Federal Court rules in suit involving mandatory detention without bond hearings.

All of the Plaintiffs were detained without bond hearings at the Northwest Detention Center (“NWDC”) located next to the Port of Tacoma, Washington. The mega facility with a capacity of 1,000 detainees opened in 2004 under DHS management until 2005 when the GEO Group received the contract to operate the facility for ICE. Several critics suggest contract prisons are profit centers.

All of the Plaintiffs were detained without bond hearings at the Northwest Detention Center (“NWDC”) located next to the Port of Tacoma, Washington. 

Three  Plaintiffs detained without bond in an ICE detention center in Tacoma, Washington recently prevailed in their lawsuit over the Department of Homeland Security’s (“DHS”) interpretation and enforcement of the mandatory detention statute that denies bond hearings for individual in pending removal proceedings.  The Court granted relief to the Plaintiffs, enjoined DHS from detaining the plaintiffs and clarified the meaning of the law, stating, “Here, there is no question that all class members will benefit equally from the court’s declaration that the government may not subject an alien to mandatory detention via Section 1226(c) unless the government took the alien into custody immediately upon his release from custody for an offense described in subparagraphs (1)(A) through (1)(D).[i]

The Plaintiffs were released from criminal sentences many years before being arrested and detained without bond hearings by ICE.

The Plaintiffs in this case are: Bassam Yusuf Khoury, a Palestinian and lawful permanent resident since 1976; Alvin Rodriguez Moya, a national of the Dominican Republic and U.S. lawful permanent resident since 1995; and Mr. Carrera, a Mexican national who has been in the U.S. since 1998.[ii]

The issue before the U.S. District Court for the Western District of Washington concerned the way DHS interpreted the mandatory detention of criminal aliens. The law concerning the apprehension and detention of aliens, 8 U.S.C. 1226(c)(2), gives the federal government authority to “lock away certain aliens who are in removal proceedings, denying them bond hearings via the so-called “mandatory detention authority.[iii]

Many years after they were released by criminal courts to their families and communities, two of the Plaintiffs in this lawsuit, Mr. Khoury and Mr. Rodriguez, were arrested by ICE and held in mandatory detention, without bond hearings, for six months, from April 2013 through October 2013. The third Plaintiff, Mr. Carrera, was held for four months, from April 2013 through August 2013. The Supreme Court has commented in past cases that it may have Due Process concerns about detentions for six months when six weeks would be a more correct period of detention. [p3. Line 10] Without the availability of a bond hearing, the Plaintiffs did not have the opportunity to appear before the immigration court to plea for release back to their families and community pending removal proceedings.

The NWDC, the detention center in Tacoma, operates on a government contract, by GEO Group, who has been the subject of criticism.

All of the Plaintiffs were detained without bond hearings at the Northwest Detention Center (“NWDC”) located next to the Port of Tacoma, Washington. The mega facility with a capacity of 1,000 detainees opened in 2004 under DHS management until 2005 when the GEO Group received the contract to operate the facility for ICE. Several critics suggest contract prisons are profit centers. In an article published in the Huffington Post, the GEO Group was mentioned. “Their business model rests on incarceration, and their profits soared throughout the 1990s and 2000s as harsh sentencing laws, the War on Drugs, and tough immigration enforcement led to a dramatic rise in detention and incarceration.[iv]

When the Court interpreted the law, it clarified that mandatory detention is only allowed immediately upon release from custody for the underlying offense.

The length of time between release from jail sentences and the ICE arrest was upsetting to the court. Mr. Khoury was released in June 2011 from 30 days in jail on a drug charge; ICE arrested him in April 2013. Mr. Rodriguez served part of a three-year sentence and was released in August 2010; ICE arrested him in April 2013. More than two or three years, Mr. Carrera, who served a 60-day sentence, was released in February 2003, and more than ten years later ICE arrested him in April 2013.[v]

The Court clearly stated in its March 11, 2014, Order: “The government violates the law to the extent it continues to subject to mandatory detention aliens who it did not take into custody at the proper time. The court has no reason to expect that the government will not take appropriate action to end its violation of the law.[vi]

To learn more about mandatory detentions and removal proceedings, or if someone you know may be improperly held, you can call the Law Offices of KiKi M. Mosley for assistance. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law and litigation. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter.

 

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False Claims to United States Citizenship: What May Seem Like a Simple Mistake Can Lead to a Lifetime of Problems.

False claims to U.S. citizenship can cause a permanent bar to legalizing your immigration status.

False claims to U.S. citizenship can cause a permanent bar to legalizing your immigration status.

Making a false claim to United States citizenship is a violation of U.S. federal law.[i] The consequence of false claims to citizenship can include fines, deportation and a permanent bar to legal immigration status. There are cases where undocumented immigrants and non-immigrant visa holders accidentally claim they are U.S. citizens, but there are also times people knowingly lie about citizenship and face harsh penalties. In recent news, a civil trial was declared a mistrial because a juror lied about his citizenship – the juror was a legal resident of Atlanta but was not a U.S. citizen[ii]. The juror was held in contempt and ordered to jail.

Frequent false claims of citizenship occur when non-citizens:

1)      Register to vote – even if they were registered through their local DMV;

2)      Claiming “U.S. citizen” when completing an I-9 Employee Eligibility Verification form;

3)      Claiming U.S. citizenship on student loan applications;

4)      Applying for a U.S. passport and otherwise;

5)      Stating you are a U.S. citizen in order to obtain any benefit only available to U.S. citizens.

Be careful not to accidentally make a false claim of citizenship. Several states offer drivers licenses to non-citizens. The National Voter Registration Act of 1993[iii], also known as the “Motor Voter Act,” requires states to offer an opportunity to register to vote when obtaining or renewing a driver’s license. The department of motor vehicles agent may not know your citizenship status, so if they offer to register you to vote, do not register if you are not a U.S. citizen. Be sure you clearly read any forms you may be asked to sign if you are eligible for a driver’s license. The fine print may state that by signing the application, you swear that you are a U.S. citizen. Likewise, election campaign volunteers might be around town registering people to vote, and they might not ask if you are a citizen. When in doubt, do not sign anything or somehow allow yourself to become registered to vote unless you are a U.S. citizen.

False claims to U.S. citizenship can cause a permanent bar to legalizing your immigration status

Applicants for U.S. permanent residency and citizenship through the naturalization process must demonstrate good moral character (“GMC”).[iv] The U.S. Citizenship and Immigration Services (“U.S.C.I.S.”) policy manual addresses acts that could prevent an applicant from establishing GMC.  One example in the USCIS policy manual states, “An applicant may fail to show GMC if he or she engaged in unlawful voting or falsely claimed U.S. citizenship for purposes of registering to vote or voting.[v]” Under the current immigration laws, false claims to citizenship causes a permanent bar to admission to the U.S. since they cannot establish GMC. In addition, removal and imprisonment are possible.

Children may qualify for narrow exceptions to false claims to U.S. citizenship.

The Child Citizenship Act of 2000[vi] amended the Immigration and Nationality Act (“INA”), permitting citizenship in certain circumstances. While many children acquired U.S. citizenship from their parents under the new law, there can be confusion among families who thought their children were citizens when in fact, they were not. Under certain circumstances, a false claim to citizenship may not be a deportable offense. The following are some examples of excusable false claims: the child’s parents were U.S. citizens by birth or naturalization; the child’s false claim was made prior to reaching age 18; the child was a U.S. permanent resident prior reaching age 16; or where the child reasonably believed he or she was a U.S. citizen when the claim was made. Because the penalties for false claims are severe, questions about false claims and exceptions should be brought to a licensed and experienced immigration attorney. Indications of false claims can cause many problems for anyone involved in the naturalization process.

An experienced licensed immigration attorney can help noncitizens who are concerned they might have accidentally taken some action that could lead to a finding of a false claim of U.S. citizenship, or where a limited exception may apply to the false claims rules. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including false claims to U.S. citizenship. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.

 

The Child Status Protection Act (CSPA) issues before the U.S. Supreme Court

Mayorkas v. Cuellar de Osorio. Set for argument on Tuesday, December 10, 2013.

Mayorkas v. Cuellar de Osorio. Set for argument on Tuesday, December 10, 2013.

To be heard by the U.S. Supreme Court this December 10, 2013 is the question whether children included as derivative beneficiaries on petitions filed by U.S. citizens are covered under the protection extended by the Child Status Protection Act, 8 U.S.C. §1153(h)(3). Cueller de Osorio’s mother, a U.S. citizen filed a petition for a visa (for a married daughter of a citizen) for her daughter in 1998 and on the petition, Cueller’s then 13 year-old son was listed as a derivative beneficiary. By the time his mother’s (the primary beneficiary of the visa petition) priority date for visa eligibility became current, the son “aged out” (losing “child” status) and the issue before the Court involves derivative visa eligibility and priority dates.

Will the court agree with the 9th Circuit that the derivative beneficiary’s priority date should be retained for purposes of being considered a “child” in light of the Child Status Protection Act?

The eligibility and priority date (and priority date retention) issues before the court involve the Child Status Protection Act (CSPA) and its rules for determining whether certain aliens qualify as “children” under the act for the purposes of obtaining visas or adjustments to their immigration status. The court may address and interpret the language of the law in determining what happens when a primary beneficiary (mom) by law, has a different priority date of eligibility than would the derivative beneficiary (son) whose immigration status could be affected based on the determination of the son’s visa eligibility.

The priority date is important to understanding the issues before the Court in this case. A limited amount of immigrant visas may be issued every year by law[i]. An immigrant visa number distributed by the U.S. Department of State is issued to visa applicants in limited numbers (226,000 per year for family sponsored preference categories and 140,000 per year for employment based preference categories) in order of the preference category and the individual’s priority date, used to determine their place in line, specifically stating the date upon which the individual can apply for an immigrant visa when one becomes available.  There are also per country limits that have led to backlogs that are sometimes over 20 years long for certain countries such as the Philippines, Mexico, China, and India.

Did the derivative beneficiary son properly “age out” or should he be given “child” status?

In this case, in 2005, the United States Citizen and Immigration Services (USCIS) denied a request for priority date retention under the CSPA, holding that Cuellar de Osorio’s son, at age 21 was ineligible for a derivative visa, despite her son being 13 when he was listed on his mother’s visa petition in 1998 as a derivative beneficiary.

CSPA became law August 6, 2002, and prior to its inception, a beneficiary (an alien who is sponsored by a relative or business, or has self-petitioned for an immigration benefit[ii]) who turned 21 years old any time before receiving permanent residence would not be a “child” for immigration purposes, hence the term “aging out” which CSPA may prevent. Aging out is an issue since the processing times for immigration petitions can be excessive. For purposes of immigration, a “child[iii]” is unmarried and under the age of 21 (as opposed to a “son” or “daughter” married and/or age 21 and over).

Definitions of “child(ren)” and retention of priority dates in the INA.

The Immigration and Nationality Act, in Section 1153(h)(3)[iv] defines the qualifications for “children” for the purposes of obtaining visas or immigration status adjustments as derivative beneficiaries of sponsored family member immigrants. The law is clear that an alien may qualify as “child” derivative beneficiaries on the filing date a visa petition. What’s unclear is what should happen if the putative “child” is 21 years old by the time the visa becomes available to the primary beneficiary. The Supreme Court must decide whether the Board of Immigration Appeals properly interpreted the law.

Section 1153(h)(3), Retention of priority date, states in pertinent part as follows: “If the age of an alien is determined under paragraph (1) to be 21 years of age or older for purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon the receipt of the original petition.”

In immigration law, the intersection of laws in the U.S. Code and USCIS policies are complex. Many immigrants fail to obtain legal status when they do not understand the nuances of immigration law. At the Law Office of KiKi M. Mosley, clients seek petitions for visas seeking to include derivative beneficiaries. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.