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When Good Students Go Bad

When Good Students Go Bad. Elaine Kimbrell Attorney-at-Law David Ware & Associates, LLC Linda Melville International Advisement Specialist University of New Mexico Maria Zellar SEVIS Manager University of Colorado at Boulder. Criminal Activity and Immigration Consequences.

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When Good Students Go Bad

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  1. When Good Students Go Bad Elaine Kimbrell Attorney-at-Law David Ware & Associates, LLC Linda Melville International Advisement Specialist University of New Mexico Maria Zellar SEVIS Manager University of Colorado at Boulder

  2. Criminal Activity and Immigration Consequences • References: • Federal Laws and Regulations: INA 212 (a), 8 C.F.R. 214.3(g)(1), 34 C.F.R. 99.1 – 99.37, 18 U.S.C 2331 and 2332b(g)(5)(B) • NAFSA Adviser’s Manual, pp. 14-35 to 14-44

  3. Overview: Criminal Activities with Immigration Consequences • Admission of, or conviction for, crimes involving moral turpitude (CIMT) • Conviction of 2 or more crimes; aggregate sentence 5 yrs or more • Conviction for domestically related crimes • Conviction for aggravated felony • Admission of, or conviction for drug-related offenses

  4. Overview: Criminal Activities with Immigration Consequences • Drug-related activities not resulting in conviction (drug trafficking and drug/alcohol abuse) • Security-related offenses, whether or not resulting in conviction (espionage, sabotage, terrorist activity) • Prostitution activities, whether or not convicted

  5. All Arrests • Must be admitted in all immigration contexts and on all applications where question is asked • Probably will generate an NCIC “hit” (National Crime Information Center) which may delay visa issuance, be a problem at the port of entry, and delay approval of other immigration applications

  6. Possible Consequences of Criminal Activity • Inadmissibility • Deportability • Failure to maintain status • Ineligibility for adjustment of status and other immigration benefits

  7. Definitions Inadmissible = Not eligible for visas, admission to the US and permanent residence Deportable/Removable = Present in the US in violation of immigration laws. May be removed for failure to maintain status.

  8. Conviction • Immigration law defines convictions as • a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— • a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and • the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

  9. Who are we dealing with? • ICE • Investigations • Detention and Removal • CBP • DOS • FBI • Local police/ courts/ judges/ district atty.

  10. Mechanics of an Arrest • Miranda warnings • Taken into custody • How long? Bond? • Appearance before a Judge

  11. Special Considerations for foreign students • Will the police notify ICE of the arrest? • Will immigration status effect bond? • Will police/judge advise as to immigration consequences?

  12. Arrest to a Charge • An arrest does not equate to being charged with a crime • There is a formal charging process (indictment, bill of particulars) • Details what law has been violated

  13. Charge to ???? • Dismissal or nolle pros.- no conviction • Withheld adjudication – possible conviction under INA • Plea • Trial

  14. Student’s rights in the criminal process • Rights are not dependant on immigration status • Right to remain silent • Right to an attorney – public defender • Right to examine witnesses/ evidence • May not or may not be advised of immigration consequences of criminal conviction. May or may not be advised that plea/ adjudication counts as conviction for immigration.

  15. Right to a phone call? • In the arrest process given a phone call • Collect call – usually cannot be to a cell phone • After the one call – most jails have a phone card system. • To receive calls from jail/ detention facility may have to be pre-authorized by a phone company

  16. Once there is a conviction…. • Not serious enough for ICE to pick-up OR no conviction • NCIC, FBI Database, etc • Serious Crime • ICE Custody • ICE Hold

  17. In ICE Custody • May be eligible for bond • ICE can give bond • Bond (or determination of no bond) may be reviewed by an Immigration Judge • ICE will pressure student to take voluntary removal • Student has option to have Immigration Judge review removability from the United States • Will be given a Notice to Appear

  18. What crimes do DSOs have to report? • 8 CFR 214.3 (g)(3)(ii)(D): Any disciplinary action taken by the school against the student as a result of being convicted of a crime • If an international student commits a crime and it is headline news, is the PDSO/DSO required to report the student to SEVIS?

  19. Family Educational Rights and Privacy Act (FERPA) • FERPA protects students from having educational records disclosed • Also applies to international students, but is superseded in some cases by other laws • FERPA Regulations - 34 CFR 99.1

  20. Exceptions to FERPA for all Students • Directory Information • Information requested by subpoena • Information in health and safety emergencies • Response to an ex parte court order

  21. When DHS requests information • SEVIS required data exception found in IIRIRA 641(C)(2) • Request for info on individual student: 3 work days to respond • Information on a class of students: 10 days • Information on a student in custody: same day response, and orally

  22. What to do when ICE shows up? • Don’t panic • Ask for ID and ask for requests to be put in writing • Remember FERPA: cannot release non public info regarding students accept in certain circumstances • For more info on FERPA please see chapter 14 of the NAFSA manual • Remember the FBI is not the same as DHS, they must have a subpoena or ask ICE to make the request

  23. When else does the issue of criminal conduct arise? • At the Embassy • DUI memo, Yates Memo, Requesting Medical Re-examination, 1/16/2004 • Security delays • Should travel with certified copies of court records

  24. When else does the issue of criminal conduct arise? • At the Port of Entry • Officer can ask questions and will often questions in-depth fishing for confessions of “other” crimes • May send student to secondary inspection. No right to an attorney. • May give the student deferred inspection • If serious enough, will refuse entry or take student into custody. Will be classified as an arriving alien.

  25. Helping to prevent criminal conduct • Know your state and local laws that can be pitfalls for your students (underage drinking rules, DUI checkpoints) • Know the culture of the law enforcement officials (party patrols) • Provide information about alternative activities and means of transportation

  26. How do International student advisers advise students? • At orientation • It’s nice to have a visit from a campus police officer • Explaining that an MIP or fake I.D. offence has different consequences for an international student than it might for their U.S. citizen roommate is a good idea • Recommend the student find both a criminal and an immigration attorney if the student is accused of committing a crime • Put information in the student handbook • Provide handouts • It is a good idea to have a release form signed, particularly for sponsored students

  27. Unauthorized withdrawal Death Unauthorized employment Unauthorized drop below full course of study Authorized drop below full course of study time exceeded Change of nonimmigrant classification Change of nonimmigrant classification denied Expulsions Suspension Absent country for five months Failure to enroll Costs exceed resources Transfer student no show Denied transfer Extension denied Otherwise failing to maintain status Violation of change of status requirements Change of status denied Change of status withdrawn Change of status approved Transfer withdrawn No Show – manual termination Authorized early withdrawal No Show – system termination School withdrawn Reasons to terminate SEVIS records

  28. Reporting Termination Events • 8 CFR 214.3(g)(3): SEVIS Reporting Requirements • Event-based reporting (21 days of the occurrence) • Periodic Reporting (30 days after the deadline for registering for classes)

  29. Reporting Termination Events • Institutional Policy Question • Does the PDSO or DSO terminate immediately upon constructive knowledge of the event? Why? • Does the PDSO or DSO wait the full 21 days or 30 days to report the termination? Why?

  30. Advising a terminated or soon to be terminated student • Try to get the student to come in as soon as possible for advising • Advise on grace periods: no grace period or a 15-day grace period • Advise on regaining F1 status: exit/re-entry or reinstatement • Advise on immigration consequences: get a lawyer? • Does the school request removal of the CEU flag? • DHS Trip: http://www.dhs.gov/xtrvlsec/programs/gc_1169676919316.shtm

  31. Effects of SEVIS Termination • Real Time DHS notification • CEU evaluates the record and determines enforcement priority. • May not do anything at all, but…… • We recently had a student who was terminated in SEVIS and picked up by immigration less than 6 hours after termination.

  32. What happens to a terminated student? • Certain profiles are almost always taken into custody. ICE will almost always determine that the student is not eligible for bond. • Student can request bond redetermination by a judge, but it may take a few weeks to get the hearing. • DHS will pressure/ encourage voluntary return

  33. What happens to a terminated student? • Student has option to have removability reviewed by an Immigration Judge – removal proceedings. • Reinstatement can be a valid defense to removal – BUT student is racing the removal clock and the docket of the Court • Student cannot leave before resolution of removal proceedings or may face in absentia removal order

  34. If the student is lucky enough to avoid ICE…. • Expect difficulty traveling • May have to pay new SEVIS fee • May not be eligible for automatic visa revalidation • (travel to Canada/ Mexico < 30 days) • If obtaining a new visa, will have to disclose prior violations which could affect issuance of a new visa.

  35. Advice • Know your local jail • Know a local bondsman • Know an immigration bondsman • Know a GOOD criminal attorney • Know a GOOD immigration attorney • Students should get in touch with an immigration attorney as soon as possible

  36. Advice • Get the A# as soon as possible • Date of Birth, Name and Nationality can work in a pinch • Students should be careful what they sign!!!! • BE PROACTIVE

  37. ICE – Detention and Removal Contacts • Glenn Triveline, Acting Field Office Director101 W. Congress Pkwy, Suite 4000 Chicago, IL 60605Phone: 312-347-2400Area of Responsibility: Illinois, Indiana, Kansas, Kentucky, Missouri, Wisconsin • John Longshore, Field Office Director4730 Paris StreetDenver, CO 80239Phone: 303-371-1067Area of Responsibility: Colorado, Wyoming • Robert E. Jolicoeur, Field Office Director1545 Hawkins BlvdEl Paso, TX 79925Phone: 915-225-1901Area of Responsibility: West Texas, New Mexico

  38. ICE – Detention and Removal Contacts • Steve Branch, Field Office Director5272 S. College DriveSuite 100Salt Lake City, UT 84123Phone: 801-313-4260Area of Responsibility: Utah, Idaho, Montana, Nevada • Katrina S. Kane, Field Office Director2035 N. Central AvenuePhoenix, AZ 85004Phone: 602-257-5900Area of Responsibility: Arizona • Scott Baniecke, Field Office Director 2901 Metro Dr., Suite 100Bloomington, MN 55425Phone: 952-853-2550Area of Responsibility: Iowa, Minnesota, Nebraska, North Dakota, South Dakota

  39. Detention Facilities • Colorado – Aurora Detention Facility Field Office Director: John P. LongshoreAsst. Field Office Director: Richard L. MurphyDRO Main Phone Line: (303) 371-5606 • Arizona – Eloy Detention and Removal OperationsAssistant Field Office Director: John K. Crowther Supervisory Detention & Deport Officer: Mark Soukup (520) 464-3000 • Arizona Florence Detention Center Field Office Director: Katrina S. KaneAssistant Field Office Director: David Kollus (520) 868-5862 • El Paso Processing Center Field Office Director: Robert E. Jolicoeur (915) 225-0885 Assistant Field Office Director: Alfredo Campos (915) 225-1901

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