Removal/Deportation

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.

Refusing to Honor Immigration Detainers will put Residents at Risk, not Protect Them

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

Recent news articles across the country highlight the growing trend where cities have begun refusing to honor detainers issued by Federal immigration officers to local jails. These small towns and large metropoli are known as “sanctuary cities.” In these approximately 200 municipalities nationwide, when a person is arrested and put into the local jail, local law enforcement officers will release the person from jail even when Federal immigration officers have sent a written request to the jail to hold the person for a brief time. This written request, know as an ICE (Immigration and Customs Enforcement) detainer or hold, is a request to the local jail to keep the person in custody for no more than 48 hours after they are ready for release. The purpose of this hold is to allow immigration officers time to decide whether or not the person is a non-citizen and in the country in violation of the criminal or civil immigration laws.

The articles largely focus on isolated cases where the detainers where issued against people who turned out to be U.S. citizens, or who were held for more than 48 hours after they should have been released. The articles pinpoint the handful of cases where mistakes were made-not the tens of thousands of cases over the years where the use of these detainers helped to protect the communities where they were honored. In the years that ICE has used these detainers, the cooperation between local law enforcement and Federal immigration officers has led to the identification and removal of tens of thousands of convicted murders, child molesters, violent felons, and drug traffickers.

When local law enforcement or immigration officers make mistakes, and violate a person’s constitutional rights, there should be justice for those harmed. Officers should be disciplined, re-assigned, re-trained or fired. Cities and the Federal government should be held responsible when their officers violate people’s rights. However, to completely refuse to honor immigration detainers, and to release convicted violent criminals, who admit they are in the country illegal, back into a vulnerable and unsuspecting community, doesn’t protect anyone, it puts everyone, including other immigrants, at risk.

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.