Immigration Visa Attorney Blog

Nine years ago Jose Padilla, a Honduran-born Vietnam veteran who had lived in the United States legally for four decades, asked his attorney if pleading guilty to a drug charge would impact his immigration status. The lawyer told Padilla it would not.

The lawyer was wrong.

Padilla pleaded guilty to a felony drug charge and received a five year sentence. It meant he would almost certainly be deported after serving his time. Padilla said later he only agreed to the deal because of his lawyer's assurance he would not be deported and appealed the decision based on his sixth amendment right to competent representation.

On March 31 the Supreme Court decided by a 7 to 2 margin that attorneys must advise non-citizen clients when there is a possibility they can be deported.

Writing on behalf of five members of the majority Justice John Paul Stevens said that "It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the mercies of incompetent counsel."

"Deportation is an integral part," Stevens added, "indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes."

While Padilla's is an extreme case (he was arrested with 1,000 pounds of marijuana in his truck) the ramifications will be felt across the country.
Immigrants facing very minor legal issues could see the benefits of the court's decision. Padilla's lawyer for the Supreme Court case noted that that with 13 million legal immigrants living in the United States it is self-evident that tens of thousands will be impacted by this decision.

You don't have to look far to find cases where proper counsel would have helped legal citizens.

Continue reading "Right To Immigration Advise Is Protected Says The Supreme Court" »

Certain acts, events or circumstances can render a foreign national ineligible for a visa or inadmissible to the United States. One such event is certain criminal convictions.It matter not if such conviction occurred in Columbus, Ohio, Troy Michigan, or anywhere in the US or overseas. Any foreign national that is convicted of, or admits to having committed, a crime of moral turpitude or a violation of any U.S. or foreign law or regulation relating to most controlled substances is considered inadmissible. Generally, a foreign national seeking admission to the United States who has committed a crime of moral turpitude would need to apply for a waiver of inadmissibility using Form I-601, Application for Waiver of Ground of Inadmissibility. However, there are exceptions to the rule of inadmissibility.

Under the Immigration and Nationality Act § 212(a)(2)(A)(ii)(II), a foreign national who has committed a single crime of moral turpitude will still be admissible if the maximum penalty possible for the crime is less than one year imprisonment and the foreign national was not sentenced to more than six months in prison. If the foreign national's conviction falls under the aforementioned Petty Offense Exception, they need not apply for a waiver of inadmissibility. Along the same lines, a foreign national's petty offense crime cannot be used against them as evidence of bad moral character for purposes of voluntary departure or to stop the clock for cancellation of removal.

It is important to remember that under the Petty Offense Exception the foreign national's conviction or admission must be their first and only crime. Notably, the foreign national need not be convicted of the crime to be deemed to have committed the crime for admissibility purposes. If a foreign national admits to having committed a crime, or even admits to having committed the elements of a crime, the Department of Homeland Security will treat such admissions the same as if the foreign national was actually convicted of the crime. Thus, foreign nationals should be aware of, and immigration attorneys should counsel their clients on, the consequences of making admissions to the Department of Homeland Security.

In light of the immigration law recently passed in Arizona, similar legislation has been proposed in other states and, unfortunately, Michigan will be no exception. House Representative Kim Meltzer announced on May 7, 2010 that she is in the process of drafting and will be introducing an immigration bill modeled after the Arizona law in the Michigan Legislature. Though the actual bill has not yet been introduced, Representative Meltzer has been speaking publicly about the contents of the fledgling bill.

In particular, the proposed bill would give Michigan law enforcement the authority to inquire about an individual's immigration status if they have been stopped for any lawful reason. The stopped individual can be questioned about and required to prove their lawful status on the spot. Any individual that cannot prove their lawful status risks being arrested. Interestingly, according to Representative Meltzer, a Michigan Driver's License would be acceptable proof of lawful status. This begs the question, will the inability to produce a Michigan Driver's License lead to the presumption that an individual is not lawfully in the United States?

Representative Meltzer has stated the bill would prevent law enforcement from solely considering race, color or national origin when questioning an individual about their immigration status. The exact language of the bill remains to be seen, but based on Representative Meltzer's comments race, color and national origin can be a consideration, just not the only consideration. If the bill is in fact drafted in such a fashion, it would essentially be giving law enforcement the ability to discriminate and racially profile. Regardless of the reasons, discriminatory conduct and racial profiling should never be tolerated, let alone legalized by the Legislature.

There are several immigration-related bills that have been introduced in the Michigan Legislature not patterned after the Arizona law, including one which was just passed into law. The new law requires employers that are servicing public contracts to verify the legal status of their workers. The new law also prevents cities and counties from enacting legislation that restrains local authorities enforcement of immigration-related laws, otherwise known as sanctuary ordinances. There are also bills pending in the Michigan Legislature that require heightened scrutiny and additional verification of the employment authorization of foreign national workers.

With each immigration law passed at the state level, the immigration system becomes more and more fractured at the national level. Michigan is not the first state, and it certainly will not be the last state, to try to address the national system's deficiencies through mis-guided policies at the state level. These state immigration laws are a clear indication of more to come and Congress would be wise to reform immigration at the national-level before each state takes it upon itself to enact its own immigration law.

On May 5, 2010, President Obama held a Cinco de Mayo Reception to celebrate Latino culture in America. He used the opportunity to voice his concerns regarding Arizona's recently enacted immigration law and, more generally, to discuss comprehensive immigration reform. In his remarks, the President signaled the need for comprehensive immigration reform and his desire to begin work on such reforms this year. He also made his disapproval of Arizona's immigration law clear, stating "the answer isn't to undermine fundamental principles that define us as a nation. We can't start singling out people because of who they look like, or how they talk, or how they dress. We can't turn law-abiding American citizens --- and law-abiding immigrants --- into subjects of suspicion and abuse." The President is undoubtedly sensitive to the racial profiling and discrimination that will inevitably stem from the enforcement of Arizona's new law.

Though it may comfort some to know the Administration will be closely monitoring Arizona's law, and evaluating the civil rights and other implications it may have, the only solution in the end will be comprehensive immigration reform. Comprehensive immigration reform, as noted by President Obama, will be difficult, especially because it will require bipartisan support which has not been easy to come by as of late. Regardless, it is the only solution that will "close the door on [the] kind of misconceived action" that we recently witnessed in Arizona.

In his speech, President Obama called for "common-sense, comprehensive immigration reform." He did not provide many details regarding his vision for comprehensive immigration reform, but what he did say was enlightening nonetheless. The President predictably spoke out in favor of securing our borders and holding businesses accountable for "undermining American workers and exploiting undocumented workers." The most interesting comment, though, was what the President said regarding illegal immigration. Specifically, the President stated that people who are living illegally in the U.S. should "admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law -- and then get in line and earn their citizenship."

In one very carefully crafted yet informative sentence, the President laid out his proposal for how to handle the current population of people living in the United States illegally. Though he never used the word amnesty, the President appears to be endorsing a program that would ultimately allow undocumented foreign nationals to earn U.S. citizenship. The problem of illegal immigration is one of the greatest challenges facing comprehensive immigration reform and it is encouraging to know the President has a realistic and constructive solution to the problem. Before comprehensive immigration reform can be debated in Congress, however, a proposal must first be put forth. No bill has been introduced, but the Senate Democrats have developed a conceptual proposal for immigration reform. The introduction of the Senate Democrats' immigration reform plan is the first measure in what will surely become the next hotly debated issue of the Obama Administration and, needless to say, the world and history will be watching closely as the debate unfolds.

In the absence of national-level immigration reform, Arizona has passed its own version. Unfortunately, it is not the type of immigration reform that most in the immigration community would appreciate. Specifically, Arizona's new law requires foreign nationals to carry their immigration documents at all times and allows law enforcement to question any individual suspected of being in the U.S. illegally. Aside from the obvious problems of racial profiling and discrimination, laws such as this one continue to fracture an already cracked immigration system. This law will also, as many in the law enforcement community have pointed out, impede law enforcement's efforts. Not only will this monopolize police time with questioning individuals "suspected" of being an illegal immigrant, but individuals who have witnessed crimes may not be willing to come forward if they fear being deported.

Arizona's recent immigration law demonstrates why nationwide, comprehensive immigration reform is so desperately needed in this country. If not for the benefit of the foreign nationals whom have waited so patiently for a better system, then to prevent radical legislation like that passed in Arizona. Immigration is a federal issue under the constitution. By allowing individual States to dictate immigration reform, the system is going to become even more inconsistent and piecemeal. Arizona's recent legislation should send a clear message to Congress that it needs to regulate this area of the law and it must act promptly. If not, each State will take it upon itself to pass its own version of immigration reform, as Arizona has done. Clearly, other States will be inspired to introduce similar legislation or perhaps even worse.

Interestingly, Janet Napolitano, Homeland Security Secretary, preceded Jan Brewer as Governor of Arizona and vetoed several comparable bills that were placed on her desk for signature. Many different civil rights and immigration groups have staunchly opposed the bill, and the Mexican Government has even voiced its criticisms of the bill. Various groups have also vowed to challenge the law on constitutional grounds if signed into law by Governor Brewer. One can only hope that Governor Brewer realizes this law would do much more harm than good -- socially, politically and economically -- and veto the bill. The Governor has not made her position known and has another day to veto or sign the bill. Undoubtedly, the country, and perhaps other countries, will be watching closely to see what the Governor's decision will be.

The American Bar Association recently released an executive summary on the findings of a study conducted to understand the current U.S. system for removal. It discribed the current system as "crisis." The study focused on the four governmental bodies that handle removal cases, namely the Department of Homeland Security (DHS), the Immigration Courts, the Board of Immigration Appeals (BIA) and the Federal Circuit Courts of Appeals. Not surprisingly, the report found that the four governmental bodies have actually contributed to the problems associated with the overwhelming number of removal cases and "are not doing as good a job as they should" in providing fair decision making and due process. To rectify these problems, the executive summary suggests a complete overhaul of the current removal system, but also provides scaled-back reforms that would require less political impetus to be realized.

With the goals of ensuring political independence and adjudicatory fairness, as well promoting greater efficiency and professionalism, the executive summary proposes three alternatives for revamping the system. The first option would be to create an independent Article I Court to replace the Immigration Courts and BIA. The trial function of the Immigration Courts and the appellate function of the BIA would both be handled by the Article I Court. The second approach would, similarly, eliminate the Immigration Courts and BIA, but replace them with an executive adjudicatory agency. The third, and final, proposal is considered the hybrid approach. The Immigration Courts and BIA would be replaced by an administrative agency that would handle trial-level cases and an Article I Court that would hear appeals. The executive summary ultimately concludes that the Article I Court is the best option, with the administrative agency being a close second. Despite the apparent advantages of the hybrid approach, the authors of executive summary do not endorse this method "since it is too complex and too costly relative to the other two options."

Acknowledging that overarching changes would take significant time to implement, if ever fully realized, the executive summary makes recommendations for smaller scale initiatives that could be undertaken to foster more immediate change. The suggestions, which would require the enactment of legislation, include:

• Requesting additional immigration judges;
• Permitting all eligible non-citizens to adjust to lawful permanent residence or eliminate bars to entry;
• Amending the definition of "aggravated felony" and eliminating retroactive application of such provisions;
• Curtailing the use of the administrative removal process by DHS and the use of expedited removal for non-citizens at the border or within the U.S.;
• Amending the definition of "crime involving moral turpitude";
• Eliminating or narrowing the mandatory detention provisions to persons who are clearly a risk;
• Restoring judicial review of discretionary decisions under an abuse-of-discretion standard;
• Permitting the Federal Circuit Courts of Appeals to remand cases to the BIA for further fact finding;
• Extending the deadline for filing a petition for review of a BIA decision; and
• Establishing a right to representation in adversarial removal proceedings and for individuals in groups with special needs.

Given the current contentious political climate, reforms that can only be accomplished through legislation seem highly unlikely to come to fruition anytime soon. Alternatively, the governmental bodies should concentrate on implementing the proposed reforms that do not require legislative action. These reforms include:

• Increasing the use of prosecutorial discretion by DHS officers and attorneys and giving DHS attorneys greater control over removal proceedings;
• Requiring asylum claims arising in expedited removal proceedings be adjudicated by asylum officers;
• Reducing the use of detention and expanding alternatives to detention;
• Requiring more written and reasoned decisions from immigration judges and more written decisions from the BIA;
• Increasing training opportunities for immigration judges;
• Limiting the conduct of hearings by videoconference to procedural matters in which the non-citizen has given their consent;
• Increasing three-member panel review at the BIA;
• Permitting de novo review by the BIA of immigration judge factual findings and credibility determinations;
• Amending regulations to require BIA removal orders to contain notice of appeal rights; and
• Modifying and expanding the Legal Orientation Program to reach additional non-citizens needing legal assistance.

The executive summary's objectives are certainly honorable and commendable, but unfortunately not completely plausible given the current political climate in the U.S. The governmental bodies should, at the very least, work towards implementing the recommendations that do not require legislation. And, hopefully, they will continue to strive towards the larger reforms that are necessary to ensure independence, fairness, efficiency and professionalism in the adjudication of removal cases

Department of Homeland security is stepping up enforcement nationwide. We see stepped-up enforcement in Columbus, Ohio and throughout Michigan as in many parts of the US. By now, many have likely heard the news surrounding the February 10, 2010 federal grand jury indictment of Opas Sinprasong. The E visa holder and restaurant owner is charged with 10 counts of wire fraud, 40 counts of failure to pay employee federal payroll taxes, 5 counts of false swearing in an immigration matter and 4 counts of harboring illegal aliens. Last Wednesday, a $1 million bond was set for Opas Sinprasong. The specific allegations against Mr. Sinprasong include keeping the passports of his foreign national employees to ensure they would not leave the U.S., requiring his employees to work up to 32 hours of overtime per week without proper compensation, and requiring his foreign national employees to pay him illegal and exorbitant visa preparation fees. The highly publicized story of Opas Sinprasong's flagrant immigration and tax violations, unfortunately, draws attention to a small minority of individuals that abuse the system and overshadows the vast majority of law-abiding foreign nationals.

What many have likely not heard about is the behind-the-scenes story of how Mr. Sinprasong was brought to justice through the efforts of an anonymous employee, a Colorado University student and the Immigrant Legal Center. The anonymous employee worked at one of Mr. Sinprasong's restaurants and was brave enough to notify El Centro Humanitario (The Humanitarian Center for Day Laborers) in Denver when he noticed Mr. Sinprasong's foreign national employees were working around the clock. A Colorado University student, Diego Pena, who was volunteering at El Centro Humanitario encouraged the anonymous employee to share his concerns with the Immigrant Legal Center. The Immigrant Legal Center was then able to compile information and gather evidence for local law enforcement.

If not for the combined efforts of the individuals and organizations noted above, Mr. Sinprasong would still be mistreating his foreign national employees. Just as it is important to uncover and prosecute immigration violators, it is also vitally important to prevent vulnerable foreign nationals from being taken advantage of by foreign or U.S. employers. The anonymous employee who reported Mr. Sinprasong should be an inspiration to us all to be more cognizant of foreign nationals being exploited and to immediately report any such suspicions to the proper authorities.

In many parts of the US including Columbus, Ohio and Michigan, Refugees and Asylees struggle to find a new life and to forget their troubled past. The Child Status Protection Act (CSPA) offers much needed assistance to them. As we discussed in prior blogs, the Child Status Protection Act (CSPA) prevents certain foreign national children from losing their preferential immigration benefits due to "aging out" at 21 years old. The asylum and refugee provisions of the CSPA are especially vital in helping to keep families together. Sections 3 and 4 of the CSPA provide special assistance to the unmarried children of asylees and refugees whether accompanying or following-to-join their parent. The CSPA allows the children of asylees and refugees to maintain their child status and, thus, their eligibility for derivative status even after reaching the age of 21 years old.

For the most part, so long as the child of the asylee or refugee was under the age of 21 when their parent applied for asylum or refugee status, they will be eligible for derivative benefits even after attaining the age of 21 years old. To qualify as a child included on an asylum or refugee application, the aging out child must be listed on Form I-589 or Form I-590, respectively, prior to a final determination on the application. Indeed, a parent can add a child of any age to their asylum application before it is adjudicated, and the child will be entitled to derivative benefits so long as the application was originally filed while the child was under 21 years of age.

The asylum and refugee provisions of the Child Status Protection ACT (CSPA), also apply to children whose parents did not include them on their asylum or refugee application. If the asylee or refugee did not include their child on their application, the aging out child may obtain derivative status if their parent filed Form I-730 within two years of being granted asylum or refugee status. If Form I-730 was pending at the time the CSPA was enacted, a child who aged out would still be eligible for derivative status if the I-730 petition was originally filed before the child turned 21 years old. The USCIS even considers an approved I-730 application to be pending if the U.S. Embassy or Consulate has not issued travel documents. Asylees and refugees, by definition, have experienced extremely difficult circumstances in their lifetime, but they can be encouraged by the fact that laws exist to help keep their family together.