The "Criminal" Alien and Cancellation of Removal

A Lawful Permanent Resident (LPR) is an individual who acquires legal status in the United States. However, the word “permanent” is a misnomer because this status is not “permanent” for all intents and purposes, it can be lost and the individual may potentially be forever removed to their country of birth. On September 30, 1996, President Clinton signed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). With the passage of IIRIRA, aliens now had to fight to keep their resident status in the United States upon the commission of certain crimes. IIRIRA expanded the list of crimes and aggravated felonies. Now, something as simple possession of marijuana for personal use can become an aggravated felony for purposes of immigration law if the word “sale” is included in the plea agreement. An aggravated felony bars the resident form any relief.

Cancellation of removal for permanent and non-permanent residents under INA § 240A is a form of discretionary relief that is granted by an immigration judge once removal proceedings have commenced. Removal proceedings can commence after the sentence of a crime is imposed on the individual or it can be commence many years after. Essentially, you could have committed a deportable offence in 1998, plead guilty to it and in 2010 you are crossing the border coming back from a trip abroad and you are placed in removal proceedings because now you are “inadmissible” and as such, the government wants to remove you from the United States.

Lawful permanent residents may be placed in immigration removal proceedings due to certain criminal convictions that make them become inadmissible or deportable from the U.S. LPRs convicted of aggravated felonies are entirely barred from cancellation relief. In order to qualify for relief, the LPR has to prove the following: (1) Has been an LPR for not less than five years; and (2) Has resided in the United States for not less than seven years in any status; and (3) Has not been convicted of an aggravated felony.

An individual placed in removal proceedings who does not have any legal status in the United States may qualify for cancellation of removal if the following conditions are met: (1) Has continuously resided in the United States for at least ten years; and (2) Has been a person of good moral character throughout this time; and(3) Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in the Immigration and Naturalization Act; and (4) Establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a United States citizen or legal permanent resident.

A grant of an Application for Cancellation Removal has the effect of "pardoning" or "forgiving" the basis for the alien's deportability and returning the alien status to that of a lawful permanent resident. Cancellation of Removal can only be granted once in a lifetime for the alien. A denial of an Application for Cancellation of Removal results in an administrative order returning the alien to his country of birth through a removal or deportation order. If an alien accepts an order of removal or deportation, the U.S. will carry out the order and remove the alien from the U.S. Alternatively, an alien may seek review before the Board of Immigration Appeals, and thereafter in a Federal Court of Appeals for the District in which they reside. However, for most immigrants, the process can become very expensive and although these proceedings have the elements of a criminal procedure case, deprivation of liberty, deprivation of property and even the violation of "due process of law" under the 14th Amendment to the Constitution, immigrants in immigration proceedings do not have the right to a lawyer at the government’s expense. If your loved one faces removal proceedings, The Law Offices of Maricela Amezola can help you with this process. Please call us at (619) 793-5303 to discuss your options.

Immigration to the United States, through the marriage of a United States Citizen is one of the fastest methods to adjust the status of an immigrant. Provided there are no grounds for inadmissibility, a couple can start the process right after their marriage takes place. As is the case with any newly married couple, the couple is granted a green card on a conditional basis meaning the couple will be required to file an I-751 two years after the green card is approved. The couple must file the I-751 jointly to remove the conditions, however, if there is good cause, the immigrant can self petition and will eventually have to explain the reason for the divorce.
The I-751 is generally accompanied by evidence that the marriage was entered in good faith. This evidence consists of joint bank account information, joint asset ownership documents, lease agreements and insurance information among other things. This seems to be a pretty straightforward process, however, if there is not enough evidence submitted to USCIS, they might schedule an interview to determine whether or not the couple is legitimately married, i.e., if there has been marriage fraud.
A couple married in 2004, adjusted husband’s status in 2005, filed to have his conditions removed in 2007 and because of various mistakes of previous counsel and a failure to change husband’s address in the system, they never received their interview date. The Law Offices of Maricela Amezola was retained to look into the status of their case and the reason for the delays. After extensive research, we found out that not only was Husband’s case closed because they did not show up to the interview, he was in fact in removal proceedings. After meeting several times with USCIS information officers, and supervisors, we reopen his case, terminated the immigration proceedings and obtain an interview date. Today, we are happy to report that we had their I-751 case approved. It took this couple three years to finally have his conditions removed from his green card.
The San Diego County couple was extremely happy, and the husband is looking forward to applying for naturalization as a United States citizen. If you are experiencing unreasonable delays with the processing of your case or you are in the process of filing an I-751, contact The Law Offices of Maricela Amezola to schedule a confidential consultation. Attorney Maricela Amezola will personally discuss your case with you and help you understand the options available to you.

Annulment vs. Divorce

In California, a marriage may be legally dissolved, which means the parties return to their “single” status in three ways:
(1) By death of one of the parties
(2) A divorce judgment; or
(3) Nullity of the marriage.
Whether or not a marriage is “valid” for purposes of California law is question of degree. Dissolution of marriage and nullity of marriage are based on contradictory assumptions. For example, under Family Code §2310, a dissolution of marriage is a case brought in California court to dissolve a “valid” marriage. On the other hand, under Family code §2200, a marriage is nullified when it was “not valid” to begin with. This questions the essence of the marriage and asks whether or not such marital status was ever in existence.
An annulment may be granted only when a marriage is determined to be “void” or “voidable.” A void marriage is invalid from the beginning. There are two ways a marriage can be void: a bigamous (with some exceptions) or incestuous marriage. What this means is that the marriage never legally existed. Technically, if its void since the beginning, nothing more needs to be done to terminate the marriage; however, it is better to obtain a judgment of nullity in a void marriage because it provides a judicial ruling which becomes part of the public record and therefore eliminates any doubt about the party’s marital status.
A voidable marriage is valid until it is annulled. The marriage is invalidated only from the time it is declared by a court of competent jurisdiction. Essentially, this means that although is a “voidable” marriage, if the parties choose to cure the defect, the marriage can be determined to be valid. What makes a marriage “voidable?” The age of the person at the time of marriage, a previous marriage, unsound mind, fraud, force or incapacity.
With a nullity, there is no jurisdiction requirement to file for divorce and under California law, you do not have to wait the statutorily required six months before a divorce is granted. A judgment of nullity is said to “relate back” and erase the marriage and all its implications from the outset.

The Interplay of Family & Immigration Law

Family and Immigration Law are very different areas of law: one is based on statutory law and the other is federal. As a lawyer, one can practice immigration law all over the United States whereas family law is state specific and you must be licensed in that particular state before you practice law to walk into court with your client. But even though these two areas of law seem to be so different, they do cross paths once in a while. Imagine a client walking in to your office and telling you that they want to get a divorce but they fear their husband because he is physically and mentally abusive towards her. She tells you that she is illegal in this country and that he has threatened to call ICE and have her removed from the United States, not to mention the fact that she will never see her children again. What can you do? As a Family law lawyer, you tell her that she needs to obtain a restraining order against him which if she is able to show her abuse allegations are true, that restraining order will be granted for at last three years. Then what? The restraining order will be in effect and the local law enforcement will protect her from the abusive husband but who will protect her from ICE? Many women (and men) do not know that they do not have to stay in an abusive relationship with their abusers if immigration consequences is the only reason. There is help available for them.

The Violence Against Women Act (VAWA) was passed by Congress and signed into law by President Clinton in 1994. VAWA created special provisions in immigration law to protect battered noncitizens who are married to, or recently divorced from US Citizens (USC) or Lawful Permanent Residents (LPR) can, in certain circumstances, self-petition to obtain LPR status or to remove the condition on their 2-year Conditional Permanent Residence cards.

Under normal circumstances, the USC or LPR spouse petitions for their relative, i.e. immigrant (or illegal) spouse. This means that the USC or LPR initiates the immigration process and attend an interview with immigration authorities along with the immigrant spouse in order for the petition to be granted, i.e. green-card. In domestic violence relationship this could mean that the abusive spouse (USC or LPR) will use his/hers ability to control the immigration status of the victim as yet another method of abuse. VAWA eliminates this extremely damaging power dynamic and allows the victim to “self-petition” for their green-card. What this means is that a victim no longer needs the abusive USC or LPR to petition for them and obtain a “green card.” The victim can petition herself/himself and petition for the children as well. Essentially, the abusive USC or LPR plays no role in the immigration process and they do not even have to know the victim is self-petitioning—in fact, the law is clear, the government may not inform the abusive USC or LPR of the VAWA self-petition.

In order for an individual to qualify for a self-petition immigrant application, they must fall within one of these categories:

• Abused spouses of U.S. citizens and LPRs
• Non-abused spouses of US citizens or LPRs whose children are abused (need not be biological child of abuser)
• Abused children (must meet the definition of a “child” under INA § 101(b)) of USCs or LPRs)
• Abused children of USCs may file until age 25 if main reason for delay is abuse;
• Abused parents of USC children
• Abused intended spouses, meaning a spouse who entered into a bigamous marriage in good faith

In order to self-petition, you must prove:

• That abuser is a USC or LPR
• You are legally married to abuser and the marriage was entered into in good faith
• You suffered from Battery or extreme cruelty
• You were residing in the United States
• Self-petitioner lived with abuser
• Self-petitioner’s current residence
• Good Moral Character (3 years prior)

There are very strict document gathering requirements and evidence which must be submitted along with the application to prove the abuse/violence, status of the abuser and the immigrant. Because the victim has already been through so much abuse, despair, distrust, fear and anguish, this is a job best left to an attorney whether is through free legal services or retaining a private attorney.

Legal Immigration Family Equity (LIFE) Act

Under the current system, once a visa is available, an immigrant who is in unlawful status must travel to his/her home country to obtain a visa. However, many immigrants who are in unlawful status cannot return to their countries because in 1996, Congress enacted the three and ten year bars. The three year bar applies to immigrants who reside in the United States unlawfully for more than six months and less than one year. The ten year bar applies to immigrants who reside in the United States unlawfully for more than one year. Thus, if an immigrant is in unlawful status, either the three or ten year bar may be triggered. That means that if the immigrant travels abroad to obtain his/her lawful permanent residence, he/she will be stuck in his/her country for either three or ten years. Although the intent on creating the three and ten year bars was to compel immigrants to leave the country, the result was the opposite; because of the bars, immigrants stayed in the United States in unlawful status.
On December 21, 2000, the President of the United States signed a bill entitled the LIFE Act into law. A part of the LIFE Act is the amendment of Section 245(i) of the Immigration and Nationality Act. The original Section 245(i) was enacted in 1994 and allowed aliens who were out of status, entered the U.S. without inspection, or violated the terms of their non-immigrant status to file an adjustment of status if they were beneficiaries of immigration petitions or labor certification applications filed by January 14, 1998. An alien who missed the 01/14/98 deadline could not adjust his/her status if he or she was out of status, entered the U.S. without inspection, or violated the terms of non-immigrant status. The LIFE Act amended Section 245(i) by extending the deadline to April 30, 2001. According to USCIS, as long as you had any "approvable when filed" family petition or labor certification application before the April 30, 2001 deadline, you are "grandfathered" under Section 245(i). Section 245(i) ameliorates the harsh consequences of the three and ten year bars. By paying a hefty fine an immigrant may obtain lawful status in the United States without traveling and without triggering the three and ten year bars.
To be eligible to take advantage of 245(i), the person must meet the following requirements:

1. Physically present in the United States on December 21, 2000;
2. An immigration petition or a labor certificate application is filed for the benefit of the Alien on or before April 30, 2001;
3. The immigration petition or the labor certification application must be approvable at the time of filing. (It means that the application is good on its face); and;
4. Paying a $1,000 penalty at the time of filing I-485.

Remember, this is not legal advice, merely a form of information for all of those people out there who might benefit from this law.

The Road Less Traveled!!!!

The road to law school was not an easy road to take; I had to face rejection, disappointment and most importantly, I had to face the biggest monster—ethnicity. My journey began in 2001 when I took my first LSAT test; that’s right, the first of three test. You see, in this country, you MUST get a high score on the LSAT along with a high G.P.A. (3.0 or higher) in order for schools to take you into consideration. That is the reality I had to face early on: I had a high GPA but a low LSAT score. I was finally admitted to one of the law schools in Michigan and I moved. Just when you think you are done, you still have to graduate and pass the bar to get a license to practice law—choosing to be an attorney is the most rewarding experience ever; walking into the courtroom to argue your first case is priceless!

A bit of background information on me is that I grew up in a low income household surrounded by lawless individuals, gangs and teenage pregnancy. My high school guidance counselor did not believe I could be an attorney; her exact words to me where “a girl from the valley, never leaves the valley!” Not only did I leave, I never went back. Today, I am tempted to make a copy of my law diploma and send it to my high school counselor—the bad thing is that she is already retired. I feel you need to learn about my background to understand my position on certain issues and to understand any biases that might influence the way I write; I try to keep myself neutral but the reality is that all individuals carry with them the baggage called life and neutrality is not “reasonable” to achieve. I am sure I was not the only student with so much obstacles in achieving their goals; in fact, I know the plight of many minority students is the same—having to face rejection in the form of racism, prejudice and cultural awareness. I went to a law school where the student body consisted of less than 5% minorities. The minorities were later broken down by Latinos, African-American, Native-American and Asian. Less than 5%! Talk about a culture clash for me—I grew up in the San Joaquin Valley in California, surrounded by Latinos. I realized here there are not many of us in the legal profession or in positions of power and that could be an indication of why we are so underrepresented. I survived and graduated with top honors—professors would often tell me law students do not earn A’s, but here I was, a Latina girl from the valley, not only earning A’s but obtaining the highest achievement of all—Graduating Cum Laude.

I made my way back to California and I sat to take the bar in the Summer of 2007. I must admit that it was a very tough 4 months. I studied from 7:00 a.m. to 12:00 a.m. every single day. The only day I took off was for my sisters’ college graduation. I could not miss this day at all. You see, I have three other sisters who are highly educated—Paula has a Bachelor’s degree from University of California, Davis and a Master degree from UCLA; Valeria will obtain her dual bachelors degree in Nursing and Psychology from San Diego State University; and, Eva, who has a Bachelor’s degree from UCSD and is currently working on her Master degree from San Diego State University. I am very proud of my sisters—we are all highly educated individuals with high expectations of each other. But I digress; I finally sat for the bar for three consecutive days, eight hours each day. I walked out the last day feeling drained; my marathon had ended. I took the next flight to Cancun for a week and I forgot about this ordeal. Now I had to wait four months to obtain the results. On Friday, November 16, 2007 I found out that I had passed! Finally, I had achieved the highest goal in my life and I felt as if I had won the lottery. Like always, I had my family by my side, celebrating and making this day a very special day to remember. The most important person there was my husband, Javier, who had been there for me since day one. He is my pillar, my rock and my foundation.

Today, I have had the fortune to practice law in a beautiful city. I have experience in Family Law and Immigration Law. I have decided to jump on the “solo” boat and now I am sailing through the ocean of law! With the extra time that I now have I will finally give back to the community as I always wanted to do; by volunteering my time to several organizations and mentoring new attorney as much as they need. This is my way of saying to them, if I did it, you can too. I also dedicate some of my time in speaking engagements at the local high schools with at-risk students. I have also taken a couple of pro bono cases and I feel they have been very rewarding. With that, I feel is a good breaking point. Remember, these are my own thoughts, and emotions.

My next posting will be on a legal topic related to either Family Law or Immigration Law….till next time!

Welcome to Maricela’s De Facto Law Blog!

This project has been a long time coming. I have wanted to write a blog for a very long time as I feel the need to empower people with knowledge in what I consider to be very complex areas of law. What a better time than to start this new decade with this Blog. My years of experience have taught me that the rights individuals give up for their lack of knowledge are endless. My hope is to create a following where people can log on to my site and find a new piece of fact either in Immigration or Family Law they already did not know. The postings on my blog will be my personal thoughts and opinions relevant to a certain area of law. It is not intended as legal advice and at no time does this create an attorney-client relationship.