Articles Posted in Case Law Updates

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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.”

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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.

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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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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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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.

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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):