).

In order to receive an H-2B temporary labor certification, the employer must establish that:

§  There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

§  The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

§  Its need for the prospective worker's services or labor is temporary. With the exception of a one-time occurrence need that could last up to three (3) years, temporary need will not be approved for longer than 10 months. The employer's need is considered temporary if it is a(n):1) a one-time occurrence, 2) seasonal need, 3) peakload need, or 3) intermittent need 

Embarking on the H2 visa also requires an economic commitment:  Filing fees payable to the government, reimbursement of visa fees, recruiting, transportation from their hometown to the job site prior to employment, and back again when the employment period is over, housing etc.  Best estimates on costs alone: $8,000 to $10,000 per worker. 

Oh, and by the way, no persons who are already here without status are eligible.  You need to find appropriate workers in Mexico or some other country and they are not getting a visa if they’ve been here illegally.

This is just another example of why our immigration laws need reform.