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An immigrant family’s biggest fear is that a family member will be arrested, detained, and deported by the immigration authorities. Below are some of the most common questions we receive at Lopez & Freshwater PLLC when a family member is caught by immigration.

Will My Family Member be Immediately Deported if Immigration Catches Him?

Your family member may be immediately deported if: 1) he or she has already been ordered deported previously, or 2) your family member agrees to be deported or accepts a voluntary departure from the immigration agent.

In most cases, though, if your family members is arrested within the interior of the United States (and not while trying to cross the border), he or she will not be immediately deported. Instead, he or she will be scheduled for deportation proceedings before an Immigration Judge. To start these proceedings, an immigration officer will serve the immigrant and the Immigration Court with a document called a Notice to Appear. The Notice to Appear lists the reasons that the immigration officer believes the person should be deported from the United States.   Usually the reason is simply that he or she entered the United States without permission or overstayed a visa. However, the immigrant could also be charged with having committed a crime that makes him or her deportable from the United Sates. Immigrants do not have to agree with the charges against them. They have the right to see the Immigration Judge and fight the charges in court.

How Can I Get My Family Member Released from Immigration Detention?

If your family member is detained by the immigration authorities, the first thing to do is to figure out if he or she can be released on an immigration bond. As a first step, the immigration officer will decide whether or not to set a bond. If a bond is set and you pay it, your family member will be released from custody and allowed to return home. He or she will still be in deportation proceedings, though, and will need to attend hearings before the Immigration Judge.

If your family member is not given a bond by the immigration officer, or the bond is too high, you can request a bond hearing before the Immigration Judge. Please understand, though, that while the Immigration Judge can lower a bond, he can also raise a bond amount or take away a bond altogether.

Certain criminal convictions make an immigrant ineligible for an immigration bond. If your relative is eligible for a bond, both the immigration officer and/or the Immigration Judge will consider two things when determining how high to set the bond: 1) the risk your relative will miss the Immigration Court hearings if he or she is released; and 2) the danger to the community if your family member is released. Immigration bonds typically range from $3,500 to $25,000.

What if My Family Member is Not in Immigration Custody Yet: He’s in Police Custody and Has an ICE Hold?

If your family member is in the custody of the police, often he or she will have a bond that he could pay to be released from custody. However, if your family member also has an ICE hold, paying the bond will not result in his or her release from police custody. Instead, it will only result in your family member being taken from police custody into ICE custody for deportation proceedings. So what can you do? Please speak to an immigration attorney before taking action. It is sometimes possible to have an ICE hold lifted through legal representation.

A “green card” is a lawful permanent resident card. Lawful permanent residents may live in the United States permanently, renewing their cards every 10 years. However, lawful permanent resident status can be taken away. There are many reasons why this might happen. This blog post covers one of the most common reasons: criminal history.

Criminal convictions are the single biggest reason that a green card can be taken away. If a lawful permanent resident is convicted of certain crimes, then the U.S. Department of Homeland Security will begin a case in Immigration Court for the purpose of asking the Immigration Judge to take away the individual’s permanent resident status and order him deported from the United States.

There is a long list of crimes that could trigger deportation proceedings against a permanent resident. But one of the most common is drug crimes. All controlled substance offenses except a single conviction for possession of 30 grams or less of marijuana will place a permanent resident in danger of losing his status. Similarly, most convictions for a firearms offense will have the same effect.

Additionally, there is a category of crimes called “crimes involving moral turpitude” that may also place a permanent resident in danger of losing his green card. Common crimes of moral turpitude include theft, fraud, and some violent offenses such as assault, but these are certainly not the only crimes that could qualify. Similarly, crimes of domestic violence can lead to deportation proceedings against a permanent resident.

And finally, there is a category of crimes called “aggregated felonies”. Common aggravated felonies include drug trafficking, murder, rape, sexual abuse of a child and child pornography, and some serious theft offenses, crimes of violence, and fraud offenses. If a lawful permanent resident has been convicted of an aggravated felony, he is likely to be ineligible to stay in the United States. If a lawful permanent resident has been convicted of less serious crimes, he may be eligible for what’s called cancellation of removal, which our next blog post will cover.

So what should a lawful permanent resident who is charged with a crime do? Consult with an immigration attorney before pleading guilty to a crime. At our law office, we often work hand in hand with criminal defense attorneys to help advise a client on how to avoid being convicted of a crime that could cause the client to be deported from the United States.

There two special immigration laws that can be used to help victims of domestic violence obtain immigration papers. The first is the Violence Against Women Act and the second is the U visa program.

Violence Against Women Act

Although the first law is called the Violence Against Women Act (VAWA), it applies to both women and men who have been victims of abusive marriages. The first requirement of the VAWA is that the applicant has been married to a U.S. citizen or lawful permanent resident (green card holder). This does not necessarily have to be a marriage that has a marriage certificate issued by the court. Some states, including Texas, recognize common law marriage, where two people live together, agree to be married, and tell others they are a married couple. The second requirement of VAWA is that the applicant have lived with the abusive spouse and that it be a good faith marriage. What does a good faith marriage mean? It means that the marriage was entered into because the people genuinely wanted to be married to each other, and not just because one person wanted to obtain immigration papers.

The third requirement of VAWA is that the abusive spouse subjected the applicant or the applicant’s child to “battery or extreme cruelty.” Physical abuse, sexual abuse, or emotional abuse may all qualify as battery or extreme cruelty, depending on the circumstances. The applicant also has to have “good moral character” – this generally means that the applicant cannot have certain criminal convictions.

If the applicant is married to a U.S. citizen and the VAWA application is approved, the applicant is immediately eligible to apply for a permanent resident card (or green card). If the applicant is married to a permanent resident, there is a waiting list before applying for a permanent resident card.

U Visa

The U visa program is for people who have been victims of certain violent crimes, which include domestic violence, sexual assault, and felonious assault. Additionally, a recent change to the law added “stalking” crimes to the list of crimes that may qualify a person for a U visa. Although U visas are available to many victims of crime, not just victims of domestic violence, they are also often used to help victims of domestic violence who may not be eligible for VAWA, either because they were not married to the abuser or because the abuser did not have any immigration documents.

The applicant for a U visa must show that he or she suffered substantial physical or emotional harm as a result of a crime that occurred in the United States. The applicant has to have assisted law enforcement agencies in investigating or prosecuting the crime by giving the law enforcement agency helpful information about the crime. This can include calling the police during an incident of domestic violence, going to an interview with the detective on the case, submitting to a medical exam, or testifying at the trial against the person who committed the crime. The applicant must get a law enforcement agency to sign a certification that the applicant was helpful. The police department, district attorney’s office, judge, or sometimes another agency like Child Protective Services, can sign the certification.

The U.S. government may only issue 10,000 U visas for each year. Right now, the government is receiving so many applications for U visas that it ran out of available visas within the first few months of the 2015 year. This means that the processing of U visas can be really delayed, compared to the quicker processing times for VAWA applications.

Once a U visa is approved, it is good for four years. After three years of living in the United States with a U visa, the individual can apply for a permanent resident card, or green card.

In 2012, the United States Supreme Court decided the landmark case U.S. v. Windsor. The Court essentially held that the United States federal government could not deny federal benefits, like immigration, to same sex couples who were legally married. Importantly, the Court said that if the state in which the couple was married recognized their marriage as legal, then the federal government must recognize it as well.

This decision has led to important immigration benefits for international LGBT families. It means that marriage based immigration petitions submitted by same sex couples will be treated exactly the same as those submitted by opposite sex couples. For example, a same sex couple will now be able to submit an I-130 marriage petition in which the U.S. citizen spouse sponsors the foreign spouse for a green card. If the foreign national spouse is otherwise eligible, he or she would then be able to submit an I-485 application to adjust status and receive a green card. An engaged U.S. citizen will now be able to submit a petition for his or her fiancé to come to the United States on a fiancé visa, regardless of the sex of the fiancé. Additionally, a person who is working in the United States on a visa, such as an H1B visa, will now be able to include his or her same sex spouse as a derivative on the visa.

 
Lopez & Freshwater, PLLC, is a proud member of the North Texas GLBT Chamber of Commerce. We are very excited that so many immigration options have opened up for LGBT families, and are pleased to be able to offer excellent legal services to families from all over the world.