Tuesday, June 27, 2017

Travel Ban to be Partially Implemented on June 29, 2017

Trump's "travel ban" on nationals of six Muslim countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) will go into partial effect on June 29, 2017. In an order dated June 26, 2017 that relates to both Trump v. International Refugee Assistance Program (Docket No. 16-1436) and Trump v. Hawaii (Docket No. 16-1540), the Supreme Court partially lifted the injunctions that prevented the travel ban from going into effect. You can read the text of the order here.

The injunctions against the travel ban were lifted only for "foreign nationals who lack any bona fide relationship with a person or entity in the United States." These people will be banned from entering the United States for at least 90 days from June 29, 2017.

The injunction were not lifted for persons who do have "any" bona fide relationship with a person or entity in the United States. The order list several examples of such persons who are not going to be banned as follows:
A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion. 
This creates an unmitigated mess because the extent to which the travel ban can be put into effect is so vague. Nonetheless, the concept of a "bona fide" relationship is not a new one. An alien who gets married during removal proceedings, for instance, must prove that the marriage is bona fide and thus it is a standard that most experienced immigration litigators will be quite familiar with.

If you are worried that this order will affect you or a someone you know, please schedule a consultation with us by calling (818)804-5729.

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.