HOW TO FIGHT YOUR DEPORTATION, Part Two

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 over 25 years and has been recognized as one of the top immigration lawyers in Northern California for 10 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.

KNOW YOUR RIGHTS AS AN IMMIGRANT.

KNOW YOUR RIGHTS AS AN IMMIGRANT.

Part 1: What to do if confronted by ICE

By Christopher A. Kerosky

          Once again, Donald Trump has declared his intention to start raids against our immigrant communities.  Immigration and Customs Enforcement (“ICE”) has formulated a plan to find and deport thousands of immigrants, and announced that it will be implemented starting this weekend. 

I’ve written the detailed description below as a guide for immigrants as to their legal rights and remedies when confronted by ICE.  Para leer en espaňol: https://kpbinmigracion.blogspot.com/2019/07/conozca-sus-derechos-ante-el-servicio.html

Part 1 covers what to do if ICE comes to your home. Part 2 of this article covers what to do if ICE comes to your workplace or approaches you on the street.   Part 3 discusses what steps to take if ICE takes you into custody.

          At your house

          ICE can enter your home in three situations: (1) if they have a warrant; or (2) if you give them permission; or (3) they think there is presently a crime being committed in your home.  If ICE comes to your house and knocks on your door, you do not have to open the door or let them in. Typically, to legally enter your home, ICE must have a search warrant or arrest warrant with your name and address on it.  A warrant is an order signed by a judge to search a place and/or arrest a person. 

If ICE comes to your home, you should ask to see a warrant. ICE must show you the warrant. If the officials do not have a warrant, you do not have to let them in or speak to them at all.  However, if you give them permission to come in, then they can legally enter your home and search it.

         The right to remain silent

          Whether ICE comes to your house and knocks on your door, enters your workplace, or even questions you in jail, you have the right to remain silent.  In other words, you do not have to provide your citizenship information to Immigration Service officials. You can just indicate that you do not want to speak to them. 

          An immigration official may not request evidence of your immigration status in your home or another private place without a warrant. Even if they have a warrant, you must only provide proof of your immigration status if you are in legal status. After showing evidence of your status, you still have the right to remain silent.

         The right to speak to an attorney

         

          Once you have shown evidence of your legal status, if you have it, you do not have to talk to officers further – it is up to you. In most cases, you may be better off remaining silent and talking to a lawyer first, depending on your situation. This is your right under the law.  If the Immigration Service asks anything about your political and religious beliefs, groups you belong to or contribute to, things you have said, where you have traveled or other questions that do not seem right, you do not have to answer them.

HOW TO FIGHT YOUR DEPORTATION. Part One: What to do if you are arrested by ICE?

HOW TO FIGHT YOUR DEPORTATION.

Part One: What to do if you are arrested by ICE.

Yet again, Donald Trump has promised to start deportation raids against our immigrant communities.  It is important that people know they have the right to defend themselves and fight their deportation in court.  In many cases, it can result in an immigration judge deciding that the immigrant can stay in this country and even obtain permanent residence. However, if they accept their removal, they are typically barred from the U.S. for 10 years or more.

This series of articles will cover what an immigrant can do if they or their family member is arrested and put into deportation proceedings. 

Part 1: The Important Things to Know if you or your family member is taken by ICE.

Many people believe that if they are undocumented and arrested, then they have no choice but to go home.  That is simply not the case.  With skillful and thoughtful representation, many undocumented immigrants can successfully avoid deportation.

It is very important that undocumented immigrants and their families know what to do in this situation.  The important thing is not to sign any document which agrees to your deportation or voluntary departure.  Instead, get legal advice and it is very often the case that you can get bonded out of custody very soon.

How does one get a family member out of ICE custody once they’ve been taken? The answer to this question depends upon the situation.  The government is required to hold non-citizens in jail if they were convicted of certain very serious criminal charges.  If he was not convicted of any crime or if it was a misdemeanor crime, then usually the person can be “bonded” out of jail if the bond set by the court is paid.  The amount of the bond varies significantly depending upon the judge and the facts of the case.  The best thing is to get your relative out of jail, if you can, and then hire a lawyer to protect his rights in court. 

Even if the relative is bonded out of jail, he will be required to go to immigration court and explain to the judge will he should not be deported.  If you ignore the court case once he is bonded out, a deportation order will be issued by the court, the bond money will be lost, and he will probably lose any chance of ever becoming legal in the United States.

It is often possible to proceed with a claim for relief in court, such as cancellation of removal, asylum, adjustment of status, or other claims.  These arguments apply in many situations where the undocumented person arrested has family here legally or has been a victim of a crime, or a victim of domestic violence, or can prove that he would be harmed if he is returned to his home country. 

These will be covered in subsequent segments of this series.

UNDERSTANDING THE CHANGES DONALD TRUMP JUST PROPOSED TO ASYLUM PROCEDURE

UNDERSTANDING THE CHANGES DONALD TRUMP JUST PROPOSED TO ASYLUM PROCEDURE.  

The Trump Administration just announced its plan for new regulations to further restrict the rights of asylum seekers arriving at the U.S.-Mexico border.  These newly announced plans would further limit the legal rights of asylum seekers, accelerate their deportation procedures making it difficult for them to defend against deportation, limit their right to work while their cases go forward and charge them a fee for applying for asylum. 

Here’s a brief summary of what those new proposed changes would do: https://www.linkedin.com/pulse/understanding-changes-donald-trump-just-proposed-asylum-kerosky

(To read about what steps the Administration has taken previously to limit asylum and restrict legal immigration, and California’s efforts to fight these proposals, see: https://www.sonomacountygazette.com/sonoma-county-news/immigration-stories-by-christopher-kerosky-may-2019)

All of these changes would significantly change the asylum procedures set up 40 years ago by Congress when they passed the Refugee Act of 1980 setting up the asylum system.   

1. Limiting Options in Deportation Proceedings

Asylum seekers at the border already have to pass detailed interviews to convince a federal officer that they have a “credible fear” of persecution in their home country based on race, religion, political opinion, or social group.  Now. Trump proposes putting them into special deportation court proceedings, which would limit their options for rights to request other relief-- for example, denying them a right to stay based on marriage to a U.S. citizen.

2. Accelerating Deportation Proceedings

Trump also proposes that all asylum cases to be heard within a six-month period except in “exceptional circumstances.” The problem is that this would make it harder for asylum seekers to get a lawyer, obtain all the documents from their home country to prove their case and prepare for their deportation hearing properly. 

3. Charging a Fee to Apply for Asylum

Applying for protection has been free since ever since the Refugee Act of 1980 created the procedures almost 40 years ago. Under Trump’s new plan, asylum seekers would have to pay a fee to apply.  For people fleeing their country with little or nothing, this would cause more people to abandon their asylum claims.

4. Banning Work Authorization

Under the current rules, asylum applicants can obtain the right to work legally while they wait for a final decision on their application.  Under the new rules, most recent asylum seekers would be banned from getting work authorization. This would deny them the right to legally work while going through the asylum process. Clearly this would make it more difficult for them to survive in the U.S. while they try to prove they would be persecuted if they go back to their home country.

SEEKING ASYLUM: PART 1

The Credible Fear Process at the U.S. Border.

By Christopher Kerosky

The asylum process has received increased attention lately with the Trump Administration’s decision to separate parents from their children at the border.  But now that Donald Trump has reversed his policy, once again the spotlight has moved away from the many refugees at our border seeking asylum.

Meanwhile, this humanitarian tragedy continues.  A large number of those pursuing asylum eventually come to California and the North Bay specifically.  Beginning in the first days at the border, the Department of Homeland Security starts a lengthy process to consider any arguments and evidence the asylum applicant might have to support their claim of asylum.

I felt it would be useful to describe the process for those in the public who are interested and to provide some guidance to persons going through it.  This segment covers the first step of the process, known as the “Credible Fear Interview” (CFI).

Credible Fear Process.

A person detained at the border without proper documents to enter generally does not  have the right to stay in the United States or file an application for immigration benefits. The only exception is if that individual has “a well-founded fear of persecution based on race, religion, nationality, political opinion or social group”.   The person also needs to prove that the persecution was by the government or that the government could not stop it.

If a person at the border declares they are afraid to return, ICE will ask them some preliminary questions to determine if they are afraid and then the US asylum office will conduct a formal interview to determine if they  have "credible fear" of returning. to their country.

The purpose of the credible fear interview is to determine if there is a significant possibility that the immigrant could be eligible for asylum. During the credible fear interview, the officer will ask the asylum applicant many questions about their fear, who they are afraid of and why. 

The interview is typically conducted by the an asylum officer, often by video. A lawyer can be participate, typically by telephone.   

If the the asylum officer finds that there is not a sufficient credible fear of harm based on one of the five statutory grounds, the applicant can ask for the opportunity to appeal the ruling before an immigration court.  However, the asylum seeker will remain in custody while he or she goes through further appeals of the denial of asylum.  Typically future courts affirm the denial of credible fear and the person is ultimately deported. 

Even if the applicant is successful and convinces the asylum officer that he or she has a credible fear of persecution during the CFI interview, they are still placed in deportation proceedings before an immigration court, where they must convince a judge that their “credible fear” rises to the level of a “well-founded fear”, a higher standard of proof.  If they fail to do so, they are also deported. 

Part Two of this series will cover the asylum process before an immigration judge.

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.

************************************************************************

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.

Immigration Effects of Drugs and Alcohol: Part 1 DUIs

By Susanna Bogue, Esq.

There have been several recent developments in immigration law practice regarding the effects of being charged with driving while intoxicated which is known as driving under the influence (DUI) in California.

Many people who hold valid visas to work (including the E treaty visa, the L company transfer visa, and the H-1B professional worker visa), who have been arrested for driving under the influence are receiving letters informing them that their nonimmigrant visa has been revoked. The concept of the presumption of innocence before a conviction seems to have been abandoned for temporary work visa holders. Under the Department of State’s newly revised Foreign Affairs Manual, 9 FAM 302.2-7(B)(3) “Substance-Related Disorders under INA 212(a)(1)(A)(iii) – Alcohol and Other Non-Controlled Substances”, a visa can be revoked for “a single alcohol related arrest or conviction within the last five years; two or more alcohol related arrests or convictions within the last ten years; or if there is any other evidence to suggest an alcohol problem.”

If the visa is revoked, the person who departs the US will have to apply for a new one at their home Embassy or Consulate and after being denied the visa, will then be required to be referred to a panel physician for evaluation, after which (assuming the doctor determines there is no alcohol dependence and the person is not a probable “threat” to society) they will return to have the visa issued.

Obviously such a requirement will lead to delay in all cases involving an arrest for a DUI and in some cases the visa will not be reissued. If the visa is not issued and the DUI trial has not taken place, this leads to a further problem in that it is unlikely that a visitor visa would be issued to someone who has lived for years in the US even if the only reason for their trip is to fight the DUI. Once denied a visitor visa, most consulates will not reconsider their denial until at least a year has passed. Talk about a Catch-22!

According to immigration attorney Ellen Krengel, the panel doctor will request a CDT (carbohydrate deficient transfer) to see if there is long-term alcohol abuse in the blood which would show alcohol dependence. The panel doctor will also be asking 11 questions in the form of “Have you ever…” three of the eleven I’ve listed below. To read the complete list, they can be found in this June 5, 2015 Psychology Today article www.psychologytoday.com/blog/the-athletes-way/201506/what-are-the-eleven-symptoms-alcohol-use-disorder  

  Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.

  Important social, occupational, or recreational activities are given up or reduced because of alcohol use.

  Recurrent alcohol use in situations in which it is physically hazardous. [i.e. driving]

Someone who has recently been arrested for driving under the influence may have difficulty only answering one question with a “yes.” Ellen says the panel doctors informed a group of immigration lawyers recently that to determine Class A or B, they look for “abuse + behavior” for alcohol, and simple abuse for drugs (eliminates experimental use). If a person is determined to have a Class A medical condition, then they are ineligible for a visa. Class B determinations, while not causing ineligibility mean that the applicant may have a “serious medical condition” and might be unable to care for themselves or require extensive medical treatment or need to be institutionalized.

Note that this article is primarily covering the effects of an alcohol-related arrest for people who hold nonimmigrant (temporary) visas and who are applying for a visa outside of the US. The situation is different for permanent residents (green card holders). DUIs are not considered to be crimes of moral turpitude (CMT) and as such do not trigger removal (deportation) proceedings. 

Also, for the purposes of applying for naturalization, it is a conviction which is important, not an arrest. A conviction in California for a simple DUI normally includes a three year period of probation, during which time a person is normally not eligible to apply for naturalization. Even after the three years expire, many applications for naturalization will be denied if the most recent half of the period for good moral character (five years, or three years for spouses living with US citizens for three years) is primarily spent on probation.

Part 2 of this series will deal with the effects of marijuana use under our immigration laws.  This will be posted soon.

Why Sanctuary is Important

By Christopher A. Kerosky

[This article was published in the May issue of  SONOMA COUNTY GAZETTE]

https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-why-sanctuary-is-important-by-christopher-kerosky-may-2018

Between 2006 and 2013, hundreds of our neighbors in Sonoma County, California were arrested by our Sheriff’s Department, even though they were guilty of no serious crimes.  Some were stopped because of a traffic violation or a broken headlight.  Because they did not have a driver’s license, they were then handcuffed, jailed and detained sometimes indefinitely.  Their cars were often impounded.  In many cases, they were charged only with driving without a license or other misdemeanors; sometimes no charges were filed at all.  Yet they were not allowed to go free, even if they paid a bond.

After up to 48 hours of incarceration in our county jails, these Sonoma County residents were handed over to the Immigration and Customs Enforcement (ICE) to commence their deportation from the United States.  They were often young, sometimes students in college or even high school.  Others were young mothers or fathers, with small children at home.  Sometimes they were driving their children to school or coming home from work. 

Our Sheriff at the time claimed he had no choice under the law but to arrest, detain and transfer these neighbors of ours for deportation.  Many were removed from the U.S. as a result, leaving behind U.S.-born children, spouses and extended family.

I can tell you this happened because I represented hundreds of them in deportation court.  I saw the way this County policy devastated many families in our community.  This occurred to hundreds of thousands of immigrants in counties throughout California and across the country.

Why did this happen?  Because our County participated actively in the Secure Communities Program run by ICE back then, and now revived under Trump. 

What stops this from happening today?  Our state and county sanctuary policies. Nothing more.

Sanctuary is a good thing.

With the Trump Administration’s constant drumbeat of verbal attacks, financial sanctions and lawsuits against sanctuary communities, many in our state are questioning whether “sanctuary” is a good thing.   As someone who has seen the trauma that our prior policies caused immigrant families here, I can tell you: sanctuary is a good thing.   

It’s vital that we don’t return to the days when thousands of our state residents were rounded up and deported; to when just driving to the store or the school created serious risk for undocumented immigrants.

WHAT TO DO IF YOU ARE ARRESTED BY ICE. Part One. 

by Christopher Kerosky, Esq.

ICE has promised to target California for raids on undocumented immigrants.  It is important that people know they have the right to defend their deportation in court.  In many cases, it can result in an immigration judge deciding that the immigrant can stay in this country and even obtain permanent residence. 

I have written a series of articles about what an immigrant can do if they or their family member is arrested and put into deportation proceedings.  This is Part 1; it covers what to do after you are taken into custody by ICE, how to get out of custody and how to defend your deportation in court. 

The Important Things to Know if you or your family member is taken by ICE.

Many people believe that if they are undocumented and arrested, then they have no choice but to go home.  That is simply not the case.  With skillful and thoughtful representation, many undocumented immigrants can successfully avoid deportation.

It is very important that undocumented immigrants and their families know what to do in this situation.  The important thing is not to sign any document which agrees to your deportation or voluntary departure.  Instead, get legal advice and it is very often the case that you can get bonded out of custody very soon.

How does one get a family member out of ICE custody once they’ve been taken? The answer to this question depends upon the situation.  The government is required to hold non-citizens in jail if they were convicted of certain very serious criminal charges.  If he was not convicted of any crime or if it was a misdemeanor crime, then usually the person can be “bonded” out of jail if the bond set by the court is paid.  The amount of the bond varies significantly depending upon the judge and the facts of the case.  The best thing is to get your relative out of jail, if you can, and then hire a lawyer to protect his rights in court. 

Even if the relative is bonded out of jail, he will be required to go to immigration court and explain to the judge will he should not be deported.  If you ignore the court case once he is bonded out, a deportation order will be issued by the court, the bond money will be lost, and he will probably lose any chance of ever becoming legal in the United States.

It is often possible to proceed with a claim for relief in court, such as cancellation of removal, asylum, adjustment of status, or other claims.  These arguments apply in many situations where the undocumented person arrested has family here legally or has been a victim of a crime, or a victim of domestic violence, or can prove that he would be harmed if he is returned to his home country. 

These will be covered in subsequent segments of this series.