Intersection of Immigration Practice with other Areas of Law

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1 Intersection of Immigration Practice with other Areas of Law The Chander Law Firm A Professional Corporation 3102 Maple Avenue Suite 450 Dallas, Texas By Vishal Chander Managing Attorney (214)

2 Focus and Outline Not a primer on Immigration Law. Not covering day to day immigration practice Discussing intersections with general practice areas: Criminal Law Family Law Employment Law

3 Authority Authority and regulation complicated United States Constitution Immigration & Nationality Act (INA) 8 USC 1101 et seq. Provisions outside the INA, Uncodified Amendments Code of Federal Regulations 8 CFR, Aliens & Nationality 20 CFR, Employees Benefits 22 CFR, Foreign Relations (DOS) 6 CFR, Homeland Security 28 CFR, Judicial Administration 42 CFR, Public Health

4 Implementation & Enforcement Number of Agencies Department of Homeland Security (DHS) U.S. Citizenship & Immigration Services (USCIS) Immigration & Customs Enforcement (ICE) Customs & Border Patrol (CBP) Department of Justice Immigration Courts Department of Labor Department of State Health and Human Services

5 Outline of INA Selection System Admission Requirements & Restrictions Detention and Removal Penalty Provisions Naturalization & Citizenship Refugees

6 Criminal Law Criminal conviction and admission of elements of criminal acts have serious consequences in Immigration Law Conviction INA 101(a)(48)(A) 1. Any formal judgment of guilt or if judgment withheld 2. Found guilty, plea of guilt, or nolo contendre 3. Judge ordered punishment Guilty plea, Suspended Sentence, Deferred Adjudication/Disposition But see Pretrial Intervention or Diversion

7 Duties to Alien Client Padilla v. Kentucky,, 559 U.S. 356, 130 S.Ct (2010). Defense counsel has an affirmative duty under the Sixth Amendment of the U.S. Constitution to provide competent advice to a noncitizen defendant about the immigration consequences of a criminal disposition.... deportation is an integral part indeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Padilla does not apply retroactively. Chaidez v. U.S., 133 S. Ct (2013). Ex Parte De Los Reyes, --- S.W.3d.3d ----,, No. PD (Tex( Tex. Crim. App., Feb. 20, 2013).

8 Criminal Grounds of Inadmissiblity and Removability INA 212(a)(2) - Inadmissibility governs admission Convicted, committed, or admitted essential elements Crime Involving Moral Turpitude (CIMT) Violation of any controlled substance law or regulation Multiple criminal convictions aggregate sentence 5 years or more INA 237 (a)(2) - Removability Deportation - conviction CIMT w/in 5 years of admission & sentence of 1 year or longer may be imposed Multiple Criminal Convictions 2 or more CIMTs Aggravated felony Controlled Substances any violation, other than single offense of marijuana under 30 grams Firearms Crimes of Domestic Violence, Stalking, Violation of Protective OrdersO

9 CIMT Acts inherently evil or wrong (malum( in se) Conduct inherently base vile or depraved Matter of L-V-C, L I&N Dec. 594 (BIA 1999) Matter of Tran, 21 I&N Dec. 291 (BIA 1996) Matter of Danesh,, 19 I&N Dec. 669 (BIA 1988) Requires knowledge or specific intent; Reckless when conscious disregard of substantially unjustifiable risk Theft, Fraud, Aggravated, Certain assault crimes DUI with aggravating factors (suspended license)

10 Aggravated Felony Defined in INA 101(a)(43)(A)-(U) (U) Close most forms of relief before Immigration Court Common issues Crime of violence where term of imprisonment is at least 1 year Theft where term of imprisonment is at least 1 year Drug trafficking crime under 18 USC 924(c)

11 Miscellaneous Immigration Detainer INA 287(d) The immigration hold 8 C.F.R such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department. S Visa witnesses of crimes

12 Family Law Family Based Immigration Categories Immediate Relatives spouses, parents, and unmarried children under 21 of U.S. citizens Unmarried Sons and Daughters of U.S. Citizens Spouses and Children of Permanent Residents Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents Married Sons and Daughters of U.S. Brothers and Sisters of Adult U.S. Citizens Nonimmigrant Visa Categories

13 Conditional Resident Status INA 216 Conditional Resident Status granted to Immediate Relative spouses and sons or daughters where relationship is less than 2 years Termination of immigrant status after 2 years unless Conditional Resident Status removed or waived What happens when the couple divorces before conditional residence is removed Waiver Removal of Conditional Residence Overcome removal of conditional residence requirements following divorce Good faith elements cohabitation and commingling of financial assets Battered or Extreme cruelty Extreme Hardship

14 Affidavit of Support Requirement when sponsoring foreign national under Family Based Immigration Sponsor liable to government agency for means tested public benefits Private right of action? In re Marriage of Kamali and Alizadeh,, 356 S.W.3d 544, (Tex.App( Tex.App. Texarkana, Texarkana, 2011).

15 Relief for Domestic Violence VAWA Petition T visas for victims of human trafficking U visas victims of criminal activity

16 Employment Law Large amount of immigration practice intersect employment issues Nonimmigrant visas for worker H-1B, TN, E-3, E L-1, H-2B/A, H etc. Immigrant Visas Green cards based on employment General Practice Issues Employment Verification Immigration Related Unfair Employment Practices Unlawful Wage Violations

17 Employment Verification I-9 9 Compliance E-Verify Federal Government Contracts Mandated under state law Private Contracts Mandatory electronic verification future

18 Immigration Related Unfair Employment Practices INA 274B prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual's national origin or citizenship status Statute also prohibits unfair documentary practices during the employment eligibility verification (Form I-9) I process (document abuse), and retaliation or intimidation.

19 FLSA & Immigration Undocumented Aliens Minimum wage and overtime Union activities and backpay Hoffman Plastic Compounds, Inc. v. NLRB, 237 F. 3d 639 (U.S. 2002).

Representing Foreign Nationals in Criminal Proceedings

Diversity in the Legal Profession Baton Rouge, Louisiana March 4, 2016 Representing Foreign Nationals in Criminal Proceedings Gordon Quan, Managing Partner 5444 Westheimer Rd., Suite 1750, Houston, TX