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UNITED STATES SUPREME COURT EXPANDS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
On March 31, 2010, the U.S, Supreme Court decided in Padilla v. Kentucky, 559 U.S. ____ (2010) that criminal defense counsel must inform a client whether his or her guilty plea carries a risk of deportation. Failure to do so makes the representation constitutionally deficient. The Court held that where the deportation consequences of a plea are unclear, a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry adverse immigration consequences. However, when the deportation consequences are truly clear, criminal defense counsel must give correct advice.
Legal Note: The Supreme Court decision does not mean that any non-citizen who received incorrect advice regarding the immigration consequences of a guilty plea will automatically avoid deportation. The non-citizen must also show that he was prejudiced by that advice which warrants that the guilty plea be set aside. That showing of prejudice must usually be made in the court – state or federal - where the guilty plea was made.
Inline Attachment Follows: Success Story May 2010.htm
May 2010
CANCELLATION OF REMOVAL GRANTED AFTER SIX-MONTH DETENTION
Foreign national who had lawful permanent resident status in the United States was detained by Immigration and Customs Enforcement (ICE) based on prior criminal convictions including drug possession. Foreign national was denied bond due to drug convictions but had long residency in and extensive ties to the United States . After being detained for more than six months far from home, an Immigration Judge eventually granted Cancellation of Removal allowing foreign national to be reunited with his family.
Lawyer’s Note: ICE denied a parole request which would have allowed foreign national to be released while his removal case was pending despite the strong equities of the case which made Cancellation of Removal likely to be granted. A request for parole in such circumstances is nevertheless highly recommended.
FEBRUARY, 2010 VAWA PETITION GRANTED TO FAMILY IN REMOVAL PROCEEDINGS Foreign national and children were all placed in removal proceedings after her abusive U.S. citizen spouse failed to attend interviews scheduled in relation to the petition filed for the family’s permanent residence and he and foreign national separated. We filed a petition under the Violence Against Women Act (VAWA) which has been granted by the Vermont Service Center and which now permits the family to adjust status in the proceedings before the Immigration Judge ***Legal Alert*** A Petitioner who files as an abused spouse must show that he or she has “good moral character” failing which the Petition will be denied. U.S.C.I.S. will require a criminal background check of the Petitioner as one the initial steps in establishing a prima facie case.
JANUARY, 2010 LAWFUL PERMANENT RESIDENCE GRANTED AFTER REMOVAL TO NATIVE COUNTRY Foreign national was ordered removed by Immigration Judge and then actually removed to native country following denial of his application for asylum. While Removal proceedings were pending, a visa number became available through a petition filed by his U.S. citizen sibling. The Immigration Judge was presumably unaware that foreign national was eligible to adjust status through his sibling’s petition. We were retained after the removal had already taken place. We immediately requested visa processing through the National Visa Center which resulted in Immigrant Visas being granted for the foreign national as well as his entire family.
OCTOBER, 2009
NATURALIZATION APPLICATION APPROVED AFTE FAILURE TO REGISTER FOR SELECTIVE SERCICE
Resident failed to register with the Selective Service although he had been living in the U.S. as a lawful permanent resident as a young man. His application for Naturalization was denied several times due to this failure but was finally approved after the requisite five-year period to show good moral character had passed and we were able to show that his failure to register was not intentional.
Young men living in the U.S. as Lawful Permanent Residents between the ages of 18 and 26 must register with the Selective Service. The intentional failure to do so may lead to the denial of Immigration benefits, most notably the ability to become U.S. citizens. Resident failed to register with the Selective Service although he had been living in the U.S. as a lawful permanent resident as a young man.
SEPTEMBER, 2009 REMOVAL DEFEATED DESPITE ALLEGED FRAUD TO OBTAIN GREEN CARD Government sought to remove lawful permanent resident from U.S., after she applied for U.S. citizenship, claiming that she had obtained her residence fraudulently when she misrepresented her marital status. Resident obtained her residence when she was just a young girl and had gotten married after the petition for her residence was filed. Neither she nor her family knew that her marriage made her ineligible to immigrate. We were able to persuade both the government and the Immigration Judge that resident did not intentionally misrepresent her marital status at the consular interview but that it was only an innocent error. We argued also that Removal would result in extreme hardship to her U.S. citizen and children. Resident’s lawful permanent resident status was reinstated by the Immigration Judge allowing her to remain in the United States with her husband and children.
FEBRUARY, 2009 MOTION TO RECONSIDER REVOCATION OF RESIDENCE APPROVAL SUCCESSFUL ALLOWING ADJUSTMENT OF STATUS OF FOREIGN NATIONAL Approval of Petition for foreign national’s residence was revoked and Removal threatened when the government alleged that U.S. citizen petitioning spouse had falsified his marital status when he obtained U.S. citizenship many years before. U.S. citizen attempted unsuccessfully, on his own, to have the government reconsider its position.
We successfully moved for the case’s re-consideration showing that there had been no misrepresentation in spouse’s citizenship application. Foreign national then obtained lawful permanent resident status not only for herself but also for her children who were back waiting in home country.
AUGUST, 2008 REMOVAL DEFEATED DESPITE CONTROLLED SUBSTANCE CONVICTION
We appealed to the Board of Immigration Appeals which returned the case to the Immigration Judge because, among other things, the U.S. Supreme Court clarified, while the case was on appeal, that a conviction for conduct which is a felony under state law but only a misdemeanor under the corresponding federal law, could not be punishable as an Aggravated Felony under the Immigration law. Lopez v. Gonzalez, 127 S. Ct. (2006). The resident ultimately prevailed before the Immigration Judge and was permitted to remain in the United States with his family as a lawful permanent resident.
JULY, 2008 REMOVAL ORDER ENTERED IN ABSENTIA REOPENED AFTER MORE THAN TWO YEARS AND ADJUSTMENT OF STATUS GRANTED TO VISA WAIVER ENTRANT Foreign National (FN) left U.S. after spouse had already petitioned for her permanent residence but without first obtaining Advance Parole document. FN was detained when she later attempted to re-enter the U.S. and placed in Removal proceedings. FN left U.S. again before court date scheduled leading to Order of Deportation being entered in her absence. FN later entered U.S. again under Visa Waiver Program and later learned of existence of Removal Order. We successfully moved to have the Order of Removal reopened before the Immigration Judge although more than two years had elapsed since its entry permitting FN to adjust status in the renewed spouse Petition.
***LEGAL ALERT*** After an Application for Adjustment of Status has been filed, one must be careful to obtain a travel document (Advance Parole) before departing the U.S. or else risk the Adjustment Application being considered abandoned and being placed in Removal proceedings upon re-entering the U.S.
MAY, 2008 GOOD FAITH MARRIAGE FOUND BY IMMIGRATION JUDGE WHERE CONDITIONAL RESIDENT SPOUSE TOLERATED THREATS FROM INCARCERATED EX-SPOUSE Foreign national who had obtained conditional residence through his marriage was sought to be deported when his U.S. citizen spouse abandoned him to re-unite with her previously incarcerated ex-husband. This made him unable to demonstrate adequately to U.S.C.I.S. that his less than two-year marriage had been entered in good faith. We were able to persuade the Immigration Judge that foreign national’s perseverance in marriage despite continued threats from his wife’s incarcerated ex-husband demonstrated his commitment to his U.S. citizen wife and to the marriage which he entered in good faith. Foreign national was therefore permitted to remain in the United States as a lawful permanent resident. ALLEGATION OF FALSE CLAIM TO CITIZENSHIP OVERCOME Foreign national’s Application for Adjustment of Status was denied upon the government’s allegation that he had falsely claimed to be a U.S. citizen when he was arrested for drunk driving. We filed a Motion to Reconsider showing that the foreign national had made no such claim and, furthermore he could have obtained no benefit under any law by making such a claim. The Motion was successful and Adjustment of Status was granted.
Lawyer’s Note: A false claim to U.S. citizenship is extremely serious since, if proved and it was made to obtain a benefit under the Immigration and Nationality Act or any federal or state law, it is a ground of inadmissibility to the U.S. for which no waiver is available.
JANUARY, 2008
U.S. Citizen petitioned to have his Pakistani born children immigrate to U.S. as lawful permanent resident. However, the name of the children’s mother-the Petitioner’s ex-spouse- was missing from their Birth Certificates, the mother could not be located to affirm maternity of the child, and U.S.C.I.I.S. denied the Petitions despite DNA evidence which established the children’s paternity. With help from the testimony of Professor Shaul Gabbay of the University of Colorado and expert in Muslim, Arab and Middle East Societies, we were able to persuade U.S.C.I.S. , on appeal, that in certain Moslem cultures, it is not uncommon for the name of the mother to be absent from birth records and that this child was, in fact, the legitimate child of his parents. The Petitions were ultimately approved.
MAY, 2007 SPECIAL IMMIGRANT JUVENILE STATUS GRANTED FOR UNACCOMPANIED MINOR The petition was successful although we also initiated proceedings to have the child’s uncle named as his legal guardian. Armed with the two Orders from the Family Court, we were able to persuade the Immigration Judge to approve the Special Immigrant Juvenile Status Petition thereby allowing the child to adjust status to that of a lawful permanent resident.
U.S. CITIZENSHIP GRANTED DESPITE FELONY CONVICTIONS OF ASSAULT AND CRIMINAL POSSESSION OFA WEAPON A few years later, when we were retained, we refiled the citizenship application on the foreign national’s behalf and upon obtaining medical certification that the foreign national was not a danger to herself or anyone else, U.S. citizenship was granted. Lawyer’s Note: Judicial Recommendations against Deportation (JRADs) were abolished by the Immigration Act of 1990 and so are no longer in use. JRADs obtained prior to the law’s rescission may still be effective, however, in certain circumstances. ****LEGAL ALERT****
“AGE QUOD AGIS” – “DO IT WITH ALL YOUR MIGHT”
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