Florida Injury Attorney Blog

The landmark immigration bill resting in the Senate has been withstanding the brunt of proposed amendments which would essentially water down the legislation and negatively effect countless people living in the United States. Republican senators have made an effort to further tie undocumented individuals ability to obtain registered status to the success of controlling the border. These senators don't want undocumented individuals who are already in the United States to obtain legal status until the border is secure. In theory, this position may seem reasonable. However, the viability of the border security efforts may be unattainable or may take years to accomplish, thus making the registered provisional status a moot point.

A group of eight senators - four Republicans and four Democrats have held firm in their resistance to such amendments. The effectiveness of the bill as it stands now is certainly open to debate. Critics believe that the legislation would be difficult, if not impossible to implement. Some believe that the agencies that execute the legislation (i.e. USCIS, ICE) may not implement the procedures according to the spirit of the legislation. It remains to be seen whether the bill will pass, in what form it will be passed, and how the changes will be implemented by the troops on the ground. Stay tuned.

Read more about the proposed amendments to the bill here.

The Legislature has still been unable to pass an immigration reform bill despite an extensive bipartisan proposal. House Speaker John Boehner voiced his concerns about the lack of progress in enacting an immigration reform bill. The proposed bill in the Senate would have both positive and negative implications for immigrants.

While a group of Senate leaders prepared a proposed bill after months of hard work, a similar group of House leaders have been unable to reach a compromise for four years. There is no indication on how long it will take for the sides to reach an agreement or whether any compromise would be accepted by the legislature as a whole.

Read more here: http://blogs.wsj.com/washwire/2013/05/16/boehner-concerned-about-slow-pace-of-immigration-in-house/

The budget crisis in the Federal Government has led to a process known as sequestration. The government has furloughed government employees and otherwise reduced spending on governmental entities. One area where sequestration has been felt is in immigration proceedings. Many immigrants who were previously detained during their immigration proceedings have been and will be released from custody to save the Federal Government money.

The released individuals will still be subject to conditions of release and will have to check in with DHS (Department of Homeland Security) as a condition of their release. From a cost effective standpoint, it costs the federal government $186 per day to detain an immigrant. In comparison, it costs between 30 cents to $14 per day to release them on bond.

It remains to be seen how many more immigrants will be released from custody on conditions of bond. It also remains to be seen how sequestration will affect the backlog of cases in other immigration areas.

The Eleventh Circuit Court of Appeals recently held that Florida Statute 843.01, Resisting an Officer With Violence, is a crime involving moral turpitude for immigration purposes. In Cano vs. U.S. Attorney General, the Eleventh Circuit determined that because the statute in its entirety is a general intent crime, and because the statute requires more than just a mere touching, but an act of intentional violence, the statute falls under the umbrella of crimes deemed to be crimes involving moral turpitude.

The significance of this decision is that an immigrant who pleads guilty to resisting an officer with violence in the State of Florida will be convicted, whether he or she receives a withhold or not, for immigration purposes of a crime involving moral turpitude. That conviction may be the basis for inadmissibility or deportability and could lead to denial of immigration benefits, a green card, denial or reentry into the country or deportation.

This is just one of many criminal convictions that can have dramatic consequences for non-U.S. citizens. Never plead guilty or no contest to a criminal charge without first seeking the advice of an experience immigration attorney.

Read the Cano decision here.

In a devastating blow to non U.S. Citizens with criminal convictions, the United States Supreme Court recently held in Chaidez v. United States that an immigrant who pled guilty to a criminal charge based on bad or no advice about the immigration consequences of their criminal plea from their criminal defense attorney can not go back and challenge that prior conviction if it is older than the law allows. In the State of Florida, a person can only challenge a criminal conviction that happened within the last two (2) years.

This decision can have traumatic consequences for non U.S. citizens who have old, and even relatively minor criminal convictions. For example, a person that has been in the United States for twenty (20) years as a lawful permanent resident who has a criminal conviction from 15 years ago could be deported based on that criminal conviction. Even if his criminal defense attorney told him at the time that the conviction would not result in his deportation.

The Supreme Court reasoned that the decision in Padilla, which held that a criminal defense attorney had an obligation to affirmatively advise his or her client of the immigration consequences of the criminal plea, was a new rule and does not apply retroactively. Therefore, only those individuals who were convicted after the Padilla decision came out and within the time frames allowed by law will be able to challenge prior criminal convictions.

The Chaidez decision serves as an important reminder to immigrants who are currently, or who will at any time in the future face, criminal charges to seek the advice of an experienced immigration lawyer who can properly advise you whether your criminal plea can, will, or will not subject you to deportations.

Read the Supreme Court's decision here.

In the State of the Union Address, President Obama called for immigration reform. Unfortunately, the term "immigration reform" has only served as a generic term thrown around on the Congress floor. Proposed reform could have both positive and negative implications on non U.S. citizens. The President called for added security at the border, specifically at the Mexican border. The President has also called for a streamlining of the immigration process to alleviate the burdensome and inexcusable delay in processing visas, which has kept U.S. citizens away from their non U.S. citizen families for extended periods of time. It can take years for an immediate relative to get to the U.S. to live with his or her U.S. citizen spouse.

As President's often do in State of the Union speeches, the President left out specifics or any policies that he plans on supporting that would the people that are already in the United States with no lawful status. The President's policy related to the Dream Act seems to suggest that there is some hope for children that were brought to the United State's without legal status, however, the current policy is simply a band aid on a bullet wound. DACA recipients are not provided legal status and are merely given a temporary reprieve from deportation.

The long and short of the President's speech leaves us with as many questions as we had before the speech. And that probably won't change any time soon.

This is a general outline that explains the law related to bond in immigration cases:

A) GENERAL
1) Bond should be granted unless there is a finding that the individual is
a) a threat to national security
b) likely to abscond
c) a poor bail risk.

2) Bond Procedure
a) ICE initially sets bond.
b) Application for re-determination may be made to Immigration Judge.
c) After an initial bond re-determination, a subsequent re-determination can only be made
1. In writing, and
2. upon showing that circumstances have changed materially since the prior bond re-determination.

B) BURDEN OF PROOF
1) on the Detainee
2) must demonstrate that his release would not pose a danger to property or persons.
3) Determination may be based on any information that is available to the immigration judge or that is presented to him.

C) CRITERIA FOR BOND
1) whether detainee has a fixed address in the U.S.
2) length of residence in the U.S.
3) Local family ties and whether ties may entitle detainee to reside in U.S.
4) record of appearances in court
5) Employment history
6) Criminal record
7) History of immigration violations
8) Attempts to flee prosecution or escape
9) Manner of entry
10) Membership in community organizations
11) immoral acts or participation in subversive activities
12) financial ability to post bond

D) APPLICABLE LAW
1) INA §236(a)
2) 8 U.S.C. §1226(a)
3) 8 C.F.R. §§103.6 – Surety Bonds
4) 8 C.F.R. §236 – Detention of Aliens Prior to Order of Removal (DHS)
5) 8 C.F.R. §1003.19 – Bond - Rules of Procedure – Immigration Court
6) 8 C.F.R. §1236 – Detention of Aliens Prior to Order of Removal (EOIR)

E) THOSE NOT ENTITLED TO A BOND DETERMINATION 
(MANDATORY DETENTION)
1) Persons in exclusion proceedings
2) Arriving aliens, including Lawful Permanent Residents
3) Persons engaged in:
a. espionage or sabotage
b. criminal activity that endangers public safety or national security
c. opposition to, or control or overthrow of the Government.
d. terrorist activities
e. Nazi persecution
f. violations of religious freedom
g. recruitment of child soldiers
4) Persons
a. inadmissible because committed offense of:
1. 2 or more crimes of moral turpitude
2. an aggravated felony
3. a drug offense
4. a firearm offense
5. a crime involving moral turpitude and sentenced to at least 1 year and committed within 5 years.
5) There is a final administrative order of removal.

F) JOSEPH HEARING
1) Hearing to determine whether the detainee is subject to mandatory detention.
2) Standard
a) a person is properly included with the mandatory detention statute unless DHS is substantially unlikely to prevail in its charges that the person is removal on one of the grounds designated in INA §236(c).

G) APPEAL OF BOND DECISION
1) Time Requirements
a) Appeal of IJ decision
1. 30 days
b) Appeal of Deputy Director decision
1. 10 days

Eight United States Senators came out with a general, non-detailed plan for future immigration policy in the United States. One of the senators included Florida Republican, Marco Rubio. It is a four point plan that includes:

1) Creating a path to citizenship for those who are already here without legal authority, while securing the borders so more people cannot enter without inspection;

2) Allowing more unskilled employees to enter the country legally if the employer can establish that there are no U.S. employees to fit the employment qualifications;

3) Creating employment verification so employers can't hire aliens who are here without authorization;

4) Reforming the immigration process to allow those who want to immigrate lawfully a more streamlined path.

No details have emerged about this bipartisan agreement. And it remains to be seen whether the legislature as a whole will accept any or all of the general principals. The four point plan also echos, in many ways, current immigration law. So we will have to wait and see whether this is simply political posturing, or whether noticeable change is around the corner.

Read more here.

The term "aggravated felony" for immigration purposes is a much misunderstood term. One of the reasons is that an "aggravated felony" need not be aggravated, nor a felony. But it is important to understand what constitutes an aggravated felony for immigration purposes, because a conviction for an aggravated felony comes with serious immigration consequences.

An "aggravated felony" is defined in the Immigration and Nationality Act, under Section 101(a)(43) and includes:
Murder, rape, or sexual abuse of a minor;
Illicit trafficking in a controlled substance;
Illicit trafficking in firearms;
Laundering of monetary assets in amount over $10,000;
Certain offenses related explosive materials or firearms;
A crime of violence in with a term of imprisonment of at least a year;
A theft offense with a term of imprisonment of at least a year;
Burglary offense with a term of imprisonment of at least a year;
Demand for or receipt of ransom;
Child pornography;
Racketeering and Gambling offenses with a term of imprisonment of at least a year;
Prostitution (pimp), prostitution transportation for commercial gain, or trafficking in persons;
National Defense information crimes, disclosing classified information, or sabotage;
Treason;
Revealing identity of undercover agents;
Fraud Offenses with loss in excess of $10,000;
Tax evasion with loss to Government in excess of $10,000;
Alien smuggling (exception for first offense and assisted immediate relative);
Alien previously deported for conviction of unlawful presence;
Passport or document fraud with imprisonment of at least one year (exception for first offense and assisted with immediate relative);
Failure to Appear for sentence where offense was punishable by 5 years or more;
Forgery, counterfeiting, etc. of VIN numbers with imprisonment of at least one year
Obstruction of justice, perjury, bribery with imprisonment of at least one year;
Failure to Appear for felony where two years or more may be imposed;
Attempt or Conspiracy to commit any of the above offenses;


An aggravated felony is not, in and of itself, a basis for inadmissibility. Although, it may be a basis for inadmissibility if it falls under some other category, like a crime involving moral turpitude. An aggravated felony is a deportable offense. Therefore, a person, even a lawful permanent resident who has lived here a very long time, can be deported based on a conviction for an aggravated felony.

Having an aggravated felony conviction subjects a non U.S. citizen to mandatory detention during deportation proceedings, disqualifies an alien from voluntary departure, disqualifies an alien from being granted asylum and may be considered a "particular serious crime" which would disqualify the alien from receiving withholding of removal. A person who has been convicted of an aggravated felony is also permanently barred from becoming a United States citizen.

The consequences to an alien convicted of an aggravated felony are extreme. If you, or someone you know, is facing a criminal case and not a U.S. citizen, consult an immigration attorney to determine whether a conviction will make you deportable, inadmissible, and if the conviction would be considered an aggravated felony.

The Obama Administration announced plans to change a long standing policy in immigration processing. As of March, immigrants who are here without lawful status will be able to apply for a waiver of their unlawful status while here in the United States. Previously, those individuals would have to leave the United States, which would activate a 3 or 10 year bar to reentry, and then would have to apply at the embassy for a waiver of that bar. This process could take many years and keep families apart for long periods of time.

Now, immigrants that have accrued unlawful status will be able to apply for a waiver here in the United States, which will dramatically reduce the amount of time they will have to spend outside the country.

As with most immigration applications, there will be a processing fee charged by the government of $585. The waiver does not change the requirements of the waiver, which requires the applicant to establish that their removal from this country would cause extreme hardship to their United States Citizen immediate relative. This has historically been a difficult, although not insurmountable, task.

It remains to be seen how the President's policy change will work in the real world.

See the New York Times article discussing this issuehere.

The Florida Supreme Court has held that the case of Padilla v. Kentucky is not retroactive. The United States Supreme Court held in Padilla that criminal defense counsel had the affirmative duty to investigate and advise their clients of the immigration consequences of their criminal plea. If the criminal defense attorney failed to give proper advise relating to immigration consequences or gave no advice at all, the client could file a motion to vacate the conviction and attempt to withdraw the plea. However, in Florida, under Florida Rule of Criminal Procedure 3.850, a criminal defendant can only challenge convictions that happened within the last two (2) years prior to filing the motion. The question left by the U.S. Supreme Court was whether Padilla was retroactive, applying to convictions that happened prior to the Padilla decision, thus allowing criminal defendants to attack convictions that are more than two years old.

The Florida Supreme Court held in Hernandez v. State, that while a trial court's pro forma warning to a criminal client that their criminal plea can subject them to immigration consequences is not in and of itself enough to deny a motion to vacate a conviction based on ineffective assistance of counsel, Padilla does not apply retroactively.

This decision is a blow to countless non U.S. Citizens who were provided incorrect or no advice on how their criminal plea could and would lead to their deportation. However, their is a silver lining. The highest court in the land, the United States Supreme Court, should render a decision on this same issue early next year in the case of U.S. v. Chaidez.

Immigration law is one of the most complex and evolving areas in the American legal system. Immigration law is administrative and thus allows for a great deal of discretion by those in authority. It is extremely important for immigrants to understand some common pitfalls that can have serious negative immigration consequences. The consequences can be severe, leading to incarceration and deportation, even for lawful permanent residents who have lived here their entire lives. The following are a few pitfalls that clients have fallen into along the way.

1) Change your residence with the AR-11 Form within 10 days of moving.

Under INA Section 265(a), "Each alien required to be registered under this title who is within the United States shall notify the Attorney General in writing of each change of address and new address within ten days from the date of such change and furnish with such notice such additional information as the Attorney General may require by regulation."

The consequences for failing to change your address can be harsh. INA Section 237(a)(3)(A) states, "An alien who has failed to comply with the provisions of section 265 is deportable, unless the alien establishes to the satisfaction of the Attorney General that such failure was reasonable excusable or was not willful."

You can obtain a Change of Address Form AR-11 at the United States Customs and Immigration Services website.

2) Register for the Selective Service.

If you are a male between the ages of 18-25, you must register for the Selective Service. If you fail to register, you may be denied citizenship until you reach the age of 30. This applies to all males living inside the United States, regardless of whether you are documented or have a greencard.

When you apply to become a United States Citizen, the government will look at the last five years to determine whether you have "good moral character" as describe in INA Section 101(f). The fact that you did not register with the Selective Service between the ages of 18-25 could lead to the denial of you Application for Citizenship if it has not been more than five years from your 25th birthday. Therefore, generally, if you are 31 years or older, failure to register for selective service will not lead to a denial. If you are younger than 31 years old and failed to register, USCIS could deny your application for citizenship unless you can establish that the violation was not knowing or willful. If you have failed to register with the Selective Service and are considering applying for Citizenship, you should consult with an Immigration Attorney to fully advise you.

For more information on the Selective Service, or to register online, visit the Selective Service Service website at www.sss.gov.

3) Do not plead guilty or no contest, or enter into a pretrial diversion program for any criminal offense, no matter how minor, without first consulting with an immigration attorney.

Many clients believe, or are told by their criminal defense attorneys, that a criminal conviction will not have negative immigration consequences, only to find out later that the government is going to deport them based solely on that conviction. Sometimes, charges are dropped when a person enters into a pretrial diversion program, only to later learn that they admitted to the elements of the offense when entering into that pretrial diversion agreement, and that admission can be used against for immigration purposes. Still others are told that a withhold of adjudication will not be considered a conviction for immigration purposes, only to find out that a withhold is considered a conviction in immigration law. The moral of this story is to obtain an immigration lawyer to review your criminal case and the potential immigration consequences before you agree to anything in the criminal case.

The government is focusing on deporting non-citizens with criminal convictions, no matter how minor and no matter how long you've been here as a lawful permanent resident. Even the most minor criminal cases can lead to deportation. Criminal defense attorneys that do not practice immigration law usually will not understand how a certain criminal case outcome will affect your ability to stay in this country. Always consult with an immigration lawyer as soon as you are charged with any criminal offense.

4) Do not register to vote or vote if you are not a United States Citizen.

There are Federal, State and local laws related to who can vote in various elections. Most laws require you to be a United States Citizen. If you vote in an election in violation of law, you are deportable. This is a very serious immigration violation taken seriously by the government.

5) Do not get married to a U.S. Citizen to circumvent the immigration laws.

USCIS adjudicators and ICE agents are trained and focused on weeding out fraud in the U.S. immigration system. They will look at every adjustment of status case based on marriage to a U.S. citizen to determine whether they believe it is a fraudulent marriage. They will look at factors such as length of marriage, length of courtship, level of intimacy between the couple, whether you live together, whether you have commingled your assets, interaction between your families, and many other factors to determine whether the marriage is valid. They will also conduct separate interviews and ask both parties very detailed questions that most married couples should know about each other.

If the government believes that the marriage is fraudulent, they can deny the adjustment application and charge both parties with a federal crime.

6) Consider holding off on getting your record sealed or expunged.

In most areas of immigration law, the alien has the burden of proof. If you have a prior criminal case and you want to get it sealed or expunged, you should consider holding off on that process until you become a U.S. Citizen. USCIS may deny your application if you are unable to provide certified documents that they request. When you get a record sealed or expunged, those documents may no longer be available. Getting a record sealed or expunged can cause you long delays and many headaches in dealing with future immigration issues.

These are only a few pitfalls in immigration issues that are easily preventable. There are many other pitfalls and if you are not a U.S. citizen, you should keep yourself updated constantly with the changing landscape.