Removal Process for Refugees

Introduction

My interest in immigration cases started after I arrived to United States back in 2007, I came to the country with a tourist visa and when I decided to remain in the country my legalization process begun, as an immigrant I had to overcome many obstacles throughout my legalization process and I think that even now that I am a US citizen I still have some difficulties regarding assimilation processes to the American culture and the system. As an immigrant, I learned that there are different types of aliens and that the process each has to complete is different from the other ones, but either an immigrant, that choose to move to a new country, or a refugee, that was forced to leave home, have many challenges to hurdle down the legalization road. My apprehension here is about the U.S. immigration laws that are enforcing removal (deportation) procedures based on criminal records of aliens that in some cases were minimal violations to the legal system, like traffic tickets, or in some cases even without having any records on file, but these people are still being arrested by ICE and without much consideration by Immigration Courts and judges, are sentenced to start their removal procedures to go back to their countries.

Types of Immigration

An immigrant is a person that decides to move from one country to another because they are pursuing a dream, they want to improve their life conditions, continue with their education, or want to look for a better future for them and their family or in some cases just to get together with family members that are already living outside their countries, but they always have the option to go back home if they want. For immigrants the legal procedures to obtain green cards and eventually citizenship is simpler than the asylum procedures.

On the other hand, refugees are forced to move out from their countries unable or unwilling to return like immigrants, they leaving behind home because they fear to suffer serious harm or persecution and in order to get asylum they must prove that by returning to their country they will be subject to maltreatments because their race, religion, nationality, membership of a particular social group or their political opinion. The Refugee Act of 1980 on Title II, Admission to refugees, amended the Immigration and Nationality Act (INA), defining who qualifies as a refugee:

"refugee" as any person who is: (1) outside his country of nationality (or in the case of a person having no nationality, is outside any country in which he last habitually resided), and who is unable or unwilling to return to such country because of persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group; or (2) in special circumstances as the President, after congressional consultation, may specify, within the country of his nationality (or in the case of a person having no nationality, within the country in which such person is habitually residing), and who is persecuted or has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Excludes from the definition of "refugee" any person who ordered, incited, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. (S.643 - Refugee Act of 1979, n.d.)

Deportation Acts to Revoke Refugee Statuses

a. Criminal Records

New immigration laws are preventing immigrants and refugees to remain in the country based on criminal records, but some innocent immigrants (including refugees) are suffering the consequences of these new laws because they are being applied according to discretionary authority ICE officers and Immigration judges have to determined who is eligible to be removed from the country even without having any records on file or when they just had a traffic ticket that was pending and that was enough reason for officers and judges to place them onto the category of someone that has a criminal record. In my opinion, this poor judgment of adjudicate the law is affecting alien's lives that already managed to integrate and assimilate themselves and their families into this new society, culture, language, rules and system and at the same time exposing them, especially refugees, to continue being target of persecution or threaten to their lives.

Although, immigration laws that were promulgated to deport criminal aliens charged with serious felony crimes back to their country were necessary to maintain citizens' safeness, with the reform of 1996 the range of crimes charges covered even minor misdemeanor offenses. The history of reforms in the United States started from 1882 with the Chinese Exclusion Act where the list of excluded people from the US were including convicts, persons that were likely to become public charges, with dangerous contagious diseases, prostitutes, polygamists and anarchist. (McLeod, 2012, p. 116) With the Immigration Act of 1924 it was stablish that immigrants from Latin America required to pay a fee and literacy in order to enter the country. By 1929 and 1930 criminalization of unlawful entries to the country were punishable up to one year in prison (misdemeanor) and expanded provisions for illegal reentries to the US. (McLeod, 2012, p. 117)

From 1952 to 1980 immigration laws regarding exclusion and deportation contained exceptions and waiver provisions even for serious convictions. But by 1986 criminal sanctions to marriage fraud and reliance on false documentation to avoid sanctions to employers were stablished. The Anti-Drug Abuse Act of 1988 incorporated the category of aggravated felony (murder, trafficking in drugs or weapons) to deport immigrants regardless of the lawful time of permanent residence in the country, thus serious offenders were eligible for discretionary relief from deportation when seemed to harsh consequence, same which was barred by Congress on 1994 when the person was convicted of an aggravated felony and charged with five years in prison. (McLeod, 2012, pp. 118-119)

By the end of 1996 a new reform regarding integration of criminal and immigration enforcement was enacted by two Acts: the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) that dramatically expanded the list of crimes for which a person could be deported from the United States, including by expanding the definition of aggravated felony to include, among a stunning range of offenses, any crime of theft for which a sentence (even suspended) of more than a year was imposed, and virtually eliminating discretion of immigration adjudicators to waive deportation for any crime included within that definition (McLeod, 2012, p. 120). This law expansion made it even harder for immigrants that were undocumented or legally residing in the country for many years be a target for immigration agencies to arrest them and start their removal proceeding: In 1996, changes in US immigration laws made it easier to deport unauthorized (and, in some cases, authorized) immigrants with felony criminal records to their Central American countries of origin. (Kontos & Barrios, 2016, p. 147)

b. Limits on refugees and asylum seekers

The good intentions of many international laws about immigration, especially refugees, as well as some US immigration laws and the efforts of nonprofit organizations to protect human rights (immigrants/refugees) there are still not enough tools or resources to help aliens to stop their removal proceedings within immigration courts or at least to have the opportunity to reconsider their cases with the last reforms made to immigration policies of the United States.

President Trump policies are against immigrants and refugees' rights, his administration is one that does not stop bringing up restrictions for those who are looking to come to the country escaping from after natural disasters have occurred, extreme violence and civil war on their countries. Gonzalez article explains that: Under the Trump administration, America is closing its doors to refugees. US refugee camps have been steadily slashed from 110,000 a year under the Obama administration to 30,000 next year. That would be the lowest number of refugees admitted since 1980. Another article that explains how Central American people are sheltering in US churches to avoid deportation, the case of Hilda Ramirez and her son is an exception of successfully appealing a removal proceeding order to leave the country. Thus, Al Jazeera recalls that: Republican presidential hopeful Donald Trump has delivered a number of fiery speeches about immigration throughout the election season, taking a hard-line stance at times and presenting his views are more moderate at others. During a speech in Phoenix in August, Trump suggested increased deportations among the nearly 11 million undocumented people in the US. Trump said at the time he intends to deport undocumented immigrants who have committed crimes and others who have overstayed their visas - a group that all together makes up about half of the undocumented immigrants in the country, according to government statistics. (America, 2016)

Kerwin summarizes how the how the refugee protection system of the country after 9/11 has increased security measures and interdiction policies for immigrants, preventing asylum-seeker to arrive to the country, his words: The expedited removal process has expanded since 1996 to cover non-citizens that arrive at US post-of-entry, cross US land borders, or enter by sea. Access by independent observers to the initial inspection phase of this process has been limited. However, one study found that the programme summarily removed a high percentage of potential asylum-seekers. After one year of refugees' admission to the United States they must file to adjust their status to a Lawful Permanent Resident (LPR), but some of them haven't follow proceedings to adjust their status because of the expansive interpretation of the terrorism-related grounds of inadmissibility. On May 2010, the Immigration and Customs Enforcement (ICE) through memorandum stated that refugees' removal proceedings can be place only if prima facie evidence their deportation based on reasons other than failure to adjust their lawful permanent resident status. In a few words the restrictions asylum-seekers have been experiencing to fulfil their human right to escape persecution and violence and be able to relocate in one of the countries that are part of The 1951 Refugee Convention, in this case the United States, that grants such protection are: post 9/11 attacks measures, expedited removal, migrant interdiction and Haitian refugees, as well as recent legislation challenges as the proposed Birthright Citizenship Act by Trumps Administration. (Kerwin, 2012, pp. 2, 16, 18-22)

c. Recent legislation challenges: Birthright Citizenship Act

Last week news had a headline regarding the new asylum ban president Trump is trying to implement in response to the numerous Central and South American people that are walking their way to the United States. The US Today articles states on the article that The Trump administration said the president had acted with "clear legal authority" and blasted the lawsuit as defending the rights of immigrants to enter the U.S. illegally. Nonetheless is clear that the American Civil Liberties Union will try to block the new president's ban against immigrants without considering the risks these people are faced with if they are sent back to their countries. (Shesgreen, Gomez and Jansen, US Today, November 9, 2018).

Removal Proceeding

Removal and deportation proceedings are administrative proceedings meant to ascertain when someone is removable or deportable under the United States Immigration Law. Removal and deportation proceedings are heard in the Immigration Court (the Executive Office for Immigration Review - EOIR) by an immigration judge. These judges are appointed by the Attorney General and are a part of the Department of Justice. Lawyers employed at the Department of Homeland Security ("DHS"), prosecute these cases.

The word removal was substituted for deportation when the immigration laws changed after the passing of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). In the past if a person were placed in a deportation proceeding, an immigration judge would decide whether a person could be deported from the United States. In 1997, when IIRIRA took effect deportation proceedings were replaced by removal proceedings. However, any cases commenced before IIRIRA's effective date continues to be processed as a deportation cases, using the laws in place before IIRIRA.

The Notice to Appear (NTA) Charging document (Similar to a summons in civil court). Name, address, country where you from, how you enter to the US and when, type of Visa (Tourist, faience, over land/border point), if you committed a wrongdoing (Married fraud, crimes). You are removable as charge (if you don't contest the charges you could be deported). Date to Appear in Court: date, time and place of your hearing (Appear in a future date: sometimes you don't have the date in the NTA, but you must be careful to find out when is the appearance date to avoid deportation in absence/deported without your body). On the court date if you don't have a lawyer the judge would give you additional time to get a lawyer and they would give you a list of nonprofit agencies and legal aid organizations that can provide immigration services for you. (Not like criminal cases that the city provides you with lawyers if you can afford one). You can also represent yourself if you don't want to get a lawyer.

A Master Hearing: is a short, preliminary hearing on immigration matters -- the usual start to efforts to remove an immigrant from the United States. You will meet with the Judge and the government attorney to figure out how your case will proceed. On the second time that you have to appear to court, you should show up with your lawyer. (Example: you are been here for 15 years and you have 3 American children, you qualify for what is called: Cancellation of removal/10-year law and during the process you can apply for your green card; or when you receive the NTA you already got married, the lawyer can terminate/close the proceedings so you can continue with processing a marriage case).

Individual Date: Is the actual trial date (sometimes take until 2 years to schedule an individual date). The immigration judge will give both attorneys a pre-printed order form which will either order removal, or state the form of relief granted, as well as whether or not appeal rights were reserved. This form may be the client's only proof of immigration status until they receive a new I-94 or employment authorization document in the future. Appeal: 30 days to appeal Federal Court.

Voluntary departure (If you apply at the beginning of the case the judge would give you 4 months to leave, if you apply for voluntary departure after trial the judge would give you 2 months to leave).

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