Case Law Updates

New Published Administrative Appeals Office Decision Regarding Immigration Cases

Published on: May 26, 2015 | by Lasnetski Gihon Law

Recent Published AAO Decisions:

Matter of Leacheng International, INC., 26 I&N Dec. 532 (AAO 2015); In the context of an I-140 Petition for a multinational manager or executive, there is no requirement that the beneficiary has been “doing business” with an outside third party pursuant to 8 C.F.R. § 204.5(j()2) for at least one year immediately preceding the petition. The AAO found that it was sufficient that the beneficiary was “doing business” within an affiliated multinational organization.

Matter of Christo’s INC., 26 I&N Dec. 537 (AAO 2015); In an odd context for this issue to arise, the AAO found that the INA § 204(c) marriage fraud bar does not apply to completely fabricated marriages, that is, marriages that never actually existed in the first place. The AAO found that in order for the bar to apply the alleged perpetrator must have at least attempted or conspired to enter into a fraudulent marriage. Where there is evidence that the alien submitted false documents regarding a fictitious marriage, but did not actually enter into a marriage or attempt or conspire to do so, the bar does not apply.

Summary of Recent Attorney General, Board of Immigration Appeals Decisions and Immigration-Related Decisions from the U.S. Court of Appeals for the Eleventh Circuit

Published on: May 20, 2015 | by Lasnetski Gihon Law

Recent Published AG Decision:

Matter of Silva-Trevino, 26 I&N Dec. 550 (AG 2015); Attorney General Holder (now former) completely vacated former AG Mukasey’s decision in 2008’s landmark decision, Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008)-please hold your applause to the end. AG Holder recognized that five of the seven Federal Circuits that have ruled on the issue have overturned at least the third prong of the Silva-Trevino analysis which allowed Immigration Judges to go beyond the categorical and modified categorical analyses and use evidence outside the record of conviction. This is one of two recent decisions that spend quite a bit of time focusing on the needed for a unitary Federal policy on Immigration. This may be an indication that the Board may be looking for additional areas of immigration jurisprudence where there is a conflict in the Circuits and attempt to rectify the conflicts through BIA or AG decisions.

Recent Published BIA Decisions:

Judge’s Ruling Could Pave the Way for the Release of Thousands of Immigrant Women and Children

Published on: March 2, 2015 | by Lasnetski Gihon Law

A Federal Court Judge recently banned the U.S. Government from using deterrence as a basis for denying the release of women and children from immigration detention facilities.

Article about the Decision:

http://www.huffingtonpost.com/2015/02/20/immigration-detention-injunction_n_6724662.html

Two New Published Board of Immigration Appeals Decisions Regarding Aggravated Felonies and Deriving Citizenship

Published on: February 17, 2015 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently published two new cases. Matter of Chairez discusses how Immigration Judges and the Board will employ the modified categorical approach as it applies to whether criminal statutes are divisible. Matter of Cross discusses who is considered a legitimated child for the purposes of deriving U.S. citizenship in countries that have removed the legal difference between children born in or out of wedlock. I have summarize each case below.

Matter of Chairez, 26 I&N Dec. 478 (BIA 2015); The Board held the divisibility analysis for a criminal statute is subject to the interpretation of the Circuit Court decisions in the jurisdiction where the removal proceedings take place. The Board recognized that their decision in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) is still good law and the Board will follow the Descamps v. U.S., 133 S.Ct. 2276 (2013) guidance for how to apply the divisibility analysis of the categorical approach. However, in Circuits where the Courts have interpreted Descamps differently than the Board has, the Board will follow that divisibility anaysis of that Circuit. In footnote 3, the Board identified that two CIrcuits (the Fourth and Eleventh) follow the Chairez divisibility analysis, while three (First, Third and Tenth) use a different analysis, and there is confusion in the NInth as to what they use.

Matter of Cross, 26 I&N Dec. 485 (BIA 2015); The Board held that for the purposes of a citizenship derivation analysis, a child has been “legitimated” by their biological parent if the jurisdiction in which they were born or previously lived eliminated the legal distinctions between children born in or our of wedlock. This case eliminated the rule that the subsequent marriage of the biological parents was the only way to legitimate a child born out of wedlock in Jamaica.

When can a sock get you deported?

Published on: February 11, 2015 | by Lasnetski Gihon Law

Moones Mellouli came to the United States legally and became a lawful permanent resident. He went to college and attained multiple advanced educational degrees and became a professor. In 2009 he was arrested for DUI and the police found Adderall pills in his sock. Adderall is a drug that requires a prescription and is a federally controlled substance.

Professor Mellouli managed to avoid a conviction for illegally possessing the Adderall, which, given his immigration status, would have definitely made him removable under INA § 237(a)(2)(B)(i) for having been convicted of an offense relating to a controlled substance. Rather than a conviction for possessing the Adderall illegally, he managed to plead to a lesser offense, possession of drug paraphernalia, more specifically, the sock in which he illegally stored and concealed the Adderall.

Yes, you read that correctly, not only is it a crime to illegally possess a controlled substance, but in most states, it is also illegal to possess any object that a person uses or intends to use to:

Just because you have been outside the U.S. for more than a year does not mean you abandoned your Green Card.

Published on: February 9, 2015 | by Lasnetski Gihon Law

When a non-citizen is a lawful permanent resident (LPR), they are usually allowed to leave the U.S. and return almost as easily as a citizen. There are certain circumstances when LPRs who are returning to the U.S. will be treated like other non-citizens. Those situations include when the LPR has a criminal conviction that makes them inadmissible, they left the U.S. to engage in criminal activity and when they are outside of the U.S. for more than one year.

In that third situation, often times the CBP officer at the airport will ask you why you were outside of the U.S. for so long and sometimes try to convince you to sign a Form I-407 Abandonment of Lawful Permanent Resident Status. DON’T DO IT! It is the government’s burden to prove that you abandoned your LPR status, by signing the form, you are admitting they are correct and you will likely lose your green card. There is much more analysis involved in whether you abandoned your green card then just being outside of the U.S. for more than a year.

If you find yourself in that situation, don’t sign the I-407, tell the officers you want to keep your green card and see an Immigration Judge. They will likely send you to Deferred Inspection, issue you a Form I-862 Notice to Appear and then send you to see an Immigration Judge. Even though CBP may have taken your actual green card, you are still a lawful permanent resident until an Immigration Judge issues a final order of your removal from the United States.

New Florida Case Illustrates need for Immigration Counsel in Criminal Court

Published on: February 5, 2015 | by Lasnetski Gihon Law

A Florida court recently issued a decision that will have wide-ranging effects on how non-citizen criminal defendants approach their criminal cases. This decision makes it clear that every criminal defendant who is not a U.S. citizen should strongly consider hiring or consulting with an experienced immigration attorney before they even contemplate accepting a plea bargain in their criminal case. Of course, a non-citizen criminal defendant can also choose to hire a criminal defense attorney who is also an experienced immigration attorney, but those are hard to find.

In Rosario v. State, the Fourth District Court of Appeals affirmed the denial of Ms. Rosario’s motion for post-conviction relief. Ms. Rosario is an undocumented immigrant who accepted a plea bargain and was convicted of petit theft. Ms. Rosario is married to a U.S. citizen and attempted to obtain lawful immigration status through that marriage, but was denied because of the conviction. The trial court and the appellate court denied her motion finding that because she was in the country without status already, she was facing deportation with or without a petit theft conviction.

This case illustrates the often confusing and complicated world of crimmigraiton. Even though a conviction may not directly lead to a non-citizen being deported from the country, it does not mean that the conviction will not have serious and negative immigration consequences. A criminal defense attorney has two choices when advising a non-citizen client about the immigration consequences of a plea. 1) They have a legal duty to accurately advise them of the consequences when they are truly clear or 2) they can advise the client to consult with an experienced immigration attorney before accepting a plea offer.

Summary of Recent Board of Immigration Appeals Decisions and Immigration-Related Decisions from the U.S. Court of Appeals for the Eleventh Circuit

Published on: January 16, 2015 | by Lasnetski Gihon Law

Recent Published BIA Decisions:

Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015); The Board held that in order for a crime to be considered a crime involving moral turpitude (CIMT) a criminal recklessness mens rea coupled with no actual physical harm was sufficient to meet the definition of a CIMT. The Board noted that in the CIMT context, no actual infliction of physical harm was necessary to rise to the level of “reprehensible conduct” required for a CIMT. It is enough that the potential risk of harm the statute penalizes is sufficiently serious. In the case at issue, the Texas statute penalized recklessly placing another person in “imminent danger of serious bodily harm.”

Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015); The Board held that in order for a consensual sex offense involving a 16 or 17-year old victim (statutory rape) to be considered “sexual abuse of a minor,” (an aggravated felony under INA § 101(a)(43)(A)), there must be a meaningful difference in age between the victim and the perpetrator. While the Board did not provide a definition os “meaningful difference in age,” they concluded that the more than three-year age difference required in the California statute at issue was sufficiently meaningful, and therefore the conviction was for an aggravated felony-sexual abuse of a minor.

New Published Board of Immigration Appeals Decision Regarding When Statutory Rape is an Aggravated Felony

Published on: January 14, 2015 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently published a decision that provided guidance on when state statutory rape statutes are considered sexual abuse of a minor aggravated felonies. In Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015), the Board held that in order for a consensual sex offense involving a 16 or 17-year old victim (statutory rape) to be considered “sexual abuse of a minor,” (an aggravated felony under INA § 101(a)(43)(A)), there must be a meaningful difference in age between the victim and the defendant. While the Board did not provide a definition for “meaningful difference in age,” they concluded that the more than three-year age difference requirement in the California statute at issue was sufficiently meaningful.

In Florida, this decision will have no practical effect on the immigration consequences of our “statutory rape” statutes. The two primary statues in Florida that are consensual sex offenses that can be considered aggravated felonies under INA § 101(a)(43)(A) (sexual abuse of a minor) are Fla. Stat. §§ 800.04 (lewd acts on a child) and 794.05 (unlawful sexual activity with a child). Fla. Stat. § 800.04 prohibits sexual acts, even consensual ones, with victims between the ages of 12-15. Likewise, Fla. Stat. § 794.05 prohibits sexual acts, even consensual ones, with victims who are 16 or 17 years old with partners who are 24 years old or older.

The Board was quite clear that the “meaningful difference in age” requirement does not apply to statutes that criminalize only consensual sexual acts with victims under the age of 16. Therefore, this decision has no effect on the immigration consequences of a conviction for violating Fla. Stat § 800.04, as the victim under this statute is always sunder the age of 16. A conviction for an offense under Fla. Stat § 800.04 is a categorical aggravated felony-sexual abuse of a minor offense.

New Published Board of Immigration Appeals Decision Regarding Crimes Involving Moral Turpitude

Published on: January 12, 2015 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently published a decision wherein they addressed the level of harm required for a conviction to constitute a crime involving moral turpitude (CIMT). In Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015) the Board held that in order for a crime to be considered a CIMT, a criminal recklessness mens rea coupled with no actual physical harm was sufficient to meet the definition of a CIMT. The Board noted that in the CIMT context, no actual infliction of physical harm is necessary to rise to the level of “reprehensible conduct” required in the CIMT analysis. It is sufficient that the potential risk of harm the statute penalizes is sufficiently serious. In the case at issue, the Texas statute penalized recklessly placing another person in “imminent danger of serious bodily harm.” The Board found that even the low level of intent required–recklessness, combined with the seriousness of the potential harm was sufficient to categorize the crime as a CIMT.

This case creates a very low threshold for a crime to be considered a CIMT. Traditionally, in order for a crime to be a CIMT, two essential elements must be present, reprehensible conduct attached to some level of scienter (intent). In criminal law, specific intent is the highest level of intent, with criminal recklessness resting towards the bottom of continuum, just above criminal negligence and strict liability (no intent).

The Board had previously held that the lower the level of criminal intent is for a crime, the higher the level of harm caused must be in order for the crime to be a CIMT. See Matter of Solon, 24 I&N Dec. 239 (BIA 2007) (“. . . as the level of conscious behavior decreases, i.e., from intential to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude.”).