Immigrants Should Not “Break Out the Cheetos and Goldfish”

By Kim Tremblay, Associate Attorney

On November 6, 2012, Colorado voters approved amendment 64, a ballot measure that decriminalizes marijuana possession of one ounce or less for adults over 21 and regulates the cultivation and sale of marijuana.  However, it remains unclear how the amendment will work out in practice; the state must still issue regulations.  Currently, some jurisdictions in the state are continuing to criminally prosecute individuals for marijuana possession while others are not.  Federal law still considers marijuana a controlled substance and makes it a crime to possess it or to engage in its production or distribution.  Federal officials have yet to indicate what actions they will take to enforce federal controlled substance laws related to marijuana in Colorado. 

Of specific concern to immigrants is that immigration matters are regulated by federal law, which has not changed.   Under immigration law, there are many areas related to controlled substances that could be problematic for marijuana users, producers, and distributors.  

For immigrants applying for status, these areas can render a person inadmissible to the United States, which in turn makes obtaining immigration benefits either impossible or more difficult.  Merely admitting to marijuana possession could make a person inadmissible; a conviction is not strictly necessary.   A conviction for marijuana possession makes a person inadmissible.  In addition, a person who is a suspected drug trafficker or participant in drug trafficking is inadmissible.  Finally, drug abusers and addicts are inadmissible to the United States.  Again, discovery of any of these grounds of inadmissibility during the immigration process could be extremely problematic.

Moreover, immigration law contains consequences for immigrants with permanent residency status if they are involved with marijuana.  Permanent residents could have their status revoked and be deported from the United States for a marijuana possession conviction of over 30 grams, for any other conviction related to marijuana, or if they are considered drug abusers or addicts.  

Presumably, immigrants in Colorado possessing less than one ounce of marijuana for their personal consumption and legally involved with the production and distribution of marijuana will not be charged with a crime by Colorado law enforcement once amendment 64 is implemented.  Thus, the lack of marijuana related convictions makes it less likely that they will face immigration problems in the future.  However, the lack of a conviction is not necessarily determinative; immigrants involved in some form of immigration processing determined to be drug addicts or abusers or otherwise involved with marijuana could face difficulties.   Moreover, immigrants could still be prosecuted by federal law enforcement officials for marijuana related crimes and then face immigration problems.  As marijuana consumption, possession, production, and distribution are still federal crimes and related to grounds of inadmissibility and deportation, it is best to heed Governor Hickenlooper’s advice not to “break out the Cheetos and Goldfish.”

 

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Same-Sex Family Units Recognized

Contributed by Bryon Large

By now, most practitioners and immigration advocates are aware of the June 15, 2011 Morton Memoranda regarding the exercise of prosecutorial discretion to persons in removal proceedings in accordance with ICE’s removal priorities.  While there were was vague language regarding family relationships in ICE’s guidance, and while assurances were made that same-sex couples would be recognized in the guidance, no official word came from the Department or ICE in writing.  Advocates for LGBT immigration issues received assurances that the vague language did not require a couple to be married, nor even of opposite sex, when ICE was evaluating a case for prosecutorial discretion.  However, in practice application of the Morton Prosecutorial Discretion Memos was inconsistent throughout the country.  While leadership in Washington seemed to envision inclusion of all couples, regardless of marital status or sexual orientation, the boots on the ground seemed to be looking more for a marriage certificate.

 

On Thursday, September 27, 2012, Secretary Napolitano answered a letter from some Members of Congress requesting clarification on the issue.  Specifically, in her response, Secretary Napolitano clarified that the term “familial relationships” specifically would include long-term, same-sex partners.  She also specified that she has directed ICE to disseminate written guidance to the field clarifying the issue.  Advocates expect ICE guidance in the very near future on this issue.

 

Given the DOMA litigation, the pending Uniting American Families Act which would recognize same-sex relationships for immigration purposes, and the wave of marriage recognition across the country, this forthcoming guidance from ICE at the Secretary’s direction is a large advance for the LGBT community in immigration issues.

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States Seek to Deny Driver’s Licences to New Category of Deferred Action Cases

Contributed by Aaron Hall, Attorney

On August 15, 2012, the Department of Homeland Secretary (DHS) began accepting applications for Deferred Action for Childhood Arrivals (DACA).  The procedures for DACA are now in place and the first applicants have already received their receipt notices and biometrics notices from USCIS.

The new DACA program is designed to allow qualifying applicants who entered the U.S. as children to be temporarily safe from being deported and would allow them to seek employment authorization while they are here.  Such employment authorization would ordinarily allow them to apply for a driver’s license from their state DMVs.  But Governors Jan Brewer of Arizona and Dave Heineman of Nebraska have declared that despite the REAL ID Act of 2005 listing deferred action grantees as eligible for driver’s licenses, their states will refuse to issue such licenses to those who are granted deferred action through DACA.

 

Their decision to deny driver’s license to those with DACA is certain to lead to litigation on the matter but at this point it is unclear how many other states may join Arizona and Nebraska in keeping work-authorized DACA grantees from getting their licenses.

 

Further Reading:

-Christian Science Monitor article on states refusing to issue driver’s licenses for deferred action

-USCIS Frequently Asked Questions on DACA

-JLF DACA Site at http://www.dreamtoimmigrate.com

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The Changing State of LGBT Immigration Issues

Contributed by Bryon Large, Senior Attorney

 

 

On August 28, 2012, Senior Attorney Bryon M. Large presented a Continuing Legal Education program to immigration practitioners regarding the current status of immigration law for LGBT persons and the current impact of the Defense of Marriage Act (DOMA) on immigration cases.  The course was offered by the Colorado Bar Association’s Immigration Law Section, of which Bryon is the Chair.  He spent time discussing the many challenges LGBT people face in the absence of protections for same-sex partners under the Immigration and Nationality Act.  Bryon also spent time discussing how the current DOMA litigation awaiting a hearing decision by the Supreme Court would impact people.  Bryon is frequently involved in issues related to the intersection of Immigration Law and LGBT issues and recently attended the National LGBT Bar Association’s Lavender Law annual conference in Washington, D.C.  He is an active member of the Colorado GLBT Bar Association, the National LGBT Bar Association, and is a member of AILA National’s LGBT Working Group.

 

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Back to School

By Kim Tremblay, Associate Attorney

 

As summer comes to a close, millions of students across the United States are returning to school. In the current popular and political discourse, foreign students lawfully present in the United States to pursue their studies are rarely mentioned. Last year, the Department of State issued about half a million F-1 student visas to students coming to the United States from abroad. This number does not include scholars and students coming to the United States on J-1 exchange visitor visas. Students migrate from every corner of the globe to study in our schools; the majority, over 150,000 students, are Chinese nationals.

 

These students gain many benefits from studying in the United States, such as a good education or a different cultural or educational perspective. However, Americans are the true beneficiaries of these foreign students’ presence in our schools. Foreign students bring a global perspective to the classroom and expose local students to new ideas. They pay out-of-state tuition, helping maintain programs at Universities, many of which face increasing financial struggles.

 

Surely surprising to many people, these students inject billions of dollars annually into the U.S. economy. According to NAFSA, an association of international educators, they spend over 20 billion dollars every year. They pay tuition and fees to Universities, but they and their families also contribute to local economies through their living expenses. For example, during the 2010-2011 school year, there were 7,688 foreign students living in Colorado. They spent over $235,000,000 in Colorado that year alone in contributions to both their schools and adopted communities.

 

The above-mentioned facts, along with the issue of retaining foreign talent after graduation, represent yet another topic that should be considered in our national dialogue regarding immigration reform.

 

See http://www.nafsa.org/_/File/_/eis2011/Colorado.pdf

See http://travel.state.gov/visa/statistics/graphs/graphs_4399.html

See http://www.travel.state.gov/pdf/FY11AnnualReport-Table%20XVII.pdf

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Procedures for Deferred Action for Childhood Arrivals

Contributed by Melanie Corrin

The United States Citizenship & Immigration Service (CIS) announced a portion of its procedures for Deferred Action for Childhood Arrivals (DACA) program; commonly known as deferred action for DREAMers.  Through this procedure, as of August 15, 2012 eligible applicants who meet the following criteria can apply for Deferred Action:

1.       Under the age of 31 as of June 15, 2012

2.       Came to the US before reaching 16^th birthday

3.       Continuous physical presence June 14, 2007 – June 15, 2012

4.       Present in the US on June 15, 2012

5.       Entered without a visa or their visa expired as of June 15, 2012

6.       Currently enrolled in school/GED program or have obtained high school diploma/GED or be United States Military veteran with honorable discharge

7.       No felony convictions, No significant misdemeanor conviction, Cannot have 3 or more misdemeanor convictions

Portion of this program have very specific definitions and requirements, including what defines a felony, a serious misdemeanor and a misdemeanor.  It is important to speak with an attorney prior to determining eligibility, potential relief and potential pitfalls to ensure you are not putting yourself at risk. 

DACA is temporary, and if granted, is approved in two year increments.  USCIS has not published the form, and will not do so until August 15, 2012; the first day individuals are eligible to apply.  The filing fee will be a total of $465.00 and will include biometrics collection, background checks and the application for employment authorization.   

If you are interested in DACA or think you may be eligible, contact us to discuss your case.

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30 year-olds Don’t Despair, Deferred Action Still Within Reach

Contributed by Aaron Hall

When Department of Homeland Secretary (DHS) Napolitano announced the new deferred action program on June 15, 2012, it was announced that one of the requirements for eligibility would be that applicants “are not above the age of thirty” as of June 15, 2012.

 

The initial assumption was that this requirement would disqualify a potential applicant who was 30 years and two months old at the time of the announcement.  Fortunately, DHS has now clarified that potential applicants will meet the age requirement so long as they were under 31 years old on June 15, 2012.  Therefore, many people who were 30 at the time of the announcement will qualify for the new deferred action program.

 

For further information on the eligibility requirements, go to our website dedicated to deferred action at http://www.dreamtoimmigrate.com/. 

 

Further Reading:

6/15/12 DHS Announcement

USCIS on Consideration of Deferred Action for Childhood Arrivals Process

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Denver Immigration Court Overloaded

An article in Sunday's Denver Post documents the overwhelming caseload at the Immigration Court in Denver, Colorado. According to the article, two of Denver's immigration judges have as many as 2,400 pending cases each at any given time.

Judge Dana Leigh Marks, president of the National Associate of Immigration Judges, is quoted as saying that the necessarily rushed nature of the proceedings with such an inundation of cases is akin to trying death penalty cases in a traffic court setting.

With the enactment of Secure Communities and other programs designed to sweep more and more people into removal proceedings, the court's caseload seems likely to get worse. In the midst of the current budget struggles, it is difficult to envision Congress passing funding for more immigration judges and court staff to ensure due process and meaningful hearings in immigration court.

To read the article in the Denver Post, click here.

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Investigation and Possible Prosecution for Those Who Released List of 1,300

The list of 1,300 people who are allegedly in this country illegally was apparently compiled using data stolen and illegally distributed from Utah state databases. A shadowy group calling itself “Concerned Citizens of the United States” sent the documents to the media and to law enforcement agencies with a demand that the people on the list be immediately deported.

The list included personal information such as birth dates, phone numbers, places of employment, social security numbers, and most shockingly, due dates for pregnant women. The list's accuracy has been called into question as some of the people listed with the demand that they be "immediately deported" have already come forward to explain that they are in the country legally and must be on the list by mistake.

The Salt Lake Tribue reports that it is a misdemeanor punishable by up to six months in prison to release protected information. The investigation into those responsible for stealing and releasing this information is ongoing. For more information, see the article in the Salt Lake Tribune:
http://www.sltrib.com/sltrib/home/49936537-76/list-information-utah-herbert.html.csp

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Associate Attorney, Aaron Hall: Arizona Anti-Immigrant Law Casts Shadow on Cinco de Mayo Celebrations

Happy Cinco de Mayo! Well, maybe not the happiest for those in Arizona. On May 5, 1862, the Mexican army triumphed in a battle over the French and spawned an annual commemoration which has evolved into a passionate celebration of Mexican culture and heritage. As people of all origins across America observe this day by going to parades, fesitivals , or just by enjoying some Mexican cuisine and a margarita, all is not well for Mexican-Americans.

Frustration and exasperation over the failure of the federal government to address this country's broken immigration system has led to the passage of Arizona Senate Bill 1070, a law which will make being present in Arizona without immigration status a state crime and require Arizona police officers to ask for proof of legal status based on "reasonable suspicion." Unfortunately, the new Arizona law is ill-conceived and will inevitably result in the unfair and illegitimate detention of United States citizens, permanent residents, and those here in legitimate non-immigrant status. The new Arizona law will also create an inherently offensive system of law enforcement through racial profiling.

United States citizens, lawful immigrants, and those here in other lawful status will be detained if they cannot produce a document showing their status on the spot. The problem is that many people may not be able to produce such documents for various reasons. Some people may not have ready access to birth certificates due to having lost it, due to having had it stolen or destroyed, due to family separation mental illness, homelessness or a myriad of other reasons. These people, having committed no other offense, could be detained for hours or days while they seek a way to prove legal status. Also, certain persons in lawful status simply will not be able to show proof of such based on the complications inherent in immigration law. For example:

• People with with pending applications for extension or change of status will have an I-94 card that is expired, but while the application remains pending, they are in a period of stay authorized by the attorney general;



• Students are admitted for duration of status and their I-94 cards do not have an expiration date;



• Applicants who have applications for adjustment of status that are pending are in a period of stay authorized by the attorney general but will not have a document to prove it;



• Individuals who have conditional permanent residence based on a marriage and have filed a petition to remove the conditions but have not yet received the actual card;



• Individuals who are in removal proceedings or have cases on appeal.

Furthermore, the legal determination as to whether an individual is in lawful status is one that often requires thorough investigation or litigation, during which the person presumably could be detained under Arizona law. An officer on the street does not have the time, training or resources to make such a determination on the spot. Yet, under the new law, the police department can be sued by any private citizen if that citizen does not believe the police are enforcing the new law and he or she thinks they should.

Apart from those who are lawfully here who would inevitably be harmed by this law, the very notion that any of us can be required to produce papers at any time to prove our right to be in Arizona based on some nebulous concept of "reasonable suspicion"is an affront to individual liberties. Though the law says that race, alone, cannot form the basis for reasonable suspicion, we have yet to hear other specific factors that would combine with race to form a "reasonable suspicion." It seems that race and accent will clearly be the dominant factors in forming this determination. Unfortunately, this is likely to cause fear of and animosity towards law enforcement by immigrant communities, including U.S. citizens and documented and undocumented immigrants. Such distrust and fear will only hamper state police in investigating serious crimes which truly deserve the attention of their talent and resources.

Federal action must be taken to secure our border and fix the current irretrievably broken system. This Cinco de Mayo will feature an annual celebration of the wonders and contributions of Mexican culture in America against the backdrop of Arizona Senate Bill 1070--a law which demands a wasteful use of resources, inevitable mistaken detention of U.S. citizens and others in lawful status who have committed no other offense, costly litigation against the state, and a repugnant institutionalization of racial profiling. In Arizona, Mexican Americans will suffer the brunt of this clumsily drawn attempt to address our broken system. All of us, however, should recognize this legislation as a call to demand federal action in the form of comprehensive immigration reform. Only after such a reform can we have secure borders, sensible and enforceable immigration policies, and a future of fifth days of May where we can celebrate the cultural richness and economic benefits of legal immigration without the shadow of hastily drawn patchwork laws like Arizona Senate Bill 1070.

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