Tuesday, July 27, 2010

How Criminal Lawyers and Immigration Lawyers Differ

As an immigration lawyer, you have to think about the immigration consequences of everything. This includes traffic violations.

Hypothetically, let's say you have a client charged with driving without a license. He has no immigration status, so he can't get a license. This is his second offense.

In Virginia, this would be a class 1 misdemeanor, punishable with up to 1 year in jail and/or a $2500 fine. The offense itself does not require that the person know that he had no valid license. This means that the conviction in and of itself would not have immigration consequences.

Now, let's say the prosecutor offers a 30 day sentence with 25 days suspended. The jail counts a day and a night as separate days. Client could serve the whole sentence in a weekend by reporting Friday afternoon. Most criminal defense attorneys would find that a good deal.

But, here's where an immigration attorney differs. I would see my client going into jail, being put in a computer system. ICE would pick that up, and could possibly put a detainer on him for being present without status. Thus, even though the offense itself may not have immigration consequences, the fact that he goes to jail and is put in a system could have immigration consequences. In this situation, my judgment is to advise taking the fine, even if it is $2500, and walking out of the courthouse free, to avoid any jail time and the risk that ICE starts removal proceedings.

Bottom line is that sometimes an immigration attorney will see it better to reject what a criminal attorney would think is a good deal, in order to avoid the opening of removal proceedings.

Thursday, July 15, 2010

New US Citizen!

Congratluations to one of the newest citizens of the United States, my friend and client, Pam Berrios!

Tuesday, July 6, 2010

H-1B Visas Still Available for Fiscal Year 2011

As of June 25, 2010, 23,500 H-1B visa petitions had been filed for fiscal year 2011. There is an annual cap of 65,000 visa. That means that over 40,000 H-1B visas for fiscal year 2011 remain.

Also, 20,000 H-1B visas are available every year for foreigners who hold a masters degree or higher from a U.S. institution. As of June 25, only 10,000 petitions from this category had been filed. Thus, 10,000 H-1B visas for foreigners holding a U.S. master's degree or higher remain.

H-1B specialty worker visas, therefore, remain available. Specialty workers generally are workers in a profession requiring a bachelor's degree or higher. The fiscal year starts on October 1, 2010.

The Federal Government Sues Arizona

The Federal Government filed a lawsuit against Arizona over its law requiring police to inquire into the immigration status of a person if the police have a reasonable suspicion that the person is an illegal immigrant. The lawsuit contends that the Arizona law has been pre-empted by the comprehensive set of immigration laws promulgated by Congress.

In my humble opinion, I do not think the Arizona law can withstand a challenge from the Federal Government. The reason is that the Constitution clearly makes immigration a federal issue. In fact, immigration has to be a federal issue. The country simply cannot have one set of immigration rules at work in Arizona, and another set in place in Nebraska. Immigration must be a unified national policy.

The pre-emption doctrine provides that where a subject is within the authority of the Federal Government, and Congress has occupied the field by passing a comprehensive legal framework, states are not free to adopt their own laws on the subject. There is a comprehensive legal framework in place. The Department of Homeland Security is clearly tasked with enforcing U.S. immigration laws. The Constitution provides that the laws passed by Congress are the Supreme Law of the Land. Therefore, I do not believe that there is any room for the states to adopt their own immigration rules.

Interestingly, this is the same issue that led to our civil war; namely whether a state can trump the Federal Government by passing its own law that is inconsistent with Federal law. Just as the South was wrong then, Arizona is wrong now.

Saturday, July 3, 2010

A City on a Hill

On this Fourth of July weekend, we celebrate the freedoms many of us take for granted. I am sure that when the Founding Fathers met in the sweltering heat of Philadelphia in 1776, they had no idea that what they started would be the creation of a beacon that would draw pople from all over the world. People flock to the United States to this day because of our freedom, and the opportunities we have.

It is fitting, then, to contemplate immigration reform. The president gace a speech on the issue two days ago. While I am generally not a fan of this president, there are some things I must agree with him about. Namely, that our immigration system is broken and is in need of reform.

A few years ago, I was in the camp of enforcement only, and strengthening the security of our borders. I still believe strongly in strengthening our borders. But, I have seen how the enforcement only approach has simply failed, and created an inhumane and intolerable situation.

The problem with enforcement only is tat it requires a huge amount of resources to implement. You need money for more courts and judges. You need money for more ICE officers. You need money for more goverment lawyers. You need money for more detention facilities. You need money to care for those who are held in detention awaiting a hearing.

Yet, we have not had the forethought to pure the money into the system. What is the result? People charged with immigration violations are being crowded into jails awaiting hearings. Sometimes, with the hge backlog of cases, they find themselves waiting years for a hearing. Worse yet, these people, who may have already served time for various minor crimes, and who are only awaiting a hearing for alleged immigration violations, find themselves mixed in with the general population of some of the most violent criminals.

The strain on the immigration court system is great. The judges' docket is packed. The government attorneys are overworked. In many instances, when the person has a claim under the law for relief, it is not unusual to have to wait two years for a hearing.

Money has not been put into the system to care for those who are in detention. Detainees sometimes lack even rudimentary health care. Plus, the system creates incentives for those in charge of the detention to develop a cold and callous attitude towards detainees. There are stories of detainees who complain of health issues, only to have ICE officers use that to pressure them to give up their case, and just accept going back to their home countries. There was one story from two years ago where the ICE officers refused to believe a man from Hong Kong of his incredible pain. Not until his family was able to get a court order was he able to get a medical exam. By then, it was discovered that this man had cancer, and the delay in treatment only served to allow the cancer to spread through his body.

This is the result of our enforcement only policy. This is why, as a human being, I can no longer support enforcement only. Yes, tose who broke the law should not be able to benefit by that. But, the reality is, the problem is just far too big to solve simply by enforcement only. If our elected officials are not going to have the political strength to dedicate the resources necessary to implement the enforcement only approach in a human e fashion, he we have to address those who are here, and do it in a fair way.

This country should continue to the a beacon for the world. As my favorite president, Ronald Reagan, described, we should be a city on a hill, an example of freedom and self-government for the whole world to admire. And we should lead by example, showing that we can deal with our immgiration problems fairly, but with compassion.