El Departamento de Seguridad Interna de Estados Unidos ha determinado que los posibles beneficiarios de esta medida deberán cumplir TODOS lo requisitos siguientes:
1. Haber nacido después del 15 de junio de 1981
2. haber ingresado a EEUU a una edad menor a 16 años
3. Haber residido continuamente en EEUU desde el 15 de junio 2007 y hasta el present y tener prueba de esa
4. Haber estado presente en EEUU el 15 de junio de 2012 y continuar en este país al momento de presentar la solicitud de“acción diferida”
5. Haber entrado al país de manera indocumentada antes del 15 de junio de 2012 o que su estatus migratorio legal haya expirado antes del 15 de junio de 2012
6. Estar estudiando, haberse graduado de una institución de educación preparatoria (high school), haber obtenido un certificado de general education (GED), o haber concluido satisfactoriamente un trabajo en la Guardia Costera o las Fuerzas Armadas de Estados Unidos.
7. No haber sido condenado por un delito grave, por ciertos delitos menores, o ser considerado amenaza para la seguridad nacional o la seguridad pública de EEUU.
KC lawyer: U.S. immigration policy helped murder my client
But in light of the recent announcement from U.S. Citizens and Immigration Services that they are proposing a rule change that would allow certain immediate relatives to apply for and process their waiver applications in the United States and the predictable media storm of alarmists decrying “amnesty” I feel compelled to explain why this regulation change is an excellent step in the right direction and how it would have saved the life of my client, Jacobo Estrada Bautista.
I have been putting off writing this since right after Thanksgiving, frankly because it is so awful that it is hard to think about.
I am sure every lawyer has some of those cases that for whatever reason stick to you and haunt you like the Ghost of Christmas Past, rattling around the office like an omnipresent reminder that we are not, in fact magicians, and, despite our best efforts, there are some things we cannot fix.
The Monday afternoon after a great Thanksgiving, I was in my office answering the slew of emails that had arrived while I was enjoying the unseasonably warm November weather at the Lake of the Ozarks with my family. The phone rang, and I saw from the caller ID that it was Tiffany, the U.S. citizen wife of a Mexican national I have been representing for the last four years in first Jacobo’s removal proceedings and second in their consular processing case for Lawful Permanent Residency through his U.S. citizen spouse of five years.
I wasn’t particularly surprised to hear from Tiffany. She and I had been speaking in the past several weeks about some of the problems we had been encountering in their case and what she and Jacobo wanted to do to try to solve those problems to move forward or if they wanted to give up on their dream of a unified family after four years of struggle, separation and seemingly insurmountable hardship.
As soon as I answered the phone, Tiffany’s voice cracked saying my name and I knew something was wrong.
What I expected to hear was that the intense stress of their situation had finally gotten to be too big of a burden and they had decided to call it quits as a couple. The strain of deportation and the process of consular processing are tremendous and, frankly, more than many families can withstand.
I always tell couples who come to me how difficult it will be, and I always recommend that this process be accompanied by on-going marital and family therapy to deal with the stress and different experiences of the process. Hardly anyone actually does it, but everyone later tells me they wish they had.
In any case, Tiffany and Jacobo were having the same problems endemic to my clients in this situation. It was exacerbated by the fact that their case had been stalled for over a year, Jacobo was entering year two of being in Mexico, because soon after Jacobo left the United States, Tiffany’s father, who was going to act as Jacobo’s co-sponsor since Tiffany did not make enough money alone to be the only sponsor, lost his job and was unemployed for an extended period of time, making his income insufficient to sign an affidavit of support.
Try as they might they could not find someone else willing to act as the co-sponsor, so they had been stalled at that point for going on two years. To add to the stress of being away from his wife and three U.S. citizen kids, Jacobo could not find work in Mexico to be able to help send much money to the U.S. to try to help his family.
Tiffany then lost her job of several years because she could not afford childcare without Jacobo and was having to take too many days off work. They lost the house they had been renting to own, and Tiffany moved out of the Kansas City area, where she and Jacobo had lived for years, back to Oklahoma with her family hoping they could help during this hard time. She also had to quit school.
So working several minimum wage jobs, raising three kids on her own, forgoing her own dreams of finishing college to be an accountant, she pushed on hoping that her dad would get back on his feet to be the co-sponsor or that she would eke out enough money to qualify on her own. But the distance was getting to them. In early November she called me to discuss realistically their options. She talked about how hard it was to be apart, how the youngest kids didn’t remember Jacobo, how they would often fight because of the distance and stress, and that Jacobo’s guilt was overwhelming. But, no matter what, he called every single night to talk to the kids before they went to bed.
We discussed the options and exactly what needed to be done to move forward. The affidavit of support was the main obstacle, but looming in the not too distant future was the waiver Jacobo would need for having lived in the United States without authorization for over one year.
Every single person who enters the United States and remains for one year or more without authorization and then departs is automatically barred from reentering for a period of 10 years. If that person has not incurred unlawful presence of over one year on more than one occasion (entered stayed for a year left and re-entered and stayed again for another year and leaves again) and that person has a “qualifying relative” (LPR or USC spouse or parent), he may be able to apply for a waiver under 212(a)(9)(B)(v) to waive that bar and return to the U.S. as a LPR.
They can obtain this waiver by proving to the satisfaction of the government that the citizen or LPR spouse or parent will suffer extreme hardship if the applicant is not given the waiver and the qualifying relative has to either stay in the U.S. without him or move to the country with the applicant. It is a monumental task and one that usually produces 30 or more hours of work and hundreds of pages of supporting evidence.
So I explained the hurdles we still had to jump. A week or so later she called to say they had decided that they were going to continue and were committed to trying to finish the process. She also had a lead on a possible alternate sponsor. She said she would call me soon with news or if the sponsor had questions about his responsibilities if he decided to do it.
So, when the phone rang, I was expecting news on the new sponsor. When her voice broke asking for me I expected to hear they were divorcing. What I got was quite different and much worse.
She said in a voice that was shaking, “I wanted to tell you right away when I found out but I didn’t want to ruin your Thanksgiving. Jacobo’s dead.” What? Wait … what? I asked her to repeat.
“He’s dead. They killed him.”
I asked her what she meant. She started crying. My stomach dropped and I felt cold. She took a breath.
“He didn’t call me for several days. He always calls. Finally his family told me that Jacobo was out in the town where they live with another family. Some men kidnapped all of them at gunpoint but later let the women go with a ransom demand of 200,000 pesos for the father of the family, and $10,000 American dollars for Jacobo.
“It was the Cartels. It is a small town, and they are everywhere, and everyone knew Jacobo had been in the U.S. for a while and had family here and everyone thought that meant he had money or access to money from his rich American family.
“They found his body and the body of the other man on Sunday a bit out of town, beaten, no shirts, no shoes, hands bound behind their backs, shot in the head. … He’s dead. I thought you should know.”
I couldn’t even make a sound, tears were choking my throat. She was crying, and I could hear the kids in the background.
“Are you sure, are you sure it was him?” I managed.
“Yes. Look on the Internet.” I Googled his name and, because Mexican media has no problem showing dead bodies on the front page, I was quickly able to find several articles with graphic pictures that clearly show his face.
I had nothing for her except to tell her I am so sorry and to cry with her for a bit.
We are more than our taxes, and our numbers and what we consume and contribute. Jacobo was a brother, and an uncle, a husband, a father, a son, a friend and a client.
Did he enter the country without a visa? Yes. Did he do it because he thought he could get a bunch of free public services, go on welfare, or get in-state tuition at the University of Kansas? Don’t be ridiculous.
Does that make him a criminal or a bad person? No, it does not; not legally and not morally. In fact he was put in removal proceedings after being the victim of a car accident. Someone else ran a light, and he went to jail. Is the blind act of making him go through all of this outside the country because that is what the rules say and there is no ability to apply any discretion or judgment worth the devastation it caused three families in two countries? I believe no.
This is why the regulation change that was proposed by USCIS is desperately needed, a great step in the right direction, but really does not go far enough.
You can find the actual Code of Federal Register Notice at https://s3.amazonaws.com/public-inspection.federalregister.gov/2012-00140.pdf
It is not “backdoor amnesty,” a term that quite frankly makes me want to scream for all its ignorance and purposeful hate-mongering. This rule gives people no new rights nor does it change any requirements for people obtaining legal status. It only changes the procedure by which immediate relatives (spouses, parents or unmarried under 21 children of U.S. citizens) go about applying for a waiver.
Here is a summary of who would potentially qualify to have their waiver adjudicated here in the U.S. prior to leaving for the consulate:
1. You must only be inadmissible because of unlawful presence of 180 or more days in the United States. If you have any other inadmissibility issue (fraud, misrepresentation, criminal, health), you are not eligible to apply here and must continue to do the whole process in your country of birth.
2. You must be an immediate relative. That is a spouse, the minor (under 21) unmarried son or daughter or the parent of a U.S. citizen. Realistically, the spouse of a U.S. citizen is going to be the category that is most helped by this change.
For waiver purposes a “qualifying relative” is only a U.S. citizen or permanent resident parent or spouse. A child is not a qualifying relative for purposes of the unlawful presence waiver. So a U.S. citizen child who is over 21 may apply for his or her parents. However, if the parents do not have either a U.S. citizen or LPR spouse or parent, they will not be eligible for a waiver.
What has not changed:
1. You must still qualify for the waiver, i.e. have the “qualifying relative,” prove exceptional and extremely unusual hardship to that qualifying relative, and show that your situation warrants a favorable exercise of discretion by the service.
2. You still have to leave the country and have an interview in the country of birth and get the visa issued there and return, making a lawful entry as a permanent resident.
3. Absolutely everything else about the process, applications, income requirements, filing fees, medical exams etc. is the same.
4. If you are not someone who is an immediate relative, you still must leave the country, so spouses and unmarried children of permanent residents, adult children of U.S. citizens, married children of U.S. citizens and their spouses and minor children and brothers and sisters and their spouses and minor children of U.S. citizens and all resident applications made on behalf of an employee by an employer may not take advantage of the new process.
Why this is good:
The time that someone is out of the country waiting on one of these waivers is the reason that most people who could apply do not. It is simply an unknown quantity that is potentially too big to risk. Best case it is six months and worst case is 10 years. When you are talking about a mother, father or child being away from his/her family that period of time is simply too long for many families to consider taking the risk. This change in procedure would encourage more people to try to legalize their status by taking some of the guesswork out of many cases. The immigrant could remain in the United States with his or her family while the waiver is being decided and only return to their countries for a brief trip. An absence of several weeks or even a month is manageable for most families. Similarly, there is a significant chance that people who are denied could be put in removal proceedings so they will have to continue with this process outside the country.
Second, adjudicating these waivers is very labor and time intensive. There are many documents that are presented and often there is one lone consular officer looking at all the waivers. The new process would mean that there are fewer resources spent shipping documents between the consult and USCIS and more workers to review the applications quickly here than there are in the consults abroad. It would expedite and streamline this process immensely saving time and money in the Department of Homeland Security and the Department of State.
Finally it promotes family unity. The family gets to stay together during the majority of the process and can leave the county knowing that they get to come back after a reasonable amount of time, rather than after months or years or not at all.
Here is the bottom line: This change in procedure would promote more people becoming legal, would waste less government money and resources in processing the applications and promotes and values family unity.
This rule would literally have saved Jacobo’s life. He would be living with his kids and wife, probably still in Kansas City getting ready to apply for citizenship. They probably wouldn’t have lost their house, and Tiffany would probably have been done with college.
That could all be speculation, but he for sure would not have had to spend two years away from his kids and wife and he certainly would not have been kidnapped by drug cartels, and shot in the head and left in a ditch.
If preserving a family is not something you can get behind because one of the members is “illegal,” maybe you can at least get behind not being murdered.
While in my opinion this new policy doesn’t go far enough, it’s a start. And we have to start somewhere.
Angela L. Williams is a solo attorney specializing in immigration law in Kansas City.
This is one of the many reasons that DOMA needs to go. This poor guy and his family do not even have the paltry defense available that a heterosexual couple would in a removal proceeding nor the option to go through either consular processing or adjustment of status because their relationship is not federally recognized.
This is outrageous and it is not the first time that a US Citizen has been mistakenly been deported because of ICE’s zeal to remove people with reckless abandon. They have no problem with railroading scared people into exile.
The Pew Hispanic Center is an Awesome resource about some real and reliable statistics on Hispanics int he United States. Check out their latest report on how Latinos feel about Obamas immigration policies.
Originally Posted and published in Missouri Lawyers Weekly on April 10, 2010
On March 31, 2010 the Supreme Court of the United States decided the Case of Padilla vs. Kentucky. It is, in this author’s opinion, a stunning opinion supporting immigrant’s rights in a time where the Comprehensive Immigration Reform debate is heating up both sides of the aisles. In a far from unanimous opinion, Justice Stevens, joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor, writes the opinion for the court. Justices Alito and Chief Justice Roberts concurred and Justices Scalia and Thomas dissented.
Padilla, the Petitioner is a Lawful Permanent Resident that had lived in the United States legally for over 40 years. He pled guilty to a drug distribution charge in Kentucky state court. This conviction made virtually immediately deportable under INA 8 USC 127 § 237(a) (2) (A) (iii) as an aggravated felon and §237 (a)(2)(B)(i) for a conviction of a controlled substance other that possession of Marijuana for personal use under 30 grams. Mr. Padilla, who had also served with Honor in the US Armed Forces during the Vietnam War, claimed during post conviction relief that he did not have constitutionally competent counsel because his counsel did not inform him of the severe consequences to his immigration status, and, in fact, erroneously advised him that “he did not need to worry about his immigration status because he had been in this country for so long.” 559 US ______(2010) at 1.
The Supreme Court of Kentucky denied Mr. Padilla’s claim of ineffective assistance of counsel stating that “the Sixth Amendment’s guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a ‘collateral’ consequence of his conviction” Id. at 2. Mr. Padilla appealed to the Supreme Court of the United States and in another surprising pro-immigrant opinion the Court agreed with Mr. Padilla, that a “constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” Id. at 2
Justice Stevens goes into a long and very detailed description of US Immigration Law over the past 90 years. He concludes with the draconian changes in the Immigration law over the past 20 years stating:
“These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id. at 6
Immigration law is far from clear, however and many experienced Immigration Practitioners would often find themselves unable to provide a clear and concrete answer about many criminal sentences and situations. The Court addressed this situation as well. In the instant case, the deportation consequences of Mr. Padilla’s guilty plea are in the plain text of the statute and could have easily been determined with even a cursory reading on the relevant statute. The Court suggests that in cases such as Padilla, the Criminal Defense attorney has a greater duty to provide clear and accurate advice on the easily determinable immigration consequences of a guilty plea. However in situations where the law is less clear “the duty of the private practitioner in such cases is more limited. Where the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 12.
In their concurrence, Justice Alito and Chief Justice Roberts agree that a defense attorney fails to meet the Strickland v. Washington, 466 US 668 (1984) standard of effectiveness if that attorney “misleads a noncitizen client regarding removal consequences of a conviction.” 559 US _______(2010) Opinion number 08-651 at 1. However they believe that the holding that a “criminal defense attorney must provide advice in this specialized area in those cases in which the law is ‘succinct and straightforward’-but not, perhaps, in other situations.” Id. at 1. The concurring opinion believes that this “halfway test” Id. at 1 is vague and may cause too much confusion and litigation. Their worry is that too often criminal offenses are not clearly enumerated within the immigration statute, as in Padilla, but rather fall under the murky and confusing waters of “crimes involving moral turpitude” or “aggravated felonies” which these Justices rightly explain encompass a dizzying array of state and federal felonies and misdemeanors that vary wildly from Circuit to Circuit. The concurrence wishes that the ruling did not require affirmative advice but simply prohibited affirmative misadvice.
Finally the dissent focuses on the fact that the Sixth Amendment only guarantees effective assistance of counsel against criminal prosecution and not to matter that are collateral. Similarly the dissent states that even affirmative misadvice on collateral matters should not renders the attorney ineffective for Sixth Amendment purposes. Justices Scalia and Thomas feel that statutory provisions would be more effective in addressing these specific concerns than a Constitutional mandate. 559 US ________(2010) Opinion 08-651.
As a practitioner of both Criminal defense and Immigration, I can relate to the complexities of this issues that have been addressed in each opinion. As a fervent supporter of Comprehensive Reform I cheer this opinion, as it is a beautiful recognition of the human rights afforded to all people, citizen or no, that are embodied in our Constitution and ideals of this country. Further, I think these three vastly differing opinions show the desperate need for Comprehensive Immigration Reform. In reading each on these opinions, there is only one thing that is universally agreed upon: Immigration Law is burdensomely complex. The complexities and problems that arise from Padilla are just the tip of a very large iceberg of complex issues that plague our current immigration system. This case only focuses on immigration consequences of criminal activity. This is just one cog in the massive amount of law that makes up this system that is so easily discussed by talking heads and pundits and understood by so few.
However, as a private practitioner who pays her own malpractice insurance, I also understand the concerns of the concurrence. It seems obvious that we should refrain from telling our clients wrong information and giving wrong advice. But requiring that criminal defense attorneys also have a duty to inform clients of immigration consequences seems like a tremendous task, especially for our already overly burdened public defender system. I can certainly empathize with the concerns expressed by the Concurrence opinion for the practitioner who has no experience in the immigration arena. This new mandate is probably pretty terrifying.
But I am not sure that the flood of litigation over the often-inscrutable immigration laws is sure to follow. The Court seems to say that if you are going to practice criminal defense and represent noncitizens then you should have a working knowledge of the clearly enumerated crimes and their consequences listed in the immigration code (there are not that many specifically enumerated) and at least a general knowledge of the less clearly defined crimes like “Crimes involving Moral Turpitude” (CIMT) or “aggravated felonies,” at lease enough to recognize a certain crime might fall into one of these nebulous categories and advise your clients that there may be consequences to their immigration status and that further advice should be obtained from someone specializing in immigration law.
The solution seems clear in the private arena, one solution to this problem of overburdening our criminal defense attorneys might be co-counseling with an immigration attorney regarding sentencing. This seems to be a common sense and simple solution to the real concerns of the Justices and those criminal defense attorneys not versed in immigration law. Telling your client there may be consequences and further more specialized advice is needed does not seem to be an undue burden nor does insisting that an immigration attorney be a part of a defense team before agreeing to representation in more serious cases. The American Immigration Lawyers Association (www.aila.org) has an extensive list of immigration practitioners all over the country that a criminal defense attorney could easily give to the client in a referral list. The solution is less clear in an already over burdened public defender system but could easily include in house continuing legal education taught by immigration practitioners or even a volunteer attorney project list of people to consult when it comes to sentencing.
Whatever the solution, I am sure this will not be the last we hear about immigration and criminal consequences. One thing is clear, the landscape and scope of our responsibilities as attorneys is growing. Criminal pleas have far-reaching consequences in many aspects of a persons life, but the consequences in the arena of immigration are particularly grave. For the Noncitizen criminal defendant it is not just a matter jail time, probation, records, voting rights, personal property or fines, it is often a matter of living in the United States or being ejected from the country, and often, family, friends, jobs, way or life with little to no possibility of returning. This is what makes this decision so important. Deportation is not collateral. It is very real and for anyone who has ever worked with people faced with deportation and the devastation it causes in a family this decision is a long time in coming.