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