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Although a relatively recent United States Supreme Court decision held that a conviction for simple battery in the State of Florida could not serve as a crime of violence, an Eleventh Circuit Court of Appeal decision distinguished that a felony battery conviction is a “crime of violence,” at least for purposes of the Federal Sentencing Guidelines.  This means that a conviction for a Florida Felony Battery is probably a deportable offense as a crime involving moral turpitude and as an aggravated felony, if the sentence is 1 year or more incarceration.


What is Felony Battery in Florida? 


Florida’s Felony Battery statute is defined in Florida Stat. §784.041.  In order to prove a person is guilty of Felony Battery, the State must prove, or the person must admit to (plead no contest of guilty) to the following elements:

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adobe-spark-postInjunctions for protection, also commonly referred to as restraining orders, continue to serve as a potential pitfall for non – United States citizens.  Injunctions are extremely easy to obtain and little evidence is required to obtain one.  Often, a judge will issue an injunction based solely on the word of the person who filed for the injunction.  That person may have ulterior motives to obtain the injunction, for example to gain leverage in a divorce proceeding or child custody proceeding.  But once an injunction is obtained, any violation of that injunction could lead to deportation.  A conviction is not even necessary.  And even if you would otherwise be eligible for a form of relief where the judge could cancel your removal, a conviction would render you ineligible.  A recent Board of Immigration Appeals decision has further solidified this position.


What is an Injunction?


An injunction is a court order commanding you to do things or to not do things.  For example, a judge can order you to stay away from a specific person, to stay away from specific places, to go to batterer’s intervention program classes, and to adhere to many other court ordered conditions.  A person can obtain an injunction by going to the courthouse and filling out a form alleging that they are in fear of future violence because of something the respondent has done or said in the past.  An injunction can be granted based on nothing but that person’s own words.  The court will typically issue a temporary injunction and set it for a hearing.  At a hearing, the judge will listen to you, the petitioner, any witnesses and will look at evidence that the petitioner or respondent submits.  The burden of proof is extremely low and if the judge feels that there is animosity between the two people will often err on the side of issuing the injunction.  However, this can have a significant impact on any person, but particularly for a non-citizen.

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Many immigration cases can take up to a year or more during what is called the normal processing time.  For example, the local Jacksonville USCIS office has a published processing time of 8 months to 15.5 months for a spouse of a United States Citizen to obtain a greencard.  If your case is within the normal processing time, then the only thing you can do is wait for the government to process your case.  You can check the normal processing times for each type of application or petition for each office or center here: https://egov.uscis.gov/processing-times/: But what if it has been much longer than the normal processing time?  We’re going to discuss some options that may be available to you.


What is the first thing I should do if my case is outside the normal processing time?


You can always enter your Receipt Number into the USCIS online case status system.

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In another recent decision that Attorney General Jeff Sessions has assigned to himself, the Attorney General has foreclosed refuge for countless immigrants attempting to escape domestic violence in their home countries.  In Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), the Attorney General overruled a Board of Immigration Appeals decision which granted asylum to the victim of domestic violence in El Salvador.  The Attorney General also overruled a binding Board of Immigration Appeals decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which held that “married women in Guatemala who are unable to leave their relationship” could constitute a “particular social group.”


What is asylum?


Asylum is a discretionary benefit that can be granted to those who:

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There are two potential provisions of law that DHS (Department of Homeland Security) use to deport non – United States citizens for prostitution convictions.  The first is by claiming that it is a “crime involving moral turpitude.”  The second, which is much more severe, is that it is an “aggravated felony.”  The Board of Immigration Appeals recently decided whether a Wisconsin prostitution statute serves as the basis of an aggravated felony.


When is a prostitution conviction a “crime involving moral turpitude?”


Unfortunately, there is no defined list that shows which state statutes are considered crimes involving moral turpitude.  When a person is convicted of a crime, DHS can place that person in deportation proceedings and allege that the conviction is a crime involving moral turpitude.  It would then be up to the immigration judge to decide whether the conviction is a crime involving moral turpitude.  Moral turpitude has been explained to be conduct that is inherently dishonest, base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general.  If either party doesn’t like the immigration judge’s decision, they can appeal to the Board of Immigration Appeals and then to the Federal Circuit Court.  Those appellate decisions give us specific guidance on a few specific statutes and general guidance on other statutes.

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In a disappointing decision by the Attorney General, a decision has been made on whether immigration judges and the Board of Immigration Appeals have discretion to administratively close deportation proceedings.  Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) was decided on May 17th, 2018 after the Attorney General referred the issue to himself.


Why is the Attorney General making this decision?


The Attorney General has the authority to refer Board of Immigration Appeals decisions to himself to review. 8 C.F.R. §1003.1(h)(1)(i).  In this case, an Immigration Judge granted several continuances to a juvenile who had been issued a Notice to Appear for deportation proceedings.  The Notice to Appear that was handed to the juvenile did not give a date for a hearing.  Notice of the hearing was sent to the address provided by the juvenile.  When the juvenile didn’t appear for court, the immigration judge continued the case and ultimately administratively closed the case.  The government appealed and the Board of Immigration Appeals remanded the case for the Immigration Judge to proceed with the deportation proceedings and to issue an order of removal in absentia if the juvenile did not appear.  The Attorney General then referred the decision to himself.  The Attorney General’s decision is binding on the Board of Immigration Appeals, which is the appellate court that rules on all appeals from Immigration Judge decisions.

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A recent United States Supreme Court case will make it harder for the government to deport a non – United States citizen for being convicted of certain offenses.  In Atty Gen’l vs. Dimaya, the Supreme Court found that a provision of the Immigration and Nationality Act was overly broad and unconstitutional, thus rendering convictions for certain offenses no longer subject to removal.  In an extension of an already decided Supreme Court case, the Court analyzed 8 U.S.C. §1101(a)(43)(f), which defines an “aggravated felony” to include, among other things, “a crime of violence,” as defined in 18 U.S.C. §16, where a term of imprisonment of one year or more is rendered.  The case turned on the definition of a “crime of violence.”  Let’s take a look at the Supreme Court’s decision and how it affects immigration law.


What is a crime of violence?


First, we have to know what a “crime of violence” is.  Immigration law makes any non-citizen, including longstanding lawful permanent residents (LPRs) deportable if they are convicted of an “aggravated felony.”  Among other things, an “aggravated felony” includes a “crime of violence” with a sentence of 1 year or more.  So, what is a crime of violence?

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Criminal convictions are a primary basis for deportation or denial of immigration benefits, like greencards, visas, and naturalization.  A criminal conviction can have devastating consequences on your immigration options.  Some convictions may result in deportation.  Some may not.   Immigration is controlled by federal law.  Most convictions are based on state law.  Whether a state conviction qualifies as a deportable offense under federal law is often a complicated analysis that is commonly litigated in courts across the country.  The best course of action when you are charged with a crime is to consult with an experienced immigration lawyer who has criminal law experience.  Then make sure your criminal defense lawyer and immigration lawyer discuss the best options for your criminal case and how a conviction will affect your immigration case.  But what if it’s too late?  What if you already have the criminal conviction and are only now being told that you can be deported because of that conviction.  Or what if you are being told that you can’t apply for an immigration benefit because of your criminal conviction?


Is there anything I can do?


Once you plead guilty or no contest or are found guilty by a jury, it becomes increasingly difficult to fight your conviction.  However, there may be an avenue of hope.  The law in the State of Florida allows you to go back two years to challenge a conviction if your criminal defense attorney made certain mistakes.  For example, if your criminal defense attorney did not properly advise you of the immigration consequences of your criminal conviction, you may be able to reopen the case and negotiate a more immigration friendly plea.

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Unfortunately, immigration lawyers around the country often get calls from petrified non-U.S. citizens who are in an abusive relationship and living in fear of deportation.  A United States citizen who marries a non-citizen can file an I-130 petition on the spouses behalf to pave the way for the immigrant spouse to obtain a greencard.  If the United States citizen withdraws the petition, the immigrant spouse can no longer adjust based on the marriage to the U.S. citizen.  So, in some situations, U.S. citizens take advantage of this leverage to abuse and control the non-citizen spouse.  They say things like, “If you don’t do what I say, I’ll have you deported.”  They threaten to call immigration and withdraw the petition.  They threaten deportation if the abused non-citizen spouse contacts law enforcement.  For these reasons, the government passed a specific act to protect these victims.  It is called the Violence Against Women Act (VAWA) and it allows an abused spouse to obtain a greencard, even if the U.S. citizen spouse withdraws the I-130 petition and even if they divorce their U.S. citizen spouse.


What is VAWA?


The Violence Against Women Act, or VAWA is a  federal law that was passed in 1994 designed to address domestic violence against women.  The law is broad and encompassing, but one of the goals of VAWA was to protect immigrant victims of domestic violence and to help them escape their abusers.  VAWA allows immigrant spouses or intended spouses of United States citizens and Lawful Permanent Residents to obtain a greencard (lawful permanent resident status) without the need to have the U.S. citizen or LPR spouse petition on his or her behalf.

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The Immigration and Nationality Act (INA) §237(a)(2)(E)(i) makes a non – U.S. citizen deportable if he or she is convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment.  Immigration attorneys often litigate whether a state conviction can be the basis for a federal deportation.  The language in the state statute often must fit squarely within federal definitions to result in deportation based on a specific conviction.  For example, the Board of Immigration Appeals (BIA) has determined that a conviction for “child endangerment” in Pennsylvania is not a conviction for “a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment,” for purposes of INA §237(a)(2)(E)(i). In re Jose De Jesus Murillo Gutierrez, A207 105 449 (BIA May 12, 2017)


What is the Federal Immigration Law relating to child abuse?


Any person who is not a United States citizen and is convicted for a crime of child abuse is deportable.  It doesn’t matter how long you have been in the United States or if this was a first offense or if you are a good person.  The statute is clear.  Now, you may have what is called a “form of relief,” available, but that is another issue.  That is kind of like an affirmative defense.  But a one time conviction for a child abuse offense can and usually will lead to the government issuing and filing a Notice to Appear, initiating deportation proceedings.