All Immigrants in New York have Right to Trial by Jury

by Jose Enrique Perez

Just last month, the New York State’s highest court said that the U.S. Constitution guarantees jury trials to non-citizens charged with crimes that could subject them to deportation. It is very likely that the case will go to the United States Supreme Court for final determination.

The Court of Appeals rejected an argument by Bronx county prosecutors that deportation is merely a civil consequence of criminal convictions, and the Sixth Amendment did not require jury trials for defendants charged with minor yet deportable crimes.

The court found that “It is now beyond cavil that the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty.”

The decision means non-citizens will be entitled to jury trials even if their alleged deportable crimes carry maximum prison terms of six months or less.

The risk for deportation of a non-U.S. citizen accused of a low-level crime is enough to guarantee that individual have a trial by jury rather than a bench trial.

The Bronx District Attorney said the decision addressed the “harsh realities” of possible deportation, but also threatened “serious backlogs and disparities in the administration of justice” in state courts and conflicted with Supreme Court precedents. She said she may appeal to that body.

The decision, over Sixth Amendment fair trial rights under the U.S. Constitution for persons facing deportation, was one of first impression for the Court of Appeals. It was brought before the court by Saylor Suazo, a non-citizen who was found guilty in a bench trial on various charges related to an alleged assault. He had over stayed his visa.

Because of the importance of the case and its consequences, the Bronx District Attorney said she was considering taking an appeal on the decision to the U.S. Supreme Court since it was decided on federal constitutional grounds.

The key issue in the case was the gradation of the criminal charge Suazo had been tried upon. The Criminal Law in New York allows a defendant to be denied a trial by jury in New York City if the maximum penalty of a charge is less than six months in jail. The same rule does not apply outside New York City.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about the new immigration policies. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with the filing of applications with USCIS. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in immigration cases. If you have any questions or concerns about an immigration case or potential case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Now with offices in Buffalo and Rochester!!! Please look for my next article in the January edition. Merry Christmas and Happy New Year 2019!

Trump announces no more Citizenship by Birth – Really?

by Jose Enrique Perez

Not really. Just another lie, or just words, or just his racist rhetoric. However, you want to put it, it is nearly impossible.

The 14th Amendment of the United States Constitution provides:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

During the campaign for the mid-term elections of this month, President Trump said that we were the only country where the citizenship is given to the persons born in the United States. He also said that it was because of the flaws of the immigration laws that the citizenship is obtained that way. First of all, there are more than 30 countries providing for that same privilege. Secondly, the 14th Amendment has nothing to do with immigration. In point of fact, there were no immigration laws back in 1800s. Furthermore, the citizenship cannot be conditioned or modified by immigration laws as this is a Constitutional mandate. The privilege of becoming a citizen of the United States by birth or naturalization cannot be changed by the President or his racist agenda.

Altering the Constitution consists of proposing an amendment or amendments and subsequent ratification. Amendments may be proposed either by the Congress with a two-thirds vote in both the House of Representatives and the Senate or by a convention of states called for by two-thirds of the state legislatures.

Article Five of the United States Constitution describes the process whereby the Constitution, the nation’s frame of government, may be altered. To become part of the Constitution, an amendment must be ratified by either—as determined by Congress—the legislatures of three-quarters of the states or state ratifying conventions in three-quarters of the states. The vote of each state (to either ratify or reject a proposed amendment) carries equal weight, regardless of a state’s population or length of time in the Union.

In conclusion, it is nearly impossible for President Trump or his administration to take away the citizenship right. He cannot do by executive order or decree.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about the new immigration policies. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with the filing of applications with USCIS. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in immigration cases. If you have any questions or concerns about an immigration case or potential case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Now with offices in Buffalo and Rochester!!! Please look for my next article in the December edition.

USCIS – The New Deportation Machine?

by José Enrique Perez

Yes. Starting October 1, United States Citizenship and Immigration Services (USCIS) will begin a Estados Unidos phased implementation of its June 28, 2018 Notice to Appear (NTA) Memorandum, which directs agency adjudicators to initiate removal proceedings against a broader group of foreign nationals.

An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings against them.

If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA.

Before this memorandum, USCIS did not have this power. In point of fact, any foreign national who made an application before the Trump administration was safe even if the application was denied by the USCIS. This is not the case anymore.

According to the USCIS’s announcement issued last month, USCIS will apply the policy to Form I-485 permanent residence applicants and to Form I-539 applicants to extend or change nonimmigrant status. Employment-based petitions – including H-1B, L-1, E and O petitions – will not be subject to the enforcement policy at this time. Humanitarian application and petitions are allegedly also exempted.

USCIS first announced the NTA policy in July of this year, but deferred implementation while it developed internal guidance.

USCIS is soon expected to provide further information on how the NTA policy will be implemented. It is anticipated that a foreign national whose I-485 or I-539 application is denied and who has no underlying valid immigration status would receive a notice to depart the United States. Those who do not depart timely could be issued a Notice to Appear before an immigration judge, who would determine whether the foreign national should be removed from the United States or is entitled to legal relief that permits him or her to remain.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about the new immigration policies. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with the filing of applications with USCIS. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in immigration cases. If you have any questions or concerns about an immigration case or potential case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Now with offices in Buffalo and Rochester!!! Please look for my next article in the November edition.

Is Somalia TPS still alive?

Is Somalia TPS still alive?
by Jose Enrique Perez

Yes, last month Secretary of Homeland Security Kirstjen M. Nielsen announced that the statutory conditions supporting Somalia’s TPS designation on the basis of ongoing armed conflict and extraordinary conditions continue to exist and that the designation should be extended by 18 months. Secretary Nielsen made her decision after reviewing country conditions and consulting with appropriate U.S. government agencies. As a result, Somalia’s TPS designation has been extended through March 17, 2020.

President Trump has made it a mission to take away every right an immigrant has in this country and he stripped away most countries of TPS, including but not limited to, Central American countries.

As you may recall, TPS is a temporary immigration status granted to eligible nationals of a country (in this case Somalia) or persons without nationality who last resided in Somalia designated for TPS under the Immigration & Naturalization Act. During the period for which a country is designated TPS, TPS beneficiaries are eligible to remain in the U.S. and may obtain work authorization. However, once the designation is terminated, the beneficiaries return to the same immigration status they maintained before the TPS or any other status they might have obtained while registered for TPS. Therefore, people from Somalia do not get any other status (i.e., permanent resident status) based on the TPS. However, recent case developments have been authorizing adjustment of status for TPS holders when they have obtained a parole, have left and returned to the United States.

U.S. Citizenship and Immigration Services announced that current beneficiaries of Temporary Protected Status under Somalia’s designation who want to maintain their status through the 18-month extension period ending on March 17, 2020, must re-register between Aug. 27, 2018, and Oct. 26, 2018.

All applicants must submit Form I-821, Application for Temporary Protected Status. Applicants may also request an Employment Authorization Cards by submitting, at the time they file Form I-821, Form I-765, Application for Employment Authorization, or separately at a later date. The fees are approximately $450.

USCIS will issue new Employment Authorization cards with a March 17, 2020 expiration date to eligible Somalia TPS beneficiaries who timely re-register and apply for the work permits. But even if you are not able to get the work permit on time before it expires, USCIS have automatically extended the validity of those cards for 180 days, through March 16, 2019.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about the TPS. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with the filing of a TPS petition. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in immigration cases. If you have any questions or concerns about an immigration case or potential case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Now with offices in Buffalo and Rochester!!! Please look for my next article in the October edition.

Sanctuary City

Living in a Sanctuary City. Is it really safe? What does it mean?
by Jose Enrique Perez

We have been hearing a lot about the word Sanctuary, specially, since Trump got into power. We have been hearing that towns, cities and even states declare themselves Sanctuary. But, what does it mean? Are immigrants living in this so-called “Sanctuary” places really safe? No, they are not.

The Sanctuary Laws or Policies have become part of a broader push by allies of immigrants to counter the expansion of deportation orders and immigration enforcement under the Trump administration.

Under these laws or policies, basically a state, county, local or municipal agencies would not be able to detain immigrants for U.S. Immigration and Customs Enforcement (hereinafter referred to as ICE) based on hold requests. These same agencies will not call ICE when they are providing services to persons who may be undocumented.

Of course, the fingerprint records for all offenders booked into state prisons and local jails would continue going to the FBI and the Department of Homeland Security for information purposes. Police and sheriffs generally are also able to share inmates’ release dates and transferring people to immigration authorities if they have been convicted of certain violent crimes.

So, what are these violent crimes? They include generally: all serious and violent crimes, registered sex and arson offenses, murder, rape, domestic violence charges and other felonies. Therefore, these laws and policies do not prevent authorities from coordinating with ICE when releasing violent criminals, i.e. the actual “bad hombres” Trump loves to talk about.

Sanctuary policies have strong support among actual law enforcement officials all over the country, the people who work in communities on a daily basis—unlike the Trump administration, who keeps lying saying that these places become more dangerous. The effect is actually the opposite as law enforcement officers have stated. These officers are not “hand tied” by these policies at all, they can continue protecting and serving. Police statistics show a drop in reports of sexual assault and domestic violence as immigrant victims refused to come forward in places that do not have these policies.

So, in essence, the policies protect people in the sense that the agencies cannot call immigration on them; however, immigration officers can still come to arrest individuals in these cities using their own information. They can continue raiding houses, farms, and private properties because these Sanctuary policies do not prevent them from doing so.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about immigration issues. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with an immigration case. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in many cases. If you have any questions or concerns about a case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Now with offices in Buffalo and Rochester!!! Please look for my next article in the September edition.

Living Will Versus Healthcare Proxy

by José Enrique Perez

We have been writing for several months about Immigration, Trump and the changes in policies by this new government. It is time to take a break from all that. Now, we should talk about planning for you, your family and your friends.

As we go about our daily activities, our minds are often filled with plans for the future. Rarely do we have time to consider what might happen if we were somehow rendered permanently unable to understand these future plans. This is why you should write down your wishes about the kinds of treatment you do or don’t want to receive and name someone you trust to oversee your care should you become unable to communicate these desires. There are two basic documents that allow you to do this; a living will and a healthcare proxy. You do not have to be sick or dying in order to execute these papers. In point of fact, you should do it when you are in your full and unclouded mind.

Living wills are not really wills at all. Instead, a living will is a document that you sign in advance in which you specifically set forth your decisions about health care treatment in case you become unable to communicate these instructions during terminal illness or permanent unconsciousness. Living wills can direct health care providers to withhold treatment, to allow for all available treatment options, or to choose some medical treatment options and reject others. A living will cannot be used to authorize the withholding of nutrition and hydration. If you wish to have nutrition and hydration withheld, you will need to execute a legal document called a healthcare proxy.

Because a living will involves complicated medical issues, you may want to consult with a doctor to help clarify different treatment options. Most importantly, living wills cannot take effect legally unless you are medically determined to be in a permanent vegetative state or terminally ill, and therefore unable to communicate.

Any competent person eighteen years of age or older can make a living will by signing it in front of two witnesses who in turn also sign the document, attesting that the document was signed in their presence. These witnesses must also be at least eighteen years old. The witnesses should not be related to you, and they should not be beneficiaries of your estate or have financial responsibilities for your medical care.

A living will is a simple form but you should have an experienced attorney review this document. Failing to properly complete a living will means that it will not be recognized and your wishes will not be carried out.

A healthcare proxy trumps a living will. This document gives another person the power to make health care decisions for you if you cannot make those decisions yourself. A healthcare proxy differs from a living will in that it authorizes you to appoint someone to carry out the living will’s instructions and/or to make decisions that you did not anticipate when you completed the living will. Also, a healthcare proxy does not depend on terminal illness or permanent unconsciousness to become effective. The person you name in your healthcare proxy should be someone you trust but they must be at least 18 years old, i.e. spouse or partner, relative or close friend. You should not choose your doctor, or an employee of a hospital or nursing home where you are receiving treatment. You can find a healthcare proxy form on the New York State Attorney General’s website: https://ag.ny.gov/health-care%5Chealthcare-proxy

Without a living will or healthcare proxy, family members end up arguing over what treatments should or should not be provided. The best approach is to complete both a living will and a healthcare proxy. The two will work together. Local senior centers may be good resources for help. Many of them have trained healthcare staff on hand who will be willing to discuss your healthcare options. The patient representative at a local hospital may also be a good person to contact for help. And if you have a regular physician, you can discuss your concerns with him or her.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about living wills and health care proxies. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with the execution of these documents. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in many cases. If you have any questions or concerns about a case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Now with offices in Buffalo and Rochester!!! Please look for my next article in the July edition.

DACA – to Be or not to Be

DACA – to Be or not to Be – that is the Question!
by José Enrique Perez

The saga of DACA continues. Trump said no more DACA. Then, many lawsuits were filed. Most courts have ruled that USCIS should continue accepting renewals. However, on April 24, 2018, the U.S. District Court for the District of Columbia held that DHS’s decision to rescind DACA was “arbitrary and capricious” and vacated the termination of the program. The court held that its decision meant that DHS must accept and process new DACA applications, as well as renewal DACA applications – however, it stayed its order for 90 days to give the government a chance to respond.

The decision of the court differed from previous court rulings because it would affect new applications – i.e. initial applications from individuals who have never applied for DACA previously but who are eligible to apply. However, the court’s decision is on hold for 90 days. In the interim, the government has the chance to better explain its decision to rescind the program. That means that the court may reconsider its decision before the 90 days is over, and before its decision to allow new applications would go into effect.

As a result of the decision being on hold for 90 days, there are NO new changes to the program as of now. It is still being implemented on the terms of the prior court rulings.

So, in lay terms, what does it really mean? DACA is still good or not? Is it better now? To be or not to be? Yes, DACA is no longer dead. A federal court in Washington, DC that ruled that the Trump Administration ending of DACA was unlawful unless they came up with a better argument as to why they ended it. For the third time, a federal judge have reprimanded Trump Administration for ending DACA, and called the Administration out for how it ended it. Trump Administration has 90 days to explain to the court why it ended it and if the allegation is still the same, new applications will be accepted.

I did not want to end this article without writing about the new policies that the Trump administration has implemented that will undermine the independence of immigration judges and weaken due process in the immigration court system – including steps to impose numerical quotas on immigration judges and attempts to curtail procedural safeguards – threaten the integrity of the immigration courts. We will talk more about this in the next articles.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about the current immigration issues and other immigration policies.

I represent individuals in immigration cases. If you have any questions or concerns about an immigration case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Now with offices in Buffalo and Rochester!!! Please look for my next article in the June edition.