Preserving your status as a "child" for immigration purposes

In 2002, Congress passed the Child Status Protection Act (CSPA), changing who can be considered a "child" for immigration purposes.  Before 2002, when a child turned 21 he/she was no longer eligible to immigrate with his/her parents - regardless of how long they may have been waiting.  This would mean that parents would get their residency and immediately turn around and petition for the children who had "aged-out," which resulted in their now adult children being basically kicked to the back of an even longer line than the one they had been waiting in with their parents.   

With the enactment of CSPA, children who had "aged-out" are, in some circumstances, allowed to remain children (i.e. under 21) for immigration purposes.  The "circumstances" I am referring to can often be complex and vary depending on the type of petition, who was petitioning, and the preference category.  The most common situation is the one I described above, where a parent is the direct beneficiary to a non-immediate relative petition, and the child is a "derivative" - i.e. the petition wasn't filed specifically for them, but the mere fact that they are the child of the principal beneficiary (their parent) makes them eligible to be attached to the application.  ** Please note: by non-immediate relative, I mean that the person who filed for the parent was not their: (1) USC spouse or (2) over 21 USC child - in those cases, there are NO derivatives allowed.  Often times, the parent has to wait months or even years for their petition to be approved and in that time, their derivative child turns 21.  Through CSPA, those months/years that they had to wait for their approval can be subtracted from the child's age and if after the math, the child is under 21, then they can immigration with their parents.  This basically ensures that kids are not punished for how long it takes USCIS to process a petition. 

Until a recent 9th Circuit Court of Appeals decision, this calculation, called an automatic conversion was only allowed in situations where the original petition was an F2A petition - meaning it was filed by a resident spouse or parent.  So, in situations where a US citizen brother or sister applied for a person, a child who was a derivative on that petition could not subtract the time it too that petition to be approved from their age.  In September, the 9th Circ. in De Orosorio v. Mayorkas, held that the plain language of CSPA provides automatic conversion and to aged-out beneficiaries in all family based categories.  So that means, if your mom's sister filed for her waaaay back when, and you were under 21 at the time, depending on how long it too for that petition to be approved, you may still be under 21 for immigration purposes and you could possibly get your green card too. 

Other things can freeze someone's age under 21 as well.  For example, if a resident father files for his son and then becomes a US citizen before that son turns 21 - his age is frozen under 21 and the petition his father filed becomes an immediate relative petition - i.e. it is immediately available for use - no waiting in line for your date to come up. 

There are also this which make someone INELIGIBLE for CSPA.  For example, if you are the derivative on your mom's petition from your resident grandfather.  The petition takes several years to be approved, and then several more for the priority date to become current.  If in that time YOU get married, even if the automatic conversion would have worked to freeze your age under 21, your marriage rendered you ineligible to make use of it. 

In addition to the above scenarios, there are a MULTITUDE of other situations which can arise which may affect your eligibility in both positive and negative ways - including things your parents may have done while waiting for their petition to be approved that can affect you and your eligibility to "ride" on that petition.  That being said, as always, you need to seek out competent legal advice.

Getting Rid of Your Criminal Conviction

As I pointed out in my last blog, the crossover between immigration and criminal law is one of the most complex areas of law today.  Non-citizens facing criminal charges risk not only criminal consequences such as imprisonment or fines; they also risk the severe consequence of deportation or removal from the United States.  It is imperative, that non-citizens have criminal counsel that understands both criminal law and immigration law in order to ensure that the conviction or plea is not going to have a devastating effect on their immigration status. 

In this installment, I want to talk about the most common motions for post-conviction relief here in California.  First, is the motion to vacate a conviction based on the fact that you did not get the proper advisals from the court at the time you pled to the crime.  This falls under California Penal Code sec. 1016.5 which, in summary, states that as part of taking a person's plea, the court must state:

 

"If you are not a citizen, you are hereby advised that conviction
of the offense for which you have been charged may have the
consequences of deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the
United States."

If the court did not state that advisal exactly as it is worded above, or in a way that included; deportation, exclusion from admission, or denial of naturalization; you can go back to court and have their conviction vacated.  With that being said, the ENTIRE criminal file must be reviewed by an attorney to determine if the court gave the advisal - it is NOT enough that you think the judge never said that.  Also, in many instances, these convictions are very old and the criminal files have been partially or completely destroyed.  An attorney must review the documents so that they can ascertain if you have enough (or in some cases if enough has been destroyed) to make an argument for vacature. 

Second, and MARKEDLY more difficult, is a motion to vacate based on the fact your previous defense ATTORNEY did not give you the proper advisals before taking a plea.  This motion is based on a decision from the US Supreme Court, Padilla v. Kentucky.  In that case, the Court found that no criminal defendant, whether a citizen or not, should be left to the “mercies of incompetent counsel”.  They went on to hold that criminal counsel must inform their clients whether their plea carries a risk of deportation.  Many criminal defense attorneys already advise clients about the fact that their plea may have immigration consequences.  The Supreme Court’s decision, however, holds that those advisals are constitutionally required and that a failure to provide them constitutes ineffective assistance of counsel.  Again, the entire criminal record must be reviewed so that your current attorney can determine who your last attorney was (which can sometimes be difficult if you had multiple public defenders) so that they can speak/consult with them regarding the case. 

With each of these motions, there is a "diligence" requirement, which basically means that you have to act to DO something about your conviction within a reasonable time of discovering it could hurt your immigration status.  This is often a sticking point for criminal courts because many people do not realize their conviction put their immigration status at risk until they go to renew their green card, or apply for naturalization.  This can mean that sometimes a DECADE has gone by since being convicted before you realize something is wrong and you need to go back to criminal court. 

Third are the smaller motions that can sometimes work to ameliorate immigration consequences, but not necessarily get rid of them all together.  For example, certain crimes for which you are sentenced to 365 or more, are considered AGGRAVATED FELONIES for immigraiton purposes.  If you have been convicted of an aggravated felony, that renders you ineligible for really ANY relief from removal in front of a judge.  If, however, you are able to go back to criminal court and REDUCE that sentence from 365 to 364, then you may at least be able to present your case to an immigration judge re: why you should not be removed from the U.S.  That is a motion to reduce, and similar to the above, it has a diligence requirement and often times, a jurisdiction problem that some courts will over look - others won't.  Most good post conviction relief attorneys will know whether the courts in their area will grant that type of motion or not - sometimes down to the judges that will and judges that won't.

Also, if you are in the Ninth Circuit Court of Appeals (CA, AK, AZ, HI, ID, MO, NV, OR, WA) a conviction for simple possession of a controlled substance can be expunged as long as that conviction was before July 14, 2011.  An expungement prior to that date will be effective for immigration purposes - i.e. if that is the only reason you are before the immigration judge, your case can be quickly resolved - but it is only effective for ONE simple possession conviction. 

 

As always, but perhaps even MORE so in instances where immigration and criminal law cross, it is VERY important to seek competent legal counsel. 

 

Applying for an Immigration Benefit with a Criminal Record

 

If you are planning on applying for your Green Card, already have a Green Card and need to renew it, or would like to apply for citizenship, but you have had some trouble with the police or immigration, DO NOT APPLY TO RENEW OR BECOME A CITIZEN WITHOUT SEEKING LEGAL ADVICE FIRST! This even applies if you are planning on applying for Deferred Action for Childhood Arrivals (DACA or "Dreamers"). 

 

I cannot stress enough the importance of making sure that your criminal record does not effect your immigration status before you apply for ANYTHING.  There are certain types of crimes that make you ineligible for immigration benefits, including renewing your Green Card that you have had for the past decade or two (or three).  You may think something you did 15 years ago couldn't possibly have an affect now, or you may have even renewed your card once or twice since your run in with the law so why can't you renew now?  In many cases you would be WRONG.  Immigration procedures have become much more stringent in the past ten to fifteen years, resulting in the placement of a record number of immigrants in removal proceedings. 

 

Let me give you an example:  I represented a young man who had had his green card since the 1980s.  When he was 18 or 19, he fell in with the wrong crowd and was convicted for possession of drugs for sale.  Eleven years after being convicted and serving his time, this young man attempted to renew his green card on his own.  He didn't believe his conviction was going to hurt him because he had served his time and changed his ways.  He was married with 4 beautiful children, owned his own home, and had been working at the same place for several years.  He was wrong.This conviction, despite it's age, rendered him removable from the U.S., and because it involved drugs, it also meant he could be detained by Immigration for the entire duration of his case.  For this case we had to reopen his criminal case and vacate it in order for him to even be ELIGIBLE to keep his green card.  If we were unable to do that, he would have been removed from the U.S. without even getting the chance to make a case before an Immigration Judge.  The whole process to OVER A YEAR and he was in immigration custody the entire time.  Thankfully, we were able to win his case, but had he sought my assitance before filing to renew his card, he could have avoided spending a year of his life in immigration custody for a crime he had committed a decade before.

 

This type of thing does not only apply to felonies or drug crimes, there are also misdemeanors which would put you in the same position as the young man I described above.  Just because criminal law calls something a "misdemeanor" doesn't mean that immigration sees it that way. 

 

All of that being said, just because you have a criminal record, does not necessarily mean all is lost.  There are several ways to amend or even erase your criminal record so that you can then apply for a benefit with immigration.  These are often complicated cases and not many immigration attorneys know how to do these types of cases as they are really considered to be criminal cases.  This type of help is called "Post Conviction Relief" and the attorney helping you has to know both the intricacies of Criminal Law in your state AND how those crimes affect your immigration status, in order to be able to help you.  Make sure that the immigration attorney you are working with has experience with this, or is at least working with a criminal attorney, so that you can ensure your case is being handled from every possible angle.  ALSO, if you are involved in criminal proceedings right now, make sure your criminal attorney consults with an immigration attorney!!! This is KEY to making sure that you avoid immigration consequences of your conviction later.  Often times, criminal attorneys are just trying to get you the best deal -- but that doesn't always translate to the best immigration consequence and lets face it, a lower fine and probation instead of jail time is not going to mean a whole lot if you can get DEPORTED afterwards.

In a future blog, I will explain with more detail, the grounds on which a conviction can be "vacated" or when an "expungement" is enough...but even with that information, as always, you need to SEEK COMPETENT LEGAL COUNSEL.