Thursday, June 22, 2017

Supreme Court rules in favor of immigrant in headline naturalization case

The Supreme Court ruled today in Maslenjak v. United States (Docket No, 16-309) that an alien, in order to be convicted of procuring naturalization through false representations, must have made a material misrepresentation that effected the decision on the naturalization application. The case generated panic headlines when it went to the Supreme Court because the government had taken the position that any misrepresentation could support a conviction even if the misrepresentation was about some very minor matter (i.e. failing to disclose a speeding ticket from 30 years ago). People were calling our office in a panic that they had heard that the government was going to start taking away peoples citizenship. Everyone can relax now. You can read the opinion here.

Tuesday, June 6, 2017

Common misconceptions about Aggravated Felonies in immigration cases

1. Myth: "It can't be an aggravated felony because it was only a misdemeanor."
The term "Aggravated Felony" is a term of art. The meaning is independent of any State of Federal definition of the either the term "aggravated" or the term "felony". Many, many misdemeanors are aggravated felonies under the INA.
2. Myth: "It can't be an aggravated felony, I never went to jail."
There are actually very few categories of aggravated felonies that are dependent on a specific sentence. For instance, while crimes of violence and theft crimes are not aggravated felonies unless a sentence of one year or more has been imposed, the sentence imposed and the sentence served can be two vastly different things because the term imposed includes any portion which was suspended or left unserved due to good behavior or other factors. In fact, most aggravated felony categories require no specific sentence, imposed or otherwise. Drug Trafficking, Sex, and Fraud offenses can all be aggravated felonies if certain conditions exist even in the absense of any term of imprisonment.
3. Myth: "It's definitely an aggravated felony, I was in prison for 10 years."
Conversely, there are also many crimes which simply are not aggravated felonies regardless of the term of imprisonment imposed. For instance, battery and certain manslaughter offenses under California law do not qualify as aggravated felonies because they lack any element requiring a quantum of violence. These offenses can result in long prison terms and could, under certain circumstances, have no immigration effect at law.
4. Myth: "I was convicted of an aggravated felony, there is no defense to my deportation."
Attorneys skilled in the representation of criminal aliens win aggravated felony cases all of the time. The law in this area is quite complex and dynamic. There are certain forms of relief such as withholding of removal, 212(c), adjustment with an (h) waiver, among others which are not barred by an aggravated felony conviction. Also, very often a crime which appears on its surface to be an aggravated felony often turns out not to be an aggravated felony. Sometimes the government is simply unable to present clear and convincing evidence that the offense is an aggravated felony. Just within the past year or so, no less than five different distinct offenses were reclassified by the United States Court of Appeals for the 9th Circuit as either aggravated felonies or non-aggravated felonies and they also made drastic changes in the availability of relief. Furthermore, even aggravated felonies are susceptible to being reopened or challenged in the State Courts and any changes to the conviction in the State Court that are not based on rehabilitation alone are binding on the Immigration courts.

Update on Ramirez v. Brown, 9th Circuit TPS case

Ramirez v. Brown (No. 14-35633) which holds that recipients of Temporary Protected Status are deemed to be in lawful status and thus are considered to have been inspected and admitted for purposes of adjusting status has been retitled Ramirez v. Dougherty (same case number). On May 4, 2017, the government requested an extension of time until June 29, 2017 to file a Petition for Rehearing. I do not expect the petition to be successful.

Read the decision here.

This decision affects many, many TPS holders. If you have TPS, you should schedule an appointment with us to determine whether we can get you a green card.