Immigration Law

Immigration law is very different from normal civil and criminal law. It is administrative law, under the U.S. Department of Justice. Immigration Courts are not under the federal (or state) judiciary, and immigration court judges are employees of the Justice Department.

In addition, to the Justice Department, both the Department of Homeland Security and the Department of State are heavily involved in administration of immigration law.

ICE (the immigration police), CBP (the border patrol), and the USCIS which handles all applications and petitions citizenship, immigration from foreign countries, and for legalization of certain undocumented  immigrants living in the United States, are all under the Department of Homeland Security.

The Department of State, which is responsible for issuing all visas, depends in many cases on approval of an application or petition by the USCIS before issuing a visa. In case of employment-based immigration, the Department of Labor is heavily involved. 

Immigration Court

Immigration law is not criminal law, and immigrants have none of the constitutional rights of defendents in criminal court. In fact, persons arrested (by ICE, the immigration police) and placed in "removal" (deportation) proceedings have no right to an attorney, no right to remain silent, and no presumption of innocence. (Yes, immigrants do have other rights, like freedom of speech and freedom of religion.)

The only issue in immigration court is whether or not to deport the immigrant. There are only two ways an undocumented immigrant in immigration court can avoid deportation: administrative closure which provides temporary protection and a possible work permit, and a "remedy" that will lead to legal status through a green card (such as adjustment of status).

Immigration judges are controlled by the Justice Department, and last year the Attorney General, Jeff Sessions, decided to change long-standing practices involving asylum and administrative closure that now make it even more difficult for persons in immigration court to escape deportation.

 

In addition, the policy of giving low-cost immigration bonds to immigrants arrested by ICE has ended, and most immigrants are sent to an ICE detention center where they will be held until their court hearing. An immigration judge at the detention center may hold a bond hearing, but bonds are often more than $10,000 and many detained immigrants are unable to raise the money. Many others are not even eligible for bond. At ICE detention centers deportation hearings are held in about two months and well over 90% of immigrants are deported.

The few immigrants that do escape deportation generally do so by approval of the same kind of applications and petitions that provide a path to legality for immigrants who are not in immigrations court. Thus it is definitely in an undocumented immigrant's interest while free to thoroughly investigate the possibilities of legalization rather than waiting until a possible ICE arrest and a hearing in immigration court. Prevention is the key to avoiding deportation since the chances of beating deportation once arrested and placed in immigration court are very small.

Prevention Through an Application to the USCIS

Under the current administration very few persons who are in removal proceedings escape deportation. Prevention is by far the best course of action for an undocumented who has not been arrested and sent to immigratin court. It is important that every undocumented immigrant determine if he or she qualifies for a path to a green card--or at least a means to get some kind of protected status. The various paths to a green card are applied for by submitting application forms or petitions to the United States Citizenship and Immigration Service (the USCIS) which is part of the Department of Homeland Security. The main legal work done by IMPORTA for undocumented immigrants consists of analyzing the possibilities for qualifying for a green card (becoming a legal permanent resident or LPR), and then providing legal representation for an application or petition if the immigrant qualifies. For more information on these applications and petitions go to Services

Only Two Organizations in Santa Barbara County Have Accredited Representatives Authorized to Practice Immigration Law: IMPORTA and Immigrant Hope 

Here is the Justice Department's On-line Listing: 

Found on the Justice Department Website

Who Is Authorized to

Practice Immigration Law?

There are just two categories of persons authorized to practice immigration law on a regular basis: 1. lawyers who are a member of at least U.S. one state or territorial bar association; and 2. "Accredited Representives" who work for a "recognized" nonprofit organization. The authorization for non-lawyer Accredite Representatives to practice immigratin law is found in the Code of Federal Regulations (CFR): 8 CFR § 292.2 a)(4): 

(4) Accredited representative. An individual whom EOIR has authorized to represent immigration clients on behalf of a recognized organization, and whose period of accreditation is current and has not expired. A partially accredited representative is authorized to practice solely before DHS. A fully accredited representative is authorized to practice before DHS, and upon registration, to practice before the Immigration Courts and the Board.

“Recognition” of a nonprofit organization and “accreditation” of some of its staff members by the Department of Justice allow non-attorneys working at the nonprofit to practice immigration law. (The "EOIR" referred to in the regulation is the Executive Office of Immigration Review, the agency of the Justice Department that has responsibility for the immigration courts, the Board of Immigration Appeals, and the regulation of the practrice of immigration law.)

The Two Levels of Authorization

The first is authorization to represent clients in their dealings with agencies of the Department of Homeland Security (ICE, the border patrol, but mainly the USCIS which handles all immigration applications and petitions).  The second is to represent immigrants before agencies of the Department of Justice--immigrants who have been placed in removal proceedings (sent to immigration court), and to file appeals for them with the Board of Immigration Appeals when the immigrtion judge decides in favor of their deportation. 

All recognized nonprofit (501(c)(3)) organizations applying for recognition have to undergo an authorization process that involves many requirements relating to reference libraries, permissible fees, annual audits, etc. All candidates for accredited representative at a recognized organization have to meet formal educational requirements in immigration law, show practical experience, and demonstrate good moral character. Immigration lawyers lawyers need to meet none of these requirements, and do not need to demonstrate any knowledge of immigration law or show any training in immigration law (which is rarely taught in law school). 

Every Accredited Representative may represent clients of their recognized nonprofit organization before agencies of the Department of Homeland Security, including filing applications with the USCIS which is the vast majority of immigration work for any practitioner. Only a very few Accredited Representatives apply for "full accreditation" with the right to represent clients in immigratin court, because the time involved and the cost of travel to immigration court are beyond the financial resources of most nonprofits (which are limited in the fees they are allowed to charge clients). Again, however, there are no educational requirements or demonstration of any knowledge for a lawyer to represent clients in immigration court.

 

Unauthorized Immigration "Consultants" 

A large percentage of immigrants rely on the services of illegal immigrantion "consultants" (often called "notarios" after the misleading practice of translating "notary public" as "notario" which refers to a type of lawyer in much of Latin America). Illegal consultants  thrive because there are relatively few recognized organizations with Accredited Representatives and immigration attorneys are known to charge very high fees--despite poor work done by many who lack basic knowledge of immigration law.

The unhealthy appeal of immigration law practice to both unauthorized  consultants and to authorized, but incompetent, self-styled immigration attorneys is the lack of any legal consequences of poor or even fraudent work. Punishment for fraud or malpractice requires complaints, and almost every immigrant who has been victimized is either too afraid of deportation to complain or lacks the knowledge or money to file a lawsuit. Thus despite periodic public campaigns launched by government agencies, bar associations, and the American Immigration Lawyers Association against "notario fraud," nothing seems to change. The EOIR does suspend lawyers from the practice of immigration law, but most such suspensions result not from client complaints but because the suspended lawyers were first suspended or disbarred by a state bar association for some malpractice issue unrelated to immigration law. Education and local assistance to victims of immigration malpractice and fraud remain the only tools available to protect immigrants from exploitation.

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