• What kind of immigrants wind up in jail?
• So why would an immigrant who is a decent law-abiding citizen wind up in jail?
• So, How Do We Get Immigrants Out of Jail?

This year, the number of immigrants held in private prisons & local jails that sat partially empty during the pandemic has risen from 14,000 in early January 2021 to nearly 27,000 in July.

Over the years, we have spent a great deal of time visiting people in immigration custody.

Many folks think of actual criminals that “belong” in jail — conjured up images of immigrants tied to organized crime or cartels — but this is rarely the case.

What kind of immigrants wind up in jail?

To break stereotypes, here is an example of just three immigrants – out of a thousand we’ve seen – that I can remember personally visiting in detention:

• All three had lived in the US for decades.
• None of the three were border crossers.
• All had several school age kids born in the US.
• All three had US citizen spouses.
• None had a felony involving violence on their record or any crime in the last decade.

So why would an immigrant who is a decent law-abiding citizen wind up in jail?

Many immigrants in custody are locked up due to encounters with law enforcement for old arrests.

OR

If they have no valid visas, temporary or permanent. (if your green card has expired you should read this post asap).

Many foreign nationals in jail are not able to ask for bail (known as “bond” in Immigration Law).

One type of immigrant who cannot request bond is an “arriving alien.”

Arriving aliens are defined as:

• Caught at a border or other port of entry trying to be admitted, including those paroled (allowed to enter);
• Interdicted and taken into the country even if not seeking admission;
• Green Card holders categorized as seeking admission.

So, How Do We Get Immigrants Out of Jail?

1. Immigration may “parole” (release) legal permanent residents with no crimes that make them subject to mandatory detention.
2. Immigration may also “parole” (release) immigrants who prove “credible fear” of removal to their home countries.
3. Immigration may release certain immigrants detained temporarily – after arrest by local, state or federal law enforcement – they might be bond eligible.

Back on September 30, 1996, President Bill Clinton signed a law which resulted in mandatory detention for all immigrants who committed a host of crimes. The US Supreme Court repeatedly has found this law to be constitutional.

The key date to remember is that immigrants released by criminal authorities after October 9, 1998 are subject to mandatory detention.

However, there are always exceptions.

A great immigration lawyer with extensive experience in detention cases may be able to get an immigrant out of Jail.

AND DO NOT FORGET: immigrants may be detained for being fugitives.

Nearly 40,000 immigrants are in custody in more than 250 jails.

Speaking to an immigration attorney with tremendous experience on detention may change the lives of the immigrant in jail as well as his family.

• Why is my immigration case taking so long?
• 5 reasons your immigration case might be taking a long time
• How Can I Speed Up My Immigration Process?

Have you been waiting a long time for your Green Card, Visa, Removal Hearing, or any other immigration application? At any given time there are millions of immigrants waiting, sometimes for months or often years, to get into the United States. If you are already in the US, it can feel like forever while you are waiting to hear from Immigration.

During the pandemic it’s been very hard to know how long an application can take. We’ve had a lot of success going through the immigration process to speed up applications that have stalled or are just taking too long.

The question we hear all the time . . . why is my immigration case taking so long?

Before we get into reasons why immigration processes could be delayed, you should first understand how long should it take to get my visa, green card, etc.

How long can it take to get your immigration application?

Depending on the service as well as geography, you could be waiting anywhere from a few months to many years.

Here are 5 reasons your immigration case might be taking a long time:

1. Family quotas.  Family-based visas are when a US citizen petitions for a family member to immigrate to the US either as an Immediate Relative, or as a Family Preference. There are minimum waiting periods, and yearly quotas for each of these categories, meaning that some relatives can end up waiting for a long time before they can get a visa this way. For example, a US Citizen sibling from the Philippines can wait more than twenty years for his petition to become current, and for his brother or sister to apply for a green card.  Other categories may not take this extreme length of time, but certainly the limits imposed create multi-year backlogs in many areas.
2. Too many deportation cases, not enough judges.  In the US Immigration Courts, there are about 1.3 million folks awaiting trial dates before approximately 465 Immigration Judges.   The average wait time is thirty two months nationally and in some cities, there are Judges setting their calendars out for three or more years, delayed even more due to the pandemic.
3. Employment quotas.  As with family-based quotas there is a maximum amount of skilled workers allowed from any given country in a year. Skilled workers from India face more than a decade of waiting for green cards, as of this publication.  There are other categories which might not have such long “lines,” but as in the family cases, there are truly some serious limits placed on beneficiaries of visa petitions.
4. Background checks.  While the very necessary procedure – by which the USCIS verifies that an applicant is no threat to society – has become much more advanced (and quicker) than 20 years ago, certain checks take an extraordinarily long time.  Many law enforcement agencies are tied into the network.  One rule of thumb: if you have a surname that is common in your home country (Think Kim, Patel, Rodriguez, Silva, Lee, Singh, etc.), do not be surprised if your case might take longer.
5. The system has its inherent flaws.  Some offices (and officers) are simply slower in processing cases than others.  But it’s more complicated than that.  Files get lost, officers transfer to different departments and leave behind unfinished adjudications, folders are rerouted to service centers to “even out” the waits, and there are many more delays caused by a bureaucracy that requires a strong, experienced navigator. AND OBVIOUSLY, COVID SHUT DOWN THE EMBASSIES WORLDWIDE FOR MORE THAN A YEAR.

So How Can I Speed Up My Immigration Process?

Now there are ways to try and get your green card fast, and a good lawyer should be able to speed this process up for you by knowing various shortcuts, or exceptions if you are stuck in one of the above categories.

An immigration lawyer will attend to the needs of clients through a daily review of the never ending changes that seem to be coming from the Immigration Service, federal courts, and the presidential administration – no what matter president  is in charge.

There are other helpful ways to speed up a case, including Premium Processing. We also wrote about how to speed up your immigration process here, and specifically how to speed up green cards here.

As the then-INS Spokesperson Karen Kraushaar said, circa late 1990s:

“Immigration is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.”

• What is prosecutorial discretion?
• How can Prosecutorial Discretion help or hinder your case?
• What cases qualify for high priority in deportation?

Good News For Immigrants in the United States. New laws under Biden mean a return to pre-Trump days in terms of prosecutorial discretion. Immigration officers once again have the power to prioritize through assessment of cases. 

The Trump administration passed three executive orders  that essentially made everyone who is an undocumented immigrant a priority for deportation, as well as rescinding most of the guidelines that were being used for prosecutorial discretion. That policy meant that everyone was considered at risk for removal, and made it more difficult who should be up for deportation or removal.

Biden in the meantime has put in interim guidelines that are intended to once again focus on those who post an actual threat to national security.

What does this mean in a nutshell?

While prosecutorial discretion is not a tool that can be used to find substantive form of immigration relief, it can be used to avoid deportation and buy time for immigrants while they look for other avenues to get their green card or visas. This is a very good time to look for these other avenues.

What is prosecutorial discretion?

“In the judgement of the immigration officer…”

Prosecutorial discretion is an old term that describes the personal authority that an immigration agent or officer has to be able to make decisions on what kinds of charges could be lodged on an individual immigration case. It essentially allows an officer or agent the right to his own personal opinion on each case based on authority and experience.

Below is a 2 minute clip from a webinar I did for Lawline, that explains the basics of prosecutorial discretion.

How can Prosecutorial Discretion help or hinder your case?

The power of prosecutorial discretion is in its ability to quickly change the outcomes or direction of a particular case.

It was designed to allow individuals through the daunting piles of immigration cases in such a way that – without wasting too much government time and money – quick decisions can be made about which cases posed the most threat to Homeland Security.

This discretion meant cases that fell into any of the high priority deportation category were taken first, and those that fell into a lower priority category could be essentially dismissed, or moved toward a positive outcome.

What cases qualify for high priority in deportation?

In November 2014 the Obama Administration named as high priority cases among others:

• Terrorists, national security threats, individuals apprehended at the border attempting to enter unlawfully, gang members, individuals with felony convictions
• Prioritized unless they qualify for asylum or other relief (or Immigration finds extenuating circumstances)
• Those who attempted to cross the U.S. border unlawfully
• Immigrants or border crossers who have committed misdemeanors
• Those who had already received an order for removal (deportation) from the United States

In his Executive Order: Enhancing Public Safety in the Interior of the United States President Trump expanded the definition of high priority to include immigrants of border crosses who:

1. Have been convicted of any criminal offense
2. Have been charged with any criminal offense, where such charge has not been resolved
3. Have committed acts that constitute a chargeable criminal offense
4. Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency
5. Have abused any program related to receipt of public benefits
6. Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States
7. In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

Under these new rules, in theory, a student who overstays her visa, and is caught jaywalking would be considered a priority, even if they were a model person in every other way.

Biden has put interim guidelines for removal / deportation that are intended to “focus…limited resources on cases that present threats to national security, border security, and public safety, our agency will more ably and effectively execute its law enforcement mission.” In other words, less about the students overstaying their visa, or jaywalkers and more about those people who genuinely post a threat to national security.

No matter if you are high or low priority, if you suspect that you fit into any of the categories above PLEASE CONTACT AN IMMIGRATION LAWYER before you try to proceed on your own in any immigration matter.

• Why Did Ice Need Interim Guidelines?
• What Has Changed In The Immigration Guidelines For Removal?
• The 3 Priority Areas: National Security, Border Security & Public Safety

In the whirlwind of change that has marked the beginning of the Biden administration, ICE has received some changes to their guidelines for removal / deportation that have been effective as of February 18, and put forth with very little fanfare.

These changes are in effect until “Secretary Mayorkas issues new enforcement guidelines. The Secretary has informed me that he will issue new guidelines only after consultation with the leadership and workforce of ICE, U.S. Customs and Border Protection, and other Department of Homeland Security agencies and offices. He anticipates issuing these guidelines in less than 90 days”.

Here is what was said in the ICE press release:

“By focusing our limited resources on cases that present threats to national security, border security, and public safety, our agency will more ably and effectively execute its law enforcement mission,” ICE Acting Director Tae Johnson said in a release.

“Like every law enforcement agency at the local, state, and federal level, we must prioritize our efforts to achieve the greatest security and safety impact.”

These measures put in place to help ICE prioritize certain enforcement and removal actions over others.

Why did ICE need interim guidelines?

Biden’s Executive Order 13993 entitled Revision of Civil Immigration Enforcement Policies and Priorities came out on January 25, 2021. This order contained four main points, it:

1. Asked for a comprehensive Department-wide review of civil immigration enforcement policies
2. Established interim civil immigration enforcement priorities for the Department
3. Instituted a 100-day pause on certain removals pending the review
4. Rescinded several existing policy memoranda, including two ICE-related memoranda, and directed that (because of this) ICE issue interim guidance implementing the revised enforcement priorities and the removal pause.

What are the changes that we can expect to how ICE will deal with immigrants moving forward?

Overall, these changes are narrowing the focus of what is considered a priority in terms of ICE efforts towards deportation, taking the focus off domestic labor, and placing it more on those who are considered a public safety threat. Those living in the U.S. undocumented will be deemed a public safety threat if they’ve been convicted of an aggravated felony, a term that includes violent crimes but can include some serious but nonviolent offenses. The memo also encourages a focus on those involved in gang activity.

ICE has laid out three priority areas for deportation / removal. People that fall into this category will be “presumed” to be a threat to national security and public safety. There are three main areas — National Security, Border Security and Public Safety

1) National Security

A person will be presumed to be a national security threat if:

1. The individual is suspected of engaging in terrorism or terrorism-related activities.
2. He or she has engaged in or is suspected of engaging in espionage or espionage-related activities; or
3. His or her apprehension, arrest, or custody is otherwise, necessary to protect the national security of the United States.

2) Border Security

A noncitizen will be presumed to be a border security threat if:

1. He or she was apprehended at the border or a port of entry while attempting to unlawfully enter the United States on or after November 1, 2020; or
2. He or she was not physically present in the United States before November 1, 2020.
3. To be clear, the border security priority includes any noncitizen who unlawfully entered the United States on or after November 1, 2020.

3) Public Safety

An immigrant will be presumed to be a public safety threat if:

1. He or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the INA6, •or
2. He or she has been convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 521(a),
3. Or is not younger than 16 years of age and intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity of the gang or transnational criminal organization.

Lest we forget, Joe Biden was Vice President under the Deporter in Chief, Barack Obama.

The Trump immigration enforcement priorities were documented by seemingly everyone with a “media” platform for four years.

A wide net was cast to seek detention and removal in the last administration.

However, Obama deported far more immigrants than Trump.

The above described New Guidelines appear to be – like much of what Biden has done so far – a return to the immigration policies of his former boss.

• Dreamers Top The List For Immigration Reform
• Dreamers Are Important To The US
• So what are we left with now? Will Dreamers Get Green Cards Under Biden?

Still Waiting for the DREAM to become REALITY: This is my 25^th year as an immigration lawyer — and we are focused on Dreamers and DACA. It was recently announced that Senator Durbin and Senator Graham have proposed a bipartisan Dream act for 2021. What’s notable about this is that 20 years ago, Senator Durbin with then-Senator Hatch did the same exact thing. Hopefully in the last two decades, things have changed.

Obviously, with the advent of DACA (Deferred Action for Childhood Arrivals) nine years ago, we now have a population of  about 800,000 Dreamers in the United States with DACA status. In addition our new president, Joe Biden, has proposed a “Kitchen Sink” deal that would give almost a general amnesty to all undocumented immigrants. Frankly, that’s a big reach and I don’t expect it to happen. However, right at the top of that same proposal was a measure under which DACA holders and or Dreamers could apply for green cards.

Dreamers Top The List Of Immigration Reform Under Biden

Whether we see a DREAM Act go to legislation, or we see other measures, I truly believe that  – having done this under 5 different presidential administrations-  it’s reasonable to expect that if we get any immigration reform at all, Dreamers will be at the top of the list.

Dreamers / DACA recipients make up an important part of the fabric of the US

And this makes sense. We’ve got people who have lived in this country since they were infants, who grew up here, kindergarten to grade 12, university, grad school, working in professions ranging from law to medicine to technology, fire fighters, first responders, etc.  Many essential workers, to say the least.

So what are we left with now? Will Dreamers Get Green Cards Under Biden?

A lot of what I’ve been referring to is coming from a place of cautious optimism. It’s very important that we see our way to having a positive approach.

I’m not going to get political. I generally don’t like to talk about political motives in the matter of immigration, as I prefer a more pragmatic view.

I don’t expect it overnight, but it would not surprise me if — over the next couple of years — we see a pathway for Dreamers and those with DACA status to getting a green card.

If you have DACA status, renew it. If you’ve never had DACA status, time to apply for the first time if you qualify.

If you need more information on whether you qualify for DACA, please read this blog post, or contact us at Harlan York & Associates.

Can’t apply for DACA? Here are six other ways we’ve helped people get green cards.

Be safe, be healthy and let’s look forward to a better new year.