Articles Posted in Immigration Law

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In August 2000, Pablo Gonzalez pled guilty to possession for sale of marijuana. The trial court sentenced Gonzalez to 74 days in custody After serving his 74 days in custody, Gonzalez was deported in October 2000. Gonzalez reentered the United States about a year later. He subsequently was convicted of possession of a controlled substance for sale, making criminal threats, and domestic battery. In June 2002, Gonzalez was deported again. He reentered the United States, but was deported yet again in April 2017. On January 1, 2017, Penal Code section 1473.7 became effective, allowing a person no longer imprisoned or restrained to move to vacate a conviction or sentence for one of two reasons, including that "[t]he conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." In August 2017, Gonzalez moved to vacate his 2000 conviction under section 1473.7. After an evidentiary hearing, the superior court denied Gonzalez's motion. Gonzalez appealed, contending the court erred in denying his motion under section 1473.7. Specifically, he claimed he established prejudicial error based on his counsel's failure to adequately advise him of the immigration consequences of his plea and failure to seek an immigration safe alternative disposition. The Court of Appeal concluded Gonzalez's arguments lacked merit, and as such, affirmed. View "California v. Gonzalez" on Justia Law

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In 2014, Appellant pled guilty to felony aggravated assault with a deadly weapon, possession of a controlled substance, and possession of a billy club. He also admitted the allegations in the motion to revoke probation in an earlier case. Appellant was sentenced to three years’ probation and a 180-day county jail term. When he entered his pleas the court explained, and Appellant acknowledged, the possible immigration consequences of his convictions. Counsel stated he had advised Appellant accordingly. Appellant was placed in removal proceedings but was granted cancellation of the removal. In 2015, Appellant was found in possession of methamphetamine for sale, resisted arrest, and attempted to destroy evidence; he was placed on probation for five years. In the new criminal case, Appellant pleaded guilty to resisting arrest and was sentenced to 360 days in the county jail. In 2017, Appellant moved to vacate revocation of probation under Penal Code 1473.7(a)(1), alleging ineffective assistance of counsel regarding the immigration consequences of his admission and sentence. The court of appeal affirmed denial of the motion. Appellant, a convicted felon currently on formal probation, is not entitled to the relief under section 1473.7. He did not establish ineffective assistance; the trial court would not have tolerated any lesser sentence and it is unlikely Appellant would have gone to trial under the circumstances. View "People v. Cruz-Lopez" on Justia Law

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In 2002, Morales pleaded no contest to a drug offense. He served his sentence, voluntarily departed the U.S., and reentered the country. In 2017, while residing in the U.S., he moved to vacate this conviction under the newly enacted Penal Code section 1473.71, hoping to obtain legal status via a “U visa.” Morales contended that but for his conviction, his assistance in a 2009 law enforcement investigation would have made him eligible for that visa, and that he pleaded no contest only because of the ineffective assistance of his counsel, who failed to tell him his conviction would result in his deportation and inability to ever legally reenter the U.S.. The superior court denied his motion without prejudice based on its interpretation of section 1437(b), which addresses the timeliness and due diligence required of motions filed in the face of removal proceedings. The court of appeal reversed. The lower court ignored the plain terms of section 1473.7(a)(1); interpreting subdivision (b) to prevent noncitizens from seeking relief until and unless they are subject to removal proceedings would turn a provision about timeliness and due diligence into one that guarantees delay and renders section 1473.7 ineffectual in many cases. View "People v. Morales" on Justia Law

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In 2012, Vikash, a U.S. citizen born in Fiji, married Ashlyne, a citizen of Fiji, in Fiji in an arranged marriage. Vikash filed an immigration visa petition on Ashlyne's behalf, which was approved, and submitted an I–864 affidavit of support, under which the sponsor agrees to “[p]rovide the intending immigrant any support necessary to maintain ... an income that is at least 125 percent of the Federal Poverty Guidelines ... that person may sue you for this support.” According to Ashlyne, Vikash abused her and “tricked” Ashlyne into going to Fiji in 2013, where he abandoned her. Her legal permanent resident stamp was torn out of her passport. Ashlyn obtained temporary documents from the U.S. Embassy and returned to the U.S. Vikash sought an annulment. Ashlyne indicated she had applied for government assistance and argued that by signing the I–864 affidavit, Vikash agreed to support her for 10 years. The court awarded temporary support and ordered Ashlyne to make efforts to get the necessary paperwork "to work in this country if she is intending on remaining.” The court later terminated support and denied Ashlyne’s request to enforce the I–864 because Ashlyne was “not using best efforts to find work.” The court of appeal reversed. An immigrant spouse has standing to enforce the I-864 support obligation in state court and has no duty to mitigate damages. View "In re: Marriage of Kumar" on Justia Law

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The Court of Appeal held that a period of supervision following deportation is impractical and inconsistent with the goals and purposes of the legislation that mandates imposition of split sentences. At the time of his sentencing, the trial court considered Arce's request for a split sentence and denied it. The trial court noted that upon his release from physical custody, defendant Jose Arce was subject to deportation proceedings initiated by the United States Immigration and Customs Enforcement (ICE). The trial court found that, given the risk Arce would be deported during the period of any mandatory supervision, and thus not be subject to the probation department's supervision or able to participate in the rehabilitative services offered by the department, a split sentence was not a realistic disposition. On appeal, Arce argued the trial court should have considered the possibility that he would be able to challenge his deportation and stay in this country either temporarily while his immigration status was litigated or, although unlikely, permanently. He noted that a number of other factors that show he was amenable to mandatory supervision, including the fact that he has been in this country lawfully since 2000, had no prior criminal record, was married to a United States citizen and had three children, all of whom were also United States citizens. Split sentences are the preferred disposition in eligible cases because they provide released prisoners with close supervision and supportive services designed to substantially reduce the risk of recidivism. As a practical matter, such supervision and services are not available after a prisoner has been deported. View "California v. Arce" on Justia Law

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Federal law makes undocumented immigrants ineligible for state and local public benefits, but allows a state to “affirmatively provide[] for such eligibility” through “the enactment of a State law.” 8. U.S.C. 1621(d). Plaintiff, a California taxpayer, filed suit against the Regents, alleging that none of its policies qualifies under section 1621(d) as a "State law" making undocumented immigrants eligible for postsecondary education benefits. The trial court sustained the Regents' demurrer, concluding that the Regents' policies satisfy section 1621(d). At issue in this case is whether three California legislative “enactments” affirmatively provide “eligibility” under federal law for postsecondary education benefits to qualified undocumented immigrants who attend the University of California, even though the statutes require only the California State University and California community colleges to provide such benefits. These laws include (1) Assembly Bill No. 540 (2001-2002 Reg. Sess.) (A.B. 540), which makes qualified undocumented immigrants eligible for exemption from nonresident tuition (Stats. 2001, ch. 814, 1-2); (2) Assembly Bill No. 131 (2011-2012 Reg. Sess.) (A.B. 131), which makes qualified undocumented immigrants eligible for student financial aid programs (Stats. 2011, ch. 604, 3); and (3) Senate Bill No. 1210 (2013-2014 Reg. Sess.) (S.B. 1210), which makes qualified undocumented immigrants eligible for student loan benefits (Stats. 2014, ch. 754, 3). The court concluded that, even though the California Constitution may preclude the Legislature from actually conferring postsecondary education benefits on undocumented immigrants attending the University of California, the Legislature has made these students “eligible” for such benefits within the meaning of the federal statute. Accordingly, the court affirmed the judgment. View "De Vries v. Regents of UC" on Justia Law

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Petitioner, a 12-year-old child from Honduras who entered the United States without documentation, seeks to obtain "special immigrant juvenile" (SIJ) status under 8 U.S.C. 1101(a)(27)(J). In this case, the family court refused to appoint a guardian ad litem for petitioner unless he gave his father notice of the application for a guardian ad litem. The court concluded that the family court erred in requiring parental notice before appointing a guardian ad litem where neither a statutory requirement nor procedure exists for providing notice to parents of the application for a guardian ad litem; decisional law does not require parental notice prior to appointment of a guardian ad litem; and due process does not require notice to parents before a guardian ad litem may be appointed. Accordingly, the court granted the petition. View "Alex R. v. Super. Ct." on Justia Law

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Bianka, a 13-year-old girl from Honduras, hopes to avoid deportation by obtaining “special immigrant juvenile” (SIJ) status. Pursuant to 8 U.S.C. 1101(a)(27)(J), SIJ status is a classification created by Congress to provide special immigration protection to undocumented, unaccompanied children entering the United States who have been the victims of parental abuse, neglect, abandonment or some similar circumstance. Bianka initiated a parentage action under the Uniform Parentage Act, Fam. Code, 7600 et seq., naming her mother as the respondent. Bianka also filed a pretrial request for order asking the court to place her in the sole legal and physical custody of her mother and to make the additional findings necessary to allow her to petition for SIJ status, namely that she cannot reunify with her father because he abandoned her and it is not in her best interest to return to Honduras. The trial court declined to make the requested finding. The court concluded that the UPA is the exclusive means by which unmarried adults may resolve disputes relating to rights and obligations arising out of the parent-child relationship, including child custody, visitation and support. In an action between natural, alleged and/or presumed parents, the parentage of each party to the action is squarely at issue and is adjudicated before issues of custody, visitation and support are considered. The court further concluded that under the circumstances present here, where Bianka’s father’s identity and whereabouts are known, the trial court did not abuse its discretion by requiring Bianka to join her father to the pending action. Finally, the court provided instructions to Bianka on the next steps in seeking a custody order and/or SIJ findings. View "Bianka M. v. Super. Ct." on Justia Law

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Defendant, a citizen of Eritrea, has been a lawful U.S. permanent resident since 1981. In 1988, police witnessed a hand-to-hand exchange involving defendant. As the men ran away, an officer saw defendant reach into his waistband and drop a loaded handgun and throw a plastic baggie that contained rocks of cocaine base, weighing a total of 2.34 grams. An officer found a glass pipe with cocaine residue on top of defendant’s wallet, which did not contain a large amount of cash. Defendant pleaded guilty to possession of cocaine base for sale and admitted the firearm allegation. He was not advised of the immigration consequences. In 1992, defendant admitted violating probation by failing to maintain contact with his probation officer and testing positive for cocaine. In 2004, defendant returned to the U.S. after an overseas trip and was “not admitted” based on the conviction, but was allowed to remain in the U.S. Defendant was detained in 2013. Defendant filed an unsuccessful Penal Code 1016.5 motion to vacate the convictions and to withdraw his pleas. The court found that he “had failed to show prejudice.” The court of appeal remanded for determination of whether defendant made the required showing of reasonable diligence. View "People v. Asghedom" on Justia Law

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Christian, age 16, was arrested for selling cocaine base. A wardship petition was filed. Immigration officials were notified. An Immigration Detainer was faxed to the juvenile hall from the Department of Homeland Security (DHS) stating that Christian had a prior felony conviction or had been charged with a felony offense, that he had illegally re-entered after a previous removal, and there was an order of deportation. The detainer requested that juvenile hall maintain custody of the minor to allow DHS to take custody of him, with an attached “Warrant of Removal/Deportation.” Christian admitted that he had possessed a controlled substance as alleged. Christian’s counsel indicated that she was satisfied he understood the immigration consequences of his admission. Christian stated he had traveled from Honduras to the U.S. 10 months earlier without his mother’s permission. The dispositional order required him to reside with his mother in Honduras. The court of appeal reversed. The court may have proceeded under the erroneous premise that it was compelled to transfer custody to federal authorities. The court expressly determined that it was not in Christian’s best interests to return to Honduras because he had been abandoned by his biological father who has never provided assistance or support and that his mother is unable to provide support. The conflicting findings cannot be reconciled View "In re Christian H." on Justia Law