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February 12, 2015
  Is Possession of Child Pornography a Removable or Deportable Offense?
Posted By Ricky Malik

Is Virginia simple possession of child pornography a removable or deportable offense?

Virginia code VA 18.2–374.1:1 (A), simple possession of child pornography for a first time offender, states that any person who knowingly possesses child pornography is guilty of a class six felony. The statute punishes the mere possession of material which is defined as sexually explicit visual material which utilizes or has as a subject an identifiable minor. A class 6 felony in Virginia is punishable by up to 5 years in jail and/or a fine of up to $2500.

TIP: It is very important at the criminal stage to hire a very competent and able criminal defense attorney as well as an immigration attorney to advise and analyze the immigration consequences of the charge(s).

Is it a Crime Involving Moral Turpitude (CIMT)?

The Board of Immigration Appeals has addressed possession of child pornography in different contexts. In Matter of Olquin, 23 I&N Dec. 896 (BIA 2006) the Board held that possession of child pornography under the Florida Statute was a CIMT and it appears it will mostly likely continue to be in Virginia and other states aswell. Therefore, if you are not a permanent resident or one who has been a resident for less than five years, a conviction for possession will likely limit your options and may deem you removable from the United States.

Is it an Aggravated Felony (Agg Fel)?

In Matter of R-A-M, 25 I&N Dec. 657 (BIA 2012), the Board analyzed an overbroad California. The Board compared the statute to the definition of an aggravated felony as found at INA 101(a)(43)(i) which states that offenses relating to child pornography as defined by 18 United States Code (USC) 1962, 1084, or 1955 to be aggravated felonies. However, the difference between the Virginia statute and the California statute of R-A-M, is that the California statute punished conduct that involved engagement or simulation of sexual conduct. The Virginia statute does not require any engaging or simulating to obtain a conviction and so the reasoning of R-A-M does not apply. Further, analysis of the aggravated felony definition of INA(a)(43)(i) (sections of the United States Code (USC) as they relate to child pornography) punish activity relating to sexual exploitation of children, the selling or buying of children, and certain activities relating to material involving the sexual exploitation of minors; far more involved actions than simple possession.

The Virginia simple possession statute does not relate to the aggravated felony statute in the Immigration and Nationality Act (INA), nor does it fall within the conduct of the Board decision in R-A-M, and therefore it should be argued that it is not an aggravated felony.

If you are convicted under this statue, you are not an aggravated felon and you should be able to prevent your removal and apply for immigration benefits.

To schedule a consultation, please call the office at 703.686.9900

Continue reading "Is Possession of Child Pornography a Removable or Deportable Offense?" »

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February 09, 2015
  Felony Grand Larceny is not an Aggravated Felony
Posted By Ricky Malik

Grand Larceny not an Immigration Aggravated Felony

For years Virginia felony grand larceny was deemed an aggravated felony for Immigration purposes, which means most likely a person with this conviction would be removed or would not be allowed to receive almost any immigration benefit. On December 23, 2014, the Fourth Circuit Court of Appeals which issues controlling decisions for Virginia, West Virginia, North and South Carolina on ruled in Omargharib v. Holder that a conviction for grand larceny in Virginia (VA Code Ann. 18.2-95) is not an "aggravated felony" under the Immigration and Nationality Act (INA).

The Legal Stuff

Often times a "modified categorical approach" is used to analyze criminal laws in the context of immigration, meaning if a statute (or law) is written in a way to encompass different actions to lead to a conviction, a special type of legal analysis is conducted. The Fourth Circuit in this case, consistent with the Supreme Court 2013 ruling in Descamps v. United States, 133 S. Ct. 2276 (2013), concluded that the Virginia crime of larceny is not divisible. Therefore the "modified categorical approach" does not apply, bur rather the regular "categorical approach."

The Best Part

Very revealing was the Fourth Circuit's logic and conclusion on how to determine if a state crime is an aggravated felony using the categorical approach. The court stated:

Under that [categorical] approach, we consider only the elements of the statute of conviction rather than the defendant's conduct underlying the offense. Descamps, 133 S. Ct. at 2285 (stating that the categorical approach's "central feature" is "a focus on the elements, rather than the facts, of a crime"). If the state offense has the same elements as the generic INA crime, then the prior conviction constitutes an aggravated felony. See id., 133 S. Ct. at 2283. But, if the state law crime "sweeps more broadly" and criminalizes more conduct than the generic federal crime, the prior conviction cannot count as an aggravated felony. Id. This is true "even if the defendant actually committed the offense in its generic form." Id. (emphasis added).

That would mean unless there is an exact match between the state statute and the federal statute, under the categorical approach, the crime will not be an aggravated felony. Good news for many non-citizens who are or have been accused of an aggravated felony.

What does this mean for non-citizens?

If you have been denied US Citizenship, have been ordered removed or deported from the United States, or ever been denied a US Immigration benefit because you were accused of being convicted of grand larceny (or possibly other aggravated felonies), you should consult with a qualified Immigration Attorney to determine if you can re-open your case or re-apply for a US Immigration benefit.

Contact the Law Offices of Ricky Malik, PC to schedule a consultation or to find out more about this issue.

Continue reading "Felony Grand Larceny is not an Aggravated Felony" »

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November 20, 2013
  A Motion To Rescind a Prior Removal Order Is Not Required If You Are Seeking Asylum Based on Changed Country Conditions
Posted By Ricky Malik

The Board of Immigration Appeals (BIA) clarified that a foreign national does not need to rescind a prior removal order if a foreign national seeks to file for asylum based on changed country conditions in the foreign national's home country.

Normally, an individual who has an outstanding order of removal (deportation) first files a motion to reopen with the Immigration Court that ordered deportation before pursuing the immigration matter. This is because there are very few immigration options available to someone who has been ordered deported and the rescission of the prior removal order will open up avenues.

There are several types of motions to reopen with different time limits and requirements:

  1. Factual: Must be filed within 90 days of the decision ordering removal;
  2. In absentia orders: If the person was not in court, a motion to reopen may be filed within 180 days if the foreign national demonstrates exceptional circumstance for failing to appear;
  3. Joint Motions: If the Department of Homeland Security (DHS) agrees and joins in reopening the case there is no time limit;
  4. No Notice: There is no time limit if the foreign national did not receive proper notice or was in Federal or State custody;
  5. Battered Spouses, Children, Parents: If the person(s) were subject to abuse and meets the requirements, there no time limit;
  6. Asylum: If based on Changed Country Conditions there is no time limit.

In Matter of J-G-, 26 I&N Dec. 11 (BIA 2013), the Board clarified that the reopening does not have to seek to rescind the prior removal order first, if the purpose for seeking reopening is to apply for asylum or withholding of removal based on changed country conditions. This is significant because rescinding or erasing a prior removal order is oftentimes very difficult. Now an applicant can first concentrate and limit the case to meeting the requirements of filing for asylum based on changed country conditions instead of having the Court address both recision and reopening at the same time. Decision Below.

Ricky Malik, Esq.

Continue reading "A Motion To Rescind a Prior Removal Order Is Not Required If You Are Seeking Asylum Based on Changed Country Conditions" »

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November 18, 2013
  Legal Status for Military Family Members
Posted By Ricky Malik

Legal Immigration Status for Military Family Members

If you are the spouse, parent, or child of an active duty or retired member of the Army, Marines, Navy, Air Force, Selective Reserve of the Ready Reserve, then you can obtain legal status.

This concept has been around quite a few years but was clarified recently to implement a uniform policy across the United States. It is commonly knows as Parole-in-Place or PIP. Under INA 212(d)(5)(A) an individual can be "paroled" on a case-by-case basis for "urgent humanitarian reasons or significant public benefit." Parole in place is available for everyone but is rarely granted except for those with family in the military.

What type of Legal Status can you obtain?

There are two options that are available:

  1. Parole in Place (PIP). This will be granted to the spouses, children and parents of current and former members (veterans) of the U.S. Armed Forces. In order to apply you must submit the appropriate form, proof of family relationship, proof of Armed Forces Service, two pictures and other additional evidence that you feel will be beneficial to your case.
  2. Adjustment of Status (Permanent Residency). If the family member who is or was in the U.S. Armed Forces is a United States Citizen, then you will be eligible to obtain Lawful Permanent Residency (LPR) or a "greencard" after you obtain PIP.

The United States Citizenship & Immigration Services recently released the memorandum clarifying the availability of PIP and adjustment of status which can be view below. If you have questions or want to know more about this program, please do not hesitate to contact us.

Continue reading "Legal Status for Military Family Members" »

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November 12, 2013
  8 Ways To Get a Deferred Action (DACA) Travel Document
Posted By Ricky Malik

Welcome Dreamers. We are repeatedly asked by students and young persons who have been granted under the Deferred Action for Childhood Arrivals (DACA or Dream Act as it is commonly referred to) program about traveling outside the United States. As I often answer and have previously blogged about, a DACA applicant must demonstrate that the travel is for one of the following purposes:

  • Humanitarian (medical, emergent, compelling, sympathetic)
  • Employment
  • Educational

The form alone, much to the dismay of the Notario and mediocre lawyer, will generally not be sufficient to satisfy this requirement. Some suggestions, in no particular order that can enhance your chances of approval (only if true):

  1. Obtain a letter from a medical health professional explaining the reason that you need to travel to obtain medical treatment. Medical tourism is big business these days.
  2. If you have a relative who is in poor health, get a respectable letter from the hospital or treating facility that accurately and thoroughly detailing the condition(s).
  3. As difficult as it may be, if a relative has died, the death certificate.
  4. Provide documentation from your school about the study abroad, summer-on-the-sea, summer immersion program you are enrolling in. Do not travel on this reason unless you will study.
  5. Provide documentation from the foreign school or educational program that you intend to enroll in and its duration. After all, many students come to the United States to study on F-1 Student Visas for short durations; you too can try the same in another country.
  6. Letter or information from your educational institution about the academic research you are conducting, including credit hours to be awarded and/or requirement it will satisfy. I think it would be really relevant for some Dreamers to go to their native lands to conduct field research for comparative studies of educational and medical institutions. This often comes in play in deportation court, and the more information, the better.
  7. Letter from your employer explaining your need to travel abroad for an overseas assignment or training.
  8. Information about the conference you need to attend. The American Immigration Lawyers Association (AILA), of which I'm a card carrying member, has conferences overseas from time to time, so if you are Dreamer who works for an immigration attorney, you may be in luck!

Of course, before applying, I would strongly recommend consulting or hiring a qualified immigration attorney, and especially if you have prior immigration history, such as an outstanding order of removal (deportation) or have had problems with the police. To note again, do not engage in any action which is not true in order to secure a travel document, or any immigration benefit for that matter.

If you have questions or thoughts, feel free to comment or email me directly at dream@rmlegal.com.

Continue reading "8 Ways To Get a Deferred Action (DACA) Travel Document" »

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November 08, 2013
  Getting Work Permits For People With Pending Asylum Cases Should Get Easier Soon
Posted By Ricky Malik

For those of us familiar with Asylum cases, there is much grumbling and moaning when you mention "The Clock." It can ruin a person's ability to support themselves and it is unclear when it gets stopped and started or does not run. The "Asylum Clock" (or KLOK as it is also known) is basically the concept that a foreign national who files for asylum must wait 150 days after filing an asylum application (I-589) before applying for an Employment Authorization Document (EAD). The counter or timer operation is the problem.

Its a hair-pulling issue but on November 4, 2013 a nationwide class action settlement was reached that will hopefully allow so many people who have suffered persecution in their past to actually obtain their work permits within the lawful time lines.

One of the parts of the settlement that we are most excited about is that asylum seekers will soon be able to file their asylum applications with the Immigration Court immediately, instead of waiting for months, sometimes close to a year before the initial Master Calendar Hearing (No more motions to advance hearing date. Wohoo!)

Continue reading "Getting Work Permits For People With Pending Asylum Cases Should Get Easier Soon" »

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November 07, 2013
  Creative Strategy for DACA (Dream Act) Case
Posted By Ricky Malik

We recently received a Deferred Action for Childhood Arrivals (DACA or commonly referred to as the Dream Act) approval for a case I am particularly proud of.

Some background first. We had a client who while detained and without a lawyer, was very unfairly ordered removed (deported) by an Immigration Judge. We appealed his case to the Board of Immigration Appeals (BIA) on the grounds that he was denied due process and was not given a full and fair hearing under the Immigration and Nationality Act, and even supplemented his appeal when the BIA issued its holding in Matter of C-B, 25 I &N Dec. 888 (BIA 2012).

While the appeal was pending, the DACA program was announced and we went through all of our client files to determine who could benefit, including this client. Unfortunately, we could not get any proof that he was physically present in the United States on the DACA continuous presence date of June 15, 2007. Not wanting to let this get in my way, I remembered when I read his Immigration Court transcript, the Judge had asked him under oath, when he entered the United States, to which he responded October 2006, well before the date needed.

We submitted his testimony which he gave 5 months prior to the DACA announcement and without anyone's knowledge at the time that June 15, 2007 would be a relevant date. We argued the statement was given under oath and under penalty of perjury and at the time our client gave that testimony he could not have known or taken advantage of the DACA program, so the statement was sincere and accurate.

It worked and his DACA was recently approved! We're always looking for creative ways to represent our clients. We've even used Facebook and social media posts to prove physical presence for DACA cases. We're always keeping our clients in mind (old and current) when a new precedential case or a new immigration program is announced.

Ricky Malik, Esq.

Continue reading "Creative Strategy for DACA (Dream Act) Case" »

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November 06, 2013
  Immigration Options for Same-Sex Couples
Posted By Ricky Malik

In the United States v. Windsor, the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. This monumental decision, which was the culmination of years of tireless work by thousands of advocates the world over, opened up the much needed availability of immigration benefits to same-sex couples. USCIS reacted fairly quickly to open the doors to a segment of the population that had been denied equal access to immigration benefits that so many others had privileged to have.

This now means gay and lesbian couples can petition for each other in all immigration contexts that were previously reserved for hetero-sexual couples. To name just a few of the types of immigration cases that are now available to both hetero and homo sexual couples:

  • Greencard (LPR) through marriage to a US Citizen or Permanent Resident;
  • K-1 Fiance Visa;
  • K-3 Spouse of a US Citizen Visa;
  • Violence Against Women Act (VAWA) self-petitions;
  • Cancellation of Removal requiring a qualifying relative;
  • Waivers requiring a qualifying relative- 212(h), 212(i);
  • Diversity Visa;
  • Asylum and Refugee derivative beneficiaries;
  • Prosecutorial Discretion for those in Immigration Proceedings;
  • Provisional Stateside Waiver Process (I-601A) and Overseas Waivers;
  • Derivative beneficiaries of non-immigrant visas (F-4, K-2, H-4, E-2, etc.);
  • Following to join and accompanying to join.

There should not longer be any type of immigration benefit not available to a same-sex couple.

We at the Law Offices of Ricky Malik, PC proudly represent same-sex couples and applaud the decision. Please contact us for a confidential consultation to discuss your options. We are discrete and fully aware not all couples are open about the circumstances of their relationship and we do everything to respect and honor your wishes.

Ricky Malik, Esq.

Continue reading "Immigration Options for Same-Sex Couples" »

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January 31, 2013
  Travelling outside the United States as a Dreamer (DACA)
Posted By Ricky Malik

A young client who was recently granted legal status and work authorization under the Deferred Action for Childhood Arrivals (DACA) program asked me if he could travel outside the United States. His life had changed so much in the last few months. For the first time in his life he was legal and could work.

He knew no other country than the United States since he had been here as long as he could remember and asked me if he could travel to his native country.

I told him that he may apply for permission and obtain what is known as "Advance Parole" to travel outside the United States and return. Traveling without Advance Parole would mean his newly acquired, long awaited deferred status would expire.

In order to obtain Advance Parole as a Dreamer, you must file a form I-131 and demonstrate that you have a compelling reason related to (1) your current employment, (2) education, or (3) humanitarian purposes. I told him though this may change in the future, his reasons for travelling must be related to one of the three reasons.

Ricky Malik, Esq.

Continue reading "Travelling outside the United States as a Dreamer (DACA)" »

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January 14, 2013
  Can I apply for a Provisional Waiver if I am in removal (deportation) proceedings?
Posted By Ricky Malik

We are fielding questions about whether someone in removal proceedings or who has been ordered removed (deported) can apply under the new Provisional Waiver Process.

The Answer

If you are currently in removal proceedings, they need to be "administratively closed" so that you can apply for the Provisional Waiver (I-601A). Once the waiver has been approved, you will need to "re-calendar" those proceedings and have them "terminated" or "dismissed." You must make sure they are terminated or dismissed before you depart the United States. You don't want to inadvertently execute your own removal order.

If you already have an order of removal or deportation against you, then you will first need to seek to have your case re-opened by filing a "Motion to Reopen." If that motion is granted, then when appropriate, you will need to have your proceedings administratively closed while you seek the provisional waiver. After the waiver is approved, you will need the proceedings terminated or dismissed before you depart the United States.

In both above scenairios, you will more than likely need a seasoned and experienced attorney guide you.

Ricky Malik, Esq.

dream@rmlegal.com

Continue reading "Can I apply for a Provisional Waiver if I am in removal (deportation) proceedings?" »

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January 11, 2013
  New ICE Detainer policy - December 21, 2012
Posted By Ricky Malik

The director of Immigration & Customs Enforcement, John Morton, released a memorandum on December 21, 2012 that if implemented will significantly scale back the application of detainers by federal, state and local law enforcement.

Under the new guidance, ICE should issue a detainer only where (1) they have reason to believe the individual is an alien subject to removal from the United States AND (2) one or more of the following conditions apply:

  • the individual has a prior felony conviction or has been charged with a felony offense;
  • the individual has three or more prior misdemeanor convictions;
  • the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves-
    • violence, threats, or assault;
    • sexual abuse or exploitation;
    • driving under the influence of alcohol or a controlled substance;
    • unlawful flight from the scene of an accident;
    • unlawful possession or use of a firearm or other deadly weapon;
    • the distribution or trafficking of a controlled substance; or
    • other significant threat to public safety;3
  • the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
  • the individual has illegally re-entered the country after a previous removal or return;
  • the individual has an outstanding order of removal;
  • the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
  • the individual otherwise poses a significant risk to national security, border security, or public safety.

Continue reading "New ICE Detainer policy - December 21, 2012" »

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January 09, 2013
  Video: Who Qualifies for the new Provisional Waiver?
Posted By Ricky Malik

Ricky Malik, Esq.

Continue reading "Video: Who Qualifies for the new Provisional Waiver?" »

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January 08, 2013
  DHS has the burden to prove LPR's inadmissiblity
Posted By Ricky Malik

When a permanent resident (LPR or greencard holder) travels overseas and returns, s/he is NOT to be treated as what is known as seeking admission (or an applicant for admission) into the United States.

The Board of Immigration Appeals (BIA) clarified in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) that to establish that a returning LPR is to be treated as an applicant for admission, rather than not an applicant for admission as stated above, the government has the burden of proving by clear and convincing evidence that one of the six exceptions listed in §101(a)(13)(C) applies.

Those exceptions are if the person:

  1. has abandoned or relinquished that status,
  2. has been absent from the United States for a continuous period in excess of 180 days,
  3. has engaged in illegal activity after having departed the United States,
  4. has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,
  5. has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or
  6. is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer

So if you are a permanent resident and stopped at re-entry at the airport or other port of entry by the Customs and Border Patrol (CBP), it will be on the DHS to prove by clear and convincing evidence that you fall into one of the above six categories.

Ricky Malik, Esq.

Continue reading "DHS has the burden to prove LPR's inadmissiblity" »

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January 04, 2013
  How do you prove "Extreme Hardship"?
Posted By Ricky Malik

The new provisional waiver process that was published in the Federal Register on January 3, 2013 has brought out a lot of questions about what constitutes "extreme hardship." This is after all the standard that must be proven to USCIS. It is important to understand the hardship is not to the foreign national, but rather to the qualifying relative.

While there is no bright line test as to what constitutes extreme hardship, and it is evaluated on a case by case basis, it can include, but is not limited to: family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s).

The lead Immigration Court case from the Board of Immigration Appeals (BIA) isMatter of Cervantes, 22 I&N Dec. 560 (BIA 1999) which lists as factors:

  • the presence of lawful permanent resident or United States citizen family ties to this country;
  • the qualifying relative’s family ties outside the United States;
  • the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;
  • the financial impact of departure from this country;
  • significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Extreme Hardship is proven differently and uniquely in each case and is personal to each family and can be proven in the absence of severe medical issues. Consider hiring an attorney for a process as complex as a waiver.

Ricky Malik, Esq.

Continue reading "How do you prove "Extreme Hardship"?" »

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January 03, 2013
  New Provisional Waiver Rule Released
Posted By Ricky Malik

After almost a year of waiting, the new Provisional Waiver rule was released on January 3, 2013 with an effective date of March 4, 2013. The new rule allows foreign nationals who have been unlawfully present in the United States for more than 180 days to complete the majority of the process and waiting in the United States. Before the rule, which will take effect on March 4, 2013, spouses, parents and children of US Citizens would often times have to wait months to years outside the United States to ask for a waiver (pardon). Now, the immigrant petition, waiver and national visa center (NVC) processing will all be done while the family can remain together in the United States.

Eligibility to apply:

  1. You must be present in the United States at filing and be fingerprinted;
  2. Your only immigration violation is that you were unlawfully present (undocumented) for 180 days or more in the U.S.;
  3. Your visa petition must be filed by a US Citizen Immediate Relative (spouse, parent or child over 21);
  4. You must show extreme hardship to your US Citizen spouse or parent(s), not to your child(ren);
  5. You must file Form I-601A with an approved I-130 and proof the immigrant visa fee has been paid to the Department of State (NVC).

Below are the regulations as published in the Federal Register. All the reasons you may want to consider hiring an attorney are in those details.

Ricky Malik, Esq.

Immigration Attorney

Continue reading "New Provisional Waiver Rule Released" »

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August 18, 2012
  How is "currently in school" defined for the Deferred Action Program?
Posted By Ricky Malik

We are receiving many questions about the "school" requirement for DACA: "Can I enroll in a GED program now?", "What if I completed High School in my country, can I enroll in school now?", "Do I still need to be in school?", "Do I need to go back to school?",

The DACA program is flexible.

To meet the “currently in school” requirement you must be enrolled in school on the date you submit a request for consideration of deferred action under this process. This means that you can enroll now in a program and apply for DACA.

Types of programs that qualify:

  1. General Educational Development (GED) programs or its equivalent;
  2. English as a Second Language (ESL) program as a prerequisite to your placement in postsecondary education, job training, or employment;
  3. Educational, Literacy, or Career Training (including Vocational training) programs that are designed to lead to placement in postsecondary education, job training, or employment;
  4. Public or Private elementary, middle, junior high, high school, or secondary school.

Contact our office if you would like to receive a free evaluation of your eligibility for Deferred Action or email me at dream@rmlegal.com

Ricky Malik, Esq.

Continue reading "How is "currently in school" defined for the Deferred Action Program?" »

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August 17, 2012
  How to apply for Deferred Action (DACA)?
Posted By Ricky Malik

USCIS is now accepting applications for Deferred Action for Childhood Entrants (DACA) as of August 15, 2012.

In order to apply, you need to consider and/or submit the following:

  • Strongly consider hiring or discussing your eligibility with a qualified immigration attorney;
  • Submit a check or money order payable to "U.S. Department of Homeland Security" for $465;
  • Two (2) Passport Photos;
  • Carefully complete forms G-28 (with attorney submissions*), I-821D, I-765, and I-765WS;
  • Educational (or Armed Forces) Requirements:
  • School- proof of current enrollment, graduation or completion, OR
  • GED (General Educational Development) - proof of certification or current enrollment, OR
  • Evidence that you are enrolled in an education, literacy, or career training program (including vocational training) designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement, OR
  • Evidence of English as a Second Language (ESL) programs will qualify if the program is intended and designed for your placement in postsecondary education, job training, or employment, OR
  • Military information;
  • Evidence that you have been in the United States for 5 years:
  • School records, cell phone bills, medical records, doctor's bills, school transcripts, rent receipts, utility bills, employment records, bank records, church docs, parental information, taxes, paystubs, W-2's, 1099's, money order receipts, children's birth certificates, passport entries, letters between you and another person or organization, title and vehicle registration, DMV records, rental agreements, postmarked letters, receipts, and any other relevant documentation;
  • Were born after 6/15/81- Biographical page of passport OR other ID document such as a translated Birth Certificate;
  • Are aged 15 or older right now. If younger than 15, you can still apply if you are now in immigration court or have ever been previously;
  • Any proof you entered the U.S. without inspection before 6/15/12 or you were out of status by 6/15/12;
  • Any proof you arrived in U.S. before the age of 16 (passports, visa or immigration docs, travel records, school records, hospital, medical, any official records, anything with name and date);
  • Any proof you have continuously resided in the U.S. since 6/15/07 up to the present time and were physically present in the United States on 6/15/12;
  • Any documentation about any criminal or traffic convictions or citations, if you have any;
  • You cannot have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety (For more on criminal disqualifiers, click here).
  • If ever in immigration court or apprehended by Immigration, those documents;
  • Only had brief departures from the United States since June 15, 2007 or no departures at all.

Ricky Malik, Esq.

Contact me now at dream@rmlegal.com or toll free 877-577-VISA [8472]

*Attorney representation requires the use of a Form G-28 Notice of Entry of Appearance which places a double notice requirement on USCIS to send all correspondence to BOTH applicant and attorney doubly ensuring important mail, appointment and approval notices reach you.

This post is not intended as legal advice and you should not rely on it as a basis for you application.

Continue reading "How to apply for Deferred Action (DACA)?" »

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August 05, 2012
  USCIS will begin to accept Deferred Action (DREAM) applications on August 15, 2012
Posted By Ricky Malik

The Department of Homeland announced the procedure for young persons to file for deferred action as announced by the Obama administration on June 15, 2012. Filing will begin on August 15, 2012.

Young persons who are in removal (deportation) proceedings, as well as those who already have deportation (removal) orders, and those who have never been in removal proceedings will be able to mail in their applications, payment of $465 and supporting documents to USCIS to request consideration for deferred action.

The program has been recognized by several names: Dream Act, Deferred Action for Young Persons, and now Deferred Action for Childhood Arrivals. The USCIS brochure and flyer are below.

To qualify, you must submit evidence proving that:

  1. You were born after June 15, 1981;
  2. Arrived in the United States before the age of 16;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were present in the United States on June 15, 2012;
  5. Entered without inspection before June 15, 2012 or fell out of status as of June 15, 2012;
  6. Are currently in school, graduated or received a certificate of completion from high school, obtained a general educational development certificate (GED), or that you are an honorably discharged veteran of the Coast Guard or U.S. Armed Forces;
  7. Are at least 15 years of age now (or by time of filing), or if younger you are now in immigration court proceedings or have been previously;
  8. Have only had brief departures (or none at all) from the United States since June 15, 2007; AND
  9. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
  • Significant misdemeanor = domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or a crime for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
  • What is not a significant misdemeanor and what will not lead to disqualification: A minor traffic offense (including driving without a license) will not be considered a misdemeanor for purposes of this process. So even if an applicant has 3 or more driving without a license convictions, that person may still qualify.
  • NOTE: Even though Driving Under the Influence (DUI) is a deemed a significant misdemeanor, USCIS has stated that "the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion." This means it is conceivable that a person with a negative conviction may still be able to qualify as criminal history is a factor that is considered.

Ricky Malik, Esq.

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June 15, 2012
  DREAM! Huge Announcement: Deferred Action and Work Permits for Students
Posted By Ricky Malik

On Monday, June 11, 2012 and the following day, the Washington Post ran a story about one of the Law Offices of Ricky Malik's clients. Today, June 15, 2012, after many years of advocating by thousands, the Obama administration announced that it will offer Deferred Action to those who know only the United States as home, for those who were brought to this country as children and has issued a DREAM act type directive which includes work permits.

There are five criteria to be eligible. The applicant:

  1. Came to the United States under the age of sixteen;
  2. Has continuously resided in the United States for a least five years preceding June 15, 2012 and is present in the United States as of June 15, 2012;
  3. Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  4. Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
  5. Is not above the age of thirty.

Full Memo below. Huge and significant announcement. Way to go Heydi, DREAMers and all the thousands who helped make this happen.

Ricky Malik, Esq.

www.rmlegal.com

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February 17, 2012
  How long will my waiver (601) take if I go overseas?
Posted By Ricky Malik

I am oftentimes asked by people who are ineligible to get Lawful Permanent Residency (LPR/greencard) in the United States about going overseas to complete a waiver process, known commonly as an I-601.

The risk and fear is that it will take too long and may get denied. Both are reasonable concerns and many people feel that if they leave it will take years. While this is true in a few cases, generally, if after consulting with my office we decide to proceed with an overseas petition process, the wait times can be as short as a few months or generally in the 6-12 month range. Below are the latest processing times.

As you can see the majority of cases are completed within 6 months, except for El Salvador which takes just less than a year for 100% completion, Honduras which takes over year, and England where the Consulate clearly takes their time.

Ricky Malik, Esq.

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February 15, 2012
  Can I apply for a work permit (EAD) even if my case was denied and is on appeal?
Posted By Ricky Malik

Yes! According to USCIS-NBC in meeting held in October 2011 with AILA, even if your case has been denied by USCIS, and then subsequently denied by an Immigration Judge, you can still apply and get your work permit while your case is on appeal before the Board of Immigration Appeals (BIA) or later if your case is with the Cirucit Court of Appeals in your area.

You must demonstrate proof of the pending appeal in the form of

  1. a copy of the file stamped Form EOIR-26 where block 6 indicates that the Form I-485 is at issue in the appeal
  2. a file stamped copy of the Petition for Review wherein the alien is appealing the fact that the BIA affirmed the IJ’s denial of the Form I-485,
  3. or in cases where an Appeal of an I-485 has been remanded to a lower court, to the BIA or Immigration Court, a copy of the Court Order remanding the matter.

Ricky Malik, Esq.

www.rmlegal.com

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January 07, 2012
  USCIS Release on New Process for Waivers
Posted By Ricky Malik

In the Federal Register on Monday, January 9, 2011 a new proposed provision will be published allowing many undocumented immigrants to process their waivers while inside the United States. For many years, certain immigrants were afraid to leave the United States to process their "greencards" because they feared their waivers (pardons) would be denied thereby barring re-entry into the United States for 10 years.

Now the Obama administration is changing the law to allow immigrants to process the waivers inside the United States taking away the risk of going overseas and getting denied. However, the immigrant will still have to leave the U.S. to pick up his/her immigrant visa but will not wait for months or years while the waiver is being processed. This concept of still having to leave will please the Republican opposition as they have been proponents of legalization only if there person goes overseas to get their visas. This seems like a good compromise on its face that should please all sides.

Below is the release from USCIS:

Ricky Malik, Esq.

www.rmlegal.com

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January 06, 2012
  Major Proposed Change in Immigration: New Process for Waivers to be decided in the United States
Posted By Ricky Malik

There is a major proposed announcement changing the Immigration process for many foreign nationals who are illegal in the United States. At present, many people must travel outside the United States and wait months if not years to seek forgiveness (a waiver) to re-enter the U.S.

Now, the Obama administration is proposing to allow certain relatives of U.S. Citizens to apply for the waiver and wait inside the United States. Then once the immigrant petition (I-130) and waiver (I-601) have been approved, the foreign national can go to simply and expeditiously pick up the visa from their home embassy or consulate.

The proposal was preliminary announced this morning and will become official once published in the Federal Register on Monday, January 9, 2012.

Below is the Advance copy of the USCIS notice that would allow certain immediate relatives of U.S. Citizens to request INA 212(1)(9)(B)(v) unlawful presence waivers, prior to departing the U.S. for consular processing of their immigrant visa application.

Ricky Malik, Esq.

Immigration Attorney

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November 30, 2011
  Immigration High Court further limits Cancellation of Removal eligibility
Posted By Ricky Malik

The Board of Immigration Appeals (BIA) further limited a non-citizen's ability to apply for Cancellation of Removal issuing a decision disallowing a 212(h) waiver to be used to overcome certain criminal grounds.

Cancellation of Removal for non-greencard holders is available to stop the removal (deportation) of an immigrant who can prove s/he has been in the United States for 10 years, establish good moral character, and demonstrate that close family members would suffer exceptional or extremely unusual hardship if the immigrant were to be deported.

In Matter of Busatamante, 25 I&N Dec. 564 (BIA 2011), the immigrant has been convicted of possession of 20 grams of Marijuana. A 212(h) waiver exists to forgive an immigrant who possessed less than 30 grams. Bustamante applied for a 212(h) waiver to apply for forgiveness for the 20g and then demonstrate how badly his family would suffer if her were to be deported.

Unfortunately, the Immigration high court did not agree and closed the door for many immigrants to use the 212(h):

Ricky Malik, Esq.

www.rmlegal.com

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November 28, 2011
  USCIS Memo on Commencement of Removal Proceedings: Anytime we can put someone in Immigration Court, we will
Posted By Ricky Malik

United States Citizenship & Immigration Services (USCIS) issued a memo on November 7, 2011 providing guidelines to officers describing when a Notice to Appear (NTA) is to be issued. An NTA is the document that starts removal (deportation) proceedings against a non-citizen. It is sometimes referred to as the charging document and receiving one of these is usually bad news because it means the United States is trying to deport you. If you get an NTA which generally looks like the document below, it is best to quickly consult with a qualified immigration attorney.

The November 7, 2011 Memo below generally seems to indicate that anytime USCIS can deny an application, they will place that person in deportation court.

Ricky Malik, Esq.

www.rmlegal.com

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November 27, 2011
  Court further takes away from Immigrants by allowing Immigration Officers to trick them
Posted By Ricky Malik

The BIA in Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011) determined that "Until an alien who is arrested without a warrant is placed in formal proceedings by the filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does not require immigration officers to advise the alien that he or she has a right to counsel and that any statements made during interrogation can subsequently be used against the alien."

This seems outrageous. Law enforcement officers are required to immediately read a suspected defendant his Miranda rights, but not in the Immigration world? Is the Board determining that immigration officers are not real law enforcement officers?

Ricky Malik, Esq.

www.rmlegal.com

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November 26, 2011
  Court holds attempted arson to be an Agg Fel even when Federal Law does not agree
Posted By Ricky Malik

The Board of Immigration Appeals (BIA) in Matter of Bautista, s 25 I&N Dec. 616 (BIA 2011) determined that:

"Attempted arson in the third degree in violation of sections 110 and 150.10 of the New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the Immigration and Nationality Act, 8U.S.C. § 1101(a)(43)(E (i) (2006), even though the State crime lacks the jurisdictional element in the applicable Federal arson offense. Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), followed."

The contention we really have with the case is this is just another situation where the BIA is engaging in judicial activism of trying to write conservative immigration laws. The Federal Government hold exclusive authority over immigration, but here the BIA is finding a state crime to be a deportable offense even though there is no Federal law that deems it deportable. 

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November 25, 2011
  What is a single scheme of criminal conduct for removal (CIMT) purposes?
Posted By Ricky Malik

The Board of Immigration Appeals (BIA) in an immigration case, Matter of Islam, 25 I&N Dec. 637 (BIA 2011) dealing with the issue of when do criminal acts arise out of a single scheme of criminal misconduct for purposes of whether someone should be removed (deported) for committing two crimes involving moral turpitude (CIMT).

The Immigration Laws require the removal of a non-citizen who has committed two or more CIMT's. However, there is an exception if the crimes involving moral turpitude arise out of a single scheme of criminal misconduct. Unfortunately the anti-immigrant decision below, the court conservatively defined when a crime arises out of a single scheme. In this case, when the person in a single day of activity engaged in continuing acts, the BIA held them as separate (full decision below):

"(1) In determining whether an alien’s convictions for two or more crimes involving moral turpitude arose out of a “single scheme of criminal misconduct” within the meaning of section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2006), the Board will uniformly apply its interpretation of that phrase in all circuits. Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), followed.

(2) Where the respondent was convicted in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards to obtain items of value from several retail outlets on five separate occasions over the course of a day, his crimes did not arise out of a “single scheme of criminal misconduct.”

Ricky Malik, Esq.

www.rmlegal.com

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November 24, 2011
  Nov 2011 Prosecutorial Discretion Release from ICE and Immigration Courts
Posted By Ricky Malik

Since the groundbreaking Morton Memos of June 17, 2011 and the announcements from the White House and Secretary of Homeland Security Janet Napolitano, finally ICE and the Immigration Courts responded with some methodology about the "working group" review to determine high priority vs low priority deportations (enforcement priorities).

There were several releases, all of which are featured in this article, the most official from Immigration and Customs Enforcement (ICE) below from Principal Legal Advisor of ICE, Peter Vincent entitled "Case-by-case review of incoming and pending cases":

ICE also released the below statement announcing immediate training and review of incoming and pending cases clogging up the Immigration Courts. The review is to be completed by January 13, 2012 (Good luck with that if any meaningful review is to be conducted):

Let's hope for a fair review. I can't say I have been impressed thus far with the "reviews" of enforcement priorities. Maybe now that there appears to be training in progress, there will be some change.

Ricky Malik, Esq.

www.rmlegal.com

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November 21, 2011
  Fourth Circuit Decision on Evidence, IJ failure
Posted By Ricky Malik

Tassi v. Holder: "In sum, the IJ committed multiple legal and factual errors. In the first category, the IJ erroneously (1) applied the rules of evidence; (2) suggested that corroborative evidence requires further corroboration; and (3) discredited documents as unauthenticated under the immigration regulations without providing Tassi an opportunity to authenticate them by other means and without otherwise providing sound, cogent reasons for rejecting them. Of course, an IJ's errors of law necessarily constitute an abuse of discretion. See Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir. 2006). In the second category, several of the IJ's factual findings were not supported by substantial evidence, but by inaccurate perceptions of the record or by speculation and assumption. See Jian Tao Lin, 611 F.3d at 237. The IJ's legal and factual errors, in turn, thwarted the necessary weighing of Tassi's corroborative evidence against the adverse credibility findings. See id. at 236. For its part, the BIA erred in failing to recognize the IJ's multiple errors concerning important aspects of Tassi's claims, rendering the BIA Order manifestly contrary to law and an abuse of discretion."

Ricky Malik, Esq.

www.rmlegal.com

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November 20, 2011
  Not every returning Green card holder is an "applicant for admission" and Accessory after the face is CIMT only if underlying crime is one.
Posted By Ricky Malik

Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (full case below):

"(1) In order to establish that a returning lawful permanent resident alien is to be treated as an applicant for admission to the United States, the Department of Homeland Security has the burden of proving by clear and convincing evidence that one of the six exceptions to the general rule for lawful permanent residents set forth at section 101(a)(13)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C) (2006), applies.

(2) The offense of accessory after the fact is a crime involving moral turpitude, but only if the underlying offense is such a crime."

INA 101(a)(13) states:

(A) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

(B) An alien who is paroled under section 212(d)(5) or permitted to land temporarily as an alien crewman shall not be considered to have been admitted.

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,

(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or

(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

Ricky Malik, Esq.

www.rmlegal.com

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November 19, 2011
  "Solicitation" is not an "attempt" or "conspiracy", but it can still be an Aggravated Felony
Posted By Ricky Malik

The Board of Immigration Appeals in Matter of Luis Manuel GUERRERO held that "solicitation" of a crime is different from and "attempt" or "conspiracy" to commit a crime. This nuance of language is significant because the section of the Immigration code that defines what crimes are Aggravated Felonies (AF) has a catchall in INA 101(a)(43)(U) which states that "an attempt or conspiracy to commit an offense" in the Agg Fel section, is also an Agg Fel.

The Board went on however to state that while solicitation is may not fall under conspiracy or attempt of INA 101(a)(43)(U), solicitation of the underlying crime directly can be an Aggravated Felony.

Guerrero

Ricky Malik, Esq.

www.rmlegal.com

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November 18, 2011
  Immigration can take your Greencard (LPR) away after 5 years
Posted By Ricky Malik

The Board of Immigration Appeals in Matter of Cruz De Ortiz issued a decision overturning the long held belief by many that your greencard (LPR) status cannot be taken away once five (5) years passes. The BIA held that INA 246(a) rescission of LPR status is available beyond 5 years for those who obtained Immigrant Visa from Consulate.

That is good news for those who adjusted status inside the United States (usually through form I-485), but those who entered on an Immigrant Visa from their embassies are not protected by the five year statue of limitations rule. Case below.

Cruz De Ortiz

Ricky Malik, Esq.

www.rmlegal.com

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November 17, 2011
  TPS applicants are not limited by evidence previously submitted, especially when renewing before the Immigration Judge
Posted By Ricky Malik

The Board of Immigraton Appeals in Matter of FIGUEROA determined that "When an application for Temporary Protected Status that has been denied by the United States Citizenship and Immigration Services (“USCIS”) is renewed in removal proceedings, the Immigration Judge may consider any material and relevant evidence, regardless of whether the evidence was previously considered in proceedings before the USCIS."

Figueroa TPS

Ricky Malik, Esq.

www.rmlegal.com

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November 16, 2011
  Renewal of 751Removal of Conditions before the Immigration Judge: New evidence allowed
Posted By Ricky Malik

An Immigraton Judge should consider new evidence submitted in support of a renewed I-751 with a waiver of the joint filing requirement regardless of whether the evidence was previously considered by DHS. Matter of Herrera Del Orden, 25 I&N Dec. 589 (BIA 2011).

Herrera Del Orden

Ricky Malik, Esq.

www.rmlegal.com

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November 15, 2011
  TPS adjustment no go in 11th Circuit
Posted By Ricky Malik

The Eleventh Circuit Court of Appeals dealt a blow to the argument that Temporary Protected Status (TPS) beneficiaries who entered initially without inspection can adjust status pursuant to INA 245(a). See decision below in Serrano vs. Attorney General.

Serrano TPS 11th Circ

Ricky Malik, Esq.

www.rmlegal.com

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November 14, 2011
  Asylum without Physical Harm
Posted By Ricky Malik

The Board of Immigration Appeals in Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007) held physical harm is not necessary. Threats or severe economic deprivation can rise to the level of persecution.

"(1) An abortion is forced by threats of harm when a reasonable person would objectively view the threats for refusing the abortion to be genuine, and the threatened harm, if carried out, would rise to the level of persecution.

(2) Nonphysical forms of harm, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life, may amount to persecution.

(3) When an Immigration Judge denies asylum solely in the exercise of discretion and then grants withholding of removal, 8 C.F.R. § 1208.16(e) (2006) requires the Immigration Judge to reconsider the denial of asylum to take into account factors relevant to family unification."

Matter of T-Z-

Ricky Malik, Esq.

www.rmlegal.com

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November 12, 2011
  Waivers: The 212(h)
Posted By Ricky Malik

Ricky Malik, Esq.

www.rmlegal.com

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November 11, 2011
  Video Blog: U Visas
Posted By Ricky Malik

Ricky Malik, Esq.

www.rmlegal.com

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October 01, 2011
  Attorney Ricky Malik and client featured on Front Page of Washington Post
Posted By Ricky Malik

On Monday, September 26, 2011, the Washington Post published a story about Paula Godoy, a client of the Law Offices of Ricky Malik, P.C. Ms. Godoy was in her final hours before deportation and at the 11th hour, through hard work, we won a stay of removal. For the full story, wonderfully written by Post report Eli Saslow, see below.

Ricky Malik, Esq.

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August 30, 2011
  New Change in Immigration Policy (Prosecutorial Discretion Memos)
Posted By Ricky Malik

The Immigration world has been abuzz in recent weeks following releases from the White House and DHS. There has been a lot of "stuff" put out there and we want to help you get to the truth, using facts. To do so we need to understand the lead up.

On June 17, 2011, two memos were released by ICE chief, John Morton, (both embedded below), now known as the "Morton Memos":

  • Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, U.S. Immigration and Customs Enforcement.

prosecutorial-discretion-memo -

  • Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, U.S. Immigration and Customs Enforcement

On August 18, 2001, Department of Homeland Security Secretary, Janet Napolitano announced the process of implementing the Prosecutorial Discretion (PD) memos in a letter to 22 Senators. Secretary Napolitano announced the creation of a special task force to review on a case by case basis the 300,000 plus people who are currently in removal (deportation) proceedings in order to determine if those who are prioritized to be deported are indeed going to be removed. It is clear from the later paragraphs of the letter (below) that this is not an amnesty nor a comprehensive legalization program (So please beware of scams from notaries and lawyers alike).

That same day, the White House blogged stating the administration will not be "focusing our resources on deporting people who are low priorities for deportation. This includes individuals such as young people who were brought to this country as small children, and who know no other home. It also includes individuals such as military veterans and the spouses of active-duty military personnel...applying common sense guidelines to make these decisions, like a person’s ties and contributions to the community, their family relationships and military service record."

Immigration Update Maximizing Public Safety and Better Focusing Resources The White House

We welcome ICE prioritizing removals rather than the deport 'em all policy we have seen in recent years. Only time will tell if this is political hot air or a meaningful change in policy enforcement.

Ricky Malik, Esq.

www.rmlegal.com

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August 29, 2011
  Important Cases for Continuances in Immigration Court
Posted By Ricky Malik

Cases to consider when seeking a continuance:

Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009)

(1) An alien's unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status. Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.

(2) In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security's response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.

Hashmi

Matter of Rajah, 25 I&N Dec. 127 (BIA 2009)

  1. In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an Immigration Judge should determine the alien's place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations.
  2. An alien's unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.
  3. The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.
Rajah
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May 15, 2011
  BIA allows admission of evidence outside of the record of conviction ONLY only where the conviction record itself does not conclusively demonstrate whether the alien was convicted of engaging in conduct that constitutes a crime involving moral turpitude.
Posted By Ricky Malik

Could it be made any more expensive.  So now if the entire record of conviction is not enough to prove its a Crime Involving Moral Turpitude (CIMT), the Government can go get whatever else they can find to make it a CIMT, even though a competent criminal judge convicted the person of a crime that is NOT a CIMT.  Matter of AHORTALEJO-GUZMAN, 25 I&N Dec. 465 (BIA 2011).

Ricky Malik, Esq.

Law Offices of Ricky Malik, P.C.

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May 14, 2011
  Attorney General vacates BIA and provides initial signs of relief for same sex couples
Posted By Ricky Malik

In a single page decision, the Attorney General of the United States in Matter of Dorman, 25 I&N Dec. 485 (A.G. 2011) remands a case for the Board to consider his questions, amongst which, "whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act. 

Ricky Malik, Esq.

www.facebook.com/rmlegal

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May 12, 2011
  Immigration Case addressing the competency of someone who is before an Immigration Judge
Posted By Ricky Malik

Matter of M-A-M

Ricky Malik, Esq.

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May 09, 2011
  Washington State reduces maximum possible misdemeanor jail sentence by one day to 364 days. Hoorah!! If only all States would do the same...
Posted By Ricky Malik

I can't tell you how many times I've met immigrants who received 12 months, all suspended (meaning the Criminal Judge wanted no jail time), who then face deportation because they have a one year sentence. 

Even prosecutors and Judges will later admit to not wanting the person deported when the sentence was handed down.

The change in the State of Washington will prevent unintended consequences such as deportation for many immigrants (legal and illegal) who don't deserve to be deported.

Ricky Malik, Esq.

www.rmlegal.com

Continue reading "Washington State reduces maximum possible misdemeanor jail sentence by one day to 364 days. Hoorah!! If only all States would do the same..." »

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May 07, 2011
  Final Memo released on coordination between Immigration agencies for people who are fighting their case in Immigration Court
Posted By Ricky Malik

United States Citizenship & Immigration Services released final memo guidance for coordination with U.S. Immigration and Customs Enforcement (ICE) on the adjudication of applications and petitions involving individuals in removal proceedings before the Executive Office of Immigration Review (EOIR).

Ricky Malik, Esq.

www.rmlegal.com

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May 06, 2011
  Bad News for those of us who represent or try to reopen cases of kids who enter the United States scared and bewildered. Fourteen (14) years old is old enough!
Posted By Ricky Malik

The Board of Immigration Appeals in a recent decision determined that a child of 14 who probably can't read, write or speak English is old enough to accept and comply with confusing legal documents issued by very friendly border agents. The BIA held that "Personal service of a Notice to Appear (Form I-862) on a minor who is 14 years of age or older at the time of service is effective, and the regulations do not require that notice also be served on an adult with responsibility for the minor."

Motions to Reopen just got harder.

Matter of Cubor

Ricky Malik, Esq.

www.rmlegal.com

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March 07, 2011
  Waiting for a Priority Date but in Removal Proceedings? Hashmi not
Posted By Ricky Malik

Many people are placed in removal proceedings but are waiting for adjudication of a petition or an adjudication from United States Citizenship and Immigration Services (USCIS) or simply for a family or employment based priority date to become current.  At times Immigration Judges become impatient and order people removed or goad them into taking voluntary departure.

Remember the Board of Immigration Appeals (BIA) has addressed this issue on more than a few occasions.  In Matter of Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009), the Board stated an Immigration Judge (IJ) should consider when a continuance is requested in Immigration Court proceedings (deportation court):

(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. 

Ricky Malik, Esq.

Immigration Attorney

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March 07, 2011
  "Beyond a reasonable doubt" standard applies for a crime to be an Immigration Conviction
Posted By Ricky Malik

The Board of Immigration Appeals (BIA) stated in Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004) "It is a bedrock principle of the Constitution of the United States that each element of an offense or crime must be proved beyond a reasonable doubt.  E.g., Apprendi v. New Jersey, 530 U.S. 466 (2000); In re Winship, 397 U.S. 358 (1970). It is beyond debate, therefore, that the respondent, who was found “guilty” under the lesser standard of a preponderance of the evidence, was not found guilty of his “violation” in a true criminal proceeding”

Headnote: An alien found guilty of a “violation” under Oregon law in a proceeding conducted pursuant to section 153.076 of the Oregon Revised Statutes does not have a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).

Ricky Malik, Esq.

Law Offices of Ricky Malik, P.C.

Continue reading ""Beyond a reasonable doubt" standard applies for a crime to be an Immigration Conviction" »

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March 02, 2011
  BIA addresses intentional conduct CIMTand adherence to Silva Trevino
Posted By Ricky Malik

The Board of Immigration Appeals (BIA) in Matter of GUEVARA ALFARO, 25 I&N Dec. 417 (BIA 2011) held:

(1) Any intentional sexual conduct by an adult with a child involves moral turpitude,
as long as the perpetrator knew or should have known that the victim was under the
age of 16. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), followed.
Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007), not followed.

(2) Absent otherwise controlling authority, Immigration Judges and the Board
of Immigration Appeals are bound to apply all three steps of the procedural framework
set forth by the Attorney General in Matter of Silva-Trevino for determining whether
a particular offense constitutes a crime involving moral turpitude.

Ricky Malik, Esq.

www.rmlegal.com

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March 01, 2011
  USCIS Memo on Deciding Petitions and Applications when Foreign National in Removal Proceedings
Posted By Ricky Malik

United States Citizenship & Immigration Services (USCIS) issued an interim memo (in effect now) to address scenarios when a foreign national is in removal (deportation ) proceedings before the Immigration Courts (part of the Department of Justice's Executive Office for Immigration Review) but an application for a benefit is pending before USCIS (part of the Department of Homeland Security).

Those Immigration Court litigators such as myself, know all too well the frustration of waiting months, if not years for USCIS to decide on an I-130, I-140 or other application.

Now USCIS is committed to 30 to 45 days time frames for adjudications.  Thirty days for detained cases, 45 days for non-detained.

Ricky Malik, Esq.

Attorney at Law

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February 28, 2011
  The Office of Immigration Litigation's "Immigration Litigation Bulletin"
Posted By Ricky Malik

It sounds like a mouthful.  One of the divisions of the U.S. Government that represents the U.S. Department of Homeland Security before the Federal Courts (mainly the various Courts of Appeal) is the Office of Immigration Litigation (OIL).  Periodically, OIL publishes their Immigration Litigation Bulletin which was previously unavailable to the public until the Freedom of Information Act (FOIA) was applied to that division.

To view past Immigration Litigation Bulletins, click here.

Ricky Malik, Esq.

www.rmlegal.com

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February 24, 2011
  BIA on stop-time remedy of departing and returning to the U.S
Posted By Ricky Malik

The Board of Immigration Appeals held in Matter of Nelson 25 I&N Dec. 410 (BIA 2011): "Once an alien has been convicted of an offense that stops the accrual of the 7-year period of continuous residence required for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006), section 240A(d)(1) of the Act does not permit such residence to restart simply because the alien has departed from, and returned to, the United States."

Ricky Malik

Immigration Attorney

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February 22, 2011
  Huge 4th Circuit Victory on Gang based persecution based on family as particular social group
Posted By Ricky Malik

In a refreshing decision, the Fourth Circuit Court of Appeals remanded an MS-13 El Salvador gang case back to the Board of Immigration Appeals after determining that the respondent did fit within a particular social group for his kinship (family) ties to his uncle who testified against the criminal gang MS-13.  Both the uncle and the respondent received threats in El Salvador before fleeing to the United States seeking protection.

Ricky Malik, Esq.

Immigration Attorney

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February 21, 2011
  BIA overrules Shanu to clarify concept of "admission"
Posted By Ricky Malik

Headnote: "In general, an alien's conviction for a crime involving moral turpitude triggers removability under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006), only if the alien committed the crime within 5 years after the date of the admission by virtue of which he or she was then present in the United States. Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), overruled in part."  Matter of ALYAZJI , 25 I&N Dec. 397 (BIA 2011).

In trying to guide us on what constitutes an admission, the Board of Immigration Appeals in its decision stated:

"Specifically, we now hold that the statutory phrase "the date of admission" necessarily refers to a single date in relation to the pertinent offense; thus, not every "date of admission" triggers the 5-year clock."

"The phrase "the date of admission" refers to the date of the admission by virtue of which the alien was present in the United States when he committed his crime.  Thus, to ascertain an alien's deportability under section 237(a)(2)(A)(i) of the Act, we look first to the date when his crime was committed. If, on that date, the alien was in the United States pursuant to an admission that occurred within the prior 5-year period, then he is deportable. Conversely, the alien is not deportable if he committed his offense more than 5 years after the date of the admission pursuant to which he was then in the United States. Moreover, under this understanding of the phrase "the date of admission," the 5-year clock is not reset by a new admission from within the United States (through adjustment of status).7 Rather, such a new admission merely extends an existing period of presence that was sufficient in and of itself to support the alien's susceptibility to the grounds of deportability."

Ricky Malik, Esq.

Immigration Lawyer

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February 07, 2011
  Fourth Circuit Court of Appeals Issues Published Decision on Social Group Based Asylum for Firm's Client
Posted By Ricky Malik

In a case argued and briefed by Attorney Ricky Malik, the U.S. Fourth Circuit Court of Appeals issued a published decision on January 19, 2011 denying the asylum, withholding and Convention against Torture (CAT) claims of one of our clients.  Our client was seeking asylum and related protection in the United States based on his fear of returning to El Salvador based on the fact he would be persecuted by ruthless gangs in El Salvador.  Gang violence in El Salvador is a major problem that has existed and increased in severity in recent years.  These multi-national gangs have been known to torture, maim, victimize and kill many people throughout the Central American region and Mexico. Some of the more infamous gangs are Mara Salvatrucha 13 (MS-13), M-18 and Los Zetas, to name a few. 

We were disappointed in the decision from the Fourth Circuit and understand this is a difficult issue for the Court because U.S. Asylum law only allows for a grant of Asylum or Withholding of removal IF a person can prove that the harm is motivated by the person's race, religion, nationality, political opinion, or membership in a particular social group.   Our client's claim was based upon his "membership in a particular social group," a group that is difficult to define and limited by years of caselaw.

Ricky Malik, Esq.

Law Offices of Ricky Malik, P.C.

Continue reading "Fourth Circuit Court of Appeals Issues Published Decision on Social Group Based Asylum for Firm's Client" »

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February 04, 2011
  Fourth Circuit analyzes an Immigration Conviction
Posted By Ricky Malik

The Fourth Circuit Court of Appeals analyzed whether a VA Code 18.2-251 dismissal qualifies as a conviction for Immigration purposes per INA 101(a)(48)(A) even though it was a deferred adjudication.  In Crespo v. Holder, the respondent did not plead guilty, and even though the judge found facts justifying a finding of guilty.  The court felt that Congress in writing the Immigration laws intended a judge's finding of guilt to be a far different scenario than a judge finding facts sufficient to find guilty.  As such, the Court determined that a Virginia 18.2-251 dismissal or a case in which as the plain reading of the statute suggests that there has not been a finding of guilt or an entering of a guilty plea, the foreign national subject to the grips of the Immigration and Nationality Act, has not been convicted of a crime.

Ricky Malik, Esq.

rmlegal.com

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February 03, 2011
  Asylum victory for Attorney Ricky Malik based on Domestic Violence
Posted By Ricky Malik

Attorney Ricky Malik argued and tried a case of a woman who was seeking asylum based on the severe abuse endured at the hands of her husband.


Ricky Malik, Esq.

Immigration Attorney

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January 10, 2011
  Board of Immigration Appeals issues TPS decision
Posted By Ricky Malik

The Board of Immigration Appeals held in Matter of Sosa Ventura, 25 I&N Dec. 391 (BIA 2010) that:

  1. A grant of Temporary Protected Status (“TPS”) waives certain grounds of inadmissibility or deportability solely for the limited purpose of permitting an alien to remain and work temporarily in the United States for the period of time that TPS is effective.
  2. It is not proper to terminate an alien’s removal proceedings based on a grant of TPS.

Ricky Malik, Esq.

Immigration Attorney

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January 07, 2011
  Motions to Reopen with the Immigration Court
Posted By Ricky Malik
Video Blog from Ricky Malik, Attorney at Law:
Continue reading "Motions to Reopen with the Immigration Court" »

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January 06, 2011
  Attorney Ricky Malik on when someone is detained
Posted By Ricky Malik
Continue reading "Attorney Ricky Malik on when someone is detained" »

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December 20, 2010
  U Visa Toolkit to assist law enforcement
Posted By Ricky Malik
Law_20Enforcement_20ToolKit_20U-Visa
Continue reading "U Visa Toolkit to assist law enforcement" »

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December 01, 2010
  AAO on Burden of Proof
Posted By Ricky Malik

The Administrative Appeals Office published a postive case that addressed burden of proof. Hopefully, USCIS adjudicators will use this case as their guide when deciding cases.  In Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) it was held that:

"In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.

Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is "more likely than not" or "probably" true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r  1989), followed.

If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition."

Ricky Malik, Esq.

Twitter: rmlegal

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November 25, 2010
  BIA: Placing a child in the way of a threat is deportable offense
Posted By Ricky Malik

The Board of Immigration Appeals in Matter of Dency Epen SORAM, 25 I&N Dec. 378 (BIA 2010) held that  "The crime of unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health in violation of section 18-6-401(1)(a) of the Colorado Revised Statutes is categorically a crime of child abuse under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), even though no proof of actual harm or injury to the child is required. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), clarified."

Ricky Malik, Esq.

Continue reading "BIA: Placing a child in the way of a threat is deportable offense" »

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November 17, 2010
  TRAC finds Immigration Courts taking longer to decide cases, mired in backlogs
Posted By Ricky Malik

http://trac.syr.edu/immigration/reports/244/

Ricky Malik, Esq.

www.rmlegal.com

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November 14, 2010
  DHS Immigration Prosecutor gets scolded by BIA!
Posted By Ricky Malik

In an unpublished decision, the Board of Immigration Appeals scolded the Department of Homeland Security's Office of the Chief Counsel for its behavior towards an Immigration Judge. 

The BIA stated " Our review of the record reveals that the DHS attorney exhibited intemperate, disrespectful, and unprofessional behavior towards the Immigration Judge. Such behavior is unbecoming of DHS counsel."

Ricky Malik, Esq.

www.rmlegal.com

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November 07, 2010
  Court of Appeals states Wikipedia is not reliable source
Posted By Ricky Malik

The Court of Appeals for the Fifth Circuit in an unpublished decision, agreed with the 8th Circuit and BIA, deeming Wikipedia an unreliable source.

Ricky Malik, Esq.

www.rmlegal.com

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November 05, 2010
  BIA: Bribery of a Public Official is not an Aggravated Felony
Posted By Ricky Malik
The Board of Immigration Appeals in Matter of Greunangerl

25 I&N Dec. 351 (BIA 2010) held  "The crime of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) (2006) is not an offense “relating to” commercial bribery and is therefore not an aggravated felony under section 101(a)(43)(R) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(R) (2006)."

Ricky Malik, Esq.

Continue reading "BIA: Bribery of a Public Official is not an Aggravated Felony" »

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November 04, 2010
  Immigration uses Facebook and social networking sites to detect immigration fraud
Posted By Ricky Malik
In a leaked memo entitled "Social Networking Sites and Their Importance to FDNS", Immigration's Office of Fraud Detection and National Security (FDNS) stated that:  "Narcissistic tendencies in many people fuels a need to have a large group of"friends" link to their pages and many of these people accept cyber-friends that they don't even know. This provides an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities. Generally, people on these sites speak honestly in their network because all of their friends and family are interacting with them via lM's (Instant Messages), Blogs (Weblog journals), etc. This social networking gives FDNS an opportunity to reveal fraud by browsing these sites to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive CIS about their relationship."

Ricky Malik, Esq.

www.rmlegal.com

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October 31, 2010
  Attorney Ricky Malik argues before the U.S. Court of Appeals for the Fourth Circuit
Posted By Ricky Malik

On Tuesday, October 26, 2010 Senior Attorney and Litigator Ricky Malik presented arguments on behalf of a client before the Fourth Circuit Court of Appeals sitting in Richmond, Virginia.

The case involved a review of a denial of an asylum, witholding and Convention Against Torture (CAT) claim from the Board of Immigration Appeals.  The client had a genuine fear of returning to his home in Central America from the powerful Mara gangs that inflict violence, torture and death on so many deportees from the United States. 

Ricky Malik, Esq.

www.rmlegal.com

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October 15, 2010
  4th Circuit: False claim to U.S. Citizenship on I-9 is material misrepresentation
Posted By Ricky Malik

The Fourth Circuit, in an appeal of a criminal case, upheld a conviction for false claim of citizenship on an I-9 Form.  An I-9 is the form anyone seeking employment in the United States, and their employers, must complete in order to work.  In this case a former TPS holder's misrepresentation as a U.S. Citizen on the I-9 was deemed material.  US v. Garcia-Ochoa, 607 F. 3d 371:

See also the Board of Immigration Appeals Decision in Matter of Olga BARCENAS-BARRERA, Cite as 25 I&N Dec. 40 (BIA 2009) holding that An alien who willfully and knowingly makes a false representation of birth in the United States on a passport application is inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006), for making a false representation of United States citizenship.

Ricky Malik, Esq.

Continue reading "4th Circuit: False claim to U.S. Citizenship on I-9 is material misrepresentation" »

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October 14, 2010
  5th Circuit: An immigrant can legally work but may still not be legal???
Posted By Ricky Malik

In a confusing decision, the 5th Circuit Court of Appeals held that the automatic 240-day extension of employment authorization that accompanies an extension of nonimmigrant status under does not provide lawful immigration status for purposes of INA §§245(c)(2) and 245(k)(2)(A).

This is a very confusing issue, and one that our firm also runs into a lot with Temporary Protected Status (TPS) applicants as well as those with long term pending asylum applications who receive interim work permits.  It seems USCIS contends that illegals are allowed to work? If you are allowed to work, how can you be illegal? The 5th Circuit has found the logic to answer this oxymoronic question in Bokhari vs. Holder.

Ricky Malik, Esq.

Continue reading "5th Circuit: An immigrant can legally work but may still not be legal???" »

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October 13, 2010
  Immigration Court's Monthly focuses negatively on Gang Asylum cases
Posted By Ricky Malik

The June 2010 Immigration Law Advisor (a publication by the Immigration Court System) focused heavily on gang based asylum cases.  The publication, whose target audience is Immigration Judges across the U.S., tries to convince the reader of the non-availability of a social group in gang related asylum cases.   It does however end with the belief that there is nonetheless an opening for such cases, lest we would have automatic denials of all cases.

"As explained above, Matter of S-E-G- and Matter of E-A-G- likely foreclose many asylum claims based on purported particular social groups related to gangs. The circuit courts have generally accorded deference to these decisions. Yet, as Benitez Ramos v. Holder and Urbina-Mejia v. Holder both illustrate, not all gang-related asylum claims based on membership in a particular social group will necessarily fail."

Ricky Malik, Esq.

greencard@mail.com

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October 12, 2010
  Stipulated Orders of Removal (Deportation)
Posted By Ricky Malik

There are unfortunately times (usually when an immigrant is detained due to an unfair immigration detention system) that the non-citizen no longer wants to continue to fight against the U.S. Government to stay in the United States.  The immigrant is forced to give up.  In that situation, a stipulated order of removal is required.  The Office of the Chief Immigration Judge released guidance on the issuance and understanding needed for a stipulated order.

Interesting to note is the Office of Chief Immigration Judges Memos (Click here).

Ricky Malik, Esq.

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October 11, 2010
  Order of Supervision: When ICE releases immigrants from detention
Posted By Ricky Malik

A memorandum on ICE guidance when they release foreign nationals on an Order of Supervision or Release on Recognizance. Specifically, how often you should be asked to report.

Ricky Malik, Esq.

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October 08, 2010
  Immigration Courts back off changes to 800 number
Posted By Ricky Malik

Thankfully, the Immigration Courts (also known as the Executive Office for Immigration Review or EOIR) scaled back their proposed changes to the Court 800 information number.

This may have been a bigger deal to immigration lawyers and advocates than to anyone else, but I'm sure any immigration practitioner will tell you how often they can determine what is happening with an immigrants case, including if they have ever been deported (removed) by having reasonable access to the EOIR system via 800-898-7180.

A pat on the back to the EOIR for making a commonsense decision.

Ricky Malik, Esq.

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October 07, 2010
  BIA: Asylum applicants need to have one central reason for their fear
Posted By Ricky Malik

The Board of Immigration Appeals (BIA) held in Matter of C-T-L, 25 I&N Dec. 341 (BIA 2010):

The “one central reason” standard that applies to asylum applications pursuant to section 208(b)(1)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2006), also applies to applications for withholding of removal under section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2006).

The "mixed-motive" concept still lives on despite this holding requiring one central reason.

Ricky Malik, Esq.

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October 05, 2010
  3rd & 4th Circuit Courts on Temporary Protected Status (TPS)
Posted By Ricky Malik

Recently the 3rd Circuit and previously the 4th Circuit Court of Appeals have issued precedential decisions pertaining to Temporary Protected Status (TPS).  Both decisions were limiting interpretations of the TPS regulations, thereby reducing the number of foreign national who are eligible for TPS.

The Fourth Circuit Court of Appeals which presides over Virginia, West Virginia, North Carolina, South Carolina found in Cervantes v. Holder, 597 F.3d 229 (4th Cir. 2010) that Petitioners, who were minor children, were ineligible for TPS because they could not satisfy the eligibility requirements of 8 U.S.C. § 1254a(c)(1)(A).  The Court felt the petitioners could not satisfy the "continuous physical presence" requirement for TPS, and further nor could they prove their "continuous residence" since the TPS designation date.  The Court rejected the notion that applicants only need prove such presence and residence since the "most recent designation" of TPS (which is renewed approximately every 12 to 18 months), and further rejected that the parents' residence is "imputed" on the children.  The theory of "imputation" or "derivative residence," though supported throughout in immigration laws, was rejected by the Fourth Circuit which distinguished between the concept of "domicile" with that of "residence."  The Court found that actual physical residence was actually required and could not be imputed to the child from parent.  Decision below:

Similarly, the Third Circuit Court of Appeals which presides over New Jersey, Pennsylvania and Delaware found that the “continuous residence” requirement cannot be met via imputation from parent to child and that the statutory term “most recent designation” applies to the original designation of a state for TPS and not to subsequent extensions. Petitioners need to personally satisfy the “continuous residence” and “continuous physical presence” requirements for statutory eligibility for TPS.

Ricky Malik, Esq.

greencard@mail.com

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October 02, 2010
  Arlington, VA opts out of Secure Communities immigration enforcement program!!
Posted By Ricky Malik

"Arlington became one of the first communities in the country to reject a national immigration enforcement program today when the County Board voted 5-0 against the county's participation in that program."

Hooray for Arlington, VA.  Standing up against anti-immigrant fervor.

Full Story, click here.

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October 01, 2010
  Need a pardon in New York to stop a deportation?
Posted By Ricky Malik

Click Here.

Most states have a set procedure.  You have to communicate with the governor's office.

Ricky Malik, Esq.

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September 28, 2010
  BIA: A CIMT that qualifies for the petty offense exception does not trigger stop-time rule
Posted By Ricky Malik

In Matter of  Matter of Garcia, 25 I&N Dec. 332 (2010), the BIA held that "A conviction for a single crime involving moral turpitude that qualifies as a petty offense is not for an “offense referred to in section 212(a)(2)” of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2) (2006), for purposes of triggering the “stop-time” rule in section 240A(d)(1) of the Act, 8 U.S.C. § 1229b(d)(1) (2006), even if it renders the alien removable under section 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006)."

Ricky Malik, Esq.

Continue reading "BIA: A CIMT that qualifies for the petty offense exception does not trigger stop-time rule" »

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September 20, 2010
  Removing that Ankle Bracelet
Posted By Ricky Malik

The Board of Immigration Appeals (BIA) in Matter of Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009) held that an Immigration Judge can review and consider whether to modify the conditions of release imposed upon a  foreign national by DHS ICE.

This means that if Immigration and Customs Enforcement gives a foreign national the option of paying a bond to be released and/or putting on an ankle bracelet, known as the Intensive Supervision Appearance Program (ISAP), an Immigration Judge can review ICE's decision and reduce the bond or even take off the bracelet.

However, when a foreign national is released, s/he must file a motion to ameliorate within 7 days from the release from custody.

Ricky Malik, Esq.

Continue reading "Removing that Ankle Bracelet" »

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September 19, 2010
  Office of Immigration Litigation publishes Immigration Consequences of Criminal Convictions
Posted By Ricky Malik

Office of Immigration Litigation publishes Immigration Consequences of Criminal Convictions in response to Supreme Court decision in Padilla vs. Kentucky.

I disagree with some of their analysis on exceptions and waivers including the one for drug possession crimes and crimes of violence aggravated felonies, to name a few.  Nonetheless, it is very instructive for the non-immigration litigator.

"In view of the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Office of Immigration Litigation ("OIL") has prepared a comprehensive overview of the provisions of the Immigration and Nationality Act that are relevant to criminal aliens. The overview is intended to assist interested parties in understanding the potential immigration consequences of a plea to criminal charges. Padilla held that the Sixth Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arising from a guilty plea. The Court concluded that defense counsel's failure to so advise, or defense counsel's misadvice regarding the immigration consequences of the plea, may constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), which may be a basis for withdrawing a guilty plea and vacating a conviction.

The Court's holding in Padilla requires defense counsel to have a basic understanding of immigration law - an area in which they "may not be well versed" - in order to effectively advise their clients. Padilla, 130 S. Ct. at 1483. The decision is also of obvious importance, however, to federal and state prosecutors and judges, among other interested parties. This guide - to which many OIL attorneys have contributed - presents a brief, cogent, and clear introduction that identifies and summarizes the relevant statutes."

Ricky Malik, Esq.

Attorney At Law

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September 18, 2010
  BIA: Single Act of Soliciting Prostitution is not removable offense under INA 212(a)(2)(D)(ii)
Posted By Ricky Malik

The BIA addressed convictions for solicitating a prostitute in Matter of GONZALEZ-ZOQUIAPAN , 24 I&N Dec. 549 (BIA 2008) and found that:

  1. A single act of soliciting prostitution on one's own behalf does not fall within section 212(a)(2)(D)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(D)(ii) (2006), which provides for the inadmissibility of an alien who "procured . . . prostitutes or persons for the purpose of prostitution."
  2. The respondent's conviction for disorderly conduct relating to prostitution in violation of section 647(b) of the California Penal Code does not render him inadmissible under section 212(a)(2)(D)(ii) of the Act.

This BIA reached a positive conclusion by taking a common sense, plain english reading of the statute. Part of their analysis and full decision below:

"The language of section 212(a)(2)(D)(ii), on its face, relates only to persons who "procure" others for the purpose of prostitution or who receive the proceeds of prostitution. The dictionary meaning of the word "procure" is generally to obtain or acquire, but as applied to prostitution, it has a specific meaning, i.e., "[t]o obtain [a prostitute] for another." Webster's II New College Dictionary 882 (2001); see also Matter of R-M-, 7 I&N Dec. 392 (BIA 1957) (finding the respondent inadmissible under the predecessor statute to section 212(a)(2)(D)(ii) for soliciting men for the purpose of sexual intercourse with prostitutes). We agree with the respondent that under the most reasonable interpretation of the statute, the term "procure" does not extend to an act of solicitation of a prostitute on one's own behalf. If Congress had intended to include "solicitation" of prostitution as a ground of inadmissibility, it could easily have employed that term, as it has done in other provisions of the Act. See, e.g., sections 212(a)(3)(B)(iv)(IV), (V) of the Act."

Ricky Malik, Esq.

Greencard@mail.com    

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September 14, 2010
  BIA:Simulated Controlled Substances are deportable controlled substance violations
Posted By Ricky Malik

The Board of Immigration Appeals in Matter of Fidel Antonio SANCHEZ-CORNEJO, 25 I&N Dec. 273 (BIA 2010) held that "The offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994)."

Ricky Malik, Esq.

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September 13, 2010
  BIA on reason to believe drug trafficking
Posted By Ricky Malik

In Matter of CASILLAS-TOPETE, 25 I&N Dec. 317 (BIA 2010) the Board of Immigration appeals held that " An alien is removable under section 237(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as one who was inadmissible at the time of entry or adjustment of status pursuant to section 212(a)(2)(C) of the Act, 8 U.S.C. § 1182(a)(2)(C) (2006), where an appropriate immigration official knows or has reason to believe that the alien is a trafficker in controlled substances at the time of admission to the United States. Matter of Rocha, 20 I&N Dec. 944 (BIA 1995), modified.

Click here for decision.

Ricky Malik, Esq.

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September 12, 2010
  Leaked Memo: Administrative Alternatives to Comprehensive Immigration Reform
Posted By Ricky Malik

A memo circulated entitled Administrative Alternatives to Comprehensive Immigration Reform.  It is not yet official and it is unclear how it was leaked but it is indicative of the direction of some within ICE/USCIS.  This memo along with the recent John Morton memo brings some hope that ICE and USCIS will consider taking fair and just action.  However, there seems to be different factions and ideologies within DHS about the direction of the agency: Deport everyone vs. Justice & Fairness.

Ricky Malik, Esq.

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September 10, 2010
  ICE Boss Morton: Terminate Proceedings if Immigrant can obtain status
Posted By Ricky Malik
The John Morton Memo of August 20, 2010 on terminating removal proceedings for aliens with pending or approved applications or petitions.

A welcome directive from ICE Assistant Secretary John Morton.



Ricky Malik, Esq.
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September 09, 2010
  USCIS Memorandum updating uniform denial language pertaining to BIA appeals
Posted By Ricky Malik
Now that USCIS has the uniform denial language, we look forward to the uniform approval language memorandum which hopefully will be forthcoming.


Ricky Malik, Esq.
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September 08, 2010
  BIA limits 245(i) Grandfathering: Matter of Legaspi
Posted By Ricky Malik
"An alien is not independently “grandfathered” for purposes of adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i) (2006), simply by virtue of marriage to another alien who is “grandfathered” under section 245(i) as the
result of having been a derivative beneficiary of a visa petition."  Matter of Legapsi 25 I&N Dec. 328 (BIA 2010)

Ricky Malik, Esq.
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September 06, 2010
  TRAC: Asylum Denial Rate Drops to Twenty-Five Year Low
Posted By Ricky Malik
The Transactional Records Access Clearinghouse found that the Denial Rate by Immigration Judges have dropped to a 25 year low.

A large part for this according to TRAC:  "[T]he total number of asylum requests has been falling, that a higher proportion of asylum seekers are now represented by counsel[.]"
To read the report click here.

Ricky Malik, Esq.
www.rmlegal.com
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September 05, 2010
  ICE "Setting the Record Straight" Claiming Transparency
Posted By Ricky Malik
ICE released a defensive statement in support of its Secure Communities program in response to alleged "false claims" made by several immigration organizations and advocates.  ICE claims transparency and accountability which may be a suprise to many.


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September 02, 2010
  "I foreclosed on my house" or "I filed for bankruptcy!" Will that affect me from obtaining a Greencard or U.S. Citizenship?
Posted By Ricky Malik
In this difficult economy, a question I am often asked is if bankruptcy or foreclosing on a home will lead to problems with Immigration.  I simply reply "Immediate Deportation. The U.S. will not allow fiscally irresponsible people to remain in the country."  Then I smile and say "Just kidding."

No, it won't. In terms of obtaining lawful permanent residency (Greencard), there are only affidavit of support requirement in certain situations.  For Naturalization, the inquiry is generally limited to owing any Federal, State or local taxes. 

Ricky Malik, Esq.
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August 29, 2010
  Latest John Morton ICE Memo on Noncitizens with petitions pendings while in Immigration Court
Posted By Ricky Malik
ICE boss John Morton issues his latest memo on how the cases of  foreign nationals in Immigration Court should be treated when the non-citizen has a petition pending before USCIS.  He indicates, the court cases should be terminated if an immediate beneift is available and no other concerning issues are present.



Ricky Malik
Attorney at Law
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August 28, 2010
  BIA on Frivolous Asylum Claims
Posted By Ricky Malik
Matter of X-M-C-, Interim Decision #3693, 25 I&N Dec. 322 (BIA 2010)

(1) A determination that an alien has filed a frivolous application for asylum, pursuant to section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2006), can be made in the absence of a final decision on the merits of the asylum application.

(2) Withdrawal of an alien’s asylum application after the required warnings and safeguards have been provided does not preclude a finding that the application is frivolous.

Ricky Malik
Attorney at Law
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August 27, 2010
  BIA: Petty Offense CIMT does not render one ineglibile for Cancellation of Removal
Posted By Ricky Malik

Matter of Pedroza, Interim Decision #3691, 25 I&N Dec. 312 (BIA 2010)

An alien's conviction for a crime involving moral turpitude does not render him ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), if his crime is punishable by imprisonment for a period of less than a year and qualifies for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), followed.

Ricky Malik
Attorney at Law
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August 26, 2010
  BIA: Crime Involving Moral Turpitude and Cancellation to Fremoval for a Non-LPR: Interaction with the Petty Offense Exception
Posted By Ricky Malik

Matter of Cortez Canales, Interim Decision #3690, 25 I&N Dec. 301 (BIA 2010)

(1) An alien who has been convicted of a crime involving moral turpitude for which a sentence of a year or longer may be imposed has been convicted of an offense "described under" section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), regardless of the alien's eligibility for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Almanza, 24 I&N Dec. 771 (BIA 2009), clarified. Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007); and Matter of Garcia-Hernandez,

23 I&N Dec. 590 (BIA 2003), explained.

(2) In determining which offenses are "described under" sections 212(a)(2), 237(a)(2), and 237(a)(3) of the Act for purposes of section 240A(b)(1)(C) of the Act, only language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed, should be considered.

(3) The respondent's misdemeanor conviction for welfare fraud in violation of section 10980(c)(2) of the California Welfare and Institutions Code rendered her ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, because it was for a crime involving moral turpitude for which she could have been sentenced to a year in county jail and was therefore for an offense "described under" section 237(a)(2) of the Act.

Continue reading "BIA: Crime Involving Moral Turpitude and Cancellation to Fremoval for a Non-LPR: Interaction with the Petty Offense Exception" »

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August 25, 2010
  BIA: When do Immigration Court Proceedings Commence? Matter of Casillas-Topete
Posted By Ricky Malik

Matter of Casillas-Topete, Interim Decision #3692, 25 I&N Dec. 317 ( BIA 2010)

In order to commence proceedings against an alien for purposes of sections 204(g) and 245(e)(2) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and 1255(e)(2) (1994), an Order to Show Cause and Notice of Hearing (Form I-221) that was issued on or after June 20, 1991, must be filed with the Immigration Court. Matter of Fuentes, 20 I&N Dec. 227 (BIA 1991), superseded.


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August 21, 2010
  EOIR Immigration Court messes with 800# in the name of security and improvement
Posted By Ricky
Transparency will decrease as the Executive Office for Immigration Review makes it more difficult to determine hearing dates.  The new system requires us to determine dates of issuance of charging document in order to use the oft relied on EOIR 800#.   For any attorney who has practiced regularly in the Immigration Courts, especially like me who have handled a large number of detained cases, determining the date of issuance of the charging document will be quite a challenge.  This new system relies and believes ICE properly serves and issued such documents to its recipients and respondents' attorneys.  I have to admit, I sighed disappointingly when I read about this change.  I guess things must get worse before they get better.
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August 19, 2010
  BIA Backs down from Mandatory Detention: Matter of Garcia Arreola
Posted By Ricky Malik

One of the most brutal and punishingly tools in immigration's arsenal is being able to detain foreign nationals and specifically deeming them as Mandatory Detainees.  After years of adverse decisions, there is some relief in light of repeated Circuit Courts rejecting the Board of Immigration Appeals' (BIA) draconian interpretations.

On June 23, 2010, the BIA held in the Matter of Garcia Arreola, 25 I&N Dec. 267 (BIA 2010) that " Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c) (2006), requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody after the expiration of the Transition Period Custody Rules ("TPCR") and only where there has been a post-TPCR release that is directly tied to the basis for detention under sections 236(c)(1)(A)-(D) of the Act. Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), overruled; Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), modified."

What was notable is that even the Department of Homeland Security "asks that [the BIA] adopt this more narrow reading of the statutory language."

The BIA was clear: 

"Further, we modify our decision in the Matter of Adeniji and now hold that section 236(c) of the Act requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody after the expiration of the TPCR and only where there has been a post-TPCR release that is directly tied to the basis for detention under sections 236(c)(1)(A)-(D) of the Act. "

"Accordingly, we now hold that mandatory detention under section 236(c) of the Act is addressed to the situation of an alien who is released from custody for one of the offenses enumerated in the Act. That is, a post-TPCR "release" from non-DHS custody must be directly tied to the basis for detention under sections 236(c)(1)(A)-(D) of the Act in order to implicate the mandatory detention provision of section 236(c)."


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August 09, 2010
  Virginia Attorney General Issues Disturbing Opinion claiming VA police can act like Arizona counterparts
Posted By Ricky
The Virginia Attorney General issued the following:

" It is my opinion that Virginia law enforcement officers, including conservation officers, may, like Arizona police officers, inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States."
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August 08, 2010
  ICE Online Detainee Locator System
Posted By Ricky
Latest Release about ICE's system to find people detained and held by Immigration and Customs Enforcement (ICE). In English & Spanish













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July 30, 2010
  4th Circuit Court of Appeals holds 245(i) does not waive 212(a)(9)(C)(i)(I)'s reentry after unlawfully present for 1 year bar
Posted By Ricky
The Fourth Circuit Court of Appeals joined the Second and Sixth Circuit to affirm the Board of Immigration Appeals' decision in Matter of Briones, 24 I&N Dec. 355 (BIA 2007).  The Fourth Circuit determined that an applicant who seeks to adjust status under INA 245(i) (8 USC 1255(i)) does not automatically over come INA 212(a)(9)(C)(i)(I)'s bar.  INA 212(a)(9)(C)(i)(I) deems a foreign national inadmissible if s/he entered the United States unlawfully after accruing more than a year of prior unlawful presence.  Full Decision:


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July 30, 2010
  BIA on Sentence "actually imposed": suspended execution of sentence vs imposition of sentence suspended
Posted By Ricky
All too often any criminal sentence imposed is considered the actual punishment in the Immigration context.  The Board of Immigration Appeals addressed this issue 15 years ago in Matter of Esposito, 21 I&N Dec. 1 (BIA 1995).

"For purposes of section 212(a)(10) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(10) (1988), and its successor provision at section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (Supp. V 1993), a sentence is "actually imposed" where a criminal court suspends the execution of a sentence, but no sentence is "actually imposed" where the imposition of sentence is suspended. Matter of Castro, 19 I&N Dec. 692 (1988), followed."


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July 29, 2010
  Supreme Court addresses Coram Nobis & All Writs Act (Post Conviction Relief)
Posted By Ricky

"The writ of coram nobis is an ancient common-law remedy designed "to correct errors of fact." United States v. Morgan , 346 U. S. 502, 507 (1954). In American jurisprudence the precise contours of coram nobis have not been "well defined," Bronson v. Schulten , 104 U. S. 410, 416 (1882), but the writ traces its origins to the King’s Bench and the Court of Common Pleas. United States v. Plumer , 27 F. Cas. 561, 573 (No. 16,056) (CC Mass. 1859) (opinion for the court by Clifford, Circuit Justice)[.]"

"In federal courts the authority to grant a writ of coram nobis
is conferred by the All Writs Act, which permits"courts established by Act of Congress" to issue "all writs necessary or appropriate in aid of their respective jurisdictions." 28 U. S. C. §1651(a)."


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July 29, 2010
  BIA on Admission: Matter of Graciela QUILANTAN, 25 I&N Dec. 285 (BIA 2010). Need only prove procedural regularity
Posted By Ricky
It seems that this decision can have far-reaching consequences.  The concept of admission and being admitted forms one of the cornerstones of adjusting status in the United States to Lawful Permanent Resident (LPR or green card status).  This decision could open the door allowing TPS holders to adjust status based on their "admission" pursuant to INA 244.  Or possibly for a person who is EWI (Entry Without Inspection) to travel on a valid travel document an re-enter the United States and seek adjustment.

The Board stated:  'Under section 245(a) of the Act, an applicant for adjustment of status must have been “inspected and admitted or paroled into the United States.” Section 101(a)(13)(A) of the Act provides that the terms “admission” and “admitted” mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”' Matter of Graciela QUILANTAN, 25 I&N Dec. 285 (BIA 2010)

Headnote:

"For purposes of establishing eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2006), an alien seeking to show that he or she has been “admitted” to the United States pursuant to section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006), need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980) reaffirmed."

From the Case:

"We find that, by themselves, the terms “admitted” and “admission,” as defined in section 101(a)(13)(A) of the Act, continue to denote procedural regularity for purposes of adjustment of status, rather than compliance with substantive legal requirements."
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July 27, 2010
  Supreme Court: The Landmark Drug Case addressing Aggravated Felonies
Posted By Ricky

In December 2006, in an 8-1 decision, the Supreme Court reversed years of blanket rulings that held almost all drug crimes to be aggravated felonies. 

INA 101(a)(43)(B) defines an aggravated felony to include "illicit trafficking in a controlled substance (as described in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)"

In a lengthy, but well-worth-the-read decision, the Supreme Court turned to a plain reading of the law to hold that "Conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is not a 'felony punishable under the Controlled Substances Act' for INA purposes."   

The Court refuted the Government's position stating "To determine what felonies might qualify, the Court naturally looks to the definitions of crimes punishable as felonies under the CSA.  If Congress had meant the Court to look to state law, it would have found a much less misleading way to make its point."  The Government's argument to the contrary contravenes normal ways of speaking and writing[.]"
 

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July 26, 2010
  "How do I Locate Someone in Immigration Detention?" - Immigration Brochure
Posted By Ricky
Online Detainee Locator System -
Continue reading ""How do I Locate Someone in Immigration Detention?" - Immigration Brochure" »

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July 25, 2010
  Immigration's Stance on Drug Paraphernailia
Posted By Ricky
The Board of Immigration Appeals (BIA) issued a decision in November 2009, Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009) where it had to decide how drug paraphernalia offenses should be treated under the inadmissiblity provisions of the immigration laws.

The Board did find that drug paraphernalia can render an alien inadmissible, but left open the possiblilty for a foreign national to seek a 212(h) waiver as the language of the waiver section only requires a "relating to" 30 grams or less of marijuana. 

I disagree wth the Board's logic when it stated:

"The respondent’s last argument is that possessing drug paraphernalia cannot make him inadmissible because no Federal law forbids such conduct. (Footnote: Federal law makes it a felony for any person to “(1) sell or offer for sale drug paraphernalia; (2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or (3) to import or export drug paraphernalia.” 21 U.S.C. § 863(a) (2006). However, the simple possession and use of drug paraphernalia is not federally proscribed.)   However, section 212(a)(2)(A)(i)(II) of the Act does not require that a State offense be punishable under Federal law in order to support a charge of inadmissibility."

This begs the question: How does an act that is not a crime under U.S. Federal Law make a person criminally deportable or inadmissible under U.S. Federal Immigration laws?  I believe clarification is required in this area of ever chaning laws.  Recent Court decisions in Lopez and Carrachuri warrant a reexamination of how drug paraphernalia should be treated.

The case below:


BIA on Drug Paraphernalia - Martinez Espinoza -
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July 24, 2010
  Eligibility for Adjustment of Status (Greencard) under Section 245(i) is not barred due to unauthorized employment
Posted By Ricky
The Board of Immigration Appeals (BIA) determined on April 30, 2010 in Matter of ALANIA, 25 I&N Dec. 231 (BIA 2010) that a foreign national who is eligible to adjust status, in other words receive a greencard, through Section 245(i) of the Immigration and Nationality Act, cannot be denied due to unauthorized employment.

Section 245(i) was a provision of the law that was enacted in 1994 and then renewed in December 2000 by then President Bill Clinton. Section 245(i) allowed for those who were unlawfully present in the United States to legalize their status if they had a qualifying family member or employer who would sponsor/petition for them, were willing to pay the $1000 penalty on form I-485A and if they met certain other requirements.

The full case is below:


Matter of Alania -
Continue reading "Eligibility for Adjustment of Status (Greencard) under Section 245(i) is not barred due to unauthorized employment" »

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July 23, 2010
  Much Anticipated Online Detainee Locator System is finally here
Posted By Ricky
The much anticipated Online Detainee Locator System has just been released.  For my firm which is heavily involved in representing detained immigrants we hope this is an easier way for families and loved one, including lawyers to find the whereabouts of our clients in the opaque ICE.   The Law Offices of Ricky Malik, PC sometimes spend hours over many days investigating and trying to find the whereabouts of our clients.

To Access the sytem click: Detainee Locator
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July 23, 2010
  Even if you got your Greencard through the fraudulent actions of an Immigration Officer, you are still removable (deportable)
Posted By Ricky
The U.S. Court of Appeals for the 9th Circuit reviewed the matter, wherein hundreds of Koreans received fraudulent green cards through the criminal conspiracy of a former officer of the Immigration and Naturalization Service (“INS”), Leland Sustaire. 

The Court found that it did not have jurisdiction when an Immigration Officer commits criminal fraud.  The Court did leave open the possibility for the Executive branch of government to step in to rememdy the situation.

9th Circuit: Kim v Holder (fraudulent green card from Immigration Officer) -
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July 22, 2010
  Virginia Prepares to Open Detention Facility for Immigrants
Posted By Ricky
The State of Virginia, always at the forefront of the Immigration debate, is preparing to open one of the East Coast's largest detention facilities in Farmville, VA. The facility will be used to imprison foreign nationals for immigration violations.  Many of the inhabitants of the facility would have once been free with their families before they encountered U.S. Immigration and Customs Enforcement (ICE).

Detention facilities used by ICE are often far away from major metropolitan areas where the detainees live, and equally far from the foreign nationals' families and attorneys.  It is unfortunate that ICE regularly chooses detention as a means of "enforcement" at the cost of taxpayers when technologies such as GPS ankle bracelets are cheaper and a more humane way for ICE to enforce immigration laws.
   
                    The facility could grow to hold 1,000 prisoners. It will bring 300 jobs to Farmville, Va.      
Picture courtesy of the Washington Post
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July 20, 2010
  U.S. Fourth Circuit Court of Appeals on Virginia Misdemeanor Convicitions for Domestic Violence
Posted By Ricky

The Fourth Circuit Court of Appeals in United States v. White, 606 F.3d 144 (4th Cir. 2010) applied the Supreme Court's recent decision in Johnson (wherein the Supreme Court held simple touching doesn't constitute "physical force" under the Armed Career Criminal Act).

The Fourth Circuit held that section 18.2-57.2(A) of the Virginia Code Annotated includes nonviolent force, such as an offensive touching, and that "violent force," as required in Johnson, is not an element of assault and battery under Virginia common law. United States v. White, 606 F.3d 144 (4th Cir. 2010).

The Court concluded:

"We thus conclude that the phrase "physical force" in § 921(a)(33)(A)(ii) means force, greater than a mere offensive touching, that is capable of causing physical pain or injury to the victim. Accordingly, a conviction for assault and battery in Virginia does not require "physical force" as an element of the crime. As a consequence, a Virginia conviction for assault and battery under VA CODE ANN. § 18.2-57.2, in and of itself, does not meet the definition of a § 922(g)(9) "misdemeanor crime of domestic violence." Applying the "modified categorical approach" outlined in Taylor v. United States, 495 U.S. 575 (1990) and Shepard, the record is devoid of any qualifying documentation to show White's conviction under VA CODE ANN. § 18.2-57.2 was otherwise "a misdemeanor crime of domestic violence" under § 922(g)(9). We therefore reverse White's conviction and vacate his sentence."
CA4 US vs. White -

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July 19, 2010
  Supreme Court: For conviction to be an aggravated felony crime of violence, there must be the intentional use of violent force
Posted By Ricky

In Johnson v. United States, the Supreme Court held that in order to constitute a "violent felony" under the relevant provisions of the Armed Career Criminal Act ("ACCA"), the level of "physical force" required for a conviction must be "violent force-that is, force capable of causing physical pain or injury to another person." See 18 U.S.C. §§ 924(e)(1), (2)(B)(i) (2006).

Simple battery under Florida law was not a violent felony because a conviction under the relevant statute may occur when an individual has committed an actual and intentional touching involving physical contact, no matter how slight. the Supreme Court relied on its prior decision in Leocal v. Ashcroft, 543 U.S. 1, 11 (2004), holding that the definitions in 18 U.S.C. § 16 suggest a category of "violent, active crimes." The Court also specifically endorsed the holding of the United States Court of Appeals for the Seventh Circuit in Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003), that in order to constitute an aggravated felony crime of violence, the elements of the offense must require the intentional use of "violent force." Johnson v. United States, 130 U.S. at 127.
Johnson v United States -

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July 19, 2010
  Board of Immigration Appeals finds Virginia Assault and Battery is not a Crime of Violence, nor a Crime of Domestic Violence
Posted By Ricky

The Board issued a major decision in the Crimigration area holding:

"The misdemeanor offense of assault and battery against a family or household member in violation of section 18.2-57.2(A) of the Virginia Code Annotated is not categorically a crime of violence under 18 U.S.C. § 16(a) (2006) and therefore not categorically a crime of domestic violence within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006). "

The Board was controlled by the Supreme Court case of Johnson v. United States, 130 S. Ct. 1265 (2010) in reaching its conclusion. '[O]ur inquiry is limited to whether the respondent's offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another under § 16(a)....Virginia law is clear that "only the offense of an assault and a battery is encompassed within the statute." Va. Op. Att'y Gen. 99 (1997), 1997 WL 767056 (emphasis added).'

'Accordingly, in regard to crimes against the person, we conclude that the "physical force" necessary to establish that an offense is a "crime of violence" for purposes of the Act must be "violent" force, that is, force capable of causing physical pain or injury to another person. The key inquiry is not the alien's intent for purposes of assault, but rather whether battery, in all cases, requires the intentional use of "violent force."'

Matter of Velasquez, 25 I&N 278 (BIA 2010)

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July 15, 2010
  U.S. Supreme Court Decision in Padilla v. Kentucky: Immigration Consequences of Criminal Plea Bargains are not merely collateral
Posted By Ricky

On March 31, 2010, after decades of hundreds of thousands of immigrants being deported because of ineffective criminal lawyers, the Supreme Court issued a landmark decision to put criminal defense attorneys on notice:  No longer can they blindly and ineffectively compel clients to accept any deal offered by the prosecutor. 

In Padilla v. Kentucky, the Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise clients of the immigration (removal & deportation) consequences of criminal convictions, and failure to do so constitutes ineffective assistance of counsel.

This case changes the landscape. Finally!!!  For all of us immigration attorneys and thousands of immigrants who have seen countless immigrants get deported because the supermajority of the criminal bar was ineffective, this is such a welcome relief.

Now many can seek to reopen their cases if they were deported because their criminal attorney failed them.  Further, from this point on foreign national clients who are facing criminal charges can compel criminal defense attorneys to earn their fee and diligently and zealously represent them.

I know it's a long case, but this one is well worth the read.

"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms."

"It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the "mercies of incompetent counsel."

Ricky Malik
Attorney At Law

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July 14, 2010
  Fourth Circuit Refuses to allow Immigration Judge and Board of Immigration Appeals to deny case based on someone else's facts
Posted By Ricky

The U.S. Court of Appeals for the Fourth Circuit refused to allow an Immigration Judge and the Board of Immigration Appeals to issue an adverse credibility finding (meaning conclude that an applicant for Asylum & related protections was not believable) based on the facts of someone else's case.

InJian Tao Lin v. Holder, No. 09-1269 (July 12, 2010), the Fourth Circuit stated:

"Predicating an adverse credibility determination on unrelated facts derived from another case is manifestly contrary to law and constitutes an abuse of discretion. SeeHussain v. Gonzales, 477 F.3d 153, 155 (4th Cir. 2007) (explaining that BIA "abuses its discretion when it . . . distorts or disregards important aspects of the alien’s claim. Put simply, in making a credibility finding, the agency is obliged to understand the pertinent facts and not be confused by unrelated, prejudicial material. Anything less is simply unacceptable"[.] 

Ricky Malik, Esq.

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June 30, 2010
  ICE Memo on Priorities for the Apprehension, Detention, and Removal of Aliens
Posted By Ricky

ICE released a memo highlighting in order the priority of order it should use to apprehend and especially detain individuals.

ICE Assistant Secretary John Morton noted that ICE "only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien poplulation in the United States."  Secretary Morton went on to note given their limited ability, ICE must prioritize its enforcement and detention policies.  A three priority system was articulated in the memo.

To read the memo, courtesy of the American Immigration Lawyers Association (AILA), click: John Morton 2010 ICE Prioirty Enforcement Memo

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June 23, 2010
  BIA on Nuances of Parole: Conditional Parole is Distinct from Parole and Cannot Form Basis for Adjustment of Status
Posted By Ricky

In Matter of CASTILLO-PADILLA, 25 I&N Dec. 257 (BIA 2010), the Board of Immigration Appeals held:

"(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).

(2) An alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006)."

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June 23, 2010
  BIA: An application for relief not abandoned if all documents are not filed
Posted By Ricky
In Matter of Jesus INTERIANO-ROSA, 25 I&N Dec. 264 (BIA 2010), the Board of Immigration Appeals held that "When an application for relief is timely filed but supporting documents are not submitted within the time established, the Immigration Judge may deem the opportunity to file the documents to be waived but may not deem the application itself abandoned."
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June 14, 2010
  Supreme Court holds theat subsequent simple possesion offenses are not automatically aggravated felonies
Posted By Ricky

The Supreme Court stated its June 14, 2010 decision in Carachuri-Rosendo v. Holder that "Second or subsequent simple possession offenses are not aggravated felonies under §1101(a)(43) when ... the state conviction is not based on the fact of a prior conviction."

"[O]nly recidivist simple possession offenses are "punishable" as a federal "felony" under the Controlled Substances Act, 18 U. S. C. §924(c)(2)"

Citing its earlier decision, the Supreme Court re-iterated "[I]n Lopez v. Gonzales , 549 U. S. 47, 56 (2006), we determined that, in order to be an "aggravated felony" for immigration law purposes, a state drug conviction must be punishable as a felony under federal law. We held that "a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law"

The Court re-iterated: "[A]s we noted in Leocal v. Ashcroft , 543 U. S. 1, 11, n. 8 (2004), ambiguities in criminal statutes referenced in immigration laws should be construed in the noncitizen’s favor."

For full decision click here.

Ricky Malik

Attorney at Law

www.rmlegal.com

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May 25, 2010
  New Process for Filing Immigration Court Complaints
Posted By Ricky

The Executive Office for Immigration Review (EOIR) announced on May 20, 2010 that it has improved the transparency of its system for addressing complaints about immigration judges.

For more about the complaint process or how to file a complaint, visit the EOIR website or click here.

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May 24, 2010
  More and More Cases Backlog the Immigration Courts
Posted By Ricky

Syracuse University's Transactional Records Access Clearinghouse (TRAC) reports the number of cases awaiting resolution before the Immigration Courts reached a new all time high of 242,776 matters at the end of March 2010.

TRAC's latest report on the Immigration Courts can be viewed at this address: http://trac.syr.edu/immigration/reports/232/

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April 26, 2010
  Supreme Court holds that Immigraiton Consequences of Criminal Pleas are not merely collateral
Posted By Ricky
Padilla v. Kentucky (click name to read case)
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