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Immigration Reform: New Detention Policies

Immigration Reform News Makes new Policies for deportation

The immigration reform news has made new policies states Brian D. Lerner, for who will be targeted for deportation. There are three different priorities with the first priority being the highest level of deportation and the second priority being the middle level priority and the third priority given the least preference and lowest priority for deportation.

However, the immigration reform news makes clear that there are issues and policies that apply to all of the priorities. Brian D. Lerner explains that prior policy memos were specifically revoked per the immigration reform news. The memorandum by Jeh Johnson states as follows: Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein, provided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest. Unfortunately, Brian D. Lerner, immigration attorney, states that this is a rather wide open policy. It certainly allows an ICE official to simply claim that deporting a particular individual is in the ‘federal interest’ of the U.S., or deporting somebody who entered illegally would serve the ‘federal interest’ by not encouraging others to do the same act. The immigration reform news certainly has delineated the different policies, but this particular paragraph, explains Brian D. Lerner is problematic. It would seem that the ICE official which is essentially on the bottom of the enforcement hierarchy should not be given the authority in her own individual opinion what is and is not in the Federal interest of the U.S. This is exactly what the memorandum on the ‘policies’ of deportation spells out.

The immigration reform news then goes on to state that its policies on detention. It is actually quite fair states Brian D. Lerner. Specifically, the immigration reform news states as follows regarding the detention policies: As a general rule, DHS detention resources should be used to support the enforcement priorities noted above or for aliens subject to mandatory detention by law. The immigration reform news states that absent extraordinary circumstances or the requirement of mandatory detention, field office directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. The Law Offices of Brian D. Lerner states it is about time. There has been years of detaining pregnant mothers, elderly, mentally infirm and persons with physical disabilities. It has taken a toll and not looked very humane to the rest of the world. However, the immigration reform news per this memo seems to put an end to this type of detention. The immigration reform news goes on to state that to detain aliens in those categories who are not subject to mandatory detention, DHS officers or special agents must obtain approval from the ICE Field Office Director.Brian D. Lerner explains this is very fair as it does not put all the decision making ability in the front-line officer and will make a more uniform execution of this policy If an alien falls within the above categories and is subject to mandatory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance.

Brian D. Lerner explains that this immigration reform news shows how the Obama administration priority is to not deport or to detain persons who are not in the listed priorities of deportable persons. What is interesting, explains Brian D. Lerner, is that on other parts of this memo, broad discretion is given to officers to decide whether or not to place one in removal proceedings. However, here, if the person is in detention, in accordance with the immigration reform news, they are not given that discretion, and in actuality, must go to a supervisor to keep the person detained if they fall under this category. Thus, the immigration reform news is good, but there are parts that could use clarification states Brian Lerner.

The new immigration reform bill makes changes to prosecutorial discretion

The immigration reform bill just issued by President Obama is actually not a ‘bill’ per se, but rather, an executive order. One part of the order was a comprehensive memo by the Secretary of the Department of Homeland Security that changed, altered and made in some respects clearer the priorities for deporting people and/or putting people in deportation proceedings.

Brian D. Lerner, Immigration Attorney, states that the immigration reform bill that deals with priorities has three major parts. The highest priority is referred to as Priority 1, second highes t is Priority 2 and of course the third and least preference is Priority 3. Therefore, states Brian Lerner, if you will be requesting prosecutorial discretion and you are under Priority 3 of the immigration reform bill, you should have the highest chance of success.

Priority 3 of the immigration reform bill states as follows: Priority 3 (other immigration violations): Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014. The immigration reform bill states that aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Hence, states Brian Lerner, it is listed by the Secretary of Homeland Security that is the lowest priority. This is quite interesting, because usually somebody with a prior removal order will get one of the highest priorities from immigration.

Resources should be dedicated accordingly to aliens in this priority according to the immigration reform bill. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. Unfortunately, it is this part of Priority 3 of the immigration reform bill that gives most concern. It puts a great deal of discretion in the officer at the lowest levels the ability to basically believe that removing somebody is always an enforcement priority. Brian Lerner states that it is this section that also is the most ambiguous and unclear. Perhaps in the months to come before the regulations are issued, there will be clarification as to this last part of Priority 3.

Brian D. Lerner explains in more detail the immigration reform bill and its reference to a ‘final order of removal’. It is necessary, explains Brian Lerner to know what is meant by the term ‘final order of removal’. An order of removal made by the immigration judge at the conclusion of proceedings under section 240 of the Act shall become final: (a) Upon dismissal of an appeal by the Board of Immigration Appeals; (b) Upon waiver of appeal by the respondent; (c) Upon expiration of the time allotted for an appeal if the respondent does not file an appeal within that time; (d) If certified to the Board or Attorney General, upon the date of the subsequent decision ordering removal; (e) If an immigration judge orders an alien removed in the alien’s absence, immediately upon entry of such order; or (f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period, or upon the failure to post a required voluntary departure bond within 5 business days. Brian Lerner states that if the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General.

The immigration reform bill does give a lot of hope to the families and to foreign nationals here in the U.S. However, Brian Lerner states there are ambiguities in the Priorites memo and you should get an experienced attorney to help you.

Immigration reform update gives hope to millions even with criminal history


The immigration reform update was waited for years years by millions. Brian Lerner explains that over 16 months ago, the U.S. Senate put together a comprehensive immigration package and sent it to the U.S. House to bring up for a vote and hopefully pass. However, the House just sat on the Bill and did not do anything. Whether it was only John Boehner who did nothing, or other people in the Tea Party forcing their views and policies is unknown. However, Brian D. Lerner states that the immigration reform update is given by President Obama as an executive order which has expanded the already existing DACA program and creates the new DAPA program.


However, another part of the immigration reform update is made so to give clear guidelines as to enforcement priorities for  whom will be deported. This will affect all those, states Brian Lerner, as to whom will or will not be deported, but under the immigration reform update, should also have an effect on who can and cannot qualify for DACA and/or DAPA who have a criminal history of some type. On the same day practically that President Obama made the announcement of the Executive Order in the immigration reform update, the Secretary of Homeland Security, Jeh Johnson sent a memo explaining the new enforcement priorities to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection, Leon Rodriguez

Director, U.S. Citizenship and Immigration Services and Alan D. Bersin, Acting Assistant Secretary for Policy. Thus, the immigration reform update initiated this memo to heads of about every division of U.S. Immigration states Brian Lerner. This means that the officer at the port of entry or one who works in the detention facility or one who is adjudicating petitions will all have to follow the guidlines in this memo as it is ordered by the Secretary of Homeland Security.


Therefore, what does the memo per the immigration reform update talk about and mandate, asks Brian Lerner? Foremost, it deals with the new/updated policies of removal, detention and apprehension of foreign nationals in the United States. The immigration reform update mandated the policies change and be updated. Brian D. Lerner explains that the overiding direction of the memo is that it directs enforcement against those who issue a threat to the public safety or national security of the United States. The immigration reform update also gives high priority to border security.


A quote from the immigration reform update memo from Jeh Johnson is a follows:


“In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. “


Clearly, explains Brian D. Lerner, the memo makes crystal clear that people who are not in the enforcement priority categories should not be targeted for deportation. That would serve the whole purpose of the immigration reform update. In fact, explains Brian D. Lerner, the memo states that the prosecutorial discretion can and should be exercised at all stages of the enforcement process from the time the initial contact with the foreign national up until the moment of removal. The prosecutorial discretion can be exercised at anytime .  


The immigration reform update divides enforcement categories into priorities with the top priorities listed in order of enforcment and significance. Priority 1 (threats to national security, border security, and public safety) gets the top tier attention. Brian Lerner states that foreign nationals described in this priority represent the highest priority to which enforcement resources should be directed. Per the immigration reform update, it is foreign nationals in this priority 1 enforcement that should be targeted for deportation. They are (a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security; (b) aliens apprehended at the border or ports of entry while attempting to

unlawfully enter the United States; (c) aliens convicted of an offense for which an element was active

participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang; (d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien’s immigration status; and (e) aliens convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.


Thus, the priority 1 category of the immigration reform update makes clear who and who will not be targeted. Therefore, if you are not under this particular category, you should be able to apply for the DAPA and expanded DACA programs. In fact, explains Brian D. Lerner, if you are under one of the Priority 1 updates, you should still seek immigration advice so as to see if you can reduce or vacate the crime so it is not listed as a Priorty 1 offense in the immigration reform update.

Immigration reform USA 2014 news brings the new DAPA

Immigration reform USA 2014 brings a new form of relief called DAPA states Brian D. Lerner.  USCIS will create a new deferred action process, similar to DACA, for certain individuals. The immigration reform USA 2014 through the executive action will allow millions of people to obtain DAPA. Brian D. Lerner states that the requirements are as follows under the immigration reform USA 2014 news:


Brian D. Lerner states that it will apply to those who (1) have a U.S. citizen or LPR (Lawful Permanent Resident)  son or daughter (of any age) as of November 20, 2014; (2) have  been continuously present in the U.S. since before January 1, 2010; and the immigration reform USA news shows that the third item is that they were  physically present in the U.S. on November 20, 2014 and are present at the time  of requesting DAPA. Such individuals must pass background checks and must not  be an enforcement priority under the new memorandum. DAPA will be granted  for a three-year period. USCIS expects that it will begin accepting DAPA applications within 180 days of November 20, 2014 states Brian D. Lerner.


See Brian D. Lerner speak about the new DAPA program discussed in the immigration reform USA news


Immigration reform USA 2014 news states that USCIS will consider each request for Deferred Action for Parental Accountability (DAPA) on a case-by-case basis. Enforcement priorities include (but are not limited to) national security and public safety threats. Of course, Brian D. Lerner states it might be an issue as to what is or is not a public safety threat. However, if the DACA program is anything to look at, then there are certain areas or situations that should not be a problem for applying for DACA, explains the Law Offices of Brian D. Lerner


The immigration reform USA news basically is giving low priority to persons for sure who do not have a criminal history. This means that if you have a prior deportation order or expedited removal order you should be able to still apply for DAPA states Brian Lerner, The immigration reform USA news is similar to the DACA news given a few years ago by President Obama.  In that respect, those people could apply for the ‘DACA’ at that time, even if they did have illegal entries into the U.S, or they had a deportation or removal order and even if they were already in detention facilities and/or in removal proceedings. Brian Lerner elaborates that the immigration reform USA news does not yet have regulations or instructions, and therefore, we do not know for sure. However, like the DACA program, what would be the use of issuing such an expansive DAPA program if by having a prior deportation order, or expedited removal order, it would be so easy to deny. It would defeat the purpose of the whole program.


The immigration reform USA news was to give an executive action to help millions of people here in the U.S., and therefore, if there is no criminal history, but there is negative immigration history (even other illegal re-entries after a deportation), there should probably still be the ability to apply for DAPA. Brian D. Lerner also puts out other issues such as what happens if the person who wants to apply for DAPA has already been deported and is outside the U.S. right now? In that case, hopefully the regulations to be issued will still permit that person to apply and then to be able to get some type of parole to enter the U.S. The immigration reform USA news is excellent news, but remember it will take 180 days after issuance of the order of the DAPA program to take effect.


The next issue with the immigration reform USA is whether persons with criminal history can apply for DAPA. Again, states Brian Lerner, since there are no regulations at this time, we are somewhat guessing. However, we do have the history of the last few years of the DACA program in order to see how it could very well be applied. For example, with DACA, there could not be more than 3 insignificant misdemeanors among other various provisions. Therefore, it would be incumbent for the particular person to have a good immigration attorney argue in the DAPA case that they do not fall under the enforcement priorities of deportation and that their crimes are not targeted and that they should qualify for DAPA. Even if you have significant misdemeanors and/or a felony, there are ways to eventually apply for DAPA. It would seem that with the immigration reform USA news that it would be possible to make some type of motion to vacate and or reduce the crime so that if granted, afterwards, you should be able to apply.


Brian D. Lerner makes clear that the executive action by President Obama is not a congressional action, but rather an executive order that he is taking on his own initiative because Congress failed to act. Therefore, do not wait to apply. Take advantage of the immigration reform USA news and see a qualified immigration attorney.


The Notice to Appear and Removal Proceedings

Deportation and the Notice to Appear

I’m in Deportation Proceedings. Now What?

Question: I have been served with a Notice to Appear and been put into Removal Proceedings. What do I do?

Answer: The Removal Proceedings begins with issuance of a Notice to Appear and there are very specific requirements that must be included in Notice to Appear. If they are not included, you can try to ask for proceedings to be terminated.

Question: What type of requirements are supposed to be in the Notice to Appear?

Answer: The following items are required: In removal proceedings under section 240, written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the foreign national (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any). Thus, the first item is that it must be properly served on the foreign national in order to give notice of the hearing.

It must specify the following:
“(A) The nature of the proceedings against the alien.
“(B) The legal authority under which the proceedings are conducted.
“(C) The acts or conduct alleged to be in violation of law.
“(D) The charges against the alien and the statutory provisions alleged to have been violated.
“(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel
“(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted. The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number and the consequencesof failure to provide address and telephone information.

Next, there must be the time and place at which the proceedings will be held and the consequences of the failure, except under exceptional circumstances, to appear at such proceedings.

There must be listed the time and place of the proceedings.

Question: Will an attorney be appointed for me?

Answer: No. However, you do have the ‘right’ to have an immigration attorney of your choosing. Therefore, the first hearing will usually be continued in order to give you an opportunity in which to obtain an immigration attorney to help you.

Question: Should I admit the crimes listed on the Notice to Appear?

Answer: You should never admit the crimes. It is the burden of the government to prove that you are removable by clear and convincing evidence and that burden cannot be shifted because you simply admit to the crime.

Question: What about the grounds of removability? Should I admit to those as well?

Answer: First, you should make certain that you have an immigration attorney who is familiar and an expert in deportation and removal proceedings. In any event, some items of removability you could not realistically deny. However, many you can deny. For example, if you are being charged as an aggravated felon, there is a possibility that you can fight this and show you are wrongfully being classified as an aggravated felon.

In any event, it is very important to plea properly to the Notice to Appear and to fight the issuance or contents of the Notice to Appear if they are not properly served or placed in the Notice to Appear.

Try Federal Habeas Corpus to Vacate a Conviction

Try to Vacate a Crime with a Federal Habeas Corpus

I have been deported outside the U.S. Now What?

I have been deported outside the U.S. Now What?

Question: About 3 years ago, I was deported outside the United States, and I feel it was not done properly and that I was improperly deported. What can I do?

Answer: There are several things that may be done, but a Habeas Corpus is available in certain circumstances. Habeas corpus review can be used to determine whether: (1) petitioner is an alien; (2) petitioner was ordered removed under such section; and (3) petitioner is an LPR, or was granted refugee or asylum status. In determining whether the person has been ordered removed, the court’s inquiry is limited to whether such an order was in fact issued and whether it relates to the petitioner.

Therefore, if you believe you were a lawful permanent resident, but it was wrongfully determined you were not, this option is available to you.

Question: What is I committed a crime and that is why they took away my residency? Can I used Habeas Corpus in that event? I tried to vacate the crime in State Court where I committed the crime, but it was denied.

Answer: There has been lots of case law, motions and documents filed to try to vacate or reduce the conviction so that you would either not be considered deportable or removal and/or so you would not be considered an aggravated felon. However, when the State Court remedies have failed, there is the option (depending on your jurisdiction) of doing a Federal Habeas Corpus in order to try to vacate a State Crime. AEDPA §§101-06 substantially reduced the ability to use 28 U.S.C. §§2254 and 2255 to attack State and Federal convictions. There is now a one-year statute of limitations for filing a habeas petition in federal court attacking a state conviction, §2244(d)(1), or federal conviction, §2255.

Thus, if your crime occurred many years ago, this option will not be available. Unfortunately, AEDPA also strengthened the presumption of correctness of the convictions and restricted successive petitions. However, petitions have been granted to vacate a conviction where the court would not have accepted the plea had it been aware of the immigration consequences.

Question: What if I applied after being released from custody? Will the Court have Jurisdiction?

Answer: Jurisdiction exists for habeas even where alien is released from incarceration. Certain states permit a vacatur of a plea only if filed within a limited time period. For example, Florida permits a party to vacate a plea only if it is filed within 2 years of the conviction.

Question: What is I am time barred from bringing this type of post-conviction relief?

Answer: Where a defendant is time-barred under state post-conviction procedures, he or she may be able to bring a Padilla claim under federal habeas. Ineffective assistance of counsel may be raised under certain circumstances in light of state procedural bars.

The defendant must allege and prove that she would not have entered into the plea if informed of the possibility of removal. Vacation of a plea will vacate the conviction for immigration purposes as long as it was not pursuant to a rehabilitative statute or because of immigration hardship. Unlike a vacatur of a conviction, a vacatur of a sentence may be done for any purpose, including immigration avoidance.

Question: What is I only needed a couple days less on my sentence not to be considered an aggravated felon?

Vacating a sentence is different than vacating a conviction. A party may vacate a sentence for any reason, including immigration avoidance, and it must be given full faith and credit by the Immigration Judges and the Board of Immigration Appeals. There is case law where a sentence was modified nunc pro tunc expressly to avoid deportation as an aggravated felon, IJ and BIA must recognize it.

Question: What about ineffective assistance of counsel?

Answer: If not properly raised previously and depending on your jurisdiction, you many be able to bring this claim under a Federal Habeas Corpus to challenge the State Conviction.

It will not be easy, but may be the difference between coming back to the U.S. versus never coming back.

Committed a crime? Maybe you should not be deported due to retroactivity.

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