November 25th, 2016 is a day I will never forget as long as I live. It’s the day that Fidel Castro died. Castro for a lot of Cubans around the world including myself his existence brings up deep pain. As an immigration and criminal lawyer in North Carolina I see my family’s struggle in a lot of my client’s stories. Twenty years after my family immigrated to the United States, Castro’s death provides some closure for me. My story is like many other Cubans. We came here fleeing the Castro regime in the 90’s and seeking freedom. My family was privileged in that we were able to survive in silence. My father, a medical doctor for the military defected first and we immediately went into hiding. My mother, also a doctor, my sister, and I stayed behind. We survived because we had no other choice. Three years later we were reunited with him in the United States. Our story, which I speak of very generally because I still have family in Cuba is very common. Cuban people have risked their lives trying to reach the United States for 60 years.
Cuba is a prison for its people.
For many years Cuba was a place where you were no longer were allowed to own a business, you could not express your opinion freely, you could not practice your religion, and a place where the persecution of free thinkers was and still is common. To this day there are political prisoners in prison who have spoken out against Castro’s regime. The persecution began in 1959 when Castro took power. Castro promised free elections and that promise quickly faded along with the freedoms that the Cuban people had enjoyed for decades. What followed during the next 60 years was a complete drain of resources in Cuba by the government that led to hunger, extreme poverty, civil rights violations, and a lack of basic resources for the Cuban people. Another giant restriction was the inability of Cuban people to travel. Living in Cuba we saw all of the despair, restrictions, imprisonment and persecution of our people on a daily basis. During Castro’s reign thousands of men and women were murdered savagely. Families that were left behind were shamed and stripped of every human dignity. In Cuba to this day you’ll be hard pressed to find aspirin, inhalers and antibiotics for its people.
Castro’s death marks the end to a very long and difficult chapter for Cubans around the world. His death won’t heal wounds, bring his victims back, restore free press, or fix the infrastructure in Cuba. I hope his death provides some peace to those affected by his dictatorship. For those that believe that he was a great revolutionary I simply say that I am glad you live in a country where you can support whoever you want without fearing persecution. Some of us didn’t have that privilege when we were in Cuba.
I have never gone back to Cuba since I left, mostly out of fear. However, for the last two years I have contemplated returning to see my home. For me, practicing immigration and criminal law is my way of giving back to this country that has given me so much. Helping others become lawful permanent residents, United States citizens, or represent someone when accused of a crime is an amazing privilege. The great Cuban writer and poet Jose Marti once said that to be educated is the only way to be free. He believed that being aware of what’s going on and educating yourself would make you free no matter what your circumstances were. I believe deeply in his words. We live in a country where all things are possible, where you can educate yourself, become whatever you want, and where your opinion is freely heard without repercussions. That’s why I love the United States.
-Ana Sofia NunezRead More
Yesterday, I had the unique opportunity to testify in public comment on a proposed bill before the North Carolina Legislature. House Bill 63 remains in committee at this time, meaning that it is not yet ready for a vote and now is the ideal opportunity to alert lawmakers as to the legal and constitutional problems with the bill. This bill, if passed, will directly affect our clients and our community.
There are a few different parts to the bill, which is otherwise known as the Citizens Protection Act of 2017. There are increased penalties for manufacture or sale of a fraudulent identity document and an elimination of state funding for cities, towns, and counties who do not comply with ICE detainers. An ICE detainer is a document provided to a state agency who is holding an individual for pending criminal charges asking the agency to hold onto the individual for an additional 48 hours after he has posted bond or resolved his criminal matter to allow ICE to take custody. There have been many successful legal challenges to this practice, including a recent decision from a Florida court.
The part of the proposed bill that I was able to discuss yesterday involves limitations on pretrial release for a defendant who is charged with a crime, who also has an ICE detainer. The proposed bill creates a “rebuttable presumption” that no condition of release is reasonable in the case of a person who is charged with a sex offense, a violent felony, certain driving offenses where the punishment mandates a revocation of the driver’s license, a drug offense, or a gang offense. Additionally, this “rebuttable presumption” will apply if someone is charged with any offense and ICE has lodged a detainer on that person.
Finally, even without an ICE detainer having been lodged, there is a proposal in the bill that any person who “is not lawfully present in the United States” and is charged with a felony of Class A1 misdemeanor must pay a secured bond.
As was pointed out to the committee yesterday, there are serious problems with the creation of this rebuttable presumption, including violation of the Eight Amendment which gives defendants the right to a reasonable bond. Additionally, there are concerns about having a locality rely on an ICE detainer to refuse to issue any bond, as someone’s immigration status is not always clear, particularly in issues of derived or acquired citizenship. This potentially opens up localities to litigation for unlawful detention. Finally, there are concerns about denying bond or requiring a secured bond solely on the basis of someone’s immigration status, including violation of the Equal Protection Clause of the Constitution.
After appearing before the committee yesterday and listening to the questions presented by the committee members to the bill sponsors, it is evident that some of the legislators have concerns with the bill. I was appreciative for the opportunity to contribute to the conversation and help educate the committee members on some of the finer points of immigration law, including how the passing of a law like this may go too far in entangling local law enforcement with immigration issues.Read More
At Fay Grafton Nunez, we often meet with potential clients who have what seem to be basic questions about how to fill out their forms, whether it is an Adjustment of Status, a Petition to Remove Conditions on Residence, a Naturalization, etc. While our ethical obligations and the federal regulations prevent us from simply telling someone how to answer a particular question without serving as the preparer of the form, these consultations regularly result in the discussion of multiple additional issues that may not have been considered by the applicant. These issues often include claims to citizenship made on I-9 Forms to obtain work, issues of non-immigrant intent versus immigrant intent, financial support obligations, prior criminal charges, even if they have been dismissed or expunged, and many others. We are always hopeful that we get the opportunity to speak with applicants before anything is filed with United States Citizenship and Immigration Services (USCIS) because once an application or petition is filed, the applicant risks the possibility that he or she will be placed in removal (deportation) proceedings and face losing his or her ability to remain in the United States. Not only will an immigration attorney be able to address any potential issues that could arise, if you use an attorney to file your case, you are represented throughout your case. You will have legal representation at your interview and an attorney ready to respond if USCIS requests any additional documentation.
Unfortunately, we also often meet with applicants who have tried to file applications themselves and have had their case stalled due to a Request for Evidence or a Notice of Intent to Deny. We are often able to step in and respond to the inquiry quickly, however, it is more difficult than if our office had prepared the application. Oftentimes, the evidence is something that we would have submitted from the outset of the case, avoiding the unnecessary delay of a Request for Evidence, or it is an issue that cannot be overcome and we are left to simply prepare for the possibility of Immigration Court. It is true that Requests for Evidence are sometimes issued for documents that we could not have predicted USCIS would want, but by having an immigration attorney prepared to respond, we can work swiftly to get the case back on track.
Hiring an immigration attorney can minimize your risks of having your case denied, avoid unnecessary delays due to missing documents or evidence, allows you to have someone prepared to swiftly respond to any inquiries from the government, and allow you to feel more comfortable at your interview knowing a trained professional is on your side. Your immigration case is being reviewed by officers and attorneys who have years of training and experience in the intricacies of the Immigration and Nationality Act and corresponding regulations and policies. Shouldn’t you have someone with similar experience helping you present your case?
Why should you chose Fay Grafton Nunez? Rebekah Grafton brings the unique experience of having worked for the Department of Homeland Security and Immigration and Customs Enforcement. She is able to analyze, prepare, and litigate cases with the knowledge of how these cases are reviewed by government officers and attorneys. Her associate, Ana Nunez, brings the unique experience of having worked for the public defender’s office handling criminal cases and speaks Spanish. Together, our team of immigration attorneys will zealously represent you in your immigration case, whether it is before USCIS, the Immigration Court, or on appellate review.Read More
During the week of September 4, 2016 I took a little vacation from Fay & Grafton to join attorneys, legal assistants, and other volunteers from around the United States to represent women and children detained at the South Texas Family Residential Center in Dilley, Texas. This detention center houses women and children who present themselves at a port of entry or are apprehended by Customs and Border Patrol in our southern border. Before reaching the detention center these women are held in “hieleras” and “perreras”. After being processed, families are moved to the South Texas Family Residential Center. This facility holds the women and children who have expressed fear to return to their country until they have been interviewed by an asylum officer. The asylum officer determines if the person has a credible fear or reasonable fear of return to his or her country of origin. A group of amazing people have set up shop in the detention center and have dedicated themselves to ending family detention. The CARA Pro Bono Project which grew out of a legal clinic from Columbia Law School has successfully prepared thousands of women for their interviews with asylum officers. CARA has a small but mighty staff who rely heavily on volunteers. The job of the volunteers at Dilley is to educate the women about the credible and reasonable fear processes, prepare them for their interviews, and hopefully prepare them to leave the facility and continue with their case in immigration court. CARA does a lot of advocating for the rights of these women and children, including filing appeals and representing the families in court.
This experience got me thinking about how little information the general public has about the credible fear process.
So here is some basic information:
There are two common ways in which a person can have interactions with Customs and Border Patrol on our southern border. One can either present themselves at a port of entry (bridge, check-point) or they can enter without inspection by walking through the desert or swimming through the river. If you are not a United States citizen, lawful permanent resident, have a visa, or are otherwise authorized to come into the United States, if caught by CBP, you will likely be interviewed, fingerprinted, and taken back to the Mexican border. However, if you express fear of returning to your country, the Customs and Border Patrol officers have to make a determination if you have expressed credible fear or reasonable fear of return.
A person who claims credible fear has to prove that there is a significant possibility that she can establish eligibility for asylum. The credible fear standard applies if a person who claims fear has not been previously ordered removed from the United States. The conditions of release in Dilley vary, depending on whether a woman was caught inside the United States or presented herself at a port of entry. A woman who presents herself at a port of entry is considered an arriving alien. She will not be eligible to request a bond before the immigration court, but if a positive credible fear determination is made she will be placed in removal proceedings in immigration court and will be released. If a woman entered illegally into the United States, was apprehended inside the United States, and a positive credible fear determination was made she will be eligible to request a bond from an immigration judge. She may also be given the choice to wear an ankle monitor and be released without having to pay a bond. These women will also be placed in removal proceedings in immigration court. A person who has a prior removal order and expresses fear of returning to their country will be interviewed by an asylum officer to determine if the person can meet the higher standard of reasonable fear. If you have a prior removal, you have to prove that you have a reasonable possibility of establishing that you would be persecuted or tortured on account of your protected class. If the asylum officer deems that you can establish a significant possibility, you are placed in asylum/withholding only proceedings and issued a notice to appear in immigration court. Once the person is released, they can continue with their asylum/withholding case outside of detention and be reunited with their families.
If an asylum officer finds that the person does not meet the credible or reasonable fear standards an immigration judge can review the decision. Once the judge makes a decision a person cannot appeal that decision. However, if the person learns of new facts that will impact their case, they can request to be re-interviewed by the asylum office.
Once a person is released, the fight to get their case heard really begins. It all starts with hiring an attorney who can present a strong asylum case. Asylum law is incredibly cumbersome and going forward with an asylum application on your own is risky. An experienced immigration attorney can help you develop your claim, shape your story, and present your case to an immigration court. If you find yourself in this position, call us! We are here to help you navigate this complicated system!Read More