Acquiring and Presenting Digital Evidence in Immigration Practice

• Publication year: 2020

Andrew H. Wellisch and Gabriela M. Pinto Vega^*

Abstract: In the digital age, immigration counsel can wield electronic evidence to prove eligibility for immigration relief. This article discusses a new way for immigration counsel to procure and present data in connection with the representation of foreign nationals by exploring the California Consumer Privacy Act of 2018.

Introduction

Zealous and competent¹ immigration counsel should consider technology and cutting-edge strategy by utilizing digital evidence to prove immigration relief on behalf of foreign nationals before the United States Citizenship and Immigration Services (USCIS) and immigration courts.

Immigration counsel can harness electronic evidence as part of a new defensive or offensive litigation strategy. The former occurs when immigration counsel discover data to learn what particular information the U.S. government could learn about a foreign national through, for instance, a review of their social media or a subpoena of their cell phone records. An offensive strategy arises when immigration counsel deploys digital evidence to prove immigration relief in practice.

This article addresses how immigration counsel can prove facts such as physical presence of a foreign national in the United States in removal proceedings or a bona fide relationship in a family-based marriage case in today's world, where clients sign leases by DocuSign, make purchases online, or lead their lives on social media. As an alternative to subpoenaing the evidence from its custodians, the California Consumer Privacy Act of 2018 (CCPA) may provide a creative way to obtain electronic data in connection with the representation of foreign nationals. The CCPA, effective as of January 1, 2020,² is a comprehensive state privacy law that creates new rights and responsibilities in the digital ecosystem.

The CCPA provides immigration counsel with the opportunity to apprise foreign nationals about their data rights in an ever-expanding digital world. It may also offer immigration counsel a window into refined strategies regarding the procurement and filing of novel digital evidence for foreign nationals who are California residents requesting relief before the Department of Homeland Security (DHS) or facing removal proceedings before immigration court.

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A Challenge of Gathering and Presenting Evidence in Practice

Immigration counsel face many challenges when trying to defend clients in practice. One challenge is gathering and presenting evidence to help clients pursue relief under immigration law when traditional evidence is not available in immigration court. One type of relief is Cancellation of Removal for Non-Lawful Permanent Residents (Non-LPR Cancellation), which allows foreign nationals to obtain lawful permanent resident status in the United States.³ To prove Non-LPR Cancellation, immigration counsel, on behalf of their clients, must generally show, among other elements, that the foreign national has "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application. . ."⁴

A question may arise as to what types of information counsel can present before an immigration court to display the foreign national's continuous presence for at least 10 years of the foreign national's residence in the United States pursuant to the Immigration and Nationality Act of 1952 (INA) § 240A(b)(1)(A). For instance, immigration counsel often point to "traditional evidence," including, but not limited to, affidavits; birth certificates of U.S. citizen children; criminal records; date-stamped photographs of foreign nationals at recognized sites in the United States; divorce records; education records; employment records; immigration records; income tax records; financial records; government records; legal records; marital records; medical records; purchase records; social media records; household records; and travel records to prove that the foreign national satisfied the continuous presence element.

In many instances, it becomes daunting, time-consuming, and almost impossible to obtain evidence going back 10 years, which clients are often unable to produce. In some instances, counsel have had to resort to the use of private investigators to dig up elusive evidence in order to meet this element before court.

In addition to evidentiary conundrums in court, immigration counsel may face extraordinary hurdles with obtaining traditional evidence for applications such as marriage-based petitions, removal of conditions on conditional lawful permanent residents, or relief under Deferred Action for Childhood Arrivals (DACA) before USCIS.

For example, in the marriage-based visa petition context, a petitioner must prove bona fides of the marriage by a preponderance of the evidence for marriages entered into before the initiation of removal proceedings,⁵ or by clear and convincing evidence for marriages entered into during removal proceed-ings.⁶ To satisfy the preponderance of the evidence standard, the petitioner must show that it is more likely than not, or more probable than not, that the marriage was entered into in good faith.⁷ Counsel may see challenges related to the unavailability of traditional evidence in the form of joint ownership of assets, joint bank accounts, leases, or utilities. After all, how does counsel demonstrate joint ownership of a home paid by millennials via bitcoin or burgeoning alternative digital currencies? Electronic data might be a source of evidence to demonstrate good faith marriage in this particular context.

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Digital evidence may also be considered in the removal of conditions context of immigration practice. A foreign national who adjusts her or his status through marriage to a U.S. citizen obtains conditional permanent resident status if the marriage is less than two years old on the date the adjustment is approved.⁸ The conditional resident and her or his spouse must jointly apply to remove the conditions, or the conditional resident must request a waiver of the joint filing requirement. As part of the process, a conditional resident and her or his spouse must continue to prove that the marriage is in good faith by submitting evidence of commingled assets. A problem, however, arises when traditional evidence of commingled assets is unavailable. In this particular situation, counsel may also look to data as a solution.

The breadth of electronic evidence to solve problems related to the unavailability of traditional evidence in immigration practice does not stop there. In the DACA context, on June 15, 2012, then DHS Secretary Janet Napolitano issued a memorandum to U.S. Customs and Border Protection (CBP), USCIS, and U.S. Immigration and Customs Enforcement (ICE) explaining how pros-ecutorial discretion should be applied to individuals who came to the United States as children. Among other elements, each applicant must show that she or he came to the United States before reaching her or his sixteenth birthday, she or he was physically present in the United States before June 15, 2012, and she or he has continued to maintain physical presence at the time of filing for DACA.⁹ At bottom, in all these different immigration practice areas, including DACA, electronic data may generate an innovative solution as part of a comprehensive new strategy for immigration counsel.

To implement this new strategy, immigration counsel may look to social media companies. But why? Social media companies in cyberspace may provide extraordinary evidentiary data trails—such as geolocation data—that can be collected and presented to zealously defend a client in immigration court or before USCIS. For example, a client's Facebook "location history" reveals her or his location from devices (if the client's location history setting is toggled "on" in Facebook to the extent that Facebook provides such geolocation data). Additionally, Uber gathers location data¹⁰ from its riders to the extent that riders have enabled Uber's collection of location data from their mobile devices and the Uber application is running in the foreground of those devices. This location data might be helpful to prove up missing time periods of the continuous presence requirement in DACA or Cancellation of Removal applications, presuming a user...