As this blog has increasingly stressed, the immigration consequences of traffic violations in municipal court for foreign nationals should not be underestimated, especially during the Trump Administration. While most routine moving violations under Title 39 do not generally trigger deportability, there are some more serious infractions that carry what the courts call a "consequence of magnitude"-meaning, to put it bluntly, substantial fines and the risk of imprisonment. Anytime a non-US citizen is exposed to jail, it would be prudent to have the charge evaluated by an immigration attorney. While the internet is a wonderful source of information, there is a lot of outdated information out there, and the reality is that we are living in a new age with new rules. What was true or the common practice before-even as late as last year-is not necessarily true now.
In the wake of President Trump's Executive Actions on Immigration, this is one of the most frequently asked questions posed by undocumented and out of status aliens. The answer, unfortunately, is not so simple and belies how complex the immigration laws can be. Technically, most traffic violations, in general, do not constitute deportable offenses. In other words, a run-of-the-mill speeding ticket, committed in the absence of any aggravating factors or egregious circumstances such as going at an excessively high rate of speed with accident or injury, are not deportable violations. A lawful permanent resident who has committed a generic speeding offense or failed to maintain lanes will usually not have to worry about losing his/her status provided the offense is not serious in nature or a Crime Involving Moral Turpitude. However, if an individual is also out of status or has no legal status in the United States, the problem is that such an infraction may expose them to or make them more liable to be picked up ICE, which is the enforcement arm of the Department of Homeland Security. ("ICE" stands for Immigration and Customs Enforcement.) So while a speeding ticket in and of itself is not a legal basis for deportation, the person's illegal presence in the United States obviously is. The infractions only make the situation worse in terms of casting a blemish on the individual's law abiding character.
Last week, to the consternation of millions, DHS Secretary John Kelly released two governmental memos setting forth plans on how to implement President Trump's interior public safety and border security mandates that were issued in January. There was extensive media coverage spurring an already apprehensive undocumented population into paranoia and hysteria. The alarm is not without reason. The memo enacts large scale, blanket measures that place those without status at significant risk of being arrested, detained, and removed.
Last Friday, Senators Dick Durbin and Lindsey Graham announced a bipartisan bill intended to provide relief to those currently holding protected status under the DACA program ("Deferred Action for Childhood Arrivals"). Titled the "Bridge Act," the bill-if passed into law-would extend deferred status and work authorization to not only those who currently have DACA but also those who, for whatever reason, are eligible for DACA but have not yet applied. The "provisional protected presence" status would reportedly last for a period of three years. Like DACA, there would be eligibility requirements and background checks that would have to be satisfied before any grant. Also like DACA, the protected status would not lead to or graduate into permanent residence. It merely provides a deferred status that protects the individual from removal and allows the opportunity for work authorization.
With respect to immigration consequences, removal from the United States is commonly regarded as the most punitive measure the US government can impose on a non-US Citizen. Depending on the circumstances of and setting in which the removal order is issued, an individual may be banned from the US anywhere from five years to permanently. If an individual is stopped and removed at the border, this may mean that he/she was the subject of an expedited removal proceeding. Individuals are deemed inadmissible for five years under these circumstances. (Note, however, that not all encounters at the border in which an alien is sent back necessarily result in an expedited removal order; sometimes, a person may accept a voluntary return.) If an individual was the subject of an Immigration Court hearing within the United States under section 240 of the Immigration and Nationality Act, and issued a removal order, he is ordinarily barred for ten years.
President-elect Donald Trump recently remarked during a "60 Minutes" interview aired this past Sunday that he plans on immediately deporting two to three million undocumented immigrants who have criminal records. Some have characterized this stance as a step back from the more shrill rhetoric of his campaign stumps, in which he previously declared that he would deport close to eleven million illegal aliens. If anything, President-elect Trump certainly has a flair for the provocative and a keen ability to stir up and galvanize the population on certain issues. How and whether he truly intends to carry out this plan, however, remains to be seen. Some posit that this position, like his other stances, is merely another "gambit" by a master negotiator stuck between appeasing the reactionary electorate who supported him and governing in an ecumenical manner. Regardless, the prospect of targeting and immediately removing this smaller tranche of the illegal population raises many concerns. Financially speaking, the costs of deporting these many people would exert an enormous strain on our economy. Some studies indicate that it costs the government a staggering $10,000 to deport one person. Secondly, aside from the costs, our court systems are already seriously overburdened and backlogged with cases scheduled far out in advance. According to the Associated Press back in July of 2016, the Executive Office of Immigration Review ("EOIR")-which is the arm that runs the immigration courts-indicated that there were more than 500,000 cases pending in the courts. How 2-3 million more court cases will be accelerated is beyond baffling.
Here's the transcript to our latest video on Youtube. Many people are under the misimpression that despite a removal or deportation order, it is quite easy to fix one's status if married to a US Citizen. The reality, of course, is that these types of matters are much more complicated. Like everything in the law, everything is case and circumstance specific. Is the person still here in the US? Has the person already left the US? In the latter, a departure under an order will usually execute a ten year bar: in order for the individual to return to the US, even with an approved petition, he or she must usually request special permission on Form I-212 to return to the US before the expiration of the ten years. If the person has stayed in the US in violation of the order, things can get dicey: if ICE were to apprehend the person--who is, in essence, a fugitive--the government would normally just take steps to execute the order. On the other hand, depending on the circumstances, ie., an approved I-130 filed by an Immediate Relative, there may be an opportunity to reopen the court case, rescind the order, and possibly apply for relief.
Check our latest Youtube video on Removal Proceedings. Here's the transcript.
A New Year traditionally inspires hopes of better things to come, but for a large part of the undocumented immigrant community, 2016 is turning out to be a stark season of hysteria, anxiety, and fear. Late last month, right around Christmas Eve, there were rumblings of an extensive and aggressive ICE operation underway to sweep up illegal aliens from Central America (primarily El Salvador, Guatemala, and Honduras). Homeland Security Secretary Jeh C. Johnson confirmed this on January 4, 2016 in a public press release regarding Southwest Border Security. Since then, within a matter of days, over 100 individuals have been rounded up and taken into custody. Aside from the targeting of a specific population, what is perhaps more alarming is the alleged manner in which people are being apprehended. According to some accounts, ICE agents have conducted the raids utilizing extreme tactics that run roughshod over basic constitutional protections.
The consequences of an individual being apprehended trying to enter the US and formally sent back can be devastating with far reaching ramifications. Under Section 235 of the Immigration and Nationality Act, all aliens applying for admission are subject to inspection by an immigration officer. Furthermore, under some circumstances, aliens present in the US who have not been admitted are also treated as applicants for admission, ie., if encountered within 100 miles of either border with Mexico or Canada who cannot prove that they have been continuously in the US for at least 14 days. Section 235 authorizes an officer to summarily exclude an individual who is arriving in the US and is determined to be inadmissible under 212(a)(6)(C) or 212(a)(7). 212(a)(6)(C) refers to fraud or willful misrepresentation of a material fact in connection with entry into the US, and (a)(7) refers to documentary requirements. Unlike the vast majority of individuals who are caught by Immigration and Customs Enforcement (ICE) within the US, aliens caught at the border may be ordered removed by an officer without recourse to a further review or hearing unless the person indicates an intention to apply for asylum or expresses some fear of persecution. An order under these circumstances is termed an "expedited removal." Importantly, it does not need to be issued by a judge, and once excluded, the individual is barred for five years from re-entering the United States.