Tag: Immigration Hold

Voluntary Departure Explained

What is Voluntary Departure with the Immigration Court?

When a person aka respondent is in removal proceedings, it is the job of the immigration lawyer to identify possible relief for the respondent. Relief is the term given to the options the person has to remain in the country if any at all. Once you identify relief and fight the case to the immigration court, it is still possible that the judge finds the person deportable. Along with deportation the judge also places a 10 year ban on the person from entering the USA again. That means that the person is ineligible to enter the USA legally for another 10 years. If you enter illegally within those 10 years, you now face the permanent lifetime ban.

Voluntary Departure is a way of being deported but NOT having that 10 year ban added as a penalty. It’s essentially a deportation without the harsh 10 year punishment.

Why is Voluntary Departure important?

Let us assume that an order of deportation is placed on you and you cannot come back into the USA for 10 years. If you are currently or eventually marry a US citizen you cannot apply for a green card until those 10 years expire. This can be a huge setback for many families and future plans.

However, remember that if the judge grants you voluntary departure, you do not have that 10 year ban. Therefore your spouse can petition for you immediately after you leave the USA. This can save time, effort and save families.

Who is eligible for Voluntary Departure?

I always tell my clients that voluntary departure is discretionary. The judge has sole discretion on whether to grant voluntary departure or not. Often the judge will consider various aspects when considering voluntary departure. The judge will consider the person’s criminal record, personal history and family ties. Some criminal convictions can make you ineligible to apply for voluntary departure. Consult with us if you have criminal convictions in your past.

When is Voluntary Departure worth it?

It depends. An experienced immigration lawyer will be able to identify what the best solution is. I have had situations where a client has potential relief in the USA but in all honesty fighting for voluntary departure gave them the best chance at obtaining what they wanted.

Let me show you an example with our fictional immigrant, groundskeeper “Willy”.

Lets pretend Willy came to the USA illegally from Scotland. He got a job at Springfield elementary and was working for a few years. Along the way, Willy falls in love with Ms. Vanhouten. They get married and enjoy being together. Unfortunately Willy gets picked up by ICE agents and is now in deportation proceedings. Ms. Vanhouten, who is a citizen,wants to help Willy get his green card. Unfortunately she cannot just petition a green card for Willy because he entered illegally. During immigration court, Willy’s lawyer tells him that if he gets deported he will have a 10 year ban and his wife cannot help him for another 10 years. Willy’s lawyer also tells him that if he requests voluntary departure and the judge grants it, then he can start his green card process the moment he is back in his country of Scotland.

Since Willy’s lawyer is a good experienced immigration attorney at Zavala Texas Law, they fight for voluntary departure and the judge grants it. Thus, Willy is sent back to Scotland but the moment he arrives, he and his wife can now start the green card process and in about 1 years time, Willy can be back in the USA with a green card.

Contact us if you have any questions.

When someone you know is in immigration proceedings having an experienced immigration lawyer can make a big difference. They will walk you through the process and establish what your best options are. If you are seeking an experienced immigration lawyer in Houston, please feel free to contact us.

ICE Hold under the Trump Administration

I recently wrote explaining how an Immigration and Customs Enforcement (ICE) Hold affects undocumented people who are in criminal proceedings. It is a simple concept, if an undocumented (politically correct way of saying illegal) person is booked into jail for a crime, ICE can place a hold on that person. A hold is a detainer that gives ICE 48 hours to pick up the individual and transfer them into ICE custody and be placed in deportation proceedings. In the past, if an undocumented person was arrested for a crime, they had the right to post bond and could be free while their case is pending. If they were then found guilty, ICE then had the choice to place an ICE hold on them and take them into deportation proceedings. Since the new Presidential Administration has taken over there has been a big shift in policy regarding ICE holds that place undocumented people at a huge disadvantage.

I would say that 90% of my clientele are Hispanic and majority of them undocumented. What use to be a straightforward process of bonding out your family member has now turned into a lengthy nightmare with in my opinion various constitutional rights being violated. For the sake of my example let’s say my client is called “Alex” and he is undocumented. Let’s say Alex gets pulled over for DWI and goes in front of a judge and is given a $500 bond. Prior to the Trump Administration, Alex’s family or friends could pay that bond and he would be processed out no problem. However, recently due to new leadership in the Department of Homeland Security (DHS) and in the White House, ICE has been a lot more involved with criminal cases.

Under the new policy, Alex’s family can still pay that $500 bond, however instead of being released and handed over to his family he would be released into ICE custody. ICE would then transfer him to a Federal Detention Center and begin deportation proceedings against him. So not only does the family lose their money they paid for bond, Alex now has two cases against him! The original DWI and the Immigration case. Under the Immigration and Nationality Act (INA), an undocumented person is eligible for Immigration bond if they qualify. An Immigration Bond hearing is very similar to a Criminal Bond hearing in that the Judge listens to the pro’s and con’s of releasing Alex out on bond. Where it gets extremely unfair and prejudicial in my opinion is that the Immigration Judge can consider the pending DWI charge and is free to ask Alex about the incident, which is a HUGE constitutional violation of the 5th amendment, the right to not self-incriminate and the idea of innocent until proven guilty. So not only does DHS use the pending DWI against you even though you haven’t been found guilty of it yet, the Judge is free to ask questions concerning the DWI that can later be used against you in the criminal case.

So let’s believe that Alex had a good lawyer and despite the unfair Immigration Bond hearing he still gets a bond in the amount of $10,000. Alex’s family now must pay $10,000 bond however, in the famous words of Billy Mays, “wait, it gets better!”. After Alex’s family pays the bond, ICE instead of releasing him to the family, ICE now takes him back to the original jail to finish out his criminal case and places ANOTHER ICE hold on him. Therefore, Alex is back in jail and cannot bond out because ICE has a hold on him. This gives Alex the only option of fighting his criminal case while being stuck in jail. The reason ICE takes him back to Criminal jail is because they claim he still has a case pending therefore they have jurisdiction to take him. So, after spending $10,500 and still technically being innocent, Alex is stuck in jail until his criminal case is over. This unfortunately causes many people frustration of being in jail for many months so they plead guilty just to get it all over with. Once they plead guilty, ICE is right there to take them back to Immigration detention.

It used to be that ICE wouldn’t get involved unless it was a serious offense and you were convicted and found guilty. Now due to the new policy by DHS, ICE is exercising their power much more which is leading to unfair court proceedings for undocumented people and an extreme overcrowding of jails.

So, we are left with the question… What should we do? As I tell everyone you should absolutely consult with an experienced lawyer so they can explain the process and the solutions to you. Nothing is more important than your freedom so it’s worth to talk to an experienced immigration and criminal defense attorney to help you.

 

 

 

 

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.