Case Law Updates

Arizona “Dreamers” now allowed to obtain driver’s licenses

Published on: December 23, 2014 | by Lasnetski Gihon Law

The U.S. Supreme Court last week denied Certiorari to the state of Arizona in the case called Arizona Dream Act Coalition v. Brewer, which essentially paved the way for DACA recipients, or “Dreamers” to lawfully obtain driver’s licenses in Arizona.

This is a benefit that the U.S. Court of Appeals for the Ninth Circuit (the court just below the Supreme Court) had said that the state of Arizona unconstitutionally deprived dreamers of through a state policy that barred them from obtaining driver’s licenses.

The Ninth Circuit pointed out that it appeared that Arizona specifically didn’t like the President’s decision to create DACA, so the state was punishing its recipients by not allowing them to have driver’s licenses. The Court said that the problem with that decision is it made no sense from a public policy standpoint and discriminated against Dreamers, while giving driver’s licenses to other immigrants who were not citizens or lawful permanent residents.

New Published Decision from the Board of Immigration Appeals

Published on: December 19, 2014 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently issued a published decision that will effect many non-citizens who have been in the United States for many years. The Board’s decision in Matter of Velasquez-Cruz, 26 I&N Dec. 458 (BIA 2014) held that a non-citizen who is arrested and convicted of illegal entry into the United States pursuant to 8 U.S.C. s 1325, and subsequently leaves the country, may not be eligible for cancellation of removal under INA s 240A(b).

Typically, a non-citizen can obtain a green card if they are in removal proceedings and they have been in the United States for more than 10 years, have no disqualifying criminal convictions, have good moral character, and have a U.S. citizen or lawful permanent resident child, spouse or parent who would suffer exceptional and extremely unusual hardship if they were deported. This is called cancellation of removal. The 10 years in the United States can be stopped, and therefore a non-citizen disqualified from cancellation of removal, if they have departed the United States for a total of six monthy over the 10 years or more than 90 days during any one trip abroad. Typically, a short departure from the U.S. during the 10 year period, so long as it was not under the threat of deportation, will not disqualify someone from cancellation of removal.

The Board’s decision in Velasquez-Cruz changes those typical rules. Ms. Velasquez-Cruz was in the United States for over 15 years when she was arrested shortly after returning illegally to the U.S. after a short trip to Mexico. The U.S. Attorney’s Office decided to prosecute her for illegally entering the United States. She was convicted, but never turned over to U.S. Immigration and Customs Enforcement for removal. Rather, she left the United States after the conviction and then returned shortly thereafter. Ms. Velsquez-Cruz was never formally or informally deported from the U.S.

Recent Published Board of Immigration Appeals Decision

Published on: November 17, 2014 | by Lasnetski Gihon Law

Summary of Recent Published BIA Decisions:

Matter of Munroe, 26 I&N Dec. 428 (BIA 2014); The Board held that when an alien applies for a waiver pursuant to INA § 216(c)(4)(A) (I-751 waiver petition under extreme hardship theory) the only period relevant for the determination of whether the requisite hardship exists is the 2-year period immediately following the alien’s admission as a conditional permanent resident. Any hardship based upon events or facts that followed the initial two-year conditional residency period are irrelevant.

Matter of Bett, 26 I&N Dec. 437 (BIA 2014); The Board held that a Form I-9 (Employment Eligibility Verification Form) is admissible in immigration proceedings on issues of removability and relief from removal.

Attorneys Jeremy Lasnetski and John Gihon of Lasnetski Gihon Law to speak at AILA Central Florida’s Annual Immigration Conference

Published on: October 16, 2014 | by Lasnetski Gihon Law

Jeremy Lasnetski and John Gihon, partners with Lasnetski Gihon Law, will be panelists on multiple topics this weekend at AILA Central Florida’s Annual Conference in Clearwater Beach, Florida. The 28th Annual Fall Conference, entitled, “Basics and Beyond at the Beach” is a two-day conference at the Hyatt Regency Clearwater Beach Resort and Spa and begins on October 17, 2014.

http://www.aila.org/content/default.aspx?docid=49888#reg

Jeremy will be a panelist on the topics of U Visas, T Visas and VAWA benefits. U Visas are potentially available to any non-citizen who was the victim or witness to certain crimes here in the United States. VAWA benefits are potentially available for victims of domestic abuse by U.S. citizens or Lawful Permanent Residents.

When Can I File a Motion to Terminate or Administratively Close My Removal Proceedings, Part II.

Published on: October 9, 2014 | by Lasnetski Gihon Law

Last time I discussed the situations where an immigrant in removal proceedings could seek to terminate proceedings to avoid removal from the United States. Today I will discuss motions to administratively close proceedings.

While a successful motion to terminate removal proceedings usually removes an alien from jeopardy of deportation, a successful motion to administratively close proceedings simply pauses a removal case indefinitely. However, the outcome is the same as a motion to terminate, you are no longer in imminent danger of being ordered removed from the United States.

While administratively closing removal proceedings pauses your case indefinitely, at any time you or the Government can ask the Court to put your case back in front of the Immigration Judge.

Summary of Recent Published Immigration Cases by the BIA and U.S. Court of Appeals for the Eleventh Circuit.

Published on: September 25, 2014 | by Lasnetski Gihon Law

Recent Published BIA Decisions:

Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014); Board held that Fla. Stat. § 893.13(1)(a)(1) (Sale/manufacture/delivery of a controlled substance or possession with intent to do so) is divisible, and may be an aggravated felony “illicit trafficking” offense under INA § 101(a)(43)(B) under certain circumstances.

Matter of C-C-I-, 26 I&N Dec. 375 (BIA 2014): Board provided guidance on the process for terminating deferral of removal protection under Article III of the United Nations Convention Against Torture (DCAT).

Immigration Decision Bad for Non-Citizens Convicted of Marijuana Possession

Published on: September 23, 2014 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently issued a decision that will have serious negative consequences for non-citizens convicted of marijuana (cannabis) possession. See Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). The immigration laws in the U.S. make certain non-citizens removable (subject to deportation) if they are convicted of a controlled substance offense OTHER THAN a single offense involving possession for one’s own use of thirty grams or less of marijuana. Section 237(a)(2)(B)(i) of the Immigration and Nationality Act.

This means, if a lawful permanent resident or other lawfully-admitted non-citizen is convicted of possessing any federally controlled substance, other than marijuana they are subject to deportation. HOWEVER, if that same person is convicted of possession of marijuana (cannabis) the government must also prove that the amount of cannabis was over 30 grams, or the person possessed it for something other than personal use (selling it, delivering it, etc.). If the government is unable to prove the person possessed more than 30 grams of cannabis, or possessed it for sale or delivery, then the person is not subject to deportation.

Until recently, many Immigration Judges have required that the government prove that the amount was over 30 grams or not for personal use by using the same documents they use to prove most immigration charges. Those documents include the normal record of conviction, which consists of the judgment, sentence, probation order, indictment or information and a few other documents. Until recently, in most jurisdictions, the Immigration Judges were not using documents such as the police report, or property storage cards.

Pre-Trial Diversion or Intervention can still have Negative Immigration Consequences

Published on: September 17, 2014 | by Lasnetski Gihon Law

Many immigrants believe that if they accept the pre-trial intervention or diversion programs offered to criminal defendants after they are arrested, they will not face deportation from the United States. That is simply not true. To understand why, you must understand that there are two different laws that the U.S. Immigration and Customs Enforcement (ICE) use to deport people from the United States. One set of laws usually applies to people who entered the country without inspection, admission or parole. The other set of laws applies to lawful permanent residents (LPRs) and non-immigrants, including students, tourists, workers, etc.

For ICE to deport someone in the second group (LPRs, etc.) based upon certain crimes, there must be a conviction. A conviction includes anytime a criminal defendant enters a plea of guilty or no contest and is adjudicated guilty or the adjudication of guilt is withheld. A successfully completed pre-trial intervention or diversion program will result in the charges being dropped. If the charges are dropped there is no conviction and an LPR or other lawfully admitted non-immigrant cannot be deported from the U.S. based upon that crime.

HOWEVER, if that same LPR or non-immigrant successfully completes a pre-trial intervention or diversion program and the criminal charges are dropped, they can still face deportation in certain circumstances. If anyone in this second category leaves the U.S. and comes back, they are subjected to the same set of laws as someone who entered the U.S. without inspection, admission or parole.

Administrative Removal?: Object Now or Forever Hold Your Peace (and get Deported)

Published on: September 11, 2014 | by Lasnetski Gihon Law

Administrative Removal can be used to obtain an order of removal against almost any non-citizen, non-lawful permanent resident who has been convicted of an aggravated felony. Administrative removal can even be used against a condition lawful permanent resident, unless and until that person has the conditions of their permanent residency removed.

The administrative removal process almost always takes place without an Immigration Judge. If an Immigration Officer, who works for the U.S. Immigration and Customs Enforcement (ICE), believes that you qualify for administrative removal, then you will likely be detained and receive an order of removal without ever seeing an Immigration Judge.

The U.S. Court of Appeals for the Eleventh Circuit recently issued a publish decision regarding administrative removal in the case of Malu v. U.S. Att’y Gen., 2014 WL 4073115. In that case, a non-citizen was subjected to administrative removal after ICE officers determined that she was an aggravated felon and she was not a lawful permanent resident. ICE issued an order of removal against Ms. Malu, and she petitioned to the Court of Appeals saying that she was not an aggravated felon.

New Immigration Case May Open the Door to Asylum for Battered Spouses

Published on: September 9, 2014 | by Lasnetski Gihon Law

The Board of Immigration Appeals delivered a published decision recently finding that certain female victims of domestic violence may be eligible for asylum in the United States. The Board’s decision in Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014) held that “married women in Guatemala who are unable to leave their relationship,” constitute a legally cognizable “particular social group,” (PSG) and under the right circumstances, could be considered refugees and granted asylum in the United States.

Early this year, the Board clarified its position on what constitutes a PSG in two published decisions. In Matter of W-G-R- and Matter of M-E-V-G-, The Board held that an applicant seeking asylum based on his or her membership in a “particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

For the first time under this new PSG analysis, the Board has found that a victim of domestic violence, who because of religious, social or cultural norms, find it difficult to end a marital relationship, can seek protection in the United States in the form of asylum. The Board did not create a bright-line rule that all married women in Guatemala who were the victims of domestic violence are eligible for asylum. The Board also did not say that married women in other countries could not qualify for asylum.