Ask a Lawyer: What's Going on With 21 Savage's Immigration Situation?

The rapper born She’yaa Bin Abraham-Joseph was detained Sunday by ICE, which claims the artist is from the U.K. and is in the U.S. on an expired Visa.

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Feb 5 2019, 8:35pm

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On Sunday news broke that United States Immigration and Customs Enforcement (ICE) arrested 21 Savage (real name She’yaa Bin Abraham-Joseph) for being in the United States illegally. ICE spokesperson Bryan Cox ‘s statement indicates that the arrest occurred in a "targeted operation” in the Atlanta area, and he said after the arrest that “deportation proceedings against the rapper will begin in federal immigration court.” According to a birth certificate obtained by Reuters, Abraham-Joseph was born in the borough of Lambeth, in south London in 1992. Authorities allege that Abraham-Joseph entered the United States in 2005 on a temporary visa which subsequently expired in 2006, at which point he did not leave the country, ICE claims. He remains detained in ICE custody and, two days after his original apprehension, has been denied bail. This is a confusing turn of events for a rapper who just last week appeared at a pre-Super Bowl event alongside Ludacris and Migos, but we’ll try to make sense of how this unfolded.

In a statement to Buzzfeed News, 21 Savage’s attorney, Charles H. Kuck, stated that his client was apprehended and detained by ICE on Sunday “based upon incorrect information about prior criminal charges,” that he has filed “a pending U-Visa application” and “has relief from removal available to him.” He also questioned the timing of this arrest, given that USCIS has been aware of his status since at least 2017. His statement reads:

ICE detained She’yaa Bin Abraham-Joseph, the well-known Atlanta based recording artist and songwriter also known as “21 Savage”. Based upon incorrect information about prior criminal charges and now refusing to release him on bond of any amount, despite the fact that he has a pending U-Visa application (as the victim of crime) with USCIS, and that he has relief from removal available to him. Mr. Abraham-Joseph has never hid his immigration status from the US government. The Department of Homeland Security has known his address and his history since his filing for the U Visa in 2017, yet they took no action against him until this past weekend. ICE can only continue to detain individuals who are a threat the community or a flight risk to not show up at their hearings. Obviously, our client is not a flight risk, as he is widely recognizable, and a prominent member of the music industry. Likewise, Mr. Abraham-Joseph’s is clearly not a danger to the community, and in fact, his contributions to local communities and schools that he grew up in are examples of the type of immigrant we want in America.

ICE has not charged Mr. Abraham-Joseph with any crime. As a minor, his family overstayed their work visas, and he, like almost two million other children, was left without legal status through no fault of his own. This is a civil law violation, and the continued detention of Mr. Abraham-Joseph serves no other purpose than to unnecessarily punish him and try to intimidate him into giving up his right to fight to remain in the United States. He rose above the difficult circumstances of his youth to achieve success and make contributions to our society that rival any of those by a natural born citizen. Mr. Abraham-Joseph has US citizen children that he supports and is eligible for relief from deportation. We and he will fight for his release, for his family, and his right to remain in our country. No one would expect less from him.

While 21 Savage came to the US from a country we don’t typically think of as one that individuals seek refuge from, his situation remains distressing and highlights the oppressive nature of our immigration regime. Given the dates provided, Abraham-Joseph was 12 years old when he entered the United States, and still an adolescent when ICE alleges his visa expired. Like hundreds of thousands of children currently living in the United States, he was brought to this country under uncertain circumstances completely outside of his control. He is now 26 and has spent the latter half of his life in a country that is threatening to deport him for the alleged actions of his parents years ago. This is patently unjust.

Mr. Abraham-Joseph’s arrest comes after the first two years of a Trump Administration which has greatly expanded ICE’s enforcement abilities. And while ICE’s Atlanta field office director has publicly stated that ICE “focus[es] on arresting people who pose threats to public safety and national security,” statistics show otherwise. Under the Trump administration, arrests of non-criminals have increased 171%. Cox’s public statement about the arrest aligns with that office’s stated intention—“Mr. Abraham-Joseph was taken into ICE custody as he is unlawfully present in the U.S. and also a convicted felon." TMZ however reports that the 2014 felony Cox is referring to has been expunged, meaning that the conviction no longer appears on his record, and therefore Abraham-Joseph is not actually a felon. His lawyer also rejects that classification, stating that Abraham-Joseph was arrested based on “incorrect information.”

ICE’s attempt to criminalize Abraham-Joseph’s recent past simply is not reflected in his lawyer’s response: Abraham-Joseph supports three U.S. citizen children and, according to his lawyer’s statement continues to “make contributions to our society that rival any of those by a natural born citizen.” The statement also notes that Mr. Abraham-Joseph has a pending application for a “U Visa”—a special non-immigrant visa granted to “victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.” These visas are however very rarely granted (only 121 were issued in 2015) and currently, the backlog of applications is long; in 2017 DHS estimated “immigrants wait nearly three years before placement on the U visa waiting list if deemed approvable.” In any case, the pending application for the visa proves only that USCIS knew of Abraham-Joseph’s status, not that he has legal status in the United States.

The irony of the situation is that had Abraham-Joseph been outside of the United States, the Grammy-nominated artist may have been able to apply (perhaps even easily) for a number of different visas to secure entry to the United States. There is no shortage of foreign film stars, artists and athletes in this country—in part due to the existence of the “extraordinary ability” visa. He also has three US citizen children who, at the age of 21, could have petitioned for him to immigrate to the United States. The United States also, controversially, offers paths for investment visas that many wealthy immigrants take advantage of. However, because Abraham-Joseph, through no fault of his own found himself already illegally in the United States, his chances of going through those processes and successfully immigrating to the United States could have been compromised.

What happens now is unclear; his lawyers say that he should be released in view of his pending visa application and that he has removal relief available to him. ICE however has broad prosecutorial discretion and can hold subjects while they await their next court date. USCIS guidelines state that “a record of conviction that has been expunged does not remove the underlying conviction,” and has “no effect on removing the underlying conviction for immigration purposes.” One thing that differs from Mr. Abraham-Joseph’s situation—unlike many immigrants in detention, he has access to first class lawyers and the public’s attention—which can have an meaningful impact in today’s United States.

CNN reported that an ICE spokesperson said on Sunday that 21 Savage’s “public persona is false” because he had come to the US “as a teen and overstayed his visa.” While widely applied to immigrant youth in the United States, this allegation that any person could be accused of being a “fraud” because of circumstances completely outside of his control—and that “as a teen” he had any autonomy over his own circumstances—is clearly off-base and unjust.

Jessica Meiselman is a lawyer and writer based in New York. Follow her on Twitter.