Articles Posted in Case Law Updates

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The Eleventh Circuit Court of Appeals has recently ruled that a conviction for Domestic Battery by Strangulation is categorically a crime of violence.  This means that any non-U.S. citizen who is sentenced to 1 year or more on a Florida Domestic Battery by Strangulation would be convicted of an “Aggravated Felony” for immigration purposes and would almost certainly be subject to mandatory deportation.  You can read the full decision here: United States v. Shawn Dixon, No. 17-10503


What is a Crime of Violence?


There are certain criminal convictions that are deadly to any non-U.S. citizen.  “Aggravated felonies” will lead to almost certain mandatory deportation in most cases.  A conviction for an aggravated felony is to be avoided at all costs.  Aggravated felonies are defined in the Immigration and Nationality Act in §101(a)(43).  One particular type of aggravated felony is a crime of violence where you have been sentenced to incarceration for 1 year or more. (INA §101(a)(43)(F)).  If you are incarcerated for 1 day less than 1 year for a crime of violence, it would not be an aggravated felony.  It still could crime involving moral turpitude or some other deportable offense, but it would not be an aggravated felony.

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Consider this:  You are a Lawful Permanent Resident who has lived in the United States for nearly your entire life.  You have always been in the United States legally.  One day, you get arrested for a crime you did not commit.  Or maybe you did violate the law, but it was a very minor charge and you have never been in trouble before.  Like so many United States citizens in the same situation, you are offered a pretrial intervention program.  That is, the prosecutor diverts your case from the court system, has you perform some community service, pay some fines, maybe take a class, and if you complete all of the requirements, they drop the charges.  Under the laws of the State of Florida, you would even be able to get the charge expunged from your record.  After all, the law in this land of opportunity is set up to give people second chances when they make a mistake.  So, you enter the pretrial diversion program, do everything you were asked to do, successfully complete it, and the charges are dropped.  All is well, right?

Well, not according to the Board of Immigration Appeals (BIA).  In a recent decision, the Board of Immigration Appeals held that even if a case is referred to a pretrial diversion program and ultimately dropped, it can serve as a conviction for immigration purposes and be used as the basis for deportation.  What? How can that be? Here is the thought process:


What is the definition of a “conviction” for immigration purposes? 

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Violation of an Injunction for Protection is a landmine for non citizens.  If you, or a loved one, is not a United States citizen and have been served with an injunction or charged with violating an injunction, call an experienced immigration attorney for a consultation.  Here’s why:

The Immigration and Nationality Act includes a provision that makes a non-citizen deportable if they have an injunction for protection (aka restraining order) against them and the court determines that person violated the injunction by engaging in the conduct the injunction was meant to prevent.  INA §237(a)(2)(E)(ii)


What is an Injunction for Protection?

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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 https://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):

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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.

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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

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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

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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

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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

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The fourth edition of the newsletter summarizing important immigration- related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for February and March 2016. There are not as many summaries in this issue because there were fewer decisions. Our next edition is scheduled for June 2016 and will feature another new addition, published and unpublished Board of Immigration Appeals decisions, and a new AILA Chapter contributing – South Florida.

This is a group effort of four attorneys – John Gihon, Marshall Cohen, Roberta Cooper & Bruce Buchanan.

District Court Decisions