Blog Topic

Lost in the System-Helping Our Illegal Children- Special Juvenile Immigrant Visas and Adoptions
Posted by: ScottMond Law Firm
August 12, 2011

The sad reality is that we have innocent children lost in our broken immigration system. With the recent blockage of the Dream Act, it is important to know that there are still remedies for children under the age of 18. The purpose of this blog post is to briefly address a couple of ways we can help minors achieve status in the United States.

Let's take the case of a U.S. Citizen (USC) who wants to adopt his or her nephew. The nephew is 10 years old, and from Mexico. He enters the U.S. with a visitor visa and overstays, or his parents cross the U.S. border with him and now are either detained or nowhere to be found. Is there any way to legalize the nephew's status? Intercountry adoption the way to go? How does this work?

State law, which we do not discuss in this article, is an important step here. State law determines adoption and custody rules for children. There are also Hague Convention Adoption laws which govern international adoption rules in the minor's country of birth. We do not recommend this approach because completing an intercountry adoption is expensive and time consuming. U.S. Federal Immigration laws determine how to proceed in legalizing a minor in the United States.

Once permanent guardianship is in place, you can go back to your state court and file a motion called a "motion for special findings." Once you get the special findings (an order signed by the judge that lists the Immigration Requirements) the child can file an I-360 for Special Juvenile Immigrant Status (SIJS).

Ultimately, the idea behind the SIJS is that a child who is here under a permanent/long-term order by the state court, and who has a finding from the state court that it is in the child's best interest to not be returned to their home country, is eligible to file for adjustment of status on his/her own.

After the child turns 18 and meets the other requirements, he can file for citizenship. If the family wants to adopt him, it is best to wait until after he gets the LPR because once he is adopted, he will not be able to file the I-360.

The above process requires a good family law and immigration attorney. If you have any questions or concerns, you may contact our law firm at info@scottcclaw.com or call us at our telephone numbers listed at http://www.scottcclaw.com/.

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U.S. Citizenship and Good Character- The Case for DWIs
Posted by: ScottMond Law Firm
June 29, 2011

U.S. Citizenship is not an automatic right but requires proof that a Permanent Resident has "good moral character". Many of our complex citizenship cases involve client's who have been charged with multiple DWI (Driving While Intoxicated) while in Permanent Resident Status. Although this can affect a citizen application and can result in denial, many cases are still approved despite. The following factors are key in a case being approved although convicted of more than one DWI in a five or ten year period:

• Can the DWIs be tied to a tragic event in the Permanent Resident's life that has now passed?
• Is their a pressing reason to show U.S. Citizenship and Immigration Services (USCIS) why citizenship needs to be approved now, and the applicant is not able to wait the 5 year period often recommended since last DWI charge before applying for citizenship. Certain job reasons amongst other factors are considered.
• Balancing factors are also very key to an approval. What positive factors outweigh the DWI convictions in the Permanent Resident's life.

If you are someone you know is holding of on applying for U.S. citizenship due to DWI convictions, it's important to consult with an experienced immigration attorney, as every day individuals are approved for citizenship in USCIS's discretion despite multiple DWI convictions. The jurisdiction of the USCIS office also may vary on how they decide these more complex citizenship cases. So, it is important to understand the track record of your jurisdiction.
If you have questions you may contact our law firm at info@scottcclaw.com or visit our website for a list of offices and phone numbers. www.scottcclaw.com
ScottMond Law Firm
www.scottcclaw.com

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ILLEGAL OR OUT OF STATUS IF YOU ARE A CRIME VICTIM-U VISA STATUS OPTIONS
Posted by: ScottMond Law Firm
June 06, 2011

If you know someone who is out of status here in the United States and has been the victim of a crime, he or she may be eligible for a U Visa. U visas are available to foreign nationals or aliens who are in the United States and entered without inspection ("EWI") or have overstayed an original visa grant.

U visas have even been considered and granted by U.S. Citizenship and Immigration Services ("USCIS") based on the following scenarios.

• A foreign national who was in a common law marriage, and has two U.S. children with her common law husband. Her husband is later killed. She is eligible for a U visa.

• Likewise, a client while working for an employer is involved in a robbery and assists in finding the escaped criminal is yet another example of someone who qualifies.

Qualifying Criminal Activity for U visas are listed in 8 C.F.R. Sec. 214.14. U visas petitions require the filing of form I-918 and a certification by the respective police department, amongst other requirements. A U visa also entitles the individual to a workers' permit, and the possibility of adjusting to a U.S. permanent resident. If an individual or alien is in removal proceedings they may obtain temporary or permanent relief through the grant of a U visa. U visas are complex and require representation by an experienced U.S. Immigration lawyer.

For further information, you may contact our office at info@scottcclaw.com or visit our website at http://www.scottcclaw.com/ where our telephone numbers are listed for your convenience.

ScottMond Law Firm

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Is There Any Way Out of the Two Year Residency Requirement Etched in My United States J-1 Visa?
Posted by: ScottMond Law Firm
April 25, 2011

The good news is yes. A special document called a No Objection letter is needed from the Department of State (DOS). It is a complex process requiring an experienced immigration attorney in order to successfully remove the two year residency requirement that accompanies many J-1 Visas.

First, you have to complete the Waiver application online with DOS. This will generate a whole DS3035 packet which you will then have to sign and submit, along with supporting documents, to the Waiver Review division. There will be detailed instructions in this packet that you will have to follow.

The last page of the packet will be the scan code page. You will next need to forward this page to the foreign embassy with the request for the No Objection letter. The embassy should send the No Objection letter with the scan code page to the DOS Waiver Review division directly. Each foreign embassy has its own requirements and formalities for issuing a No Objection statement. You should contact them ASAP because some require you to overcome many obstacles to get the letter.

Once the No Objection letter is received by DOS, they will issue a recommendation letter to USCIS. USCIS will then issue a receipt notice to you. Finally, once the I-612 processing is complete, they will send out an approval notice of the 212E waiver. The process could take three to nine months.

For questions you may contact us at info@scottcclaw.com, or log on to http://www.scottcclaw.com/ for all our telephone numbers and address information.

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Virginia Assault and Battery- Immigration Consequences for the Non-Citizen
Posted by: ScottMond Law Firm
January 25, 2011

The purpose of this article is to discuss the often confusing topic of whether an assault and battery in the State of Virginia is an aggravated felony prohibiting a U.S. non-citizen who is convicted of such a crime from applying for many forms of relief if placed in removal. Without relief, a non-citizen client will be removed (deported) from the United States.

If you or your loved one are currently charged with assault and battery as a non-citizen of the United States, it is important to discuss with your immigration attorney how to have your case classed as a non-aggravated felon so you may have the needed relief and not be removed.

The terms categorical, and modified categorical approach sounds akin to another language, and it is. It is the language of immigration removal courts and attorneys when determining the overall immigration consequences of a criminal act by a non-citizen. Many changes have taken place with the law, in which it is not the purpose of this article to discuss. What is important to note, however, is that these terms determine how far ICE government attorneys, or the defense removal attorney can "dig" into the prior criminal record to determine if a "crime of violence" or "aggravated felony" has occurred making a non-citizen removable from the United States.

The next important item is to determine who has the burden of proof. Who ever has the burden of proof has to prove by digging into the criminal records that the crime was not an aggravated felony. So for instance, if it is the government's burden of proof to show that a non-citizen's crime is an aggravated felony, they can start digging into police reports, notes, colloquy, pre-trial notes, sentencing reports and any other item that may be in the court file if it is not clear on the face of the disposition of the case that a crime of violence has not occurred. In the alternative, if it is the burden of the non-citizen to show that an aggravated felony has not occurred, the attorney for the non-citizen must dig into those same records to sustain the burden.

What does this mean? It is critical to find experienced immigration counsel that understands the importance of researching critical case law in various circuits to avoid devastating consequences with the current above standard to determine whether a non-citizen will be removed in the State of Virginia. The posture of the case is critical as to how the case is litigated. Likewise, the non-citizen in removal should feel empowered to go and pull a copy of their entire court file from the court and sit down and discuss it with his or her attorney of choice. If a non-citizen client is detained, it is important for them to have 3rd party who will pull the ENTIRE criminal file, not just the disposition. Of course, immigration counsel can pull the file as well, but ask for a full copy of the criminal file and review it with your immigration counsel.

If you have questions, or would like to speak with one of our attorneys, we invite you to contact us at info@scottcclaw.com for a fast response, or call us at one of our offices listed on the first page of http://www.scottcclaw.com/.

ScottMond Law Firm

http://www.scottcclaw.com/

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Immigration Consequences To Criminal Charges Or Convictions ? The BIG Mistake?Don?t Rest Easy!?Removability AND Inadmissibility Immigration Considerations Before Pleading
Posted by: ScottMond Law Firm
December 07, 2010

The purpose of this article is to hopefully reduce the huge mistake that costs U.S. Permanent Residents and Non-Citizens their right to travel back to their home country. Specifically, if a Permanent Resident or Non-Citizen with a brief criminal history travels abroad they are often faced with the surprise of arriving at the airport back in the United States only to be told by Customs Border and Patrol (CBP) that they are "inadmissible". In other word, they are banned from reentering the United States.

The reason this is often so surprising to foreign nationals/non-citizens, is that he or she often did hire criminal attorneys and even immigration attorneys to ensure that they would not be "deported" if they plead and/or were convicted of a criminal charge. A foreign national will then feel confident about the immigration consequences of their actions and rest easy.

However, it is critical that a foreign national BEFORE travelling abroad consult with an immigration attorney to ensure that although they are not removable from the United States they will not face inadmissibility issues when they attempt to reenter the U.S. after a brief trip abroad.

The Law

Criminal inadmissibility grounds will or may prevent a noncitizen from being able to obtain lawful status in the United Stats; and may also prevent a noncitizen who already has lawful status from being able to return to the U.S from a trip abroad in the future.

Controlled Substance Offenses. Conviction or admitted commission of a controlled Substance Offense, or DHS reason to believe that the individual is a drug trafficker will also trigger inadmissibility. It is critical to note here that even if there was not a conviction and a noncitizen just verbally admits to a CBP officer that he trafficked drugs at some point the noncitizen will be inadmissible. This applies to other crimes not only drug trafficking.

Crime Involving Moral Turpitude. Conviction or admitted commission of a Crime Involving Moral Turpitude (CIMT), which category includes a broad range of crimes, including:

• Crimes with an intent to steal or defraud as an element (e.g. theft, forgery)
• Crimes in which bodily harm is caused or threatened by an intentional act, or serious bodily harm is caused or threatened by a reckless act (e.g., murder, rape, some manslaughter/assault crimes)
• Most sex offenses

There is a Petty Offense Exception which it is not the purpose of this article to discuss.

Also, prostitution and commercialized vice makes a noncitizen inadmissible, and conviction of two or more offenses of any type plus aggregate prison sentence of 5 years.

Again, even if anon-citizen has consulted with an immigration attorney in conjunction with criminal counsel and he or she has been told that they will not be removed or deported from the United States this is not enough. Based on pleading or prior conviction(s) of certain crimes a non citizen may be inadmissible back to the United States, FOREVER, after a brief trip abroad. It is imperative that a noncitizen seek an experienced immigration attorney's advice before travelling abroad. You may contact one of our immigration attorneys at the information provided below with any questions.

ScottMond Law Firm

Immigration Lawyers Serving Families, Individuals and Businesses

www.scottcclaw.com/

info@scottcclaw.com

(703)261.6881 (main office number)

(301)251.4003 (Maryland Office)

(703)966-0907 (emergency client line only)

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Ready to Bond Out or Served your Time?...Only to be told "ICE Has Issued a Detainer on You"
Posted by: ScottMond Law Firm
October 18, 2010

The concept of a detainer is often hard to comprehend and accept. What it means to an individual who is incarcerated in State custody, and his family is overwhelming and causes great grief when not immediately placed in perspective. Not being able to get bond, or be released from jail after serving time is the harsh consequence of a detainer.

Overall, a detainer is placed by the federal government on a foreign national/non-citizen so that the state will hold them for a period as the federal government has a legal interest in the detained individual.

We hope by providing the following guidance directly from U.S. Immigration and Customs Enforcement ("ICE") that our reader's will better grasp the process of a detainer, and have some comfort.

Definition of Detainer: A detainer, issued on form I-247 is a notice that ICE issues to a Federal, State, and local law enforcement agency ("LEA") to inform the LEA that ICE intends to assume custody of an individual in the LEA's custody. An immigration detainer may serve three key functions.

• Notify and LEA or jail that ICE intends to arrest or remove an alien in the LEA's custody once the alien is no longest subject to the LEA's detention;
• Request information from an LEA or jail about an alien's impending release so ICE may assume custody before the alien is released from LEA's custody; and
• Request that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays to provide ICE time to assume custody.

As a general matter, immigration officers should not issue detainers against an alien charged only with a traffic-related misdemeanor unless or until the alien is convicted, unless:

• The alien has a prior criminal conviction;
• The alien previously has been excluded, deported, or removed from the United States or allowed to voluntarily return to his or her country of nationality;
• The alien is the subject of an outstanding immigration warrant or is the subject of a final order;
• The alien is part of an existing criminal investigation;
• An articulable reason exists to believe that the alien presents a danger to national security or a genuine risk to public safety; or
• The traffic-related misdemeanor involved driving under the influence of alcohol or drugs, physical injury to a person or property, or flight from the scene of an accident.

Immigration officers should not issue a detainer unless an LEA or jail has exercised its independent authority to arrest the alien. Immigration officers shall not issue detainers for aliens who have been temporarily detained by the LEA (i.e. roadside or Terry stops) but not arrested. This policy, however, does not preclude temporary detention of an alien by the LEA or jail while ICE responds to the scene.

Immigration officers are expected to make arrangements to assume custody of an alien who is the subject of a detainer in a timely manner and without unnecessary delay. Although a detainer serves to request that an LEA or jail temporarily detain an alien for a period not to exceed 48 hours from the time the LEA or jail otherwise would have released the alien (excluding Saturdays, Sundays, and holidays) to permit ICE to assume custody of the alien, immigration officers should avoid relying on that hold period. If at any time after a detainer is issued, ICE determines it will not assume custody of the alien, the detainer should be withdrawn or rescinded and the LEA notified.

ICE shall timely assume custody of the alien if ICE has opted to lodge a detainer against an alien if any of the following categories:

• aliens who are subject to removal based upon certain criminal or security-related grounds set form in INAQ §236(c);
• Aliens who are with the "removal period," as defined in INA §241(a)(2); and aliens who have been arrested for controlled substance offenses under INA §287(d).

Immigration officers shall take particular care when issuing a detainer against a lawful permanent resident (LPR) as some grounds of removability hinge on a conviction, while others do not (e.g. removability pursuant to INA §237(a)(4) and INA §237(a)(4) and INA §237(a)(1)(E).). Although in certain instances ICE may hold LPRs for up to 48 hours to make charging determinations, immigration officers should exercise such authority judiciously and seek advice of counsel for guidance if the LPR has not been convicted of a crime.

The above guidance from U.S. Immigration and Customs Enforcement (ICE) is the general standard. An attorney should be contacted ASAP to ensure that your loved one is not moved out of state, to protect his or her rights, and to ensure that ICE is following it's own guidelines and mandates.

Please contact our office with your questions or concerns. One of our attorneys will be happy to speak with you.

ScottMond Law Firm

(703)261.6881 or (202)296.0122

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Padilla v. Kentucky 599 U.S. Immigation and Criminal Consequences 2010
Posted by: ScottMond Law Firm
June 24, 2010

On March 31, the U.S. Supreme Court finally rendered a hallmark decision to protect non-citizens from arbitrary and irresponsible legal advice regarding the impact of criminal pleas.

Recently, we had a permanent resident client whose criminal attorney advised him it would be alright for him to travel out of the country despite a criminal charge that was still awaiting a final disposition. The client at first was thrilled to be able to travel and had great confidence in his attorney. Upon returning to the United States he was almost immediately placed in detention and was not admitted to the United States. This costly mistake resulted in the client spending 8 months in jail, and immediately placed in removal from the United States.

The U.S. Supreme Court has now ruled that the 6th amendment requires defence counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

ScottMond Law Firm

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