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We’ve had many Cuban clients who had a false sense of security when it came to their immigration status as a Cuban Adjustment Act Lawful Permanent Resident.  They think that if they are convicted of a deportable crime, they will not be deported.  Although historically this has been the case, times are changing and more and more people are and are going to be physically deported to Cuba.

Who can be deported?

If you were convicted of a deportable offense, even if that conviction was decades ago, you would be subject to being placed in removal proceedings at any point in the future.  In other words, there is no statute of limitations for deporting someone based on a criminal conviction.  If you were placed in removal proceedings and ordered removed, but weren’t physically deported to Cuba because of existing relations at the time, you also can be deported based on that prior order at any time in the future.  The only thing standing between you and physical deportation to Cuba is whether Cuba accepts you back and whether U.S. policy to physically deport Cubans becomes more widespread.  So, once relations between Cuba and the United States thaw and certainly if the Cuban government transitions to a democratic government.

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The term “adjustment of status” is an immigration legal term that refers to anyone who has been “admitted or paroled” into the United States who “adjusts” status to that of a lawful permanent resident.  In other words, if you are inside the United States, you would adjust your status to obtain a greencard.  If you were outside the United States, you would apply at a consult for an immigrant visa and then enter as a lawful permanent resident.   Adjustment of status is different than a “change of status,” where you would change status from one temporary visa, for example an F visa (student visa) to another temporary visa, for example, and H1B visa (employment visa).  Adjustment of status is the fist step towards becoming  a United States Citizen.

Who can adjust status and obtain a green card?

There are several ways to adjust status in the United States.  The most common ways are through marriage to a United States citizen or through asylum.  However, victims of crime and those with certain employment opportunities or investment opportunities may also be able to adjust status.

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Immigration lawyers are talking about a new Board of Immigration Appeals (BIA) decision that is out.  This case addresses how a DUI (Driving Under the Influence) arrest can result in not getting a bond in deportation proceedings. Whenever a person is placed in deportation/removal proceedings, the Immigration Judge will decide whether to issue a bond that will allow the person to get out of jail while the deportation case is going on.  If you have certain criminal convictions, you may not be eligible for a bond.  You must also establish that you are not a flight risk (risk to flee and not show up to court) and that you are not a danger to the community.  If you have a criminal record, even a criminal arrest that has been dropped, it can be difficult to convince an Immigration Judge to give you a bond.  The Board of Immigration Appeals has now made it even harder after overturning an Immigration Judge’s decision to give a bond to a person who had a DUI arrest and three prior DUI convictions ten years prior.

In Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018), the Board of Immigration Appeals overruled an Immigration Judge’s decision to give Mr. Siniauskas a $25,000 bond.  Mr. Siniauskas had three prior DUI convictions, but they were more than ten years prior to his last DUI arrest.  Mr. Siniauskas was in deportation proceedings because he overstayed his visa.  However, he had several equities in his favor.  He was married to a lawful permanent resident.  He had a United States citizen child.  He had maintained gainful employment and was a business owner.  Because of these equities the judge gave Mr. Siniauskas a bond of $25,000.  However, the Department of Homeland Security appealed and the Board of Immigration Appeals reversed.

The Board of Immigration Appeals stated that the alien, in this case, Mr. Siniauskas, must establish that he does not present a danger to persons or property, is not a threat to national security and is not a flight risk.  The Board stated Mr. Siniauskas’ positive factors may have established that he is not a flight risk, but they did nothing to convince the Board that he was not a danger to persons and property.  The Board stated that driving under the influence is a dangerous crime, and the immigration judge should consider the specific circumstances surrounding the alien’s conduct.

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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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