Criminal Convictions

How Criminal Charges Affect Immigration Proceedings

Published on: September 19, 2022 | by Lasnetski Gihon Law

When applying for a green card, whether the application be for a marriage green card or an immediate relative, you should assume that the U.S. Citizenship and Immigration Services (USCIS) will conduct a thorough background check. bigstock-U-s-Deportation-Immigration-Ju-383236865 Filing an accurate and thorough green card application is all the more important if you have a criminal history.

USCIS will conduct a criminal background check not only on the green card applicant, but also the sponsoring U.S. citizen or the green card holder who is sponsoring his or her family member attempting to receive a green card.

This criminal background check will look for every interaction the applicant had with law enforcement in both the person’s home country as well as in the United States.

Florida’s Child Neglect is a Deportable Offense, says the Eleventh Circuit

Published on: August 2, 2022 | by Lasnetski Gihon Law

On August 2nd, 2022, the Eleventh Circuit published Bastias v. U.S. Atty Gen’l, No. 21-11416, which holds that a conviction under Florida Statute §827.03(2)(d) for child neglect is a deportable offense under the Immigration and Nationality Act §237(a)(2)(E)(i). INA §237(a)(2)(E)(i) makes a non-citizen deportable if he or she is convicted of a crime of domestic violence, crime of stalking, or a crime of child abuse, child neglect, or child abandonment.

The INA fails to define “a crime of child abuse, child neglect, or child abandonment.” Each state defines each of these terms differently, so whether a state conviction qualifies as “a crime of child abuse, child neglect, or child abandonment” must be determined by the courts. The Board of Immigration Appeals (“BIA”) is the appellate court for immigration judges in removal hearings (commonly referred to as deportation hearings). The BIA has interpreted this provision to include any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being.”

The offense of “child neglect” in Fla. Stat. §827.03(2)(d) requires the State to prove that the person willfully or by culpable negligence neglects a child without causing great bodily harm, permanent disability, or permanent disfigurement. So, clearly the intent element, or mens rea, required for Florida’s child neglect (culpable negligence) fits within the BIA’s definition that includes “criminally negligent” acts. However, this was not the issue before the Eleventh Circuit.

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.”

TEMPORARY PROTECTED STATUS FOR VENEZUELANS IS COMING!

Published on: March 8, 2021 | by Lasnetski Gihon Law

It has finally happened, President Biden is set to announce that as of Monday, March 8, 2021, Venezuelans in the United States may qualify for Temporary Protected Status, also known as TPS.

WHO WILL QUALIFY FOR VENEZUELAN TPS?

The exact requirements for Venezuelan TPS have not yet been published (they should be soon), but based upon the TPS law and past TPS announcements, here is what I anticipate will be the TPS requirement for Venezuelans:

I’m a Canadian Citizen with a Criminal Conviction. How Can I Apply for a Waiver to Get Into the U.S.?

Published on: April 13, 2020 | by Lasnetski Gihon Law

I’m a Canadian Citizen and have a prior criminal conviction. How can I obtain a waiver to get into the United States?

Canadian and the United States citizens enjoy relaxed immigration policies when traveling between the two countries. But those relaxed policies can sometimes cause people to falsely believe that they are not going to be denied admission into the country. One area where this often happens is when a person has a prior criminal conviction and then tries to enter the United States. Customs and Border Protection (CBP) may deny admission and tell you that you must apply for a waiver. So, let’s discuss that process.

Multiple DUI Convictions May Prevent Naturalization or Relief from Deportation

Published on: November 6, 2019 | by Lasnetski Gihon Law

adobe-spark-post-300x169
A new decision, Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), released by the Attorney General has created a rebuttable presumption that a person with multiple DUI convictions during the relevant time period does not have “good moral character.” This means that if a person had old DUI convictions and has rehabilitated themselves, it still will not be enough to establish “good moral character.”

What is “good moral character?”

In certain situations, a non-citizen must prove that he or she has “good moral character.” For example, if a lawful permanent resident wants to become a United States Citizen, he or she will apply for naturalization and must establish that he or she has had good moral character for the past 3 or 5 years, depending on which provision of law they are applying under. Also, a person that entered the U.S. without inspection and who is placed in removal (deportation) proceedings, may be eligible to have their removal cancelled (“cancellation of removal”) if they meet certain requirements. One of those requirements is to prove that he or she has had good moral character for the last 10 years.

A Florida Felony Battery Conviction is a Crime of Violence

Published on: October 16, 2018 | by Lasnetski Gihon Law

adobe-spark-post

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:

Immigration Consequences for Violation of Injunctions for Protection/Restraining Orders

Published on: August 22, 2018 | by Lasnetski Gihon Law

adobe-spark-post Injunctions 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.

Can I Be Deported For A Prostitution Conviction?

Published on: June 1, 2018 | by Lasnetski Gihon Law

adobe-spark-post-9
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.

I Have A Criminal Conviction That May Get Me Deported. What Do I Do?

Published on: April 13, 2018 | by Lasnetski Gihon Law

adobe-spark-post-6

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.