Lawful Permanent Residents

LEGAL UPDATE ON FLORIDA CONTROLLED SUBSTANCE CONVICTIONS AND THEIR IMMIGRATION CONSEQUENCES-PART ONE

Published on: June 19, 2015 | by Lasnetski Gihon Law

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.

What happens when a Criminal Defense Attorney does not know Immigration Law?

Published on: June 10, 2015 | by Lasnetski Gihon Law

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.

Recent Crimmigration Decisions can Affect Every Non-U.S. Citizen Accused of a Crime in Florida

Published on: June 9, 2015 | by Lasnetski Gihon Law

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).

U.S. Supreme Court rules that a conviction for Possession of Drug Paraphernalia may no longer make your Deportable.

Published on: June 3, 2015 | by Lasnetski Gihon Law

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.

New Published Administrative Appeals Office Decision Regarding Immigration Cases

Published on: May 26, 2015 | by Lasnetski Gihon Law

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.

Summary of Recent Attorney General, Board of Immigration Appeals Decisions and Immigration-Related Decisions from the U.S. Court of Appeals for the Eleventh Circuit

Published on: May 20, 2015 | by Lasnetski Gihon Law

Recent Published AG Decision:

Matter of Silva-Trevino, 26 I&N Dec. 550 (AG 2015); Attorney General Holder (now former) completely vacated former AG Mukasey’s decision in 2008’s landmark decision, Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008)-please hold your applause to the end. AG Holder recognized that five of the seven Federal Circuits that have ruled on the issue have overturned at least the third prong of the Silva-Trevino analysis which allowed Immigration Judges to go beyond the categorical and modified categorical analyses and use evidence outside the record of conviction. This is one of two recent decisions that spend quite a bit of time focusing on the needed for a unitary Federal policy on Immigration. This may be an indication that the Board may be looking for additional areas of immigration jurisprudence where there is a conflict in the Circuits and attempt to rectify the conflicts through BIA or AG decisions.

Recent Published BIA Decisions:

Judge’s Ruling Could Pave the Way for the Release of Thousands of Immigrant Women and Children

Published on: March 2, 2015 | by Lasnetski Gihon Law

A Federal Court Judge recently banned the U.S. Government from using deterrence as a basis for denying the release of women and children from immigration detention facilities.

Article about the Decision:

http://www.huffingtonpost.com/2015/02/20/immigration-detention-injunction_n_6724662.html

Yet Another Reason Why Non-Citizens Should Hire an Immigration Attorney During–Not After–Their Criminal Case

Published on: February 24, 2015 | by Lasnetski Gihon Law

People who are not United States citizens very often have the burden of proof in many aspects of immigration law. This is true whether you are applying for admission to the United States at a consulate overseas or at a port of entry, or trying to obtain your green card or become a U.S. citizen. A non-citizen has the burden of proof to show they are eligible for a visa, admission or the immigration benefit they are seeking. Having the burden means that the non-citizen is responsible for proving the negative, i.e. that you are not inadmissible and not ineligible for the relief or benefit.

In the context of a non-citizen with a criminal history, having the burden means that you are responsible for obtaining your own arrest and conviction records and providing them to the government. The government can deny you admission, relief from removal or the benefit you are seeking if you are unwilling or unable to obtain the records and prove you are not ineligible for whatever you are seeking.

Normally, anyone can go to the courthouse where they were prosecuted or law enforcement agency that arrested them and request copies of the certified documents that the immigration officers will want. However, this is not the case if the non-citizen successfully had their criminal arrest expunged or criminal case sealed.

Coptic Christians Across the Middle East and North Africa face Unspeakable Violence

Published on: February 18, 2015 | by Lasnetski Gihon Law

Whatever you call the Islamic State, ISIL, IS, or ISIS, everyone can agree that they commit horrible atrocities and brutal terroristic acts in multiple countries across the Middle East and North Africa. Their beheadings of Western and Asian Journalists on video were bad enough. Then they burned a Jordanian pilot alive as if we were still living in the middle ages. But their most recent despicable horror captured on video in an effort to scare the West and recruit more murderers was the torture and throat-slitting of 21 Egyptian Coptic Christians kidnapped in Libya.

Anyone who has seen or heard of this horrid tale should be appalled that these innocent men were clearly targeted, tortured and killed because of their Christian faith. Thankfully, Pope Francis spoke out to decry these despicable acts of religious persecution and torture. However, it is clear that no one of Christian faith is safe in any country in the Middle East or Northern Africa.

The United States has very strong immigration laws that prevent anyone from being deported to a country where they will be tortured or killed. In many circumstances, the U.S. will grant religious refugees lawful immigration status in the United States and even provide them with lawful permanent residence. Christians living in the Middle East and North Africa and more importantly, Christians in the United States who are from countries in the Middle East and North Africa have a very strong claim that if they return to their home countries they will be harmed, persecuted, tortured or killed because of their religion.

Two New Published Board of Immigration Appeals Decisions Regarding Aggravated Felonies and Deriving Citizenship

Published on: February 17, 2015 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently published two new cases. Matter of Chairez discusses how Immigration Judges and the Board will employ the modified categorical approach as it applies to whether criminal statutes are divisible. Matter of Cross discusses who is considered a legitimated child for the purposes of deriving U.S. citizenship in countries that have removed the legal difference between children born in or out of wedlock. I have summarize each case below.

Matter of Chairez, 26 I&N Dec. 478 (BIA 2015); The Board held the divisibility analysis for a criminal statute is subject to the interpretation of the Circuit Court decisions in the jurisdiction where the removal proceedings take place. The Board recognized that their decision in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) is still good law and the Board will follow the Descamps v. U.S., 133 S.Ct. 2276 (2013) guidance for how to apply the divisibility analysis of the categorical approach. However, in Circuits where the Courts have interpreted Descamps differently than the Board has, the Board will follow that divisibility anaysis of that Circuit. In footnote 3, the Board identified that two CIrcuits (the Fourth and Eleventh) follow the Chairez divisibility analysis, while three (First, Third and Tenth) use a different analysis, and there is confusion in the NInth as to what they use.

Matter of Cross, 26 I&N Dec. 485 (BIA 2015); The Board held that for the purposes of a citizenship derivation analysis, a child has been “legitimated” by their biological parent if the jurisdiction in which they were born or previously lived eliminated the legal distinctions between children born in or our of wedlock. This case eliminated the rule that the subsequent marriage of the biological parents was the only way to legitimate a child born out of wedlock in Jamaica.