Monday, September 26, 2005

USCIS Announces Increased Fees

USCIS today announced a new fee structure that will increase most applications by an average of $10 each. USCIS operates as a fee-based agency, which means that the government is charging applicants to pay for the entire cost of reviewing and processing applications.

The new fee structure becomes effective on October 26, 2005, and an announcement is posted in the Federal Register.

Sunday, September 25, 2005

NJ Attorney General Misconstrues Immigration Basics

The Princeton Borough Council is trying to pass an ordinance that will prohibit municipal officers (within the control of the Princeton council) from devoting its time and resources to mere civil immigration violations. The vast majority of immigration violations are not crimes. They are not criminal acts, they cannot be punished in a criminal prosecution, and the federal government does not take them to criminal court. Many are instead brought to immigration court on allegations that they have mere civil violations.

Civil violations are not criminal violations. An example of a civil violation is where someone is late paying a bill (I am not talking about an elaborate fraud where someone is intentionally stealing from someone with no intention to pay). Neither are criminal actions and although you can go to small claims court to get the money in dispute, nobody is going to arrest someone and throw them in jail over the issue.

By using mere civil charges, the immigration authorities have convinced the courts that they do not need to give a poor person appointed counsel -- many immigrants are forced to fight for their freedom without a lawyer. Courts have also been convinced that the government can take advantage of information that they obtain through most types of unlawful searches and seizures, with an exception for only the most heinous acts.

The Princeton Borough stressed the difference between civil and criminal violations in proposing a resolution that would order its municipal police not to devote its limited time and resources to arresting people on mere civil violations. It was careful to make clear that the police should devote its time in any situation where the immigration violations were criminal acts.

In a legal opinion dated September 6, 2005, the New Jersey Attorney General issued an opinion that immigration violations (even mere civil ones) must be enforced by municipal police. The rationale, however, suggests that the Attorney General does not understand the nature of civil immigration violations.

The opinion explains that the New Jersey Attorney General has powers to coordinate police response to criminal acts. That makes sense so far. But then, the Attorney General jumps to a conclusion that therefore, the Attorney General can coordinate municipal police in responding to immigration violations. That leap only makes sense for immigration violations that are criminal acts.

Therefore, the Attorney General's opinion just does not make sense. It is clouding what should be a clear issue: municipalities should be free to take whatever stance they want to regarding how much effort their police should spend on mere civil violations.

In Princeton, the local government has made an excellent decision to try to limit local police involvement in mere civil violations -- using local police to pursue mere civil violations scares away immigrants from reporting urgent, crucial information to help with crime-fighting. Immigrants are afraid of turning to the police to report crimes. Some who have reported crimes to the police have found themselves, absurdly enough, turned over to be deported for mere civil immigration violations.

If our country truly is going to fight crime and protect its communities, it needs to encourage immigrants to help police fight crime. One step is to encourage immigrants to talk to local police and know that they will not be arrested and deported for mere civil violations.

Saturday, September 24, 2005

Another Motion To Suppress Not Preserved For Appeal

In the case of Abdul Karim v. Gonzales decided by the First Circuit in case number 04-2206 on September 22, 2005, the immigrant once again failed to make his motion to suppress evidence in the right manner.

The problem is that if you are going to argue that the government should not be allowed to use certain evidence to prove that the immigrant is deportable, you have to make sure that you raise this issue without conceding that the immigrant is deportable. If you admit that the immigrant is deportable, then it doesn't matter whether the government is or is not allowed to use the controversial evidence -- the court can rely on the admission of deportability.

In the Abdul Karim case, the immigrant conceded removability, so any complaints about whether evidence was improperly obtained could not be pursued or appealed.

The First Circuit did indicate that it is unclear whether the exclusionary rule would apply in immigration court for all unlawful searches and seizures, citing the Lopez Mendoza case. Because the First Circuit was not focused on the issue, it did not go through the required analysis to determine whether the exclusionary rule should apply for all unlawful searches and seizures. There are strong arguments for requiring the exclusionary rule to apply in immigration courts in the same way it applies in criminal cases. We shall see whether the courts agree with this theory.

Update: additional analysis is provided by the Appellate Law & Practice Blog, which is by the way an excellent blog that focuses for the most part on the First Circuit for immigration decisions.

Addition: another appeal lost because the immigrant conceded alienage at the hearing and all the allegations is Miguel v. INS, No. 02-3758 (6th Cir. Feb. 26, 2004).