Immigration Visa Lawyer Blog

In a well reasoned order handed down by Judge Susan R. Bolton of the United States District Court for the District of Arizona, the most unreasonable, atrocious and unconstitutional aspects of Arizona's Senate Bill 1070 were blocked, or rather, enjoined from taking effect with the remainder of the legislation on July 29, 2010. In what almost certainly will set the stage for an appeals process culminating in review of state government's power to supplement federal law in the area of immigration, Arizona has appealed this ruling to the United States Circuit Court for the Ninth Circuit. If the Ninth Circuit rules on the matter before the end of the year, the case could be heard by the Supreme Court of the United States in its next session, and possibly decided within a year from now.

While the most egregious aspects of SB1070 have been strategically excised from the whole of the bill by the order of Judge Bolton, the bill ultimately stands and the remaining portions went into effect July 29, 2010. Because the process for enjoining and appealing this bill as well as its ramifications may not be entirely clear, I have briefly summarized the judge's legal opinion and the effects that this ruling has on SB1070 in board terms. As a reminder, this attorney and the Law Firm of Shihab & Associates has offered the following aspects of Arizona law for the purposes of public discussion and discourse only. This lawyer does not suggest nor insinuate that he is licensed practice civil or criminal law in the state of Arizona.

Summary

Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:

• Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
• Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
• Creating crimes for intentionally or knowingly employing unauthorized aliens; and
• Transporting or encouraging unlawfully present aliens to come to Arizona.

Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona's immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.

The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:

• Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
• Creation of a crime for failure to apply for or carry immigration papers;
• Create a crime for an unauthorized alien to solicit, apply for or perform work; and
• Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.

Despite the injunction of this law, there are aspects of the enjoined portions of SB1070 that seem to have overlapping effects with current law enforcement procedure in Arizona. Sheriff Arpaio of Maricopa County (the Phoenix metro area) of Arizona is still conducting his "sweeps" pulling over cars for minor violations and then taking the opportunity to lead the detained person down a path of questioning to eventual disclosure of his or her immigration status. While it is unclear where to draw the lines between enforceable state law and unenforceable enjoined provisions of SB1070, what is clear is that violating a federal injunction is grounds for a charge of contempt of court. In the spirit of SB1070, it is only just that such a person violating an order handed down by a federal judge should be prosecuted to the full extent of the federal law.

Discussion of the Enjoined Sections of SB1070

The legal ruing handed down by the federal court in this case is what is known as a preliminary injunction. This order stops conduct from being carried out as requested by the moving party from occurring while the merits of the case have yet to be decided, i.e. the case has not yet gone to trial. This is essentially a temporary stop. The ruling on a temporary injunction may be appealed to the next highest court. This is the action that the State of Arizona has taken, asking the Ninth Circuit, the court above the US District Court for Arizona, to hear its argument.

Judge Bolton took the most appropriate action by only enjoining or blocking the aspects of the bill that were likely be won by the US Department of justice at trial, while letting other aspects of the law go into effect. The drafters of SB1070 intentionally wrote the bill to allow this type of severability, or the ability for sections of the law to be blocked without destroying the entire bill. As a consequence, Judge Bolton has essentially narrowed the issues that will be argues at the next level to the issues below.

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In deporation and removal, a Notice to Appear ("NTA") charges an alien a crime involving moral turpitude ("CIMT") may not necessarily be removable in deportation and removal proceedings.

Prior to deportation or removal, if you are a foreign national and you have been issued a Notice to Appear ("NTA") subjecting you to deportation and/or removal citing that you are deportable or removable from the U.S. due to the commission of a "crime Involving moral turpitude," you are probably asking yourself, what is a crime involving moral turpitude? You are probably wondering what - if any - grounds do you have to avoid being removed in deportation? This article focuses on defining the term "crime involving moral turpitude" as used in deportation and removal proceedings. More importantly, it provides guidance on what is not a CIMT and discusses the common exceptions under current immigration law.

What is a Crime Involving Moral Turpitude ("CIMT")?
According to the federal immigration courts, a CIMT is defined as a crime that is "inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general." In determining whether a crime is one involving moral turpitude, "base, vile, or depraved" conduct must be found in the elements of the statute. This means that it is the definition of the criminal statute that determines whether one is removable.

The determination is necessarily driven by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction. When you are charged with having committed a CIMT, you must look at the criminal statute (usually a state law violation) to make the determination. Some conduct resulting in a criminal conviction may be "base, vile, or depraved," but it is simply not considered a CIMT. Other conduct may seem innocuous; however, it is sufficient to make a finding of having committed a CIMT.

CIMT Requires a Conviction
A formal conviction of one CIMT will trigger inadmissibility. Any disposition in criminal court that does not constitute a "conviction" for immigration purposes will not trigger these adverse immigration consequences. A conviction is defined as a "formal judgment of guilt of the alien entered by the court," and also for less formal dispositions. A conviction can result from a trial or plea of guilty or no contest. A state or federal conviction can trigger this ground. A finding of guilt followed by commitment to a state mental hospital is considered a conviction, as is a finding of guilt followed by commitment to another institution or agency.

A dismissal, diversion (if no plea of guilty has been entered), dispositions entered in juvenile court, and convictions that are still on direct appeal are not "convictions" for immigration purposes. Convictions that have been vacated or voided as a result of post-conviction relief no longer constitute convictions (as long as the order was entered on some ground of legal invalidity of the conviction). Thus, the first step is to determine whether you were truly "convicted" of a crime; if not, you are not subject to deportation on the grounds listed whether or not you committed a CIMT.

The Petty Offense Exception to Inadmissibility
Since so many offenses can be classified as involving moral turpitude, many noncitizens risk being excluded even for minor convictions. The Petty Offense Exception excuses the inadmissibility on account of a conviction of one CIMT. Under this exception, a noncitizen is automatically not inadmissible on account of a conviction or admission of a CIMT if (1) she committed only one CIMT, (2) she was not sentenced to a term of imprisonment in excess of six months, and (3) the offense of conviction carries a maximum sentence of one year or less.

This definition seems very simple but it is wrought with traps for the unwary. Each element (1)-(3) above raises legal questions that must be delicately analyzed by experienced legal counsel. For example, the sentences imposed must be of six months or less. The 1996 IIRAIRA established a statutory definition of what constitutes a sentence for immigration purposes. A sentence includes "the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or part." For immigration purposes, if imposition of sentence has been suspended, there is no sentence (since the court has not ordered any confinement). But, court-ordered confinement of probation now counts as incarceration for this purpose. As you can see, the criminal sentence itself may preclude deportation. An experienced lawyer will be necessary to make this determination.

Is My Conviction a Crime Involving Moral Turpitude?
Once you have determined that you have a "conviction" for immigration purposes and that you do not fit within the exceptions, you must determine whether the crime itself involves moral turpitude. The easiest way to make this determination is to analyze crimes that do not involve moral turpitude.

The following are some common convictions that raise CIMT issues. Whether they will be found to involve moral turpitude depend on the statutory language of the offense and whether any of the above exceptions apply

Theft is a CIMT
Generally, if you are found guilty of stealing something, a judge will find you inadmissible for having committed a crime involving moral turpitude. For example, if you are caught stealing a pack of gum, you have committed a CIMT! Even petty theft will suffice. These theft offenses have different categories and names under state law. If you are found to have committed an offenses called larceny, larceny by trick, shoplifting, embezzlement. swindling, grand theft, burglary, or stealing, you will be found to have committed a CIMT so long as the theft was permanent. While a non-permanent theft will not suffice, practically speaking it will be extremely difficult to argue to a judge that you did not intend to permanently take something.

Continue reading "Immigration Lawyer Discusses Crimes Involving Moral Turpitude in Deportation and Removal" »

Immigration Reform Must Be Fair To All Immigrants
In advance yet another rally for immigration reform set to descend upon Washington D.C., we are all again reminded of the need to amend the fractured structure of agencies and laws that makes up modern immigration system in America. Many of the most vocal and courageous advocates for change in the immigration system are the representatives of foreign nationals from Central and South America. It is indeed true that undocumented aliens from the countries south of the United States boarder do make up the largest contingent of aliens who will be effected by comprehensive immigration reform. However, we need to remember that in order for immigration reform to be truly comprehensive, its effects must be fair and just too all foreign nationals of all visa statuses from all continents.
Fairness for those who have followed the law
Permanent and temporary work visas are distributed according to a myriad of complicated laws and regulations. Many employers and employees who seek to utilize these avenues of immigration have spent years of their lives and thousands of dollars obtaining and maintaining their valid immigration status. While it is in the best interest of the United States to find a path to citizenship for the hundreds of thousands of undocumented workers who do the toughest jobs in this country, it is my hope that their gain does not come from a loss for those aliens who have attempted to immigrate by adhering to the rigorous immigration laws on the books today. A truly comprehensive immigration reform must strive to keep smart workers, hard workers and families together.
What Should Immigration Reform Look Like?
As much as the term Comprehensive Immigration Reform (CIR) is used in the media and around dining room tables, the nuts and bolts of such reform are still a mystery. The central tenants of such reform seem to be registration with the government, a path to citizenship for undocumented workers with caveats for the payment of taxes, tight boarder enforcement. But undocumented workers are only a part of the immigration landscape. Adjustments need to be made to the traditional three avenues of permanent immigration: 1) asylum/refugee status, 2) employment based; and 3) family based immigration.
In general, reform should establish clear guidelines for permanent immigration though these avenues. Asylum/ refugee law as well as family based immigration have a deep and rich history of case law that must be drawn upon in order to fashion legislation that ends in a fair result for foreign nationals as well as maintaining order and security within the United States. A balance must be struck between efficient adjudication of asylum claims with the need to hear the merits of each case. Furthermore, a system that eases the path to citizenship for undocumented workers would decrease the instances of foreign nationals seeking less than traditional marriage partners in order to obtain a green card.
As for employment based temporary and permanent immigration, clear guidelines are long overdue. There has been troubling recent pattern of erosion of the openings for employment based permanent and temporary employment. For example, the Department of Labor has recently taken over the determination of the prevailing wage for permanent immigration petitions from the states. This process has had the practical effect of adding 15 days to one additional month of time before a green card may be petitioned for. Similarly, the USCIS and department of labor have recently tag teemed to increase the wait time and burden of proof for a valid H-1B petition. What is needed is needed from a reformed employment based system is clarity of the parameters and decisive enforcement rather than inconsistent obligat5ions and enforcement of the immigration laws.
Stand up and be heard
In order for Comprehensive immigration reform to truly be comprehensive, representatives from all immigrant communities, representatives from immigration reliant businesses as well as immigration professionals need to make their voices heard. I urge all persons with as stake in the battle to stand up and be heard in Washington D.C. as well as the local level. Only if every party has a seat at the table of reform can fair legislation for all foreign nationals and for United States citizens be won.

United States Supreme Court Protects Aliens' Right to Judicial Review of Motions to Re-open.

The Supreme Court of the United States recently handed down a well reasoned and unanimous opinion defending an Alien's right to have a motion to re-open heard by the Federal Circuit Courts. The practical effect of this decision is to re-affirm what has become the general operating procedure for immigration practitioners in the federal court system. In fact, only two federal circuits felt compelled to comment on the issue previously, and in both instances upheld the right of a motion to re-open to be heard by the federal circuits. The legal conclusion reached is that motions to re-open removal proceedings are not purely a discretionary relief, but rather a right with a deeply rooted tradition in American jurisprudence.

Case Background

In the case before the Supreme Court, Kucana v. Holder 533 F. 3d 534 (January 20, 2009), Mr. Kucana, a citizen of Albania overstayed the time permitted on his visa while visiting on business. Seeking relief from removal, Mr. Kucana applied for asylum. The immigration iudge hearing his claim deemed him to be removable and ordered him to later appear at an immigration hearing to determine the merits of his asylum claim Mr. Kucana later failed to appear for the hearing, stating that he had overslept. The immigration judge ordered him removed from the country even though he was not present at the hearing. Mr. Kucana filed a motion to the immigration judge to re-open his case because he had overslept. The immigration judge denied his motion to re-open. His subsequent appeal to the Board of Immigration Appeals (BIA) was also denied.

Years later, Mr. Kucana again appealed to the BIA to re-open his case, arguing that the conditions in his native Albania had worsened and that his case should be heard in light of the new evidence. The BIA again denied his appeal.

Mr. Kucana then appealed to the Federal Circuit Court for the Seventh Circuit, arguing that the BIA had abused its discretion in not re-opening his case. The Seventh Circuit shockingly declined to hear the appeal stating that it lacked jurisdiction to hear discretionary rulings by the BIA.

Mr. Kucana appealed the circuit court's decision to the Supreme Court of the United States. The United States Attorney General, sensing the futility of the Seventh Circuit's position, declined to argue before the Supreme Court in opposition to Mr. Kucana. Instead, an amicus curie, or proponent of the Seventh Circuit's decision argued in place of the Attorney General.

Crash Course in Administrative Agency Law and the Immigration Court System

In order to appreciate the importance of judicial review of motions to re-open before the federal courts, it is necessary to understand the interplay between the immigration courts and the Federal Circuits.

The immigration courts are not the traditional federal court that you and I may think of as portrayed in the movies. In fact, the immigration court system is a branch of the Department of Justice, headed by the Attorney General of the United States. Both the EOIR Immigration Court (trial court) as well as the Board of Immigration Appeals (BIA or appeals court) are underneath the Department of Justice. This is part of the reason why Attorney General Eric Holder is the named opponent of Mr. Kucana in the case we are discussing here.

The Department of Justice is a federal agency. For the purposes of this discussion, a federal agency is an entity to which Congress gives powers enabling the agency to enforce laws on a specific subject. Federal agencies, such as the Department of Justice are often given leeway or "discretion" to create regulations that specify how the broad general laws of congress will be applied to specific situations. For example, the immigration courts are given discretion to overlook certain criminal convictions that an immigrant may have, and grant asylum to the Alien. This type of relief is "discretionary" and is left for the immigration court and the BIA to decide. Discretionary relief cannot be appealed out of the immigration court system. In other words, the BIA is the highest court that will hear appeals on discretionary relief.

Decisions on certain traditional rights, such as motions to re-open a case because of new evidence, can be appealed out of the immigration court system to the federal circuit courts and eventually the US Supreme Court. The federal circuit courts are an entirely different branch of the federal government, not controlled by the Department of Justice or the Attorney General. Although the federal courts normally do not interfere with the decisions made by federal agencies, the federal courts will hear cases that were decided by agencies when the agencies make decisions regarding certain fundamental rights or raise questions of federal law.

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Representing a refugee before an Immigration Judge (IJ) in removal proceedings gives rise to an advantageous form of relief from removal - asylum. One of the main obstacles in removal proceedings is that the Respondent carries the burden of proof to establish eligibility for relief. This burden may be quite onerous depending on your client's circumstances. But if your client came to the U.S. as a refugee, applying for asylum before the IJ can level the playing field by shifting the burden to the government to prove the case is not meritorious. This can be a high hurdle for the government depending on which country your client is from.

In applying for asylum in Immigration Court, the Respondent has the initial burden to show that she is a refugee. The Respondent must proof past persecution or a well-founded fear of future persecution in their country of nationality. The Respondent's own testimony is sufficient evidence to meet this burden. Additionally, showing that your client was previously approved for refugee status is easy and adds probative evidence to the claim. Once your client establishes past persecution, well-founded fear of persecution on the basis of the original claim is presumed.

This presumption shifts the burden to the government to prove by a preponderance of the evidence that there has been a fundamental change in circumstances in the alien's country of nationality or that the respondent can avoid future persecution by relocating to another part of the country of nationality. If the country is still experiences the strife that brought the alien to the United States in the first place, the government may be unable to meet this burden. The Department of State's country reports are excellent resources to determine whether such strife is still ongoing.