General Immigration

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.

I was convicted for a crime, but my attorney never told me I would be deported, what do I do now?

Published on: August 21, 2014 | by Lasnetski Gihon Law

This is a common occurrence in the state of Florida. Non-citizens are arrested for crimes and they enter pleas to the charges without being told of the probable or possible immigration consequences of their convictions. Many criminal defense attorneys have little or no knowledge of the immigration laws of the United States. So many times, a non-citizen enters a plea in a criminal case, only to find out after that the plea is being used by the U.S. Immigration and Customs Enforcement (ICE) to try to deport them. What should you do if you, a family member or friend is in this position?

The easy answer is to go back in time and hire a criminal defense attorney who has extensive experience and knowledge of immigration law. The more practical answer is to hire an immigration attorney who is also an experienced criminal defense attorney who can try to go back and fix the errors in your criminal case.

Hiring an experienced criminal defense attorney who is also knowledgeable and experienced in immigration law is a non-citizens’ best chance to protect both their rights in criminal court and their immigration status. A criminal attorney with immigration knowledge and experience can make sure that a non-citizen knows the truly clear consequences of any plea to a criminal offense and can explain the probable and possible immigration consequences of any criminal conviction. A skilled and knowledgable criminal attorney can work with the prosecutors to reduce or remove the immigration consequences in a criminal case.

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.

If I seal or expunge my criminal record, will that protect my immigration status?

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

The short answer is no for a sealed record, but likely yes for an expunged record.

If you seal a criminal record, it does not erase it for immigration purposes. Therefore, the Department of Homeland Security (DHS) can still use that criminal record to seek to remove you from the U.S. or bar you from certain forms of immigration relief.

If you expunge your criminal record, that means that although you were arrested or prosecuted, the charges were eventually dropped and you were not convicted. As there is no conviction, it is difficult for DHS to use that criminal record against you. There are a few instances where DHS does not need a criminal conviction for a crime in order to argue that you should be deported because of it. Those circumstances involve crimes related to controlled substance traffickers, controlled substance offenses and crimes involving moral turpitude. In very specific and rare circumstances, DHS can try to deport you if they can prove that you admitted to a criminal offense that involved a controlled substance or a crime involving moral turpitude. This would only apply if you are present in the U.S. without having been admitted or paroled (i.e. without inspection) or if you are an arriving alien (someone at the border trying to come into the U.S.).

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).

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.

What do you mean I am a Terrorist?

Published on: July 14, 2014 | by Lasnetski Gihon Law

It is something that most non-citizens do not even think of when they apply for asylum here in the United States. However, it happens on a not-so-infrequent basis. A non-citizen, who was persecuted in their home country, comes to the U.S. for help, for protection, for asylum, and then out of nowhere, they are denied assistance because the U.S. government says they are a terrorist. The reactions are very often ones of confusion, befuddlement and bewilderment. What do you mean I am a terrorist, I have never been arrested or convicted of a crime, I have never done anything wrong, I am the victim!?

This is the position that many non-citizens find themselves in after an asylum office interview gone wrong. But what does the U.S. government mean when they say that you area terrorist, when you’ve never done anything wrong? Beginning in the late 1990’s, the U.S. government began designating organization around the word as terrorist organizations. Congress passed laws saying that if you are a member of one of these organizations, or help them raise money, or help them plan their terrorist attacks, then you are not allowed into the United States and if you are already here, they will try to deport you.

However, most people who are accused of engaging in terrorist activities have never been a terrorist or willingly helped any known terrorists. Many times the government accuses people of providing material support to terrorist organizations. If the government has evidence that you provided material support to a terrorist organization, they can deny you adjustment of status, asylum, withholding of removal and many other immigration benefits.