Things Clients Should Know

I Am Going to Wait to Celebrate

June 19, 2012 by Matthew

Now that I’m back from the AILA National Conference, I thought I would comment about President Obama’s announcement that the Department of Homeland Security (DHS) will be granting deferred action to certain non-citizens that would fall under the DREAM Act. It was really amazing to be at the AILA National Conference when the announcement was made. Being around so many immigration lawyers as the news was announced made it seem like there was electricity in the air. Everyone around me was excited and happy. Now I’m going to be the spoiled sport who complains . . .

For people who are in removal proceedings and have final orders of removal that qualify for deferred action, this will be good. For people who are not yet in proceedings, I am skeptical. It has been announced that they do not yet have a procedure for these people to apply for deferred action. It has been said that it will take 60 days for a procedure to be created. On April 2, 2012, it was announced that Citizenship Immigration Service (CIS) was going to accept waivers of unlawful presence from within the United States. Soon after, it was announced that CIS was not yet accepting these waivers and that they would not be accepted until regulations were promulgated. We’re still waiting for the regulations. About a year ago, it was announced that ICE would review files of removal cases for administrative closure as part of efforts to exercise prosecutorial discretion and focus on removing criminal aliens and aliens that pose a danger to the national security of the United States. Recently, it was announced that of 288,361 cases reviewed, only 4,403 cases had received administrative closure.

I have another reason to be skeptical. June is almost over. If DHS takes 60 days to create rules on accepting deferred actions requests for DREAMers, that means that they won’t be accepting these applications until about August 15, 2012. The election is November 8, 2012. If Obama is not re-elected, it does not appear that Romney will continue with this program. If Romney is elected president, then all of the people that are not currently in removal proceedings who apply for this new program will be bringing themselves to the attention of the Government. My advice for anyone who is not yet in removal proceedings that would benefit from this new policy is to wait until after the election to apply.

Plight of NY Jet Shows the Importance of Naturalizing

May 16, 2012 by Matthew

Last year, the NY Jets drafted defensive lineman Kenrick Ellis in the third round of the NFL Draft. This was a risky move on the part of the NJ Jets because Kenrick Ellis is facing felony assault charges in Virginia. According to news reports, Kenrick Ellis is not a U.S. Citizen, but a lawful permanent resident or green card holder. If Mr. Ellis is convicted and sentenced to a year or more in prison, he will be classified under the immigration laws as an aggravated felon. As an aggravated felon, he will be subject to removal proceedings and the only relief from removal that he could request would be relief under the Convention Against Torture. He would not be able to ask the Immigration Judge to let him stay based upon hardship to himself or his family. According to news reports, Mr. Ellis has been in the United States since he was eleven years old. Mr. Ellis’ immigration problem could have been avoided, if he had simply applied for naturalization when he was eighteen years old. Sadly, too many people like Mr. Ellis put off applying for naturalization. For most people who put off filing for naturalization, it is not a problem. However, for people who get into trouble with the law, it is a serious problem. The only sure way for a green card holder to protect themselves from deportation is to become a citizen. Most people think: I’ll never get into trouble, so I don’t need to naturalize. However, many times people get into trouble without looking for trouble; it just finds them. This appears to be what happened to Kenrick Ellis. If Kenrick Ellis were a U.S. citizen and he were convicted, he could resume his NFL career after he finishes his prison sentence. However, because Kenrick Ellis is not a U.S. citizen, if he is convicted, he will likely be deported and his NFL career will be over.

Not Everyone Benefits From New Supreme Court Case

March 30, 2012 by Matthew

On March 28, 2012, the U.S. Supreme Court decided Vartelas v. Holder. Mr. Vartelas was convicted of a counterfeit offense in 1994. In 2004, he traveled abroad and was placed in removal proceedings upon his return to the United States. Prior to 1997, the law provided that if he had traveled abroad, he would have been allowed to return to the United States. However, under changes in the immigration laws that occurred in 1997, he was classified as an “arriving alien.” The first two immigration attorneys that he hired conceded that he was subject to inadmissibility. His third immigration lawyer argued that since the immigration law at the time of his plea agreement permitted him to travel, the 1997 law should not be applied to him. The Supreme Court agreed finding that the 1997 law was impermissibly retroactive to Mr. Vartelas. Thus, Mr. Vartelas can no longer be classified as an arriving alien.

I am a little concerned that people may hear about the Vartelas decision and mistakenly believe that it is safe for all residents with criminal history to travel. This is not correct. Not everyone will benefit from the new Supreme Court case. Mr. Vartelas’ case involves very special circumstances. Mr. Vartelas had a very old conviction from 1994. The Supreme Court’s decision only applies to convictions before April 1, 1997. For anyone who has a conviction after April 1, 1997, if they travel, they risk being classified as an arriving alien and placed in removal proceedings.

Even though he won his case, it took approximately eight years of litigation for him to do so. Mr. Vartelas’ case demonstrates the importance of lawful permanent residents with criminal convictions consulting with immigration lawyers before traveling outside of the United States. The Supreme Court’s decision does not address this, but green card holders classified as arriving aliens can be detained indefinitely without a bond hearing pending the outcome of their removal proceedings. Mr. Vartelas was very fortunate that the Immigration Customs Enforcement had decided not to detain him.

Mr. Vartelas’ case also demonstrates the importance of finding a good immigration lawyer. His first two immigration attorneys conceded that he was an arriving alien. If he had not found a new immigration attorney, he would have been deported.