Nick Misiti Explains How to Secure a Reasonable Immigration Bond

The controversial Secure Communities program has been expanded to New York.  The program requires local jails to match fingerprints against a federal immigration database. Immigration and Customs Enforcement (ICE) then has the local jails detain people they think may be in the country without authorization, while it decides whether to proceed with deportation/removal proceedings.

This means that individuals who are not citizens of the U.S. may be subjected to detention and removal proceedings if they come into contact with local law enforcement.  Now more than ever it is important for family members, and friends of these people to understand the facts regarding detention and whether their family member qualifies for bond.

Posting a criminal bond may not result in the individual being released.  Instead they may have an immigration hold and the criminal bond will result in them being transferred to ICE custody.  At this point they will need to apply for an immigration bond.

Moreover, immigration bonds work differently than criminal bonds.  The bond is initially decided by the deportation officer in charge of the detainee.  If the deportation officer gives a bond that is too high or refuses to give a bond a bond redetermination hearing can be requested with an immigration judge.  At the hearing the judge will listen to the facts and determine if the detainee qualifies for a bond.

It is also extremely important for the detainee to apply for an immigration bond as soon as possible.  This is because detainees can be transferred to another jail before they are assigned an immigration judge. Detainees in New York are often transferred to Pennsylvania, Louisiana, or Texas; upon arrival in these jails they are assigned an immigration judge in that state.  This puts the detainee and their family at a significant disadvantage, as now they have to incur the additional costs of travel and legal fees in another state.

However, if a bond redetermination hearing is requested immediately the detainee will be assigned a judge where they are being held and will not be sent to other states to fight their case.

Certain immigration detainees are also subject to mandatory detention.  This means they do not qualify for any bond under any circumstances.  Such cases are often misinterpreted by immigration officers and a Joseph hearing can be requested where an Immigration Judge will determine whether they are in fact subject to mandatory detention.  Another option is filing a Habeus petition for unlawful detention.

If you or a family member is detained with an immigration hold, it is important for you hire an attorney immediately.  A good attorney will fight to get the detainee out on a reasonable bond or supervised release.  It is much easier to fight an immigration case from the outside rather than inside a jail.

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Nick Misiti on Dream Act

The Obama administration’s program to defer deportations for undocumented youths could involve 1.76 million people, according to recent estimates released by the Migration Policy Institute, a nonprofit think tank.

The deferral program, announced in June by Homeland Security Secretary Janet Napolitano, is an attempt to give temporary relief to young undocumented immigrants who would qualify for legal status under the Dream Act. Immigration-reform advocates hailed the deferrals as the first step forward in years toward fixing the country’s Byzantine immigration system. The program was pounced upon by critics, who accuse the Obama administration of overstepping its authority.

Unlike the more clear-cut Dream Act, which has not passed Congress, DHS’s deferral program is maddeningly bureaucratic. It relies on the administration’s right to decide whom to target (or not) in deportations. Deferrals for “dreamers” are intended for those whom the administration decides are low priority. Yet the application-processing system is still a huge undertaking for an already burdened agency. Meanwhile, potential applicants are hanging on every bit of information coming out of DHS.

DHS’s office of Citizenship and Immigration Services released guidelines on Friday spelling out some of the factors that it will weigh when determining whether the requests will be granted. That breeds only more questions, but USCIS Director Alejandro Mayorkas is patiently refusing to engage in hypothetical questions about individual circumstances.

“Please remember that the decision about whether or not to defer action in response to a request is an individualized decision,” Mayorkas said on Tuesday at an MPI-sponsored event. USCIS will be looking at the “totality” of the applicant’s record, but it also will be continuously updating its guidelines to clarify for potential applicants what their chances may be.

“This is ultimately, at the end of the day, an individual decision,” said National Immigration Law Center Executive Director Marielena Hincapie, whose group is coordinating national legal guidance for potential applicants.

MPI ratcheted up its estimate of eligible deferral applicants from an earlier prediction of 1.39 million after USCIS announced last week that young adults who lack a high school or GED diploma and are not students could qualify for a deferral if they enroll in school before Aug. 15, when USCIS will start accepting applications. MPI said that 350,000 young adult undocumented immigrants could be eligible for relief from deportation under this category.

From a logistical standpoint, launching a program with 1.76 million applications and no additional resources is virtually unprecedented in the history of immigration-processing systems. Under the 1986 immigration law that granted amnesty to undocumented foreigners, the Immigration and Naturalization Service processed 3 million applications. But Congress generously funded that program. What’s more, the requirements for amnesty eligibility under the 1986 law—residing in the United States continuously for four years—were fairly straightforward.

In this case, DHS’s decision to systematically grant deferrals to youth who were brought to the United States illegally by their parents was made without consulting Congress and in an era of tight budgets. Unlike the 1986 act, the deferral program also relies on individual-case-specific histories, which will require adjudicators to consider a variety of factors for each applicant. How many traffic tickets are too many? If the applicant visited an aunt in Mexico for three months, does that disqualify him or her from the continuous residence requirement?

These and other questions are swirling about the immigration-advocacy community as it gears up for its own unparalleled outreach efforts to encourage illegal-immigrant youth to apply for the program and help them navigate the system. “People have to believe that the government clearly meant what it said,” said Muzaffar Chishti, director of MPI’s office at New York University.

Assurances of confidentiality for applicants and their family members, for example, will need to be ironclad, Chishti said. Employers will be critical suppliers of documentation proving the applicants’ residency in the United States. Will they be safe from punishment? The government needs to “formally or informally make sure employers won’t be targeted for employer sanctions,” he said.

Mayorkas carefully avoided answering questions about employers, in large part because USCIS does not have jurisdiction in that area. He said that his office would work with the more feared enforcement wing of the immigration agency—Immigration and Customs Enforcement—to provide “greater clarity” to employers. Such clarity will be necessary, as MPI estimates that 58 percent of the eligible population of undocumented young adults is employed.

DHS will hire additional staff to process the applications it anticipates later this month, but it is limited by its current budget and the money it will raise from the $465 fee per applicant. USCIS, which handles requests for all kinds of visas, will use its four existing processing centers to handle deportation deferral requests.

Contact Law Offices of Nicklaus Misiti, PLLC. at (212) 537-4407 or via their website www.misitiglobal.com.  His firm handles many complex immigration matters, including Dream Act cases.

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Law Offices of Nicklaus Misiti Wins Deferred Action (“DACA”) Approval for Client

Recently the policy toward undocumented minors who were brought to the United States at a young age has changed.  The government is now allowing them to qualify for a quasi-legal status in which they won’t have to fear deportation and would be legally authorized to work in the US.   This status is referred to as Deferred Action for Childhood Arrivals (“DACA”).

The program was announced in June, 2012 and US Customs and Immigration Services (“USCIS”) began officially accepting applications on August 15th, 2012.  It is estimated as many as 1.2 million young people could benefit from the program.

In order to qualify an applicant must meet a number of requirements, including:

1.                     They entered before age 16;

2.                     They have been continuously present in the US since June 15th, 2012;

3.                     They were physically present in the US on June 15th, 2012;

4.                     They are in school, a graduate, or hold a G.E.D;

5.                     They do not have a significant criminal record.

Recently a client entered our office to discuss the DACA requirements.  After a thorough case evaluation we determined that she indeed did qualify and went to work gathering the necessary documentation.  We also aided the client in filling the complex forms.  After many hours preparing the application we mailed it off to USCIS and a few months later received an approval in the mail.

The program was announced in June, 2012 and US Customs and Immigration Services (“USCIS”) began officially accepting applications on August 15th, 2012.  It is estimated as many as 1.2 million young people could benefit from the program.

Officially the client is considered to be on Deferred Removal status, which is good for 2 years and allows her to qualify for lawful employment.  Her status is not the same as a green card, visa, or citizenship.   We are currently working on other means to get her Lawful Permanent Resident (“LPR”) status and eventually citizenship.

It is important to note DHS has stated that information included in the DACA application will be confidential and will not be used to deport family members who may be here illegally, unless there is a national security risk.  Thus, if you are contemplating filing a DACA application your family members’ status should not be of too much concern.

For More Information

Contact Law Offices of Nicklaus Misiti, PLLC. at (212) 537-4407 or via their website www.misitiglobal.com.  His firm handles many complex immigration matters, including DACA claims.

*Attorney Advertising: Prior results do not guarantee a future, similar outcome.