Michigan Court of Appeals rules that Padilla is not retroactive

The Michigan Court of Appeals has issued a decision that a new rule of criminal procedure announced by the U.S. Supreme Court is not retroactive, and thus only applies to current and future cases.

The U.S. Supreme Court, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), ruled that a criminal defense attorney must advise a defendant whether or not a guilty plea or a no-contest plea will have adverse consequences to the defendant’s immigration status.

In the Michigan case, People of Michigan v. Isaac Alvarez Gomez, the defendant is a permanent resident who pleaded no contest to possession with intent to deliver marijuana.  Four years later, the Department of Homeland Security initiated removal proceedings against the defendant.

After the U.S. Supreme Court issued the Padilla decision, the defendant in the Michigan case requested that his no-contest plea and his conviction be withdrawn, because his criminal defense attorney did not inform him of the immigration consequences of his plea.

The Michigan Court of Appeals ruled that Padilla does not apply to convictions that occurred prior to the Padilla ruling on March 31, 2010.

This case or other similar cases in Michigan might be appealed to the Michigan Supreme Court.

Courts around the country are split on the issue of whether Padilla is retroactive – whether the ruling applies to convictions issued prior to the Padilla ruling.

Access the decision here:  People of Michigan v. Isaac Alvarez Gomez

BIA issues ruling regarding drug conviction

The Board of Immigration Appeals (BIA) recently issued a ruling regarding a permanent resident in removal proceedings who had been convicted of possession of marijuana with intent to distribute under a state law.  Although the state law conviction was a misdemeanor, the U.S. government charged him with having committed an aggravated felony under federal law.

At issue in the case is whether the respondent qualifies under a federal exception to the aggravated felony determination if the crime involved a small amount of marijuana for no remuneration, or payment.

The BIA ruled that the respondent must show that he qualifies for the exception, and that he may present evidence outside of the record of conviction to establish that the crime involved a small amount of marijuana and no payment.  Examples of such evidence could include police reports and crime lab reports.

Although the BIA did not rule specifically on the quantity of marijuana that would qualify as a “small amount,” the Board indicated that 30 grams or less could generally be considered as a “useful guidepost in determining whether an amount is ‘small.'”

Access the decision here:  Matter of Wilmer Rodrigo CASTRO RODRIGUEZ, Respondent

Judge orders DOJ to release emails

“Trust everybody, but cut the cards.”  Thus began the opinion of Judge Jed Rakoff, of the U.S. District Court for the Southern District of New York, ordering the U.S. Department of Justice to release some of the contents of four emails sent between federal officials and their lawyers.  The judge ordered the information to be released by February 13, 2012.  The judge issued his opinion in response to a lawsuit filed by several immigrants’ rights groups.

In a case argued before the Supreme Court in 2009, Nken v. Holder, 129 S. Ct. 1749 (2009), attorneys representing the U.S. government stated to the Supreme Court that aliens deported from the United States while their appeals are still pending, and who later win their court cases, will be allowed to return to the United States and to get back the immigration status that they had prior to their deportation.

The plaintiffs in the New York case had filed a request under the Freedom of Information Act, seeking documents related to the U.S. government’s procedures for bring back deported aliens who later won their court cases on appeal.  In response, the U.S. government issued a series of emails, but most of the information was redacted, or blacked out.

Government lawyers made several arguments in defense of the decision not to release the information contained in the emails.  Judge Rakoff rejected all of them, and ordered the government to release certain information from each of the four emails.

Supreme Court will hear arguments April 25 in Arizona immigration case

The U.S. Supreme Court will hear oral arguments on April 25 in Arizona v. United States, the controversial case surrounding Arizona’s S.B. 1070, a state law that requires, among other things, the following actions in Arizona:

  • Police who make any stop or arrest, and who have a “reasonable suspicion” that a person is in the United States without permission, must determine whether the person has a right to be in the United States, and if police arrest a person, they may not release them until the person’s legal status has been verified by the federal government.
  • Any person in Arizona who is not a United States Citizen must obtain and carry documents proving legal status.  Any such person who does not do so is guilty of a crime.
  • Any undocumented person who applies for a job or works in Arizona is guilty of a crime.
  • Police are authorized to arrest without a warrant any person whom the officer believes has committed a crime that would subject the person to deportation, even if the crime was committed outside Arizona.

The United States Court of Appeals for the Ninth Circuit has blocked these 4 provisions.  The State of Arizona appealed the Ninth Circuit’s decision, and the Supreme Court has agreed to hear the case.

Supreme Court Justice Elena Kagan will not be taking part in deciding the case.  That means that only 8 Justices will decide the case.  In the event of a 4-4 split, the Ninth Circuit’s decision will stand.

The case sets up a showdown of sorts between Arizona Governor Jan Brewer, who contends that S.B. 1070 is simply an attempt to allow Arizona law enforcement to cooperate with federal immigration officials, and the Obama Administration, which contends that Arizona has attempted to write its own immigration laws – something that only the federal government has the power to do.

DHS extends TPS for Salvadorans

The U.S. Department of Homeland Security has extended Temporary Protected Status (TPS) for 18 months for eligible persons from El Salvador who are present in the United States.  Persons from El Salvador who are currently in TPS status must re-register with U.S. Citizenship and Immigration Services (USCIS) on or before March 12, 2012.

TPS re-registrants are eligible to apply for a new Employment Authorization Document (EAD), which will be valid until September 9, 2013.

If you have any questions about TPS or the procedures required to re-register, please contact a qualified immigration attorney.

DHS proposes helpful change to processing of some waivers

On January 6, 2012, the U.S. Department of Homeland Security (DHS) proposed changes in how some waiver applications will be processed. Please note that at this time, the changes are not yet in effect. We do not know when the changes will take effect, but we are hopeful that they might take effect later this year.  Please consult with a knowledgeable immigration attorney before taking any action.

The Current Process

If you entered the United States without permission, and you have a spouse or a parent who is a U.S. citizen, in most cases you must leave the United States and apply for an immigrant visa in another country, usually your home country. Unfortunately, under U.S. immigration laws, when you leave the United States, you are barred from re-entering the United States for a certain period of time, usually 10 years (and in certain cases, 3 years). You may apply for an immigrant visa at the U.S. Consulate in another country, but you must also apply for a waiver of your unlawful presence in the United States. In order to be granted the waiver, you must establish that it would be an extreme hardship for your spouse and/or parent if you are not allowed to return to the United States.  The process can take a long time, and sometimes requires you to be outside the United States for a year or more.

The Proposed Changes

If you have a U.S. citizen spouse and/or a U.S. citizen parent, and if you need a waiver only for your unlawful presence in the United States, DHS has proposed to allow you to apply for a provisional waiver while you are still in the United States.  If DHS grants the provisional waiver, then you still must travel outside the United States and apply for an immigrant visa and the waiver at the U.S.  consulate in the other country.

We hope that the proposed change will do a couple of good things for you, if you are eligible:

1.  The proposed change will allow you to apply for the provisional waiver and see if DHS approves the provisional waiver before you leave the United States.

2.  The proposed change will shorten the length of time that you will need to be outside the United States.

Please consult with a knowledgeable immigration attorney before taking any action.

BIA decision affects immigrants’ rights during interrogations

The Board of Immigration Appeals (BIA) recently issued a decision that has important consequences for non-citizens who are questioned by immigration officials.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA ruled that immigration officials who are questioning non-citizens are not required to advise them that they have the right to be represented by a lawyer, and are not required to advise non-citizens that any statements they make during the questioning may be used against them, until they begin formal court proceedings against them.  Formal court proceedings begin only when immigration officials file a charging document called a Notice to Appear, Form I-862, in Immigration Court.

Matter of E-R-M-F- & A-S-M- stands for the proposition that immigration officials do not have to advise non-citizens of their rights until the officials have filed the Notice to Appear in Immigration Court.

In this case, immigration officials questioned a non-citizen who was a Lawful Permanent Resident (green-card holder).  The person told the officials he had tried to help another person enter the United States illegally.  Later that day, officials presented the non-citizen with the Notice to Appear, Form I-862.  The officials filed the Notice to Appear in Immigration Court more than a month later.  According to the BIA, the formal proceedings against the alien did not begin until immigration officials filed the Notice to Appear in Immigration Court, more than a month after they questioned the non-citizen.

As a result of this case, it appears clear that in a large majority of situations where immigration officials question non-citizens, the officials will not be required to notify non-citizens that they have a right to a lawyer and that their statements may be used against them.

For more information, see:

Recent DHS Memos on Prosecutorial Discretion

The U.S. Department of Homeland Security (DHS) has published a few memos in recent months on the topic of “Prosecutorial Discretion.”  Some confusion may exist in your communities about what these memos mean.

On June 17, 2011, John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), which is a part of DHS, issued a memo in which he provided guidance to ICE officials about how to exercise Prosecutorial Discretion.

But first, what exactly is “Prosecutorial Discretion”?  As John Morton writes in his June 17 memo, “prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual.”  Basically, Prosecutorial Discretion is the choice that DHS officials have in each individual case to make a decision that will result in a better result for an immigrant.

For example, an ICE official might decide to not arrest a non-citizen who appears to be in the United States without permission.  An ICE attorney might decide to not put a non-citizen into Removal Proceedings in Immigration Court.  DHS might decide not to deport an individual who is subject to a final order of removal from the United States.

It is important to understand that the recent memos are NOT offering an amnesty program.  They do NOT provide an automatic path for a person to obtain a green card or employment authorization.  It is also important to understand that there might be some dishonest people in your communities who offer to get you a green card or an employment authorization card for a substantial cost.  Beware of people offering you green cards or employment cards as a result of the recent memos.  They may be trying to take your money and trick you.  The recent memos do NOT offer any kind of program that you can sign up for.

On August 18, 2011, Janet Napolitano, Secretary of DHS, issued a letter stating that government officials will review the cases of the approximately 300,000 people who are in removal proceedings in Immigration Courts across the country.  Secretary Napolitano stated that the officials will identify certain cases that might be appropriate for Prosecutorial Discretion.

If you have questions about the legal effects of the recent memos on Prosecutorial Discretion, or about any legal aspects of your immigration case, you should contact a qualified immigration lawyer.  You should NOT seek legal advice from a notario or an immigration consultant.

For more information, please view the following documents:

June 17, 2011 memo regarding Prosecutorial Discretion from John Morton, Director, ICE (English)

August 18, 2011 letter from Janet Napolitano, Secretary, DHS (English)

August 20, 2011 Consumer Advisory from the American Immigration Lawyers Association (AILA) (English and Spanish)

U.S. launches new program against immigration fraud

The New York Times reports that the U.S. government has begun a new campaign to protect immigrants from people posing as immigration lawyers.

Often referred to as “notarios” by members of the Latino community, people engaged in the unauthorized practice of law – posing as lawyers and submitting applications to immigration officials on behalf of their immigrant victims – often cause irreparable damage to their victims, often causing immigrants to be deported because of their unlawful actions.

Please click here to read the article from the New York Times.