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After DACA and TPS Terminations, What’s Next?

After DACA and TPS Terminations, What’s Next?

Havana, Cuba. It is unknown how U.S.-Cuban relations will change under the Trump Administration

On September 5, 2017, President Donald J. Trump, through a memorandum issued by the Department of Homeland Security (DHS), called for an end to the Deferred Action for Childhood Arrivals (DACA) program. The program would officially end deportation protection for 800,000 young, undocumented adults after March 5, 2018. The administration called on Congress to act for any further legal protections. Without assistance of a Presidential executive order, only Congress can change the law to protect those affected.

On November 6, 2017, November 20, 2017 and January 8, 2018, the DHS further declined to extend Temporary Protected Status (TPS) to citizens of Nicaragua, Haiti and El Salvatore, respectively. The Trump Administration has further hinted it intends to terminate TPS for Honduras, after initially granting a six-month delay. While these programs won’t officially terminate protected status for these foreign citizens until 2019, it signifies a changing atmosphere under the current administration. There are a few countries left on the TPS registry, their upcoming extension deadlines are as follows:

Syria – March 31, 2018
Nepal – June 24, 2018
Yemen – September 3, 2018
Somalia – September 17, 2018
Sudan – November 2, 2018
South Sudan – May 2, 2019

First and foremost, the President has the power to terminate the aforementioned protected statuses. DACA and TPS are not legal ‘statuses’ in that they do not grant foreign citizens permanent residency, which could lead to citizenship. They are only temporary protections from deportation. Since Syria and Yemen are included in the troubled ‘travel ban’, it is unlikely that TPS protection for these countries will continue. On the other hand, in the event of an ongoing war or devastating environmental event, the President also has the power to grant temporary protected status to any citizen from a foreign country who is currently within the United States. However, the President’s long-standing strong anti-immigration comments show it is unlikely this would happen. It is also unlikely the president will follow his predecessor and create any further stays from deportation for any class of immigrants.

Many people – inside and outside of the immigration community – are asking: what’s next? Without comprehensive immigration reform, and in consideration of the President’s statements on immigration, it is hard to tell. Only Congress can change the law, but the President can change how the law is implemented. As of January 2018, the President and Congress are undergoing serious talks about immigration reform. Some current concepts under immigration may be affected. These include:

CHAIN MIGRATION: Chain migration is the concept that relatives of U.S. citizens and legal permanent residence follow their relatives to the United States to live permanently. It is a ‘duh’ concept: families want to remain with families. Under the current law, spouses, children (and their children), parents and brothers and sisters of U.S. citizens may obtain green cards to live and work in the United States. Spouses, children and unmarried adult children over 21 years old of legal permanent residents may also immigrate to the United States. Despite the system being flagged with long, burdensome delays and restriction quotas, most of these relatives eventually make the move. Every year, hundreds of thousands of familial chain migrants enter the United States as legal permanent residents.

President Trump has stated time and time again that he wants to limit chain migration. A few Congressional members have publicly called for a complete termination of the category system, limiting permanent residency to only spouses and minor children of U.S. citizens. Other members have called for a merit or point-based system. It is unknown how family-based immigration will change.

DIVERSITY LOTTERY: In order to encourage a diverse range of immigrants from almost every country in the world, up to 50,000 visas are issued every year to citizens (and their families) of certain underrepresented countries. Once in the U.S., these individuals may apply for a green card and eventually obtain citizenship. The program limits which countries may participate, and which family members may accompany. There are also education, work and health pre-requisites to meet. Since the beginning of the program, many people have successfully immigrated to the United States under the diversity program.

This visa program came under scrutiny after a 2017 terrorist attack in New York City was caused by an individual who came to the United States under this program. Politically and logically speaking, there is no direct or indirect link between the diversity program and terrorism. Despite evidence to the contrary, and despite its positive effects, it is unclear if this immigration avenue will survive.

EB-5 INVESTMENT GREEN CARDS: The phrase “buying a green card” is a true and untrue concept under U.S. immigration law. Under the EB-5 category, a foreign national (and family) may immigrate to the United States after investing in a new business or investment in the United States. There are two general requirements: invest a certain amount of capital and create and maintain at least 10 new jobs. Generally, a foreign national must invest $1,000,000.00 in an urban area or $500,000.00 in a rural or economically depressed area. The program was created at a time when the country was thirsty for economic revitalization in the form of pure-cash investments.

Despite intense regulation and observation by U.S. immigration officials, it has become subject to scrutiny. Although there are certain rules as to what constitutes a new business and what constitutes new employment, immigration attorneys and foreign nationals have continuously found ways to bypass these stringent rules. Time will tell whether the program will be overhauled in the future.

Tourist boat in Capri, Italy, representing many different country flags

H1—B TEMPORARY VISAS: The H1-B is a visa, not a green card, but many H1-B recipients eventually become green card holders. The H1-B is a three year visa (extendable by another three years) that allows companies to temporarily hire qualified foreign workers. It is the company which applies for the visa applicant, due to a vacant position. Only 85,000 visas are granted every calendar year, although hundreds of thousands apply. At the end of the program, foreign nationals can chose to go home, switch to another non-permanent visa or seek permanent residency through their employer. Spouses and children may also accompany H1-B recipients.

The program has been criticized for a number of reasons. First, there is a grossly disproportionate pool system. Since thousands of applicants apply for few positions, it creates an unfair advantage for large companies over smaller companies looking to hire foreign nationals. Second, few countries and industries dominate the majority of H1-B recipients. Lastly, it is quite expensive. Between filing and lawyer fees, companies can expect to pay over $4,000.00 for an applicant who may not get picked for a visa. One thing is for sure: this program will be reconsidered in the context of overall immigration reform.

The last major immigration reform occurred in 1996 – over two decades ago. It is unclear what the next major immigration reform will look like, especially under an administration with openly critical views. It is also unclear how the President’s insistence on border security and vetting will affect current or proposed changes. Many advocates argue that a border wall is waste of spending, as most undocumented individuals in the U.S. have overstayed their already-issued visas, rather than sneak in through the U.S.-Mexican border. In addition, every single visa and every single green card that is issued to a foreign national is subject to intense background, criminal and security checks.

If – or when – immigration reform does happen, there will certainly be much to debate.

Is DJ Creato’s Plea Agreement Fair?

Is DJ Creato’s Plea Agreement Fair?

On August 23, 2017, David ‘DJ’ Creato pled guilty to aggravated manslaughter in the October 2015 death of his toddler son, 3-year-old Brendan Creato. The guilty plea comes a mere two weeks before his second murder trial was set to begin, after a jury in the first murder trial could not reach an unanimous verdict on charges of murder and child endangerment. A few observations about the resolution of this case

    • This plea is part of a plea agreement. There are many factors why a high-profile case involving the alleged murder of a child results in a plea agreement. The prosecution may have reconsidered the weight of the evidence, the original mistrial and offered a deal the defendant couldn’t resist. Had a new jury found him not guilty, Creto would have walked free. The defense may have realized the possibility of life imprisonment or many decades in prison upon conviction at a new trial, and accepted.
    • The main evidence against the defendant is circumstantial. This means there is no direct evidence (such as a bloody knife or fingerprints) tying the defendant to his son’s death. Being the last person to see a decedent alive does not imply guilt. Even a child in his or her parent’s care immediately before he or she goes missing does not imply guilty. The strongest evidence against Creato is his unusual behavior pre-and-post death, including a sensational short-lived relationship with a young teenage woman and obsession with social and digital media.
    • Creato has pled guilty to aggravated manslaughter – not murder. Under the terms of the plea, he agreed that he “recklessly caused his son’s death, under circumstances manifesting extreme indifference to the value of human life… by depriving Brendan of oxygen.” A few notes: Creato did not admit to purposeful murder – only reckless behavior causing murder. He admits to extreme indifference to human life and depriving his son of oxygen, but he does not admit how, when, or why. Although extremely unlikely, inadvertent reckless behavior may still fall into this type of plea.
    • Under the terms of the plea agreement, Creato faces 10 years in prison, of which he must serve 8 ½ before he is eligible for parole. As he has been held in Camden County Jail since January 2016, he has likely waived his entitlement to time served for the past nineteen months. Creato will not be eligible for parole until well into 2026.

 

This is a sad case all around: a child with so much potential was cheated of an opportunity to live a full, happy life. So many people will claim the plea agreement and results of this case are unfair. Other supporters may argue the prosecution’s offer compelled Creato to take a deal despite his innocence, and thus the system is unfair. It is only when we are bound to the duties of being an impartial jury member in these cases that our voices and votes have the strongest outcome. As observers to criminal cases, we are entitled to our opinions and the right to speak, write and argue innocence vs. guilt, but justice is never quite served. What do you think about the plea deal in this case?

An analysis of fictional law-based TV shows

An analysis of fictional law-based TV shows

Does your heart hurt from watching bad legal shows? Me too.

            I will be the first to admit: when I watch a scene, whether it is part of a television show, movie, clip or comedy routine, that depicts a cringe-worthy moment in an attorney’s line of work,  I can’t help but look away. From the “Okay, I did it! I killed her!” outbursts on the witness stand, to the Oscar-worthy surprised reactions of opposing counsel when the plaintiff offers a secret piece of evidence (hint, this almost never happens, as it would be a major discovery violation..), I just can’t do it. It is true –  media is supposed to be entertaining, enjoyable, outrageous, superfluous and fun, but that doesn’t mean it needs to be legally incorrect to the point of embarrassing the profession and making the public think they know what it means to be an attorney. Here are a few of the most unrealistic depictions of the legal world as portrayed in the U.S. media:

Suits

Suits

This show is by far the worst offender. Basically, a guy fakes being a Harvard-educated lawyer at a prestigious law firm for years before getting caught and being prosecuted. But wait - there's more! After going to prison for fraud and conveniently being released in a short amount of time, all is forgiven and he becomes an actual, licensed attorney. There are so many things wrong with the premise of this show that it hurts my brain every time I think of another legally incorrect and impossible issue. In the real world, Mr. Fake Attorney would have been discovered within a month due to not having a NY bar number, and he certainly would not have passed the Character and Fitness test even if he had gone to school and applied for the bar. Sorry writers, I just can't forgive you!

LAW

Law and Order

I don't care which franchise you choose, but the courtroom scenes from these shows are unforgivably too dramatic. My complaints with this show lay with the trials: the trials that seem to begin a week after the arrest, the intense stare-downs from the prosecution, the guilty-conscious defendant who leaps up and admits to everything, and even the full-packed courtroom full of jobless adults who seem eager to spend all day watching mundane cases. It is also unforgivable that the critical witnesses are almost always in the courtroom and not sequestered, which is the number one rule in every courtroom. I don't fault the actors, but I do fault the writers for trying to create drama in an otherwise drama-less courtroom setting.

Mr

How to Get Away With Murder

Stop it, Shonda Rhimes, just stop! A Philadelphia criminal law professor and full time attorney (strange, she only seems to have murder clients whose cases are always solved in 24 hours) goes wild and gets herself and her students caught up in the cover-up murder mystery of her cheating husband and two law students. That number only rises as the series goes on. Remarkably, she's able to continue teaching, continue lawyering and completely avoids the suspicions of law enforcement throughout the entire process. What is this, a legal version of Scooby Doo & the gang? I shudder every time I hear about a scene or plot line from this show.

g

Harry's Law

Thank the Good Lord that this show was cancelled. It was horrible: the premise, the writing, the acting, everything was wrong about this show. It refused to acknowledge an important aspect of lawyers; most lawyers aren't 'Joes of all trades.' Here, a non-litigious patent attorney suddenly becomes a remarkable criminal defense trial attorney because she saved the life of a suicidal criminal. Sure, because a cardiologist can open up shop performing plastic surgery and immediately have the money to hire associates.

B

Franklin and Bash

The saddest part of this show is that is wasn't even funny, let alone realistic. Like Joan Rivers once said, it seems all these two rich boys do is fight and eat lunch. And attend preparing-lacking trials. Everything from witness and evidence tampering to the lack of billable hours for a firm of this stature, I couldn't even last a YouTube trailer. Sure - the show is supposed to be about two rich, quirky best-friend-forever attorneys and their wacky shenanigans, but there's actually very little lawyering in this show outside the unrealistic party, dating and trial scenes.

 

            If you’re a fan of the above television shows, great and kudoos to you. If you fault my criticism for not engaging in the playfulness that these shows are supposed to enumerate, I won’t deny that. However, I am and always will be a critic of even fun television that refuses to show the realness that comes with being an attorney. Some of these real experiences include:

  • Court appointed public defense conflict work is bad paying, stressful, depressing and not worth most attorneys’ time (Better Call Saul).
  • It is incredibly unrealistic to retire from practice for twelve years and magically become an associate somewhere without political connections (The Good Wife).
  • Some defense attorneys are just as corrupt as the men and women they defend (The Wire).
  • In large firms, everyone sleeps with everyone. That’s why there are stringent rules in place preventing inter-office relationships (Boston Legal).

        It would be interesting if there was a television show about the depressive depths first year associates go to in order to meet their billable hour requirements, but let’s be real – there is absolutely zero plot twists or fun in that!

*All images used for entertainment purposes only.