Yesterday, I was on a panel of lawyers that spoke at a Continuing Legal Education (CLE) presentation for the NY Chapter of the American Immigration Lawyers Association (AILA). The presentation was called “Crimmigration – Both Sides Now.” Crimmigration is an area of immigration law that involves representing non-citizens with criminal history. I spoke the things an immigration attorney should discuss with a criminal lawyer when trying to figure out the possible immigration consequence of a plea offer. I also discussed how an immigration lawyer should work with a criminal lawyer, when a non-citizen has a conviction that needs to be vacated. Because I have done so much work with non-citizens with criminal history during my career as an immigration attorney, the NY Chapter of AILA invited me to speak on this subject.
Archives for April 2012
Earlier this week, the U.S. Supreme Court granted a petition for a writ of certiorari in Moncrieffe v. Holder, Dkt. No. 11-702. A request for the U.S. Supreme Court to take a case is done by filing a petition for a writ of certiorari. This is an appeal of a decision of the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit held that a state statute that defined the sale of marijuana to include giving away marijuana without remuneration constituted a drug trafficking crime. Under the Immigration and Nationality Act, a drug trafficking crime is classified as an aggravated felony. In immigration law, there is virtually no relief from being classified as an aggravated felon. Most individuals who are classified as aggravated felons in their removal proceeding are deported. There is a split among the U.S. Court of Appeals as to whether a state statutes that defines “sale” as giving marijuana away without remuneration constitutes a drug trafficking crime that can be classified as an aggravated felony. The First, Sixth and now Fifth Circuits say that it is. The Second and Third Circuits say that it is not. The Second Circuit case is Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008). I argued Martinez v. Mukasey in the Second Circuit.
It’s been a dream of mine to argue before the U.S. Supreme Court. It is a bit frustrating for me to see the Supreme Court accept a writ of certiorari on a case with an issue that I litigated. Sadly, the Government did not seek a writ of certiorari in Martinez. A similar thing happened to me last year, when the Supreme Court accepted a writ of certiorari in Judulang v. Holder, 132 S. Ct. 476 (2011). Judulang involved the same issue as a case I had litigated in the Second Circuit, Blake v. Carbone, 489 F.3d 88 (2d Cir. 2008). At least, I can take comfort in the thought that I am on the cutting edge of immigration litigation.
On April 2, 2012, the U.S. Citizenship and Immigration Service proposed a new regulation that will permit non-citizens to apply for a waiver for inadmissibility due to unlawful presence from within the United States. One of the dirtiest secrets of our immigration laws is that not everyone who is married to a U.S. citizen can get a green card from within the United States. The process of getting a green card within the United States is called adjustment of status. If you entered the United States illegally, then you can only get a green card through marriage, if someone filed a visa petition or labor certification for you prior to April 30, 2001.
Another dirty secret of our immigration laws is that once you have lived illegally in the United States for a year or more, if you leave the United States, you are barred from returning for 1o years. This is referred to as the 10 year bar. There is a waiver of the 10 year bar that requires the applicant to show extreme hardship to their family members. Currently, this waiver can only be applied for at a U.S. consulate office; it cannot be applied for within the United States. Obviously, under the current rules, most individuals that are in the United States unlawfully would be unwilling to risk leaving the U.S. to get a green card through consular processing for fear that their waiver would not be approved or that it would take too long for the waiver to be approved.
Under this proposed rule, someone who entered the United States illegally and is subject to the 10 year bar may apply for the waiver while they are in the United States. Under the proposed rule, if the waiver is granted, they could then leave the United States and get their green card at the U.S. consulate office. Unfortunately, this is only a proposed rule. It has yet to go into effect. By law, a proposed rule is not final until the public has had the opportunity to comment on the rule.