Scott’s New Era Immigration

If you know someone who is out of status here in the United States and has been the victim of a crime, he or she may be eligible for a U Visa. U visas are available to foreign nationals or aliens who are in the United States  and entered without inspection (“EWI”) or  have overstayed an original visa grant.

U visas have even been considered and granted by U.S. Citizenship and Immigration Services (“USCIS”) based on the following scenarios.

• A foreign national who was in a common law marriage, and has two U.S. children with her common law husband. Her husband  is later killed. She is eligible for a U visa.

• Likewise, a client while working for an employer is involved in a robbery and assists in finding the escaped criminal is yet another example of someone who qualifies.

Qualifying Criminal Activity for U visas are listed in 8 C.F.R. Sec. 214.14.  U visas petitions require the filing of form  I-918 and a certification by the respective police department, amongst other requirements.  A U visa also entitles the individual to a workers’ permit, and the possibility of adjusting to a U.S. permanent resident.  If an individual or alien is in removal proceedings they may obtain temporary or permanent relief through the grant of a U visa.  U visas are complex and require representation by an experienced U.S. Immigration lawyer.

For further information, you may contact our office at info@scottcclaw.com or visit our website at www.scottcclaw.com where our telephone numbers are listed for your convenience.

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)

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

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