Florida Immigration Lawyer Blog

U.S. Supreme Court To Hear Padilla Retroactivity Argument

Tue, 01 May 2012 15:55:45 -0500

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.

If you are a non U.S. citizen, and have ever been arrested before and pled no contest or guilty to a criminal charge, contact an attorney who practices both criminal and immigration law to determine whether your plea makes you deportable or inadmissible under the law, and whether you can go back and attack your prior plea.

United States Grants Temporary Protected Status (TPS) to Syria

Mon, 02 Apr 2012 12:26:12 -0500

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.

The TPS status runs through September 30,2013, meaning that anyone granted TPS will be allowed to stay in the United States lawfully until September 30, 2013. That date can be extended by the Secretary of Homeland Security if conditions in Syria do not improve by that date.

You may also request employment authorization while on TPS status.

You will be ineligible for TPS if you have been convicted of one felony or multiple misdemeanors.

You can find more information in "A Guide To Temporary Protected Status For Syrian Nationals."

Contact Shorstein & Lasnetski if you would like help filing an Application for Temporary Protected Status (TPS) at 904-642-3332.

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

Mon, 02 Apr 2012 11:54:05 -0500

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.

Prosecutorial discretion in immigration is not a new concept, but it is one that has become a focal point of immigration law in the last year. With directives coming from the highest levels at ICE and DHS (Department of Homeland Security) to review pending removal cases and to redirect governmental resources to those immigrants who pose a security risk to the public or the nation, it remains to be seen whether the soldiers on the ground will fully implement the orders of their bosses.

Florida Valedictorian Delays Deportation

Fri, 09 Mar 2012 07:48:39 -0500

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 Dream Act was designed to fix this injustice. To forgive a child the sins of the parent. The Dream Act is proposed legislation aimed at children who were brought to the United States by their parents when they were children, who have blossomed as American flowers during their childhood into adulthood, and who will become contributing members of our community by going to college or joining our military. The Dream Act would give these children the opportunity to become lawful permanent residents and to remain in the country they have always called home. Unfortunately, the legislature has not yet passed The Dream Act, leaving talented students like Daniela a victim to the system.

As a reward for her educational achievements, Daniela was placed in removal proceedings. An immigration judge ordered Daniela deported under current immigration laws. Thanks to thousands of supporters, ICE has decided to defer her removal for two years. This is a band aid on a gunshot wound as Daniela is not granted any lawful status during that two year period and she will face legal obstacles at every turn. While the government should be making it easier for people like Daniela to integrate into our society, the current state of the law will test her resilience in ways that will all but prevent her from reaching her dreams, which are to become a surgeon.
Read more about Daniela here.

The Marriage Fraud Trap

Tue, 14 Feb 2012 08:29:27 -0500

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.
When a U.S. citizen petitions for their alien spouse (Form I-130) and the alien files for permanent residence (green card - Form I-485), a government agent is going to scrutinize the case to determine whether they believe the couple got married to circumvent the immigration laws. That means that any discrepancy between the I-130 and I-485 will raise red flags. Even innocent discrepancies can start the case off on the wrong foot.
After the forms have been submitted and reviewed by USCIS (United States Customs and Immigration Services), the U.S. citizen and the alien spouse will appear before USCIS for an interview. The USCIS agent will question each spouse separately and compare their answers. If the answers are inconsistent, the agent may call in an Immigration and Customs Enforcement (ICE) agent to investigate the crime of marriage fraud. Now, I've been married for almost 7 years, but I don't remember specifics about my first year with my wife. My brain doesn't work that way. I suspect that if a USCIS agent interviewed my wife and I separately, there would be discrepancies (much to her chagrin).
If an ICE agent is called into the interview, chances are that the USCIS agent has already decided to deny the applications. The ICE agent will tell you that they are still investigating, but in reality ICE is simply trying to obtain statements to use against you in any potential federal criminal case for marriage fraud.
The moral of the story is two fold: 1) Do not commit marriage fraud. If you do, ICE will catch it. They will arrest the alien spouse, prosecute him/her in federal court and if convicted that alien spouse will have to serve a federal sentence and then face deportation. The U.S. citizen spouse can also be prosecuted and sentenced in federal court. 2) Hire a competent immigration attorney and tell them the truth about everything. That attorney should know how USCIS and ICE will treat your case and can warn you about potential consequences.

Georgia Bulldogs lose talented football player to tough immigration stance

Tue, 07 Feb 2012 08:10:48 -0500

The Georgia Bulldogs learned first hand how tough immigration policies can lead to individual negative experience. Talented football recruit, Chester Brown, was heavily recruited to Georgia from his high school in Hinesville, Georgia. Chester was born in Samoa and brought to the United States by his family when he was a boy. He went to school in California and was moved to Hinesville by his family when violence was running rampant in California.
Chester enrolled in and went to school in Hinesville. He joined the football team and was an athletic standout. His dream was to become a Georgia Bulldog. The Georgia Bulldog's dream was to have him. Just another American success story right?
The problem arose when a rule requiring every potential student to prove their lawful status in the United States was brought to light. Chester was a child when he came to the U.S. He had no documentation to prove his status. Chester's family also were unable to provide the proper documentation. So, no Georgia Bulldogs for Chester. And no Chester for the Georgia Bulldogs.
Stories like Chester's are going to become more prevalent in the years to come. Children brought to the U.S. by the parents, either lawfully or unlawfully, integrate into our society. They become neighbors, friends, boyfriends or girlfriends, of U.S. citizens. The learn the language. They learn the culture. All while the ties to the country they were born in dissolve, if they were ever present in the first place. Now, upon the age of maturation, they are told that they need a driver's license, social security card, and other documentation to prove their lawful status. They are stuck between two countries. One, they may barely know, and one they call home, but will not accept them. Through no fault of their own, these children, are left stateless.
Legislation, specifically the Dream Act, has been proposed but not passed to address this issue. But the wheels of justice move very slowly. For thousands of talented kids, raised and educated in the United States, they will not move fast enough. For Chester, this was a lose-lose situation for both him and for the University of Georgia. These stories happen more frequently than you would probably imagine. The stereotype of an Hispanic apple picker taking American jobs is not the reality. Kids that look and talk and act like any other American born child are the reality.

U.S. Citizen Child Deported to Columbia

Mon, 09 Jan 2012 13:18:31 -0500

An American citizen child was recently deported to Columbia because there was nothing to indicate that she wasn't Columbian.

Fifteen year old Jakadrien Turner was born in Texas. She doesn't speak Spanish. She and her family have no ties to Columbia. Yet, this little girl was physically deported from her home country to to the foreign land of Columbia in a perfect example of why government oversight is and should continue to be a prized and celebrated American attribute.

The child was arrested on a petit theft charge in Houston, Texas. She made the grave error to give law enforcement a false name and tell them that she was from Columbia. Apparently, that is all it takes for a wayward child to get deported from the United States and physically removed from the custody of the child's parents.

The real question, however, is how immigration authorities, with all of their power, intelligence, and consolidated networking, could make such an eggregious error. The answer is shocking. Authorities claim that there was nothing to indicate that the child was not Columbian. Plain and simple.

This case goes to show how a 15 year old child can so easily find herself in the middle of a country that she has never been to, with a people who do not speak her language, with no money, no resources, and no familial support. Unlike in criminal proceedings where everyone is entitled to an attorney, in immigration proceedings, you are only entitled to an attorney at your own expense. If you can't afford an attorney, you don't get one. Even if you are a 15 year old U.S. citizen.

This case has made national headlines because Jakadrien is a child. But the implications go far beyond this case. The question remains: How many U.S. citizens have been deported who suffer from indigency, mental health issues, or other barriers that prevent them from being able to represent themselves in a dauntingly immense immigration court system.

Immigration officials, for the most part, make every effort to do their jobs in a fair and legal manner. But when you have a system that is underfunded and overextended, more and more mistakes are going to follow. Read more about Jakadrien's case here.

U.S. Supreme Court to Review Arizona Immigration Law

Tue, 13 Dec 2011 09:57:26 -0500

The United States Supreme Court has indicated that it will hear the State of Arizona's appeal of a ruling that struck down the State's law criminalizing the unlawful presence of aliens. By passing this state law, Arizona has challenged the federal position that immigration remains a federal issue and that the federal government has sole authority to legislate in the immigration arena.
The U.S. Supreme Courts decision will either pave the way for other states to follow Arizona's lead, or will shut the door to Arizona and other states from encroaching on the federal government's historic monopoly on immigration enforcement. This decision will have a dramatic effect on the lives of thousands of immigrants, both lawful and unlawful. It will also affect minority U.S. Citizens.
Many minorities and lawful immigrants have argued that Arizona's law leads to racial profiling and harassment of both U.S. citizens and non U.S. citizens that are here lawfully. Arizona's immigration law has led to state law enforcement officers increasing efforts to ferret out individuals who are here unlawfully. In doing so, those that are here lawfully are subjected to increased scrutiny. Imagine, as a U.S. citizen, having to account for your U.S. citizenship at every interaction with law enforcement or government agency. Having to respond to questions like, "Where's your birth certificate? Is it certified? Why is your name mispelled? Why is your address incorrect?"
Post 9/11 laws, like the Real ID Act, have led to more and more government intrusion into the lives of U.S. citizens, lawful permanent residents and those here with valid visas. Anyone who has been to the DMV lately can attest to this fact. The U.S. Supreme Court's decision will either increase the bureacracy, or stem the tide. Thousands will be affected.

BIA Strikes Down Miranda-Like Warnings For Immigrants

Wed, 02 Nov 2011 16:50:39 -0500

Jose, a lawful permanent resident, crosses the border into Mexico to retrieve his nephew, a citizen of Guatemala. Jose attempts to bring his nephew into the United States by using his son's birth certificate for entry. Jose's son is a U.S. citizen by birth. Jose is stopped at the border and interrogated by Customs agents. During this interrogation, Jose admits to using his son's birth certificate to bring his nephew across the border. Jose is then issued a Notice to Appear before an Immigration Judge for a removal hearing. During the hearing, Jose moves to suppress his admission because the Customs agent failed to advise Jose that he had a right to hire a lawyer and that any statement that he made would be used against him in the removal proceedings. Is Jose right?

If Jose were charged with a criminal offense, his statements would be suppressed because the Customs agent violated his Miranda Rights. That is, Jose has a right to remain silent, the right to have an attorney present prior to and during any questioning, and the right to have an attorney appointed to him at no cost, if he can't afford an attorney.

However, Jose was not charged with a crime. He was charged with being removable from the United States for violating the immigration laws. According to the Board of Immigration Appeals in Matter of E-R-M-F & A-S-M, 25 I&N Dec. 580 (BIA 2011), Jose was not entitled to any warnings until he was "placed in formal proceedings." In other words, until the Notice To Appear was filed with the Immigration Court, which would be long after he was questioned, he is not entitled to be told that he has the right to an attorney being present, at his own cost, before any questioning.

So what have we learned from this case? It is important to get the word out to immigrants everywhere (lawful permanent residents, nonimmigrant visa holders, unlawful presence aliens) that you have the right to hire an attorney and that any statement that you make will be used against you in the removal/deportation proceedings. Because the Government will not tell you.

Despite Prosecutorial Discretion Memo, Low Priority Immigrants Continue to Be Placed In Removal Proceedings

Tue, 20 Sep 2011 10:59:10 -0500

Despite a relatively new ICE memorandum instructing authorities to prioritize their removal efforts of immigrants who are deemed to be inadmissible or removable, we are still seeing how authorities are resistant to change. ICE agents and attorneys continue to place low priority immigrants in removal proceedings. One example is that of Jennifer Lopez, a 21 year old who was brought to the United States when she was a child. She cares for her ill U.S. Citizen siblings. You can read about her here.

No Miranda Rights for Aliens

Tue, 16 Aug 2011 10:39:43 -0500

The Board of Immigration Appeals recentely ruled that immigrants are not entitled to advisal of Constitutional Rights for purposes of immigration proceedings, until they are placed in actual removal proceedings. This means that when an ICE agent detains an immigrant, he or she is not required to read the immigrant Miranda-like warnings prior to questioning. You can find the BIA decision in Matter of E-R-M-F & A-S-M-, 25 I&N Dec. 580 (BIA 2011).

Record Number Deportations

Tue, 26 Jul 2011 13:09:10 -0500

There were a record number of immigrants deported last year. Many were deported for relatively minor criminal infractions, including driving or driver's license infractions and DUIs. The government is focusing more and more on deporting those with criminal convictions, including minor criminal convictions. The government deports lawful permanent residents ("greencard holders") as well as those here unlawfully. This article underscores the importance of knowing what effect a plea of guilty or no contest, even to the most minor criminal offense, will have on an immigrant's status in this country.

New ICE Memo Suggests Refocusing Deportation Efforts

Fri, 24 Jun 2011 15:36:18 -0500

A new ICE memo issued this month advises ICE officials and Government attorneys to use their discretion in seeking deportation for non-citizens. While the memo suggests that the government officials should focus on deporting immigrants with criminal records and a history of immigration violations, it counsels officials to use discretion in which cases to prosecute, paying particular attention to those who have served in the military, those who came to the US when they were children, those with mental or physical disabilities, and others with positive factors. The question remains whether the soldiers on the line, i.e. ICE agents and government attorneys, will adhere to the memo. If you think you, or a loved one, might qualify for prosecutorial discretion, give us a call.

ICE arrests and seeks deportation of thousands in nationwide raid

Wed, 22 Jun 2011 09:51:04 -0500

Operation "Cross Check" netted 2,400 arrests last month in a nationwide raid. The operation focused on those with outstanding deportation orders, those who had previously been deported and then returned, and those with past criminal convictions. This story underscores the importance of non-U.S. citizens, even greencard holders, in obtaining immigration assistance before entering a plea to any criminal charge. Even the most minor criminal conviction could be the basis for deportation for a lawful permanent resident. Lawful permanent residents often call our office after entering a plea of guilty to a criminal case and tell us that they believed that the conviction or withhold of conviction would not affect their immigration status only later to be served with a notice to appear charging them with removability. Many have been counseled by their criminal lawyers that there would be no negative immigration consequences. The law is extremely convoluted and complex relating to when and what criminal convictions will lead to removal of non-U.S. citizens. Read more about the raid here.

Lawful Permanent Resident May Be Deported Over Decade Old Misdemeanor

Thu, 16 Jun 2011 07:25:50 -0500

A 55 year old woman who has lawfully lived in the United States since she was a baby is facing deportation based on a 2001 misdemeanor drug possession charge. ICE conducted a pre dawn raid on her home. She has lived her entire life in the United States and has no ties to Italy, her country of citizenship. Yet, she is subject to deportation based on an old minor criminal conviction. Read more here. Although there may be forms of relief available to her, this story illustrates the importance of taking every criminal charge seriously when you are not a U.S. citizen.