Articles Posted in Uncategorized

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Many non-U.S. citizens believe that they will be able to enter the United States without issue because they have a valid visa or are entering under the Visa Waiver Program.  Unfortunately, for some of those people, they will find out that they can not only be denied entry, they can be held in a jail until they can be returned to their home country.  Take Molly Hill for example.  Molly Hill is a citizen of Australia with an American boyfriend.  She recently flew to Hawaii on the Visa Waiver Program expecting to have a nice vacation with her boyfriend.  When she tried to enter through customs at the airport, Customs and Border Patrol (CBP) agents read through her diary, questioned her, and determined that she had not proven that she was going to return to Australia within the timeframe of the visa waiver program, which is 90 days.  Instead, they believed that she was entering to marry her U.S. boyfriend and planning to stay inside the U.S., which would be a violation of the visa waiver program.  Ms. Hill was taken into custody, spent the night in a jail, and returned to Australia the next day.  She is also banned from using the Visa Waiver Program and must now apply for a B visa (visitor visa) at an embassy if she wishes to visit the United States.  Of course, the probability of a B visa being approved in her case is low because CBP has already made a determination that she did not intend to depart the U.S. within the terms of the Visa Waiver Program.

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Immigration officials have the power to refuse entry, detain in a jail, and send arriving aliens back to their home country.

So, what happened here?  Why did CBP deny Ms. Hill’s admission?  Under the Visa Waiver Program (INA §217) , the alien must prove:

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I can’t tell you how many clients we’ve had that come in and can’t believe that a first time, minor drug conviction could lead to the deportation of themselves, their sons, their daughters, or their husbands and wives.  Countless clients who came to the United States as children and know no other home.  They may not even speak the native language of their country for citizenship.  They may have held a greencard nearly all their lives.  Lawfully going to school in the U.S. Making friends.  Playing on soccer teams.  Going to prom.  But one day, they, like so many other young people in this country, made a mistake.  Maybe they were with friends and there were controlled substances and everybody got arrested.  For the U.S. citizen, if he or she has little or no prior record, they will probably receive a withhold of adjudication, probation, counseling, community service hours and get their record sealed.  But for the non-U.S. citizen, the consequences of a drug conviction can be catastrophic.

Immigration and Nationality Act (INA) §237(a)(2)(B) states that “[a]ny alien who has been admitted to the U.S. and thereafter convicted of any controlled substance offense is deportable.”  That’s it. No ifs, ands or buts.  You are deportable.  Even if you received a withhold of adjudication and probation.  You are deportable.  The only exception is for one single offense of possession of less than 30 grams of marijuana.  File_000-1024x682There are very few forms of relief available which would allow an immigration judge to waive or cancel this basis of deportation.  You are either eligible for these forms of relief or you are not.  If you are not eligible, the immigration judge has no discretion to block your deportation, even if he or she wants to.

Too many people take the “I’ll worry about it later” approach when they are charged with a criminal drug case.  They worry about the criminal case first, and worry about the immigration consequences later.  It is paramount that any non-U.S. citizen charged with a criminal case start thinking about the immigration consequences immediately.  The criminal defense attorney may be able to work out a deal that does not make you deportable.  For example, the criminal defense attorney may be able to get you referred to a Pretrial Diversion Program where the State drops the charges if you successfully complete the program.   Even though you may have to complete more community service hours, go to drug counseling, pay supervision fees, and complete other provisions of PTI, this would be exponentially better than a withhold of adjudication and court costs on any drug case.  This is because it is the conviction, not the sentence, that makes a non-U.S. citizen deportable.  So, if the criminal defense attorney doesn’t understand immigration law, that attorney may think he or she is getting you a great deal that will save you time and money and allow you to get your record sealed, only to later find out that you pled to a deportable offense.

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USCIS, the government agency in charge of handling Temporary Protected Status (TPS) recently recommended to President Trump that he end TPS for Haiti. On April 10, 2017, USCIS sent a formal memo to John Kelly, the Secretary for the Department of Homeland Security, concluding that the country conditions in Haiti no longer support its designation for TPS. This is very scary news for the 58,700 Haitians currently in the United States under the safety and security of TPS status. Haiti’s current TPS designation is set to expire on July 22, 2017.  What can Haitian nationals do both before and after July 22, 2017 to prepare for losing TPS status? —consult with an experienced immigration attorney NOW!

What is TPS and why does Haiti have it?

TPS is a law that allows any president to designate a country for temporary protected status due to extraordinary and temporary conditions resulting from national disasters and internal conflicts (among other things). TPS allows people from that country to remain in the United States legally, apply for a work permit and live here safely, rather than having to return back to their country.

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For countless numbers of people, deferred action is the only relief from deportation that is available.  Non-citizens who entered, or were brought into the United States as children, without lawful status, and who have no pathway to lawful permanent residence may be eligible for some form of deferred action.  So what is deferred action exactly?

Deferred Action is basically a bandaid for a serious wound.  It is temporary relief for a permanent problem.  But sometimes it also serves as a bridge between unlawful status to lawful status, when a new pathway becomes available.  Deferred Action does not confer any immigration status on the person, but it does present some extremely valuable benefits.  When the government grants a person deferred action, they are providing a formal statement that the government will not seek to deport that person for a definite period of time.  The person can obtain an employment authorization card and lawfully work in the United States.  The person also can usually obtain a lawful driver’s license.

The most common form of deferred action is called DACA.  DACA is “deferred action for childhood arrivals.”  You may be eligible for DACA if you meet the following requirements:

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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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We’ve had many clients who come into our office as lawful permanent residents eligible to become a United States citizen.  We tell them the same thing, every time.  Run, do not walk, to apply to become a U.S.C.  Why?  Because as a lawful permanent resident, the Immigration and Nationality Act applies to you.  As a United States citizen, it doesn’t.  What does that mean in regular terms?

A lawful permanent resident can be deported.  A United States citizen can’t.  A lawful permanent resident can be stripped of his or her green card.  A United States citizen cannot be stripped of their citizenship, unless procured by fraud.  A lawful permanent resident can be incarcerated for a long, long time if they are arrested on even minor crimes because ICE can launch a detainer on them preventing them from bonding out.  A United States citizen doesn’t have to worry about that.  A lawful permanent resident can abandon their green card by staying outside the country for too long.  A United States citizen cannot abandon citizenship, unless intentional and deliberate on the part of the citizen.

A United States Citizen Cannot Be Deported

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Attorney General Jeff Sessions issued a memorandum (see bottom of this post to read the memorandum in full) to all federal prosecutors today demanding prioritization of immigration related prosecutions.  Specifically, he calls for the increased prosecution of 8 U.S.C. 1324 (Bringing in or Harboring Certain Aliens), 8 U.S.C. 1325 (Improper Entry by Alien), 8 U.S.C. 1326 (Reentry of Removed Aliens), 18 U.S.C. 1028A (Aggravated Identity Theft), and 18 U.S.C. 111 (Assaulting, Resisting or Impeding Officers).  It remains to be seen what practical effect this memorandum and future memorandums will have on increasing prosecutions.  Many critics of this policy fear that increased focus on immigration related offenses will result in decreased focus on other serious federal law violations, including large-scale drug offenses, firearms offenses, and other types of crimes.

There also is no indication that increased prosecution of immigration related offenses will decrease the number of people who come into the United States without authorization.  Those detained by ICE or CBP already face long terms of detention.  Charging those individuals with federal offenses will not necessary increase the amount of time those individuals are incarcerated.  The cost of prosecution to the taxpayer will far exceed any positive result relating to enforcing immigration laws.

The problem lies in prioritization memorandums like this one.  Assistant United States Attorneys across the nation will now not focus on individuals that pose the greatest risk of future immigration violations or future criminal conduct.  They will rather use a shotgun approach of prioritizing everyone, which is not only inefficient and costly, but impossible.  The government does not have the resources to implement the policies that AG Sessions has implemented.

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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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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.