Texas Immigration Lawyer Blog

DACA and Immigration Update

La Puerta Waco hosted a Zoom call to talk about DACA and other Immigration news with Susan Nelson and Anali Looper of American Gateways, Waco. Here is the recording:

 

 

Texas Misdemeanor Assault Family Violence Now a Deportable Offense

In April, the 5th Circuit held that Tex. Penal Code §22.01(a)(1) is a crime of violence and thus a crime of domestic violence if a “protected person,” such as a spouse is the victim. U.S. v. Gracia-Cantu, 920 F.3d 252, 254 (5th Cir. 2019) (citing, U.S. v. Reyes-Contreras, 910 F.3d 169, 183 (5th Cir. 2018)).

These cases reverse Fifth Circuit cases holding that Texas misdemeanor assault (§22.01(a)(1)) is not a crime of violence because it does not require direct force or intent to support a conviction. U.S. v. Villegas-Hernandez, 468 F.d 874, 880 (5th Cir. 2006).

A conviction for Texas Misdemeanor Assault Family Violence is now a deportable offense.

This effects both  Lawful Permanent Residents (LPRs) who are deportable and non-LPRs in removal proceedings who are ineligible for relief from removal.  

Immigration Consequences of Criminal Convictions: Texas Deferred Adjudication is a Conviction

Don't Learn The Hard Way. What Happens When You Find Out Too Late That Your Criminal Case Will Result In Removal Proceedings If You Are Not A United States Citizen by Walter M. Reaves, Jr. 

This is a great article by Walter Reaves about what to do when a criminal conviction is going to result in removal or deportation for non-citizens. This frequently happens when a non-citizen pleads guilty in Texas in exchange for Deferred Adjudication which is a criminal conviction for immigration purposes. 

 

Texas House committee advances "Sanctuary Cities Lite" bill

Texas Tribune by Julian Aguilar

The Texas House advanced their "Sanctuary Cities Lite" bill out of committee yesterday. Although less harsh than the Senate bill, it criminalizes heads of law enforcement agencies who do not cooperate with federal authorities, allows law enforcement to question arrestees about their immigration status, and includes college campuses in the enforcement requirements. 

Cops shouldn’t be in the immigration-enforcement business:

“It still creates a chilling effect for immigrants to work with local law enforcement, and it still perverts the mission of local law enforcement,” said state Rep. Rafael Anchia, D-Dallas. “You can be arrested for anything, virtually. It doesn’t require due process, it simply requires probable cause.”

A costly special session is likely this summer if a bill fails to pass as Governor Abbott has identified the legislation as a priority.

 

Texas School Officers Can No Longer Issue On-Campus Criminal Citations

Texas Tribune by Jody Serrano

I was shocked when I began handling Deferred Action for Childhood Arrival (DACA) cases at the number of young people who had school discipline related Class C misdemeanors. The Texas Legislature addressed this problem and enacted a law limiting the matters in which school police can charge students criminally. 

According to the Texas Supreme Court, roughly 300,000 students each year are given citations for behavior considered a Class C misdemeanor, including disruption of class, disorderly language and in-school fighting.

* * *

The Legislature took steps this year toward decriminalizing such misbehavior at school with Senate Bill 393 by Sen. Royce West, D-Dallas. The measure prevents school police officers from issuing citations for misbehavior at school, excluding traffic violations. Officers can still submit complaints about students, but it will be up to a local prosecutor whether to charge the student with a Class C misdemeanor. 

If students are charged, prosecutors can choose to make students get tutoring, do community service or undergo counseling before they get sent to court. 

 

 

Chief Justice Pushing Reforms in School Discipline

You may ask why I am weighing in on school discipline issues. How does that relate to immigration?

For six months, I have been working with young people who are applying for Deferred Action for Childhood Arrivals (DACA). I have been appalled by the number of young people with misdemeanor convictions received for school discipline issues for which they most often plead guilty without legal representation. This causes problems and expense in the DACA process and in other areas of their lives. 

Texas Supreme Court Chief Justice Wallace Jefferson has proposed changes to this system:

Ticketing for nonviolent misdemeanors forces students to go to court, Jefferson told the Senate Jurisprudence Committee on Tuesday. In addition to being a waste of resources, he said, that practice makes it more difficult for students to turn their lives around. “What used to be, in our day, a trip to the principal's office now lands you in court,” he said. “We're overcriminalizing low-level, nonviolent offenses in the classroom ... and then they're on a path to our criminal justice system.”

I applaud Chief Justice Jefferson for taking on this important issue and proposing a solution.

See the complete story in the Texas Tribune by Maurice Chammah. 

 

Prosecutions of immigrants in Austin down

Austin American Statesman by Steven Kreytak

In the 10 full months since Robert Pitman took over as U.S. attorney for the Western District of Texas, the number of immigrants prosecuted for illegal re-entry of a deported alien in Austin has dropped 46 percent compared with the same time frame a year earlier, according to an American-Statesman analysis of federal court data.

The decrease in the number of immigrants charged with the felony crime began two years ago but has accelerated under Pitman, who was sworn in Oct. 3 as the top federal prosecutor in the district that includes Austin.

Pitman said the drop in illegal re-entry prosecutions followed the loss of funding for an assistant U.S. attorney who had been designated to work solely on immigration cases. He noted that those identified as being in the country illegally but not prosecuted for illegal re-entry are still being deported and are among the record numbers of undocumented immigrants in Austin and other areas of Central and South Texas who have been deported this year.

An Obama administration policy encourages law enforcement officers to focus on immigrants who pose a threat to national security or public safety.

“We have been concentrating in the Austin division on identifying individuals who have serious criminal histories and prioritizing them for prosecution,” Pitman said in an interview.

 

Feds Defend Deportation Rates as Backlog Swells

Texas Tribune by Julian Aguilar

A year after the Obama administration announced it would prioritize the government’s resources on criminals when selecting which illegal immigrants to deport, the backlog in immigration courts has swelled to new highs for Texas and the nation as a whole.

Immigration lawyers say the numbers show that the government is not following through on its directive and becoming more efficient with deportation proceedings, but federal officials say that the figures aren’t telling the whole story.

Federal data compiled from the Transactional Records Access Clearinghouse, or TRAC, a data research and distribution organization at the University of Syracuse, shows that through June, more than 314,000 cases awaited a resolution nationally, a 5.6 percent increase from 2011 and a 20 percent increase from 2010. Immigration courts in Houston and San Antonio represent Texas’ largest dockets, with 11,390 and 9,220 cases pending, respectively. That is followed by courts in El Paso and Dallas, which have 6,380 and 4,915 cases pending, respectively.

The data shows that Texas ranks third nationally — with about 36,840 cases awaiting a resolution — rising from its fourth-place standing two years ago. The state trails California and New York, whose courts have 77,200 and 47,200 cases pending, respectively. In Texas, about 32,840 immigrants are being detained solely on immigration-related charges, and about 3,470 — or 9.4 percent of those with pending cases — have some other criminal violation or have been deemed a threat to national security, according to the data.

That is above the national average of 8 percent but still stands contrary with what the Morton memo was supposed to do, immigration lawyers argue. The memo, issued in June 2011, asked federal prosecutors to take into consideration the illegal immigrant’s education in the U.S. and whether he or she has graduated from high school and attended college before placing that person in deportation proceedings.

Officials were also directed to consider whether the illegal immigrant is the child or spouse of a U.S. citizen, has an immediate relative who has served in the military or is a primary caretaker of someone who is ill, in addition to the conditions in the person’s home country and the circumstances upon that person’s arrival in the U.S. — specifically if the person came as a young child. The illegal immigrant’s criminal history and whether he or she poses a risk to the country’s national security is also to be considered, as is any history of prior removal.

Attorneys say the memo has had little — if any — effect on the immigrants they represent before immigration judges. They say that some of their clients — who fall under the criteria outlined in the memo — are still being placed in deportation proceedings. The federal government, however, defends it practices and said instead that TRAC handpicked its data to suit its agenda.

* * *

Despite ICE data not being included in the assessments, attorneys still argue that the Morton memo guidelines, which irked conservative leaders and led some to accuse the Obama administration of championing “backdoor” amnesty, have had little positive effect on illegal immigrants who they say fall under the memo’s guidelines for prosecutorial discretion.

“I think it would be fair to say that the immigration bar is not seeing the results of the Morton memo on pending court cases,” said Laura Lichter, the president of the American Immigration Lawyers Association. “We believe that the cases that are remaining in immigration proceedings still do not accurately reflect what should be priority cases.”

Lichter acknowledged ICE has increased its criminal immigrant deportations, but she said that it has also expanded its pool of who falls into that category.

An example, she said, is the immigrant who lived in the U.S. for more than a decade, returned home briefly for a funeral or family emergency, then was detained upon his or her return.

“They will classify that person as a recent entrant,” Lichter said. “I appreciate the fact that they are trying to make sure that their actual removals reflect their true priorities, but they have made the bucket so big it’s hard to fall in to the bucket.”

Jacqueline Watson, an immigration attorney in Austin, said she has had one case out of an active 117 dismissed since the memo was issued, but even that action she could not credit to the guidelines.

“I have had the case closed because the trial attorney didn’t oppose my motion but not affirmatively because of deferred action,” she said. The memo, she concludes, hasn’t helped her clients, which include a mother of five children, who are U.S. citizens, a couple with no criminal history and two American children.

“I can’t say where the lack of communication is, but I can say for sure that at the trial attorney level, we’ve been met with this [explanation]: 'This case doesn’t fit; this case doesn’t deserve deferred action,’ when it’s clear that the Morton memo was made for these kind of people,” she said.

 

 

 

Immigration Secure Commnities at Forefront in Travis County Texas Sheriff Race

Texas Tribune by Julian Aguilar

In Travis County, which many consider the liberal hub of Texas, a controversial immigration-enforcement policy is at the forefront of the sheriff’s race.

Sheriff Greg Hamilton, first elected in 2004, is coming under increasing fire from his Democratic primary challenger, John Sisson, a retired Austin Police Department lieutenant, for his use of Secure Communities. The program, administered by Immigration and Customs Enforcement and in place statewide, compares the fingerprints of arrested individuals to a federal database to determine whether those individuals are eligible for deportation. If a person is found to be in violation, ICE requests that a detainer be placed on the individual for 48 hours, excluding weekends and holidays.

The federal government said the program is needed to ferret out violent immigrants or repeat immigration violators for deportation. But critics say that the system focuses on lower-level offenders rather than the more violent criminals. Sisson said Hamilton grants detainers on every immigrant who is booked.

“I was appalled to see what it was doing to the Hispanic community and the immigrant community here,” Sisson said. “I felt like it was very inhumane to be lazy and not do the research and say, ‘We’ll just hold everybody for deportation and not even mess with the particulars.’”

Hamilton said that he is merely following the law.

“The only one that can deport and put an immigration detainer on an individual is an ICE agent, not us,” he said. “At the Travis County Jail, we follow the law, and the law says that when an ICE detainer is put on, the law enforcement agency shall maintain that individual for 48 hours.”

From June 2009 to September 2011, Travis County submitted 80,731 fingerprint sets and removed 2,269 immigrants, including those who left voluntarily.

More than 900 were Level 3 offenders, convicted of misdemeanors, which include traffic violations and drunken driving. There were 420 Level 1 offenders and 437 Level 2. Level 1 are aggravated felonies, including murder, rape, sexual abuse of a minor and drug trafficking. Level 2 offenders are convicted of any lesser felony or three misdemeanors.

Travis County’s number of removals surpasses that of Bexar County, where about 105,600 submissions were processed, resulting in the removal of 1,479 immigrants.

Bexar County, which includes San Antonio, has a population of about 1,715,000, compared with Travis County’s population of 1,024,000.

But Hamilton said deputies release immigrants if ICE agents do not take them and they are otherwise releasable on bond.

* * *

The winner of the May 29 Democratic primary will face Raymond Frank, a former sheriff and admitted underdog Republican candidate who identifies himself as an independent in the mold of Rep. Ron Paul, R-Lake Jackson.

Frank has vowed to do away with the program if he is elected because it separates families. “A lot of Republicans are pretty outspoken about immigration,” he said. “And I don’t share their views at all.”

 

 

 

 

Texas House of Representatives District 56 candidates on immigration

 

On March 7, 2012, the Republican incumbent District 56 Representative Charles "Doc" Anderson and the challenger, Chistopher DeCluitt, participated in a debate in Waco at University High School. They discussed several questions that deal with immigration:

(1) In-state tuition for undocumented students (4:15-7:41). If the law were up for a vote again, Chris DeCluitt would vote against the in-state tuition law as it is now because he has concerns about the ability to verify 3 year residence for students to qualify. Mr. Anderson supports the law as it is (I think).

(2) Border Security (34:56-38:30). This was a broad question that included what should be done with the undocumented that are on this side of the border. Neither candidate addressed the undocumented question but both focused on Border Security. Mr. Anderson emphasized the increased funding and resources that Texas has spent on border security under Governor Perry. Mr. DeCluitt is of the opinion that Texas should let the federal government secure the border and that the resources should be redirected to fight the drug crime that occurs on the Texas-Mexico border.