The Impact of Immigration Status on Other Legal Issues

1. The Impact of Immigration Status on Other Legal Issues Basics, Issue Spotting and Resources 2011 Illinois Legal Aid Advocates Conference October 7, 2011 Chicago, Illinois www.immigrantjustice.org

2. National Immigrant Justice Center The National Immigrant Justice Center (NIJC), a program of Heartland Alliance for Human Needs & Human Rights, promotes human rights and access to justice for immigrants, refugees, and asylum seekers through legal services, policy reform, impact litigation, and public education. Throughout its 30-year history, NIJC has been unique in blending individual client advocacy with broad-based systemic change. NIJC serves more than 10,000 immigrants annually with the support of a professional legal staff and a network of over 1,000 pro bono attorneys. NIJC maintains a more than 90 percent success rate. NIJC provides direct legal representation to low-income individuals in immigration matters. NIJC represents immigrant families; individuals seeking protection, such as, victims of crimes including domestic violence and human trafficking, LGBT immigrants, asylum seekers, unaccompanied immigrant minors; and detained and non-detained noncitizens.

3. Involved Government Agencies Department of Homeland Security (DHS) U.S. Citizenship & Immigration Services (USCIS) Immigration & Customs Enforcement (ICE) Customs & Border Patrol (CBP) Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) Office of Refuge Resettlement (ORR) State/Local Law Enforcement/Agencies Sheriff Police Child Protective Services

4. Immigration Status US Citizen (most protected) Lawful Permanent Residents (green card holders) Immigrants (family based, employment based, asylees, refugees, etc.) Non-Immigrants (tourists, students, U visas, etc.) Undocumented immigrants TIP: Ask individuals about their immigration status before adivising on other matters

5. Obtaining Immigration Status Family Protection Based Refugees and Asylees Crime Victims Employment Other (very limited)

6. Family Immigration Priority System of Immigrating 2 Steps Family Petition Permanent Residency Process Step 1: The Petition Step 2: Adjustment of Status (green card application) TIP: Step 1 holds place on list – it does not protect from deportation

7. Petitions Family Petitions USCs Spouse (immediate relative) Children and Stepchildren (under 21, immediate relative, over 21 priority date) Parents (if USC child is over 21) (immediate relative) Siblings LPRs Spouse Unmarried children Protection Based Derivatives

8. Next Steps Once the petition is filed with USCIS, a priority date is given (usually the date it is received by USCIS) Except for Immediate Relatives, everyone else must wait for the priority date to be current before they can proceed with Adjustment of Status (to become LPRs)

9. Protection Based Immigration Asylum/Refugee Protection Violence Against Women Act (VAWA) T visas, for Victims of Human Trafficking U visas, for Victims of Certain Crimes Special Immigrant Juvenile Status (SIJ) for certain children who are victims of abuse, neglect or abandonment

10. Asylum “[A]ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 USC §1158, et.al.

11. VAWA Abused spouse of U.S. citizens and LPRs; Non-abused spouse of US citizens or LPRs whose children are abused (need not be children of abuser); Abused children (must meet the definition of a “child” under 8 USC §1101(b)) of USCs or LPRs; Abused children of USCs may file until age 25 if central reason for delay is abuse Abused intended spouses, meaning a spouse who entered into a bigamous marriage in good faith. See 8 USC §1154(a); Abused parents of USC children

12. Abusers & Immigration Failing to file immigration papers on behalf of family members; Filing a family petition (or other application) and later withdrawing it; Threatening to contact immigration officials; Actually contacting immigration officials for the purpose of deporting family members; and/or Providing immigration officials with false information about family members.

13. Eligibility for VAWA Status of Abuser (USC or LPR) Marriage Requirements Legal Marriage Good Faith Marriage Battery or extreme cruelty Residency Requirements Self-petitioner lived with abuser Self-petitioner’s current residence Good Moral Character (3 years prior) 8 USC §1154

14. U Visas: Crime Victims Immigrant suffered substantial mental or physical abuse as a result of having been a victim of certain criminal activity; and Immigrant (or in the case of a child under 16, the parent or guardian) possesses information concerning that criminal activity; and The criminal activity violated U.S. law or occurred in the U.S.; and The immigrant has been helpful, is being helpful, or is likely to be helpful to a Federal, State or local authority investigating or prosecuting the crime. See 8 USC §1101(a)(15)(U)

15. Crimes Included • Rape • Torture • Trafficking • Incest • Domestic Violence • Sexual Assault • Prostitution • FGM • Being held hostage • Peonage • Involuntary Servitude • Slave trade • Kidnapping • Abduction • False Imprisonment • Being held hostage • Peonage • Obstruction of Justice • Perjury • Attempt, conspiracy or solicitation to commit any of these crimes, or any “similar activity”

16. Trafficking Victims T visas are for victims of human trafficking Requirements: victims of human trafficking as defined by 22 USC §7102 (the use of force, fraud, or coercion for sex trafficking and/or involuntary servitude, peonage, debt bondage or slavery); who assist or cooperate in reasonable request for investigation or prosecution; and who would suffer extreme hardship if removed. 8 USC §1101(a)(15)(T); 8 CFR §214.11

17. Special Immigrant Juveniles Minors who are abused, abandoned, or neglected by either parent, who have a dependency order from a State Court making such a finding and where the Court makes a determination that it would not be in their best interest to return to their home country. Dependency order must be entered before they turn 18 8 USC §1101(a)(15)(J)

18. Immigrant Victims TIPS Immigrants often do not self-identify as victims Cultural sensitivity Afraid to report crimes Fear of government

19. Citizenship Acquired citizenship Children born abroad to a USC parent Derived citizenship Children who are LPRs and have USC parents Naturalization After becoming an LPR persons can apply for naturalization after either 5 or 3 years depending on how they obtained their LPR status

20. Detention Adults and Children Detained at county jails Children detained separately Persons arriving at port of entry Immigrants in criminal proceedings

21. Who Can Be Deported? ANYONE WHO IS NOT A U.S. CITIZEN

22. Issue Spotting Crimes: Complicated for immigrants. May lead to a person losing their lawful status. Requirements for non-immigration attorneys. Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). LPRs can be deported for old crimes Children “repatriated” by DCFS or others Minor crimes may be considered “aggravated felonies” 8 USC §1101(a)(42)

23. Issue Spotting Custody – immigration status should not impact custody Marriage fraud allegations Allegations of abuse in divorce proceedings, listing abuse in pleadings VAWA confidentiality provisions 8 USC 1367(a)

24. Other Issues Social Security Numbers/ITIN Numbers Filing Taxes Driver’s Licenses Employer’s Obligations to Report Using False Documents Public Benefits

25. Secure Communities Gives ICE technological, not a physical presence in jails Current process: when arrested by local police, fingerprints run through state and FBI databases to check for criminal record Secure Communities process: when arrested by local police, fingerprints automatically also run through DHS databases to check for civil or criminal immigration history

26. Secure Communities Currently operating in more than 41 states DHS’s stated goal is to have Secure Communities everywhere by 2013 Concerns over whether communities can choose to opt out

27. Legal Assistance Private Attorneys –call the American Immigration Lawyers Association at 1-800-954-0254 for a referral Attorneys or Accredited Representatives at Board of Immigration Appeals Recognized Non-Profit Organizations – a list of these organizations can be found at www.usdoj.gov/eoir/statspub/raroster.htm

28. Unauthorized Practice of Law Notaries or notary publics are not attorneys and cannot give legal advice Well-intentioned, but unauthorized practitioners such as churches, community organizations, etc.

29. THANK YOU Mony Ruiz-Velasco, Director of Legal Services Karolyn Talbert, Managing Attorney National Immigrant Justice Center 208 S. LaSalle, Suite 1818 Chicago, IL 60604 312.660.1370 mruizvelasco@heartlandalliance.org ktalbert@heartlandalliance.org www.immigrantjustice.org