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Articles Posted in Lawful Permanent Residents

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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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In the past couple of weeks, multiple courts, including the Board of Immigration Appeals, the Eleventh Circuit Court of Appeals and even the U.S. Supreme Court have issued decisions which will have an effect on thousands of non-U.S. citizens facing criminal prosecutions in Florida. Non-citizens in criminal court face not only the prospects of jail, prison, probation and a loss of civil rights, but also of the possibility of being deported or never being able to obtain the U.S. citizenship. Crimmigration is the area of law that helps to protect non-citizens’ immigration status in criminal court and to defend non-citizens facing deportation for their criminal histories. Here are some of the recent crimmigration decisions that will come into play for Florida non-citizen criminal defendants.

In Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015) the Board held that Fla. Stat. § 784.041(1) (felony battery) is categorically a crime of violence under 18 U.S.C. § 16(b). The Board confirmed that when analyzing a criminal statute to determine if it is a crime of violence under 18 U.S.C. § 16(b), the Board uses an “ordinary case” not “minimum conduct” analysis. The Board distinguished cases analyzed under 18 U.S.C. § 16(a) (element-based) which uses a minimum conduct approach. The proper inquiry is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”

In U.S. v. Keelan, No 13-11878 (11th Cir. 2015), a very similar decision to the Board’s holding in Matter of Francisco-Alonzo, the Eleventh Circuit held that when analyzing a criminal statute to determine if it is a crime of violence under 18 U.S.C. § 16(b) the Board uses an “ordinary case” analysis. Of importance in Keelan is that the Court noted that in cases involving sex crimes against minors there is always a substantial risk that physical force will be used, therefore supporting a finding that any crime involving sex abuse of a minor is likely to be a crime of violence under 18 U.S.C. § 16(b).

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In a long-awaiting ruling, the U.S. Supreme Court this week issued its decision in the case of Mellouli v. Lynch, 575 U.S. ____ (2015). This is the infamous case I blogged about months ago asking “When can a sock get you deported?”

https://www.floridaimmigrationlawyerblog.com/2015/02/when_can_a_sock_get_your_depor.html

The Supreme Court decided that the Board of Immigration Appeals and the U.S. Court of Appeals for the Eight Circuit were both wrong and in the case of Mr. Mellouli, his sock will not subject him to deportation.

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Recent Published AAO Decisions:

Matter of Leacheng International, INC., 26 I&N Dec. 532 (AAO 2015); In the context of an I-140 Petition for a multinational manager or executive, there is no requirement that the beneficiary has been “doing business” with an outside third party pursuant to 8 C.F.R. § 204.5(j()2) for at least one year immediately preceding the petition. The AAO found that it was sufficient that the beneficiary was “doing business” within an affiliated multinational organization.

Matter of Christo’s INC., 26 I&N Dec. 537 (AAO 2015); In an odd context for this issue to arise, the AAO found that the INA § 204(c) marriage fraud bar does not apply to completely fabricated marriages, that is, marriages that never actually existed in the first place. The AAO found that in order for the bar to apply the alleged perpetrator must have at least attempted or conspired to enter into a fraudulent marriage. Where there is evidence that the alien submitted false documents regarding a fictitious marriage, but did not actually enter into a marriage or attempt or conspire to do so, the bar does not apply.

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