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What You Need to Know About Deportation

President-elect Donald Trump has softened his stance on immigration. During his campaign, he vowed to deport all the 11 million undocumented immigrants. In a recent interview however, he said that he would prioritize the removal of the 2 to 3 million with criminal records.

Focusing on undocumented immigrants with criminal records has also been the thrust of outgoing president Barack Obama. In 2015, Secretary of Homeland Security Jeh Johnson said that the focus of the agency’s limited resources was in combating threats to national security, public safety and border security rather than expending funding on individuals charged with minor crimes like traffic violations.

Back in 2011, the government deported a record-high of 396,906 individuals, 90% of those removed were criminals and repeat immigration law offenders. Fast forward to fiscal year 2015 and total deportations declined to 235,415, according to a report dated December 22, 2015 from the Department of Homeland Security (DHS). As of July 2016, ICE has completed 168,781 deportations, a slight decline from the same point in 2015.

While this trend and Trump’s latest pronouncements may ease the worries of some people, it must be noted that those who are without lawful immigration status may still be placed under removal proceedings. It is therefore important for them to know what to do when facing deportation. An increase in sweeps or workplace raids may occur in the coming months.

Contrary to popular belief, unless subject to expedited removal an alien is generally entitled to court proceedings before being removed. Removal proceedings typically start with the service of a notice to appear (NTA) upon the alien.

The NTA specifies, among other things, the alleged immigration violation, the charge against the alien and the specific provision/s of the law alleged to have been violated, and the time and place of the hearing. An NTA may be served in person or by mail. As non-citizens are required to notify the USCIS of any change of address within 10 days of the change, in many cases the ICE may simply mail the NTA to the alien’s last addresses and it would be considered valid service.

If served with an NTA, the alien is strongly advised to consult an immigration lawyer because being placed under removal proceedings is a serious matter. An immigration lawyer can tell him whether proceedings can be terminated because of a problem with the NTA on its face or in the way that it was served. The lawyer can analyze the facts of the case, explain what options may be available, and if the alien would be eligible for a relief from removal. Reliefs include voluntary departure, asylum, adjustment of status and cancellation of removal.

The alien must attend the scheduled master hearing, which is a preliminary hearing where the charges are read and the alien is asked to admit or contest the allegations and whether he intends to seek relief from removal. An individual hearing is scheduled if the case will be heard on the merits.

The alien may be represented by an attorney at the master and individual hearings. However, unless provided pro bono services by a volunteer attorney or by a non-profit organization, any legal representation will be at the alien’s own cost because there is no right to government-appointed counsel in immigration cases.

The alien must keep the immigration court updated of any change of address and must attend his hearings. If he fails to notify the court of an address change, and because he did not receive correspondence he fails to attend a hearing, the proceedings may continue and may result in the alien being ordered removed in absentia.

 

DREAMERS’ Dilemma: To File or Not to File for DACA

Young immigrants known as Dreamers are in a dilemma after the election of Donald Trump as president. Should they file for DACA? Should those with DACA status file for renewal or travel under advance parole?

DACA (Deferred Action for Childhood Arrivals) is an executive action which was announced by outgoing US President Barack Obama back in June 2012 following the failure of the DREAM Act’s passage into law. It is lacking the force of law, and operating under the enforcement discretion of the Department of Homeland Security (DHS), USCIS and the Immigration and Customs Enforcement (ICE). It does not guarantee a path to citizenship but rather defers deportation to those who came to the US before turning 16 years old and have continuously resided in the country, gone to school and have no criminal records.

While it has helped a lot of young immigrants obtain work permits and travel authorization and be protected from deportation during Obama’s presidency, the reality is that executive actions can easily be undone by the next president. With Trump’s platform on undocumented immigrants, it is highly likely that he will end this executive action.

If and when Trump decides to totally scrap DACA, there is still uncertainty as to how USCIS will handle the situation. It is possible that if USCIS will terminate DACA completely, those holding valid work permits will no longer be able to renew. It is possible that the employment authorization and advance parole may remain valid until its expiration.

As of now, it is unclear if Trump will scrap the DACA immediately upon his assumption into office. Given that it usually takes about nine months for an initial DACA application to be adjudicated, it is safe to assume that any new application will not be adjudicated prior to his assumption in office on January 20, 2017. On the other hand, renewals of DACA application are processed quicker.

Thus, to avoid paying the DACA fees with no guarantee that it will not be rescinded, it may be best to defer any new initial DACA application until Trump has completely laid down his stand on the matter. On the other hand, those who plan to renew may opt to submit their DACA renewal as soon as practicable.

For DACA recipients who also intend to travel abroad but have not yet applied for their advance parole, any new Form I-131 application may not be adjudicated prior to January 20 given the current processing times. DACA recipients with advance parole should complete their travel and return to the US as soon as practicable and before January 20 to avoid any problems coming back. One should also bear in mind that the grant of an advance parole does not guarantee admission to the US. DHS may revoke or terminate any advance parole at any time.

Those intending to apply for the first time also have to take into consideration the risk they may be putting themselves into. Because DACA was created through an executive action, there is no statutory provision guaranteeing confidentiality. In fact, it somehow encourages people to come out from the shadows and divulge pertinent information like workplace or school location, in exchange for the promise of deferred deportation and protection. While the information disclosed in a DACA request is protected from disclosure to ICE and Customs and Border Patrol (CBP) for immigration enforcement purposes, there is no guarantee that this will remain the same in the coming months.

What is clear is that those who already applied for DACA already have their information in government hands. Thus, it does not appear that if one were to renew his DACA, that he will put himself in any additional risk. On the other hand, the submission of an initial application at this time would require disclosure of pertinent information that could potentially be used in case of sweeps or workplace raids that may be conducted later on.

What To Expect from Trump on Immigration

Donald Trump’s election as president has caused fear and anxiety in immigrant communities across the US.

It is no secret that central to his campaign was his hard-line stance on immigration. He vowed to deport 11 million undocumented immigrants, build a wall on the US-Mexico border and make the Mexican government pay for it, triple the number of ICE agents, end sanctuary cities and suspend the issuance of visas to certain countries.

In a post-election television appearance on the CBS program “60 Minutes”, he reiterated the same promises and vowed to turn his campaign slogan into concrete actions and move forward with an aggressive policy to deport immigrants. He softened his tone a little bit by saying that he would go after two to three million undocumented aliens who are “criminals and have criminal records”.

But he did not elaborate on how he would hunt down his deportation targets. Some fear that a deportation force would be created to conduct sweeps or raids in homes and in the workplace.

He has reportedly started to assemble his immigration team and this includes at least two notorious anti immigrant activists, Kris Kobach, architect of anti immigrant laws in Arizona and Alabama and Danielle Cutrona, Senator Jeff Session’s counsel, who is avowedly anti immigrant.

Now more than ever, undocumented immigrants fear deportation and separation from their families. Immigration lawyers are likewise experiencing a surge of panic-stricken families who are anxious about their future. Even Filipino migrant workers are also worried about their jobs especially since Trump has espoused a more protectionist stance and that includes “bringing jobs back to Americans.” Filipino workers fear that their contracts may abruptly end when the new president assumes office in January. Immigrant workers whose petitions are now pending are likewise anxious that they may not be able to make it here due to Trump’s statement last August 4 in his campaign in Portland, Maine tagging nine countries, including the Philippines, as terrorist nations.

To what extent will he be able to muster his executive might to be able to fulfill his ideas to “make America great again”?

We can expect that Trump will muster his executive might by way of executive actions. He will undo Pres. Obama’s policy on Deferred Action for Childhood Arrivals (DACA).As a result, more than 700,000 young immigrants who came to the US before turning 16 and have stayed here since June 15, 2007 will find themselves in a limbo. It is very unfortunate because they have long ties with the US and have already considered it to be their home and if Trump will push through with scrapping DACA, they will not be able to attend school or find work.

It is also to be expected that Trump will totally scrap Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) which is now on hold following a preliminary injunction placed by the lower Texas court and upheld by the Fifth Circuit Court. This is sad news for those who have no lawful immigration status although they have continuously resided in the US since January 10, 2010 and have a US citizen or LPR son or daughter. Immigrant rights advocates fear that scrapping DACA and DAPA altogether will disrupt family unity and ultimately become economically disadvantageous. This would mean separation of families among affected immigrants. This could also adversely affect businesses and the local economy as certain sectors like agriculture are dependent on the labor force provided by the immigrant population.

Communicating with the National Visa Center

The National Visa Center (NVC) processes approved immigrant petitions and K visa applications after they are forwarded from the United States Citizenship and Immigration Services (USCIS). It is where all immigrant visa pre-processing is done including collection of paperwork and payment of fees before these are sent to the consular posts overseas for adjudication.

Certain petitions are held by the NVC for a long period of time while awaiting for their priority date to become current. During this waiting period, it is important to communicate to the NVC certain changes that will happen to either the petitioner or the beneficiary like a change of address, change in marital or civil status, death of the petitioner, birth or adoption of children, withdrawal of petition or application, among others.

One should allow up to six weeks after the receipt of an I-797 from the USCIS before contacting the NVC pertaining to a case. During such period, the USCIS sends in all documents about the case to the NVC and the latter enters it in its database.

When sending in the needed paperwork like the civil documents, do not send the originals. Submit clear photocopies of birth certificates, marriage certificates, passport, and police clearance, for example. The only original document that has to be submitted is the I-864 Affidavit of Support. Keep the original copies of the aforementioned documents and bring them to your scheduled visa interview.

To check the status of your case, you can visit the Department of State’s Consular Electronic Application Center (CEAC) website. Enter your case number if you have an immigrant visa case or enter your interview location and case number if you have a nonimmigrant case. This is also the same website you can use to pay for the visa fees once the NVC sends in your fee invoice. Your case number is the alpha-numeric combination that is assigned to you and is reflected in all communications from the NVC and the USCIS.

You should promptly respond to any communications from the NVC especially when a visa number becomes available in your case. The law requires the Department of State to terminate the registration of a beneficiary who does not apply for an immigrant visa within a year after notification of visa availability.

One can send emails and mails although the former is preferred as it is more convenient. However, it is important to follow a certain format as the NVC will not respond if this is not strictly followed. Use the case number or receipt number assigned to you in the subject line. Each email must indicate the petitioner’s name, the beneficiary’s name and date of birth as well as the case number, priority date, preference category and foreign state chargeability or the consular post overseas that will adjudicate your case. These must be indicated at the very top of the email. Make your inquiry brief and avoid unnecessary background information. Avoid inquiring about multiple cases in one email.

You can likewise call the NVC hotline numbers. A new phone system has recently been installed so it increased the available phone lines that can cater to client’s inquiries by 25%.

Immigration Fees to Increase Effective Dec. 23

Effective December 23, fees for most immigration applications and petitions will increase by an average of 21 percent.

The increase will be the first in six years. A comprehensive review had determined that the USCIS was not recovering the full costs of processing immigrant benefits. Lack of congressional appropriations especially for the asylum, refugee, military naturalization services, and the SAVE program that were ordinarily reliant upon Congress’ budgetary allocation likewise affected this move.

To recover the full cost of services including costs of fraud detection and national security, customer services, case processing and providing benefits without charge to refugee and asylum applicants, the fee increases had to be imposed, said USCIS director Leon Rodriquez.

For those applying for naturalization, there will be an increase in the standard fee for Form N-400 from $595 to $640. Fee waivers will still be available to those who meet the requirements under the law. A reduced fee of $320 will be offered to naturalization applicants with family income greater than 150% and not more than 200% of the Federal Poverty Guidelines.

For those who are claiming US citizenship due to birth abroad to US citizen parent(s) and need proof of US citizenship through Form N-600 and N-600K, there will be an increase from $600 and $550, respectively, to $1,170. This is essentially a 95% increase compared to the old schedule and one of the more substantial raises.

Fees for family-based petitions will go up as well. I-129F Application for Alien Fiancé(e) will increase from $340 to $535; I-130 Petitions for Alien Relative from $420 to $535. Under the current fee schedule, the total filing fee for a one-step, concurrent filing of Form I-130, Form I-485, Form I-765 and Form I-131 is $1,490; this will be bumped up to  $1,760. I-485 Application to Register Permanent Residence will also increase from $985 to $1,140. I-751 Petition to Remove Conditions on Residence will increase from $505 to $595.

Employment-based petitions will not be exempted either. I-129 Petition for Nonimmigrant Worker will increase from $325 to $460 which is a 42% increase and one of the highest increases for this service since 2007. I-140 Immigrant Petition for Alien Worker will increase from $580 to $700.

I-601 Application for Waiver of Grounds of Excludability and I-601A Application for Provisional Unlawful Presence Waiver will both increase from $585 to $930 and $630, respectively. Fees for employment authorization permits (I-765) will increase from $380 to $410. This increase will affect foreign students approved for Optional Practical Training (OPT), spouses of certain nonimmigrant visa holders as well as recipients of DACA and TPS applicants.

Biometric or fingerprinting fee will remain at $85.

Applications and petitions postmarked on or after December 23, 2016 must pay the new fees or they will not be accepted.

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