Naturalization/Citizenship

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

Published on: October 7, 2014 | by Lasnetski Gihon Law

For the poor unfortunate immigrant who finds themselves in removal proceedings, the process can be scary, confusing, and heartbreaking. Many immigrants are so intimidated by the removal process that they purposely fail to appear for court. The worst thing you can do if you are an immigrant who finds yourself in removal proceedings is not to show up. The best thing that you can do is hire an experienced immigration attorney who can review your case, explain your rights, and fight for you to be able to stay in the United States.

Once your are in removal proceedings, two of the ways that an an experienced immigration attorney can protect you from removal are to terminate the removal proceedings against you, or to administratively close them. Each action has a different outcome and different reasons to chose that strategy; however, each one can protect you from removal.

There are two general reasons to pursue a motion to terminate removal proceedings. One, is because the law says you can, the other is because the Government has a policy that says you can.

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).

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.).

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.

I am not a U.S. Citizen and I have been Arrested for a Crime, do I need to worry about the Immigration Consequences?

Published on: July 7, 2014 | by Lasnetski Gihon Law

The quick and easy answer is YES. No matter what the crime is for which you were arrested, if you are not a citizen of the U.S., you should immediately begin worrying about how that arrest will effect your immigration status. While the immigration consequences of your criminal prosecution may not be the first thing on your mind while you sit in jail for a crime, it needs to be on the top of the list.

As a criminal defendant in jail, the first thing you are likely thinking about is just getting out of jail as soon as possible, no matter the cost or consequences. However, if you are a criminal defendant, in jail or out, who is not a citizen of the U.S. you need to take your time before accepting or making a plea deal in your criminal case.

You many think that a withhold of adjudication with court costs and a fine is a great deal, and it may be for some people. However, if you are not a citizen of the U.S., pleading to any crime can have direct and long-lasting negative effects on your current immigration status, your ability to obtain a lawful immigration status, or eligibility to apply for citizenship.

Know Before You Natz – Good Moral Character Issues Could Preclude You From Becoming A U.S. Citizen

Published on: September 6, 2013 | by Lasnetski Gihon Law

One of the common mistakes I see lawful permanent residents make is applying for naturalization when they have a criminal conviction without consulting with an immigration attorney. If that prior conviction is a deportable offense, USCIS can, and often will, issue a Notice To Appear to the applicant and place the applicant in removal proceedings. Even if USCIS does not place the applicant in removal proceedings, the naturalization application may be denied based on a finding that the applicant lacks “good moral character.”

In order to be eligible for Naturalization, an applicant must establish to USCIS that he or she has “good moral character” for a statutory period of time. For most people, that statutory period will be five years. For those applying for naturalization based on their marriage to a U.S. Citizen, the statutory period is three years. There are some exceptions to these statutory periods that are beyond the scope of this blog.

The Immigration and Nationality Act proscribes certain automatic bars to establishing “good moral character.” This means that if you fall under any of the automatic bar categories, you cannot establish good moral character and your naturalization application will be denied. You would have to reapply after the statutory period ran.

Have you registered for the Selective Service?

Published on: February 25, 2011 | by Lasnetski Gihon Law

Did you know that the United States Citizenship and Immigration Services (USCIS) can deny your N-400 Application to become a U.S. Citizen if you are a male that failed to register for the Selective Service between your 18th birthday and your 26th birthday? Many of our clients had no idea about their obligation to register with the selective service. Find out if you are required to register here. If you are a male between 18 and 26 and you are required to register, you may do so online at www.sss.gov. If you are a male that was required to register, but didn’t, and you are 26 or older, consult with an immigration attorney before you apply for citizenship.