Recently in Tennessee Immigration Category

A Review of the Deferred Action / Deferred Prosecution Criteria for an Applicant's Criminal History

August 11, 2012, by The McKellar Law Firm, PLLC

As the Deferred Action ("DA") program is set to begin in a few days, more information has been released by U.S. Citizenship and Immigration Services concerning the requirements and procedures for the DA program. General information on the DA program can be found at my website. However, the purpose of this blog article is to look solely at the requirements related to an applicant's criminal history.

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One of the qualifications for an applicant to the DA program is that the applicant not have "been convicted of a felony, significant misdemeanor, three or more other misdemeanors" and "do not otherwise pose a threat to national security or public safety." In other words, if you have a conviction for a felony offense, "significant misdemeanor offense," or 3 or more other misdemeanor offenses, you will not be granted deferred action.

While a felony conviction is easy to understand, the term "significant misdemeanor offense" is a bit trickier to grasp. USCIS defines significant misdemeanor offense as a misdemeanor that satisfies the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,

2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

Since there now exists a concept of significant misdemeanor offenses, we must also understand what constitutes a "non-significant misdemeanor," which USCIS defines as a misdemeanor which:

1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and

2. Is one for which the individual was sentenced to time in custody of 90 days or less.

USCIS also notes that minor traffic offenses (e.g., driving without a license) will not be considered a misdemeanor for purposes of the DA program, but an applicant's "entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, [an applicant] warrants an exercise of prosecutorial discretion."

While there are still many questions concerning how an applicant's criminal history may impact his/her ability to take advantage of the Deferred Action program, this new guidance makes it even clearer that those with criminal convictions should consult with an immigration attorney prior to submitting an application to the DA program.

An Overview of ICE Immigration Detainers

June 19, 2012, by The McKellar Law Firm, PLLC

For defendants and criminal practitioners alike, seeing the terms "ICE Hold" next to a person's name can often cause anxiety and confusion. The purpose of this blog post is to provide a brief overview of what an ICE Immigration Detainer is, and perhaps more importantly, what it is not.

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Pursuant to 8 CFR § 287.7, authorized immigration officers are allowed to issue a Form I-247, Immigration Detainer - Notice of Action, which is a request that the local law enforcement agency notify Immigration and Customs Enforcement (ICE) that an alleged non-citizen has been taken into custody by local law enforcement. A copy of an Immigration Detainer can be found here.

One of the often overlooked sections of both the ICE Detainer and the language of 8 C.F.R. § 287.7(d) is the requirement that the Detainer only allows detention of the alien "for a period not to exceed 48 hours." Although there is some disagreement over when the 48-hour period is triggered, the common view is that it is triggered (for pre-trial cases) by the detained person a) posting bond or getting released ROR (released on his/her own recognizance) or b) the local court dismissing the underlying criminal case against the detainee. Alternatively, if the 48-hour period expires, and ICE has not assumed custody of the detainee, local law enforcement does not have grounds to hold the alleged non-citizen for any suspected federal immigration law violations.

While there are many more nuances about ICE Detainers, it is important to realize that an ICE Detainer is not a document which authorizes "indefinite" holds, as is often assumed. The Detainer is very narrow in its request, and for those agencies who have violated the terms of the ICE Detainer, they can potentially be held liable for damages.