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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.

Deportation, USCIS

Expedited Removal and Asylum

May 15, 2014

Expedited Removal and Asylum

Author: New York Asylum Attorney Alena Shautsova

Expedited removal is a form of removal proceedings during which a person who is coming to the US is being deported by DHS without seeing a judge. Such person is also called an arriving alien: a term of art in Immigration law that has its consequences.

Expedited removal from the U.S., a procedure established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, allows immigration officers to issue expedited removal orders against non-U.S. citizens, resulting in removals that, except in very limited circumstances, are carried out with no hearing or review by an immigration judge. Under the statute, the procedure may be used against noncitizens, except those from Cuba, who have not been admitted or paroled into the U.S., have been in the U.S. for less than two years, and are determined to be inadmissible for either (1) having used fraud or misrepresentation to procure an immigration benefit or (2) lacking a valid visa or other entry document (two of the grounds of inadmissibility).

Most often, expedited removal is being used at the airports against people who are coming to the US on a non-immigrant visa but a CBP officer determines that this person is an intending immigrant who does not have an immigrant visa. Arriving aliens as they are called by the DHS are subject to mandatory detention. So, if a CBP officer determines that a B1/B2 holder is really intending to stay in the US indefinitely, this person will be detained.

Another common way when the DHS will use the expedited removal process is when a person is apprehended by the DHS officers within 100 miles from the border within the 14 days of the arrival into the US. Of course, such a person is subject to the removal only if entered the country without inspection.

Subjects of the expedited removal cannot see a judge. They would be removed immediately, unless they express fear of returning back to their home country or a fear of torture. At this point they would be referred to the Asylum Officer who should conduct a credible fear or a reasonable fear (in case a person has already been removed form the US on a prior occasion) interview. See 8 C.F.R. § 208.31(b) and 8 C.F.R. § 241.8(e).If the asylum officer determines that the subject possess the fear, then the person can be paroled into the US and freed from detention. If not, the person will be removed unless the judge overrules the officer’s determination. Id. § 208.31(g).

If the person passes the interview, a Notice to Appear will be issued and the bond will be established. Upon information, the current guidelines for the DHS states that the bond for those who are apprehended at the border should be $7,500. This determination can also be appealed to the judge.

Aliens who have been expeditiously removed are
barred from returning to the United States for five years. They cannot return to the US earlier than 5 years without granted application for permission to re-apply for admission.

Deportation, Immigration To The USA

Troubles with Immigration 800 number

April 23, 2014

Author: New York Immigration Attorney Alena Shautsova

Have you tried to access your Immigration case information via 800- number (1-800-898-7180) recently and got conflicting information or did not get through at all?

Do not worry: you are not the only one. EOIR alert that it is currently experiencing a systems outage involving several computer applications including eRegistration and the telephonic case information system (the 1-800 phone number). EOIR hopes to have the situation resolved in the near future!

How can you get your information in the meantime? Try calling local Immigration court, go there or contact your attorney!

Deportation, Immigration To The USA, USCIS

They Give it: They Can Take it Back: How DHS Can Take Your Passport Away

March 14, 2014

They Give it: They Can Take it Back: How DHS Can Take Your Passport Away

Author: Immigration attorney Alena Shautsova

There are two main ways a person may obtain US citizenship: by being born in the US or its territory and via naturalization. Naturalization is a process of conveying US citizenship on an individual who originally held a different citizenship or was a person with no citizenship at all.

It has been said that there is no distinction between US born citizens and those who received citizenship via naturalization. However, one major distinction between the two kinds of citizenship does exist: the second kind can be taken away from an individual even if he or she has been in citizenship status for decades.

This happened to Hzim who originally received his citizenship in 1989. Even though for decades he held the title of US citizenship and traveled overseas, in 2011, the US Department of Homeland Security decided to “take back” his citizenship, saying that they made a mistake in 1989…

The mistake was that somebody in INS (Immigration and Naturalization Services (USCIS used to be called this way)) did not check all the requirements for Hazim’s naturalization and mistakenly believed Hazim’s father conveyed his citizenship to Hazim…. Even though there was no Hazim’s fault in it all, and even though he did not lie to the US government in any way, the Federal Court, 2nd District said it cannot stop Immigration authorities from taking Hazim’s citizenship away over twenty years later…

Of course, despite the fact that they are taking his citizenship away, Immigration promised Hazim that there are Other means of correcting the situation, but it seems that Hazim should not be the one paying for someone’s lack of qualification and expertise…

That is why it is strongly advisable that everybody who is applying for citizenship, consult with an Immigration attorney to make sure Hazim’s story would not repeat itself.

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.

Deportation, Employment Immigration, Immigration To The USA, USCIS, Visas

CLAIMING US CITIZENSHIP ON I9 FORM WILL CAUSE PERMANENT INADMISSIBILITY

January 27, 2014

CLAIMING US CITIZENSHIP ON I9 FORM WILL CAUSE PERMANENT INADMISSIBILITY

Author: New York Immigration attorney Alena Shautsova

According to the laws of the US, when an employer is hiring an employee, the employee must fill out I-9 form: this form helps an employer to determine if the potential employee has a proper employment authorization and may accept employment in the US. The form consists of simple questions and check boxes and one of those check boxes asks the filler to answer if he/she is a US citizen or US national. Of course, answering YES or checking off this box will mean that the person who is filling out the form has the proper documentation to work in the US.

Many immigrants without employment authorization are tempted to check off that little square “Citizen or National of the US.” However, many of them ignore the drastic consequences.

This happened in the case of Nyabwari. She entered the US on a visa, overstayed it, and later married a US citizen. She though she would have no problem receiving her green card. Indeed, many with the same situations can got citizenship.

However, the government learned that at some point in time, while in the US, Mrs. Nyabwari was working illegally, and to make the situation worse, the government discovered that Mrs. Nyabwari submitted form I-9 to her employer stating she was a US citizen or US national.

Mrs. Nyabwari’s explanation that she did not understand who the national was, did not help her. Both, Immigration judge and the Board of Immigration Appeals said that checking off that one box caused Mrs. Nyabwari to be PERMANENTLY inadmissible into the US, as this was a violation of the US laws for which there is no waiver.

The end of Mrs. Nyabwari’s immigration saga is very sad: she will likely to have to leave the country permanently or to stay in the US illegally forever. This serves as a great lesson: if you in doubt, you must consult an attorney to avoid “deporting” yourself before your time.

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

PAROLE IN PLACE: NEW IMMIGRATION POLICY

November 21, 2013

PAROLE IN PLACE FOR MILITARY FAMILIES

Who is eligible?

Spouses, Children and Parents of

Active duty Members of the U.S. Armed Forces
Individuals in the Selected Reserve of the Ready Reserve
Individuals previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve

The eligible individuals should not have criminal convictions and should submit the following documents:

Application for Parole on USCIS form I 131
Evidence of the family relationship
Evidence of the family member belongs to the eligible group of the U.S. Armed Forces
Evidence of the additional favorable factors

Call Alena Shautsova, New York Immigration lawyer to get FREE PHONE CONSULTATION REGARDING PAROLE IN PLACE RELIEF: 917-885-2261

Deportation

When ICE Agents’ Actions Can Cause Dismissal Of Immigration Charges?

October 22, 2013

When ICE Agents’ Actions Can Cause Dismissal Of Immigration Charges?

Author: Deportation attorney Alena Shautsova

How many of you think that ICE agents (Immigration and Custom Enforcement Agency) have power to do whatever they want? How many of you have heard stories that they come to a home at 5 am and search the premises and “pick up” illegal immigrants? How many of you think it is legal?

Well, the ICE officers can come to non-citizen’s home, but they still have to confirm their actions to the Constitutional norms and do not have a carte blanche to do whatever they want even if the non-citizen is an undocumented worker. This principal was one more time confirmed by the recent BIA decision in Matter of Ixpec-Chitay, 9/16/13.
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Deportation

DHS Burden In Removal Proceeding

October 2, 2013

Possession of Controlled Substance: DHS Burden In Removal Proceeding

Author: Immigration Attorney Alena Shautsova

Removal proceeding is a government initiated procedure to “send” somebody who is not a citizen to their home country or the country designated by the government. The other name for these proceedings is exclusion or deportation proceedings (the name actually depends on the time when the proceedings were initiated, as the name has changed as the laws changed).

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Deportation

Claiming US Citizenship

August 20, 2013

Claiming Us Citizenship: Consequences

Author: New York Deportation Attorney Alena Shautsova

Claiming US citizenship is one of the Immigration law offences which will make a non -citizen permanently inadmissible and on top of that may also cause criminal charges be filed against the person.

Immigration law waivers may waive a variety of immigration law violations, including waiving consequences of certain criminal offences. However, there is a provision in Immigration and Nationality Act, that makes a claim of US citizenship to be a permanent and inexcusable immigration law offense which caused inadmissibility and/or deportation.

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