When applying for a green card, whether the application be for a marriage green card or an immediate relative, you should assume that the U.S. Citizenship and Immigration Services (USCIS) will conduct a thorough background check. bigstock-U-s-Deportation-Immigration-Ju-383236865Filing an accurate and thorough green card application is all the more important if you have a criminal history.

USCIS will conduct a criminal background check not only on the green card applicant, but also the sponsoring U.S. citizen or the green card holder who is sponsoring his or her family member attempting to receive a green card.

This criminal background check will look for every interaction the applicant had with law enforcement in both the person’s home country as well as in the United States.

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Getting married to a U.S. citizen does not always mean that you will be approved for lawful permanent residence via a marriage visa or green card. The U.S. Citizenship and Immigration Services (USCIS) carefully reviews each and every marriage visa and green card application. Even if your marriage is the real deal, certain mistakes can result in your application being denied.

The following are common reasons marriage visas and green card applications are denied in the United States:

  1. Entering into an Invalid Marriage

On August 2nd, 2022, the Eleventh Circuit published Bastias v. U.S. Atty Gen’l, No. 21-11416, which holds that a conviction under Florida Statute §827.03(2)(d) for child neglect is a deportable offense under the Immigration and Nationality Act §237(a)(2)(E)(i).  INA §237(a)(2)(E)(i) makes a non-citizen deportable if he or she is convicted of a crime of domestic violence, crime of stalking, or a crime of child abuse, child neglect, or child abandonment.

The INA fails to define “a crime of child abuse, child neglect, or child abandonment.” Each state defines each of these terms differently, so whether a state conviction qualifies as “a crime of child abuse, child neglect, or child abandonment” must be determined by the courts.  The Board of Immigration Appeals (“BIA”) is the appellate court for immigration judges in removal hearings (commonly referred to as deportation hearings).  The BIA has interpreted this provision to include any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being.”

The offense of “child neglect” in Fla. Stat. §827.03(2)(d) requires the State to prove that the person willfully or by culpable negligence neglects a child without causing great bodily harm, permanent disability, or permanent disfigurement.  So, clearly the intent element, or mens rea, required for Florida’s child neglect (culpable negligence) fits within the BIA’s definition that includes “criminally negligent” acts.  However, this was not the issue before the Eleventh Circuit.

5BE4E053-A779-4BA9-AC75-AD273202E118The United States Supreme Court recently released a decision on June 13th, 2022 that will allow for prolonged detention of certain noncitizens who have a removal order, without the benefit of judicial review.  This decision is an unwelcome blow to those that have been held in custody for periods longer than six months because they will not be able to obtain a bond hearing in front of an immigration judge. The decision whether to continue detention or to release them on terms of supervision will remain with ICE.  

§241(a) of the Immigration and Nationality Act authorizes the detention of noncitizens who have deportation orders against them.  Under that provision, the noncitizen is supposed to be detained and removed within a period of 90 days.  This is known as the “removal period.”  §241(a)(6) provides that after the 90 day removal period, certain noncitizens may be detained or released on terms of supervision.  Any noncitizen not enumerated under §241(a)(6) that has not been removed within 90 days must be released.

§241(a)(6) allows the continued detention of noncitizens who (1) are inadmissible on certain grounds, (2) are removable on certain grounds, (3) are a risk to the community, or (4) are unlikely to comply with an order of removal.  The problem with this provision is that it does not state how long a noncitizen can be detained past the 90 day removal period.  Six months?  A year? Ten years?  Some courts have dealt with this issue by authorizing a bond hearing after six months in custody.  Such was the case here, in Johnson v. Arteaga-Martinez.  

AdobeStock_398838474-300x225Today, the Eleventh Circuit released what looks like may be a landmark decision in Said v. U.S. Atty Gen’l.  This court opinion affects all non-citizens who have or will have Florida marijuana convictions.  Under §212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, any alien who commits a violation of any state law or regulation relating to a controlled substance, as defined in 21 U.S.C. §802, is inadmissible.  Under §237(a)(2)(B), any alien who at any time after admission has been convicted of a violation of any law or regulation of a State…relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana is deportable.  So, prior to this decision, most non-citizens with marijuana convictions were deportable and/or inadmissible with the only possible exception being for a single possession of 30 grams of marijuana or less.

But in order for a marijuana conviction to qualify as a deportable offense or a crime of inadmissibility, marijuana, as defined under Florida law must qualify as a controlled substance, as defined under Federal law in 21 U.S.C. §802.  And that is exactly what the Eleventh Circuit analyzed in Said.  In Said, the Court looked at the definition of marijuana (or cannabis, as it is referred to in the Florida Statute) in Fla. Stat. §893.02(3) and the definition of marijuana under Federal law in 21 U.S.C. §802(16) to determine whether they were a match.

The Eleventh Circuit determined that the Florida definition of marijuana is broader than the federal definition.  Florida includes the mature stalk of the marijuanaAdobeStock_348186656-Converted-300x176 plant in its definition.  Federal law does not.  Therefore, a person could be convicted of a marijuana offense in Florida that involved only the mature stalk of the plant.  However, that same person could not be convicted under Federal Law.  So, it appears that a violation of Florida’s law relating to a controlled substance (marijuana) is not “as defined in 21 U.S.C. §802.”

The process of bringing your foreign fiancé to the U.S. can be challenging and difficult to navigate, as there are several requirements. A great first step you can take to jumpstart a life together with your significant other in the U.S. is to understand the legal requirements associated with bringing your fiancé to the U.S. and the initial steps of the process. 

1. Meet the Requirements

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In order to apply, you as the applicant or petitioner must meet the following requirements:

AdobeStock_483211582-300x200If you have a family member seeking permanent residence in the U.S., you may be able to help them apply for a green card. A green card allows people with a legally recognized relationship to live, work and attend school in the U.S. without needing a work visa or a student visa. 

However, the process does not come easy and can take more or less time depending on your family’s specific situation and ability to meet specific eligibility requirements. Whether you are a U.S. citizen or legal permanent resident looking to petition for a family member, there are options that may be available.

Here are some of the ways you can get started with helping your non-citizen family member to apply for a green card:

Florida Immigration Law Racially Motivated, According to Federal JudgeAdobeStock_269451886-scaled

Portions of Florida’s immigration enforcement law that was a priority for Republican governor Ron DeSantis has been struck down by a federal judge, according to a report published by the Associated Press (AP). U.S. Federal Judge Beth Bloom rejected the sections of the law banning local government sanctuary policies as well as those requiring local law enforcement to make best efforts to coordinate with federal immigration enforcement authorities. Governor Ron DeSantis signed the bill, which was pushed as a priority for his administration, into law in 2019. The governor’s office told news outlets that it would appeal Judge Bloom’s decision.

This is not the first time DeSantis has been challenged on laws passed during his administration. Others include state orders to ban mask mandates in schools, new election rules making vote-by-mail more difficult, and limits on contributions to groups seeking to change the Florida constitution, among others. 

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Fee Exemptions, Streamlined Process for Afghan Nationals Resettling in the U.S.

The Department of Homeland Security (DHS) has recently announced that filing fees will be exempted and application processing will be streamlined for Afghan nationals who were paroled into America for humanitarian reasons on or after July 30, 2021. This decision by the DHS will help to facilitate the resettlement of Afghan nationals in the United States by streamlining the processes of several requests including those for work authorizations, Green Cards, and other relevant services according to the federal agency.

Operation Allies Welcome

The Eleventh Circuit recently denied a petition for review of a decision of the Board of Immigration Appeals, effectively ending a Sri Lanka citizen’s asylum case.  In Senthooran Murugan vs. U.S. Attorney General, No. 19-13715 (August 24, 2021), a Sri Lankan citizen, Senthooran Murugan, fled Sri Lanka and entered the United States with the intent to seek asylum.  He was issued a notice to appear in removal proceedings and his case was heard before an immigration judge.

During the removal hearing, Mr. Murugan applied for asylum, withholding of removal and CAT (Convention against Torture) relief.  Mr. Murugan testified that he had been persecuted based on his membership in a particular social group (Tamils) and based on imputed political opinion.  Mr. Murugan testified that he had been arrested on three occasions in Sri Lanka and on one occasion he was held for four hours and slapped and kicked by soldiers.  Mr. Murugan testified that he thought he was going to die.

The immigration judge denied Mr. Murugan’s asylum, withholding and CAT claims and ordered him removed.  Mr. Murugan appealed to the Board of Immigration Appeals, who affirmed the immigration judge’s decision.  Mr. Murugan then appealed to the Eleventh Circuit Court of Appeals.

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