Posted on July 22, 2015 in Immigration

When an illegal immigrant has been charged with a crime and is found guilty, he or she may be referred to as being found inadmissible or deportable. However, inadmissibility and deportability are not the same. Each refers to a different legal status, and confusing the two is not advisable. Both must be dealt with differently in terms of arguing against removability.

Definitions

Inadmissibility deals with the rules surrounding those who want to enter the United States, in either an immigrant or non-immigrant capacity. Deportability is the power of United States Citizenship and Immigration Services (USCIS) to keep someone from staying in the United States. There are several different reasons why one may be rendered inadmissible; however, most of the reasons why someone may be rendered deportable have to deal with criminal acts.

U.S. immigration law recognizes two different categories of crime that can affect one’s immigration status. The first is aggravated felonies (AFs), which are defined primarily in 8 USC §1101. AFs are crimes which involve particularly serious offenses against morality, such as murder, sexual assault and kidnapping. However, the difficulty is that some crimes which are not felonies under criminal law are still considered AFs for immigration purposes. Hence, this can lead to significant confusion. Examples include bribery, obstruction of justice, and failing to appear in court (if the underlying offense carries a penalty of more than one year).

The second category of crime is crimes involving moral turpitude (CIMTs), which actually have no specific definition in U.S. law, but involve at least one element that constitutes moral turpitude: fraud, larceny, and/or intent to harm. If someone commits a CIMT within 5 years of admission into the country, or commits two CIMTs within a single ‘scheme’ or enterprise—for example, kidnapping and transporting a minor across state lines are two CIMTs that make up a single endeavor—he or she is eligible to be removed. Crimes of moral turpitude may also be aggravated felonies, and aggravated felonies may be CIMTs, but the two categories do not have to overlap.

Confusing Consequences

Being convicted of an aggravated felony will almost always render someone deportable, meaning that he or she can be expelled from the country. However, not all aggravated felonies will render someone inadmissible. Because the rules regarding CIMTs and AFs are somewhat convoluted, it is possible for a crime to render someone both inadmissible and deportable. It may simply confer inadmissibility or deportability, but it is possible to be judged both.

Also, there are several exceptions to both sets of rules. For example, a ‘petty offense exception’ exists which can render a CIMT conviction not usable for deportation purposes. This comes from immigration case law, notably Matter of Mendoza, decided in 1965, and it states that a conviction for one CIMT may be set aside if certain requirements are met. They are:

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 Posted on July 20, 2015 in Family Law

The Supreme Court deciding in favor of same-sex marriage has been an incredible victory for those who have been denied equal protection of fundamental rights. Having the right to marry expanded to all persons interested, regardless of their sexual orientation, has many contemplating the possible repercussions that may affect persons who entered into civil unions and domestic partnerships because marriage was not available to them. Because civil unions and domestic partnerships were honored by states where same-sex marriages were not permitted and by corporations who wanted to extend benefits to domestic partners of their employees, the future of domestic partnerships and the benefits that were provided to domestic partners is being decided.

Domestic Partnerships/Civil Union Law in Illinois

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 Posted on July 15, 2015 in Immigration

When you or a loved one is involved in deportation proceedings, you may be ready and willing to try any possible avenue to keep your loved one in the country. Cancellation of removal—a last-ditch option that many apply for simply as a proverbial Hail Mary—may actually be the best possible fit for some cases.

History and Definition

Cancellation of removal is defined by United States Citizenship and Immigration Services (USCIS) as an immigration benefit that can be granted by an immigration judge, and adjusts one’s status from deportable to that of a permanent resident alien. Still, it may only be granted to one who is in deportation proceedings, and more than a bit of the final determination is based on a judge’s discretion.

Cancellation of removal has only existed in its current form since April 1997, when the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) was passed. Before that date, a similar procedure— suspension of deportation—existed. However, suspension of deportation did not differentiate between documented and undocumented immigrants, and the standard one had to meet was markedly lower.

LPR vs. Non-LPR

Cancellation of removal is available, at least in theory, to any individual who is in deportation proceedings, but there are different criteria set out for lawful permanent residents (LPRs, or “green card” holders) and everyone else to meet. The rationale is that LPRs have already had to prove various factors, such as their good moral character, when applying for that status. So, unless something has fundamentally changed, there is no need to require proof of it a second time.

The criteria that must be met for LPRs to have a chance at cancellation of removal are set out in the Immigration and Nationality Act (INA), §240(A). There are only three: (1) an alien has been an LPR for no less than 5 years; (2) he or she has resided in the U.S. continuously for at least seven years in any status; and (3) he or she has not been convicted of an aggravated felony, which is a crime held to have specific immigration weight due to its involving deception or exceptional violence.

The criteria, by comparison, for non-LPRs is somewhat more involved:

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 Posted on July 13, 2015 in Family Law

With the U.S. Supreme Court making decisions regarding the matter of same-sex marriage, soon states might have to start passing legislation that would imbue same-sex couples with the rights afforded to married couples already acknowledged by the United States. There will, however, be a considerable lag between the possible passing of U.S. Supreme Court’s holding and potential corresponding legislation. During that time period, however, same-sex adoption issues and parenthood issues will still be on the dockets until the corresponding legislation has been passed.

Same-Sex Adoption Rights in Illinois

Luckily for same-sex couples in Illinois, which is one of the most progressive LGBTQ states in the nation, they will not be dealing with the same discrimination that is rampant in other states. The Illinois Department of Children and Family Services permit that all families that are able and willing to care for children are allowed to adopt without any prohibition against same-sex individuals or partners. However, this does not mean that discrimination against same-sex individuals or couples in other states does not have an impact on those lucky enough to live in Illinois.

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 Posted on July 08, 2015 in Immigration

Many foreign citizens living in the U.S. feel trapped in abusive marriages because of their immigration status yet are unaware of the options they might have to separate themselves from their abuser, or even where to begin to look. There is hope, however; United States Citizenship and Immigration Services (USCIS) has a category of visa which permits some of these individuals to escape their abusers and remain in the country. The Violence Against Women Act (VAWA) is a piece of legislation that has made it easier for battered spouses to obtain legal status without being attached to their abusive mate.

The Origins of VAWA

The Violence Against Women Act was passed in 1994 as a response to an increase in crimes against women. It guarantees certain safeguards for crime victims, and has been extended so that men can take advantage of its protections in certain circumstances. In the same year, provisions in VAWA modified the Immigration and Nationality Act (INA) so that battered spouses (who are victims of domestic violence, which is a crime) could enjoy greater protection from their abusers. While VAWA is used most often by spouses, the provisions in the INA actually apply to spouses, children and parents of U.S. citizens or permanent residents. Not every abusive relationship is romantic, after all; other family members touched by abuse deserve equal protections.

One situation that may occur is when a U.S. citizen or permanent resident files an I-130, Petition for Alien Relative, for their spouse, parent or child, and then hold that over the person’s head. The battered person comes to think that he or she has no alternative but to remain with the abuser, because they fear the consequences of deportation. He or she may have entered the country without inspection, and thus would face very real hardships if sent back to their homeland. However, in truth, VAWA does not consider the status of a battered person in their application, at least not in theory.

How to Apply

The only requirements are that (1) a person be the spouse, parent or child of a U.S. citizen or permanent resident; (2) he or she be the victim of abuse or battering from that person, and (3) he or she be a person of good moral character. If you meet these requirements, you may then file an I-360, a Petition for Amerasian, Widow(er) or Special Immigrant, without any sponsor (one would normally be required). If the I-360 is approved, and you do not have legal status, you may be placed in deferred action, which allows you to remain in the country.

The “good moral character” requirement can be problematic for some potential applicants, especially if they entered the country without inspection. Children under age 14 are presumed to be of good moral character, but not adults. VAWA relief can and will be denied if it is determined that you are not of good moral character. The most common provided reason is past involvement with drugs or other crimes, which can be said to be deleterious to the fiber of society, but it is not unheard of for past immigration infractions to be held against you. In this case, it is best that you consult with an experienced immigration attorney.

Get Experienced Help on Your Side

The passionate Chicagoland immigration attorneys at Mevorah & Giglio Law Offices have years of experience in helping people gain legal status, and we will do our best to help you. Contact our office today for a free initial consultation.

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 Posted on July 06, 2015 in Family Law

Over the last decade, there has been a flooding of information regarding health issues and children. There have been a number of reports that childhood obesity can have a significant impact on not only this generation but generations to come. As a result, many movements have hopped to the scene to help parents deal with issues surrounding childhood obesity. It has been estimated by the Centers for Disease Control and Prevention (CDC) that in 2012, one third of all children and adolescents were defined as overweight or obese.

Parental Responsibility in Child Nourishment

Though many of these programs inspire healthy eating choices and an active lifestyle, many parents are taking these programs to the extreme and are actually injuring their children as a result. Parents have a parental responsibility to feed and adequately nurture their children in a healthy way.

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 Posted on June 24, 2015 in Immigration

To obtain asylum in the United States, it is necessary to make a convincing showing to an immigration judge that you have a reasonable fear of danger if you return to your home country. This can be done by showing that there is a likelihood that you will be persecuted, or it may be shown by displaying evidence of past persecution. However, not every instance of abuse rises to the level of persecution. It is important to know the difference, because immigration judges certainly do.

Asylum Law Fundamentals

When a person applies for asylum in the United States, there are fundamental facts he or she must be able to prove to the immigration judge overseeing his or her case. The Immigration and Nationality Act (INA) defines a refugee as someone who has a well-founded fear of persecution in the future, either based on past persecution or on risk of persecution in the future if returned to their homeland because of their membership in a particular social group.

Persecution, either in the past or in the future, has no specific definition in U.S. law. The INA defines some examples that always qualify as persecution, such as threats against someone’s life or liberty based on race, religion, nationality, political opinion, and other beliefs. However, the list is not meant to be exhaustive. It is not always physical; if severe enough, emotional or mental abuse can qualify as persecution.

The INA also specifies that the agent of this persecution must either be a governmental entity or an entity that the government has shown an inability (or unwillingness) to control. The prevailing opinion is that the government of a country is supposed to be able to control fringe elements within its borders, and if they can do so, the applicant can rely on their government instead of fleeing the country entirely.

Defining Persecution

Immigration Equality has defined five broad categories into which behavior classed as persecution by judges routinely falls. They are:

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 Posted on June 22, 2015 in Family Law

When it comes to parental rights, Illinois, along with other states, hold that that these rights are fundamental in our society. There are significant number of protections that have been put into place to protect parents from any government interference with the raising of children. The main tenet behind parental rights in our society is that the government can only infringe on these rights when it is in the best interest of the child to do so and the action is taking place to ensure the child’s safety.

The Indian Child Welfare Act: The Resurgence of ICWA Cases

A number of distinct cases have been putting parental rights to the test. The cases in question involve American Indian children and the Indian Child Welfare Act (ICWA), a federal law whose purpose is to protect Indian children and promote the security of Indian tribes and Indian customs.

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 Posted on June 17, 2015 in Immigration

For those who marry a U.S. national, immigration to the United States is a common occurrence. Often, it is the method by which immigrants obtain either a green card (Lawful Permanent Resident [LPR] status) or citizenship. However, in some situations, if your divorces your foreign spouse, it may adversely affect his or her immigration status.

While the Application is Pending

Generally speaking, a divorce during the application process will affect your visa or green card application because your spouse’s sponsorship must be rescinded. When someone sponsors you for a green card or for a visa, he or she is saying that they agree to vouch for you and be responsible for your financial upkeep. Only certain family members may serve as a sponsor (if you seek LPR status via family petition, as most do); an ex-spouse is unfortunately not one of them.

If your spouse has submitted his or her I-130 (Petition for Alien Relative) but no reply has been received at the time of your divorce, you may not pursue that petition any further, because your sponsor has effectively been disqualified. The I-130 merely begins the immigration process; true progress does not occur until you have been interviewed and investigated. While no binding presumption will be attached to you, United States Citizenship and Immigration Services (USCIS) may take a divorce or withdrawal of your petition as a point against the veracity of your marriage.

The other common scenario where divorce might play a role is if you have been approved for conditional permanent residence. Sometimes, if a foreign national has been married to a U.S. citizen for less than two years, USCIS may grant LPR status on a conditional basis, usually for two years. If their concerns are addressed and the person appropriately files for the conditions to be lifted, then a full, unconditional green card is issued and the person becomes an LPR. However, part of the appropriate filing to lift the conditions is a showing that your marriage is continuing and legal. If you divorce or receive an annulment before that two year period has passed, you will become deportable, as you will be out of legal status according to USCIS.

After the Application is Approved

Once your application for (unconditional) permanent residence has been approved, there are very few adverse consequences for a foreign national divorcing his or her U.S. citizen spouse. The only consequence of any note is that it may take you longer to obtain citizenship than it would if you were still married. Citizenship requires that you have 5 years of continuous residence in the U.S., but if you are married to a U.S. citizen, only three years are required.

It is important to note that at the time of your citizenship application, USCIS may review your file again to reassure themselves that nothing was fraudulent or deceitful, but it is very rare that this review results in any negative consequences unless you are actually guilty of fraud. Still, you may be asked to provide more information to USCIS before your citizenship application can go forward.

An Immigration Attorney Can Help

If you are going through a divorce, worrying about your immigration status is likely the last thing on your mind. The skilled Chicagoland immigration attorneys at Mevorah & Giglio Law Offices can help handle this complex process, ensuring that you are free to focus on your divorce being handled appropriately. Contact us today via telephone to discuss your options.

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 Posted on June 15, 2015 in Family Law

The old adage states that money can be a great equalizer. Those who are in the middle of a divorce are definitely able to attest to that claim, especially when it comes to divorce proceedings. In many cases, in divorce proceedings, or in other civil and criminal actions, the amount of available funding for these legal activities can greatly influence one’s case. It could make the difference between more than just winning and losing, but also the extent of property that each party may be able to acquire after equitable distribution.

Financial Issues Resulting from Divorce

Though many married women are currently employed and many are the breadwinners of the family, there are still many instances where women are still at a disadvantage financially because of a disparity in income due to the wage gap seen between the sexes, or a decision to stay at home with the family. These issues are exacerbated by the fact that divorce settlements can drag on for months and even years, especially when the relationship becomes acrimonious as a result of the divorce.

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