by Heidi Meyers | Nov 14, 2016 | Articles
Dear Readers,
I added a paragraph to the prior article ‘Your Home is Your Castle’ regarding home invasions by ICE (immigration agents).
If you open the door simply to verify the officers ID and to see a warrant, but the group of officers barges past you into your home, you should say “I do not consent to your entering my apartment. I do not consent to your search of my apartment”, for example. You should repeat that you do not consent should they search your computers and other electronic devices. You should make clear your lack of consent, and that you are asserting your 4th Amendment right against unreasonable searches and seizures.
by Heidi Meyers | Nov 13, 2016 | Articles
What should you and your family do if ICE officers (immigration agents) raid your home? It is best to think through ahead of time how you and your family will behave and what you will do.
If someone is banging on your door saying they are police, do not immediately open the door. ICE officers often arrive very early in the morning, to catch people when they are still asleep and have not yet gotten up or gone to work. Look at the time. If it is very early in the morning, say 5:00 or 5:30 a.m., this is a factor in showing that the search was unreasonable. The first questions you will ask are, who are they and do they have a warrant? Ask if they have a warrant. Ask them to show you the warrant, and you should read it to find out what or whom they are looking for. If they do not have a warrant, do not open the door.
If you do open the door, do not let them in immediately. ICE officers often pretend to be local police. That is one of their strategies to get immigrants to let them into their homes. Ask for identification, a badge or a business card. Find out which agency they are from and their names.
Always be very polite and respectful, even while asserting your rights. Do not yell, scream or curse. You must calmly and politely assert your rights. You can say, “I’m sorry, but because you do not have a warrant I am not opening the door” in a calm and firm manner. Or, “I have an attorney, and I am not going to answer your questions without my attorney present”. These may be said in an even tone without screaming or using insults.
If you open the door simply to verify the officers ID and to see a warrant, but the group of officers barges past you into your home, you should say “I do not consent to your entering my apartment. I do not consent to your search of my apartment”, for example. You should repeat that you do not consent should they search your computers and other electronic devices. You should make clear your lack of consent, and that you are asserting your 4th Amendment right against unreasonable searches and seizures.
Can you film what is happening? Plan ahead, where is your cell phone during the night so you can grab it and start recording should ICE show up at your door step early in the morning. Footage from cell phone videos has been very important recently in showing police abuse of African-Americans and other minorities.
You have the right to remain silent and not answer their questions. You should tell the officers you are refusing to answer their questions. However, if you do decide to answer their questions, make sure that everything you say is 100 per cent truthful. Lying to a federal agent may have very severe consequences. Remember, everything you say may later be used against you. If you admit you were born in another country, that is an admission of alienage, and can be used to sustain deportability. The other option is, if after you have answered some initial biographic questions, the officers continue questioning you, you may then state that you will not answer any more of their questions and you want to talk to a lawyer. So, you can assert your right to remain silent even after you have answered some questions, to stop the questioning.
While you have a right to keep quiet and refuse to answer questions, you must obediently follow physical commands, such as “Put your hands up”, “Drop what you are holding” or “Lie down on the floor”. Move your body slowly, so as not to appear threatening. The exception to this is, do not let them in your house if they do not have a warrant. But once ICE officers are inside, you must follow their physical commands. However, as stated above, you can still refuse to answer questions and ask for an attorney.
Finally, keep breathing. Focus on slowing down your breath and breathing deeply. This will calm you and help you to concentrate. Try to remember as much of the event as possible and memorialize it in writing soon afterwards. You should retain an attorney soon afterwards.
by Heidi Meyers | Nov 11, 2016 | Articles
This is a friendly reminder that USCIS filing fees will increase as of December 23, 2016. This means that any application received on December 23rd or later will be subject to the new higher fees. For example, Form I-130 relative petition will increase from $420 to $535, the adjustment application, Form I-485, will increase from $985 to $1,140, and Form I-129 for nonimmigrant workers, will increase from $325 to $460. Please see https://www.uscis.gov/forms/our-fees, for a complete list of the new USCIS filing fees.
by Heidi Meyers | Nov 10, 2016 | Articles
Many are panicked and worried about a Trump presidency, with good reason. The next four years will undoubtedly be very difficult for all, especially immigrants. However, the United States is still a country of laws, and our Constitution as well as all the case law developed over the last two centuries, protects our civil rights and civil liberties. The Immigration and Nationality Act (INA), as well as federal regulations, provide benefits to immigrants, as well as possible relief from deportation.
For the undocumented, as well as for those permanent residents who have a criminal conviction, ICE (Immigration and Customs Enforcement) cannot just arrest you and put you on a plane back to your home country. You have a right to removal proceedings before an immigration judge. Removal proceedings often take many years to be resolved, especially recently. You have a right to contest the charges against you, and even if you are found removable from the United States for certain violations of the immigration law, you may apply for relief from removal for any benefit for which you may be eligible, including asylum, withholding of removal, withholding under the Convention Against Torture, adjustment or re-adjustment to permanent residency, as well as numerous waivers, depending upon whether you meet the requirements.
Even if you should lose in immigration court, you have two levels of appeal, first, to the Board of Immigration Appeals (BIA), and second, to the federal circuit court of appeals. Thus, you will have ample opportunity to defend your case to stay in the United States. Heck, after four years President Trump may be out of office and your case is still pending.
Those who have a statutory benefit, such as H-1B status, or any of the other nonimmigrant statuses, or an approved employment or family preference petition, will continue to be eligible for that benefit, unless both houses of Congress (the House of Representatives and the Senate) pass a new bill abolishing or modifying that benefit, and the president signs it into law. This could take quite some time, maybe a couple of years or so. At this point, while the Republicans are in the majority in both the Senate and the House of Representatives, there will be 48 Democratic senators, who can filibuster and potentially block, any devastating changes to the INA by Republicans.
There are some exceptions to this, for statutory provisions that are set to expire, such as the EB-5 regional centers immigrant investor program, Conrad 30, and the non-minister religious worker provisions. These provisions are in much more danger of not being renewed, and thus those benefiting from them possibly falling out of status.
Those who are much more vulnerable are those with DACA (Deferred Action for Childhood Arrivals), which was created by executive action rather than the statute. This may be abolished at any time. However, politically, it is more difficult to take away a benefit from people who already have it, than it is to deny a benefit to people who never previously had it. Republicans have turned DACA into a political football, and most likely will try to abolish it. Another example is TPS (Temporary Protected Status). The executive declares nationals from a certain country to be eligible for TPS for a certain period because of an environmental disaster or other terrible conditions in the home country, and then can extend it or not, depending on whether conditions have improved as well as other factors.
However, those unable to renew their DACA or TPS, even if placed in removal proceedings, will have the opportunity to contest their removal from the U.S. as described above.
So do not despair, the United States still has a legal framework developed over centuries, democratic values, and a great tradition of individual rights, which will not be undone in a day.
In the coming months, I will do a series of articles to go into more depth on changes we can expect from the new Trump administration as events develop.
by Heidi Meyers | Oct 21, 2016 | Articles
CBP (U.S. Customs and Border Protection) is now frequently searching the cell phones and laptops of travelers trying to enter the U.S. While they previously had a practice of doing this, it has become more frequent and routine. Thus, should there be any doubt about your admissibility to the U.S. , you need to be prepared in case CBP searches your electronic devices, or even confiscates them and sends them for forensic examination. CBP does not even have to provide any reason to search your cell phone or laptop.
In general, the Fourth Amendment to the U.S. Constitution protects us from unreasonable searches and seizures of our “persons, houses, papers, and effects”, unless the police have probable cause to believe a crime has been committed and have gone to a judge to get a search warrant. In the Supreme Court case of Riley v. Calfornia, 573 U.S. __ (2014), the petitioner Riley had initially been stopped for a traffic violation, and the arresting officer searched him and seized his cell phone, which was later examined in detail by a detective at the police station. Because of information found on the cell phone, Riley ended up being charged in connection with a shooting and the prosecutor asked for an enhanced sentence because of his gang membership. Riley made a motion to suppress all evidence seized from the cell phone and appealed.
The U.S. Supreme Court noted that cell phones have an immense storage capacity, and that most people have every aspect of their personal lives stored on their phone, all their private interests and concerns, their family, years of personal photos, any health problems they have, their banking, their business and where they have been. The government’s search of a person’s cell phone would reveal far more than the most exhaustive search of his home. In this situation, the Supreme Court found that the person’s right to privacy was greater than the government’s interests at stake.
In Riley, the Supreme Court held that a warrant is required to search a cell phone, even when the cell phone was seized incident to an arrest.
However, this does not apply to searches at the border, including land borders and international airports. Your right to privacy evaporates at the border. There is a long-standing border search exception, so that there is no requirement of a warrant or probable cause for searches at international borders. The US Supreme Court has held that the right of U.S. government agents to stop and search travelers at the border does not implicate the Fourth Amendment, U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985). The U.S. government’s interest in protecting our borders and in national security outweighs any privacy interest of the individual.
In August 2009, U.S. Immigration and Customs Enforcement (ICE) and CBP issued directives allowing their agents to inspect any electronic device that travelers seek to carry across an international border into the U.S. CBP and ICE also allow their agents to detain electronic devices in order to search them, and to copy the files. CBP and ICE may do this, even if they have no reasonable suspicion of any wrongdoing, or of any issues within their own jurisdiction. If the information is encrypted or in a foreign language, CBP may take the device from the traveler and send it for forensic examination to another agency.
Pascal Abidor was a graduate student at the Institute of Islamic Studies at McGill University in Montreal, who was writing his dissertation on the modern history of Shia’s in Lebanon. In 2010, he was traveling on an Amtrak train from Canada to the US, when the train was stopped at a CBP inspection point near Service Port- Champlain. While being questioned by the CBP officer, Abidor revealed that he had traveled to Lebanon and Jordan, and showed the agent his visas. Abidor was then taken for further inspection, and his laptop, digital camera, two cell phones and an external hard drive were all seized by CBP. The officer ordered him to put his password in to log in to his computer, which he did. The officer found photos of rallies of Hezbollah and Hamas, which Abidor explained were taken as part of his research for his PhD. His laptop and external drive were taken by CBP and not returned until 11 days later, after sending them for forensic examination and making a copy of all the files. In addition to his research for the PhD, the computer files contained all his personal information, including communications with his girlfriend, personal photos and tax returns, among other information. Abidor was never found to have committed any kind of wrongdoing.
Abidor, along with others, sued the U.S. government. The federal court dismissed their claims of violations of the First and Fourth Amendments, in Pascal Abidor, NACDL, National Press Photographers Assoc v. Napolitano, 10-CV-04059 (EDNY 12/31/2013), finding they had no standing. This is just one example of many cases where individuals have sued the federal government for searches at the border and lost.
Thus, if you are traveling internationally to the U.S. and anticipate any possibility of any difficulty at all with CBP, you may best leave your electronic devices at home, or else entertain the real possibility that they will be thoroughly searched and copied by federal agents.
