DREAMer Deported

It's been all over the news lately-- a DREAMer (DACA grantee) was deported in February despite what appears to be continued qualification for DACA. It doesn't look like he had any disqualifying criminal or other activities and yet he was still removed because he left his work authorization in his friend's car with his wallet. The stories say the ICE officer would not allow him to go retrieve his wallet to prove that he had valid DACA and was then coerced to sign a bunch of documents which led to what DHS is claiming was a "voluntary departure".

In light of this turn of events, I am sending the following information to my DACA clients.

As you may have heard in the news recently, there was a DREAMer who was deported from the U.S in February. This news comes a shock and understandably brings a lot of fear and uncertainty with it.

To protect yourself, I encouraged you to do the following:
1. Carry your work authorization card (EAD) at ALL TIMES
2. Make a copy of your work authorization card (EAD) and give it to a documented person you trust and can contact if you are detained by law enforcement
3. DO NOT SIGN ANYTHING
4. Ask for an attorney--you can always contact me if you are in trouble

This situation could have been prevented if the DREAMer had not signed paperwork to "voluntarily" leave the US, and if he had asked to speak to a lawyer. 

Attached to this email are some "Know Your Rights" pamphlets-- educate yourself on what your rights are during an encounter with law enforcement. Also, you may want to create an emergency safety plan with your family in case the worst happens--it is best to be prepared. Safety plan information is also included. 

Our office is always open to you all. Please let me know how we can be of assistance.

Know Your Rights in Public

Know Your Rights at Home

Know Your Rights at Work

Create a Safety Plan: https://www.ilrc.org/sites/default/files/resources/family_preparedness_plan.pdf

Stay out of trouble and stay safe.

"Abuela" from Jane the Virgin

Oh my! It's almost been 2 years since my last blog post- where has the time gone? Well in an attempt to revive my blog and create new content, I've decided to combine my expertise and knowledge in immigration law with one of my favorite after work unwinding activities- watching TV. When it comes to fields I know nothing about such as: medicine, detective work, spies, etc. I always turn to the only exposure I have, my TV shows. Unfortunately, they don't always get it right. In fact, in law school I had a professor/judge, who was a consultant for the TV show, "Judging Amy". He would tell us stories of errors in scripts that the writers, producers, powers that be all chose to keep in the script because it made for better TV. While it may be better TV it's not the best source of actual information, so hopefully I can clear some of that up.

To start us off, I thought it was only fitting that I write about the show that inspired this avenue of blogging, Jane the Virgin which current plays on the CW and was recently added to Netflix. Jane Villanueva and her mother were both born in the US and are US citizens, but last year we found out her "Abuela" (grandmother) is undocumented. This has been a running story line on the show. Last year Magda, pushed Abuela down the stairs in an attempt to kill Abuela so Magda could keep her secret. As a result, Abuela was in the hospital in serious condition. When Abuela stabalized, she was scared to report the attempted murder to the police because of her immigration status.

This is when I started yelling at my TV: U-VISA!!!!

What is a U-Visa? A U-visa is a visa for victims of crimes who have helped in the investigation and prosecution of certain listed crimes. The U-Visa exists to encourage undocumented people to report crimes and is evidence of the preference of prosecuting these serious qualifying crimes over the enforcement of undocumented immigration status of the victim.

To qualify for a U-Visa, you must meet certain criteria:

1. Victim of a qualifying crime- Abuela was a victim of an attempted murder which is a qualifying crime.
2. Victim must have suffered substantial physical or emotional injury- Abuela was seriously injured, there was concern that she main not survive, and would have the medical records to prove it. She also probably could have gotten a psychological evaluation to support an emotional injury.
3. Have information about the crime- Abuela saw Magda push her down the stairs and she was the only witness. She had information about the crime.
4. Helpful to law enforcement- Abuela did not report the crime! If she had told the police what had happened, her police report would satisfy this requirement. Of course, if they prosecuted Magda for the crime she would need to continue to be helpful and testify at the trial. Regardless, the police report could have been enough for Abuela to qualify for a U-Visa.

This could have been a perfect opportunity for a U-Visa, but unfortunately Abuela missed out. U-Visas are actually very powerful tools because they allow lots of folks to legalize their status who otherwise would not be able to. However, the downside is the current U-Visa backlog is long... no one knows for certain how long, but practitioners estimate a successfully filed application today will take successful take 5-6 years to be granted! It's a long wait but still a good option for some folks.

Luckily for Abuela, this season she's decided to legalize her status through her daughter which will be the subject of another post another day.

For more information on U-Visas, visit USCIS's page on U-Visas.

As an immigration attorney, I have the privilege of working with people from all sorts of different cultures and countries. My favorite part of immigration law is visiting USCIS and sitting in the waiting room with handfuls of other people and seeing them interact with their loved ones. It's such a unique experience to observe how differently we interact with each other and how each of our unique cultures has shaped us.

Today is the first day of the new lunar year, which is the biggest holiday in my culture. I am a second generation Chinese American, and Chinese New Year has always been the most celebrated holiday in my family. While traditions and customs vary depending on where your family origins are, for me Lunar New Year is a holiday focused on food, family and of course red envelopes! 

In my family, we traditionally spend Lunar New Year's Eve together and share a meal with many dishes. Last night, for 6 of us, we had 10 dishes! Each dish with some sort of significance- for instance, fish is a very traditional dish for New Years. The word for fish, 鱼, sounds similar to the word for abundance, 余. In wishing that our new years are filled with abundance (aka wealth), we eat fish! In preparation for the new year, we are supposed to clean our homes, take out the garbage, do the laundry, and generally be ready to start the new year fresh! 

On New Year's day, my grandmother makes homemade eggrolls and rice cakes- the highlight of my New Year's celebration. We make the rounds and greet all the elders with a "Gong Hey Fat Choy, Sun Leen Fai Lok" which is a wish for prosperity and happy new year. The best part is that when you wish others "Gong Hey Fat Choy", the married elders will give you a red envelope with money in return!  But red envelopes are only given to those who are unmarried and once you are married, you become one of the givers of red envelopes instead of a receiver. So for you singles out there, enjoy it while it lasts!

Happy Lunar New Year! Wishing you all health, prosperity and happiness in the year of the horse!

How is my immigration case affected by the federal government shutdown?

I was about to write a post on this topic, then saw this article that pretty much sums it up:
http://immigrationimpact.com/2013/09/30/how-a-government-shutdown-likely-affects-immigration-agencies/
And then this one: http://abcnews.go.com/ABC_Univision/Politics/heres-shutdown-affects-immigration-services/story?id=20431892

Let's leave those articles to the pros, but in short, those with applications with USCIS should not be directly affected since USCIS is funded primarily by application fees. All USCIS offices are currently open and operating as normal.  http://www.uscis.gov/

Visas processed through the Department of State (at consulates) should also continue to be processed.  http://www.state.gov/m/rls/2013/214880.htm

Those in removal proceedings will have their court dates rescheduled unless they are detained. Detained court dates will continue to take place. http://www.justice.gov/eoir/ICstatus.htm

Don't think that the federal government shut down is a good time to meander across the border without documents-Customs and Border Protection, and ICE are all still fully operational.

...And we're back!

Wow, where has the time gone? One-third of 2013 has already gone by and this blog has unfortunately been very neglected, but it doesn't mean I haven't been keeping you all in mind. Here's a mishmash of updates to get you caught up on the going ons of Jennifer Chang Law (namely me- Jennifer Chang).

Got Financial Aid?
Waaaaaay back in January, I volunteered with Cash for College at two FAFSA events- one at Fremont High School in Sunnyvale, and one at Gunderson High School in San Jose. I helped high school seniors fill out the Free Application for Federal Student Aid. At the time, unfortunately the California Dream Act application, which grants undocumented students financial aid for higher education, was not yet available online (bummer!). But through Cash for College, everyone who attended one of the Financial Aid workshops was entered to win a $1000 scholarship for college, meaning each location had a $1000 winner!

My most memorable moment- a student asking me if he should check "single" or "married" on his application since he wasn't single, but wasn't married. He concluded that he should just check "married"... luckily he sought help and was informed that he is legally "single" (much to his girlfriend's chagrin, I'm sure).

Note: This photo is a dramatization, no minors were hurt in the shooting of this photo.

CLE
Also in January, I taught my very first CLE course! As a lawyer, we're required to complete a certain amount of Continuing Legal Education every three years, just to keep our knowledge current. I taught my very first course to a group of colleagues on the topic of the AILA website. AILA (American Immigration Lawyer's Association) is the immigration organization- basically all immigration attorneys are members, and their website is a great resource on immigration, but it's organization is a bit confusing. My hour-long course helped get my colleagues acquainted with the website and all the resources AILA has to offer!

Naturalization Clinic
At the end of February, I volunteered my attorney services at a naturalization clinic in San Jose. This clinic was targeted at Legal Permanent Residents who were applying for citizenship and either were receiving public benefits or where otherwise considered "low-income".  I thought it'd be similar to some of the DACA (Deferred Action) clinics that I've volunteered at- maybe 50 people in attendance? I was no at all prepared for what I saw. They had hundreds of people filling a very large, almost supermarket-sized room. I arrived a bit late, but once I got there I was thrown into the mix reviewing completed applications. While the workshop started at 4pm, there were people who were lined up before noon! And it paid off, because there were so many people to help, they had to shoo us out at almost 9pm, when it was scheduled to end at 8pm!

Nicaragua
I just spent my Spring Break in Nicaragua! It was an eye-opening experience that shed light on a different perspective of immigration in the U.S. Stay tuned for a post dedicated to this trip- it was too enlightening to hide in a post with so many updates!

That's it for now... Stay tuned for more regular updates. There are multiple posts already floating in my head!

Unlawful Presence Waivers

USCIS published its final version of a much anticipated new rule that will allow certain immediate family members of U.S. citizens who are physically present in the United States to apply for a waiver to waive their unlawful presence PRIOR to their departure to their home country for a visa interview. This will cut down the length of time that an applicant for legal permanent resident status is outside of the United States.

Under the current process, people applying for legal permanent resident status who have been living in the U.S. for more than 6 months without legal status must apply for a waiver to waive their "unlawful presensce". At the moment, an application for a waiver can only be submitted after a person has returned to their home country for their visa interview, and completed their interview. At this point, reviewing an application for a waiver can take several months, and force U.S. citizens to be seperated from their family members for long periods of time. Under this new process, an applicant can apply for a waiver PRIOR to departing the U.S. for their visa interview, and if there are no other grounds of inadmissibility, the visa can be approved immediately.

Please keep in mind that this new rule only allows you to apply for a waiver of unlawful presence, and not for any other reasons of inadmissibility. For the other grounds of inadmissibility, you will still have to proceed under the current rule and submit a waiver application AFTER your visa interview. The new rule takes effect March 4, 2013, and is anticipated to remove a roadblock for many immediate family members who are eligible to adjust status.

Here's a summary of the new rule:

SUMMARY: On April 2, 2012, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule to amend its regulations to allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications. This final rule implements the provisional unlawful presence waiver process. It also finalizes clarifying amendments to other provisions within our regulations. The Department of Homeland Security (DHS) anticipates that these changes will significantly reduce the length of time U.S. citizens are separated from their immediate relatives who engage in consular processing abroad. DHS also believes that this new process will reduce the degree of interchange between the U.S. Department of State (DOS) and USCIS and create greater efficiencies for both the U.S. Government and most provisional unlawful presence waiver applicants.

DHS reminds the public that the filing or approval of a provisional unlawful presence waiver application will not: Confer any legal status, protect against the accrual of additional periods of unlawful presence, authorize an alien to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or protect an alien from being placed in removal proceedings or removed from the United States in accordance with current DHS policies governing initiation of removal proceedings and the use of prosecutorial discretion.

DATES: This final rule is effective March 4, 2013.

For the full text published in today's Federal Register, visit here: http://www.gpo.gov/fdsys/pkg/FR-2013-01-03/pdf/2012-31268.pdf

How to get your Immigration History

Prior to filing any types of applications with immigration, it is always wise to know what risks you are putting yourself at. You want to know everything immigration is going to know. This is especially important for anyone with a criminal history or who has had a previous encounter with immigration (at the border for example). While you may not think anything was recorded, it is better to find out before you submit an application to immigration. For example, if you have been deported from the country (but you thought you were just turned away), filing an application with immigration could lead to imprisonment- that's not good. So here's some information on how to find out about your records.

Immigration History

If you encountered immigration during an attempted entry into the U.S., you should submit a Freedom of Information Act (FOIA) request to Customs and Border Patrol. The information that you will need to provide include: Name/Aliases, Date of birth/Dates of birth you may have used, Address, Consent (if a third party is submitting the request), Parental consent (if you are a minor), Sworn declaration under penalty of perjury or notarized affidavit of identity, Death Certificate, news article, or obituary (if you are requesting information in regards to a deceased person), and phone number (Include a daytime phone number at which you can be reached should there be any questions about your CBP FOIA request). This information should be sent to: CBPFOIA@DHS.gov; U.S. Customs and Border Protection, FOIA Division, 799 9th Street NW, Mint Annex, Washington, DC 20229-1181; or faxed to: (202) 325-0230. While Customs and Border Patrol offers an otion to submit FOIAs online, they require original signatures, so you will eventually have to mail them documents. However the benefit to submitting a request online is immediately receiving a case number and knowing that the request was received.

A FOIA request should be completed within one month in theory... but the government has a reputation for being overloaded and behind, so it might be a while.

More information on how to submit a Customs and Border Protection FOIA can be found here:

http://cbp.gov/xp/cgov/admin/fl/foia/foia_requests/howtotravel.xml
 

And the type of information you can request through a CBP FOIA, is detailed here: http://cbp.gov/xp/cgov/admin/fl/foia/foia_requests/describing_records.xml

So now you're thinking, okay, I know where to go ask for this information, but what if I find out I'm barred from the U.S. and I just sent the government my home address. Are they going to come knock on my door? While there have been rumors that undocumented people have found themselves in removal proceedings following a FOIA request, this is known among immigration attorneys as an urban legend. No immigrtion attorney I have ever consulted with has any first hand knowledge of someone landing in removal proceedings as a result of a FOIA. That bieng said, if you are concerned about this, you can also hire an attorney (like me!) to submit this information on your behalf, and most attorneys will provide their own address in lieu of yours. The cost is minimal, and may provide you with some peace of mind.


Criminal History

In addition to requesting you file from CBP, it is also wise to complete an criminal background check. A criminal background check is a check of FBI records which will show all criminal history that is attached to your fingerprints. This is a good idea for people who may not remember if they were arrested for a certain incident or where, because it includes information from all agencies that are report to the FBI. Usually when you go to your local police department and ask for a background check, the local police can only give you your local record, meaning if you were arrested in another city, they would not have record of that. A LiveScan is a California background check, while a FBI background check should show any time you were fingerprinted in the United States. This should include when you attempted to cross the border and were turned around. It's wise to complete a criminal background check prior to submitting applications to the government, because fingerprinting is almost always required for applications you may submit to Immigration. If the government is going to have the information, you want to have it first!

In order to obtain a background check, you need to 1) complete an application, 2) complete a fingerprint card ($19.95 at all UPS locations), and 3) submit the application, fingerprint card and $18 to the FBI. For the application and details on how to request a background check, visit the FBI's website: http://www.fbi.gov/about-us/cjis/background-checks/submitting-an-identification-record-request-to-the-fbi

The combination of the FOIA and the background check should be enough to find out what immigration-related information is on your record. If both your FOIA request and your background check come back clean then you're fine! If not, then you should consult an attorney to weigh the risks of submitting applications given what is on your record.

Updated 12/16/12