Articles Posted in Immigration

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In response to U.S. Immigration and Customs Enforcement (ICE) officials serving subpoenas, the San Diego County Sheriff’s Department will comply with federal court orders to provide migrant-arrest data. The state of California’s sanctuary state legislation has been fighting to shield this information from going into the hands of ICE. The announcement was made by the Sheriff’s office on Thursday, February 20.

In specific, ICE wanted information on four recent cases in which Mexican nationals who are not authorized to be in the country were arrested. Since California became a sanctuary state ICE has not acted with such force. This is the first time the agency has taken such a proactive and bold move in the state. 

California authorities were not cooperating with federal immigration policy or federal authorities due to the passage of Senate Bill 54 in 2017. SB 54 prevented local law enforcement agencies in California from complying with and enforcing immigration law. According to the sheriff’s department, the change in approach came about because the authorities in the state were “obligated to comply with lawfully issued subpoenas.”

Prior to the subpoenas, the U.S. Department of Homeland Security was simply asking for information from the sheriff’s department. San Diego County authorities were not compelled to provide USDHS with that information. The subpoenas changed everything as a federal authority is now forcing authorities in San Diego County to provide the records requested. If the sheriff’s department fails to provide the requested documents they can be punished by contempt of federal court.

The subpoenas are only asking for the information on the suspects. They are not requesting that the individuals in question be transferred to the federal government. ICE maintains that most of the law enforcement officials across the country provide them with information on those arrested who are not in the country legally without any issue. California’s sanctuary policies have made it very difficult for ICE to do their job.

Who are the Four Cases?

The four cases about which ICE seeks to obtain information from San Diego authorities include:

  • A 40-year-old male arrested by the San Diego Police Department for sexual abuse on children under the age of 14. This man also has two DUI convictions and has been deported back to Mexico 11 times. He remains in the US in the county jail.
  • A 42-year-old male arrested for robbery. He also was convicted of methamphetamine possession in 2013. After being granted voluntary departure, the man refused to leave the country. Due to sanctuary laws in the state, he was not held in custody but was instead released into the general population.
  • A 31-year-old male arrested for battery of his spouse and false imprisonment. He also had a prior conviction for possessing false government identification. Deported three times, he was released in the state.
  • A 28-year-old male arrested for assault with great bodily injury, child cruelty, and battery of his spouse. Additionally, he was previously arrested for spousal battery and has been repeatedly deported. He remains in custody.

Similar to the way that ICE is acting in California, similar subpoenas were issued in Connecticut, Denver, and New York. Failure to comply will result in immigration officers seeking a U.S. District Court Order requiring compliance. Continue reading

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The United States is the third most populous country in the world behind India and China. The U.S. has been adding about 1 million immigrants annually since 1990. California is the most populous state in the Union. Not surprisingly, many immigrants make California home. California, New York, and Florida account for 60% of the foreign-born population who have immigrated to the U.S.

According to the FBI, violent and property crime has been steadily declining. In 2014, more offenders were arrested for drug crimes than property crimes and violent crimes. Researchers led by Robert Adelman at the State University of New York at Buffalo compared immigration rates with crime rates for 200 metropolitan areas over the last several decades. In 136 metro areas, including San Diego, almost 70% of the immigration population increased between 1980 and 2016 while crime stayed stable or fell.

Immigration Law

A lawful permanent resident is deportable if he or she is convicted of an aggravated felony or a crime involving moral turpitude.

What crimes make you deportable?

Aggravated felonies include murder, drug trafficking (possession and intent to distribute), money laundering (over $10k), trafficking in firearms or explosives, and crimes of violence with a sentence of at least a year.

What is a crime of moral turpitude?

Any crime that involves an intent to commit fraud, theft, or inflict bodily harm qualifies as a crime of moral turpitude.

Seek Legal Advice From an Immigration and Criminal Law Attorney

Discuss your criminal charges with your criminal attorney and an immigration attorney before pleading guilty to discuss what will happen to your immigration status once you are convicted of a crime. There are two ways criminal convictions can affect immigration status – inadmissibility and removability. Inadmissibility applies to people seeking admission to US – a criminal conviction can be used as a basis to allow the person to enter the U.S. from abroad. Removability applies to individuals in the U.S. legally. The criminal conviction makes the individual deportable or removable after entry.

A guilty plea or conviction after a trial for crime of moral turpitude or felony automatically triggers commencement of removal proceedings and forecloses relief from deportation known as cancellation of removal in many cases. It is really important to discuss the consequences to your immigration status if you plead guilty to a crime in California. Continue reading

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As Attorney General Jeff Sessions prepares to sue the state of California over its so-called “sanctuary state” policies, which prevent local authorities from complying with some requests by federal law enforcement agents, research suggests that crime and immigration may not be correlated. In fact, research shows that immigrants may commit fewer crimes overall.  While crime rates in California remain low, some types of crime – notably, violent crime – have begun to see an upswing in recent years.

Attorney General Sessions, along with President Trump’s administration, have routinely linked crime with immigration, especially unlawful immigration. According to President Trump, “Many aliens who illegally enter the United States… present a significant threat to national security and public safety.” As California moves to protect its residents living in the state without proper documentation, its politicians disagree with the President that illegal immigrants are more likely to cause crime or commit crimes.

In the debate between the President and the country’s most populous state, evidence appears to back California’s position. In an analysis by the San Diego Union-Tribune, the results of three studies showed that immigrants committed less crime. According to one study, which analyzed incarceration demographics in 1980, 1990, and 2000, native-born individuals are anywhere from two to five times more likely to become incarcerated than immigrants. Speculating about the causes, the conservative-leaning CATO Institute said the severity of punishments, including likely deportation for minor crimes, may be the reason for the lower crime rate among immigrants.

California, a state flush with immigrants, is currently enjoying a historically low crime rate. However, violent crime is increasing throughout the state – a full 3.7% in just the last year, according to the newspaper. At 444 instances of violent crime per every 100,000 California residents, this is still a marginally low number – and a far cry from the rate of 1,104 violent crimes per 100,000 residents seen in the state when crime peaked in 1992. Some critics have retorted that the low crime rate is more likely caused by crime that increasingly goes unreported or criminal justice reform, which decriminalizes some types of formerly criminal behavior.

In contrast to the violent crime rate, California’s property crime rate fell roughly 3% last year.  San Diego did not mirror the state’s crime trend with both the violent crime rate and property crime rate both dropping last year. Only Los Angeles County and Kern County saw an increase in both crime rates.

As further evidence that immigration does not cause an uptick in crime, the San Diego Union-Tribune cites the relative safety of border cities. If immigrants caused more crime, then cities with more immigrants, such as those on the border, should have higher crime rates. According to the newspaper, the opposite is true. Border cities are generally safer – both San Diego and El Paso, Texas are some of the safest cities in the country. Continue reading

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In a remarkable story reported by the Voice of San Diego, neighbors reportedly called the police on a home in Chula Vista 53 times before Border Patrol and the San Diego County Sheriff’s department stumbled upon a human smuggling ring. The city had been getting reports for over five years and still failed to uncover the ring.

Back in November of last year, police pulled over a vehicle for a taillight infraction, without suspecting that anyone involved was guilty of other crimes. Panicked, the passenger took off. The chase led them directly to a home where police and border patrol responded to a request for backup. They happened upon a human smuggling event taking place right in the driveway.

Police records show that 53 calls have been made on that house. The neighbors have reported everything from grand theft, assault, child abuse, and domestic violence. The Police Department says they did not have any indication a human smuggling ring had been operating throughout that time, which is why nothing was done about it the first 53 times. Both Border Patrol and the Police Department ended up making 12 arrests that day, most of which were undocumented immigrants. Nine were taken by Border Patrol. Three of them face alien smuggling charges, while the other six are being held in federal custody as material witnesses in the smuggling case.

However not everyone is convinced that it was sheer chance. Ginger Jacobs, an immigration attorney, said she is not familiar with this incident but has seen other cases in which immigration officials used traffic violations to stop and detain undocumented immigrants. Jacobs said it is not uncommon for Border Patrol to look for people as part of an immigration sting by looking for their cars. The two agencies have flatly rejected that they were looking for a reason to pull the suspect over.

Immigration Pretext Traffic Stops

Traffic stops motivated by immigration status seemed to have surge since Trump took office, all the way from California to states like Georgia. In fact, the Supreme Court has already partially upheld an Arizona law requiring police to make reasonable attempts to determine an individual’s immigration status if there was reasonable suspicion s/he was unlawfully present in the U.S. See Arizona v. U.S. 132 S. Ct. 2492 (2012). The police can currently pull you over for almost anything they deem legitimate (ie. tinted windows, texting while driving, etc.). While local police do not have jurisdiction to enforce immigration status, they can detain you long enough to call ICE or border patrol over to investigate you further. Continue reading

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In the current political environment, it is no surprise that immigrants seem to be targeted more and more, and the border patrol is out in full force. Just a few months ago, a couple was detained by U.S. Border Patrol after a routine traffic stop. People usually think that Border Patrol can only be found in areas closest to the U.S.-Mexico border, but that is actually only a fraction of their enforcement efforts.   

What is Border Patrol Jurisdiction?

Border Patrol agents are sworn federal agents capable of enforcing the law in all 50 states and all U.S. territories. Generally, agents can operate within 100 miles from each international border.  This pretty much covers the entirety of San Diego County. Under certain conditions, they can also go beyond that distance. They are allowed to make arrests or question anyone potentially violating immigration law, but they do not issue things like speeding tickets. However, traffic violations such as a broken taillight or speeding can be used as a pretext to stop you to question you further.   

Where can Border Patrol Stop You?

Border Patrol agents are allowed to set up checkpoints even in areas not in the immediate vicinity of the border. They can stop drivers to question the occupants of a car, and even request proof of immigration status. They are also allowed to station themselves along highways and roads to be on the lookout for people violating potential immigration laws or committing crimes.

They are allowed to stop drivers under the “reasonable suspicion” standard. That is, Border Patrol has to have more than a hunch that a crime or immigration violation has been or will be committed. This is a lower standard than the “probable cause” standard, which means there is concrete evidence to indicate a crime has been/is being committed.

These standards get murky, since stopping drivers based solely on the color of their skin is considered racial profiling. However, border patrol is allowed to consider race or nationality while deciding to stop and question people, as long as agents can point to indications of criminal activity.

In this political environment, it is recommended you have the name and number of an immigrant rights lawyer ready in case you get stopped by law enforcement officials.    Continue reading

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A couple in San Diego, Carlos Nieblas-Ortiz and Martha Valenzuela-Luna, were reportedly stopped by two deputies in Mission Valley for a cracked windshield. They had their two children with them, one of whom is currently a DACA recipient. Once they were stopped, they were turned over to federal immigration officials. Nieblas-Ortiz said deputies never asked them for their immigration status, and did not issue a citation, but they were prevented from leaving.  Instead, deputies called U.S. Border Patrol, and the family was forced to wait over an hour.  Nieblas-Ortiz was released on bail, but he has told Telemundo 20 he is still not sure about whether they will be deported.

Mr. Ortiz’s attorney states that his client had presented his license and was not issued a ticket.  Instead, officers called immigration officials on them without informing them what was happening.

This incident has sparked some questions regarding police protocol. On January 25, 2017, Donald Trump issued an executive order authorizing local law enforcement agencies to deport undocumented immigrants who have criminal records. Many living in San Diego County feared that local law enforcement officers would be called to enforce federal immigration law even though San Diego County Sheriff’s Department (SDPO) has already stated they will not be stopping and arresting people based on immigration status.

The SDPO claims that in this case, deputies saw the low-riding truck in Mission Bay, a familiar spot for traffickers to unload drugs that will then get picked up by other cars, so this was a narcotics and therefore, a criminal case.

Do You Have to Provide ID? How Long can You be Detained?

Immigration and criminal law interactions are getting more heated and confusing than ever.  Being in the country without documentation is currently not a criminal act that California police departments are actively enforcing. Police may not arrest someone soley for refusing to show ID, as long as the request for ID is not reasonably related to the scope of the stop. However, what is “reasonably related” has never been clearly defined. For example, if you were pulled over for a traffic violation, then police have the right to ask for your ID since your right to drive is related to having a driver’s license/ID.

How long police can detain someone without formal charges has also not been clearly defined. The litmus test is typically “as long as it reasonably takes to conduct the investigation.”  However, police will argue that an hour’s wait for immigration officials is reasonable, as they cannot control the wait time. Continue reading

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A young man named Juan Manuel Montes Bojorquez, 23, who may be the first “dreamer” to be deported under the Trump administration, has filed what could be the first “dreamer” lawsuit against the administration in San Diego federal court. The lawsuit demands the government release information about his case under the Freedom of Information Act (FOIA), to find out why he was deported.

Mr. Montes was deported back to Mexico after being stopped by a border officer on a bike in Calexico on February 17th. He did not have any ID on him when he was detained. It is reported that Montes was not given an opportunity to see an immigration judge or attorney, and that he was escorted across the border in Mexicali without the copies of the papers that he signed. After he was removed to Mexico, the lawsuit claims that Montes was robbed in Mexicali at knifepoint of a suitcase of clothing. He snuck back in to the U.S. the next day with his wallet, and then turned himself to CBP. He was detained once again and deported back to Mexico. Montes has been living with family in Mexico since.

According to his attorneys, Mr. Montes came to the U.S. when he was 9 years old and since 2014 has been able to legally live and work in the country under the Deferred Action for Childhood Arrivals (DACA) program. According to the Department of Homeland Security, his DACA status had expired, and an illegal entry into the U.S. and a prior conviction for theft put his status in question. Montes has a minor traffic offense and one misdemeanor offense.

Continue reading

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It has been reported by Rolling Stone Magazine that Immigration and Customs Enforcement (ICE) has virtually stopped granting detained immigrants bond or parole, keeping them incarcerated throughout their cases unless they successfully appeal to an immigration judge.  Nationwide, there has been a noticeable drop in bond issuances by ICE. This shift has already been attributed to Trump’s January immigration enforcement executive order, which called for ICE “to ensure the detention of aliens apprehended for violations of immigration law” and to grant parole on a “case-by-case basis.”

However, immigration attorneys say ICE has clamped down even more extremely than called for in Trump’s order.  Many immigration officials are not releasing detainees at all, and punting them straight to the immigration court.  This enforcement strategy has been confirmed by attorneys in 11 states in different regions of the country.

Previously, immigrant asylum-seekers could leave detention after demonstrating fear of persecution as the initial step of their case.  ICE would then offer a bond or a release on recognizance to those who had been apprehended by immigration agents, and would grant parole to those who had requested refugee status at an official port of entry. The agency has instead begun blanket rejections of those types of cases. Immigration lawyers are now rushing to file bond requests for dozens of detainees in immigration court. However, immigrants who present themselves at the border are lawfully ineligible to appeal to a judge if ICE denies them parole.

Many worry that the bond and parole denials could be the beginning of even more widespread detention. Trump has asked Congress for the funds to open up 20,000 beds to expand immigrant detention facilities.

Immigration Bonds

Currently, only in the states of Arizona, California, Nevada, Idaho, Oregon, Washington, Montana, Alaska, and Hawaii can immigrants denied parole request bond from a judge after six months in detention. See Rodriguez et al. v. Los Angeles ICE.

Immigration Bonds

Immigration bonds refer to money paid to secure a detained foreign national’s release that serves as a guarantee to the government that, once out of detention, the bonded individual will attend all immigration court hearings. When ICE detains someone, it also sets a bond amount if the person is eligible. This eligibility is based on a risk assessment. If the immigrant can afford to pay the bond, then he or she will be released upon payment. He or she can also request an immigration judge lower the amount. The immigrant must go back to court on the date of his or her immigration hearing. Continue reading

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After Trump’s Executive Order on Immigration came out, fears have been running high among immigrant and migrant communities throughout the nation. After the highly publicized deportation of an undocumented Arizona mother of two, Guadelupe Garcia,  after a routine visit with immigration officials, reports have been spreading of Immigration and Customs Enforcement (ICE) doing massive immigration sweeps throughout the southwestern U.S. and California. Garcia had a prior conviction from eight years ago for using a fake social security number.

It is reported that ICE in Los Angeles conducted a five-day operation targeting criminals and fugitives in which 160 people were arrested. The arrests took place in six counties. Of the 160 arrested, it is reported that approximately 150 had criminal histories.

The immigration sweeps are the first concerted effort by ICE under the Trump administration to arrest targeted undocumented immigrants for deportation proceedings. Immigration lawyers and advocates have reported that they are getting calls about raids of homes and businesses, and in some instances, arrests of undocumented immigrants without criminal histories. Many law enforcement agencies in California, including the LAPD have promised not to take part in the mass deportations for which Trump has called.

According to the Pew Research Center, the Los Angeles metro area is home to the second largest unauthorized immigrant population in the nation (1 million unauthorized immigrants). It follows New York City, which has 1.2 million.

Questioned by Police About Your Immigration Status?

First and foremost, everyone should be prepared in case of a criminal or immigration raid. If you have valid immigration status documents or an alien registration number (a nine digit number assigned to noncitizens), you should always carry them with you and show them to the immigration official or police officer in case you are stopped. If you are unauthorized, you should have the name and phone number of your lawyer and a friend or relative.

If you are stopped by the police or immigration officials about your status in the street, note that the law in California does not mandate that you have to show them any ID, and you have the right to remain silent. In California, they cannot arrest you without evidence that you are in the country illegally. If you are arrested or detained, you still have the right to remain silent. You should then immediately ask for your lawyer. If enforcement officials come to your door, you also have the right to ask for a warrant. You can refuse to let them in if they do not have a warrant and ask them to come back with the warrant. Continue reading

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In his first week as president, Donald Trump wasted no time fulfilling his campaign promises of “building a wall” and “banning Muslims” from the United States. On Wednesday, January 25th, Trump issued his Executive Order, ordering the immediate construction of a border wall with Mexico and called for a newly expanded force to sweep up immigrants who are illegally in the country. This order would also revive programs that allow the federal government to work with local and state law enforcement agencies to arrest and detain illegal immigrants with criminal records and share information to help track and deport them. Trump then issued another Executive Order that suspended all Syrian refugee admissions for 120 days and blocked citizens of seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), refugees or otherwise, from entering the United States for 90 days.

Elected Democratic officials from all over the state did not wait to lambast Donald Trump’s orders. In a news conference in the state’s capital of Sacramento, state Democrats announced they were prepared to fight over sanctuary cities in court. They had also hired former Attorney General Eric Holder to represent them in legal battles with the White House.

Sanctuary Cities and Criminal Law

It should be noted that the entire state of California is pretty much a sanctuary city. A 2014 law passed in the state prohibits jails from holding non-citizens any longer than required by criminal law, with exceptions for violent and serious crimes. Most counties in the state also prohibit holding immigrants beyond their sentence if federal immigration agents do not have a judicial order.

Trump’s Policies

Regardless of California’s policies, Trump’s federal policies still stand to affect certain groups of undocumented immigrants. In particular, presidential administrations have prioritized the deportation of immigrants with criminal convictions. Trump’s order prioritizes anyone who has been charged with a crime, whether or not convicted. It also called on the federal administration to rely more on state and local law enforcement agencies to carry out its priorities. Given how broadly the administration has interpreted the word “criminal,” this may also include immigrants with unsubstantiated gang affiliations.

Trump has also cited in his speeches that there were two to three million “criminal aliens.” A 2015 study from the Migration Policy Institute reported there were only 820,000 undocumented immigrants with criminal convictions in the United States. Regardless of how minor your charge is, it is recommended you work with a lawyer if you are an immigrant facing criminal prosecution. Continue reading

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