General Immigration

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.

Two big reasons why you need both a criminal defense attorney and an immigration attorney in criminal court.

Published on: February 3, 2015 | by Lasnetski Gihon Law

Every day thousands of people find themselves in criminal court having been accused of committing a crime. While criminal court can be a scary, intimidating and rough place to find oneself, it is particularly troublesome for criminal defendants who are not U.S. citizens. In addition to facing prison time or probation, non-U.S. citizens face something potentially much worse-deportation. In criminal court, defendants have a constitutional right to an attorney, so even poor criminal defendants will have counsel representing them–if they cannot afford to hire their own attorney. Regardless of whether a non-citizen defendant hires their own defense attorney or has one appointed, one of the first questions you should ask your lawyer is: what do you know about immigration law? If the answer is nothing or something close, you should immediately contact an experienced and qualified immigration attorney to help with your criminal case.

A non-citizen has so much more to worry about during their criminal case then does a U.S. citizen. There are so many more complications in a criminal case for a non-U.S. citizen, that one should not risk deportation by failing to consult with and hire an experienced immigration attorney who can advise you and your criminal defense attorney regarding your criminal case.

Here are some important reasons why every non-citizen criminal defendant should consult with and hire an experienced immigration attorney to assist in their criminal defense:

Push and Pull: the Forces that Drive Immigrants to Risk Everything to Come to the United States Part Three

Published on: January 29, 2015 | by Lasnetski Gihon Law

In my first blog in this series, I explained that there are multiple causes to our immigration dilemma here in the United States. Some of these causes have their genesis in the U.S., and encourage people to risk it all to come here; I have coined these causes, pull factors. There are also strong influences present in almost every country in the world that encourage residents of those nations to want to leave, these are push factors. So in countries where there are strong push factors and similarly strong pull factors to the U.S., we see the largest migration of people seeking to enter the United States legally or otherwise.

Last time out I covered the strong push and pull factors that combined in Honduras, El Salvador & Guatemala to create the immigration and humanitarian crisis that we saw at the Southwest Border last summer.

This time I will cover two of our Caribbean neighbors where immigration to the U.S. is relatively very high. Cuba and Haiti send thousands of immigrants to the U.S. every year both with proper documents and without. Those who come over with authorization are usually coming to follow family members who are in the U.S. and have petitioned to bring their relatives here–pull factors. Those who are coming without authorization are usually fleeing poverty, persecution or violence–push factors.

Push and Pull: the Forces that Drive Immigrants to Risk Everything to Come to the United States Part Two

Published on: January 27, 2015 | by Lasnetski Gihon Law

In my last blog I explained that there are multiple causes to our immigration dilemma here in the United States. Some of these causes have their genesis in the U.S., and encourage people to risk it all to come here, I have coined these causes, pull factors. There are also strong influences present in almost every country in the world that encourage residents of those nations to want to leave, these are push factors. So in countries where there are strong push factors and similarly strong pull factors to the U.S., we see the largest migration of people seeking to enter the United States legally or otherwise.

Here is a prime example of where strong push and pull factors combine to create the immigration and humanitarian crisis that we saw at the Southwest Border last summer.

Murder rates in three Central American countries, El Salvador, Guatemala and Honduras are outrageously high relative to the rest of the world. Accordingly, personal and financial security are extremely low in these three places. Those are very strong push factors; if you don’t know if you or your family has a future because you could be killed or kidnapped tomorrow, why go to school, why get an education, why go to work, why save up money just to lose it all to violence? People in these three countries have a strong incentive to want to leave and find a better life somewhere else. In addition to those strong push factors, there are multiple equally strong pull factors that encourage those fleeing Central America to choose to come to the U.S. rather than seeking safety and security in different country.

Push and Pull: the Forces that Drive Immigrants to Risk Everything to Come to the United States

Published on: January 23, 2015 | by Lasnetski Gihon Law

I have had the pleasure of giving immigration presentations to many different groups since I began practicing immigration law. These groups include lawyers on both sides of the issue, law enforcement, business leaders, and just regular Joes and Janes looking for insight into this divisive and emotional topic. My background as a state criminal prosecutor, federal immigration attorney, private attorney representing criminal defendants and immigrants facing deportation and finally as the husband of an immigrant has provided me with a unique and balanced perspective on the issue. I am neither pro-amnesty nor pro-deportation, I believe that we have to live by the laws that govern us all, but if we do not agree with the laws, we have a duty and obligation to change them. This is especially true when we have a broken system and broken laws that do not work–as is the case with our immigration system in the United States.

Estimates have our population of people in the U.S. without lawful immigration status somewhere north of 10 million. Regardless of your political beliefs as to what we should do with this large group–grant them amnesty or deport them all–we should all be able to agree that a legal system that has at least 10 million people actively violating it every day, is not working well.

There no single answer for how to fix our broken immigration system and as long as we live in the greatest country in the history of the world – the United States – people across the globe will risk their money and lives to come to the U.S., legally or not.

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.”).

More Cubans are Risking their Lives to come to the U.S. after President Obama’s Cuba Announcement

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

On December 17, 2014, the President announced that the U.S. government would begin the process to resume normal diplomatic relations with the communist regime in Cuba. This announcement signified a change to the five-decade long policy of isolating the Cuban government. The announcement also sparked a new fear of the end of the U.S. welcoming Cuban immigrants with open arms and with lawful immigration status–as long as they could reach American soil.

While the President did not announce any official plans to end the Cuban Adjustment Act–the law that allows Cuban nationals to obtain entry and lawful permanent residence in the U.S.–the rumors of its demise have clearly reached Cuba.

The Havana Times recently reported that the number of Cubans attempting to flee Cuba and enter the U.S. after the President’s announcement has increased dramatically. The numbers have also greatly increased from this time last year: