Articles Posted in Immigration

In the current political environment, it is no surprise that immigrants seem to be targeted more and more, and the border patrol is out in full force. Just a few months ago, a couple was detained by U.S. Border Patrol after a routine traffic stop. People usually think that Border Patrol can only be found in areas closest to the U.S.-Mexico border, but that is actually only a fraction of their enforcement efforts.   

What is Border Patrol Jurisdiction?

Border Patrol agents are sworn federal agents capable of enforcing the law in all 50 states and all U.S. territories. Generally, agents can operate within 100 miles from each international border.  This pretty much covers the entirety of San Diego County. Under certain conditions, they can also go beyond that distance. They are allowed to make arrests or question anyone potentially violating immigration law, but they do not issue things like speeding tickets. However, traffic violations such as a broken taillight or speeding can be used as a pretext to stop you to question you further.   

Where can Border Patrol Stop You?

Border Patrol agents are allowed to set up checkpoints even in areas not in the immediate vicinity of the border. They can stop drivers to question the occupants of a car, and even request proof of immigration status. They are also allowed to station themselves along highways and roads to be on the lookout for people violating potential immigration laws or committing crimes.

They are allowed to stop drivers under the “reasonable suspicion” standard. That is, Border Patrol has to have more than a hunch that a crime or immigration violation has been or will be committed. This is a lower standard than the “probable cause” standard, which means there is concrete evidence to indicate a crime has been/is being committed.

These standards get murky, since stopping drivers based solely on the color of their skin is considered racial profiling. However, border patrol is allowed to consider race or nationality while deciding to stop and question people, as long as agents can point to indications of criminal activity.

In this political environment, it is recommended you have the name and number of an immigrant rights lawyer ready in case you get stopped by law enforcement officials.    Continue reading

A couple in San Diego, Carlos Nieblas-Ortiz and Martha Valenzuela-Luna, were reportedly stopped by two deputies in Mission Valley for a cracked windshield. They had their two children with them, one of whom is currently a DACA recipient. Once they were stopped, they were turned over to federal immigration officials. Nieblas-Ortiz said deputies never asked them for their immigration status, and did not issue a citation, but they were prevented from leaving.  Instead, deputies called U.S. Border Patrol, and the family was forced to wait over an hour.  Nieblas-Ortiz was released on bail, but he has told Telemundo 20 he is still not sure about whether they will be deported.

Mr. Ortiz’s attorney states that his client had presented his license and was not issued a ticket.  Instead, officers called immigration officials on them without informing them what was happening.

This incident has sparked some questions regarding police protocol. On January 25, 2017, Donald Trump issued an executive order authorizing local law enforcement agencies to deport undocumented immigrants who have criminal records. Many living in San Diego County feared that local law enforcement officers would be called to enforce federal immigration law even though San Diego County Sheriff’s Department (SDPO) has already stated they will not be stopping and arresting people based on immigration status.

The SDPO claims that in this case, deputies saw the low-riding truck in Mission Bay, a familiar spot for traffickers to unload drugs that will then get picked up by other cars, so this was a narcotics and therefore, a criminal case.

Do You Have to Provide ID? How Long can You be Detained?

Immigration and criminal law interactions are getting more heated and confusing than ever.  Being in the country without documentation is currently not a criminal act that California police departments are actively enforcing. Police may not arrest someone soley for refusing to show ID, as long as the request for ID is not reasonably related to the scope of the stop. However, what is “reasonably related” has never been clearly defined. For example, if you were pulled over for a traffic violation, then police have the right to ask for your ID since your right to drive is related to having a driver’s license/ID.

How long police can detain someone without formal charges has also not been clearly defined. The litmus test is typically “as long as it reasonably takes to conduct the investigation.”  However, police will argue that an hour’s wait for immigration officials is reasonable, as they cannot control the wait time. Continue reading

A young man named Juan Manuel Montes Bojorquez, 23, who may be the first “dreamer” to be deported under the Trump administration, has filed what could be the first “dreamer” lawsuit against the administration in San Diego federal court. The lawsuit demands the government release information about his case under the Freedom of Information Act (FOIA), to find out why he was deported.

Mr. Montes was deported back to Mexico after being stopped by a border officer on a bike in Calexico on February 17th. He did not have any ID on him when he was detained. It is reported that Montes was not given an opportunity to see an immigration judge or attorney, and that he was escorted across the border in Mexicali without the copies of the papers that he signed. After he was removed to Mexico, the lawsuit claims that Montes was robbed in Mexicali at knifepoint of a suitcase of clothing. He snuck back in to the U.S. the next day with his wallet, and then turned himself to CBP. He was detained once again and deported back to Mexico. Montes has been living with family in Mexico since.

According to his attorneys, Mr. Montes came to the U.S. when he was 9 years old and since 2014 has been able to legally live and work in the country under the Deferred Action for Childhood Arrivals (DACA) program. According to the Department of Homeland Security, his DACA status had expired, and an illegal entry into the U.S. and a prior conviction for theft put his status in question. Montes has a minor traffic offense and one misdemeanor offense.

It has been reported by Rolling Stone Magazine that Immigration and Customs Enforcement (ICE) has virtually stopped granting detained immigrants bond or parole, keeping them incarcerated throughout their cases unless they successfully appeal to an immigration judge.  Nationwide, there has been a noticeable drop in bond issuances by ICE. This shift has already been attributed to Trump’s January immigration enforcement executive order, which called for ICE “to ensure the detention of aliens apprehended for violations of immigration law” and to grant parole on a “case-by-case basis.”

However, immigration attorneys say ICE has clamped down even more extremely than called for in Trump’s order.  Many immigration officials are not releasing detainees at all, and punting them straight to the immigration court.  This enforcement strategy has been confirmed by attorneys in 11 states in different regions of the country.

Previously, immigrant asylum-seekers could leave detention after demonstrating fear of persecution as the initial step of their case.  ICE would then offer a bond or a release on recognizance to those who had been apprehended by immigration agents, and would grant parole to those who had requested refugee status at an official port of entry. The agency has instead begun blanket rejections of those types of cases. Immigration lawyers are now rushing to file bond requests for dozens of detainees in immigration court. However, immigrants who present themselves at the border are lawfully ineligible to appeal to a judge if ICE denies them parole.

Many worry that the bond and parole denials could be the beginning of even more widespread detention. Trump has asked Congress for the funds to open up 20,000 beds to expand immigrant detention facilities.

Immigration Bonds

Currently, only in the states of Arizona, California, Nevada, Idaho, Oregon, Washington, Montana, Alaska, and Hawaii can immigrants denied parole request bond from a judge after six months in detention. See Rodriguez et al. v. Los Angeles ICE.

Immigration Bonds

Immigration bonds refer to money paid to secure a detained foreign national’s release that serves as a guarantee to the government that, once out of detention, the bonded individual will attend all immigration court hearings. When ICE detains someone, it also sets a bond amount if the person is eligible. This eligibility is based on a risk assessment. If the immigrant can afford to pay the bond, then he or she will be released upon payment. He or she can also request an immigration judge lower the amount. The immigrant must go back to court on the date of his or her immigration hearing. Continue reading

After Trump’s Executive Order on Immigration came out, fears have been running high among immigrant and migrant communities throughout the nation. After the highly publicized deportation of an undocumented Arizona mother of two, Guadelupe Garcia,  after a routine visit with immigration officials, reports have been spreading of Immigration and Customs Enforcement (ICE) doing massive immigration sweeps throughout the southwestern U.S. and California. Garcia had a prior conviction from eight years ago for using a fake social security number.

It is reported that ICE in Los Angeles conducted a five-day operation targeting criminals and fugitives in which 160 people were arrested. The arrests took place in six counties. Of the 160 arrested, it is reported that approximately 150 had criminal histories.

The immigration sweeps are the first concerted effort by ICE under the Trump administration to arrest targeted undocumented immigrants for deportation proceedings. Immigration lawyers and advocates have reported that they are getting calls about raids of homes and businesses, and in some instances, arrests of undocumented immigrants without criminal histories. Many law enforcement agencies in California, including the LAPD have promised not to take part in the mass deportations for which Trump has called.

According to the Pew Research Center, the Los Angeles metro area is home to the second largest unauthorized immigrant population in the nation (1 million unauthorized immigrants). It follows New York City, which has 1.2 million.

Questioned by Police About Your Immigration Status?

First and foremost, everyone should be prepared in case of a criminal or immigration raid. If you have valid immigration status documents or an alien registration number (a nine digit number assigned to noncitizens), you should always carry them with you and show them to the immigration official or police officer in case you are stopped. If you are unauthorized, you should have the name and phone number of your lawyer and a friend or relative.

If you are stopped by the police or immigration officials about your status in the street, note that the law in California does not mandate that you have to show them any ID, and you have the right to remain silent. In California, they cannot arrest you without evidence that you are in the country illegally. If you are arrested or detained, you still have the right to remain silent. You should then immediately ask for your lawyer. If enforcement officials come to your door, you also have the right to ask for a warrant. You can refuse to let them in if they do not have a warrant and ask them to come back with the warrant. Continue reading

In his first week as president, Donald Trump wasted no time fulfilling his campaign promises of “building a wall” and “banning Muslims” from the United States. On Wednesday, January 25th, Trump issued his Executive Order, ordering the immediate construction of a border wall with Mexico and called for a newly expanded force to sweep up immigrants who are illegally in the country. This order would also revive programs that allow the federal government to work with local and state law enforcement agencies to arrest and detain illegal immigrants with criminal records and share information to help track and deport them. Trump then issued another Executive Order that suspended all Syrian refugee admissions for 120 days and blocked citizens of seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), refugees or otherwise, from entering the United States for 90 days.

Elected Democratic officials from all over the state did not wait to lambast Donald Trump’s orders. In a news conference in the state’s capital of Sacramento, state Democrats announced they were prepared to fight over sanctuary cities in court. They had also hired former Attorney General Eric Holder to represent them in legal battles with the White House.

Sanctuary Cities and Criminal Law

It should be noted that the entire state of California is pretty much a sanctuary city. A 2014 law passed in the state prohibits jails from holding non-citizens any longer than required by criminal law, with exceptions for violent and serious crimes. Most counties in the state also prohibit holding immigrants beyond their sentence if federal immigration agents do not have a judicial order.

Trump’s Policies

Regardless of California’s policies, Trump’s federal policies still stand to affect certain groups of undocumented immigrants. In particular, presidential administrations have prioritized the deportation of immigrants with criminal convictions. Trump’s order prioritizes anyone who has been charged with a crime, whether or not convicted. It also called on the federal administration to rely more on state and local law enforcement agencies to carry out its priorities. Given how broadly the administration has interpreted the word “criminal,” this may also include immigrants with unsubstantiated gang affiliations.

Trump has also cited in his speeches that there were two to three million “criminal aliens.” A 2015 study from the Migration Policy Institute reported there were only 820,000 undocumented immigrants with criminal convictions in the United States. Regardless of how minor your charge is, it is recommended you work with a lawyer if you are an immigrant facing criminal prosecution. Continue reading

Throughout his presidential campaign, Donald Trump has made clear that he wants to “build a wall” along the border of the U.S. and Mexico and that he wants to deport or incarcerate as many as 3 million undocumented immigrants who are criminals. As he works to implement his populist campaign, Trump will now have to contend with state and local officials in California who have resisted the federal government on immigration before and appear poised to do so again.

Top Democratic lawmakers in California are now preparing to enact legislation to protect undocumented immigrants from deportation. Some of the reforms within the legislation include providing free legal help to undocumented immigrants during deportation proceedings, offering more assistance in criminal court, and further limiting local law enforcement’s cooperation with federal immigration agents. The bills are predicted to pass, as both the chambers of California’s Legislature, as well as the governor’s office, are controlled by Democrats. Additionally the state is 40% Latino, the leaders of both chambers of the state legislature are Latino, and, the attorney general-designee, Xavier Becerra, is also Latino.

In the past, California has spent $33 million on legal assistance for immigrants. About 820,000 undocumented immigrants have been convicted of crimes, according to the Migration Policy Institute, a nonpartisan research group.

Federal Immigration Law

Immigration laws are a federal matter under the jurisdiction of the Department of Homeland Security. The agency under that department, is ICE, or Immigration and Customs Enforcement.  It is not specified in any federal statute exactly how immigration enforcement is supposed to happen, so the federal government has significant discretion to determine how immigration laws are carried out and who is targeted, given the limited resources they have (called prosecutorial discretion). In 2014 under the Obama administration, the Department of Homeland Security issued new enforcement guidelines focusing agents on immigrants who had serious criminal records or who illegally crossed the border after the start of 2014.

While it is certainly possible for one to be deported just by virtue of overstaying a VISA or entering the country illegally, your chances of being deported are much higher if you have committed a “deportable crime.” This includes:

  • Crimes of moral turpitude;
  • Aggravated felonies;
  • Firearms offenses
  • Sexual crimes;
  • Domestic Violence crimes.

IT does not matter how long you have lived in the U.S. or whether you have a dependent child who is a U.S. citizen. Likewise, it does not matter if you are a legal immigrant with a green card. Continue reading

This November, California voters will choose whether they want to legalize marijuana. California Proposition 64, the California Marijuana Legalization Initiative (also referred to as the Adult Use of Marijuana Act), will be on the state’s November 8, 2016, ballot as an initiated state statute.  

However, it is reported by the San Diego Union Tribune, that non-citizens, immigrants, legal and undocumented alike, and green-card holders may still face legal consequences for using marijuana. This includes having their citizenship blocked or getting deported and not being allowed back into the country. This is because despite potential state law being enacted, using marijuana is still illegal under federal law. This affects immigrants who are trying to attain citizenship through the federal process.

Currently, almost 13% of San Diego county residents are not U.S. citizens. This is much higher than the national average, which is 7%.    

Current California Marijuana Law

Currently, possession of marijuana for personal use only carries a maximum of six months in jail. See Ca. Health and Safety Code 11357.  Often defendants will plead down to that charge instead of pleading guilty to a charge of ‘marijuana possession for the purpose of sale,’ which carries a three-year prison sentence. See Ca. Health and Safety Code 11359. However, pleading guilty to either crime is still a deportable offense if you are a non-US citizen.

Under federal law, the federal Immigration and Nationality Act (“INA”) allows for the deportation of non-U.S. citizens if they have violated the Controlled Substances Act.  See INA § 237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i). This is why it is extremely important for all non-citizens facing criminal charges to hire an attorney who can strategize the best defenses for his or her specific situation.

Back in 2015, Assemblywoman Susan Eggman proposed Assembly Bill (A.B.) 1351, which would allow immigrants facing minor drug offenses to enter a drug diversion program in lieu of the standard criminal process. It would have made it so that immigrant defendants with no previous history of drug crimes would be allowed to enter a drug treatment program and undergo drug counseling before they enter a plea. If they successfully finish the program, drug charges are dismissed, leaving no criminal record to taint their immigration process. However, the bill has not yet been passed into law. Continue reading

Earlier this week, Immigration and Customs Enforcement (ICE) arrested 112 fugitives on the run from the law across the San Bernardino, Riverside, Los Angeles, Orange, Ventura, and Santa Barbara counties during a special operation that aimed to round up some of what the agency considered the most serious offenders. More than half of those arrested had been convicted of serious and violent offenses such as child sex crimes, weapons violations, and assault. The others had convictions for serious or multiple misdemeanors. The majority of those arrested, including 46 year old Carlos David Martin Ojeda, were also undocumented immigrants being returned back to Mexico.

Ojeda was convicted in 2014 of lewd and lascivious acts on a girl under age 14, but only served two out of the years of his sentence due to the overcrowding of the California prison system. If he does not object to his deportation when he sees an immigration judge, he may be put on a bus from the detention center back to Mexico. If he does object and asks for and is granted bail, Ojeda could remain in the U.S. for three to four more years before his case is resolved.

California’s Extradition Laws

The family of Kathryn Steinle, the woman who was gunned down and killed while walking along San Francisco Pier last year, has filed a federal wrongful death lawsuit against the city of San Francisco and other government agencies after the city re-affirmed its “sanctuary city” policy to shelter illegal aliens, including criminals, from deportation. Last July, 32-year-old Stein was walking with her father when she was shot and killed by an illegal alien, Juan Francisco Lopez-Sanchez who was under the influence of drugs. Sanchez had already been convicted of seven felonies and deported five times to Mexico at the time of the murder.

It is reported that the city, former Sheriff Ross Mirkarimi, the U.S. Bureau of Land Management (BLM), and U.S. Immigration and Customs Enforcement  (ICE) are the named parties of the lawsuit. It alleges that officials allowed Sanchez, an undocumented immigrant to repeatedly go free, obtain a gun, and kill her. It is also reported that the lawsuit focuses largely on a memorandum issued in March 2015 by ex-Sheriff Ross Mirkarimi, who prevented local authorities from communicating with ICE. The city’s Sheriff’s Department had released Sanchez without notifying immigration officials after his prior arrests and convictions.

Sanchez has been charged with murder, but it is reported that his defense attorneys will be arguing the shooting was the result of an accidental ricochet.