Nao Deixe O Samba Morrer! (Don’t Let Samba Die!) Part 2 - What Now? - Immigration Planning Considerations after the Trump Election

by Gerald Nowotny
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Law Office of Gerald R. Nowotny

Overview

For many this week, the unthinkable and unexpected became a political reality with the election of Donald Trump. If anyone was wondering if the tough rhetoric during the campaign would be relaxed after the election, the selection of Senator Jeff Sessions as the next attorney general, should remove any doubt. Senator Sessions was the chief advisor to Donald Trump on immigration matters during the presidential campaign.

From an immigration standpoint, it is the worst of times for undocumented immigrants. The feeling that future immigration reform would provide a path towards legal residency suddenly seems to be slipping away. Expectedly, not-for-profit organizations dedicated to the support of immigrants see this as the beginning of the Dark Age. The expectation based upon Trump’s campaign promises suggests that the worse is yet to come.

I have to admit that I expected Hillary Clinton to win the election unless she got indicted. In my view, the FBI Director’s reopening of the investigation into her email scandal, changed the momentum of the election without any chance of reversal. The turtle suddenly passed the hare in the last ten yards of the marathon. In my view, the number of Americans who want the mass deportation of 11 million undocumented immigrants is modest at best. At the same time, the desire for deportation of undocumented immigrants with criminal records is very high.

Most Americans in my view would not object to a path towards legal residency for undocumented immigrants that includes the payment of back taxes and military service where applicable. In my view, the typical American in light of Syrian refugee crisis prefers “Juan and Maria”, the only illegal immigrants that he personally knows, instead of the Syrian refugees that he considers potential terrorists.

For the new President, the first one hundred days in office, is a sprint to implement the most important campaign promises. Immigration is at the top of the list. With the House of Representatives and Senate controlled by the Republican Party, Trump’s initiatives should not have too much difficulty becoming law. One of the immediate actions in my view will be the repeal of President’s executive order for DACA and DAPA.

President-elect Trump could rescind President Obama’s executive order for Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) on Day 1 of his Presidency placing approximately 700,00 back into unlawful status. Furthermore, the Government can use the information that DACA and DAPA recipients provided to find you and commence the removal process.

This article is designed to outline a few of the possible remedies that exist for undocumented individuals. I believe the proposed Trump immigration agenda forces a change in the traditional thinking of immigration attorneys which suggests that an attorney should never do anything to jeopardize his client’s status and freedom. In the emerging environment, it makes sense for undocumented immigrants to seize the initiative and go on the offensive by pursing existing remedies that can provide potential immigration benefits while providing a “Stay” against possible removal proceedings.

Option 1- Marriage to a U.S. Citizen or Permanent Resident

A bona fide marriage with a U.S. Citizen makes the undocumented immigrant an “immediate relative” under U.S. immigration law. An immediate relative is eligible for a Green Card as soon as the application process is completed. An undocumented immigrant who entered the U.S. without inspection will require a legal waiver for unlawful presence (Form I-601A). Someone who overstayed a visa is not subject to the requirement for a legal waiver.

Marriage to a permanent resident does not qualify as an immediate relative but rather falls into to Category F2A. The Department of State priority date for Category F2A is January 22, 2015 which means that that a permanent resident who applied for the spouse on January 22, 2015 may adjust for the immigrant spouse in November, 2016, a wait of approximately of twenty two months.

Option 2 – Adjustment of Status under INA 245(i)

An undocumented immigrant that entered into the U.S. without inspection such as crossing the Mexican border may be able to adjust to permanent resident status under INA 245(i). In order to qualify for adjustment under INA 245(i), the immigrant would have needed; (1) An employer or family member to have filed an immigrant visa petition or labor certification on the immigrant’s behalf before Jan 14, 1998 0r (2) An employer or family member filed an visa petition or labor certification on the immigrant’s behalf between January 14, 1998-April 21, 2001 along with proof of physical presence in the U.S. on December 21, 2000.

Getting married to a lawful permanent U.S. resident (rather than a citizen) will also technically make you eligible for a U.S. green card, but because you face a long wait before a visa becomes available to you, your chances of adjusting status are even less (unless you fit one of the two 245(i): exceptions described above).

Option 3 – U.S. Military Service

This may be an uncommon option. Nevertheless, undocumented immigrants who have served in the Gulf War and the War in Iraq and Afghanistan may become U.S. citizens without first becoming U.S. residents. Approximately 53,000 immigrants since September 11th have taken advantage of the opportunity were eligible for naturalization under the special wartime naturalization act. This provision would also include military members with DACA.

Option 4 Cancellation of Removal

This remedy for non-residents against removal is frequently known as the ten-year law by immigrants. It is only available if the immigrant is in removal proceedings. The favorable result is a Green Card. The immigrant must prove that physical presence in the United States for at least ten years; good moral character during those ten years; and a demonstration that removal in “exceptional and extremely unusual hardship” to a U.S. citizen spouse, parent or child or permanent resident. This legal threshold is extremely difficult to meet. The Executive Office for Immigration Review (“EOIR”) has interpreted the law to require that only 4,000 people can be granted suspension of deportation or cancellation of removal each fiscal year. That means that if 5 million immigrants are eligible for Cancellation of Removal, less than a tenth of one percent can receive Cancellation of Removal assuming that they all qualify based on the other requirements. Good luck!

Cancellation of removal would allow a permanent resident to retain their Green Card. The requirements are different than those for the non-resident. The resident must prove lawful permanent residency for the last five years and continuous presence in the U.S. for the last seven years. The resident must not have been convicted of an aggravated felony and must not have received a grant under older versions such as 212(c) relief and suspension of deportation. The immigrant must prove that physical presence in the United States for at least ten years; good moral character during those ten years; and a demonstration that removal in “exceptional and extremely unusual hardship” to a U.S. citizen spouse, parent or child or permanent resident. A favorable result allows the resident to retain their permanent residence status.

Option 4 – Asylum, Withholding of Removal and Convention against Torture

An immigrant can apply for the right to remain in the United States by qualifying for asylum. However, the petition must have been made within of one year of entry into the United States. The petitioner must demonstrate past persecution or fear of future persecution in the immigrant’s home country based on race, religion, nationality, political opinion or membership in a particular social group. A grant of asylum results in a Green Card one year after approval and citizenship four years after receiving the Green Card.

Asylum as a remedy for removable may not be an option for immigrants that are outside of the one-year filing window for asylum. Withholding of Removal (WOR) is a second remedy option. However, it has some important differences than asylum. First, a favorable grant of WOR does not provide permanent residency. WOR has the same enumerated grounds for persecution as asylum (race, religion, nationality, political opinion and membership in a particular social group). However, the standard for WOR is much higher than asylum. The petitioner must demonstrate to the immigration judge that there is a “clear probability” or “more likely than not,” that the petitioner would be persecuted if returned to the home country. This is a probability of more than fifty percent chance. The legal standard for asylum is a “reasonable possibility” or ten percent chance of persecution of returning to the home country.

Asylum allows a petitioner to include family members as derivative beneficiaries whereas WOR requires each family member to be able to demonstrate a fear of persecution personally. WOR is mandatory for the immigration judge is the petitioner meets the requirements whereas the immigration has discretion in regard to a grant of asylum.

WOR also provides an exception to the bar on asylum for petitioners convicted of an aggravated felonies. Examples of aggravated felonies include a conviction of drug trafficking, document fraud with a sentence of at least one year imposed, alien smuggling, a crime of violence or theft or burglary with a sentence of at least one year imposed, child molestation, money laundering and murder.

The Convention against Torture (CAT) provides protection from removal for individuals fearing torture in their home country who do not qualify for asylum or for WOR. To qualify for relief under CAT, the applicant must establish that it is “more likely than not that he or she would be tortured” if removed to the proposed country of removal.”

The applicant is not required to show a nexus: unlike with asylum or withholding of removal, the torture that the applicant fears does not need to be inflicted on account of race, religion, nationality, political opinion, or membership in a particular social group. Instead, protection under CAT focuses on the nature, purpose, and agent of the feared torture.

Option 5 – Temporary Protected Status

If you come from a country that has recently had a civil war, environmental or natural disaster, or other trouble that makes it unsafe for its citizens to return there, the United States may offer what’s known as Temporary Protected Status or “TPS.” The current Latin American countries on the list include, Nicaragua, Honduras, El Salvador, and Haiti. Brazil is not currently on the list as well as Venezuela. TPS is) not a Green Card nor does it lead to a Green Card. However, TPS allows an immigrant to stay in the United States for a set period of time (maximum of 18 months subject to extension of TPS status).

Option 6 – Prosecutorial Discretion

Prosecutorial Discretion is a form of deferred action granted by DHS. The grant of deferred action by United States Citizens and Immigration Services (USCIS) does not confer lawful immigration status or alter the person’s existing immigration status. In many cases, all that such a grant will do is provide a reprieve of indefinite duration from adverse action. For example, if ICE agrees not to place a client in removal proceedings, this does not give the individual any different status than that which she previously had.

Nevertheless, an individual with deferred action may apply for an Employment Authorization Document (EAD) if she can establish an economic necessity for employment. 8 C.F.R. § 274(a).12(c)(14). Thus, it can be a significant benefit to a person without other options for relief. DHS issued an enforcement memorandum on November 20, 2014, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,”

The memo established three priority categories for removal. Priority 1 threats represent threats to national security, border security, and public safety. Priority 2 related to misdemeanants and new immigration violators. The accumulation of three misdemeanors other than traffic violations would constitute Priority 2 status.  Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014.

Traditional thinking within immigration practice has been not to place an undocumented client at risk for removal. However, in the current political environment, the ability to remain in the shadows from Immigration and Customs Enforcement (ICE) may be short-lived as immigration reform looms beyond the presidential election. Some attorneys have taken steps to attempt to place clients that would be good candidates for Prosecutorial Discretion, i.e. they are not Priority 1, Priority 2, or Priority 3, designees under the DHS guidelines, for Prosecutorial Discretion. In some cases, attorneys have filed frivolous applications for immigrations benefits such as asylum knowing that their clients would not be granted benefits, solely for the hope that ICE would issue a Notice to Appear (NTA) for immigration court commence deportation proceedings.

Summary

In my view the current political environment does not favor a “do nothing” approach for undocumented immigrants or visa overstays in view of potential immigration reform. The Trump victory and appointment of an anti-immigrant attorney general suggests that the president-elect will not moderate his commitment towards much tougher immigration policy. It also suggests to me that anyone with existing deportation orders also faces renewed risks. Additionally, I am less certain than I was before the election, that the Republican controlled Congress and Senate, will provide a path towards residency and citizenship. In my view the new administration will lean very hard on employers who hire illegal workers making it more difficult for immigrants to find work.

In my view, immigrants out of status need to identify any potential remedy against removal or pathway to residency. The immigration courts in many large metropolitan areas already face significant backloads. An asylum case can take 3-5 years for the case in chief along with appeals. My estimate that the problem of court backlogs is likely to become significantly worse very quickly. When you consider the availability of employment authorization during this process, immigration remedies such as asylum, withholding of removal and CAT, may have the alterative effect of providing legal work authorization and a stay of removal. In the midst of the backlog, U.S. citizen children may reach their twenty first birthday and become eligible in order to sponsor their out-of-status parents.

Nao deixe o Samba Morrer, is a reminder to the immigrant in illegal status, to not let their American Dream die.  Seize the initiative to explore the options as the tide of immigration reform rolls in.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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