Statutes of Liberty

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

In Cool Hand Luke, there’s a delightful scene in which new prisoners are introduced to prison discipline. The punishment for every infraction is the same: you spend a night in the box. There’s a laconic poetry to it.

Our immigration courts are very similar. The punishment for every infraction is an order of removal. An order of removal gives federal authorities the right to arrest, detain, and deport you, typically without further legal process.

If you don’t show up to immigration court, you get an order of removal.

If you get evicted and forget to notify the immigration court about your change of address, you get an order of removal.

If you can’t make your case persuasively in a foreign language without any legal education, you get an order of removal.

If you somehow manage to prepare an application for relief but forget to send a copy to the prosecutor as required by regulation, your application for relief will be rejected, and you’ll get an order of removal.

If you ask to leave the country voluntarily and don’t, for whatever reason — say, because you were hit by a truck — you get an order of removal.

And, sometimes, even if you do everything right, you’ll get an order of removal. Our immigration laws are harsh.

The Immigration Courts work this way for the same reason that the prison starvation in Cool Hand Luke does: poverty. There are roughly 300 Immigration Judges for the entire country. There are roughly 500,000 cases pending in immigration court, which equates to about 1600 cases per judge. If each judge ruled on one case per workday, and no new immigration cases were filed, it would take eight years to clear the docket. And that’s a utopian fantasy.

Increased enforcement means that more cases will be filed, and the backlog will grow. There is no right to counsel in immigration court, so most immigrants have to try to paste together their own applications. That slows things down.

At my first appearance in immigration court, the judge gave me a four-year delay before trial. I thought I must have misheard, so I squeaked, “Excuse me, your honor? You mean there are no trial dates available for four years?” A rumble of chuckling erupted from the other lawyers in the gallery.

The judges aren’t at fault for this, and neither are the prosecutors. Congress has starved the Immigration Courts of resources for years, under both Republican and Democratic administrations.

There’s no good news here, folks, except this: Having a lawyer more than doubles your chance of winning in immigration court. If you’re in immigration court, you need a lawyer right now. It might take you a half-decade to get out of immigration court, but at least you’ll get out without an order of removal stamped to your forehead. Maybe.

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Just married! There’s just one hitch: no proper immigration papers. What should you do now? Everyone says that your new bride (or groom) should get a green card without any difficulty. But you’re worried. You’ve looked at the forms and they look… difficult. You’re worried about making a mistake. What should you do now?

The sensible answer is to call a lawyer, but I’m going to point you in the direction of the appropriate forms so you can DIY if you want to. Please call a lawyer, though. It’s in your own financial interest. Lawyers get paid by the hour, and it takes many delightfully lucrative hours to get you out of trouble after you finish your Belushi impression.

1. I enjoy crushing beer cans against my forehead, so obviously I don’t want a lawyer. What should I do now?

Assuming you are eligible, you file a long ton of paperwork and supporting documentation. The foreign spouse will be fingerprinted. Three to four months later, the foreign spouse should receive a work permit. Six to twelve months later, you will both be interviewed by a government official. If that interview goes well, you’ll get a green card. If it doesn’t… well, you’re headed to Immigration Court, which is worse than Double Secret Probation and a heck of lot more expensive. More information about that to come in a subsequent column.

If you make a paperwork mistake or forget to enclose a supporting document, the government will helpfully remind you of this with a written Request for Evidence. Even if you respond instantly, a Request for Evidence will delay adjudication of your case by two to three months.

If you mess up your response to a Request for Evidence, the government may (or may not) send you another Request for Evidence. Uncle Sam is fully within his rights to keep your application fee — a cool $1,760 — and tell you to try again. You should have hired a lawyer the first time.

2. I don’t care! I think this situation absolutely requires a really futile and stupid gesture on somebody’s part.

If you’re going to do this yourself, you should read these forms (and their accompanying instructions) carefully. Any immigration lawyer you speak to should be able to tell you what these forms are, in coma-inducing detail, without opening his laptop. If he can’t, enjoy the free coffee and walk away.

• Form I-130: Petition for Alien Relative
• Form I-130A: Supplemental Information for Spouse Beneficiary
• Form I-131: Application for Travel Document
• Form I-485: Application for Adjustment of Status
• Form I-693: Report of Medical Examination and Vaccination Record
• Form I-765: Application for Employment Authorization
• Form I-864: Affidavit of Support under Section 213A of the INA

(more…)

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

My clients and my friends want to know: What on earth is happening to Deferred Action for Childhood Arrivals (DACA)?

Here’s the state of play.

In 2012, President Obama promulgated DACA which, in effect, granted work permits and security to people who were brought to the United States as minors and met a laundry list of qualifications.

These young men and women came from all walks of life. I’ve won DACA relief for skilled carpenters, salesmen, a few graduates of very ritzy private schools and one especially memorable young man who overcame homelessness after winning DACA relief. Getting work permits was a big deal for all of them, and helping them out has been one of the most rewarding elements of my practice.

DACA was granted to individual applicants in two-year increments, beginning on whatever date United States Citizen and Immigration Services (USCIS) happened to approve the initial application. For this reason, approval dates (and renewal dates) were spread all over the calendar.

On September 5, 2017, President Trump issued a memorandum rescinding DACA. This memorandum had the following effects:

1. USCIS is no longer accepting new applications for DACA.
2. USCIS set a deadline of October 5, 2017 for renewal requests for DACA recipients whose status was expected to expire between September 2017 and March 5, 2018. That deadline has now passed.
3. Current DACA recipients can no longer apply for travel permits.
4. USCIS continues to re-issue requests to replace lost DACA work permits.

As of now, the unlucky folks who run out of DACA status will not be able to renew. That means that work permits can’t be renewed, and old deportation orders can, in theory, be put into effect.

The news isn’t all bad for DACA recipients. There are four major ongoing lawsuits challenging President Trump’s rescission of DACA in federal court. One or more of them might succeed, in one way or another: by halting the rescission of DACA, by overturning it completely or by preventing Department of Homeland Security (DHS) from using biographical data garnered through DACA in enforcement actions. I’m tracking these lawsuits closely.

Despite these setbacks, some DACA recipients are eligible to apply for green cards. DACA recipients who are married to U.S. Citizens (or lawful permanent residents) should contact an immigration attorney to learn more.

A more general solution remains elusive. Congress may act to formalize DACA through legislation; but, in my view, the chance of that happening is low. The more likely outcome is that President Trump will lift the rescission of DACA. We know he wants to. How do we know?