Articles Posted in Legislation

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.

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.

Last time I discussed the situations where an immigrant in removal proceedings could seek to terminate proceedings to avoid removal from the United States. Today I will discuss motions to administratively close proceedings.

While a successful motion to terminate removal proceedings usually removes an alien from jeopardy of deportation, a successful motion to administratively close proceedings simply pauses a removal case indefinitely. However, the outcome is the same as a motion to terminate, you are no longer in imminent danger of being ordered removed from the United States.

While administratively closing removal proceedings pauses your case indefinitely, at any time you or the Government can ask the Court to put your case back in front of the Immigration Judge.

The U.S. Supreme Court ruled in Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010) that defendants have a Constitutional right to receive accurate advice from their criminal attorneys about the immigration consequences of any criminal conviction. The Florida Supreme Court has ruled that where the immigration consequences of a particular conviction are “truly clear”, “Padilla requires effective counsel to provide more than equivocal advice concerning those consequences . . . [and] in those circumstances, an equivocal warning from the trial court is less than what is required from counsel and therefore cannot, by itself, remove prejudice resulting from counsel’s deficiency.” Hernandez v. State, 124 So. 3d at 763.

The U.S. Supreme Court and the Florida courts have not defined with any specificity what it means when immigration consequences are “truly clear.” However, the most prudent course of action for any criminal attorney is to consider the consequences “truly clear” when a plea to a crime would subject a non-citizen defendant to any ground of removability under INA § 237(a)(2) or a ground of inadmissibility under INA § 212(a)(2). The problem with this approach is that under the current state of immigration law and policy, any plea to any crime, even the most minor misdemeanor can have definite and “truly clear” negative immigration consequences.

The courts have recognized that a conviction for a crime that is considered an aggravated felony mandates the Defendant’s deportation and also bars his eligibility for discretionary relief from removal. See Hernandez v. State, 124 So. 3d 757, 760 (Fla. 2013). This is certainly the type of plea to a crime that has “truly clear” consequences. In addition, any plea to any controlled substance offense (with one very narrow exception related to simple possession of less than 30 grams of cannabis or the paraphernalia related thereto and only for certain non-citizens) has “truly clear” negative immigration consequences and will subject almost every non-citizen to deportation. Any plea to any crime involving a firearm likely has “truly clear” negative immigration consequences. After that, the immigration jurisprudence becomes quite murky and there are few “truly clear” immigration consequences related to crimes of domestic violence, child abuse, child neglect, violations of protective orders or injunctions, stalking, and crimes involving moral turpitude.

President Obama has said that if Congress failed to act to pass comprehensive immigration reform before the August Summer recess, he would be forced to take action on the matter. Many legal scholars and activists have chimed in on what they think the President should do and what they think he legally could do unilaterally about immigration.

The President has provide mixed messages over the years about what he wants to do compared to what he thinks he can legally do. The President has been quite clear that he wants to sign the comprehensive immigration reform bill passed by the U.S. Senate in the summer of 2013. This bill would immediately give millions of immigrants eligibility for lawful status. This bill would provide millions with a pathway to a green card (lawful permanent residence) and a pathway to citizenship.

Nothing the President has talked about, and nothing argued for by immigration activists can do what Congress can do through comprehensive immigration reform. What the President is currently contemplating is to expand deferred action to a much larger group of immigrants currently without status. The President first provided deferred action through DACA (Deferred Action for Childhood Arrivals), back in 2012, to a limited number of young immigrants who met certain criteria. Deferred action is not a legal status like having a green card, or having a work or student visa. Deferred action is simply a temporary, revocable promise that the government will not seek to remove you, and will allow you to work, so long as you don’t break certain rules.

In 1996 the U.S. Congress changed the law regarding asylum by imposing a new potential penalty for all asylum applicants who filed applications after April 1, 1997. This new penalty would bar any applicant, who filed a frivolous application, from receiving any benefit under the Immigration and Nationality Act (INA). This means, if the Immigration Judge finds that you filed a frivolous application, you will be permanently barred from receiving benefits like, asylum, adjustment of status, and temporary protected status, etc. However, even a frivolous finding will not bar you from receiving withholding of removal under INA § 241 or protection under Article III of the United Nations Convention Against Torture (CAT).

There is a big difference between filing a frivolous asylum application and simply being found not credible by an asylum officer or an Immigration Judge. To be considered frivolous, the Board of Immigration Appeals has required satisfaction of these four elements: (1) the respondent must receive notice of the consequences of filing a frivolous application; (2) the Immigration Judge must make a specific finding that the alien knowingly filed a frivolous application; (3) there must be sufficient evidence that a material element was deliberately fabricated; and (4) there must be an indication that the respondent has been afforded a sufficient opportunity to account for any discrepancies or implausible aspects of the claim. Matter of Y-L-, 24 IN Dec. 151 (BIA 2007).

Once you sign and file a form I-589 Application for Asylum that contains false statements that are material to your claim or false documents to support the application, there is no putting the toothpaste back in the tube. Withdrawing your asylum application or going forward on another form of relief is not a defense to filing the frivolous application in the first place. Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010).

Republicans in the U.S. House of Representatives recently proposed a bill aimed at dealing with the crisis currently taking place on the Southwest Border. House Judiciary Chairman, Rep. Bob Goodlatte introduced the bill and provided the following support for it:

“Since President Obama won’t take actions to quell this activity, the Asylum Reform and Border Protection Act stops many of the Administration’s policies that have caused this crisis, such as exploiting weak asylum standards to approve baseless claims and stringent environmental policies that prevent Border Patrol agents from doing their job of securing the border. Additionally, the bill reforms current law to make sure we get these unaccompanied minors home safely and quickly. We must swiftly take action to end this crisis-children’s lives are at stake, and so is the integrity of our immigration system.”

If anyone reads this bill, you can see that the scope of the bill is extremely broad, its effects are tremendous, and the change that it will make to our existing immigration laws will dwarf every action the President has ever taken regarding immigration.

The New York City Council recently announced that it approved the Mayor’s plan to give photo identification cards to all New York City residents, regardless of their immigration status. The Council and the Mayor heralded this effort as a victory for residents, many of whom do not have a current lawful immigration status and cannot obtain state or federal photo identifications.

The cards will be accepted by city agencies, will let parents enter school buildings and provide proof of identity for people stopped by police – which could mean the difference between spending a night in jail and being released.

Private institutions will not be legally required to accept the ID, but the city hopes banks and landlords will take it from people trying to open bank accounts or sign leases. (New York Post Article)

As expected, an extremely comprehensive immigration reform bill that passed in the Senate has gained little steam in the House of Representatives. Speaker of the House, John Boehner, has gone on record stating that the immigration bill is not a top priority. Boehner’s statements seem out of touch with millions of immigrants and U.S. Citizens, who would be directly affected by the new legislation.

The current law is particularly harsh when it comes to many children and young adults. Take, for example, a 21 year old girl who was brought to the United States by her mother, without documentation, when she was 3 years old. Her mother married a U.S. Citizen. She has assimilated fully into the American culture. All of her friends are U.S. Citizens. She considers herself an American and everyone that knows her considers her an American. However, she is not an American. In the eyes of the law, she is an illegal immigrant. She is subject to deportation to a country that she knows nothing about.

The new immigration bill will not solve all the problems, but there is a humanitarian effort to ameliorate some of these hardships on children and young adults who have very little, if any, culpability. The Dream Act, and provisions in the the proposed legislation, take a step in the direction of recognizing the difference between an adult who entered the country without authorization versus a child that was brought into the country without the ability to refuse.

The landmark immigration bill resting in the Senate has been withstanding the brunt of proposed amendments which would essentially water down the legislation and negatively effect countless people living in the United States. Republican senators have made an effort to further tie undocumented individuals ability to obtain registered status to the success of controlling the border. These senators don’t want undocumented individuals who are already in the United States to obtain legal status until the border is secure. In theory, this position may seem reasonable. However, the viability of the border security efforts may be unattainable or may take years to accomplish, thus making the registered provisional status a moot point.

A group of eight senators – four Republicans and four Democrats have held firm in their resistance to such amendments. The effectiveness of the bill as it stands now is certainly open to debate. Critics believe that the legislation would be difficult, if not impossible to implement. Some believe that the agencies that execute the legislation (i.e. USCIS, ICE) may not implement the procedures according to the spirit of the legislation. It remains to be seen whether the bill will pass, in what form it will be passed, and how the changes will be implemented by the troops on the ground. Stay tuned.

Read more about the proposed amendments to the bill here.

The Legislature has still been unable to pass an immigration reform bill despite an extensive bipartisan proposal. House Speaker John Boehner voiced his concerns about the lack of progress in enacting an immigration reform bill. The proposed bill in the Senate would have both positive and negative implications for immigrants.

While a group of Senate leaders prepared a proposed bill after months of hard work, a similar group of House leaders have been unable to reach a compromise for four years. There is no indication on how long it will take for the sides to reach an agreement or whether any compromise would be accepted by the legislature as a whole.

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