Understanding Immigration: Part I

Ten Immigration Facts Every Attorney Should Know

By Linda A. Brandmiller

Immigration is a hot topic these days. It is politically charged. and it is very misunderstood. Importantly, it is a topic that affects all practice areas. Although immigration laws, rules, policies, and practices are always in flux, there is some basic information that every lawyer should understand about immigration and the immigrant community.

First, a word about words: Words matter, and framing the immigration issue is important. Although the term “alien” is the technical term in the federal immigration code, the term “illegal alien” is NOT, and it is nearly always deliberately negative in contemporary use. The term “alien” is defined in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(3)) as any person not a citizen or national of the United States. This term may include a stateless person and is synonymous with “noncitizen” and “foreign national,” both of which are appropriate descriptions for this immigrant population.

A person is not illegal—an ACT is illegal. You might cross the street outside of a crosswalk, but that does not make you “an illegal jay walker.” In fact, it is not a crime to be in the country without permission—it is a civil infraction. Therefore, it is incorrect as well as inflammatory to use the terms “illegal alien” or “illegals” since these derogatory descriptions are meant to further marginalize the immigrant population. Terms such as “undocumented” or “here without permission” may also be used to describe someone in the United States without legal status. We all owe a duty to correct anyone using the term “illegal” to describe a person, just as we would correct anyone using any racial, ethnic, or offensive slur.

With those preliminary matters explained, let’s get to ten immigration facts every attorney should know:

10: Generally, you have to be connected to someone to obtain legal status.

The two basic groups are an immediate family member with legal status (parent, spouse, U.S. citizen sibling, or U.S. citizen child over the age of 21) or an employer with a specialized need. These are the people who may file a petition for an immigrant. Once a petition is filed, the immigrant is generally considered to be “in line.”1 This “line” however, is dictated by the relationship to the citizen/resident, as well as by country quotas that, in large part, have not been updated since the Immigration Act of 1924 (also called the Johnson-Reed Act), which prevented immigration from Asia and set quotas on the number of immigrants from Eastern and Southern Europe. To fully comprehend how we got to where we are with the immigration debate, a review of this Act is mandatory reading. The monthly Department of State visa bulletin advises the petitioner and the immigrant which applications are being adjudicated that month from each country, with some applications having more than a twenty-year wait. Even then, for most immigrants, there is no one with legal status available to petition them, and they have no specialized job skills. Therefore, there is never any “line” for them to get into.

9: Marrying a United States citizen does not automatically grant legal status.

An immigrant application for an immediate family member is very complicated and can take years to get approved. Additionally, the history of the immigrant is cumulative and is never erased. Therefore, all entries (and attempted entries), exits, immigration problems, and criminal charges (even those occurring when the immigrant is/was a juvenile) affect this process and the outcome. If the immigrant’s last entry into the United States was without permission, he or she must leave the country (unless the petitioner qualifies under prior amnesty laws that ended in April 2001 or has a military history) in order to finish his or her application through consular processing. This, however, is complicated by the fact that if the immigrant is over the age of eighteen, he or she will automatically receive a penalty of three, ten, or even twenty years for the time spent in the United States without permission and if there is a complicated immigration history.2 Depending on individual circumstances, an immigrant may apply for a waiver, but he or she still must leave the country to complete the application process. This is what the Biden Administration hoped to address in announcing the promotion of unity and stability of families (Keeping Families Together) in June 2024. An immigrant married to a U.S. citizen on June 17, present in the country for at least ten years, and with no serious criminal history could apply to remain in the United States while completing his or her application to gain residency. That program is currently in the courts as a result of Texas v. Department of Homeland Security, Case Number 24-cv-306, which administratively stayed the Department of Homeland Security from granting parole in place under Keeping Families Together.

8: Immigrant victims may qualify for legal status.

Spouses or children of U.S. citizens or residents who suffer from family violence may qualify to “self-petition” and achieve legal status. These include same-sex marriages and common law marriages, and the victim may qualify for two years after divorce or death of the abuser. For family law practitioners, a reference to family violence in a divorce decree or a suit affecting the parent child relationship involving an immigrant may provide important documentation to assist the immigrant in getting legal status as a result of the abuse. An immigrant victim of serious crime in the U.S. who assists law enforcement in the investigation or prosecution of the crime may also qualify for legal status through a U visa. A law enforcement certification is required to apply for this relief and may be signed by a federal, state, or local law enforcement officer; prosecutors; judges; family protective services; the Equal Employment Opportunity Commission; the Department of Labor; and other investigative agencies. Note: Even indirect victims of crime in the U.S. may qualify for a U visa, so an undocumented parent of a U.S. citizen/resident child who suffered victimization in the U.S. may qualify for legal status.3 Victims of human trafficking in the U.S. also may qualify for legal status through a T visa. It is important to point out that although smuggling and trafficking are not the same, it is possible for a smuggling case to turn into a human trafficking case based on circumstances such as holding the immigrant hostage, keeping his or her passport or other documents, forcing him or her to work while paying for room and board, etc.4

7: The system is not always fair or logical.

Many things influence individual immigration cases, including marital status, criminal history, and changes in country conditions or family circumstances, as well as changes in law and policy, judges, and U.S. Immigration and Customs Enforcement. For example, it is possible for siblings in the same family to have mixed immigration status depending on the year they were born and the law of citizenship at the time. Immigration is further complicated by the Circuit cases that affect the immigrants in their region. For example, New York and California have much more favorable immigration court outcomes than Texas, which is in the conservative Fifth Circuit. Immigration law can also be retroactive, a concept foreign to most practitioners. In 1996, for example, Congress radically expanded which crimes made an immigrant eligible for deportation, and Congress made these changes retroactive!

6: An immigrant may be a United States citizen and not even know it.

U.S. citizenship can either be acquired (at birth) or derived (on a date). Under certain circumstances, children may acquire U.S. citizenship from their parents, even if they were born abroad. These citizenship rules have changed many times over the years and are dependent upon which parent has legal status, whether the parents were married at the time the child was born, and the length of time the parent lived in the U.S. prior to the child’s birth. Practice pointer for criminal attorneys— do not automatically presume that your client who says he or she has no legal status is not a U.S. citizen. It is possible, and it can be rewarding for an immigration practitioner to find a “hidden U.S. citizen” and meet the necessary requirements to prove legal status.

5: If a child (under age twenty-one in the federal code) is abused/abandoned/neglected

If a child (under age twenty-one in the federal code) is abused/abandoned/neglected (even in his or her home country) and is unable to reunify with at least one parent, a “suit affecting the parent-child relationship” state court order from a judge can be used for the child to self-petition (the same as the Violence Against Women Act) in order to obtain legal status.5 Practice pointer for family lawyers—never do an adoption for an undocumented child before checking with an immigration lawyer. While such an adoption is legal, it is nearly impossible for an adoptive parent to “give” that child his or her legal status, and the rules are very specific involving the Hague Convention and other complicated requirements that must be met prior to the child’s entering the U.S.6

4: A lawful permanent resident, or LPR, can be deported.

Once eligible, all LPRs need to apply for citizenship as soon as they qualify. Although LPRs are in the U.S. with permission, they may still be deportable or not allowed to return to the U.S. after a trip abroad, and they do not have all of the constitutional protections of a U.S. citizen. In what can only be considered one of the most tragic repercussions of our failed immigration system, tens of thousands of U.S. military veterans who have served our country, but who were born outside the U.S., have been deported after suffering posttraumatic stress disorder and having drug or criminal complications in their history.

3: Years in the United States does not equal legal status.

There is no affirmative application for immigrants to submit because they have been in the U.S. a specific number of years. If immigrants find themselves in deportation proceedings before a judge in Immigration Court, they may qualify for cancellation of removal if they have been in the U.S. no less than ten years, can show good moral character, have not been convicted of a serious crime, and establish that hardship to a U.S. citizen or resident family member would result from their removal.7

2: Even undocumented immigrants have rights.

Under HB 1403, otherwise known as the Texas Dream Act, undocumented immigrant students qualify for in-state tuition if they resided in Texas for at least three years before graduating from high school. Texas was the first state to pass a Dream Act in 2001, and eighteen states have since passed similar common-sense measures. Immigrants are also afforded equal protection and equal pay under the law, and they have some constitutional protections such the right to legal counsel and the right against unreasonable search and seizure.8

1: What our client does not tell us may significantly affect his or her case.

While this is true in all areas of practice, it is most concerning when dealing with immigration issues, since partial or wrong information can result in life-long penalties, including deportation. When dealing with the undocumented immigrant, it is important for lawyers to know that the immigrant’s interactions with us may be influenced by language, culture, embarrassment, and fear. Even though it is a sensitive issue, it is important to know the immigration status of a client because of the many options available. When in doubt, contact an established immigration attorney. The San Antonio Bar Association Referral list is a great place to start.

Bonus—Possible ways to prepare for “reform.”

Undocumented immigrants should not leave the country. They need to keep all receipts and pay taxes (regardless of immigration status, they get a free individual taxpayer identification number from the IRS to submit their taxes) in order to document time in the U.S. and good moral character. They need to learn to speak English and avoid crime. If there is someone in the family who can petition them, it should be done now, before possible additional restrictions to family-based immigration are enacted 9

Linda A. Brandmiller is an Immigration Attorney in San Antonio. She has served on the SABA Publications Committee and the Editorial Board for San Antonio Lawyer for decades.

ENDNOTES

1 The Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

2 U.S. Citizenship and Immigration Servs., Unlawful Presence and Bars to Admissibility, https://www.uscis.gov/legal-resour ces/unlawfulpresence-and-bars-admissibility.

3 U.S. Dep’t of Homeland Security, U Visa Immigration Relief for Victims of Certain Crimes: An Overview for Law Enforcement, (Feb. 2017) available at https://www.dhs.gov/sites/default/ files/2021-12/U-Visa-Immigration-Relief-forVictims-of-Certain-Crimes.pdf.

4 U.S. Dep’t of State, U.S. Laws on Trafficking in Persons, available at https://www.state.gov/j/tip/laws/.

5 U.S. Citizenship and Immigration Servs., Special Immigrant Juveniles, https://www.uscis. gov/green-card/sij.

6 U.S. Citizenship and Immigration Servs., Adoption, https://www.uscis.gov/adoption

7 U.S. Citizenship and Immigration Servs., INA: Act 240A – Cancellation of Removal; Adjustment of Status, https://www.uscis.gov/ilink/docView/ SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-06349.html

8 American Civil Liberties Union, Know Your Rights: Immigrants’ Rights, available at https:// www.aclu.org/know-your-rights/immigrantsrights.

9 Internal Rev. Serv., Individual Taxpayer Identification Number, available at https://www.irs.gov/ individuals/ individual-taxpayer-identificationnumber