A lot of our attention in recent weeks has been focused on the Executive Order signed on January 27, 2017, regarding the ban on persons from certain countries.
For reasons not entirely clear, but probably as a result of these Executive Orders from January 25, it appears that U.S. immigration officials are increasing their activities in search of persons unlawfully in the United States.
It is also quite possible that U.S. immigration officials might be increasing efforts to locate permanent residents who have criminal convictions that might make them subject to deportation.
Before discussing the two Executive Orders signed on January 25, 2017, I want to provide the following suggestions for people to do immediately:
Permanent residents. Carry your green card with you at all times. Keep a photocopy of your green card in a safe place at home.
Lawfully present nonimmigrants (students, visitors, employees, and others whose authorization to be in the US has not expired). Carry with you at all times your EAD, I-94 card, passport with entry stamp, or other proof of lawful presence. Carry the original with you and keep a photocopy in a safe place at home.
Persons unlawfully present in the United States for more than 2 years. Keep with you at all times evidence that you have been present for at least 2 years. Such evidence might include utility bills with your name going back 2 years, pay stubs with your name going back 2 years, or other documentation going back at least 2 years. Keep a photocopy at home. Have a plan in place with your loved ones for what happens if you don’t come home one day. Do not presume you will be allowed to make a phone call.
Persons unlawfully present in the United States for less than 2 years. Have a plan in place with your loved ones for what happens if you don’t come home one day, e.g. who picks up the kids from daycare, etc. Do not presume you will be allowed to make a phone call.
On January 25, 2017, an Executive Order titled “Enhancing Public Safety in the Interior of the United States” was signed. This Executive Order (EO), among other things, makes it a priority of U.S. immigration officials to seek the removal of non-citizens who are deportable under existing immigration laws, for such things as certain criminal convictions, espionage, terrorism, misrepresentations to U.S. immigration officials.
More importantly, the EO also makes a priority for removal any persons unlawfully in the United States who:
- have been convicted of any criminal offense;
- have been charged with any criminal offense, where such charge has not been resolved;
- have committed acts that constitute a chargeable criminal offense;
- have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
- have abused any program related to receipt of public benefits;
- are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
- in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Considering all of these different priorities for enforcement, it appears that, in effect, all persons unlawfully present in the United States could be included as a priority for removal.
Also on January 25, 2017, another EO, titled “Border Security and Immigration Enforcement Improvements,” was signed. This EO discusses the construction of “the Wall” along the U.S.-Mexican border. But it also does much more. The EO:
- orders the construction of new detention facilities near the U.S.-Mexican border
- directs asylum officers and immigration judges to handle cases at those detention facilities
- directs the hire of 5,000 new Border Patrol agents
- empowers state and local law enforcement officials to “perform the functions of an immigration officer … to the extent permitted by law.”
- directs DHS to take action to apply “expedited removal” to the maximum extent permitted by statute: to any individual who has not been “admitted or paroled” who cannot prove she or he has been continuously present in the United States for 2 years.
As a result of this final point, I suggest that persons present in the United States without permission who have been in the United States for at least 2 years, carry with them documents to prove their presence in the United States for at least 2 years, as described above.
Thank you for your time.
This week, we plan to file our reply to the Government’s opposition to our petition in the Supreme Court in Esquivel-Quintana v. Lynch. For now, I would like to focus on the importance of definitions in the law.
Our client was convicted of a crime under a statute in California – California Penal Code 261.5(c) – that makes it a crime to have consensual sex between a person under age 18 and another person more than 3 years older. That conduct is perfectly legal under federal law – see 18 U.S. Code Section 2243 – and the laws of 43 states and the District of Columbia. California is one of only 7 states that makes such conduct a crime.
Here is where the importance of definitions comes in. In 1990, the U.S. Supreme Court, in a case called Taylor v. United States, declared that in order to increase a prison sentence under a federal statute for persons who re-offend, the reviewing court must work with a definition of the crime at issue that is clear and uniform throughout the country.
In Taylor, the crime at issue was burglary. The problem in that case was that each of the 50 states had their own separate definitions of what “burglary” was. Mr. Taylor was convicted of burglary under a state statute, but his prison sentence was being increased because of a federal statute. The Supreme Court ruled that reviewing courts need a clear working definition of “burglary” – a definition that the reviewing court needs to determine based on a number of sources, including federal law, the laws of the 50 states, and other sources.
In subsequent cases, the Supreme Court has held that the requirement in Taylor applies in cases involving noncitizens who have been convicted of crimes and who are subsequently charged in Immigration Court as being removable or “deportable” from the United States as a result of their criminal convictions. If a noncitizen is convicted of a crime under a state law, then the reviewing courts in the subsequent removal proceedings – Immigration Courts, the Board of Immigration Appeals (BIA), and U.S. courts of appeals – must work with a definition of the crime of conviction that is derived from the contemporary, “generic sense in which the term is now used in the criminal codes of most States,” federal law, and the Model Penal Code. Taylor v. United States, 495 U.S. 575, 598 (1990).
Since at least 2007, in a case called Gonzales v. Duenas-Alvarez, the Supreme Court has applied this requirement from Taylor to the immigration context. In subsequent cases, including as recently as June 2016, the Supreme Court has continued to require courts to determine a definition of the crime of conviction based on federal law, the laws of most states, and other factors. See, for example, the Supreme Court’s decisions in Nijhawan v. Holder, (2009), Kawashima v. Holder, (2012), and Moncrieffe v. Holder, (2013). In the Supreme Court’s most recent case citing Taylor, although the case did not directly address an immigration matter, the Supreme Court mentioned the application of Taylorto immigration cases. Mathis v. United States, (2016).
In our case, we argue that the requirement of Taylor v. United States applies. And we argue that the fact that the conduct for which our client was convicted is perfectly legal under federal law, as well as the laws of 43 states and the District of Columbia, means that under Taylor, our client’s conviction is not an “aggravated felony” under immigration law, because conduct that is perfectly legal in such a large majority of the country, and under federal law, could not meet the definition of “sexual abuse of a minor” under the requirements of Taylor.
In their brief in opposition, the Government mentioned Taylor in only one paragraph in which the Government described the Sixth Circuit’s approach to our case. The Government did not argue that Taylor does not apply.
We will be following up later this week regarding our reply to the Government’s brief in opposition in our case at the Supreme Court.
The federal government has significantly increased immigration prosecutions during the past few years, according to the Transactional Records Access Clearinghouse (TRAC), a private nonpartisan group at Syracuse University.
According to TRAC, felony immigration prosecutions in federal courts along the U.S.-Mexico border increased 259 percent from 2007 to 2010.
To read more about the TRAC reports, click here.