Tuesday, December 21, 2010

Commandment #5 of Applying for Naturalization: Thou Shall Prepare Well for the Interview

There are some key points that applicants should consider as they prepare for their naturalization interview before the U.S. Citizenship and Immigration Services (USCIS). 

An applicant for naturalization must meet certain requirements.  Apart from ensuring qualification - preferably before application, the applicant must prepare well.  What is a nervous applicant to do? Here are some thoughts to help along the way. 
  • Read the N-400 Naturalization Application carefully.  It's important that the applicant understand what exactly is it that they signed and submitted to USCIS. Obviously this is best done before submitting the application.  For non-native English speakers, some of the language used in the N-400 application can be a bit confusing and intimidating.  The interviewing officer will read most of those questions verbatim.  Add to that some of the legal language peppered throughout the questionnaire, and your head can be spinning in no time. Reviewing the questions in advance will help the applicant, and the interviewing officer, to move the interview along that much more quickly.
  • Know and understand what the Oath of Allegiance really says.  An applicant for naturalization must show that he or she is attached to the principles of the Constitution of the United States, and will be required to take the Oath of Allegiance.  If the applicant doesn't know what the oath actually says, then a question might arise as to whether the applicant really understands what he or she is doing.
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

  • Lastly, before heading out the door, the applicant should review carefully the list of documents needed to ensure that he or she is bringing the documents required. Any delay, even for a simple document, is many times measured in months - not weeks.  Below you will find a document checklist and a sample interview notice.  
This may very well be my last entry for this year.  If it is, I want to wish you a Merry Christmas and a prosperous and amazing New Year.  Cheers.    





Monday, December 13, 2010

Country of Refuge: Cancellation of Removal for Non-LPRs

Recently we began a series on the strengths and benefits of our immigration law and policy. Today we'll briefly touch upon Cancellation of Removal for Non-Lawful Permanent Residents (Non-LPRs).  Cancellation of Removal for LPRs will be discussed in a different post.

Under the Immigration and Nationality Act (INA), the Attorney General has discretion to grant various forms of relief from removal. One of these forms of relief is Cancellation of Removal for Non-LPRs under section 240A(b) of the INA. This section provides that a foreign national seeking cancellation of removal for non-permanent residents must establish four statutory requirements: 

  1. Physical presence in the United States for a continuous period of ten years; 
  2. Good good moral character during that period of time; 
  3. No convictions for certain criminal offenses; and 
  4. Exceptional and extremely unusual hardship to the applicant's spouse, parent, or child, who is a United States citizen or lawful permanent resident.
There are only three decisions published by the Board of Immigration Appeals (BIA) to guide adjudicators in deciding whether an applicant can demonstrate that a qualifying relative would suffer exceptional and extremely unusual hardship: Matter of Recinas, Matter of Andazola, and Matter of Monreal.  These cases will be discussed in detail in a different post under the heading of "hardships" and "waivers".

One can argue whether the standard to show eligibility under the Cancellation of Removal provisions is too high or whether more quotas should be made available, but to those that qualify - obtaining this benefit is literally a life-saver. I have been very fortunate in my years practicing immigration law to have assisted several clients to obtain their lawful permanent resident status through Cancellation of Removal.  Take for example the case of a foreign national in removal proceedings who has a seriously ill U.S. citizen child and has no other form of relief available. If this person is removed the child would not be able to obtain the medical care needed in their home country. Without the availability of Cancellation of Removal as a form of relief, many would be removed every year from the United States to face dire and extreme hardships.  Fortunately, thanks to our generous and humanitarian immigration provisions, qualifying applicants don't have to face such hardships.

Wednesday, December 8, 2010

The United States as a Country of Refuge: A Short Introduction

From the early settlers, to modern-day immigrants, the United States continues to be a country of refuge. Although I heartily acknowledge, as an immigration attorney, that our system has many flaws that need to be addressed through advocacy, legislation, and litigation - the strengths and benefits of our immigration system are many times ignored in the heated debate over immigration.  In the next series of posts we'll touch upon several of the positive factors of our immigration law and policy.  

On the eve of the vote on the Development, Relief and Education for Alien Minors Act ("DREAM Act"), it is important to keep things in perspective.  I for one, am a very strong supporter of this measure for many reasons that are outside the scope of this entry. A good place to start would be to acknowledge that the United States admits more legal immigrants as permanent residents than all other countries in the world combined.  In 2008 for example, a total of 1.1 million individuals became LPRs in the United States as noted in a 2010 Report by the Congressional Research Service on U.S. Immigration Policy on Permanent Admissions. According to a recent report by the U.S. Department of Homeland Security, estimates of the Legal Permanent Resident Population in 2009 are in the 12.5 million range. 

Stay tuned for future posts discussing what specific elements of our immigration law and policy make the United States a country of refuge.

Monday, October 11, 2010

U.S. Supreme Court Hears Two Immigration-Related Cases This 2010 Term ("Flores-Villar v. U.S." and "Chamber of Commerce of the U.S. v. Whiting")

The U.S. Supreme Court will hear two immigration-related cases this year.  The first case is Flores-Villar v. United States and it is scheduled to be heard on November 10, 2010.  The issue in that case is whether a gender and time differentiation of U.S. citizen parents before children born overseas can obtain U.S. citizenship violates the Equal Protection Clause.   The second case, scheduled to be heard on December 8, 2010, is Chamber of Commerce of the United States v. Whiting. The issue in that case is whether provisions of Arizona state law aimed at combating the hiring of undocumented workers are preempted by federal immigration laws.  You can review the Merit and Amicus briefs submitted for both of these cases, and all other cases for this 2010 Term, by visiting the American Bar Association's "Preview of U.S. Supreme Court Cases" page. 

Several months ago I posted an entry about my visit to the U.S. Supreme Court with my teenage son.  We had a good time and I encourage readers who have never visited the Court personally, to make it a goal to do so this year. You will find useful information about the U.S. Supreme Court and the cases it will hear this year on the U.S. Supreme Court's website, including their Visitor's Guide to Oral Argument and the U.S. Supreme Court Calendar.  You can also read the biographies of current Justices and a brief overview of the Supreme Court.  Plan your visit well and be there early - lines can get really long, really soon. 

Wednesday, October 6, 2010

Immigration Enforcement on Steroids. Precursor to Comprehensive Immigration Reform (CIR)?

The Department of Homeland Security (DHS) recently announced unprecedented immigration enforcement statistics achieved under the Obama administration, including the removal of 392,000 noncitizens - 195,000 of which were convicted criminals. Also announced was the audit of more than 3,200 employers suspected of hiring illegal labor, and the approximately $50 million in financial sanctions imposed.  

“This administration has focused on enforcing our immigration laws in a smart, effective manner that prioritizes public safety and national security and holds employers accountable who knowingly and repeatedly break the law,” said Secretary Napolitano. “Our approach has yielded historic results, removing more convicted criminal aliens than ever before and issuing more financial sanctions on employers who knowingly and repeatedly violate immigration law than during the entire previous administration.”

Who would have thought that the Obama administration would be credited with a more than 70 percent increase in removal of criminal aliens from the Bush administration.  Could this be enough to convince skeptical Republicans to consider the viability of Comprehensive Immigration Reform (CIR)? 

The way that I see it, the argument of my skeptical Tea Party colleagues goes something like this: "Are you kidding? CIR? You're insane. Look, when President Reagan signed a sweeping immigration reform bill into law in 1986, the promise was that there would be a major crackdown to include tighter security at the Mexican border, that employers would face strict penalties for hiring undocumented workers, and that there wouldn't be a problem of illegal immigration anymore. 25 years later, we have 15 million more undocumented individuals here."  I see their point, somewhat.  These are fighting words after all, and that's why I enjoy talking to my Tea Party friends, over tea and crackers (no pun intended), and I avoid the issue of immigration altogether (most of the time).

Maybe President Obama is a genius after all (on the issue of immigration - mind you). If my conspiracy theory is right, President Obama is laying the groundwork to push CIR forward in the Spring of 2011. He'll bring all the skeptics together and say: "Now hold on, I know I'm not the father of the modern conservative movement, but you wanted troops on the border - and I gave it to you; You wanted more deportations, and I gave it to you - 70% more than your beloved President Bush; You wanted more work site enforcement, and I gave it to you; You wanted strict penalties for employers who hire undocumented workers, and I gave it to you; You wanted nothing to do with "amnesty", so I gave you "comprehensive immigration reform" or "earned legalization" - pick the term you like; WHAT ELSE DO YOU WANT?" Ok, maybe he won't be yelling at the end, but it sure would be nice to watch. 

Thursday, August 19, 2010

COMMANDMENT #4 of Applying for Naturalization: Thou Shall Feed Your Children (wherever they are)

Last post we discussed the definition of good moral character and how being married to more than one spouse at a time will affect a good moral character determination. As noted earlier, having good moral character is one of several requirements an applicant must meet before becoming a naturalized U.S. citizen. What constitutes good moral character, which is not defined by statute, has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. One factor that can affect a good moral character determination includes not financially supporting the applicant’s children (or spouse) - especially those not living with the applicant.

If the applicant has children, that are under 18 years of age, during the qualifying time as a Lawful Permanent Resident (LPR) (whether 3 or 5 years), then the applicant must come prepared to the interview to show that he or she has provided financially for their welfare (whether court-ordered or not). This is especially true if the applicant has children living abroad. In these cases the applicant must bring to their interview proof of support which can include a notarized letter from the former spouse or guardian, or if the children are old enough, letters from the children discussing the support that they have received. Also, the applicant must obtain records of money transfers, or wires that went to provide for their children.

Failing to pay court-ordered child support or alimony payments may also affect a determination of good moral character. Applicants should come prepared to the interview by bringing documents such as: cancelled checks, receipts, a court or agency printout of child support payments, evidence of wage garnishments, or other documentation.

An excellent resource put out by the U.S. Citizenship and Immigration Services ("USCIS") is the “Guide to Naturalization”. Readers are encouraged to review this document before submitting their naturalization application.

That's it for now folks. Stay tunned for our next post: Commandment #5 - Thou Shall Not Forget Where You Came From.

Thursday, June 17, 2010

Commandment #3 of Applying for Naturalization: Thou Shall Not Have More Than One Spouse at a Time

On our last post we discussed the definition of good moral character and how it is one of several requirements an applicant must meet before becoming a naturalized U.S. citizen. As noted earlier, what constitutes good moral character is not clearly defined by statute, although it has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. One factor that can affect a good moral character determination includes adultery and polygamy.

I know it has been said that King Solomon had 700 wives, but let’s face it, you and I are no King Solomon. This commandment of “one-spouse-at-a-time” should be self explanatory, but in my years practicing immigration law, I have encountered several cases where the applicant had been married to more than one person at a time, and didn’t even realize it. On a couple of other cases, the person thought they were married, when in fact they were not.

Some months ago I had a client that applied for naturalization. On the application he had indicated that he was married. By the time of the interview the “marriage certificate” was finally produced, and to everyone’s surprise, he was not actually married. As with many other states, Virginia first issues a 60-day marriage license to applicants. During those 60 days, the applicant takes the marriage license and presents it to the celebrant who performs the marriage ceremony. The marriage ceremony by an authorized celebrant is a necessary step for the marriage to be legally binding. The minister or other person officiating the marriage completes and signs the Marriage Register and then forwards it to the clerk of the court who issued the license. This individual never had a marriage ceremony performed by an authorized minister, and therefore never had a legally binding marriage.  They went to the courthouse, obtained a license, and had a small house party to celebrate their "marriage" thinking that nothing else had to be done.

We’ve also encountered some people that were under the genuine, albeit incorrect, impression that because they were married in their home country – and not in the United States – that their marriage back home somehow didn’t count or was not valid, and therefore they were “single”. So they find someone else, and decide to remarry, without obtaining a divorce from their home country. In other cases, the person hires an attorney in their home country to file a divorce, the divorce finally goes through, or so they think, he or she remarries in the United States, just to find out later on that their divorce did not in fact go through as the attorney had told them because of a legal technicality (it wasn’t properly filed, the appropriate signatures or seals were missing, the appropriate fees were not paid to the government office, etc).

While it is true that there is a great deal of ambiguity surrounding the meaning of the term ‘Good Moral Character’ in the context of obtaining U.S. citizenship by naturalization, there are some crimes and bad acts that may prevent one from obtaining U.S. citizenship – polygamy is one of them for sure. The moral of the story is that if you have a spouse – keep your spouse (your children will thank you for it). If you don’t keep your spouse, make sure your divorce is final. If you decide to re-marry, keep your divorce certificate because you might need it for your interview.

Stayed tuned for Commandment #4: Thou Shall Feed Your Children (wherever they are).

Tuesday, June 8, 2010

Commandment #2 of Applying for Naturalization: Thou Shall Not Pretend Never Have Been in the Big House (Unless You Truly Haven’t)

There are several requirements an applicant must meet before becoming a naturalized U.S. citizen. One of these requirements is that the applicant must be a person of “good moral character”. What constitutes good moral character is not clearly defined by statute, although it has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. Factors that affect this determination include: refusing to pay court-ordered child support; failing to file or to pay income taxes; neglecting to register for Selective Service (if you are required to do so); lying to obtain an immigration benefit; driving drunk or habitual drunkenness; adultery; and several other grounds, including being arrested or convicted for any criminal offense whether in or outside of the United States. Although not every arrest or conviction renders the applicant ineligible to apply for U.S. citizenship, an applicant who has ever been involved in any criminal proceeding should consult with an experienced immigration attorney before submitting an application with the U.S. Citizenship and Immigration Services.

All arrests and convictions should be analyzed by an experienced immigration lawyer to determine whether they render the applicant ineligible to apply or whether the applicant’s criminal history would not only result in the denial of the application, but possibly the initiation of deportation proceedings. If the applicant elects to move forward with the application, all arrests and convictions should be disclosed – even if the records have been expunged

It is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. To read the immigration definition of what constitutes a conviction INA § 101(a)(48) should be consulted. A person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. The fact that the offense might have occurred many years ago is irrelevant for removal purposes. For example, a Lawful Permanent Resident (LPR) is subject to removal from the United States for a violation of relevant immigration laws, regardless of the length of residency or the age at which it was attained. Thus, an individual who immigrated to the United States when he was a couple of months old who is now convicted of a crime at age 65 can be removed, depending on the nature of the conviction.

There are many important reasons why clients should not withhold important information from their attorneys. In my years working as an immigration attorney I have encountered people that, for one reason or another, have decided to hide important information that would have avoided problems in the future. Most people that fit this category are well-intentioned people that are extremely embarrassed by their past. Of course, there are some that think (or hope) that by not disclosing an arrest, that somehow no one will realize it. Hopefully the client feels comfortable enough with their attorney to confide in them very personal details about their past, especially when they have had any contact with the criminal justice system. The attorney also plays an important role in extracting some of this information and bringing the issue to the floor so an open and honest conversation can follow. It’s important that the applicant understand that the U.S. Citizenship and Immigration Services (USCIS) will require fingerprints to be taken as part of the application process.

When in doubt, we have clients complete an FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet. The FBI Rap Sheet is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. Once submitted, the results normally arrive within 30-60 days.

As most of our readers know, criminal convictions can have very serious consequences in an immigration matter. We recently posted an entry about the case of a Lawful Permanent Resident (LPR) who was convicted of Petit Larceny in Virginia and later placed in deportation proceedings. We encourage our readers to read that entry to see the interplay between state and federal law as it relates to the removability of criminal non-citizens.  There are ways that criminal and immigration counsel can work together to achieve the best possible results that could minimize or prevent immigration consequences.

In all, the client’s interests are better served by having an open and honest conversation about these topics. Although momentarily uncomfortable for the client, being straightforward about their past can not only save them thousands of dollars in legal fees, but a lot of heartache for them and their family in the future.

Thursday, June 3, 2010

Commandment #1 of Applying for Naturalization: Thou Shall Ensure Qualification (preferably before application)

Applicants for naturalization must make sure that they meet the minimum requirements before submitting their application with the U.S. Citizenship and Immigration Services (USCIS). One must meet all of the requirements - not just some. The website for USCIS has a lot of helpful resources such as a Brief Guide with some basic requirements and a more comprehensive and detailed Naturalization Guide

An important note to highlight is that in the best of cases the only consequence of having applied when the applicant was not eligible to, is that the applicant has lost some time and money.  This happens for example when the applicant does not meet one or more of the basic requirements. There are several other denial reasons however, mainly those that involve grounds of removability or inadmissibility, that will lead to the applicant being placed in removal proceedings.

In general, to be eligible for naturalization, the applicant must be at least 18 years old, be lawfully admitted for permanent residence, be a person of good moral character, have a basic command of the English language, and must also have a basic knowledge of U.S. History and Government. An applicant for naturalization must also show that he or she is attached to the principles of the Constitution of the United States, and will be required to take the Oath of Allegiance. The applicant must also have resided continuously in the U.S. for a period of five years following their lawful admission to permanent residence (three years if the applicant is the spouse of a U.S. citizen) and must be actually physically present in the U.S. for at least two and a half years for most applicants, one and a half years for spouses of U.S. citizens.

Keep in mind also that an absence from the U.S. that is too long will break the continuity of the applicant’s residence in the U.S. for naturalization purposes. It’s important for those frequent travelers to make sure that they review their travel dates carefully to make sure that they meet the minimum requirements. 

Stay tunned for Commandment #2: Thou Shall Not Pretend Never Have Been In The Big House (Unless You Truly Haven’t).

Thursday, May 6, 2010

El Salvador and the Persecutor Bar. Guilty by Association?

Every month our law firm features a new country on our website. This month we’re featuring El Salvador, and as you can see from the pictures, it is a beautiful country in many ways.

As many of our readers may remember, El Salvador was engulfed in a bloody civil war from 1980 through 1992 that claimed the lives of an estimated 80,000 people. The civil war, between the military-led government of El Salvador and the Farabundo Martí National Liberation Front (FMLN), led to a huge population upheaval where many atrocities were committed from all sides involved.

On January 1992 the Chapultepec Peace Accords were signed in Chapultepec, Mexico – bringing an end to yet another bloody chapter in El Salvador’s history. A new Constitution was promulgated, the Armed Forces regulated, a civilian police force established, the FMLN became a political party instead of a guerrilla army, and an amnesty law was legislated in 1993.

In the years during and after the civil war, close to 20 percent of the entire population left El Salvador to other countries. Many of those fleeing El Salvador arrived in the United States seeking refuge and applied for asylum. Years later, in 1997, the United States passed into law the Nicaraguan Adjustment and Central American Relief Act (NACARA). NACARA provided various forms of immigration benefits and relief from deportation to nationals of certain countries, including El Salvador.

A legitimate concern of U.S. immigration authorities then, and very much still today, is the awarding of immigration benefits to individuals who participated in the persecution of others during the civil war. This is referred to as the “persecutor bar”. Section 240A(c)(5) of the Immigration and Nationality Act (INA) bars persons who ordered, incited, assisted, or otherwise participated in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion, from obtaining certain types of immigration benefits.

Every year the U.S. Department of Homeland Security (DHS) initiates removal proceedings against individuals accused of participating in the persecution of others. Just today, as I was writing this entry, I came across a news release from Immigration and Customs Enforcement (ICE) describing the arrest of a former Guatemalan special forces soldier in Palm Beach County, Florida, for lying on his naturalization application about his participation in a 1982 massacre at a Guatemalan village known as Las Dos Erres.

A concern that I have, from a legal perspective, having successfully represented several clients facing deportation based on the persecutor bar, is the government’s position in many cases that mere membership in an organization, standing alone and without any other evidence of personal involvement or culpability, is sufficient for the persecutor bar to apply. By doing so, I believe the government is adopting an impermissible and overly broad definition of the term “persecution” which is contrary to controlling U.S. Supreme Court decisions of Negusie v. Holder, Fedorenko v. U.S., and several Board of Immigration Appeals (BIA) decisions including Matter of Rodriguez-Majano, Matter of A-H-, Matter of Acosta, and Matter of Fuentes.

In preparing to represent clients being charged under the persecutor bar, I’ve had to immerse myself in the bloody history of the civil war in El Salvador.  I’ve also heard firsthand testimonies of people that lived in El Salvador during those years. In hearing their life stories I’ve been filled with immense sadness at the senseless loss of human life, reminded of the perverse potential of the human spirit, and overcome with a sense that those responsible should face justice for the sake of those victimized and the families they left behind.

I wonder though if in our pursuit to bring those responsible to justice, our judicial system might be too broadly placing culpability where none lies. Are all men, that were unfortunate enough to live in El Salvador during the years of the civil war, equally culpable? Some people have strong evidence presented against them. Other people, who served in any capacity during the civil war in El Salvador, regardless of their role or their personal involvement, are charged as “persecutors” by association only.

The first case I successfully represented involved a NACARA applicant who during the civil war served once a week in a “patrulla cantonal” or community patrol. He was a peasant farmer who guarded his hamlet with no shoes after work for 6 hours each week. When the other men in his community approached him to participate to protect themselves from possible guerilla attacks, he had no option but to agree.  Not agreeing would have ended up with him being labeled as a guerilla sympathizer, which would have put his life at real risk by death squads operating in the area. My client, who never shot a rifle, or a gun, and who was fortunate enough to serve in a hamlet with no strategic significance to either the guerilla forces or the government of El Salvador, was labeled as a persecutor and placed in removal proceedings. After a long and exhausting process, he was finally awarded his lawful permanent resident status in immigration court.

As the gray areas of the persecutor bar are more clearly defined by cases moving through our judicial system, what constitutes “persecution” (and what doesn’t) is being parsed out - but at the backs of those of whose cases we read about.

Saturday, April 3, 2010

My Trip to the U.S. Supreme Court

I recently went to the U.S. Supreme Court to hear the oral arguments in the case of Carachuri-Rosendo v. Holder.  As any good parent would do during Spring Break, I decided to take my 15 year-old son with me.  "This case will rock your socks" I promised him, so off we went.  

Well, we didn't quite make it to hear Carachuri-Rosendo v. Holder, but we did get to hear a bit of what ended up being Robertson v. U.S. The issue in that case was whether an action for criminal contempt may constitutionally be brought by a private person.  Ok, so the issue wasn't as appealing as Carachuri-Rosendo which involved removal based on multiple criminal drug offenses, but we had to do with what we had. The transcript of Carachuri-Rosendo is quite interesting to read.  

I honestly thought I was being an overachiever by being in front of the Supreme Court at 8:15am, but to my surprise there were about 150 people ahead of us when we got there.  That pretty much quashed any wishful thinking on our part that we would get to hear oral arguments for Carachuri-Rosendo.  The line grew even longer shortly after we got there which gave us some twisted hope that we would at least get to see a couple of minutes of the oral arguments.  After all, the nice people at the Supreme Court wouldn't let several hundred people wait in line for several hours and not allow them to at least get a peak - right? Well, we had plenty of time to talk with the assistant principal of a school in New Jersey that was in front of us (she was kind enough to take the picture included in this post), and the married couple behind us that were also educators but from Chicago.  "It's ok" I would reassure my son, "the second case is even better" (or so I hoped).

We waited in line for about two hours before they split the line into two groups: those that wanted to get a chance to hear the entire second oral argument of Robertson v. U.S. and those that only wanted to hear 3-5 minutes.  Apparently the way that it works is that those that were in line early enough could get to hear both the first and second arguments if they wanted to. I figured that those that were brave enough to battle the elements and be there at 6:30am were probably motivated enough to stay for both arguments so we decided to get in the 3-5 minute line.  I'm glad we did because from what I could tell only about 15 people decided not to hear the second case and left.  After 15 or so people were ushered in to replace those that had left, the guards dismissed the 150+ people from the first line. Among them were the assistant principal from New Jersey and the two teachers from Chicago.     

The same day of our visit the U.S. Supreme Court handed down its decision on Padilla v. Kentucky which was argued in October 2009.   The U.S. Supreme Court basically held in that case that immigrants have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation.  The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. For more on this very important case you can read SCOTUSwiki or the Washington Post article that recently came out.

In all, being able to see the Justices live was a surreal experience. Albeit for a brief three minutes, seeing and hearing the Justices was well worth the four-hour wait. During our time there we heard Justices Roberts, Scalia, Alito, and Sotomayor involved in quite lively discussions with the attorney arguing the case. If you've never visited the U.S. Supreme Court I encourage you to do so. You will find plenty of useful information about the cases on the U.S. Supreme Court's website, including their Visitor's Guide to Oral Argument and the U.S. Supreme Court Calendar. There are still several oral argument days left in April. Another great resource if you want to read more about the Supreme Court and the cases before the Court is SCOTUSblog or SCOTUSwiki.

Wednesday, March 17, 2010

CBP On Your Side: Four Primary Programs To Address Customer Complaints

For the vast majority of travelers their experience with Customs and Border Protection (CBP), an agency within the U.S. Department of Homeland Security, is - if not pleasant per se - at least uneventful. For some travelers though, their experience is anything but pleasant. When faced with such situations, it's important to know what to do and where to go for assistance.   

Take for example the unfortunate case of a client of mine who is a full-time Pastor who was returning with his wife from a short business trip to Central America. Upon presenting their U.S. passports they were placed in secondary inspection.  This couple, who are naturalized U.S. citizens, are elderly and one of them has a hearing impediment.  They were both accused of lying because they were "too old" to have gone on a business trip, and were also accused of having fake U.S. passports because they couldn't communicate well in English and they had an accent. After all, you can't have an accent if you're a U.S. citizen - right?  Well, after several hours of questioning, that included a CBP officer wanting to force the wife to sign a document where she "confessed" to having a fake U.S. passport, they were simply released with no apologies offered. 

This case is by all means the exception - rather than standard operating procedure. That's just my humble opinion, I'm pretty sure others would differ.  I will concede however that these events happen more than what one would suspect. Although no comfort to those affected, it's important to keep things in perspective. CBP is tasked with protecting our nation’s borders from, among other things, terrorism, human and drug smuggling, and agricultural pests.  This is no small task and that is why CBP employs more than 52,000 employees to man, among other things, the 327 official ports of entry in the United States and 15 Preclearance offices in Canada and the Caribbean. CBP is also responsible for guarding nearly 7,000 miles of land border the United States shares with Canada and Mexico. At the same time CBP does all of that, they must also work to facilitate the movement of legitimate trade and travelers, as the agency processes all people, vehicles and cargo entering the United States. According to CBP's website, on a typical day in fiscal year 2008, CBP processed approximately 1 million passengers and pedestrians; 70,000 containers; and 331,000 privately owned vehicles. 

CBP has four primary programs to receive and address customer complaints. These programs are explained in CBP's Fact Sheet, which include the Passenger Service Manager program, Comment Cards, Customer Service Centers, and Port Director or Supervisor direct response program. In addition to these programs, CBP has separate procedures for submitting a complaint, reporting officer misconduct, discrimination, and illegal activity. Each program has different procedures for receiving and handling complaints. Alternatively, complainants may contact a CBP Public Information Officer by telephone at 703-526-4200. You can also see a list of questions and answers relating to the complaint process.

Travelers are encouraged to visit CBP's website to avoid delays.  On their website travelers will find useful information like CBP's Top Ten Traveler Tips and the Traveler's Checklist along with a very handy "Know Before You Go" manual for U.S. Residents.  For those family members (and we all have them - I think), that try to sneak in "empanadas" "quesitos" and a host of other native delicacies and traditional herbs and remedies, you might want to point them to CBP's list of prohibited foods and other products

Hopefully none of the readers have to through what my clients went through, but if they do, you now know where to go.  Safe travel to all.

Saturday, March 6, 2010

Custom and Border Protection (CBP) Revokes Notice to Appear (NTA) for Client Returning From Trip Abroad

Our law firm recently worked with Customs and Border Protection (CBP) to have them return our client’s alien registration card or “green card” and to have them revoke the Notice to Appear (NTA) which had placed our client erroneously in removal proceedings. Our client was returning from a trip abroad and was detained upon inspection when their system showed incomplete information regarding a past criminal matter that did not result in a conviction.

The whole ordeal began when our client was returning from a short trip abroad. Like many times before, she presented her alien registration card or "green card" to the CBP officer upon disembarking the plane. This time though, she was in for an unpleasant surprise. As the CBP officer reviewed his computerized system, he noticed a "hit" or arrest in our client's background and placed her in secondary inspection. Secondary inspection is a separate, more thorough screening that normally lasts several hours. During this secondary inspection, the CBP officers involved misread the information on their computer, and instead of inquiring further with their legal department, they confiscated our client's green card and issued a Notice to Appear (NTA) which basically placed our client in removal proceedings.

When our client first came to see us she was understandably upset about the entire situation. Upon further review of her case, and close examination of her record, we determined that there were in fact no convictions and therefore the NTA should not have been issued. We contacted CBP and for the next several days corresponded back and forth until the issue was resolved in favor of our client. The NTA was ultimately revoked and our client got her green card back.

On a recent blog we discussed the dangers lawful permanent residents face when traveling abroad when they have previous criminal convictions. We encourage our readers to review that entry as it outlines factors that LPRs should consider before traveling. LPRs that have been arrested in the past but never convicted should travel with a certified copy of the Final Disposition Record. However, it is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. Thus, a person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. We will discuss the immigration definition of what constitutes a conviction on a different post. LPRs that are not sure whether they have a conviction for immigration purposes are urged not to travel until they have an experienced immigration attorney review their record.

PLEASE NOTE THAT THE RESULTS OF PAST CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN FUTURE CASES.

Friday, March 5, 2010

Attention Lawful Permanent Residents With Past Criminal Convictions: Your Trip Abroad Might Just Be The Last One

Lawful Permanent Residents with past criminal convictions should think twice before traveling abroad. Every year the Department of Homeland Security (DHS) removes scores of LPRs that were detained and placed in removal proceedings upon their return from a trip abroad. At a minimum, prospective LPR travelers should seek the guidance of an experienced immigration attorney to determine whether their particular conviction subjects them to removal from the U.S.

Although traditionally an LPR was not deemed to make a new admission into the U.S. upon his or her return if the trip was "innocent, casual, and brief", presently Congress has defined when an LPR will be regarded as seeking a new admission. This issue of "admission" is significant for an LPR who would not be subject to removal from the U.S. but who might be inadmissible upon their return from a trip abroad.

An LPR will be regarded as seeking a new admission if he or she has committed a criminal offense under the provisions of the Immigration and Nationality Act (INA) that deal with the criminal grounds of inadmissibility. The process normally works as follows. An LPR is returning from a trip abroad and presents his green card (I-551) to the Customs and Border Protection (CBP) officer in order to be admitted. The officer reviews his/her computerized system and notices a “hit” or arrest in the person’s background. They place the LPR in secondary inspection which is a separate, more thorough screening that normally lasts several hours. In this secondary inspection the LPR is questioned about, among other things, the arrest or conviction at issue. While the LPR is waiting in the secondary inspection area, CBP officers are reviewing their data and checking with their supervisors whether they have enough to charge the LPR under one of the grounds of inadmissibility. If CBP confirms that the prior conviction is not a ground of inadmissibility, they will release the LPR and return the alien registration or “green card” back to him or her.  The LPR being released should not expect an apology from CBP - none will be forthcoming unfortunately.  Also, the LPR being released should not expect not to go through the same procedure next time around. If CBP believes that the conviction renders the LPR inadmissible, or they simply can’t confirm whether it is or not, they will confiscate the alien registration card, and issue the charging document which is the Notice to Appear (NTA). The LPR is now placed in removal proceedings, and if not subject to mandatory detention, will be released to await his or her hearing before an immigration judge.

Keep in mind that the fact that an LPR with a criminal background has managed to travel back and forth for a period of time without being detained is no protection or guarantee at all. I’ve had several clients that have traveled for years without being detained, until their last trip when the CBP officer noticed their arrest and conviction. The fact that the offense might have occurred many years ago is irrelevant for removal purposes. An LPR is subject to removal from the United States for a violation of relevant immigration laws, regardless of the length of residency or the age at which it was attained. An individual who immigrated to the United States when he was a couple of months old who is now convicted of a crime at age 65 can and will be removed, depending on the nature of the conviction.

An LPR with a criminal background should weigh his or her options carefully before traveling abroad. At a minimum the person should seek the assistance of an immigration attorney in order to make an informed decision about their travel plans.  Being aware of the possible consequences gives the LPR an opportunity to not only make an informed decision, but to prepare accordingly.

Wednesday, March 3, 2010

Why You Shouldn't Withhold Important Information From Your Immigration Attorney

There are many important reasons why clients should not withhold important information from their attorneys. In my years working as an immigration attorney I have encountered people that, for one reason or another, have decided to hide important information that would have avoided problems in the future. Most people that fit this category are actually well-intentioned people that are extremely embarrassed by their past. Of course, there are some that think (or hope) that by not disclosing an arrest, that somehow no one will realize it. Hopefully the client feels comfortable enough with their attorney to confide in them very personal details about their past, especially when they have had any contact with the criminal justice system. The attorney also plays an important role in extracting some of this information and bringing the issue to the floor so an open and honest conversation can follow. It’s important that the applicant understand that the U.S. Citizenship and Immigration Services (USCIS) will require fingerprints to be taken as part of the application. At our office, not only do we ask every client whether they have ever been arrested or convicted whether in the United States or any part of the world, but we also have them complete a questionnaire that has several questions geared towards eliciting this type of information.

When in doubt, we have clients complete an FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet. The FBI Rap Sheet is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. Once submitted, the results normally arrive within 30-60 days. We recently had a case where the client mentioned that he “might have had” an arrest for being drunk in public many years ago. When the FBI Rap Sheet came back, it turns out that the arrest was for defrauding a taxi driver of his fare (while he was drunk). He was convicted of this offense which had greater immigration implications than a simple drunk in public offense since it had elements of “fraud” and “theft”.

No one wants to hear for the first time, coming from an immigration officer, “tell me about this arrest in ….”. I’ve had that happen to me a couple of times and it is not a good experience. In the best of cases the newly discovered conviction does not present any major problems (apart from the credibility issue) because it is not a ground of inadmissibility or deportability. In the worst of cases, the client never should have applied for an immigration benefit to begin with and the person now finds himself in deportation proceedings.

In all, the client’s interests are better served by having an open and honest conversation about these topics. Although momentarily uncomfortable for the client, being straightforward about their past can not only save them thousands of dollars in legal fees, but a lot of heartache for them and their family in the future.

A Petit Larceny Conviction Can Result in Deportation. In Fact, It Can Render a Person an "Aggravated Felon"

As most of our readers know, criminal convictions can have very serious consequences in an immigration matter. Take for example the case of a Lawful Permanent Resident (LPR) who was convicted of Petit Larceny in Virginia. He went to a local store and stole an item worth less than $50. Petit Larceny in Virginia is a Class 1 Misdemeanor punishable by a maximum of 365 days in jail and/or a fine. The individual hired a criminal law attorney that was not aware of the immigration consequences of pleading guilty to this offense. The individual pleaded guilty and was sentenced to 365 days in jail but with everything suspended. Everyone went home happy that day until later on that afternoon when Immigration and Customs Enforcement (ICE) stopped by his house to arrest him and placed him in deportation proceedings.

How could things go terribly wrong for this Lawful Permanent Resident? For starters, a suspended sentenced does not count for immigration purposes. As in this case, although the individual did not spend one full day in jail, immigration law only considers the actual sentence of 365 days. Additionally, this theft offense, coupled with a sentence of 365 days, made this individual an "aggravated felon" for immigration purposes. Because his offense is an aggravated felony, he remained in jail and was deported straight from ICE custody. A little bit of negotiating with the prosecutor would have avoided his deportation. For example, he would have been able to retain his LPR status had he actually spent 179 days physically in jail rather than having his entire sentence suspended. This is so because a sentence of 179 days (time served) wouldn't meet the definition of "aggravated felony" for a theft offense since it's less than 365 days. Given that the judge suspended all 365 days, he wouldn’t have had a problem with a 179 day sentence (or less) of actual time served.

There are many things that can be learned from this, apart from the obvious - don't take anything that's not yours. One of those things should be that anyone facing a criminal charge, that is not a U.S. citizen, should consult with an experienced immigration attorney before he or she pleads guilty to an offense or moves forward with their criminal case.