Articles Posted in Legislation

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.

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.

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);

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.

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


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.

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.

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:

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.

John Gihon, partner with Lasnetski Gihon Law (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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