Articles Posted in General Immigration

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President-Elect Donald Trump takes the oath of office on January 20, 2017. Its a safe bet that he will get to work immediately on his agenda and campaign promises to undo as much of President Obama’s immigration executive actions as possible.

While Trump has made many promises regarding immigration, many will take an act of Congress to accomplish. These promises (the Wall, legal immigration reform, and others) will take time and will not happen immediately. Other promises will take another country agreeing to them to happen (making Cuba and other countries take back their deportees), therefore they may never happen and certainly won’t happen next January.

There are a few immigration actions that President Trump can, and probably will, take immediately after taking office. These are the actions that immigrants should be immediately aware of and on which they should take action as soon as possible to reduce the negative consequences against them and their families.

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In case you have not heard, in what can only be called one of the biggest upsets in U.S. presidential election history, Donald Trump defeated Hillary Clinton this morning and is now the President-Elect of the United States. As an immigration attorney, many of my clients and prospective clients have been worried about this day for over a year. They have asked me, what happens to immigrants if Trump is elected president? Will I be deported, will they deny my application for citizenship or for a green card? Will I be detained, will they take away my immigration status?

While I mistakenly assured my clients for months that he was not going to win, as any good attorney would, I contemplated the impacts of each candidate’s victory on my current and future clients. In addition, I thought about the other immigration player post-election, that being a lame-duck President Obama, who, depending on who won the election, might take two completely different approaches to immigration in his last months in office.

So on to what would happen with a president Hillary Clinton? The 2014 Jeh Johnson Prosecutorial Discretion Memo would likely remain intact and might have even been expanded. DACA would stay in place and Hillary assured everyone she would try to push through expanded DACA and DAPA again. There would be no wall on the Southwest Border and the acceptance of refugees from the Middle East would continue, or even grow from current numbers. She also pledged to push through comprehensive immigration reform

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Congratulations! You recently got married and your new spouse is a U.S. citizen, but you are not. One of the first questions on your mind may be: how do I get my green card now that I am married to a citizen? The answer could be fairly simple—or quite complex. No matter what your situation, if you marry a U.S. citizen and want to adjust your status (become a lawful permanent resident) go see an experienced and trusted immigration attorney for a consultation. https://www.slgattorneysflorida.com/john-gihon.html

Many experienced and knowledgeable immigration attorneys may charge you a nominal fee for the consultation, but it is definitely worth it. Remember the old saying, “you get what you pay for,” well that is usually the case with free advice from attorneys. An attorney who charges you a consultation fee will likely spend more time preparing for and with you during the consultation. An attorney who gives you a free consultation may not want to spend anymore time with you or talking to you then they have too, remember, an attorney’s time and knowledge is their money.

Now back to how to try and get your green card now that you are married to a U.S. citizen. My guidance will start with the premise that you and your new spouse married for love and not solely for an immigration benefit—this is not a “how to engage in marriage fraud” piece. Still, be sure to document your new life together, or as we say in the field, gather evidence that you have “co-mingled” your lives. That means if you have not already open a joint bank account that you will put money into and use for marital expenses, do it now. Add each other to car insurance, life insurance, health, dental, vision insurance and retirement accounts. If you buy a house or apartment or condo, make sure both of your names are on the deed and mortgage. If you rent, make sure your existing lease is amended to add your spouse and any new lease has both of your names on it. Add your spouse to your credit cards or open new ones in both names. If you have utility, cable, and cell phone bills, add your spouse’s name. Every piece of paper, bill, or invoice that you can produce, post-marriage, that has both of your names and your marital address on it, will go a long way to convincing the immigration officers that your marriage is real and not solely for immigration purposes.

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If you are not a United States citizen and you registered to vote, you could face criminal charges, denial of immigration benefits and even deportation from the country. These possibilities get even worse if you actually voted in an election.

There are federal and state laws that prohibit people who are not eligible to vote (usually non-citizen immigrants) from registering to vote and voting. It is a federal crime for a non-citizen immigrant to vote in a federal election. If you are not a citizen, you can be prosecuted, sent to prison and deported for voting in a federal election, even if you did not know you were not allowed to vote.

The very act of registering to vote requires that a person certify that they are a United States citizen and eligible to vote. Anyone who registers to vote and is not a citizen, has likely made what is known as a false claim to citizenship. A false claim to citizenship can stick with a non-citizen forever and stop someone from getting a green card, getting citizenship and can even lead to detention an deportation from the United States.

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Anyone who follows immigration news or politics has probably heard that late last month, the Supreme Court in a 4-4 tie, left in place the lower court’s order freezing DAPA and expanded DACA. What this means is that for the rest of President Obama’s term, there will be no Deferred Action for Parents of Americans or an expansion of the already-in-place Deferred Action for Childhood Arrivals program begun in 2012.

This does not mean that DAPA and expanded DACA are dead; rather, it means that the Supreme Court has not yet decided if any president has the authority to create and administer expansive immigration policy measures like these. Obviously, if a candidate who does not support DAPA and DACA wins the White House, these programs will never see the light of day. If a candidate who supports these measures or even more ambitious measure reaches the White House, we can expect that we will see a new push for DAPA and DACA or programs like them in 2017.

These programs are not the only way that people in the United States without a lawful immigration status can seek immigration relief. There is always prosecutorial discretion, stays of removal, temporary protected status, asylum, withholding, and cancellation of removal, among others.

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Congress recently passed legislation that changes who is eligible to enter the United States through the Visa Waiver Program (VWP). These changes are in reaction to the fears that terrorists and terrorist sympathizers will enter the United States exploiting the ease by which people can enter through the VWP.

The Visa Waiver Program was designed to allow citizens of certain countries to avoid the lengthy process by which most foreign nationals must apply for a visa at a U.S. consulate abroad. The normal process involves an application, a background check, an interview and sometimes more. Applications for short-term visitor or business visas are routinely denied. The Visa Waiver Program allows qualified citizens from 38 countries to avoid this process and with a quick online registration, obtain an electronic visa and admission into the United States for 90 days at a time.

This list of 38 countries changes often and usually only contains first-world countries that have low rates of people overstaying their visas, claiming asylum or otherwise abusing the visa process. Citizens from all over Europe, Australia, New Zealand and parts of East Asia enjoy the use of Visa Waiver admissions.

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Last month I had the honor of speaking at the Florida Public Defender Association’s 30th Annual “Trial with Style Conference” in unfortunately rainy Fort Lauderdale. While in one of my former lives as a state prosecutor and I like to think I always tried my cases with style, during this conference I did not talk about anything specifically to do with trying a case.

My topic was “Crimmigration: the intersection of Criminal and Immigration Law.” Let me preface this piece with the following caveat; not all immigrants are criminals (sorry Donald Trump) and recent research has shown that foreign-born residents are less likely to commit serious and violent crimes than native-born citizens.

That being said, this subject is of great interest to most criminal defense attorneys in Florida. Florida has the fourth-highest foreign-born population in the U.S. Almost 20% of all residents in Florida were born in another country. Because Florida is now the third largest state with a total population of over 20 million, that means we have roughly four million foreign-born people living in Florida. Florida is also top 10 in the country in crime rate. You combine all of these factors, and you see why criminal defense attorneys need to know immigration law.

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Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here are the summaries of the District Court Cases for Alabama, Georgia and Florida. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

District Court Decisions

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Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here are the summaries of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

11th Circuit Cases:

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There is a bill currently pending before Florida Senate that seeks to increase the maximum punishment for certain crimes committed by “illegal immigrants.” You can read the text of Senate Bill 150 here:

http://www.flsenate.gov/Session/Bill/2016/0150/BillText/__/HTML

Thankfully, there is no companion bill in the House. At first glance, many Floridians may think, “good, if someone is here illegally and commits a crime, they should face higher penalties.” But that gut reaction is wrong in this case, as the devil is always in the details. If you know anything about immigration law or have been following the protracted fights between the Obama administration and the federal courts over immigration, you know that the Federal Government and Federal Courts have a hard time interpreting and administering federal immigration laws themselves. What this bill proposes to do is to impose upon the Florida courts, prosecutors and criminal defense attorneys the additional time, financial and legal burden of determining the immigration status of a person before, during and after they commit a crime. This is much easier said then done.