Citizenship and Deportation

People that are citizens of this country because they were born here cannot be deported. U. S. born citizens do have the right to voluntarily renounce their citizenship but it cannot be taken from them. This is true even if they have been convicted of committing horrendous crimes including multiple murders, rape, massive drug sales, or child abuse offenses. They can be sent to prison for life and can even be executed, but not deported. Naturalized citizens do not have the same absolute immunity from deportation.

Naturalized citizens are immigrants that have become U. S. citizens after first becoming permanent residents and then successfully completing naturalization procedures. U. S. immigration laws provide that people ordered deported are to be sent to “the country from whence they came”. This does not apply for people born here. Although it is extremely difficult and rare to denaturalize someone that has become a naturalized citizen, it has been done. The 2010 census revealed that 6.8 million immigrants became naturalized citizens between the years 2000 and 2010.

Because so many immigrants have succeeded in becoming naturalized citizens in the past 10 years, it is important to know the acts or conduct that could provide a legal basis for taking away naturalized citizenship. If they lose their citizenship, they can be deported. Until recently, the cases where denaturalization was legally permitted were limited to situations in which the immigrant lied in his/her citizenship application. Once the immigrant took the citizenship oath and was sworn in, he/she became a U. S. citizen. The consequences of any criminal convictions after becoming a U. S. citizen could not include denaturalization. That has changed.

A federal appeals court has ruled that a naturalized citizen can be denaturalized even though he was arrested, indicted and convicted after he became a naturalized citizen. This is a dramatic and extreme change in the law. Immigration officials successfully argued that because the criminal conduct of the defendant occurred before he became a citizen, and because the criminal conduct constituted a lack of “good moral character”, he was ineligible for citizenship. The judge in that case said “the commission of the crime rather than the conviction for the crime is enough to denaturalize because it negates “good moral character”.

The judge also said that because the defendant did not have good moral character at the time he applied for citizenship, he illegally procured naturalization. In that case, the crime he committed, trafficking in drugs, is a crime which is listed as establishing a lack of good moral character. Not all crimes are on that list. The judge also said that because the defendant procured citizenship illegally, the courts do not have the power to stop the deportation even if it results in extreme hardship on the defendant and his family.

Immigrants should recognize that committing acts that constitute a lack of good moral character before becoming citizens can be used to cancel that citizenship even if it is discovered long after they are sworn in.

topics covered: Immigration Law
written on September 28 by Jess J. Araujo
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Supreme Court Decision Will Determine Legal Rights of Immigrants

The United States Supreme Court has agreed to take a case that could drastically affect the lives and families of hundreds of thousands of documented and undocumented immigrants. Every person living in this country that is not a U. S. citizen is forever subject to deportation. Even legal permanent residents that have lived here for decades can be deported for numerous legal reasons. Having been convicted of certain crimes is one of the most frequent grounds for deporting both documented and undocumented immigrants. Immigration law allows certain deportable immigrants to apply for cancellation of deportation. If cancellation of deportation is approved, the deportable immigrant is allowed to remain here.

Carlos Gutierrez was 5 years old in 1989 when his family entered the U. S. unlawfully. His father was granted legal permanent residence in 1991. In 2003, 19 year old Carlos was granted legal permanent residence. The record shows that in 2005 he agreed to smuggle some children into this country from Mexico for $1,500. He was determined to be deportable by an immigration judge. That immigration judge granted Carlos Gutierrez’ application for cancellation of deportation and allowed him to stay in the country legally with his family.

Immigration officials appealed the judge’s decision to the Board of Immigration Appeals which agreed with Immigration Service officials that Mr. Gutierrez did not meet the legal status or residency requirements to qualify for cancellation of deportation. Mr. Gutierrez’ attorney appealed the negative decision to the 9th Circuit Court of Appeals which agreed with Mr. Gutierrez. Immigration officials have appealed the case to the United States Supreme Court whose decision will be the final word in this matter.

Immigration law requires deportable immigrants applying for cancellation of deportation to prove that they have been lawfully admitted for permanent residency for not less than 5 years. It also requires them to prove that they have resided in this country continuously for not less than 7 years after having been admitted in any status. Immigration officials insist that the law clearly requires that the immigrant must personally meet these requirements and that Carlos Gutierrez clearly does not because he had only been a lawful permanent resident for 3 years when he was determined to be deportable. They also insist that he had not been living in this country for 7 years after obtaining permanent resident status.

The immigration judge and the judges of the 9th Circuit Court of Appeals decided that the date that his parents became legal permanent residents could be used as the date that Mr. Gutierrez acquired legal resident status and began his continuous residence in this country. These judges said that since Carlos Gutierrez was brought here and lived with his parents as a minor dependent, the parents’ legal and residency status and date is “imputed” to him.

The favorable interpretation of this law by the 9th Circuit Court of Appeals benefits all immigrants in the Federal 9th Circuit which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state. If the Supreme Court agrees, this benefit will be available to all immigrants in every state.

topics covered: Immigration Law
written on September 25 by Jess J. Araujo
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Federal Court Says Anti Day Laborer law is Unconstitutional

For years undocumented immigrants have witnessed the creation of laws and local ordinances designed to deny them rights and benefits freely enjoyed by U. S. citizens and lawfully admitted permanent resident immigrants. In fact, some of those laws actually deny rights and benefits to legally admitted permanent resident immigrants. One such law prohibits even legally admitted immigrants from receiving Welfare benefits for 5 years after immigrating. Federal courts across the country have invalidated many of these anti-immigrant laws while other such laws are still awaiting decisions in the appellate courts.

The Federal Appeals Court for the 9th Circuit recently declared a Redondo Beach, California anti day laborer law to be unconstitutional. The law was enacted over 20 years ago but was not enforced until 2004 when the city started arresting people. The Mexican American Legal Defense and Education Fund (MALDEF), in the case of Comité de Jornaleros de Redondo Beach vs City of Redondo Breach, quickly filed a lawsuit against the city. In 2004, MALDEF obtained a court order forcing the city to stop enforcing the law until a final court decision was made.

The Redondo Beach ordinance is similar to hundreds of others enacted by cities around the country including more than 50 in California. This ordinance makes it illegal to “stand on a street or highway to solicit employment, business or contributions” from passing drivers. The city argued to the court that the ordinance is proper and legal because its purpose is to improve traffic safety and movement at busy intersections.

MALDEF attorneys representing the National Day Laborer Organizing Network successfully argued that the ordinance violates the 1st amendment of the U. S. Constitution and illegally prevented day laborers from asking for jobs. The court said that the city was free to limit the time, place and manner of speaking with drivers as long as it allowed “ample channels of communication.” The court said that the ordinance was unconstitutional because it regulates more speech than is necessary to achieve its stated purpose. It also said that the city could achieve its goals by simply enforcing their traffic laws. Judge Milan Smith said that this ordinance is so broad that it would make it illegal for children to shout “carwash” to drivers.

MALDEF president Tom Saenz said that the court decision makes it clear that day laborers have a constitutional right to freedom of expression. He also said that every city in the 9th Circuit that has similar laws should repeal them immediately. The 9th Circuit includes the states of Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Lawyers’ Committee Executive Director Lateefah Simon said “This ruling should serve as a warning to other cities that seek to harass or arrest day laborers who are just trying to provide for their families.”

topics covered: Labor Law
written on September 21 by Jess J. Araujo
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Federal Court Eliminates Legal Benefit in Immigration Cases

The 9th Federal Circuit Court of Appeals recently issued a ruling that eliminates one of the legal benefits formerly available to non-citizens. On July 14, 2011 that court ruled that non-citizens can no longer use “rehabilitative relief” to cancel a conviction for minor offenses to avoid deportation. Rehabilitative relief includes withdrawing a guilty plea or setting aside a guilty plea to criminal charges. The ruling applies to charges for simple possession of certain drugs, possession of drug paraphernalia, or other minor drug offenses.

As a result, A FIRST CONVICTION FOR A MINOR DRUG OFFENSE (EXCEPT FOR POSSESSION OF LESS THAN ONE OUNCE OF MARIJUANA) WILL MAKE NON-CITIZENS INADMISSIBLE AND DEPORTABLE. Legally admitted permanent residents can be deported and undocumented immigrants will be denied legal status and then deported. Both categories will be mandatorily detained. This change in the law and elimination of rehabilitative relief will only affect non-citizens whose immigration cases are processed in the states within the jurisdiction of the 9th Circuit Court of Appeals. These states include Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Immigration law experts are advising immigrants that are arrested to immediately determine if there is an “immigration hold” on them. An immigration hold is an order from federal immigration officials that requires jail personnel to deliver the arrested person to them after the criminal case is concluded. If there is an immigration hold, no money should be spent on posting bail in the criminal case. While bail removes jail holds in criminal cases and allows the accused to be free during the court proceedings, the accused WILL NOT BE ALLOWED TO BE FREE EVEN IF BAIL IS POSTED IF THERE IS AN IMMIGRATION HOLD.

Immigration attorneys have made several recommendations for noncitizens charged with minor offenses within the jurisdiction of the 9th Circuit. They have described how defense attorneys have sometimes been able to convince prosecutors to agree to postpone the court date for entering a plea (guilty or not guilty) long enough to complete an agreed upon penalty such as attending counseling, drug education classes, or performing community service. After that, the accused is allowed to plead guilty to a lesser, non deportable, offense. In some cases the charges are dismissed completely. Under this procedure, if there is no fine imposed or if the fine is unconditionally suspended, there is no “conviction” for immigration purposes.

In cases involving the use of marijuana or possessing marijuana paraphernalia, defense attorneys have arranged to have the accused immigrant plead guilty to possessing less than one ounce. The first conviction of possessing less than one ounce is not a deportable offense. And these attorneys report that they are sometimes able to persuade the prosecutor to agree to change the charge to a non deportable offense such as loitering, trespassing, disturbing the peace or driving under the influence of alcohol only. Convictions for these offenses do not require deportation.

While the elimination of rehabilitative relief for minor offenses removes an important legal remedy for immigrants, experienced criminal defense attorneys still have several options designed to avoid deportation.

topics covered: Immigration Law
written on September 14 by Jess J. Araujo
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Federal Court Says People Can Videotape the Police

There have been many news reports about people that have been arrested for videotaping or taking photos of on-duty police officers. Most of the time the videotaping is done by an innocent bystander that feels the conduct of the police is unlawful or improper. The case of Rodney King illustrates how videotapes of police action can affect the results of legal cases. In that case, the police officers seen beating Mr. King on the videotape were ultimately sent to prison.

In a recent case in Vallejo, California, Lonnel Duchine used his cell phone to videotape the police arresting 4 people outside of his home because he thought the police were acting improperly. He says that the policeman was using his gun while speaking with 4 juveniles. One policeman asked him for his cell phone saying that it was “evidence”. He was arrested for refusing to give it to them. He gave the cell phone to his friend and never gave it to the officer. The contents of the videotape were posted on YouTube.

Legal commentators agreed that arresting Mr. Duchine was improper and he was interviewed by internal affairs officers investigating the policeman for misconduct. The police department has indicated that the charges against Mr. Duchine will probably be dismissed. Legal experts on the news shows all agreed that Mr. Duchine should not have been arrested and that IT IS NOT ILLEGAL TO VIDEOTAPE POLICE OFFICERS IN CALIFORNIA. It may be illegal if in the process of videotaping, one interferes with the officer’s proper duties.

A Federal Appeals Court recently ruled that a man can file a lawsuit against 3 policemen for violating his civil rights. Attorney Simon Glik videotaped police officers arresting a young man after he heard people telling the police officers to stop hurting him. He refused the officer’s order to stop recording and was arrested for disturbing the peace and aiding in the escape of a prisoner. The prosecutor and the Municipal Court dismissed the charges. The judge said “The fact that the officers were unhappy they were being recorded during an arrest …does not make exercise of a First Amendment (Constitutional) right a crime.”

The Federal Judge said that there is a constitutionally protected right to videotape police officers carrying out their duties in public. He also said that federal court cases have also clearly decided that people have a constitutional right to videotape police officers on the job in public. Mr. Glik filed a complaint with the police department but the matter was never investigated. He then filed a civil rights lawsuit for violating his constitutional rights under the first and fourth amendments, as well as for malicious prosecution. The accused officers asked the judge to dismiss the lawsuit claiming that, as police officers, they have immunity from prosecution for acts done on the job. The judge denied their request. The judge also said that Mr. Glik’s recording of the police actions took place in a public place and did not interfere with the arrest.

topics covered: General Law
written on September 13 by Jess J. Araujo
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Mother Convicted of Murder for Failing to Protect Child from Father

The laws of the United States and of the various states clearly hold people responsible for the acts of others and for failing to act responsibly. Employers are required to pay for injuries and damage caused by their employees while in the course of employment. Parents are required to pay for damage or injury caused to others by their minor children. And, owners of cars are required to pay for injuries and property damage caused by drivers they have authorized to use their vehicles.

In the area of criminal law, the consequences can be much more serious and costly as demonstrated by the recent California case of People vs. Rolon. In that case, the mother of a one year old child was convicted of DEADLY ASSAULT, MURDER, and AIDING AND ABETTING for FAILING TO PERFORM HER PARENTAL DUTY TO PROTECT HER CHILD. The mother allowed the child’s father to stay with them, even though she knew that a court order prohibited him from living with them having unmonitored contact with their children.

During an unannounced visit by a Social Worker, the mother lied about the father’s presence in the home. The court determined that for the next three days the mother failed to protect the child from repeated beatings by the father while trying to stop him from crying. By lying to the Social Worker, the mother intentionally assisted the father to avoid detection and removal from the home. This enabled him to continue to beat and ultimately kill their child.

The court explained that under the Common Law, a parent has a duty to protect his/her children and that failing to do so does constitute “Aiding and Abetting” the perpetrator to cause the harm to the children. Therefore, the parent that fails to protect his/her children is also guilty of the crime. The court also stated that the INTENTIONAL CONDUCT IN SUPPORT OF THE ABUSER CAN ESTABLISH LIABILITY FOR IMPLIED MALICE MURDER.

Parents, especially mothers, must be very careful not to do anything that enables anyone, even the other parent, to harm their children. As this case clearly illustrates, even if a parent does not harm the child directly, criminal punishment can be imposed for NOT PROTECTING THE CHILD. The mother should have refused to allow the father to stay with them and should have called the police if he refused to leave. And, she definitely should not have lied to the Social Worker.

For families that are struggling financially or for undocumented immigrants, it can often be very difficult to report the criminal acts of a parent. They understandably fear that the abuser’s arrest and result in loss of income and even deportation. This of course would have a devastating effect of the ability of the rest of the family to survive.

As difficult as this reality is, we can now see that the alternative to reporting the abuser can be far worse. In the Rolon case, both the abusing father and the non protecting mother will now be in prison for many years. The children will have to be raised by others and will live their lives knowing that their father killed their brother and that their mother did nothing to help. What’s worse is that she actually did assist and enable him to do it. Parent must always protect their children. That is the law and that is what is right.

topics covered: Family Law
written on September 5 by Jess J. Araujo
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Discrimination in the Rental or Sale of Housing is Illegal

Federal law and the laws of all of the states prohibit discrimination in transactions dealing with the rental, sale, financing or appraisal of housing. Federal and California laws prohibit discrimination based on race, color, gender, pregnancy, religion, national origin, disability or family status. California law provides even more protection against discrimination than federal law in many situations. For example, California law prohibits landlords from asking prospective tenants about their immigration status. And California prohibits discrimination based on marital status, sexual orientation or arbitrary categories that have nothing to do with being able to be a good tenant. Examples of illegal arbitrary categories include union members, members of certain religions or political parties or occupations such as bartenders.

Discriminatory acts include refusing to rent, lease or sell real property for housing. This includes apartments, condominiums and mobile homes. It is illegal to refuse to negotiate in these transactions based on discrimination against these protected groups. And, it is illegal to say that housing is not available if it is. Housing discrimination experts have reported several situations that indicate that illegal discrimination is probably taking place, including the following:

  • The manager says that there are no vacancies even though there is a “vacancy” sign;
  • The newspaper ad continues to appear after the manager says there are no vacancies;
  • The manager says there are no vacancies after saying there is a vacancy on the phone;
  • Upon seeing the applicant, the manager says something to try to cause him/her to decide to not rent there like “this is a dangerous neighborhood” or “it is dangerous for children.”
  • The manager says that wheelchair ramps and other modifications cannot be made;
  • The manager says that the only available unit is unsafe for children because it is near the pool or on an upper level;
  • The manager says that only married women (or married couples) can live there with children;
  • The manager says that the conditions there make it difficult or dangerous for pregnant women;
  • The manager says that there are too many people in the family for that rental unit. No rental unit can be limited to one person because that would eliminate families. Any limit on the number of people allowed to occupy the unit must be based on a legitimate business necessity. And, even if there is a business necessity, landlords must use a less restrictive means to achieve it, if possible.

In those cases where judges have allowed occupancy limits, legal experts have established that the limits are reasonable and necessary to avoid serious and provable harm.

Under California law, tenants have a right to operate a Family Day Care Home as long as they take out a license. This right cannot be denied even if city or county ordinances prohibit it or if the rental agreement forbids it. Always contact the Fair Housing Council or an attorney if you believe you are the victim of illegal discrimination.

topics covered: Discrimination
written on August 24 by Jess J. Araujo
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Parents Can Be Arrested When Their Children Miss School

California law requires school aged children to be enrolled in and to attend school. Violations of the mandatory school attendance law permit prosecutors to initiate juvenile court actions against the child and to file criminal charges against the parents. While the primary purpose of mandatory school attendance laws is to ensure that the children of California are properly educated, there are other reasons for these laws. Requiring school attendance also reduces crime by minors and allows parents to know where their children are.

The District Attorney of Orange County and The Orange County Sheriff recently collaborated with local police departments to arrest several parents for violating the mandatory school attendance laws. These parents were arrested and charged with contributing to the delinquency of a minor for allowing their children to have too many unexcused school absences. The parents were arrested after their children had arrived in school and were released without bail in time to be available for their children by the end of the school day. If convicted, these parents could be placed on probation, be sentenced to up to one year in jail and required to pay a fine of up to $2,500.

The prosecutors have accused these parents of failing to attend meetings with school officials to discuss their children’s attendance problems and of failing to take action to ensure their children attend school regularly. Two of the parents had been personally informed by a police officer that continued unexcused absences by their child could result in their arrest. The children in these cases were in elementary and middle schools in Orange County. The arrests confirm the policies of the District Attorney and the Orange County Sheriff to aggressively enforce the mandatory school attendance laws of California.

The law does provide for certain exceptions to mandatory school attendance. Students under the age of 18 can be lawfully absent from school during school hours if they are with a parent or guardian, if they are on an emergency errand for a parent, if they are in an emergency situation such as an accident or fire, or if they are in a vehicle in interstate travel. Students that have school authorized work permits are allowed to be absent during school hours if they are going to work or on the job.

Minors in California are also subject to nighttime curfew laws. While California does not have a statewide curfew law, many cities and counties do. Nighttime curfew laws require anyone less than 18 years old to be in their homes or other appropriate housing facility before the curfew time established for that city or county. Parents and minors should determine if their city and/or county have a nighttime curfew and the requirements of those laws. Like mandatory school attendance laws, nighttime curfew laws also provide many sensible and legitimate exceptions to the curfew time.

Every parent and guardian of minor children should know the requirements of the mandatory school attendance laws and nighttime curfew laws.

topics covered: Family Law
written on August 17 by Jess J. Araujo
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Federal Government Assertion of Power Over Immigration is Absolute

Two recent immigration issues illustrate the commitment that the federal government has to ensure that the states do not try to pass laws regarding immigration. The position of the federal government is correctly stated and supported by the United States Constitution which gives the federal government the exclusive right to manage and control immigration. Those constitutional principles prohibit the state governments from passing laws regarding immigration.

The first of these actions by the federal government involves a lawsuit that the federal Department of Justice filed against the State of Alabama to stop the implementation of a recent anti-immigrant law in that state. That Alabama law, HB 56, requires police officers to verify the immigration status of people they “suspect are illegal immigrants”. It also makes it a crime to work or solicit work in that state. The law prohibits landlords from renting to undocumented immigrants and makes them ineligible to receive state and local government benefits including attendance at public colleges and universities.

The law is scheduled to become effective on September 1, 2011. The federal lawsuit states that the Alabama law “exceeds the state’s role with respect to aliens, interferes with the federal government’s balanced administration of the immigration laws, and critically undermines U. S. foreign policy objectives.” Federal officials insist that this law will result in harassment and incarceration of lawfully admitted immigrants and U. S. citizens who will be unable to provide proof of their status on the spot.

The second federal action is strongly opposed by immigrant rights and civil liberties organizations as being harmful and unfair to immigrants. But once again the position of the federal government is that the states have no authority to do anything that affects immigration. In 2008, the federal government established the “Secure Communities Program”. The states, counties and cities were asked to sign agreements with the federal government which would require them to send the fingerprints of everyone arrested for felonies (serious crimes) to Immigration authorities.

Only 11 states declined to sign agreements. The program soon created an enormous amount of criticism by community organizations, churches, civic organizations and even major police departments. The primary concern is that victims and witnesses of crimes will be unwilling to report crimes and criminals to the police and to testify in court, fearing that police officers will give their names to immigration agents. The Governors of California and other states have complained that the program has erroneously reported thousands of people for minor offenses and those that were ultimately not guilty.

As a result, many of the states that signed the agreement decided to terminate it. The federal government has sent letters to the governors of the 39 states that signed agreements informing them that their agreement is not necessary and that they will be required to comply with the terms of the program. The states have a strong argument that the U. S. Constitution gives states the right to conduct law enforcement activities.

topics covered: Immigration Law
written on August 10 by Jess J. Araujo
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Conditions on Drivers Licenses for Immigrants Prohibited

Texas Judge Orlinda Naranjo ruled last week that Texas can no longer deny drivers licenses to immigrants in the country on temporary visas and that it cannot issue a different looking license to them. The invalidated law also sets the drivers’ license expiration date to coincide with the expiration date of the immigrant’s temporary visa. Judge Naranjo said that Texas exceeded its authority when it established this unlawful policy in 2008 which requires immigrants to prove that they are in the country legally when applying for a driver’s license. Critics of the law revealed that Republican Representative Jim Pitts deliberately added this anti-immigrant provision at the last minute to an urgent education funding law. The Republican Governor of Texas, Rick Perry strongly supported the law which was set to take effect in September.

The Mexican American Legal Defense and Education Fund (MALDEF) sued the State of Texas on behalf of six immigrants and a local business that hires immigrants under a federal temporary worker program. The lawsuit established that the invalidated law violates the civil liberties of immigrants and authorizes and requires the use of racial profiling. MALDEF attorneys characterized the law as “misguided” and said that it was an irrational policy that illegally discriminates against lawful temporary residents and their families. They added that the improper law caused extreme financial hardships to hundreds of local businesses that hire legally admitted temporary workers.

MALDEF attorneys filed the lawsuit after learning of hundreds of victims that complained that they were wrongly denied drivers’ licenses. These included those that were born in homes to midwives and those that hold valid temporary visas issued by the federal government. The victims reported that Texas Department of Public Safety (Motor Vehicle) employees did not know how to recognize federal visas which often forced the immigrants to make multiple trips to the agency. Many reported multiple wrongful denials and some qualified immigrants never got a drivers license.

Thomas Saenz, the President and General Legal Counsel of MALDEF said “as a nation of immigrants, our tradition, too often violated historically and today, is to welcome immigrants and incorporate them into our society, cognizant of the enduring contributions immigrants have made and continue to make.” MALDEF attorney Marisa Bono added that the Texas agency “created havoc by attempting to inject its political agenda into the lawmaking process.”

This case is very important to immigrants and to immigrant rights and civil liberties organizations. Denying drivers’ licenses to undocumented immigrants is common and popular in many states but this recent Texas law expands the attack to include immigrants that have been granted temporary visas by the federal government. This case demonstrates once again that prompt legal action has been able to stop the implementation of invalid anti-immigrant laws. The State of Texas has indicated that it will appeal this decision. MALDEF attorneys have indicated that they will be prepared for any such appeal.

topics covered: Auto/Car Law, Immigration Law
written on August 3 by Jess J. Araujo
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