Confused about the immigration system? This page gives some basics. Over time, we will expand it to give more useful information on how you can avoid problems and take advantage of programs that exist to solve a variety of immigration problems.
The current immigration system is divided between several divisions of the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR) which is part of the Department of Justice (DOJ). In addition, persons filing applications outside the United States do so through U.S. Consular offices which are under the State Department. Finally, decisions in immigration court may be appealed outside the Executive Branch of the government to the U.S. Judicial Branch (one of the 9 U.S. Circuit Courts of Appeal: for us, that's the Ninth Circuit Court in San Francisco).
Most of the contacts you may have with immigration will be with one of four divisions of Homeland Security: the Citizenship and Immigration Service (USCIS or simply CIS), which handles all the processing of applications, conducts interviews, and approves or disapproves of applications; Immigration and Customs Enforcement (ICE) which are the internal immigration police; the Customs and Border Patrol (CBP) which polices the borders and ports;and the Office of the General Counsel which supplies the prosecutors--the lawyers who will bring charges against you to deport you if you appear in immigration court.
The CIS: The CIS presides over athe very complicated and confusing immigration system which developed out of years of changing and contradictory laws. In many cases, persons are "grandfathered" when an immigration law is changed, so that one law may apply to one applicant and a completely different law may apply to another who appears to be in the same situation except the second person arrived in the U.S. later than the first.
The CIS has a very good website (The CIS has a very good website (www.USCIS.gov) that makes it possible for many applicants to do much or all of the work by themselves. However, it is important to avoid pitfalls as many applicants who have gone to a CIS interview seeking a benefit have been deported. (See the chart above: the CIS issues a Notice to Appear or NTA which means you are arrested by ICE, placed in an ICE detention center as part of a Removal Proceeding which may lead to your deportation.) Although many CIS agents are sympathetic to immigrants, others are not, and even those who are sympathetic will follow the law as they understand it. (Since they may not interpret the law correctly, it is useful to have a good lawyer or accredited representative representing you at any important CIS hearing).
IMPORTA believes that every immigrant, especially every undocumented immigrant, should learn as much as possible about his or her case, and the cases of other family members. There are simply not enough lawyers or Accredited Representatives to handle all the immigration cases, so many people who might be eligible for a benefit end up deported, often because they seek the services of an incompetent "notario" who doesn't really understand the immigration law.
Even if you have the money to pay a lawyer, depending on a lawyer to get you out of trouble often does not work for several reasons. First, improving your immigrantion possibilities may require months or years of planning; second, any lawyer can do immigration work, but only a few are truly competent in the area, and even competent immigration lawyers may specialize; and third, trying to get an immigration lawyer to intervene when you after you have been arrested by ICE is very expensive and often too late.
The key is dealing with the CIS is to understand your possibilities and develop new possibilities over time, and then make sure that when you do file an application for a benefit that it is correctly written and properly supported with documents. You also need a backup plan in case you are denied.
The ICE: ICE was formed within Homeland Security by combining the old Immigration and Naturalization Service Programs Division with the anti-terrorism functions of the FBI. This had terrible consequences for immigrants. In the past, immigration was considered mainly an economic issue. Immigration was to be controlled to protect American workers. Of course, the huge American corporations that emerged in the late nineteenth century wanted cheap labor, whereas the labor unions often strongly opposed the immigrations of cheap labor. There was a lot of racism and ethnic bias involved as well: first, against Irish Catholics, then against against Chinese and Japanese immigrants; against Jews, against Southern and Eastern Europeans ("kikes," "chinks," "Japs,"wops,", "dagos," "pollocks,", "hunkies," etc.) Of course, Mexicans had there own derrogatory names as well.
But this economic and racist bias, reflected in immigration laws which favored immigration from northern Europe, was made much, much worse when immigrants were lumped in with terrorists. ICE attracted hard-core anti-immigrant types who seemed to think that catching and deporting imigrants was the same as catching terrorists (even through there is no recorded case of a terrorist crossing the Mexican border into the US). When the Obama Administration tries to impose a policy of leniency to some low-priority categories of undocumented immigrants on humanitarian grounds, (such as the DACA program), ICE agents, through their union, resist. In fact, the union is now suing Janet Napolitano, claiming that DACA is against the law, and they just want to follow the law doing their job (deporting as many "illegal" immigrants as they can).
In fact, the founding document of ICE is their 10-year plan, Endgame, which presents, in effect, a program of ethnic cleansing: tracking down and expelling all 10 million (or more) undocumented immigrants from the county. This contradicts the policies of both the Bush and Obama adminstrations, both of which oppose the deportation of most undocumented immigrants on both economic and humanitarian grounds.
ICE arrests immigrants in several different ways. Most common, ICE has offices in jails and prisons throughout the county When an immigrant is identified as being a likely "illegal" through profiling (CAP or the Criminal Alien Program) or through a fingerprint match (Secure Communities) ICE will request that a detainer, or ICE hold, be placed on the prisoner. This means that the jail or prison will hold the prisoner for an additonal 48 hours to give ICE time to come to the facility and arrest the prisoner. In practice, prisoners are often held longer since law enforcement often shares the anti-immigrant views of ICE.
ICE also has a Fugitive Operations Program that is constantly searching for undocumetned immigrants who missed appointments, who refused to leave the country under a voluntary departure arrangement, or in some other way excaped a deportation order. Homes and workplaces are raided by ICE to take away people whose names are on their list, but often ICE ends up arresting other family members or acquaintances who happen to be in the location raided.
ICE also conducts workplace raids which end up with mass deportation of large numbers of workers. In some cases, these workers have been charged with document fraud for using false social security cards.
Some juvenile facilities--for example The Santa Barbara County Juvenile Hall--actually report minors suspected of being undocumented to ICE and once these juveniles have served their sentences they are handed over to ICE for deportation. In the first six months of 2012, about 1/3 of the minors booked into Juvenile Hall were reported to ICE as suspected undocumented, and almost 30% were handed over to ICE for deportation. This is not required by law and either represents extreme hostility towards immigrants or callous budget-cutting on the part of the County. (Recently ICE has turned juveniles over to the Office of Refugee Resettlement, part of Health and Human Services, to be placed in facilities throughout the country. Some are released to their parents, some are moved to ICE facilities.)
Finally, some counties (not in California) have signed agreements with ICE (the 287 (g) program) to have local police trained to serve as immigration agents, checking the immigration status of those stopped for one reason or another (legal or illegal!) and turning suspected undocumented persons over to ICE directly. Although this program does not exist here, some individual anti-immigrant police officers do this work in violation of most police department policies. The way they do this is to arrest the immigrant on some pretext and take them to the County Jail where ICE will identify them and arrest them when they leave. A police officer has 24 hours to file charges and by then the damage is done even if no charges are filed. One way of arresting a suspected undocumented immigrant is California Vehicle Code 12500 (driving without a valid California license). Although generally treated as an infraction punishable by a fine, it is a "wobbler," classified as a misdemeanor, so an anti-immigrant police office can arrest the unlicensed driver and take him or her to the County Jail for booking.
Once ICE arrests you, agents will do everything possible to get you to sign a document in which you agree to be deported without seeing a judge (this Stipulated Removal or Traslado Voluntario) saves ICE having to keep locked up for months waiting to see an immigration judge. But never sign this without consulting a good immigration lawyer or accredited representative first! (This is discussed below). If you don't sign, either you will be released on your own recognizance, released on a bail bond (minimum $1500) or sent to an ICE detention center someone in the country. Minors taken into ICE custody will generally be turned over to Office of Refugee Resettlement which is part of the Department of Health and Human Services, although they are still in Removal Proceedings. They may be returned to their parents or an approved caretaker in the community they were living in pending appearance before an immigration judge.
The ICE detention centers are often located far from your home and it may be difficult for your family or even your lawyer to stay in touch, so you should try to be released on your own recognizace or be allowed to post bond. This requires a petition to the immigration court. You may also, if you think you have no chance of being granted relief and avoiding deportation, request Voluntary Departure. If approved, you are given 30 days or more to wind up your affairs, buy a ticket to your home country, and leave on your own without the negative consequences of deportation. ICE doesn't generally like to recommend these, but that is up to the immigration judge.
Most undocumented immigrants have only one goal with respect to ICE: avoid doing something that leads to your arrest! If arrested, never talk without consulting a lawyer or accredited representative! In the next section, there is a discussion about how to ado this. Especially note the part about how to avoid bdeing pressured into signing the agreement to be deported without seeing a judge, called Expedited Departure (Traslado Voluntario).
The CBP: This is still known as the Border Patrol, the name used uwhen it was under the old Immigration and Naturalization Service (INS). But CBP also took over the work of the Customs Service that was under the Treasury Department. For undocumented immigrants, however, little has changed except that anti-immigrant hysteria has led to strict border enforcement, walls, and electronic surveillance which has made it much harder to enter the US on foot, and has led to many deaths in the desert.
The photo shows a typical section of the "improved" US-Mexican border
The Border Patrol used to send most immigrants back into Mexico with a Voluntary Return procedure. Now the Border Patrol often formally deports immigrants using a process called Expedited Removal. The Border Patrol also stops and arrests immigrants well inside the border. In many ways, ICE and CBP share strong anti-immigrant feelings and do similar work.
Office of the General Counsel: This is similar to the District Attorney's office in the criminal justice system. Like the DA's office here in Santa Barbara County, there is close cooperation between the Homeland Security prosecutors and ICE. In fact, a large grouup of prosecutors are actually assigned to work specifically with ICE. Thus when the top level of the administration advocates "prosecutorial discretion" for low priority undocumented immigrants, the prosecutors themselves may create barriers. This has led to relatively few requests for prosecutorial discretion actually succeeding. The DACA program, however, bypasses the prosecutors by leaving the decision to grant deferred action to the CIS. (It is rumored that ICE fought hard to control the program, but lost out to the CIS.)
You are best off if you have a good immigration attorney who is used to appearing in immigration court to represent you, although some undocumented immigrants have successfully defended themselves (pro se) You may also choose a family member, law student, fully-accredited representative, or priest or minister who knows you well to help represent you. If you choose a lawyer, we recommend an experienced Los Angeles immigration attorney who is in court all the time, and who will not charge you travel time.
The EOIR: The EOIR is not under Homeland Security but rather part of the Justice Department. It oversees the immigration courts, and the Board of Immigration Appeals (BOI) that sets the rules for the courts, handles (mostly written) appeals of immigrantion court decisions, accredits trained employees of recognized non-profits doing immigration work, and disciplines lawyers who violate immigration court rules or engage in unethical practices. (IMPORTA is recognized by the BIA, and the BIA has accredited our employee Patricia Carlyon to represent clients before ICE and the CIS.)
Immigration Court judges decide whether you may be released on your on recogniance or on bail, whether to grant you Voluntary Departure, whether to deport you, whether to grant your request for asylum, or to let you remain in the country under one status or another while you file documents with the CIS to normalize your status. Your lawyer can file an appeal (usually written) with the BIA to review your case (the BIA does not hear many cases in person).
The Ninth Circuit Court of Appeals: Your immigration attorney is also generally authorized to appeal an unfavorable decision out of the immigration court system to the Ninth Circuit Court in San Francisco. The Ninth Circuit is one of the more liberal federal appeals courts, and has made several decision that are more favorable to undocumented immigrants living in the ninth district (all of California among other states). This means that a good immigration lawyer or accredited represenyative may be able to show you that you have of chance of staying in the US, perhaps on the road to permanent residence, by using a Ninth Circuit decision as a precedent. Although an accredited representative may alert you to a favorable decision of the Ninth Circuit Court, even a fully-accredited representative cannot actually represent you before the Ninth Circuit Court (although you can represent yourself-not easy!)
Question: How Do Undocumented Immigrants Get Into Trouble with Immigration?
Most immigrants get into serious trouble with Homeland Security in one of 5 ways:
1. You are stopped by the Border Patrol (CBP) trying to enter the US and are immediately deported. This process, in which no judge hears the case, is called Expedited Removal. It has the same consequences as other types of deportation: it will be difficult for you to ever live in the US legally with papers.
2. Local police arrest you on a real or made up charge, then take you to the County Jail, where they profile and/or trick you into revealing that you are not here legally. This profiling program is called CAP (Criminal Alien Program). It is not the same as Secure Communities which relies on fingerprint matches that identify fewer undocumented immigrants than CAP. Nothing is more important for your chances of avoiding ICE than avoiding doing something stupid (drunk in public, open bottle law, petty shoplifting). Even worse is fighting--especially with you spouse. Domestic violence is a very serious offense.Once you are arrested, say nothing except--"I'd like to talk to my lawyer". Nothing else. ICE may use false threats to get you to talk. (And the better your English is, the more chance you have of avoiding profiling.)
Until recently ICE would issue a Detainer (or hold) request asking the jail to keep the prisoner for up to 48 hours beyond his/her scheduled release to make it easier for ICE to take the prisoner into custody. In 2014 a court decision held that holding prisoners for ICE beyond their release date was unconstitutional. As a result many Sheriff's Departments are no longer honor ICE detainer requests.
3. You work for a company that employs a great number of undocumented immigrants. These copies may be raided by ICE and all the workers caught are then put in removal proceedings (scheduled to see an immigration judge who decides whether or not to deport you. These raids have occurred less often in recent years.
4. You don't pay a fine or you miss a court appearance. This may not seem like a bid deal, but it is. You are then considered a fugitive, and police are looking for you. If you miss an immigration appointment, ICE will be looking for you. Then if you are stopped for any reason, the police will radio in your name and the warrant will come up in their computer. Then you will be arrested and taken to the County Jail.
5. You apply for adjustment of status through a marriage to a US citizen or for other reason when you have prior deportations or other serious problems on your record. When you go in to your USCIS interview you will be immediately turned over to ICE for removal. Many "notarios" and other non-professionals doing immigration work without being accredited representatives or attorneys have gotten clients deported this way.
What Happens If You Are Arrested BY ICE?
ICE does not want you to see a judge. You may actually have a good case for being allowed to stay. Since there is not enough money to keep everyone arrested in an ICE detention center for months waiting to see a judge, the goverment has designed two ways to speed things up, one good and one bad:
The Bad: The government has a type of deportation called "Expedited Removal" (Traslado Voluntario). Instead of waiting to see a judge, you will be threatened and persuaded to sign a document giving up your right to see a judge and to be deported immediately. You may be told that if you don't sign, you will be sent to Federal Prison for years, or the wait to see a judge is years, or ICE will go after your family. Or the ICE agents may pretend to help you get out quickly. The bottom line is that they want to deport as many people as possible at the lowest possible cost. And getting you to sign any way they can is the easiest way to do that. Just say: I'm not going to sign anything until I talk to my lawyer. Nothing else!
The Good: The top level of the Obama Adminstration says that the solution to the lack of money to deport all arrested undocumented immigrants is to prioritize in terms of two things: first, the worst criminals are to be deported; those who committed only minor crimes are much lower priority. Second, the government has actually listed categories of persons who are low deportation priority for humanitarian reasons. These persons are to be given "Prosecutorial Discretion", that is the prosecuting lawers may consider simply letting these persons go ("Deferred Action"--it is not a path to legal status-- but usually the person get a work permit) if they can prove that they fit the criteria listed (DACA is a formal version of this, since children brought to the US by their parents are on the low priority list.) To get prosecutorial discretion requires either the help of a good lawyer or accredited representative, or careful preparation long before the arrest occurs.
There is a conflict because many of the low priority people are vulnerable to the ICE pressure to sign the Expedited Removal form. In fact, most ICE agents are strongly anti-immigrant and want to deport every "illegal" alien (ICE uses the vocabulary of Tea Party). Recently, the ICE union even sued the ICE Director, John Morton, because they claim DACA is illegal! It takes background knowledge, preparation, and help to avoid crumbling under ICE's pressure tactics and signing the deportion order.
It is important to realize that prosecutorial discretion is not the only way to avoid being deported. If you qualify, some of the other ways such as Cancellation of Removal actually lead to permanent residence. It is really worthwhile researching your case now and not waiting for something bad to happen. In fact, sometimes an undocumented alien can actually gain American citizenship through their relationship with a parent or grandparent. And even if none of these options are available, you may be able to get Voluntary Departure which means returning to your country without any of the very negative consequences of deportation (Removal by a Judge; Stipulated Removal; Expedited Removal).
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