Florida Immigration Lawyer Blog

United States Supreme Court Holds Padilla Is Not Retroactive

Published on: February 20, 2013 | by Lasnetski Gihon Law

In a devastating blow to non U.S. Citizens with criminal convictions, the United States Supreme Court recently held in Chaidez v. United States that an immigrant who pled guilty to a criminal charge based on bad or no advice about the immigration consequences of their criminal plea from their criminal defense attorney can not go back and challenge that prior conviction if it is older than the law allows. In the State of Florida, a person can only challenge a criminal conviction that happened within the last two (2) years.

This decision can have traumatic consequences for non U.S. citizens who have old, and even relatively minor criminal convictions. For example, a person that has been in the United States for twenty (20) years as a lawful permanent resident who has a criminal conviction from 15 years ago could be deported based on that criminal conviction. Even if his criminal defense attorney told him at the time that the conviction would not result in his deportation.

The Supreme Court reasoned that the decision in Padilla, which held that a criminal defense attorney had an obligation to affirmatively advise his or her client of the immigration consequences of the criminal plea, was a new rule and does not apply retroactively. Therefore, only those individuals who were convicted after the Padilla decision came out and within the time frames allowed by law will be able to challenge prior criminal convictions.

President’s Speech Calls For Immigration Reform, But Provides No Specifics

Published on: February 13, 2013 | by Lasnetski Gihon Law

In the State of the Union Address, President Obama called for immigration reform. Unfortunately, the term “immigration reform” has only served as a generic term thrown around on the Congress floor. Proposed reform could have both positive and negative implications on non U.S. citizens. The President called for added security at the border, specifically at the Mexican border. The President has also called for a streamlining of the immigration process to alleviate the burdensome and inexcusable delay in processing visas, which has kept U.S. citizens away from their non U.S. citizen families for extended periods of time. It can take years for an immediate relative to get to the U.S. to live with his or her U.S. citizen spouse.

As President’s often do in State of the Union speeches, the President left out specifics or any policies that he plans on supporting that would the people that are already in the United States with no lawful status. The President’s policy related to the Dream Act seems to suggest that there is some hope for children that were brought to the United State’s without legal status, however, the current policy is simply a band aid on a bullet wound. DACA recipients are not provided legal status and are merely given a temporary reprieve from deportation.

The long and short of the President’s speech leaves us with as many questions as we had before the speech. And that probably won’t change any time soon.

Know Your Right to Bond

Published on: February 1, 2013 | by Lasnetski Gihon Law

This is a general outline that explains the law related to bond in immigration cases:

A) GENERAL 1) Bond should be granted unless there is a finding that the individual is a) a threat to national security b) likely to abscond c) a poor bail risk.

2) Bond Procedure a) ICE initially sets bond.

Eight Senators Unveil New Bipartisan Immigration Policy

Published on: January 28, 2013 | by Lasnetski Gihon Law

Eight United States Senators came out with a general, non-detailed plan for future immigration policy in the United States. One of the senators included Florida Republican, Marco Rubio. It is a four point plan that includes:

1) Creating a path to citizenship for those who are already here without legal authority, while securing the borders so more people cannot enter without inspection;

2) Allowing more unskilled employees to enter the country legally if the employer can establish that there are no U.S. employees to fit the employment qualifications;

Know your Aggravated Felonies

Published on: January 24, 2013 | by Lasnetski Gihon Law

The term “aggravated felony” for immigration purposes is a much misunderstood term. One of the reasons is that an “aggravated felony” need not be aggravated, nor a felony. But it is important to understand what constitutes an aggravated felony for immigration purposes, because a conviction for an aggravated felony comes with serious immigration consequences.

An “aggravated felony” is defined in the Immigration and Nationality Act, under Section 101(a)(43) and includes:

Murder, rape, or sexual abuse of a minor;

Change in Immigration Processing Allows Some Immigrants to Apply For Status While in the United States

Published on: January 7, 2013 | by Lasnetski Gihon Law

The Obama Administration announced plans to change a long standing policy in immigration processing. As of March, immigrants who are here without lawful status will be able to apply for a waiver of their unlawful status while here in the United States. Previously, those individuals would have to leave the United States, which would activate a 3 or 10 year bar to reentry, and then would have to apply at the embassy for a waiver of that bar. This process could take many years and keep families apart for long periods of time.

Now, immigrants that have accrued unlawful status will be able to apply for a waiver here in the United States, which will dramatically reduce the amount of time they will have to spend outside the country.

As with most immigration applications, there will be a processing fee charged by the government of $585. The waiver does not change the requirements of the waiver, which requires the applicant to establish that their removal from this country would cause extreme hardship to their United States Citizen immediate relative. This has historically been a difficult, although not insurmountable, task.

Florida Supreme Court Holds that Padilla is Not Retroactive

Published on: November 22, 2012 | by Lasnetski Gihon Law

The Florida Supreme Court has held that the case of Padilla v. Kentucky is not retroactive. The United States Supreme Court held in Padilla that criminal defense counsel had the affirmative duty to investigate and advise their clients of the immigration consequences of their criminal plea. If the criminal defense attorney failed to give proper advise relating to immigration consequences or gave no advice at all, the client could file a motion to vacate the conviction and attempt to withdraw the plea. However, in Florida, under Florida Rule of Criminal Procedure 3.850, a criminal defendant can only challenge convictions that happened within the last two (2) years prior to filing the motion. The question left by the U.S. Supreme Court was whether Padilla was retroactive, applying to convictions that happened prior to the Padilla decision, thus allowing criminal defendants to attack convictions that are more than two years old.

The Florida Supreme Court held in Hernandez v. State, that while a trial court’s pro forma warning to a criminal client that their criminal plea can subject them to immigration consequences is not in and of itself enough to deny a motion to vacate a conviction based on ineffective assistance of counsel, Padilla does not apply retroactively.

This decision is a blow to countless non U.S. Citizens who were provided incorrect or no advice on how their criminal plea could and would lead to their deportation. However, their is a silver lining. The highest court in the land, the United States Supreme Court, should render a decision on this same issue early next year in the case of U.S. v. Chaidez.

Avoid These Immigration Pitfalls

Published on: September 21, 2012 | by Lasnetski Gihon Law

Immigration law is one of the most complex and evolving areas in the American legal system. Immigration law is administrative and thus allows for a great deal of discretion by those in authority. It is extremely important for immigrants to understand some common pitfalls that can have serious negative immigration consequences. The consequences can be severe, leading to incarceration and deportation, even for lawful permanent residents who have lived here their entire lives. The following are a few pitfalls that clients have fallen into along the way.

1) Change your residence with the AR-11 Form within 10 days of moving.

Under INA Section 265(a), “Each alien required to be registered under this title who is within the United States shall notify the Attorney General in writing of each change of address and new address within ten days from the date of such change and furnish with such notice such additional information as the Attorney General may require by regulation.”

Deferred Action – A Blessing and a Curse for DREAMers

Published on: August 22, 2012 | by Lasnetski Gihon Law

According to a June 15th, 2012 Department of Homeland Security memorandum, certain young individuals are eligible to file an Application for Deferred Prosecution which would defer any removal for a period of two years. The applicant can also apply for work authorization and file for a renewal of the deferred action, to extend the two years.

Potential applicants can file Form I-821D, Consideration of Deferred Action for Childhood Arrivals, Form I-765, Application for Employment Authorization and Form I765WS worksheet along with a filing fee of $465, with USCIS.

Deferred Action is simply the Government’s decision to defer removal proceedings for a specified period of time. Deferred Action is not a path to a green card or citizenship. So, although it is a blessing to many who are threatened with deportation, it is a curse because it provides no long term relief and the Government can terminate a grant of deferred action at any time.

The Positive Side of Immigration Nobody Has Told You About

Published on: July 16, 2012 | by Lasnetski Gihon Law

In today’s political climate, the word “immigration” often has a negative connotation. People often immediately think of the word “illegal” and place it before the word “immigration.” The fact is, however, that our country is filled with contributing foreign born members of our communities that have lawfully and productively assimilated.

Over a ten year period, the Florida foreign born population rose from 12.9% in 1990 to 16.7% in 2000. In 2008, Florida was home to 3,391,511 foreign born residents. 47.1% were naturalized U.S. Citizens, who made up 14% of all registered voters in the State, along with the U.S. born children of foreign born residents. See The Immigration Policy Center for statistics and interesting articles related to immigration.

$20 Billion Dollars! Yes that is correct. $20 Billions dollars in tax payer money comes from Florida’s immigrant workers. So, they are paying for roads, schools, hospitals and many more assets that benefit U.S. Citizens. And contrary to popular belief, these immigrant workers are not taking jobs away from U.S. Citizens, as our immigrant worker visas are designed to ensure that U.S. Citizens are not displaced from potential jobs. Most work visas require the U.S. employer to obtain a labor certification that ensures that the employer has made strenuous good faith attempts to hire a U.S. Citizen.