Category: محامي جرين كارد

Fourth Circuit Rules that 1st Degree Arson is Aggravated Felony

The fourth circuit ruled  that Maryland’s 1st degree arson is an aggravated felony for immigration purposes. The petitioner was a lawful permanent resident who pleaded to first degree arson under Maryland law. She was sentenced to 365 in prison. in 2013, the Service placed her in removal proceedings for her first degree arson conviction. She was placed into removal as an alien who was convicted of an aggravated felony under 101(a)(43)(E) of the INA. Her attorney argued that her first degree arson was not an aggravated felony since the property was not used in interstate commerce to fall under the federal 1st degree arson statute. The immigration judge ruled against her and she appealed. The Board, in a one member panel, upheld the immigration judge’s decision.

Before reaching the main issue of whether the first degree arson conviction was an aggravated felony, the court decided that the Board’s decision warranted Chevron deference. The court ruled that it does. It then moved to consider the first degree arson conviction for immigration purposes. the court compared Maryland’s first degree arson to the federal statute and found them identical except for the interstate commerce element. The court ruled that Congress did not intend for statutes to be exact matches for them to be aggravate felonies under the INA’s definition. The court ruled that even though Maryland’s first degree arson was not an exact match, it could still be deemed an aggravated felony for immigration purposes. The court reasoned that giving the statute a different meaning would contradict Congress’s intent. The court, however, had to go through the second step of Chevron since there was a contradictory ruling from a sister court. The court ruled that the precedential decisions on which the Board relied deserved deference under the Chevron analysis.  The court thus denied the Petition for review.

This decision shows that aggravated felonies are very hard to determine. It was not clear whether there was an argument under Padilla v. Kentucky or if counsel moved to rescind the conviction based on lack of immigration consequences advise. It is very important to hire an experience counsel to help you in removal proceedings, especially if you have been convicted of a serious crime which might be classified as an aggravated felony under 101(a)(43(E) of the INA.

The decision is ESPINAL-ANDRADES v. HOLDER, and you can read it here.

What do you think?

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Hatch Introduces I-Squared Act of 2015 To Help Skilled Workers

Senator Hatch introduced the ‘‘Immigration Innovation Act of 2015’’ or the ‘‘I-Squared Act of 2015’’ on the Senate today. The Act aims to get more skilled immigrants into the United States. It has three components:

1. It raises the amount of H1B visas available for skilled immigrants. The Act raises the number of visas depending on the time-frame during which the current numbers are exhausted. The Act also codifies giving H1B dependents Employment Authorization Documents (EAD). Dependents are not currently allowed to work.

2. The Act also aims to move the backlog on immigrant visa by increasing the available number of visas available for immigrant visa petitions by changing the per capita numbers for countries.

3. The Act allows immigrants to move employer more easily by allowing them to stay in status for 60 days after their employment is terminated.

The Act deals with some other things, including raising funding for STEM programs.

Visit this link to read the Act.

The I-Squared Act of 2015 tries to fix many of the persistent problems that have led to the departure of many American educated students from the United States.

USCIS Redesignates Syria for TPS

The Department of Homeland Security redesignated Syrian nationals for Temporary Protected Status (TPS). Temporary Protected Status is a status used by the government to halt the deportation of persons in the United States from countries where there is some sort of disaster or civil strife. USCIS designated Syria after the beginning of its civil war in 2011. The country has been redisignated twice after its initial designation. El Salvador, Haiti, and Syria are among the countries currently designated by USCIS.

The designation ends on September 30, 2016, unless the government redesignates Syria. Syrian nationals who were already granted the designation must reapply for redesignation by March 5, 2015. Nationals applying for the designation for the first time must apply by July 6, 2015. For eligibility criteria, please visit this link. Among the criteria is nationality of the country of designation presence in the United States, and continuous presence since the day of designation. Applicants granted TPS may not be removed or detained by the government for being present illegally. Persons granted this designation may be granted travel documents.

 

 

Don’t Hire a Non-lawyer in 2015!

There’s an Arab proverb that roughly translates to “let your baker bake your dough even if he took half of it”. I often wonder why some people hire non-lawyers to apply for their immigration benefits. There are usually two reasons: money and the tricks these notaries pay on unsuspecting immigrants that believe that they could help them.
As to the first reason,  I believe that hiring these notaries could really end up hurting you financially in the long run.  I’ve met many victims ended up paying as much as ten folds what they paid the non-lawyer to deal with their mistakes.  I once represented a very sweet couple from a former Russian republic for whom the non-attorney applied even though they had a standing removal order.  The couple had to go through the agony of fear of deportation while I worked with the government to reopen the case.  Buttom line, if they had hired a licensed attorney,  that would not have happened. 
As to the latter reason,  impersonating an officer of the court is a third degree misdemeanor in most states.  So engaging a non-lawyer to help you with your documents would be akin to helping someone commit a crime.  I know that these notaries are masters at telling you that you do not need an attorney.  At the end of the day,  attorneys have gone through the rigors of dealing with clients and had attended law school to deal with your exact situation. So why not hire someone who has your interests in their mind and have spent the time and energy to train to deal with your needs?
The best advice that anyone would give you,  is to how the right person for the job.  After all,  proverbs come from real life situations. 

Board Rules that Conditional Permanent Resident Admitted at POE Ineligible for 212(h) Waiver

The Board of Immigration Appeals ruled today that a conditional permanent resident admitted as such at a port of entry is ineligible for cancellation of removal since he was an aggravated felon. The Respondent in the case was a citizen of North Korea who was convicted of two crimes involving moral turpitude and an aggravated felony. He was admitted as a conditional resident in 1991 and was placed in removal proceedings in 2013. He conceded removability at his hearing but applied for adjustment of status along with a 212(h) waiver. The immigration judge ruled that he was ineligible for adjustment and the waiver since he was admitted to the United States and convicted of an aggravated felony. In upholding the immigration judge’s decision the Board ruled that conditional residents admitted at a port of entry is an alien admitted for permanent residence. The Board ruled that since the conviction was within 7 years of his admission, he was ineligible for cancellation of removal. Click here to read the decision.

BIA Issues Three Decisions Dealing with the Adam Walsh Act

The Board of Immigration Appeals issued three decision dealing with issues related to the Adam Walsh Act. The Adam Walsh Act prevents USCIS from approving any visa petition filed by a United States citizen if the Petitioner was convicted of a charge relating to the abuse of a minor. The Service could approve the petition if the Petitioner proves that he poses no risk to the beneficiary. The standard used for this discretionary decision is very unclear and convoluted. The decisions clarified nothing.

Unlike other immigration laws, the Adam Walsh Act does not seek to prevent an immigrant from receiving an immigration benefit but prevents a United States citizen from ever moving past a mistake he has committed. Despite the numerous arguments made by advocates to limit the law’s interpretation, the Board decided that the law was retroactive, meaning it applies to cases with convictions before its enactment. The Board also refused to delineate the standard of proof the Petitioner must meet to show that he poses “no risk” to the beneficiary, and in the third case, the Board ruled the the Petitioner bore the burden of proof in showing that his conviction is not a “specified offense against a minor”. The latter allowed the Service to use a case-by-case analysis, and permitted the Service to abdicate the long-standing categorical approach in analyzing such offenses.

As I argued before, there are several constitutional problems with the law. The Board can not rule on constitutional challenges to the laws which it applies. The task of determining the constitutionality of these laws falls on circuit and district courts around the nation. I look forward to the constitutional challenges that advocates will bring forward against this injurious law.

To read the three decision visit here.

Report Shows that Majority of Deportations are Done Through Expedited Removal Proceedings

The American Immigration Council published a report today showing that the majority of removals are being conducted through expedited removal procedures like expedited removal, reinstatement of removal, and stipulated removal. These three mechanisms, in my opinion violate basic constitutional rights including Due Process.

The three mechanisms  allow immigration officials or an immigration judge to hasten an immigrant’s removal. The first two, expedited removal and reinstatement of removal, allow an immigration officer to remove an applicant for admission at a port of entry or if found within 100 miles from the border. The procedures does not take into account the person’s contacts in the United States. The only possible recourse for the immigrant is to exhibit fear of returning to his country, after which he will be subjected to a credible fear interview. Oftentimes, the immigrant is not informed of his right to counsel or know that he had been deported.

Lastly, an immigrant could also stipulate to be removed from the United States. The report speaks about the coercive nature of the interrogation process, which raises serious Due Process concerns. During these interviews, immigration officers usually use coercive tactics to “convince” the immigrant to stipulate to be removed. These individuals are usually in detention, which raises serious issues regarding the voluntary nature of these stipulations.

The removal system is plagued with injustice and the odds are usually stacked against individuals who do not know the system and usually do not speak English.  While some might believe that these expedited removal proceedings might be the right procedures to deport people who have no right to be in the United States in the first place, they are, in my view, illegal and a slap in the face of our judicial system. America could simply do better.

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