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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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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 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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August 19, 2012
  Deferred Action (DACA) Applications and Crimes, Convictions, Arrests and Charges
Posted By Ricky Malik

An area the Law Offices of Ricky Malik, PC has always gained expertise in is the intersection of immigration with criminal convictions. The new Deferred Action for Childhood Arrivals (DACA) program raises issues about what crimes or convictions will prevent someone from applying.

Before reading the below list of disqualifiers, please note that the Department of Homeland Security (DHS) has stated that "the decision 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, or its presence, is not necessarily determinative, but is a factor to be considered."

  • Attorney: Even if you have been convicted of the below offenses, USCIS will review each application on a case-by-case basis and depending on the totality of circumstances and humanitarian equities, can grant deferred action.

You are ineligible if you have been convicted:

1. A felony: If the crime is classified a felony under law for which imprisonment of more than 1 year may be imposed, it is a disqualifier.

  • Attorney: So even if it is classified a felony, BUT if it is not punishable by more than 1 year, then it will NOT prevent you from applying.

2. A significant misdemeanor: A crime that is punishable with jail from 6 days to 1 year AND is an crime of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking or, driving under the influence (DUI), OR if it is crime which you actually served 90+ days in jail.

  • Attorney: (A) a DUI is a disqualifier, but is Driving While Intoxicated (DWI) not? Eg. in Maryland DUI's and DWI's are different offenses. (B) A suspended sentence will not count towards the 90 days. (C) Noting the above italicized section, it is possible that a person's positives and good deeds can overcome a negative factor.

3. Three (3) or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct.

  • Attorney: (A) Often times a person is charged with multiple offenses at once ie. possession of a fictitious ID, false ID to a police officer, forgery, uttering, etc. Unless they are from separate moments, they will not count against an applicant. (B) 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 still qualifies.

For more information about eligibility contact me at dream@rmlegal.com or call our office toll free at 877-577-VISA.

Ricky Malik, Esq.

Continue reading "Deferred Action (DACA) Applications and Crimes, Convictions, Arrests and Charges" »

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December 02, 2011
  The ICE Detainer
Posted By Ricky Malik

On occasion (all the time in Prince William County, VA), when a non-citizen is pulled over or arrested by law enforcement for traffic or criminal violations, ICE place a detainer, a hold, on that person. A detainer is a request by ICE for the local police department or jail to hold the person for up to 48 hours while ICE determines if they should take that person into immigration custody.

While ICE is getting better, the 48 hour rule is not complied with as much as should be the case. ICE issues its detainer request on form I-247 which is shown below. As you can see, in CAPS and bolded is the language "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS."

Ricky Malik, Esq.

www.rmlegal.com

Continue reading "The ICE Detainer" »

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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

Continue reading "Immigration High Court further limits Cancellation of Removal eligibility" »

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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

Continue reading "USCIS Memo on Commencement of Removal Proceedings: Anytime we can put someone in Immigration Court, we will" »

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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

Continue reading "Court further takes away from Immigrants by allowing Immigration Officers to trick them" »

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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. 

Continue reading "Court holds attempted arson to be an Agg Fel even when Federal Law does not agree" »

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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

Continue reading "What is a single scheme of criminal conduct for removal (CIMT) purposes?" »

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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

Continue reading "Not every returning Green card holder is an "applicant for admission" and Accessory after the face is CIMT only if underlying crime is one." »

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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

Continue reading ""Solicitation" is not an "attempt" or "conspiracy", but it can still be an Aggravated Felony" »

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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

Continue reading "Immigration can take your Greencard (LPR) away after 5 years" »

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

Ricky Malik, Esq.

www.rmlegal.com

Continue reading "Waivers: The 212(h)" »

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

Ricky Malik, Esq.

www.rmlegal.com

Continue reading "Video Blog: U Visas" »

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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.

Continue reading "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." »

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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

Continue reading "Final Memo released on coordination between Immigration agencies for people who are fighting their case in Immigration Court" »

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May 04, 2011
  ICE released Tool Kit for Government Prosecutors to Use when they need immigrants
Posted By Ricky Malik

United States Immigration & Customs Enforcement (ICE) has developed the below toolbox filled with goodies to be used by prosecutors who need the help of immigrants to prosecute a crime AND tools to ensure deportation.

Tools to help cooperating witnesses include: Deferred Action, Administrative Stays of Removal, U, T & S visas.

Tools to deport: Stipulated Orders.

Tools to bring persons into the US: Significant Public Benefit Parole.

Ricky Malik, Esq.

www.rmlegal.com

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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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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

Continue reading "BIA on stop-time remedy of departing and returning to the U.S" »

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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 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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January 24, 2011
  USCIS Issues Memo Clarifying Misdemeanor for TPS purposes
Posted By Ricky Malik

USCIS released a memo entitled "Temporary Protected Status Adjudications Involving "No Jail" or "No Incarceration" Certifications, and Reminder for Cases Involving Certain Potential Misdemeanors"

USCIS clarified that not all crimes are automatically misdemeanors, especially if offense does not carry any jail or incarceration.  This may be positive news for many how are convicted of small offenses.

Consult with an experienced lawyer at the Law Offices of Ricky Malik, P.C. if you have lost your TPS or concerned you may lose it due to a minor infraction. 

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:
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December 20, 2010
  U Visa Toolkit to assist law enforcement
Posted By Ricky Malik
Law_20Enforcement_20ToolKit_20U-Visa
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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.

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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.

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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.

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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 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 30, 2010
  DC Area man convicted for scamming immigrants, impersonating immigration officer
Posted By Ricky Malik

Germantown man who impersonated a federal immigration agent pleads guilty to fraud scheme

ICE Press Release: "GREENBELT, Md. - Robert Fred Mejia, 29, of Germantown, Md., pleaded guilty to conspiring to transport money obtained by fraud across state lines, impersonating an Immigration and Customs Enforcement (ICE) officer, transporting money obtained by fraud in connection with a scheme to purportedly provide immigration services and being a felon in possession of ammunition after an investigation led by ICE.

According to the plea agreement, from December 2007 to June 2009, Mejia and a conspirator charged over 50 individuals for immigration services which they did not provide. On numerous occasions, Mejia and his co-conspirator caused such individuals in Washington D.C., and Virginia to bring $5,000 or more to their office in Gaithersburg, Md., to pay for the purported immigration services. Mejia and the co-conspirator completed immigration documents and had fingerprints taken for the individuals. However, no paperwork was ever filed on behalf of those clients."

For full release, click here.

Ricky Malik, Esq.

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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.

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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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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 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 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 16, 2010
  Virginia State Bar (VSB) addresses Immigration Fraud
Posted By Ricky
The Virginia State Bar released information about the increasing amount of immigration fraud that occurs by Immigration Consultants and Notarios who engage in what is known as the unauthorized practice of the law (UPL).

The actions taken by such consultants and notaries need to be addressed and I applaud the VSB for taking such steps.  However, I would also add that unfortunately a large number of unscrupulous attorneys also engage in such behavior.  Maybe VSB and others alike should consider posting more information about dealing with Immigration Fraud committed by licensed attorneys.
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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
  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 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 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 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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