Articles Posted in Removal

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“Vague laws invite arbitrary power.” states Justice Gorsuch in his concurring opinion in Sessions v. Dimaya, finding the residual aggravated felony definition of “crime of violence” in the Immigration and Nationality Act, 101(a)(43)(F), referencing 18 U.S.C. §16,  is void for vagueness.  The decision only addresses 18 U.S.C. 16(b) portion of the definition, and holds that it is void for vagueness.

The aggravated felony definition includes a list of enumerated crimes, and includes “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment is at least 1 year.” INA Sec. 101(a)(43)(F).  Mr. Dimaya, a legal permanent resident,  had two  prior  convictions  for  first-degree  residential  burglary under California law, subjecting him to removal.  The government claimed that in committing the residential burglary offenses, he had committed an aggravated felony crime of violence.

Justice Gorsuch began with a foundational question based on Johnson v. United States, 576 U.S.__ (2015), which held that the residual clause of the Armed Career Criminal Act void for vagueness.  Citing to the late Justice Scalia’s opinion in Johnson, that the residual was  for vagueness because it “invited more unpredictability and arbitrariness” than the Constitution allows. Id., at –––– (slip op., at 6), Justice Gorsuch stated that he was “persuaded” that the “void for vagueness doctrine” serves as a “faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.” Sessions v. Dimaya, No. 15-1498, 2018 WL 1800371 (U.S. Apr. 17, 2018).

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President Trump issued an executive order entitled Enhancing Public Safety in the Interior of the United States, which includes a list of violations or acts that may make an alien a priority for removal.  The list describes aliens who are inadmissible or removable for having committed certain crimes, pose security threat, have committed fraud or have willfully misrepresented a material fact to apply for immigration benefits, arriving aliens, aliens who have entered without inspection and have been present for less than two years in the United States.

The order specifically states that the administration will treat as enforcement priority removable aliens (which includes aliens that may have overstayed, or are here unlawfully) if such aliens (a)  Have been convicted of any criminal offense; (b)  Have been charged with any criminal offense, where such charge has not been resolved; (c)  Have committed acts that constitute a chargeable criminal offense; (d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e)  Have abused any program related to receipt of public benefits; (f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The order also requires DHS to use a report from sanctuary jurisdictions that refuse to comply with a federal detainer, and to publish on a weekly basis a “list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”

The order also seeks from all federal agencies “to the extent consistent with applicable law” to ensure that their privacy policies do not cover aliens other than lawful permanent residents.  In other words, the “personally identifiable information” of aliens (other than permanent residents) that may be on this list will be not be protected.  The Office of Management and Budget (OMB) defines personally identifiable information as follows:  “information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.”

The executive order does not appear to consider DACA recipients a priority, nor people who have been in the US unlawfully for more than two years, unless they have committed a crime, engaged in fraud, abused program to received public benefits, or otherwise present security threat.  There is hope that law abiding undocumented aliens will not be considered as priority for removal now and in the future. Continue reading →

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Recently addresses in our accident blog, was the issue of DUI checkpoints that disproportionately target minority communities in Chicago’s 22 districts. Intertwined with this issue, though, is a much deeper one, which pro-immigrant activists say suggests possible collusion between Chicago Police and Immigration and Customs Enforcement (ICE). For undocumented immigrants, the impact of Chicago’s approach to selecting sobriety checkpoints locations can be described as two-fold, because not only are they targeted more frequently, but they also face harsher consequences. As immigration attorneys, we take issue with sobriety checkpoints being used as a tactic to detain and deport immigrants, rather than a means to reduce and prevent drunk driving.

Disproportionate Targeting

Crash data shows that alcohol-related incidents occur at similar rates in all communities, irrespective of racial make-up. Yet, more than 80% of DUI checkpoints are placed in minority neighborhoods. Because, undocumented immigrants often reside in these minority communities, the potential for encountering a sobriety checkpoint is far greater.

Disproportionate Penalties

Under Illinois law, driving under the influence is considered a ‘class A misdemeanor offense’. ICE, though, classifies them as a “significant misdemeanor,” which by definition, is defined as:

“an offense of domestic violence, sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence, or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more […].”  

For immigrants, simply being charged with an offense classified as a ‘significant misdemeanor’ can be devastating, regardless as to whether conviction for the crime actually occurs. Under policy guidelines “for the apprehension, detention and removal of undocumented immigrants,” issued by President Obama in November 2014, offenses categorized as “significant misdemeanors” are ranked amongst the highest priority for deportation. Consequently, undocumented immigrants charged with DUI face deportation, unless they qualify for asylum, other relief, or “there are factors indicating that the alien is not a threat to national security, border security, or public safety […].”

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