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.

JUDGE SAYS U.S. CANNOT JAIL ASYLUM SEEKERS INDEFINITELY

JUDGE SAYS U.S. CANNOT JAIL ASYLUM SEEKERS INDEFINITELY.  Today, a federal judge in Seattle blocked the Trump administration from denying bond hearings to asylum seekers.

US District Judge Marsha Pechman ruled that people who are detained after seeking asylum protection are entitled to bond hearings and the chance to be released from custody. "It is the finding of this Court that it is unconstitutional to deny these class members a bond hearing while they await a final determination of their asylum request," Pechman wrote.

The Justice Department announced a policy in April that some asylum seekers cannot be released on bond by immigration judge—even if they have already proven a credible fear of persecution in their home countries.  The policy would have effectively blocked immigration lawyers and immigrant rights advocates from asking judges to release detained asylum seekers on payment of a bond.

The judge ordered the Justice Department to resume bond hearings for asylum seekers within two weeks. 

DID YOUR BUSINESS GET A LETTER FROM SOCIAL SECURITY?

DID YOUR BUSINESS GET A LETTER FROM SOCIAL SECURITY?

If so, you are not the only one.

By Christopher Kerosky

This article was published in the Sonoma County Gazette this month: https://www.sonomacountygazette.com/sonoma-county-news/immigration-stories-by-christopher-kerosky-june-2019

Many North Bay businesses received a surprise in the mail recently: letters from the Social Security Administration (SSA), notifying them that certain social security numbers they reported for their employees do not match the SSA database.  This has created concern among many local employers and their workers, who fear this might be the first step toward an investigation by ICE. 

When these letters arrive, many undocumented immigrants choose to quit their jobs rather than face possible detention and deportation.

These so-called “no match” letters were common in prior administrations, but were discontinued by President Obama in 2009.  The Trump Administration announced that they have resumed the practice, sending out over 500,000 such letters since March.   Apparently, this was a result of the “Buy American, Hire American” Executive Order issued by Donald Trump earlier this year. 

Implications of getting a No-Match Letter.

No-match letters are issued when the employee’s name and Social Security number provided by the employer conflict with SSA records. According to the agency, about 10% of the over 250 million records submitted contain non-matching numbers.

This frequently happens when an undocumented worker presents a fake card to their boss because they cannot obtain actual social security cards under our federal laws.  When the employer dutifully submits the number to the government, the SSA notices the discrepancy and issues the letter.  There can be other explanations for the no-match such as typographical errors or mistakes in the SSA database.

The law is a bit unclear as to what employers are required to do in response.  SSA suggests the employer to talk with employees and attempt to resolve such discrepancies within 60 days. The SSA doesn’t require the employer to fire an employee whose number doesn’t match.  However, the Department of Homeland Security (DHS) contends the employer has the obligation to do so within a “reasonable” time period of having constructive knowledge that the employee is unauthorized to work—which may result from getting a no-match letter.  Yet it’s a violation of state and federal laws to discriminate against an employee based on nationality and wrongful termination could result in liability.

In short, each situation is different and employers must proceed carefully should they receive such an SSA letter.

Hospitality, Agricultural and Construction Industries Targeted

Those businesses most affected make up a large part of our North Bay economy: hospitality (including restaurants and hotels); agriculture (including wineries and vineyard management); and construction.  According to Sonoma County’s website, agriculture, construction and tourism make up about 20% of the county’s workforce and are major drivers of its economy. 

These are sectors of our economy that rely heavily on undocumented labor.  The United States has an estimated 7.8 million undocumented immigrants working or about 15% of the work force, according to the Pew Research Center.  But immigrants make up approximately 33% of agricultural workers, 32% of the hospitality industry, and 25% of construction workers.

It is pretty clear that these sectors of the economy have received the largest number of the “No-Match letters”.  According to the New York Times, approximately 50 growers and ag businesses in the San Joaquin Valley have received these letters recently, affecting almost 25,000 workers.  We don’t know how many County businesses who received the no-match letters, but I have talked to many local business owners that did.

Will Social Security share info with ICE?

It remains to be seen whether the SSA will communicate to ICE the names of employers or employees in response to no-match letters.  If so, this could result in audits of employers, the firing of many undocumented workers and potentially deportation proceedings against some of them.

 

Our country has long had a “Don’t Ask, Don’t Tell” attitude policy toward undocumented labor: the feds officially say it’s against the law, but they’ve intentionally looked the other way, knowing that these industries would suffer severe consequences if these laws were strictly enforced due to labor shortages. 

This may be changing now with the Trump Administration’s broad and aggressive anti-immigrant agenda.  “It’s just another tactic to further marginalize and scare our immigrant communities and their employers,” stated Congressman T.J. Cox (D.Fresno) in response to the SSA announcement. 

In fact, the only sensible solution is comprehensive immigration reform that addresses both the labor shortage in this country and the large undocumented population here.  At least for now, reform seems far away.  We’ll likely have to wait until at least 2021 for that, and maybe beyond.

Until then, employers should not be surprised if they get a letter in their mailbox from the Trump Administration. 

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   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. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 10 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

WARNING: The foregoing is a summary generally 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 before filing any application or petition.

DREAM ACT LAW PASSES HOUSE

DREAM ACT LAW PASSES HOUSE.  

Today, the House of Representatives passed the Dream and Promise Act, H.R. 6, by a vote of 237-187, pretty much along party lines. This bill would do the following:

• allow eligible young immigrants to apply for lawful permanent resident (LPR) status if they came to the United States before the age of 18 and have been in the United States for at least 4 years (this is considerably broader than DACA
• The bill provides “conditional” LPR status for up to 10 years to young immigrants who meet certain basic educational benchmarks.
• Full LPR status is made available to those who reach more advanced professional or career milestones related to education, military service, or employment history.
• The bill would also establish a path to LPR status for individuals who had, or were eligible for, Temporary Protected Status (TPS) or Deferred Enforced Departure (DED, so long as they have been here for a least 3 years.

It’s not clear at all whether this law will get sufficient votes in the Republican-controlled Senate or even be allowed for a vote by Mitch McConnell.  Trump has also promised to veto similar laws. 

A poll released this week  found overwhelming support for similar legislation in 3 battleground states.  The poll determined that  78 percent of people surveyed in Michigan, 74 percent in Colorado, and 71 percent in Pennsylvania thought the federal government should offer a path to citizenship for DACA recipients and TPS holders. 

Para leer en español: https://kpbinmigracion.blogspot.com/2019/06/daca-ley-pasa-la-camara-de.html

Sources:

https://www.washingtonpost.com/powerpost/house-poised-to-pass-immigration-bill-that-would-protect-dreamers/2019/06/04/bac5cf98-86d7-11e9-a491-25df61c78dc4_story.html?utm_term=.a38568aede14

https://www.vox.com/2019/6/4/18650672/house-democrats-dream-and-promise-act

https://thehill.com/latino/445397-immigration-bills-move-forward-amid-political-upheaval

https://www.inquirer.com/news/daca-tps-trump-immigrants-path-to-citizenship-20190528.html

A GUIDE TO OPENING A BUSINESS, Part 4: Obtaining Necessary Permits

A GUIDE TO OPENING A BUSINESS, Part 4

By Christopher A. Kerosky, Esq.

This is the fourth segment in a series of articles I’ve written on the process of starting and managing a business in California.  This is intended to provide the reader with a step-by step guide through the primary tasks necessary to legally register your business and start operations in this state.

This segment is on obtaining necessary permits to open your business..

Overview.

California requires a host of different permits for those doing business in the state.  Many new business owners are confronted with a vast array of licenses, permits and regulations that can be intimidating and confusing to anyone.  But there are resources available, especially on the internet, to help you through this process.

The most common permit required is a seller’s permit, obtained from the California Board of Equalization (BOE).  This permit allows you to do sales of goods in the state and requires your business to collect sales taxes from customers to cover any sales tax owed to the state.  The taxes are paid annually, quarterly, or monthly, depending on the business sales volume.  If you sell goods to the public, you will need a seller’s permit whether or not those goods will be taxable.  This would include any grocery stores, department stores, gift shops, convenience stores, shops of any kind with products for sale.  It also includes on-line sales located in California. 

On the other hand, services are not taxable in California and therefore businesses that only provide services are not required to obtain a seller’s permit.  This would include most architectural firms, engineers, lawyers, doctors, computer repairmen, etc.  Construction contractors who actually sell products such as custom furniture or windows and doors must charge a sales tax.

One obtains a seller’s permit by submitting the appropriate application to the Board of Equalization.  A sole proprietor or partnership use Form BOE-400-MIP; LLCs and corporations use Form BOE-400-MCO.  You can use one application to obtain a seller’s permit for all of your locations where you sell goods.

Many businesses require additional permits from the state.  For example, the state of California regulates many businesses.  Obviously many service occupations such as doctors, nurses, physical therapists, lawyers, engineers, architects and construction contractors are licensed occupations requiring certain qualifications and usually passing an examination to get a license.  Other examples of businesses which require state permits are bars and nightclubs, auto repair shops, locksmiths and waste management companies.   The federal government requires permits for such things as operating a trucking company, operating a radio or television station, manufacturing food, alcohol or drugs, or making or selling firearms.

Local governments often regulate businesses as well.  City zoning laws dictate which activities are allowed in particular locations.  If your type of business is not consistent with the zoning for the location, you will either need to get a permit known as a conditional use permit, or be granted a variance allowing you to be exempted from the zoning rules.  You should contact your city or county planning department to determine whether your business complies with local zoning.

There is one website in California which provides a comprehensive list of all the government requirements for specific businesses.  This site is a good starting place for any business to determine which permits and licenses are necessary for your type of business.  The website address is www.calgold.ca.gov.

If you are considering starting a business, I advise you to go to this site, enter your business type and location, you will be find a list (often a long list) of the licenses and permits you will need from the federal, state and local government.  The bureaucratic requirements can be somewhat overwhelming, but with some persistence, it can be done. 

Here are a few examples of the permits needed and where to get them in Sonoma County:

Building Inspection and Alteration Permits: Permits for modifying the physical space of your business,  contact County of Sonoma Department of Building Inspection

Business Property Statement: Businesses may be required to report all equipment, fixtures, supplies, and leasehold improvements held for business use based on at cost and/or value,

contact County of Sonoma Assessors Office

Business Tax Registration: All businesses are required to register for a Business Tax Registration Certificate, Contact County of Sonoma Treasurer Tax Collector

Fictitious Business Name: You must file a fictitious business name, unless you use your own personal name for the business: Contact County Clerk's Office, Treasurer-Tax Collector

Fire Department Permit: For public assemblies, garages, storage, service stations, theaters, hazardous chemicals or gases,  contact County of Sonoma Fire Department

Zoning and Planning: Your business location must be checked to determine if it is zoned for your type of business. This also applies to businesses operating from a residence,  contact County of Sonoma Planning and Zoning

Registration Form for Employers: Required to file a registration form within 15 days after paying more than $100.00 in wages to one or more employees. No distinction is made between full-time and part-time or permanent and temporary employees in meeting this requirement,  contact state Employment Development Department Employment Tax Customer Service Office

Wage/Hour Laws: Businesses with employees must comply with laws establishing minimum standards for wages, hours and working conditions,  contact State Department of Industrial Relations Labor Standards Enforcement

Workers' Compensation Information: Businesses with employees must maintain Workers' Compensation Insurance coverage on either a self-insured basis, or provided through a commercial carrier, or the State Workers' Compensation Insurance Fund,  contact State Department of Industrial Relations Division of Workers' Compensation

YESTERDAY’S APPELLATE COURT DECISION ON DACA. What does it mean for DACA recipients?

YESTERDAY’S APPELLATE COURT DECISION ON DACA. What does it mean for DACA-recipients?

Yesterday the Fourth Circuit Court of Appeals in Maryland told the Trump Administration it acted without legal basis when it sought to closed down DACA.  The Court found the Administration’s closing of the DACA program “arbitrary and capricious”.  The government failed to "give a reasoned explanation for the change in policy, particularly given the significant interests involved” states the opinion. 

To read the decision: https://www.cnn.com/2019/05/17/politics/fourth-circuit-daca/index.html. 

Here’s a summary of where DACA stands now and where things go from here:

The Fight over DACA and today’s Decision.

On September 5, 2017, Donald Trump announced the rescission of the DACA program.  Those who have DACA status were to begin to lose their status on March 5, 2018, but a San Francisco District Court judge ordered the government to continue renewals.  While that case was pending, two other federal judges issued similar injunctions against Trump.

Last year, the Administration asked the U.S. Supreme Court to expedite its review of these rulings but the Supreme Court refused.  In the meantime, the San Francisco judge’s decision was appealed to the Ninth Circuit Court of Appeals, where the Administration lost. 

Yesterday, another Circuit Court – the Fourth Circuit Court in Maryland -- ruled in favor of the DACA recipients and against the Trump Administration by a 2-1 vote. 

What does this mean for DACA?

This decision means does not have an immediate effect on the current state of DACA, except that it further frustrates Trump’s efforts to close it down. 

The Supreme Court did not consider this case during the current term, which means that the earliest it would hear arguments on the DACA law is next fall.  It is therefore unlikely a decision by the Supreme Court would be issued until next summer, during the 2020 Presidential campaign.

For now, persons who already have DACA can continue filing renewals.  We recommend that applicants do so 150 days before their DACA expires.

Unfortunately, new applicants are still not eligible. 

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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, Ukiah, Napa, Walnut Creek, San Jose and Sacramento.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 10 years, he has been honored as one of Northern California’s top lawyers by San Francisco Magazine, “Super Lawyers” edition.  Mr. Kerosky speaks English, Spanish and Polish and has also working knowledge of Russian.

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

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.