Immigration 101:
Sue Swanson
Anna Stenson
North Dakota State’s Attorneys’ Association Summer Conference
June 22, 2012- 11:00 AM- 1:00 PM
U.S Department of Homeland Security (DHS)
• USCIS- United States Citizenship and Immigration Services
• ICE – Immigration and Customs Enforcement
• CBP – Customs and Border Protection
U.S. Citizenship & Immigration Services (USCIS)
• Issues visa petitions that allow aliens to live and work in the U.S.
• Worker can be in U.S. or abroad when visa petition is approved
U.S. Customs & Border Protection (CBP)
• Reviews immigration paperwork at all U.S. Ports of Entry
• Determine whether a foreign national’s eligibility to enter the U.S.
• Airports, at the border, within 100 miles of border
U.S. Immigration & Customs Enforcement (ICE)
• Investigates as to whether someone entered into the U.S. legally and/or is in a legal
immigration status
• Detaining and removing persons inside the U.S.
U.S. Department of State (DOS)
• Issues visas and passports to foreign nationals that allow them to enter the U.S.
5) U.S. Department of Justice
• Office of Special Counsel for Immigration Related Unfair Employment
• EOIR- Executive Office of Immigration Review
6) Executive Office of Immigration Review
Immigration Court
Removal/ deportation from the United States
No right to free legal representation
Immigration judges are appointed by the Attorney General
7) Board of Immigration Appeals
• Reviews decisions made by immigration judges
8) Office of Refuge Resettlement
9) Department of Labor (DOL)
Immigration Status
• United States Citizens
Birth in the U.S.
Acquisition at Birth
Derivation of Citizenship
• Non-Citizens
• Immigrant
Conditional Permanent Resident
• Non-Immigrant
Work Visas
TPS- Temporary Protected
• Undocumented
• Overstay of visa
• Entered without authorization
United States Citizen (USC)
• By Birth: Birthright citizenship.
• Through Naturalization: Permanent resident who goes through
application process and demonstrates eligibility for citizenship.
• Acquisition: Born outside of US to United States citizen parent
or grandparent. Depends on year of birth and other qualifying
• Derivative: Many children under 18 who have their green card
who are in the physical and legal custody of a parent who
becomes a citizen derives citizenship through that parent by
operation of law.
Non-Citizens: Immigrants
• Lawful permanent residents are noncitizens that make the U.S. their
home, have authorization to work in the U.S. and have the most
stable immigration status. They may serve in the U.S. military but
they cannot vote in federal elections (or other elections unless
authorized by statute. They must follow certain guidelines when
they travel or stay outside the U.S., and DHS may still remove them
for certain reasons. Anyone with a Permanent Resident Card can
work legally in the United States.
• Family
• Immediate Relatives
• No “waiting” or numerical limits
• Spouse, parent, or minor unmarried children under age of 21 of US
• Must sponsor and prove ability to financially support them
• Priority Based
• Up to 480,000 visas per year
• Lengthy waiting list: family of lawful permanent residents, adult sons and
daughters and siblings of U.S. citizens.
Non-Citizens: Immigrants
• Employment
• “Priority” workers such as professors, researchers, high-level
managers of multinationals
• Professionals with advanced degrees
• Skilled workers in high-demand fields
• “Special Immigrants” such as clergy and religious workers
• “Investor immigrants” who will invest $500,000 to $1 million to
start or buy a US-based business that provides at least 10 full
time jobs.
Other Immigrants
• Diversity Lottery
• Up to 55,000 visas per year
• Allotted to countries that are underrepresented in other forms of
US immigration
• Applicants must be 18 or older with equivalent of high school
• Humanitarian
• Refugees
• Limit set by President with consultation by Congress (70,000- 80,000)
• Requires showing of well-founded fear of persecution on account of
race, religion, nationality, membership in particular social group, or
political opinion
• Processed through the United Nations High Commission on Refugees
Other Immigrants- continued
• Humanitarian- continued
• Asylee- a person who obtains refugee status after entering the
United States
• Special Immigrant Juvenile Status
• Some children whose parents have abandoned, neglected , or
abused them may be able to obtain lawful permanent resident status
• They need to show dependents of juvenile court or placed by court
into custody of a government or agency.
• Reunification of parents not viable. It is not in the best interest of the
child to be returned to their home country.
• Nicaraguan, Cuban, and Haitian Adjustment
• In 1997, Congress passed Nicaraguan Adjustment and Central
American Relief Act (NACARA). Allows certain non-citizens to apply
for lawful permanent resident status. Had to been in the US before a
certain date to be eligible.
Non-Citizens: Non-Immigrants
• Broken down into groups based on intent, reason person is here, length can stay here
• Students: F-1 Degree Seeking Student, M-1 Vocational Student, J-1 Exchange Student
• Work Visas: In ND will see H-2A, H-1B Specialty Visa, L-1 Intracompany Transferee,
E1/E2 Treaty Trader Visa
• Visitors: Visa Waiver, B1/B2
• TPS: Temporary Protected Status – designated countries. Examples: Haiti, El Salvador,
Honduras, Nicaragua, Somalia, Sudan, South Sudan, Syria.
• Asylees: Aliens who claim refuge to the US either at the border or after they have
already entered the US. They are eligible to apply for permanent residence after
having asylum for one year.
• Refugees: Aliens who seek refuge outside the US who are granted refugee status and
enter the US in refugee status. They are eligible to apply for lawful permanent
resident status after being in the US one year.
Non-Citizens: Undocumented
• Overstay of Visa: Alien who stays longer than their authorized
non-immigrant period of stay as dictated on their I-94 card.
• Out of Status: Alien who does not comply with their nonimmigrant visa status.
• Entered Without Authorization: Alien who enters the US
without being inspected, admitted or paroled.
How People Come to the US
• Visas
• Permission to “knock on the door” to seek entry into the US
• Visa are issued to non-immigrants and immigrants
• Issued by the U.S. Embassy/ Consulate where foreign national
was interviewed.
• Placed in “home country” passport.
• Visa does not give immigration “status” in the United States
• Just because visa is unexpired does not mean person is legally in
the United States.
• Similarly, if a visa is expired does not equate with unauthorized
presence in the United States.
United States Visa
Immigration Status in U.S.
• I-94 Card- Arrival Departure Record
• Documents lawful entry, inspection, and admission to the United
• In most instances indicates in what manner the foreign national
entered and duration of legal stay in the United States.
• B –Visa- Visitor’s visa. Many visitor’s visa may be valid for entry
into the United States for 10 years.
• However, each visitor to the United States on a B-1 visa is only
permitted to stay in the United States for 180 days or less.
• Unless otherwise granted an extension of stay or change of
immigration status, foreign national must exit the United States
before the date listed on his I-94 card.
• Should be stapled in home country passport.
I-94 Card Example
Proof of Status in the U.S.
• Student Visa holders are an exception to the rule.
• They may have a visa, which doesn’t give them status.
• They may have an I-94 card, however, it is likely stamped “D/S”
• They are permitted to be in the United States for “Duration of
• Their ability to remain in the United States is determined by their
educational institution.
• Controlled by an “I-20”
• Generally, student visa holders are not permitted to accept
employment off of campus without permission.
I-20 Example
Immigration Documentation
Authorization Card
Based on Status in
the United States
In some instances
can apply for
permission to work
while waiting for a
change of
immigration status
Immigration Documentation
Permanent Resident (Green) Card
Contains biographic information
Contains information regarding how obtained immigration status in the
United States
• Just because card expires does not mean status is terminated.
Good Moral Character Issues
• Any crime against a person with intent to harm
• Any crime against property or the Government that involves evil
• Two or more crimes where aggregate sentence was 5 years or more
• Violating any controlled substance law of the U.S., any state, or any
foreign country
• Habitual drunkenness
• Illegal gambling
• Prostitution
• Polygamy
• Lying to gain immigration benefits
• Confinement to jail, prison, or similar institution for 180 in 5 years
• Failing to complete any probation, parole, suspended sentence
• Terrorist acts
• Persecution of anyone because of race, religion, national origin,
political opinion, or social group
Naturalization Requirements
• Areas of concern for naturalization
• Living outside of the U.S. for more than 6 months since came
• Alcohol or drug problems, including Khat or illegal drugs
• Arrested, charged, or convicted of crime (traffic violations
• Were charged or convicted of domestic abuse
• Failed to pay child support
• Did not file income tax returns or owe taxes
• Male who did not register with Selective Service (18-26)
• Not being truthful on your application.
Immigration and Criminal Law
• Padilla vs. Kentucky
• Immigration Consequences of a Criminal Conviction
Crime Involving Moral Turpitude (CIMT)
Aggravated Felony for Immigration Purposes
• Mandatory detention
• Expedited Removal
• Ineligible for many forms of relief
• Forms of Relief From Deportation
Voluntary Departure
Cancellation of Removal
Adjustment of Status
Immigrants Are Subject to a
Secondary Layer of Punishment
• Deportation
• Bar to getting lawful immigration status (e.g. asylum, green
card, student or work visas)
• Loss of current immigration status
• Bar to citizenship
• Bar to relief from deportation
• Bar to returning to the US after travel abroad
• Detention (sometimes mandatory, out of state, no fixed
release date)
Padilla v. Kentucky, 130 S. Ct. 1473
• Counsel MUST advise of the specific immigration
consequences of a criminal disposition based on the client's
individual facts
• Failure to do so + prejudice is a basis to vacate the conviction
based on Ineffective Assistance of Counsel (IAC)
• Padilla applies retroactively, at least to convictions on or after
• Must advise on how to avoid being deportable/inadmissible,
avoid bars to relief from removal, and address client's "clear
and unclear" questions
Immigration Definition
of Conviction
• Under 8 USC 1101(a)(48)(A): means
• "[a] formal judgment of guilty" OR
• Where no formal finding of guilt:
• If defendant pleads guilty, nolo contendere or has admitted sufficient
facts to warrant a finding of guilty, AND
• The judge has ordered some form of punishment, penalty, or restraint
on the noncitizen's liberty.
• Youthful Offender adjudication IS NOT a conviction if analogous to a
fed'l juvenile delinquency adjudication
Immigration Definition of Conviction,
• Restraint on Liberty
Sentence to incarceration
Community Service
Req'd Classes (i.e. anger management)
Court Costs
• Strategies
Avoid guilty plea: waive trail rights to get pre-plea probation
Avoid guilty plea: Admit to Prosecutor, not Judge
Avoid guilty plea: Drug Courts as a pre-plea diversion
Plea to safe haven offense
Record of Conviction
• Charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trail judge to
which the defendant assented. Shepard v. U.S., 544 U.S. 13
• Can be used to consider whether a conviction is a deportable
offense or makes the Respondent inadmissible. Vue v. INS, 92
F.3d 696, 700 (8th Cir. 1996).
Inadmissibility, INA 212, 8 U.S.C. 1182
• Barred from getting new lawful status, admission or readmission to the US, relief from removal, or other new benefit
the gov’t grants
• Will NOT take away lawful permanent residency as long as the
alien remains in the US - it is triggered upon departure from
the US
• Hurts the undocumented person because it makes it may bar
him/her from obtaining a legal status
Deportability, INA 237, 8 U.S.C.
• Alien can lose whatever legal
status s/he has
• May be removed from the US
• Usually doesn't hurt an
undocumented person
because s/he has no status to
Plea Deals
• Consult an
immigration attorney
BEFORE entering your
client into a plea
• Safe haven offenses
• Minimize immigration
• May affect whether a conviction
is an aggravated felony for
immigration purposes
• Want to plea to 364 days or less
• Sometimes, you may need to
plead your client to less than
180 days
• Sometimes better to plea to
safe haven offense + jail time
Effects of a Conviction
• Crime Involving Moral Turpitude (CIMT)
• Aggravated felony
• Alien is subject to mandatory detention
• Ineligible for most forms of relief
• Alien who is deported and then re-enters the US illegally & is
convicted of illegal re-entry is subject to significant sentence
• Mandatory detention
• No set release date
• Can be moved to multiple detention facilities throughout the US
- affects attorney effectiveness
• Held with violent offenders
Overview of the Deportation
• Typically alien taken into custody during minor traffic stop
or via criminal conviction
• Must complete criminal proceedings first.
• Detained on immigration hold.
• Issued a Notice to Appear (NTA) - Immigration charging
• Held at Grand Forks, ND correctional facility
• Transferred to MPLS Sherburne County Jail
• Master Calendar Hearing - First Appearance before an
Immigration Judge • Individual Hearing - Immigration Trial
Deportation Court Terms
Immigration Judge (IJ)
Office of Chief Counsel (OCC) – Government Attorneys
Master Calendar Hearing (MCH) – First Appearance
Individual Hearing – Trial/Presentation of Case
Notice To Appear – Immigration Charging Document
o States the nature of proceedings and legal authority
o Lays out the facts and alleged illegal conduct
o Specifies the Charges and statutes allegedly violated
o must give address and telephone number; time and
place of hearing and consequences of failing to appear.
Deportation Court Terms, cont.
• Unlawful Presence- if an alien is present in the U.S. after
expiration of stay authorized or present in U.S. without being
o Between 180 days and one year- three year bar
o More than 1 year – ten year bar
o Triggered on leaving the U.S.
Relief From Deportation - Terms
Voluntary Departure
• Ability to leave the US and avoid an order of deportation
• Client pays for his/her cost of travel
• May avoid the "3 year bar" for unlawful presence - INA
Relief From Deportation Terms, cont.
Cancellation of Removal
• May be available to both Legal and Non-Legal Permanent
• Must meet statutory guidelines for eligibility
• Once meet statutory guidelines, judge has discretion whether
to approve/deny
• Must show "exceptional or extremely unusual hardship" to
USC/LPR spouse, parent or child
• One bite at the apple - can only granted once in a person's
Relief From Deportation Terms, cont.
• Adjustment of Status
• Deferred Enforced Departure (DED): Not a specific
immigration status; Individuals covered by DED are not
subject to removal from the United States, usually for a
designated period of time; Have right to work.
• Withholding of Removal, Asylum & Convention Against
Torture (CAT)
• Sections of the Act which waive a person's grounds for
inadmissibility or deportability
• Require a LPR/USC immediate family member - LPR/USC
spouse, parent, son/daughter, depends on the type of waiver
• The foreign national must show:
• Extreme hardship to a qualifying relative
• Exceptional or extremely unusual hardship" to a qualifying relative
• Sometimes no hardship req'd - instead is a "weighing of the equities"
• Waivers are discretionary
• Sometimes can "stack" waivers - apply for more than one at a
• Some waivers are only granted once in a person's lifetime
• We have an immigration system in this country that not only doesn't work, in
many cases it doesn't even make any sense.
Kendrick Meek
• We, as a country, have not seen a significant change in immigration policy in
nearly two decades, even though all Americans agree that current immigration
policy is outdated and malfunctioning.
Raul Grijalva
• We will never stop illegal immigration until this country has a comprehensive,
realistic immigration policy.
Ruben Hinojosa
• Going forward, as we work to strengthen our border in the interests of
homeland security, we must also recognize the economic importance of
immigration reform.
Dave Reichert
Cultural Competency
• Cultural competency skills allow us to learn, appreciate, and understand
cultural differences we bring into any interaction with another person
• Understand our own worldviews, attitudes, beliefs, and opinions
• Not just about nationality, but also ethnicity, language, religion, and other
• Not just tolerance, but shaping our behaviors to work and interact effectively
and respectfully with others
• Always a lesson in progress
Importance of Cultural
• Building trusting relationships
• Learn how to evaluate credibility
• Developing client centered case strategies and solutions
• Some common sense, awareness, and willingness to learn
new information
The Platinum Rule
“Treat others the way they wish to be treated”
• Try and put your own perspectives and beliefs
Be Aware of Generalizations &
Categorizing People into Groups
• Don’t assume anything
• Learn to understand and appreciate different
cultures, perspectives, and experiences
• Avoid jumping to conclusions or making assumptions
about individuals
• Try and avoid assumptions about other’s cultural
• Engage, listen, and experience what others have to
• Don’t assume because someone doesn’t speak English well,
that they are uneducated or not intelligent
• Example- Most Cameroonians in the US are a tiny
minority of financially connected and well educated
individuals. Many have held influential positions in their
home country
• Many immigrants know multiple languages
• Ask whether they read and write English
• Do they read and write in their native language
• What language do they feel most comfortable speaking
Don’t be Afraid to Ask…
You can plead ignorance.
Ask your client about their background, history, and heritage
How they came to the United States may affect the way they
view the legal system and their understanding
Don’t be afraid to ask clarifying questions.
It may take awhile to get a client to fully open up about very
sensitive subjects.
In family law area, ask about the marriage process, courtship,
engagement, wedding practices.
What is a “traditional” wedding in their culture?
Did they have a “religious” wedding, a “traditional” wedding, a “legal” wedding?
What is the process of divorce in their culture?
What is their concept of “marriage” and the relationship between husband and wife?
Who gets the children?
Understanding your client’s background and ideas of marital relationship may affect how they view
process. It also may make it easier to explain the US legal process and what needs to happen.
Cultural Competency
Awareness - Be aware of your personal reactions to those who are
different from you
Attitude - being aware of your cultural biases and beliefs while
also closely examining your beliefs and values about
cultural differences
Knowledge - learning about various cultural practices and learning
to identify where personal behaviors are inconsistent
with personal values and beliefs about equality
Skills - practicing behaviors, attitudes, and values that allow
effective communication
Immigration Status
• Be sensitive when asking about immigration status.
Explain your role (I don’t report to Immigration. I don’t
report to the government.)
• Realize because of complexity of immigration laws,
someone may not know what their immigration status is.
• If they “know” what their immigration status “is” they may
not fully understand what that means.
• Just because someone doesn’t have a green card or
“immigration papers” does not make them “illegal”
Different Cultural Backgrounds
Body Language- Visual Cues
• Realize we can take our visual cues for granted
• Body language, gestures, general roles,
communication, and story telling styles may vary
• Learning about gestures, client’s eye contact, tone
of voice and manner of answering questions
provides cues to client’s comfort with the
relationship and process of obtaining legal services
Different Cultural Backgrounds
• Working with clients from Muslim countries
• Not all Muslims practice the same
religious cultures
• Personal mannerisms
• Many Somalis won’t answer a direct
question, but will give a long winded
• Meeting clients on Fridays, or not
Different Greetings Across Countries
• Shaking hands
• Not touching Muslim men
• Kissing the cheek
• Placement of feet
• Eye contact and form of respect
Understanding Cultural
Misunderstandings or inaccurate descriptions by immigrant may have
grave consequences
• Negative credibility findings
• Denial of family reunification petitions
• Revocation of immigration status
• Removal from the United States
Understanding Cultural Differences Cont.
• For immigration purposes, family relationships can be very
important and have a precise legal definition for immigration
• Misrepresentation, whether intentional or not, made on
immigration applications can come back and haunt immigrants
years later
• You may need to listen more to create a trust and authentic
working relationship.
• You may need to open up about you, and share information
about yourself
• Ask about something they may be interested in
Make sure you are using the
same definition…
Words of Art – different interpretations of “English”
• Telling a refugee we want to send you to “camp” is
different than our idea of sending someone
• Slang vs. direct communication
Example- Many Bosnians in the area ask for a “passport.”
This could mean they are looking for assistance in applying
for US citizenship. OR they want assistance in applying for
a US travel document.
Ask from Different Angles
You may have to ask the same question different ways to obtain all of
the information needed.
• “Please list all of your children” Which means list your children
whether they live with you, whether they are in the United
States, and whether they are alive or dead. Also includes stepchildren and adopted children
• How many children do you have?
• How many times have you been pregnant? Was the child born
alive? When did the child die?
• Is that a child between you and your spouse?
• Does your spouse have any children from another wife, another
• Is that a child you gave birth to?
• Do you have any other children living in the US?
• Do you have any other children living back in home country?
Terminology is not Always
Quid Pro Quo
There may be certain terms or concepts that may not have
a comparable word or concept in their culture
• Many other cultures do not have terms for mental
health treatment or services
• Mental health or “crazies” are not talked about. Or has
a certain social taboo associated with it
What Information is “Vital”?
Not all cultures place the same importance on “vital
• Definition of Family members
• Other cultural systems may have a very different concept of definition
of family members
• For many Africans “siblings” may be someone who has same linage, a
“cousin” may be someone from the same tribe
• In Somalia, if you are 15 you are an adult and can get married
• Immigration has a different definition of relationships. In the refugee
process and other immigration processes you could be considered a
child if you are unmarried and under 21.
What Information is “Vital”?
• Names- in some cultures, a person may have multiple names.
The name they use depends on the context
• Tribal name
• Christian (religious) name
• Nickname/ family name
• Birthdates
• Not all countries use our calendaring system
• In many instances date record keeping is not possible.
• Some refugees “know” what their real birthday, but because of the
refugee process have been assigned a different birth date.
Tips for Working with Different
1. May initially take more time, but better client services and
understanding is likely
2. May need to make special accommodations
• Many African cultures have poor sense of time. You
may need to call and remind of appointment
3. Make it clear you are (or are not) representing them.
Reassure them you will not share information with others
(especially others in their cultural community).
More Tips . . .
4. Family issues pertaining to abuse, children, discipline, and problems in the family
may not be discussed in the presence of family members and/or non-family
members. Depending on persons present, clients may be reluctant or refuse to
open up to attorneys.
5. Some clients may be shy and ashamed of the experiences they have gone through.
They may be ashamed of the feelings they are having. It is important to be cautious
in helping them bring out their stories so that you can adequately represent them in
seeking relief.
6. Realize in many cultures the notion of attorney-client privilege is a foreign concept.
7. Try and be non-judgmental when the client describes relationships or backgrounds
that may not be commonly recognized, or accepted, in the U.S.
• Polygamy
• Adultery
• Illegitimate children
8. Do not make assumptions based on appearance.
9. Do not assume what they know and do not know.
10.Ask them to repeat back what you’ve told them, so you know they
understand and are not just trying to appease you.
11.Avoid imposing your goals and your ideas about the right outcomes.
What they “want” or “need” is likely different than what you think
they “want” and “need.”
12.If clients are signing a retainer agreement, explain to them what the
agreement means. Explain the fee arrangement and potential costs.
Make sure they understand when work begins on their case and
when work ends on their case.
13.Be aware of not only your actions, reactions, but also those around
you. How do other attorneys in your office, or other office staff
respond to clients.
Working with Refugees and
What’s the difference?
• Refugee - A person fleeing
his or her country because of
persecution or a wellfounded fear of persecution
on account of race, religious,
nationality, membership in a
particular social group, or
political opinion.
• Asylee- A person who
obtains refugee status after
entering the United States
Quick Overview of the Refugee
Refugee process is started by the United Nations High Commission on
Refugees- three pronged durable solutions framework to resolve the
plight of refugees
1. Refugees can repatriate to their home countries when
conditions allow for safe, voluntary return
2. Remain in the country to which they fled and integrate locally
3. Resettle to a third country that is willing to grant them
permanent residency.
The average refugee spends 17 years in a refugee camp before being
Admission and the INA
Admission of refugees to the US and their resettlement is
authorized by the Immigration and Nationality Act (INA) as
amended by the Refugee Act of 1980.
• Refugee Act of 1980 purposes:
• To provide uniform procedure for refugee admissions
• To authorize federal assistance to resettle refugees
and promote their self-sufficiency
• INA definition of refugee:
“a person who is outside his or her country and who is
unable or unwilling to return because of persecution or a
well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion.
World-Wide Refugee Issue
• 20.6 million people live outside country of origin
• 10.4 million refugees worldwide
• 1 million additional “persons of concern” to United
Nations High Commission on Refugees
• Not all refugees live in “camps” about 50% are
considered “urban refugees”
Hitting the “Ceiling”
• Typically the annual number of refugees that can be admitted into
the US, is known as the refugee ceiling.
• Allocation is set of these numbers by region are set by the
President after consultation with Congress at the start of each fiscal
• FY 2012- 76,000 with 73,000 allocated among regions of the world
• 3,000 unallocated reserve- use if, and when, a need develops for refugee slots
in excess of 73,000.
• FY 2012- allocation
• Africa
12,000 (Somalis, Congolese, Eritreans)
• East Asia
18,000 (Burmese)
• Europe and Central Asia
• Latin America/ Caribbean
• Near East/ South Asia
35,500 (Iraqi, Bhutanese, Iranians, Pakistanis,
Processing Refugees Overseas
Overseas processing of refugees is conducted through a system of
three priorities for admission
• Priority 1- cases involving persons facing compelling security
• Priority 2- cases involving person from specific groups of special
humanitarian concern to the US
• Priority 3- family reunification cases involving close relatives of
persons admitted as refugees or granted asylum
• On October 22, 2008, U.S. refugee program stopped accepting
applications under Priority 3 due to indications of extremely high
rates of fraud obtained by DNA testing.
Processing Refugees Overseas, Cont.
• Department of Health and Human Service’s Office of Refugee
Resettlement (HHS/ ORR) administers an initial transitional
assistance program for temporarily dependent refugees and
Cuban/ Haitian entrants.
• Refugees are process and admitted to the US from abroad. The
Department of State handles overseas processing of refugees.
• US aims to consider for resettlement at least half of the refugees
referred by the United Nations High Commission for Refugees
(UNHCR) for resettlement worldwide each year.
• Refugee numbers dropped after September 11, 2001
• Admissions rebounded for FY 2002 and FY 2003
• In FY 2011 admissions were lower largely due to the
introduction of additional security checks during the year
Admissibility of Refugees
• In order to be admitted to the United States, prospective refugee
must be admissible based on U.S. immigration law.
• Health related grounds (communicable disease of public health
• Security related grounds of admissibility (terrorist grounds)
• Refugees have background checks being done on them by 4
different agencies prior to arrival in the US.
• FBI,
• DHS (Department of Homeland Security)
• Department of State
• Refugees do not get to “choose” where they go
• Exception for certain family reunification situations
By definition they have been persecuted and are survivors of violence
and trauma.
• Survivors often face specific trauma related challenges:
• Depression
• Post-traumatic stress disorder
• Anxiety
• Fear of authority
• Many women have been victims of sexual assault
• Many refugees entering the US have spent years in refugee camps,
which often is very stressful
• Also likely have had lack of access to sound legal advice while in
the refugee camps
• At the same time it’s not uncommon for rumors and “here’s what
you need to do” misinformation to be spread in the refugee
Refugee “Life Experiences”
• The experience for each refugee is different.
• Refugees throughout the world are not the same, other
than sharing the definition of being a refugee
• Not all refugee camps are safe. Many camps are
overcrowded, have food shortages, and have high
prevalence of crime (both by refugees and workers).
• Realize asking the client about their “story” may indeed
re-traumatize them
• Client may have to confront issues of loss- loss of
family, home, work, community, and culture.
The Different Phases of
• Loss of livelihood
• Loss of home/ possessions
• Repeated relocation/ living in hiding
• Separation from family
• Societal chaos
• Lack of medical care/ malnutrition
• harassment/ intimidation/ threats
• Fear of arrest
• Need for secrecy/ silence/ distrust
• Being followed or monitored
• Imprisonment
• Torture
• Other violence
• Witnessing violence
• Disappearances/ deaths
• Fear of being caught/ returned
• Detention at checkpoints/ borders
• Illness
• Robbery/ exploitation/ bribed
• Physical assault/ rape/ injury
• Crowded, unsanitary conditions
• Long waits in refugee camps
• Uncertainty about future
The Different Phases of Trauma, Cont.
• Lack of legal status
• Language barriers
• Transportation/ service barriers
• Shock of new climate
• Repeated relocation
• Social/ cultural isolation
• Conflict: internal, marital, generational,
• Family separation/ reunification
• Unresolved losses
• Bad news from home
• Unrealistic expectations from home
• Unmet expectations
• Low social, economic status
• Loss of identity/roles
• Unemployment/ underemployment
• Racial/ ethnic discrimination
• Inadequate/ dangerous housing
Phases of Trauma, cont.
In each stage clients will experience fears and losses that influence
their ability to participate in legal proceedings.
• Symptoms of trauma may interfere with client’s ability to
participate in their case
• Clients may have difficulty remembering details of events
• Their emotional reactions may seem inappropriate
• They may miss appointments or not follow through on directions
if it is going to trigger re-traumatization
• May have distrust or fear of the process or those involved
• Small things may trigger memories of the past
• May be poorly motivated
Dealing with Immediate Needs
Realize many refugees are dealing with complicated and
emotionally stressful resettlement concerns.
• What they were told about the United States likely does
not equate to what “real life” in the United States is like
• Initially there may be a wide range of issues that need
to be addressed: housing, employment, isolation,
medical problems, lack of transportation, lack of English
skills, schooling for children, and meeting other basic
Cultural Differences That May Affect an
Attorney’s Ability to Provide Effective
Refugee Documentation
• Realize not all refugees are going to have access to basic, key
documents we are accustomed to having.
• If they were persecuted in their home country, they may not have been
eligible for a birth certificate.
• They may have fled with the clothes on their back, and were unable to
take any vital documentation with them.
• They may know what their real birth date is, but because of the
refugee process, their true birth date may not be reflected on their
Differing Concepts of Civil and Criminal law
• At the same time you must make sure your client understands US legal
system and terminology, don’t assume they are unfamiliar with legal
concepts or lack sophistication or education. Refugees can come from
all backgrounds. Some may be highly educated and trained in their
home country. They may be scientists, professors, journalists, or
business owners.
Public Benefits and Immigration
Public Charge
• Public charge can be a term used to deny a person the ability
to obtain permanent legal status in the United States
• “likely to become . . . primarily dependent on the government for
subsistence, as demonstrated by either the receipt of public cash
assistance for income maintenance, or institutionalization for
long term care at government expense”
• Cash assistance for income maintenance
• Cash assistance from programs such as TANF (Temporary
Assistance for Needy Families)
• General Assistance
• Public Assistance, including Medicaid, used for supporting aliens
who reside in a long term care facility
• In some cases, Supplemental Security Income (SSI)
Public Charge
• Cash Assistance does not include:
• Medicaid (generally received not for long term care)
• WIC/ Nutrition Program
• Immunizations, prenatal care, testing and treatment of
communicable diseases
• Emergency Assistance
• Child Care Services
• Foster Care and Adoption Assistance
• Transportation Vouchers
• Education Assistance for Job Training Programs
• Non-cash benefits
• Soup Kitchens
• Crisis Counseling
• Shelter Services
• Does not include Cash Payments that have been earned
Government Benefits for
• Welfare changed dramatically between 1996 and today
• Since 1996, many non-citizens lost their eligibility for, or
received limited time frames to receive, government benefits
• To understand qualifications for federal programs including
SSI, Food Stamps, State or Federal Benefits one needs to
• Qualified non-citizen
• Battered Immigrant
Qualified Non-citizen
• Person is a refugee, asylee or parolee
• Person who has been lawfully admitted for permanent
• Person who was granted conditional entry prior to April 1980
• Person who has withholding of deportation or cancellation of
• Person with T visa
• Person who has been battered
Non-Citizen Eligibility for SSI
Must be a “qualified non-citizen” as defined under federal law
Must meet residency requirements
Must meet the income, asset and disability requirements
Non-citizens unqualified for SSI
• Person with no or expired documentation
• Person who entered as a fiancée
• Person is a non-immigrant with Temporary Protected Status
(TPS), student visa, visitor status, or temporary worker visa
Residency Requirement for SSI
• Date of Admission
• Pre- 8/22/1996
• If legally in the US and receiving SSI on date may continue to receive
• If legally in US but not on SSI on date, meet disability criteria
• Post 8/22/1996
• Generally NOT eligible
• Three Exceptions
• Refugees/ Asylees or Withholding of Status- BUT only for 7 years from
date of admission
• Veterans and their dependents (no time limits)
• Workers who have worked 40 qualifying quarters or more of SSI covered
work. However, can’t receive benefits for the first 5 years.
Ineligibility for Public Benefits
• Ineligible for Benefits
• Generally, qualified noncitizens are not eligible for federal or state
funded benefits unless they have been a permanent resident for
5 years
• Qualified Noncitizens cannot receive benefits due to Sponsor
Deeming through the Affidavit of Support
Affidavit of Support
• Form I-864 creates a sponsorship requirement in petitioner
• Under U.S. law, every person who immigrates based on a relative
petition must have a financial sponsor.
• Sponsor must agree to financially support foreign national family
• Purpose is to help ensure new immigrants will not need to rely on
public benefits.
• If foreign national is later given certain public benefits, the agency
that gave the benefits can require sponsor to repay the money.
• Sponsor must demonstrate ability to support up to 125% of
Federal Poverty Guidelines for sponsor’s household size
(including foreign national beneficiary)
Affidavit of Support
• If a sponsor does not provide basic support to the foreign
national, the foreign national, or the Federal or State agency
that gave the benefits to the family members, can seek
reimbursement of the funds through legal action against the
• State will not provide benefits to sponsored immigrant
• Does not apply to
DV lottery winners
VAWA applicant
Affidavit of Support
• The Affidavit of Support is enforceable against the sponsor
until the foreign national:
Becomes a U.S. citizen
Is credited with 40 quarters of work in the U.S. (usually 10 years)
Leaves the United States permanently; or
• Obligation does survive divorce
Food Stamps
• All qualified noncitizens are eligible for food stamps after
being in qualified permanent resident status for five years
• Exception to 5 year requirement
Disabled legal immigrant
Legal immigrants under 18
Refugees, asylees, withholding of removal
US Veterans and active duty members, their spouses, surviving
spouses and unmarried dependent children
• Certain select others
Medical Assistance
• Available to qualified immigrants who
• Are low income
• Permanently and legally in the US
• Meet categorical eligibility requirements by:
Being pregnant
Having minor children or living in an MFIB household
Being under 21
Being 65 or older, OR
Having a certified disability
• Sponsor deeming from Affidavit of Support Applies
• Undocumented immigrants are not, and have never been
eligible for food stamps
Federal Action to Enforce
• 287(g) Programs
• Program for state and localities to enter into specific cooperative
agreements with federal government
• Federal government trains local law enforcement and allows local police
departments to enforce civil immigration law enforcement
• Secure Communities
• Is supposed to be nationwide in 2013
• All of Minnesota (February 2012) and North Dakota (April 26, 2012) are
Secure Communities
• Information sharing between federal, state and local communities
• State and local jurisdictions submit arrestee’s fingerprints to criminal and
immigration databases
• ICE is notified about immigration status of those fingerprinted
• Detainers
• Criminal Alien Program
“I’m an attorney . . . how
hard could completing
this immigration form
How Hard Is It?
Sources of Immigration Law
• Immigration Law is the second most complicated area of law to practice in.
• Federal Law:
• US Code
• Code Federal Regulations
• Immigration and Nationality Act
• Federal Register
• Circuit Law
• Public Laws: IMMACT90, AEDPA, IIRIRA, Patriot Act, Real ID Act and Other Public Laws
• Agency Memos, Letters, etc.
• Department of State Cables
• State Law
• Administrative Law
• BIA: Board of Immigration Appeals
• BALCA: Board of Alien Labor Certification Appeals
• OCAHO: Office of the Chief Administrative Hearing Officer
• AAO: Administrative Appeals Office (was AAU: Administrative Appeals Unit)
• Foreign Affairs Manual
• Practice Advisories
• Local Practices - Liaison Meeting Minutes, Personal Relationships with Adjudicators
Daily Interactions
• Courts
Immigration Court
Federal Court
State Court
Administrative Court
• Departments
Department of Homeland Securities
Department of Justice
Department of Labor
Department of State
• Agencies
• USCIS: United States Citizenship and Immigration Services
• ICE: Immigration and Customs Enforcement
• CBP: Border Patrol
• Advising someone to file for a benefit they shouldn’t
• i.e. Naturalization when client has a criminal record
Not knowing all the paths/options available – time and money
Visa Fraud
Preconceived Intent
Reason to Believe Standard – no conviction necessary
Immigration Law is constantly evolving – you have to practice
it full time to stay abreast with current trends!!
1. Sue Swanson: Swanson Law Office
(PH) 701-787-8802
2. Anna Marie Stenson: Immigration Law Professionals
(PH) 701-298-7720