Articles Posted in Deportation (Removal) Proceedings

AdobeStock_398838474-300x225Today, 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 marijuanaAdobeStock_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.”

Florida Immigration Law Racially Motivated, According to Federal JudgeAdobeStock_269451886-scaled

Portions of Florida’s immigration enforcement law that was a priority for Republican governor Ron DeSantis has been struck down by a federal judge, according to a report published by the Associated Press (AP). U.S. Federal Judge Beth Bloom rejected the sections of the law banning local government sanctuary policies as well as those requiring local law enforcement to make best efforts to coordinate with federal immigration enforcement authorities. Governor Ron DeSantis signed the bill, which was pushed as a priority for his administration, into law in 2019. The governor’s office told news outlets that it would appeal Judge Bloom’s decision.

This is not the first time DeSantis has been challenged on laws passed during his administration. Others include state orders to ban mask mandates in schools, new election rules making vote-by-mail more difficult, and limits on contributions to groups seeking to change the Florida constitution, among others. 

USCIS—the government agency that receives most of the country’s asylum applications—has opened a new office in Tampa, Florida. Before this happened, everyone who was not in immigration court and who applied for asylum in the entire state of Florida had to go to Miami for their asylum interview. Sure there were exceptions, on occasion, asylum officers would go to Jacksonville, Florida to conduct interviews, but those interviews were few and far between.

Now, people from Pensacola to Jacksonville to Tampa no longer have to make the long and expensive trip to Miami for an asylum interview. Now, people from the Tampa Bay area, parts of Central and all of North Florida will head to Tampa for their interviews to see if they will be granted asylum. This is great news for everyone involved. This will make it easier for asylum applicants to travel to their interviews, this will make asylum interviews happen more frequently for all Floridians as there are now two offices and more officers conducting interviews. This will also make it more cost-effective for asylum applicants to bring their attorneys to their asylum interviews.

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USCIS has not yet released all the details or the exact geographical boundaries for the Tampa asylum office. What we do know is they are already open as of June, 2021 and they are already conducting interviews. The office is in the same building as ICE, so if you have been reporting to the Tampa ICE office for check-ins and you are called for an asylum interview, you will go to the same building. The address of the office is 524 W Cypress St, Tampa, Florida, 33607 right near the Tampa International Airport.

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.

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:

On his last full day as President, Donald Trump issued a “Memorandum on Deferred Enforced Departure for Certain Venezuelans.” There is much confusion about what this means for Venezuelan citizens in the United States. USCIS, the agency that handles applications for immigration benefits like Deferred Enforced Departure (DED), has not yet issued guidance or instructions for how to apply for Deferred Enforced Departure. However, other countries and regions have benefited from Deferred Enforced Departure in the past and that can provide guidance for how Venezuelan Deferred Enforced Departure will be rolled out by the Department of Homeland Security.

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Here is what we do know about Venezuelan Deferred Enforced Departure:

  • It will last for at least 18 months and can be renewed;

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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.

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A new Board of Immigration Appeals decision, Matter of J-J-G, 27 I&N Dec. 808 (BIA 2020) has made it more difficult for foreign nationals to obtain Cancellation of Removal.  Cancellation of Removal is a form of relief from deportation where the foreign national, even if he or she entered the United States without any papers, has been in the United States for 10 years or more, has had good moral character for 10 years, has not been convicted of certain crimes, warrants a favorable exercise of discretion, and finally, has a United States citizen or lawful permanent resident spouse, parent or child that would incur exceptional and extremely unusual hardship if the foreign national were deported.  This form of relief is extremely valuable for many people who entered the United States a long time ago without papers.  In fact, if the Immigration Judge grants the cancellation of removal, the foreign national will get a greencard.  So, why did it just become more difficult to get Cancellation of Removal?


How do I get Cancellation of Removal?


Cancellation of removal is a form of relief from deportation only available in Immigration Court.  That means that you can’t apply for it unless you are already in removal (deportation) proceedings.  For many foreign nationals who have no options available to them to apply for affirmatively, cancellation of removal in immigration court can be a godsend. Once you are in Immigration Court, you would apply for Cancellation of Removal by submitting form EOIR-42B and applicable evidence.  The Immigration Judge would schedule your case for an Individual Hearing, which would be like a bench trial before the judge where you would present witnesses and evidence.  Lawful permanent residents would submit Form EOIR-42A and applicable evidence.  Lawful permanent residents do not have to establish that their removal would result in Exceptional and extremely unusual hardship, so this blog and the J-J-G case applies only to nonpermanent residents.

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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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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