Texas Judge’s Decision Causes Immediate Problems for Immigrants Nationwide

The stories below are based off real client experiences. However, all names and specific details have been altered as a matter of privacy and confidentiality.

Recently, a Texas federal judge issued a temporary injunction on President Obama’s executive action that would provide temporary status for thousands undocumented immigrants in the U.S. The U.S. Department of Justice has appealed the judge’s decision in hopes of overturning the injunction. For the time-being, however, the expanded DACA and DAPA programs are on hold until the Texas judge makes final ruling on the case.

I could write for pages about how the Texas judge’s ruling is legally flawed and wrong, but that is not the subject of this post. This is about the effect of the ruling on undocumented immigrants and their families.

The most immediate effect is that the immigrants who are eligible for the relief cannot apply for benefits until the injunction is overturned. These immigrants who have been in the U.S. for several years, have families and children in the U.S. and have no significant criminal history are forced to remain in the shadows instead of coming forward to receive status, a work permit and an identity.

The ruling has also had less noticeable effects on immigrants. As part of his executive actions, President Obama also announced changes to immigration enforcement priorities. As part of the priorities, immigrants without significant convictions are generally not an enforcement priority and should generally not be deported. The Texas judge’s ruling did not overturn these priorities. However, attorneys are noticing that immigration officers across the country are refusing to enforce these priorities due to the Texas decision. This is wrong and has immediate effects on immigrants.

Take for example, Mark. He is under an order of removal. He could be arrested and deported at any moment. He has been in the U.S. for 8 years. He has two U.S. citizen children. He has one non-significant misdemeanor conviction and no other criminal history. However, he is not eligible for any immigration relief other than DAPA.

He likely could apply for DAPA program, but that is on hold. He also qualifies as an enforcement priority. Under Obama’s new enforcement priorities, people like Mark generally should not be deported. However, some immigration officials are ignoring these priorities, placing Mark and other similarly situated immigrants in fear of deportation.

The Department of Homeland Security, the government agency in charge of immigration enforcement, stated that the new enforcement priorities are in place; however, immigration officers appear to have missed that message. Until they receive the message, Mark and other hard-working, law-abiding immigrants will be at risk of having their lives and families torn apart

DISCLAIMER: Nothing in this blog should be construed as legal advice. If you are in removal proceedings or need legal advice on your immigration case, please contact an immigration attorney.

Mellouli, The Director’s Cut: How a Case About a Sock Found Its Way from Johnson County, Kansas to the Supreme Court

On Wednesday, the U.S. Supreme Court heard oral arguments for Mellouli v. Holder. The case centered on important legal issues concerning what crimes make a lawful permanent resident deportable and how a court should make that determination based on the conviction records. These arguments have been written about and discussed extensively.  But, how did the case make it from a small Johnson County courtroom to the marbled halls of the US Supreme Court?

Not all cases that seek out Supreme Court review are selected; in fact, very few make it.  Often times the cases that make the cut have been deliberately and methodically nurtured for the journey.  In the Mellouli case, this process started very early on. Moones Mellouli was facing criminal charges brought on after he was stopped for a DUI.  While he was being booked into the jail, police found four Adderall pills he that were located in his sock. He retained the service of a criminal defense attorney to assist him.  The criminal defense attorney, mindful that non-citizens face very different consequences than citizens when it comes to criminal charges, insisted that Mr. Mellouli seek out the assistance of an immigration attorney.  This is when we got involved.

Mr. Mellouli had no other criminal history other than the charges he faced from the DUI arrest.  He was a green card holder with a great education.  He was a productive member of society and had deep roots to the United States.  Yet, one simple interaction with police had the potential of unraveling his whole life in the US; a possibility that, as time would reveal, became a reality.  Working with defense counsel, we worked to craft a plea agreement that was just and fair given the conduct and other mitigating factors.  The prosecutor agreed.  Mr. Mellouli was convicted with a single count of possession of paraphernalia, namely, his sock.  The offense is a misdemeanor under Kansas law.

The Department of Homeland Security (DHS), based on this conviction, still believed that Mellouli was subject to deportation. To be a deportable offense, the conviction must relate to a controlled substance listed in the federal list of controlled substances.  But, the documents in Mr. Mellouli’s criminal case did not identify the type of drug that was involved and since Kansas has some substances on its list of controlled substance that are not on the federal list, we argued that Mellouli could not be deported and he should be able to stay in the United States as a permanent resident.  The immigration Court did not agree.

We lost. But we had built a strong record and we appealed to the Board of Immigration Appeals. We lost again. Undeterred, we appealed the case to the Eighth Circuit Court of Appeals, which includes Missouri. The Eighth Circuit once again sided with DHS in saying that deportation was proper for someone who was only convicted of possessing a sock so long as the sock had anything to do with a controlled substance.  We did not think these decisions were correct because it did not seem right that something so simple should carry banishment from the US as a consequence.  We also believed that given the specific language of Mr. Mellouli’s conviction, DHS had not met its requirements under the law. So, we kept pushing forward.

A lot of cases make it to circuit courts of appeal. Very few cases make it to the Supreme Court. Only 1 percent of petitions filed with the Supreme Court are accepted for oral argument. From June 30, 2011 and July 2, 2012, 7654 petitions were filed with the Supreme Court; only 66 were accepted. Sometimes in order to overcome the odds, it helps to have a bigger team.  We enlisted the help of the Center for New Americans, a nonprofit organization with the University of Minnesota. The Center helped bring together even more resources and talent.  Everyone worked hard to try and narrow the arguments to present it in the most compelling way possible.  Lots of people from around the nation gave opinions, helped edit the legal briefs and played devil’s advocate.  With so many people working together, we were hopeful that the Supreme Court could be convinced to hear the case.  In order for the Supreme Court to accept a case, 4 of the 9 justices must agree to hear the case. The Supreme Court agreed to hear the case and on January 14, 2015, after months of briefing, the case was orally argued.

Watching the arguments unfold in the highest court in the nation is pure legal theater.  The room was filled with attorneys, media, and spectators who sit awestruck at the realization of the journey that very few cases make.  Getting this case from the Kansas City Immigration Court to the Supreme Court was difficult. It took vision and skill (to identify the compelling facts and legal issues), humility (to accept multiple loses and to keep trying), and luck (in finding the right people with the right resources to get the case before the Supreme Court). While the outlook of the case’s outcome is positive, the fact that the case made it all the way to the Supreme Court after so many defeats is a victory on its own.



Judge Sends a Message With Withholding of Removal Ruling

Sharma-Crawford, a firm specializing in immigration law, recently won a significant victory in a pro bono withholding of removal case. When the judge granted our client’s withholding of removal, he also sent a message to the Department of Homeland Security (DHS) that it should protect its named witnesses in federal criminal cases.

Immigration and Customs Enforcement (ICE) operates like any other law enforcement agency in that it uses informants to substantiate cases. In exchange for their testimony, informants or witnesses are offered work cards in order to remain in the U.S. The relationship between informants and Immigration is much like at-will employment. The work cards represent the informant’s pay, and once their “job” of providing testimony is done, so is the benefit of their work card.

In this case, the client was a named witness for the DHS in a federal criminal case. Because he was a named witness, he received threats against this life and his family was victimized in their home country. In spite of these conditions and despite the fact they had promised the informant more work cards; DHS failed to act when the client attempted to reenter the U.S. with expired documents and was turned away.

Long story short, the judge was aghast at this lack of witness protection and sent a message via his withholding of removal. A withholding of removal is when an immigrant is ordered removed from the U.S. but that order is withheld because he or she would be persecuted in their home country. The message to DHS was that this client was their informant, he was in danger and they have a responsibility to protect him even after the federal case ended.

Our client is able to remain in the U.S. now with a work card, renewable annually. As his immigration lawyers, we were able to convince the judge that he fell into one of the five groups eligible for asylum (race, religion, nationality, political opinion and group membership) and his fear of persecution in his home country was reasonable. The client was considered part of a social group (informants) and in danger of persecution since he was a named witness.

This case was victorious and significant for two reasons. One, the judge did the “right” thing in withholding our client’s removal. More than likely, the ruling saved his life. Two, our client supplied his immigration lawyer with the relevant information we required to represent him. He did so simply, honestly and without exaggeration. His statements remained unchanged the first time and every time after that including at trial.

Considering the real risk for retaliation against witnesses, the judge’s response and actions are encouraging. DHS should heed this recent ruling by following through on its promises of work cards, and thus protection, since these immigrants have little else by way of defense.

ICE has never made an official admission of using undocumented immigrants as informants. Yet it’s common practice. These informants give authorities information they need to build and prosecute criminal cases from human and drug trafficking to arms smuggling and money laundering.

All the while immigrant informants are putting their lives at risk in hopes of being rewarded with legal status—that is rarely granted. The number of illegal informants is unknown, but believed far higher than the number of visas that lead to a green card. When law enforcement agencies are using undocumented immigrants to build their cases and make communities safer, shouldn’t those informants earn the right to live within them versus being sent back to their home countries where they’ll be in jeopardy?

Sharma-Crawford, Attorneys at Law is a firm deeply experienced in the complexities of immigration law. Whether you are facing criminal or civil litigation in state, federal or immigration court – the caring professionals at Sharma-Crawford can help you navigate through the complex legal system. For more information, please call (913) 385-9821 or visit www.Sharma-Crawford.com. The choice of a lawyer is an important decision and should not be based solely on advertisements. The information contained in this article is general information and should not be considered legal counsel.