What is an I-407 and Why Should I Not Sign It?
An I-407 is an immigration form through which a lawful permanent resident (“LPR”) can voluntarily relinquish his green card. Until recently, it was typically used by a lawful permanent resident who no longer resided permanently in the United States, but rather wanted to be able to travel temporarily to the United States. The LPR could appear at the United States consulate in the country where he resides, sign the I-407, and typically would then be issued a 10 year, multiple entry visitor visa which allows him to stay for up to six months. The reason why someone would do this is because as a lawful permanent resident, you are required to reside permanently in the United States. If you do not, you can be considered to have abandoned your lawful permanent residence. If you are absent from the United States for longer than six months, the law says that you are presumed to have abandoned your residence, however that is a rebuttable presumption.
In the past, LPR’s have been presented with this form at the airport where they had criminal convictions or had been absent for a long period of time, but in the last week, travelers are reporting that it may be common practice at the airport and even on the airplane. This is of great concern because, as reports have shown, LPR’s are being presented this form without having the ability to speak with an attorney about the ramifications. Generally, a CBP officer may tell an LPR if he signs this form, he will be allowed to withdraw his application for admission, instead of being deported. This offer can sound enticing to someone who doesn’t know that he has the right to have his case reviewed by an Immigration Judge and he may be able to win that case.
Because this form has come to the forefront, it is important to know that as an LPR, you continue to be an LPR until an Immigration Judge says otherwise (and that finding is upheld on appeal). If you are an LPR returning from foreign travel, there may be ways to prevent you from losing your green card, including explaining why you were absent for a long period of time or applying for a waiver of a criminal conviction. If you are an LPR and are returning to the United States, do not sign an I-407. If you are put in removal proceedings, contact an immigration attorney for help fighting your case. You may still be allowed to withdraw your application for admission in front of the Immigration Judge, despite what you may be told by a CBP officer. If you have any questions about your case, please call our office at (919) 828-5570 to schedule a consultation with one of our immigration attorneys.
On a similar note, if you are an LPR and you intend to travel, you should contact an immigration attorney before you do. The ability to run background checks and fingerprints at the border has changed dramatically and you should not assume that because you have not been stopped before that you won’t be stopped now.
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Update on Enforcement of Executive Orders
It has been a busy weekend since the Executive Orders were signed and our country is seeing some of the immediate implications, particularly relating to the 90 day travel ban for immigrants from Iraq, Iran, Syria, Sudan, Somalia, Yemen, and Libya. Due to the expansiveness of the Order, we are advising anyone who is a national of any of the seven countries not to travel, even if they are lawful permanent residents or dual citizens.
There have been legal battles fought across the country as immigrants with previously issued visas, as well as lawful permanent residents, are being held at airports across the country and are being prevented from boarding their flights to the United States. The federal courts have issued various restraining orders, some limited in their scope and jurisdiction, to prevent the enforcement of parts of the Executive Order. Specifically, in the Eastern District of New York, a temporary injunction was signed on Friday night preventing the deportations of individuals arriving from these countries. In Massachusetts, an injunction was signed that applies only to Boston-Logan Airport preventing deportations, but also requiring the CBP advise the airlines that they should not be preventing passengers from boarding their flights into that airport. In Washington DC, an order was signed ordering access to counsel. Reports from across the country have surfaced, however, that these judicial orders may not be being followed. A press release from the administration itself states that the Executive Order will be enforced. In a third paragraph, it does indicate that judicial orders will be followed, however, it contradicts other statements within the press release. There are additional judicial challenges developing and if you or anyone you know has been deported or refused entry based on the Executive Order, please contact our office so we can put you in touch with the organizations who are coordinating the efforts in federal court.
In addition to the impact seen at our airports, Department of State has also indicated that anyone in the process of pursuing an immigrant visa who is from one of the seven countries may not attend their visa interviews. It is unclear at this time whether cases filed within the United States will also be affected. If you or someone you know has a pending case with United States Citizenship and Immigration Services, is awaiting a visa interview abroad, or has had his or her interview cancelled, please contact an immigration attorney so that your case can be included in the coordinated effort to combat this Executive Order.
As we have seen the expansiveness with which the Executive Order relating to refugees has been interpreted, we expect similar stances relating to the other two Executive Orders issued. In light of that, we are advising everyone who is not a citizen of the United States and who has a pending criminal or traffic matter to speak with an immigration attorney. As local and state enforcement officials are coordinating with Immigration and Customs Enforcement, any minor charge may lead to immigration enforcement efforts. Additionally, due to the possibility of Expedited Removals, where an immigrant can be deported without seeing an Immigration Judge, anyone who is undocumented needs to carry evidence of two years of presence in the United States. If you have any questions about how these orders may affect you, please contact an immigration attorney for advise specific to your case.
Read MoreUpdate on Immigration Executive Order (Part Two of Two)
The second Executive Order that was signed yesterday was titled “Border Security and Immigration Enforcement Improvements” and deals specifically with issues relating to immigration through the southern border. This Order calls for the immediate “plan, design, and construct[ion]” of a wall along the southern border, as well as the construction of additional facilities to detain immigration violators at the southern border.
The Order demands that an unspecified number of asylum officers and Immigration Judges be sent to the southern border to handle credible fear and reasonable fear determinations and conduct the required court review of those determinations. When an immigrant is caught at or near the border or presents himself for admission to the United States without a valid visa, if he states that he has a fear of return to his home country, the law requires that an asylum officer interview him to determine if he has a viable claim to asylum. This order for the allocation of officers and judges seems to be an attempt to streamline this process at the border, which may limit the ability of applicants to be advised by legal counsel and ensure that they are prepared for this intense questioning.
The Order also calls for the end of “catch and release,” however does not set forth a plan for processing immigrants at the border in the event of a lack of bed space in detention facilities. The Order also purports to limit parole authority, meaning the ability of border officers to allow immigrants to enter the United States to attend their removal proceedings without being in a detention center.
All in all, we expect to see increased immigration enforcement both locally through law enforcement, as well as at the southern border. As a result of increased enforcement and decreased discretion, we expect to see additional and significant delays both in the processing of asylum applications filed by immigrants who have already entered the United States and in the processing of cases before the Immigration Courts. We also expect to see an attempt at increased detention, however, there seem to be many logistical and financial considerations that have not yet been addressed. Each and every case is very different and it is important to speak with a qualified immigration attorney if you have questions about how these orders may affect you or your family members.
If you have any questions about how these orders affect you, please contact our office and schedule a consultation.
Read MoreUpdate on Immigration Executive Order (Part One of Two)
On Wednesday, President Trump signed two additional executive orders that will lead to pronounced changes in the priorities and enforcement activities of Immigrations and Customs Enforcement. While we will discuss how these new orders may eventually affect our clients’ statuses and options, it is important to remember that many policies and initiatives such as these must be funded through the Committee on Appropriations prior to taking effect. As a result, the implementation of any such orders may be delayed by weeks or months, or even indefinitely (if Congress is not inclined to support the order).
One of the Executive Orders that was signed regards “Enhancing Public Safety in the Interior of the United States.” One of the most significant parts of this Order relates to the identification of enforcement priorities. For many years, immigration has targeted certain, specific types of cases for enforcement because the government simply does not have the resources to prosecute and deport all immigration violators. Generally, if immigration began proceedings against someone who did not fall into those specified priority categories, we could ask that the government exercise their prosecutorial discretion and indefinitely close the case or even choose not to pursue the case at all. Under this new Executive Order, the categories are quite broad, even going so far as to include individuals who “have been charged with any criminal offense, where such charge has not been resolved.” The other categories include those who have been convicted of criminal offenses, those who have committed acts that constitute a chargeable criminal offense, those who have made misrepresentations before government agencies, those who have abused public benefit programs, those with final orders of removal who have not departed the United States, and those who otherwise pose a risk to public safety or national security.
These categories are quite broad and it may take some time for us to see how they are enforced. While the Executive Order does call for the hiring of 10,000 additional immigration officers, this does not seem to take into account the limited bed space currently available in detention centers or the Immigration Judges’ dockets which may become even more backlogged.
The Executive Order goes on to essentially encourage additional agreements to be made between the federal government and state and local law enforcement to allow the delegation of some immigration enforcement acts to state and local law enforcement officers. Additionally, the Order states that the Attorney General and Secretary shall ensure that Federal grants not be made available to sanctuary jurisdictions (“sanctuary cities”), where immigrants are not held after the posting of their criminal bonds to allow ICE to take custody of them. It is unknown at this time whether these sanctuary jurisdictions will continue their policies in light of this Executive Order. The Executive Order also limits the discretion that officers can use when processing immigrants who have been arrested (not convicted) for a criminal offense by the reinstitution of a program known as “Secured Communities.” The Order also calls for a weekly publication of criminal actions committed by aliens and jurisdictions that did not comply with ICE detainers. Due to the increased immigration enforcement and limited allowance for discretion, we expect to see an increase in removal proceedings before the Immigration Courts which will likely slow down how fast those cases can be completed.
The Executive Order also calls for increased criminal prosecutions for immigration violators, including those who do not cooperate with deportation orders. Most immigration violators are processed through administrative removal proceedings in front of the Immigration Courts where the result may be deportation, rather than being sent for prosecution by the United States Attorney where the result may be a prison sentence. The Executive Order appears to order increased criminal prosecutions, which will cause additional burden to the federal courts as well as the detention facilities where those convicted will serve their sentences.
To briefly summarize and explain what impact we expect to see for our clients, the Executive Order demands increased immigration enforcement and essentially eliminates prosecutorial discretion. As we see the order in action, we will know more about what options we have available for our clients. Because enforcement may be more fervent, it is important to discuss potential options for adjustment of status, temporary protected status, changes/extension of status, waivers, etc. with one of our immigration attorneys before you are facing removal proceedings.
We are aware that there were additional executive orders that were leaked to news sources. While we have reviewed those documents, we are not discussing them in our blogs as we do not have any reliable information at this point to believe any of them will be signed or when they may be signed. We will certainly take into consideration the possibility of those orders being signed when giving individualized advice to our clients.
If you have any questions about how these orders affect you, please contact our office at (919) 828-5570 and schedule a consultation.
Read MoreNew Executive Orders on Immigration
Today, we are learning more about the Executive Orders that have been signed by the President of the United States concerning immigration and our attorneys are diligently working to understand what changes we can expect and how these changes may affect our clients. This is a brief summary on what we know now and we will update you as we learn more about how these orders will impact you.
It is our understanding that one of the Executive Orders that has been signed concerns the building of a wall along the southern border, the end of catch and release at the border, a crackdown on sanctuary cities, and an increase in Customs and Border Protection Officers and Immigration and Customs Enforcement Officers. It is unclear at this time how these orders will be implemented, but we do expect to see some increased immigration enforcement along the southern border and within our local detention centers when criminal arrests are made.
We have been able to review the text of the Executive Order regarding the refugee program and there are several concerning prongs that may affect our clients who are abroad or have family members who are abroad. There is a 30 day suspension on entries of individuals from Iraq, Iran, Syria, Sudan, Somalia, Yemen, and Libya. There may be additional countries added to that list upon a review by the Secretary of Homeland Security. Admissions may be allowed on a case-by-case basis if in the national interest. The U.S. Refugee Admissions Program (USRAP) will be suspended for 120 days and an indefinite cease of refugee processing and admittance of nationals of Syria. There is also a 50,000 cap on refugees that can be processed and admitted for Fiscal Year 2017. There is also an allowance here for a case-by-case admission of individuals if in the national interest. The President has also ordered a suspension on the waiver of interviews for non-immigrant visas, has ordered that a biometric entry-exit tracking system be completed and implemented, and has ordered that the Secretary of State ensures that Visa Waiver Program entrants are subject to the same visa validity, fee schedules, or other treatment as United States citizens are granted in the reciprocal country.
Many of the orders involve the implementation of programs and a reporting to the President on the creation of those programs and thus, we do not have immediate information available on how these will come into play. For example, the biometric entry-exit tracking system was recommended many years ago, by the National Commission on Terrorist Attacks Upon the United States but no program has yet been created and implemented. It will likely take some time for such a program to be created. We will certainly keep our clients updated as we receive more information.
To the best of our current information, there has been no executive action to terminate Deferred Action for Childhood Arrivals (DACA). However, if you are considering filing an initial application, filing a renewal, or filing for or traveling on Advanced Parole, we highly recommend speaking with one of our immigration attorneys who can advise you on the risks and benefits of proceeding with each of those actions.
A lot of our clients have been reaching out to us to ask what they can and should do. We can certainly never give blanket advice, as each and every case is different. We recommend that anyone who has questions schedule a consultation with one of our immigration attorneys to review their case and determine if any affirmative steps can be taken. We certainly can expect to see increased immigration enforcement (or even just the continued aggressive enforcement that we have seen) and often, if we can file applications before such enforcement occurs, we can help our clients avoid deportation or return to the United States more quickly.
If you have questions regarding your case and what you may be able to do, please contact our offices at (919) 828-5570 and schedule a consultation with one of our immigration attorneys.
Read MoreWhat Does Donald Trump’s Election Mean for Deferred Action for Childhood Arrivals (“DACA”)?
On November 8, 2016, Donald J. Trump was elected the 45th President of the United States and with his election has come many questions about what this means for immigrants in the United States. While many questions have arisen about deportation enforcement and other various immigration policies, attorney across the country are fielding numerous calls about what this may mean for recipients and applicants of Deferred Action for Childhood Arrivals (“DACA”).
On November 21, 2016, Donald Trump released an outline of his plans for his first 100 days in office. Included in that plan was a statement that he intended to “cancel every unconstitutional executive action, memorandum and order issued by President Obama.” DACA was a program created by President Barack Obama through an executive order on June 15, 2012 and the question now remains whether this is one of the “unconstitutional executive action[s]” that Donald Trump intends to cancel.
By way of background, DACA is a program that allows children who arrived in the United States before they turned 16 and before June 15, 2007, have completed or are in enrolled in high school or a GED program, and have not been convicted of certain crimes to apply for a work permit. Although, DACA does not confer any permanent legal status, it does protect recipients from deportation in many cases and grants its recipients employment authorization. It also creates an avenue for its recipients to travel outside of the United States temporarily to visit family members, take part in educational opportunities, or travel temporarily for work through Advanced Parole. Traveling under Advanced Parole can also allow some DACA recipients to apply for lawful permanent residence through an immediate relative.
Here is what we do know: DACA is a program that was created by executive action that can be terminated by a future President and President Elect Donald Trump has stated that he intends to cancel any “unconstitutional executive action[s].” What we do not know is whether he perceives DACA to be an unconstitutional action by President Barack Obama. If he does intend to terminate the DACA program, we do not know how soon he may do that and whether any prior applicants or recipients may be grandfathered. We do not know if previously issued and valid employment authorization documents would be terminated immediately or whether they may simply expire. The only thing we can do right now is provide legal advice to each client based on his/her specific situation. In certain cases, we will consider the possibility of filing an initial DACA application or an Advanced Parole application. In many cases, we are filing renewal applications for DACA recipients if they are within the appropriate window to do so. But each and every case is different and we encourage anyone who is considering filing an application to schedule a consultation with one of our immigration attorneys as soon as possible. Call our office at (919) 828-5570 to schedule your consultation.
By Rebekah Grafton & Ana S. Nuñez
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