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Articles Posted in Family Immigration

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America has a long and proud history of offering safety and security to people around the world who are fleeing civil war, persecution and torture. Our country was offering a new start and protection to religious refugees as far back as the 17th Century. Recently, President Obama promised to take up to 10,000 Syrian refugees to help deal with the crisis of millions fleeing from Syria due to the multi-year civil war that has raged in that country.

I had the opportunity this week to speak on this important issue on television: https://www.youtube.com/watch?v=KaphUCd84zc

Taking in refugees from around the world is what America does, it is part of what makes us the greatest country in the history of the world. Because we can, we offer safety and security to people who have none in their home countries. Our laws cap the number of refugees we can take into the U.S. in a given year at 70,000. The 10,000 Syrians we have agreed to help is but a drop in the bucket, however, it is a great start.

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Matter of D-M-C-P-, 26 I&N Dec. 644 (BIA 2015); The Board decided that neither the Board, nor the Immigration Courts have jurisdiction to determine if a respondent was properly placed into Asylum-Only Proceedings pursuant to INA § 217. Once an immigration officer determined that an alien was subject to removal as a visa waiver violator, the only issue the Immigration Court or the Board could review is whether the alien qualified for asylum or withholding or deferral of removal. In addition, the Immigration Judge cannot dismiss properly-filed applications for relief from removal due to an alien’s failure to comply with the biometrics requirement pursuant to 8 C.F.R. § 1003.47(c), (d), unless the respondent was advised of the biometrics requirement, provided a deadline for complying and advised of the consequences for failing to comply.

Matter of M-A-F- et al., 26 I&N Dec. 651 (BIA 2015); The Board held that where a respondent has filed a second or substantially amended asylum application, it will be considered a new application, and the filing date of the later application is operative for determining if the provisions of the REAL ID Act of 2005 apply and if an asylum applicant has met the one-year filing deadline. The Court will conduct a case-by-case factual analysis to make this determination, however a second or amended asylum application that raises a new basis for asylum or amends a prior fraudulent application will be considered a new application rather than an amendment of the old one.

Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015); The Board held that an Immigration Judge may rely on documents and statements from another asylum case while making an adverse credibility determination. The Department may provide applications and evidence from another case in order to impeach the credibility of an applicant. The Immigration Judge may then rely on the similarities between the evidence in the two different cases to make an adverse credibility finding, so long as the Court: 1) gives the applicant meaningful notice of the similarities that are considered to be significant; 2) gives the applicant a reasonable opportunity to explain the similarities; and 3) considers the totality of the circumstances when making the credibility finding.

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Recently, the media and politicians have used the term “sanctuary city” as both a sword and a shield, both as a standard to strive for and as a pejorative. But much like the term “amnesty” that has been used very similarly of late, “sanctuary city” has no fixed and agreed upon definition. What is commonly accepted is that a “sanctuary city” refers to a state or local government that has policies that in one way or another refuse to fully cooperate with the efforts and requests of federal immigration officials. Some of these cities will refuse to cooperate with U.S. Immigration and Customs Enforcement (ICE) in any form or fashion (San Francisco) and others simply ban their employees from inquiring about a resident’s immigration status.

The philosophy behind sanctuary city policies are both fiscal and ideological, emotional and detached. Should local law enforcement care about enforcing federal immigration laws over which they have no jurisdiction? Should local governments care about the immigration status of a child enrolling in school when they will accept the child regardless of their status? These are all issues ripe for debate, but one thing is clear, these policies come about in localities where there is a distrust of and poor communication between federal immigration officers and local officials.

State and local budgets are tight enough without having locals take on the additional responsibilities and costs associated with enforcing immigration laws and proactively assisting federal immigration officers. Undocumented and even legal residents are apprehensive about interacting with local law enforcement when the locals start asking questions about immigration status.

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There have been many news reports and stories lately about the need for and need to ban so-called “sanctuary cities.” Supporters of sanctuary city policies say they help to fight crime by making undocumented immigrants more likely to report crime and cooperate with law enforcement without fear of being detained and deported.

http://www.motherjones.com/politics/2015/07/sanctuary-cities-public-safety-kate-steinle-san-francisco

Opponents say that sanctuary city policies that refuse to turnover to federal immigration officials, multi-time convicted felons who are in our local jails lead to senseless murders like that of Kathryn Steinle in San Francisco.

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Below is my summary of the recent U.S. Supreme Court decisions on Immigration. Please contact me if you have any questions or comments about the cases, my interpretations thereof or if you need my legal assistance.

Recent Published U.S. Supreme Court Cases on Immigration:

Mellouli v. Lynch, 575 U.S. _____ (2015);

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Below is my summary of the recent Board of Immigration Appeals decisions. Please contact me if you have any questions or comments about the cases, my interpretations thereof or if you need my legal assistance.

Matter of Agour, 26 I&N Dec. 566 (BIA 2015); In a potentially huge decision, the Board held that an immigrant who adjusted their status while in the United States can qualify for an INA § 237(a)(1)(H) fraud waiver. The Board had previously held that only those immigrants who were admitted from abroad (consular processed) and met the other statutory requirements were eligible for this rare and oft-overlooked waiver. This decision appears to pave the way for otherwise-admissible immigrants who committed fraud or a material misrepresentation during adjustment (i.e. marriage fraud) to obtain this waiver to maintain status and avoid removal.

Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015); The Board held that an Immigration Judge’s determination of future events in the context of an asylum case, is a finding of fact and subject to a clearly erroneous standard of review. The Board also held that whether an applicant has a objectively reasonable fear of future persecution is a legal determination and subject to a de novo standard of review.

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When a non-citizen has a final order of removal or deportation, many times ICE does not deport them immediately. Often, a non-citizen with a final order may report to ICE on an Order of Supervision (OSUP) for years without being removed. However, anyone with a final order runs the risk of being detained and deported at any appointment with ICE or if they happen to get arrested by law enforcement for almost any crime.

One way to obtain piece of mind when you have a final order is to request that ICE grant you a stay of removal. Anyone with a final order of removal or deportation can apply for a stay of removal on a Form I-246 and pay a $155.00 application fee. (http://www.ice.gov/sites/default/files/documents/Document/2014/ice_form_i_246.pdf). The applicant has to provide a current travel document to their home country (passport) with the application, but there are some exceptions for detained individuals or when ICE or CBP has already taken their passport.

Convincing ICE to grant a Stay Application is not as simple as filling out and filing the I-246 application. ICE has guidelines they follow to determine who should receive a stay of removal and who should not. Right now, ICE is following the guidelines set out in the November, 2014 Memorandum by DHS Secretary Jeh Johnson.

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During the last few years, many federal courts have set their sites on Florida statutes that regulate controlled substances. The U.S. Supreme Court, U.S. Court of Appeals for the Eleventh Circuit and Board of Immigration Appeals have all handed down decisions that have a direct effect on the immigration consequences of convictions in Florida for a variety of controlled substance offenses.

In this second part of my multi-part blog, I will analyze two decision from the Board of Immigration Appeals, one published and one not, that provide a great guide for removability as it relates to Fla. Stat. § 893.13(1), sale, manufacture, delivery, and possession with intent to sell, manufacture or deliver a controlled substance, and § 893.135, trafficking in a controlled substance.

If you remember from my first blog in this series, the U.S. Court of Appeals for the Eleventh Circuit in the Donawa decision left open the possibility that a conviction for sale, manufacture, delivery, possession with intent or trafficking could still be an aggravated felony. The Board of Immigration Appeals answered that question in Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014). The Board went even further in limiting the negative immigration consequences for a conviction under §§ 893.13(1) and 893.135 in an unpublished case known as Matter of M-B-, (BIA Sept 25, 2014).

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During the last few years, many federal courts have set their sites on Florida statutes that regulate controlled substances. The U.S. Supreme Court, U.S. Court of Appeals for the Eleventh Circuit and Board of Immigration Appeals have all handed down decisions that have a direct effect on the immigration consequences of convictions in Florida for a variety of controlled substance offenses.

These decisions will effect the potential immigration consequences for Fla. Stat. § 893.13(6), simple possession of a controlled substance, § 893.13(1), sale, manufacture, delivery, and possession with intent to sell, manufacture or deliver a controlled substance, § 893.135, trafficking in a controlled substance, § 893.13(3), delivery of cannabis without consideration and less than 20 grams, and § 893.147, possession of drug paraphernalia.

In this first part of a multi-part blog, I will analyze the history and current state of the federal immigration laws as they relate to non-citizens convicted of controlled substance offenses in Florida.

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A criminal defense attorney who does not know immigration law can end up getting their non-U.S. citizen clients deported. But that is just the beginning. Having a former criminal client who gets deported and blames the defense attorney leads to bar complaints, bad online reviews, bad word of mouth and worse, 3.850 motions for ineffective assistance of counsel that can be a waste of time, money and embarrassing for criminal defense attorneys. So what are a non-U.S. citizen client and their criminal defense attorney to do to try and avoid all of these negative results? Consult with an experienced immigration attorney as soon as possible during the criminal case!

The Supreme Courts of the U.S. and of Florida have ruled that non-U.S. Citizen criminal defendants have a Constitutional right to have their criminal defense attorneys properly advise them of the truly clear immigration consequences of entering a plea in a criminal case. Padilla v. Kentucky, 559 U.S. 356 (2010); Hernandez v. State, 124 So. 3d 757 (Fla. 2012). The Florida Supreme Court has also said that a Judge cannot cure the prejudice that results from a criminal defense attorney’s failure to properly research and advise their non-U.S. citizen clients on the immigration consequences of their convictions. Hernandez, 124 So.3d at 763.

So a Judge cannot protect non-U.S. citizen defendant’s immigration rights, that leaves it up to the criminal defense attorney to do their Constitutionally-mandated duty to discover the immigration consequences of their clients’ convictions. Herein lies the problem, immigration law, especially crimmigration (the intersection of criminal and immigration law) is a constantly changing, ever-evolving beast that requires constant study and practice to stay on top of. An attorney who devotes their practice to criminal defense cannot also be expected to learn every nuisance of crimmigration jurisprudence and stay current with the new developments that happen on an almost-weekly basis.

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