HOT TOPICS IN
IMMIGRATION LAW
2015
S
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 #1
CRIMINAL
CONSEQUENCES
S Duty of Criminal Defense Lawyer
S Padilla vs. Kentucky, 559 U.S. 356 (2010)
S Client’s Legal Status
S Research
S 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. KENTUCKY
559 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
S IMMIGRANT
S NON-IMMIGRANT
S DACA/DAPA
S EWI/VISA OVERSTAY
Client’s “Actual” Legal Status
S 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
S Admission
S Naturalization
S Removable (Deportation, 1997)
SAFE HARBORS
S Place on the record and make it clear if that’s the only
recommendation that the Prosecutors Office is making.
S “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.”
S “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
S Deferred Action for Childhood Arrivals (DACA)
S
Requirements: (Discretionary Approval)
S
Arrived to the United States before their 16th birthday
S
Continuously resided in the United States since July 15, 2007
S
Under the age of 31 on June 15, 2012
S
High school graduate, GED, Honorably Discharged, Enrolled in school
S
Not been convicted of a felony or significant misdemeanors
S
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
S Deferred Action for Parent Arrival (DAPA)
S
Lived in the United States without interruption since January 1, 2010
S
Physically present in the United States on November 20, 2014
S
Be physically present in the United States when applying to the program
S
No immigration status on November 20, 2014
S
As of November 20, 2014, have a child who is a U.S. citizen or lawful permanent resident
S
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
S 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.
S The injunction effects over 5 million undocumented immigrants.
S Injunction only applies to DAPA and the Expanded DACA
S DOES NOT apply to existing DACA Program that passed in 2012
HOT TOPIC #4
Special Immigrant Juvenile
Status (SIJS)
S The purpose of the SIJS program is to help foreign children
in the United States who have been abused, abandoned, or
neglected.
S Certain children who are unable to be reunited with one or
both parents can get a green card as a SIJS
S Children who get a green card through the SIJS program can
live and work permanently in the United States
S 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
S 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.
S 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 #5
U-VISA
S
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.
S
Crime must have occurred in the United States.
S
The perpetrator is not required to be a Legal Permanent Resident or United States Citizen.
S
Free to Apply (Form I-918)
S
Work authorization for a period of 4 years and can allow for U Visa holder to apply for Green
Card after 3 years.
S
Caution: Many applicants may need a waiver so screen case as appropriate.
S
Form I-192 ($585 current application fee)
HOT TOPIC #6
VAWA
S PARENT, SPOUSE AND CHILD (Step-Child)
S Qualifying family relationship
S You have suffered battery/extreme cruelty by your U.S.
citizen or permanent resident family member
S You have good moral character
S VAWA approval grants work authorization and possibly
Lawful Permanent Residency.
HOT TOPIC #7
NATURALIZATION
S 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 #7
NATURALIZATION
S 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