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Friday, January 29, 2010

Modified Categorical Approach

     In addition to the Categorical Approach discussed in an earlier blog, the Modified Categorical Approach helps to determine whether a foreign national is deportable as an aggravated felon.  These are high stakes:  a foreign national convicted AT ANY TIME of a crime which is later determined to be an aggravated felony is deportable and probably not eligible for any kind of waiver.
     It's not that the foreign national broke a law called "aggravated felony."  It's that the foreign national was convicted of breaking one of several types of laws that now an Immigration Judge (IJ) is stating is an aggravated felony.  It's a legal determination and yes, an attorney is a must.
     Where the law is divisible (person can be convicted under the law for either a or b), the IJ normally must limit his/her review to certain documents, known as the record of conviction.  By looking at these documents, the IJ must determine what the foreign national was convicted of.  Otherwise, looking at all the evidence again would turn the IJ proceeding into another criminal trial.  The record of conviction includes the charging document, the transcript of the plea colloquy, the written plea and all findings of the criminal judge to which the foreign national assented.
     Unfortunately, last year, the Supreme Court rejected limiting the analysis to certain documents.  All seems fair game, both for Immigration to use as a weapon to have someone deported and for attorneys to use as a defense to have someone remain.  How that drastic ruling will affect immigration cases this year will definitely be interesting to watch.

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Ten Mistakes U.S. Citizens Make When They Apply For Family Members

Immigration laws and the regulations used to implement them are complex. It is no wonder than certain mistakes are seen repeatedly in the applications made by U.S. citizens on behalf of their foreign family members. Time and again, they: more..........

Posted 3 days ago in Immigration. Jurisdiction: Federal

Thursday, January 28, 2010

Emergency Travel Permission

     Sometimes, the little things mean a lot.  Take, for example, the joyful outcome of my conversation last night with a project manager.  We met at an event of the Ft. Lauderdale Chamber of Commerce, of which I am a member.  During the conversation he revealed that he had started a residency process, but he was anxious about how long the process would take.  Fortunately, residency based on marriage to a U.S. citizen wife is in most cases rather fast -- less than six months.
     He was anxious because his work requires foreign travel and the advance parole document can also take six months to obtain.  Advance parole is the name for the travel permission given by Immigration for persons who are adjusting status to resident in the U.S.  What he did not know was that emergency advance parole is an option available to him.  Emergency advance parole can be obtained within 10 days.
     In order to obtain emergency advance parole, the foreign national must submit the correct fee, the application and necessary evidence.  The evidence would include such things as letters from physicians abroad certifying the urgent need for travel.  Precise evidence depends on each person's case.

Wednesday, January 27, 2010

What the Bible says about Immigration

     I came across a clever article this morning relating to what the Bible says about immigration.  It is a compilation of excerpts that relate to immigrants.  The article is written by a well-known and respected immigration attorney (Bruce Hake, Esq.) and his wife, a Roman Catholic cathecist.
      One does not have to be religious to appreciate that, according to the Bible, God commands persons to treat strangers with kindness and charity.  You can get to the article by clicking here.
     When the immigration debate heats up, both sides tend to throw the Bible around to support their position.  This article examines the facts.  My favorite excerpt: 
      For I was hungry and you gave me food, I was thirsty and you gave me drink, I was a stranger and you made me welcome, lacking clothes and you clothed me, sick and you visited me, in prison and you came to see me.  Then the upright will say to him in reply, "Lord, when did we see you hungry and feed you, or thirsty and give you drink? When did we see you a stranger and make you welcome, lacking clothes and clothe you? When did we find you sick or in prison and go to see you?"  And the King will answer, "In truth I tell you, in so far as you did this to one of the least of these brothers of mine, you did it to me."

Tuesday, January 26, 2010

Mandatory Removal

     A foreigner will be removed from the United States if s/he was convicted of certain types of crimes, such as an aggravated felony or multiple crimes of moral turpitude.  The important question, then, is whether the foreigner was convicted of a crime that can be labeled an "aggravated felony" or a "crime of moral turpitude."  There are two ways to do this.  One is called the categorical approach.
     Under the categorical approach, the Immigration Judge looks at the law that the foreigner was convicted of breaking -- for example, theft.  The IJ will look at the structure of the law to determine whether it is divisible or indivisible.  If the law can be divided into separate crimes (for example, with separate sections), the modified categorical approach is used.
     If the law cannot be divided, the categorical approach asks whether a person can be convicted under that law for an act that is not a deportable offense.  Returning to the example of theft, the Florida law might allow convictions for temporary takings of property (joyriding).  Temporary takings are not theft.  So, because the law is overbroad, the foreigner cannot be deemed to have been convicted of a deportable offense.

Monday, January 25, 2010

Voluntary Departure Instead of Deportation

     When faced with a deportation order and the consequence of not being allowed to return to the United States for several years, some foreigners prefer to choose voluntary departure.  Both Immigration and an Immigration Judge can grant VD, which allows a foreigner to leave the U.S. on his/her own volition and paying his/her own way. 
     If VD is requested on or before a master hearing with an Immigration Judge, it can be granted for up to 120 days.  The requirements are that the foreign national not be deportable for an aggravated felony or on security grounds, s/he cannot contest removability, waives the right to appeal and does not request any other form of relief (such as asylum.)
     If VD is requested after a removal order has been entered or at a hearing on the merits of the case, the maximum grant is 60 days.  In addition, the foreign national must have five years of good moral character prior to applying for VD, cannot be deportable on aggravated felony or terrorist grounds, must demonstrate financial ability and intent to leave, and must post a bond.  When s/he arrives abroad and that arrival is verified by the U.S. consulate or embassy, the bond payment is refunded.

Friday, January 22, 2010

French-Speaking Immigration Attorney Offers TPS Help to Haitians

     What a difference a week makes.  Last week, I left on a vacation to Italy.  While I was away from South Florida, hell broke loose in Haiti -- jolting the country with the earthquake on January 12th, the aftershocks, and the death of thousands.
     In response to the devastation, the various branches of the U.S. Department of Homeland Security are providing relief for Haitian nationals.  Immigration assistance is available through several different programs and policies, including waivers for persons who cannot pay the filing fees for applications.  My office, I am proud to say, is offering a public service of assistance with registration for Temporary Protected Status (TPS).  With TPS, persons who are in the United States without authorization can remain and work legally.  Because I speak French and my office is located in Broward, many persons will have no need to travel to Miami-Dade county and wait in long lines there. 
     I urge anyone reading this blog to pass the word along to those who may be interested.  Have them call us at 954-385-0157.  We look forward to helping those who need it most.

Monday, January 11, 2010

Naturalization after Criminal Convictions

     When Immigration reviews the file of a criminally convicted legal permanent resident to determine if s/he is eligible to become a U.S. citizen through naturalization, the Service is looking for two separate issues.  First, the Service wants to determine if the foreign national is eligible for citizenship, including meeting the requirement for good moral character.  Second, and most problematic, the Service wants to know whether the foreign national can be deported for the offenses committed.
     Good moral character requires a set period of time, usually five years, during which the person did not commit an offense.  It is not enough that the person was not convicted.  At the interview, the applicant will be questioned about the incident and if s/he admits the elements of the crime, s/he cannot establish good moral character.
     However, in order to be deportable, the foreign national must have been convicted of a crime.  Some crimes, known as aggravated felonies, make a person PERMANENTLY ineligible to demonstrate good moral character (and thus, they can never become a U.S.) as well as deportable.  Beware:  an aggravated felony can be a minor offense, such as misdemeanor theft if a year or more of probation was imposed.

Friday, January 8, 2010

Becoming a Resident Through Adjustment Despite Criminal Convictions

     Adjustment of Status is a term used for becoming a legal permanent resident when the foreign national lives in the United States. When there are no criminal convictions, this process is normally completed at an interview with the U.S. Citizenship and Immigration Service.  However, if the foreign national has been convicted of a crime which makes her deportable, Immigration will deny the adjustment and the foreigner will be placed in removal proceedings.

     Interestingly, some crimes make a foreigner deportable, but not inadmissible.  Whether a crime makes a person deportable, inadmissible, or both, involves a criminal analysis performed by an immigration professional.  If the government considers a foreigner inadmissible, it will deny a visa to enter the U.S., adjustment of status to become a resident, or naturalization to become a citizen.

     If the crime does not make the person inadmissible, the Judge during removal proceedings may still grant Adjustment of Status.  Boom, bam.  Not only does the foreigner become a legal permanent resident but also she is no longer deportable.

Wednesday, January 6, 2010

What's Worse for Residency: Crossing the Border or Entering with an Alias?

     Crossing the border without any travel document (passport, visa) means that the foreigner does not present him or herself before an Immigration officer.  On the other hand, entering with an alias means that the foreigner did enter the country, after inspection by an Immigration officer, but using a fake name on an otherwise valid passport.  After all, in many countries it is possible to obtain passports with incorrect information through various means.
     A foreigner who enters without inspection is barred from obtaining many forms of relief if caught within the United States.  In fact, unless an exception to the law applies, s/he cannot become a legal permanent resident through marriage. 
     On the other hand, a foreigner who is convicted for entering the U.S. while impersonating another MAY still be eligible for residency if the term of imprisonment imposed is less than 12 months.  Whether the offense is a crime that makes someone ineligible for residency requires studying the law that the person was convicted of. 

Tuesday, January 5, 2010

Does it Matter whether I Vacate my Conviction?

     Generally, a conviction that has been expunged, dismissed or sealed by Florida law remains a conviction for immigration purposes. A foreigner whose case was dismissed and expunged under the Federal First Offender Act (FFOA) may do better. Under the FFOA, a foreigner who is charged in federal court with first-time, simple possession of a controlled substance – for example, marijuana, cocaine – can have his or her case expunged including for immigration purposes. These foreigners can go on not only to become legal permanent residents, but also U.S. citizens.

    Minor nuances make a world of difference when a conviction has been vacated in state court cases. If the conviction was vacated for rehabilitative purposes it remains a conviction for immigration purposes. However, if it was vacated on account of a defect in the criminal proceedings (for example, procedural mistakes or constitutional violations) it will not count. In these cases, the help of an immigration professional is vital.

Monday, January 4, 2010

Defending Un-Convicted Foreign Convicts

      The first step in determining whether criminal activity will have immigration consequences – including removal from the U.S. or detention within the U.S. – calls for a simple question: was the foreigner convicted of a crime?

     In the non-immigration world, that question would have a simple yes or no answer. However, non-American citizens are “convicted” even where no court or jury entered a finding of guilt. The immigration law considers “withholding” of guilt a conviction if:

-- the foreigner enters a plea of nolo contendre (no contest), OR
-- the foreigner admits facts to warrant a finding of guilt
-- the judge orders some form of punishment, penalty or restraint on the foreigner’s liberty

     Even where the judge suspended the sentence in whole or in part or the only penalty imposed was court costs, the foreigner is considered a “convicted” criminal for immigration purposes.
     In order to avoid the consequences of a conviction, a pretrial intervention program is preferred. Under these programs, the foreigner completes a probation-like program, maybe with classes, and in exchange the charges are dropped. The signed statement of guilt that a person arrested usually must make to the prosecutor to enter into a pretrial program does not qualify as an admission under immigration law.

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