Florida Immigration Lawyer Blog

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.

New York City Council approves law to grant ID cards to undocumented immigrants

Published on: July 15, 2014 | by Lasnetski Gihon Law

The New York City Council recently announced that it approved the Mayor’s plan to give photo identification cards to all New York City residents, regardless of their immigration status. The Council and the Mayor heralded this effort as a victory for residents, many of whom do not have a current lawful immigration status and cannot obtain state or federal photo identifications.

The cards will be accepted by city agencies, will let parents enter school buildings and provide proof of identity for people stopped by police – which could mean the difference between spending a night in jail and being released.

Private institutions will not be legally required to accept the ID, but the city hopes banks and landlords will take it from people trying to open bank accounts or sign leases. (New York Post Article)

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.

I have been Detained in an Immigration Detention Facility, Am I Eligible for Bond?

Published on: July 4, 2014 | by Lasnetski Gihon Law

If the immigration officers decide to detain someone, they first determine if the person is eligible for an immigration bond, and if so, they will decide how much the bond will be. An immigration bond can range anywhere from $1500 to $25000 or more. If an immigration officer determines that you are not eligible for a bond, then you will be held in immigration detention until your immigration case is over, or an immigration judge gives you a bond.

Sometimes immigration officers will decide you are not eligible for a bond because you are subject to mandatory detention under Section 236(c) of the Immigration and Nationality Act (INA). If you are subject to mandatory detention during your immigration hearings, even the immigration judge has no authority under the law to release you from custody. If immigration officers determine that you are an arriving alien, that is, immigration officers stopped you at a land/sea/air port or border and detained you there or during deferred inspection, then you are not eligible for a bond and an even an immigration judge cannot give you one. If you already have a final order of removal/deportation (an order that is not on appeal with the Board of Immigration Appeals) then you are also not eligible for a bond and an immigration judge cannot give you one. There are a few other categories of people who are not eligible for bond, but those three categories cover the vast majority of people who are not eligible for an immigration bond.

How will you know if you are subject to mandatory detention under INA § 236(c)? You must look at your Form I-862, Notice to Appear (NTA) to determine if you are subject to mandatory detention under this section. If you are being detained and placed in removal/deportation proceedings, you should be served with an NTA within a few days of being detained. If you are charged with any criminal ground of removability under INA § 212(a)(2) (which include controlled substance offenses, crimes involving moral turpitude (CIMT), and controlled substance trafficking offenses) then you are not eligible for a bond. If you are charged under one of the criminal grounds of removability under INA § 237(a)(2), then you may also be subject to mandatory detention. These grounds of removability include any aggravated felony, any firearms offense, any controlled substance offense and any offenses involving two CIMTs. There are only two grounds of criminal removability under INA § 237(a)(2) that do not make you subject to mandatory detention. One of those sections is INA § 237(a)(2)(E), which involves crimes of domestic violence, child abuse, stalking, child neglect and violations of protective orders. The second is a conviction for one CIMT within five years of admission for which you were not sentenced to more than a year in prison.