Author: tancincowp

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Supreme Court Spares Filipino from Deportation: Sessions v. Dimaya

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On April 17, 2018, the U.S. Supreme Court rendered a decision in the case of Sessions v. Dimaya ruling that the definition of the crime of violence as an aggravated felony is void for being vague. The Respondent (deportee) in this case is James Dimaya who is a Filipino citizen and a lawful permanent resident of the United States. Mr. Dimaya’s deportation case was terminated as a result of the Supreme Court ruling.

James Garcia Dimaya, who is citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 1992. In 2007 and 2009, Dimaya was convicted under the California Penal Code for first-degree residential burglary; both convictions resulted in two years’ imprisonment. Under the Immigration and Nationality Act (INA), a non-citizen convicted of an aggravated felony is subject to deportation.

The INA definition of aggravated felony includes a ‘crime of violence,’ which is any offense that involves the use or substantial risk of physical force against another person or property. The Department of Homeland Security (DHS) subsequently initiated deportation proceedings against Dimaya and claimed that his burglary convictions constituted crimes of violence under the Act. The Immigration Judge held that Dimaya was deportable and that burglary constitutes a crime of violence because it always involves a risk of physical violence. The Board of Immigration Appeals (BIA) affirmed. On appeal to the U.S. Court of Appeals for the Ninth Circuit, the definition of crime of violence was struck down as being vague. The Supreme Court ruled the same way stating that the crime of violence provision was unconstitutionally vague and could therefore not be a basis of the deportation or removal.

Since the decision was rendered last week, several questions were raised by those who may potentially be affected by this Supreme Court ruling.

Among these questions are the following:

Why did majority the Supreme Court Justices rule in favor of the immigrant in this case?

Interestingly in this 5-4 ruling, the arguments raised were regarding a constitutional protection that is extended to immigrants or non citizens. The issue that was resolved was whether the law in question which is the definition of a crime of violence under 8 USC 16(b) met the constitutional standard for due process and that accused is aware of the conduct that is proscribed by the statute. If it is not then it is considered void for vagueness. After hearing the arguments, majority of the justices ruled that the definition of a crime of violence is unconstitutionally vague and therefore this particular provision may not be used as basis to deport an immigrant.

Clearly this is a precedent case decided by the Supreme Court – who will benefit from this decision?

This is a deportation/removal case where the basis for removal is a criminal conviction relating to a crime of violence as an aggravated felony. This decision affects favorably those who are charged with removal based on crime of violence as in this case which is the crime of burglary.

What is the impact of this Supreme Court decision on future removal/deportation cases?

Those who are similarly situated as Dimaya – meaning those who are being charged with deportation because of a “crime of violence” – may have their cases revisited, reopened and terminated. Again this case affects those who are in removal proceedings because of the vague definition of “crime of violence” under 8 USC 16(b). It does not affect those aggravated felonies where the definition is contained elsewhere in the Immigration and Nationality Act.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Are You a U.S. Citizen by Derivation?

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Considering aggressive enforcement of immigration law, a non-U.S. citizen or a green card holder with serious criminal offenses may be at risk of being apprehended by the Immigration and Customs Enforcement (ICE). There are several reliefs that may be available to an individual who was apprehended and taken into removal proceedings to avoid deportation.

One of the possible reliefs is a claim to a U.S. citizenship. How does one determine if he can claim U.S. citizenship at birth or through derivation? What steps must be taken?

James was born in Manila, Philippines. He was born out wedlock and never met his biological father. James mother was petitioned for a family based petition and James received his green card status. When he was 17 years old, his mother naturalized to become a U.S. citizen. In 2015, when James was already 30 years old, he was convicted of sale, use and possession of illegal drugs and was sentenced to more than one year of imprisonment. After serving sentence, ICE agents apprehended James and brought to removal proceedings.

During his court hearing, James attorney raised U.S. citizenship as a defense and moved that the case be terminated because James s a U.S. citizen by derivation. Will James deportation/removal proceedings be terminated?

Child Citizenship Act

Children who do not acquire citizenship at birth through their U.S. citizen parents may derive U.S. citizenship through naturalization of a parent. The Child Citizenship Act of 2000 (CCA) was enacted on February 27, 2001 provides that foreign-born children whose parent is, or subsequently becomes, a U.S. citizen may acquire automatic citizenship on or after February 27, 2001 as long as certain conditions are met.

To be eligible for derivative citizenship under Section 320 of the Immigration and Nationality Act (INA), the child must have been born on or after February 28, 1983 and is under age 18 when all of the following are met:

  1. At least one parent is a U.S. citizen (by birth or naturalization) at the time of the child’s application.
  2. The child, pursuant to a lawful admission for permanent residence, is residing in the United States in the legal and physical custody of the U.S. citizen parent; and
  3. For adopted children, the child has been adopted pursuant to a full, final and complete adoption.

When to file for U.S. citizenship under the CCA? All conditions must be met while the child is under the age of 18. But for this derivation of citizenship under Section 320, U.S. Citizenship may be filed even after the child reaches age 18.

James met all the conditions set by the Child Citizenship Act before he turned 18. He was in the legal custody of the parent who filed for naturalization when James was still below 18. When he entered the United States he was a lawful permanent resident. Despite reaching the age of 30 years old, since he met all these conditions before reaching the age of 18, James is considered a U.S. citizen by derivation. His removal case in court will be successfully terminated.

For those with ascendants or parents who are U.S. citizens, who remained lawful permanent residents for many years and are now facing immigration issues, it will be best to seek consultation with an attorney for an assessment on whether U.S. citizenship was ever acquired in the past.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw,  or 1 888 930 0808)

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Updates

Consequences of False Claim to Citizenship

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A “false claim” to U.S. citizenship is one of the grounds used to deny an immigrant visa application. This misrepresentation has severe consequences that may also adversely affect one’s ability to seek immigration relief in removal proceedings. What actually is a false claim to citizenship? What are its severe consequences?

Period of Time Misrepresentation Made

Before September 30, 1996, misrepresenting one’s citizenship and pretending to be a U.S. citizen to obtain immigration benefits is considered a ground for inadmissibility. This means that a foreign national who falsely claims to be a US citizen will not generally be able to obtain a green card based on an approved petition. The misrepresentation must be willful and material. To trigger the inadmissibility ground the false claim must be made to either a United States consular or immigration officer. It did not apply to a false claim made to a private employer.

Although it was a ground to deny an application for immigrant visa, there are waivers that may be available. This waiver application under Section 212(i) of the Immigration and Nationality Act may be approved if there is extreme hardship to qualifying relatives of the applicant.

After September 30, 1996, with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), the consequences of this provision became severe. It had become a ground for deportation in addition to it being a ground for denial of admission. This means that even if one is valid nonimmigrant or immigrant status, if a claim to U.S. citizenship is made the foreign national may still be held liable and risk being deported. Unlike the prior law, the 212(i) waiver is no longer available for misrepresentations made after September 30. 1996.

Misrepresenting on Form I-9

An individual who has no legal status to stay in the United States is usually without legal authority to work. But instead of remaining unemployed, the common unlawful scenario is to apply for any available U.S. job. Once accepted, they are asked to prove their status by accomplishing a USCIS Form I-9. This is the Employment Eligibility Verification which documents whether the new employee is authorized to work in the United States.

While representation to any employer will trigger the consequences of false claim, the prior I-9 form has a box which states “U.S. national or citizen”. If this box was checked, the undocumented immigrant may not face the permanent bar because the provision of law does not include false claim to U.S. nationality.

In 2009, the I-9 form was amended and the boxes of U.S. citizens and noncitizen national of the United States were separated. Hence, the undocumented who checked United States citizen to prove eligibility to work will suffer the consequences of the false claim to citizenship.

Possible Defenses

Various defenses may be raised. It depends on when the claim was made. Careful analysis of each case is crucial and that not all those who made the false claims will suffer the consequences. In fact the Department of Foreign Affairs Manual provides that “timely retraction” of false claim is one good possible defense.

Despite existence of possible defenses, it is still important to understand that to avoid serious consequences one should avoid making false claims as much as possible. While it may seem that in I-9 forms, checking the box of “lawful permanent resident” may be complicated as it will require more documents, falsely checking the box of U.S. citizen on the I-9 form carries irreversible errors and may bar receiving future immigration benefit.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Updates

Why the Immigration Innovation (I-Squared) Act Must Be Passed Into Law

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One of the controversial immigration proposals released last week by the Trump Administration is the reduction of the family based immigration and the proposal for a merit based system of immigration instead of the current employment based immigration preferences. Most of the proposals contained in the legal framework are contained in the RAISE Act and SECURE Act which are bills introduced by Republican lawmakers. But there is also a new bill, Immigration Innovation Act, that requires the support of majority of our legislators and that if passed into law will benefit the U.S. economy without having to reduce family immigration.

RAISE Act: Merit Based System

Trump proposes a broader shift away from current immigration system focusing mainly on issuance of immigrant visas only to foreign nationals on the basis of merits. If passed into law, the existing employment based categories based on U.S. employer needs will be changed to a rigid point system prioritizing foreign nationals in a series of categories including professionals, researchers, those holding advance degrees and those with extraordinary ability in a particular field.

The proposal for a merit based system does not only fail to take into account the needs of U.S. businesses. It also comes with a proposal that fails to recognize the importance of family unity by limiting family petitions to spouses and minor children eliminating parents, adult children and sibling categories. If passed into law, there will be a reduction of 500,000 or 44% of total immigrants each year.

I-Squared: Immigration Innovation Act

Interestingly, at about the same time the White House released its immigration proposals, a new bill was introduced by Senator Orrin Hatch (R-UT) and Jeff Flake (R-AZ) on January 25, 2018. This is the Immigration Innovation Act or the “I-Squared” which also addresses the gaps on the H1B visa program at the same time amends the employment based system of immigration in a manner that directly improves on the current system.

On the H1B provisions, the I-Squared raises the current cap from 65,000 to 85,000. There is a method used to determine adjustment of the cap on a market escalator of up to 195,000 and de-escalator based on prior fiscal year. It also addresses the way of choosing H1B visa petitions when the cap is reached within 5 years of the filing period. There will be a priority to (1) Individuals who have earned a U.S. master’s or higher, who are subject to the numerical limitations; (2) Individuals who have earned a doctoral degree outside the U.S.; (3) Individuals who have earned a U.S. bachelors or higher in a STEM field; (4) Other petitions

On the employment based petitions, I-Squared has provisions that will (1) Eliminate per country limits for employment-based visas and increases per country limit for family-based visas to 15%; (2) Require recapture of unused visas from FY 1993 to FY 2013; (3) Exempt from numerical limitations: dependents of EB immigrants, individuals with a U.S. STEM master’s or higher degree, individuals with an approved EB-1 petition for extraordinary ability or outstanding professor/researcher.

Other than proposing to eliminate the per country limits, it also creates a new employment-based conditional immigrant visa (35,000 per year) for individuals who (1) have a university degree; (2) have received an offer of employment from a qualifying U.S. employer; and (3) will satisfy the requirements of 3 employment based preferences (EB1, EB2 & EB3).

Between the RAISE Act/Merit Based System and the I-Squared Act, the latter is a better bill that deals with a real reform of our immigration system without having to cut family legal immigration. Let us contact our representatives in Congress and urge them to support this Immigration Innovation (I-Squared) Act or S. 2344.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Updates

9 Frequently Asked Questions on DACA Renewals

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Last week a Federal District Court Judge in San Francisco issued a nationwide injunction that temporarily blocks the phase-out of a program protecting the Dreamers. The preliminary injunction issued on January 9, 2018 by U.S. District Judge William Alsup remains in effect during litigation in five consolidated lawsuits that challenge the government’s decision to wind down the program known as Deferred Action for Childhood Arrivals (DACA). The following are frequently asked questions about this injunction:

1.What is the impact of this injunction on the DACA program?

The preliminary injunction order means that the DACA program will be maintained temporarily during the litigation on the same terms and conditions as were in effect before the rescission on September 5, 2017. Also, certain DACA beneficiaries will be able renew their work permits and protections with a few exceptions.

2. Who can renew their DACA protection and work permits?

Dreamers who currently have DACA and are eligible to renew may request renewal by filing Form I-821D, Form I-765, and Form I765 Worksheet, with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the form instructions.

3. Can Dreamers with expired DACA beginning September 5, 2016 until Sept 5, 2017 apply for renewal?

When the DACA was terminated on September 5, 2017, the DACA protection that were then expiring were only given until October 5, 2017 to renew. Significant number of these DACA recipients failed to renew. With this injunction order, USCIS issued a guidance clearly stating that they may now renew their DACA work permits and protection.

4. Can Dreamers whose DACA expired before September 5, 2016 still apply for renewal?

No. Those whose DACA protection and work permit expired BEFORE September 5, 2016 may not renew. However, they will be allowed to re-file a new DACA application under the USCIS guidance.

5. What about Dreamers whose DACA protection and work permit was terminated by the USCIS, can they now file for renewal?

No. But like in #4 question, they will be allowed to re-file a new DACA application. USCIS asks applications to list down the date their prior DACA was terminated.

6. How soon can the Dreamers apply for the DACA renewal ?

Dreamers who are eligible for renewal must file as soon as possible given the fact that the injunction is temporary in nature. Under the instructions for Form I-821D and the DACA FAQs on USCIS’s website, applicants were instructed to file for renewal 150 to 120 days in advance of the expiration of their current DACA grant. It is not yet clear from USCIS if they will reject those filed more than 150 days given that the injunction order is only temporary in nature and ancillary to the litigation is pending. Once there is clarification, we will inform readers of future developments.

7. What about DACA beneficiaries who wants to apply for the first time, will they be permitted to file their application now?

The USCIS guidance clearly indicates that those who have not filed DACA applications in the past may not file for new applications now. This means that the injunction order extends only to those who had prior grant of DACA and whose DACA work permit and protection expired or were terminated.

8. Will DACA beneficiaries be able to apply for advance parole?

The injunction order does not cover advance parole and USCIS is not ordered to adjudicate any advance parole. Hence, USCIS will not accept applications for advance parole from DACA beneficiaries.

9. Given that the court injunction is only temporary in nature, is there a possibility that the DACA program will become law anytime soon?

President Trump met with lawmakers last week to discuss about the future of DACA and other immigration issues. There seemed to be no agreement made on the future of the DACA program. There is currently a political pressure to include DACA as a legislation into the spending bill which hopefully will happen before January 18, 2018.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw,  or 1 888 930 0808)

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Global Pinoy

What undocumented immigrants face with the REAL ID Act

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Until recently, California was one of many states that issued driver licenses or identification cards (ID) that were not compliant with the REAL ID Act. But recent developments indicate that the California Department of Motor Vehicle (DMV) will begin accepting applications for IDs and driver licenses that are compliant after January 22, 2018. Who are eligible to apply for these new IDs and licenses? Will undocumented immigrants be prohibited from traveling domestically if they are not in possession of the new IDs and licenses?

The REAL ID Act

In 2005, U.S. Congress enacted the REAL ID Act upon recommendation of the 9/11 Commission to set standards for the issuance of sources of identification, such as driver licenses. This law provided minimum security standards for state-issued driver licenses and identification cards. Federal agencies are prohibited from accepting the non-compliant licenses and identification cards for official purposes including in air travel, access to military bases, most federal facilities and nuclear power plants.

The purpose of the REAL ID Act is to prevent the fraudulent issuance and use of driver licenses and identification cards. Although it was enacted in 2005, its full implementation will not take effect until October 2020. In the meantime, many states are taking steps to establish rules that will make their licenses and identification cards compliant with the REAL ID Act.

States that are working to comply with the federal law have been able to get extensions until October 2018. For this reason, states like California, are ready to release new licenses and identification cards this year that contain security features.

Minimum Requirements

To be REAL ID-compliant, the state must incorporate anti-counterfeit technology into the card, verify the applicant’s identity and conduct background checks for employees involved in issuing driver licenses.

In verifying for a REAL ID-compliant ID or license, the applicant must fall under the following 9 categories:

  1. U.S. citizen or national;
  2. U.S. lawful permanent resident or lawful temporary resident;
  3. conditional permanent resident status in the U.S.;
  4. has an approved asylum application or entered in refugee status;
  5. has a valid, unexpired nonimmigrant visa;
  6. has a pending application for asylum;
  7. has pending or approved temporary protected status;
  8. has approved deferred action status or
  9. has a pending application for adjustment of status to that of lawful permanent or conditional resident.

It is apparent from the list that only applicants who have valid and lawful presence in the United States or who are not in violation of immigration laws are permitted to apply for state licenses that are REAL ID Act compliant. Those who are unauthorized immigrants or who have fallen out status may not be eligible to apply for the REAL ID compliant licenses.

Air travelers without the REAL ID licenses/ID

Passing through security at the airport during domestic travel requires acceptable identification documents. The Department of Homeland Security (DHS) has designated several acceptable forms of identification including passports, a border ID card, or, a trusted traveler card such as Global Entry.

In 2020, only REAL ID-compliant cards will be accepted for air travel and if a traveler is out of status or is in unlawful presence, the traveler should obtain alternative acceptable identification documents, which includes a valid passport issued by the government of which he/she is a citizen.

Generally, traveling with a passport with no valid U.S. visa stamp on it does not imply unlawful status. The DHS explicitly cautioned federal agents from assuming that non-possession of REAL ID-compliant identification cards indicate that the traveler is an undocumented immigrant. However, given the current political climate, the restrictive immigration policies and the heightened immigration enforcement rules, it may be a trigger for further inquiry if the TSA or any federal agent exercises discretion of the need to determine lawful presence.

In the meantime, considering the implementation of the law is not until 2020, there is no need to change travel domestically.

Instead, it is advisable to use this time to determine whether there are legal options that one may now undertake to obtain lawful status before the full implementation of the REAL ID Act.

–

Also appears in: Inquirer.net

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Updates

Proposed Bills that Make Immigrant Families Vulnerable

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The year 2017 has been challenging for most immigrants. Many Filipino immigrants have been concerned with changes in federal policies and how it is affecting families and employment. The following developments have given reason for apprehensions about the future of U.S. immigration:

Attacking Family Immigration

A bill known as the Reforming American Immigration for a Strong Economy (RAISE) ACT seeks to cut current legal immigration by at least 50%. The serious impact of this bill is in the big reduction of family member categories who can be petitioned, including the limitation of qualified family members only to minor children and spouse of the U.S. citizens. Under the RAISE proposal, parents, adult married or unmarried children and siblings of U.S. citizens petitions are no longer relatives who can be petitioned. In addition, the age of minor children will be reduced to those who are under the age of 18 (from the current 21). For millions of Filipinos who are beneficiaries of family petitions, this bill will be a disappointment for families who have been waiting decades for reunification with their family members. This is definitely a bill that will not bode well for family unification.

Merit-Based System

Without taking into account family unity and the needs of businesses, the RAISE Act proposes to eliminate the current employment system of immigration. It prioritizes skills over family unity by designating a point system for future immigration applicants.

Heightened Enforcement

In his first month in office, Trump released his Executive Order on Interior Enforcement where he ordered changes that now prioritizes enforcement. He ordered for a budget that hires more than 10,000 Immigration and Customs Enforcement (ICE) Agents that may result in mass deportations. An enforcement only bill H.R. 2431 was introduced by a certain Rep. Labrado (R-ID) that dramatically expands immigration enforcement and criminalizes undocumented immigrants.

Fixing DACA

Young unauthorized immigrants are looking forward to legislation that will provide solution to their predicament given the termination of the DACA program in September of 2017. The DREAM Act was the bill that directly addressed this issue and provided for a permanent solution by granting conditional permanent status to DACA beneficiaries and allows them to become U.S. citizens in 5 years. Other bills like the SUCCEED Act also provided a permanent status but comes with restrictions. Under those bills, Dreamers will be prohibited from sponsoring their children and spouses in order to prevent chain migration. There were also provisions that compel Dreamers to sign away their rights to any immigration benefit or relief like immediate deportation without due process if they commit minor crimes such as driving without license or shoplifting.

All the above bills are contained in the White House Principles on immigration and obviously will have negative impact on many immigrants. The most disheartening proposals are the attacks on family….. the foundation of this nation and the policy behind our immigration law. Our community must continue to advocate for what is right and bring the message to our legislators in their home district this holiday season to support immigration bills that are humane and value family unity instead of forcing them apart.

I waited until December 22 to write about an immigration update hoping that I would bring the good news about a positive development on the DREAM Act. Those who are beneficiaries of the Deferred Action for Childhood Arrivals will have to wait until January 2018 to find out whether or not Congress will pass the DREAM Act which is the permanent fix to the DACA program for young undocumented immigrants. This holiday season will still be spent with uncertainty hanging over the future of DACA recipients. While this is a disappointment to many, I am still positive that with hopeful bipartisan support in Congress, there will be an opportunity for passage of the DREAM Act early 2018.

This Christmas, my wish is for more (not less) family unification; and, for the leaders of this country to realize the value of families and its contribution to the strength of our nation.

Merry Christmas to one and all!

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Updates

Int’l Entrepreneur Parole good as Dep’t of Homeland Security loses lawsuit

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No matter how eager the current administration is to restrict immigration policies, the rule of law must still prevail. An immigration regulation that went through the process of the required public notice and comment may not be abruptly rescinded without violating the Administrative Procedure Act. This was the issue of contention in the case against the U.S. Department of Homeland Security when it sought to delay the implementation of the International Entrepreneur Parole from July 17, 2017 to March 14, 2018.

The Delay Rule was released by DHS on July 11, 2017 without offering the public the required advance notice, or an opportunity to comment, claiming that there was good cause to issue the rule. A lawsuit was filed against DHS by the Plaintiff National Venture Capital Association, and the court ruled in favor of the Plaintiff. The U. S. District Court rendered the Delay Rule invalid for failure to afford public comments and notice on the change.

As a result of this court ruling, the U.S. Citizenship and Immigration Services released a statement on December 14, 2017 informing the public that the International Entrepreneur Parole applications will be accepted without further delay.

Entrepreneur Parole Program

The entrepreneur parole program grants parole status to a foreign national who is an “entrepreneur” of a startup and who has an active role in the operation of the business. This entrepreneur must have recently formed a new start-up entity within three years before the date of filing the initial parole application.

Unlike an applicant for investors visa, where the entrepreneur must show infusion of capital to the business that is formed from his own resources, an international entrepreneur seeking parole must show that the start-up business has potential for a “rapid growth and job creation.” There are three alternative ways to prove this: first, that the business has significant U.S. capital investment of $345,000 or capital from established U.S. investors such as venture capital firms, angel investors and the like who have a history of substantial investment in successful start-up entities; second, the business received government funding of grants totaling $100,000 or more; and, third, any reliable and compelling evidence that will prove significant public benefit to the United States.

The USCIS will now start accepting applications on new USCIS Form 941. The filing fee for this application is $1,200. Once the application is approved, the entrepreneur, his/her spouse and minor children will be paroled into the United States and will receive employment authorization documents. Parole will be granted for up to 2 years and may be renewed for up to 3 years.

Parole Authority

The current immigration law allows the DHS to exercise its parole authority under section 212(d)(5) of the Immigration and Nationality Act if the presence of the paroled non-U.S. citizen would provide a significant public benefit to the United States.

Under the entrepreneur parole program, eligible applicants may be granted a stay of up to 30 months, with the possibility to extend it for a period of up to 30 additional months. Those targeted to receive parole are entrepreneurs who shall work with the start-up businesses.

Approximately, 3,000 entrepreneurs are expected to apply for parole under this program. Most of those who are planning to apply come from the tech industry as well as those who are planning to develop new business ventures that will spur economic growth and job creation.

While the rule is now in effect, according to DHS, the administration is still determined to terminate this program at some point, and the agency is now planning to afford enough public notice and comment before its termination. In the meantime, those who are eligible may consider immediately filing their applications.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

Also appears in: Inquirer.net 

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Updates

What immigration detainers vs. ‘sanctuary cities’ controversy is about

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SAN FRANCISCO — After Jose Ines Garcia Zarate, a Mexican national, was acquitted of murder in the death of Kate Steinle, the term “immigration detainers” came to light in public discourses about immigration.

Despite his acquittal, Garcia Zarate is nonetheless going to be removed/deported from the United States.

What are immigration detainers? Why are some states and local governments, like the City of San Francisco, refusing to cooperate with federal enforcement of immigration law?

The Kate Steinle Case

Garcia Zarate is a non-citizen who had prior deportation orders. Despite the bar to entering the United States after deportation, he made his way back to this country. He spent more than four years in a federal prison for illegally re-entering. Thereafter, he was sent to San Francisco prison to undergo trial on a 20-year-old felony marijuana charge. The local court dismissed this marijuana charges, and he was released from jail.

Prior to his release from jail, the federal officials issued an immigration detainer to the local enforcement agency to notify ICE when he would be released because of an existing order for his deportation. The City of San Francisco has a sanctuary jurisdiction where only a formal court order will allow them to honor an immigration detainer.

As a result of the refusal of the San Francisco official to acknowledge the request for detainer, Garcia Zarate was released from custody. It was during this time that the incident of the “accidental’ shooting of Kate Steinle occurred. This was the recent finding of the jury after hearing the evidence. The acquittal is unrelated to City’s failure to recognize the immigration detainer; neither did they find it relevant to consider that Garcia Zarate was unlawfully present in the United States.

Understanding immigration detainers

An immigration detainer is a document issued by the U.S. Immigration and Customs Enforcement notifying the state or local government that they seek to take custody of a non-U.S. citizen “for purposes of arresting and removing” this individual from the United States. Oftentimes, ICE will issue an immigration detainer during criminal proceedings of the non-U.S. citizen after he is first taken into state or local custody.

Detainers have been used by the federal government since 1950 as a means of obtaining custody of a non-citizen for purposes of deportation, or to enforce immigration law.

The controversy with respect to immigration detainers started in 2008 when multiple detainers were issued by ICE under the restored Secure Communities program. ICE, then, took into custody a significant number of non-citizens who were not conclusively deportable, had no convictions or were simply charged with non-removable misdemeanor offenses. These incidents resulted in undue separation of families, loss of employment or disruption of businesses, not to mention lawsuits filed by families of detained individuals.

In response to these detainers under the Secure Communities programs, several states and local government enacted ordinances indicating their unwillingness to cooperate with federal government in immigration enforcement.

They are referred to as “sanctuary” cities because they oppose federal immigration authorities’ efforts to detain unlawfully present aliens within their jurisdiction.

Many local authorities want victims and witnesses to be safe and unafraid to come forward to report crime and get help, thus these local authorities’ refusal to cooperate with immigration enforcers. Entangling local law enforcement with deportations undermines trust and safety in the community.

The shooting of Kate Steinle was undeniably a terrible tragedy. But the fact that the incident was used to drum up support for mass deportation, to scapegoat all unauthorized immigrants and link them to crimes is totally reprehensible.

This immigration debate on detainers and sanctuary cities must be placed in proper perspective so that real solutions towards a more humane immigration reform may finally be attained.

Atty. Lourdes S. Tancinco is a San Francisco CA based immigration attorney at Tancinco Law Offices and may be reached at law@tancinco.com, facebook/tancincolaw, or at 1 888 930 0808 or at 1 415 397 0808.