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Articles Posted in Immigration

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.

California recently passed a bill to protect undocumented immigrants who are the victims of crimes from being deported. California has the largest population of undocumented immigrants in the country at an estimated 2.45 million. The California Assembly passed the Immigrant Victims of Crime Equity Act, sponsored by Assembly Speaker Toni Atkins of San Diego and Senate President pro Tempore Kevin de León of Los Angeles. The bill is now headed to Governor Jerry Brown for signing. If signed by the governor, it will become state law.

S.B. 674 requires local and state law enforcement agencies to sign certifications for qualified immigrant crime victims when they have been helpful to the investigation of crimes like sexual assault and domestic violence. The certifications are prerequisites to an application for a Victim of Crime “U-Visa,” which is issued by the federal government to prevent deportation of victims of specific crimes who have been helpful to the investigation or prosecution. S.B. 674 also provides relief for victims of domestic violence. The intent of the Bill is to curb crime, since victims of crime tend to not report it or cooperate with law enforcement if they are in the country illegally. The bill is part of the sweeping Immigrants Shape California legislative package.

Under federal law, being in the country illegally is grounds for deportation. If S.B. 674 is passed, it would mean that victims of sexual crimes and domestic violence in California would not face potential deportation for reporting the crime.

As the focus on ‘border security’ has increased in the platforms of presidential candidates for the 2016 election, the federal government has also ramped up its efforts to deport immigrants who have committed crimes or pose a threat to public safety. This September, immigration authorities in Southern California arrested more than 240 people with criminal records during a four-day sting. Los Angeles County accounted for the largest number of arrests with 99, followed by Orange County at 55, San Bernardino County with 43, Riverside County with 24, Santa Barbara County with 20, and San Luis Obispo County with three. U.S. Immigration and Customs Enforcement authorities said over half of those arrested had felony convictions or multiple misdemeanor convictions. Eight out of 10 are from Mexico. Those who are not criminally prosecuted will be placed in deportation proceedings. The sting comes as the federal government butts heads with local state governments that have resisted in cooperating on immigration enforcement.

California Immigration Enforcement

California does not require state or local law enforcement officers to check the immigration status during traffic stops or similar circumstances. Additionally, California allows for in-state tuition for illegal aliens in California-funded state universities, driver’s licenses for those here illegally, and state-funded healthcare for children. Additionally, due to a statewide law passed in 2013, local law enforcement officials are prohibited from detaining immigrants for longer than necessary on minor offenses so that they can be turned over to federal officials for possible deportation. This year a bill has been introduced to allow work permits to farmworkers living in the U.S. illegally.

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