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adobe-spark-post-2You’re not a United States citizen.  You came into the United States with no documentation.  You have been the victim of a crime.  You’re scared.  You don’t feel like you can go to the police because you might get deported.  What can you do?


What should I do if I was the victim of a crime? 


If you were the victim of a crime, there are options for you, even if you are here without documents.  You just need to talk to an immigration lawyer to discuss those options.  The government has provided protection for those non-citizens who are here without documents and have been the victim of a crime.  It is called a U visa.  The government has created a safe harbor for people who have been the victim of a crime.  If you were the victim of a particular crime and you cooperate with law enforcement, you may be eligible for a U visa and ultimately, a green card.

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You filed an application or petition with the United States Citizenship and Immigration Services (USCIS).  You’re patiently waiting for a response.  But none comes. Months and months have passed and you have no idea what is going on with your case.  What can you do?

Unfortunately, USCIS has become more and more unfriendly to the very people it has been created to serve.  Recent changes in procedure have followed the current governmental trend to make it more difficult for people to lawfully immigrate into the United States.  USCIS has recently ended an email address that was available to immigration attorneys to obtain information on their client’s cases.  Infopass appointments have been curtailed.  And paralegals and other attorney personnel is no longer able to call the customer service line to obtain information on a client’s case.  In short, the government is giving the cold shoulder to immigrants, immigration attorneys and United States citizens with immigrant family members.

So what are your options?

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The Eleventh Circuit Court of Appeals has recently ruled that a conviction for Domestic Battery by Strangulation is categorically a crime of violence.  This means that any non-U.S. citizen who is sentenced to 1 year or more on a Florida Domestic Battery by Strangulation would be convicted of an “Aggravated Felony” for immigration purposes and would almost certainly be subject to mandatory deportation.  You can read the full decision here: United States v. Shawn Dixon, No. 17-10503


What is a Crime of Violence?


There are certain criminal convictions that are deadly to any non-U.S. citizen.  “Aggravated felonies” will lead to almost certain mandatory deportation in most cases.  A conviction for an aggravated felony is to be avoided at all costs.  Aggravated felonies are defined in the Immigration and Nationality Act in §101(a)(43).  One particular type of aggravated felony is a crime of violence where you have been sentenced to incarceration for 1 year or more. (INA §101(a)(43)(F)).  If you are incarcerated for 1 day less than 1 year for a crime of violence, it would not be an aggravated felony.  It still could crime involving moral turpitude or some other deportable offense, but it would not be an aggravated felony.

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Is it better to imprison 9 innocent people and 1 guilty person or to free 9 guilty people and imprison 1 innocent person?


On December 11th, 2017, Akayed Ullah, a Bangladeshi immigrant who became a lawful permanent resident, strapped a pipe bomb to himself and attempted to conduct a terrorist attack in New York City.  Fortunately, the device detonated prematurely and he was the only person who sustained serious injury.  But many are calling for the cessation of constitutional rights in cases like Mr. Ullah’s.  Immigration attorneys and criminal defense attorneys understand the slippery slope of this argument and how dangerous it really would be to pick and choose who the constitution applies to and who it doesn’t apply to on U.S. soil.


What’s the big deal.  Why should “terrorists” be afforded constitutional rights like the right to remain silent and the right to an attorney?

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“…[a] date which will live in infamy…”

Excerpt of a speech given by President Roosevelt after the December 7th, 1941 Japanese attack on Pearl Harbor


A dark stain on our nation’s history resonates profoundly in today’s immigration discussion.  Immigration attorneys throughout the country are passionately trying to hold back a surging tide of anti-immigrant sentiment, specifically toward the Muslim community.  Not only anti-illegal immigration sentiment, but also anti-immigrant sentiment, in general.  The United States has never been a country of “the good of the many outweigh the needs of the few.”  We have always been a nation that values, above all else, individualism.  No matter the cost, we have always held fast to the ideal that we will defend our individual freedoms to the last.  Yet, on December 7th, 1941, that national identity was sacrificed for “the greater good.”  Not only by the president and the legislature.  But by the highest court in the land, the United States Supreme Court.

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Consider this:  You are a Lawful Permanent Resident who has lived in the United States for nearly your entire life.  You have always been in the United States legally.  One day, you get arrested for a crime you did not commit.  Or maybe you did violate the law, but it was a very minor charge and you have never been in trouble before.  Like so many United States citizens in the same situation, you are offered a pretrial intervention program.  That is, the prosecutor diverts your case from the court system, has you perform some community service, pay some fines, maybe take a class, and if you complete all of the requirements, they drop the charges.  Under the laws of the State of Florida, you would even be able to get the charge expunged from your record.  After all, the law in this land of opportunity is set up to give people second chances when they make a mistake.  So, you enter the pretrial diversion program, do everything you were asked to do, successfully complete it, and the charges are dropped.  All is well, right?

Well, not according to the Board of Immigration Appeals (BIA).  In a recent decision, the Board of Immigration Appeals held that even if a case is referred to a pretrial diversion program and ultimately dropped, it can serve as a conviction for immigration purposes and be used as the basis for deportation.  What? How can that be? Here is the thought process:


What is the definition of a “conviction” for immigration purposes? 

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Violation of an Injunction for Protection is a landmine for non citizens.  If you, or a loved one, is not a United States citizen and have been served with an injunction or charged with violating an injunction, call an experienced immigration attorney for a consultation.  Here’s why:

The Immigration and Nationality Act includes a provision that makes a non-citizen deportable if they have an injunction for protection (aka restraining order) against them and the court determines that person violated the injunction by engaging in the conduct the injunction was meant to prevent.  INA §237(a)(2)(E)(ii)


What is an Injunction for Protection?

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adobe-spark-post-1As an immigration attorney, when I talk to my immigration clients about their future, the first thing I tell them is to become a United States citizen as fast as they can, if they want to spend the rest of their life in the United States.  I tell them to run, not walk, to the United States Citizenship and Immigration Services Office to file an N-400 Application to naturalize.  I pick up the bulky Immigration and Nationality Act and tell them they can have a bonfire and burn that book after they naturalize, because the Immigration and Nationality Act no longer applies to them.  They will become full fledged United States citizens with all the bells and whistles.  But with everything in life, especially in the law, there are exceptions.  And one of those exceptions is through a process called denaturalization.


What is Denaturalization?


Denaturalization is the process of undoing a person’s naturalization and stripping that person of United States citizenship.  This process is typically initiated pursuant to an allegation that the person obtained their citizenship through fraud or misrepresentation or that they were not eligible for naturalization.  It is very difficult for the government to denaturalize someone as the burden of proof is very high and it must be done in federal court.

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President Trump’s administration has recently changed a longstanding rule that has placed immigration lawyers on notice relating to a common occurrence in immigration law.  Many non-U.S. citizens enter the United States on Visitor Visas for many different reasons.  To visit family, to take a vacation, to see what the United States is like.  It is not uncommon for non-citizens find love and decide to get married to a U.S. citizen while in the U.S. on vacation.  While many may call this impetuous, it is not a situation that is confined to citizens and non-citizens.  The difficulty arises when you apply for a green card based on your marriage to a United States citizen when your marriage was within a short period of time after you entered the United States.  You could be denied a green card based on what is called “preconceived intent.”  So, how do you establish that you did not have preconceived intent to get married and stay in the United States when you entered on a temporary visa?  Well, the government has just made it a little harder with the implementation of the 90 day rule.  This rule replaces the old 30/60 day rule.


WHAT IS PRECONCEIVED INTENT?


Temporary visas are just that.  Temporary.  In order to obtain a temporary visa, you must establish that you intend to depart the United States by the time your temporary visa expires.  For example, if you have a visitor visa that is good for six (6) months, when you enter the United States, you must have the intent to depart the United States within six (6) months.  If the government believes that you intended to stay in the United States longer than your temporary visa at the time you entered, this is called preconceived intent.  Prior to entering the United States, you conceived the intent to stay longer than authorized.  If you have preconceived intent, this is a violation of your status.  The key issue for a determination of preconceived intent lies in what your intent was at the time you were admitted into the United States.  It is not preconceived intent if you change your intent after you were admitted.  For example, if you truly entered the United States simply to visit and intended to leave within the six months allotted under your visitor visa, but you fell in love and only decided to stay after you were already admitted, then this would not be preconceived intent.  Regardless of your true intent, however, the problem arises when you apply to adjust your status and obtain a green card based on the marriage to a United States citizen that occurred within a short period of time after your admission to the United States.  Immigration officials will not simply take your word for it.  They will look to outside evidence to establish whether they make a finding that you had preconceived intent.  Let’s take a look at the old rule that USCIS (United States Customs and Immigration Services) used to follow.

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Sometimes, there just is no relief in deportation proceedings that will allow the person to stay here.  Whether it’s because of lack of ties to the United States, lack of hardship to U.S. citizen relatives, criminal history, or other factors, you just may not be eligible under any provision of the Immigration and Nationality Act to remain in the United States.  No cancellation of removal.  No waivers. No asylum or withholding of removal.  Your immigration attorney has looked at your case from every angle and there just is no possible way to keep you here.  In those cases, there is often one last option that may have some very beneficial consequences.  It is called Voluntary Departure.  Florida immigration attorneys often request voluntary departure in the Orlando Immigration Court in both detained and non-detained cases.  So what is Voluntary Departure?


WHAT IS VOLUNTARY DEPARTURE?


Voluntary Departure is a form of relief that allows a person to leave on his or her own rather than under a removal (deportation) order.  Although, the person does have to leave the United States, it can have some really important benefits that help the person lawfully come back into the United States on a later date.