Showing posts with label LPR. Show all posts
Showing posts with label LPR. Show all posts

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.

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, 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.