U Visa Policy Alert
June 14, 2021 Policy Alert, EAD for U Visa Applicants; Permisos de trabajo para los quien estan aplicando para la Visa U. https://www.uscis.gov/.../20210614-VictimsOfCrimes.pdf
Dream and Promise Act of 2021
The Dream and Promise Act of 2021 (“Act”), introduced and passed in the U.S. House of Representatives will finally legalize many individuals in the United States with a pathway to become a legal permanent resident. Those without status, those with Deferred Action for Childhood Arrivals (DACA), and those with Temporary Protected Status (TPS), will be eligible. The Act would create “conditional permanent resident” status valid for up to 10 years that would protect DACA recipients from deportation, allow them to work legally in the U.S., and permit them to travel outside the country. Similar to DACA, those who apply for the new Act will have to meet specific standards and show that they came to the U.S. before the age of 18, lived in the U.S. continuously before January 1, 2021; pass a background check, have no serious criminal history, and demonstrate that they have earned a HS diploma or equivalent. The Act has not yet passed by the U.S. Senate and is not law as of today’s date. Having with worked with thousands of immigrants, living and working in the United States, we at Contreras & Metelska, PA are hopeful that change is near.
Civil Rights Claims Are Time-Sensitive!
This article is intended to inform you and your loved ones about the time limits you must be aware of when thinking about pursuing a civil rights claim. The time limits discussed in this article are specific to Minnesota, so if you live in a different state, be aware that the rules discussed below may differ in your jurisdiction. The most important part of this article is its advice that you should always strive to contact a civil rights lawyer within 150 days of your injury in order to give the attorney time to evaluate your claim and provide notice to the relevant government actors before the expiration of the sometimes mandatory 180-day notice period.
This article assumes you are aware of the different types of civil rights claims available to you in Minnesota. This article is not exhaustive, and there may be other types of civil rights claims available with similar or alternative time limitations (including but not limited to employment-related claims under the Minnesota Human Rights Act); this article’s focus is on the most common types of civil rights claims. For a broader overview of what kinds of injuries may give rise to a civil rights claim, check out our blog post entitled Introduction to Civil Rights Law – Do You Have A Viable Claim?
First and foremost, it is essential to understand that every civil rights claim is different. You will get the best results if you talk to an experienced civil rights attorney as soon as possible after being injured. Most civil rights attorneys will not charge you for a consultation, so there is nothing to lose by quickly educating yourself on the nuances of your claim by talking to a lawyer. The speed with which you choose to speak to an attorney is important because many civil rights claims have exacting notice provisions that require you to inform specific government officials of your potential claim within a relatively short period of time of the imposition of your injury.
Without further ado, every potential civil rights plaintiff in Minnesota should be aware of the following timing rules:
Minn. Stat. § 466.05 – Tort Claims Against Cities / Municipalities
If you have been harmed (physical and property injuries both count) by an employee of any city or municipality or the agencies or departments thereof (e.g., the Minneapolis Police Department, the Coon Rapids Police Department, the Duluth Police Department, the St. Paul Public Housing Agency, a city’s Parks and Recreation Department, etc.), you may have a feasible tort claim against the city or municipality under Minn. Stat. § 466.02. However, in order to bring this claim successfully, you typically must comply with the notice provision of Minn. Stat. § 466.05, which requires you to present “to the governing body of the municipality within 180 days after the alleged loss or injury is discovered a notice stating the time, place and circumstances thereof, the names of the municipal employees known to be involved, and the amount of compensation or other relief demanded.”
Claims against the cities in Minnesota typically allow you to recover up to $1,500,000 in compensatory damages, depending on the severity of your physical injury or property loss.
Minn. Stat. § 3.736 – Tort Claims Against Minnesota or the University of Minnesota
If you have been harmed (physical and property injuries both count) by an employee of Minnesota or the agencies or departments thereof (e.g., the Minnesota State Patrol, the Minnesota National Guard, the Minnesota Department of Revenue, the Minnesota Department of Education, the Minnesota Department of Public Safety, the Minnesota Department of Corrections, the University of Minnesota, etc.), you may have a feasible tort claim against Minnesota under Minn. Stat. § 3.736. However, in order to bring this claim successfully, you typically must comply with the notice provision of Minn. Stat. § 3.736, subdivision 5, which requires you to present “to the attorney general or, in the case of a claim against the University of Minnesota, to the person designated by the regents of the university as the university attorney, and any state employee from whom the claimant will seek compensation, within 180 days after the alleged loss or injury is discovered, a notice stating its time, place and circumstances, the names of any state employees known to be involved, and the amount of compensation or other relief demanded.”
Claims against Minnesota or the University of Minnesota typically allow you to recover up to $1,500,000 in compensatory damages, depending on the severity of your physical injury or property loss.
Federal Torts Claims Act (“FTCA”) – Tort Claims Against the Federal Government
If you have been harmed (physical and property injuries both count) by an employee of the United States or the agencies or departments thereof (e.g., U.S. Immigration and Customs Enforcement (“ICE”), the U.S. Department of Homeland Security, the Internal Revenue Service, the U.S. Department of Labor, etc.), you may have a feasible tort claim against the United States under the FTCA, found at 28 U.S.C. § 2674. However, in order to bring this claim successfully, you must file your administrative claim within the FTCA’s 2-year statute of limitations. The FTCA’s statute of limitations period starts on the date the cause and existence of an injury were known or should have been known. Additionally, if your administrative claim was denied, you must file a lawsuit in federal court within six months of the written denial of the claim.
FTCA claims against the United States allow you to recover compensatory damages, but not punitive damages.
Civil Rights Claims Under 42 U.S.C. § 1983 (“Section 1983”) – Federal Claims Against Cities / Municipalities and State Actors
If you have been deprived of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States, by any “person” acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,” you may have a feasible Section 1983 claim against the person or city / municipality under 42 U.S.C. § 1983.
You should be aware that States (e.g., Minnesota, Nebraska, etc.) are not considered “persons” for purposes of Section 1983 and thus are not amenable to suit under this statute (but if an employee of the State harms you, you can sue the State employee under Section 1983 in their individual capacity). However, cities / municipalities (e.g., Minneapolis, Coon Rapids, Duluth, St. Paul, Winona, Rochester, Bloomington, Plymouth, etc.) are considered “persons” for purposes of Section 1983 (and if you are harmed by a department of a city / municipality, the City can be held liable for that department’s actions).
To bring a Section 1983 claim successfully, you must file your lawsuit before the applicable statute of limitations expires. Section 1983 does not contain any explicit statute of limitations, but courts have determined that the applicable statute of limitations period is imported from the forum state’s personal injury statute of limitations. The Eighth Circuit has determined that, pursuant to Minn. Stat. § 541.05, there is a six-year statute of limitation in Minnesota for many but not all Section 1983 claims (e.g., “for assault, battery, false imprisonment, or other tort resulting in personal injury, if the conduct that gives rise to the cause of action also constitutes domestic abuse as defined in section 518B.01”). Certain Section 1983 claims, such as those that fall within Minn. Stat. § 541.07 (e.g., “for libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury, and all actions against veterinarians as defined in chapter 156, for malpractice, error, mistake, or failure to cure, whether based on contract or tort”), however, are subject to a two-year statute of limitation.
Under Section 1983, you are permitted to recover compensatory damages. You are also eligible to recover punitive damages, attorney’s fees, or both in certain circumstances.
If you still have questions
If you still have questions about whether or not you have a viable civil rights claim under federal or Minnesota law, give our office a call at (651) 771-0019 to set up a consultation with attorney Nico Ratkowski.
Disclaimer: This article was written generally and is not specific to the facts of your case. This article does not constitute legal advice and is not meant to constitute legal advice. Do not rely on this as legal advice. This article will not be updated; the information might be out of date at some point in the future. For your reference, this article was written on March 12, 2021.
Introduction to Civil Rights Law – Do You Have A Viable Claim?
Civil rights are a hot topic right now, but what exactly are “civil rights” anyway, and how are they enforced?
Generally speaking, civil rights are a class of rights that protect individuals from unlawful government intrusion. Examples of civil rights are things like voting, the right to a fair trial, and the right to due process of law. Some civil rights are created by statute, and others are so sacrosanct that they have been given constitutional protection. While these are a few easy examples of civil rights, many more exist. Conversely, civil liberties are typically freedoms secured by placing restraints on government (for example, the right to be free from unreasonable searches or seizures). Violations of one’s civil rights or liberties can generally lead to a civil rights complaint.
But what if someone interferes with your civil rights or civil liberties? Is there anything that can be done? How much might you have to pay an attorney to help you litigate your case? This article will seek to answer these questions (albeit generally).
Assuming one of your civil rights/liberties has been infringed, your ability to recover will depend on the actor(s) who infringed your civil rights. Additionally, your ability to obtain relief will depend on what kind of relief you seek. Typically, injunctive relief is available to prevent ongoing civil rights violations, whereas relief for payment of money damages is available in accordance with statute. Typically, one can sue for injunctive relief to enforce any constitutional right that is being violated, but in order to sue for money damages that you feel entitled to as a result of a constitutional violation, you must first be able to point to and rely on a statute that expressly authorizes recovery of money damages in the circumstances applicable to your case.
For example, if your civil rights were violated by a municipality (i.e., a city) or by an agent of a municipality (such as a city police officer), you might have a viable “1983” complaint (a 1983 complaint is grounded in 42 U.S.C. § 1983). Conversely, if your civil rights were violated by a State (e.g., Minnesota), you will not have a viable 1983 claim because states are not considered a “person” within the meaning the statute. However, if your claim is against a state official, rather than the State itself, then the 1983 claim remains potentially viable. Relatedly, if your civil rights were violated by the federal government, a federal agency, or an agent of the federal government, then you have no right to recover under section 1983 (but other options are available) because section 1983 does not apply to the federal government.
For individuals who have had their civil rights violated by federal actors, Congress made other remedies available, such as the Federal Torts Claims Act (referred to by attorneys and judges as the “FTCA”). Additionally, if your rights under the Fourth Amendment, specifically, were violated by federal agents, you may have a cause of action that allows you to file a so-called Bivens action. Bivens claims are the most notable exception to the rule that a statute must allow for recovery of money damages for constitutional violations before money damages may be awarded as recompense for constitutional violations.
“In order to determine what legal theory to bring your case under, you should consult with an attorney who has experience litigating civil rights claims.”
In many instances, there may also be viable state claims to pursue in parallel to your federal claims (or instead of your federal claims) under any number of state statutes. For example, the Minnesota Human Rights Act provides wide-ranging remedies for discrimination-based claims, which often constitute or have a strong relation to civil rights issues. Alternatively, if your claims sound in tort (regardless of whether they are grounded in civil rights), you may be able to pursue a claim against any city in Minnesota under the proviso of Minn. Stat. § 466.02 (subject to the notice requirement of Minn. Stat. § 466.05). If your claim sounds in tort, but is against the State of Minnesota instead of a city, then Minn. Stat. § 3.736 is the statute that allows you to potentially recover damages (again, note the notice requirement). States outside of Minnesota often (but not always) have similar statutes that allow injured parties to recover damages from the state or cities within the state if certain preconditions are satisfied.
In order to determine what legal theory to bring your case under, you should consult with an attorney who has experience litigating civil rights claims. The area of civil rights litigation is an area of law is rife with legal landmines that operate to bar recovery in the event of a legal misstep, so it is important your attorney knows what they are doing.
So, assuming you have a viable claim for relief, how do you pay for an attorney? Typically, civil rights attorneys will bill on a contingency-fee basis, and may ask you to assign any future award of attorney’s fees to the attorney in the event an award of attorney’s fees is eventually forthcoming (for example, 48 U.S.C. § 1988 allows for awards of attorneys’ fees for successful 1983 claims). A contingency fee award means the lawyer only gets paid if you recover, but it also means your recovery will be decreased by the amount of the contingency award (this can have some wonky tax consequences for the plaintiff if the award is not of the tax-free variety). Typically, it is rare to see any attorney ask for more than a 40% contingency fee, and the amount that can be recovered via contingency fees is sometimes limited by statute. For example, the FTCA provides that attorneys cannot charge more than a 20% contingency fee for cases that settle administratively and further provides that attorneys cannot charge more than a 25% contingency fee for cases that result in an award (through either judicial order or settlement) as a result of civil litigation. Similarly, most tort claims in Minnesota require contingency fee agreements because neither Minn. Stat. § 3.736 nor Minn. Stat. § 466.02 expressly allow for recovery of attorney fees by the aggrieved plaintiff.
If you still have questions
If you still have questions about whether or not you have a viable civil rights claim under federal or Minnesota law, give our office a call at (651) 771-0019 to set up a consultation with attorney Nico Ratkowski.
Disclaimer: This article was written generally and is not specific to the facts of your case. This article does not constitute legal advice and is not meant to constitute legal advice. Do not rely on this as legal advice. This article will not be updated; the information might be out of date at some point in the future. For your reference, this article was written on January 12, 2021.
Immigration Consequences from A Conviction Under Minn. Stat. § 152.025.2(1), Fifth Degree Possession of A Controlled Substance and Current Litigation
If you are not a United States citizen and were convicted under Minn. Stat. § 152.025.2(1), the Department of Homeland Security (“DHS”) can remove you from the United States. The Minnesota statute punishes someone who “unlawfully possesses one or more mixtures containing a controlled substance classified in Schedule I, II, III or IV, except a small amount of marijuana.” The two federal statutes that could subject you to removal from the United States after being convicted under Minn. Stat. § 152.025.2(1) are § 212(a)(2)(A)(i)(II) and § 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”). Generally, DHS will charge you under INA § 212 if you are undocumented / entered the United States unlawfully or under INA § 237 if you entered with a nonimmigrant visa or were lawfully admitted, or are a lawful permanent resident. Although there are differences between the text of these two federal statutes, they are quite similar. In short, they provide that if you were convicted of a violation of any law or regulation relating to a controlled substance, you are removable from the United States.
Our office, Contreras & Metelska, has been challenging DHS’ ability to remove someone based on a conviction under Minn. Stat. § 152.025.2(1) for few years now and we have recently asked the Supreme Court of the United States to review one of our client’s cases which turns on this issue. Our client was convicted of violating the Fifth Degree Possession of a Controlled Substance statute because she was in possession of two different type of drugs. She was placed in removal proceedings and charged with being removable under INA § 212(a)(2)(A)(i)(II). In order to determine whether or not someone is removable under the INA based on a state conviction, courts use a very elaborate and rather complex system of analysis called the categorical approach and, if necessary, the modified categorical approach.
In the case now on review, the main legal question was whether the Minnesota statute requires proof of the identity of the particular controlled substance in question beyond a reasonable doubt in order to convict someone. Our argument was that the statute only requires proving that an individual be found to have possessed a controlled substance beyond a reasonable doubt, regardless of the identity of the substance possessed. This distinction is important because persons convicted of violating Minn. Stat. § 152.025.2(1) cannot be found to have committed a “controlled substance offense” within the meaning of the INA unless the specific identity of the controlled substance is an element; if this is not true, as we’ve argued, the specific identity of the substance constitutes a mere means of commission and its identity becomes unimportant for inadmissibility purposes (at least as far as controlled substance offenses go).
Our office argued that our client is not removable under a categorical analysis of INA § 212(a)(2)(A)(i)(II) because the statute is overbroad and indivisible (an overbroad statute is indivisible if it provides alternative and interchangeable “means” of committing a crime rather than alternative elements which must be proven beyond a reasonable doubt) meaning that a conviction under Minn. Stat. § 152.025.2(1) is not a violation of a law or regulation relating to a controlled substance under the federal law.
At first, the Immigration Judge agreed with us and did not sustain the controlled substance charge; this allowed our client to apply for cancellation of removal for certain non-permanent residents or in the alternative, to apply for a green card through consular processing based on her qualifying relationship with a U.S. citizen relative. However, a few months later, the Immigration Judge bafflingly reversed her own decision. The Immigration Judge applied the modified categorical approach and found that Minn. Stat. § 152.025.2(1) was overbroad but divisible, despite previously finding the statute was overbroad and indivisible. The Immigration Judge held that the statute required the identity of the specific controlled substance to be proved beyond reasonable double which allowed her to conclude that our client was convicted of a violation of law or regulation relating to a controlled substance. As such, the Immigration Judge denied all relief and ordered our client removed from the United States.
We appealed the Immigration Judge’s decision to the Board of Immigration Appeals (“BIA”). We argued that the Immigration Judge was wrong in applying the categorical modified approach and finding that the Fifth Degree Controlled Substance statute required a proof of the particular controlled substance in question in order to sustain a conviction. However, the BIA affirmed the Immigration Judge’s decision after agreeing with the Immigration Judge’s holding that Minnesota law required a proof of the particular controlled substance in question in order to sustain a conviction.
We argued that neither the statute in question, Minnesota case law, nor Minnesota’s pattern jury instructions require the state to establish beyond a reasonable doubt the identity of the specific drug in question. We insisted in arguing that the state need only prove beyond a reasonable doubt that “a” controlled substance was possessed without regard to the specific substance possessed. Therefore, we argued, the specific identity of the drug is not an element of the offense and our client is not removable for a conviction of a violation of law related to a controlled substance. The Eighth Circuit unfortunately, and we believe incorrectly, ruled in favor of the DHS finding that the identity of the specific drug possessed is an element of the offense. See Rendon v. Barr, 952 F.3d 963 (8th Cir. 2020). The Eighth Circuit distorted and misread or misunderstood Minnesota judicial decisions to reach this conclusion.
Earlier this month, we appealed the Eighth Circuit Court’s decision to the Supreme Court of the United States (“SCOTUS”) by filing a Writ of Certiorari. See Villegas Rendon v. Barr, No. 20-186 (filed Aug. 19, 2020), on petition for writ of certiorari from Rendon v. Barr, 952 F.3d 963 (8th Cir. 2020). We argued that the Eighth Circuit’s decision is not only wrong, but that it conflicts with many of its sister circuits courts, incorrectly analyzes our client’s case under the categorical approach, and even ignores the documents in the record of conviction which clearly show that Minnesota can and will convict a person under Minn. Stat. § 152.025.2(1) without specifying which specific substance possessed formed the basis for the guilty plea and conviction.
Our office urged SCOTUS to consider the fact that our client was convicted under Minn. Stat § 152.025.2(1) for a single count of drug possession stemming from simultaneous possession of two different drugs. We argued that this fact alone proves that Minnesota law never requires the specific identity of the drug to be proven in a conviction for possession of controlled substances. We also urged SCOTUS to consider that Minnesota law does not clearly answer the question of whether the specific identity of the particular drug must be proven to obtain a conviction for Minnesota’s lowest level drug possession offense. We noted that even the Immigration Judge did not know what Minnesota law said on this issue since first she found that Minnesota law does not require the specific controlled substance to be identified to obtain a conviction but later that Minnesota law did require it (this is important because state law must be “clear” on whether the specific identity is an element or means). Since Minnesota law does not “clearly” and conclusively answer the question at hand, we argued, our client is not removable from the United States.
The main crux of our question is whether the identity of a specific controlled substance is required to be proven beyond a reasonable doubt in state criminal prosecutions when the state statutes in question disallow possession of controlled substances by reference to specific drug schedules rather than by reference to specific drugs. For example, if a statute criminalizes possession of controlled substances listed in Schedules I, II, or III, does such a statute necessarily require proving the specific identity of a controlled substance within one of those schedules, or does the statute merely require showing that a Schedule I, II, or III controlled substance was in-fact possessed? This is an important question because all 50 states have at least one controlled substance law which criminalizes actions relating to controlled substances by referencing schedules rather than substances. If our interpretation of these statutes is correct, convictions for violations of these state laws will usually be insufficient to trigger immigration inadmissibility or deportability.
Currently, the First, Third, Fourth, Sixth, and Eighth Circuits all provide that state-controlled substance laws which identify proscribed controlled substances by reference to drug schedules are equivalent to laws which identify proscribed controlled substances specifically by name or chemical structure. These decisions rest on the shaky premise that in order to prove a substance fits within a schedule, the substance itself must be proven. This premise is shaky because it fails to account for drug mixtures, in which multiple drugs are contained within a single mixture, some of which are controlled federally, and some of which are controlled only by the state.
Conversely, the Second, Seventh, and Tenth Circuits have all found that the state laws which identify proscribed controlled substances by reference to drug schedules are not equivalent to laws which identify and proscribe the substances specifically by name or chemical structure. In these circuits, a state statute which criminalizes possession of methamphetamine specifically will constitute a deportable offense, whereas a statute which criminalizes possession of Schedule I or II drugs will not constitute a deportable offense even if the person possessed methamphetamine and if methamphetamine is listed in either Schedule I or II. This is the approach we advocate for and believe is correct.
As an aside, the Fifth Circuit recently considered the same issue but avoided reaching the question by inventing a new overbreadth mechanism that allowed it to avoid reaching the divisibility question.
If you would like to obtain more information about this important case, please contact Contreras & Metelska, P.A. at 612-771-0019. Ask to speak to one of the three attorneys working on this case: Gloria Edin Contreras, Magdalena B. Metelska, or Nico Ratkowski.
Please note that this information is not and should not be considered to be legal advice. If you or someone you know was convicted of a crime related to a violation of a controlled substance, contact a knowledgeable immigration attorney with experience in the area of controlled substance laws.
1 You could also be subject to removal under 212 if you admit the elements of the controlled substance statute. The immigration consequences of “admission” to a controlled substance crime is beyond the subject of this blog.
Understanding the Freedom of Information Act
The Freedom of Information Act (“FOIA”) is a wonderful tool for collecting data from federal agencies.Lawyers will often advise their clients to file a FOIA request for one reason or another. In the context of immigration, attorneys often advise their clients to file FOIA requests with U.S. Citizenship and Immigration Service (“USCIS”), Immigration and Customs Enforcement (“ICE”), Customs and Border Patrol (“CBP”), the Office of Biometric Identity Management (“OBIM”), or the Executive Office for Immigration Review (“EOIR”).
The information the attorney seeks to glean from these requests will often inform important questions, such as what type of relief you may qualify for, and what types of relief may be off the table. For example, if CBP FOIA records show that you’ve been removed from the United States twice in the past three years, but you forgot to mention that to the attorney, this information will inform the attorney that they should not suggest you apply for certain types of relief which will save everyone time, and will save you money. Conversely, if FOIA records show that someone applied for an immigration benefit for you in 1999, which now makes you eligible for a different form of relief, this will allow the attorney to recommend the right course of action for you even if you forgot to inform your attorney about the previously filed petition.
The goal of this article is to explain to you, in the simplest terms possible, what the FOIA is, what you need to know about it, and what it can do. This article will also briefly talk about potential remedies that may be available to you if the government fails to comply with their responsibilities imposed by the FOIA.
Historical Background
First, some history—it’s important to understand where the FOIA came from in order to understand where it is now.
In the first half of the 1950s, the United States was in the grip of McCarthyism. One United States Senator, Mr. Joseph McCarthy, began a vociferous campaign against alleged communists in the U.S. government and other institutions. Although most of the persons alleged of being communists were not communists, they were nonetheless blacklisted and many lost their employment. In response to this blatant partisan fearmongering, and rapidly increasing governmental secrecy, Democratic Congressman John Moss championed the FOIA. Although Moss first suggested the FOIA in 1955, with the support of newspapers editors and journalists, he was unable to find Republican support for the bill until a young Republican named Donald Rumsfeld joined Moss’s efforts during the Kennedy and Johnson administrations. Despite this bipartisan support, President Lyndon B. Johnson, along with every federal agency, opposed the FOIA. Ignoring presidential opposition, the Senate passed its version of the FOIA and the House passed the bill soon after with a vote of 307-0. In 1966, President Johnson signed the bill, and the FOIA became law.
In its initial form, the FOIA was impotent because it contained no enforcement power. Federal agencies could ignore FOIA requests without consequence. However, in response to the Watergate scandal of 1974, in which President Nixon was caught with his hand in the cookie jar, Congress amended the FOIA, allowing individuals to sue the federal government if they failed to comply with their FOIA obligations. President Gerald Ford, at the request of, of all people, Mr. Donald Rumsfeld, vetoed the 1974 FOIA amendments on the ground that it was unconstitutional, imposed too great of a burden on federal agencies, and was likely to jeopardize national security. Congress promptly overruled this veto
Though the FOIA was amended by Congress on multiple occasions after the 1974 amendment, the most important subsequent changes to the FOIA regime, between 1975 and 2001, stemmed from Executive Orders. For example, in 1982, “President Ronald Reagan issued Executive Order 12356, which created new classification rules that made withholding potentially sensitive government information as a response to FOIA requests much easier.” President Bill Clinton later reversed or loosened these restrictions. Then, in 2001, President George W. Bush issued Executive Order 13233, which decreased access to presidential records, much to the chagrin of journalists and government watchdogs.
In 2002, Congress reentered the fray, passing the Intelligence Authorization Act to limit access to governmental records of foreign governments. In 2007, the OPEN Government Act of 2007, which updated who qualified as members of the news media (thereby allowing more persons to obtain cheaper access to records), was passed. In 2016, the Obama Administration passed the FOIA Improvement Act, which included modest reforms to the FOIA, including limits to when an agency may withhold information.
Administrative Compliance with the FOIA
Since roughly 2004, obtaining data from the FOIA has become harder and harder. Each new administration since George W. Bush’s seems to be more secretive than the last. George W. Bush’s administrative has been accused of being “the most secretive administration in history,” and government became even more secretive under the Obama administration. President Trump’s administration between 2016 – 2020 has followed this path, fighting certain FOIA requests tooth-and-nail, and simply ignoring others.
Because of the current 16-year trend towards government secretiveness by government agencies subject to the FOIA, it is important for people who are filing FOIAs to understand their rights under the FOIA, and to understand how these rights can be enforced in the face of government intransigence.
What Rights Does the FOIA Provide and How Do I Make a FOIA Request?
The FOIA allows any person, regardless of citizenship, to make a FOIA request. Generally, FOIA requests should be reserved for information that is not publicly available. If the information sought is not publicly available, a FOIA request may be submitted in written form to the agency. The FOIA request should reasonably describe the records sought. The vast majority of federal agencies accept FOIA requests electronically, including by web form, e-mail, or fax. A complete list of federal agencies can be found HERE. No specific form is needed to make a FOIA request, although using an agency’s form can sometimes make things simpler. Additionally, depending on how large and involved the FOIA request is, the agency is permitted by statute to charge certain fees, although these are generally waived as a matter of course so long as the fees are less than $25.
It is important to note that each agency handles its own records in response to requests. Within the context of immigration, this means as many as five separate FOIAs may need to be filed in order to get a complete history of one’s immigration history. Because USCIS, ICE, CBP, OBIM, and EOIR are all different agencies which control their own records, a thorough FOIA request will need to request data from each of these agencies. Additionally, depending on the underlying facts of any individual’s history, it may also be necessary to file FOIA requests with other agencies including, but not limited to, the Federal Bureau of Investigation (“FBI”), the Department of Justice (“DOJ”), etc.
A FOIA request can be made for any agency record, and you are allowed to specify the format in which you wish to receive the records (printed or electronic form, etc.). However, the FOIA does not require agencies to create new records, conduct research, analyze data, or answer questions when responding to FOIA requests, so FOIA requests typically need to be phrased carefully. Additionally, there are nine statutory exemptions to the FOIA which allow agencies to withhold certain data which falls within the ambit of any of the exemptions.
Once a FOIA request is submitted, the agency typically has 20 business days to make a “determination.” Courts have construed this “determination” requirement as requiring the agency to determine whether it will comply with the FOIA request; the agency is not required to answer the FOIA request within 20 business days. Although agencies typically send an acknowledgment letter, most such acknowledgement letters do not satisfy the “determination” requirement.
If the agency fails to make a determination within 20 business days, the requester has the right to file a lawsuit against the agency for noncompliance with the FOIA. However, if the agency issues a determination more than 20 business days after the FOIA request was filed, but before a lawsuit has been filed, the right to file a lawsuit for untimeliness dissipates, and the requester is instead required to go through the administrative appeals process before filing suit.
If the agency makes a determination before suit is filed (regardless of whether the agency has determined to comply or fight), the agency will likely do one or more of three things: (1) the agency will disclose all requested documents or state that no such documents were found, (2) the agency will disclose some documents and redact or withhold others and will state their reason for withholding, or (3) the agency will acknowledge that records exist but will withhold them in full and will state their reasons for so doing. Assuming the agency makes a determination before a suit is filed, the agency can take as long as is reasonably necessary to fulfill the request. In practice, this allows agencies upwards of 1-2 years, in many but not all instances, to respond fully to the request.
If the requester is happy with the agency’s response, nothing more needs to be done. If the requester is unhappy with the agency’s response, the requester has a limited window of time to file an administrative appeal. The denial/response letter should provide details on how and when to file such an appeal. There is not currently any sort of required filing fee for an appeal from a FOIA, so if you’re told otherwise, find a new attorney (most attorneys will charge legal fees for filing an administrative appeal, which is normal, but they should not be charging “filing” fees).
If the results of the administrative appeal are less than satisfactory, the requester is again allowed to file a lawsuit in federal court against the agency for noncompliance with the FOIA. If the litigant is deemed a “prevailing party,” they may be able to recover attorney’s fees and costs from the federal agency or agencies named in the lawsuit. The FOIA requester has six years from the date of the issuance of a decision on the administrative appeal, and if the requester has failed to file a lawsuit in the applicable period, they may refile the FOIA request to restart the statute of limitations.
FOIA litigation can be exceedingly complex, although some cases are quite straightforward. If you are considering a FOIA lawsuit, you’ll get the best results if you hire a competent attorney who has experience litigating FOIA issues. Because the merits of most FOIA litigation is tied to the strength and thoroughness of the initial FOIA request and any administrative appeal therefrom, it is highly recommended to retain an attorney to draft your initial FOIA request if you need the requested information for any important personal or immigration-related reason.
Conclusion
The FOIA is a powerful tool, and you can learn a ton from government agencies if you take the time to craft careful and targeted FOIA requests. If you have previously filed applications with government agencies, but you do not have copies of the application or results, your attorney may need to file a FOIA request before they can move forward with your case in order to make sure they do not file an application that will later come back to bite you, due to the eventual discovery of some important fact you forgot to tell your attorney. There is no need to hire an attorney to file a FOIA request, but doing so may aid your chances of receiving the response you want on the first try. Depending on which attorney you use, they may also be able and willing to help you file a FOIA lawsuit, should one be necessary, in order to help you enforce your statutory rights under the FOIA.
Disclaimer: This article was written generally and is not specific to the facts of your case. This article does not constitute legal advice and is not meant to constitute legal advice. Do not rely on this as legal advice. This article will not be updated, so the information might be out of date at some point in the future. For your reference, this article was written on October 5, 2020.
Understanding I-601A Waivers for Individuals in Removal Proceedings
f you or a loved one is currently in removal proceedings before the immigration court, you might have spoken to an attorney about filing an application for a “provisional unlawful presence waiver,” typically called a “waiver” or “I-601A” by immigration attorneys. You might have even paid them thousands of dollars to help you prepare your application, only to be told that you aren’t eligible to apply anymore. So, what gives?
Historical Background
First, some history—it’s important to understand where the provisional unlawful presence waiver came from in order to understand where it is now.
Before the provisional waiver process began in 2013, individuals had to leave the United States to attend their consular interviews and could only seek a waiver of inadmissibility after the consular officer made a formal finding of unlawful presence inadmissibility. These individuals were forced to stay outside the United States for many months, far from family, work, and community ties, while waiting for their inadmissibility waiver application to process. If the waiver was ultimately denied, the immigrant visa applicant would be stuck outside the country with no immediate way to return legally. Lengthy separation and uncertainty in the process meant that, for many families, this pathway to legal status was too risky to undertake. The Department of Homeland Security (DHS) understood this problem and responded by creating the provisional unlawful presence waiver.
The provisional unlawful presence waiver (Form I-601A) was made available for the first time on March 4, 2013 for immigrant visa applicants (people with approved I-130s) who can show that the applicant’s extended presence outside of the United States will result in extreme hardship to their U.S. citizen spouse or parent.
Now, instead of having to wait outside the United States for months or years while an inadmissibility waiver application is processed, the provisional unlawful presence waiver process allows certain immigrant visa applicants to request the waiver before they leave the country. This means they can wait in the United States the many months or years it takes for a decision on the waiver application; if the provisional unlawful presence waiver application is denied, the applicant may choose to postpone consular processing with the knowledge that they cannot presently overcome the unlawful presence inadmissibility ground if they depart. In the initial enacting regulation, DHS stated that “DHS anticipates that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives.”
The regulation which created the provisional unlawful presence waiver also explicitly detailed that DHS initially proposed excluding all noncitizens who were in removal proceedings from the provisional unlawful presence, except those whose: (1) removal proceedings had been terminated or dismissed; (2) Notices to Appear (NTAs) had been cancelled; or (3) removal proceedings had been administratively closed but were subsequently reopened to grant voluntary departure. However, rather than adopting this restrictive language, DHS instead decided to allow noncitizens in removal proceedings to participate in this new provisional unlawful presence waiver process if their removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A.
In August 2016, the provisional unlawful presence waiver was expanded to more applicants, allowing any beneficiary who can show hardship to a U.S. citizen or lawful permanent resident spouse or parent (instead of just to spouses or parents of U.S. citizens).
Between March 2013 and May 16, 2018, people in removal proceedings who had an approved immigrant visa petition (Form I-130) simply needed to pay the $325 immigrant visa fee with the Department of State’s (DOS) National Visa Center (NVC) and then file a simple noncontentious motion to administratively close their removal proceedings (which DHS usually joined or opted not to oppose). Immigration courts would routinely grant motions to administratively close removal proceedings if the purpose was to allow someone to apply for a waiver.
Once these two tasks were done, people in removal proceedings were eligible to apply for a provisional unlawful presence waiver by filing a Form I-601A with U.S. Citizenship and Immigration Services (USCIS). After they applied, they waited for the waiver to be granted or denied. If the waiver was granted, the next step would be filing a motion to recalendar the removal case and requesting voluntary departure around the same time that the immigrant visa interview is scheduled; this usually involved being outside of the United States for two weeks or less if no new unexpected issues arose after the applicant left the country. If the waiver was denied, the individual would file a motion to recalendar their case and would typically apply for different forms of relief available to persons in removal proceedings.
Recent Developments
This nice, sensible pathway to a provisional unlawful presence waiver, described above, changed drastically on May 17, 2018 when the Attorney General of the United States used their power to direct the immigration courts by issuing a decision called Matter of Castro-Tum. This decision removed the immigration court’s ability to grant motions to administratively close removal proceedings in most instances, but especially when the sole purpose for administrative closure is to allow an individual to apply for a provisional unlawful presence waiver with USCIS. In a single instant and with the stroke of a pen, every person in removal proceedings (which were not already administratively closed) who was going to apply for a provisional unlawful presence waiver became unable to do so because they could no longer administratively close their removal proceedings.
If you had already retained an attorney to apply for an I-601A waiver prior to Castro-Tum, and if you received a call or letter from your attorney’s office on or after May 17, 2018 stating you can no longer apply for a waiver, Matter of Castro-Tum is the reason you received that phone call or letter. Unfortunately, the Attorney General gave very little notice to attorneys of what would happen, and no one imagined he would end the entire practice of administrative closure so everyone was caught off guard.
How Does Castro-Tum Affect My Case?
Over the last two years, a lot has been happening. When Castro-Tum was first issued, it applied to people all over the country, no matter where they lived. Everyone was affected. However, on August 29, 2019, after a hard-fought court battle, the Fourth Circuit Court of Appeals (just one level below the United States Supreme Court) issued a landmark decision in Romero v. Barr. The Fourth Circuit determined that Matter of Castro-Tum was not lawful, and the Fourth Circuit consequentially vacated the Attorney General’s decision. Unfortunately, based on some procedural and structural minutia, the Fourth Circuit only had the power to invalidate Castro-Tum in the Fourth Circuit.
The Fourth Circuit’s Romero v. Barr decision was important because it means that if your immigration court case was or is taking place in Maryland, North Carolina, South Carolina, Virginia, or West Virginia, you are once again eligible to have your immigration court case administratively closed so that you can apply for a provisional unlawful presence waiver! But if your removal proceedings are not in one of these five states, Romero v. Barr does you no good.
After the Fourth Circuit’s decision invalidating Castro-Tum was announced, attorneys started bringing similar challenges in other parts of the country and, on June 26, 2020, the Seventh Circuit Court of Appeals also struck down Castro-Tum in the case of Morales v. Barr. Once again, however, the Seventh Circuit’s ruling only invalidated Castro-Tum in the Seventh Circuit.
The Seventh Circuit’s Morales v. Barr decision affects persons whose removal proceedings are located in Illinois, Indiana, and Wisconsin. People in removal proceedings in these three states, in addition to the five states in the Fourth Circuit, are now eligible to administratively close their removal proceedings in order to apply for a provisional unlawful presence waiver. However, if your removal proceedings are not in the Fourth or Seventh Circuits, these two decisions do you no good.
In addition to the two cases mentioned above, there are currently pending challenges to Castro-Tum in:
the Second Circuit (consisting of Connecticut, New York, and Vermont)
the Third Circuit (consisting of Delaware, New Jersey, and Pennsylvania)
the Sixth Circuit (consisting of Kentucky, Michigan, Ohio, and Tennessee), and
the Ninth Circuit (consisting of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington).
Other appeals in other circuits may also be pending. If any of these federal courts of appeals rule the same way as the Fourth and Seventh Circuits, more people will be able to administratively close their removal proceedings in order to apply for a provisional unlawful presence waiver.
In addition to the challenges to Castro-Tum currently being fought out in the various courts of appeals, our Minnesota immigration firm, Contreras & Metelska, has been litigating a case in the U.S. District Court for the District of Minnesota which challenges Matter of Castro-Tum in the context of a class action. The name of the case is Lopez v. Barr. The Lopez plaintiffs have not yet been certified as a class, but if the plaintiffs’ future class certification motion is approved, the lawsuit will be brought on behalf of all persons whose immigration court proceedings are located in Minnesota and who would be eligible to apply for a provisional unlawful presence waiver if only their removal proceedings were administratively closed. Right now, there are two named plaintiffs and it is expected that more will be added soon. Assuming the government’s motion to dismiss is partially or wholly unsuccessful, as is expected, our firm expects to obtain class certification before invalidating Castro-Tum in Minnesota. However, because this type of litigation typically moves at a tortoise’s pace, it is unclear when a final decision in Lopez v. Barr will be issued.
Summary
If your removal proceedings are in Illinois, Indiana, Maryland, North Carolina, South Carolina, Virginia, West Virginia, or Wisconsin, you are currently allowed to administratively close your removal proceedings to apply for a provisional unlawful presence waiver on Form I-601A. If you live in any of the other 42 states, you’re currently out of luck.
If your removal proceedings are in Alaska, Arizona, California, Connecticut, Delaware, Hawaii, Idaho, Michigan, Montana, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Tennessee, Vermont, or Washington, you might be eligible to administratively close your proceedings in the future in order to apply for a provisional unlawful presence waiver on Form I-601A, but only if your Circuit Court of Appeals rules in favor of the noncitizen litigants in currently pending cases.
If your removal proceedings are in Minnesota, you might be eligible to administratively close your proceedings in the future in order to apply for a provisional unlawful presence waiver on Form I-601A, but only if our firm is successful in our currently pending lawsuit in the District of Minnesota.
If your removal proceedings are anywhere else, it is unlikely you’ll be able to administratively close your removal proceedings in order to apply for a provisional unlawful presence waiver on Form I-601A anytime soon unless something drastic happens in the interim.
What to Do with This Information
If you were paying close attention, you might have noticed that each paragraph in the summary section, above, starts with “if your removal proceedings are in…”
This language is important, because the decisions of the Fourth and Seventh Circuits apply to all persons whose removal proceedings are within their geographic areas even if the person in removal proceedings no longer lives in those geographic areas. This means that people who don’t live in the Fourth and Seventh Circuits can move to a state within the jurisdiction of the Fourth or Seventh Circuits and apply to have their removal proceedings moved from wherever they are to a court which allows for administrative closure (speak to an attorney before doing this, however, as some of the courts, such as Charleston, South Carolina, have extremely high denial rates for other forms of relief including but not limited to asylum). The caveat is that you have to really intend to reside in the new state permanently (or at least for the foreseeable future); you can’t just move there to avoid the immigration law in your circuit. This typically requires setting down real roots, getting involved with your new community, enrolling your children in schools, finding new employment (if you’re eligible to work), etc. Also, if you’re really attached to your current immigration attorney, you’ll need to be aware that most immigration attorneys will be unwilling to represent you in immigration court if you move to a different state unless you’re able to pay their travel costs. If you’re okay with these tradeoffs, and if you’ve been thinking about moving anyway, and if you’re in removal proceedings, and if you really want to apply for a provisional unlawful presence waiver, be sure to at least take a look at some of the states which allow you to administratively close removal proceedings.
If you are not interested in moving to the Fourth or Seventh Circuits, all you can do is look for alternative forms of relief, make sure you stay up to date with the pending litigation (or better yet, tell your lawyer to), and pray that things change for the better soon.
P.S. Also, don’t forget to update your address with immigration authorities and with your lawyer immediately after moving!
Disclaimer: This article was written generally and is not specific to the facts of your case. This article does not constitute legal advice and is not meant to constitute legal advice. Do not rely on this as legal advice. Before moving to a new state and changing the venue of your removal proceedings, you are highly encouraged to speak with a lawyer who has experience representing people in immigration removal proceedings. This article will not be updated, so the information might be out of date at some point in the future. For your reference, this article was written on August 18, 2020.
Changes to the DACA Program
On June 18, 2020, the Supreme Court of the United States ruled in Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020) that the Department of Homeland Security’s (“DHS”) decision to rescind the Deferred Action for Child Arrivals (“DACA”) program violated the Administrative Procedure Act.
The Supreme Court’s decision meant that (1) eligible individuals who never had DACA should have been able to apply for DACA with U.S. Citizenship and Immigration Services (“USCIS”); (2) DACA beneficiaries should have been able to apply for advance parole again (advance parole is permission from the government to re-enter after travel abroad); (3) Current DACA recipients can continue to file a renewal DACA request; (4) DACA recipients whose DACA expired one year ago or less can still file a renewal DACA request; (5) DACA recipients whose DACA expired more than one year ago cannot file a renewal DACA application but can file an initial DACA request; and (6) DACA recipients whose DACA was terminated cannot request a DACA renewal but can file an initial DACA request.
Unfortunately, the DACA victory from the Supreme Court’s decision was short-lived. On July 28, 2020, the Department of Homeland Security announced that effective July 28, 2020, USCIS will reject all pending and future initial requests for DACA, reject all pending and future applications for advance parole absent exceptional circumstances, and limit the period of DACA renewals to one year.
USCIS will continue to adjudicate properly submitted DACA renewal requests.
If you have any questions about the new changes to the DACA program, feel free to contact our office to set up a meeting with one of our attorneys.
The COVID-19 Fallout on the Immigration Procedures
The COVID-19 pandemic has disturbed, uprooted, and distorted every aspect of our daily lives. But how has the pandemic affected the U.S. immigration system?
The pandemic has resulted in massive operational and logistical restrictions on immigration services in the United States and abroad. Border closures and temporary standstills in administering asylum claims that have made it impossible for those fleeing conflict areas to evacuate and seek asylum. All entries into the United States, along both borders have been severely restricted. Foreign students are struggling to get emergency F-1 visa interviews scheduled before the Fall semester of school starts. Multinational executives are being denied entry and are consequentially unable to personally oversee their financial investments in the United States. Nationally renowned foreign-born entertainment troupes and comedians are being forced to cancel shows and tours. Provisional unlawful presence waiver applicants who have been waiting in line for an immigrant visa interview, for years, are having their interviews cancelled without any indication of when such interviews will be rescheduled. Noncitizens travelling through certain countries, including most of Europe, are being forced to quarantine for two weeks in the event they’re even able to enter the United States.
On top of all of this, tens of thousands of people remain in immigration detention, many of whom are nonviolent, in facilities that are breeding grounds for COVID-19 and which lack the resources to prevent the spread of COVID-19. These detained individuals are being unnecessarily subjected to an unacceptably increased risk of contracting the supervirus known as COVID-19. These problems, along with many others related to immigration court, are aggravated and complicated by the fact that the pandemic led to the suspension of almost all immigration court hearings and limited the functioning of those few courts which remain open. For example, the Minnesota Court in Fort Snelling has been closed for all non-detained hearings since March and will currently remain closed for non-detained matters through at least August 17 (as of July 28, and is subject to change).
In light of the many restrictions in the government offices, at the border, and the grave danger of being placed in an immigration detention center which is unable to control the spread of COVID-19, one may ask, “how is my immigration case going to be affected?”
Longer wait time for Application
The United States Citizenship and Immigration Services (“USCIS”) is attempting to alleviate the effects of the virus on application processing by extending deadlines to respond to Requests for Evidence or other similar notices. Unfortunately, this attempt to infuse flexibility has created a foreseeable but substantial backlog. Complicating this issue is the fact that USCIS may run out of money in or around August 2020, which would make them less able to make final decisions on immigration applications, increasing the backlog further. On May 27, 2020, USCIS announced its plans to furlough a portion of its 19,000 employees if Congress doesn’t provide the federal agency with $1.2 billion in emergency funding to remain operational during the coronavirus pandemic. USCIS has begun issuing furlough notices to its employees and anticipates that the agency will need to furlough approximately 13,400. However, on July 27, 2020, Senator Patrick Leahy (D-VT) announced that USCIS has agreed to postpone the furloughs of more than 13,000 USCIS employees from August 3 until August 31.
Right now, USCIS is still up and running. Although there is a backlog and anticipated longer wait times for decisions and notices, you may still submit all applications types at this time.
Court Delays
The COVID-19 pandemic closures hit immigration courts hard, which has strained an outdated court system that already was struggling with a backlog of more than a million cases prior to the declaration of a pandemic. The Immigration courts first shut their doors, in response to COVID-19, in March 2020, indefinitely postponing scheduling and individual hearings for hundreds of thousands of people. Since then, certain immigration courts have resumed hearings, but solely for noncitizens held in ICE detention. A minority of immigration courts have resumed hearing non-detained matters, but the immigration court in Minnesota is not among them. As of time of writing, the Minnesota court in Fort Snelling will remain closed through at least August 17, 2020. For those who have had Master calendar hearings postponed, most are being rescheduled for the end of 2020 and early 2021. For individual hearings, dates are being pushed out until 2023. There has been unofficial chatter speculating that, when the Minnesota immigration court does reopen, it will only open for individual hearings and will continue to postpone scheduling hearings or find a way to make scheduling hearings obsolete.
If you have an upcoming hearing that has not been postponed yet, plan on attending, as notice of closures are a few weeks out. However, do not be surprised if you hearing is rescheduled. Be reassured that a postponed hearing has no bearing on the outcome of your case.
What Can You Do?
Stay in communication with your attorney. We are monitoring the USCIS operations and court openings regularly. If you don’t have an attorney yet, schedule an appointment and we’ll do our best to help you navigate your immigration case during these unprecedented times.
Covid-19 Business Plan
In light of the recent Covid-19 pandemic grappling our community, the country and the world, we at Contreras & Metelska, PA want to reassure our clients and our community that we continue to remain dedicated to serving their legal needs as well to reassure them of our continued advocacy on their behalf. Our attorneys and staff will continue to help immigrants address their concerns during these troubling times.
In an attempt to protect the well being of our clients and staff and to continue to serve the better good of our community, our firm will drastically reduce the number of in-person appointments. We will continue to assist prospective and current clients via phone and email, and in urgent circumstances, provide limited office appointments to address issues that require direct in-person meetings.
Our office will continue to receive calls to schedule intakes and meetings, and our staff remains dedicated in assisting with your questions and concerns. We encourage everyone to reach out to us via our website contact request form to set up new appointments. For current clients, we encourage you to use our web page link if you need to make a payment. Otherwise, we continue to take payments over the phone.
As many of our staff members will be working remotely for the next few weeks, clients should expect responses to be a bit slower than normal. While we will strive to handle each matter as promptly as possible, certain delays in communication are inevitable when the entire staff cannot be housed in the same building.
We greatly appreciate your patience and trust in these difficult times.
Sincerely,
Contreras & Metelska Team
Phone Numbers and Links:
Office Phone Number: 651-771-0019
Emergencies Only:
Abogada Gloria Contreras Edin: 651-890-2996
Abogado Gustavo Ortiz: 612-425-6718
Abogada Magdalena Metelska: 651-260-2382
Abogada Mary Shaw: 612-425-6715
Payments | Contact:
THE NEW PUBLIC CHARGE RULE – WHAT DOES IT MEAN EXACTLY?
“Public charge” is a rule that immigration can use to deny an application for permanent residence (“Green card”) OR certain other visas to enter the USA from abroad.
Public charge DOES NOT APPLY TO: U.S. citizens or applicants, asylees or refugees, Special Immigrant Juvenile Status, TPS or DACA, VAWA, U or T visas or green cards based on these visas, or green card renewals. The public charge rule considers all of the applicants circumstances such as income, employment, health, education or skills, family situation and the family/sponsor income, and whether a person (not a family member) has used certain public benefit programs.
DOES PUBLIC CHARGE AFFECT YOU?
Do you already have a green card?
Public charge does not apply. But, if you plan to leave the country for more than 6 months, it is a good idea to talk with an immigration attorney. The public charge test is not part of the U.S. citizenship application.
Are you applying for: Citizenship, Green Card renewal, DACA renewal, U or T Visa , Asylum or Refugee status, TPS, VAWA, Special Immigrant Juvenile Status, Green Card based on U/T/SIJ, VAWA?
Public charge does not apply to you for these applications. You may use any benefits for which you qualify, now or in the future.
Do you or your family plan to apply for a green card or visa from inside the U.S.?
The new public charge test may apply. You should talk with a qualified immigration lawyer who understands the new rule to see if it applies to you or your family. There are many benefits’ programs that will not affect applications.
Does your family plan to apply for a green card or visa from outside the U.S? States?
U.S. consular offices in other countries use different rules. Before making a decision about your case or about public benefit, talk to a qualified attorney about this.
AS OF OCTOBER 15, 2019: Receipt of these benefits will be considered:
· Cash benefits (SSI, MFIP, General Assistance)
· SNAP/Food stamps/EBT
· Medicaid with some exceptions
· Federal public housing/Section 8
AND Immigration officials will more closely look at your other circumstances listed on the front of the brochure.
The New Rule DOES NOT apply to these programs:
**These programs are safe to get if eligible.
· WIC
· CHIP
· MinnesotaCare
· Medicare
· Emergency Medical Assistance (EMA)
· Medicaid for children under 21, pregnant women
· Child care
· Head Start
· Food banks
· Shelters
· Energy Assistance
· Unemployment
· Workers’ Compensation
· Veterans benefits
· Adoption
· Foster care
· School meals
· EITC
· Immunizations
· Public health testing/ treatment for communicable diseases
Beginning October 15, 2019, the Government will apply this new rule, but the old rule applies to requests pending or submitted before that date.
ALWAYS SPEAK WITH YOUR LAWYER FIRST BEFORE YOU DECIDE TO RECEIVE GOVERNMENT BENEFITS.
THE ELECTIONS: YOUR PARTICIPATION
With the elections coming up you might be wondering how you can participate and contribute to your cause. It is important to know in which ways you are able to contribute your time during this campaign season.
The federal law has rules and regulations about who can and cannot donate and contribute to political campaigns in the United States on the federal, state, or local level. Only citizens of the United States and Legal Permanent Residents are allowed to donate money to a political party or campaign, as well as work for them.
Unfortunately, even if you have legal status of some sort like DACA, a U-Visa, or have granted asylum, for example, and wish to donate money or work for compensation for a political campaign, you are not able. This does not mean you can’t help out, you are more than welcome to volunteer for no compensation for whatever campaign you had in mind, you just cannot be compensated or give money to the campaign.
There can be no money to or from a political party or campaign if you are a foreign national. A “foreign national” includes: foreign citizens (not ones that also have U.S citizenship), immigrants who are not lawfully admitted for permanent residence, foreign governments, foreign political parties, foreign corporations, foreign associations, and foreign partnerships.
If any individual just listed above gives money to or receives money from a political party or campaign they are subject to FEC enforcement action, criminal prosecution, or both as well as the political party or campaign in question. So remember for your safety, unless you are a United States Citizen or a Legal Permanent Resident of the United States, there should never be an exchange of money between you and a political campaign and/or party.
Readers should consult the Federal Election Campaign Act and Commission regulations, advisory opinions, and relevant case law for additional information.
HOW TO FIND A FAMILY MEMBER OR FRIEND DETAINED BY ICE
1. Check online through the ICE Online Detainee Locator System
If your friend of family member detained by ICE is 18 years of age or older, you may be able to find where he or she is detained online at https://locator.ice.gov/odls/#/index. You can either search for the person by entering his/her A-number and country of birth or if you do not know the A-number, you can search using the detained person’s first name, last name, country of birth, and date of birth. ICE policy requires the Online Detainee Locator System to be updated within eight hours of release, removal, or transfer of detainees. Keep in mind that ICE may not have entered the name correctly in the system, in which case it may be difficult to find through the Online Detainee Locator System.
2. Contact local ICE office where friend or family member was arrested
If you cannot find your friend or family member online, try calling the local ICE office where your friend or family member was arrested. You can find the address and phone number of ICE offices throughout the United States at the following link: https://www.ice.gov/contact/ero.
3. Call ICE Detention Facilities
If you cannot find your friend or family member online or through the local ICE office, you can try directly calling ICE detention facilities. You can search for ICE detention facilities through the following link: https://www.ice.gov/detention-facilities.
It is important to know that any unaccompanied minor child who is taken for immigration enforcement purposes anywhere in the U.S. is not kept under the custody of ICE. They are instead held under the custody of the Office of Refugee Resettlement within the U.S. Department of Health and Human Services. The contact information for the Office of Refugee Resettlement is as follows: (800) 203-7001 and information@ORRNCC.com.
Your guide to applying for information under FOIA
Immigration Court Roadmap
Road-map to an
Immigration Court’s Decision.
What happens first?
The first hearing in removal proceedings is called a “master calendar hearing,” or “MCH.” The MCH is typically short, lasting about 15 minutes. The issues reviewed, however, are incredibly important
During the initial hearing, you (and the ICE attorney) can address any issues in your case. For example, you could be seeking a relatively minor request to change venue to another court location if you reside somewhere far from the court. You could also make a serious challenge against the initial accusations to try to stop proceedings entirely.
Immigration judges have the authority to “continue” (postpone) proceedings, or reschedule the MCH for a later date, if certain issues need time to resolve. For example, immigration judges are usually willing to allow extra time to pursue legal counsel. In some cases, the respondent might have a pending immigration petition, which might allow relief from the removal proceedings; immigration judges are sometimes willing to allow time for these petitions to complete processing. Your case could be continued for a short time or a very long time, even years.
If your case contains no further initial issues to review, and if you, the ICE lawyer, and the court view your case as ready to proceed, and the court will schedule your individual hearing. You will receive written notice of the date, time, and place of your individual hearing from the court clerk at the end of your master calendar hearing. You could be waiting months or even years for your individual hearing, depending on how busy the court is.
What’s Next? Individual hearings
Individual hearings are what they seem: The court focuses on you, yourr individual case to determine whether you are eligible for any forms of relief from removal and ultimately, whether you will be allowed to stay in the U.S. or not.
Because individual hearings give full attention to a specific case, they typically take much longer than the 15-minute MCH. The immigration court will schedule the individual hearing for a four-hour block, either in the court’s morning or afternoon session. During the hearing, the court will hear testimony and review evidence presented by the respondent and by the government lawyer. Each party is given opportunities to make final legal arguments as to why the respondent should or should not be removed from the United States.
In some cases, the testimony and evidence can take much longer than four hours, and other related issues can pop up that delay proceedings. In such cases, the court is required to continue the individual hearing to a later date. Of course, such a rescheduling is subject to the court’s schedule and to the availability of the participants. If your case requires a large amount of evidence and testimony, your individual hearing might take years to resolve.
Once all of the evidence has been presented, witnesses have testified, and the legal arguments have been made, the immigration judge will decide whether you should be removed from the United States. In most cases, the judge will announce the decision immediately in open court. In rare cases, the judge will choose to continue proceedings in order to craft a written decision. In either case, your hearings will have reached an end. However, this is not necessarily the end.
How do I fight a court’s decision?
Either you, or the government, can challenge an immigration judge’s decision. This can be done through a motion to reopen or a motion to reconsider made to the immigration court, or through an appeal directly to the Board of Immigration Appeals (BIA).
Motions to reopen a case are generally filed when one or both of the parties to a case have new facts to present that were not previously available but are relevant to the case. A motion to reopen must usually be filed within 90 days of an immigration judge’s final decision, but some exceptions do exist.
Motions to reconsider are sought usually when either party believes that the court interpreted the law incorrectly. Motions to reconsider must usually be filed within 30 days of the court’s decision, but, again, exceptions can apply.
You may also lodge an appeal directly with the BIA, so long as your appeal is filed within 30 days of the court’s decision. The BIA is a body of people within the EOIR that reviews decisions of the immigration courts. Although the BIA is not required to decide appeals within a certain time frame, the BIA strives to issue decisions as efficiently as possible. The BIA states that it generally seeks to adjudicate cases in no more than 180 days.
If you received an unfavorable decision in your case and want to fight on, or if the government seeks to appeal a decision in your favor, you could be facing six months or more of time added to your case. There are also possible routes to appeal BIA decisions through the federal appellate courts, which could add considerable time and expense to your case. Definitely consult an immigration attorney if you are considering the long appeals process.
Understanding the steps of Immigration Court
The Executive Office for Immigration Review (EOIR) runs the immigration courts. Each immigration court has one or more immigration judges. Your case will be heard by a single immigration judge, even if it takes place over a series of different days.
New Year! Are you already thinking about taxes?
Are you in the waiting process for a U-Visa?
The US Citizenship Immigration Services (USCIS) has been experiencing delays in processing many types of applications and petitions for immigration benefits, and those delays come in different steps in the process. We’d like to share some helpful information that can help you understand the process better, and where you might be in the process.
The number of U-Visa applications have gone up year after year, and by the latest estimate, it may take 2.5 years for an immigration officer to fully review a U-visa case for the first time. Given the fact that these numbers continue to grow, these lengthy processing times will only continue to grow.
The U-Visa Waitlist was created, to organize the growing list of applications. By law, the USCIS grants only 10,000 U-visas per year. This is known as the U-Visa “cap”, since there is a limit on how many visas are available per year. The USCIS continues to review applications, however, even after the cap is met.
If your application has been reviewed, but the cap is met for that year, you will be placed on the U-Visa Waitlist, which is an I-918 receipt notice. If you have not received that notice, that means your application has still not been reviewed.
Once on the waitlist, the USCIS will grant Deferred Action Status. That means you may be granted a work permit, based on the year of your deferred action status. These permits can last up to 2 years, and can be renewed.
The receipt notice, received after your application is filed, will include the filing date. Your attorney may inquire about the status of your application, if it is in the USCIS’s posted processing time. To see if your application has started its processing, the USCIS posts the current status of all applications, based on the filing date. Follow the link below, to see the posted processing times for initial application review.
Note: This post reflects public information, and should not be taken as legal advice. Only contracted, certified attorneys may make professional recommendations on your specific case or circumstance.
Getting ready for a court hearing, or trial
Being in a courtroom, in front of a judge, can be very stressful. Here are some tips from us, to help make the most of your appearance.
Tips for Courtroom Behavior
Be in the courtroom at least fifteen minutes before the trial is set to start. NEVER BE LATE.
Your witnesses must be ready to go when they call your case for trial. If you do not need a witness for several hours, make sure they are available within ten to fifteen minutes with a quick phone call.
Plan to be at court all morning. Your case might not be the first one called.
Do not bring your children. If your children will be speaking to the judge, they should wait outside the courtroom during the trial.
You may bring a friend for moral support. That person must not speak once they call your case.
Go into the courtroom and sit quietly to wait for them to call your case.
In the courtroom, do not: chew gum, eat, drink, read a newspaper, sleep, wear a hat, listen to earphones, use a cell phone, camera, or camera phone, or carry a weapon.
Go over your paperwork before the hearing. Know your papers. If you or one of your witnesses has filed a declaration in the case, the person's testimony must be the same as what they said in the declaration. You may use written notes or an outline during the hearing.
Stand when the judge enters the courtroom. Listen to the court staff. They may announce other times when you need to stand.
When it is your turn to go before the judge:
When it is time for your hearing, the clerk or judge will probably read all the cases scheduled for hearing at that time. When they call your name, you must answer and, if asked, tell the judge whether your case is agreed, a default, or if there will be argument.
When they call your case for hearing, walk to the table or podium for lawyers in front of the judge. Stand facing the judge. The judge will tell the parties when to speak. Speak only to the judge and only when it is your turn.
Opening and closing statements: You get to address the judge at both the start and end of the trial. You should summarize what you want and why. Be brief. Be clear. Be as specific as you can.
Listen carefully.
Do not interrupt or speak to the other party, even if they interrupt or speak to you. You want to appear polite and reasonable. Staying calm even when the other party is rude or lies will impress the judge. You will get your turn to prove the other party wrong.
If you need to explain something the other party said, wait your turn to speak or ask to speak again.
When you talk to the judge, start by saying "Your Honor."
Speak loudly and clearly so the judge can hear you. Use words, phrases and terms you understand. Keep your hands away from your mouth. Control your emotions. Stay calm.
Do not ramble when giving evidence to support your side of the story. You may have no more than five minutes to speak. Call the court clerk to find out the time limits for your county before you work on what you want to say.
Stick to the FACTS.
Do not talk about issues that do not support your case.
Try not to use first names in addressing anyone in the courtroom.
Only one person can speak at a time. A court reporter is taking down everything said in the courtroom. S/he can only record one speaker at a time.
The judge will ask questions. If you do not understand the question, say so. Do not answer until you fully understand the question.
Take your time when answering questions. Give the question as much thought as you need to understand it and come up with your answer. Explain your answer if needed.
It is okay to admit that you do not know the answer to a question.
If you are stating dates, times and places, be exact. If you cannot be exact, say that you are only estimating.
Be polite.
If the other party objects to something, do not interrupt until s/he states why. The court will then allow you to respond. Then the court will rule on the objection. Do not speak to the other party during objections.
Do not laugh or talk about the case in the hallway or restrooms of the courthouse. The judge, other party or his/her lawyer or witnesses may see or hear you.
When the judge makes a decision:
Control your emotions.
Do not express either gratitude or disagreement. Do not make faces.
Stay polite to the judge after the ruling. Ask the judge whether you or the other side should write the court order. (The judge will not write the order.) The judge must sign the order before it becomes effective.
Before you leave court, make sure you understand what happens next. Do you need to come back for another court hearing? Do you need to do a written legal argument or proposed court order? Do you need to do anything else? Will the judge make an order as a result of the hearing? Sometimes orders are written up right away - as you wait. Or the judge may think about the case and write an order later and send it in the mail. Politely ask if you do not understand what will happen next.
Do not announce in court that you plan to appeal. It is your right to appeal. But your decision to appeal does not matter to the trial court.