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A recent United States Supreme Court case will make it harder for the government to deport a non – United States citizen for being convicted of certain offenses.  In Atty Gen’l vs. Dimaya, the Supreme Court found that a provision of the Immigration and Nationality Act was overly broad and unconstitutional, thus rendering convictions for certain offenses no longer subject to removal.  In an extension of an already decided Supreme Court case, the Court analyzed 8 U.S.C. §1101(a)(43)(f), which defines an “aggravated felony” to include, among other things, “a crime of violence,” as defined in 18 U.S.C. §16, where a term of imprisonment of one year or more is rendered.  The case turned on the definition of a “crime of violence.”  Let’s take a look at the Supreme Court’s decision and how it affects immigration law.

What is a crime of violence?

First, we have to know what a “crime of violence” is.  Immigration law makes any non-citizen, including longstanding lawful permanent residents (LPRs) deportable if they are convicted of an “aggravated felony.”  Among other things, an “aggravated felony” includes a “crime of violence” with a sentence of 1 year or more.  So, what is a crime of violence?

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Criminal convictions are a primary basis for deportation or denial of immigration benefits, like greencards, visas, and naturalization.  A criminal conviction can have devastating consequences on your immigration options.  Some convictions may result in deportation.  Some may not.   Immigration is controlled by federal law.  Most convictions are based on state law.  Whether a state conviction qualifies as a deportable offense under federal law is often a complicated analysis that is commonly litigated in courts across the country.  The best course of action when you are charged with a crime is to consult with an experienced immigration lawyer who has criminal law experience.  Then make sure your criminal defense lawyer and immigration lawyer discuss the best options for your criminal case and how a conviction will affect your immigration case.  But what if it’s too late?  What if you already have the criminal conviction and are only now being told that you can be deported because of that conviction.  Or what if you are being told that you can’t apply for an immigration benefit because of your criminal conviction?

Is there anything I can do?

Once you plead guilty or no contest or are found guilty by a jury, it becomes increasingly difficult to fight your conviction.  However, there may be an avenue of hope.  The law in the State of Florida allows you to go back two years to challenge a conviction if your criminal defense attorney made certain mistakes.  For example, if your criminal defense attorney did not properly advise you of the immigration consequences of your criminal conviction, you may be able to reopen the case and negotiate a more immigration friendly plea.

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Unfortunately, immigration lawyers around the country often get calls from petrified non-U.S. citizens who are in an abusive relationship and living in fear of deportation.  A United States citizen who marries a non-citizen can file an I-130 petition on the spouses behalf to pave the way for the immigrant spouse to obtain a greencard.  If the United States citizen withdraws the petition, the immigrant spouse can no longer adjust based on the marriage to the U.S. citizen.  So, in some situations, U.S. citizens take advantage of this leverage to abuse and control the non-citizen spouse.  They say things like, “If you don’t do what I say, I’ll have you deported.”  They threaten to call immigration and withdraw the petition.  They threaten deportation if the abused non-citizen spouse contacts law enforcement.  For these reasons, the government passed a specific act to protect these victims.  It is called the Violence Against Women Act (VAWA) and it allows an abused spouse to obtain a greencard, even if the U.S. citizen spouse withdraws the I-130 petition and even if they divorce their U.S. citizen spouse.

What is VAWA?

The Violence Against Women Act, or VAWA is a  federal law that was passed in 1994 designed to address domestic violence against women.  The law is broad and encompassing, but one of the goals of VAWA was to protect immigrant victims of domestic violence and to help them escape their abusers.  VAWA allows immigrant spouses or intended spouses of United States citizens and Lawful Permanent Residents to obtain a greencard (lawful permanent resident status) without the need to have the U.S. citizen or LPR spouse petition on his or her behalf.

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The Immigration and Nationality Act (INA) §237(a)(2)(E)(i) makes a non – U.S. citizen deportable if he or she is convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment.  Immigration attorneys often litigate whether a state conviction can be the basis for a federal deportation.  The language in the state statute often must fit squarely within federal definitions to result in deportation based on a specific conviction.  For example, the Board of Immigration Appeals (BIA) has determined that a conviction for “child endangerment” in Pennsylvania is not a conviction for “a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment,” for purposes of INA §237(a)(2)(E)(i). In re Jose De Jesus Murillo Gutierrez, A207 105 449 (BIA May 12, 2017)

What is the Federal Immigration Law relating to child abuse?

Any person who is not a United States citizen and is convicted for a crime of child abuse is deportable.  It doesn’t matter how long you have been in the United States or if this was a first offense or if you are a good person.  The statute is clear.  Now, you may have what is called a “form of relief,” available, but that is another issue.  That is kind of like an affirmative defense.  But a one time conviction for a child abuse offense can and usually will lead to the government issuing and filing a Notice to Appear, initiating deportation proceedings.

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Immigration lawyers throughout the country sighed together last week when a new United States Supreme Court decision came down concerning people in deportation proceedings.  The Supreme Court was deciding whether a person who has been detained for four years while his deportation case was pending was entitled to a bond redetermination.  In an unfortunate decision, the Court held that under the current state of the law, a person in deportation proceedings is not entitled to a bond redetermination.

What were the facts of the case?

Alejandro Rodriguez, a Mexican citizen and lawful permanent resident (greencard holder) of the United States, was convicted in 2004 of a drug offense and a theft offense.  Mr. Rodriquez was placed in deportation proceedings (referred to as removal proceedings) and he was detained in a jail during those proceedings.  His removal case began in April 2004.  In July 2004, Mr. Rodriguez was ordered deported by an immigration judge.  Mr. Rodriguez elected to exercise his right to appeal the immigration judges decision to the Board of Immigration Appeals (BIA).  The BIA agreed with the immigration judge that Mr. Rodriguez was subject to mandatory removal based on his conviction.  Mr. Rodriguez then appealed the BIA’s decision to the Ninth Circuit Court of Appeals.  His case languished before the court of appeals and in May 2007, more than 3 years after he was initially detained, Mr. Rodriguez filed habeas petition in Federal District Court claiming that he was entitled to a bond hearing.  The District Court initially denied his habeas petition, but the Ninth Circuit Court of Appeals reversed the District Court’s ruling and the District Court eventually entered an injunction basically requiring that a bond hearing be held every six months where the government must prove by clear and convincing evidnece that further detention is justified.  The government appealed and the United States Supreme Court took up the case.

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A criminal conviction can make you deportable.  It doesn’t matter how long you’ve been in the United States.  It doesn’t matter how good a person you are.  It doesn’t matter if you have never been to the country of which you are a citizen.  The law is cut and dry when it comes to whether you are deportable.  If you have been convicted of certain crimes, you are deportable.  But…there is good news.  Whether you are deportable is only the first part of the analysis.  Once an immigration judge determines that you are deportable, he or she must next determine whether you are eligible for any forms of relief from deportation.  This is where your lack of prior criminal record, how good of a person you are and other factors may come into play.  However, you must meet certain eligibility criteria in order to be eligible for each different form of relief.  Today, I want to focus on one particular, and often used, form of relief: Cancellation of Removal.

What is Cancellation of Removal?

Cancellation of Removal is a form of relief from deportation.  Once the judge has determined that you are deportable, the judge can cancel that removal if you qualify.  It basically wipes the slate clean and you are able to keep your greencard, or you may be able to obtain a greencard, even if you entered without any documents. The bad news is that for several of the requirements, you either are or you are not eligible, and there may be nothing you can do to become eligible if you don’t qualify.

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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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