Tag Archives: Immigration Court

DC Post-and-Forfeit Is Not A Conviction For Immigration Purposes

A colleague recently asked me whether the DC post-and-forfeit procedure after arrest is properly considered a conviction under federal and immigration law. The simple answer is that the post-and-forfeit procedure does not equate to a conviction. Continue reading

The Need For Discretion

Recently, in browsing a well-known local lawyer’s website, I found the following “News” article on their blog:

Attorney X convinced a [local] prosecutor to dismiss Armed Robbery charges, all felonies, and all gun charges, despite the defendant being caught nearly red-handed with a shotgun in his fleeing vehicle.

The defendant plead to Second Degree Assault, a misdemeanor, giving him a strong chance to avoid certain deportation that he would have faced with any felony or gun charge. He will be eligible for parole in one month.

While there may be some ethical concern over publicizing past successes without adequately informing potential clients that there is no guarantee of such success in any particular case, that is not my main concern. The biggest problem with this self-serving news article is that it may harm the client in the future. Continue reading

Is Simple Assault a Crime Involving Moral Turpitude post-Silva-Trevino?

As discussed in a previous post, in Silva-Trevino, ex-Attorney General Mukasey attempted to drastically revise nearly a century of jurisprudence governing the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT).  This post will attempt to answer the question –  when are the Immigration Courts allowed to look beyond the record of conviction to determine whether a conviction for simple assault is a CIMT?

EDIT: After the Fourth Circuit’s recent decision rejecting Silva-Trevino in Prudencio v. Holder, this approach is looking more and more vulnerable to attack.  Check to see whether Silva-Trevino is still good law in your circuit. I discuss the Fourth Circuit decision here.

FURTHER EDIT – IMPORTANT: The Supreme Court’s June 2013 decision in Descamps v. US clarified when the modified-categorical approach is to be used for determining whether a crime is a crime of violence. This has completely changed the Fourth Circuit’s analysis of whether simple assault type crimes will be a crime of violence (and therefore a CIMT). See US v. Royal (4th Cir., Oct. 2013).  I imagine that the situation is changing quickly in other circuits as well.

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Cancellation of Removal for non-Permanent Residents Checklist

Under certain circumstances, some people put into removal proceedings who are not Legal Permanent Residents (LPRs) may be eligible for a form of relief called “Cancellation of Removal”, which allows certain non-LPRs to “adjust status” and become an LPR.  In plain English, Cancellation of Removal allows some non-green card holders to ask the Immigration Judge to “cancel” their removal proceedings and allow them to stay in the U.S. as an LPR.  The statute that provides this relief is INA §240A(b)(1).  (There other types of Cancellation for LPRs and for battered spouses or children of LPRs or citizens – INA §240A(a) & (b)(2), respectively). The purpose of this post is to provide a checklist for eligibility for Cancellation of Removal for non-permanent residents.

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Immigration Court Asylum Victory!

Today in Baltimore Immigration Court, I was lucky to be able to help a client from Eritrea get asylum.  My client had been subjected to almost six months incommunicado detention where she was raped and beaten after speaking out against the government at a work meeting.  Like many Eritrean women, she had also been subjected to female genital mutilation (cutting/circumcision) that continues to cause her much pain.  She was granted asylum on two grounds: membership in the particular social group of Tegrigna women opposed to FGM, and on account of imputed political opinion.  I am very grateful to have been a part of helping this client get asylum protection from removal.

Asylum for Draft Dodgers

Not too long ago, I helped a Jehovah’s Witness who was persecuted for refusal to serve in the military get asylum in immigration court.  In some countries, conscientious objectors are treated very poorly (including torture).  The US will generally not grant asylum to people who fear harsh punishment for refusing to serve in the military, but there are certain exceptions.   The two main exceptions are (1) when a draft dodger would suffer disproportionately because of race, religion, nationality, social group, or political opinion; and (2) when the military takes the type of actions condemned by the international community as contrary to the basic rules of human conduct. Continue reading

Opening Argument in Upcoming Eritrean Asylum Case Involving Jehovah’s Witness

I have an upcoming merits hearing in the Baltimore Immigration Court for a Jehovah’s Witness seeking asylum from Eritrea.  I plan to present an opening argument if the judge allows (not all do).  For those unfamiliar with Immigration Court, these are bench trials in the nature of evidentiary hearings before an administrative judge.  These hearings are usually just a few hours long, and there is a DHS ICE lawyer who will require the asylum-seeker to meet his or her burden of proof of eligibility.  I am posting my draft opening argument because it illustrates many of the reasons I am so proud to participate in the asylum process.  Asylum is truly an example of America’s greatness.  It will be something like the following:

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