Case Law Updates

When are the Immigration Consequences of a Criminal Conviction, “Truly Clear?”

Published on: September 2, 2014 | by Lasnetski Gihon Law

The U.S. Supreme Court ruled in Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010) that defendants have a Constitutional right to receive accurate advice from their criminal attorneys about the immigration consequences of any criminal conviction. The Florida Supreme Court has ruled that where the immigration consequences of a particular conviction are “truly clear”, “Padilla requires effective counsel to provide more than equivocal advice concerning those consequences . . . [and] in those circumstances, an equivocal warning from the trial court is less than what is required from counsel and therefore cannot, by itself, remove prejudice resulting from counsel’s deficiency.” Hernandez v. State, 124 So. 3d at 763.

The U.S. Supreme Court and the Florida courts have not defined with any specificity what it means when immigration consequences are “truly clear.” However, the most prudent course of action for any criminal attorney is to consider the consequences “truly clear” when a plea to a crime would subject a non-citizen defendant to any ground of removability under INA § 237(a)(2) or a ground of inadmissibility under INA § 212(a)(2). The problem with this approach is that under the current state of immigration law and policy, any plea to any crime, even the most minor misdemeanor can have definite and “truly clear” negative immigration consequences.

The courts have recognized that a conviction for a crime that is considered an aggravated felony mandates the Defendant’s deportation and also bars his eligibility for discretionary relief from removal. See Hernandez v. State, 124 So. 3d 757, 760 (Fla. 2013). This is certainly the type of plea to a crime that has “truly clear” consequences. In addition, any plea to any controlled substance offense (with one very narrow exception related to simple possession of less than 30 grams of cannabis or the paraphernalia related thereto and only for certain non-citizens) has “truly clear” negative immigration consequences and will subject almost every non-citizen to deportation. Any plea to any crime involving a firearm likely has “truly clear” negative immigration consequences. After that, the immigration jurisprudence becomes quite murky and there are few “truly clear” immigration consequences related to crimes of domestic violence, child abuse, child neglect, violations of protective orders or injunctions, stalking, and crimes involving moral turpitude.

SLG Attorney Provides Training to the Public Defender’s Office in Jacksonville

Published on: August 29, 2014 | by Lasnetski Gihon Law

On Friday, August 22, 2014, John Gihon, a partner with Lasnetski Gihon Law, provided a two-hour training course to attorneys with the Public Defender’s Office in Jacksonville, Florida. The training course was entitled, the Immigration Consequences of Criminal Prosecution, or “Crimmigration.”

Mr. Gihon is a former state prosecutor and former Senior Attorney with U.S. Immigration and Customs Enforcement (ICE). He has provided numerous trainings to federal law enforcement officers and federal attorneys regarding the immigration consequences of Florida criminal convictions.

This training course provided an overview of the criminal grounds of removability and inadmissibility under the Immigration and Nationality Act. During this training, Mr Gihon explained the definition of a “conviction” for immigration purposes and how convictions under many different Florida Statutes can lead to serious immigration consequences. He explained how different criminal sentences can effect non-citizens differently, depending on their immigration status. Mr. Gihon also provided some practical and tactical advice for how to limit or remove the most serious possible immigration consequences of certain criminal convictions.

The BIA Issues an Important Decision on Florida’s Sale of a Controlled Substance Statute

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

On August 15, 2014, the Board of Immigration Appeals issued a published decision in Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014), regarding the immigration consequences of a conviction for violating Florida Statute § 893.13(1)(a)(1) (sale, manufacture, delivery or possession with intent to sell, manufacture or deliver, a controlled substance). With this decision, the Board has made it clear that unless a non-citizen is convicted of actual sale or possession with the intent to sell a controlled substance, a conviction under this statute will not be an aggravated felony for immigration purposes. A conviction for manufacturing, delivering or possession of a controlled substance with the intent to manufacture or deliver, will still be a controlled substance offense, and will make a non-citizen both inadmissible and deportable, but it will not be an aggravated felony.

This is an important distinction because if a non-citizen is convicted of an aggravated felony, they are not eligible for multiple forms of Immigration relief. These forms of relief include: asylum, cancellation of removal for either permanent and non-permanent residents, voluntary departure, and possibly adjustment of status. A conviction for an aggravated felony will also make you subject to mandatory detention if you are detained by immigration, you will not be eligible for to become a citizen if you are a lawful permanent resident. If you are convicted of an aggravated felony and are not a lawful permanent resident, then you may be subject to administrative removal. Administrative removal is what is referred to as a “no-process” removal where officers from Immigration and Customs Enforcement (ICE), and not an immigration judge, decide whether you should be removed from the U.S.

The U.S. Court of Appeals for the Eleventh Circuit issued a published decision in 2013 regarding this same statute. In Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013), the Court stated that there are two ways that the government can prove that a conviction is an aggravated felony under INA § 101(a)(43)(B). The first method is through the drug trafficking crime clause and the second is through the “illicit trafficking” clause. In Donawa, the Court decided that Fla. Stat. § 893, which govern controlled substances, lacks a certain element that makes it impossible to prove that convictions under this statute were aggravated felonies under the drug trafficking crime clause. The Court left open the possibility that a conviction under Fla. Stat. § 893 could still contain a trafficking element and therefore me an “illicit trafficking” offense, and an aggravated felony, pursuant to Matter of Sancez-Cornejo, 25 I&N Dec. 273 (BIA 2010).

Consequences for Filing a Frivolous Asylum Application

Published on: July 30, 2014 | by Lasnetski Gihon Law

In 1996 the U.S. Congress changed the law regarding asylum by imposing a new potential penalty for all asylum applicants who filed applications after April 1, 1997. This new penalty would bar any applicant, who filed a frivolous application, from receiving any benefit under the Immigration and Nationality Act (INA). This means, if the Immigration Judge finds that you filed a frivolous application, you will be permanently barred from receiving benefits like, asylum, adjustment of status, and temporary protected status, etc. However, even a frivolous finding will not bar you from receiving withholding of removal under INA § 241 or protection under Article III of the United Nations Convention Against Torture (CAT).

There is a big difference between filing a frivolous asylum application and simply being found not credible by an asylum officer or an Immigration Judge. To be considered frivolous, the Board of Immigration Appeals has required satisfaction of these four elements: (1) the respondent must receive notice of the consequences of filing a frivolous application; (2) the Immigration Judge must make a specific finding that the alien knowingly filed a frivolous application; (3) there must be sufficient evidence that a material element was deliberately fabricated; and (4) there must be an indication that the respondent has been afforded a sufficient opportunity to account for any discrepancies or implausible aspects of the claim. Matter of Y-L-, 24 IN Dec. 151 (BIA 2007).

Once you sign and file a form I-589 Application for Asylum that contains false statements that are material to your claim or false documents to support the application, there is no putting the toothpaste back in the tube. Withdrawing your asylum application or going forward on another form of relief is not a defense to filing the frivolous application in the first place. Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010).

Federal Court Gives Hope to Immigrants Fleeing from Violence and Corruption in Central America

Published on: July 22, 2014 | by Lasnetski Gihon Law

The U.S. Court of Appeals for the Fifth Circuit recently issued a decision that gives hope to immigrants around the world fleeing violence and corruption in their home countries. In a decision styled, Garcia v. Holder (case number 13-60381) the federal court rejected a decision by the Immigration Judge and the Board of Immigration Appeals (BIA) that potentially corrupt police officers were not acting “under the color of law,” when they threatened Mr. Garcia with violence and death. The federal court determined that Mr. Garcia may be eligible for protection under Article III of the United Nations Convention Against Torture (CAT).

The Immigration Judge found Mr. Garcia credible when he testified that after he was deported to El Salvador, men dressed as police officers threatened him with death if he did not pay extortion money. During the weeks and months that followed, Mr. Garcia moved his residence in an attempt to avoid harm. However, groups of men continued to follow him and physically abuse him, telling him that he owed them money and needed to pay. Mr. Garcia eventually fled El Salvador, re-entering the U.S. without admission or parole. Immigration officers arrested him and attempted to remove him by reinstating his prior order of removal. Mr. Garcia claimed fear of harm if he was deported again, and his case was sent to the Immigration Court. The Immigration Judge and the BIA rejected his claim for withholding of removal and protection under the CAT. The federal court agreed that Mr. Garcia did not qualify for withholding of removal, but disagreed that he failed to establish a claim for protection under the CAT.

The Immigration Judge and the BIA found that Mr. Garcia could not say for sure that the men who threatened him and were dressed as Salvadoran police were actually police officers. Rather, Mr. Garcia thought they could have been just criminals dressed as police officers. The federal court decided that this distinction did not matter, and Mr. Garcia may still be eligible for protection under CAT. The court focused on the “color of law” analysis and used it to decide that because actual public officials may have been involved in the harm or threatened harm to Mr. Garcia, he could make a legitimate claim under CAT.

Lawful Permanent Residents can be found inadmissible to the U.S. for crimes for which they have not yet been convicted.

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

In a recent decision, the U.S. Court of Appeals for the Fifth Circuit held that the Government might rely on subsequent convictions to prove that a returning lawful permanent resident (LPR) is applying for admission and is removable from the U.S.

In this case, Maria Luz Munoz was a long-time LPR of the United States. In June of 2010, Ms. Munoz struck another woman with a club in a fight. Ms. Munoz was not arrested immediately for this crime. In December 2010, Ms. Munoz traveled to Mexico for a medical procedure and during her attempt to re-enter the U.S., she learned that she had a warrant for her arrest relating to the June incident. Customs and Border Protection (CBP) Officers did not allow Ms. Munoz to re-enter the U.S. as an LPR; rather, they paroled her into the country for prosecution and turned her over to the local authorities on her arrest warrant. Ms. Munoz was subsequently convicted of the crime. CBP officers then placed her in removal proceedings, arguing that she was inadmissible to the U.S. during her December 2010 entry, as she had been convicted of a crime involving moral turpitude.

Ms. Munoz argued that she was not properly paroled into the U.S. upon her return from Mexico, as she had not yet been convicted, or even arrested for a crime. The Circuit Court determined that the Government properly considered Ms. Munoz an arriving alien and paroled her into the U.S. The Court reasoned that it was enough that the Government believed that she had already committed the crime for them to consider her an arriving alien and to parole her in. Her subsequent conviction for the offense simply confirmed what the Government already believed, that she was inadmissible for having committed a crime involving moral turpitude.

BIA Holds That a Parent’s Continuous Residence and Physical Presence Cannot Be Imputed To The Child For TPS Purposes

Published on: June 20, 2014 | by Lasnetski Gihon Law

The BIA (Board of Immigration Appeals) has recently held that a parent’s physical presence and continuous residence cannot be imputed to the parent’s child who later enters the United States and seeks TPS (Temporary Protected Status).

In Matter of Duarte-Luna, 26 I&N Dec. 325 (BIA 2014), the BIA relied on a recent United States Supreme Court decision, where SCOTUS held that a parent’s residence in the US could not be imputed to the child for cancellation of removal purposes. In other words, for non lawful permeant residents to be granted cancellation of removal, they must have been in the United States for a period of 10 continuous years. If a parent has been in the U.S. for 10 years, but his or her child came into the U.S. less than 10 years ago, the parent’s 10 years of continuous residence cannot be imputed to the child, thus making him eligible for cancellation of removal. The child must have accrued the 10 years of continuous presence on his or her own.

Expanding on this U.S. Supreme Court case, the BIA held in Duarte-Luna that continuous residence and physical presence must be accrued by the child independently of the parent’s physical presence and continuous residence to satisfy the requirements of TPS. In order to be eligible for TPS, a person must have been physicaly present in the United States by a date specified by the Attorney General and must have maintained continuous residence in the United States since that date. If the child does not independently satisfy those requirements, he or she will not be eligible for TPS.

Three BIA Cases Come Out on Adam Walsh Act

Published on: June 5, 2014 | by Lasnetski Gihon Law

The BIA recently released three separate decisions relating to the Adam Walsh Act. The Adam Walsh Act prevents certain United States citizens from petitioning to obtain a green card for their family members. Specifically, Section 402(a)(2) of the Act bars a United States citizen who has been convicted of certain acts against minors from having family based petitions approve unless it is determined that the US citizen petitioner poses no risk to the beneficiary.

In Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014), the BIA determined that the standard of proof to be applied to these cases is within the discretion of the Department of Homeland Security (DHS), which delegated the authority to USCIS. USCIS has applied a beyond a reasonable doubt standard of proof, which is an extremely high standard. The BIA determined that it has no jurisdiction to review the standard used by USCIS. Furthermore, the BIA held that it had no jurisdiction to review whether the Petitioner proved beyond a reasonable doubt that he or she posed no risk to the beneficiary.

In Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014), the BIA held that the categorical approach does not apply to a determination of the age of the victim and the conduct underlying the offense. This means that USCIS can look past the statute of conviction and determine whether the underlying facts establish that the victim was a minor and whether the offense was a “specified offense against a minor.”

Asylum Re-Adjustment Not Allowed Says The BIA

Published on: April 29, 2014 | by Lasnetski Gihon Law

In Matter of C-J-H, 26 I&N Dec. 284 (BIA 2014), the Board of Immigration Appeals held that a person who adjusted their status to that of a lawful permanent resident after having been granted asylum cannot readjust their status to avoid removal consequences of criminal convictions.

This decision is a blow to any asylee who adjusted their status pursuant to INA 209(b), (which authorizes adjustment of status of asylees to lawful permanent residents) and who has since been convicted of a crime that makes the person removable. Matter of C-J-H prevents that person from readjusting their status, in conjunction with a waiver of inadmissibility under INA section 209(c).

The BIA reasoned that once a person becomes a lawful permanent resident pursuant to adjustment of status under section 209(b), that person no longer holds the status of an asylee, and therefore cannot adjust status as an asylee under section 209(b). The BIA stated that although section 209(a), which deals with “refugees,” specifically precludes a refugee from readjusting once they have already adjusted, and there is no similar language under section 209(b), which deals with “asylees,” the plain language of the statute and legislative history dictate that if a refugee can’t readjust, then neither can an asylee.

Attempted Possession of A Stolen Vehicle Not Categorically an Aggravated Felony in the Ninth Circuit

Published on: April 24, 2014 | by Lasnetski Gihon Law

The Board of Immigration Appeals (BIA) recently held, in Matter of Sierra, 26 I&N 288 (BIA 2014), that a conviction for attempted possession of a stolen vehicle in violation of Nevada law is not categorically an aggravated felony, under INA Section 101(a)(43)(G) and (U), as an attempted theft offense. The BIA reasoned that the statute requires the minimal mental state of “reason to believe” that the property was stolen. Therefore, under Nevada law, a person can be convicted even if they did not know the vehicle was stolen. They can be convicted simply if they had reason to believe it was stolen, but no actual knowledge.

There are two limitations to this decision.

First, the BIA is bound by precedent decisions in the Ninth Circuit and therefore the result can be different in different circuits where those courts have rendered conflicting decisions. Therefore, this holding does not necessarily apply to immigration cases arising out of different circuits.