Reports on immigration lawyer listserves are mounting. Shocked and frightened lawful permanent residents (LPRS) are reporting similar incidents in calls to immigration lawyers. The Department of Homeland Security (DHS), apparently in cooperation with state and federal police agencies, has at last merged many of the country’s previously siloed law enforcement databases and, as a result, is receiving increasing numbers of hits on decades-old criminal incidents when LPRs return from travel abroad.
The real-life scenario often plays out like this. U.S. Customs and Border Protection (CBP) officers take the arriving LPR from the point of first contact (primary inspection) to a back room (secondary inspection) as startled American-citizen family members look on. Questions are asked about what may be a long-forgotten event, one or more arrests or convictions, perhaps decades old, even though fines have been paid and time served. The LPR (whose green card and passport are confiscated) is either held in custody or given an appointment for a deferred inspection at a CBP district office and told to bring criminal court records to try and clear the matter. Often, the LPR finds that all or the bulk of the court records no longer exist. At the deferred inspection, the CBP inspector — unable to sort out the prior incident(s) — has little choice but to refer the matter to the immigration court for a removal (deportation) hearing. Issued a Notice to Appear for removal hearing, the LPR joins a cast the size of a Cecil B. DeMille epic as one more Respondent among thousands.
This is when immigration administrative proceedings reminiscent of Kafka’s The Trial begin. Immigration judges (IJs) with overflowing dockets face emotional stress from the unrelenting and growing tide of new and old cases. Government attorneys, many new admittees, others grizzled lifers waiting longingly for retirement, wheel shopping carts of case folders into the courtrooms but frequently cannot locate the files for many a Respondent in court that day. Immigration lawyers, some able and diligent, others barely (or perhaps not) competent, try to demonstrate that the incidents in question do not warrant deportation or that the law allows “relief from removal.” All this happens while growing throngs of immigrant detainees languish in federal, state and contractor-run immigration prisons, and DHS bids out contracts to build more and more detention space, like the pending bid for a 2,200-bed facility in or near Los Angeles. “Master Calendar” hearings — where many in the crowded court rooms lack legal representation — are held and concluded in rapid sequence. IJs order removal, grant voluntary departure in lieu of deportation, and schedule merits hearings on the “Individual Calendar” to try cases in which legal defenses are raised or relief from removal is sought.
LPRs — especially those in the U.S. for many years — when contemplating the prospect of appearing in immigration court, usually move through the classic Kübler-Ross phases of grief: Denial, Anger, Bargaining, Depression and Acceptance. Hiring a lawyer during the Denial phase often occurs. The sense of disbelief leads to the insouciant selection of immigration legal counsel. The Denial phase may also be prolonged by a mistaken belief that the conviction is a small matter — too often attributable to the errant assurances of criminal defense counsel that no adverse immigration consequences would arise or that an expungement would erase all traces from the LPR’s record.
LPRs are best advised to take IJ proceedings seriously. The pursuit of happiness, liberty, proximity to family and friends, and financial assets — all are at risk in the immigration court, and in the appellate proceedings that follow with the similarly strapped Board of Immigration Appeals and the Federal Court of Appeal. Whether retaining pro bono representation or private counsel, LPRs — much like the sick or diseased facing long-term disability or death — must not wholly relinquish control of their circumstances to professionals. They must “own” their case, participate in strategic decisions, help provide witnesses and supporting evidence, and be prepared to fight hard to retain the right of lifelong permanent residence and eligibility for citizenship in the United States.
The international travel industry will hate me for saying so, but LPRs with a blemished past probably should consider staycations rather than foreign vacations if the return trip requires running through the harrowing gauntlet of immigration court proceedings.