This page lists an important area of the Immigration Law Group's focus. If you as counsel, or as a deportation defendant in need of representation, have any questions about our services or would like to make an appointment please feel free to contact us.
Student Visas:
The United States welcomes foreign students to American language schools (English as a second language), high school, universities and other institutions of higher learning. Students on F-1 visa may accept employment in the U.S. as a part of their practical training by obtaining an Employment Authorization Document.
Locate schools that issue F-1 Student Visas USAStudentVisa.org is an organization dedicated to assisting international students locate schools that issue U.S. student visas. Whether you want to obtain a degree or just live in the Unites States, you will need a student visa. USA Student Visa can help you get one. USAStudentVisa.org will put you in contact with a school that can give you a U. S. student visa. Anyone, regardless of age or educational background, can obtain a F-1 Student Visa and legally live in the United States.
Work Visas:
H-1B Work Visa for college educated professionals
H-2B Work Visa for Skilled and Unskilled Workers
Pledge of Allegiance: Why do we say it? Who wrote it? Get the history on America's pledge.
The following links offer information on becoming a United States of America citizen.
How do I obtain a Green Card?
There are several ways you can obtain a Green Card:
- Marriage to a United States citizen
- Investment
- Employment
- As a Special Immigrant
- Green Card Lottery (Diversity Immigrant Visa Program)
Marriage to a United States citizen.
Each year thousands of American citizens marry foreign-born persons and petition for them to obtain a permanent residency in the United States. Spouses of U.S. citizens are considered "immediate relatives" under immigration laws, and are, therefore, excluded from all numerical quota limitations.
Click here to find out how to apply for a Green Card by marriage.
You can also obtain a Green Card through the Green Card Lottery, Investment, Employment or as a Special Immigrant.
Avoid Banishment of the Long Term Illegal Alien: What Every Immigration Criminal Defense Counsel in the Ninth Circuit Should Know But Was Afraid To Ask.
For purposes of the following criminal deportation discussion, please assume that your client is a Southeast Asian national who is also a long-term permanent resident of the United States, as are many of the immigrants in Hawaii. Please also assume that this immigrant would not have a claim based on persecution, asylum, withholding of removal, or Convention Against Torture under which to seek relief from removal if he or she was deported to Cambodia, Laos or Viet Nam. This is certainly the case with almost all Southeast Asian nationals. These potential additional avenues to avoid deportation are not within the scope of this article.
The scope of this article addresses the banishment "plea factor" facing this immigrant defendant in a criminal prosecution, and discusses the general immigration law basics that criminal defense counsel is required to know in order to protect this client from surprise, eternal banishment. To tell this immigrant that he "may" be deported, when reciting the plea petition with this defendant, when he "must" be deported as a required matter of immigration law, is ineffective assistance of counsel. Once a criminal defense attorney begins to advise on "collateral" consequences of a conviction, he must do so fully and accurately.
In negotiations on any criminal case, criminal defense counsel must attempt to obtain a non-deportable result, or at the very least, obtain a result where a waiver proceeding would be available under INA § 240A(a) INA §240A(a) provides for cancellation of removal for the alien when three eligibility requirements are met: 1. he or she has been lawfully admitted to the U.S. for permanent residence for not less than 5 years, 2. he or she has resided in the U.S. continuously for 7 years after having been admitted in any status, and 3. he or she has not been convicted of any aggravated felony.
INA § 240A(a), plus INA § 101(a)(43), is the "1+1" of eternal banishment. It's simple: Aggravated felonies listed in INA § 101(a)(43) require eternal banishment. All that criminal defense counsel needs to know to understand that, and alert the client to this very important "plea factor," is INA § 240A(a) and INA § 101(a)(43). The time has passed when criminal defense counsel could advise the immigrant to go see an immigration lawyer instead of taking on the responsibility of knowing these two simple statutes. Criminal defense counsel must enlist the support of immigration counsel, or do further research in immigration law, in order to fulfill his ethical duty to properly and fully advise the immigrant-defendant client of the immigration consequences of the conviction. See INS v. St. Cyr, 533 U.S. 289 (2001), Magano-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999).
It would be wise to consult with criminal deportation defense immigration counsel John V. Kendrick, at the IMMIGRATION LAW GROUP, as to the likelihood of prevailing on any waiver proceeding for any deportable, but non-aggravated felony conviction, i.e. what needs to occur now in order to advance the potential of winning a waiver/cancellation of removal case. Immigration counsel should be available through indigent funding when it is unclear whether or not the client is facing banishment if he enters a particular plea bargain or suffers a particular sentence. If, after obtaining additional information regarding immigration consequences the immigrant may be able to reach a non-deportable result through either plea bargaining, at jury trial, or even during sentencing litigation, then the criminal defense attorney has to know this, and expert assistance is required under the Constitution. Wiggins v. Smith, 123 S.Ct. 2527 (2003). (The requirement of effective assistance of counsel applies to the sentencing stage of litigation.) Cf. Ake v. Oklahoma, 470 U.S. 68 (1985). (The Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on a defendant's mental condition where he presents information that defendant's mental state is reasonably at issue in resolving criminal charges).
An immigrant's conviction for even a misdemeanor crime often results in permanent deportation from the United States, because the courts across the United States have held that some misdemeanors can be considered an "aggravated felony" ("Aggravated felony" is a term of art defined under the Immigration Nationality Act, INA). Aggravated felony convictions automatically require, as a matter of immigration law, the deportation and eternal banishment of the "alien". Legally, an immigrant who has been a legal permanent resident for 25 years or longer is still an "alien" under the immigration laws.
Before your client pleads guilty or no contest, make sure you know, and communicate to the client, the immigration consequences of the conviction. Don't recommend any plea negotiation without fully understanding the consequences of the conviction and learning how important it is to the immigrant/defendant to fight against eternal banishment. The "alien" client is likely to prefer fighting a difficult criminal case rather than stipulating to eternal banishment.
A conviction against the defendant is not "final" if the criminal case is taken up on appeal. In other words, the immigrant defendant can remain in the United States during the period in which the criminal case is appealed. The defendant may choose to litigate a motion to suppress in order to at least try to preserve his permanent residency within the United States. Raising a motion to suppress zealously may result in the prosecution offering a non-deportable result.
All too many times, immigrants have been permanently deported because they pled guilty to an aggravated felony criminal charge without understanding the tragic eternal banishment that results from an aggravated felony conviction. These immigrants are literally signing off on their eternal banishment when they enter into what amounts to an unknowing and involuntary plea. Then, when returning to the USA to be with their families, they are placed into federal prison as "aggravated felons."
The United States Supreme Court approved mandatory detention of all "aggravated felons" in Denmore v. Kim, 123 S.Ct. 1708 (2003). The legal permanent resident doesn't get out of immigration custody until he is deported by the INS.
Imagine an accepted plea deal that provided for a no-jail criminal sentence, followed by mandatory detention for several months while a PCR case is litigated. This is what occurs to immigrants who receive ineffective assistance from criminal defense counsel, and who wish to then fight the aggravated felony conviction. Of course, the immigrant may also decide to take the deportation and then return to the U.S. as an "aggravated felon" and then face illegal re-entry prosecution.
Figures on the Bureau of Customs and Immigration Services website state that the government deported 148,619 immigrants for criminal and non-criminal reasons in fiscal year 2002. Of those deported in FY 2002, nearly 48 percent (71,337) were deported for criminal reasons, a substantial increase over the prior year. The approximately 70,000 criminal alien deports has remained steady from 1999 through 2002. In 2003, this number had increased to 80,355, and the figures to date show that 40,926 criminal aliens have already been deported in 2004. These numbers will likely continue to increase as the INS/BICE funding increases and immigrants continue to be convicted for aggravated felonies that require the banishment of long-term permanent residents for minor criminal conduct.
If a client has pled guilty to a crime which requires or permits deportation, it is possible that the conviction can be vacated but counsel should act quickly.
AGGRAVATED FELONIES
The immigration court's "mandatory minimum" sentence-punishment of deportation from which immigration judges cannot deviate-is prescribed in the INA, 101(a) 43 et. seq. These "aggravated felony crimes" are the subject of voluminous caselaw decisions throughout the Federal Circuits and the U.S. Supreme court.
The aggravated felony categories per statute include, but are not limited to:
1.Murder.
2. Rape.
3. A "crime of violence" (which is a term defined at 18 USC 16(a) and cross-referenced in the INA under Section 101(a)(43)(F)), for which a sentence of at least one year is imposed. For example, a one-year suspended or executed sentence which is imposed for a misdemeanor Assault IV charge is an aggravated felony under this definition; see Matter of Martin Interim Decision #3481 (BIA 2002), holding that misdemeanor third-degree assault is an "aggravated felony." The U.S. Supreme Court will hear Josue Leocal v. John Ashcroft, No. 03-583, (unscheduled). The issue before the court in this case will be: Is a DUII conviction with serious bodily injury is a "crime of violence," and therefore an "aggravated felony?" The Ninth Circuit has held that this is not a "crime of violence" or an "aggravated felony," and the Eleventh Circuit has held that it is. Cert was granted 2/23/2004 on this issue.
4. Sexual abuse of a minor (sexual contact is not required with the minor to be an aggravated felony; Matter of Rodriguez-Rodriguez, (BIA 1999), held conviction for indecency with a minor is an "aggravated felony"). Also see Matter of Small Interim Decision #3476 (2002), holding that misdemeanor sexual abuse of a minor is as an "aggravated felony" requiring the deportation of the immigrant defendant. Operation Predator "targets" anyone ever convicted of any form of sex crime, even convictions from many years ago. Immigrant-defendants are being arrested and put into deportation proceedings and deported based on these old convictions. Customs and Border Patrol has a list of all people labeled as sex offenders. These deportations are subject to challenge under Ubaldo-Figueroa v. INS, 347 F.3d 718 (9th Cir. 2003).
5. Drug trafficking: This may include mere possession of a controlled substance if the client is not the beneficiary of immediate Federal First Offender Act treatment and/or its equivalent in state court. (Cf. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), states that possession of a controlled substance conviction which is expunged prior to deportation proceedings being commenced, and/or immediate conditional discharge, is not a conviction for immigration purposes. On the other hand, if the immigrant has not completed a deferred conditional discharge and has not had the initial possession of a controlled substance conviction expunged prior to deportation proceedings, they will be subject to deportation, potentially as an "aggravated felon.)
On April 26, 2004, the Ninth Circuit affirmed its Cazarez-Gutierrez opinion, holding that possession of a controlled substance is not an aggravated felony. 356 F.3d 1015 (9th cir. 2004). At this point, the Ninth Circuit may or may not decide that possession of a controlled substance is an aggravated felony. The BIA (Board of Immigration Appeals) has already decided that a state felony conviction for simple possession of a controlled substance is an aggravated felony, but even multiple state misdemeanor convictions are not. See Matter of Yanez-Garcia, 23 I&N 390 (BIA 2002), and Matter of Santos-Lopez, 23 I&N 419 (BIA 2002).
If removal is based on marijuana possession, the government has the burden of establishing that the offense is not a single offense of simple possession for personal use of 30 grams or less of marijuana. Absent such proof, an alien should not be deportable under this ground. The weight of the ilicit drug is not dispositive on whether it is for personal use or for distribution, but varies according to the State.
6. Trafficking in weapons or destructive devices.
7. Money laundering in an amount over $10,000.
8. Theft (including receipt of stolen property) or burglary, for which the term of imprisonment is at least one year. But a "car burglary," as defined by California law, is not considered a burglary under this statute. Sentencing enhancements, requiring a sentence above one year on a repeat property offender in Oregon, is probably not an "aggravated felony" under Ninth Circuit precedent.
9. Racketeering.
10. Alien smuggling (with exceptions).
11. Promoting/compelling prostitution.
12. Fraud and deceit crimes, including tax evasion, in which the loss to the victim or IRS exceeds $10,000.
13. False making or altering a passport (with exceptions).
14. Offenses relating to obstruction of justice, perjury, or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.
15. Failure to appear convictions on a felony charge, for which a sentence of two or more years imprisonment may be imposed.
16. Failure to appear for service of a criminal sentence if the underlying offense is punishable by a term of two years or more.
17. Prior deportation for an aggravated felony.
18. An offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers, for which the term of imprisonment is at least one year.
TRAVEL WARNING and INADMISSIBILITY GROUNDS.
Legal permanent residents may be inadmissible if they voluntarily leave the United States, although they are not deportable from the United States. Again, conduct or admissions not resulting in conviction that make an immigrant inadmissible are a topic for another day and are beyond the scope of this article.
The Ninth Circuit has several favorable immigration decisions that do not apply in other parts of the U.S. (i.e. Lujan- Armendariz v. INS). The travel warning therefore applies to any travel outside the Ninth Circuit, and would stay in place until such time that the immigrant became a U.S. citizen. Instruct your client with prior convictions, or admissions to criminal conduct, to make sure that they can travel outside the U.S., or outside of the 9th Circuit, without jeopardizing their legal permanent status.
If your client has past criminal convictions, pending criminal charges, has had any type of contact with the law or intends to leave the U.S. (find out if the client will be allowed to re-enter by the INS), be sure to get up-to-the-minute information in this area of the law. The law is constantly changing; what is written here may not be the law at the time the defendant must act to preserve legal permanent resident status or become a United States citizen. The Immigration Law Group renders expert services in the area of criminal deportation defense. Contact us for a consultation.
All non-citizens are required by law to notify INS of any address change within 10 days of such change. Failure to report is punishable by:
Fine
Imprisonment
Deportation
You must report the address change on INS Form AR-11.
More Airports Test Tracking of Foreigners
By SUZANNE GAMBOA Associated Press Writer
WASHINGTON (AP) - The government's system for ensuring that foreign visitors leave the country when expected will be expanded to 11 more airports and two seaports, a Homeland Security Department official said Tuesday.
Asa Hutchinson, the undersecretary for border and transportation security, made the announcement at Chicago's O'Hare International Airport, which will begin participating later this month.
All foreign visitors who travel with a visa are fingerprinted and photographed, through the US-VISIT program, when they arrive at major U.S. airports and seaports. The fingerprints and photos are automatically checked against databases to ensure that documents are legitimate and the visitor's name does not appear on terrorist or law enforcement watch lists.
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