Tuesday, December 22, 2009

Danger of Notarios Publico

In the United States, the legal duties of the notary public are restricted to such tasks as witnessing signatures and certifying the validity of documents. But in Latin American countries, notarios publico receive extensive legal training and provide a range of legal services.

The problem is that many immigrants to the US fail to realize that notarios don't have the same standing her that they do in other countries. Andmany notarios, whose signs are common in the business districts of Hispanic neighborhoods, do nothing to dissuade their customers, or they simply overstep their bounds in efforts to be helpful.

But the result is the same: significant damage to an immigrant's efforts to secure a legal status that will permit him or her to remain in the US.

Immigration fraud is not confined to Hispanic Communities. "In the Hispanic community it is a notario. In the Arab-American community, signs just say 'immigration expert' or 'immigration," says Abed A. Ayoub, a legal advisor to the American-Arab Anti-Discrimination Committee in Washington D.C.

Our office has handle numerous cases where an immigrant has run afoul of USCIS because their notario failed to properly file the correct document or mishandled the application.

Tomorrow, we will be filing a Motion to Reopen an in absentia Final Order of Removal in a case in Seattle, Washington where the alien used a Russian Language Immigration Consultant who is now in prison for fraud.

Link to Story

Tuesday, December 15, 2009

U.S. Supreme Court Grants Cert on Question of Whether an Alien Has a Right to Effective Assistance of Counsel



CERT. GRANTED 2/23/2009


Petitioner, who has lived in this country for nearly 40 years and served in the United States Army, is a legal permanent resident of this country, not a citizen. In 2001 Petitioner was indicted for trafficking in marijuana - an offense designated as an "aggravated felony" under the Immigration and Naturalization Act (INA). Prior to entering a plea of guilty to that offense, Petitioner was incorrectly advised by his counsel that the plea would not affect his immigration status. Unfortunately,
because the offense was an aggravated felony, Petitioner's deportation is mandatory. Upon discovery of this fact, Petitioner sought post conviction relief in Kentucky's state courts arguing that his attorney had improperly advised him. The Supreme Court of Kentucky denied post conviction relief holding the Petitioner was not entitled to accurate advice from his attorney on immigration consequences because he had no Sixth Amendment right to counsel in that proceeding. Petitioner now seeks certiorari to review the following questions:

1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the INA, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and

2. Assuming immigration consequences are "collateral", whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.


Thursday, December 10, 2009

Lujan Exception Only Available in the Ninth Circuit's Jurisdiction

I have written about the severe consequences of any narcotics conviction to anyone not a U.S. citizen. Outside of the jurisdiction of the Ninth Circuit, such a conviction will result in deportation. The Lujan Exception provides relief to someone charged with "first-time, simple possession" of a narcotic if that person is eligible under a rehabilitative state statute equivalent to the FFOA (Federal First Offense Act).

"Indeed, although the BIA acquiesces in the decision in the Ninth Circuit, it correctly declines to follow it outside of that circuit. See In re Salazar-Regino, 23 I&N Dec. 223, (BIA 2002) (“[E]xcept in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under section 101(a)(48)(A) of the [INA].”)
Matter of Erick MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005).

The Attorney General's Decision further states:

"I do not decide whether the Ninth Circuit was correct in concluding that the new definition of conviction did not repeal the FFOA, and therefore, as the Ninth Circuit held, equal protection guarantees require that an alien with a state conviction who would have been eligible for FFOA relief had the conviction been rendered in federal court receive the same treatment as a alien with a federal conviction. I do note, however, that at least three circuits disagree with the Ninth Circuit. See Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that “it seems plain that rational-basis review is satisfied here”);
Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. 2003) (finding Ninth Circuit’s decision “untenable” and declining to follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-99 (8th Cir. 2002) (disagreeing with Ninth Circuit and declining to address possible repeal of FFOA by IIRIRA because no equal protection violation for treating alien convicted under state law differently from alien convicted under federal law where the sentences were dissimilar and Congress could have intended to provide relief only for federal convictions, over which Congress would have control)."