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HOT TOPICS IN IMMIGRATION LAW

2015

Rick De Lara, Jr.

Rick De Lara, Jr.

The Law Offices of Rios & Parada, PLLC

1505 E Missouri Ave

El Paso, TX 79902

Tel: (915) 532-2333

Danny Razo

Danny Razo

The Law Office of Danny Razo

701 Magnolia St.

El Paso, TX 79903

Tel: (915) 532-7296

HOT TOPIC #1CRIMINAL CONSEQUENCES

Duty of Criminal Defense Lawyer

Padilla vs. Kentucky, 559 U.S. 356 (2010)

Client’s Legal Status

Research

Alternative Pleas (Safe Harbor)

Criminal Plea

Who is responsible for immigration consequences on a criminal plea?

A. Clients

B. Defense Counsel

C. Prosecutor

D. Judge

PADILLA vs. KENTUCKY559 U.S. 356 (2010)

The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. And this Court has recognized the importance to the client of “ ‘[p]reserving the . . . right to remain in the United States’ ” and “preserving the possibility of” discretionary relief from deportation. INS v. St. Cyr, 533 U. S. 289, 323. Thus, this is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.

There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.

Client’s “Actual” Legal Status

IMMIGRANT

NON-IMMIGRANT

DACA/DAPA

EWI/VISA OVERSTAY

Client’s “Actual” Legal Status

Push for an answer from your client (They tell everyone else but the criminal defense lawyer).

“I’ve been here a long time.”

“I am fixing my papers.”

“I have a visa.”

“I am a resident.”

Get an actual answer and ask if you can see the document(s) or paper.

RESEARCH, RESEARCH, RESEARCH

Admission

Naturalization

Removable (Deportation, 1997)

SAFE HARBORS

Place on the record and make it clear if that’s the only recommendation that the Prosecutors Office is making. “If my attorney had not plead me to a burglary of

vehicle, I would qualify for a waiver. He should have plead me to something else.”

“My attorney should have asked for a higher fine or more probation instead of pleading me to two thefts on different days.”

HOT TOPIC #2

Deferred Action for Childhood Arrivals (DACA) Requirements: (Discretionary Approval)

Arrived to the United States before their 16th birthday

Continuously resided in the United States since July 15, 2007

Under the age of 31 on June 15, 2012

High school graduate, GED, Honorably Discharged, Enrolled in school

Not been convicted of a felony or significant misdemeanors

If approved, person gets a work permit for 2 years and deferred action. Must apply for renewal before DACA expires or lose ability to work have deferred action.

HOT TOPIC #3

Deferred Action for Parent Arrival (DAPA) Lived in the United States without interruption since January 1, 2010

Physically present in the United States on November 20, 2014

Be physically present in the United States when applying to the program

No immigration status on November 20, 2014

As of November 20, 2014, have a child who is a U.S. citizen or lawful permanent resident

Not have been convicted of a felony, significant misdemeanor or three or more other misdemeanors, and not "otherwise pose a threat to national security or be an enforcement priority for removal."

DAPA/DACA INJUNCTION

On February 16, 2015, Judge Andrew S. Hanen issued a temporary injunction blocking the program from going into effect while the lawsuit proceeds. The 5th Circuit did not set aside the injunction.

The injunction effects over 5 million undocumented immigrants.

Injunction only applies to DAPA and the Expanded DACA

DOES NOT apply to existing DACA Program that passed in 2012

HOT TOPIC #4Special Immigrant Juvenile

Status (SIJS)

The purpose of the SIJS program is to help foreign children in the United States who have been abused, abandoned, or neglected. Certain children who are unable to be reunited with one

or both parents can get a green card as a SIJS Children who get a green card through the SIJS program

can live and work permanently in the United States Traditional benefits of being a lawful permanent resident

may not apply to an SIJS green card holder, i.e. petition for parent upon naturalization.

SIJS vs. DACA

SIJS can lead to Legal Permanent Residency which allows the person to live and work in the United States of America. In addition, it is a path to United States Citizenship (Naturalization) if all requirements are met.

DACA – Deferred Action allows a person to study, live and work in the United States of America. However, the status does not give a path to United States Citizenship and can be withdrawn at anytime in the future. CANNOT travel outside of the United States unless granted permission from immigration beforehand.

HOT TOPIC #5U-VISA

The U nonimmigrant status (U visa) is set-aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

Crime must have occurred in the United States.

The perpetrator is not required to be a Legal Permanent Resident or United States Citizen.

Free to Apply (Form I-918)

Work authorization for a period of 4 years and can allow for U Visa holder to apply for Green Card after 3 years.

Caution: Many applicants may need a waiver so screen case as appropriate. Form I-192 ($585 current application fee)

HOT TOPIC #6VAWA

PARENT, SPOUSE AND CHILD (Step-Child)

Qualifying family relationship

You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident family member

You have good moral character

VAWA approval grants work authorization and possibly Lawful Permanent Residency.

HOT TOPIC #7NATURALIZATION

Good Moral Character: In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period.

HOT TOPIC #7NATURALIZATION

Naturalization through Qualifying Service during Periods of Hostilities; Served honorably in active-duty status, Lawfully admitted as a permanent resident at any time after enlistment or induction, read, write, and speak basic English, knowledge of U.S. history and government (civics), a person of good moral character during all relevant periods under the law