HOW TO DEFEND AGAINST THEM
Immigration has lately been arresting immigrants without criminal records and without deportation orders. If an undocumented worker is detained, what can one do about it? Various protections in the law exist and we want to call your attention to them. We can help, Call us
1. CANCELLATION OF REMOVAL:
If an alien has been in the U.S. for more than 10 years, even though the original entry was without a visa and the alien has immediate relatives who are citizens or permanent residents in the U.S., namely a U.S. spouse, U.S. children especially if they are of school age, or U.S. citizen parents, he/she may apply for permanent residence through adjustment of status. A judge may grant permanent residence on proof by the undocumented person that his/her immediate relative would suffer extremely unusual hardship if the undocumented alien were removed from the U.S. Proof that the alien has been in the U.S. for 10 years, that he/she is a person of good character are also needed.
In deportation proceedings, an undocumented alien may request asylum. Originally a Judge would look askance at an asylum request that hasnâ€™t been made within one year of arrival. However, if there is evidence that there were extenuating circumstances such as lack of knowledge or that the situation in the alienâ€™s country has changed since arrival that would make his/her return to the native country a grave threat the asylum application may proceed. For example if a country is unable to control violence within the country such as the danger of kidnapping if the U.S. citizen children of the undocumented alien were to return to the country, an asylum claim may lie.
3. THE LIFE ACT:
Under Section 245 (i) of the Immigration Act, undocumented aliens for whom an alien relative petition has been filed by the U.S. citizen parent, spouse, or child over 21 or for a permanent resident a spouse or children, or for whom a Labor Certification was filed on or before April 30, 2001, an alien may adjust status in the U.S. by paying a fine of 1,000 when the priority date is reached. If the priority date is current, the alien may adjust status in the U.S. If the quota is not yet available a Judge may grant a continuance, especially if the current priority date is not far off.
Although this program intended to allow persons who entered the U.S. prior to Jan. 1, 1982 to apply for permanent residence even if they entered illegally or overstayed their authorized stay had expired, a Federal Judge recently ordered the Immigration Service to accept a new application up to Dec. 31, 2009. The stringent requirements of LULAC have been softened by this decision so that proof that the alien had tried to previously register for permanent residence, or was denied permission or INS gave misinformation that he/she was not eligible, will allow this new filing.
5. HUMANITARIAN OR COMPASSIONATE
A Judge may take into account special circumstances such as medical needs that an undocumented alien may suffer extreme medical consequences if required to leave the U.S. For example, if someone is to be deported and has HIV or is on dialysis and the treatment is not available in the alienâ€™s country, the Judge may take cognizance of this and grant indefinite deferred departure.
6. DUE PROCESS:
Persons in removal proceedings are entitled to due process that is available to all persons regardless of whether they are in the U.S. lawfully, unlawfully, temporarily or permanently. Indefinite detention is unconstitutional beyond 6 months of incarceration. Since Immigration has been prosecuting unlawful entrants, raids and round-ups raise 5th amendment rights on the grounds that motions to suppress evidence may be a viable defense. If the Immigration Service were to pick someone up on the streets because an officer had a â€œhunchâ€ the person was illegal, due process would allow a Motion to Suppress because the officer lacked a reasonable suspicion. A motion would be permitted to dismiss the removal proceedings as a violation of the 5th Amendment.
INSâ€™ rampant raids and round-ups may also result in suppression of the evidence where there are egregious violations of our precedents and considerations of fundamental fairness. For example if INS merely thought someoneâ€™s name was foreign sounding and therefore arrested the person, suppression would be warranted under the Fourth Amendment as well as the Fifth Amendment.
If you need help or advise, call us at (212)944-9420
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