Month: June 2017

Last month, by a vote of 12-0, the Denver City Council approved a reform to the city’s low-level court sentences to reduce some of the maximum penalties.

Though Mayor Hancock stated that the reforms were long overdue, they were also made, in part, to help immigrants avoid deportation. When noncitizens get convicted of a crime that carries a potential penalty of at least a year in jail, they can be put on Immigration and Customs Enforcement’s radar. Regardless of the sentence they actually receive, the maximum sentence of certain crimes can make a noncitizen deportable.

The sentencing reform splits violations of city ordinances into three categories depending on the severity of the crime. The most serious seven crimes still carry a maximum of a year in jail and a $999 fine. The next category is reserved for midlevel offenses, such as trespassing and shoplifting. These crimes carry up to 300 days in jail and a $999 fine. The last category is for petty crimes, which carry up to 60 days in jail and no fine. Petty crimes include public urination, curfew violations, and panhandling. 

The reform also adds a “hate crime enhancement” that will allow prosecutors to ask for a boost of lower-tier offenses to the top level if the crime was motivated by a specific attribute, such as race, religion, or sexual orientation.

More serious, state level crimes tried in district court are not be impacted by these reforms. Only those violations that are tried in Denver County Court are affected.

Department of Homeland Security (DHS) Secretary John Kelly signed a memorandum on June 15, 2017 keeping in place the Deferred Action for Childhood Arrivals (DACA) program but ending the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The administration references the fact that DAPA was never implemented and stricter immigration enforcement priorities as reasons for the shift in policy. A press release states, “there is no credible path forward to litigate the currently enjoined policy.”

DAPA, the Obama era policy, was first announced on November 20, 2014 when then Secretary of DHS Jeh Johnson expanded the DACA policy to include parents of Americans and lawful permanent residents. The policy directed the United States Citizen and Immigration Services to establish a process for exercising prosecutorial discretion through the use of deferred action. On a case-by-case basis, the policy allowed for individuals who have no lawful status, have U.S. born children, and have been in the country since before January 1, 2010 to be lawfully present in the United States.

The DAPA program was challenged in court by twenty-six states in the Unites States District Court for the Southern District of Texas, which enjoined the program. The United States Circuit Court of Appeals for the Fifth Circuit affirmed the preliminary injunction and the United States Supreme Court, in a 4-4 ruling, left the lower court’s ruling in place.

The DACA program allows certain people who came to the United States as children, and who meet certain criteria, to request consideration of deferred action for a period of two years and they may be eligible for work authorization. While the DAPA program has been rescinded, the DACA program will remain in effect. This means that people who are currently in lawful status under the program will still be able to renew their existing period of DACA if it is expiring and continue to work in lawful status if they were granted work authorization.

On May 24, 2017 John Kelly, the Secretary of Homeland Security, extended the Temporary Protected Status (TPS) granted to all Haitian nationals residing in the U.S. The current grant expires on July 22, 2017, so the extension would allow Haitian nationals to remain in the country until January 22, 2018 if they re-register.

The extension came after several members of Congress sent a letter to the Secretary Kelly urging the administration to extend TPS because of the severe economic and health conditions found in Haiti.

“TPS is a statutory mechanism that grants work authorization and protection against deportation to nationals of designated countries. TPS, however, does not grant permanent residency, citizenship, or any right to an ongoing immigration status.

The protection was first created by Congress when it passed the Immigration Act of 1990. This early version of the statute granted temporary protection to people unable to return to their home country due to political or environmental catastrophe. It has since been amended to allow the Department of Homeland Security (DHS) to designate a country for TPS when (1) it is unsafe for a national to return home due to an ongoing armed conflict; (2) when the state is not able to accept the return of its nationals due to a natural disaster or environmental catastrophe, and has requested TPS status; or (3) extraordinary and temporary conditions in a state prevent its nationals from returning safely.

The protection was first granted to Haitian nationals by the Obama administration in 2010 after the country was devastated by a catastrophic magnitude 7.0 earthquake. TPS protection for Haitian nationals has been extended several times over the years due to the poor health and economic conditions and lack of recovery from the disaster.

The Trump administration denied the 18 month extension afforded to Haitians by the prior administration, which indicates that this administration is committed to conducting a thorough review of the TPS program. The six month extension also indicates that the U.S. government is permitting both Haitian nationals and the Haitian government time to get their affairs in order before the TPS designation is no longer renewed.

Haitians seeking to take advantage of the extension must re-register by July 24, 2017, at which time the beneficiary must request a new Employment Authorization Document.