My Guest Blog piece for www.CRimmigration.com

SYMPOSIUM: RETROACTIVITY MEANS RELIEF FROM INCOMPETENT COUNSEL By Neil I. Fleischer As the son of an immigration attorney, I would often accompany my father to various speeches he would give regarding United States immigration law. He begins every speech by “stating that US immigration is the most complex law in our country. At any one time you can deal with three to five government agencies: the Department of Labor, the U.S. Citizenship and Immigration Services, the Department of State, the U.S. Immigration and Customs Enforcement, and the US customs and Border Protection.” [Click here to see a list of all the symposium contributions.] He would always go on to talk about the “draconian” immigration reform of 1996 called “IIRAIRA.” When I was a student, I did not comprehend the catastrophic results of the this law that can subject foreign nationals and long time permanent residents of the United States to removal/deportation without judicial review or eligibility for bond because of the immigration consequences of their criminal convictions. Minor or “low level” offenses, even those involving no jail time, can subject a noncitizen to deportation, regardless of whether they are lawfully present in the United States. Today, as a practicing immigration attorney, I confront the “draconian” effects of my clients’ criminal convictions. Practicing primarily in Ohio, I am fortunate to have available Ohio Revised Code § 2943.031(A) that provides in part that: [P]rior to accepting a plea of guilty or a plea of no contest … the court shall address the defendant personally, provide the following advisement to the defendant that shall be entered in the record of the court, and determine that the defendant understands the advisement: “If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) 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 judge or magistrate fails to warn a non-citizen of the consequences of his/her plea, in Ohio these convictions can be overturned. However, with the influx of immigrants and enforcement measures, judges are now routinely giving these statutory warnings. Consequently, a non-citizen’s defense counsel has a heightened duty and responsibility to make sure their clients are advised of the immigration consequences of his/her plea deal. This is because, the U.S. Supreme Court held in Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), that attorneys are required, as a matter of law, to inform a client that entering into a plea agreement in a criminal case carries a risk of deportation. Currently, federal district courts are split on whether Padilla applies retroactively, but in the Southern District of Ohio, the U.S. District Court recently held that Padilla does apply retroactively as an extension of the Strickland rule. Strickland v. Washington, 466 U.S. 668 (1984). The Strickland rule is a two-part test that requires a defendant to show that “counsel’s representation fell below an objective standard of reasonableness,” and demonstrate sufficient prejudice to meet the requirements for a writ of habeas corpus. Id. at 688, 694. In United States v. Reid, decided in August of 2011, in the Southern District of Ohio, Judge Arthur Spiegel held that Reid, a lawful permanent resident at the time of his conviction, was given ineffective counsel that led to deportation proceedings being instituted against him, and that the Supreme Court’s decision in Padilla applied retroactively to Reid’s case. I filed a writ of coram nobis on behalf of Mr. Reid, and we successfully argued that Padilla did not announce a “new rule” that imposes new obligations on the states and federal government, and thus Padilla should be applied retroactively. In November 1997, Reid was indicted on eight counts of bank embezzlement, and his first attorney advised him that he and his family would be subject to deportation proceedings if he were convicted at trial. His attorney also told Reid that he would not be exposed to deportation proceedings if he entered a plea agreement. Reid entered the plea agreement based on this grossly inaccurate advice, and was convicted on one of the eight counts of bank embezzlement, sentenced to sixty days in jail, sixty days in a community treatment center, and three years of supervised release. In July 1999, the Department of Homeland Security (DHS) charged Reid with violation of INA § 237(a)(2)(A)(iii), U.S.C. § 1227(a)(2)(A)(iii), claiming that he was deportable as a result of his conviction for an aggravated felony. Reid was a long-time permanent resident of the United Sates and his entire family, including his children, was now living in the United States. Aliens in a situation such as Reid, who are rendered deportable because of incorrect legal advice regarding the immigration consequences of entering into a plea bargain, have limited options for relief. The holdings of Padilla and Reid made it possible for zealous immigration attorneys to argue that their client’s former defense counsel did not give the correct advise regarding their criminal plea, and could have these convictions vacated or, alternatively, “re-plea” to an offense which would not result in removal from the United States. The cumulative effect of Padilla is that immigration attorneys, such as myself in Reid, have filed motions to vacate convictions prior to 2010 under the Padilla holding. The federal appellate courts have split whether or not Padilla should be applied retroactively. Thus, the Supreme Court will hear oral arguments on October 30, 2012 in Chaidez v. United States. The issue in Chaidez is whether the Court’s decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement. As an attorney who has litigated this issue, and who frequently must counsel clients about the immigration consequences of their plea, I believe it is absolutely critical that the Supreme Court rule that Padilla applies retroactively in order to ensure that criminal defense attorneys’ errors falling below the prevailing “professional norms of representation” standard do not lead to removal of non-citizens. Without Padilla retroactivity, those non-citizens who may have received a “good deal” keeping them from incarceration in state and federal prisons, but who were exposed to ineffective assistance of counsel before Padilla was issued will be at risk of possible mandatory detention and removal. As I learned a long time ago, U.S. immigration law is the most complex law in the land. Misdemeanors are considered “aggravated felonies;” in other words, “low level” crimes can render a noncitizen subject to mandatory detention and removable. In Padilla, the Supreme Court mandated that criminal defense counsel have a heightened duty and responsibility to make sure their clients are advised of the immigration consequences of his/her plea deal. However, the damage to many noncitizens has already been done. Many attorneys were ignorant of the draconian immigration laws, or misguided and uninformed. It is in the interest of justice that the Supreme Court rule that Padilla is retroactive. Neil I. Fleischer is an attorney at The Fleischer Law Firm LLC in Cincinnati. Posted by Cesar at 10/31/2012 4:01 AM Categories: right to counsel, Scholars Sidebar, Chaidez, Padilla v. Kentucky, commentaries, Symposium, guest blogger, U.S. Supreme Court, post-conviction relief Tags: Chaidez Padilla v. Kentucky right to counsel post-conviction relief Scholars Sidebar commentaries guest blogger U.S. Supreme Court Symposium Previous Post Next Post http://crimmigration.com/2012/10/31/symposium-retroactivity-means-relief-from-incompetent-counsel.aspx

Many USCIS Field Offices remain closed due to HurricaneSandy including NYC USCIS Field Office

Many USCIS Immigration Offices Remain Closed from Storm Damage from Hurricane Sandy All applicants appointments will be rescheduled to the next available appointment date; applicants do not need to do anything to request a rescheduled date. However walk-ins will be processed on a case-by-case basis. If you plan to visit a USCIS office in an area affected by the severe weather or you believe may be affected by severe weather, please call the National Customer Service Center (NCSC) 1-800-375-5283 to ensure the office is open for business and for further instructions on rescheduling your appointment if the office is closed. Please continue to monitor this page for changes.

Hurricane Sandy causes USCIS office closings for Monday, October 29, 2012

Due to Hurricane Sandy the offices listed below will be closed on Monday, October 29, 2012. All applicants appointments will be rescheduled to the next available appointment date; applicants do not need to do anything to request a rescheduled date. However walk-ins will be processed on a case-by-case basis. If you plan to visit a USCIS office in an area affected by the severe weather or you believe may be affected by severe weather, please call the National Customer Service Center (NCSC) 1-800-375-5283 to ensure the office is open for business and for further instructions on rescheduling your appointment if the office is closed. Please continue to monitor this page for changes. Closed Offices Connecticut Hartford, CT Field Office AA Ribicoff Federal Building 450 Main Street Hartford, CT 06103-3060 Hartford Application Support Center 467 Silver Lane East Hartford, CT 06118 Delaware Dover, DE Satellite Office & Application Support Center 250 Gateway South Blvd, Ste 270 Dover, DE 19901 Maryland Baltimore District Office & Field Office Fallon Federal Building 31 Hopkins Plaza Baltimore, MD 21201 Baltimore Application Support Center Bank of America Building 100 S. Charles Street, Suite 201 Baltimore, MD 21201 Glenmont Application Support Center 12331 Georgia Avenue, Suite C Wheaton, MD 20906 Salisbury, MD Application Support Center 2040 Shipley Drive, Suite 2C Salisbury, MD 21801 Massachusetts Boston, MA District Office & Field Office JFK Federal Building 15 New Sudbury Street Government Center, Room E-170 Boston, MA 02203-0701 Lawrence, MA Field Office & Application Support Center 2 Mill Street Lawrence, MA 01840 Boston Application Support Center 170 Portland Street Boston, MA 02114 New Hampshire Manchester, NH Field Office & Application Support Center 9 Ridgewood Road Bedford, NH 03110 New Jersey Newark Asylum Office 1200 Wall Street West, Fourth Floor Lyndhurst, NJ 07071 Newark, NJ District Office & Field Office Rodino Federal Building 970 Broad Street Newark, NJ 07102-2506 Mount Laurel, NJ Field Office 530 Fellowship Road Mount Laurel, NJ 08054 Hackensack, NJ Application Support Center 116 Kansas Street Hackensack, N.J. 07601-4044 Elizabeth, NJ Application Support Center 285 North Broad Street Elizabeth, N.J. 07208 New York New York Asylum Office One Cross Island Plaza, 3rd Floor (133-33 Brookville Boulevard) Rosedale, NY 11422 New York, NY District Office & Field Office 26 Federal Plaza New York, NY 10278-0127 Queens, NY Field Office & Application Support Center 2735 Jackson Avenue Long Island City, NY 11101-2917 Long Island, NY Field Office & Application Support Center 30 Barretts Ave Holtsville, NY 11742 Bronx, NY Application Support Center 1827 Westchester Ave. Bronx, NY 10473 Brooklyn, NY Application Support Center 1260-78 60th Street Brooklyn, NY 11219 Hicksville, NY Application Support Center 87 Bethpage Road Hicksville, NY 11801 Manhattan, NY Application Support Center 201 Varick Street, 10th Floor RM103 New York, NY 10014 Port Chester, NY Application Support Center 40 South Main Street Port Chester, NY 10573 Queens/Jamaica, NY Application Support Center 153-01 Jamaica Ave. Jamaica, NY 11432 Woodside, NY Application Support Center 63-05 Rossevlt Ave. Woodside, NY 11377 Eastern Telephone Center Pennsylvania Philadelphia, PA District Office & Field Office 1600 Callowhill Street Philadelphia, PA 19130-4106 Philadelphia Application Support Center 10300 Drummond Road Suite 100, First Floor Philadelphia, PA 19154 York, PA Application Support Center Meadowlands Business Center 3516 Concord Road York, PA 19402-9893 Rhode Island Providence, RI Field Office & Application Support Center 1543 Atwood Avenue Johnston, RI 02919 Providence Application Support Center 105 Sockanosset Cross Road, Suite 210 Cranston, RI 02910 Virginia Washington District Office & Field Office (Fairfax, VA) 2675 Prosperity Avenue Fairfax, VA 22031-4906 Alexandria, VA Application Support Center 8850 Richmond Hwy, Suite 100 Alexandria, VA 22039 Norfolk, VA Field Office Norfolk Commerce Park 5280 Henneman Drive Norfolk, VA 23513 Norfolk Application Support Center 2500 Almeda Ave, Suite 114 Norfolk, VA 23513 Stay safe Easzt Coasters

Immigration and Customs Enforcement (ICE) will now use Iphones

The US Immigration and Customs Enforcement agency (ICE) has terminated its agreement with RIM to provide agents with BlackBerry smartphones and will offer its employees iPhones instead . Reuters indicates that this move affects about 17,600 employees and will cost the agency about $2.1 million. The ICE has used RIM's products for eight years, but it claims that at this point, BlackBerry smartphones "can no longer meet the mobile technology needs of the agency." ICE looked at Google's Android platform as well , but it concluded that Apple's tightly-controlled ecosystem would best serve its needs. "The iPhone services will allow these individuals to leverage reliable, mobile technology on a secure and manageable platform in furtherance of the agency's mission,"

I wonder is they will become "angry birds"

November 2012 Visa Bulletin is out

Link text The November 2012 Visa Bulletin is out and there is some great news. Like we predicted, the EB-2 category for all chargability countries other than India and China are going to be CURRENT. Therefore those you qualify for EB-2, if not born in or India, can concurrently file USCIS forms I-140 and I-485.

Contact us if you are interested

4500 undocumented young aliens granted Deferred Action under DACA program

Th United States Citizenship and Immigration Service (USCIS) has granted 4,591 young undocumented aliens a two-year deportation reprieve under a new deferred action (DACA) program USCIS began receiving applications for the "Deferred Action for Childhood Arrivals" program in August, and to date received 179,794 applications, according to the Department of Homeland Security. They have scheduled 158,408 of those for biometric appointments (fingerprint), where USCIS

will take applicants' fingerprints to conduct criminal background checks. No applicants have been officially denied yet. But DHS has sent 1,825 applicants that don't appear to qualify a "Notice of Intent to Deny" form, which gives them 30 days to provide more evidence or correct mistakes, or a "Request for Evidence," which gives them 84 days to fill in gaps in their application. If you think you qualify, please contact us.

US Naturalized citizen of the day - Dikembe Mutombo

Dikembe Mutombo Mpolondo Mukamba Jean-Jacques Wamutombo was born June 25, 1966 in Congo, but he is a naturalized US citizen. He commonly referred to as Dikembe Mutombo, who professional basketball player who last played for the Houston Rockets of the NBA. He was the oldest player in the NBA at the time of his final season. The 7 ft 2 in (2.18 m), 260-pound center is thought of as one of the greatest shot blockers and defensive players of all time, winning the NBA Defensive Player of the Year Award four times. His post NBA is as impressive as a humanitarian A well-known humanitarian, Mutombo started the Dikembe Mutombo Foundation to improve living conditions in his native Democratic Republic of Congo in 1997. His efforts earned him the NBA's J. Walter Kennedy Citizenship Award in 2001 and 2009. For his feats, Sporting News named him as one of the "Good Guys in Sports" in 1999 and 2000, and in 1999, he was elected as one of 20 winners of the President's Service Awards, the nation's highest honor for volunteer service. In 2004, he participated in the Basketball Without Borders NBA program, where NBA stars like Shawn Bradley, Malik Rose and DeSagana Diop toured Africa to spread the word about basketball and to improve the infrastructure. He paid for uniforms and expenses for the Zaire women's basketball team during the 1996 Centennial Olympic Games in Atlanta. Mutombo is a spokesman for the international relief agency, CARE and is the first Youth Emissary for the United Nations Development Program.

He has been a Global Ambassador for Special Olympics. In honor of his humanitarianism, Mutombo was invited to President George W. Bush's 2007 State of the Union Address and was referred to as a "son of the Congo" by the President in his speech. Mutombo later said, "My heart was full of joy. I didn't know the President was going to say such great remarks

Romney backs DACA and Dreamers ... Sort of

Republican presidential candidate Mitt Romney would end an Obama administration policy of Deferred Action or DACA allowing some young illegal immigrants to stay in the country and work, though anyone already granted a reprieve from possible deportation wouldn't see that permission revoked. Romney told The Denver Post on Monday that people who are able to earn the two-year reprieves to stay and work wouldn't be in danger of deportation if he is elected. His campaign later clarified that while Romney would honor permission to stay as granted under President Barack Obama, a Romney administration wouldn't grant such permission. Obama announced in June that he would prevent deportation for some people brought to the United States illegally as children. Applicants must not have a serious criminal record and must meet other requirements, such as graduating from high school or serving in the U.S. military. At the time, Romney criticized Obama for circumventing Congress and changing the policy a few months before the presidential election.

New L and TN procedures for Canadians

USCIS press release announcing that beginning October 1, 2012, USCIS will begin accepting the Form I-129, Petition for Nonimmigrant Worker, filed on behalf of Canadian citizens who are outside the United States and seeking classification as a TN no n immigrant. This will help streamline the process and facilitate easier travel for Canadian workers As a reminder, an employer has the option of filing a Form I-129 individual petition with USCIS on behalf of a Canadian L-1 nonimmigrant. A U.S. employer that has an approved L-1 blanket petition also has the option to file a Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, along with supporting documentation, with the USCIS service center that approved the L-1 blanket petition, on behalf of a Canadian citizen (or any visa-exempt beneficiary) who is outside the United States. As before, Canadian citizens may apply for L-1 classification in conjunction with an application for L-1 admission to the United States by presenting the Form I-129 (individual petition)

Study finds that 1/4 of NEW US businesses are started by Immigrants

According to an article by Sarah McBride of Reuters News Service. Anew study showing that immigrants founded one quarter of U.S. technology start-up companies could fuel calls to relax immigration rules ahead of next month's U.S. presidential elections, where the economy and immigration are key issues The study "America's New Immigrant Entrepreneurs: Then and Now," shows that 24.3 percent of engineering and technology start-up companies have at least one immigrant founder serving in a key role. Day after day I am contacted by clients who want to start companies and grow the US economy. Day after day these bright US educated Immigrants prefer to return home as the US laws have become too restrictive as visas are denied. If the US economy wants to rebound, we need driven entrepreneurs from around the world to help turn the economy around