Articles Posted in Removal/Deportation

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A new decision, Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), released by the Attorney General has created a rebuttable presumption that a person with multiple DUI convictions during the relevant time period does not have “good moral character.”  This means that if a person had old DUI convictions and has rehabilitated themselves, it still will not be enough to establish “good moral character.”

What is “good moral character?”

In certain situations, a non-citizen must prove that he or she has “good moral character.”  For example, if a lawful permanent resident wants to become a United States Citizen, he or she will apply for naturalization and must establish that he or she has had good moral character for the past 3 or 5 years, depending on which provision of law they are applying under.  Also, a person that entered the U.S. without inspection and who is placed in removal (deportation) proceedings, may be eligible to have their removal cancelled (“cancellation of removal”) if they meet certain requirements.  One of those requirements is to prove that he or she has had good moral character for the last 10 years.

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A criminal conviction can make you deportable.  It doesn’t matter how long you’ve been in the United States.  It doesn’t matter how good a person you are.  It doesn’t matter if you have never been to the country of which you are a citizen.  The law is cut and dry when it comes to whether you are deportable.  If you have been convicted of certain crimes, you are deportable.  But…there is good news.  Whether you are deportable is only the first part of the analysis.  Once an immigration judge determines that you are deportable, he or she must next determine whether you are eligible for any forms of relief from deportation.  This is where your lack of prior criminal record, how good of a person you are and other factors may come into play.  However, you must meet certain eligibility criteria in order to be eligible for each different form of relief.  Today, I want to focus on one particular, and often used, form of relief: Cancellation of Removal.

What is Cancellation of Removal?

Cancellation of Removal is a form of relief from deportation.  Once the judge has determined that you are deportable, the judge can cancel that removal if you qualify.  It basically wipes the slate clean and you are able to keep your greencard, or you may be able to obtain a greencard, even if you entered without any documents. The bad news is that for several of the requirements, you either are or you are not eligible, and there may be nothing you can do to become eligible if you don’t qualify.

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You have a family friend or relative who has made the perilous journey to come to the United States seeking protection from persecution and harm in their home country.  They made it halfway across the world through multiple other countries just for the chance to come to the U.S. and request asylum and a safe, better future.  They either walked up to the border with Mexico and asked for asylum or came over the border and were caught by Border Patrol.  Your friend or family member told the U.S. immigration officers about a history of harm or persecution they’ve endured in India, Pakistan, Nepal, Colombia, Venezuela, Somalia or one of a dozen other countries currently facing political and social strife.  The immigration officer heard their account of what happened and said, “welcome to the United States, here is an order of removal and we will keep you in jail until we can deport you.”

This scenario is happening on a daily basis to hundreds of people seeking refuge and asylum here in the U.S.  People who are seeking protection and safety are detained at the Mexican border and shipped to one of a dozen or more detention facilities across the country to have their immigration cases heard by an immigration judge. One of those detention facilities is in Folkston, Georgia and asylum-seekers are arrested and detained at the U.S. border on a daily basis and sent directly to Folkston.

WHAT IS THE FOLKSTON ICE PROCESSING CENTER?

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Criminal defense lawyers don’t typically know anything about immigration law.  Immigration law is federal.  Most criminal defense attorneys practice only state law in state courts.  Even if they do practice in federal criminal courtrooms, it is a completely different area of law from immigration.  Asking a criminal lawyer about immigration law is kind of like asking a podiatrist about cataracts.  That is unless the lawyer practices in both fields, which is becoming more common.  The problem is that when you ask a lawyer about an area of law they don’t know anything about, they may give you an answer.  “Uh, I’m sure this conviction won’t hurt you.  You’ve been here 30 years.  You have a greencard.  Don’t worry about it.”  And that answer may not only be wrong; it may be dead wrong with deadly consequences.

Case in point – Jae Lee is going before the United States Supreme Court because his criminal defense attorney told him that his plea to Possession of a Controlled Substance with Intent to Distribute would not make him deportable.  Not only did it make him deportable, it is considered an aggravated felony and he has no form of relief to prevent his deportation.  His criminal defense attorney’s nonchalant dismissal of such a critical issue has led to a lifetime of catastrophic consequences for Mr. Lee, including being incarcerated for seven years while he fights his deportation.  If you’d like to learn more about Mr. Lee’s case, check out this wonderful article written by Manny Vargas from the Immigrant Defense Project.  Mr. Vargas provides a very detailed history of Mr. Lee’s case and discusses exactly how Mr. Lee went from thinking his criminal conviction would not lead to deportation to realizing he would not only be deported, but would be detained for many years while fighting that deportation.

Don’t get me wrong.  Many criminal defense attorneys do an amazing job of actually looking at the immigration statutes, calling up immigration lawyers, and sending their clients to immigration lawyers.  But many do not.  So, you should trust your criminal defense attorney, but verify.  Trust, but verify.  Ask your lawyer if they have any experience in immigration law.  Go seek the advice of an immigration lawyer. The consequences are too severe for you to leave it in the hands of an attorney who may view the immigration consequences as a collateral consequence of the plea, rather than a potential life shattering experience.

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There has been great fear rising within immigrant communities regarding the new policies directed at certain non-citizens.  On January 25th, 2107, President Trump issued an executive order titled Executive Order: Enhancing Public Safety in the Interior of the United States.  This Order provided guidance to federal agencies on how to implement certain provisions of the Immigration and Nationality Act.  Specifically, President Trump called for the targeting of non-citizens who 1) have criminal convictions, 2) have been charged with crimes even though the criminal court proceeding shave not been completed, and 3) have committed criminal acts that have not even been charged.  The Order addresses other individuals to be targeted.  It also calls for 10,000 additional deportation officers to be hired.

So how could this affect you, if you a non- U.S. Citizen.

Any criminal charge, no matter how minor, no matter how long you have been in the U.S., and no matter what your status is could lead to prolonged detention pending criminal and/or immigration proceedings and to deportation.  The law has not changed since President Trump took office, but the way it is implemented has.  It is still too early to tell just how drastic the change will be from the Obama administration, but it is clear that there will be change.

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Cuban-Flag-behind-man-with-Suitcase-1024x692President’s Obama’s January 12, 2017 announcement about Cuban immigration policy changed the landscape for Cuban nationals. Along with all the official changes announced on January 12, 2017 on this subject, there was another document that contains two very important, but often overlooked paragraphs. The United States and Cuba released a “Joint Statement of the United States and Cuba on Changes to Migration Relationship with Cuba.” This statement contained two very interesting paragraphs that will effect not only Cubans coming to the U.S. on or after January 12, 2017, but Cubans who may have been in the U.S. for decades and already have a final order of removal/deportation, or will receive one in the future. This first paragraph is number 5 and it talks about the infamous Cuban “Repat List” that ICE keeps locked up in a safe somewhere in South Florida:

  1. The Republic of Cuba shall accept that individuals included in the list of 2,746 to be returned in accordance with the Joint Communiqué of December 14, 1984, may be replaced by others and returned to Cuba, provided that they are Cuban nationals who departed for the United States of America via the Port of Mariel in 1980 and were found by the competent authorities of the United States to have tried to irregularly enter or remain in that country in violation of United States law. The Parties shall agree on the specific list of these individuals and the procedure for their return.

When I worked for U.S. Immigration and Customs Enforcement, I spoke to ICE officers who swore the list actually exists and it is kept in a safe in a location I will not disclose. When ICE had a final order Cuban national in custody who was a “Marielito,” they would check the list to see if the person could be deported or “repatriated,” to Cuba. Obviously, not every Cuban national who came to Florida in the Summer of 1980 is on that list, and there are hundreds, if not thousands of Cubans who left the Port of Mariel in 1980 who are currently in the U.S. with a final order of removal or deportation.

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Last week, President Obama issued the first major change in U.S. immigration policy towards Cubans in over 20 years. On January 12, 2017, President Obama announced that the 1995 immigration policy designed specifically for Cuban nationals, known as “Wet-Foot/Dry-Foot”, would be abolished immediately. That means that Cuban nationals arriving at air, sea and land ports would now be subject to expedited removal (they were not previously) and that the Cuban government has agreed to review Cuban nationals with final orders of removal on a case by case basis to determine if they would allow them to be deported to Cuba. In addition, Cubans who arrive in the U.S. without visas and without having been admitted or paroled will not receive special parole consideration. They will be considered for parole like any other foreign national. Parole is the primary way that Cubans become eligible to adjust status in the U.S. and get their green cards.

This is a major, major change to how the U.S. government treats Cuban nationals coming to, or attempting to come to the United States. No longer will they be welcomed into the air, sea and land ports, automatically given parole into the U.S., and a year and day later, be allowed to apply for adjustment of status under the Cuban Adjustment Act.

Just for background, the 1995 Wet-Foot/Dry-Foot Policy, enacted by President Clinton, restricted Cuban nationals, who would be paroled into the U.S. and allowed to apply for green cards, to those who actually made it to U.S. soil before immigration officers caught them. Previously, Cuban nationals caught on boats or rafts in the Florida Straits, on their way from Cuba to the U.S., were brought to the U.S. and paroled into the country, rather than being sent back to Cuba. Wet-Foot/Dry-Foot greatly limited the number of Cuban nationals who made it to the U.S.

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Recently, multiple states have not only legalized the use of marijuana (aka cannabis, weed, pot, etc.) for medical use, but they have decriminalized possession of marijuana for recreational use. Following that trend in states that have not yet taken this action (Florida being one of them) local governments have made efforts to decriminalize simple possession of small amounts of this still federally controlled substance. The city of Orlando is currently contemplating just that action:

http://www.orlandosentinel.com/news/politics/os-orlando-decriminalize-marijuana-20160412-story.html

Volusia County (Daytona Beach) also recently voted to pass such a measure:

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This is a question that many immigrants find themselves asking at some point in their journey to U.S. citizenship. I applied for a green card and they told me I have an order of removal, or I was arrested and immigration detained me and said I have an order of deportation. These are scenarios that happen on a regular basis. The way our immigration system works, many non-citizens who are living their lives in the U.S. have orders of removal and either don’t even know it, or are able to live their lives, but have the fear that their next appointment with U.S. Immigration and Customs Enforcement (ICE) will be the time they are detained and deported.

When someone has a final order of removal there can be many reasons for it. You may have gone through removal proceedings, fought your case and lost, appealed to the Board of Immigration Appeals and lost and now you have a final order. You may have not even known that you were in removal proceedings and were ordered removed when you did not show up for a court date that you didn’t even know you had. Or you may have gone to court many times and for one reason or another, you had car trouble, you were in jail or you were scared, you did not show up for your final hearing and you were ordered deported. All of these are ways that people end up with orders of removal or deportation.

How you received your order of removal is a key factor in determining if an attorney can help you reopen your case and overturn that order of removal. If you fought your case all the way through and lost at every step, your chances of reopening your case and getting your green card back or having a chance at getting a green card a slim. However, that does not mean it is impossible.

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The moment that a person receives a Notice to Appear from a federal immigration agency can be frightening and intimidating. You may ask yourself, why does the government want to deport me? What did I do wrong? How can they bring up that criminal case from a decade ago?

However, its important to remember that receiving an NTA (as we call it in immigration circles) is not the end of the world, in fact, sometimes it can be the best thing that can happen for some people. In this blog I will answer the following question, “I received a notice to appear, what do I do now?”

A Notice to Appear or NTA or Form I-862 as it is also called, is the notice to a non-citizen that one of the immigration agencies has decided that you have done something for which they think you should be deported. The agencies that can issue Notices To Appear are U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). These are all related agencies under the umbrella of the Department of Homeland Security, but each serves a different function in that dysfunctional federal family.

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