Featured Research from the Immigration and State Courts Strategic Initiative

 

 Errors in OIL’s 2010 post-Padilla Reference Guide: 

“Immigration Consequences of Criminal Convictions: Padilla v. Kentucky

Errors in OIL's 2010 Post-Padilla Reference Guide

10.15.10

"Errors in OIL's 2010 post-Padilla Reference Guide: Immigration Consequences of Criminal Convictions: Padilla v. Kentucky" corrects errors made in the Office of immigration Litigation's recent publication on Padilla v. Kentucky. *Please refer to the sidebar "Related Publications" for the.pdf download of this publication. 

Immigration Consequences of Criminal Convictions: Padilla v. Kentucky

9.20.2010

The Office of Immigration Litigation recently released this important publication examining the implications of Padilla v. Kentucky. *Please refer to the sidebar "Related Publications" for the .pdf download of this reference guide. 

Immigration and the State Courts Assessment and Measurement Framework

08.01.10

A Court Manager article that provides assessment and measurement tools for addressing immigration in the state courts. The .pdf download is available from our publications page.  

Addressing Immigration in the State Courts

05.30.10

A Court Manager article that outlines the challenges and affects of immigration on the state courts. The .pdf download is available on our publications page. 

Immigration Law, Policy and Practice 

3.12.2010

Much of the complexity of the challenges facing state courts associated with serving immigrants result from the often confusing nexus of constantly changing federal, state, and local immigration law, policy, and practice, coupled with the need to understand and serve greater numbers of people from cultures other than those that traditionally have been served in many jurisdictions across the nation. For example, the brief inventory of the intersections of federal, state, and local law, policy, and practices that affect the state courts presented in Figure B suggests that:

 

·      There are numerous, diverse points of intersection among federal, state, and local law and policy regarding immigration that can affect many fundamental aspects of state court operations.

·      The intersection of federal immigration law and practice and state law and practice can affect civil, family, juvenile, and dependency cases, as well as criminal cases.

·      The U.S. citizenship eligibility status of the nation’s 12 million Legal Permanent Residents and their U.S. residency status can be affected by numerous types of local justice system and state court activity such as criminal charges, convictions, and imposed and suspended sentences.

·      There is a potential that court caseloads and case complexity might increase as a result of both the intersections of federal, state, and local law and practice and the increased presence of state laws regarding immigrants, such as laws regarding bail eligibility, document forgery, human smuggling, and employer sanctions for hiring undocumented workers.

·      There are mechanisms available to local justice systems and the courts to protect immigrant victims, and juveniles and children.

·      In addition to national and statewide action, understanding and addressing the impacts of immigration in the state courts will likely require local assessment and strategy development, because local interpretations and application of state and federal law can vary greatly.

In particular, the demands on state courts to address immigration have increased greatly over the past few years as a result of rapid and extensive growth in state legislation targeting immigration, coupled with shifting federal policy regarding the apprehension and removal of undocumented immigrants.

Although the regulation of immigration traditionally has been under the exclusive purview of the federal government, over the past decade state legislatures across the nation have become increasingly active in adopting immigration- focused legislation.   The National Conference of State Legislatures reports that in 2005, 300 immigration related bills were introduced and 38 were enacted, while activity sky-rocketed to1,562 bills introduced and 240 laws enacted in 2007.  Preliminary figures for 2008 indicate that close the 2,000 bills have been introduced with about a total 400 new laws to be enacted in forty-five states. President Obama stated during his candidacy that the multitude of state immigration laws "underscores the need for comprehensive immigration reform so local communities do not continue to take matters into their own hands." 

The scope of state legislative immigration attention has been comprehensive, encompassing everything from employment eligibility verification, workers compensation, and unemployment benefits to efforts to either limit or encourage, depending on the state, education for the children of undocumented immigrants who graduated from public schools. Of special significance to the state courts has been legislation regulating:

·      bail eligibility;

·      human smuggling and trafficking;

·      ability of undocumented workers to work;

·      employer sanctions for employing undocumented workers;

·      fake drivers licenses and other forged documents;

·      education, treatment, and medical benefits eligibility;

·      state and local law enforcement officers co-serving as immigration officers;

·      eligibility for professional licenses; and

·      eligibility for hunting and fishing licenses.

 

Only now are many of the implications of all this legislation on state court operations and policy beginning to be revealed but preliminary assessments suggest that depending on the state: 

·      some of the new laws – such as those regulating bail eligibility for undocumented immigrants – can greatly complicate pretrial release and initial appearance processes;

·      state court decisions can greatly increase the chances for the removal of both lawful and undocumented immigrants;

·      many of the new laws likely limit immigrant eligibility for services routinely offered to non-immigrant, such as treatment, probation, and other services; and

·      family law matters are particularly complicated, especially in families with mixed immigration status – that is in some family members are undocumented, some are authorized to be in the U.S. and some are U.S. citizens.

Also, in part, the complexity of the immigration challenges to state courts results from the reality that the availability of court resources and infrastructure for addressing the impacts of immigration varies greatly across the nation. For example, even though many jurisdictions in the Southwestern U.S. have very large and expanding immigrant populations, they often also have greater service capacity, such as the availability of language specialists and interpreters, ability to establish litigant assistance partnerships with organizations in Latin America, and an abundance of court staff with well developed ties to immigrant communities. In contrast many other courts with rapidly expanding immigrant populations do not have these types of resources.  At the same time, until recently very few courts, regardless of where they are located, have had much of a capacity for meeting the court service needs of many of the nation’s more recent refugee and immigrant populations, such as new arrivals from Somalia, Eritrea, Ethiopia, and other parts of East Africa.

Furthermore, the complexity of the immigration challenges to state courts is increasing because immigration-gueled cultural diversity in the courts is dramatically expanding the need for courts and their justice partners to understand the complicated interplay of immigration, culture, language, and effective court service provision. Demand for culturally competent courts will continue to grow as courts across the nation attempt to maintain the delicate balance between traditional American court notions of what constitutes key behaviors, values, and beliefs, and the orientations of increasingly diverse population of court users.

Immigration Law, Policy and Practice: Categories of Foreign-Born Status

 

Figure A

Examples of Key Points of Intersection of Federal, State, and Local Law, Policy and Practice Regarding Immigration that Affect the State Courts

General Law and Practice

·       Immigration and Custom Enforcement (ICE) practices can vary greatly from jurisdiction to jurisdiction. For example, some state courts report that ICE officials have sought interpreter, pretrial release, and probation records to identify potential immigration law violations and detain individuals outside courtrooms.

·       Federal law enables state and local law enforcement personnel to act as immigration agents (287 G Certified Officers) to (1) arrest persons for smuggling, harboring, or transporting illegal aliens, and (2) perform a function of a federal immigration officer in relation to the investigation, apprehension, or detention of illegal aliens.

·       Local ICE responsiveness to individuals with immigration holds in local jail facilities can vary from jurisdiction to jurisdiction.

·       ICE contracts with many local jails for bed space.

·       Eligibility for state-supported services may be affected by immigration status.

State Laws Used To Address Immigration Issues

·       The vast majority of American states have enacted laws targeting immigration issues either directly or indirectly.  The National Conference of State Legislatures reports that in 2007 alone, 1,562 bills were introduced across the nation targeting immigration concerns and 240 new laws were enacted in 46 states.  These laws encompass making it a state law felony for illegal immigrants to hold a job in Mississippi to making it a felony for sheltering or transporting illegal immigrants in Oklahoma. 

·       For a particular jurisdiction the combined affects of state laws can challenge the courts resource. In Arizona for example, local courts must take into account: (1) Prop. 102, a constitutional amendment relating to standing and punitive damage awards for illegal aliens, (2) Prop. 103, a constitutional amendment relating to English as the official language, (3) Prop. 300, a referendum on public program eligibility that denies illegal aliens in-state tuition, taxpayer supported adult education, and child care, (4) Prop. 100, limitations on bail for those who entered or have remained in the country illegally, (5) the Legal Arizona Workers Act which sets out employer sanctions for hiring illegal workers, (6) a smuggling statue under which many victims are charged with or otherwise plead to conspiracy to commit smuggling or solicitation to commit smuggling, (7) a class 4 felony forgery statue, and (8) a statue which allows the court to order detention of a material witness who may not be available to testify in a criminal proceeding because of immigration status.

·       Many states have enacted document fraud laws that encompass making it a felony to use false documents including fake birth certificates and driver licenses.

·       Note also that across the nation the potential impact of many of these laws when courts deal with Lawful Permanent Residents and their families are waiting to be assessed, and likely in some circumstances, litigated.

Criminal Law and Practice

·       State court criminal arrests can jeopardize lawful permanent residency status, refugee and asylum status, and eligibility for U.S. citizenship.

·       State court criminal convictions can jeopardize lawful permanent residency status, refugee and asylum status, and eligibility for U.S. citizenship.   Examples of these crimes include: (1) aggravated felonies, (2) prostitution, petty theft, perjury, (3) controlled substances, (4) crime with intent to commit great bodily harm, (5) crimes of moral turpitude, such as turnstile jumping and shoplifting, (6) domestic violence including stalking, (7) document fraud, (8) identity theft, and (9) violation of protection order.

·       State court criminal sentences can jeopardize lawful permanent residency status, refugee and asylum status, and eligibility for U.S. citizenship.

·       Federal immigration law can consider state court suspended sentences, as well as imposed sentences, in immigration decisions.

·       Participation in state court drug courts and other therapeutic approaches can jeopardize lawful permanent residency status, refugee and asylum status, and eligibility for U.S. citizenship.

·       There are numerous federal immigration laws that can be used to protect immigrant victims such the Violence Against Women Act, Battered Spouse Waivers, U Visas for cooperation with authorities in criminal cases, and T Visas for victims of server forms of human trafficking.

Family Law and Practice

·       A person who gains lawful permanent status through marriage and later divorces the petitioning spouse can not file a petition for a new spouse for five years, unless he or she can prove by clear and convincing evidence that the first marriage was bona fide, including reasons for that marriage’s demise.

·       A conditional permanent resident married to a U.S. citizen can become a lawful permanent resident within two years if at the end of the two years the couple jointly files to have the conditional permanent resident become a LPR. Children of conditional permanent residents are also conditional permanent residents. If divorce occurs prior to LPR process, conditional permanent residence must obtain a good faith, extreme hardship, or battery or extreme cruelty waiver.

·       Divorce can have impact on Violence Against Women Act self-petitioners.

·       Divorce may affect a stepchild’s eligibility for immigration benefits.

·       Noncitizens who violate some kinds of civil or criminal protection orders can be removed from the U.S.

·       To greatly simplify adoption, immigrant children should be adopted before they are 16 years of age.

·       There are many immigration implications surrounding sibling adoptions and orphans.

·       Kinship care can be complicated by immigration status.

·       Child custody and child support can be complicated by immigration status.

Juvenile Law and Practice

·       Immigrant juveniles under juvenile court jurisdiction due to abuse, neglect, or abandonment, may be eligible for lawful permanent residency as “special immigrant juveniles.”

·       There are barriers to special immigrant juvenile status such as: (1) record of involvement with drugs, prostitution, or other crimes, (2) HIV positive, (3) classed as mentally ill, suicidal, or a sexual predator, (4) committed visa fraud or were previously deported.

·       Some delinquency types can jeopardize juvenile immigration status such as prostitution, sale or possession for sale of drugs, and sex offenses.

·       State courts in some instances can obtain jurisdiction over juveniles in ICE detention.

Civil Law and Practice

·       Dealing with mentally or physically ill individuals in state court may be complicated because mental illness, and some forms of communicable diseases can jeopardize immigration status.

·       State laws may limit civil damages for undocumented immigrants.

·       Applications for name changes may be complicated by immigration status.

·       Tenant and housing status may be complicated by immigration status.

 

 

Immigration Law, Policy and Practice: Key Intersections

 

Figure B

Categories of Foreign Born Status

Naturalized Citizen

An alien who wishes to become a naturalized citizen must file an application and meet the following requirements: (1) at the time of filing of the application for citizenship, be a lawful permanent resident for five years prior, physically in the United States for at least half of that time, and a resident of the state in which the application is filed for three months; (2) be continuously in the United States from the time of filing to admission to citizenship; (3) be of good moral character; and (4) support the Constitution and be disposed to the good order and happiness of the U.S.

Lawful Permanent Resident (LPR)

A grant of lawful permanent resident (LPR) status allows an alien to reside and work permanently in the United States.  To be eligible for LPR status, the applicant must indicate an intention to reside permanently in the U.S. The following are the major categories of lawful permanent residents.

·   Family-based visas: unmarried sons or daughters of citizens; spouses and children of LPRs; unmarried sons or daughters (not a child) of LPRs; married sons or daughters of citizens; brothers or sisters of citizens.

·   Employment-based visas: (1) priority workers (aliens who possess extraordinary ability, professors or researchers, multinational executives); (2) aliens who hold advanced degrees or possess exceptional ability; (3) certain classes of skilled workers, professionals, or other workers who perform jobs for which qualified workers are not available in the US.

·   Diversity-based visas: as determined by the Attorney General.

Conditional Permanent Resident

A conditional permanent resident is an alien who does not have lawful permanent resident status but is legally in the U.S. as a child or spouse of a LPR or a citizen.  The marriage giving rise to the conditional status must be legitimate.  The conditional status expires on the second anniversary of obtaining conditional status unless the immigrant has made timely application for lawful permanent resident status.  Both spouses must apply together.

Deportation of the lawful permanent resident spouse or divorce from a resident or citizen spouse terminates the conditional status unless the remaining spouse can meet the requirements for a hardship waiver, including as a VAWA self-petitioner or other hardship. 

Special Immigrant Juvenile Status

Special immigrant juvenile status (SIJS) is available under the following conditions.

·   There must be a state court finding that the juvenile is: (1) abused, neglected, or abandoned; (2) eligible for long term foster care; and (3) not returnable to home country.

·   The juvenile must concurrently apply for lawful permanent resident status.

·   The dependency case must not have been filed as a sham solely to obtain immigrant status.

Delinquency is generally not a bar to SIJS status, as delinquency is not considered adult criminal activity.  A juvenile may be ineligible for SIJS status for: (1) being a drug addict; (2) violating a protection order; (3) being a sexual predator; (4) using false documents; (5) engaging in prostitution; or (6) engaging in drug trafficking.

Violence Against Women Act (VAWA) Self-Petitioner

Immigration law provides that a conditional immigrant spouse may petition for LPR without the cooperation of the lawful permanent resident spouse or citizen spouse if:

·   The spouse or child has been battered or subjected to extreme cruelty by citizen or lawful permanent resident spouse;

·   The act or threatened act was one of extreme cruelty, including physical violence, sexual abuse, forced detention, or psychological abuse against the petitioner or petitioner’s child by the spouse during the marriage;

·   The marriage was legal and in good faith;

·   The petitioner is not the primary perpetrator of the violence; and

·   The petitioner is of good moral character.

Non-Immigrant Visitor

The law provides for a variety of categories of aliens that are eligible for visas to legally enter the United States on a temporary basis for a limited period of time.  Eligible aliens include vacationers, students, certain classes of temporary workers, and a variety of specialized categories.  The authorized length of stay is specified in the visa.  The alien may have to take certain actions to maintain the status.

Non-Immigrant Refugee or Asylee

The following are the conditions for admissibility into the U.S. as a refugee or asylee. 

·   The individual is likely to be persecuted on the basis of race, religion, nationality, member of a particular social group, or political opinion if returned to the home country or the country of last permanent residence.

·   The individual is not a security risk or perpetrator of persecution.

·   The individual has not committed a serious crime outside the U.S. before arriving in the U.S.

Once admitted, the alien will be allowed to stay in the U.S. as long as expulsion from the U.S. would put them at a safety risk, unless he or she: (1) is able to safely return to home country or move to another country; (2) no longer meets the requirements of eligibility; or (3) has been convicted of a serious crime, including conviction of an aggravated felony.

Non-Immigrant Victim of Human Trafficking

The “T” visa is available for individuals who have been the victims of severe human trafficking and is assisting in the investigation or prosecution of traffickers.  The maximum length of stay under the “T” visa status is four years unless extended.  The individual may apply for lawful permanent resident status if he or she is of good moral character.

Non-Immigrant Crime Victim or Witness

The “U” visa is available to an individual in the U.S. as an undocumented alien who: (1) has suffered severe physical or mental abuse as a result of being a victim of criminal activity; (2) has been, is being, or is likely to be of help to a federal, state, or local investigation of the criminal activity causing the abuse; and (3) has certification from a federal, state, or local justice system official that he or she has been, is being, or is likely to be of help to a federal, state, or local investigation of the criminal activity causing the abuse.  The maximum length of the “U” visa is four years unless extended. 

 

 

Challenges to Fundamental Notions of Justice and Traditional Court Values and Mission

 

10.31.09

 

Addressing immigration issues in the state court cases presents a number of challenges to fundamental notions of justice. In particular, the ability of the courts to provide equal access for immigrant litigants may be affected by a variety of issues, including, among others:

·      unwillingness of immigrants to report crimes, from fear or distrust of local law enforcement officers or general reluctance to call attention to themselves or their families;

·      fear of reprisals, including arrest and possible deportation, for appearing in court;

·      barriers created by language or culture; and

·      general reluctance to engage government.

Moreover, providing equal and consistent justice can be a challenge. There may be a lack of resources and restricted access to certain types of programs for immigrants. For example, juvenile and adult offenders who are undocumented may not be able to pay restitution because they are prohibited from having jobs to earn money to pay restitution as a result of employer sanctions laws. This limits both the sanctions available for those individuals and the ability to provide compensation to victims. In short, it inhibits the use of restorative justice approaches for those individuals. Also, federal immigration status outcomes, which are often dependent on local case outcomes, can vary from one state court jurisdiction to another due to differing charging decisions of prosecutors and sentencing practices of judges.

Further, the independence of state judiciaries may be threatened in numerous ways by the nexus of federal, state, and local immigration law, policy, and practice. For example, the courts and local justice agencies, including law enforcement, probation, corrections, and social services, may face pressure to assist ICE by identifying and reporting illegal aliens to ICE authorities. Federal law authorizes ICE to deputize local law enforcement officers as ICE agents, and this may happen more frequently in the future. As many immigration rights are determined by outcomes in state court cases that can be affected by the discretion exercised by local judges and prosecutors, there may be increasing local political and social pressure to exercise that discretion in a way to maximize or minimize the immigration consequences for immigrants depending on local circumstance.

Finally, achieving procedural fairness can be a challenge to courts in dealing with aliens. Procedural fairness encompasses how the courts behave toward litigants and how people are treated in court, as opposed to what the courts decide. There are four main aspects of procedural fairness:

·   Respect and understanding, or the extent to which people are treated with dignity and are helped to understand what is happening in court;

·   Voice, or the extent to which people are given a chance to be heard;

·   Trust, or the extent to which the judges and court staff give the impression that they care about people’s needs; and

·   Neutrality, or the extent to which judges can instill confidence that they are treating all people equally and fairly.

Newer immigrants often do not understand the court system or how justice operates in the United States and as a result may be fearful and baffled by what is going on. Courts must take extra steps to assure that the goals of procedural fairness are met for these litigants.

  


 

 

 

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