Florida Immigration Lawyer Blog

Fourth Edition of the AILA GA-AL & Central Florida Litigation Newsletter (District Court Decisions)

Published on: April 11, 2016 | by Lasnetski Gihon Law

The fourth edition of the newsletter summarizing important immigration- related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for February and March 2016. There are not as many summaries in this issue because there were fewer decisions. Our next edition is scheduled for June 2016 and will feature another new addition, published and unpublished Board of Immigration Appeals decisions, and a new AILA Chapter contributing – South Florida.

This is a group effort of four attorneys – John Gihon, Marshall Cohen, Roberta Cooper & Bruce Buchanan.

District Court Decisions

Fourth Edition of the AILA GA-AL & Central Florida Litigation Newsletter (Circuit Court Decisions)

Published on: April 8, 2016 | by Lasnetski Gihon Law

The fourth edition of the newsletter summarizing important immigration- related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for February and March 2016. There are not as many summaries in this issue because there were fewer decisions. This issue also adds a few feature – summaries of decisions by OCAHO during this same time period. Our next edition is scheduled for June 2016 and will feature another new addition, published and unpublished Board of Immigration Appeals decisions, and a new AILA Chapter contributing – South Florida.

This is a group effort of four attorneys – John Gihon, Marshall Cohen, Roberta Cooper & Bruce Buchanan.

11th Circuit Decisions

Proposed Immigration Laws That Thankfully Died in the Florida Legislature

Published on: March 30, 2016 | by Lasnetski Gihon Law

Even though I am an Orlando immigration attorney, I practice immigration law all over the United States. I like to think of myself as an attorney on the forefront of both immigration and criminal law, and especially where to two cross over. Because of that, I try to stay on top of changes in both federal immigration law and state criminal law that may effect my immigration clients.

This legislative session in Florida has seen a large number of immigration-related bills designed to punish and deter immigrants from entering, living in, or committing crimes in Florida. I blogged about a couple of them a while back.

One bill created a very serious criminal offense for people who were present in Florida after receiving an order of deportation. Check out my blog about this bill here: https://www.floridaimmigrationlawyerblog.com/2015/09/a_law_pending_in_the_florida_l.html

I Have an Order of Removal or Deportation, What Do I Do Now?

Published on: March 24, 2016 | by Lasnetski Gihon Law

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.

Why a Motion to Vacate a Plea and Conviction in a Criminal Case may be an Immigrant’s only Defense to Deportation.

Published on: March 15, 2016 | by Lasnetski Gihon Law

Just like American citizens, sometimes immigrants find themselves on the wrong side of law. Whether its a DUI or possession of a small amount of marijuana, even the most minor criminal offense can have devastatingly negative immigration consequences for non-citizens.

Can a lawful permanent resident be deported for a DUI? The answer is no, however, that DUI combined with other criminal arrests and convictions can make USCIS deny a green card holder’s application for citizenship. Can a DUI make someone with no status deportable? Again, the answer is no, but a DUI will stop someone from getting DACA (Deferred Action for Childhood Arrivals) and other forms of Prosecutorial Discretion.

The crime that is much worse for both lawful permanent residents and for immigrants with no status is possession of any controlled substance, even a small amount of cannabis for personal use. For an immigrant with no status, a conviction for any federally controlled substance in any amount will likely lead to detention, removal proceedings and bar almost all forms of relief from removal. Yes, this includes a misdemeanor amount of cannabis for personal use.

Why Donald Trump may be the only presidential candidate who can bring us comprehensive immigration reform.

Published on: March 9, 2016 | by Lasnetski Gihon Law

That’s right, you read that correctly, Republican presidential candidate, Donald J Trump may be the only presidential candidate with a strategy, a plan and a chance to pass comprehensive immigration reform. You all probably think I am crazy, or that when I say immigration reform, I mean giant electrified fences across the Rio Grande and mass detention and deportation centers in the Sonoran dessert. But you are wrong, I am talking about the comprehensive immigration reform that provides the across the board, legalize most of the 11 million who are here, deport some, background checks for all and secures the border. Yes, I think he is the only candidate who is already executing a strategy to make it happen.

Before you stop reading and think this is a endorsement for Trump, let me assure you, I have not yet voted in next week’s Florida primary, and I honestly have not made up my mind on who I will vote for. This is the first election I remember where I have no idea who I will vote for for president this far into the cycle. I still don’t have my candidate, but I follow politics very closely and I think I am finally starting to get Donald Trump.

I tell my son all the time, most of what every politician says you shouldn’t believe because most of what they say they don’t believe. They are just saying things or taking positions for some reason or another. I believe this old adage to be true: politics is the opposite of principle.

Why the Crime of Battery in Florida is Likely no Longer a Crime of Violence under Immigration Law.

Published on: March 2, 2016 | by Lasnetski Gihon Law

The Board of Immigration appeals recently issued a published decision that may answer once and for all with a resounding NO, the question: “is Battery in Florida a Crime of Violence?” That’s right, the Florida crime of Battery, Florida Statute § 784.03, which requires that someone actually and intentionally touch or strike another person or intentionally cause bodily harm to that person, is probably not a crime of violence in immigration law. That means that it is probably never an aggravated felony crime of violence under INA § 101(a)(43)(F), and may never be a crime of domestic violence under INA § 237(a)(2)(E)(i).

This decision also means that other more serious Florida battery crimes, including Felony Battery based upon a prior Battery Conviction, Fla. Stat. § 784.03(2), Aggravated Battery on a Pregnant Victim, Fla. Stat. § 784.045(1)(b), Battery on a Law Enforcement Officer, Fla. Stat. § 784.07, and Battery on a Elderly or Disabled Person, Fla. Stat. § 784.08, are all likely not crimes that can get you deported. That is because each of these crimes is based upon the same language from the simple battery statute.

A bit of background on the statute first so that you can understand the history of the changes in the law effecting the battery statute. In 2010, the U.S. Supreme Court in a case called Johnson v. United States, 130 S.Ct. 1265 (2010), determined that the first part of Florida’s battery statute, the part about touching another person against their will, is not a crime of violence. That is because you can be convicted of battery in Florida without actually using any violent physical force to commit the crime. Rather, you can simply touch someone against their will.

My I-751 Petition to Remove the Conditions of Residence has been Denied, What do I do Now? (Part 2).

Published on: February 25, 2016 | by Lasnetski Gihon Law

If you receive your 2-year green card through your spouse, then it is VERY IMPORTANT TO REMEMBER, that 90 days before the expiration of the your card (90 days short of your 2-year anniversary of getting your card) you can file an I-751 Petition. You have until the expiration of your card to file that I-751. If you fail to file the I-751, for any reason, USCIS will terminate your conditional permanent resident status and likely issue you a Notice to Appear (NTA) to go to immigration court and prove why you should not be deported.

If you miss your 90 day filing window, don’t panic, there are sometimes excuses for filing after that time period, but you must specifically ask USCIS to accept your late-filed I-751 and give them a good reason why. If you don’t ask them to accept your late I-751 and don’t give them a good reason why you filed late, they will likely deny your I-751. If you missed your 90 day window, or preferably before you miss your window, consult with an experienced and preferably Board Certified immigration attorney to review your case and give you advice (like me: https://www.slgattorneysflorida.com/john-gihon.html). Or don’t talk to an attorney and risk wasting your money and time and having your Petition denied because you don’t know what you don’t know about immigration law.

Now that you know who has to file an I-751 and when you have to file your I-751, we can discuss how you file it. There are three different ways to file your I-751 and each depends on your marital status at the time you are ready to file (the 90 day window) and the hardship you would face if you were deported.

My I-751 Petition to Remove the Conditions of Residence has been Denied, What do I do Now? (Part 1).

Published on: February 23, 2016 | by Lasnetski Gihon Law

This is a question that many conditional permanent residents (married immigrants with 2 year green cards) face when they receive their decision letter on their I-751 Petitions. My I-751 was denied, what do I do now? Do I need an attorney? Am I going to be deported? What are my options? Can I appeal the denial decision? Can I file another I-751? Can I marry someone else and try to adjust status again? What are the bonafides of a marriage?

These are all extremely good questions and I will answer all of them. But before I answer the questions, its important to begin from the beginning about the entire process. If everyone understands where we have been, its easier to know where we are going.

When a non-citizen immigrant marries a U.S. citizen or lawful permanent resident (LPR), the U.S. citizen/LPR can file something called an I-130 Petition for Alien Relative. If approved, this Petition will allow the non-citizen spouse to receive an immediate relative visa that allows the immigrant to become a lawful permanent resident. If the immigrant’s spouse is in the United States at the time of marriage and eligible to adjust status in the U.S. (because they were admitted or paroled into the United States at their last entry), the petitioning spouse can file the I-130 and the non-citizen beneficiary can file an I-485 Application to Adjust status all at the same time. If the non-citizen beneficiary is not in the U.S. or not eligible to adjust status in the U.S., then the I-130 Petition comes first, and if approved, the non-citizen spouse can attempt to consular process and obtain their green card through a U.S. embassy overseas.

I Received a Notice to Appear from Immigration, What do I do Now?

Published on: February 18, 2016 | by Lasnetski Gihon Law

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.