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 22, 2009
Tuesday, December 15, 2009
U.S. Supreme Court Grants Cert on Question of Whether an Alien Has a Right to Effective Assistance of Counsel
08-651 PADILLA V. KENTUCKY
DECISION BELOW:253 S.W.3d 482
CERT. GRANTED 2/23/2009
QUESTIONS PRESENTED:
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.
LOWER COURT CASE NUMBER: 2006-SC-000321-DG
DECISION BELOW:253 S.W.3d 482
CERT. GRANTED 2/23/2009
QUESTIONS PRESENTED:
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.
LOWER COURT CASE NUMBER: 2006-SC-000321-DG
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)."
"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)."
Wednesday, November 25, 2009
Ninth Circuit Court of Appeals Asylum Handbook
I recently ran across this handy little pdf file from the Ninth Circuit Court of Appeals which lists all the precedent cases involving asylum, withholding, and claims under the Convention Against Torture and thought I should post it on my blog site.
I will be drafting an opening brief to the Ninth Circuit on a CAT claim involving a Mexican National who was tortured by the drug cartel in a kidnapping for ransom scheme. The IJ and the BIA both conceded that he in fact was tortured, but held that he could safely relocate inside of Mexico. Our argument is that the breakdown of law and order inside of Mexico is so severe that there is no safe location in Mexico where the narco-gangs do not have influence or actual control.
9th Circuit Asylum Precedent Handbook -
I will be drafting an opening brief to the Ninth Circuit on a CAT claim involving a Mexican National who was tortured by the drug cartel in a kidnapping for ransom scheme. The IJ and the BIA both conceded that he in fact was tortured, but held that he could safely relocate inside of Mexico. Our argument is that the breakdown of law and order inside of Mexico is so severe that there is no safe location in Mexico where the narco-gangs do not have influence or actual control.
9th Circuit Asylum Precedent Handbook -
Thursday, November 19, 2009
IDENT / IAFIS Screening
I am reading an interesting book about the US Mexican Border, written by Tim Gaynor, a Reuters Reporter who spent years along the border and was named the 2007 Reuters Journalist of the Year for his immigration coverage.
In his book, Tim describes the IDENT system which is used to screen anyone arriving in the US by checking the arriving person's two index fingers against an immigration database. This is the first biometrics system going down a path of ever greater investigation available to all border stations and airports.
Another system also in use behind the scenes is the Automated Fingerprinting Identification System (IAFIS), which is a more thorough check that reads all ten digits and matches them against law enforcement databases. It is about the size of a tissue box. A detainee's thumbs are run over rollers and held against a flat pane of glass on top of the box, where they are photographed by a digital camera. Then all four fingers on each hand are wiped and held up against the glass and are photographed in turn.
"The IAFIS program scans the unrepeatable sequence of nodes and intersections in each of the prints and transforms it into a numerical code. The results are then matched with data held digitally in a live crime database held by the National Crime Information Center (NCIC) that holds information from federal. state, and local law enforcement throughout the US, as well as details on suspects, criminals, and fugitives sought by Interpol." Midnight on the Line, pg. 90.
In his book, Tim describes the IDENT system which is used to screen anyone arriving in the US by checking the arriving person's two index fingers against an immigration database. This is the first biometrics system going down a path of ever greater investigation available to all border stations and airports.
Another system also in use behind the scenes is the Automated Fingerprinting Identification System (IAFIS), which is a more thorough check that reads all ten digits and matches them against law enforcement databases. It is about the size of a tissue box. A detainee's thumbs are run over rollers and held against a flat pane of glass on top of the box, where they are photographed by a digital camera. Then all four fingers on each hand are wiped and held up against the glass and are photographed in turn.
"The IAFIS program scans the unrepeatable sequence of nodes and intersections in each of the prints and transforms it into a numerical code. The results are then matched with data held digitally in a live crime database held by the National Crime Information Center (NCIC) that holds information from federal. state, and local law enforcement throughout the US, as well as details on suspects, criminals, and fugitives sought by Interpol." Midnight on the Line, pg. 90.
Monday, November 9, 2009
California Penal Code § 1016.5 - Motion to Vacate Conviction
Just took on a case involving a Salvadorian National who had lawful status in the U.S. under TPS, (Temporary Protected Status). One of the requirements to maintain TPS status is that any alien cannot be convicted of a felony, or two misdemeanors.
Our client received two misdemeanor conviction, one of which was a conviction for Possessing an Assault Weapon, in violation of Penal Code § 12280(b).
We have two questions surrounding this conviction, one was the weapon actually an assault weapon under the statute, and two did our client receive the required advisement of any immigration consequences of taking a plea for possession.
The current state of the law within California was decided in People v. Superior Court (Zamudio), (2000) 23 Cal. 4th 183.In its decision, the California Supreme Court handed down a far-reaching decision concerning any post-conviction motion to vacate a conviction, specifically under Penal Code section 1016.5. The Court held that in order for a defendant to prevail on a motion to vacate, the defendant must show prejudice stemming from the trial court's failure to give the required advise concerning one or more of the 3 potential immigration consequences of a conviction: deportation, exclusion, and denial of naturalization, all in violation of 1016.5.
So our plan is to use a 1016.5 motion to get on the calendar and then to also argue the actual gun in questions was not in fact an assault weapon under the criminal statute.
Our client received two misdemeanor conviction, one of which was a conviction for Possessing an Assault Weapon, in violation of Penal Code § 12280(b).
We have two questions surrounding this conviction, one was the weapon actually an assault weapon under the statute, and two did our client receive the required advisement of any immigration consequences of taking a plea for possession.
The current state of the law within California was decided in People v. Superior Court (Zamudio), (2000) 23 Cal. 4th 183.In its decision, the California Supreme Court handed down a far-reaching decision concerning any post-conviction motion to vacate a conviction, specifically under Penal Code section 1016.5. The Court held that in order for a defendant to prevail on a motion to vacate, the defendant must show prejudice stemming from the trial court's failure to give the required advise concerning one or more of the 3 potential immigration consequences of a conviction: deportation, exclusion, and denial of naturalization, all in violation of 1016.5.
So our plan is to use a 1016.5 motion to get on the calendar and then to also argue the actual gun in questions was not in fact an assault weapon under the criminal statute.
Wednesday, October 28, 2009
Enforcement of H-1B Labor Condition Application
Nonimmigrant Employment Visa - LCA Enforcement
We took on a case involving an Indonesian Native who was sponsored by an Accounting Firm on an H-1B Visa Petition. The company filed the I-129, LCA, and supporting documents, and obtained an approved H-1B Visa for our client from 2008 to 2011.
However, once the visa approval was obtained, then dismissed him and never paid him according to the LCA contracted rate. Under the parlance of the U.S. Department of Labor (DOL), they "parked him." An employer can lawfully "park" one of their H-1B alien employees, but they are required to continue paying that individual.
20 C.F.R. § 655.731(c)(4) states, "If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), . . . the employer is required to pay the salaried employee the full pro-rata amount due, . . . at the required wage for the occupation listed on the LCA."
The only way that an employer can remove their obligation is by complying with 20 C.F.R. § 655.731(c)(7)(ii) which states in pertinent part, "Payment need to be made if there has been a bona fide termination of the employment relationship.INS regulations require the employer to notify the INS that the employment relationship has been terminated so that the petition is cancelled. See 8 C.F.R. § 214.2(h)(11)."
Pursuant to 20 C.F.R. § 655.806, our office filed with the DOL Employment Standards Administration (ESA), Wage and Hour Division (WHD) a Form WH-4 Complaint for all the backpay our client is entitled to.
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