Naturalization Approved for Los Angeles Client After Years Defending Against Deportation

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One of my Los Angeles clients was recently approved for naturalization. I began representing her five years ago when she was stopped at the airport and put into removal proceedings because she had two crimes involving moral turpitude from ten years prior. When she was a teenager she was convicted of writing bad checks – misdemeanors. When she tried to enter the US after a trip abroad, she was deemed inadmissible and put into removal proceedings.

We did a motion to change venue from Texas to Los Angeles. Then, for the next four years we pursued cancellation of removal, which was approved by an immigration judge earlier this year. After the deportation case was finished, we began the naturalization case. Everything went smoothly at the interview. The officer asked some questions about the prior convictions, but the general tone of the interview was cordial and friendly. My client will take her naturalization oath in the next month.

If you are considering the naturalization process, contact The Nunez Firm. Especially if you have a criminal conviction, you need to consult an experienced immigration attorney before filing. Otherwise, you could end up in removal proceedings, which can take many years and cost a lot of money to defend. Managing attorney Jay Nunez will personally meet with you and help you understand your position and chances for success with naturalization.

Cancellation of Removal Approved for Vietnamese Client from Garden Grove

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We recently won an immigration court case for one of our Garden Grove clients. The case had been pending for four years, but the immigration judge ruled that my client should be granted cancellation of removal for lawful permanent resident and allowed to keep her green card.

When she was younger she committed two crimes involving moral turpitude – theft and passing a fictitious check. The first offense occurred when she was 20 years old. The second occurred about a year later. She was charged and convicted of misdemeanors. She paid the fines and completed the community service.

In 2009, she was traveling abroad with a friend. When she returned to the United States, Customs and Border Protection ran her name through the criminal checks and found her conviction records. They placed her in removal proceedings in Texas (because her flight landed in a Texas airport). She hired us shortly thereafter. We filed for a change of venue to Los Angeles, and it was granted.

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Once the case moved to Los Angeles, we pursued cancellation of removal. We provided the court with evidence that my client had turned her life around since her convictions. We showed that she is currently employed and her mother depends on her a great deal to help around the house and with the bills. We explained that if my client were deported to Vietnam, her life and her mother’s life would be extremely difficult. I prepared my client thoroughly on what to expect when testifying. She did a great job testifying and both the government attorney and judge were convinced that my client deserved a second chance. The government attorney did not ask any questions on cross-examination.

My client plans to pursue naturalization in the next couple months. If you are in removal proceedings, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand your options and which strategies might be available to you to avoid deportation.

Cancellation of Removal Approved in Los Angeles Immigration Court for Anaheim Client Despite Criminal Convictions

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An immigration judge in Los Angeles approved my client for cancellation of removal for lawful permanent residents. My client, who lives and works in Anaheim, has resided in the United States for over fifteen years. When he was younger, he committed three theft related crimes. Although these crimes occurred more than seven years ago, he was stopped at the airport in 2009 when he was returning from a trip to Europe. He was put into immigration court proceedings and charged with being removable because he had two crimes involving moral turpitude.

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At trial, I argued that although he was deportable, he was eligible for cancellation of removal. He had been been a permanent resident for over five years and he had lived continuously in the US for over seven years. None of his crimes constituted aggravated felonies. Although he met the requirements for cancellation, we also had to convince the judge that he was worthy of a discretionary approval. There are many factors the immigration judge will consider when deciding whether a green card holder deserves to be approved for cancellation of removal. We provided evidence and testimony that he had minimal family in his home country. All of his family lived in the US. His parents rely on him for financial support and he has a good job. He testified about how much he regretted the crimes that he committed when he was younger. He took ownership of his ill-advised decision to commit the crime when he described what had happened. His family attended the hearing, and his mother and father testified on his behalf. They talked about the changes their son experienced after his last conviction – how he started working harder and spending more time with his family, how he stayed away from some of his old friends with whom he got in trouble.

I had prepped him for the trial well, and although the government attorney tried to trick him into making excuses for his crimes or not taking responsibility for them, he did an excellent job of admitting what he did and acknowledging the severity of his actions. At the end of the trial, the immigration judge stated that she was approving the case. The trial attorney for Department of Homeland Security did not reserve appeal, which means the case is closed and my client remains a permanent resident.

If you are in removal proceedings in Los Angeles, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help figure out which forms of deportation relief might work for you.

Issues to Consider Post-Windsor Regarding Same Sex Marriage, Visa Petitions and Adjustment of Status to Permanent Resident

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On June 26, 2013, the Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. The historic Windsor decision has many immigration-related implications for same sex couples. The Department of State, United States Citizenship and Immigration Services, Customs and Border Protection and the Executive Office of Immigration Review are assigned different responsibilities in the US’s immigration scheme, and each has voiced their stance on how they will interpret the Supreme Court’s Windsor decision.

On July 17, 2013, the Board of Immigration Appeals (part of the Executive Office of Immigration Review) issued the Matter of Zeleniak decision in which the BIA stated that Windsor allows the recognition of same-sex marriages for immigration purposes. The BIA held that same sex couples, post-Windsor, are entitled to be treated the same as opposite-sex couples in regards to INA 101(a)(15)(K) (fiance visas), INA 203 and 204 (immigrant visa petitions), INA 207 and 208 (refugee and asylee derivative status), INA 212 (inadmissibility waivers), INA 237 (removability waivers), INA 240A (cancellation of removal), and INA 245 (adjustment of status). The BIA held in Matter of Zeleniak that the issue of the validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage. The Court clarified that the issue of good faith marriage is still a requirement and same-sex couples as well as opposite-sex couples must prove that their relationship is bona fide.

USCIS (part of the Department of Homeland Security) has stated that US citizens married to a foreign-born same-sex spouse may petition for their spouses immediately by filing the I-130 visa petition. The petitioner’s eligibility to petition and the foreign-born spouse’s admissibility as an immigrant will be determined through the adjustment of status or consular process according to the same rules and laws that govern opposite-sex marriages and will not be automatically denied due to the same-sex nature of the marriage. When given the hypothetical case of a same-sex couple that marries in a state recognizing same-sex marriage but residing in a state that does not, USCIS states, “In evaluating the petition . . . USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question moving forward.”

The Department of State which handles the consular processing of immigrant and nonimmigrant visas has stated that as long as the marriage is recognized in the place of celebration, the DOS will regard it as a valid marriage. A same sex marriage is valid for immigration purposes even if the couple intends ultimately to reside in one of the states that do not recognize same-sex marriages. Stepchildren acquired through same-sex marriages are eligible to the same extent as stepchildren acquired through opposite sex marriage. Further, while many same-sex couples live in countries where they are unable to marry, they will be eligible to pursue the fiance visa process to wed in the United States. Once the marriage is contracted in a state permitting same-sex marriage, the couple may apply for adjustment of status and undergo the interview process. Diversity lottery applicants and their same-sex spouses are eligible to receive visas even if the same-sex spouse was not identified on the original application. Typically, Diversity Visa applicants who do not include their spouse on their initial entry are disqualified; however, due to the Windsor decision, the Department of State will allow Diversity Visa applicants to add their same sex spouses after the fact for the 2013 and 2014 fiscal years. The DOS points out that consular officers should be wary of fraud issues.

Customs and Border Protection has not been as timely with it’s implementation plans post-Windsor. According to an August 2nd release, CBP is awaiting internal guidance on how to administer the INA provisions that permit same-sex couple to seek immigration benefits at ports of entry. In practice, CBP’s influence on this issue is limited to Canadians, who are visa exempt and may seek admission without a visa directly at a port of entry as a dependent of a nonimmigrant spouse. Until official guidance is provided, it is anticipated that CBP will not admit a same-sex spouse in a dependent classification. For non-Canadian cases, the CBP officer will likely defer to the Department of State’s determination of eligibility for the classification sought.

If you are in a same-sex marriage with a foreign-born spouse, contact The Nunez Firm to schedule a consultation. We have already started preparing same sex adjustment of status cases and intend to start filing in the near future. Managing attorney Jay Nunez will personally meet with you and help you better understand the immigration laws that pertain to your situation.

Case Brief: In Re Campos-Torres (BIA 1993)

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In re Ignacio CAMPOS-TORRES, Respondent

Issue Presented

The issue in this case is whether, under the rule stated in section 240A(d)(1) of the Act, an offense that is not “referred to in section 212(a)(2)” of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), will stop the further accrual of continuous residence in the United States, which is required to establish eligibility for cancellation of removal.

FACTS

The respondent, a native and citizen of Mexico, was admitted to the United States as a temporary resident on May 4, 1988, and adjusted his status to that of a lawful permanent resident on December 13, 1990. It is uncontested that on September 23, 1993, the respondent was convicted in the Circuit Court of Cook County, Illinois, of a single offense of unlawful use of a weapon, in violation of chapter 38, section 24-1(a)(7) of the Illinois Compiled Statutes Annotated. The respondent was sentenced to 18 months’ probation. On June 25, 1997, the Immigration and Naturalization Service issued and served a Notice to Appear (Form I-862), commencing these removal proceedings and charging the respondent with removability under section 237(a)(2)(C) of the Act.

Rule

A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

Analysis

The plain language of section 240A(d)(1) states that, as a prerequisite, an offense must be “referred to in section 212(a)(2)” of the Act in order to stop accrual of time. The phrase “referred to in section 212(a)(2),” the court stated, “could not be more clear, and we will apply its plain meaning.” The court reasoned that they are unaware of any legislative history that would overcome the strong presumption that these words mean what they say. The court would not interpret the statue the way the Service wanted, which was any offense in sections 212(a)(2), 237(a)(2), or 237(a)(4) would operate to cut off time. Furthermore, the court reasoned that its task “is not to improve on the statute or to question the wisdom of it, but rather to interpret the language that was enacted as law.”

Another important rule of statutory construction the court used to determine the issue was the “plain meaning” of the statute. Thus, in construing the language of section 240A(d)(1) of the Act, the court must also consider the language in section 240A as a whole. The court further noted that Congress referred to grounds of inadmissibility and deportability several times throughout section 240A of the Act. For instance, section 240A(b)(1)(C) refers to sections 212(a)(2), 237(a)(2), and 237(a)(3) of the Act, stating that nonpermanent residents who have been convicted of an offense under any of these provisions are ineligible for cancellation of removal. Similarly, in delineating special rules of eligibility for battered spouses or children, section 240A(b)(2)(D) specifically states that these rules apply only to aliens who are not inadmissible under sections 212(a)(2) or (3), or deportable under section 237(a)(1)(G) or sections 237(a)(2), (3), or (4) of the Act. Thus, under sections 240A(b)(2)(D) and 240A(c)(4), any alien who is deportable under section 237(a)(4) of the Act is categorically barred from a grant of cancellation of removal. Consequently, the inclusion of this ground of deportability within section 240A(d)(1) is merely an additional reference.

Simply put, the court said, “ it would be irrelevant whether a charge of deportability under section 237(a)(4) terminates an alien’s period of continuous residence or physical presence because deportability under that charge automatically renders an alien statutorily ineligible for cancellation of removal pursuant to sections 240A(b)(2)(D) or (c)(4) of the Act.” Thus, ignoring the duplicative reference to section 237(a)(4) in section 240A(d)(1) has no impact on section 240A as a whole, because the presence or absence of that language in section 240A(d)(1) has no effect on eligibility for cancellation of removal.

Holding

Accordingly, the court found that because the respondent’s firearms offense, which rendered him deportable under section 237(a)(2)(C) of the Act, is not referred to in section 212(a)(2) of the Act, it did not “stop time” under section 240A(d)(1).

The respondent’s period of continuous residence began when he was admitted as a temporary resident on May 4, 1988.  Therefore, the respondent has satisfied the continuous residence requirement of section 240A(a)(2).

Conclusion

The court sustained the respondent’s appeal and remand the record to the Immigration Judge for a hearing on the merits of the respondent’s application for cancellation of removal.