Florida Immigration Lawyer Blog

Sequestration Results in Release of Detained Immigrants

Published on: March 11, 2013 | by Lasnetski Gihon Law

The budget crisis in the Federal Government has led to a process known as sequestration. The government has furloughed government employees and otherwise reduced spending on governmental entities. One area where sequestration has been felt is in immigration proceedings. Many immigrants who were previously detained during their immigration proceedings have been and will be released from custody to save the Federal Government money.

The released individuals will still be subject to conditions of release and will have to check in with DHS (Department of Homeland Security) as a condition of their release. From a cost effective standpoint, it costs the federal government $186 per day to detain an immigrant. In comparison, it costs between 30 cents to $14 per day to release them on bond.

It remains to be seen how many more immigrants will be released from custody on conditions of bond. It also remains to be seen how sequestration will affect the backlog of cases in other immigration areas.

Florida’s Resisting an Officer With Violence is a Crime Involving Moral Turpitude

Published on: February 28, 2013 | by Lasnetski Gihon Law

The Eleventh Circuit Court of Appeals recently held that Florida Statute 843.01, Resisting an Officer With Violence, is a crime involving moral turpitude for immigration purposes. In Cano vs. U.S. Attorney General, the Eleventh Circuit determined that because the statute in its entirety is a general intent crime, and because the statute requires more than just a mere touching, but an act of intentional violence, the statute falls under the umbrella of crimes deemed to be crimes involving moral turpitude.

The significance of this decision is that an immigrant who pleads guilty to resisting an officer with violence in the State of Florida will be convicted, whether he or she receives a withhold or not, for immigration purposes of a crime involving moral turpitude. That conviction may be the basis for inadmissibility or deportability and could lead to denial of immigration benefits, a green card, denial or reentry into the country or deportation.

This is just one of many criminal convictions that can have dramatic consequences for non-U.S. citizens. Never plead guilty or no contest to a criminal charge without first seeking the advice of an experience immigration attorney.

United States Supreme Court Holds Padilla Is Not Retroactive

Published on: February 20, 2013 | by Lasnetski Gihon Law

In a devastating blow to non U.S. Citizens with criminal convictions, the United States Supreme Court recently held in Chaidez v. United States that an immigrant who pled guilty to a criminal charge based on bad or no advice about the immigration consequences of their criminal plea from their criminal defense attorney can not go back and challenge that prior conviction if it is older than the law allows. In the State of Florida, a person can only challenge a criminal conviction that happened within the last two (2) years.

This decision can have traumatic consequences for non U.S. citizens who have old, and even relatively minor criminal convictions. For example, a person that has been in the United States for twenty (20) years as a lawful permanent resident who has a criminal conviction from 15 years ago could be deported based on that criminal conviction. Even if his criminal defense attorney told him at the time that the conviction would not result in his deportation.

The Supreme Court reasoned that the decision in Padilla, which held that a criminal defense attorney had an obligation to affirmatively advise his or her client of the immigration consequences of the criminal plea, was a new rule and does not apply retroactively. Therefore, only those individuals who were convicted after the Padilla decision came out and within the time frames allowed by law will be able to challenge prior criminal convictions.

President’s Speech Calls For Immigration Reform, But Provides No Specifics

Published on: February 13, 2013 | by Lasnetski Gihon Law

In the State of the Union Address, President Obama called for immigration reform. Unfortunately, the term “immigration reform” has only served as a generic term thrown around on the Congress floor. Proposed reform could have both positive and negative implications on non U.S. citizens. The President called for added security at the border, specifically at the Mexican border. The President has also called for a streamlining of the immigration process to alleviate the burdensome and inexcusable delay in processing visas, which has kept U.S. citizens away from their non U.S. citizen families for extended periods of time. It can take years for an immediate relative to get to the U.S. to live with his or her U.S. citizen spouse.

As President’s often do in State of the Union speeches, the President left out specifics or any policies that he plans on supporting that would the people that are already in the United States with no lawful status. The President’s policy related to the Dream Act seems to suggest that there is some hope for children that were brought to the United State’s without legal status, however, the current policy is simply a band aid on a bullet wound. DACA recipients are not provided legal status and are merely given a temporary reprieve from deportation.

The long and short of the President’s speech leaves us with as many questions as we had before the speech. And that probably won’t change any time soon.

Know Your Right to Bond

Published on: February 1, 2013 | by Lasnetski Gihon Law

This is a general outline that explains the law related to bond in immigration cases:

A) GENERAL 1) Bond should be granted unless there is a finding that the individual is a) a threat to national security b) likely to abscond c) a poor bail risk.

2) Bond Procedure a) ICE initially sets bond.

Eight Senators Unveil New Bipartisan Immigration Policy

Published on: January 28, 2013 | by Lasnetski Gihon Law

Eight United States Senators came out with a general, non-detailed plan for future immigration policy in the United States. One of the senators included Florida Republican, Marco Rubio. It is a four point plan that includes:

1) Creating a path to citizenship for those who are already here without legal authority, while securing the borders so more people cannot enter without inspection;

2) Allowing more unskilled employees to enter the country legally if the employer can establish that there are no U.S. employees to fit the employment qualifications;

Know your Aggravated Felonies

Published on: January 24, 2013 | by Lasnetski Gihon Law

The term “aggravated felony” for immigration purposes is a much misunderstood term. One of the reasons is that an “aggravated felony” need not be aggravated, nor a felony. But it is important to understand what constitutes an aggravated felony for immigration purposes, because a conviction for an aggravated felony comes with serious immigration consequences.

An “aggravated felony” is defined in the Immigration and Nationality Act, under Section 101(a)(43) and includes:

Murder, rape, or sexual abuse of a minor;

Change in Immigration Processing Allows Some Immigrants to Apply For Status While in the United States

Published on: January 7, 2013 | by Lasnetski Gihon Law

The Obama Administration announced plans to change a long standing policy in immigration processing. As of March, immigrants who are here without lawful status will be able to apply for a waiver of their unlawful status while here in the United States. Previously, those individuals would have to leave the United States, which would activate a 3 or 10 year bar to reentry, and then would have to apply at the embassy for a waiver of that bar. This process could take many years and keep families apart for long periods of time.

Now, immigrants that have accrued unlawful status will be able to apply for a waiver here in the United States, which will dramatically reduce the amount of time they will have to spend outside the country.

As with most immigration applications, there will be a processing fee charged by the government of $585. The waiver does not change the requirements of the waiver, which requires the applicant to establish that their removal from this country would cause extreme hardship to their United States Citizen immediate relative. This has historically been a difficult, although not insurmountable, task.

Florida Supreme Court Holds that Padilla is Not Retroactive

Published on: November 22, 2012 | by Lasnetski Gihon Law

The Florida Supreme Court has held that the case of Padilla v. Kentucky is not retroactive. The United States Supreme Court held in Padilla that criminal defense counsel had the affirmative duty to investigate and advise their clients of the immigration consequences of their criminal plea. If the criminal defense attorney failed to give proper advise relating to immigration consequences or gave no advice at all, the client could file a motion to vacate the conviction and attempt to withdraw the plea. However, in Florida, under Florida Rule of Criminal Procedure 3.850, a criminal defendant can only challenge convictions that happened within the last two (2) years prior to filing the motion. The question left by the U.S. Supreme Court was whether Padilla was retroactive, applying to convictions that happened prior to the Padilla decision, thus allowing criminal defendants to attack convictions that are more than two years old.

The Florida Supreme Court held in Hernandez v. State, that while a trial court’s pro forma warning to a criminal client that their criminal plea can subject them to immigration consequences is not in and of itself enough to deny a motion to vacate a conviction based on ineffective assistance of counsel, Padilla does not apply retroactively.

This decision is a blow to countless non U.S. Citizens who were provided incorrect or no advice on how their criminal plea could and would lead to their deportation. However, their is a silver lining. The highest court in the land, the United States Supreme Court, should render a decision on this same issue early next year in the case of U.S. v. Chaidez.

Avoid These Immigration Pitfalls

Published on: September 21, 2012 | by Lasnetski Gihon Law

Immigration law is one of the most complex and evolving areas in the American legal system. Immigration law is administrative and thus allows for a great deal of discretion by those in authority. It is extremely important for immigrants to understand some common pitfalls that can have serious negative immigration consequences. The consequences can be severe, leading to incarceration and deportation, even for lawful permanent residents who have lived here their entire lives. The following are a few pitfalls that clients have fallen into along the way.

1) Change your residence with the AR-11 Form within 10 days of moving.

Under INA Section 265(a), “Each alien required to be registered under this title who is within the United States shall notify the Attorney General in writing of each change of address and new address within ten days from the date of such change and furnish with such notice such additional information as the Attorney General may require by regulation.”