On April 4, 2014,
Cascadia Cross-Border Law hosted “Crimmigration 101,” a CLE exploring the
intersection of criminal and immigration law.
The two bodies of law
are inextricably bound: for example, under Padilla v. Kentucky, criminal
defense attorneys must advise
noncitizen defendants of the adverse immigration consequences resulting from a
plea agreement, or face possible liability for ineffective assistance of
counsel. Similarly, immigration attorneys must be prepared to appropriately
advocate for clients with criminal convictions before the Department of
Homeland Security, and to work with defense attorneys or even directly with
prosecutors to craft “safe” plea agreements that will not trigger removal or
otherwise affect an individual’s immigration status.
As such, one of the
most important things an attorney can learn about a client is the individual’s
immigration status, because that status will determine the attendant
consequences of a plea agreement—the most significant usually being whether the
plea agreement will trigger removal.
However, even if it is
clear that a client is a noncitizen (and that derivative citizenship laws do
not apply, which would make the individual a citizen) the inquiry must not
end—because the individual’s specific status matters, to the extent that the
person may not actually be removable. Attorney Greg Boos opened Crimmigration 101 with a presentation exploring
the potential in certain circumstances to “short-circuit the system” and
obviate removal proceedings entirely.
There is one special
group of noncitizens for whom removal is not a concern. Certain American
Indians born in Canada enjoy access to the United States unrestricted by
Immigration and Nationality Act (INA), including its removal provisions.
“American Indian born
in Canada” is a statutory term of art that encompasses indigenous peoples of
North America, who were born in Canada and who have at least a 50% native
bloodline. Rooted in the Jay Treaty of 1794 and now codified by INA § 289 (8
U.S.C. § 1359), this status allows those who can establish this bloodline
freely enter and renter the United States for any purpose. Furthermore, they
cannot be removed.
Unfortunately, this
extraordinary right is widely misunderstood, both by its intended beneficiaries
and by those enforcing our immigration laws. Many who qualify for the status do
not know they meet the status, either because they do not consider themselves
to be Indian, or because they are unaware of their native bloodline. However,
American Indian born in Canada status is an entirely racial metric and does not
depend in any way on a tribal identity.
These considerations
highlight the need for an awareness and broader understanding on the part of
those adjudicating this status, those enforcing U.S. immigration law, as well
as the native communities and general public, with regard to who is eligible. These
considerations similarly emphasize the importance for attorneys who represent
noncitizens to fully understand this status, and ask the appropriate questions
to determine whether a noncitizen client may indeed be an American Indian born
in Canada.
More information about the
unparalleled rights of American Indians born in Canada can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334394.
Plenty of employment opportunities available in Canada made the migration common and sit is high in demand.
ReplyDeletestudy in Canada