May 23rd, 2012
On March 28, 2012, the U.S. Supreme Court issued an important decision, Vartelas v. Holder, No. 10-1211, rejecting the retroactive application of a provision of an immigration law passed by Congress in 1996 that has prevented many lawful permanent residents (LPRs) from returning to the United States after a trip abroad. Citing the “deeply rooted presumption” against applying new laws retroactively, the Court ruled 6-3 that LPRs who temporarily leave the country cannot be denied readmission on account of criminal convictions that occurred before the law took effect.
The Justice Department argued that LPRs with certain criminal convictions may be barred from re-entering the United States any time they leave the country—even if the law in effect at the time of their guilty pleas did not make them eligible for deportation or ineligible for reentry to the United States. The Supreme Court properly rejected this argument, noting that the government’s interpretation effectively prevented such LPRs from ever leaving the country.
In sum, before Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, lawful permanent residents who had committed a crime of moral turpitude could return from brief trips abroad without applying for admission to the United States. However, after enactment of IIRIRA n 1996, lawful permanent residents who had committed a crime of moral turpitude were required to reapply for admission to the U.S. and the crime of moral turpitude (even though committed before the 1996 law) would place the lawful permanent resident into removal proceedings. This U.S. Supreme Court decision concludes that a returning lawful permanent resident cannot be placed in removal proceedings for a conviction of a crime involving moral turpitude that was committed before the 1996 IIRIRA laws.
Tags: 1996, 212(h), 212(i), 245(i), AAO, actor, Adam Walsh Act, adjustment of status, admission, adopted child, advance parole, affidavit of support, aged-out children, appeals, approval notice, arrest, arriving alien, asylum/refugee petitions, athlete, automatic citizenship, B-1, B-2, battered spouse petitions, BIA review, biometrics, brother, C, cancellation of removal, CBP, child, citizenship, conditional status, consular, conviction, crew, crimes involving moral turpitude, crimes of moral turpitude, D, daughter, death of petitioner, death of sponsor, deferred inspection, department of homeland security, department of state, deportation, derivative beneficiaries, detention, DHS, diversity visa lottery, DNA, doctor, dual citizenship, E-1, E-2, E-3, EB-1, EB-2, EB-3, EB-4, EB-5, embassy, employment authorization, entry without inspection, expedited removal, extreme hardship, family & employment sponsorship, farm worker, fiancé visas, Florida, forms, freedom of information act, G, good moral character, green cards, Guyana, Guyanese, H-1A, H-1B, H-1B1, H-1C, H-2B, H3, habeas corpus, Haiti, Haitian, Honduras, HRIFA, humanitarian., ICE, immediate relative, immigrant visa, Immigration Attorney, immigration lawyer, inadmissibility grounds, international adoptions, investor visas, J, joint sponsor, K-1, K-2, K-3, K-4, Kissimmee, L, labor certification, lawful permanent resident, legalization, M, marriage, marriage fraud, Miami, military, motion to reopen, musician, NAFTA, national visa center, naturalization, nonimmigrant visa, notice of hearing, notice to appear, NSEERS, nurse, O, Orlando, P, parent, passport, physician, preference category, priority worker, professor, prosecutorial discretion, public charge, receipt notice, registry, reinstatement of petitions, relief from removal, religious worker petitions, removal, request for evidence, S, SEVIS, sister, skilled worker, son, special immigrant, spouse, student visas, T, Tampa, temporary protected status, TN, tourist visa, travel, U, unlawful presence, unskilled worker, USCIS, V, veterans, visa waiver program, voluntary departure, waivers, widow, widow petitions, withholding of removal
Posted in Immigration Court, Removal/Deportation | No Comments »
May 23rd, 2012
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their criminal attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The rule established through this case was that criminal defendants must be advised by their criminal attorney of the immigration consequences of a guilty or no contest plea in criminal proceedings. However, the case failed to state whether the rule applies retroactively, meaning, can criminal defendants who pled before 2010 (when the case was decided) claim ineffective assistance of counsel and challenge their prior convictions. In the State of Florida, the criminal courts have held that the Padilla decision is not retroactive and only applies to convictions after 2010.
Well, the U.S. Supreme Court will soon revisit this issue and decide whether the rule established in Padilla v. Kentucky, a 2010 decision, applies retroactively (or before 2010). The U.S. Supreme Court granted certiorari in Chaidez v. United States to determine whether Padilla applies to persons whose convictions became final before the 2010 court decision. If the U.S. Supreme Court rules that the 2010 Padilla decision is retroactive, then noncitizen convicted before 2010 that were not informed by their criminal attorney that their plea carries a risk of deportation may have an opportunity to vacate their convictions. This would allow many noncitizens who were removed/deported or currently in removal proceedings to challenge criminal convictions where they were not properly advised of immigration consequences of their pleas.
Tags: 212(h), 212(i), 245(i), AAO, actor, Adam Walsh Act, adjustment of status, admission, adopted child, advance parole, affidavit of support, aged-out children, appeals, approval notice, arrest, arriving alien, asylum/refugee petitions, athlete, automatic citizenship, B-1, B-2, battered spouse petitions, BIA review, biometrics, brother, C, cancellation of removal, CBP, child, citizenship, conditional status, consular, conviction, crew, crime, crimes involving moral turpitude, crimes of moral turpitude, criminal conviction, D, daughter, death of petitioner, death of sponsor, deferred inspection, department of homeland security, department of state, deportation, derivative beneficiaries, detention, DHS, diversity visa lottery, DNA, doctor, dual citizenship, E-1, E-2, E-3, EB-1, EB-2, EB-3, EB-4, EB-5, embassy, employment authorization, entry without inspection, expedited removal, extreme hardship, family & employment sponsorship, farm worker, fiancé visas, Florida, forms, freedom of information act, G, good moral character, green cards, Guyana, Guyanese, H-1A, H-1B, H-1B1, H-1C, H-2B, H3, habeas corpus, Haiti, Haitian, Honduras, HRIFA, humanitarian., ICE, immediate relative, immigrant visa, Immigration Attorney, immigration lawyer, inadmissibility grounds, international adoptions, investor visas, J, joint sponsor, K-1, K-2, K-3, K-4, Kissimmee, L, labor certification, lawful permanent resident, legalization, M, marriage, marriage fraud, Miami, military, motion to reopen, musician, NAFTA, national visa center, naturalization, nonimmigrant visa, notice of hearing, notice to appear, NSEERS, nurse, O, Orlando, P, padilla, parent, passport, physician, preference category, priority worker, professor, prosecutorial discretion, public charge, receipt notice, registry, reinstatement of petitions, relief from removal, religious worker petitions, removal, request for evidence, S, SEVIS, sister, skilled worker, son, special immigrant, spouse, student visas, T, Tampa, temporary protected status, TN, tourist visa, U, unlawful presence, unskilled worker, USCIS, V, veterans, visa waiver program, voluntary departure, waivers, widow, widow petitions, withholding of removal
Posted in Immigration Court, Removal/Deportation | No Comments »
May 23rd, 2012
In 2005, the Board of Immigration Appeals (Board) issued the precedent decision Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005). The case involved a petitioner born in North Carolina who underwent sex reassignment surgery and then amended her birth certificate, reflecting her transition from male to female. Subsequently, she married her husband in North Carolina and filed an I-130 petition on his behalf. The Board noted that North Carolina law does not permit individuals of the same gender to marry each other. The petitioner legally amended her birth certificate to reflect her change in gender designation, and the evidence the petitioner submitted to the Board included her amended birth certificate. Consequently, the Board found North Carolina considered the petitioner to be female (per sex reassignment) under its laws and deemed her marriage to the beneficiary to be a valid heterosexual marriage. Although evidence of sex reassignment surgery was submitted in the Lovo-Lara case, the Board’s decision does not require submission of evidence of surgery in order to establish a valid heterosexual marriage. Rather, the reasoning underlying the Board’s decision suggests that the federal government should defer to how the state/local jurisdiction in which a claimed marriage takes place recognizes a legal change in gender for purposes of heterosexual marriage.
In the case of a spousal Form I-130 or I-129F involving the claimed marriage between two persons of the same birth sex, the submission of evidence is required to show that one of the individuals had in fact undergone sex reassignment surgery to show a change of gender. Benefits based upon marriage may be approved on the basis of a marriage between a transgender individual and an individual of the other gender if the Petitioner/Applicant establishes 1) the transgender individual has legally changed his or her gender and subsequently4 married an individual of the other gender, 2) the marriage is recognized as a heterosexual marriage under the law where the marriage took place (Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005)), and 3) the law where the marriage took place does not bar a marriage between a transgender individual and an individual of the other gender.
Tags: 212(h), 212(i), 245(i), AAO, actor, Adam Walsh Act, adjustment of status, admission, adopted child, advance parole, affidavit of support, aged-out children, appeals, approval notice, arrest, arriving alien, asylum/refugee petitions, athlete, automatic citizenship, B-1, B-2, battered spouse petitions, BIA review, biometrics, brother, C, cancellation of removal, CBP, child, citizenship, conditional status, consular, conviction, crew, crimes involving moral turpitude, crimes of moral turpitude, D, daughter, death of petitioner, death of sponsor, deferred inspection, department of homeland security, department of state, deportation, derivative beneficiaries, detention, DHS, diversity visa lottery, DNA, doctor, dual citizenship, E-1, E-2, E-3, EB-1, EB-2, EB-3, EB-4, EB-5, embassy, employment authorization, entry without inspection, expedited removal, extreme hardship, family & employment sponsorship, farm worker, fiancé visas, Florida, forms, freedom of information act, G, good moral character, green cards, Guyana, Guyanese, H-1A, H-1B, H-1B1, H-1C, H-2B, H3, habeas corpus, Haiti, Haitian, Honduras, HRIFA, humanitarian., ICE, immediate relative, immigrant visa, Immigration Attorney, immigration lawyer, inadmissibility grounds, international adoptions, investor visas, J, joint sponsor, K-1, K-2, K-3, K-4, Kissimmee, L, labor certification, lawful permanent resident, legalization, M, marriage, marriage fraud, Miami, military, motion to reopen, musician, NAFTA, national visa center, naturalization, nonimmigrant visa, notice of hearing, notice to appear, NSEERS, nurse, O, Orlando, P, parent, passport, physician, preference category, priority worker, professor, prosecutorial discretion, public charge, receipt notice, registry, reinstatement of petitions, relief from removal, religious worker petitions, removal, request for evidence, S, SEVIS, sister, skilled worker, son, special immigrant, spouse, student visas, T, Tampa, temporary protected status, TN, tourist visa, transgender, U, unlawful presence, unskilled worker, USCIS, V, veterans, visa waiver program, voluntary departure, waivers, widow, widow petitions, withholding of removal
Posted in Family-Based Visas | No Comments »
September 20th, 2011
Unfortunately, many individuals don’t know what to expect if Immigration comes knocking at their door due to an expired visa/I-94, initiation of removal/deportation proceeding due to commission of a crime, or execution of a final order of removal/deportation. Also, Immigration can visit your job and detained you at your worksite. Recently, Immigration has engaged in numerous worksite raids at corporations that hire a large number of immigrants.
So, what are the DO’S and DON’TS if Immigration comes knocking at your door or job?
1. Be Respectful: Refer to the Immigration Officer as “Sir” or “Madam” or “Officer.” Though the Immigration Officer may not treat you with respect, you should show respect because the decisions regarding your detention, issuance of bond, or release initially rest in their hands.
2. Get the name of the Immigration Officer: ask the officer for his/her business card. If he/she is not willing to give you a business card, then casually ask for his/her name. Make a mental note or write down their name.
3. Ask the Immigration Officer where you are being taken: this is very important because in most states, Immigration has more than one detention center. As an immigration lawyer, I find it difficult to locate my clients when the family members cannot tell me where my client is being held. Sometimes, it takes 2-3 hours to call every detention center in the state to locate my client. Immigration is not always very helpful.
4. While being processed-ask to use the phone: the first place Immigration will take you is to an office where you will be fingerprinted and photograph. They will also ask you questions about your status and family member and create a “Record of Proceeding”. Also, they will serve you with a “Notice to Appear,” which initiates the removal/deportation process. Politely ask the Immigration officer if you can use the phone to call your family member to let them know you are safe.
5. Inform family member where you are & name of Immigration Officer: Once you get to speak with your family member, give them the name of the detention center you will be taken to and the name of the Immigration officer. This information will be helpful to the immigration attorney hired to represent you.
6. Do Not Sign any Documents: The Immigration Officer will present numerous documents to you for your signature. DO NOT SIGN ANY DOCUMENTS. Simply write, “Refuse to Sign” in the signature block. There have been numerous cases where immigrants sign documents not knowing that they are waiving a judicial hearing and choosing expedited removal/deportation. Once an attorney is retained to represent you, the attorney will review the documents and advise you of the legal ramifications of each document.
7. Do Not Submit to Threats by Immigration Officer: I have heard stories of Immigration Officers making threatening remarks such as “If you don’t sign these documents or cooperate, we will hold you here for 6-9 months” or “If you hire an attorney, we will deport you tomorrow”. Do not believe these statements. Removal/deportation is a process and takes at least 2-3 months with a final order or removal/deportation. Immigration Officers don’t like to see you hire an attorney because you will be advised of reliefs and waivers that will allow you to remain in the U.S. Additionally, they know that when an attorney is involved, they must be on their best behavior because the attorney will not hesitate to speak with their supervisor or file a complaint against the Department of Homeland Security.
8. Exercise Right for Bond Hearing: The Immigration Officer will ask you if you want a hearing to determine bond – always answer, “Yes”. Contact your family members and tell them to hire an immigration attorney to represent you at the hearing.
9. Be Patience: It is tough to be held in a detention center and to be away from your family. I always urge my clients to be patience with the process and don’t rush to give up and opt for removal/deportation without a hearing. In most cases, my clients that are held in detention are eligible for some type of relief from removal/deportation but we can only apply for such relief in immigration court. There is a 1-2 years backlog in the immigration court but when you are in detention center, your case can take 3-6 months.
10. Inform Immigration Officer of Special Dietary Needs or Medical Conditions: If you have special dietary or food needs (such as vegetarian), make sure you inform the immigration officer so they can make the proper arrangements for your food. Also, if you have any medical conditions and require daily medicine, advise the immigration officer so they can have your family bring your medicine or make arrangements for you to have your medicine at the detention facility.
Remember, at the end of the day, though Immigration Officers try to make you feel that they are trying to help you, they are more concerned with their job security and showing statistically that the U.S. is safer due to increased removal/deportation. The only person who has your best interest in mind is your immigration lawyer. Our office is available 24/7 to assist in these types of detention emergencies – if you get the voicemail message, simply hit “1” to be connected directly to the lawyer’s cell phone.
Tags: Miami Tampa Orlando Immigration Lawyer Deportation Removal Waiver Bond Hearing Visa Green Card Citizenship Naturalization Work Permit Family Sponsorship Petition Employer Investor
Posted in Removal/Deportation | No Comments »
September 9th, 2011
On August 18, the Obama Administration announced the formation of a high-level working group to review approximately 300,000 pending removal cases and administratively close proceedings against individuals found to be a “low” enforcement priority. The review process, which will be conducted by members of the Departments of Justice and Homeland Security, is intended to ease the tremendous backlog in the immigration courts and to ensure that government resources are focused on cases involving the government’s highest immigration enforcement priorities—public safety, national security and border security. In determining whether to exercise prosecutorial discretion, working group members will take relationships of LGBT families into account, just as they will all other family ties. Although no category of cases will receive a blanket exercise of favorable prosecutorial discretion, certain categories of individuals—including veterans, long-time permanent residents, minors, the elderly, individuals who have been present since childhood, individuals with serious disabilities or health issues, nursing or pregnant women, and victims of domestic violence or other serious crimes—will receive particular attention. Respondents whose cases are administratively closed will be eligible to apply for an employment authorization document through USCIS.
Tags: tampa miami orlando immigration lawyer removal administ
Posted in Removal/Deportation | No Comments »
August 24th, 2011
When a lawful permanent resident is returning to the United States from a visit abroad, s/he is required to “apply for admission” by presenting a valid passport and lawful permanent resident card (green card) to the U.S. Custom and Border Protection Officer. A visitor presenting a tourist visa (B-1/B-2) or any other non-immigrant visa is also required to “apply for admission” by presenting a valid visa and a valid passport. In both cases, it is at the discretion of the U.S. Custom and Border Protection Officer to decide whether he will allow entry by the lawful permanent resident or visitor. Again, the mere possession of an entry document does not guarantee admission to the United States. Under the Immigration and Nationality Act (INA), the U.S. immigration laws, the Officer can apply section 212 entitled “General classes of aliens ineligible to receive visas and ineligible for admission” to deny entry to a lawful permanent resident or visitor.If the U.S. Custom and Border Protection Officer denies entry to a visitor, the s/he will be requires to board a plane back to his or her native country. In the case of a lawful permanent resident, if the U.S. Custom and Border Protection Officer finds the lawful permanent resident inadmissible under section 212 of the INA, then the Officer will confiscate the lawful permanent resident card (green card) and issue a parole document, temporarily allowing the lawful permanent resident into the U.S. with the condition of him/her reporting to a U.S. Custom and Border Protection Office for further inspection or appear in Immigration Court for removal or deportation proceedings. My officer has represented many residents and visitors placed in these types of proceedings.It is important for lawful permanent residents (or green card holders) to understand that merely returning to the U.S. once a year for a few days or even very often does not “automatically revalidate” a green card where the lawful permanent resident actually resides abroad. The U.S. Custom and Border Protection Officer can independently determine that the lawful permanent resident status has been abandoned based on evidence obtained during questioning at the border.
Tags: citizenship, crime, deportation, green card, I-94, immigration lawyer, jacksonville, Kissimmee, lawful permanent resident, marriage, Miami, naturalization, Orlando, removal, sponsor, Tampa, visas, work permit
Posted in Permanent Residents | No Comments »
August 24th, 2011
Many newly admitted permanent residents do not know their rights while living in the United States.Follow link to this guide to understand your rights and responsibilities as a lawful permanent resident.http://www.uscis.gov/files/nativedocuments/M-618.pdf
Tags: citizenship, deportation, free consultation, green cards, naturalization, orlando immigration lawyer, permanent residents, removal
Posted in Permanent Residents | No Comments »
November 5th, 2010
In the midst of the present economic crisis, U.S. Citizenship and Immigration Services (USCIS) has announced an increase in the filings fees of all applications except the naturalization application.USCIS is a primarily fee-based organization, with about 90 percent of its budget coming from fees paid by applicants and petitioners for immigration benefits. The law requires USCIS to conduct fee reviews every two years to determine the funding levels necessary to administer the nation’s immigration laws,process immigration benefit requests and provide the infrastructure needed to support those activities.USCIS’s fee revenue in fiscal years 2008 and 2009 was much lower than projected, and fee revenue in fiscal year 2010 remains low. While USCIS received appropriations from Congress and made budget cutsof approximately $160 million, this has not bridged the remaining gap between costs and anticipated revenue. A fee adjustment is necessary to ensure USCIS recovers the costs of its operations while also meeting the application processing goals.
Tags: citizenship, filing fees, immigrants, Immigration, immigration lawyer, orlando immigration lawyer, visas
Posted in Fee Increase | No Comments »
May 11th, 2010
As of May 10, 2010, the appearance of the I-551 card or green card will change. The production of the new Permanent Resident Card will commence on May 10th and will be the only version of the I-551 that will be issued. See sample image.
Posted in Green Card (I-551 Card) | No Comments »
