On May 21, 2018, I posted a blog regarding the then Proposed USCIS Policy Change for F, J, and M Nonimmigrants and Unlawful Presence implications.  On August 9, 2018, USCIS issued a revised final policy memorandum, effective that day.  USCIS made changes to its proposed policy after considering feedback the agency received during the public comment period mentioned in the prior blog post.

Effective August 9, 2018 (last Thursday), F and M nonimmigrants who timely file for reinstatement of status with USCIS after falling out of status will have the accrual of unlawful presence suspended while their application for reinstatement is pending.  The reinstatement application is considered timely if filed within a five month window of the student falling out of status. If the reinstatement is ultimately denied, unlawful presence will start accruing on the day after the denial.

J nonimmigrant reinstatement requests are administered by the Department of State (DOS) and if the J-1 reinstatement applicant’s request is approved, unlawful presence will not accrue.  Likewise, Unlawful Presence would start to accrue in the instance of a denial, although DOS has not weighed in at this time as to when it will begin to accrue.

USCIS will host a stakeholder meeting on August 23rd.  Please refer back to this blog as more information becomes available.

 

On August 3, 2018, the US District Judge for District of Columbia, John D. Bates, ruled that the Trump administration must fully restore the DACA program. In the decision, the court stated, “The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.” In addition, the court also denied the government’s motion to reconsider, stating that “The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again.” However, the judge delayed the order until August 23, 2018 to allow the government to determine whether it will appeal the court’s decision.

The August 3rd decision will not make any new changes to the DACA program. It is still being implemented on the terms of the prior court rulings. USCIS is still accepting and processing DACA Renewal applications who have previously been approved for DACA as a result of the two nationwide injunctions issued in California and New York earlier this year. USCIS is still not accepting the new or initial applications for the first time.

Considering the pending litigation, the American Immigration Lawyer Association recommends the eligible DACA recipients who would like to renew their DACA to consult with an attorney and submit their DACA renewal application as soon as possible.

ICE workplace audits are on the rise.  And if you didn’t know, the federal government and California are not harmonious in their views on immigration issues. That means that ICE raids on California employers are likely to continue, especially in target industries such as hospitality, construction, agriculture, tech, and manufacturing. And if you want to minimize your company’s exposure to massive fines and possible criminal prosecution, this issue should be on your radar.

One of the biggest traps of late seems to be the I-9 form.  Under federal law, all employers in the US are required to complete the I-9 in order to verify the identity and employment eligibility of new hires. Employers are required to have a completed I-9 on file for every employee. The employee must complete Section 1 of the I-9 at the time of hire (and absolutely not before acceptance of a job offer). The employer must complete Section 2 of the I-9 within three business days of the hire date. I-9s must be retained for three years after the date of hire, or one year after the date employment ends, whichever is later.  Failure to abide by these rules can lead to very severe penalties and fines.

When ICE wants to examine your workforce, it provides a Notice of Inspection that gives you just three days to get your I-9s and payroll records ready for review. Once that happens, it is very hard to fix any problems you may have. There just isn’t time and ICE has discretion to disregard any remediation efforts after the service of the NOI.

What can be wrong with an I-9, you ask?  Well if our audits of I-9s are indicative, close to 50% if not more usually have problems, including:

Hand with pen fills in a paper form us immigration visa
  • Incomplete, with information, signatures, and dates missing.
  • Incorrect information, such as a document for List B or C in the List A column.
  • Signatures that don’t match the names on the documents.
  • Blank Section 2 with the List A or B and C documents simply attached.
  • Documents that don’t match the names on the form.
  • Older or incorrect versions of the I-9 used.
  • And on and on and on….

The I-9 may look like a simple form, but it is not and can cost the employer significant cash in fines … and possible criminal prosecution!  So if the person completing your new hire paperwork isn’t skilled or trained on how to complete this form, chances are your I-9s are imperfect.  It is not uncommon when we perform I-9 audits to see the same mistake(s) repeated over the course of thousands of I-9s!  That means risk, and these days, big risk.

The other problem is that you can’t just ask specific employees to re-verify their status, for example if there is a rumor that the employee may be undocumented, because that can lead to claims of discrimination. Remember national origin and citizenship status are protected categories. So the only way to fix the I-9s is to audit all of them, fix all of the mistakes that you can, and do it before any audit or notice of inspection from a government agency.

Oh, and please do not audit without the attorney-client privilege protection. The last thing you want are emails indicating that your I-9s are wrong, or your employees are illegal, and you knew about it and didn’t fix it. Knowingly employing, hiring, or continuing to employ undocumented workers is a crime. Employers are subject to criminal prosecution—yes, that means possible jail time.

What can employers do proactively to mitigate civil penalties and exposure to criminal prosecution?

  • #1!  Work with counsel to conduct a proactive internal audit.  Doing so before ICE arrives with a NOI is the most effective way of mitigating fines.
  • Ensure your HR representative(s) responsible for completing I-9s with new hires is well trained and savvy as to what they legally can and cannot say to the employee during the verification process.  Simply asking the employee to present a specific document in the course of completing the I-9 is unlawful.
  • Conduct regular training for HR personnel and team leaders/managers who interact with employees as to the do’s and don’t’s of communicating with employees.
  • Establish immigration compliance I-9 and/or E-Verify standard operating procedures—also used to show good faith compliance and a factor for mitigating fines.
  • If storing I-9s electronically, check with counsel to ensure you are storing them properly and in a way that is not further exposing the company to additional violations.
  • Streamline your company I-9 process so as to minimize room for error in delinquent completion of the I-9 or mistakes on dates of hire.
  • Establish a ‘tickler’ calendar reminder system to handle reverification for those employee’s with work authorization documents containing an expiration date.  Remember- the burden is on the employer to ensure their employees are work authorized during the entire period of employment.
  • Act sensibly:  employers should not be overzealous in their employment verification practices as this too may lead to claims of discrimination and/or retaliation.

This is budget planning season for many employers.  Our advice is to add an I-9 audit to your budget for 2019.

Flag of New Zealand waving on flagpole on blue sky backgroundThe highly desirable E-1 and E-2 visas are now available for nationals of New Zealand.  Earlier this week, the President signed into law S. 2245, the Knowledgeable Innovators and Worthy Investors Act (‘KIWI Act’), thereby granting E-1 and E-2 visa status to certain New Zealand applicants.  The KIWI Act provides for reciprocal treatment of US nationals.

This will allow New Zealand nationals the opportunity to pursue E-1 trade and E-2 investment in the United States, a benefit long enjoyed by neighboring Australians.  The E-1 and E-2 visa will offer New Zealanders enhanced access to facilitate overseas business and investment in the United States which is believed will strongly benefit the economies of both countries.

USCIS announced yesterday that it has returned all FY2019 cap-subject H-1B petitions that were not selected in the “lottery”.

 You may recall that between April 2-6, USCIS received 190,098 FY 2019 cap-subject H-1B petitions.  In May, USCIS completed its computer-generated random selection process for 20,000 US advanced degree petitions as well as the 65,000 remaining FY2019 spots. Many of these petitions were subject to requests for more evidence (RFEs).  Simple division indicates that for FY 2019, ~45% of the H-1B petitions were selected for processing, leaving ~55% (or 105,098 petitions) to be returned.

 After August 13, 2018, petitioners who timely filed their FY2019 cap-subject H-1B petitions but did not receive an I-797 Notice of Action acknowledging receipt nor their returned petition (with unused filing fees), may contact USCIS.

 To discuss this, or how to be prepared for the FY2020 cap season, please feel free to email or call Ms. Wadhwani or your Fox Rothschild contact.


Catherine Wadhwani is a partner and co-chair of the Immigration Practice Group at Fox Rothschild LLP. She may be reached at cwadhwani@foxrothschild.com.

Businesswomen filling paperwork for agreement
Copyright: bignai / 123RF Stock Photo

More than 5,200 businesses around the country have been served with I-9 inspection notices since January in a two-phase nationwide operation conducted by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) in what appears to be the largest I-9 inspection action ICE has undertaken to date.

This latest round of workplace audits on employers clearly indicates that the I-9 inspection is now a top priority in U.S. immigration enforcement policy that targets employers rather than employees via the workplace raids of the past.

This alert outlines the current processes in place for I-9 inspections and includes practical advice on how to respond to an audit as well as steps to take now to ensure that your business is in compliance.

Notice of Inspection – NOI

The inspection process begins with HSI serving a Notice of Inspection (NOI) on an employer, which informs them that HSI will perform a comprehensive review of (i.e. audit) their hiring records (specifically Form I-9s and associated documents) to determine compliance with employment eligibility verification laws.  Upon receiving an NOI, an employer is required to produce the company’s I-9s within three business days, after which ICE will conduct an inspection for compliance.

In Phase I of the current operation, between Jan. 29 and March 30, 2018, HSI served 2,540 NOIs and made 61 arrests.  During Phase II, between July 16 and 20, HSI served 2,738 NOIs and made 32 arrests.

ICE is the federal agency responsible for upholding the Immigration Reform and Control Act (IRCA), a law designed to protect jobs for U.S. citizens and others who are lawfully employed, eliminate unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.

Under IRCA, employers are required to verify the identity and employment eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification Form I-9. ICE/HSI uses the I-9 inspection program to promote compliance with the law, part of a comprehensive strategy to address and deter illegal employment. Inspections are one of the most powerful tools the federal government uses to ensure that businesses are complying with U.S. employment laws.

A ‘Culture of Compliance’

Derek N. Benner, Acting Executive Associate Director for HIS, stated: “Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records.  All industries, regardless of size, location and type are expected to comply with the law.”

Benner contends that worksite enforcement “protects jobs for U.S. citizens and others who are lawfully employed, eliminates unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.”

HSI increased the number of I-9 audits, Benner said, to “create a culture of compliance among employers.”

All employers in the United States are required to have a Form I-9 on file for all employees to verify their identity and authorization to work in the United States. The law requires that employers execute this process upon hire of an employee, review and record the individual’s original, valid identity documents and determine whether those documents reasonably appear to be genuine and related to the individual.

HSI follows a detailed process when conducting a Form I-9 inspection.  Guidance on that process and the associated civil fine structure can be found here.  This guidance outlines ICE’s process for a Form I-9 inspection, the penalties for various related violations, and the factors ICE considers during the course of the inspection and in determining a fine, including mitigating or enhancing factors involved.

Civil Fines and Potential Prosecution

Employers determined not to be in compliance with the law face the likelihood of civil fines and could ultimately face criminal prosecution if it is determined that they were knowingly violating the law. All workers encountered during these investigations who are unauthorized to remain in the United States are subject to administrative arrest and removal from the country.

Failure to follow the law can result in criminal and civil penalties.  In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.  (See our earlier post on this topic.)

Monetary penalties for substantive and uncorrected technical violations, errors that the layperson often view as ‘paperwork errors’ range from $220 to $2,200 per violation and penalties for knowingly hiring and continuing to employ violations range from $3,548 to $19,242 per violation. In determining penalty amounts, ICE imposes a higher fine rate on employers with a higher percentage of I-9s with violations and then considers five factors to either enhance or mitigate fine amounts: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers and history of previous violations.

What To Do if the Government Wants to Inspect Your I-9s:

  • Call your immigration attorney immediately. The time period for responding to ICE is short and it is critical that documents submitted in response to the notice be well-organized and presented in the best light possible.
  • DO NOT submit any documents to ICE without seeking the advice of counsel.
  • DO NOT consent to an immediate inspection if agents show up without warning. You have up to three days to respond/submit documents.
  • DO NOT submit more than what is asked for (such as expired I-9s for former employees, payroll records listing employees not subject to the inspection, etc.)
  • DO NOT let agents take original records without permitting you to take copies
  • DO NOT allow officers to talk with any employees or company officers before you call your attorney.
  • If Department of Labor agents show up for an inspection without notice, decline the inspection. They will notify USCIS/ICE.
  • DO NOT panic and try to correct or otherwise repair your records without the assistance of qualified immigration counsel. Corrections made or new I-9s prepared after the issuance of an NOI are not accepted by ICE, and may create the appearance of bad faith.

The Tools of Protection

Employers that have not yet received an NOI should take immediate steps to protect against possible future violations.

Two key tools in ensuring IRCA compliance are private internal audits and specialized training. Employers should conduct private internal audits with the assistance of a qualified immigration professional to review I-9 documents and correct any errors in advance of an inspection. This type of periodic audit can not only uncover problems in time to be corrected before the imposition of sanctions, but can also demonstrate the employer’s good faith efforts to comply with IRCA’s verification requirements, a mitigating factor in ICE’s penalty determination process. Because private I-9 audits can be performed over time nd at the employer’s convenience, it is less arduous for a company than the three-day audit period forced by an inspection notice.

Many problems with I-9s stem from simple misunderstandings of the procedures and requirements. This can easily be rectified by having a qualified attorney train your personnel about proper procedures. Because the work environment and employee culture changes with some frequency, along with periodic legal changes impacting the I-9 process, refresher training courses for already “expert” personnel are also recommended.

Although employers can select from a variety of service providers to meet their I-9 audit and training needs, legal professionals with experience with immigration, employment and labor law are better equipped to handle IRCA compliance issues, including audits, training and formal inspections. Fox Rothschild provides companies of all sizes with IRCA compliance training seminars and confidential, internal I-9 audits.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

What’s a “Notice to Appear” (NTA)?  How about “unlawful presence”?  Phrases such as these may be a new for many following business/employment based immigration matters.  Because of new USCIS Policy memoranda, these removal terms are now added to our business immigration lexicon and concern.

 NTA is the charging document issued by an authorized agent of the US Department of Homeland Security initiating in adversarial proceedings.  Once an NTA is filed with the immigration court, jurisdiction vests in the Immigration Court and noncitizens enter into removal (fka deportation) proceedings to determine whether they may be removed from or stay in the US. The Immigration Court is part of the Department of Justice’s Executive Office of Immigration Review (EOIR)

 Neither an employer, nor the nonimmigrant whose employer is seeking an immigration benefit such as an extension or change of their status wants an NTA!

 On June 28, 2018, US Citizenship and Immigration Services (USCIS) issued a Policy Memorandum updating its policy on the issuance of NTAs consistent with the January 25, 2017 Executive Order, “Enhancing Public Safety in the Interior of the United States.” 

Effective July 5th, :” USCIS , along with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border  Protection (CBP), has legal authority under current immigration laws to issue NTAs.  This policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA.  The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

..Cases in which, upon denial of an application or petition, an applicant is unlawfully present in the United States”

 USCIS is the part of DHS which adjudicates immigration petitions for benefits such as H-1B status, L-1 status, greencard applications, etc.  Until recently, USCIS was the “service” providing agency.  It did not issue NTAs only due to the denial of a petition and the start of unlawful presence for the beneficiary.  But, what is “unlawful presence” and what does it mean?

 “Unlawful presence” is a legal term defined under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (INA).  It refers to a person who is ”present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”  The consequence of being unlawfully present is that after 180 days of unlawful presence, a person who departs the US generally is barred from reentry for 3 years.  More is the pity for a person whose unlawful presence is for a year or longer—that person is barred for a decade.  There are possible waivers, but the 3/10 year bars have proven to be quite an effective deterrent against being “unlawfully present”. 

 Of course, the next question is: How does that phrase apply in the context of lawful, business/employment based immigration?  

 As a general statement, nonimmigrants entering the US lawfully are inspected and admitted into the US and are given a specific amount of time by the CBP officer to remain in the US in that visa category.   For example, an H-1B worker entering the US from a trip abroad would receive a stamp and an I-94 record would be created to indicate entry on a certain date in H-1B status until a fixed duration or end date.  After the expiration date (plus 60 days for the H-1b visa holder in our example), if neither employer, nor employee files an application to extend the H-1B status or to change to another status,  the unlawful presence clock would begin to run. 

 Until the most recent Policy Memorandum, USCIS would not begin removal proceedings against this person if, for some reason his/her visa request was denied and the denial was after the I-94 expiration date.  But if, unexpectedly an H-1B extension is denied and USCIS institutes removal proceedings, the worker can no longer work, apply for permanent residence or any other visa.  Moreover, the worker cannot even depart the country: failure to appear before the Immigration Judge results in an “in absentia” order of removal.  And, the employer loses a valuable employee who may not be able to return to the US for a decade.

 That’s not all: when “unlawful presence” became the law, it didn’t apply to most students.  F-1, F-2, M-1, J-1 and J-2s  generally enter the US with permission to remain until they have completed their education, not until a specific date, through the duration of their status.  Entry on “Duration of Status” or “D/S” did not trigger unlawful status if, for some reason, the nonimmigrant stayed in the US beyond the period authorized by their program or otherwise violated their status—for example, not being able to find constant employment during a period of Optional Practical Training.  As of August 9, 2018 –unless enjoined by a court—any time a nonimmigrant with “D/S” is out of status, he/she is unlawfully present—and is at risk of being placed in removal.

 As of May 31, 2018, there was a backlog of more than 700,000 removal cases. The Immigration Court is overwhelmed with a docket that will take many years to clear.  When a person is put into removal proceedings, when the NTA issues, as mentioned that person is not free to depart the US without a resolution of the removal matter.  These new Policies could dramatically clog the Immigration Court system that is already overwhelmed. Just as importantly, these policies intimidate students and workers from coming to the US, deter employers from hiring skilled foreign workers and discouraging foreign employers from investing in the US.

 

 

Last week the U.S. District Court for the Eastern District of California issued its ruling in United States of America v. State of California.  Fox Rothschild’s Jeffrey D. Polsky, L&E Department Co-Chair offers an insightful summary of the decision, which has implications for both immigration law and California employment law.  To view Jeff’s post on our California Employment Law blog, click here https://californiaemploymentlaw.foxrothschild.com/2018/07/articles/advice-counseling/court-addresses-conflict-between-state-and-federal-immigration-requirements/.

 

In April 2018, U.S. Attorney General Jeff Sessions announced a “zero-tolerance policy” administered by CBP and ICE to criminally prosecute every adult who illegally crossed the border, or tried to do so, including asylum seekers attempting to enter between ports of entry. As part of implementing this policy, the Trump Administration stepped up efforts to separate parents from children at the border in unprecedented numbers never before seen as a deterrent policy to preventing asylum seekers from arriving at the borders. Parents were placed in separate detention facilities facing federal criminal charges for illegal entry and illegal reentry while the children were placed into the custody of the US Department of Health Human Services (DHHS) and its sub-agency, the Office of Refugee Resettlement (ORR). From there, the children were moved to various shelters and licensed facilities across the nation.

The White House - Washington D.C.
Copyright: pigprox / 123RF Stock Photo

There was no indication in the Trump Administration policy that children would be reunited with their parents after the criminal prosecutions. This policy of separating asylum seeking families runs directly counter to US and international humanitarian and asylum law. Many immigration lawyers, advocates, and leaders in the various local communities, including myself, immediately took to public media criticizing the legality of these practices and expressing moral outrage over these inhumane family separation policies.  Over the course of the next 6 weeks, the unpopularity of the Trump Administration’s immigrant family separation policy rose to an uproar with many sectors of American society speaking out against Trump’s family separation policy.

As a result, on June 20, 2018, President Donald Trump bent to public pressure and signed an executive order, indicating that it is a new policy of the Trump Administration to keep families arriving at the border detained together for an indefinite time period.() The family separation executive order calls for the opening of ad hoc detention facilities and even military bases to be used to house “alien families” together. At the same time, the Executive Order indicates that it will continue to enforce the zero tolerance policy of criminally prosecuting the parents.

Government officials report that approximately 2300 children have been separated from their parents since April 2018 under the zero tolerance policy. At this time, children already in the custody of DHHS and ORR will be processed under prior procedure of releasing children to a qualifying sponsor including another close relative or another parent if not simultaneously detained. There is no clear indication how the Executive Order will be implemented nor how families will be reunited.

There are a number of significant hurdles in how immigration cases are processed as well as limits on federal immigration custody that could prevent the children’s reunification with their parents long-term and/or even permanently. Going back more than 30 years, multiple different US Federal Courts have ruled on the immigration detention of children. In 1993, the US Supreme Court granted certiorari/appellate review in the landmark case of Flores v. Reno in order to address the federal detention of immigrant children. In 1997, the US government and plaintiffs in that case reached a consent decree settlement which set guidelines to protect unaccompanied minor children from unlawful mistreatment while held in federal custody. Collectively known as the Flores Settlement Agreement, these holdings evolved over time and also eventually became codified into US regulations.

In 2014, the Ninth Circuit Court of Appeals in California ruled that the Flores Settlement Agreement covered not just unaccompanied minor children but also expanded it to cover children accompanied by their migrant families as well. It also set a general standard that children cannot be kept in federal detention facilities for more than 20 days at a time due to the physical and mental health ramifications of prolonged detention on children.  In attempting to implement his Executive Order and open the door to permit long-term family detention, Trump will hit significant legal barriers in trying to overturn these historical binding case law precedents passed to protect immigrant children from that very thing, prolonged detention.

Children will also not be released to parents who are not bond eligible and remain in detention to pursue their family’s asylum cases taking upwards of a year.  When short-term parental reunification is not possible due to parental detention and/or inability to locate the parents or vice versa, ORR will be forced to determine what is “in the best interests” of the child.  That could mean filing local state family court guardianship petitions to declare the children permanent wards of the state under the appearance that it looks like the children were abandoned by the parents due to the parents’ unintentional absences while stuck in ICE detention and/or deported abroad. Children who were separated from their parents at the border were given different non-sequential  9 digit alien numbers (A file numbers) as opposed to immigrant families processed as family units.  An alien number is similar to an immigrant’s social security number. It is how immigrants undergoing immigration court proceedings are tracked.  Trying to track a separated missing child with a non-sequential alien number would be worse than finding a needle in a haystack even for ICE officials.

There are currently extremely long immigration court backlogs spanning the course of approximately 3-5 years. Immigration courts process juveniles on different dockets from adult and family unit dockets.  Even if parents elect to quickly give up and take voluntary departure/ removal orders in order to attempt to expedite reunification with their children, that does not mean that the children could do the same. Parents could find themselves stuck outside the US waiting years for reunification with their children while the children’s juvenile immigration court proceedings drag on in the United States.


Kristen Schneck is a partner in Fox’s Immigration Practice Group, based in Pittsburgh. She focuses her practice on removal and asylum matters.

The President recently suggested that due process does not apply to immigrants coming to the United States of America. The 14th Amendment states that: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The language of “any person” has been well-established to include not only United States Citizens but also immigrants, including those here with documentation and those without proper documents.

The U.S. Supreme Court most recently addressed this topic when the Court ruled in Zadvydas v. Davis (2001) that “due process” of the 14th Amendment applies to all aliens in the United States whose presence may be or is “unlawful, involuntary or transitory.” This built upon previous Supreme Court cases such as Plyler v. Doe (1982), Yick Wo v. Hopkins (1886), and Wong Win v. United States (1896), all which establish precedent that due process is applicable every person in the United States and not just to U.S. Citizens.

Plyler v. Doe held that a Texas statute withholding state funds from local school districts for the education of children who were not “legally admitted” into the United States, and authorizing local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.

Wong Win v. United States held that the United States must provide for a judicial trial to establish guilt before subjecting aliens to infamous punishment at hard labor, or by confiscating their property.

Yick Wo v. Hopkins held that the guarantees of protection contained in the Fourteenth Amendment to the Constitution extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, color, or nationality.

Immigrants (both documented and undocumented) are entitled to Due Process under the United States Constitution.

If you are an immigrant (or anyone) and you encounter any government official, you have the right to remain silent and can refuse the search of yourself, your car or your residence. You have the right to leave if you are not under arrest and any government agent cannot enter your property without a warrant. You have the right to an attorney.

The recent rhetoric of the President does not negate the United States Constitution or hundreds of years of case law.