Particularly Serious Crime and Mental Illness/Disorder

Criminal convictions can significantly impact whether an alien can remain in the United States. An alien is ineligible for a grant of asylum if he/she has “been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” INA §208(b)(2)(A)(ii). See also 8 C.F.R. §208.13(c)(1). For purposes of eligibility for asylum, the Immigration and Nationality Act (INA) provides “an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.” INA §208(b)(2)(B)(i). Similarly, an alien will be ineligible for withholding of removal pursuant to INA §241(b)(3)(B)(ii) as an alien convicted of a particularly serious crime if he/she “has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 [.] ” INA §241(b)(3)(B). Regardless of the sentence imposed by the criminal court the Attorney General may determine the alien has been convicted of a particularly serious crime. Id. The Federal Regulations provide that “an alien who has been convicted of a particularly serious crime shall be considered to constitute a danger to the community.” 8 C.F.R. §208.16(d)(2).

There is no further statutory or regulatory guidance as to what constitutes a “particularly serious crime” for purposes of determining eligibility for asylum or withholding of removal under INA §241(b)(3). To determine whether a conviction constitutes a “particularly serious crime”, the Board of Immigration Appeals (BIA) has held that “such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community”, Matter of Frentescu, 18 I. & N. Dec. 244, 246 (BIA 1982), are to be examined. Another important factor to be considered is whether the victim was physically harmed by the alien's criminal conduct. See Matter of R-A-M-, 25 I. & N. Dec. 657, 661 (BIA 2012); Matter of N-A-M-, 24 I. & N. Dec. 336, 343 (BIA 2007); and Matter of L-S-, 22 I. & N. Dec. 645, 655-656 (BIA 1999). The “particularly serious crime” inquiry focuses on the crime committed not the “alien's personal circumstances and equities, such as family or community ties or any risk of persecution in the country of removal.” Matter of G-G-S-, 26 I. & N. Dec. 339, 343 (BIA 2014) citing Matter of L-S-, 22 I. & N. at 651.

In the Matter of G-G-S-, the BIA was tasked with determining “whether an alien's mental illness should be considered when determining if his or her criminal conviction is for a 'particularly serious crime'[.]” Id. at 339. The alien was a lawful permanent resident who suffered from chronic paranoid schizophrenia from an early age. Id. at 340. He was convicted of assault with a deadly weapon under California Penal Code and sentenced to a term of imprisonment of two years. Id. While the BIA “recognize[d] the significance of the respondent's mental health struggles and sympathize[d] with the resulting hardships he ha[d] faced”, Id. at 344, it nonetheless concluded his “conviction for assault with a deadly weapon was for a particularly serious crime.” Id. The BIA declined to consider the alien's mental health as a factor in determining whether his conviction was for a “particularly serious crime”. Id. at 345. According to the BIA, “[w]hether and to what extent an individual's mental illness or disorder is relevant to his or her commission of an offense and conviction for the crime are issues best resolved in criminal proceedings by the finders of fact.” Id. These factfinders are in the best position to make such a determination, because they “have expertise in the applicable State and Federal criminal law, are informed by the evidence presented by the defendant and the prosecution, and have the benefit of weighing all the factors firsthand.” Id. A criminal defendant's mental condition can be raised at various points during the criminal proceedings including determination of competency to stand trial, presentation of an affirmative defense of not guilty due to mental illness or disorder, arguments that there was an absence of the specific intent required for conviction, mitigation for purposes of sentencing, and post-conviction filings. Id. The BIA has effectively declined to reassess determinations regarding criminal culpability due to mental illness of disorder.

The take away from decisions like the Matter of G-G-S- is to involve an experienced immigration attorney as early as possible in the criminal proceedings. An experienced immigration attorney may be able to provide guidance to minimize the potential 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.

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New York State Enacts Legislation to Protect Immigrants

At a time when many states have chosen to enact legislation to drive away immigrants, the State of New York is taking significant steps to create a welcoming environment for immigrants. On August 6, 2014 Governor Cuomo signed legislation designed to improve the provision of immigration-related assistance in the State of New York. One of the primary goals of this legislation is to better protect immigrants from potential fraud and misconduct from individuals who prey on immigrant communities. This legislation created stricter assistance-provider requirements including ensuring only attorney and non-attorney representatives authorized by the Board of Immigration Appeals (BIA) can provide legal services, enhancing translation requirements, increasing civil penalties for violations, and prohibiting the use of titles designed to mislead the immigrant into believing the provider is an attorney or specialized professional.

Not only did this legislation enhance requirements on the provision of immigration-related services, but also created the new criminal offense of “immigrant assistance fraud”. The addition of these criminal offenses to the Penal Law are important as individuals who engage in “immigrant assistance fraud” often engage in conduct that jeopardizes an immigrant's future ability to qualify for immigration benefits and places the immigrant at risk of deportation from the United States while at the same time extracting significant sums of money from hardworking individuals. Under the amended Penal Law “immigrant assistance fraud” can be either a Class A misdemeanor or Class E felony depending upon whether the fraud involved less than $1,000.00 or more than $1,000.00. These new crimes will allow law enforcement to specifically target those who prey on immigrant communities.

Another key component of this legislation is the designation of the New York State Office for New Americans as a permanent executive office. The Office for New Americans was established in March 2013 by Governor Cuomo to provide support to New York State's immigrant population through the creation of opportunity centers, increasing access to English language and civics classes, connecting immigrants to business resources such as job training, developing and capitalizing on immigrants' skills, maximizing the number of Deferred Action for Childhood Arrivals (DACA) recipients, strengthening connections between immigrants and communities, preventing the fraud directed at immigrant communities, and providing State resources to better aid immigrants. The Office for New Americans has already helped over 34,000 immigrants since its inception. More information on the New York State Office for New Americans can be found at http://www.newamericans.ny.gov/.

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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Where to File Hardship Waiver Applications

Creation of the two separate regulatory systems for hardship waiver applications established recently by the Administration’s promulgation of the Provisional Waiver regulations rendered many people confused as to where to file waiver applications for individuals who are NOT eligible for Provisional Waiver and intent to navigate the ordinary, well-established waiver rout. People are especially confused because they are routinely told now that the U.S. consulate posts do not accept waiver applications any longer. As recently as yesterday, I received a call from a person from Georgia who, sounding very frustrated, complained of this confusion.


Historically, that is for the last almost a decade or so and until very recently, the procedure had been that determination of whether an immigrant visa applicant was indeed inadmissible and thus warranted a waiver, was supposed to be formally made by the U.S. consulate in that person’s country of residence. Once made, the applicant would be served with what is known as a rejection letter, stating that he or she were found inadmissible and that a waiver could be potentially available for that type of inadmissibility. The significance of this letter is hard to overstate. It is not so because it broke the bad news that the individual was found not desirable and thus could not be allowed into the United States. Instead, the letter would formally start the process of the waiver application. The waiver application would then need to be submitted at the same consulate and the fee paid there. The consulate responsibility then would be to transfer the application to the USCIS foreign post having jurisdictional power over adjudicationof the USCIS applications by residents of that country.

Please visit the myattorneyusa.com 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

An Expensive Public Education for Some Residents of South Carolina

Students who depend on undocumented parents are facing certain obstacles when matriculating at public universities.Often the greatest deciding factor for students in choosing where they will earn their degree is affordability. In an effort to make higher education more affordable for working class families-often comprised of minorities such as Latinos-States have established public universities with significantly reduced tuition rates for residents. Allowing more residents to gain specialized training or certification has significant economic advantages for the state. With higher education, better employment opportunities usually follow and therefore, generate better salaries for residents.

So, should a U.S. citizen who has lived in the state his or her entire life, has voted, and possess a valid driver's license from the state enjoy public university resident tuition rates? The University of South Carolina's administration does not necessarily think so. Students who may have jobs and pay state taxes may still, nonetheless, have to pay higher tuition rates if they depend on their undocumented parents.

I strongly believe that illegal entry into the country is a serious matter. Necessary steps should be taken to ensure that all entry into this country be documented; however, this administrative policy does not curtail illegal entry. Instead, it punishes the U.S. citizen student who wants to go to college and establish a career. Since it is unlikely that the undocumented families are likely to return to their native countries because of high tuition rates for their children, there is little, if any, noticeable result in deterring illegal entry into the country with this policy. The long-term economic result is likely to be decreased matriculation from U.S citizens in colleges. This decreased matriculation defeats the very purpose of lower tuition rates for state residents. With tuition rates increasing categorically at an alarming rate, I think universities cannot afford to deter a college education any further.

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