Tag: DACA

USCIS Travel Document (I-131)

The importance and understanding of a USCIS Travel Document (Form I-131)

What is a Travel Document? (I-131)

Depending on what your immigration status in the USA a form I-131 Travel Document may or may not apply to you. However, for certain immigrants who are in this country under certain status such as DACA or a Temporary Protected Stay (TPS), a travel Document is extremely important if you intend to leave the country and return. The way the law is written right now, people with DACA or TPS are not allowed to reenter the country if they leave. So, let’s pretend you have DACA or TPS and you leave the USA to go on vacation. Upon your entry back into the USA it’s very possible that the Department of Homeland Security does not let you enter the country. That is why you need to apply for a Travel Document before you leave.

Applying for a Travel Document (I-131)

To apply for a travel document, you must fill out application with USCIS on form I-131. The purpose of the document is to acquire USCIS approval so that you can leave and then return into the country. You can only get a travel document for the reasons listed by law. The most common one is for humanitarian reasons such as a sick family member or a special event that USCIS deems worthy. Once your travel permit is granted you can leave the country and then upon entry show them your travel permit and they will let you back into the country. If you leave the country without it, you risk not being allowed to enter the country again.

Using the Travel Document as a Legal Entry

However, the travel document also has another function. People who are here under DACA or TPS and have an immediate relative who can petition for their green card, the travel document can be a game changer. Currently the rules state that if you entered the USA legally you can apply to get your green card while being in the USA. However, in the 5th Circuit (Houston), the law doesn’t recognize DACA or TPS as a legal entry. Therefore, if they want to get a green card they must leave the USA. However, now that we know about the travel document it is possible to apply for one and if granted use it as your legal entry. Let’s pretend someone gets a travel document, leaves to Japan and comes back in. The government will allow them entry because of their travel document and now they have a LEGAL entry into the country and can now apply for their green card in the USA.

Therefore, applying for a travel Document for people who have DACA or TPS can be a game-changer when it comes to getting a green card.

Contact Zavala Texas Law

Feel free to contact us to discuss whether you’re eligible for a travel permit and how it can help you get your green card.

Factors to consider before applying with Immigration

Applying for a Green Card or Visa

If you’re trying to obtain a non-immigrant Visa or legal permanent resident status AKA green card, there are two major things you should consider before applying for your visa.

Eligibility

The first step to come to United States is to see if you are eligible for an immigrant or non-immigrant visa. There are multiple visas one can apply for ranging from tourism all the way to employment-based. Each type of visa has eligibility standards and if you don’t qualify they will deny your application. Let’s take a very common B2 Visa, this also known as a tourism Visa. Let’s pretend foreign national wants to apply for a B2 tourist visa. However, at his interview, he claims that he wants to go to USA so that he can work and make money. This would be a violation of the visa guidelines because you are not allowed to work on a tourist visa. Therefore, if he intends to work, he will not be eligible for a tourist visa because he has an ulterior motive. On the employment side there are other visas such as an E2 investor visa which requires a foreign national to open and operate a business in the United States. You must prove your eligibility through business plans and documents. It’s important to determine your eligibility for the intended visa you are applying for. Consult with us at Zavala Texas Law, to help you determine your eligibility.

Inadmissibility

When the United States reviews your current visa or green card application, they will also decide whether you are inadmissible.  The term inadmissible means based on the rules of the Immigration and Nationality Act, you are a person who the USA cannot admit into the country. In my experience most all inadmissibility ground usually come from criminal backgrounds, prior illegal entries, being associated with a criminal organization.

A common example would be if you entered the country illegally or if you overstayed a visa. Both of those examples could find you inadmissible. Depending on the inadmissibility reason, you may be eligible for a discretionary waiver. A waiver is essentially a pardon by immigration. Therefore, if you get your waiver approved cancels out your inadmissibility and you are now admissible into the country.

If you have more questions regarding obtaining a Visa or green card, please feel free to contact us we are here at your disposal.

USCIS: I-797C Explained

What is an I-797C Receipt?

Anytime you file applications with USCIS they will send you what’s called an I-797C receipt. This is a confirmation that USCIS received your application and it is currently being processed . I-797C  receipt is called that because on the upper right hand corner it says I-797C. No matter what application you submitted you will receive an I-797C receipt once USCIS receives your application.

Receiving a receipt does not mean that your application has been approved nor has been denied, all it means is that USCIS has received it and it’s currently processing. Each I-797C document will give you current case updates or will notify you if you were approved or denied.

On the  I-797C receipt it is customary to have a receipt number so that you can track your case with USCIS. When you hire an experienced immigration lawyer, they will receive the majority of the paperwork USCIS sends you. They will keep you informed on your case status and let you know of anything that is needed.

Termination of DACA

DACA Memo – September 4, 2017

Earlier this month, the President of the United States, Donald Trump, terminated an executive order known as the Dream Act. The Dream Act (aka DACA) was created by the Obama Administration back in June 15, 2012. DACA protected people from deportation who were brought here illegally as children. A person had to apply and if granted they would get a work permit and permission to remain within the United States. The policy reason was to protect children from deportation due to the actions of the parents bringing them illegally.

After many months of debate whether Trump would terminate or prolong DACA, the answer finally came on September 4, 2017. In an official memo released by Department of Homeland Security, the Attorney General and administration put an end to the 2012 Dreamers Act. The termination isn’t immediate but will be phased out over a 6 month period. This leaves approximately over 800,000 people at risk of deportation unless Congress is able to enact a law within 6 months. Many activists are urging Congress to pass a law to protect these people from deportation.

In the memo by DHS they also set out guidelines on how they will address applications moving forward.

  • Any DACA application submitted before September 4, 2017 will go under the usual review process and maybe approved
  • DACA applications submitted or received after September 4, 2017 will be rejected
  • Current DACA holders whose DACA status terminates between 9/4/2017 and 3/5/2018 will have a chance to renew their status as long as they apply by October 5, 2017.

As of now Congress has proposed some ideas such as the SUCCEED Act which can help protect the people who qualified as Dreamers. Congress has until 3/5/2018 to pass a law or else many people who have lived here most of their lives will be forced to go to a foreign country of birth.

If you have any questions please feel free to contact us and we will love to talk you through it.

Sanctuary Cities: End Times?

Sanctuary Cities

On May 7, 2017, the governor of Texas Greg Abbott, signed a new document that would go into law September of this year. This new law addressed the controversy around “ Sanctuary cities ” and now requires police to ask about a person’s legal status. In simple terms this new law would require local police to question a person’s legal status and arrest them if they are undocumented. If they do not, the police can face criminal charges as well as fines. This new law is being met with extreme resistance from Pro-Immigration groups and the American Civil Liberties Union but also applauded by many. I will try to highlight the viewpoints from both sides to help easily paint the picture.

The easiest way to explain the idea of a sanctuary city is to first understand the difference between Federal and State law. Immigration is Federal law and handled by Department of Homeland Security (DHS) and the Department of Justice. In the past, it was the duty of DHS to find and catch undocumented people, not state/local  law enforcement. However, once an undocumented person was arrested and convicted by a State Judge they are SUPPOSED to be reported to Immigration for deportation. This is where the term Sanctuary Cities comes into play. There are certain cities/counties that even after conviction they do not report the undocumented person to DHS and let them leave jail after completing their sentence. With the new President, he vowed to put an end to “sanctuary cities” and Texas quickly followed. The catalyst for this action occurred in San Francisco (which is a Sanctuary city) in 2015, when a girl was killed by an undocumented individual despite him having been in jail multiple times. The argument is if San Francisco complied and notified Immigration officials, the individual would have been deported and this murder never would have happened. By implementing this new law, Texas hopes to facilitate the deportation of undocumented individuals.

However, the opposition of this new law argues many different points. One complaint of many local law enforcement is that they would be spread too thin. They do not have the manpower nor would that be a good use of local law enforcement.  Their view is that our police have bigger issues to deal with than doing the work for DHS. They can’t do the work of DHS and still keep up with their local duties. Others say that we can’t hold all the undocumented people in jail because there just isn’t enough room. A similar law had been tried in Arizona a few years back which gave the police the power to ask for an individual’s legal status. Ultimately this law was removed but many people argue that this new Texas law is the same wolf in different sheep’s clothing.

Even though this new law is supposed to come into effect on September 1, 2017, it will be met with much opposition and legal challenges. It will be interesting to see if other states follow Texas’s example and implement similar laws. Below is an excerpt from the Associated Press regarding the new bill.
The Associated Press reports:

“The new Texas law was blasted by opponents as the nation’s toughest on immigrants since Arizona’s crackdown in 2010, disparagingly known as the ‘papers, please’ provision. They are now vowing a court challenge in Texas similar to what unfolded in Arizona.

“Every major police chief in Texas, which includes some of the largest cities in the U.S., opposed the measure that allows police to inquire about the immigration status of anyone they detain, a situation that can range from arrest for a crime to being stopped for a traffic violation.

“It also requires police chiefs and sheriffs — under the threat of jail and removal of office — to comply with federal requests to hold criminal suspects for possible deportation. Republicans have a strong majority in the Legislature and shoved aside Democratic objections, even as President Donald Trump’s efforts to withhold federal funding for sanctuary cities have hit roadblocks in federal courts.”

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Immigration Hold

The Criminal Justice System and Immigration Courts are two entirely different judicial proceedings, though they ultimately can be tied in together for certain defendants. When a person is in this country illegally, they are by default “removable” (the politically correct term for deportable).

The truth is that the number of undocumented people in this country far exceeds the Department of Homeland Security’s (DHS) capacity to deport. So, in 2014, the DHS created a “Removal Priority System,” a ranking system for people who are to be deported based on the country’s priority to deport them. At the top of the list are people with criminal convictions and they will have an Immigration hold placed on them.

I frequently see clients who either already have or fear an immigration hold. An immigration hold is a form of detention placed by Immigration Customs Enforcement (ICE), the immigration police arm of DHS. ICE will instruct the local jail housing the inmate not to allow them out under any circumstances until ICE comes and gets them. Remember, DHS is trying to remove people with criminal convictions.

At this point, the defendant is at the mercy of DHS. Even if the defendant bonds out of jail, the jail will notify ICE who will take him or her into custody. If the defendant pleads guilty, the same will happen. The only way to remove an ICE hold is if a defendant’s case is dismissed or if he is determined not guilty. At that point, since the defendant no longer has criminal proceedings against him or her, the defendant drops to DHS’ second priority, dramatically reducing the likelihood for deportation.

I have found that in Harris County, due to the immense amount of criminal proceedings occurring daily, ICE will only apply an immigration hold if the charge is a felony or a serious misdemeanor. The reason being that serious criminals should be the highest priority of removal from this country.

If ICE does detain and transfer a defendant to immigration jail, the defendant may or may not be eligible for a bond under Immigration Nationality Act 236, depending on the criminal conviction. The Immigration Nationality Act sets the rules governing immigration proceedings, while the Texas Penal Code is what governs criminal proceedings.

Sometimes serving undocumented clients means an attorney has to face both criminal and immigration issues. Criminal convictions can have serious consequences in the immigration realm, and it’s important to have a lawyer who knows that.

Always consult with an immigration attorney if the defendant is undocumented because after the criminal case, there may be an immigration case following.

Criminal Bars to DACA

Donald Trump has promised important changes to immigration policy within his first 100 days in office, and the last few days have certainly borne that out.  As an immigration attorney, I have been anxiously awaiting his policy decisions about Deferred Action for Childhood Arrivals (DACA), also known as “the Dream Act”.

DACA is a program that benefits children who entered this country illegally at a young age. If you are accepted into the DACA program, the government essentially overlooks your illegal entry into this country and you can remain. The policy reason for this act was to prevent children who had entered at a young age, through no fault or act of their own, from being removed to a country they never knew.

The prerequisites are that the child be in school or have graduated, and been physically present in the United States before June 2007. Once the application is approved the child has DACA status. Once you have DACA your only responsibility is to renew it. However, you can lose your DACA status if you are convicted of certain criminal charges.

I want to cover the criminal side of the DACA program and how to best maneuver the situation for criminal defense attorneys. First, if an applicant has plead guilty to a state or federal felony, they will become ineligible for DACA renewal. This includes BOTH convictions and deferred adjudication.

Therefore, reduction to a misdemeanor could be the difference between your client’s ability to stay in the US and being subject to deportation. In fact, many other forms of immigration approval are balanced on felony convictions, as well, and will likely cause problems for the non-citizen client. To classify as a felony under Immigration law, the crime must be punishable by one year or more in prison.

Therefore misdemeanors, which carry a maximum of one year jail time in Texas, cannot constitute a felony for immigration purposes. Example, if you are convicted of a crime which is punishable for more than a year, it doesn’t matter if you get deferred or probation. It will make you ineligible for DACA.

Immigration also has its own definition for “Aggravated Felony”, which is more complicated but doesn’t apply to DACA standards.

If an individual pleads guilty to a “significant misdemeanor” they will also become ineligible for DACA. To classify as a significant misdemeanor the individual must have been convicted of a state misdemeanor and sentenced to more than 90 days of confinement OR be convicted of one of these enumerated charges:

A lawyer should see if the charge can be changed so it doesn’t fit within the meaning of “significant misdemeanor.” For example, if a DACA applicant were charged with Driving Under the Influence, a conviction would render him ineligible for approval or renewal. However, a conviction for a lesser offense, such as Reckless Driving, would not affect DACA acceptance.

An applicant is also rendered ineligible for DACA by pleading guilty to three non-significant misdemeanors. Essentially, it’s a three strikes you’re out rule. If you are convicted of any three misdemeanors not arising out of the same situation, you will be ineligible for DACA.

It doesn’t matter if you got them 5 years apart from each other. Three strikes and you are out. Interestingly, the law specifies that traffic offenses and other minor offenses, in some places categorized as citations rather than misdemeanors, don’t count toward the three misdemeanors. If you can, explore reduction to a traffic offense.

When an applicant’s DACA application is under review the United States Customs Immigration Service (USCIS) has complete power over the application. An agent looks over the application and they have the discretion to approve or deny it. Despite never being convicted of a crime, if the agent finds that you are a “threat to national security or public safety,” they can deny an application outright.

I am concerned that this may be where the Trump administration exercises its discretion, and denies good DACA applicants out of misguided and discriminatory intent. In my experience, under the Obama administration, the Dream Act was meant to benefit more than to punish.

I have had a few clients who lost DACA status due to a criminal conviction, but I have also seen the happiness a family gets when they open their acceptance letters.

The connection between immigration and criminal law is an important factor when dealing with the government. On one side, you have the United States who wants to make sure they aren’t allowing bad people into our country to do harm. On the other side, you have good immigrants who just got caught in a bad situation.

It is for this reason that having a lawyer who knows both areas of the law will greatly affect the outcome. With Trump mentioning he will sign more Executive Orders soon, I am curious to see the implications it will have on the DACA program.

If you are considering DACA and have had previous arrests, please call us for a free consultation with a Houston immigration lawyer at (832) 819-3723.

Deferred Adjudication and Immigration Consequences

Sharing an office with a veteran Immigration attorney definitely gives me exposure to people who are facing immigration troubles because of criminal charges. We have a nice system where I handle the criminal portion and then he covers the immigration.

Because our clients are not citizens, their criminal cases require different approaches to hopefully avoid immigration consequences. I understand that most criminal defense attorneys don’t practice immigration but there are still simple basics, which attorneys and people should know regarding “Crimmigration”.

The simplest and most basic rule of crimmigration is… any form of conviction stays on your record in the eyes of immigration. EVERYTHING. The reason is because Immigration Law is Federal law and they have adopted their own rules called the Immigration Nationality Act (INA). And, the INA definition of “conviction” is harsher than you would think.

For example, an undocumented person charged with a crime in state court could be eligible for a deferred adjudication with dismissal after 6 months. Yet, this would still be a conviction under the eyes of Immigration. Deferred adjudication is a form of probation where if you stick to the conditions of your probation after a set period of time, the court will dismiss your case.

That’s a great situation for the majority of people because the case is dismissed. However, under INA a deferred adjudication can still be a conviction if the record “admits sufficient facts to warrant a finding of guilt.” This means that if the judge says “Person X, we find that you committed theft at Wal-Mart but instead of finding you guilty we will place you on deferred adjudication,” that is enough to be deemed convicted under Immigration Law.

So what does that leave us with? Honestly, an uphill battle but one that we can still be strategic about. Obviously, one should always go for the dismissal or the not guilty; however, we live in a real world and sometimes those results aren’t always available. At that point sometimes a well formulated plea agreement can really save your client from harsh immigration consequences. Maybe some pre-trial programs where you don’t admit to any facts could be a good alternative.

For example, I had a great case of a girl who was in the USA on a Dream Act Visa. She was the valedictorian of her class, tried to be cool and consumed LSD at school. Let’s just say she regretted it really bad approximately 2 hours into the trip when school nurses were around her trying to calm her down. A local county brought charges against her for possession of a controlled substance.

My client admitted to me taking LSD but claimed she didn’t know it would be that intense. The prosecutor laughed at the facts and was willing to offer her deferred adjudication if she completed drug tests and other similar conditions.

But REMEMBER: deferred adjudication is still a conviction under INA so that would ruin her immigration status. So instead, the prosecutor and I agreed to some pre-trial conditions and if she satisfied them they would dismiss the case. Luckily my client successfully completed all the conditions, the prosecutor dismissed the case, and my client was eligible to reapply for her immigration status.

My job as an Immigration and Criminal Defense attorney compels me to try to get the best outcome for my clients.

Knowing the rules of Immigration helps me to arrange deals with prosecutors that will have the least immigration consequence on my clients. I hope that by understanding that a deferred adjudication can still be a conviction, it may prompt some lawyers and clients to find alternative ways of handling a case.

If you have any questions regarding Deferred Adjudication and the consequences it may have on your immigration status, contact our Houston law firm today.