Reckless Conduct Due to Intoxication Can Constitute a Crime Involving Moral Turpitude

Criminal convictions can be detrimental to non-citizens; some criminal offenses make a non-citizen ineligible for immigration benefits while others require an alien to file a waiver. A non-citizen who has been convicted of committing a crime involving moral turpitude (also commonly referred to as CIMT) is ineligible to receive a visa and barred from admission to the United States. See INA §212(a)(2)(A)(i)(I). What criminal conduct involves moral turpitude? Neither the Immigration and Nationality Act (INA) nor the Federal Regulations define the term “moral turpitude”. The Attorney General has held “moral turpitude” is intrinsic to an offense that necessarily involves 'reprehensible conduct' committed with some form of 'scienter,' such as specific intent, knowledge, willfulness, or 'recklessness'. Matter of Leal, 26 I&N Dec. 20, 21 (BIA 2012) citing Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n.1 and 706 n.5 (A.G. 2008).

In the Matter of Leal, 26 I&N Dec. 20 (BIA 2012), the Board of Immigration Appeals (BIA) recently considered “whether recklessly endangering another person with a substantial risk of imminent death' is a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act (INA) even though recklessness is defined to include unawareness of a risk created by the actor resulting from voluntary intoxication.” Id. at 20. The respondent in the Matter of Leal had been convicted under Arizona criminal law of “recklessly endangering another person with a substantial risk of imminent death.” Id. at 22 citing Ariz. Rev. Stat. Ann. §13-1201(A). To evaluate whether the respondent's criminal conduct involved moral turpitude, the BIA used the categorical approach “in which the law defining the respondent's offense of conviction is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a 'realistic probability' of being prosecuted thereunder.” Id. citing Matter of Silva-Trevino, 24 I&N at 689-90, 696-98. Under the categorical approach, the adjudicator begins by reviewing the criminal statute to determine if all the prohibited conduct involved moral turpitude.

The BIA first addressed whether the respondent's conviction for endangerment had the requisite scienter. At the time the respondent was convicted, Arizona law defined “recklessly” to mean:

that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.

Id. citing Ariz. Rev. Stat. Ann. §13-105(9) (2006). The BIA found the first two sentences of Arizona's definition of “recklessly” conform to “the familiar common law rule that recklessness means a conscious disregard of a substantial and unjustifiable risk, constituting a gross deviation from the standard of conduct a reasonable person would observe under the circumstances.” Id. at 22-23. However, Arizona's definition of “recklessly” expanded “the concept of recklessness to also encompass a subjective ignorance of risk resulting from voluntary intoxication.” Id. at 23.

The respondent relied upon this deviation from the common law definition of “recklessly” to argue his conviction was not for a crime involving moral turpitude. The respondent argued “the voluntary intoxication component of Arizona's recklessness standard does not satisfy the corrupt 'scienter' requirement in Matter of Silva-Trevino because it does not require a conscious disregard of a known risk.” Id. Effectively, the respondent argued the voluntary intoxication component included punishment for conduct that did not involve moral turpitude, because a person could not have consciously disregarded a substantial and unjustifiable risk if he or she was intoxicated. As such, moral turpitude was not part of all the offenses for which there was a realistic probability the respondent would be prosecuted under Arizona's endangerment statute. Id. However, the BIA disagreed with the respondent's assertion. Id.

The BIA relied on prior decisions which held “recklessness is a culpable mental state for moral turpitude purposes where it entails a conscious disregard of a substantial and unjustifiable risk posed by one's conduct. Id. See Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553-554 (BIA 2011) aff'd 682 F.3d 513 (6th Cir. 2012); Matter of Franklin, 20 I&N Dec. 867, 869-71 (BIA 1994) aff'd 72 F.3d 571 (8th Cir. 1995); Matter of Wojtkow, 18 I&N Dec. 111, 112-13 (BIA 1981); and Matter of Medina, 15 I&N Dec. 611, 613 (BIA 1976) aff'd sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977). In the Matter of Leal, the Board specifically “concluded that an actor who fails to perceive a manifest risk of harm solely because of voluntary intoxication is no less culpable than an actor who consciously disregards a known risk.” Id. The BIA stated “treating voluntary intoxication as morally equivalent to recklessness embodies the sound principle that effectively choosing to become unaware of an obvious and unreasonable risk by deliberately impairing one's own mind is a culpable act, akin to a conscious disregard of consequences.” Id. at 24. As such “recklessness arising from voluntary intoxication qualifies as a form of 'scienter' within the meaning of Silva-Trevino.” Id. at 23.

The BIA next addressed “whether 'recklessly endangering another person with a substantial risk of imminent death' satisfies the 'reprehensible conduct' requirement.” Id. at 24-25. In the Matter of Ruiz-Lopez, the BIA concluded a crime involved moral turpitude if it was “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Ruiz-Lopez, 25 I&N Dec. at 553. The BIA was “convinced that recklessly exposing another person to a 'substantial risk of imminent death' is morally turpitudinous because it is a base act that transgresses the socially accepted rules of morality and breaches the individual's ethical duty to society.” Matter of Leal, 26 I&N at 25. As the BIA aptly noted, “one of the most fundamental (and least onerous) duties a man owes to his community and his fellow man is that he will take reasonable care to avoid causing the death of others.” Id. A person “who breaches that duty by consciously disregarding a known risk of harm or by deliberately impairing his own capacity for conscious judgment has [ ] exhibited a base contempt for the well-being of the community, which is the essence of moral turpitude.” Id. This is true regardless of whether a person was killed or suffered serious bodily injury as a result of the reckless conduct. Id.

When a non-citizen is arrested, it is important to not only consult an experienced criminal attorney, but also an experienced immigration attorney especially before accepting a plea bargain. A criminal defense attorney's goal in criminal proceedings is often to minimize the punishment. However, in the immigration context, a criminal conviction can have detrimental results including, but not limited, the denial of future immigration benefits, initiation of removal proceedings, limits relief available in removal proceedings, etc. An experienced immigration attorney will fight on your behalf to minimize the immigration consequences of a criminal conviction.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

What is a Serious Non-Political Crime?

An alien who may otherwise be eligible for asylum or withholding of removal may be barred from obtaining asylum and withholding of removal when “there are serious reasons for believing that the alien committed a serious nonpolitical crime”, INA §208(b)(2)(A)(iii), before arriving in the United States. See INA §208(b)(2)(A)(iii). See also INA §241(b)(3)(B)(iii). Neither the Immigration and Nationality Act (INA) nor the Federal Regulations provide any further guidance as to what constitutes serious reasons for believing that the alien committed a serious nonpolitical crime.” INA §208(b)(2)(A)(iii). See also INA §241(b)(3)(B)(iii); and 8 C.F.R. §1208.13(c). How does an alien know whether he or she would be barred from asylum for committing a serious nonpolitical crime before their arrival to the United States? The Board of Immigration Appeals (BIA) recently provided some guidance as to how to assess whether serious reasons exists to believe the asylum applicant committed a serious nonpolitical crime in the Matter of E-A, 26 I&N Dec. 1 (BIA 2012).

The BIA had previously held when “evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common law character, which would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature.” Matter of McMullen, 19 I&N Dec. 90, 97-98 (BIA 1984) aff'd McMullen v. Immigration and Naturalization Service, 788 F.2d 591 (9th Cir. 1986). This requires the decision-maker to balance the seriousness of the criminal acts against the political nature of the conduct to decide whether the criminal aspect of the asylum applicant's conduct overshadows its political nature. Matter of E-A-, 26 I&N at 3. See also INS v. Aguirre-Aguirre, 526 U.S. 415, 429-431 (1999). As such, the determination of whether an asylum applicant has committed a serious nonpolitical crime is made on “case-by-case basis considering the facts and circumstances presented.” Id.

The first step in the inquiry into whether the asylum applicant's conduct constitutes a serious nonpolitical crime is to determine whether the criminal conduct was of “an atrocious nature.” Matter of McMullen, 19 I&N at 98. Conduct that is atrocious in nature is considered a serious nonpolitical crime. While there is no exhaustive list of what criminal conduct is considered atrocious, murder and terrorism have specifically been found to be atrocious in nature. Id. at 4. Criminal conduct that is considered atrocious in nature will result in a finding that the asylum applicant is statutorily barred from asylum and/or withholding of removal. As such, the only remaining inquiry would be whether serious reasons exist to believe the asylum applicant engaged in said conduct.

If the criminal conduct was not of “an atrocious nature”, Id., the next step in the inquiry is to “balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the applicant's acts outweighs their political character.” Matter of E-A-, 26 I&N at 3 citing Aguirre-Aguirre, 526 U.S. at 429-431. There is no requirement that serious physical harm occurs for conduct to rise to the level of a serious nonpolitical crime. Id. at 5. However, “the fact that civilians were placed at risk of serious harm is a significant consideration in the analysis.” Id. To assess the political nature of the criminal conduct, the adjudicator must consider whether:

(1) the act or acts were directed at a governmental entity or political organization, as opposed to a private or civilian entity;
(2) they were directed toward modification of the political organization of the State; and
(3) there is a close and direct causal link between the crime and its political purpose.

Id. at 3 discussing McMullen v. INS, 788 F.2d 591, 597-98 (9th Cir. 1986) overruled on other grounds by Barapind v. Enomoto, 400 F.3d 744, 751 n.7 (9th Cir. 2005). See also Efe v. Ashcroft, 293 F.3d 899, 905 (5th Cir. 2002). It is important to keep in mind “even where there is “a clear causal connection, a lack of proportion between means and ends may still render a crime nonpolitical.” Id. citing Aguirre-Aguirre, 526 U.S. at 432. See also Efe v. Ashcroft, 293 F.3d at 906.

The final step in the inquiry is to determine whether there is serious reason to believe the asylum applicant committed a serious nonpolitical crime. There is no requirement that the asylum applicant be convicted of a serious nonpolitical crime. Rather, the BIA has interpreted the phrase “serious reasons for believing” to be equivalent of the probable cause standard. Id. An asylum applicant's own testimony can be sufficient to establish probable cause that he or she engaged in conduct that would constitute a serious nonpolitical crime. Id.

In the Matter of E-A, the BIA “agreed with the applicant that the conduct in this case did not involve acts of an 'atrocious nature'.” Id. at 4. After weighing the seriousness of the applicant's criminal conduct against its political nature, the BIA concluded “the applicant's criminal conduct was disproportionate to its political character and that he therefore committed a serious nonpolitical crime.” Id. While the BIA found “some of the acts, such as throwing rocks, would not alone meet the definition of a serious nonpolitical crime”, these actions coupled together “with the applicant's other actions, particularly the burning of buses and cars, the activity reaches the level of serious criminal conduct that would trigger the bar under sections 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) of the Act.” Id. The BIA focused on the inherent substantial risk of death or serious bodily harm associated with arson as well as the fact that the applicant's destructive conduct was disruptive to day-to-day life. Id. at 5. The BIA further concluded the asylum applicant “was not a mere bystander during these events and was not simply a group member who was absent and disengaged from these activities while they were being perpetrated”, Id. at 7, as “his involvement and participation in the group's criminal acts materially contributed to its ability to accomplish the destructive behavior.” Id.

In balancing the asylum applicant's criminal conduct with its political nature, the BIA focused on the fact that “while the PDCI group's conduct had an overall political objective of damaging the reputation of the opposition party, its disruptive acts were not directed at deterring oppressive action of a ruling governmental entity,” Id. at 5, but rather “the harmful acts were aimed at members of the general public, who did not appear to be allied with any particular political party.” Id. The BIA also focused on the fact that the asylum applicant's conduct was part of an effort to discredit the political opposition “in the minds of the public by engaging in deceptive misconduct that the group hoped would be attributed to the opposing party”, Id. at 6, rather than direct opposition to specific government policies. Id. As such, the causal link between the criminal conduct and the political purpose is less clear and direct. Id.

The BIA concluded the “circumstances and cumulative effect of the multiple violent, destructive, and destabilizing acts, particularly the intentional acts of arson that placed innocent civilians at risk of serious harm, are sufficient to trigger the serious nonpolitical crime bar.” Id. at 8. Thus, the applicant in the Matter of E-A was not eligible for asylum and/ or withholding of removal. This decision emphasizes the need to retain an experienced immigration attorney to assist you in filing an I-589 Application for Asylum and for Withholding of Removal. Activities and conduct related to your fear of persecution could at the same time result in a finding you are ineligible for asylum and withholding of removal. An experienced immigration attorney can ensure the proper corroborative evidence and legal arguments are presented on your behalf to show either there is insufficient evidence to meet the serious reason to believe standard or the conduct does not rise to the level of serious nonpolitical crime.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Is Internal Relocation Available to an Asylum Seeker?

An asylum applicant who demonstrates he or she has suffered past persecution is presumed to have a well-founded fear of persecution if forced to return to his or her country of citizenship or last habitual residence. See 8 C.F.R. §1208.13(b)(1). Once the asylum applicant has established he or she suffered past persecution, the burden of proof shifts to the Department of Homeland Security (DHS) to rebut this presumption. The DHS must rebut this presumption by establishing by a preponderance of the evidence that “there has been a fundamental change in circumstances”, 8 C.F.R. §1208.13(b)(1)(i)(A), or the alien “could avoid future persecution by relocating to another part of the applicant's country of nationality.” 8 U.S.C. 1158(b)(1)(i)(B).

In the Matter of M-Z-M-R, 26 I&N Dec. 28 (BIA 2012), the Board of Immigration Appeals (BIA) recently considered whether the DHS had met its burden to demonstrate the respondent “'could avoid future persecution by relocating to another part of [his] country of nationality' and that 'under all the circumstances, it would be reasonable to expect [him] to do so' pursuant to 8 C.F.R. §1208.13(b)(1)(i)(B). Matter of M-Z-M-R, 26 I&N Dec. 28, 29 (BIA 2012) citing 8 C.F.R. §1208.13(b)(1)(i)(B). The BIA had found the respondent in the Matter of M-Z-M-R had suffered past persecution; however, the issue was whether the respondent could safely relocate to another part of Sri Lanka and whether such relocation would be reasonable under the circumstances.

The Board held a two-step inquiry is required to “determine an applicant's ability to internally relocate and the reasonableness of expecting such relocation.” Id. at 32. As an initial matter, “for an applicant to be able to internally relocate safely, there must be an area of the country where he or she has no well-founded fear of persecution.” Id. at 33. See also Tendean v. Gonzales, 503 F.3d 8, 11 (1st Cir. 2007). The BIA has held “because the purpose of the relocation rule is not to require an applicant to stay one step ahead of persecution in the proposed area, that location must present circumstances that are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.” Id. This means the DHS must identify a specific area within the country of return where the alien's risk of future persecution is less than the well-founded fear level not merely a vague assertion the applicant could relocate within the country. Id. Assuming there is a specific area within the country where the alien's fear of persecution would no longer be well-founded, the DHS must also demonstrate the region is practically, safely, and legally accessible to the alien. Id.

Once the “internal relocation analysis shows that an applicant is able to internally relocate, the Immigration Judge must next determine whether 'under all the circumstances, it would be reasonable to expect the applicant to do so.'” Id. at 34 citing 8 C.F.R. §1208.13(b)(1)(i)(B). In determining whether internal relocation is reasonable, the Immigration Judge (IJ) must balance several factors including, but not limited to, “whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.” 8 C.F.R. §1208.13(b)(3). It is important to note that these “factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.” Id. This means an IJ cannot merely deny an application for asylum, because there may be a safe place where the alien could relocate within his or her country, but rather must explore others factors to determine whether relocation would be reasonable. As such, “even if an applicant is able to relocate safely, it may nevertheless be unreasonable to expect the applicant to do so.” Matter of M-Z-M-R, 26 I&N at 35. See also 8 C.F.R. §1208.13(b)(1)(iii)(A)-(B).

This decision underscores the need to thoroughly document your application for asylum. It is important to not only document your claim for asylum as fully as possible, but also be prepared if the DHS attempts to establish by a preponderance of the evidence that either you no longer have a well-founded fear of future persecution or could reasonably relocate to another part of the country of return. See 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B). An experienced immigration attorney will not only ensure your I-589 Application for Asylum and for Withholding of Removal, but also assist you in thoroughly documenting and presenting your claim to the Asylum Office and/ or Immigration Court. Contact our office today if you or a loved one wishes to seek asylum in the United States.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

The BIA May Use Post-Departure Bar to Deny Motions Requesting Sua Sponte Reopening

The Court of Appeals for the Third Circuit (the “Third Circuit”) recently held the Board of Immigration Appeals (the “BIA”) “did not err when it concluded that it lacked jurisdiction to consider [an alien's] motion to reopen sua sponte”, Desai v. Attorney General of the United States, No. 11-3229 (August 21, 2012), after the alien's departure from the United States. Id. The respondent was admitted as a lawful permanent resident in 1980. Id. He was subsequently arrested on numerous occasions and convicted of committing at least twelve crimes. Id. He was placed in removal proceedings in 2008 based upon convictions for possession of a controlled dangerous substance and theft in the third degree. Id. The respondent conceded removability as charged, but sought relief from removal under the Convention Against Torture (the “CAT”). Id. The Immigration Judge (the “IJ”) concluded the respondent failed to establish eligibility for CAT and the respondent was ordered removed. This determination was subsequently affirmed by the BIA and Third Circuit. Id.

A year after the respondent was removed from the United States his conviction for possession of a controlled substance was vacated and set for a new trial. Id. The respondent subsequently filed a motion to reopen his removal proceedings with the BIA. Id. This motion was filed well outside the ninety day window for filing a timely motion to reopen. See 8 U.S.C. §1229a(c)(7)(C), 8 C.F.R. §1003.2(c)(2), and 8 C.F.R. §1003.23(b)(1). The respondent's motion to reopen requested the BIA exercise its sua sponte authority to reopen removed proceedings. Desai, supra. Pursuant to 8 C.F.R. §1003.2(a) “the Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” 8 C.F.R. §1003.2(a). The BIA denied the respondent's motion to reopen concluding it lacked jurisdiction due to the application of the post-departure bar found in the Federal Regulations. The post-departure bar provides

a motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.

8 C.F.R. §1003.2(d).

The respondent filed a timely petition for review with the Third Circuit. The respondent relied on the Third Circuit's decision in Prestol Espinal v. Attorney General, 653 F.3d 213 (3d Cir. 2011). In Prestol Espinal, the Third Circuit had concluded that the post-departure bar was “invalid to the extent it conflicted with a statute that grants aliens the right to file one motion to reopen under certain conditions.” Prestol Espinal, 653 F.3d at 224. The effect of the post-departure bar was to “nullify a statutory right.” Id.

However, the respondent's reliance on the Third Circuit's decision in Prestol Espinal was misplaced. While the Third Circuit's decision “was stated broadly and seemed to suggest that the post-departure bar was invalid in its entirety, [the Court's] explanation made clear that [it] had only statutory motions to reopen or reconsider in mind.” Desai, supra. The Third Circuit had determined the post-departure bar found in the Federal Regulations conflicted with Congress' clear intent in regards to motions to reopen for the following reasons:

first, the plain text of the statute provides each “alien” with the right to file one motion to reopen and one motion to reconsider. Second, the importance and clarity of this right has been emphasized by the Supreme Court in [Dada v. Mukasey, 554 U.S. 1, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008)]. Third, Congress specifically considered and incorporated limitations on this right and chose not to include the post-departure bar, despite its prior existence in regulation. Fourth, the post-departure bar would eviscerate the right to reopen/reconsider by allowing the government to forcibly remove the alien prior to the expiration of the time allowance. Fifth, Congress included geographic limitations on the availability of the domestic violence exception, but included no such limitation generally. Sixth, Congress specifically withdrew the statutory post-departure bar to judicial review in conformity with IIRIRA's purpose of speeding departure, but improving accuracy.

Id.

In Prestol Espinal the Third Circuit did “not discuss, or even acknowledge motions to reopen that are filed out of time or otherwise disqualified under the statutory scheme.” Id. These motions may still be considered by the BIA in the exercise of the agency's sua sponte authority. The authority is not set forth in the Immigration and Nationality Act (the “INA”), but rather the Federal Regulations. As such, “the concern driving [the Third Circuit's] holding in Prestol Espinal — that the post-departure bar undermines an alien's statutory right to file one motion to reopen — does not extend to [motions to reopen sua sponte, where neither that statutory right nor congressional intent is implicated.” Id.

The Desai decision further stresses the need to file a timely motion to reopen to ensure the decision on the merits of the case rather than a procedural technicality. This decision also underscored the importance of fighting deportation/removal to the extent possible in the United States. This can include seeking post-conviction relief for criminal convictions. If you or your loved one is in removal/ deportation proceedings, it is imperative to retain an experienced attorney.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Secure Communities - Well Meaning, But Overreaching

I typically post blog entries regarding decisions from the Board of Immigration Appeals (the “BIA”) and Court of Appeals. However, I recently read an article in Newsday by Victor Manuel Ramos entitled “LI leads state in undocumented-immigrant deportations” and wanted to take the opportunity to discuss the immigration enforcement program known as Secure Communities. This article discussed how the impact of Immigration and Customs Enforcement's (the “ICE”) Secure Communities program had in the State of New York. You can read the article by following this link: “LI leads state in undocumented-immigrant deportations”

Secure Communities is a federal information sharing program that “checks fingerprints and personal data of all people facing criminal charges against a federal database that tracks immigrants sought by the federal government.” Ramos, Victor Manuel, “LI leads state in undocumented-immigrant deportations” (September 2, 2012). According to the 2008 congressional mandate, the purpose of secure Communities “is to expel 'criminal aliens', those who pose a threat to public safety and repeat immigration violators'.”

While very few would argue with the goal of Secure Communities, the problem is how the program has been implemented. Secure Communities has been criticized for being overbroad, “because it also snares those charged with minor criminal offenses.” Immigrant advocates argue many of the individuals removed are not a threat to public safety or repeat immigration violators. A significant flaw with the program is that an individual is flagged upon arrest, regardless of whether he or she has prior criminal history, before any determination of his or her guilt. As such, individuals who do not meet the enforcement goals behind Secure Communities can be subjected to removal/ deportation from the United States.

In addition, Secure Communities has the potential to “fracture immigrant community relations with police departments.” Undocumented immigrants' “fear of deportation keeps some crime victims and witnesses away from police, allowing criminals to prey on them.” Though police insist that crime victims and witnesses would not face inquiries regarding immigration status, fears will likely be exacerbated if the police are perceived as immigration enforcers.

ICE argues that Secure Communities is “an efficient and fair way to identify and prioritize cases that warrant deportation, replacing a haphazard approach where police would choose which cases were brought to the attention of federal authorities.” Secure Communities has “yielded more than 1 million matches that resulted in more than 212,000 deportations since it was launched in October 2008.” Not every immigrant located through Secure Communities is deported from the United States. According to ICE, the overwhelming majority of those detained through Secure Communities “had committed felonies or misdemeanors”, while others “had defied immigration court orders or returned illegally after deportation.” ICE contends only a small percentage of those detained and/or deported under Secure Communities solely for lacking valid immigration status.

Regardless of whether you agree with the Secure Communities program, its implementation has nonetheless had a significant impact on undocumented immigrants residing in the State of New York particularly in Nassau and Suffolk counties. The program went into effect in several counties throughout the State of New York on January 11, 2011. The Secure Communities program was expanded this year to include all counties within the State of New York including the City of New York. After eighteen (18) months of implementation, the use of the Secure Communities “program has led to 1,254 deportations.” Though encompassing only two (2) of the thirty-one (31) counties to initially participate in the Secure Communities, “Long Island accounted for nearly 44 percent of all immigrants removed from the state since Nassau and Suffolk started participation in February 2011.”

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

U.S.-Born Kids Of Deported Parents Struggle As Family Life Is 'Destroyed'

I stumbled upon an article with this very name by Helen O'Neill, a New York based national writer for The Associated Press. The article was published in Huff Post's “Latinovoices” section and can be found using the following link: http://www.huffingtonpost.com/2012/08/25/us-born-kids-deported-parents_n_1830496.html

Whether one agrees or disagreed with the author's angle of view, the problem of children of illegal immigrants is a pressing and heartbreaking one. Like many other Immigration-law related issues, the problem of broken illegal immigrant families with US-born children does not have a simple solution. In fact, it is always a tragedy, when children have to be separated from their parents, especially so when they end up in foster care. The ill effects of such stress on the young and vulnerable are hard to underestimate. Because most people feel compassion and heartache when confronted with stories of babies torn from the hands of their crying mothers, the issue is very appealing and is, indeed, in sore need of immediate resolution.

However, it is important to remember that, in many cases, the very reason for the problem does not lie in the US Immigration Law. Instead, it is caused by the irresponsible actions of illegal immigrant parents and their indifferent attitude toward the legalization of their status in the USA. All of these parents have either arrived in the country illegally, or remained in the country illegally. Most of them had been driven by economic reasons and a desire for better life, both of which are very understandable. Many of these individuals had been ordered deported or removed from the USA years ago, yet did nothing about it. Some may have had legal avenues to remain in the country, but never pursued them. What was their hope? Was it that they plainly be forgiven and granted legal residency for having born US-citizen children? Did they give any thought whether that would help their noncitizen children they had brought here illegally? After all, such a precedent had already been created during President Reagan's administration. One can only wonder how well that had gone and whether that program indeed created the incentive for people to keep breaking US immigration laws in a hope that they would be eventually legalized. Indeed, had the US laws been changed again in this manner, an even larger “Pandora 's Box” would have been opened. An atmosphere of impunity, permissiveness and total disregard for the laws would again be encouraged.

It is important to remember, that, in most cases, it was by ignoring the US immigration laws that the parents landed themselves and their children in trouble. Under most other circumstances, people would hardly argue that a person, convicted of breaking law, should not face punishment. In many criminal cases, such punishment is often associated with separation of the convicted from his or her family and especially, children as well as society at large. Breaking the law should lead to penalty. Should it not?

For many reasons, life in the US is more attractive for those who decide to come and stay here illegally than life in their respective homelands. It is understandable why many illegal immigrants would want to raise their kids in the US and not in their countries. However, should that mean that anyone can come and stay here illegally, ignoring and breaking the rules, laws and procedures others have to obey? Or, should everyone be required to follow the law?

The only way to make people respect the law of the land is to enforce it. All countries do it, and many deport illegal immigrants and break up families, with utter lack of humanity and total disregard for human rights. See, for example, http://enews.fergananews.com/article.php?id=1658. I think the United States can barely be accused of not providing proper safeguards to the rights of noncitizen. Immigration courts are working hard to ensure that people are not deported from this country without having been afforded an opportunity to present their claim for a relief from deportation, if they have any. The problem of illegal immigration is global. Everywhere there is a better economic opportunity, an influx of illegal immigrants ensues and creates this problem, regardless of the country's efforts to avoid it.

On the other hand, it is also true that children should not be responsible for their parents' actions. A child brought to this country by his or her parent at a young age, as a general rule, had no say in the matter and should not be kept responsible for the actions of the parents. Yet, unde the current law such child continues to suffer from the consequences of the parents' actions for the rest of his or her life in the USA. Having been brought up in this country, they cannot get employment authorization; apply for federal loans and do many other good things Americans take for granted. When they become adults, they often discover that in addition to dealing with normal life difficulties that most young adults have to face, they have to deal with the harsh reality of illegal life, which they had not bargained for. Many of these young adults have no connection to their countries of origin and very little knowledge of their respective cultures and people. Most of them identify themselves as Americans and know no other country. Deporting these people from the United States, though legally permissible, seems to be morally wrong and tantamount to holding children responsible for the illegal actions of their parents.

So, the hardest task is to reconcile these two fundamentally irreconcilable truths and find fair, reasonable, humane and acceptable ways of dealing with the problems of the children of illegal immigrants. There will never be any universal solution, except for one: illegal immigrants should take responsibility for their own lives and most importantly, those of their children they brought here illegally. Such parents should make every legitimate effort early on to obtain legal status in the USA, making such task into their number one priority. In many instances, timely and promptly sought professional legal help will eliminate the danger of heartbreak and family separation in the future.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Refugee Status and Removal Proceedings

The Board of Immigration Appeals (BIA) recently issued a precedent decision that addressed removal proceedings for aliens that entered the United States as refugees. Matter of D-K, 25 I&N Dec. 761 (BIA 2012). In the Matter of D-K, the BIA first determined “that a refugee who has not adjusted status to that of a lawful permanent resident (LPR) may be placed in removal proceedings without a prior determination by the Department of Homeland Security (DHS) that the alien is inadmissible.” Id. This decision overruled prior BIA precedent set in the Matter of Garcia-Alzugaray, which held exclusion proceedings had been improperly initiated against the alien as “the former Immigration and Naturalization Service (INS) failed to terminate the alien's refugee status or determine him to be inadmissible as an immigrant after examination under oath by an immigration officer.” Id. at 763-764 citing Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986). The BIA found the reversal was necessary as the Federal Regulations pertaining to refugees had been “amended to streamline the adjustment process, making the decision whether to interview a refugee seeking permanent resident status a discretionary determination for DHS.” Id. at 764.

The BIA further relied upon the fact that neither the Immigration and Nationality Act (INA) §209 nor the Federal Regulations “explicitly state that termination of refugee status is necessary before an alien is placed in removal proceedings.” Id. In the Matter of Smriko, the BIA relied upon 8 C.F.R. §209.1(e) to conclude “that a refugee who had adjusted status could be placed in removal proceedings even though his status as a refugee was never terminated.” Id. citing Matter of Smriko, 23 I&N Dec. 836, 839-840 (BIA 2005). Specifically, the BIA focused on the fact that INA §239 “refers to 'the alien' and does not distinguish between aliens who are refugees and other aliens.” Matter of Smriko, 23 I&N at 838. As such, the DHS may properly initiate removal proceedings against an alien who is a refugee without taking the preliminary step of determining the alien is inadmissible to the United States.

The second issue addressed by the BIA was whether a refugee placed in removal proceedings should be subject to charges of deportability/ removability or inadmissibility. The BIA determined that when removal proceedings are initiated against an alien who entered the United States as a refugee the charges against the alien in the Notice to Appear should be removability under INA §237 rather than charges of inadmissibility under INA §212. Id. Pursuant to INA §237(a) “any alien in and 'admitted' to the United States shall be removed if the alien falls within one or more specific enumerated classes of deportable aliens.” Id. at 765. An “admission” is defined as “the lawful entry of an alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A). Refugees are admitted into the United States at the discretion of the U.S. Government. Any alien who believes he or she qualifies for refugee status “may apply for 'admission' with the DHS or consular office in the area he or she is located.” Id. at 766 citing 8 C.F.R. §207.1(a) and 8 C.F.R. §207.2(a).

In the Matter of D-K, the BIA acknowledged “the conditional nature of a refugee's status.” Id. at 767 (emphasis in the original). An alien's admission as a refugee is conditional due to its impermanent and contingent nature. The BIA nonetheless specifically held “to the extent that the pertinent language is ambiguous, we believe that a construction recognizing that a 'conditional admission' is nevertheless a form of 'admission' for purposes of section 237(a) of the Act would best comport with the overall structure of the statute.” Id. at 768. In making this conclusion, the BIA focused on the fact that a refugee makes “a lawful entry into the United States after inspection and authorization by an immigration officer.” Id. at 769. While a refugee must be reinspected after a year “for admission in a different status, that of a lawful permanent resident, this requirement does not undermine his or her initial admission as a refugee under section 207 of the Act.” Id. As such, the BIA concluded a refugee was “present in the United States pursuant to a prior admission and any charges in the notice to appear must be based on the grounds of deportability under section 237 of the Act.” Id. Thus, a refugee who ultimately becomes an LPR will be “admitted” twice. The first admission will be a conditional admission as a refugee pursuant to INA §207. The second admission will occur after reinspection and adjustment of status to an LPR pursuant to INA §209(a). After each “admission”, the alien would be subject to removal proceedings under deportability charges not inadmissibility.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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K Visa Derivative Can Only Adjust status Based Upon Marriage Between K Petitioner and K Visa Principal

The Board of Immigration Appeals (BIA) has unequivocally held an alien who entered the United States on a K-4 non-immigrant visa can “only adjust his or her status to that of a lawful permanent resident based on the Petition for Alien Relative (Form I-130) filed by the United States citizen K visa petitioner.” Matter of Jean Ro Saclolo Valenzuela, 25 I&N Dec. 867 (BIA 2012). In the Matter of Jean Ro Saclolo Valenzuela, the respondent's mother married a United States citizen who petitioned for both the respondent and her mother to receive K non-immigrant visas. Id. at 868. The respondent was issued a K-4 non-immigrant visa, which she used to enter the United States on December 28, 2003. Id. She was authorized to remain in the United States until December 27, 2005. Id.

On May 2, 2007, the respondent's mother adjusted her status adjusted her status to a lawful permanent resident (LPR) based upon her marriage to the K non-immigrant visa petitioner. Id. The respondent's Form I-130 filed by the K non-immigrant visa petitioner was denied as the respondent failed to appear for an interview. Id. The respondent subsequently married and sought adjustment of status through her marriage. Id. Though the respondent's Form I-130 had been approved by the Bureau of U.S. Citizenship and Immigration Services (USCIS), the Immigration Judge (IJ) denied her application for adjustment of status. Id. The IJ found the respondent was “ineligible to adjust her status on any basis other than the Form I-130 filed by the K visa petitioner.” Id.

The respondent appealed to the BIA arguing she was eligible to adjust her status based upon her marriage to a United States citizen despite entering the United States with a K-4 non-immigrant visa, because the statutory language of Immigration and Nationality Act (INA) §245(d) was ambiguous. Id. at 869. Pursuant to INA §245(d)

The Attorney General may not adjust [ ] the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216 of this title. The Attorney General may not adjust, under subsection (a) of this section, the status of a nonimmigrant alien described in section 101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) of this title.

INA §245(d). On appeal, the respondent argued the statute only referenced the primary K non-immigrant visa beneficiary. The respondent argued “as long as the principal beneficiary of the K-1 or K-3 visa petition adjusted his or her status in compliance with section 245(d), a derivative beneficiary of the K-1 or K-3 visa holder may adjust status on any valid basis.” Id.

However, the BIA found the language of INA §245(d) was not ambiguous as it “expressly includes 'the minor children' of a principal beneficiary.” Id. Thus, INA §245(d) “applies to any K visa holder, whether a principal beneficiary or a derivative.” Id. While the BIA has previously identified ambiguities in INA §245(d), it has repeatedly found “the language in section 245(d) of the Act is unambiguous to the extent that it clearly precludes a [K visa holder] from adjusting status on any basis other than marriage to the K visa petitioner.” Id. at 870 citing Matter of Sesay, 25 I&N Dec. 431, 433 (BIA 2011). See also Matter of Le, 25 I&N Dec. 541 (BIA 2011).

The respondent further argued “the restrictions on adjusting status apply only to the principal beneficiary of the K visa petition, and that once the principal beneficiary has adjusted status based on his or her marriage to the K visa petitioner, the restrictions are 'lifted' as to any derivative beneficiaries.” Id. However, such an interpretation of the statute would place the K non-immigrant visa derivative beneficiary in a better position than the K non-immigrant visa principal. Id. Though Congress' goal through the Immigration Marriage Fraud Amendments Act of 1986 to combat marriage fraud would be achieved “once the K-3 nonimmigrant adjusts status based on a bona fide marriage to the K visa petitioner”, Id., it nonetheless opted to create “a broad prohibition on the adjustment of status of K visa holders on any basis other than the marriage between the K visa petitioner and the principal K visa beneficiary.” Id. at 870-871. See also INA §245(d). The express intent of Congress was to limit all K non-immigrant visa holders to adjustment of status based upon the K visa petitioner and the principal K visa holder. Id. at 871.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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Deferred Action Is Here

Today, the Bureau of U.S. Citizenship and Immigration Services announced the process for filing for requesting deferred action for aliens who arrived as children. The Obama Administration-had previously announced a deferred action process for young aliens considered low enforcement priorities on June 15, 2012. Deferred action is a discretionary determination to defer removal of an individual as an act of prosecutorial discretion. Deferred action is not the DREAM Act. It is important to remember that deferred action does not confer lawful status upon an individual. It does not provide a path to lawful permanent residence and/ or United States citizenship.

An individual may request consideration for deferred action if you meet the following criteria:

1.     You were under the age of thirty-one (31) as of June 15, 2012;
2.     You came to the United States prior to reaching your sixteenth birthday;
3.     You have continuously resided in the United States since June 15, 2007 through the present time;
4.     You were physically present in the United States on June 15, 2012, and at the time of filing your request for consideration of deferred action with the Bureau of U.S. Citizenship and Immigration Services;
5.     You entered the United States without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6.     You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7.     You have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Aliens who demonstrate that they meet the above guidelines may request consideration for deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

To request deferred action, you must file Form I-821D Consideration of Deferred Action for Childhood Arrivals. This Form must be supported by evidence to establish you meet the above-referenced criteria. There is no fee for the Form I-821D Consideration of Deferred Action for Childhood Arrivals. However, applicants will be required to pay a biometrics servicing fee of $85.00. If you wish to request employment authorization, you must also file a Form I-765 Application for Employment Authorization and Form I-765WS Worksheet. You will need to pay a filing fee of $380.00 to file a Form I-765 Application for Employment Authorization.

While deferred action can be beneficial for some aliens, it is important to remember that deferred action does not confer lawful status upon an alien and can be terminated at any time at the Department of Homeland Security's discretion. Only Congress, through the enactment of legislation, can create a path to lawful permanent residence status or citizenship. Deferred action does not provide a permanent solution to young aliens present in the United States without lawful status. As such, it is important to discuss your unique facts with an experienced immigration attorney prior to applying for deferred action.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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BIA Broadly Defines the What Constitutes an Offense Relating to Obstruction of Justice"

Under section 101(a)(43)(S) of the Immigration and Nationality Act (INA) “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year”, INA §101(a)(43)(S), constitutes an aggravated felony. INA §101(a)(43)(S). However, the INA fails to define the phrase “an offense relating to obstruction of justice.” The Board of Immigration Appeals (BIA) recently used its authority to interpret statutes to conclude “accessory after the fact offenses necessarily relate to obstruction of justice within the meaning of section of 101(a)(43)(S) of the Act.” Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 844 (BIA 2012).

In the Matter of Valenzuela Gallardo, the alien was a native and citizen of Mexico. Id. at 839. He was previously admitted to the United States as a lawful permanent resident on or about May 23, 2002. Id. On December 28, 2007, the alien was “convicted of the crime of accessory to a felony in violation of section 32 of the California Penal Code and was sentenced to 16 months in prison.” Id. The alien was subsequently placed in removal proceedings charged with removability as an alien convicted of an aggravated felony. Id. He sought termination of the removal proceedings arguing “his crime does not qualify as 'an offense relating to obstruction of justice' because the statute under which he was convicted does not require that the offender's actions relate to any ongoing investigation or judicial proceedings.” Id.

The BIA concluded Congress specifically used the phrase “obstruction of justice” when drafting the aggravated felony definition found at INA §101(a)(43)(S). As such, the “use of this term of art indicated an intent that the phrase be interpreted consistent with its use in the Federal criminal code.” Id. at 840. According to the Federal criminal code, “whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” 18 U.S.C. §3. A conviction for accessory after the fact requires the offender to hinder or prevent the “apprehension, trial or punishment”, 18 U.S.C. §3, for the specific purpose of concealment. Id. at 841. In the Matter of Espinoza, the BIA held “'the specific purpose of hindering the process of justice brings the federal “accessory after the fact” crime within the general ambit of offenses that fall under the 'obstruction of justice' designation.'” Matter of Espinoza, 22 I&N Dec. 889, 894-895 (BIA 1999).

The critical element in determining whether a crime constitutes obstruction of justice is “the affirmative and intentional attempt, with specific intent, to interfere with the process of justice.” Matter of Valenzuela Gallardo, 25 I&N at 841. In the Matter of Valenzuela Gallardo, the BIA clarified that the existence of an ongoing criminal investigation or trial “is not an essential element of 'an offense relating to obstruction of justice.'” Id. The BIA relied upon other offenses considered “construction of justice” under the Federal criminal code such as those acts “performed with [the] intent to 'hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.'” Id. at 842. See Fowler v. United States, 131 S. Ct. 2045 (2011).

The BIA's decision in the Matter of Valenzuela Gallardo is just one in a series of recent decisions affecting aliens with criminal convictions. If you or a loved one is an alien and has been arrested for a criminal violation it is important to contact an experienced immigration as soon as possible. An experienced immigration attorney can insure you understand the possible immigration consequences of entering a guilty plea or being convicted of a crime. This attorney can also help develop a strategy to contest removal from the United States.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Out & Proud Exile

On June 24, 2012, the Annual NYC Gay Pride Parade sailed down Fifth Avenue to the Greenwich Village where the gay liberation movement was born in 1969. This year a group of Russian-speaking LGBT persons and their supporters marched in the Pride Parade, brought together by the RUSA LGBT – Russian-Speaking American LGBT Association – a New York City based organization which unites and supports gay, lesbian, bisexual and transgender/transsexual immigrants from the countries of the former U.S.S.R.

This vibrantly vivacious group of about 70 individuals marched in the parade with signs drawing attention to the dire deterioration of the LGBT rights in Russia and other former members of the Soviet Union. The messages they proudly held high in the air included: “In Moscow gay parade banned for the next 100 years”, “17 got arrested for carrying rainbow flags in Russia”, and  “No place in EU for Ukraine with its anti-gay laws!” One could also notice the white ribbons worn by some of the RUSA LGBT members – a popular sign of opposition to the regime of Vladimir Putin and what it truly stands for: violent homophobia, pervasive corruption, and omnipresent violations of human rights.

This colorful public campaign against state-sponsored homophobia in the countries of the former Soviet Union seems to have been both blissfully festive and at the same time distressingly evocative of the true conditions faced by the LGBT persons in the region in question on the daily basis. It was a truly wonderful experience to see these men and women come out into the streets with their message of love, tolerance, and equality without fear of violence from the police or their fellow city dwellers; but let it be a reminder to us that they were only able to do it here in the United States and would most probably suffer a great deal for attempting anything of the sort in their respective motherland(s).

Photos of the RUSA LGBT Pride Parade group can be viewed here: “RUSA LGBT NYC PRIDE 2012”

Video of the RUSA LGBT Pride Parade group can be viewed here: “RUSA LGBT NYC pride 2012 video”

Source of RUSA LGBT official web-site: rusalgbt.com, flicker.com

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Time to Leave

According to a poll conducted by the web-portal GayRussia.Ru — Russia's leading online community for LGBT persons and their supporters — 65% of the respondents indicated that they would like to emigrate from Russia to a country which is safer and more respectful of its LGBT citizens. Some 27 % of the respondents indicated that they had no desire to leave Russia, while the remaining 5 and 3% of the respondents pointed out that they either already left Russia or never lived in Russia in the first place.

This poll was taken to assess the attitudes of the LGBT citizens of the Russian Federation in the context of the recent political developments which directly affected the already embattled LGBT community there. Since 2011, an increasing number of Russian regions and major cities, including Saint Petersburg, passed the laws prohibiting the so-called “propaganda of homosexualism” (no love from russia if youre gay). In May of this year, a number of activists, both in Moscow and Petersburg, were violently dispersed, detained, and charged for peaceful public actions aimed at informing the public of the dire human rights abuses of the LGBT persons perpetrated all over Russia. Under the new law in Saint Petersburg, the activists carrying rainbow flags were rounded up by the police and eventually charged with that very “propaganda of homosexualism” (spring violence and hate in moldova russia and ukraine), thus clearly showing that the Russian authorities do intend to use laws such as this one to restrict the freedoms of speech and association of the Russian gay, lesbian, bisexual, and transgender/ transsexual citizens. Notably, and hardly unexpected at all, such state-sponsored homophobia in effect gave license to various anti-gay hate groups to pursue their actions with more violence and audacity than ever before. Simply put, most of the Russian LGBT persons — especially those who dare to live their lives openly — live in constant fear of persecution and imminent danger of violence perpetrated both by the agents of the state and their fellow citizens. The Russian Orthodox Church (ROC), which enjoys a considerable support of the Kremlin — and lands its support to the Kremlin right back, has joined the assault on the LGBT rights in Russia with its own virulent homophobic campaign which galvanized its adherents who continuously refer to sexual minorities as 'Satanic agents of the West'.

It is only natural then that 65% of the respondents in the GayRussia.Ru poll indicated that they were willing to escape Russia and its relentless homophobia. Gay rights are human rights, but not in the present-day Russia, where the LGBT persons are continuously deprived of their human dignity and liberties apparently protected by the Russian constitution. Gay, lesbian, bisexual, and transgender/transsexual persons from Russia who are presently in the U.S. and have a fear of returning home may be eligible for asylum in this country. If this applies to you, then you should definitely contact an experienced immigration attorney to learn more about the options available to you.

By Ivan Savvine, Senior Paralegal @ The Law Offices of Grinberg & Segal, PLLC.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

The Dangers of Criminal Convictions for Lawful Permanent Residents

Criminal convictions are always problematic for aliens. At the very least, a criminal conviction is a negative factor requiring an alien to show equities. However, criminal convictions can often result in an alien being found inadmissible and/or removable from the United States. The relief available to aliens who are inadmissible and/or removable due to criminal convictions is limited. The Board of Immigration Appeals (BIA) recent precedent decisions are making it more and more difficult for aliens who are inadmissible and/or removable due to criminal convictions.

On June 21, 2012, the BIA held a lawful permanent resident who was granted cancellation of removal under section 240A(a) of the Immigration & Nationality Act (INA) in prior removal proceedings initiated by a drug conviction has the burden to prove that he or she is not inadmissible on the basis of the conviction when applying for adjustment of status in a subsequent removal proceeding. See Matter of Fernandez Taveras, 25 I&N Dec. 834 (BIA 2012). In the Matter of Fernandez Taveras, the alien had been admitted to the United States in 1978 and was placed in removal proceedings based upon a 1999 conviction for possession of crack cocaine. Id. at 834-835. He was granted cancellation of removal by the immigration court pursuant to INA §240A(a) in 2004. Id. at 834.

Subsequent removal proceedings were initiated against the alien where he was charged with removability based upon INA §237(a)(2)(A)(ii) as an alien convicted of two or more crimes involving moral turpitude. After the grant of cancellation of removal, the alien had accrued additional convictions, including convictions for petit larceny in 2006 and 2008. Id. at 834-835. As relief from removal, the alien sought adjustment of status coupled with a waiver pursuant to INA §212(h). Id. The Immigration Judge granted the alien's INA §212(h) waiver as well as his application for adjustment of status. Id. at 834. However, the Department of Homeland Security (DHS) appealed the decision to the BIA. Id. The BIA sustained DHS's appeal reversing the Immigration Judge's decision and ordering the alien removed from the United States. Id.

As an initial matter, the Immigration Judge had “concluded that pursuant to section 101(a)(13)(C)(v) of the Act (INA) the respondent's grant of cancellation of removal in prior removal proceedings precluded consideration of his drug possession conviction”, Id. at 835, in the subsequent removal proceedings. Id. Section 101(a)(13)(C)(v) provides

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 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).

INA §101(a)(13)(C)(v). However, the BIA reversed the Immigration Judge holding

that section 101(a)(13)(C)(v) is inapposite to the situation of a lawful permanent resident, such as the respondent, who was granted cancellation of removal after the commission of an offense identified in section 212(a) of the Act and later seeks to apply for adjustment of status in new removal proceedings after being found removable.Id. at 835. The BIA concluded “the purpose of section 101(a)(13)(C) is to regulate the circumstances under which returning lawful permanent residents may reenter the United States, upon inspection, without being classified as applicants for admission.” Id. citing Matter of Collado, 21 I&N Dec. 1061, 1065 (BIA 1998). As such, under INA §101(a)(13)(C)(v) “a lawful permanent resident who has committed one of the specified offenses is considered to be seeking admission upon return from a trip abroad, unless he or she received a waiver under section 212(h) or a grant of cancellation of removal under section 240A(a) after the offense was committed.” Id. When returning from a trip abroad, “a returning lawful permanent resident does not bear the burden to prove his or her admissibility,” Id. at 836, but “rather, the DHS bears the burden to establish by clear and convincing evidence that one of the six “exceptions” clauses in section 101(a)(13)(C) applies.” Id.

To the contrary, when an alien seeks adjustment of status, whether already a lawful permanent resident or not, he or she bears the burden of establishing the he or she meets the applicable eligibility requirements. Id. See also INA §240(c)(4)(A)(i) and INA §245(a). An alien seeking adjustment of status is also considered an applicant for admission. See Matter of Koljenovic, 25 I&N Dec. 219, 221 (BIA 2010). The BIA held “because these statutory provisions address different situations, section 101(a)(13)(C), which relates to aliens seeking admission at a port of entry, is not applicable to aliens who are already in the United States applying for adjustment of status.” Id. As such, the BIA concluded “although the respondent would not be considered an applicant for admission because he was granted cancellation of removal with respect to his drug conviction, section 101(a)(13)(C)(v) does not prevent his conviction from rendering him inadmissible for purposes of adjustment of status.” Id. at 836-837. The purpose of INA §101(a)(13)(C)(v) was to allow an alien granted cancellation of removal or an INA §212(h) waiver the ability to travel abroad without fear he or she would face removal proceedings upon return. However, the BIA held that INA §101(a)(13)(C)(v) “has no effect on the burden of proof requirements of section 245(a) of the Act.” Id. at 837.

The BIA also found the Immigration Judge's grant of relief “contradict[ed] the rule that a waiver of inadmissibility or deportability waives only the ground charged, but not the underlying basis for removability, which in this case is the respondent's drug conviction.” Id. See also Matter of Balderas, 20 I&N Dec. 389 (BIA 1991). As such, the alien's prior “drug conviction can still have immigration consequences even though he was granted cancellation of removal in prior immigration proceedings premised on that conviction.” Id. Thus, the BIA found the alien's prior “drug possession conviction clearly renders him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, so he is not statutorily eligible for adjustment of status and a section 212(h) waiver is not available to the respondent because his conviction related to possession of crack cocaine.” Id. The Immigration Judge's grant of relief from removal was reversed and the alien was ordered removed from the United States.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com