Case Law Updates

Florida Marijuana Convictions May No Longer Be Deportable Offenses

Published on: March 24, 2022 | by Lasnetski Gihon Law

AdobeStock_398838474-300x225 Today, the Eleventh Circuit released what looks like may be a landmark decision in Said v. U.S. Atty Gen’l. This court opinion affects all non-citizens who have or will have Florida marijuana convictions. Under §212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, any alien who commits a violation of any state law or regulation relating to a controlled substance, as defined in 21 U.S.C. §802, is inadmissible. Under §237(a)(2)(B), any alien who at any time after admission has been convicted of a violation of any law or regulation of a State…relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana is deportable. So, prior to this decision, most non-citizens with marijuana convictions were deportable and/or inadmissible with the only possible exception being for a single possession of 30 grams of marijuana or less.

But in order for a marijuana conviction to qualify as a deportable offense or a crime of inadmissibility, marijuana, as defined under Florida law must qualify as a controlled substance, as defined under Federal law in 21 U.S.C. §802. And that is exactly what the Eleventh Circuit analyzed in Said. In Said, the Court looked at the definition of marijuana (or cannabis, as it is referred to in the Florida Statute) in Fla. Stat. §893.02(3) and the definition of marijuana under Federal law in 21 U.S.C. §802(16) to determine whether they were a match.

The Eleventh Circuit determined that the Florida definition of marijuana is broader than the federal definition. Florida includes the mature stalk of the marijuana AdobeStock_348186656-Converted-300x176 plant in its definition. Federal law does not. Therefore, a person could be convicted of a marijuana offense in Florida that involved only the mature stalk of the plant. However, that same person could not be convicted under Federal Law. So, it appears that a violation of Florida’s law relating to a controlled substance (marijuana) is not “as defined in 21 U.S.C. §802.”

The U.S. Supreme Court’s recent decision in Niz-Chavez could mean new hope for thousands of long-term residents who are out of status.

Published on: May 20, 2021 | by Lasnetski Gihon Law

The U.S. Supreme Court recently issued a decision in Niz-Chavez v. Garland that could help thousands of people who have been in the U.S. for over a decade and who do not have lawful immigration status. The exact people who are helped by this decision are people who are or were in immigration court removal proceedings and are eligible for a form of relief called Cancellation of Removal for Certain Non-Permanent Residents. This decision can help people who have been in the U.S. for more than a decade, have good moral character and who have a close relative who has lawful immigration status and who will suffer greatly if they are deported. There are other requirements for Cancellation of Removal which are outlined below.

WHO WILL BE HELPED BY THIS DECISION?

If you are or were in immigration court removal proceedings and you would be eligible for Cancellation of Removal, but immigration officers sent you a document called a Notice to Appear less than 10 years after you entered the U.S., this decision could be a game changer for your case. Why? Because in 2018, the Supreme Court said in a decision called Pereira v. Sessions that if the Notice to Appear you received does not have the time, date and location of your first Court hearing, then it is legally deficient. Why is that important? Because of something called the stop time rule. The stop time rule says that if you are otherwise eligible for Cancellation of Removal, but you are sent an NTA before you have been then the U.S. for the required 10 years, then you are not eligible for Cancellation of Removal. That is because receiving an NTA stops the clock on your 10 years of physical presence in the U.S., which is required to qualify for Cancellation.

DACA: Winning the Battle, But Not The War?

Published on: June 19, 2020 | by Lasnetski Gihon Law

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There was a national victory yesterday in the ongoing litigation involving DACA – Deferred Action for Childhood Arrivals. And while immigrants and immigration attorneys alike cheered the important U.S. Supreme Court decision, the jubilation has been tempered by the revelation of what the decision does and does not actually do for DACA eligible recipients. So, let’s take an in-depth look at the case, the issues before the Court and the Court’s holding.

What was the actual issue before the Supreme Court?

Under the Obama administration, DACA was expanded and a new form of deferred action called DAPA was announced. Many states filed for injunctions to prevent the expansion of DACA and the implementation of DAPA. When the Trump administration came to power, the Attorney General told the Acting Director of Department of Homeland Security that DAPA and DACA were illegal and therefore, she should discontinue DACA. So, DHS allowed for a renewal for those whose DACA was about to expire, but no new DACA applications would be accepted and no other DACA renewals would be accepted. Multiple petitioners filed for injunctions claiming that the decision was a violation of the Administrative Procedure Act (APA) because it was “arbitrary and capricious.” Various Circuit Courts agreed with the Petitioners and the U.S. Supreme Court agreed to hear the case.

False Claims to U.S. Citizenship do not need to be knowingly made to make a person deportable

Published on: April 24, 2020 | by Lasnetski Gihon Law

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Few things have a more dramatic effect on a person’s immigration case than an allegation of False Claim to U.S. citizenship. A recent Board of Immigration Appeals (BIA) decision and resulting policy change by USCIS further ensnare people into this ground of inadmissibility. Let’s take a look:

What is a False Claim to U.S. Citizenship?

Under §212(a)(6)(C)(ii) of the Immigration and Nationality Act, any person who falsely represents, or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A) or any other Federal or State law is inadmissible. Under §237(a)(3)(D)(i) of the Immigration and Nationality Act, a person who falsely claims to be a United States citizen is deportable. This often comes up in the context of a non-citizen who registers to vote or checks a box on the I-9 form stating that they are a U.S. citizen in order to get a job or in some other non-immigration related situation where the person is asked for evidence that they are in the United States lawfully. Then when the person applies for a greencard or naturalization, the the issue comes up.

Why you should never let someone file your immigration paperwork without reading it!

Published on: March 8, 2019 | by Lasnetski Gihon Law

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Immigrants throughout the United States have been victimized by “notarios” who present themselves as attorneys or attorney-like figures who take a much smaller fee than any attorney and who agree to file immigration paperwork on behalf of the unsuspecting immigrant. These individuals often create major immigration problems for the vulnerable victims who often don’t speak English and are unfamiliar with our immigration laws. The notarios will often commit immigration fraud or make material misrepresentations that can subject the immigrant victim to criminal prosecution and/or deportation. Many victims put their trust in people to do the right thing and to file the correct paperwork with the correct information. So they sign their names to the applications. Often, without reading what they are signing. The Board of Immigration Appeals recently came out with a decision which discusses this very issue. The BIA held that there will be a strong presumption that if you sign your name to an immigration application or petition, then you are aware of the contents of the application or petition.

What if I signed my name to an immigration application, but I didn’t read what was in the application?

In Matter of Valdez, 27 I&N Dec. 496 (BIA 2018), the Board of Immigration Appeals (BIA) decided the case of A.J. and Z. Valdez, a husband and wife who were citizens of Venezuela. The Valdez’s hired a person who was not an attorney to help them get greencards. The Valdez’s believed that the person was an attorney and pastor and could get them greencards through the church. They paid this person $15,000 to represent them and he drafted the applications, presented the applications to the Valdez’s for them to sign, and then filed the applications with USCIS. The applications were in English and the Valdez’s only spoke Spanish. The Valdez’s signed the applications, relying on the person they paid and who they thought was an attorney. USCIS granted the applications and the Valdez’s received their greencards. Upon reentry after a trip abroad, Customs and Border Protection (CBP) placed the Valdez’s in secondary inspection and ultimately they were placed in removal (deportation) proceedings. The Valdez’s were charged with being inadmissible under INA 212(a)(6)(C)(i) for fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under the Act.”

Fiance(e) Visas and Divorce: Will I be able to get my greencard?

Published on: November 19, 2018 | by Lasnetski Gihon Law

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A nightmare scenario for the non-citizen fiance(e) of a United States citizen happens when the couple gets divorced before the non-citizen adjusts his or her status to that of a Lawful Permanent Resident (LPR). The United States Citizen has a tremendous amount of control in this situation. A new Board of Immigration Appeals decision further establishes that the United States citizen has the power to give or take away a greencard in this situation.

What happens if my United States Citizen spouse and I divorce before I get my greencard?

For the thousands of people who enter the United States each year to get married to a United States Citizen after obtaining a K-1 visa (Fiance(e) Visa, they are embarking on an exhilarating new chapter in their lives. In love and ready to begin their lives in a new country with a new spouse, they enter the United States with the intention of getting married within 90 days and then to obtain a greencard, which will allow them to live and work permanently in the United States.

Asylum-Seeking Domestic Violence Victims Denied Refuge By Attorney General Sessions

Published on: June 18, 2018 | by Lasnetski Gihon Law

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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:

Attorney General Decides BIA and Immigration Judges Do Not Have Authority To Administratively Close Deportation Cases

Published on: May 21, 2018 | by Lasnetski Gihon Law

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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.

United States Supreme Court Holds Statute Affecting Immigrants Is Unconstitutional: Sessions vs. Dimaya

Published on: May 15, 2018 | by Lasnetski Gihon Law

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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?

A Driving Under The Influence Charge Will Affect Whether You Get An Immigration Bond

Published on: February 2, 2018 | by Lasnetski Gihon Law

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Immigration lawyers are talking about a new Board of Immigration Appeals (BIA) decision that is out. This case addresses how a DUI (Driving Under the Influence) arrest can result in not getting a bond in deportation proceedings. Whenever a person is placed in deportation/removal proceedings, the Immigration Judge will decide whether to issue a bond that will allow the person to get out of jail while the deportation case is going on. If you have certain criminal convictions, you may not be eligible for a bond. You must also establish that you are not a flight risk (risk to flee and not show up to court) and that you are not a danger to the community. If you have a criminal record, even a criminal arrest that has been dropped, it can be difficult to convince an Immigration Judge to give you a bond. The Board of Immigration Appeals has now made it even harder after overturning an Immigration Judge’s decision to give a bond to a person who had a DUI arrest and three prior DUI convictions ten years prior.

In Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018), the Board of Immigration Appeals overruled an Immigration Judge’s decision to give Mr. Siniauskas a $25,000 bond. Mr. Siniauskas had three prior DUI convictions, but they were more than ten years prior to his last DUI arrest. Mr. Siniauskas was in deportation proceedings because he overstayed his visa. However, he had several equities in his favor. He was married to a lawful permanent resident. He had a United States citizen child. He had maintained gainful employment and was a business owner. Because of these equities the judge gave Mr. Siniauskas a bond of $25,000. However, the Department of Homeland Security appealed and the Board of Immigration Appeals reversed.

The Board of Immigration Appeals stated that the alien, in this case, Mr. Siniauskas, must establish that he does not present a danger to persons or property, is not a threat to national security and is not a flight risk. The Board stated Mr. Siniauskas’ positive factors may have established that he is not a flight risk, but they did nothing to convince the Board that he was not a danger to persons and property. The Board stated that driving under the influence is a dangerous crime, and the immigration judge should consider the specific circumstances surrounding the alien’s conduct.