Florida Immigration Lawyer Blog

I Received a Notice to Appear from Immigration, What do I do Now?

Published on: February 18, 2016 | by Lasnetski Gihon Law

The moment that a person receives a Notice to Appear from a federal immigration agency can be frightening and intimidating. You may ask yourself, why does the government want to deport me? What did I do wrong? How can they bring up that criminal case from a decade ago?

However, its important to remember that receiving an NTA (as we call it in immigration circles) is not the end of the world, in fact, sometimes it can be the best thing that can happen for some people. In this blog I will answer the following question, “I received a notice to appear, what do I do now?”

A Notice to Appear or NTA or Form I-862 as it is also called, is the notice to a non-citizen that one of the immigration agencies has decided that you have done something for which they think you should be deported. The agencies that can issue Notices To Appear are U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). These are all related agencies under the umbrella of the Department of Homeland Security, but each serves a different function in that dysfunctional federal family.

What is Deferred Inspection and do I need an Immigration Lawyer to come with me?

Published on: February 16, 2016 | by Lasnetski Gihon Law

Receiving a deferred inspection appointment notice can be a scary and traumatic event. Deferred inspection usually comes after you have spent a few hours, or perhaps many in secondary inspection at a sea or airport. Your first thoughts may be, what is deferred inspection? Why do I have to go there? What does it mean that I am “inadmissible.” Can I bring an attorney to the appointment? Should I bring an attorney with me to my deferred inspection appointment?

I recently worked through these questions with a client who has been a lawful permanent resident of the U.S. for 50 years and was confused and upset at the fact that immigration officers were giving him a hassle for something that happened over a decade prior. Lets start with the basics of what is deferred inspection.

When you are a lawful permanent resident of the United States you enjoy many rights and privileges regarding working, traveling and living in the United States that non-green cardholders do not have. However, having a green card is not the same as being a U.S. citizen and that is very obvious when green card holders travel from and return to the United States.

Why do I need an Immigration Attorney during my Criminal Case?

Published on: February 10, 2016 | by Lasnetski Gihon Law

As I sit here working on my most recent crimmigration consultation case, I realize more and more the need for non-citizens to have trusted advice and immigration counsel during their criminal cases. I have mentioned on many occasions that the time to hire an immigration attorney is not after you or your loved one is convicted of a crime, but before. The case I am working on now is but another example.

A loved one of my client called to ask, “what are the immigration consequences of this criminal prosecution?” She said that his criminal defense attorney had someone in his office who did immigration and could assist, but she chose to call us for a crimmigration consultation because she read my blog and knew I could help. She was right. This nice young lady had received all kinds of incorrect advice regarding the criminal prosecution of her loved one.

She was told that pre-trial diversion or pre-trial intervention was the way to avoid deportation. She was told that drug court was a terrible idea because her loved one would be labeled an “addict” and deported for that. Thankfully she was savvy enough to research and find out that it didn’t matter if her loved one received a withhold of adjudication or an adjudication of guilt, both are considered convictions for immigration purposes.

Summaries of December, 2015 and January, 2016 District Court decisions from the 11th Circuit related to Immigration

Published on: February 8, 2016 | by Lasnetski Gihon Law

This is the third issue of the newsletter summarizing important immigration-related cases decided by the District Courts from Georgia, Florida, and Alabama. The summarized cases are for December 2015 and January 2016. All of the attorneys writing the summaries – John Gihon, Marshall Cohen, Roberta Cooper – should be commended for their hard work. Any feedback from members, including ideas to improve it, would be appreciated. You may contact Bruce Buchanan at bbuchanan@visalaw.com or John Gihon at John@slgattorneys.com.

Ali v. Swacina, et al., 15-cv-61820-BLOOM/Valle (S.D. Fla. Dec. 11, 2015)

Mr. Ali brought suit against Department of Homeland Security (DHS) and a myriad of co-defendants for taking part in the denial of his N-400 Application for Naturalization pursuant to 8 U.S.C. § 1421(c). This Code provision allows persons, like Mr. Ali, who have had their N- 400s denied and who sought and were denied relief during an N-336 review hearing, to bring their action directly to District Court for a de novo review of the decision. Mr. Ali joined multiple other federal law enforcement agencies in the action. These collateral agencies sought and received dismissal of the action against them as only one agency, DHS, had authority and responsibility for the denial of his N-400. Thus, the suit remained only against the DHS.

Summaries of December, 2015 to January 2016 11th Circuit Opinions related to Immigration

Published on: February 4, 2016 | by Lasnetski Gihon Law

This is the third issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for December 2015 and January 2016. All of the attorneys writing the summaries – John Gihon, Marshall Cohen, Roberta Cooper – should be commended for their hard work. Any feedback from members, including ideas to improve it, would be appreciated. You may contact Bruce Buchanan at bbuchanan@visalaw.com or John Gihon at John@slgattorneys.com.

Vaz v. Skinner, 14-15791 (11th Cir. Dec. 23, 2015) (unpublished)

The 11th Circuit affirmed the district Court’s holding that the petitioner, a native of Brazil, was not entitled to relief pursuant to a 28 U.S.C. §2241 habeas corpus claim. Petitioner’s argument of lack of adequate medical treatment while in detention fell outside of habeas corpus law as it is a challenge to the conditions of confinement, not to the fact or duration of the sentence as is necessary. The Court added that even if the petitioner had made a proper claim, release from imprisonment is not an available remedy for a claim of conditions of confinement. Petitioner’s second argument of unreasonable detention also failed because he prevented his own removal to Brazil. While the Attorney General has 90 days to remove an alien, the removal period can be extended “if the alien fails or refuses to make timely application in good faith for travel or other documents necessary for the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.” 8 U.S.C. §1231(a)(1)(C). Although he had been detained more than 6 months (3 years), he could not assert a claim under Zadvydas v. Davis, 533 U.S. 678 (2001), because there was a likelihood of removal in the near future. In this case, the reason behind the delay was petitioner’s refusal to voluntarily sign his travel document or inform Brazil of his willingness to return.

Summaries of December, 2015 11th Circuit Opinions related to Immigration

Published on: February 2, 2016 | by Lasnetski Gihon Law

This is the third issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for December 2015. All of the attorneys writing the summaries – John Gihon, Marshall Cohen, Roberta Cooper – should be commended for their hard work. Any feedback from members, including ideas to improve it, would be appreciated. You may contact Bruce Buchanan at bbuchanan@visalaw.com or John Gihon at John@slgattorneys.com.

Vicolas, et al. v. U.S. Attorney General, 14-15174 (11th Cir. Nov. 30, 2015) (unpublished)

The 11th Circuit Court of Appeals (11th Circuit) found that the record did not compel reversal of the BIA’s and IJ’s determination that the petitioner failed to credibly and persuasively establish a nexus between alleged persecution and his political beliefs in his asylum claim. Under Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007), the Court must be compelled to find that the alien will be persecuted because of his political opinion in order to reverse a finding of lack of sufficient nexus. Though an applicant’s testimony alone may be sufficient to meet his burden of proof, the Court found petitioner’s testimony of alleged incidents of police beatings due to his political beliefs was inconsistent, vague and implausible. The Court noted that in all organized protests or meetings, the petitioner was the only one to be harmed even though he had only just been involved in politics in Moldova for a few months. Other individuals, who had opposed the Communist Party for years, were not hurt. For every arrest, there was another plausible reason for his detention that was unrelated to his political views. Furthermore, his wife, who was present at one of the incidents, did not testify to corroborate his testimony. Lastly, the petitioner’s evidence was mostly based on second-hand information as it originated directly from the petitioner without independent confirmation.

A Recent Board of Immigration Appeals Decision Reminds us Why Non-Citizens need Immigration Advice during their Criminal Case

Published on: January 27, 2016 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently published two new cases. One, about NACARA (Nicaraguan Adjustment and Central American Relief Act) will have limited effect on most immigrants’ lives as very few people still qualify for this form of relief from removal. The second case is another example of why every criminal defendant who is not a citizen needs a crimmigration attorney to advise them during their criminal prosecution.

Matter of Castro-Lopez, 26 I&N Dec. 693 (BIA 2015); In a decision limited to NACARA (Nicaraguan Adjustment and Central American Relief Act) eligibility, the Board held that when a respondent was subject to multiple grounds of removability, the ten-year continuous physical presence requirement begins at the point of the most recent ground triggering removal. In this case, the respondent entered without admission or parole in 1996 and this triggered his first ground of removability. The respondent was subsequently convicted of possession of cocaine in 2012, triggering an additional basis for removal. The Board held that this respondent did not qualify for NACARA (heightened standard due to the criminal conviction), because the respondent could not show ten years of continuous physical presence after the 2012 conviction.

Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015); The Board held that when a respondent is sentenced to serve a year or more in a substance abuse treatment facility, that sentence constitutes a “term of confinement” as is required to support certain aggravated felonies under INA § 101(a)(43). The Board focused on the fact that a person sentenced to this type of treatment facility is not free to leave during the term of the sentence. The Board reasoned that “term of confinement” is not limited to actual jail time, but can include other forms of confinement, including custodial treatment facilities.

Will the Supreme Court Resurrect President Obama’s Stalled Immigration Plans

Published on: January 20, 2016 | by Lasnetski Gihon Law

On Tuesday, the U.S. Supreme Court gave a glimmer of hope to President Obama’s 2014 Immigration Executive Action plans that have been stalled in federal court since last year. The high court will either lift the ban on the President’s immigration plans or they will affirm the lower federal court’s ruling, ringing a final death bell to these actions.

In November of 2014, the President issued executive actions creating two types of Deferred Action that would benefit about 4-5 million people currently in the United States without lawful immigration status. You may ask yourself, Do I qualify for DAPA or expanded DACA? I blogged about these programs in 2014:

See https://www.floridaimmigrationlawyerblog.com/2014/11/president_obama_announces_a_ne.html for DAPA, and

Can I really be deported, denied admission to the United States or a green card for a crime for which I was not even convicted?

Published on: January 14, 2016 | by Lasnetski Gihon Law

The answer is clearly and unequivocally YES. Many people who are not yet citizens think that if they are arrested for a crime and the State or Government drops the charges, for any reason, they are home free and immigration officials can never use that arrest against them in the future. That is simply not true.

There are multiple grounds of inadmissibility that do not require a conviction in order for the government to use them against you. You may be thinking, I am in the U.S. lawfully, I don’t care about grounds of inadmissibility, those are for people who are here illegally or people just coming into the U.S. That’s not true either. Those grounds of inadmissibility, which do apply to people who entered without admission and those who are applying to come into the U.S., also apply to people trying to adjust their status to lawful permanent resident and get a green card.

Yes, that’s right, if you are a non-immigrant, visitor, student, employee, or in any other lawful immigration status and you want to get your green card, you have to pass all the same admissibility requirements that people coming in from overseas have to pass.

Big Changes to the Visa Waiver Program Could Effect Many People Who Won’t Know it Until its Too Late.

Published on: January 11, 2016 | by Lasnetski Gihon Law

Congress recently passed legislation that changes who is eligible to enter the United States through the Visa Waiver Program (VWP). These changes are in reaction to the fears that terrorists and terrorist sympathizers will enter the United States exploiting the ease by which people can enter through the VWP.

The Visa Waiver Program was designed to allow citizens of certain countries to avoid the lengthy process by which most foreign nationals must apply for a visa at a U.S. consulate abroad. The normal process involves an application, a background check, an interview and sometimes more. Applications for short-term visitor or business visas are routinely denied. The Visa Waiver Program allows qualified citizens from 38 countries to avoid this process and with a quick online registration, obtain an electronic visa and admission into the United States for 90 days at a time.

This list of 38 countries changes often and usually only contains first-world countries that have low rates of people overstaying their visas, claiming asylum or otherwise abusing the visa process. Citizens from all over Europe, Australia, New Zealand and parts of East Asia enjoy the use of Visa Waiver admissions.