Florida Immigration Lawyer Blog

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.

ICE Focusing on Immigrants With Criminal Records

Published on: July 9, 2012 | by Lasnetski Gihon Law

The United States Immigration and Customs Enforcement (ICE) has increased their agents by 25% in an attempt to locate and deport immigrants with criminal convictions. Whether a lawful permanent resident, a visa holder, or an entry without inspection, ICE is looking for any non-U.S. citizen with a criminal record that would lead to a charge of removability. See the San Francisco Chronicle for story.

ICE has instructed its agents to focus on illegal immigrants convicted of a felony or more than two misdemeanors, multiple immigration violations or having used fraudulent documents. It has been reported that ICE agents are to shoot for arrested 50 people per month.

ICE isn’t just arresting and deporting illegal immigrants that satisfy the criteria listed above. Anyone who obtains a new conviction is at risk of being placed in removal proceedings at the conclusion of their criminal case. Often, people believe that minor criminal convictions will not lead to deportation. That could not be further from the truth. Even a withhold of adjudication on a minor criminal charge could lead to removal. A petit theft charge for example could be the basis for removal, as a crime involving moral turpitude.

Potential Dream Act Recipients Given Early Deferred Action

Published on: June 29, 2012 | by Lasnetski Gihon Law

Although the Dream Act has not passed in Congress, President Obama has taken the initiative to use his discretion to defer action to those who qualify under the Government’s criteria. So, those who fit the following criteria are eligible for deferred action on any deportation/removal case against them.

In order to qualify for deferred action, you must:

Be 15-30 years old.

Entitlement to Bond While Pending Criminal and Deportation Case

Published on: June 6, 2012 | by Lasnetski Gihon Law

One of the most pressing issues for an alien charged with a crime is whether he or she can get out of custody during the pendency of the criminal and deportation case. Surprisingly, judges, prosecutors and defense attorneys that ordinarily practice in criminal courts often misunderstand the bonding issues as they overlap between criminal and immigration court. The problem often arises when a criminal defense attorney does not push for a bond, or a lower bond, because they assume the client won’t be released because of a pending ICE detainer.

The truth, however, is that there will be circumstances where an immigrant is entitled to bond in both the criminal case and the deportation case. But not always. When an alien is charged with a crime, they will often fall under the “mandatory detention” provision of the Immigration and Nationality Act. Under this provision, the alien must be detained during the pendency of the deportation case. Normally, an alien with a criminal conviction will fall under the mandatory detention provision.

So what happens as a practical matter is this: An alien is arrested for a crime. When the alien is booked into the local jail, an ICE agent will often make contact with him or her. The ICE agent then lodges a detainer on the alien. When the alien posts bond on the criminal case, ICE has 48 hours to take custody of the alien and initiate removal, or deportation, proceedings. At that point, a bond decision will be made by ICE and the alien may be able to file a motion for reduction of bond in Immigration Court, before an immigration judge. The alien may also be able to contest that he or she is subject to mandatory detention. However, if the immigration judge determines that the alien is subject to the mandatory detention provision, he or she will remain in custody during the pendency of both the criminal and deportation cases.

U.S. Supreme Court To Hear Padilla Retroactivity Argument

Published on: May 1, 2012 | by Lasnetski Gihon Law

The United States Supreme Court has granted certiorari in the case of Chaidez vs. United States. The U.S.. Supreme Court will determine whether an immigrant, who pled guilty or no contest to a criminal charge more than two years ago can go back and attack the previous conviction based on an attorney’s ineffective assistance of counsel in failing to adequately advise them of the immigration consequences of their criminal plea. This case is a direct result of the United States Supreme Court’s decision in Padilla vs. Kentucky, 130 S. Ct. 1473 (2010), where the Court held that a criminal defense attorney must properly advise an immigrant client of the immigration consequences of his or her criminal plea. The rules generally allow a person to go back two years to challenge a criminal plea. Chaidez v. United States will determine whether a person can go back past the two years and challenge a plea that is 5, 10, 15, 30 years old or more.

This case is of global importance in the immigration community. Thousands of immigrants with even minor criminal convictions, including lawful permanent residents and visa holders, run into critical dilemmas when applying for benefits with USCIS. Every criminal conviction, including withholds of adjudication, must be examined thoroughly, before applying for benefits with USCIS. Many prior criminal cases can make the immigrant deportable, no matter how long ago or how minor the criminal case.

If the Supreme Court rules that Padilla vs. Kentucky is retroactive, thousands of immigrants will be able to go back and attack the prior criminal case if they were not properly instructed on the immigration consequences of the plea. Most criminal defense lawyers have little to no knowledge of immigration law. For decades, criminal defense attorneys would routinely instruct immigrant clients that a withhold of adjudication would have no negative effect on their immigration status. This is wholly untrue. Many criminal defense attorneys would give a generic instruction to their clients stating that any criminal conviction or withhold of adjudication could have a negative consequence on their immigration status. This may not be enough, and often is not, according to Padilla.

United States Grants Temporary Protected Status (TPS) to Syria

Published on: April 2, 2012 | by Lasnetski Gihon Law

On March 29th, 2012, the Secretary of Homeland Security designated Syria for Temporary Protected Status (TPS). Syrian nationals that have been continuously residing in and physically present in the United States since March 29th, 2012 are eligible to apply for TPS.

The registration period for TPS is from March 29th, 2012 through September 25th, 2012.

This applies to Syrian nationals who are in the United States, whether you have a valid visa or have overstayed your visa.

Orlando Immigration Court To Close While ICE Reviews Cases For Prosecutorial Discretion

Published on: April 2, 2012 | by Lasnetski Gihon Law

The immigration court has suspended its cases in Orlando, as well as Seattle, New Orleans, and Detroit, as part of a pilot program to attempt to identify immigrants who pose a public safety risk and national security risk. This means that those immigrants in removal proceedings who ICE (Immigration and Customs Enforcement) determines does not pose a public safety or national security risk could have their cases administratively closed.

The administrative closure of cases may or may not be beneficial to many immigrants. For example, an immigrant who currently has no legal status and is in removal proceedings may be eligible for a form of relief which may in turn lead to a lawful status. However, if ICE administratively closes the case, the immigrant will remain without lawful status, which would mean that the immigrant is not eligible for a driver’s license and other benefits.

For others, who are here in lawful status, but have been placed in removal proceedings based on a violation of immigration law relating to that status (for example, a criminal conviction, abandonment of lawful permanent residency, etc.), administrative closure would allow the immigrant to maintain their lawful permanent resident status.

Florida Valedictorian Delays Deportation

Published on: March 9, 2012 | by Lasnetski Gihon Law

A Florida high school student who has excelled in school, becoming the class valedictorian, was able to delay her removal from the country for two years. Unfortunately, she is no closer to gaining lawful status.

Daniela Pelaez committed the unthinkable crime when she was brought here by her parents as a 4 year old child. Her parents entered the country without inspection, and from that moment on, 4 year old Daniela was dubbed an “illegal alien.” Despite her lack of status, she was able to obtain an education and she excelled. Now, an 18 year old senior, she dreams of a life both beneficial to her and to all American citizens. But for her unlawful status, which was obtained when she was barely out of diapers, Daniela would be eligible to obtain an Ivy league education and become a contributing member of our community, like so many immigrants of the past.

Unfortunately for Daniela, the current immigration laws are unforgiving, even to an 18 year old girl who has known nothing but this country for the past 14 years and who was raised, educated, and integrated as an American. Oh, and as a little side note, Daniela’s brother is currently putting his life on the line in the U.S. Armed Forces defending the very laws that are designed to expel Daniela from the only country she has ever known back to a foreign to her.

The Marriage Fraud Trap

Published on: February 14, 2012 | by Lasnetski Gihon Law

It is not a new concept that people from all around the world want to come live and work in the United States. However, a person cannot simply come to our door, knock, and gain entry. Instead, the immigrant must have a sponsor, either an employer or family member, or he/she must fall within one of the other limited categories, like asylum.

Many non U.S. citizens have family members in the United States that are willing to sponsor them for admission. The problem is that unless that family member is a U.S. citizen immediate relative (parent, child, or spouse), it can take years, sometimes more than a decade, for a visa number to become available.

One of the most common ways for a non U.S. citizen to gain permanent residence to this country is through marriage to a U.S. citizen. It is not at all uncommon for a U.S. citizen to fall in love with someone from another country and for the happy new couple to want to spend the rest of their lives in the U.S. The good news is that U.S. law allows for this with relative ease. The bad news is that immigration officers are ever more vigilant in trying to root out fraud, which means more scrutiny for every one.