Articles Posted in Legislation

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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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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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President Obama has been all over the news recently talking about how the U.S. has begun normalizing relations with Cuba and the communist Castro regime. Many people in the U.S. think that decision is long over due, but many Cuban-Americans on both sides of the political aisle do not support the President’s Actions.

I have blogged before about the immigration changes that may come about with a full normalization of diplomatic relations with Cuba, and these changes are not good for Cuban immigrants. See https://www.floridaimmigrationlawyerblog.com/2014/12/normalizing_diplomatic_relatio.html

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In my last blog I explained that there are multiple causes to our immigration dilemma here in the United States. Some of these causes have their genesis in the U.S., and encourage people to risk it all to come here, I have coined these causes, pull factors. There are also strong influences present in almost every country in the world that encourage residents of those nations to want to leave, these are push factors. So in countries where there are strong push factors and similarly strong pull factors to the U.S., we see the largest migration of people seeking to enter the United States legally or otherwise.

Here is a prime example of where strong push and pull factors combine to create the immigration and humanitarian crisis that we saw at the Southwest Border last summer.

Murder rates in three Central American countries, El Salvador, Guatemala and Honduras are outrageously high relative to the rest of the world. Accordingly, personal and financial security are extremely low in these three places. Those are very strong push factors; if you don’t know if you or your family has a future because you could be killed or kidnapped tomorrow, why go to school, why get an education, why go to work, why save up money just to lose it all to violence? People in these three countries have a strong incentive to want to leave and find a better life somewhere else. In addition to those strong push factors, there are multiple equally strong pull factors that encourage those fleeing Central America to choose to come to the U.S. rather than seeking safety and security in different country.

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I have had the pleasure of giving immigration presentations to many different groups since I began practicing immigration law. These groups include lawyers on both sides of the issue, law enforcement, business leaders, and just regular Joes and Janes looking for insight into this divisive and emotional topic. My background as a state criminal prosecutor, federal immigration attorney, private attorney representing criminal defendants and immigrants facing deportation and finally as the husband of an immigrant has provided me with a unique and balanced perspective on the issue. I am neither pro-amnesty nor pro-deportation, I believe that we have to live by the laws that govern us all, but if we do not agree with the laws, we have a duty and obligation to change them. This is especially true when we have a broken system and broken laws that do not work–as is the case with our immigration system in the United States.

Estimates have our population of people in the U.S. without lawful immigration status somewhere north of 10 million. Regardless of your political beliefs as to what we should do with this large group–grant them amnesty or deport them all–we should all be able to agree that a legal system that has at least 10 million people actively violating it every day, is not working well.

There no single answer for how to fix our broken immigration system and as long as we live in the greatest country in the history of the world – the United States – people across the globe will risk their money and lives to come to the U.S., legally or not.

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On December 17, 2014, the President announced that the U.S. government would begin the process to resume normal diplomatic relations with the communist regime in Cuba. This announcement signified a change to the five-decade long policy of isolating the Cuban government. The announcement also sparked a new fear of the end of the U.S. welcoming Cuban immigrants with open arms and with lawful immigration status–as long as they could reach American soil.

While the President did not announce any official plans to end the Cuban Adjustment Act–the law that allows Cuban nationals to obtain entry and lawful permanent residence in the U.S.–the rumors of its demise have clearly reached Cuba.

The Havana Times recently reported that the number of Cubans attempting to flee Cuba and enter the U.S. after the President’s announcement has increased dramatically. The numbers have also greatly increased from this time last year:

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A recent article from Fox News Latino details the concerns of the agricultural industry regarding the President’s executive action on immigration. The president’s announced expansion of Deferred Action for Childhood Arrivals (DACA) and creation of Deferred Action for Parental Accountability (DAPA) is estimated to provide deportation defense and work authorization for 4-5 million people currently in the U.S. without lawful status.

DACA will provide work permits and protection from deportation for many who are in the U.S. without status, who have been in the U.S. for more than five years, who entered before they turned 16 years old and have a minor or no criminal record.

DAPA will provide work permits and protection from deportation for many in the U.S. without status, who have been in the U.S. for more than five years, who have a U.S. citizen or lawful permanent resident child and have a minor or no criminal records.

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John Gihon, partner with Shorstein, Lasnetski & Gihon (SLG) will appear on the television show “Orlando Matters,” at 7 a.m. this Saturday, December 6, 2014. The program will air on WRBW-Channel 65 in Orlando.

Fox 35 Orlando’s John Brown will host the show where current SLG attorney and former Department of Homeland Security, Immigration and Customs Enforcement Senior Attorney John Gihon discusses how Obama’s executive action on immigration will affect the issue in the long term.

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President Obama announced yesterday a vast expansion of the Deferred Action for Childhood Arrivals (DACA) program and a new form of deferred action for parents (DAP) of lawful permanent residents and United States citizens who entered the United States without authorization or have overstayed their visas.

You may be able to obtain employment authorization and a driver’s license if you qualify. Deferred action will also give you the piece of mind that you will not be arrested by ICE or any law enforcement because you are not in lawful immigration status.

Details of the new deferred action program are still being finalized and applications will not be accepted immediately. However, we can begin the process of determining eligibility and preparing the application now.

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Jeremy Lasnetski and John Gihon, partners with Shorstein, Lasnetski & Gihon, will be panelists on multiple topics this weekend at AILA Central Florida’s Annual Conference in Clearwater Beach, Florida. The 28th Annual Fall Conference, entitled, “Basics and Beyond at the Beach” is a two-day conference at the Hyatt Regency Clearwater Beach Resort and Spa and begins on October 17, 2014.

http://www.aila.org/content/default.aspx?docid=49888#reg

Jeremy will be a panelist on the topics of U Visas, T Visas and VAWA benefits. U Visas are potentially available to any non-citizen who was the victim or witness to certain crimes here in the United States. VAWA benefits are potentially available for victims of domestic abuse by U.S. citizens or Lawful Permanent Residents.