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COPING WITH THE NEW
IMMIGRATION LAWS (MABEY)
Harry DeMell
Day in and day out I get questions about the “new “immigration laws. This article will be an attempt to deal with this phenomenon.
There is not yet a “new” immigration law but there is advice that might be useful in anticipation of changes that are sure to come sooner or later. It is possible that by the time you read this, some changes in the law might be passed. I suspect that nothing major will happen this year.
Some of this advice is common sense but may be life and death to your ability to apply for benefits in the future. We need to look at the trends in the law as well as what we can realistically expect from congress. Even if nothing is passed this year or next the administrative process is taking the law in certain directions that need to be heeded by aliens, their employers and their attorneys.
While there are two sides to the immigration debate it is likely that both sides will not succeed. One side seeks to deport all undocumented aliens in the United States. Estimates of these undocumented aliens are in the 11 million range and it is unlikely that the government can accomplish this without establishing a police state and ruining our economy. This is simply unlikely to occur,
The other side in the debate wishes to pass an immigration amnesty. This is also unlikely to occur. Those of us who had experience with the 1986 amnesty understand the problems and congress in unlikely to pass another one. There was significant fraud and that amnesty encouraged significant additional illegal immigration to the United States. I am not sure at all that congress will knowingly step into this trap again. The bill might be called earned legalization but it amounts to an amnesty.
There are changes that congress can make in the middle and there is a good chance that next year many of these halfway measures will be implemented. There are also trends in place that require consideration. Our clients need advice.
TAXES; There is a trend to require more and more accurate taxes from all aliens applying for benefits and all sponsors of aliens be they family or employers. All talk of amnesty or legalization contains provisions that applicants show at least five years of taxes. Many aliens work for cash and do not pay taxes. Many are working under improper social security numbers and will have difficulty documenting their taxes (as well as receiving benefits). Filing W-7 forms and obtaining tax identification numbers are becoming essential for obtaining benefits now. Taxes may prove necessary for and immigration benefits later.
Americans wishing to sponsor their spouses, children, parents or siblings are also required to present their taxes to the government. Companies sponsoring employees for green cards as well as work visas are undergoing increased scrutiny of their financial situations. Tax returns need to be presented.
The taxes must be believable and sufficient for the purpose. A person making $6000 per year can claim to pay taxes but that amount is not sufficient to support even themselves. If they are sponsoring family much more will be required. The taxes must be believable. There is a trend for the government to deny cases for discretionary relief without believable taxes. It is clear that it is a crime to file false tax returns.
CRIMES; There is a trend for increased scrutiny of aliens who have had any criminal trouble at all. Aliens who travel have their records reviewed at the airports upon reentry. Legal permanent residents who apply for citizenship or for renewed green cards are increasingly having their criminal history reviewed by the government with a view towards starting removal (deportation) proceedings. Old crimes might now lead to charges. Any of these situations might result in a removal proceeding.
There is also a trend to reclassify old crimes as “aggravated felonies”. There are several levels of crimes for immigration and deportation purposes. There are crimes, crimes of moral turpitude and aggravated felonies. There is a trend in the legislation as well as in case law to try to redefine crimes as aggravated felonies and therefore remove aliens from consideration of discretionary relief. This reclassification is often retroactive and can affect aliens who thought that they were safe when they entered a plea.
Since immigration matters are considered civil, the case law does not apply the ex post facto protections of the constitution in this area. The Immigration Court and the Board of Immigration Appeals take an increasingly expansive view of what an aggravated felony is and who is covered by those definitions. Criminal charges against aliens have become the growth area in the immigration practice with major problems arising out of what should have
been minor problems.
APPEALATE PRACTICE; Immigration related cases in the United States Court of Appeals have gone from about ten percent of the workload on the early 1990s to about fifty percent today. Any immigration related work has to take into account that litigation might end up there. This is a difficult place to practice as well as a major expense for your clients. Printing costs alone can be in excess of $1500.
Congress is now considering even more restricted access to the appeals courts. This will surely result in increased litigation, increased expense and additional waits for relief.
REMOVAL; The government is increasingly trying to remove aliens who are legally here. The Department of Homeland Security is beginning to file deportation charging documents called notices to appear after failed marriage adjustment cases in many other districts around the country. It will soon come to New York. The import of this is that cases that seemingly routine cases may now end up in Immigration Court with your client’s spouse pleading for the right of her spouse to remain in the United States.
The government is issuing these notices to appear for those who file for political asylum and fail and have begun to do so with naturalization applicants who have convictions, even when those convictions are decades old. They are even going after aliens with small criminal problems who seek to renew their ten year green cards. The trend is for more of the same.
It has become critical in every avenue of criminal practice to beware of the immigration consequences of criminal activity. Future legislation will probably again increase civil penalties for immigrants with any criminal history. It is likely that any legalization to come will severely exclude criminal aliens.
LEGAL STATUS: There is a trend to punish even the smallest visa violators. If you have to depart the United States by December 31st but the plane is delayed and he cannot leave until early in the morning on January 1st, you are a visa violator and now are subjected to a whole host of penalties. This is likely to increase under almost ant possible that congress enacts in the next couple of years.
The same information system that allows immigration officers to obtain criminal information on aliens upon entry has also been expanded to include entry and exit information. Persons who are not American or who have not been admitted have no legal rights here and can by removed expeditiously. It requires a habeas petition in Federal District Court to stop it. This is an expensive and difficult thing to do and beyond the resources of all but a few persons.
The trend is to find new ways to access information with a view to preventing even those with the smallest violations from reentering. A student with less than the allotted credit hours
might be next.
The future of the immigration practice is more technical with missteps resulting
in draconian penalties.
*©Copyright 2006, by Harry DeMell
Mr. DeMell is an Attorney practicing exclusively in the area of Visa, Immigration and Nationality Law since 1977.
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