The calls began coming in early this morning. It’s scary to be an immigrant, especially one who came here illegally. Now, with the campaign rhetoric of President-elect Trump, people are terrified. In the past months, I’ve sat down with hundreds of undocumented immigrants who have expressed concern and fear of what a Trump administration will mean for their families. Now that it’s here, the next commander-in-chief has promised to take the country in a completely new direction.
While the new administration has promised to take actions that will certainly hurt many of my clients, I propose that much, but not all, will continue under the already-strict status quo. Among the promises made by President-elect Trump during his campaign, here are four of the most concerning to the immigrant community:
In order to accomplish these goals, President-elect Trump stated he will triple the number of ICE (Immigration and Customs Enforcement) officers and make Mexico pay for the wall.
While so many of my clients are terrified of a Trump presidency and what it may mean for their processes already under way, there are many things that limit President-elect Trump’s ability to perform his promises.
First, as to deporting all criminal aliens, I just finished a hearing in the Las Vegas Immigration Court via telephonic appearance and I’m scheduled for another in Salt Lake this afternoon. The current administration is aggressively seeking to deport all criminal aliens. This isn’t new. President-elect Trump’s campaign promise would likely maintain the actions of the current administration.
Furthermore, as the fourteenth amendment to the U.S. Constitution reads, no state shall “…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” As the Supreme Court ruled in Zadvydas v. Davis, 533 U.S. 678, 693 (2001), (and its predecessors) the right of due process and equal protection extends to individuals who are not present in the United States legally.
This means that for aliens who are within the United States already (not those who have recently crossed or who are caught at the border), they must be given their day in court. Very few exceptions to this apply, such as if an alien has already been given his day in court, been deported, and returned illegally.
Therefore, if President-elect Trump plans to deport all criminal aliens, he must do so through the court systems which already have an incredible backlog. The Obama Administration has aggressively sought to deport aliens with criminal histories. As a result, the courts are packed. While the Executive Office for Immigration Review (EOIR) under the Department of Justice continues hiring new judges, I have cases scheduled for hearings as far out as 2019 in some courts.
In Immigration Court, an alien, having the right of due process, has the right to present any form of relief for which he may qualify. Common forms of relief are Cancellation of Removal, Asylum, Withholding of Removal, Protection under the Convention Against Torture, Adjustment of Status, and Voluntary Departure, to name a few. These are processes that were created by congress and cannot, therefore, be revoked by the sole authority of a president. He will not, therefore, be able to deport all criminal aliens on day one of his presidency.
Notwithstanding, pursuant to Immigration and Nationality Act (INA) 212(a)(6)(A)(i) … “An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.” This means that you don’t have to be a criminal to be deported. Under current law, if you are in the U.S. illegally, you may be deported solely because you are here illegally. Under the Obama Administration, discretion has been largely exercised to avoid deportation of those present illegally who are not criminals or recent arrivals (see blog post from 04/06/2016 “What are the Chances I Will be Deported?”). However, this is a discretionary measure and is subject to the administration in charge. Therefore, if Trump wished, and if he had the resources (which he doesn’t yet) he could commence removal proceedings against anyone in the US illegally. Notwithstanding, these proceedings would be governed by a right of due process as mentioned above.
The bad part is that the new administration may be less willing to exercise what we call “prosecutorial discretion.” This is when a case in removal proceedings is deemed not to be a priority for removal and, therefore, the case is closed. This is happening less and less now as ICE is arresting people based on their priorities. If these priorities change, it may subject many more individuals to immigration court removal proceedings and cause many closed cases to be reopened.
Second, President-elect Trump promised to deport immediately all those crossing the border illegally. However, most people crossing the border (at least the ones that contact my office) come because they are fleeing for their lives and seeking our protection. Every alien has a protected interest, whether statutory or constitutional, to apply for asylum or withholding Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). This has been upheld by many courts and established by statute. See also INA 208, 8 USC 1158, 8 CFR 1240.11(c)(1), 1240.33(a), 1240.49(c)(2).
Therefore, President-elect Trump, acting without congress, cannot overturn these statutes and court precedent. Those apprehended at the border will continue to have a right to apply for asylum and withholding just as they do now.
Unfortunately, under the current administration, detention of families and other asylum seekers in horrible ice-cold facilities has become the norm. They are often detained for weeks on end awaiting an interview to establish basic eligibility to apply for asylum. The conditions of these detention facilities are inhumane as established by the recent release (for the first time) of pictures of the facilities and their occupants (https://www.rt.com/usa/356548-border-patrol-detention-photos/).
The current administration has established these practices and they are likely to continue with the next.
Third, as to DACA, thousands upon thousands of undocumented immigrants who were brought here as children were beneficiaries of the DACA program which gave work permits to individuals who 1- arrived in the United States prior to their 16th birthday, 2- were born on or after June 16, 1981, 3- have been present continuously since June 15, 2007, 4- were here on June 15, 2012, 5- were in school or graduated, and 6- had no serious criminal history (EX- A DUI would disqualify an applicant). Individuals who fell under those requirements were given a two-year work permit and could then renew that work permit indefinitely.
Together with DACA, applicants could apply for “advanced parole” which is essentially a permission to travel abroad and return to the United States for humanitarian reasons like to visit a sick family member. After a DACA recipient is paroled into the country, they have a “legal entry” and, if they have a family member that can petition for their status, they could obtain permanent residency without having to consular process (that’s a big deal, saving immigrants years of application time and thousands of dollars).
DACA is a discretionary measure. It is not explicitly established by Congress but rather as a general exercise of discretion given to the Executive Branch by the Legislative. Therefore, should President-elect Trump decide to revoke DACA, he could do so and this relief many have relied upon would disappear.
Fourth, the wall. Walls divide. They are often synonymous with exclusion, elitism, and oppression. Throughout history we have seen devastating effects of walls raised by tyrants to suppress. Why then, would a wall at the U.S.-Mexico border be erected? Like everything, including presidential poll numbers, it’s more complicated than seen on TV.
As an immigration lawyer who practices mainly immigration removal defense, I advocate for more protection at the border. The part I love about my job is helping families stay together, but losing a case and explaining to a family that their loved one will not be able to live with them anymore is heart-wrenching. I dread those conversations more than anything else.
I enjoy what I do and I love the people for whom I work. However, there is a major problem at the border and increased security is a key part of the solution.
A person goes missing at the border, and I’m one of the first people the family calls to help locate their loved one. I call ICE, I check their online detainee locator, and often find the person in immigration custody, but only after days of their family not knowing where they are (how terrifying!).
As stated above, most of the people who come across illegally who contact my office are running from life-threatening conditions in their home country. However, in order to make it to the safety of the United States, they often pay a human smuggler called a “Coyote” upwards of $5,000, borrowed from family in the United States.
Coyotes are outlaws. They make their living charging exorbitant rates (Higher than my attorney fees) smuggling people into the country. It’s now common for family members to tell me their loved one was held for ransom when coming over, sexually assaulted, used as a drug carrier, or even at times, abandoned to die at the first sign of ICE.
These smugglers and the horrible acts they commit against those seeking protection in the United States must be stopped. Their abuses are unconscionable.
Therefore, I support stronger border protection, even if in the form of a wall. You can never stop all smuggling activity, but you can deter and remove the incentive. If it becomes much more difficult for smugglers, fewer and fewer of them will be able to abuse those who come to the United States seeking safety.
As an immigration advocate, I believe our focus should be not on fighting additional security at the border or a wall, but on fighting to protect the ability of an individual to approach our border and say “I need your help!” I pray we never lose sight of the obligations that come with being part of this great land and that we protect the ability of those seeking our protection in the United States.
Protect the border, and open legal points of entry to those in need.
Finally, this is only a basic summary of my opinions and predictions, not legal advice. Nothing is settled until it is actually signed into effect. So, it is impossible to know exactly what will happen under the upcoming administration.
If you are worried about your immigration status, please call me. I’d be happy to explain to you how current laws effect your specific situation, free of charge.
Something big happened today in the immigration realm. I’m surprised none of the major news outlets have yet covered it. It will help thousands upon thousands to gain permanent residency in the USA.
The change involves those who can apply for the provisional waiver of inadmissibility. Effective August 29, 2016, the provisional waiver (Form I-601A) can be filed not only by immigrants who entered the been in the country illegally for over a year and are married to a US citizen, but now those who are married to Lawful Permanent Residents (LPRs) OR have a LPR or USC parent can now apply as well.
To explain why this is a big deal, let’s say, Jim, an immigrant from Brazil, came to the US illegally in 2002. He married Martha, an immigrant who came to the United States in 2009 and became a permanent resident in 2015 through a petition from her US citizen father. Martha has only been an LPR for one year and, therefore, cannot file for citizenship for another four years.
Martha can file a Form I-130 for her husband Jim, but Jim has a problem. After the I-130 he is barred from taking the next step toward LPR status. Jim has been in the US illegally since 2002. That means, if he leaves the United States, he will be subject to the ten-year penalty (see my blog post from 9/15/2015).
In order for Jim to become an LPR and get his green card, before today, he would have had to get an appointment at the consulate in Brazil, go to the appointment, get denied because of the ten-year penalty, and then file a waiver while stuck in Brazil. Jim would have been in Brazil for about a year, if everything went well.
With the changes coming next month, however, Jim can get a provisional waiver through his wife, which means that he can file the waiver here in the United States before going to the consulate in Brazil and getting denied there. That makes a huge difference. If Jim had a parent that was an LPR or USC, he could also get a waiver through them.
You see, these waivers are based on extreme hardship to the family in the alien’s absence. By not allowing the provisional waiver in these circumstances prior to now, the government was essentially telling immigrants they need to go out of the country and then prove your family is suffering without you in order for you to come back. Really messed up, right? Now, if they can prove their family would suffer in their hypothetical absence, they can avoid the mess. Jim still has to leave the country for a consulate interview in Brazil. However, if everything goes smooth, he’ll be out of the country for a few weeks rather than a year.
There are a few other changes in the new policy- the biggest is the ability of someone who has been deported, and then returned illegally, to file an I-212 while in the United States and then file for a I-601A if married to an LPR or USC. That’s a huge change. Huge.
Read the official final rule here: https://www.federalregister.gov/articles/2016/07/29/2016-17934/expansion-of-provisional-unlawful-presence-waivers-of-inadmissibility
As always, this is just a brief summary- if you think it may apply to you, call me! We do a LOT of waivers- my wife’s company does them for attorneys all over the country (my601waivers.com).
One of the most common questions asked by my immigration clients with some criminal history is: “but I already paid the fines and took care of those cases, they are closed. Why should that affect me now?”
Unfortunately, even if you have complied with what the state required of you, there are often immigration consequences to the criminal convictions after the fact.
This becomes especially confusing when talking about a plea in abeyance. In Utah, a plea in abeyance is essentially an agreement wherein a defendant pleads guilty, but no conviction is officially entered. Instead, the defendant is given probation, fines, classes, etc. If the defendant successfully completes the court orders, then the court record shows the case as dismissed.
But not so fast… when we go over to the immigration side of things, even though the state records may say the case was dismissed, in the immigration realm, if the conviction is dismissed for rehabilitative events (like a plea in abeyance) or for immigration hardship, then the conviction is still counted as a conviction in immigration court (See Pickering v. Gonzales 465 F.3d 263 (6th Cir. 2006).
Even if a person does not admit guilt, but pleads no contest, if there is an accompanying punishment, like a fine, restraint on liberty, classes, etc., then it is likely going to be considered a conviction in immigration court. See Immigration and Nationality Act (INA) Section 101(a)(48)(A).
Now, why does all this matter? First, criminal convictions are a huge part of the way the Department of Homeland Security chooses their enforcement priorities. For more information about this see my blog post: What are the chances I will be deported?
To further illustrate the importance, let’s say Bob is a permanent resident of the United States (he has a green card but isn’t a citizen. Bob one day forgets to pay for his big gulp and walks out of the store. The police are called and he gets a charge for retail theft. Bob’s attorney tells him that if he is willing to do community service, then the case will be dismissed. He does the community service and the case is dismissed. The next year, Bob is trying on sunglasses. While trying them on, he leaves a pair on his forehead and walks out. This time he pleads no contest and pays a fine. Two weeks later immigration agents come to Bob’s home, arrest him, and put him in immigration jail. Bob has committed two crimes involving moral turpitude and, even though one was “dismissed” and he never admitted guilt to the second, both are counted as convictions and per INA Section 237(a)(2)(A)(ii) “Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct… is deportable. Please note, INA 237 applies only to aliens legally admitted. For those who are not legally admitted, see INA 212.
Bob may present certain defenses in immigration court, like cancellation of removal for certain permanent residents, but it will be a long, costly, battle. He will first try to get out of immigration jail by requesting a bond, but he will likely be in jail a matter of weeks, or more.
Next, let’s look at the example of Ricky, a hypothetical client in the United States without permission. Ricky has lived in the United States since 1992. He has four children born here. His wife is not a U.S. Citizen. In 1999, Ricky was convicted of a DUI. In 2009, Ricky retained counsel and received an expungement. In 2016, immigration agents come to his home and arrest him. He is now in jail waiting for a hearing for his bond.
The expungement Ricky had does not help in immigration court. His 1999 DUI is still counted as a DUI and immigration decides to hold him without bond until the immigration judge decides differently.
If you have prior criminal history, certain post-conviction remedies do exist to help those in immigration court, however, they must not be deemed as rehabilitative in nature, as are expungements or pleas in abeyance. Instead, it must be because of a legal defect. See Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006). This means that the order from the judge removing or lowering the conviction must show that it is being done because of a constitutional or procedural violations. It cannot be simply for rehabilitative purposes or because of good behavior. This becomes essential when, as immigration lawyers in Utah will explain, a reduction of a conviction is done under Utah Code 76-3-402. It must be under subsection 76-3-402(1). Reductions under 76-3-402(2) may be disregarded by the immigration court and the entire original conviction admitted and used by the Department of Homeland Security to argue for deportation.
As you can see, the intersection between criminal and immigration is extremely complicated. If you are an immigrant and have committed a crime, you should seek out the advice of an experienced immigration attorney who can guide you based on your specific situation.
As you have seen in previous posts, or through your personal experience, obtaining legal status in the United States can be complicated.
Today, I want to walk you through the basics of the family-sponsored preference system. If you are a citizen or permanent resident (Green Card) of the United States, you may petition to help your family members obtain permanent residency. However, there are a lot of rules governing who can petition and how long it will take.
If you are classified as an “Immediate Relative,” which means the spouse of a US citizen, parents of a US citizen, or unmarried child of a US citizen, then the family-sponsored preference system does not apply to you. The petition can go through very “quickly” meaning that if your family member is already in the United States and entered legally, they can become a permanent resident (Green Card holder) within about six months. (if the family member came in illegally, see my blog post about waivers from 9/15/2015).
However, if the family member is not categorized as an “Immediate Relative” then you go into the family-sponsored preference system. This means that you are on a wait list until your turn for permanent residency.
Here are the family-sponsored preferences:
(F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.:
(F2A) Spouses and Children of Permanent Residents (Green Card holders): 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
(F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents (Green Card holders): 23% of the overall second preference limitation.
(F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
(F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
As you may have noticed, there are some groups of people left out- for example, permanent residents (Green Card holders) cannot petition for their parents, nor can they petition for their children if they are married or their brothers or sisters. To do this, one must be a US citizen.
The United States only allows a fixed number of permanent residents into the United States each year from each country. Therefore, if there are a lot of people coming from your country to the United States under the family-sponsored preferences, there may be a large backlog. This has resulted in special wait-lists for China, India, Mexico, and the Philippines, who all have longer wait lists than other countries.
Each month, the Department of Homeland Security posts a new visa bulletin showing who’s turn it is to become a permanent resident and receive their green card.
Here is the bulletin posted for May, 2016:
Here, you’ll see that if you are from the Philippines and your US citizen brother or sister petitioned for you on October 1, 1992, you are just now able to receive your Green Card, eleven years longer than the normal thirteen-year wait! Twenty-four years waiting for a Green Card!
Another anomaly that frequently confuses my clients is the difference between category F1 (unmarried sons and daughters of US Citizens) and F2B (unmarried sons and daughters (21 years or older) of permanent residents (Green Card holders). One would imagine that as a citizen, the petition would be faster. However, it is about a year faster for permanent residents to petition for their unmarried children over 21 than for citizens to petition for their sons and daughters over 21!
There are many ways to work with these petitions, making the right decision can save years waiting. For example, the Child Status Protection Act, which allows someone to turn 21 and still come in as if they were under 21 if the petitioner is a citizen and the application is filed prior to their 21st birthday.
This is a brief summary only. It is highly recommended that anyone trying to obtain a Green Card contact an attorney to see which way is the best for their specific situation.
Living in the United States without legal status has never been more stressful. Immigration and Customs Enforcement (ICE) has regularly been visiting homes of undocumented immigrants, arresting them, and attempting to deport them to their home countries.
The calls keep rolling into my office from voices nervously asking the question “What are the chances that ICE will come looking for me?
On November 20, 2014 the Department of Homeland Security published a memorandum called “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.” You can read the full memorandum here:
Basically, the Department of Homeland Security states that if you are not in one of three Enforcement Priorities, they won’t likely touch you. These priorities are:
While these priorities do NOT include an offender with a single DUI, we have seen time and time again the ICE has arrested undocumented immigrants with just one DUI convictions.
For those who do fall into one of these priorities, there may be many things you can do to reduce the chances of being arrested by ICE. The best ways to remove yourself from the ICE priority list is to
On March 25th, 1810 Thomas Tustin entered the world in Worcester, England. His birth certificate is a single line in the local leger which reads “[March] 25th, Thomas Tustin illegitimate Son of Mary Tustin.” Of his five siblings, he was the only to carry his mother’s name, as he was the only born out of wedlock. His parents married just nine months after his birth, on December 9, 1810. Though he carried his mother’s name, he reverted to his father’s name, “Haynes” from time to time.
Thomas was described as having a “fresh freckled complexion, dark hair, an oval face, gray eyes, small mouth and large chin." He had two tattoos, one on his right arm and another on the left.
At age 23, Thomas married Sarah Robinson at the Saint Bartholomew Church in Worcester, England. The couple gave birth to their only son, Thomas Henry Robinson, on February 23, 1834.
The young family was just beginning in the midst of the United Kingdom. Thomas was 24, going on 25. He had little formal education and job prospects were bleak.
In a pinch, Thomas stole bacon from a local man, Mr. Timms.
Thomas was convicted of theft. His punishment was imprisonment in Australia. He boarded a ship in Sheerness, England on May 14th, 1835, leaving behind his wife and their one-year-old son. Thomas would never see either of them again.
Thomas survived the 102-day journey as a prisoner, arriving in Tasmania on August 28, 1835. He died in 1859 and was buried on Wattle Hill, Tasmania, Australia.
Thomas’ son, also named Thomas, grew up, joined the Church of Jesus Christ of Latter-day Saints, served as a "health missionary," later becoming the president of the Birmingham, England branch from 1872 until he moved to Utah in 1878. When he moved from Birmingham, England, there were 424 members of his congregation.
Thomas Henry Robinson (Thomas Jr.) married Mary Ann Clark, also born in England, and the couple had thirteen children together. Thomas Jr. died on May 19, 1926, at the age of 92. He is my great-great-great grandfather.
Thomas Jr. led a good life, though it began as an only child with no father, left so because of laws that we, today, look at as being archaic and unworthy of civilized society. In fact, it was just in 1834, the year of Thomas Jr.’s birth, that hanging dead bodies for display upon a gibbet after execution was abolished in England. We have moved away from such inhumane practices, right?
After all, our United States Constitution, the supreme law of the land, declares that there shall be no “cruel or unusual punishment inflicted.”
Notwithstanding, the laws of our land continue to act in ways very similar to those that resulted in my great-great-great grandfather growing up fatherless.
Take, for example, Immigration and Nationality Act, (INA) Section 237(a)(2)(A)(ii) which states that a person who is here legally, but not a citizen, can be deported if “…at any time after admission [they are] convicted of two or more crimes involving moral turpitude....”
A crime involving moral turpitude is “conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between persons or society in general.” See Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994).
It may surprise the reader to know that courts currently hold shoplifting as a crime involving moral turpitude. Thomas Tustin stealing bacon from Mr. Timms would, therefore, be considered today a crime involving moral turpitude.
To illustrate how this works under our modern law, meet Ivan, a fictional immigrant from Romania. Ivan moved to the United States in 2002 when he was eighteen years old. Ivan came to the United States as a Lawful Permanent Resident, or with a “Green Card.” Ivan married and has four children. He never applied for citizenship, but worked and lived legally in the United States with his family.
One day, Ivan was shopping with his four-year old son who took a toy car off the shelf and stuck it in Ivan’s coat pocket. Upon leaving the store, the clerk saw the toy car sticking out of Ivan’s pocket and called the police. Ivan was charged and convicted of shoplifting.
Several months later, Ivan was at a restaurant and became wrapped up in a conversation with his wife. Being lost in thought, he got up, put on his coat, and walked with his wife back to the car. Ivan forgot he hadn’t paid his bill. The restaurant owner called the police and Ivan was charged and convicted of theft of services.
7:30 AM the Saturday after Ivan’s second conviction, six Immigration and Customs Enforcement (ICE) Agents wearing black uniforms and holding guns knocked loudly on Ivan’s front door. Ivan’s wife answered the door, still in her pajamas. The agents asked if Ivan was home. The wife responded that he was and, therefore, having “probable cause,” the ICE agents stormed into the house. They found Ivan in the shower, ordered him to get dressed, and took him directly to jail.
Ivan was charged with removability under INA Section 237(a)(2)(A)(ii). Then, under INA Section 263(c)(1)(B), he is imprisoned without the possibility of bail because he has two crimes involving moral turpitude. The only way his wife and children can see him while he is in jail is over a video phone.
Ivan may apply for cancellation of removal for certain permanent residents, (Form EOIR-42A) where he must prove that he meets all of the statutory requirements under section 240A(a) of the INA In other words, he must prove that:
A. He has been a permanent resident for at least five (5) years;
B. Before he was arrested or before he committed his second crime, he had at least seven years of continuous residence in the United States
C. He was not convicted of an aggravated felony. (This one is tricky- an aggravated felony can be something simple, like Ivan’s convictions, but that carries with it even a suspended sentence of 365 days or more. You can have an aggravated felony, and thus be completely out of luck, even if you never spent a day in jail for the offense!
Lastly, he must prove he deserves it, as a matter of discretion. He has to show is a good enough person that the Immigration Judge believes he merits a second chance. If he is unsuccessful, or the judge doesn’t think he met his burden of proof, then he will be taken, in handcuffs, back to Romania.
Cancellation of removal for certain permanent residents is only available once in an immigrant's lifetime. If they win once, they can never win again.
The example I have just described, while realistic, is a simplification of a very complex problem. It serves to demonstrate that our legal system is not far removed from the legal system that tore my ancestor, Thomas Tustin, away from his wife and child, shipping him across the globe to Australia.
In my legal practice, I’ve seen ICE arrest people for something as trivial as a second-hand belt worth $2.00 or selling food without a business license. When laws are applied blindly, injustice often goes unseen.
These are not the stories that make the news, but they are stories that are heart-wrenching for real families all over our country.
The laws of our country are often very severe toward those who wish to count themselves as Americans.
If you are fighting a battle similar to what was described above, please don’t do it alone. Contact me and I will go over your case with you, free of charge.
As the elections are coming, many of my clients are extremely nervous as the next president will have a very real impact on their or their loved-ones’ lives. My advice to each person seeking legal status in the United States is to act in any way possible now. Even if the petition would take years before becoming current, submit it now. It is very likely that petitions submitted now will be grandfathered after laws change, thus keeping your options open.
As an immigration attorney, I deal with immigration law and its consequences every day. What many of these candidates propose simply would not work. Some of the proposals would have far-reaching and destructive consequences. Some wish to try policies that have failed in the past and some, like Martin O’Malley, want to create a separate agency dedicated to creating and “make recommendations to Congress” for new immigration policy. Haven’t we seen enough horrible policy come from government agencies? These decisions and debates belong exclusively in congress after full debate and bi-partisan cooperation. Many of the other candidates have very vague policies published, or none at all.
Here are the basic points I am looking for from a candidate:
1) Donald Trump
A nation without borders is not a nation. There must be a wall across the southern border. A nation without laws is not a nation. Laws passed in accordance with our Constitutional system of government must be enforced. A nation that does not serve its own citizens is not a nation. Any immigration plan must improve jobs, wages and security for all Americans.
2) Ben Carson
“The American people should not be manipulated into believing that they are heartless simply because they want to preserve the rule of law in our nation and look after their own before they take in others," he wrote "We also have to consider the millions of people who have immigrated here legally as well as those who are in the queue. It is incredibly unfair to them to grant amnesty to those who have jumped ahead of them in line illegally." "People already here illegally could apply for guest-worker status from outside of the country," Carson wrote in November. "This means they would have to leave first."
Source: National Journal 2016 series: Republicans on immigration , Feb 23, 2015 as quoted by http://www.ontheissues.org/2016/Ben_Carson_Immigration.htm
3) Carly Fiorina
I think we have to secure the borders, something that hasn’t happened under Republicans or Democrats. It’s not rocket science to do it, we just haven’t done it, northern borders and southern borders. I think we need to fix the legal immigration system, which has been broken for decades under both Republicans and Democrats. We talk about it, somehow it never get’s done. We have sixteen different visa programs. We don’t have a verifiable employer system that could be used. Half the people who are here illegally came here on a legal visa, we just never bothered to follow up. But, those who came here illegally, and stayed here illegally, I think they may earn legal status over time, but not citizenship becauseI know too many people, as do you, who worked to earn the right of citizenship, the privilege of citizenship, and I think we’re fair-minded people.
4) Marco Rubio
We have a broken enforcement system on immigration. We have a legal immigration system that's outdated and needs to be modernized so we can win the global competition for talent. We have millions of people living in this country illegally, many of whom have been here for a decade or longer. We need to find a reasonable but responsible way of incorporating them into American life. Last year we tried to do that through a one-size-fits-all comprehensive approach; it didn't work. We don't have the support for that. The only way we're going to be able to address it--and I believe we should--is through a sequence of bills that begins by proving to people that illegal immigration is under control, modernizing our legal immigration system and then dealing with those who are here illegally.
Source: Face the Nation 2014 interview: 2016 presidential hopefuls , Sep 7, 2014 , as quoted by http://www.ontheissues.org/International/Marco_Rubio_Immigration.htm
5) Jeb Bush
A great nation must secure its borders for national security and public health reasons. We don’t have to spend hundreds of billions of dollars on fencing when we can use new technology, improve the Border Patrol’s access to streams and rivers on the border, beef up our patrols and adopt sensible policies like e-Verify at workplaces across the country.We must find a practical solution to the status of the 11 million people here illegally today. We need a vigorous path to earned legal status where people are required to learn English, pay a fine and taxes, pass a criminal background check, work and not receive federal government benefits.
1) Hillary Clinton
The American people support comprehensive immigration reform—not just because it is the right thing to do, but because it strengthens families, our economy, and our country. Congress must pass comprehensive immigration reform that provides a path to citizenship, treats every person with dignity, upholds the rule of law, protects our borders and national security, and brings millions of hardworking people into the formal economy.
2) Bernie Sanders
Sign comprehensive immigration reform into law to bring over 11 million undocumented workers out of the shadows. We cannot continue to run an economy where millions are made so vulnerable because of their undocumented status. Oppose tying immigration reform to the building of a border fence. Undocumented workers come to the United States to escape economic hardship and political persecution. Tying reform to unrealistic and unwise border patrol proposals renders the promise illusory for millions seeking legal status.
3) Joe Biden
Joe Biden is third place in the poles, but he isn’t running yet.
4) Jim Webb
The immigration debate is divided into three separate issues. How can we secure our border? What should we do about the 11 million undocumented workers? And, lastly there is the guest worker question. It is necessary to separate out the 3 issues. Approaching the issue using an omnibus bill that attempts to solve all 3 issues simultaneously creates a political stalemate that delays the border security solution. Once the border is secure we can develop a fair solution to other immigration issues. Source: New York Times Election Profiles , Oct 8, 2006 as quoted by http://www.ontheissues.org/International/James_Webb_Immigration.htm
5) Martin O’Malley
O’Malley will commit the resources needed to modernize and strengthen the border while respecting the rights of border communities. O’Malley will ensure that our border is secure through the strategic use of personnel and technology, extensive training and support for immigration officers, and policies that address the root causes of migration.
O’Malley will call for a reform bill to create a new, independent body housed within the executive branch. The agency will make recommendations to Congress regarding immigration levels and visa requirements. The recommendations would be based on rigorous and non-partisan analysis and market needs – supplying additional H-1B visas, creating new visas to attract and retain foreign innovators, establishing protections for workers, and complimenting and upholding the American workforce.
I have tried to represent each candidate equally, though equal information is not available from each candidate.
After careful consideration, I do not hesitate to say that, as an immigration advocate and as a concerned citizen, I support Marco Rubio. While there is not more published from him in this article than from any other candidate, I would strongly encourage any reader to look more into Marco Rubio’s stances on immigration and all other policies.
Hypothetical: Bill entered the United States illegally in 2002. He later met Daisy, a citizen of the United States, and the two of them fell in love, got married, and have two children together. Bill is now very nervous about his immigration status. He has a lot to lose should he be removed from the United States. Therefore, Daisy wants to petition for Bill’s status as a lawful permanent resident (green card holder). The first step Daisy takes is to file an I-130 Petition for Alien Relative. The purpose of this is for the government to classify Bill as Daisy’s husband. Bill and Daisy include with their petition copies of their children’s birth certificates and other bills and joint expenses to prove that their marriage is valid and not only entered into for purposes of immigration.
Hypothetical: A potential immigrant to the United States, Bill, came across the border illegally in 2005 and stayed with a family member in Idaho until 2008, after which he returned to his home country. After being unable to find work in his home country, Bill decided to return to Idaho where job prospects were much better. Bill was able to return to Idaho where he met Daisy, a citizen of the United States.
Daisy and Bill fell in love and got married. Now, Daisy wants to help Bill to become a lawful permanent resident (green card holder). Can Daisy help Bill become a lawful permanent resident?
Unfortunately, no, she cannot. One of the harshest immigration laws in the United States is the “permanent bar.” Unfortunately, it is also one that is poorly understood, even by many attorneys.
Typically, a United States citizen can petition for their alien spouse’s status as a permanent resident in the United States. If the alien spouse has been in the United States illegally, then the alien spouse has accrued “illegal presence.” If they have more than six months of illegal presence they may need a waiver in order to overcome the penalty for this illegal presence. Please see www.my601waivers.com for more information about waivers illegal presence.
The permanent bar came about as a result of the immigration reforms under the Clinton administration in 1997. It states, basically, that if any person was unlawfully present in the United States for an aggregated of more than one year beginning on April 1, 1997, then leaves the United States (for whatever reason), and then returns to the United States, or tries to, they are ineligible for the majority of visas given by the United States. This penalty lasts forever. A discretionary waiver is only available after ten years of being outside of the United States. This permanent bar also applies to anyone deported who then attempts to re-enter. Please see the Immigration and Nationality Act, section 212(a)(9)(C)(i)(I) and (II).
There are a few narrow exceptions to this rule. The most common of these are U-nonimmigrant status, cancellation of removal (in immigration court), political asylum/withholding of removal under the convention against torture (CAT), and self-petitioners under the violence against women act (VAWA). This is not, of course, an exhaustive list of potential exceptions, and the exceptions themselves can be very narrow. Therefore, if you or your loved one has a “permanent bar” because of entering illegally after either one year of illegal presence or a deportation, they should discuss their case with an immigration attorney to see if one of the exceptions applies to them.
Dear friends, family, and associates: