Matter of ALYAZJI: 5-year clock for 237(a)(2)(A)(i) removability is not reset each time a foreign national is admitted (within the United States).

Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011), identifies when the date of admission begins to run for purposes of section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA), which in a pertinent part, authorizes the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission,” provided the crime is punishable by a sentence of imprisonment of 1 year or longer.

In Matter of ALYAZJI the Board of Immigration Appeals (BIA) held that  a conviction for a crime involving moral turpitude triggers removability under section 237(a)(2)(A)(i) only if the crime was committed within 5 years after the date of the admission by virtue of which the alien was then in the United States.  The BIA concluded that the class of aliens “in and admitted to the United States” referred to in the opening sentence of 237(a) of the INA consisted of:

• Those who entered the United States with the permission of an immigration officer after being inspected at a port of entry; and

• Those who entered the United States without permission or were paroled, but who subsequently became lawful permanent residents.

Under the BIA's new understanding of the phrase “the date of admission", the 5-year clock is not reset by a new admission from within the United States (through adjustment of status). To ascertain an alien’s deportability under section 237(a)(2)(A)(i), one must first look to the date when the crime was committed. If, on that date, the alien was in the United States pursuant to an admission that occurred within the prior 5-year period, then he is deportable. Conversely, the alien is not deportable if he committed his offense more than 5 years after the date of the admission pursuant to which he was then in the United States.

Matter of ALYAZJI overrules Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), where the BIA held that the term “admission” used in section 237(a)(2)(A)(i) referred to adjustment of status as well as admission at the border; and second, that an alien’s conviction for a crime involving moral turpitude supported removal under that section so long as the crime was committed within 5 years after the date of any admission made by the foreign national.

This case involved Alla Adel Alyazji, a Palestinian citizen who entered the United States on a temporary visa in 2001 and became a lawful permanent resident in 2006.  In January 2008, the respondent was convicted of indecent assault in violation of Pennsylvania law, based on a 2007 offense. As a result of that conviction, the Department of Homeland Security (“DHS”) initiated removal proceedings. Shortly after removal proceedings commenced, the respondent sought termination on the ground that his indecent assault conviction resulted from an offense committed more than 5 years after his “admission” as a nonimmigrant in August 2001. The Immigration Judge denied the motion based on Matter of Shanu, holding that the respondent is removable because he committed his offense less than 5 years after his “admission” to lawful permanent resident status in April 2006.

The BIA terminated removal proceedings against Mr. Alyazji concluding that when he committed his crime involving moral turpitude in 2007, he was in the United States pursuant to his 2001 admission as a nonimmigrant. Because he committed his offense more than 5 years after that “date of admission,” he was not deportable, even though he was “readmitted” by means of adjustment of status in April 2006.

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.

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).

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).

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.

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.

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.

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 plead guilty and was sentenced to 365 days in jail but with everything suspended. Everyone went home happy 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 subsequently removed. A little bit of negotiating with the prosecutor may 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. One of those lessons should be that anyone facing a criminal charge, who is not a U.S. citizen, should consult with an experienced immigration attorney before pleading guilty to an offense or moves forward with their criminal case.