Removal/Deportation

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.

When can a sock get you deported?

Published on: February 11, 2015 | by Lasnetski Gihon Law

Moones Mellouli came to the United States legally and became a lawful permanent resident. He went to college and attained multiple advanced educational degrees and became a professor. In 2009 he was arrested for DUI and the police found Adderall pills in his sock. Adderall is a drug that requires a prescription and is a federally controlled substance.

Professor Mellouli managed to avoid a conviction for illegally possessing the Adderall, which, given his immigration status, would have definitely made him removable under INA § 237(a)(2)(B)(i) for having been convicted of an offense relating to a controlled substance. Rather than a conviction for possessing the Adderall illegally, he managed to plead to a lesser offense, possession of drug paraphernalia, more specifically, the sock in which he illegally stored and concealed the Adderall.

Yes, you read that correctly, not only is it a crime to illegally possess a controlled substance, but in most states, it is also illegal to possess any object that a person uses or intends to use to:

Just because you have been outside the U.S. for more than a year does not mean you abandoned your Green Card.

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

When a non-citizen is a lawful permanent resident (LPR), they are usually allowed to leave the U.S. and return almost as easily as a citizen. There are certain circumstances when LPRs who are returning to the U.S. will be treated like other non-citizens. Those situations include when the LPR has a criminal conviction that makes them inadmissible, they left the U.S. to engage in criminal activity and when they are outside of the U.S. for more than one year.

In that third situation, often times the CBP officer at the airport will ask you why you were outside of the U.S. for so long and sometimes try to convince you to sign a Form I-407 Abandonment of Lawful Permanent Resident Status. DON’T DO IT! It is the government’s burden to prove that you abandoned your LPR status, by signing the form, you are admitting they are correct and you will likely lose your green card. There is much more analysis involved in whether you abandoned your green card then just being outside of the U.S. for more than a year.

If you find yourself in that situation, don’t sign the I-407, tell the officers you want to keep your green card and see an Immigration Judge. They will likely send you to Deferred Inspection, issue you a Form I-862 Notice to Appear and then send you to see an Immigration Judge. Even though CBP may have taken your actual green card, you are still a lawful permanent resident until an Immigration Judge issues a final order of your removal from the United States.

New Florida Case Illustrates need for Immigration Counsel in Criminal Court

Published on: February 5, 2015 | by Lasnetski Gihon Law

A Florida court recently issued a decision that will have wide-ranging effects on how non-citizen criminal defendants approach their criminal cases. This decision makes it clear that every criminal defendant who is not a U.S. citizen should strongly consider hiring or consulting with an experienced immigration attorney before they even contemplate accepting a plea bargain in their criminal case. Of course, a non-citizen criminal defendant can also choose to hire a criminal defense attorney who is also an experienced immigration attorney, but those are hard to find.

In Rosario v. State, the Fourth District Court of Appeals affirmed the denial of Ms. Rosario’s motion for post-conviction relief. Ms. Rosario is an undocumented immigrant who accepted a plea bargain and was convicted of petit theft. Ms. Rosario is married to a U.S. citizen and attempted to obtain lawful immigration status through that marriage, but was denied because of the conviction. The trial court and the appellate court denied her motion finding that because she was in the country without status already, she was facing deportation with or without a petit theft conviction.

This case illustrates the often confusing and complicated world of crimmigraiton. Even though a conviction may not directly lead to a non-citizen being deported from the country, it does not mean that the conviction will not have serious and negative immigration consequences. A criminal defense attorney has two choices when advising a non-citizen client about the immigration consequences of a plea. 1) They have a legal duty to accurately advise them of the consequences when they are truly clear or 2) they can advise the client to consult with an experienced immigration attorney before accepting a plea offer.

Two big reasons why you need both a criminal defense attorney and an immigration attorney in criminal court.

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

Every day thousands of people find themselves in criminal court having been accused of committing a crime. While criminal court can be a scary, intimidating and rough place to find oneself, it is particularly troublesome for criminal defendants who are not U.S. citizens. In addition to facing prison time or probation, non-U.S. citizens face something potentially much worse-deportation. In criminal court, defendants have a constitutional right to an attorney, so even poor criminal defendants will have counsel representing them–if they cannot afford to hire their own attorney. Regardless of whether a non-citizen defendant hires their own defense attorney or has one appointed, one of the first questions you should ask your lawyer is: what do you know about immigration law? If the answer is nothing or something close, you should immediately contact an experienced and qualified immigration attorney to help with your criminal case.

A non-citizen has so much more to worry about during their criminal case then does a U.S. citizen. There are so many more complications in a criminal case for a non-U.S. citizen, that one should not risk deportation by failing to consult with and hire an experienced immigration attorney who can advise you and your criminal defense attorney regarding your criminal case.

Here are some important reasons why every non-citizen criminal defendant should consult with and hire an experienced immigration attorney to assist in their criminal defense:

Push and Pull: the Forces that Drive Immigrants to Risk Everything to Come to the United States Part Three

Published on: January 29, 2015 | by Lasnetski Gihon Law

In my first blog in this series, 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.

Last time out I covered the strong push and pull factors that combined in Honduras, El Salvador & Guatemala to create the immigration and humanitarian crisis that we saw at the Southwest Border last summer.

This time I will cover two of our Caribbean neighbors where immigration to the U.S. is relatively very high. Cuba and Haiti send thousands of immigrants to the U.S. every year both with proper documents and without. Those who come over with authorization are usually coming to follow family members who are in the U.S. and have petitioned to bring their relatives here–pull factors. Those who are coming without authorization are usually fleeing poverty, persecution or violence–push factors.