September 16, 2016

I am not a U.S. citizen and I registered to vote and voted in an election, what can happen to me?

If you are not a United States citizen and you registered to vote, you could face criminal charges, denial of immigration benefits and even deportation from the country. These possibilities get even worse if you actually voted in an election.

There are federal and state laws that prohibit people who are not eligible to vote (usually non-citizen immigrants) from registering to vote and voting. It is a federal crime for a non-citizen immigrant to vote in a federal election. If you are not a citizen, you can be prosecuted, sent to prison and deported for voting in a federal election, even if you did not know you were not allowed to vote.

The very act of registering to vote requires that a person certify that they are a United States citizen and eligible to vote. Anyone who registers to vote and is not a citizen, has likely made what is known as a false claim to citizenship. A false claim to citizenship can stick with a non-citizen forever and stop someone from getting a green card, getting citizenship and can even lead to detention an deportation from the United States.

You may be thinking to yourself: everyone knows only citizens are eligible to vote, why would anyone who is not a citizen register? Or an even better question: why wouldn’t the person who is registering people to vote make sure the person registering is a U.S. citizen before letting them register?

The scary truth is that the people who are registering people to vote often times do not know the law, they do not know only citizens can vote, and they are not properly trained or informed of this fact. Sometimes they are told not to ask about citizenship at all and just get people registered. Even worse, many times lawful permanent residents, foreign students and others who are applying for a driver’s license are asked by the driver’s license officials if they want to register to vote. The DMV officials do not explain to them that they have to be a U.S. citizen. They do not explain to them that by registering to vote and signing for their driver’s license, they are claiming to be a U.S. citizen, an act that can haunt them forever.

If you are not a U.S. citizen and you are registered to vote or you have voted in an election, please, please go see an experienced and trusted immigration attorney as soon as possible. An attorney who knows this area of the law, like me http://www.slgattorneysflorida.com/john-gihon.html can help non-citizens do damage control in a situation that can potentially lead to the denial of immigration benefits and deportation.

If you are not a U.S. citizen and you have registered to vote or voted, all is not lost; you are not guaranteed a plane ticket back the country where you were born. Depending on the facts of your case and your immigration status, you may have defenses to the false claim to citizenship and unlawful voting.

For example, if you are a lawful permanent resident (green card holder) and you have been in the country for many years, and you registered to vote or voted, you may be able to keep your green card, avoid deportation and even successfully apply for citizenship.

If you are not a citizen and have registered to vote or voted and you have lived in the U.S. since you were a child, and your parents are citizens, you may not have violated the criminal or immigration laws on this subject.

If you are not a citizen and you voted in a federal election—one where you were voting on the President or Congress—then you have likely violated the federal law on unlawful voting, even if you did not know you were doing anything wrong.

If you are not a citizen and you voted in only a state or local election, and you did not know you were doing anything wrong, you may not have violated the criminal or immigration laws on the subject.

This area of criminal and immigration law is very confusing and can lead to very serious consequences, whether you knew you were doing anything wrong or not.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you are not a citizen and you registered to vote or voted, call us today to set up an appointment to find out how to try and protect your immigration status.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
Follow my blog: http://www.floridaimmigrationlawyerblog.com

August 31, 2016

How do I apply for Asylum? I am here in the United States and I am afraid to return to my home country because I am going to be harmed or killed, how do I apply for asylum in the United States?

Many people come to the United States to visit friends and family, to work, go to school, or just as tourists. However, some people come to the United States fleeing persecution, abuse or torture in their home countries. Many unfortunate souls are forced to flee their homelands to save themselves and their families; they come to the United States for refuge. Many people flee their home countries and then apply for refugee status outside of the United States. This is what is going on with thousands of Syrian refugees right now. These victims of the Syrian civil war have been forced to flee Syria and have applied for refugee status to come to the United States (and other countries). These refugee applicants are vetted for honesty, have their backgrounds checked and if they meet the definition of “refugee” according to our immigration laws, they can be given safe passage to the United States and resettled here as refugees.

But what about people who are already in the United States as tourists, students or just here, and they are afraid to go home because they will be targeted for persecution? The bad news is, if you are already here in the United States, you cannot apply for refugee status. The good news is, you can apply for asylum, which is in essence, the same thing as applying as a refugee abroad. If your asylum application is granted, you will be given asylee status and allowed to stay in the United States. After one year, you can apply for your green card (lawful permanent residence).

How do I apply for asylum if I am here in the United States you ask? Its complicated, but there are a few important things to remember when you are here in the United States and are afraid to return to your home country and therefore thinking about applying for asylum. First, go see an experienced and trusted immigration attorney who handles asylum cases. Do not go see a notario or paralegal or that guy in your neighborhood who applied for asylum. There is no replacement for competent and correct legal advice when it comes to you and your family’s future and safety. Before and after you consult with an immigration attorney, here are a few other things to remember.

1) You must apply for asylum within a year of arriving in the United States or you are ineligible. That’s right, with very few and limited exceptions, if you entered the United States more than a year ago, you are not eligible for asylum. You can still apply for something similar to asylum, called withholding of removal, but even if that is granted, you are ordered removed and do not get a green card after a year. So its very, very important to remember, apply for asylum within a year of your last entry into the United States. Of course, if you are a student, or on a work visa, you may be excused from filing within one year of your entry; seek legal advice to see you if qualify for this exception. Also, if you or a family member became very sick or were injured during the first year you were here, you may qualify for an exception. There are other exceptions and excuses for not filing on time, but they are limited; go talk to an immigration attorney as soon as possible to discuss your options.

2) Be honest. Even if you apply within one year and bad things happened to you in your country or bad things will happen to you if you return, if you lie or leave out important details about you or your case, you can be found not credible and your asylum application could be denied. One of the most common reasons for the U.S. government to deny an asylum application is because the applicant (you) is not credible. I have seen asylum applications denied and applicants found not credible because of three minor inconstancies between their application and interview. So, be honest, don’t exaggerate, don’t make things up and if you don’t remember a date or time or location, don’t guess at the answer. Also, if you file a frivolous asylum application, which means one with a made up story about you and your past or future fear of returning to your county, you can be denied asylum and banned from all future forms of immigration benefits forever. So be honest!

3) If you follow one and two above, here is the heart of what you have to prove to the U.S. government to qualify for asylum: A person may be granted asylum in the exercise of the Attorney General's discretion, if the person demonstrates that he or she is a refugee within the meaning of the law. To qualify for a grant of asylum, the person must establish that he or she is a refugee. The law defines a refugee, in part, as a person who is unable or unwilling to return to his or her home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

This is where many people give up trying to apply for asylum on their own and hire an attorney. What is a particular social group? Am I part of one? What is a well-founded fear? These are all great questions that even seasoned immigration attorneys and judges have trouble explaining and understanding. Here is the long and short of it: were you harmed in the past or will you be harmed in the future by the government of your home country, and if so, did they harm you or will they harm you because of your political opinion, race, religion, nationality, or because you were a gypsy, homosexual or part of another group? If you can answer yes to these questions, you may qualify for asylum.

There are many other important requirements for applying for asylum, but if you remember to file on time, be honest and if you fear harm or were harmed for the right reason by the right people, you and your family may have a future in the United States as an asylee, then a lawful permanent resident, then a U.S. citizen.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you want to apply for asylum or have questions about it, call us today to discuss your case.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
Follow my blog: http://www.floridaimmigrationlawyerblog.com

August 19, 2016

How Can I Bring My Fiancé to the United States?

This is a very common question we receive all the time, “How do I get my fiancé a visa to come to the United States?” Should my fiancé come over on a visitor visa and then we will get married? Should I file a fiancé visa for her to come over and then we get married? These are all very good questions, and the answers very much depend on the facts surrounding each case.

Lets start with a brief overview of United States visas available for domestic relationships. If a U.S. citizen is married to someone who is not a citizen, the U.S. citizen can file an I-130 Petition for their spouse, which if approved, will provide the spouse with a visa and an opportunity to apply for a green card immediately. If a lawful permanent resident is married to someone who is not a citizen or lawful permanent resident, the process is the same, but once the I-130 is approved, there will be a wait of potentially several years before the spouse can apply for their green card.

If you are a lawful permanent resident of the U.S. and your fiancé lives in another country, sorry but you are out of luck. There is no visa available for the fiancé of a lawful permanent resident. You will either to apply to become a citizen and then file for a fiancé visa, or you will have to get married before you file the I-130 for your spouse.

Now we are to the question at hand; what if I am a U.S. citizen and my fiancé lives in another country? Can I file a visa petition to get that person into the United States? The answer is, YES, if you can fulfill or excuse away, certain requirements. First off, the Petition you would file for your fiancé is called an I-129F, Petition for Alien Fiancé (here is a link to the form from USCIS: https://www.uscis.gov/sites/default/files/files/form/i-129f.pdf).

In order to file this form for your fiancé, 1) you must be a U.S. citizen (born or naturalized), 2) you intend to get married within 90 days of when your fiancé is ultimately admitted into the United States, and 3) you have met your fiancé IN PERSON, in the two years before you file the petition.

Seem pretty simple, right? If you meet all three of these requirements, and can afford the $340 filing fee, correctly fill out government forms and supply the necessary evidence, then you should be good to go. But what if your fiancé has children, can they come too? What if we are not going to get married within 90 days? What if you have never actually met your fiancé in person?

I recommend at least consulting with an experienced and trusted immigration attorney before trying to take on any immigration challenges (check out my experience here: http://www.slgattorneysflorida.com/john-gihon.html). Better yet, hire an immigration attorney to guide you through the process and handle everything for you. Its not really that expensive when you think about the fact that if you take on the case yourself and mess up, your fiancé may not be able to get a visa or could be permanently banned from coming into the United States or getting a green card.

Lets start with the children of your fiancé; you can petition for them too, at the same time as your fiancé. The children must be unmarried, under the age of 21 at the time of the petition and be listed on the I-129F Petition. Just like your fiancé, if the petition is approved, and they all travel to the U.S., and you and your fiancé get married within the required 90 days, they can all apply to get their green cards. However, just like with your fiancé, if something happens and you do not get married within the 90 day period, both your fiancé and the children will likely be barred from applying for their green cards and may have to return home to their country.

There are exceptions to every rule, including the requirement of getting married within 90 days and the bar to the children getting green cards if the marriage doesn’t happen in time. However, those exceptions are too complicated and case-specific to discuss here.

There is also an exception to the requirement that you have met your fiancé in person in the last two years before your file the petition. USCIS can waive this requirement if 1) the requirement “would violated strict and long-established customs of your or your fiancé’s foreign culture or social practice;” or 2) the requirement would result in extreme hardship to you.

This exception is usually met in circumstances where religious beliefs do not allow for you and your fiancé to meet in person until you are married, or where you or your fiancé have a financial or physical disability which make it near impossible for either to travel great distances just to meet.

If your fiancé has a visitor visa already, and you are planning your wedding in the U.S., having your fiancé enter on the visitor visa with the intent to marry in the U.S. and file for adjustment of status here is a very bad idea. A visitor visa is a non-immigrant visa where you have to intend to leave the U.S. when you enter. If your fiancé’s intent is to stay forever, entering with a visitor visa is fraud and USCIS may deny any future green card applications because of it.

This visa is also not something I suggest for everyone who calls to inquire about applying for a fiancé visa. Sometimes, the U.S. citizen petitioner will say something like, I met this person in another country, not sure if I want to marry them, but they can’t get a visitor visa so I want to bring them in as my fiancé, see if it works out and then we may get married.

There are a whole host of problems with this scenario. If you are not sure you are going to marry the person, DO NOT file a fiancé visa for them. This is not an international dating visa, this is for people who are committed to each other and simply have not yet married, but are very close do closing the deal.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you have a fiancé in another country and want to discuss your options for getting them a visa, call us today to discuss your case.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
Follow my blog: http://www.floridaimmigrationlawyerblog.com

August 9, 2016

What Can Happen To Me If I Claim To Be A United States Citizen Before I Become One?

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Claiming to a United States citizen when you are not one may not appear to be that horrible of an act, but under immigration law, it is one of the worst things you can do as a non-citizen. Falsely claiming to be a U.S. citizen for almost any reason, can lead to a permanent denial of lawful permanent residence (a green card), a denial of your Application of Naturalization (citizenship), you can be detained and put in immigration removal proceedings, denied other forms of immigration relief and ultimately deported. Yes, that’s right, unless and until you are a U.S. citizen, you should never tell anyone you are a U.S. citizen for any reason.

If you are not a U.S. citizen, the circumstances that you may claim to be a citizen can vary. Most people who get in trouble for claiming to be a U.S. citizen did so in the context of registering to vote or when filling out the Form I-9 Employment Eligibility Verification. Others may have claimed to be a citizen to obtain federal benefits such as student loans, a home mortgage, Medicare, Medicaid or food stamps. Some people falsely claim to be a U.S. citizen so that they can get a U.S. passport. This is not only something that can get you deported, its also a federal crime. Some people falsely claim to be a U.S. citizen to avoid being deported when they are interviewed by immigration officers at the U.S. border or when arrested on a criminal offense.

Regardless of the circumstances under which a non-citizen claims to be a U.S. citizen, the penalties and consequences are severe—the U.S. government takes false claims very seriously.

So what do you do if you are not a U.S. citizen and you know you have claimed to be a U.S. citizen in the past? Easy answer: call an experienced immigration attorney as soon as possible to discuss the consequences of your false claim to citizenship. An experienced immigration attorney can discuss with you the exceptions to the law, which include people who have lived in the U.S. since they were children, have two parents who are citizens and who believed at the time they claimed to be U.S. citizens that they actually were citizens.

Other exceptions to the false claim laws include people who are actually U.S. citizens and do not even know it. There are multiple ways that people who were not born in the United States can legally become U.S. citizens without applying and without even knowing. An experienced immigration attorney can walk you through the requirements for this exception to the law and help you determine if you are a citizen.
In addition to these two exceptions, the Board of Immigration Appeals recently published a decision that has the potential to give attorneys and non-citizens more arguments for why a false claim to citizenship may not actually trigger the negative consequences under immigration law.

In Matter of Richmond, 26 I&N 779 (BIA 2016), the Board set out the requirements for establishing when the INA § 212(a)(6)(C)(ii)(I) ground of inadmissibility related to false claims to U.S. citizenship applies. The Board held that an alien is inadmissible under this section if he or she made a false claim to U.S. citizenship with the “subjective intent” to obtain a purpose or benefit under the Act or any Federal or State law. The Board further explained that this section will only apply when 1) there is direct or circumstantial evidence demonstrating that the false claim was made with the subjective intent of achieving a purpose or obtaining a benefit under the Act or Federal or State law; and 2) the presence of a purpose or benefit must be determined objectively— that is, U.S. citizenship must actually affect or matter for the purpose or benefit sought.

This opens the door for non-citizens to argue that if they did not intend to falsely claim to be a citizen, then the false claim law would not apply to them. For example, if a person accidentally checks the citizen box on the I-9, but meant to check the lawful permanent resident box, the law may not apply. In addition, if the employer checked the citizen box, not the employee, and the employee signed the form without reading it, the law may not apply.

This case also paves the way for non-citizens to argue that they may have claimed to be a citizen for some benefit, but because citizenship was not a requirement to obtain the benefit, the law would not apply. For example, if you are legally able to work in the U.S., but you are not a citizen, you can claim unemployment compensation benefits. Therefore, if you claim to be a citizen on the unemployment compensation benefit application, the law should not apply, because citizenship is irrelevant for the benefit.
The Board also left open the door that a person who made a claim to citizenship, and who credibly believed at the time they were a citizen, may not be inadmissible under this section, even though they do not meet the statutory exception. The Board did not have to decide this specific issue because Mr. Richmond was not credible in his testimony that he believed he was a citizen at the time he made the claim.

This is potentially very helpful because there are many, many people in the United States who grew up thinking they were citizens, only to discover in the teens or early 20s that they were not. Technically, a 16-year old who came to the U.S. as an infant, but is not a citizen, and who applies for their first job believing they are a citizen, could be barred forever from ever obtaining a green card. This Board decision gives attorneys the chance to argue that a false claim isn’t false if the person making the claim credibly believed they were a citizen at the time.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you or a loved one have ever told anyone you are a U.S. citizen and you are not one, call us today to discuss your case.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
Follow my blog: http://www.floridaimmigrationlawyerblog.com

July 28, 2016

The Supreme Court tied on U.S. v. Texas, DAPA and expanded DACA are still frozen, where do we go from here?

Anyone who follows immigration news or politics has probably heard that late last month, the Supreme Court in a 4-4 tie, left in place the lower court’s order freezing DAPA and expanded DACA. What this means is that for the rest of President Obama’s term, there will be no Deferred Action for Parents of Americans or an expansion of the already-in-place Deferred Action for Childhood Arrivals program begun in 2012.

This does not mean that DAPA and expanded DACA are dead; rather, it means that the Supreme Court has not yet decided if any president has the authority to create and administer expansive immigration policy measures like these. Obviously, if a candidate who does not support DAPA and DACA wins the White House, these programs will never see the light of day. If a candidate who supports these measures or even more ambitious measure reaches the White House, we can expect that we will see a new push for DAPA and DACA or programs like them in 2017.

These programs are not the only way that people in the United States without a lawful immigration status can seek immigration relief. There is always prosecutorial discretion, stays of removal, temporary protected status, asylum, withholding, and cancellation of removal, among others.

Just a reminder of what the DAPA and expanded DACA programs are, and are not.

DAPA (Deferred Action for Parents of Americans) was an entirely new Deferred Action program that would help an estimated 3-4 million undocumented parents stay in the U.S., obtain work permits and driver’s licenses. DAPA requires that:

1) You have, on November 20th, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident; and
2) You have continuously resided in the U.S. since before January 1st, 2010; and
3) You are physically present in the U.S. on November 20th, 2014, and at the time of making a request for consideration of deferred action with USCIS; and
4) You have no lawful immigration status on November 20th, 2014; and
5) You are not an enforcement priority (little to no criminal record).

Expanded DACA (Deferred Action for Childhood Arrivals) requires that:

1) You entered the United States before the age of 16 years old; and
2) Have continuously resided in the United States as of January 1st, 2010; and
3) Were physically present in the United States on January 1st, 2010, and at the time of making your request for consideration of deferred action with USCIS; and
4) Had no lawful immigration status on January 1st, 2010; and
5) Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
6) Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

What these programs are not is a direct path to a green card or to U.S. citizenship. These programs cannot legally provide either of these benefits to those who qualify for them. These programs simply help people without a lawful immigration status who have been in the U.S. for a long period of time, are not hardened criminals and have gone to school here or built their families here. These programs help people legally obtain a driver’s license (if they otherwise qualify) and legally work if they want to, which many of them are doing anyway.

The people who qualify for DAPA and DACA are not the people we are currently trying to deport from the United States to begin with. They are not people considered to be an “Enforcement Priority” by our government, so we are not spending any time or tax dollars trying to detain and deport them. What these programs would accomplish is to bring people who are in the immigration and legal shadows out of figurative hiding.

To apply for these programs, people have to announce to the government that they are here in the U.S., which many times, our government doesn’t even know. They have to undergo a biometric background check and pass it and then they have to stay out of trouble. These are all things that both sides of the political spectrum want from immigrants to the United States. Tell us who you are, where you are, pass a background check, don’t get in trouble with the law and then we can talk about immigration reform.

The bottom line is, these programs, if and when they are allowed to go forward, will be a tremendous benefit to the immigrants that they will help, their families and to law enforcement.

With the prospects of comprehensive immigration reform no closer than they were a decade ago, this is something that will help the immigrants in the U.S. who we are not trying to deport anyway and help our government identify those living in the shadows and give them an opportunity to work and drive legally.

No matter who our next President will be, they will not be able to provide long-lasting and meaningful immigration reform without Congress and for the last 16 years, Congress has shown that it can’t work together to get anything meaningful done in a bipartisan way. We need to find a middle ground, and programs like DAPA and DACA can provide that middle ground until Congress and whomever is President decides they want to do their job and solve this dysfunctional and broken immigration system we have.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you or a loved one are in the U.S. without a lawful immigration status, and you want to know if you qualify for any form of immigration relief, call us.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
Follow my blog: http://www.floridaimmigrationlawyerblog.com

July 15, 2016

Updates from the Board of Immigration Appeals and Good News for Immigrants held in Detention more than Six Months

Over the last two months the Board of Immigration Appeals has released a handful of new published decisions. I have summarized them and provided my insight into what the cases mean for the immigration practitioner. Also, since my last post on the case of Maxi Sopo there has been a very interesting interpretation of the ruling. In my blog on that case http://www.floridaimmigrationlawyerblog.com/2016/06/eleventh_circuit_court_of_appe_1.html, I interpreted the decision to require that immigration attorneys who wished to have a bond hearing when their clients were detained for more than six months pre-final order, would have to go to federal court with a habeas action first. However, that is not how the ACLU interpreted the case and not how it is playing out in court. The ACLU practice advisory says that immigration attorneys who believe their clients have been detained unreasonably long, pre-final order, can file their bond motions directly with the immigration courts. https://www.aclu.org/legal-document/practice-advisory-prolonged-mandatory-detention-and-bond-eligibility-eleventh-circuit. That is a huge time and cost saver for clients. The ramifications of the Sopo case are still shaking out in practice, so I will try and keep you posted on what happens in the filed going forward.

Now, back to the summaries of the published BIA cases for the last few months:

Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016):
In a decision specifically limited to the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, the Board decided that a crime involving the solicitation of a drug trafficking offense is a crime involving moral turpitude (CIMT). In this case, the respondent was as returning lawful permanent resident who the Department determined was an arriving alien due to her inadmissibility for a CIMT conviction. The respondent argued that because the INA § 212(a)(2)(A)(i)(I) CIMT ground of inadmissibility mentioned only attempts and conspiracies to commit a CIMT, solicitation to commit a CIMT was not a CIMT. The Board rejected this argument reminding the respondent that in the context of CIMT analysis, an inchoate offense and a complete offense are treated the same.

Matter of Estrada, 26 I&N Dec. 749 (BIA 2016):
The Board continued to expand upon its recent jurisprudence for when the circumstance-specific approach, rather than just the categorical approach, should be used when analyzing a criminal statute. In this case, the Board examined a Georgia criminal statute under the circumstance-specific approach to determine whether the statute was a crime of domestic violence pursuant to INA § 237(a)(2)(E)(i). The Board stated that the circumstance-specific analysis applied only to determining the domestic nature of the offense and not to whether the statute was a crime of violence. The Board also specified that the documents that comprise the formal record of conviction, in addition to reliable police reports, may be used under the circumstance-specific approach.

Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016):
The Board held that the national security bar found in INA § 212(a)(3)(B)(iv)(VI) which applies to people who have provided material support to a terrorist organization, contains no implied duress exception. This bar, which applies in multiple contexts, is usually seen in asylum and withholding of removal claims, and with applicants applying for adjustment of status. In reaching its conclusion, the Board followed multiple published Circuit Court decisions that refused to read an implied duress exception into the “material support bar,” where Congress clearly chose not to include one in the statutory language. The Board also noted that it was redundant to read an implied duress exception into the bar when Congress created a specific waiver of the bar for duress cases in INA § 212(d)(3)(B)(i).

Matter of Gomez-Beltran, 26 I&N Dec. 765 (BIA 2016):
The Board followed the clear language of INA § 101(f)(6) as it relates to barring a finding of good moral character (GMC) if a person gives false testimony, under oath, during immigration proceedings. The Board held that if a respondent gives false testimony, under oath, during immigration proceedings, the respondent cannot establish GMC during the applicable statutory period. The Board did provide two potential arguments against such a finding; 1) where the respondent made a voluntary and timely recantation of the false testimony, and 2) they noted that not every misrepresentation or omission will be sufficient to constitute false testimony.

Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016):
In another case displaying the Board’s focus on mental health issues in immigration court, the Board stated that an immigration judge has the discretion to determine the appropriate safeguards in a case under of Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). More specifically, the Board will review, de novo, an immigration judge’s decision regarding which safeguards to employ in a case involving a respondent who is incompetent due to mental health issues. There was nothing groundbreaking in this case, but it appeared the Board was reminding immigration judges that terminating removal proceedings as a safeguard in a case were a respondent was mentally ill, had a serious criminal history and was a danger to the community, was improper.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you have a loved one who has been in immigration detention for more than six months and you want to know if we can help them secure a bond hearing, call us.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
Follow my blog: http://www.floridaimmigrationlawyerblog.com

June 24, 2016

Eleventh Circuit Court of Appeals Says Mandatory Detention is not Mandatory if your Immigration Case takes too long to Complete.

As a non-citizen in an immigration detention facility, you may or may not be eligible for release or a bond. Unlike in criminal court where you have a Constitutional right to a reasonable bond (with very few exceptions), in Immigration Court, an immigration judge often has no authority to grant you a bond in your case, even if you have never been arrested for a crime.

In our office, we handle many cases involving clients who are detained in immigration detention facilities. Some are in removal proceedings fighting to keep their green cards, obtain some form of immigration relief or are simply trying to get a bond so they can get out of detention. There are many ways that we can help a client get out of immigration detention, whether its by asking ICE to parole them from custody or grant them a bond, or filing a bond motion in immigration court or asking the ICE attorneys handling the case to agree to a bond. Now, we have another way to try and secure the release of clients detained for more than six months thanks to a new decision by the 11th Circuit.

You may ask, how is that fair, why am I not eligible or a bond? Let me explain the law on this issue. If you already have a final order of removal and the government detains you to execute that order, you are not eligible for a bond from an immigration judge. If you are stopped at a land border or airport or seaport and considered an arriving alien and detained, you are not eligible for a bond. If you are removable or inadmissible for almost any criminal ground of removability, you are not eligible for a bond. It makes no difference if you are a flight risk or a danger to the community; if the law says you are not eligible, there is nothing an immigration judge can legally do to grant you a bond.

If you are in removal proceedings and subject to mandatory detention under INA § 236(c) for one of the criminal grounds of removability under INA § 212(a)(2) or § 237(a)(2), then you must be held in detention until an immigration judge issues a final order in your case. That means in order to be released when you are subject to mandatory detention, the Immigration Judge must terminate your case or grant you relief from removal. Of course, if the judge orders your deportation and you don’t appeal, you will be released from custody as soon as they put you on a plane to deport you.

If you win or lose your immigration case and you or the government appeals, then you have to stay in detention until the appeal is decided. This can take many, many months, to over a year. About 13 years ago, government immigration attorneys told the U.S. Supreme Court that an immigration case usually takes about 47 days to complete from beginning to a final hearing. The government went on to say, if there is an appeal, it will be decided in an average of an additional four months. That puts the average detained case completion, beginning to end with an appeal, at less than six months. Based upon these statistics, the Supreme Court in Demore v. Kim, said that Immigration and Customs Enforcement could keep detainees detained during the entire removal case if they were subject to mandatory detention.

Six months may feel like an eternity when you are the detainee, but the Supreme Court said six months was reasonable to make sure that “criminal aliens” do not flee or commit new crimes while the government is trying to deport them. Here is the problem with those statistics and the Supreme Court’s decision, not only is less than six months not an average for a detained immigration case these days, but I do not have a single detained client who has an appeal pending, who has not been in custody for far longer than six months. That’s right, every single detained appeal case I have, has lasted longer than six months and some appeals are still pending while my client sits in detention for more than a year.

The Supreme Court has already said in a case called Zadvydas v. Davis that once a person has a final order of removal, they must be detained for at least 90 days while the government tries to deport them. After 90 days, ICE can release the person if they do not think that they can deport the person (think Cubans). If ICE thinks they can deport the person after the 90 days, they can keep the person detained while they keep trying to deport them. However, the Supreme Court drew a line in the sand and said that at 180 days in detention after a final order of deportation, the detention becomes presumptively unreasonable. This allows the detainee to bring an action in federal court called a writ of habeas corpus to ask the federal court to force immigration to release the detainee.

For detained people who do not have final orders of removal in the 11th Circuit, there was no writ of habeas corpus to force the government to release a detainee, that is until now. In the wonderful case of Sopo v. U.S. Attorney General, a very smart man named Professor Michael Vaseline at the St. Thomas Law School Immigration Clinic brought this case challenging Mr. Sopo’s extremely long detention by ICE while he waited for a final decision in his case. http://media.ca11.uscourts.gov/opinions/pub/files/201411421.pdf

In the Sopo case, the 11th Circuit did not issue a bright-line rule that pre-final-order mandatory detention was always unreasonable after six months. However, the Court did say that after six months, an attorney could bring a habeas action to ask the federal courts to make the immigration courts have a bond hearing where they had to consider if the client was a flight risk or a danger to the community. This is a huge victory for detained immigrants whose cases have been pending for more than six months without a final order, even if the case is on appeal. Now, if the case has taken more than six months, and it is not because the client has been delaying the case purposefully, there is a very good chance that the federal courts will order the immigration courts to have a bond hearing.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you have a loved one who has been in immigration detention for more than six months and you want to know if we can help them secure a bond hearing, call us.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
Follow my blog: http://www.floridaimmigrationlawyerblog.com

June 13, 2016

Summaries of Unpublished BIA Decisions from Florida

This part of the latest issue of the AILA Georgia-Alabama and Central and South Florida Chapter 11th Circuit Litigation Newsletter summarizes unpublished BIA decisions from Florida. The summarized cases are for April and May 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

Miami, FL

Eduardo Fernandes Marcon, A089 159 932 (BIA Mar. 2, 2016) (2016 WL 1084485) - The respondent appealed the IJ’s denial of a continuance. The BIA agreed with the IJ that the respondent did not demonstrate “good cause” for a continuance based on prospective relief based on a VAWA self-petition with USCIS. The BIA reasoned that the respondent had not filed the petition with USCIS, and did not demonstrate prima facie eligibility for the requested benefit. Moreover, the BIA was also not persuaded by the respondent’s due process challenges asserting that the IJ was biased. The BIA explained that the respondent did not specify any instances in which the IJ demonstrated bias, and found that the IJ was impartial in conducting the removal proceedings, as the IJ afforded the respondent “a number of continuances over several years to pursue various forms of relief.”

Mario Francisco-Alonzo, A029 275 076 (BIA Mar. 2, 2016) (2016 WL 1084487) - The BIA sustained DHS’s appeal of the IJ’s decision terminating proceedings, finding that the respondent’s conviction is not an aggravated felony crime of violence under 18 U.S.C. § 16(b) based on the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The BIA disagreed with the IJ’s “broad reading of Johnson as having invalidated [the] application of the “ordinary case” test in immigration law. To reach its conclusion, the BIA reasoned that the Eleventh Circuit decision, United States v. Keelen, 786 F.3d 865, 871 (11th Cir. 2015), which was decided before Johnson, “remains controlling law in removal proceedings arising within the Eleventh Circuit.” The BIA conveyed that “it is not for the Immigration Judge or this Board to declare that Eleventh Circuit precedent has been implicitly overruled by the Supreme Court. If Keelen needs to be revisited in light of Johnson, then the Eleventh Circuit (or the Supreme Court) would be the proper authority to do so.” Notably, however, in a footnote, the BIA acknowledged that three of the circuit courts of appeals have applied the Johnson Court’s reasoning to invalidate 18 U.S.C. § 16(b).

Marie Fanette Funeus, A047 631 119 (BIA Mar. 14, 2016) (2016 WL 1357966) - The BIA remanded the respondent’s case to the IJ for preparation of a “sufficient decision in this matter setting out the reasons for the decision.” The BIA found that the “brief handwritten notation” on the IJ’s decision not sufficiently address whether the NTA and Notice of Hearing, which were both sent by regular mail, were properly served on the respondent.

Glenroy Blackwood, A062 678 337 (BIA Mar. 18, 2016) (2016 WL 1357927) - The respondent appealed the IJ’s finding that his conviction for aggravated assault with a deadly weapon under Fla. Stat. § 784.021 was a crime involving moral turpitude (CIMT). The respondent argued that the statute of conviction is a general intent crime, and therefore is not a CIMT. The BIA found that Fla. Stat. § 784.021 requires “proof of an intentional threat that creates a fear of imminent violence.” Thus, to satisfy the intent element the State must prove that the defendant did “an act that was substantially certain to put the victim in fear of imminent violence.” Pinkney v. State, 74 So.3d 572, 576 (Fla. Dist. Ct. App. 2011). Based on the statute’s specific intent “to make a threat to do violence[,]” the BIA agreed with the IJ and held that assault with a deadly weapon is a CIMT.

Carlos Fleitas Carranza, A076 460 879 (BIA Apr. 22, 2016) (2016 WL2848961) - The BIA remanded the respondent’s case to the IJ for further analysis and issuance of a new decision. The BIA agreed with the respondent’s contention that the IJ’s decision does not explicitly find that DHS met its burden of proof to show removability by clear and convincing evidence. The BIA found that the IJ’s decision “lacks sufficient analysis and does not provide an adequate opportunity to the alien to contest the [IJ’s] determination on appeal and leaves the Board without adequate means of review[.]”

Orlando, FL

Jihad Smouni, A096 005 999 (BIA Mar. 30, 2016) (2016 WL 1722540) - After the IJ ordered the respondent removed in absentia, the respondent filed his first motion to reopen. The IJ denied the motion because the respondent failed to provide a sworn statement, and thus had not rebutted the presumption that the Notice of Hearing was properly served. The respondent filed a second motion to reopen alleging the same facts but added a sworn statement. The IJ denied the second motion to reopen for being numerically barred. The respondent appealed alleging ineffective assistance of former counsels and invoking equitable tolling. The BIA agreed to reopen proceedings, after construing the respondent’s motion to reopen as a motion to remand.

Collin Alesta Campbell, A203 018 174 (BIA Apr. 29, 2016) (2016 WL 2848933) - The BIA denied in part the respondent’s motion to reconsider, finding that the BIA did not err in stating that when applying for adjustment of status, the respondent was obligated to demonstrate by clear and convincing evidence that he was not inadmissible. However, the BIA granted, in part, the respondent’s motion to reconsider, and remanded the case to the IJ for further proceedings. The respondent had requested a remand for an opportunity to submit additional evidence regarding his exact statute of conviction. The BIA found that the respondent met the standards for a motion to remand, citing Matter of Coelho, 20 I&N Dec 464 (BIA 1992).

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
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June 9, 2016

Summaries of Unpublished BIA Decisions from Alabama and Georgia

This part of the latest issue of the AILA Georgia-Alabama and Central and South Florida Chapter 11th Circuit Litigation Newsletter summarizes unpublished BIA decisions from Alabama and Georgia. The summarized cases are for April and May 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

Atlanta, GA

Julio Lopez-De Dips, A206 011 402 (BIA Mar. 1, 2016) (2016 WL 1084489) - The BIA remanded the matter to the IJ for reconsideration of the respondent’s motion to continue in light of the respondent’s marriage to a U.S. citizen and the U.S. citizen spouse’s plans to file an I-130 for respondent. The IJ had previously denied respondent’s motion to continue holding that the respondent had failed to show good cause because any relief based on the marriage was speculative. The BIA noted that the IJ had made a clear error in its factual determination of the respondent’s marital status. The BIA also interpreted respondent’s introduction of new evidence, including evidence of the filing of a visa petition for respondent, as a motion to remand. The Board explained that while the respondent was not eligible to adjust status under INA § 245(a), he could potentially qualify for a stateside provisional waiver if his petition was approved and proceedings were administratively closed. On remand, the BIA ordered the IJ to determine whether there was good cause to continue the proceedings, to consider the new evidence presented on appeal, to reasonably allow respondent to submit additional evidence, and to adjudicate the motion to continue in accordance with Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).

Delores Flores, A094 026 278 (BIA Mar. 2, 2016) (2016 WL 1084484) - Respondent appealed the IJ’s oral decision, but the BIA returned the record to the Immigration Court for preparation of a complete transcript and certification to the BIA thereafter. The BIA returned the record because the IJ’s oral order was indiscernible at key points of the oral decision and a complete decision was necessary for the record.

Delfino Nunez-Ruiz, A208 210 246 (BIA Mar. 7, 2016) (2016 WL 1084470) - The BIA dismissed respondent’s appeal and affirmed the IJ’s order of removal and denial of the respondent’s motion for a continuance. The BIA agreed with the IJ and held that the respondent failed to establish good cause for a continuance based on his desire to pursue a request for a nonimmigrant U-Visa. The BIA noted that respondent failed to establish a prima facie claim for U-nonimmigrant status warranting a continuance given his failure to show that (1) a U-Visa had been filed with USCIS, (2) the form was prima facie approvable, or that (3) a law enforcement agency would sign off on the Supplement B law enforcement certification. In reaching its conclusion, the BIA compared Matter of Sanchez Sosa, 25 I&N Dec. 807, 815 (BIA 2012), recognizing that a respondent reeking a U-Visa was not entitled to a continuance for dilatory purposes where it was unlikely that the respondent’s U-Visa application would be approved, with Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), recognizing that a continuance may be warranted where the respondent is the beneficiary of a pending visa petition and where it is likely that the respondent would be successful on an adjustment of status application.

Andres Juan-Juan, A206 444 419 (BIA Mar. 10, 2016) (2016 WL 1358001) - The BIA remanded the record to the IJ for adjudication of respondent’s I-485 application. The respondent appealed the IJ’s denial of his motion to continue and order of removal. The respondent submitted new evidence along with a supplemental appeals brief, which included an approved I-360 petition and proof of a properly filed I-485. The BIA concluded that respondent was statutorily eligible to adjust status and ordered the IJ to adjudicate respondent’s application.

Miguel Alejandro Brito-Roman, A073 743 637 (BIA Mar. 11, 2016) (2016 WL 1357980) - The BIA dismissed respondent’s appeal and affirmed the IJ’s denial of respondent’s motion to amend his pleadings and order of removal. The BIA affirmed the IJ’s denial of respondent’s motion to amend the pleadings pursuant to 8 C.F.R. § 1003.1(e)(5). The respondent filed written pleadings admitting to the factual allegations in the NTA and conceding removability, but in a subsequent hearing sought to withdraw his pleadings. The respondent argued that the pleadings had not altered the course of the proceedings or affected strategic decisions by either party and that the IJ had not expended undue resources as based on the pleadings. The BIA agreed with the IJ’s finding that respondent was not entitled to amend the pleadings because he failed to establish that the pleadings were uninformed or that the NTA allegations were factually or legally deficient. Additionally, the BIA noted that DHS had relied on respondent’s pleadings and would have altered its strategy had respondent not conceded removability.

Megan Ruth Atkins, A037 235 310 (BIA Mar. 15, 2016) (2016 WL 1357963) - The BIA dismissed respondent’s appeal of the IJ’s decision denying respondent’s motion to terminate proceedings and holding that the respondent committed an aggravated felony. The respondent, a long-time lawful permanent resident, was convicted under Georgia law (O.C.G.A. § 16-8-2) of one count of felony theft and was sentenced to 5 years to be served on probation. The Board agreed with the IJ and determined that the Georgia conviction was an aggravated felony theft offense for which a term of imprisonment was at least 1 year under INA § 101(a)(43)(G). The Board employed the categorical approach focusing on the “minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, rather than on the facts underlying the respondent’s particular violation of the statute” (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013)). The BIA concluded that a conviction under the Georgia statute satisfied the intent requirement of a theft offense under section 101(a)(43)(G) of the INA, specifically the intent to take property without the owner’s consent.

Deuk Su Kim, A098 156 260 (BIA Mar. 23, 2016) (2016 WL 1722609) - The BIA granted respondent’s motion to reopen proceedings, vacated the IJ’s in absentia order, and remanded the record to the Immigration Court. The BIA concluded that reopening was warranted because respondent’s inadvertent failure to appear was based on a good faith mistake and had not intended to avoid the hearing. The Board also recognized that respondent had diligently pursued relief, had an approved I-130, and appeared to be eligible for adjustment of status.

Jefferson Candido Lopes, A206 841 461 (BIA Apr. 21, 2016) (2016 WL 2848978) - The BIA affirmed the IJ’s decision denying the respondent’s request for a continuance because he had recently retained new counsel and wanted to file a request for an exercise of prosecutorial discretion with DHS. The BIA explained that the decision to grant or deny a continuance is within the discretion of the IJ, if good cause is shown, and that decision will not be overturned on appeal unless it appears that the respondent was deprived of a full and fair hearing. Matter of Perez- Andrade, 19 I&N Dec. 433 (BIA 1987). Given that the respondent’s attorney informed the IJ that the respondent was not eligible for any form of relief from removal, the BIA concluded that there is no basis for overturning the IJ’s decision, and the proceedings were fundamentally fair to the respondent.

Lumpkin, GA

Jose Martinez Echavarria, A089 954 168 (BIA Mar. 7, 2016) (2016 WL 1084471) - The respondent appealed the IJ’s denial of his motion to reopen and the BIA remanded the record to the IJ for preparation of a more complete decision. The BIA concluded that the IJ’s order was factually and legally insufficient. Specifically, the BIA noted that if the IJ’s intention was to deny the respondent’s motion because it was filed after the respondent’s voluntary departure period, then the IJ failed to make important findings of fact regarding (1) the filing date of the respondent’s motion; (2) whether the respondent had been properly advised of the penalties for failing to depart voluntarily; and (3) whether the respondent voluntarily failed to depart within the required period of time.

Diego Morales Gomez, A204 516 457 (BIA Mar. 14, 2016) (2016 WL 1357973) - The respondent appealed the IJ’s order of removal and denial of his request for a continuance pending adjudication his request for post-conviction relief. The BIA affirmed the IJ’s decision asserting that the pursuit of post-conviction relief is a collateral attack and does not impact the validity of the respondent’s conviction for immigration purposes. The IJ based its decision on the respondent’s failure to demonstrate that he had suffered prejudice as a result of the denial of the continuance, as well as his failure to provide evidence that the conviction had been vacated or materially modified. The BIA noted that only the overturning of a conviction by a court would affect its finality for immigration purposes, and mere speculations as to the validity of a conviction were insufficient. The BIA concluded that even if the respondent obtained post-conviction relief, he was still subject to inadmissibility under INA § 212(a)(6)(A)(i). The BIA also noted that neither the BIA nor the IJ had jurisdiction over the respondent’s potential claim for DACA. Because USCIS has exclusive jurisdiction over DACA claims, the respondent would have to proceed with his claim for DACA through USCIS. A final order of removal would not prevent the respondent from obtaining DACA and he could request a stay of removal pending review of his DACA request under 8 C.F.R. §§ 241.6(a) and 1241.6(a).

Jose Fernando Castillo, A093 022 401 (BIA Mar. 28, 2016) (2016 WL 1722570) - The BIA sustained the respondent’s appeal of the IJ’s order denying the respondent’s motion to reopen proceedings, and remanded the case to the IJ. The BIA exercised its sua sponte authority in vacating the IJ’s order of removal and found that reopening was warranted based on the totality of the evidence presented, including the vacating of the respondent’s conviction on constitutional grounds, which had been the basis of his removability. The BIA noted that while the respondent should have filed his motion to reopen with the BIA, which still had jurisdiction over the proceedings rather than with the Immigration Court, the BIA sustained the appeal as an exercise of discretion.

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
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June 7, 2016

District Court Immigration-Related Decisions from the 11th Circuit and Published BIA Case Summaries

This is part of the latest issue of the AILA Georgia-Alabama and Central and South Florida Chapter Newsletter summarizing important immigration-related cases decided in District Courts in Georgia, Florida, and Alabama, and published BIA decisions nationwide. The summarized cases are for April and May 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

District Court Decisions

Brinklys & Caruso v. Johnson, 3:14-cv-1211-J-34MCR (M.D. Fla. Mar. 30, 2016) - Plaintiffs sought mandamus relief in the district court to compel USCIS to “properly adjudicate,” Plaintiff’s already denied I-130 Petition and I-485 Application. In the alternative, Plaintiffs sought redress under the APA. USCIS had denied the I-130 based upon the 204(c) bar, finding that the I-130 beneficiary had previously sought to procure immigration benefits through a fraudulent marriage. USCIS also denied the I-485 and Plaintiffs unsuccessfully appealed to the BIA. The Court noted that a mandamus action was improper in this circumstance to compel a different decision by USCIS as the APA provided the proper mechanism for review of the decision. The Court went on to find that USCIS and the BIA did not act arbitrarily and capriciously in determining that substantial and probative evidence supported the 204(c) marriage fraud finding. This is a thorough and well-written decision that provides a nice outline of the federal law regarding attacking a 204(c) finding by USCIS in the district courts.

United States v. Kealy, 1:14-CR-383-TWT (N.D. Ga. Apr. 4, 2016) - In a post-conviction criminal action, the district court denied a non-citizen defendant’s 28 USC § 2255 motion to vacate her plea on the basis of ineffective assistance of counsel. Ms. Kealy alleged that she received ineffective assistance of counsel regarding the immigration consequences of her plea in a federal criminal case. The district court judge who took the plea also denied the motion, finding that he was able to remove all possible prejudice that may have resulted due to the ineffective assistance of counsel by providing the post-Padilla approved Rule 11(b) plea-colloquy. The district court found that his advice to Ms. Kealy that “her guilty plea could have consequences upon her immigration status,” were sufficient to overcome any prejudice in this case.

Cho v. United States, 5:13-CV-153 (MT) (M.D. Ga., Apr. 21, 2016) - Ms. Cho, a lawful permanent resident, brought an action against the U.S. Government under the Federal Tort Claims Act (FTCA). The claims included false arrest and imprisonment, assault and intentional and negligent infliction of emotional distress, all stemming from her detention during removal proceedings at the Irwin County Jail in Georgia. Ms. Cho claimed that she should not have been arrested and detained by ICE during removal proceedings, that an ICE officer assaulted her with a firearm and, due to the poor conditions and treatment in ICE detention, she suffered a recurrence of cancer. The Court granted the Government’s motion for summary judgment as to every basis for the FTCA claim. The Court decided that the government was entitled to sovereign immunity for the false imprisonment claim under 8 U.S.C. § 1252(g). The Court found that the ICE officer’s actions did not constitute assault and found that Ms. Cho could not establish any actual injury caused by ICE to support the distress claim.

Published BIA Decisions:

Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016) - The Board held that USCIS could not completely ignore scientifically-accredited DNA test results between siblings to establish a biological relationship in the context of an I-130 Petition. In 2014, USCIS issued a policy memo stating that they would not afford any evidentiary weight to sibling-to-sibling DNA test results. The Board found the rationale behind their memo lacking and determined that USCIS must consider as probative evidence DNA test results showing a 99.5 percent or greater chance of the sibling relationship. The Board cautioned that this evidence alone would generally not be enough to support the I-130 Petition and USCIS could require more evidence, however they could not simply ignore the DNA evidence altogether.

Matter of Garza-Olivares, 26 I&N Dec. 736 (BIA 2016) - The Board provided a rubric for how to analyze state and federal crimes in the context of whether they constitute an offense described in INA § 101(a)(43)(T)(aggravated felony crime of failing to appear). Expanding upon its jurisprudence for when the courts may utilize the circumstance-specific approach, the Board held that courts may employ both the categorical and circumstance-specific approach when analyzing offenses that may fall under INA § 101(a)(43)(T). The Board decided that two of the elements of the failure to appear aggravated felony are subject to the categorical approach and the remaining three elements are circumstance specific. This case may display the Board’s openness to expanding upon the offenses (and elements contained therein) for which the courts may use the more liberal circumstance specific approach.

Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016) - The Board held that solicitation to commit a crime involving moral turpitude is a CIMT and renders even a returning LPR inadmissible under INA § 212(a)(2)(A)(i)(I). The respondent in this case was deemed an arriving alien after CBP determined that she was an inadmissible returning LPR because of her Arizona conviction for felony solicitation to possess marijuana for sale. The respondent argued that the INA §212 CIMT ground specifically includes conspiracies and attempts but excludes solicitation. The Board disagreed, citing Matter of Vo, 25 I&N Dec. 426 (BIA 2011), and reasoning that illicit trafficking in a controlled substance is a CIMT and therefore solicitation to commit an illicit trafficking offense is also a CIMT. The Board rejected the argument that Congress intended to exclude all solicitation offenses from INA § 212(a)(2)(A)(i)(I) by only listing conspiracy and attempt in the statute.

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
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June 3, 2016

June 2016 AILA Georgia-Alabama, Central Florida and South Florida Litigation Newsletter is now available

This is the latest issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals, District Court decisions from Georgia, Florida, and Alabama, OCAHO decisions, and published and unpublished BIA decisions The summarized cases are for April and May 2016 except for unpublished BIA decisions, which date back to March 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

11th Circuit Decisions

Abdallah v. U.S. Atty Gen., No. 15-12301 (11th Cir. Mar. 30, 2016) (unpublished) - The court dismissed in part and denied in part the petition for review of the BIA's affirmance of the IJ’s denial of the petitioner's application for asylum, withholding of removal, and relief under the CAT. The petitioner claimed he feared harm if returned to Egypt based on his religion, political opinion and membership in a PSG. Specifically, he feared persecution for refusing to serve in the Egyptian military, rejecting Islam, and marrying a Christian. The petitioner filed outside the one-year deadline based upon changed conditions. The IJ found the petitioner not credible, no past persecution or reasonable fear of future persecution, and no extraordinary circumstances to excuse the one-year filing deadline. In particular, forced conscription cannot serve as a basis for asylum, and the petitioner’s rejection of Islam would not be publicly noticeable. The BIA affirmed. The 11th Circuit lacked jurisdiction to consider whether the filing was timely or extraordinary circumstances excused an untimely filing. Regarding withholding, compulsory military service does not establish a well-founded fear of future persecution unless the applicant would be disproportionately punished for refusing to serve or would be forced to join an internationally condemned military. Neither condition was met here.

Shchupak v. U.S. Atty Gen., No. 15-14363 (11th Cir. Apr. 14, 2016) (unpublished) - The 11th Circuit affirmed the IJ and BIA’s denial of petitioner’s claim for a hardship waiver of inadmissibility under INA § 212(h). The court pointed out that the BIA’s current position allows use of the waiver only where an alien that has committed a deportable offense is either seeking admission or, if already in the U.S., has applied for adjustment of status. In this case, the petitioner was not eligible for the waiver because he was a deportable alien in the U.S., but had not concurrently filed for adjustment of status.

Gonzalez v. U.S. Atty Gen., No. 15-12878 (11th Cir. Apr. 19, 2016) (published) - The 11th Circuit denied petitioner’s appeal of the BIA’s denial of withholding of removal and relief under the CAT. The court agreed the petitioner did not show that he was a member of a particular social group under 8 U.S.C. § 1231(b)(3) and that he did not present sufficient evidence for relief under the CAT. Relying on Matter of E-A-G-, I. & N. Dec. 591 (BIA 2008), the BIA concluded that being a former member of the Mara 18 gang could not be a particular social group. It explained that Congress did not intend to include shared past experiences of violent organized crime when it created the “particular social group” basis for relief. In addition, the BIA held that the petitioner failed the particularity requirement basing itself on Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). In that case, the BIA reasoned that the group consisting of former members of the Mara 18 gang could include any person regardless of age or sex and was “not limited to those who have had a meaningful involvement with the gang and thus consider themselves – and be considered by others –as ‘former gang members.’” Id. at 221. In its decision, the BIA distinguished its position from the 4th, 6th and 7th Circuits, which reached different conclusions as to whether a former gang member is part of a particular social group. See Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014); Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010); Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009). Neither the 4th nor the 7th Circuits applied Chevron deference. The 6th Circuit did apply Chevron, however, it dealt with a different issue revolving around whether former membership in a gang is an immutable characteristic.

Shahla v. U.S. Atty Gen., No. 15-11734, 15-13444 (11th Cir. Apr. 19, 2016) (unpublished) - The court dismissed in part and denied in part the petition for review of the BIA’s affirmance of the IJ’s denial of petitioner’s applications for cancellation of removal and asylum. The IJ determined that petitioner was inadmissible for attempting to procure immigration documents by fraud, and for being an alien convicted of two or more CIMT’s. The BIA affirmed the IJ’s decision that petitioner was ineligible for cancellation of removal because petitioner’s convictions outweighed the positive equities of the case. The BIA affirmed the IJ’s decision that Petitioner was barred from asylum and withholding of removal because he was convicted of particularly serious crimes. The BIA affirmed the IJ’s finding that petitioner had not met his burden to establish that he was more likely than not to be tortured in Syria. The BIA denied petitioner’s motion to reconsider on the grounds that there was not sufficient evidence of bias on the part of the IJ. The 11th Circuit dismissed petitioner’s claim of abuse of discretion in the denial of cancellation of removal because it did not constitute a constitutional or legal challenge. The court dismissed the petition for review of the discretionary determination that petitioner’s crimes qualified as particularly serious crimes because it does not present a legal question. The court also held that the BIA did not abuse its discretion in denying petitioner’s motion to reconsider because it merely republished the reasons that had failed to convince the tribunal in the first place.

Zhu v. U.S. Atty Gen., No. 15-10007 (11th Cir. Apr. 27, 2016) (unpublished) - The court denied the petition for review of the BIA's affirmance of the IJ’s finding that the petitioner abandoned his asylum application, and denial of the petitioner’s motion to remand. The IJ in Lumpkin continued the case three times to give the petitioner a chance to obtain an attorney and, when no attorney appeared, gave the petitioner an application for asylum and directed him to seek help from Catholic Charities. At the last of five hearings, the IJ ordered the petitioner removed when no attorney appeared and the petitioner had not filed the asylum application. The petitioner included a completed asylum application when he filed his appeal and requested a remand. The BIA dismissed the appeal and denied the motion for remand. The 11th Circuit found no abuse of discretion in finding abandonment based on the IJ’s continuous resets and clear communication of the need to file the asylum application. Likewise, the BIA did not abuse its discretion in denying the motion to remand because that decision was not arbitrary or capricious based on the facts. Nor did the IJ violate the petitioner’s right to due process, as the IJ repeatedly reset the case, and the petitioner did not have a constitutionally protected interest in filing an asylum application after the court-ordered deadline. The petitioner had constitutionally adequate notice of his opportunity to file for asylum and the deadline for doing so.

Manzanares-Saldana v. U.S. Atty Gen., No. 15-13839 (11th Cir. Apr. 28, 2016) (unpublished) - The court denied the petitioner's appeal of the BIA's affirmance of the IJ's denial of his application for withholding. The 11th Circuit held that the BIA did not err in in ruling that the petitioner’s family did not constitute a PSG where family members and neighbors had been kidnapped, killed or extorted by a gang. The risk of persecution alone does not create a PSG. Further, the BIA determined that the petitioner failed to show a nexus between the harm he feared from the gangs and his membership in the alleged PSG. The evidence showed that the motivation for harm was financial and not a statutorily protected ground.

Jimenez-Morales v. U.S. Atty Gen.
, No. 14-15359 (11th Cir. May 2, 2016) (unpublished) - The petitioner attempted to reenter the U.S. after being deported. DHS administratively reinstated his order of removal pursuant to INA § 241(a)(5). The petitioner then expressed a fear of harm if removed, and he was placed in a reasonable fear proceeding pursuant to 8 CFR § 208.31. Prior to conclusion of those proceedings, he filed a petition for review. Prior to oral argument on the petition for review, an asylum officer found no reasonable fear of persecution. An IJ held a hearing and ratified the asylum officer’s finding. The 11th Circuit held that where reinstatement is followed by a reasonable fear proceeding, the reinstated order does not become final until the reasonable fear proceeding is completed. This is because the reinstated removal order cannot be executed prior to conclusion of the reasonable fear proceeding. Thus the 11th Circuit did not have jurisdiction when the petitioner filed his petition for review. But before oral argument before the 11th Circuit, an IJ affirmed the asylum officer’s determination. Siding with the Second and Third Circuits, the 11th Circuit ruled that the conclusion of the reasonable fear proceeding ripened the petition for review, i.e. the 11th Circuit had jurisdiction at that point. The court went on to rule that under INA § 241(a)(5), no relief (including asylum) is available after reinstatement. The court went on to state, though, that despite the absolute bar to relief found in INA § 241(a)(5), withholding is available under these circumstances pursuant to 8 CFR §§ 208.31, 241.8(e), citing Fernandez- Vargas v. Gonzales, 548 U.S. 30, 35 n.4 (2006).

Birsa v. U.S. Atty Gen., No. 15-14479 (11th Cir. May 5, 2016) (unpublished) - The court dismissed in part and denied in part the petitioner's appeal of the BIA's affirmance of the IJ's denial of his applications for asylum and withholding. The petitioner, a citizen of Moldova, claimed persecution on account of his political beliefs when he was attacked at a political demonstration, received threatening phone calls, and was fraudulently convicted of several offenses. The IJ and BIA found none of these, either alone or cumulatively, constituted persecution. Regarding future persecution, the 11th Circuit found that the petitioner could not show that a future detention upon return, based on the fraudulent convictions, would be based upon his political beliefs.

Ansari v. U.S. Atty Gen., No. 15-13171 (11th Cir. May 6, 2016) (unpublished) - The court dismissed in part and denied in part the petitioner's appeal of the BIA's affirmance of the IJ's denial of the petitioner's application for asylum, withholding of removal, and relief under the CAT. The petitioner claimed past persecution and a fear of future persecution on account of his political activity with the Bangladesh Nationalist Party (BNP). The 11th Circuit agreed with the BIA’s affirmance of the IJ’s adverse credibility finding based upon the petitioner’s testimony that was inconsistent with his credible fear interview, asylum application and several documents submitted. The BIA rejected the petitioner’s explanations for the inconsistencies.

Santiago-Jimenez v. U.S. Atty Gen., No. 15-13840 (11th Cir. May 6, 2016) (unpublished) - The 11th Circuit denied the petition for review of the BIA’s order denying petitioner’s application for withholding of removal. The court concluded that the petitioner did not prove that being a hard- working person and a recently returned expatriate to Mexico were characteristics of membership in a particular social group. The record did not establish that gangs in Mexico target either hard- working individuals or those returning from the United States. Instead, evidence showed that gangs went after vulnerable people with money. In addition, petitioner did not show that hard-working people or those returning from the U.S. were a distinct enough group to meet the “social visibility” requirement to constitute a particular social group.

Fyneah v. U.S. Atty Gen., No. 15-15161 (11th Cir. May 9, 2016) (unpublished) - The 11th Circuit denied petitioner’s claim that the BIA erred in concluding that he had not been previously granted asylum in 2004. The court noted that evidence in the record, including a USCIS memorandum by an asylum officer and a letter to petitioner from USCIS, showed that a preliminary determination regarding his status was made. However, he was never actually granted asylum. The court also dismissed petitioner’s claim that the USCIS violated established procedures when it interviewed him in 2009. The argument presented was not raised before the BIA, and therefore, the court lacked jurisdiction to consider it.

Sorto-Lopez v. U.S. Atty Gen., No. 15-13773 (11th Cir. May 11, 2016) (unpublished) - The 11th Circuit agreed with the BIA’s decision to affirm the IJ’s denial of petitioner’s application for asylum and withholding of removal and denied the petition for review. Petitioner failed to establish past and future persecution based on his religion and association with the prosecutor’s office, which he claimed was a particular social group. The court found that having gang members and other students tell him that God did not exist was “mere harassment.” In addition, a one-time extortion of $1,000 when he worked at the prosecutor’s office along with various threats were only “isolated incidents ... of intimidation.” The petitioner also failed to demonstrate detailed facts showing that he would be singled out for persecution if he were to return to El Salvador.

Alonzo-Rivera v. U.S. Atty Gen., No. 15-12382 (11th Cir. May 20, 2016) (unpublished) - The court granted in part and denied in part the petition for review of the BIA’s affirmance of the IJ’s finding that petitioner failed to meet the threshold burden of proof on her asylum application. Petitioner asserted she was a member of the particular social group, “formerly married Honduran women who are unable to leave their relationship.” The IJ did not issue a finding of adverse- credibility regarding petitioner’s testimony. The IJ and the BIA found that petitioner failed to provide sufficient corroborating evidence and found some of petitioner’s testimony implausible. The IJ and the BIA found that petitioner failed to show that the Honduran government would not or could not protect her, citing her failure to report the abuse to the police. The 11th Circuit found that the BIA and IJ did not give reasoned consideration to the evidence and failed to consider important evidence. The court remanded the case to allow the BIA to consider the entire record. The court found that petitioner’s due process rights were not violated when the IJ scheduled a merits hearing 35 days after the filing of petitioner’s I-589 because petitioner did not show substantial prejudice.

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May 19, 2016

I am not a U.S. citizen, What are the Immigration Consequences of my Criminal Case?

The scary truth for most immigrants is that until you become a citizen, there are serious and negative immigration consequences for every criminal arrest or prosecution, the only question is, how serious and how negative. Once a non-citizen immigrant is arrested for any crime, there will be negative consequences; some are more immediate and direct than others. The only thing that you can do after your arrest is find the best attorneys to help you mitigate the negative immigration consequences associated with every criminal arrest.

I provide trainings to criminal defense attorneys and public defender's across the state of Florida on this exact issue. They all want to know the immigration consequences for a client charged with a specific crime and what charges to try and plead them to or what sentence to get them to keep them from being deported. The quick and dirty answer is always, "it depends." Some questions are easy, "my client has a green card and he is facing a DUI, will he get deported?" The answer is, no not for the DUI, but that same DUI may get his citizenship application denied in the future.

Some questions are more complicated; for instance, "my client has a work permit, will this grand theft plea with no jail time get her deported?" That one is much more complicated . . .why does she have a work permit, what is her immigration status, does she have any other convictions and if so, for what? There are so many variables that no criminal defense attorney can possibly be expected to know or be able to find all of them. That is why we are here to help (check out our dedicated crimmigration consultation page for more information: http://www.floridacrimmigration.com)

Yes, its true that if you have a green card and are arrested for a crime and the State drops he charges, you cannot be deported because of that arrest. However, if you do not have a green card and you are arrested, even a case that is ultimately dropped can have severe and negative immigration consequences for you. Every arrest is looked at as a negative discretionary factor for all forms of immigration benefits and relief. And you can bet that the USCIS officer who is adjudicating your application for anything is going to want to see the police report from your arrest, even if the case was dropped. In addition, if your arrest led to a pre-trial diversion or intervention agreement that required that you admit the crime, that admission could be used against you for immigration purposes in the future, even if the case is dropped!

Those are the negative consequences for non-citizens whose criminal cases were dropped. What about the immigrants who were arrested and actually convicted for a crime, what are the immigration consequences for them? The only way to truly advise a client or a criminal defense attorney about the immigration consequences of a criminal conviction is to do a full and comprehensive immigration consultation. This is the only way to know for sure how a plea deal in criminal court will affect an immigrant’s current and future immigration status. Even if you have green card and you are convicted for a single crime that does not make you immediately deportable, that same crime can lead to detention and removal proceedings if you ever leave the country for vacation and try to come back.

A consultation will help an attorney find out what your current immigration status is (if you have one) when and how you obtained that status, when you first and most recently came into the country, if you ever left and how you entered each time. An attorney will need to know your marital status, and if married, your spouse’s immigration status, if you have children, and if so, they’re ages, immigration status, and your parents’ immigration status. And add to that questions about the medical and physical conditions or mental disabilities of everyone listed above.

This may seem like a huge number of invasive questions that don’t seem to have anything to do with your arrest, however, every one of those questions is absolutely important to know to determine the immigration consequences of a criminal conviction and any potential for relief from deportation.

Many people don’t realize that there are dozens of different kinds of immigration statuses. Some are easy to understand, like lawful permanent residence, temporary protected status (TPS), B1/B2 visitors, and F-1 students. Some are much more odd and rare, like unadjusted asylees and refugees, beneficiary of withholding of removal, DACA recipients and people with an administrative stay of removal. The immigration consequences of a criminal prosecution vary greatly depending on which one of these types of immigrant you are, or if you have no status at all.

Any felony conviction may make someone with TPS or DACA lose their status, work permit, put them into detention and subject them to deportation. That same felony conviction may mean nothing to someone with a green card or an asylee. A DUI conviction will not make a student or visitor or someone with no status deportable, however, that conviction will definitely put you in the radar of Immigration and Customs Enforcement and may lead to your detention and placement in removal proceedings—even if the case is dropped.

Again, the scary fact is that if you are not a U.S. citizen and you are arrested for any crime, there are always negative immigration consequences. That is why you need an experienced and trusted immigration attorney to help you as soon as possible. Don’t wait until your criminal case is over. If your criminal case is over, and you have not yet talked to an immigration attorney, call one right away to help you deal with the current and future immigration consequences of your criminal case.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
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