Scott’s New Era Immigration

We often have detained clients who contact our office after signing to be removed from the United States. These clients have often been detained unexpectedly and are tired. Suddenly an ICE Officer appears advising client that their case may be “hopeless”. The ICE officer then provides the option for the client to sign to be removed.

Detained individuals will typically be presented with two different documents when in immigration detention.  An 826 Notice is presented and a 10 page document where a detained individual can agree to waive an attorney and select options including being removed from the United States.   Often, the client signs to be removed, and later regrets this option and reaches out to immigration legal counsel to help them.

The purpose of this short blog article is to provide instructions on what to do when a detained individual in ICE custody seeks to withdraw and retract what he or she signed which has now caused them to be in the process of being physically removed and deported without any legal representation.

Fortunately, if you know anyone in this situation, it is NOT too late to retract and withdraw having signed to be removed from the United States. In order to withdraw what is now a signed Stipulated Order to be deported, however,  one must engage an Immigration attorney to take very swift action.

An Immigration attorney may file a “Motion to Withdraw Stipulated Order” inU.S. Immigration Court.  In order for the motion to be successfully granted, facts are important.  Speaking with Immigration counsel and establishing the facts is essential for the attorney to prepare a well written Motion to Withdraw.  Once the Judge agrees to withdraw the Stipulated Order, a detained or non detained foreign national may move forward in fighting against being removed or deported from the United States.

If you have any questions or concerns, our attorneys are available to meet with you, and you may contact us at info@scottcclaw.com. Or Visit our website at www.scottcclaw.com where our different office telephone numbers are listed for your convenience.

ScottMond Law Firm

www.scottcclaw.com

Asylum

Asylum status may be given to an individual who meets a very strict definition of refugee. A refugee or asylee is defined as any person outside his or her county of nationality (or in the case of a persons having no nationality, their last habitual residence) who, because of a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion, is unable or unwilling to return to that country, and is unable or unwilling to avail him or herself of the protection of that country. There are conditions where a refugee is also someone still residing in their country which is not discussed in this brief article.

An asylee must apply within one year of arrival in the U.S.  If the foreign national is placed in removal, and has never applied for asylum relief, they must then seek Withholding of Removal or CAT in court which is explained below. Once an individual is granted asylum they will eventually be able to adjust to a Permanent Resident and eventually Citizenship.

Withholding of Removal

While this option is similar to asylum, withholding of removal and CAT (explained below) is available when a foreign national does not meet the criteria for asylum, such as filing within one year. Also, Withholding of Removal/CAT is available if a foreign national is placed in removal or deportation proceedings.

Withholding of Removal found in INA 241(b)(3); 8 CFR 208.16 requires an applicant to demonstrate the following:

An applicant must show a clear probability of harm, or that it is more likely than not that her life or freedom would be threatened (on account of race, religion, nationality, membership in a particular social group, or political opinion) if returned to his or her home country. The standard here is higher than asylum “which is a well founded fear”.

Withholding is mandatory if Attorney General determines that the applicant’s life or freedom would be threatened. While there are important benefits gained such as the applicant’s ability to receive work authorization, this is not an automatic right to remain in the Unite States.  The Department of Homeland Security (“DHS”) may impose conditions, remove the individual to a third country, and/or move to revoke the status. Client cannot apply directly for lawful permanent residency, and client cannot petition to bring family members to the U.S. except certain conditions and exceptions are met.

CAT

CAT, which stands for the United Nations (“UN”) Convention Against Torture (“CAT”) is also available to clients who are in removal proceedings or who have failed to meet the criteria for asylum. Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

If it is more likely than not that an applicant will be tortured then no State shall expel, return or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.

The above explanation of Asylum, Withholding of Removal and CAT are complex legal arguments which require an experienced immigration attorney to navigate the hurdles and obstacles when an individual is fearful and it is unsafe to return home. If you or someone you know is in serious danger if they return to their home country, you may contact us with your questions or concerns at info@scottcclaw.com or 703.955.7998.

ScottMond Law Firm

The purpose of this article is to discuss the often confusing subject of whether an assault and battery in the State of Virginia is an aggravated felony prohibiting a U.S. non-citizen who is convicted of such a crime from applying for many forms of relief if placed in removal.  Without relief, a non-citizen client will be removed (deported) from the United States.

If you or your loved one are currently charged with assault and battery as a non-citizen of the United States, it is important to discuss with your immigration attorney how to have your case classed as a non-aggravated felon so you may have the needed relief and not be removed.

The terms categorical, and modified categorical approach sounds akin to another language, and it is.  It is the language of immigration removal courts and attorneys when determining the overall immigration consequences of a criminal act by a non-citizen.  Many changes have taken place with the law, in which it is not the purpose of this article to discuss.  What is important to note, however, is that these terms determine how far ICE government attorneys, or the defense removal attorney can “dig” into the prior criminal record to determine if a “crime of violence” or “aggravated felony” has occurred making a non-citizen removable from the United States.

The next important item is to determine who has the burden of proof.  Who ever has the burden of proof has to prove by digging into the criminal records that the crime was not an aggravated felony.  So for instance, if it is the government’s burden of proof to show that a non-citizen’s crime is an aggravated felony, they can start digging into police reports, notes, colloquy, pre-trial notes, sentencing reports and any other item that may be in the court file if it is not clear on the face of the disposition of the case that a crime of violence has not occurred.  In the alternative, if it is the burden of the non-citizen to show that an aggravated felony has not occurred, the attorney for the non-citizen must dig into those same records to sustain the burden.

What does this mean? It is critical to find experienced immigration counsel that understands the importance of researching critical case law in various circuits to avoid devastating consequences with the current above standard to determine whether a non-citizen will be removed in the State of Virginia.  The posture of the case is critical as to how the case is litigated.  Likewise, the non-citizen in removal should feel empowered to go and pull a copy of their entire court file from the court and sit down and discuss it with his or her attorney of choice. If a non-citizen client is detained, it is important for them to have 3rd party who will pull the ENTIRE criminal file, not just the disposition.  Of course, immigration counsel can pull the file as well, but ask for a full copy of the criminal file and review it with your immigration counsel.

If you have questions, or would like to speak with one of our attorneys, we invite you to contact us at info@scottcclaw.com for a fast response, or call us at one of our offices listed on the first page of www. scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

INA 245(I)  is the latest grace extended by the U.S. government to legalize anyone in the United States back in April 2001 who overstayed their current U.S. visa or walked across the border without inspection (EWI).

In order to be considered grandfathered under 245i, an alien must satisfy the following requirements pursuant to 8 CFR 245.10:

1) The alien was the beneficiary of a qualifying immigrant petition or application for labor certification filed on or before April 30, 2001.
2)  The qualifying immigrant visa petition or the qualifying application for labor certification was “properly filed” and “approvable when filed”.
3) The principal alien was physically present in the United States on December 21, 2000, if the alien’s qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001.

Once it is determined that an alien is grandfathered, they remain grandfathered until they are eligible to adjust through almost any means.  In other words, an alien may adjust when a visa number is available, if they win the diversity visa lottery, or if they become the beneficiary of an I-140 or I-130 to name a few examples.

Whether one’s spouse or children are grandfathered or may adjust depends if they fall into one of 3 categories.

1st Category: If the grandfathered foreign national was married to his or her spouse at the time they became grandfathered pursuant to 245i, then the spouse is grandfathered and able to adjust status.

2nd Category: If at the time the foreign national was grandfathered he or she was NOT married, his or her spouse is NOT grandfathered.  But if the foreign national is married when they adjust status, their spouse may also adjust as a beneficiary.

3rd Category:  If at the tine the foreign national was grandfathered and adjusted status he or she was not married, and then their spouse or child will not be eligible to adjust status.

Please note that the rules for spouse also apply to children who are not permanent residents.  If you have any questions you may email us at info@scottcclaw.com or contact us at one of our offices in the DC, VA, MD area. You will find our telephone numbers and locations listed on our website at www.scottcclaw.com.

ScottMond Law Firm

The purpose of this article is to hopefully reduce the huge mistake that costs U.S. Permanent Residents and Non-Citizens their right to travel back to their home country. Specifically, if a Permanent Resident or Non-Citizen with a brief criminal history travels abroad they are often faced with the surprise of arriving at the airport back in the United States only to be told by Customs Border and Patrol (CBP) that they are “inadmissible”. In other word, they are banned from reentering the United States.

The reason this is often so surprising to foreign nationals/non-citizens, is that he or she often did hire criminal attorneys and even immigration attorneys to ensure that they would not be “deported” if they plead and/or were convicted of a criminal charge.  A foreign national will then feel confident about the immigration consequences of their actions and rest easy.

However, it is critical that a  foreign national BEFORE travelling abroad consult with an immigration attorney to ensure that although they are not removable from the United States they will not face inadmissibility issues when they attempt to reenter the U.S. after a brief trip abroad.

The Law

Criminal inadmissibility grounds will or may prevent a noncitizen from being able to obtain lawful status in the United Stats; and may also prevent a noncitizen who already has lawful status from being able to return to the U.S from a trip abroad in the future.

Controlled Substance Offenses. Conviction or admitted commission of a controlled Substance Offense, or DHS reason to believe that the individual is a drug trafficker will also trigger inadmissibility.  It is critical to note here that even if there was not a conviction and a noncitizen just verbally admits to a CBP officer that he trafficked drugs at some point the noncitizen will be inadmissible.  This applies to other crimes not only drug trafficking.

Crime Involving Moral Turpitude. Conviction or admitted commission of a Crime Involving Moral Turpitude (CIMT), which category includes a broad range of crimes, including:

• Crimes with an intent to steal or defraud as an element (e.g. theft, forgery)
• Crimes in which bodily harm is caused or threatened by an intentional act, or serious bodily harm is caused or threatened by a reckless act (e.g., murder, rape, some manslaughter/assault crimes)
• Most sex offenses

There is a Petty Offense Exception which it is not the purpose of this article to discuss.

Also, prostitution and commercialized vice makes a noncitizen inadmissible, and conviction of two or more offenses of any type plus aggregate prison sentence of 5 years.

Again, even if a non-citizen has consulted with an immigration attorney in conjunction with criminal counsel and he or she has been told that they will not be removed or deported from the United States this is not enough. Based on pleading or prior conviction(s) of certain crimes a non citizen may be inadmissible back to the United States, FOREVER, after a brief trip abroad. It is imperative that a noncitizen seek an experienced immigration attorney’s advice before travelling abroad.  You may contact one of our immigration attorneys at the information provided below with any questions.

ScottMond Law Firm

Immigration Lawyers Serving Families, Individuals and Businesses

www.scottcclaw.com

info@scottcclaw.com

(703)261.6881 (main office number)

(301)251.4003 (Maryland Office)

(703)966-0907 (emergency client line only)

Categorical, Modified Categorical, Matter of Silva-Trevino—what does this all mean for someone who has been placed in removal based on past criminal convictions?

This brief article gives a simplified explanation of how someone, who is not a lawyer, may understand a couple critical ways to challenge ICE (“the government”) if they are placed in removal based on past criminal convictions. However, as this is a highly complex area of the law, immigration counsel is an absolute necessity to win in removal or deportation proceedings.

If a non-citizen is convicted of a Crime Involving Moral Turpitude. (“CIMT”), they may be placed in removal proceedings sooner or later. A CIMT in very simple terms is doing something that hurts society and is “very bad”.  When someone is placed in removal proceedings first it should be determined whether the offense is really a CIMT deeming the non-citizen removable from the United States.  If it is found that the non-citizen has indeed committed a CIMT, then determining the type of relief or defense is essential. This article only discusses whether a non-citizen is even removable, or has the government made a mistake in placing the non-citizen in removal proceedings.

When a non-citizen is placed in removal or deportation proceedings after they have already been tried in a court of law for their crime; he or she may feel they are on trial a second time. Federal and State law clearly prohibits double jeopardy and the retrying of a case. However, it is debatable under current litigation practices between the government and the non-citizen’s attorney that a “retrial” is not actually taking place.

Over the past years, when a non-citizen was placed in removal, the only evidence that the judge could consider was the actual statute in which the non-citizen was convicted to determine removability.  The government could try to introduce other evidence that proved what the actual  “conduct” of the non-citizen was, but this evidence would not be considered.  This method applied if the statute was not divided into small subparts.

If it was found that the statute incorporated removable and non removable offenses and the least “culpable” behavior did not meet the federal definition of a removable offense, the non-citizen would win.  In simple terms, if the State statute that an individual is convicted of violating is so broad that no one can be sure by looking at the statute alone what the non-citizen was even convicted of, the non-citizen wins if the statute includes offenses in which a non-citizen may NOT be removed.   It all depends on how the State decided to write the statute.  It would not be fair to remove someone if they were convicted for only touching someone against their will in a battery situation, where a CIMT required hitting, or hurting and the non-citizen did not commit the behavior which renders him or her to have committed a CIMT and therefore be removable.  It just so happens that the statute is written so broad no one can really tell.  Under this categorical approach the Immigration judge or court is only allowed to look at the conviction which is the indictment, plea, verdict, and sentence. (sometimes jury instructions). This is only how far they can “dig” to determine which section of the statute has been violated. And if in this digging no one can really tell because the statute is written very broad— the non-citizen wins and they would not be removed from the United States.

However, if the statute is divisible meaning that it is written with subparts and very specific in itemizing different types of violations, the non-citizen’s conviction is scrutinized much closer. The Immigration judge and court may allow the government to dig even further into the non-citizen’s file, not to determine conduct— but to determine what part of the itemized statute the non-citizen was actually convicted of. This is referred to as the modified categorical approach.  Now the evidence that can be looked at to determine what subpart of a divisible statue the non-citizen was convicted of includes, but may not be limited to, the factual basis for a plea, or the jury instructions in case of verdict.

Very recently, significant and dramatic changes have taken place that makes it tougher for the non-citizen in removal proceedings.  Under the new case Matter of Silva-Trevino the world of “how to determine if a non-citizen committed a CIMT” has become more challenging.  Now the court and judges can dig even deeper into the non-citizens criminal file.  The new method claims to still focus on the elements of the state statute to see if it is a CIMT, and not look at the actual circumstances underlying the offense. However, now even police notes amongst other evidence is being used to determine if a crime is a CIMT, and the burden of proof has also shifted largely from the government to an alien that is removable. (At least one judge suggested that the police note would need to be admitted and attached as actual evidence to the record of conviction to be considered).  Please note that some of the complex analysis has been left out here purposely to help the reader focus on the big picture.

One troublesome point to highlight is if a state statute is broad and involves removable and non-removable offenses then the burden is on the non-citizen to go and find a case or cases that show the criminal statute was used to prosecute and convict someone for conduct that did not involve moral turpitude (i.e. a CIMT) and then maybe the non-citizen will win.

Overall, the deeper digging where will it stop?  Keeping abreast of current cases with your immigration counsel is critical as this issue may in the future reach the U.S. Supreme court and the law continues to evolve. The non-citizen needs to work with their Immigration attorney to find a way to use the “deeper digging” to their advantage.  It is also important to argue that Matter of Silva-Trevino was wrongly decided if your immigration attorney sees this as advantageous and appropriate aggressive representation.

Please feel free to contact our office with any questions at info@scottcclaw.com . You may call us at 703.955.7998 or 202.296.0122. We have offices in Northern Virginia, Maryland and Washington D.C.

ScottMond Law Firm

www.scottcclaw.com

Marriage between U.S. Citizens and Lawful Permanent Residents to Nationals of other countries has become the norm rather than the exception. U.S. Immigration laws have strict guidelines and requirements for couples to demonstrate that their marriage under 2 years is “bona fide”.  In order to meet this mandate, U.S. Citizenship and Immigration Services (“USCIS”) will only issue a 2 year green card to individuals married under 2 years at the time the I-130 petition and concurrent I-485 application is filed by U.S. citizen or Legal Permanent Resident(“LPR”) status on behalf of his or her foreign national spouse.

It has been said jokingly that a true and bona fide marriage can only be determined if in fact there is serious conflict.  In other words, marriages that are real where two people who love each other unite from different backgrounds will inevitably experience conflict within their first two years.  USCIS’s view on marital conflict that may even result in separation is often misunderstood.

The purpose of this short article is to provide a proper perspective on marriage problems and how USCIS views a separation within the first 2 years of marriage; and the immigration consequences to the foreign national spouse who is a Conditional Permanent Resident (“CPR”). This article also provides an overview of options for when a waiver of the I-751 (application to remove conditions from Green Card) may be waived in the event a divorce occurs.  It is very important to understand that a break down of a marriage, or marriage difficulty does not mean that the marriage is not bona fide.  USCIS fully acknowledges this fact.

USCIS stated in a recent memo that unless a CPR is able to establish eligibility for a waiver, he or she must file the I-751 jointly with his or her U.S. citizen or Lawful Permanent Resident spouse.  INA §216(c)(3)(A) and (B) and 8 CFR §206.4(c) provide that USCIS may approve the I-751 and remove the CPR’s condition if

• The CPR and petitioning spouse (unless deceased) appear for an interview; and
• USCIS determines the following facts are true:
  • The marriage was legal where it took place;
  • The marriage has not been terminated;
  • The marriage was not entered into for the purpose of procuring permanent resident status; and
  • No fee (other than to an attorney) was paid for the filing of underlying I-130 or I-129F

The statute and regulations require approval of the I-751 petition if the above conditions are met. USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings. However, legal separation or initiation of divorce or annulment proceedings may suggest that the CPR entered into the marriage for the sole purpose of procuring permanent resident status.

If a local USCIS officer encounters an I-751 petition jointly filed by co-petitioner who are still married but are legally separated and/or are in pending divorce or annulment proceedings, the ISO issues the CPR a Request for Evidence with an 87-day response period. In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree or annulment along with a request stating he or she would like to have the joint filing petition treated as a waiver petition.  This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refiling.

If the CPR provides evidence that the proceedings have been finalized, the Immigration Officer amends the I-751 petition to indicate that the CPR is eligible for a waiver of the joint filing requirement based on termination of marriage and adjudicates the petition on the merits in accordance with established procedure. In so doing, the ISO determines whether there is sufficient evidence the CPR entered the marriage in good faith, or  requires an in person interview.

If the CPR fails to respond to the RFE, or the CPR’s response does not satisfactorily establish that the marriage has been terminated, the Immigration officer assess evidence of the bona fides of the marriage to determine whether the petition should be approved, denied, or relocated for an in-person interview. Again, the interview is based on the four factors being met as enumerated above.

In many cases the divorce will take place during the response period to the RFE, which affords the CPR the opportunity to establish eligibility for the waiver by submitting a copy of his or her final divorce decree or annulment.  If the CPR does not respond to the RFE, or if the CPR’s response does not establish eligibility for the waiver, the ISO denies the notice and refers the case to the Immigration Court to initiate removal proceedings.

If a case is referred to the Executive Office of Immigration Review (EOIR) for an Immigration Judge to initiate removal proceeding all is not lost.  A CPR may successfully establish eligibility for the waiver before the judge with the assistance of legal counsel.

For further information you may contact our office at info@scottcclaw.com or 703.261.6881.  Calls and Emails are returned from 8am to 8pm EST.

ScottMond Law Firm

www.scottcclaw.com

On August 20^th, 2010 U.S. Immigration Customs and Enforcement (“ICE”) issued a memorandum from Assistant Secretary John Morton that will make a non-citizen or alien who is placed in removal proceedings eligible for relief if they have a pending Petition for Alien Relative (“Form I-130 or petition”).

Basically, ICE and United States Citizenship and Immigration Services (“ USCIS”) will now work more efficiently together so that non-citizens placed in removal will either have his and/or her case expedited or dismissed without prejudice.  This would occur once ICE verifies that the individual is indeed eligible for the relief.

Detained individuals or aliens eligible for I-130 relief would seek to complete the adjudication of all applications and petitions referred by ICE within 30 days for detained aliens.  Once their are no adverse factors there should be prompt move to dismiss proceedings before the Executive Office of Immigration Review ( “EOIR”).

Undetained individuals or aliens would have their cases adjudicated within 45 days.   Where an underlying application or petition exists and ICE determines eligibility for relief from removal, the case should also be promptly dismissed with EOIR.

The memorandum sums up the standard of review as follows:

Only removal cases that meet the following criteria will be considered for dismissal:

• The alien must be the subject of an application or petition filed with USCIS to include a current priority date, if required, for adjust of status;
• The alien appears eligible for relief as a matter of law and in the exercise of discretion;
• The alien must preset a completed Application to register Permanent Residence or Adjust Stats (Form I-485), if required; and
• The alien beneficiary must be statutorily eligible for adjustment of status ( a waiver must be available for any ground of inadmissibility).

For more information you may contact our office at info@scottcclaw.com or call (703)955.7998.

ScottMond Law Firm

www.scottcclaw.com

A knock at the door and the dreaded happens.  All you can think of is why me?  An Immigration ICE official is at the door searching for you or your family member/friend. You knew your visa had expired and with valid reason.  You ran out of money for school, you can’t return to your home country where it is hopeless, destitute and no future exists for you at this time.  Plus all your family or friends may be here in the United States. Nonetheless, here you are caught with an ICE official at your door who wants you to surrender yourself and your travel plus visa documents.  Although you may have a good reason, U.S. Immigration laws are very strict regarding overstaying visas or falling out of status.

Cooperating with the ICE official is the first essential step in resolving your immigration status problems. Do not resist them for any reason, but promptly retain good aggressive immigration counsel.  Foreign Nationals are usually immediately detained, but can be released in as short as 24-48 hours with bond being arranged by immigration counsel.

Determining whether you have good immigration relief is the first step of immigration counsel. There are several immigration waivers and cancellation of removal may be available even if  you have a criminal record or encounters with the law on your record.

The overall process starts with an ICE officer coming out.  They usually ask that you appear the next morning, or may take you into custody the same day.  Once they process you, your attorney through DRO or Immigration court will arrange for bond.  Next a Notice to Appear  (NTA) is issued and you may be detained at an Immigration Facility until bond is paid.  In Virgina, Hampton Roads and Rappahannock Regional Jail are the standard facilities used.  Others are currently being opened.  Having an attorney enter there appearance through a G-28 helps to ensure you are not transferred to another state.  Finally, a court date is set and an immigration judge will then set a date once your immigration relief is identified.

For further information and questions please call (703)955.7998 or email glendiar@scottcclaw.com

Glendia Rice-Mondesir

Attorney-at-law