Scott’s New Era Immigration

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

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)

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