Family Immigration

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.

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.

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).

What Can and Should President Obama do about Immigration without Congress?

Published on: August 13, 2014 | by Lasnetski Gihon Law

President Obama has said that if Congress failed to act to pass comprehensive immigration reform before the August Summer recess, he would be forced to take action on the matter. Many legal scholars and activists have chimed in on what they think the President should do and what they think he legally could do unilaterally about immigration.

The President has provide mixed messages over the years about what he wants to do compared to what he thinks he can legally do. The President has been quite clear that he wants to sign the comprehensive immigration reform bill passed by the U.S. Senate in the summer of 2013. This bill would immediately give millions of immigrants eligibility for lawful status. This bill would provide millions with a pathway to a green card (lawful permanent residence) and a pathway to citizenship.

Nothing the President has talked about, and nothing argued for by immigration activists can do what Congress can do through comprehensive immigration reform. What the President is currently contemplating is to expand deferred action to a much larger group of immigrants currently without status. The President first provided deferred action through DACA (Deferred Action for Childhood Arrivals), back in 2012, to a limited number of young immigrants who met certain criteria. Deferred action is not a legal status like having a green card, or having a work or student visa. Deferred action is simply a temporary, revocable promise that the government will not seek to remove you, and will allow you to work, so long as you don’t break certain rules.

House Bill H.R. 5137 – Asylum Reform and Border Protection Act—The Biggest change in immigration law since 1996?

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

Republicans in the U.S. House of Representatives recently proposed a bill aimed at dealing with the crisis currently taking place on the Southwest Border. House Judiciary Chairman, Rep. Bob Goodlatte introduced the bill and provided the following support for it:

“Since President Obama won’t take actions to quell this activity, the Asylum Reform and Border Protection Act stops many of the Administration’s policies that have caused this crisis, such as exploiting weak asylum standards to approve baseless claims and stringent environmental policies that prevent Border Patrol agents from doing their job of securing the border. Additionally, the bill reforms current law to make sure we get these unaccompanied minors home safely and quickly. We must swiftly take action to end this crisis-children’s lives are at stake, and so is the integrity of our immigration system.”

If anyone reads this bill, you can see that the scope of the bill is extremely broad, its effects are tremendous, and the change that it will make to our existing immigration laws will dwarf every action the President has ever taken regarding immigration.

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.

New York City Council approves law to grant ID cards to undocumented immigrants

Published on: July 15, 2014 | by Lasnetski Gihon Law

The New York City Council recently announced that it approved the Mayor’s plan to give photo identification cards to all New York City residents, regardless of their immigration status. The Council and the Mayor heralded this effort as a victory for residents, many of whom do not have a current lawful immigration status and cannot obtain state or federal photo identifications.

The cards will be accepted by city agencies, will let parents enter school buildings and provide proof of identity for people stopped by police – which could mean the difference between spending a night in jail and being released.

Private institutions will not be legally required to accept the ID, but the city hopes banks and landlords will take it from people trying to open bank accounts or sign leases. (New York Post Article)

Why the President’s Pledge to Send More Resources to the Southwest Border is Good for the Migrant Children and Families Coming to the U.S.

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

Last Monday, President Obama announced that he was sending additional resources to the Southwest Border to help with the growing humanitarian crisis involving tens of thousands of unaccompanied minors and families migrating from Central American. The President vowed these resources in part, to more quickly return “unlawful migrants” to their home countries and discourage additional children and families from following in their same dangerous path to the U.S.

The President said regarding these expanded resources: the Department of Justice (DOJ) and DHS [Department of Homeland Security] are deploying additional enforcement resources — including immigration judges, Immigration and Customs Enforcement attorneys, and asylum officers — to focus on individuals and adults traveling with children from Central America and entering without authorization across the Southwest border. The DHS is working to secure additional space that satisfies applicable legal and humanitarian standards for detention of adults with children. This surge of resources will mean that cases are processed fairly and as quickly as possible, ensuring the protection of asylum seekers and refugees while enabling the prompt removal of individuals who do not qualify for asylum or other forms of relief from removal.

Many pro-immigration advocates have criticized the President’s decision. They argue that returning migrant children and families to their home countries is inhumane and in many cases we would be sending these migrants back to the crime and poverty that are the very reasons they fled to the U.S. However, this promise of expanded resources will actually help ensure that those migrants, many of whom are eligible for immigration benefits in this country, will receive a full and fair determination of their eligibility, rather than face lengthy detention and summary denials of benefits.

Florida ‘Dream Act’ to soon benefit some kids of illegal immigrants

Published on: June 26, 2014 | by Lasnetski Gihon Law

TAMPA —

A new state bill is about to go into effect granting in-state tuition to children of some illegal immigrants.

The law would allow undocumented students in Florida to pay in-state tuition to attend Florida colleges.

Know Before You Go: Affidavit of Support Issues

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

For most green card based petitions, the Petitioner (i.e. U.S. citizen or U.S. employer) must file an Affidavit of Support as a sponsor to the beneficiary (intending immigrant). The Affidavit of Support is a contract between the sponsor and federal government and is enforceable. Should the intending immigrant become a Public Charge (i.e. receive public assistance, including food stamps, Medicaid, etc.), then the government can come after the sponsor to reimburse it for those expenditures. The Sponsor has a contractual obligation to maintain the beneficiary at a certain percentage above the Federal Poverty line (usually 125% above the poverty line; 100% the poverty line for active duty military).

The Affidavit of Support process has three steps. First, the sponsor must demonstrate that he or she has sufficient household income. Second, the sponsor can use certain assets belonging to the sponsor, the beneficiary, or other household members to reach the required poverty line. Third, the sponsor may secure a joint sponsor to help reach the required poverty line.

USCIS will use the Affidavit of Support and accompanying evidence to determine whether they believe the beneficiary will become a Public Charge. USCIS will consider many factors including current job status, earning from current and past employment, and current use of welfare benefits by the sponsor or the sponsor’s family members. An Affidavit of Support can be rejected even if it establishes an income over the required poverty line if USCIS believes the person will not be able to maintain the income.