New York Lawyer's Legal Updates

Immigration Issues Of Focus During The Trump Era

Author: New York Immigration lawyer Alena Shautsova

With the change of administration, USCIS and ICE also changed their priority and focus when considering immigration submissions. This article will focus on possible issues that those applying for various immigration benefits should be aware of.

Criminal Convictions

I would list criminal arrests, chargers and convictions as a number one current issue. Criminal history has always been a problem for Immigration cases, but with the new Executive order announcing that even chargers (without convictions) are grounds for priority treatment, any past criminal history deserves a very careful approach. What changed from the past? First, new administration announced that all those with criminal chargers and convictions are a priority of removal. Second, I have noticed that if in the past one applied for an Immigration benefit and had a minor conviction which was dismissed, USCIS officers would not force the person to elaborate on those chargers and Immigration history. Now, it is different. The problem comes from the Immigration definition of conviction, which is broader than definition of conviction under the Criminal law. An admission of guilt is sufficient to be found “convicted” for Immigration purposes. For example, let’s say a person’s chargers resulted in adjudication of contemplation of dismissal in NY, and the case was in fact dismissed and sealed. However, as a part of the case, the accused plead guilty. The person is considered not to be convicted under the Criminal law, but considered to be convicted for Immigration purposes. In such cases, a further analysis will be required to see if that conviction made a person deportable or inadmissible. As a part of exercising its broad powers, USCIS now is demanding full records for convictions, including minutes of guilty pleas for those chargers that were dismissed. Of course, in cases where a person is represented by an attorney, an attorney will object to such demands, but for those appearing pro se or without a lawyer: you should at least consult with an attorney prior to dealing with such demands/questions.

SIJ Cases Where Relatives Assisted Minors to Cross The Border

Special Immigrant Juvenile status is a relief for unaccompanied minors: when a child who cannot reunite with one or both parents and who was neglected, abused or abandoned in his home country receives a green card in the US. For SIJ, a child has to find a guardian, and often such a guardian is a person who is related to the child, and sometimes even a child’s parent (it is possible to receive SIJ status when a guardian is a child’s parent, even if undocumented). The current administration announced that those relatives who helped children to cross the border (financially for example) can be charged with alien smuggling. A federal offence of alien smuggling is also an aggravated felony under the Immigration laws. It means if found guilty, a person -guardian who is not a citizen, in addition to the conviction and federal penalties will be deported and forever barred from coming back to the US.

Asylum Filing

Trump administration has made several attempts already to stop (even though it is claimed temporarily) refugee resettlement program. Also, Trump administration issued an executive order changing the way credible and reasonable fear interviews will be judged. Though the order does not explicitly state that the standard from credible and reasonable fear interviews will be different, it is understood that now it will be extremely difficult to meet these thresholds. Also, if previously a person was found to misrepresent some information not related to asylum claim, he/she would still be given a chance to apply for asylum, now, such applicants will be precluded from asserting their asylum claims. It seems that most of the announced changes will be applicable to the proceedings at the border, but it seems that asylum is an area of focus for the new administration, and as such all asylum cases shall be prepared carefully.

Finally, with Immigration regulations changing every day (literally), one should be mindful of other “pitfalls” such as prior immigration submissions containing questionable information; statements at the border at the time of entry and statements made during the visa applications; pending criminal chargers, probation or warrants; and, of course, authenticity of the submitted documents.

19 March 2017
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