News & Events

By Ramon Trujillo

On Thursday, April 28, 2011, Gupta & Trujillo held its first Immigration Law seminar entitled “Know Your Rights” at the iconic Librería Martínezin Santa Ana, California.  The Librería Martínez and the Academy of International Dance graciously sponsored the event to raise immigration awareness among the Latino Community of Santa Ana and Orange County.  Gupta & Trujillo is proud of the event’s success, which attracted nearly 40 individuals, all of whom had pressing immigration concerns.

Since the introduction of recent legislation in Arizona and similarly proposed legislation in other states, many immigrants live in fear of deportation due to a general lack of knowledge of their rights.  However, immigrants, both illegal and legal, have many rights similar to United States citizens. Gupta & Trujillo is determined to advise immigrants of their rights with the hopes that  immigrants will have a better understanding of their rights in criminal as well as deportation proceedings. We are providing an outline of our “Know Your Rights” Seminar below, which covered the following topics:  Civil Rights, Property Rights, Deportation, Domestic Violence, Green Card Procedures, and Residency Timelines. 

CIVIL RIGHTS

Legal immigrants, such as legal permanent residents or nonimmigrant visa holders, enjoy several rights while living in the United States. The following outlines some of those rights:

• Access to United States federal and state courts (this right is also applicable to illegal immigrants)
• The right to gainful employment under the equal protection clause of the federal and state constitution;
• The right to federal and state mandatory minimum wages;
• The obligation to pay state and federal taxes.

Generally, immigrants receive treatment similar to U.S. citizens under the criminal justice system.

The Fourteenth Amendment

The fourteenth amendment guarantees your right to due process under the United States and California Constitutions.  Due process is “a fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard, before the government acts to take away one's life, liberty, or property.

Due process applies to both legal and illegal immigrants.

The Fifth Amendment

The Fifth Amendment guarantees legal and illegal immigrants the right to Miranda warnings prior to an arrest.  A Miranda warning is your right to remain silent, your right to contact an attorney, and to be clearly informed that anything you say will be used against you in a court of law. This area of law is designed to protect you from making confessions during or after an arrest to law enforcement officials or U.S. government officials.

The Fourth Amendment

The Fourth Amendment guarantees legal and illegal aliens the right to be free from unreasonable searches and seizures and that warrants against are based on probable cause. Generally, law enforcement and ICE officials must have a reasonable suspicion to stop you and question you about your immigration status. Law enforcement and ICE officials must also obtain a valid warrant based on probable cause to enter and search your home.  A law enforcement official or ICE cannot stop you, question you, or search you based on your race.

The Sixth Amendment

Among other rights, the sixth amendment guarantees legal and illegal immigrants the right to effective assistance of counsel during criminal proceedings, the right to a speedy trial, and to be informed of the nature and cause of the accusation against you.

The Sixth Amendment requires defense counsel to advise a legal and illegal immigrant of the risk of deportation arising from a guilty plea. Defense counsel’s failure to advise or misadvise you of the immigration consequences by pleading guilty can constitute ineffective assistance of counsel.

Immigrant's Rights in Removal/Immigration Proceedings

An immigrant in immigration proceedings is not given the same rights as a defendant in a criminal trial. You have the following rights:

• To an attorney at no expense to the Government;
• To an interpreter if necessary;
• To contact an attorney;
• To communicate with a consular official from his/her home country;
• To be provided with a list of free or low-cost legal service providers;
• To a reasonable opportunity to examine the evidence against you; 
• To present evidence on your own behalf; and
• To cross-examine witnesses presented by the Government.

PROPERTY RIGHTS

State law controls the right of an alien to hold real property in a particular state. The California Constitution, Article 1, section 20 states that “noncitizens have the same property rights as citizens.”

Nonresident foreigners may acquire, possess, enjoy, transmit, sell, and inherit property in California. 

Vehicle Rights

Local law enforcement will, most likely, impound your vehicle if you are caught driving without a driver’s license and are here in the United States illegally. Under California, it is against the law to drive a vehicle without a valid driver’s license. Local law enforcement will ask you for your driver’s license during all routine traffic stops. You will be subject to heavy fines to get your car back after it’s been impounded.

On March 12, 2011, the Los Angeles Police Department announced its decision to end the practice of immediately seizing cars of illegal immigrants who are stopped at sobriety checkpoints. Instead, police officers will give you “reasonable time” to find someone else to drive your car home. It only applies at sobriety checkpoints and only if the driver isn’t drunk or wanted by the police. The Los Angeles Police Department may continue to impound cars, if so required, during all other traffic stops.

Cal Aid

Illegal California college students may apply and receive financial aid, such as Cal Grants, as well as privately funded scholarships. Also, illegal immigrant students who spend at least three years in California high schools pay only the in-state tuition rate at a California college or university.

Cal Works

Children of illegal immigrants who are below or at the poverty standard may apply for welfare benefits and food stamps from Cal Works. The Cal Works program provides temporary financial assistance and employment focused services to families with minor children who have income and property below State maximum limits for their family size.

DEPORTATION

Each year thousands of immigrants are removed from the United States and deported to their native country. This is known as the removal process or removal hearings.

The process begins when the Department of Homeland Security (DHS) serves you with a charging document, known as the Notice to Appear (NTA), alleging violations of immigration laws. The NTA will: 

• Notify you to appear before an immigration judge;
• Advise you of the nature of the proceedings;
• State the legal allegations against you;
• Advise you of your right to an attorney; and
• Explain the consequences of failing to appear to your scheduled hearing.

You can terminate the NTA and the removal hearing if you or your attorney finds fault in the NTA. For instance, you can argue that the NTA lacks evidence to warrant your removal.

There are several ways you can end up in removal hearings:

1. You applied for a visa application through USCIS and it is denied. 
2. You are here illegally and have made your illegal presence known to law enforcement or government officials.
3. You have committed a crime that triggers deportability. This includes the following crimes:

• Crimes triggering deportability applies to you if you are an alien who has been admitted to the United States, and thereafter commits a crime.
• Controlled substance offenses, such as heroin and cocaine
• Crimes involving moral turpitude
• Multiple moral turpitude convictions
• Aggravated felonies
• Firearm and destructive device convictions
• Crimes involving espionage, sabotage, or treason
• Crimes of domestic violence, stalking, child abuse, child abandonment, or neglect
• Failure to registrar as a sex offender
• Violating a protective order or temporary restraining order
• High speed flight form an immigration checkpoint
• Failure to register or falsification of documents

       4.   You commit a crime that triggers inadmissibility

• Inadmissibility applies to you if you are an alien who has not been admitted to the United States.
• Crimes involving moral turpitude
• Controlled substances offenses
• Multiple criminal convictions

       5.  You commit conduct-related crimes (no conviction is required)

• Crimes involving moral turpitude
• Controlled substance offenses
• Prostitution
• Fraud or misrepresentation
• False claim to United States Citizenship
• Alien smuggling
• Marriage fraud
• Human trafficking
• Money laundering
• Espionage, sabotage, and treason
• Terrorism
• Alien with a physical or mental disorder who poses danger to self or others
• Unlawful voters
• Polygamy
• International child abduction

Moral Turpitude

Moral turpitude generally refers to conduct that is inherently dishonest, base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Crimes involving moral turpitude may include:

1. Murder, voluntary manslaughter, kidnapping, mayhem, rape, fraud, spousal abuse, child abuse, incest, assault with intent to commit another specific intent offense, aggravated assaults, assaults on vulnerable classes (children, the elderly, or the mentally disabled) communication with a minor for immoral purposes, lewd and lascivious conduct toward a child, knowing possession of child pornography, driving under the influence without a license, theft offenses, robbery, receiving stolen goods with guilty knowledge, forgery, embezzlement, extortion, perjury, and will tax evasion.
2. Crimes that MAY fall outside of the definition of moral turpitude include:  Simple assault, unlawful entry, damaging private property, escape, possession of an altered or fraudulent document, and indecent exposure.

The Bond Hearing

In a typical removal proceeding, the person in question is arrested and detained by United States Immigration and Customs Enforcement (ICE). You will most likely be detained at a facility closest to where you live.  You will most likely be detained at a facility closest to where you live.  You will also be detained in a separate section from U.S. prisoners, if the ICE facility is located at the same place as a U.S. prison.

Once you are detained, ICE will determine if you are bond eligible.  Like in criminal court, a bond in immigration court is an amount of money set by DHS or an immigration judge, as a condition to release you from detention and ensure your presence at a future immigration court hearing. 

These hearings are generally not a part of the removal proceedings and the decision can be appealed to the Board of Immigration Appeals (BIA) prior to your removal hearing.

Relief From Removal

Once in removal proceedings, you can apply for relief from removal before an immigration judge. It is advised that you hire an attorney to assist you in this process because immigration laws and criminal laws are often complex and difficult to understand.

 You may be eligible for several forms of relief from removal including:

• Asylum;
• Adjustment of status;
• Cancellation of removal; 
• Certain waivers of removability or inadmissibility;
• Obtaining a pardon under the Immigration and Nationality Act;
• Protection under CAT; or
• Withholding of removal.

Voluntary Departure

If you have no avenue of relief and are likely to be removed from the United States, we advise that you hire an attorney who can assist you in applying for voluntary departure. You can apply for voluntary departure either before your removal proceeding concludes or at the conclusion of the proceedings. You must agree to depart voluntarily and at your own expense.

The advantages of voluntary departure:

1. You will not be subject to a bar on readmission to the United States. Aliens who are ordered removed face a 10 year bar to reentering the United States.
2. You may choose the time and manner of departure and your travel destination.

DOMESTIC VIOLENCE

You are eligible for two forms of relief if you are the victim of domestic violence.  Remember, if you commit domestic violence, you will be subject to removal proceedings regardless of whether you are illegal or an admissible.

U-Visa

A U-Visa is a petition for U nonimmigrant status. It provides temporary immigration benefits to immigrants who are victims of criminal activity, who have reported the crime to authorities, and who have assisted authorities in the investigation of the crime. You may be eligible for a U-Visa if:

• You have suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity;
• You have reliable information establishing your knowledge of the qualifying criminal activity;
• You have been helpful in the investigation or prosecution of the qualifying criminal activity; and
• The qualifying criminal activity occurred in the United States.

Criminal activity includes:  

• Rape;
• Torture;
• Trafficking;
• Incest;
• Domestic violence;
• Sexual assault;
• Abusive sexual contact;
• Prostitution;
• Sexual exploitation;
• Female genital mutilation;
• Being held hostage;
• Peonage;
• Involuntary servitude;
• Slave trade;
• Kidnapping;
• Abduction;
• Unlawful criminal restraint;
• False imprisonment;
• Blackmail;
• Extortion;
• Manslaughter;
• Murder;
• Felonious assault;
• Witness tampering;
• Obstruction of justice;
• Perjury; or
• Attempt, conspiracy or solicitation to commit any of the above.

USCIS only grants 10,000 U-Visas per fiscal year. 

Your U-Visa application requires not only your complete cooperation with your attorney, but also the cooperation of:

• Law enforcement;
• District attorneys;
• City attorneys; or
• Judges

Once your U-Visa petition is approved, it is only valid for four years.  You must apply for an adjustment of status application (your application for your green card) within three years.

Violence Against Women Act (VAWA)

The Violence Against Women Act (VAWA) allows battered spouses, children, or parents to self-petition for legal status in the United States without depending on an abusive U.S. Citizen or legal permanent resident to sponsor their adjustment of status application.

A VAWA petitioner must meet the following criteria:

• an immigrant who entered into a good faith marriage to a U.S. Citizen or legal permanent resident and was either battered or subjected to extreme cruelty; and
• is a person of good moral character.

You can apply either administratively through the United States Citizenship and Immigration Services (USCIS) or in proceedings before an immigration judge.  Once your VAWA petition is approved, you must file for an adjustment of status application to get your green card.

GREEN CARD PROCEDURES

A green card is evidence of legal permanent resident status. You can become a legal permanent resident upon first admission to the United States with an immigrant visa or upon adjustment of status in the United States based on a non-immigrant visa.

What lawful permanent residence does not provide:

1. Citizenship
2. Permanent residence in the United States

• Legal permanent residents are subject to deportation and can be deported for criminal offenses
• Legal permanent residence can be abandoned. You must show no intent to maintain your status and objective circumstances showing that you no longer desire to keep your green card. For example, if you live outside the United States for a long period of time.

The following lists eligible visas to obtaining lawful permanent residence:

• Family-sponsored visas
• Employment-based visas
• Diversity visas
• Refugees and asylees
• Fiancée visas 

Family Based Visas

If you are a U.S. citizen, you may petition for the following relatives to obtain a green card:

• Spouse;
• Children who are unmarried and under the age of 21;
• Sons and daughters who are married and 21 years or older;
• Parents, if you are 21 or older; and
• Siblings, if you are 21 or older.
• Fiancé(e)

If you are a lawful permanent resident, you may petition for a green card for the following relatives:

• Spouse;
• Unmarried children under 21; and
• Unmarried son or daughter of any age.

If you entered the U.S. as a refugee within the past two years or asylee granted asylum within the past two years, you may be eligible to petition the following relatives to obtain derivative refugee or asylee status:

• Spouse; and
• Children who were unmarried and under 21 years of age when you first filed for refugee or asylum status.

Diversity Visa Lottery

Each year, the Diversity Immigrant Visa Program makes 50,000 green cards available to applicants drawn at random and who are from countries with low rates of immigration to the United States.

A Diversity visa is not available to persons from high admission states:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, PERU, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

Fiancé(e) and Marriage Visas

The K-1 fiancé(e) visa is available to U.S. citizens who wish to marry a foreign national fiancé(e) living abroad or to bring your spouse and that person's children (K-3 and K-4 visas, respectively).  You must meet the following requirements:

• The petitioner must be a U.S. citizen;
• The petitioner must intend to marry the fiancé(e) within 90 days of  the fiancé(e) entering the United States;
• Both the petitioner and the fiancé(e) must be free to marry;
• Any previous marriages must have been legally terminated by divorce, death, or annulment; and
• The petitioner and fiancé(e) must meet each other in person at least once within 2 years of filing the petition. This is known as the meeting requirement.

As stated above, a U.S. citizen and a legal permanent resident can petition for his/her immigrant spouse. Marriage results in conditional residence status for two years. After two years, you and your spouse must file a joint petition to remove the immigrant spouse’s conditional status.  Once approved, the immigrant spouse can file for legal permanent resident status.

Your joint petition must demonstrate:

• You entered into a good faith marriage;
• The marriage was legal where it too place;
• The marriage has not been terminated;
• The marriage was not entered into for the purposes of obtaining a green card

If the marriage is terminated within the two year period, the immigrant spouse may apply for a waiver:

• You will experience extreme hardship if removed from the United States;
• You entered the marriage in good faith and the U.S. citizen or legal permanent resident died;
• You entered the marriage in good faith and the U.S. citizen or legal permanent resident spouse was physically or mentally abusive towards you; or
• You entered the marriage in good faith, but it terminated.

Asylum and Refugee Status

Annually, thousands of people apply for asylum or refugee status for fear of returning to their native country. Refugee status or asylum may be granted to individuals who have been persecuted or fear they will be persecuted based on their:

• race;
• religion;
• nationality;
• membership in a particular social group; and or
• Political opinion.

RESIDENCY TIMELINES

Once you have applied for a green card, you must wait for your visa number to become available. This wait is determined by when you filed your visa application, which is also known as your priority date. 

Immigrant visa availability is numerically limited by category, such as family based visas and employment based visas, and by your country, which in most cases, is your country of birth. For a better understanding of your country’s visa availability dates, please look at the state department’s visa bulletin at http://travel.state.gov/visa/bulletin/bulletin_1360.html.

Here is the visa bulletin for Family Based Visas for May 2011.

The categories are defined as follows:

• F1: unmarried sons and daughters of citizens
• F2A: spouses and children of legal permanent resident
• F2B: unmarried sons and daughters of legal permanent residents
• F3: married sons and daughters of citizens
• F4: brothers and sisters of adult citizens

Naturalization

Once you obtain a green card, you may apply for naturalization (United States citizenship) after a certain amount of time has passed:

• If you got your legal permanent resident status based on marriage, you may apply for naturalization after 3 years.
• If you got your legal permanent resident on any other basis, you may apply for naturalization after 5 years.

You must apply for naturalization approximately one year before you reach your 3-year or 5-year date.Naturalization is a personal choice, not a requirement. But, it is recommended because, unlike legal permanent residence, citizenship cannot be lost by committing crimes, etc.

To qualify for naturalization you must:

• Be a lawful permanent resident and have satisfied the requisite 3 or 5 year time limit;
• Be 18 years or older;  
• Meet a continuous residence and physical residence requirement. This means that you:
  • continuously resided in the United States for at least 3 or 5 years after you obtained legal permanent residence
  • were physically present in the United States for at least one-half of the 3 or 5 year time frame after you obtained legal permanent residence
• Reside continuously in the United States from the date of filing your naturalization application to admission to citizenship;
• Reside for at least three months in the state where your naturalization application is filed
• Be a person of good moral character for 3 or 5 years prior to filing for naturalization and up to admission to citizenship. This means that
  • You have not committed any crimes, such as crimes involving moral turpitude or involving controlled substances.
• Removal proceedings are not pending against you;
• Be willing to learn the principles of the United States constitution; and
• Demonstrate knowledge of the English language; U.S. history; and government.