U.S. immigration officials have begun to collect DNA samples from persons at the borders. Announced in October 2019, the DNA collection program is being implemented as a pilot in two locations: Detroit, Michigan and Eagle Pass, Texas. Under the new program, persons who are in immigration custody with Customs and Border Protection (CBP) may be subject to DNA testing, which may be run through criminal databases.
The biometric information will also be stored in a profile created within in a criminal database held by the FBI. The pilot programs at certain border locations will collect DNA from persons, whether or not they have any criminal history. The DNA collection will include teenagers, some U.S. citizens, and some green card holders.
Opponents of the program cite serious privacy concerns, and assert that DNA collection is being transformed from a tool for criminal investigations into intrusive “population surveillance.”
CBP states that the pilot program will remain active for 90 days. CBP will obtain DNA samples from persons between the ages of 14 and 79 crossing into Detroit, Michigan and Eagle Pass, Texas.
The program is slated to be released in five stages. With the first stage already in progress, DNA collection is stated to be collected only from individuals with criminal charges and individuals referred for prosecution. The DNA collection targets persons, however, U.S. citizens and green card holders may also be subject to DNA sample collection.
The following four phases will expand the resources necessary to allow for more borders to begin DNA sampling and expand collection efforts. The entire scope of the program has not yet been decided, but it’s possible that after the fifth stage, officials will consider dramatically expanding the scope of those subject to DNA screening at the border.
On December 18, 2019, the Trump administration proposed a regulation which includes new reasons to bar migrants from claiming asylum in the United States. The proposal will go through a public comment period before it is finalized. The new regulation would add further restrictions for migrants in addition to current policies enacted by the administration in recent years.
The proposed regulation is being described by the Justice Department and the Department of Homeland Security as a method to provide more resources to the asylum cases filled by non-criminal aliens.
Current laws prohibit migrants from obtaining asylum if they have committed serious crimes such as murder, rape, and drug trafficking. The new rules add some felonies and some less serious misdemeanors to the list of crimes that would disqualify asylum seekers. The additional disqualifying crimes include:
- a conviction for any felony under federal or state law
- alien smuggling or harboring
- illegal reentry to the United States
- a conviction for any law involving criminal street gang activity
- driving under the influence of an intoxicant
- a conviction for any law regarding domestic violence
- a finding that a person has engaged in domestic violence, even without a conviction
- false identification
- unlawful receipt of public benefits
- possession of a controlled substance or paraphernalia
While some of the additional disqualifying crimes are serious crimes, others are much less serious, such as using a false identification and driving under the influence. Some criminal acts would not even require a conviction in order to be barred from asylum, such as being found by an adjudicator of engaging in domestic violence.
In an immigration system that is already challenging, a small lapse of judgement could have life altering complications for asylum seekers attempting to enter the United States lawfully.
On October 22, 2019, the U.S. Department of Justice published a proposed rule in the Federal Register that would amend regulations to require DNA sampling from hundreds of thousands of noncitizens. Specifically, this rule would require DNA collection from “individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States.”
Legal permanent residents and other immigrants entering the country legally will not be subject to this rule. Attorney General William Barr issued the rule “with the expectation that federal authorities will gather DNA information on about 748,000 immigrants annually, including asylum-seekers presenting themselves at legal ports of entries.”
Immigrant advocates fear that this rule will have implications for U.S. family members of individuals whose fingerprints are taken. Naureen Shah, senior advocacy and policy counsel at the ACLU, said that DNA collection is “the most intimate information that you can take from someone. It is information you can use to find their family members, to know their histories. And we’re going to be taking it from people against their will.”
The Justice Department hopes to send the DNA collected from noncitizens to an FBI database that contains the DNA of individuals who have been convicted of crimes in an attempt to lead to more crimes being solved. This goal has been denounced by immigrant advocates who point to studies demonstrating that the increased flow of undocumented immigrants to the United States does not lead to a spike in crime.
This rule is subject to a 20-day comment period that is likely to see rebuke from immigrant advocates. The Trump Administration’s efforts to harm immigrants is as active as ever, and this rule is just one of the many examples of this onslaught.
Several states have begun the process of legalizing the use of marijuana. In November 2018, Michigan passed a proposal that allows marijuana to be regulated similarly to alcohol.
Possession of marijuana, however, remains a federal offense and can lead to several immigration consequences. With immigration, it is federal law that counts. Even if the conduct is permitted under state law, a noncitizen who admits to an immigration official that they have possessed marijuana may be denied entry to the United States, have their application for adjustment of status or naturalization denied, or even be found deportable. This includes possession of marijuana for medical purposes.
Noncitizens may be found inadmissible if they have been convicted of or admit having committed a violation of any law relating to a controlled substance. This includes possession of marijuana.
There is a narrow waiver for this inadmissibly ground, but only for a single offense of simple possession of 30 grams or less of marijuana, and the noncitizen must meet other strict requirements in order to qualify for this waiver.
And even a noncitizen who has been admitted to the United States, for example as a permanent resident, a visitor, or a student, may be deported for any drug-related crime, other than a single offense involving possession for personal use of 30 grams or less of marijuana.
For noncitizens, it is very important to understand the consequences of marijuana possession. Noncitizens must be careful when asked about marijuana use by an immigration official or even a doctor at a medical visa interview. As described above, merely admitting to the possession of marijuana can result in being inadmissible to the United States.
If you are inadmissible to the United States and you are applying for entry into the country, you will not be allowed into the country unless you qualify for a waiver and you are subsequently approved for that waiver. If you apply for adjustment of status and are found inadmissible, your application will be denied unless you qualify and obtain a waiver approval as well.
For naturalization applicants, it is also important to understand the consequences that marijuana possession raises. USCIS might deny the naturalization application of a permanent resident who has just one conviction for simple possession of marijuana for personal use in the last five years.
Noncitizens need to take heed when it comes to possession of marijuana. Even if you live in a state where the use of marijuana is legalized, you could still face severe immigration consequences because possession of marijuana is still a federal offense.
Immigrants who find themselves the victims of crime often deal with long-lasting physical and mental trauma. If you are an undocumented immigrant who has been the victim of a crime, you may be eligible for a U visa. The U visa is a nonimmigrant visa available to victims of certain crimes who have suffered mental or physical abuse and who help law enforcement in the investigation and/or prosecution of the crime.
In order to be eligible for a U visa, you need to have been a victim of a qualifying crime. In addition, you need to have suffered substantial physical or mental abuse as a result of being the victim. You also need to have information on the criminal act and have been, be, or are likely to be helpful to law enforcement during the investigation and/or prosecution. If you are under the age of 16, or if you have a disability that affects your ability to contribute to the case, a parent, guardian, or friend who speaks on your behalf but is not part of the case can help with the investigation or prosecution on your behalf. Being eligible for the U visa also requires that the crime of which you were a victim either happened in the U.S. or violated U.S. laws. Lastly, you must be admissible to the U.S., meaning you are permitted by law to remain in the country. If you are inadmissible, there is a waiver that you can apply for with the help of an immigration attorney at the same time you apply for the U visa.
If you meet the requirements described above, you can apply for the U visa both inside and outside of the U.S. Many people apply for the U visa, but only 10,000 people are allowed to receive it each year. If 10,000 people receive their U visas before the year is over, USCIS will place the remaining applicants on a wait list for the next year.
As a result of the limited amount of U visas available and the high number of applicants, there is a large backlog of cases. After filing a U visa application, it currently takes about 4 years or longer to hear if you have even made the waitlist. If you make the waitlist, you may have to wait several more years to finally receive your U visa.
There are also certain risks that U visa applicants face in light of this current administration. In the past, U visa applicants were rarely detained by Immigration and Customs Enforcement (ICE), and if you were denied the U visa, you were usually not at risk of deportation. However, since the 2016 election, this has been changing rapidly.
There have been incidents of ICE detaining immigrants that they knew were victims of crime before the immigrants even had the chance to apply for a U visa. Moreover, by applying for a U visa, immigrants are informing the U.S. government of their unlawful presence in the country. In April of 2018, ICE reported that around 122,000 U visa applications were pending. All of these people are at risk for being placed in deportation proceedings. If your application is pending and you are in proceedings, it is at the discretion of the immigration judge to decide whether or not he or she will delay your removal proceedings while the U visa application is pending. Also, if you are not put into proceedings while your application is pending, you will likely be placed in proceedings if your application is denied. This was rare in the past, but with the current administration, more and more denied applicants are being placed in removal proceedings. If you are wondering whether applying for the U visa is worth the risk, contact an immigration attorney. The attorney will review your case and advise you in the right direction.
If an immigrant is successful in obtaining a U visa, there are many benefits. First, if you are the victim of a crime applying for a U visa, you can petition for some of your family members to get U visas as well. If you are under 21 years old and have a U visa, you can petition for your spouse, children, parents, and single siblings who are under 18. If you are at least 21 years old, you can petition for your spouse and children. Second, having a U visa is beneficial because it gives you and the family members you petition for the authorization to work in the U.S. If you are put on the waiting list due to the 10,000 visa per year cap, you will be able to apply for your work authorization while you wait for your visa to become available. The third reason having a U visa is an option worth considering is that after you hold your U visa for at least three years, you may become eligible to apply for a green card.
Contact our office if you have been a victim of a crime and want to know if you qualify for the U visa. If you qualify, then our attorneys will work with you to prepare the application to show the U.S. government that you deserve a U visa.
A recent decision by the U.S. Supreme Court makes it easier for the U.S. government to arrest and detain without bond noncitizens who have been convicted of certain crimes.
The statute that was the focus of the Supreme Court’s decision in Nielsen v. Preap is Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Section 1226(c). The statute states that the federal government “shall take into custody” a noncitizen who has been convicted of certain crimes “when … released.”
Many U.S. district courts around the country, including the federal district court in Detroit, interpreted the “when … released” language to mean that U.S. officials needed to arrest and detain a noncitizen when he or she is released from custody as a result of the criminal conviction, or at least shortly after release from criminal custody. If there was a significant gap in time between the release of the noncitizen from criminal custody and the federal government’s arrest of the noncitizen, many federal district courts ordered the federal government to release the noncitizen, because of the government’s failure to arrest and detain the noncitizen “when … released.”
But the U.S. Supreme Court, by a 5-4 decision, concluded that the federal government may arrest and detain a noncitizen in this situation at any time, including years or even decades after release from criminal custody.
In dissent, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote that Congress “did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.”
Unfortunately, the Supreme Court’s 5-4 decision clears the way for the federal government to detain certain noncitizens without providing them the possibility of a bond hearing.
The Michigan Court of Appeals has issued a decision that a new rule of criminal procedure announced by the U.S. Supreme Court is not retroactive, and thus only applies to current and future cases.
The U.S. Supreme Court, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), ruled that a criminal defense attorney must advise a defendant whether or not a guilty plea or a no-contest plea will have adverse consequences to the defendant’s immigration status.
In the Michigan case, People of Michigan v. Isaac Alvarez Gomez, the defendant is a permanent resident who pleaded no contest to possession with intent to deliver marijuana. Four years later, the Department of Homeland Security initiated removal proceedings against the defendant.
After the U.S. Supreme Court issued the Padilla decision, the defendant in the Michigan case requested that his no-contest plea and his conviction be withdrawn, because his criminal defense attorney did not inform him of the immigration consequences of his plea.
The Michigan Court of Appeals ruled that Padilla does not apply to convictions that occurred prior to the Padilla ruling on March 31, 2010.
This case or other similar cases in Michigan might be appealed to the Michigan Supreme Court.
Access the decision here: People of Michigan v. Isaac Alvarez Gomez
The Board of Immigration Appeals (BIA) recently issued a ruling regarding a permanent resident in removal proceedings who had been convicted of possession of marijuana with intent to distribute under a state law. Although the state law conviction was a misdemeanor, the U.S. government charged him with having committed an aggravated felony under federal law.
At issue in the case is whether the respondent qualifies under a federal exception to the aggravated felony determination if the crime involved a small amount of marijuana for no remuneration, or payment.
The BIA ruled that the respondent must show that he qualifies for the exception, and that he may present evidence outside of the record of conviction to establish that the crime involved a small amount of marijuana and no payment. Examples of such evidence could include police reports and crime lab reports.
Although the BIA did not rule specifically on the quantity of marijuana that would qualify as a “small amount,” the Board indicated that 30 grams or less could generally be considered as a “useful guidepost in determining whether an amount is ‘small.'”
Access the decision here: Matter of Wilmer Rodrigo CASTRO RODRIGUEZ, Respondent