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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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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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