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HOW DOES ICE KNOW WHERE TO FIND YOU? APPARENTLY, YOU TOLD THEM (WELL, NOT EXACTLY)

September 6, 2022

Author: New York Immigration Lawyer Alena Shautsova

Many undocumented individuals residing in the United States are afraid to leave a paper trail like opening a bank account or even visiting a hospital because they are concerned that this information will be used by the government to deport them. Apparently, such worries have grounds. A lawsuit was filed LexisNexis- a data broker- to cut over allegedly selling personal data of immigrants to Immigration and Customs Enforcement (ICE). The lawsuit claims that LexisNexis helped in creating a large number of surveillance files on almost every adult in the United States. Immigration and Customs Enforcement(ICE) is also accused of using this information in safe cities for immigrants. Plaintiffs in this lawsuit include Organized Communities Against Deportation, Mijente, Just Futures Law, Legal Action Chicago, and Coalition for Immigrant and Refugee Rights.

It has been reported that the information provided to Immigration and Customs Enforcement by LexisNexis, is data that otherwise can only be obtained with a court order, subpoena, or some other legal processes. Access to this information allows Immigration and Customs Enforcement to easily (without a due, fair process) arrest and deport immigrants without complete documentation.

Reporting at a meeting of the Cook County Board of Commissioners, a member of the Illinois Coalition of Immigrant and Refugee Rights and Access Living identified as Michelle Garcia started how she used LexisNexis to search her records, and found an overwhelming amount of personal data collected on her. Her personal information which she found included information that she wouldn’t ordinarily share. Not only was her personal information found there, but also information on her family members and neighbors whom she shares the same apartment complex with.

In Michelle Garcia’s words, “LexisNexis collected 43 pages of information about me, my family, and my acquaintances. It was extremely disturbing, scary, and overwhelming to see everything in writing that they have collected about my life as a Cook County resident. … This information is in the hands of a third party like LexisNexis, and then potentially in the hands of ICE, putting my loved ones and other community members at risk. I have the privilege of citizenship. But if I were one of the millions of undocumented people living in the U.S., ICE could find me within a matter of hours by searching through a report like mine. ICE is still free, has free rein to go after anyone they believe is deportable.”

When asked to lay out the details of the lawsuit and the significance of filing it in the State of Illinois, Cinthya Rodriguez, the national organizer with Mijente, disclosed how LexisNexis is gathering and selling the data of over 276 million people across the United States, especially with the aid of their Accurint product.

Cinthya Rodriguez went on to state how they want to shed light on the violation of privacy and consumer rights in the State of Illinois and the state’s common laws. As one of the biggest data brokers in the world, LexisNexis is “getting rich off the backs” of people by collecting and selling personal information, especially of community members. This in turn could lead to their arrest, detention, and deportation.

Previously, commissioners of Cook County in Illinois led an investigation to unravel the local consequences of the $22.1 million contract deal between LexisNexis and the Immigration and Customs Enforcement. Reports also have it that LexisNexis is not the only firm entering into this kind of contract with ICE.

A major unsettling fact about the issue is the ability of these agencies to gather a vast amount of personal data, including data that is not publicly available. Hence, a major reason why various immigrant advocacy communities entered the lawsuit is that they believe that the ICE is using this information collected illegally to bypass the non-compliance of cities and towns to detain undocumented immigrants.

In her interview with Democracy Now, Cinthyia Rodriguez further highlighted some ways data are collected. She described organizations like LexisNexis as a one-stop shop for data items such as phone numbers, addresses, license plate information, medical information, credit scores, and more. She stated that “tabs are kept on immigrant communities, communities of color, and protesters.” This is harming the well-being of these persons. Besides, none of this information including items such as social security numbers is collected without the owner’s consent.

It is sad to note that the privacy of the common U.S. citizen is severely threatened by such acts of impudence demonstrated by a government agency and data broking establishment. This is a breach of the fundamental rights of people, a right to privacy.  

IMMIGRANTS NUMBERING THOUSANDS CAN BE DETAINED INDEFINITELY ACCORDING TO THE SUPREME COURT’S RULINGS

June 22, 2022

IMMIGRANTS NUMBERING THOUSANDS CAN BE DETAINED INDEFINITELY ACCORDING TO THE SUPREME COURT’S RULINGS

Author: New York Immigration Lawyer Alena Shautsova

As the issue of immigration in the U.S. seems to be a never-ending rigmarole subject, new developments are expected at every turn. Most recently, the Supreme Court ruled that immigrants detained in the United States are not entitled to a bond hearing in certain situations. This ruling means that the thousands of immigrants currently held in detention facilities with open immigration cases can remain in detention indefinitely! It does not apply to all immigrants, but rather to those who already have orders of removal, but cannot depart or have additional hearings that must be conducted.

In addition to the Supreme Court’s ruling, the high court also ruled that federal courts do not possess the legal authority to grant class-wide relief to immigrants held in detention. This means that, if detainees want to petition their right to a bond hearing in the future, they can only present their cases individually. This is coupled with the fact that immigrants are not allowed to have legal representation during immigration proceedings.

The ruling of the Supreme Court seems to maintain the existing state of affairs as it concerns the issue of immigration. Many immigrants are currently detained in facilities that are more like prisons. Many immigrants have not been charged with any crime but do not possess the right to a hearing to justify their detention. Some of the immigrants are held in facilities belonging to for-profit corporations such as Geo Group and a host of others. The Court ruling also maintains that immigrants can’t have a bond hearing unless the U.S. government says so. This means that the U.S. government has the discretionary right to decide the fate of detainees. In other words, it will be up to DHS/ICE if the person is released from the detention or not, and if ICE/DHS does not want to release the person, they can keep them there technically, forever.

These  rulings dashes the hopes of immigrants who have been held long enough in detention. The cases which are Johnson v. Arteaga-Martinez and Garland v. Aleman Gonzalez were brought to court by undocumented immigrants who contested they are being held in detention centers for far too long. Their argument was focused on the fact that immigrants who have been held in detention for up to six months or more should be entitled to an individualized bond hearing where the U.S. government has to prove the need for their continued detention.

The immigrants sued the U.S. government while leveraging on a 1996 immigration statute which states that an unauthorized immigrant “may” remain in detention for an extended period if they fail to meet certain criteria. The immigrants argued that since the statute uses “may be detained” instead of “shall be detained,” the right of discretion rests with the judges, hence entitling them to a hearing. The case was further appealed to the Supreme Court where representatives of the Biden administration argued that the law permits the Attorney General of the United States to indefinitely detain illegal immigrants while their cases are undergoing litigation.

Before the Supreme Court’s ruling, the Ninth Circuit Court of Appeals ruled in 2020 that detainees are entitled to a bond hearing. Since the Garland case was presented as a class-action lawsuit, the Ninth Circuit Court of Appeals granted a class-wide relief, thereby extending the right to a bond hearing to every person named in the suit.

However, the Supreme Court countered this ruling declaring that detainees are not entitled to such a bond hearing, hence a class-wide relief can’t be granted on that basis. Therefore anybody who wishes to exercise their right to a bond hearing in whatever form has to do it individually.

Certain observers feel that it is a bit unfair not to grant unauthorized immigrants the right to legal representation, whereas criminals in the U.S. are allowed legal representation. “Especially since their only offense is that they are in search of greener pastures,” according to an observer. Leah Litman, a professor at the University of Michigan Law School filed a brief in support of Gonzalez. She holds the opinion that the decision of the Supreme Court is completely unworkable and unrealistic. Furthermore, she asserted, “It makes it impossible to ensure that everyone who is potentially entitled to a bond hearing will get one.”

Aside from being denied a desired fair hearing, immigrants and advocates have since raised an alarm concerning the manner of treatment meted out to immigrants at the detention centers. Several facilities have been accused of abusing detainees. The Irwin County Detention Centre was shut down alongside another in May 2021. A gynecologist was accused of carrying out forced sterilization on the detained women at the Irwin Center.

Matt Adams, the legal director of the Northwest Immigrant Rights Project who argued the Garland case opines that the decision of the Court raises ethical questions. This is a result of the fact that the ruling contradicts the fundamental principles upon which the U.S system is founded- “that government officials may not lock up a person without at least providing them their day in court to contest whether their confinement is justified.” Although he gives reassurance that the matter will still be pursued as it is not over yet.

Judge’s Ruling Undermines Biden’s Reform Efforts, A Great Decision from a Judge in Nevada, and More Recent Immigration News

August 20, 2021

Author: NYC Immigration lawyer Alena Shautsova

Judge’s Ruling Undermines Biden’s Reform Efforts, A Great Decision from a Judge in Nevada, and More Recent Immigration News

A decision from Texas Judge stops Biden’s recent ICE enforcement priorities from reverting back to the Trump era practices: ICE is ordered to not follow Biden administration’s Memoranda regarding enforcement and report its compliance to Court.

Good news for adjustment of status applicants: green card medical exams will be valid longer!

More Immigration news here:

No Cancellation if Asylum Filing Was Frivolous Says BIA

May 31, 2019

No Cancellation if Asylum Filing Was Frivolous Says BIA

Author: Deportation Lawyer Alena Shautsova

There exists a wrong practice among Immigration law practitioners (fraudsters) to file an asylum claim on behalf of an individual with the purpose of filing for cancellation of removal later in Immigration court. What happens is that people essentially get “tricked” by these practitioners into believing that they can get away with filing a frivolous asylum case and later, when they transferred to court, they will be able to successfully file for a relief with the judge in a different form. At times, people are not even aware they filed for asylum!

Here is a first point: a person has to file for asylum within a year of his/her entry into the US. If you spent here 10 years and more (one of the qualifications for cancellation of removal), chances are you will NOT qualify for asylum unless certain, very narrow exceptions are met.

Second, an asylum application must have merit: you cannot allege that you are afraid of criminal situation in your country general. This is NOT a basis for asylum. It takes months to prepare an asylum application and thoroughly collect all the evidence; if the evidence is not available you must explain why. 

There is a punishment under the law for those who submit  frivolous or fraudulent asylum applications. 

So, within the past years, there were numerous reports of filing for asylum in order to get a cancellation of removal relief: an application for a green card available to be filed in court only. Now, the BIA held that this practice will be sufficiently abolished: if the Immigration judge determines that the asylum application was filed just so that the person could file for cancellation of removal, the proceedings will be DISMISSED! It means that the person will not have a chance to file for cancellation of removal.  See Matter of ANDRADE JASO and CARBAJAL AYALA, 27 I&N Dec. 557 (BIA 2019). 

If one desires to place himself/herself in removal proceedings, even generally not recommended to do so, he/she should request that the government issue a Notice to Appear rather than submit a frivolous asylum case. This approach might come with less success, but will save time, money, and potentially safeguard from civil and criminal penalties. 

 

USCIS ADOPTS NEW POLICY FOR NTAs

July 6, 2018

USCIS ADOPTS NEW POLICY FOR NTAs

Author: New York Immigration Lawyer Alena Shautsova

USCIS changes policy on how and when it will be referring applicants to court. Now, all persons who applied for Immigration benefits and were denied will be issued Notices to Appear. A Notice to Appear is a charging document that means that the person is going to be placed in removal proceedings in Immigration Court. 

Under the new policy, the following cases will be referred to court: 

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
  • DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

What Happens After ICE Arrest

February 9, 2018

What Happens After ICE Arrest

Deportation attorney Alena Shautsova

Recent news brings worry and anxiety to Immigrants: ICE arrests non-citizens in courts, at work, in their homes.  But what actually happens after an individual is taken into ICE custody? The answer to this question depends on individuals’ Immigration history and the exact reason for the arrests.

Individuals with Prior Orders of Deportation/Removal

If ICE picks up a person who has a prior order of removal/deportation, ICE may either reinstate the order of removal and try to physically remove the person from the US; or, if a person has any possibility of relief from the physical deportation, ICe may issue an order of supervision.  A person would have to file an application for administrative stay of removal and ICE would release such a person on an order of supervision.  If the application for stay is granted, a person will be allowed to remain in the US, wait for the resolution of his/her applications here, and legally work in the US.

Individuals Charged With Aggravated Felony 

If ICE arrests someone who does not have an order of removal/deportation but is deportable due criminal conudct, and especially due to an agrevated felony, ICE may choose to remove such a person using an expedited procedure tool,  and will serve on an individual a “Notice of Intent to Issue Final Administrative Removal”.  If an individual does not successfully contest such a notice, he/she may be removed out of the US without seeing a judge.

Other Cases

In the majority of other cases, ICE will have to place a person in INA 240 removal proceedings where an individual will have a right to present a defense to removal in court before an Immigration Judge. A person is likely to be detained for a month or so until the bond hearing takes place, and then a person will be released (once the bond is paid.) Some immigrants, are not eligible for the bond (but even this law provision has been challenged in courts.)

In many cases, I would say in the majority of cases, long-time US residents may have defenses to deportation/removal. Depending on their exact situation, they may qualify for adjustment of status (with a waiver, for example); cancellation of removal; SIJS benefits (for children); or else.

If you need a consultation regarding possible defenses, please call us at 917 885 2261.

 

237(h) Waiver May be Available Outside the Entry Restrictions

November 10, 2017

237(h) Waiver May be Available Outside the Entry Restrictions

Author: Green Card Attorney Alena Shautsova

People say that where there are two lawyers,  there are three opinions. And there is a good reason for it. The Immigration law, perhaps, is one of those areas of law where nothing is set in stone, and various courts provide various results in similar situations.

In a recent case coming from the Seventh Circuit Court of Appeals, the Court decided that 237(h) waiver: the only waiver that may be available in marriage fraud cases, may be applied for not only when the fraud was committed at the time of entry. The Court stated that if the charge of removability is related to fraud, then 237(h) waiver can be applied for!

I have to say that when I was reading the decision, I was curious how a man received a green card in the US not once, but twice, and each time it was a “problematic” application, when there are very convincing cases of people who are waiting for the decisions on I 751 for years. Once you keep reading the decision, you will see that this man had a very sympathetic situation after all, but, of course, the misrepresentation part of his testimony where he “forgot” that he was married to someone else can be excused in only very, very “sympathetic” circumstances.

 

Statute of Limitations For Green Cards Rescission

July 25, 2016

Statute of Limitations For Green Cards Rescission

Author: Green Card Attorney Alena Shautsova

In law, there is a statue of limitations or period during which one can bring a legal action with regard to almost all rights, regulations, incidents, accidents or actions. For example, if you happened to be in a car accident, you have 3 years to sue. If you became a victim of fraud, you have 6 years to sue your offender.

Now, believe it or not, there is  a statue of limitations as to how long the government can wait before taking your green card from you if it was issued in error. The bad news is that there is only one Circuit Federal Court in the whole United States which follows this five-year statute.

This Court is the Court for the 3rd Circuit, and it covers New Jersey! Only this Circuit court held that  the government cannot take someone’s green card away if the government issued it in error after five years passed since the issuance under 8 U.S.C. § 1256(a):

 

If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 or 1259 of this title or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s status.

Interestingly enough, there is no time limitation on when the government may start deportation or removal proceedings against a person, so in reality, if the government really wants to take the green card or lawful permanent status away, it may “find” a valid basis for removal, and very often such a basis is determined to be fraud.

Moreover, if a person became a U.S. citizen, and the government still has time to rescind its decision regarding the person’s permanent resident status, the person would lose the citizenship as well.  In reality, however, just like with the rescinding or removal of a person in  permanent resident status, the government is not bound by the five-year statute and often, naturalized citizens of many years, and decades may lose their citizenship if a mistake is uncovered.

To rescind one’s LPR status, the government would:

1. Would send a notice with intent to rescind

2. A LPR has 30 days to contest the notice and then there will be a hearing with the Immigration Judge. The result of the hearing is appealable.

If a LPR does not respond to the notice within 30 days, he will not be afforded a hearing with  an Immigration judge. Important: a request for more time is not a request for hearing! See Ali v. Reno, 22 F 3d 44 (2n Cir. 1994).

3. The government has to prove their case by clear, convincing and unequivocal evidence.

If you  receive a notice of intent to rescind your LPR status, call an attorney right away. You can reach us at 917-885-2261.

 

 

 

 

CANCELLATION OF REMOVAL: NTA, STOP TIME RULE

October 19, 2015

CANCELLATION OF REMOVAL: NTA, STOP TIME RULE

Author:   New York Deportation Attorney Alena Shautsova
Cancellation of Removal is an often overlooked form of relief from deportation. It also may be used by someone who has been in the U.S.  for a long time  without inspection or admission to receive a green card in the U.S.  In the last case scenario, a person first would have to ask the U.S. government to place him/her into removal proceedings and only then he/she will have a chance to apply for cancellation.

Cancellation of removal as a form of relief may be of several “kinds” : for permanent residents, for non-permanent residents; for VAWA beneficiaries; for  certain persons covered by  the Nicaraguan Adjustment and Central American Relief Act of 1997. Each “kind” requires that certain qualifications be met.

One of the common “features” of this form of relief, is that an applicant has to accumulate  certain amount of time in the U.S. This time usually runs from the person’s entry into the US, and can be stopped not only due to a departure, but due to certain events that have legal consequences. For example: an arrest or commitment of a crime by the applicant or  service of removal/deportation documents.

Since cancellation of removal is a desirable and often the only form of relief an applicant can hope for, there started to develop a body of case law that challenges various limitations and restrictions that might be applied to the applicant. Specifically,  the advocates posed a question of whether a service of deficient on its face notice to appear in removal proceedings may serve as a “stop time” event. For example, quite often a person receives a notice to appear issued by ICE that has “TBD” in place of a date and time of the hearing in Immigration court.  Can such a document, that has been issued but not filed with the court have sufficient legal weight to eliminate one’s chance for cancellation? It is an interesting question, because in practice, such issued notices may rest on shelves for years before they are eventually filed with the court, and the person, subject of such a notice, naturally, would like to the “wait” time to be counted towards the accrual of the necessary period.  (Service of an NTA cuts off the accrual of continuous presence, under a provision known
as the “stop-time” rule. 8 U.S.C. § 1229b(b)(1)(A).)

Unfortunately for the applicants, many Circuit Federal courts held that the Notice to appear served on the applicant does not have to have all the specifics in order to alert the applicant that the government is initiating removal proceedings against him/her, and even an incomplete notice will nevertheless stop the cancellation or removal clock.  See Guaman-Yuqui v. Lynch, 786 F.3d 235, 238–40 (2d Cir. 2015) (per curiam); Gonzalez- Garcia v. Holder, 770 F.3d 431, 433–35 (6th Cir. 2014); Yi Di Wang v. Holder, 759 F.3d 670, 673–75 (7th Cir. 2014); Urbina v. Holder, 745 F.3d 736, 739–40 (4th Cir. 2014).

However, there remain one “loophole” out of this catastrophe. If the government agrees to retract the notice, then the “time” can be saved. However, this requires government cooperation and discretion. The BIA held that a notice to appear (NTA) that was served but never resulted in removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the INA. Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015).

 

 

 

 

I-751 Petition, Questions and Answers

October 11, 2015

I-751 Petition, Questions and Answers

Author: Green Card Attorney Alena Shautsova

A conditional permanent resident has to file a petition to remove condition from the residency within 90 day period prior to the second anniversary of his/her status.

LATE FILING

The joint petition (when spouses are still living together) must be filed within the 90 days period, and if it is not, the couple has to present a very good excuse for missing the deadline, otherwise the petition will be rejected.

The petition that contains request for a waiver, on the other hand, can be filed at any time. For example A, conditional permanent resident (CPR), divorced from a USC (a U.S. citizen) just a year after A become a CPR. “A “ does not need to wait to file her petition. Another example, A is a battered spouse. She is still married to a USC who has been abusive. A missed her deadline and her conditional permanent resident card expired. “A” can still file the I 751 petition, even if the deadline is missed.

What is not a good excuse for late filing of the joint petition? Being abroad is not an excuse for late filing of the joint petition. The couple who are abroad must file the petition within the 90 day period prior to the second anniversary of the green card status.

DOES THE STATUS REALLY EXPIRE?

The warning notices say that if the a conditional permanent resident does not file the petition to remove condition timely, his/her status automatically expires. What really expires is the card itself. The status does not expire, despite the warning. In fact, the USCIS or an Immigration judge has to terminate the status in order for “A” to start the process again with a new USC-spouse. It also means that “A” technically will remain a permanent resident, but a conditional one and prior to undertaking any other Immigration steps, she would have to submit an I-751 petition, even if it will be filed late in order to get a finality for her situation. In this case, if the petition is denied, then the status will be terminated. (Does not apply to those seeking adjustment as refugees or asylees).

DO I INCLUDE CHILDREN IN MY I -751?

Yes, dependent children, those who receive their green card with their parents within 90 days of the parent’s conditional green card or, as often it happens, on the same day, must be included in the I -751 form. What do to if the child turns 21 by the time I-751 should be filed? The answer is : file the petition including that child. The statute that talks about removal of the condition for dependents refers children and sons and daughters, meaning, that under INA, I-751 properly included with the parents should receive their permanent resident status as well. See also Caprio v. Holder, 592 F.3d 1091 (10th Cir. 2010).

Finally, most common question: I was married to the U.S. citizen, and now we are divorced. Did I lose my status? The answer is NO, you did not lose your status. All you need to do is to file I -751 by yourself. It may be a little bit more challenging, as you need to show that you had a real marriage, but it is possible. If you are successful, you will receive a permanent green card.

FUN FACT: One can submit an unlimited number of I 751 petitions.