LGBT, undocumented, and living in Trump's America. What to do?

Don’t panic

The Trump administration has been making a lot of noise, and that noise is beginning to have real consequences to immigrants who are already in the United States.  However, anyone who encounters an ICE agent is entitled to the due process of law, which, for most people, means that you cannot be removed unless an Immigration Judge orders you removed in Immigration Court — and Immigration Court offers many types of possible relief from deportation, including asylum or withholding of removal for LGBT immigrants who fear persecution in their home countries.  However, we have been seeing more reports of ICE raids throughout the country, which brings us to our second point…

Don’t delay

If you have any potential forms of immigration relief, now is the time to consider pursuing it.  For instance, if you have a spouse or partner who is a U.S. citizen, you may want to explore the possibility of obtaining permanent resident through marriage.  If you have fear of returning to your home country, you may want to explore the possibility of filing for asylum.  If you have been the victim of a violent crime in the past, you may want to explore the possibility of filing for a U-visa.   These processes can be much less stressful when you are working with USCIS, and not with the Immigration Court.

If you already have a final order of removal (an order directing your deportation), or suspect that you might have one, it is extremely important to speak to an immigration attorney who can advise you about your legal rights and options, if any, you might have to reopen your removal proceedings.

If you would like to discuss your immigration options with one of our attorneys, please contact us.  

Know your rights

If you are undocumented, it is possible that an encounter with an ICE agent could lead to your detention.  If you ever encounter an ICE agent, remember these three key items:

A. Do not answer any questions.  You have the right to remain silent under our constitution.  Simply tell the agent that you wish to speak to an attorney immediately.  

B. Do not open your door.  You do not need to open your door unless the ICE officer has a warrant signed by a judge.  They almost never have such warrants.  If they do have a warrant, ask them to slip it under the door.   

C. Do not sign anything.  In other words, DO NOT SIGN ANYTHING, especially without your attorney reviewing it first.  

D. Do not lie or give the agents false documents.  This is not only a crime, but could later be used against you in court during your removal proceedings.  

Make a plan for what would happen if you were detained

First, memorize the phone number of the person you would call first if you were detained.  You won’t have your iPhone in detention!

Second, give your vital information to a trusted friend or family member in case someone needs to help you if you are detained.  This information should include:

A. Your vital information (date of birth, A-number, copy of passport)

B. The names and numbers of anyone you would want to be notified or cared for in the event you were detained.  For example, if you have children that will need to be picked up from school or elderly parents who would need care, you need to have a plan for who would help them if you were detained.  You may want to also contact a family law attorney about establishing a power of attorney to care for your loved ones in your absence.  

C. The name and number of your immigration attorney, if you have one.

D. A copy of an executed G-28 Notice of Appearance form, which will help your attorney communicate with ICE on your behalf.  You can execute a blank copy if you might need to find an immigration attorney in the event of detention.  This form is available here:  

It is also important that you do not carry any false documents with you, as these could be used against you in criminal or immigration proceedings.  

If you'd like to read more about your rights in an ICE encounter are many great resources available from public interest organizations for how to best manage ICE encounters:  

 

Memo unearthed by ProPublica: ICE now prioritizing all undocumented immigrants

This leaked ICE memo, published recently by ProPublica, is not surprising but nonetheless disturbing:

The head of the Immigration and Customs Enforcement unit in charge of deportations has directed his officers to take action against all undocumented immigrants they may cross paths with, regardless of criminal histories.

The entire article is worth a read.  But if you are currently undocumented, it is a good idea to see if you have any forms of immigration relief in the event that you have an ICE encounter.   

"Wave through" entries

We recently won a very challenging approval on behalf of a client who entered the country by being "waved through" the Canadian border. This is much different than a "waiver," which is a specific type of immigration application.  A "wave through" entry is literally when an immigration officer at the border -- usually the Canadian border -- simply "waves" to your car and allows you to pass into the United States.  Many foreign nationals have entered the U.S. in this manner, including foreign nationals who had no visa to enter the United States.  

While we certainly don't recommend trying to enter the U.S. in this manner, the Board of Immigration Appeals has held that individuals who are "waved through" a border checkpoint are "inspected and admitted" to the U.S.:  a requirement for most applications for adjustment of status.  The tricky part is proving a "wave through," as you have no evidence that you entered the country that way, other than your testimony.  We were able to obtain approval for our client because he gave a very detailed, credible account of his entry, and we supported that with affidavits from others in the car.  But these cases can just as easily end up in Immigration Court, so if you entered the U.S. via a "wave-through," then it is extremely important to work with an immigration attorney who can advise you on how to proceed and how to prove your entry.  And of course, you must also qualify for adjustment of status beyond just having been "inspected and admitted."

Updates to I-485 Application for Adjustment of Status

Beginning on August 25, 2017, USCIS will only accept a new form of the I-485 Application for Adjustment of Status, a very commonly-used form for individuals seeking permanent residence in the United States through a spouse or otherwise.  

Why is this newsworthy?  Well, USCIS updates forms all the time, but the new I-485 drastically expands the questions asked of foreign nationals regarding their immigration history, work history, and criminal history.  For example:

  • USCIS now asks whether you have "ever violated the terms or conditions of your immigration status."  For many of our clients, the answer to this question is "Yes."  However, what the new I-485 does not tell you is that many foreign nationals still can qualify for adjustment of status even if they have been or are currently out of status.
  • USCIS also asks if you "have ever worked in the United States without authorization." Again, this question will scare many applicants, but unauthorized work does not automatically disqualify you for permanent residence -- particularly if you are married to a U.S. citizen.  
  • Another expansion is of the criminal history question, which now covers many aspects of having been charged with or cited for a crime, and no longer excludes traffic violations.

Obviously, being truthful in your immigration application is vital (it's illegal to make misrepresentations on these forms).  But our fear is that many foreign nationals will be afraid to answer these questions honestly, and then have trouble when USCIS learns that they have not been entirely truthful on these forms.  The best course of action is to work with a qualified immigration attorney (such as our attorneys) to help you navigate these forms and anticipate any problems with USCIS before filing an application.