Removal/Deportation

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

Published on: January 27, 2015 | by Lasnetski Gihon Law

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.

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

Published on: January 23, 2015 | by Lasnetski Gihon Law

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.

Summary of Recent Board of Immigration Appeals Decisions and Immigration-Related Decisions from the U.S. Court of Appeals for the Eleventh Circuit

Published on: January 16, 2015 | by Lasnetski Gihon Law

Recent Published BIA Decisions:

Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015); The Board held that in order for a crime to be considered a crime involving moral turpitude (CIMT) a criminal recklessness mens rea coupled with no actual physical harm was sufficient to meet the definition of a CIMT. The Board noted that in the CIMT context, no actual infliction of physical harm was necessary to rise to the level of “reprehensible conduct” required for a CIMT. It is enough that the potential risk of harm the statute penalizes is sufficiently serious. In the case at issue, the Texas statute penalized recklessly placing another person in “imminent danger of serious bodily harm.”

Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015); The Board held that in order for a consensual sex offense involving a 16 or 17-year old victim (statutory rape) to be considered “sexual abuse of a minor,” (an aggravated felony under INA § 101(a)(43)(A)), there must be a meaningful difference in age between the victim and the perpetrator. While the Board did not provide a definition os “meaningful difference in age,” they concluded that the more than three-year age difference required in the California statute at issue was sufficiently meaningful, and therefore the conviction was for an aggravated felony-sexual abuse of a minor.

New Published Board of Immigration Appeals Decision Regarding When Statutory Rape is an Aggravated Felony

Published on: January 14, 2015 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently published a decision that provided guidance on when state statutory rape statutes are considered sexual abuse of a minor aggravated felonies. In Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015), the Board held that in order for a consensual sex offense involving a 16 or 17-year old victim (statutory rape) to be considered “sexual abuse of a minor,” (an aggravated felony under INA § 101(a)(43)(A)), there must be a meaningful difference in age between the victim and the defendant. While the Board did not provide a definition for “meaningful difference in age,” they concluded that the more than three-year age difference requirement in the California statute at issue was sufficiently meaningful.

In Florida, this decision will have no practical effect on the immigration consequences of our “statutory rape” statutes. The two primary statues in Florida that are consensual sex offenses that can be considered aggravated felonies under INA § 101(a)(43)(A) (sexual abuse of a minor) are Fla. Stat. §§ 800.04 (lewd acts on a child) and 794.05 (unlawful sexual activity with a child). Fla. Stat. § 800.04 prohibits sexual acts, even consensual ones, with victims between the ages of 12-15. Likewise, Fla. Stat. § 794.05 prohibits sexual acts, even consensual ones, with victims who are 16 or 17 years old with partners who are 24 years old or older.

The Board was quite clear that the “meaningful difference in age” requirement does not apply to statutes that criminalize only consensual sexual acts with victims under the age of 16. Therefore, this decision has no effect on the immigration consequences of a conviction for violating Fla. Stat § 800.04, as the victim under this statute is always sunder the age of 16. A conviction for an offense under Fla. Stat § 800.04 is a categorical aggravated felony-sexual abuse of a minor offense.

New Published Board of Immigration Appeals Decision Regarding Crimes Involving Moral Turpitude

Published on: January 12, 2015 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently published a decision wherein they addressed the level of harm required for a conviction to constitute a crime involving moral turpitude (CIMT). In Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015) the Board held that in order for a crime to be considered a CIMT, a criminal recklessness mens rea coupled with no actual physical harm was sufficient to meet the definition of a CIMT. The Board noted that in the CIMT context, no actual infliction of physical harm is necessary to rise to the level of “reprehensible conduct” required in the CIMT analysis. It is sufficient that the potential risk of harm the statute penalizes is sufficiently serious. In the case at issue, the Texas statute penalized recklessly placing another person in “imminent danger of serious bodily harm.” The Board found that even the low level of intent required–recklessness, combined with the seriousness of the potential harm was sufficient to categorize the crime as a CIMT.

This case creates a very low threshold for a crime to be considered a CIMT. Traditionally, in order for a crime to be a CIMT, two essential elements must be present, reprehensible conduct attached to some level of scienter (intent). In criminal law, specific intent is the highest level of intent, with criminal recklessness resting towards the bottom of continuum, just above criminal negligence and strict liability (no intent).

The Board had previously held that the lower the level of criminal intent is for a crime, the higher the level of harm caused must be in order for the crime to be a CIMT. See Matter of Solon, 24 I&N Dec. 239 (BIA 2007) (“. . . as the level of conscious behavior decreases, i.e., from intential to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude.”).

More Cubans are Risking their Lives to come to the U.S. after President Obama’s Cuba Announcement

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

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:

DHS Extends Temporary Protected Status and Employment Benefits for Syrians

Published on: January 7, 2015 | by Lasnetski Gihon Law

The Department of Homeland Security (DHS) announced that it has extended and re-designated Syria for Temporary Protected Status (TPS) and extended employment benefits to Syrian nationals in the United States on F-1 Student Visas.

DHS Secretary Janet Napolitano originally designated Syria for TPS protection on March 29, 2012. At that time, Syrian nationals who were in the U.S. with or without lawful status could apply for TPS protection if they met certain other criteria including having little or no criminal record.

TPS is a benefit afforded to citizens and nationals of certain countries when their home country is suffering from an on-going armed conflict, environmental disaster or other extraordinary and temporary disaster.

Fox News Latino: “Immigration executive action raises fears among farmers of worker shortage”

Published on: December 29, 2014 | by Lasnetski Gihon Law

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.

Normalizing Diplomatic Relations with Cuba could mean Deportation for Thousands

Published on: December 26, 2014 | by Lasnetski Gihon Law

Last week, President Obama announced that he would begin the process to normalize relations with Cuba:

“President Obama on Wednesday ordered the restoration of full diplomatic relations with Cuba and the opening of an embassy in Havana for the first time in more than a half-century as he vowed to “cut loose the shackles of the past” and sweep aside one of the last vestiges of the Cold War.” – New York Times.

Included in “normalizing” relations with Cuba will be restoring the diplomatic channels that have official been down for over 50 years. Restoring diplomatic relations means that Cuba will eventually begin issuing travel documents to, and accepting Cuban nationals who are deported from the United States.

Arizona “Dreamers” now allowed to obtain driver’s licenses

Published on: December 23, 2014 | by Lasnetski Gihon Law

The U.S. Supreme Court last week denied Certiorari to the state of Arizona in the case called Arizona Dream Act Coalition v. Brewer, which essentially paved the way for DACA recipients, or “Dreamers” to lawfully obtain driver’s licenses in Arizona.

This is a benefit that the U.S. Court of Appeals for the Ninth Circuit (the court just below the Supreme Court) had said that the state of Arizona unconstitutionally deprived dreamers of through a state policy that barred them from obtaining driver’s licenses.

The Ninth Circuit pointed out that it appeared that Arizona specifically didn’t like the President’s decision to create DACA, so the state was punishing its recipients by not allowing them to have driver’s licenses. The Court said that the problem with that decision is it made no sense from a public policy standpoint and discriminated against Dreamers, while giving driver’s licenses to other immigrants who were not citizens or lawful permanent residents.