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Criminal Law, Deportation, Immigration To The USA

IMMIGRANTS NUMBERING THOUSANDS CAN BE DETAINED INDEFINITELY ACCORDING TO THE SUPREME COURT’S RULINGS

June 22, 2022

IMMIGRANTS NUMBERING THOUSANDS CAN BE DETAINED INDEFINITELY ACCORDING TO THE SUPREME COURT’S RULINGS

Author: New York Immigration Lawyer Alena Shautsova

As the issue of immigration in the U.S. seems to be a never-ending rigmarole subject, new developments are expected at every turn. Most recently, the Supreme Court ruled that immigrants detained in the United States are not entitled to a bond hearing in certain situations. This ruling means that the thousands of immigrants currently held in detention facilities with open immigration cases can remain in detention indefinitely! It does not apply to all immigrants, but rather to those who already have orders of removal, but cannot depart or have additional hearings that must be conducted.

In addition to the Supreme Court’s ruling, the high court also ruled that federal courts do not possess the legal authority to grant class-wide relief to immigrants held in detention. This means that, if detainees want to petition their right to a bond hearing in the future, they can only present their cases individually. This is coupled with the fact that immigrants are not allowed to have legal representation during immigration proceedings.

The ruling of the Supreme Court seems to maintain the existing state of affairs as it concerns the issue of immigration. Many immigrants are currently detained in facilities that are more like prisons. Many immigrants have not been charged with any crime but do not possess the right to a hearing to justify their detention. Some of the immigrants are held in facilities belonging to for-profit corporations such as Geo Group and a host of others. The Court ruling also maintains that immigrants can’t have a bond hearing unless the U.S. government says so. This means that the U.S. government has the discretionary right to decide the fate of detainees. In other words, it will be up to DHS/ICE if the person is released from the detention or not, and if ICE/DHS does not want to release the person, they can keep them there technically, forever.

These rulings dashes the hopes of immigrants who have been held long enough in detention. The cases which are Johnson v. Arteaga-Martinez and Garland v. Aleman Gonzalez were brought to court by undocumented immigrants who contested they are being held in detention centers for far too long. Their argument was focused on the fact that immigrants who have been held in detention for up to six months or more should be entitled to an individualized bond hearing where the U.S. government has to prove the need for their continued detention.

The immigrants sued the U.S. government while leveraging on a 1996 immigration statute which states that an unauthorized immigrant “may” remain in detention for an extended period if they fail to meet certain criteria. The immigrants argued that since the statute uses “may be detained” instead of “shall be detained,” the right of discretion rests with the judges, hence entitling them to a hearing. The case was further appealed to the Supreme Court where representatives of the Biden administration argued that the law permits the Attorney General of the United States to indefinitely detain illegal immigrants while their cases are undergoing litigation.

Before the Supreme Court’s ruling, the Ninth Circuit Court of Appeals ruled in 2020 that detainees are entitled to a bond hearing. Since the Garland case was presented as a class-action lawsuit, the Ninth Circuit Court of Appeals granted a class-wide relief, thereby extending the right to a bond hearing to every person named in the suit.

However, the Supreme Court countered this ruling declaring that detainees are not entitled to such a bond hearing, hence a class-wide relief can’t be granted on that basis. Therefore anybody who wishes to exercise their right to a bond hearing in whatever form has to do it individually.

Certain observers feel that it is a bit unfair not to grant unauthorized immigrants the right to legal representation, whereas criminals in the U.S. are allowed legal representation. “Especially since their only offense is that they are in search of greener pastures,” according to an observer. Leah Litman, a professor at the University of Michigan Law School filed a brief in support of Gonzalez. She holds the opinion that the decision of the Supreme Court is completely unworkable and unrealistic. Furthermore, she asserted, “It makes it impossible to ensure that everyone who is potentially entitled to a bond hearing will get one.”

Aside from being denied a desired fair hearing, immigrants and advocates have since raised an alarm concerning the manner of treatment meted out to immigrants at the detention centers. Several facilities have been accused of abusing detainees. The Irwin County Detention Centre was shut down alongside another in May 2021. A gynecologist was accused of carrying out forced sterilization on the detained women at the Irwin Center.

Matt Adams, the legal director of the Northwest Immigrant Rights Project who argued the Garland case opines that the decision of the Court raises ethical questions. This is a result of the fact that the ruling contradicts the fundamental principles upon which the U.S system is founded- “that government officials may not lock up a person without at least providing them their day in court to contest whether their confinement is justified.” Although he gives reassurance that the matter will still be pursued as it is not over yet.

Criminal Law, Immigration To The USA

Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

November 28, 2018

Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

Author: New York Immigration Attorney Alena Shautsova

Recently, New York highest Court, the Court of Appeals held that a defendant facing criminal charges with a risk of deportation should be entitled to a jury trial. Under State Criminal Procedure regulations 340.40, a criminal defendant may be denied a jury trial for certain offenses. As such, such a person will face a bench trial instead: a trial where a judge without a jury will decide his/her faith.

This regulations and practice have been found violating immigrants’ rights who may face deportation/removal even for otherwise low-level offenses. The court held:

“It is now beyond cavil that the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty,” Stein wrote. “Accordingly, we hold that a noncitizen defendant charged with a deportable crime is entitled to a jury trial under the Sixth Amendment, notwithstanding that the maximum authorized sentence is a term of imprisonment of six months or less.”

It means that in every case, a careful analysis of the consequences of the potential conviction is required. It also means, that those who were convicted of deportable offenses and now are facing deportation, should be able to file corresponding motions to reopen their cases both in criminal and immigration courts.

If you have Immigration questions related to criminal convictions, please call our office for a consultation at 917 885 2261.

Criminal Law, Immigration To The USA

Legalization of Marijuana and US Admissibility

October 19, 2018

Legalization of Marijuana and US Admissibility

Image result for marijuana fields

Author: US Immigration Attorney Alena Shautsova

US Federal laws prohibit use and distribution of marijuana, and even though on a state level in certain jurisdictions, use of marijuana and its possession would not even cause criminal charges any longer, on a Federal level, and particularly for Immigration purposes, affairs related to it may cause serious problems.

Generally speaking, persons who are involved in manufacturing and distributing of marijuana would be inadmissible in the US. Drug-related offenses are the toughest ones for US Immigration purposes: there is no even a waiver for the most of them.

But recently, countries started to liberalize their policies to toward marijuana. Specifically, Canada legalized it. Now, a person may be involved in acts that are considered to be legal in their country, but illegal in the US. What will happen if the person is seeking to come to the US?

The answer was recently provided by CBP:

“A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.”

It means that just working for the industry will not make on inadmissible, but if the person is coming, let’s say to explore business opportunities related to the same, he/she will not be able to enter the US.

Criminal Law, Immigration To The USA

Brooklyn DA to Expunge Small Drug Convictions

September 21, 2018

Brooklyn DA to Expunge Small Drug Convictions

Foliage Cannabis Marijuana Lush Plants Nat

Author: New York Immigration Attorney Alena Shautsova

In the light of the general liberalization of laws related to marijuana, Brooklyn DA announced a new program that would permit those convicted in Kings county to apply for an expungement of convictions related to unlawful possession of marijuana. It should be noted, that on a Federal level, possession of marijuana is still a crime related to a controlled substance, which, depending on the amount, may make a person inadmissible and/or deportable.

The program by Brooklyn DA to expunge small drug convictions would allow many to clear their records, and potentially, qualify for Immigration benefits they could not qualify previously. The subjects of the convictions could request the convictions to be dismissed. Moreover, those with outstanding summons warrants will be able to vacate their warrants: an outstanding warrant is a red flag for any immigrant, and must be addressed ASAP.

You can learn more about Brooklyn DA’s programs here: http://brooklynda.org/begin-again/.

If you have Immigration concerns related to convictions, please book a consultation at http://www.shautsova.com.

Criminal Law, Immigration To The USA

Immigration Consequences of Arrest

January 4, 2016

Immigration Consequences of Arrest

Author: New York Immigration lawyer Alena Shautsova

An arrest occurs when a person is taken into a custody against his/her will for interrogation or search. What constitute an arrest and custody is actually depends on the facts and the occurrences that have been deemed to constitute an arrest have been examined by the judges for a long time.

Sometimes, after an arrest a person is issued a document by the arresting authorities, sometimes it does not happen. Such documents may be a police report, a desk appearance ticket… In other words, sometimes, an arrest results in criminal or administrative charges and sometimes it does not.

The question that I receive often is: should one disclose a fact of arrest that did not result in formal charges? For example, a husband and a wife had a domestic dispute, their neighbors called the police, the couple was brought to the precinct, the wife was let go, but the husband was not. The wife did not have to submit herself for the fingerprint procedure. Does she have to disclose this incident on her citizenship application?

Or, let’s take a different set of facts: young people, whose names are A, B and C, return to their apartment after a party. A decides to do something in public which is not allowed and an officer issues him a ticket. The rest are asked to present proof of their identity. Shall B disclose this fact on his green card application? B was not issued or ticket and was not charged with anything.

And finally, A, B and C are shopping. A security guard suspects that A, B and C committed shoplifting. All three are taken into custody and the police is called. A, B and C are issued desk appearance tickets. During the court hearing, charges against A are dismissed. Shall A disclose this incident during his permanent residency interview?

Let’s see… nowadays most immigration applications and petitions require full disclosure of any arrests and any and all charges, including those resulted in dismissal. Even administrative incidents must be disclosed during the citizenship process: such as stops by Immigration or Customs agents in the airports. An individual who does not disclose a fact of arrest may be charged with committing fraud or misrepresentation in connection with application for Immigration benefits: a charge that requires a hardship waiver or results in finding of lack of good moral character.

It means that almost in all cases an individual has to disclose the arrest, even if subsequently the charges were never brought against the individual. In our first example, the wife will have to disclose the fact that she was brought to the precinct as a suspect , even though the police later realized she was the victim. In the second example, I believe, there was no arrest, even though some might argue that even though B and C who were not issued tickets, they were not free to leave once an officer asked them to present their IDs. In the third example, A absolutely has to disclose the incident.

Citizenship applicants with arrest history are severely scrutinized on the point of “Good Moral Character.” A dismissal can usually be construed to a misunderstanding between the parties.

In any case of arrest or administrative or criminal charges, an individual who is looking to obtain Immigration benefits such as visa, change of status, permanent residency, citizenship has to consult with an attorney. The Immigration law says that one who admits to committing the elements of the offense (even if the person is not convicted) is deemed to commit and be convicted of the offense under the Immigration law.

Finally, if the person was fingerprinted, and/or the formal charges were brought and later dismissed, this information is FOREVER in the person’s FBI history and will show during the USCIS security checks. So, as a reminder, every applicant has to answers all the questions truthfully, and fully…

Asylum in USA, Criminal Law, Deportation, Immigration To The USA, Uncategorized

Glitches in USCIS System

December 4, 2014

Glitches in USCIS System

Author: New York Immigration Lawyer

USCIS stands for the United States Citizenship and Immigration Services and is a government body that accepts and processes all petitions and applications related to any and all immigration benefits.

The process of communication with USCIS boils down to exchange of papers and on rare occasions, includes phone calls and infopass appointments.

That is why it is very important to submit correctly filled out forms; timely respond to request of more evidence and organize the papers in the most convenient way for the adjudicator.

In cases that do not require an interview, the petitioner or applicant will never meet the person who makes a decision on his/her case. However, often, an applicant or an attorney would receive correspondence from the adjudicator: request for more evidence; notice of intend to deny, etc. Often such notices are mere duplicates of the instructions for the form submitted; sometimes a person gets a notice twice; or receives something that does not make a sense at all.

Recently, USCIS revealed that some of such notices are sent automatically due to the “glitches” in their system. For the past year, the glitches are to blame for RFEs for I 864 affidavit of support form; double notices for fingerprint appointments and receipts of filing with the RFE in it (this one is a hybrid, a new “monster” created by glitches).

The unfortunate thing is that an attorney or petitioner/applicant still has to address these babies of the glitches even if they do not make any sense, because, if for example, an attorney fails to respond to an RFE, the case almost surely will be denied on the basis of failure to response to an RFE, even if the RFE itself did not make any sense.

Glitches or not, submission to the USCIS is a serious matter, and should not be taken lightly as any mishap will result in frustration, loss of money and time!

Asylum in USA, Criminal Law, Deportation, Immigration To The USA, Uncategorized

DMV Denial of License

October 21, 2014

DMV Denial of License

New York Immigration lawyer Alena Shautsova

Have you recently moved from another state and had difficulties getting NY driver’s license? Were you totally confused? Were you blamed you are not a US citizen?

It happened to my client: a born US citizen who has spent several years in a different state, and when she came back to NY and decided to apply for NY driver’s license and report a change of her address, a lady at the DMV Manhattan office told her that …. she needs to present “more proof” that she in fact was a US citizen… hmm

My client actually presented a social security card; different state ID card; a US birth certificate; bank statements from different banks and utility bills. According to the DMV point system table she had enough points to get her NYS driver’s license. Nevertheless, the clerk told her to apply for a US passport and come back…

The question was: did the DMV clerks look at their own point table? Or is it just anther document issued to confuse everybody and make people’s life more difficult?

This client is a US citizen, and eventually, after visiting a different DMV location, she was able to get her license.

Many non-citizens, however, experience the same issue. The government passed the Real ID act which requires the DMV offices to check for the lawful immigrant status before issuing an ID to the applicant. However, DMV clerks are not attorneys and often they lack training to ascertain if a person is in fact in lawful immigration status or status that allows a person to receive a state ID or driver’s license. For example, another client of mine, an applicant for asylum was denied Chicago State ID because the clerk there decided that his documents showing pending case with the Immigration Court were not sufficient to prove authorized stay in the US…

At the same time, there are people without lawful immigration status who were able successfully to extend their 8 years DMV licenses even after the Real ID act…

Recently, New York City voted to issue Id-s to everybody, regardless of their immigration status.

Maybe, it is time to change the rules?

Criminal Law, Deportation, Immigration To The USA, USCIS

How to Overcome Denial under the Adam Walsh Act

May 28, 2014

How to overcome Adam Walsh denial

Author: New York Immigration lawyer Alena Shautsova

Adam Walsh Act enacted on July 27, 2006 [PL 109-248, Title IV] prohibits United States citizens and Lawful permanent residents who have been convicted of certain sexual offenses against a minor from petitioning family members, unless in the “unreviewable discretion” of the Secretary of DHS, the USC or LPR poses no risk to the beneficiary. The same provision applies when a USC would like to petition his/her fiance.

Examples of offenses include: offenses involving the use of minors in prostitution; offenses against minors involving sexual contact; offenses involving the use of a minor in a sexual performance; and offenses involving the production or distribution of child pornography. The Immigration laws very broadly define “Sexual abuse of a minor.” Please note sexual abuse of a minor is also an aggravated felony under the Immigration laws. Examples of aggravated felonies under NYPL are: use of a child in a sexual performance in violation of 263.05; sexual misconduct under 130.20).

Examples of crimes that are not aggravated felonies: knowingly engaging in sexual intercourse or oral sexual conduct with person under 18; parents consenting to child’s sexual performance.

A felony conviction is not necessary, as a misdemeanor sexual abuse conviction is sufficient for finding of an aggravated felony under the Immigration law (for example: NYPL 130.60(2) conviction is an aggravated felony).

If after family petition was filed, USCIS found that Adam Walsh Act is applicable, the only way for the petitioner is to demonstrate to the satisfaction of the USCIS that he/she does not posses threat to the beneficiary or that he/she was not convicted of the qualified crime. The burden lies on the petitioner to show that the crime is not the one covered by the Adam Walsh Act. It means that almost in every case a very detailed and difficult analysis of the conviction is necessary. See Matter of INTROCASO, 26 I&N Dec. 304 (BIA 2014). It is important to know that under the recent BIA decision, Adam Walsh Act has retroactive effect: it applies for convictions that took place before the statute’s enactment as well as to those occurred after its enactment .

To demonstrate that the petitioner posses no risk to the beneficiary, the petitioner must present a very strong record of rehabilitation: probation report; reports by a treating doctor; evidence of community service… Under the recent BIA decision, Matter of ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014), the BIA lacks jurisdiction to review the “no risk” finding. It means that the application has to be impeccable.

A petitioner who has criminal convictions should consult with an Immigration lawyer prior to starting “immigration case” for his/her relatives. A mistake and lack of knowledge may cause deportation/removal of the family members and their permanent inadmissibility. If you have questions regarding Adam Walsh Act, please call New York Immigration attorney Alena Shautsova at 917-885-2261.

Asylum in USA, Criminal Law, Deportation, Immigration To The USA, Uncategorized

Crime of Moral Turpitude in Immigration Court and Record of Conviction

February 25, 2014

Author: Criminal Immigration attorney Alena Shautsova

Crime of Moral Turpitude in Immigration Court and Record of Conviction

Conviction of crime of moral turpitude may cause a permanent resident to be deportable if committed within 5 years from the date of admission. (Date of admission is the date when an alien was admitted to the US or paroled, but does not restart when an immigrant adjusts his or her status as per Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011)).

However, what a crime of moral turpitude is, is decided in almost every case separately. Why? Because the term of “crime of moral turpitude” is a term of art. The Immigration and Nationality act does not provide a definition to it, and courts look at the conviction to determine whether a particular offense falls under the category of a CMIT.

In doing so, the courts follow the following analysis: first, they look at whether the statute a person was convicted of is divisible or not divisible. A statute is not divisible when it describes only one way to commit a crime. If the statute sets out a list of alternative ways to commit the crime, and where some of these “sub-violations” categorically meet the federal standard while others do not necessarily meet this federal standard, then the statute is divisible. A statute categorically meets federal standard when every violation of a particular criminal statute meets the generic federal definition.

If a non divisible State statute mimics the Federal definition, there is no reason to look at the record of conviction: the person will be found guilty of crime of moral turpitude for Immigration purposes. If not, the State statue includes acts that will not be punished under the Federal law, then the person will be “off” federal hook for Immigration purposes.

As for divisible statute: most likely the court will look at the record of conviction, which consists of criminal charge, the plea agreement, and any plea or sentencing colloquy. The record of conviction does not include arrest reports, the pre-sentence investigation, the testimony of witnesses, etc. Shepard v. U.S., 544 U.S. 13 (2005); U.S. v. Kovac, 367 F.3d 1116, 1120 (9th Cir. 2004).

In addition, currently, in several Circuits the courts are permitted to look beyond the record of conviction to see if the person committed a CMIT under the Matter of Silva-Trevino. This might present a problem for an immigrant who, essentially, will have to be re-tried in Immigration court for the same conduct he was tried in criminal court in. The court may look at any necessary and appropriate evidence to determine whether the foreign national’s conduct did, in fact, involve moral turpitude.

If you have questions regarding Immigration court proceedings, call office of Alena Shautsova 917-885-2261.

Criminal Law, Immigration To The USA

Do I need a lawyer?

January 22, 2014

Do I need a lawyer?

I would like to share these stories with my audience in hope to answer one of the most popular questions potential clients are asking themselves: do I need a lawyer?I met these two clients recently. Two of them have very different stories, but both have one thing in common: they both tried to handle their legal issues themselves.

The first client is a teenage boy who came to the US on a student visa from Russia. He is enrolled in high school, and recently together with his friend was accused of shoplifting. Instead of contacting an attorney, he decided that he did not want to inform his parents in Russia about “the situation” and decided to go to court himself. He was provided a free attorney. Now, I do not want to make any assumptions about legal aid attorneys, but this particular one, for some reason decided that my client did not deserve zealous representation and simply told him to plead guilty. The eighteen years old with no prior convictions, plead guilty to a crime of moral turpitude when he was not even the one caught with the merchandise. Even the prosecutor was in shock and reduced the charge to disorderly conduct, which is still a misdemeanor under the Immigration law. The free attorney also advised that my client that his visa will be revoked and he would never come to the US again.

Needless to say that the advice was incorrect. I only regret that the boy did not contact us earlier so we could have helped him to avoid having any record at all.

The second client is from one of the countries of former Soviet Union. He came to ask for help because local police refused to accept his crime report. This client was a victim of domestic violence and extortion: his former family member stole his immigration documents and refused to give them back unless my client payed him several thousand dollars. So, what do you think happened in the police precinct when my client decided to file a report? He was accused by the detectives of alleged immigration fraud! This was a clear case of profiling. I was so upset for the client and the police’s actions, that I had to go to the police precinct and after two hours of arguing with the whole precinct, the report was finally filed. I must say with regret, that no person who is not an attorney would be able to make those officers to accept the report. I do not know if we will be able to persuade the officers to investigate the reported crime, but at least my client has a copy of the report which will help him to restore his stolen documents.

I hope these examples will help you to answer that question I posed at the beginning of this post.