Florida Immigration Lawyer Blog

Immigration Decision Bad for Non-Citizens Convicted of Marijuana Possession

Published on: September 23, 2014 | by Lasnetski Gihon Law

The Board of Immigration Appeals recently issued a decision that will have serious negative consequences for non-citizens convicted of marijuana (cannabis) possession. See Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). The immigration laws in the U.S. make certain non-citizens removable (subject to deportation) if they are convicted of a controlled substance offense OTHER THAN a single offense involving possession for one’s own use of thirty grams or less of marijuana. Section 237(a)(2)(B)(i) of the Immigration and Nationality Act.

This means, if a lawful permanent resident or other lawfully-admitted non-citizen is convicted of possessing any federally controlled substance, other than marijuana they are subject to deportation. HOWEVER, if that same person is convicted of possession of marijuana (cannabis) the government must also prove that the amount of cannabis was over 30 grams, or the person possessed it for something other than personal use (selling it, delivering it, etc.). If the government is unable to prove the person possessed more than 30 grams of cannabis, or possessed it for sale or delivery, then the person is not subject to deportation.

Until recently, many Immigration Judges have required that the government prove that the amount was over 30 grams or not for personal use by using the same documents they use to prove most immigration charges. Those documents include the normal record of conviction, which consists of the judgment, sentence, probation order, indictment or information and a few other documents. Until recently, in most jurisdictions, the Immigration Judges were not using documents such as the police report, or property storage cards.

Pre-Trial Diversion or Intervention can still have Negative Immigration Consequences

Published on: September 17, 2014 | by Lasnetski Gihon Law

Many immigrants believe that if they accept the pre-trial intervention or diversion programs offered to criminal defendants after they are arrested, they will not face deportation from the United States. That is simply not true. To understand why, you must understand that there are two different laws that the U.S. Immigration and Customs Enforcement (ICE) use to deport people from the United States. One set of laws usually applies to people who entered the country without inspection, admission or parole. The other set of laws applies to lawful permanent residents (LPRs) and non-immigrants, including students, tourists, workers, etc.

For ICE to deport someone in the second group (LPRs, etc.) based upon certain crimes, there must be a conviction. A conviction includes anytime a criminal defendant enters a plea of guilty or no contest and is adjudicated guilty or the adjudication of guilt is withheld. A successfully completed pre-trial intervention or diversion program will result in the charges being dropped. If the charges are dropped there is no conviction and an LPR or other lawfully admitted non-immigrant cannot be deported from the U.S. based upon that crime.

HOWEVER, if that same LPR or non-immigrant successfully completes a pre-trial intervention or diversion program and the criminal charges are dropped, they can still face deportation in certain circumstances. If anyone in this second category leaves the U.S. and comes back, they are subjected to the same set of laws as someone who entered the U.S. without inspection, admission or parole.

Administrative Removal?: Object Now or Forever Hold Your Peace (and get Deported)

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

Administrative Removal can be used to obtain an order of removal against almost any non-citizen, non-lawful permanent resident who has been convicted of an aggravated felony. Administrative removal can even be used against a condition lawful permanent resident, unless and until that person has the conditions of their permanent residency removed.

The administrative removal process almost always takes place without an Immigration Judge. If an Immigration Officer, who works for the U.S. Immigration and Customs Enforcement (ICE), believes that you qualify for administrative removal, then you will likely be detained and receive an order of removal without ever seeing an Immigration Judge.

The U.S. Court of Appeals for the Eleventh Circuit recently issued a publish decision regarding administrative removal in the case of Malu v. U.S. Att’y Gen., 2014 WL 4073115. In that case, a non-citizen was subjected to administrative removal after ICE officers determined that she was an aggravated felon and she was not a lawful permanent resident. ICE issued an order of removal against Ms. Malu, and she petitioned to the Court of Appeals saying that she was not an aggravated felon.

New Immigration Case May Open the Door to Asylum for Battered Spouses

Published on: September 9, 2014 | by Lasnetski Gihon Law

The Board of Immigration Appeals delivered a published decision recently finding that certain female victims of domestic violence may be eligible for asylum in the United States. The Board’s decision in Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014) held that “married women in Guatemala who are unable to leave their relationship,” constitute a legally cognizable “particular social group,” (PSG) and under the right circumstances, could be considered refugees and granted asylum in the United States.

Early this year, the Board clarified its position on what constitutes a PSG in two published decisions. In Matter of W-G-R- and Matter of M-E-V-G-, The Board held that an applicant seeking asylum based on his or her membership in a “particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

For the first time under this new PSG analysis, the Board has found that a victim of domestic violence, who because of religious, social or cultural norms, find it difficult to end a marital relationship, can seek protection in the United States in the form of asylum. The Board did not create a bright-line rule that all married women in Guatemala who were the victims of domestic violence are eligible for asylum. The Board also did not say that married women in other countries could not qualify for asylum.

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.

Lasnetski Gihon Law help a Lawful Permanent Resident remove an Aggravated Felony Conviction

Published on: August 27, 2014 | by Lasnetski Gihon Law

Last week, the experienced criminal and immigration attorneys at Lasnetski Gihon Law helped a client remove a criminal conviction that made him an aggravated felon. A prior criminal defense attorney did not advise the client, who is a lawful permanent resident, that entering a plea to a crime of violence with a two year prison sentence would make him an aggravated felon and almost guarentee his deportation from the United States.

The client is currently in removal proceedings and attorneys from the U.S. Immigration and Customs Enforcement (ICE) have opined that our client had no relief from removal because of the aggravated felony conviction. Attorneys from SLG negotiated with the prosecutors and convinced the criminal judge that our client’s rights were violated when he was not clearly advised that his conviction would all but ensure his removal from the United States. Now that SLG helped him change his conviction to something that is not an aggravated felony, our client will have relief from removal, and may be able to stay here in the United States with his family and avoid deportation.

This is another success story about how SLG can help non-citizens whose rights were violated in the criminal justice system. If you are not a citizen and you are currently being prosecuted for a crime in Florida, call us today so we can represent you in criminal court and protect your immigration rights. Do not rely on a public defender or criminal defense attorney who does not know immigration law to protect your immigration status.

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.