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The Golden Door

News and views on immigration law

Archive for the ‘Criminal law and immigration’ Category

Expungements: What you need to know before you expunge.

Tuesday, April 30th, 2013

For most people who acquire a minor criminal record that conviction becomes both a professional and a personal thorn in their side.  On the career-side, having a criminal record can make landing a job more difficult or might prevent you from doing the work you want to do altogether, whether that’s lawful on the employer’s part or not.  On the personal side, you may feel ashamed that you have this record that shows that you broke the law, or were convicted of breaking the law, and having to explain it whenever it comes up.

After experiencing the ramifications of having a criminal conviction, most people want to eliminate this from their record if they can, which usually means requesting that the record be expunged.  Expungement means that the record is destroyed, and anyone looking up your name in the jurisdiction in which it the record was generated should come up empty-handed.  Once an expungement petition is granted, the court administrator (usually the clerk of courts) where the record was originally generated should notify any other agencies to which the criminal record was sent, requesting that this information be removed from those databases as well.  In reality, such requests may or may not be made by the original keeper of the records, and the other agencies that received the criminal record information may or may not update their files in a timely manner, so information about your conviction may still show up in other databases, such as the FBI database.

In terms of immigration, before you expunge your record you should know this:  USCIS and the federal immigration courts often require that you disclose whether you have ever been arrested or detained by a law enforcement officer, charged with a criminal offense, convicted, and what your sentence was if you were convicted.  They require this information regardless of whether the record has been expunged.  And they expect you to provide certified records of these events, or a statement from the relevant agency stating that no record is available.

This means that once you record has been expunged there is no way for the record-keeping agency to issue you a certified copy of that record.  And, not infrequently, when you then request a statement that the record is no longer available due to expungement, the agency may not comply with this request for various reasons, including not understanding the request, or due to a policy of declining to verify the prior existence of a record that has been expunged.

Then you are stuck.  You have admitted to immigration authorities (in the course of, for example, applying for citizenship or for cancellation of removal) to having a criminal record, as the law requires, and yet you cannot provide verification of what happened, also as required.  It is because of this conundrum that I often advise clients to delay having their criminal records expunged until after they become naturalized.  A “clean” criminal record procured through the expungement process can be a headache in immigration proceedings because of the requirement to disclose ALL, even expunged criminal records.

This is an example of when consulting an attorney earlier rather than later is the wiser course of action.  Sometimes you don’t know what you don’t know!  Sometimes a consult early on the process can alert you to potential pitfalls before you commit them.  At Tran Law Associates, we aim to make the immigration process as painless as possible, including warning you of actions that may negatively impact your application for benefits.


New York Gov. Paterson’s pardon – a valid exercise of state authority on immigration matters

Thursday, November 11th, 2010

In comparison to Arizona’s S.B. 1070, a state law that attempts to make the enforcement of immigration violations a state function, New York’s governor, David Paterson, has modeled a way that states can impact immigration matters in a constitutionally permissible way.

Some basic background information:  Criminal law in the United States exists at both the federal and state level.  There are federal crimes and there are state crimes.  People living in the United States who are not U.S. citizens (even long-time legal permanent residents) can be deported if convicted of certain crimes, including state criminal convictions.  A pardon, however, can often erase the effect of that conviction for immigration purposes.

A pardon for a state criminal conviction is squarely within the authority of the state governor.  In an effort to prevent the deportation of individuals who have, since their convictions, transformed themselves into worthy and contributing members of society, Gov. Paterson has set up a panel to review these cases for eligibility for pardon.  For most if not all of these individuals, this is their only chance, under current immigration law, to stay in the United States, where they have lived most of their lives and where they have established families and become part of their local communities.  In some cases, individuals have already served out their criminal sentences but still face deportation.

A spokesperson for the Federation for American Immigration Reform (FAIR), a group that favors reducing immigration levels, responded to this initiative by stating, “as a general rule, we would be opposed to governors or other local officials stacking the deck so that people who could legitimately be deported get to remain in the country[,]“ and further, that the Governor was “circumventing Congressional authority.”

Let me address each point raised by FAIR in turn.

The first objection is that anyone who has been ordered deported, regardless of their current circumstances or the harshness of the penalty on the individual, should be deported.  This hard-line position does not care about individual circumstances.  Every deportable alien is a throwaway person, not deserving of case-by-case treatment.  This position cannot take into account the benefit that the individual might bring to the community in which he or she now belongs, or the cost and pain associated with tearing that individual away from that community.  It reflects an attitude that rules must be blindly and rigidly applied and should always be bright-line and clear, black and white.  Basically, “You break the law, you’re out of here.”

So, how has this approach worked for us in our schools, with our Zero Tolerance policies?  Every week, I read of some new ridiculous school action driven by zero tolerance philosophy that punish the very children that it is supposed to protect.  The kid whose grandmother packed him a knife to cut his birthday cake who ran afoul of a no-weapons policy comes to mind, and there are countless other examples.  Children end up suspended or expelled because of actions that happen to fall within the zero tolerance zone, but who were never intended by the original proponents of the rules.  Applying the same thinking, that is, if-they’re-deportable-then-let’s-deport-’em approach, we end up deporting people who might remain in the country by way of a gubernatorial pardon.  These individuals may be legitimately deportable but they also have a legitimate shot at changing their eligibility for deportation.  There is nothing inherently wrong with exploring an available legal option.

As for the second objection, that Gov. Paterson is circumventing federal congressional authority, I wonder if FAIR raised this same objection to AZ S.B. 1070?

Most if not all state constitutions grant governors the authority to issue pardons and don’t place too many restrictions on how they can use this power.  This is a provision meant to inject flexibility in what might be otherwise inflexible situations.  Gov. Paterson is well within his authority to choose to exercise this authority generously.  Federal immigration law does not forbid state governors from exercising their right to pardon individuals for state criminal convictions and any attempt to do so would be a violation of states’ rights.

For FAIR to say that Gov. Paterson’s actions circumvent congressional authority, well, this is just not true.  What FAIR really means, I would hazard, is, “We don’t like it when government acts to help immigrants who have shown themselves to be unworthy.”  Of course, it doesn’t seem to matter to FAIR what the overall weight of an individual immigrant’s conduct over his or her lifetime might be, just that that person landed himself or herself in jail in the first place.  Following this philosophy, we really need to build a lot more prisons (I think the prison lobby has this well in hand), because there should be a lot more people in prison and who should be kept in prison for the rest of their lives because at some point they did something bad, hurt someone, and broke the law.  No one is salvageable.  Everyone must pay for their mistakes, and keep paying until they are dead or gone.

From my point as view as an immigration lawyer, I respectfully suggest that this zero tolerance approach is not wise nor humane.  For those of you who subscribe to the FAIR philosophy, I urge you to acknowledge that when we talk about immigrants we are dealing with fully-fledged human beings, not just ‘aliens.’  A person can do bad things and yet become a good person.  Some of these individuals have already served out their sentences.  Should they keep on paying for their mistake after they have already paid?  Sometimes second chances are warranted.  Deportation for those who only know America as their home can be a harsh fate, and hurts not only the deportee but their family members too.  No one is arguing that every immigrant convicted of a crime should be pardoned.  Rather, Gov. Paterson is employing an approach that weighs the individual’s crimes against his good deeds.  The pardon power is already embedded in the state constitution, and is a far cry from a circumvention of congressional authority.  Rather, it is the valid exercise of state authority that happens to affect immigration status.

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

De Hieu Tran – another immigration scam artist

Thursday, November 11th, 2010

On August 12, 2010, a 42-year-old Vietnamese man was arrested in Kentwood, Michigan, for falsely holding himself out to be a U.S. Marine and ICE officer, and for scamming the local Vietnamese community for immigration benefits. Only a licensed immigration lawyer or BIA accredited representative can perform this kind of service, and people seeking citizenship should be cautious when choosing their help in order to avoid scams like this.

De Hieu Tran was ordered deported in 2002, but instead of going back to Vietnam it appears that Tran used his experience with the immigration system to trick other Vietnamese into paying him money to deliver immigration benefits. Tran is accused of accepting large cash payments in return for his promises to get his ‘clients’ their “immigration paperwork” and “expedite their becoming naturalized United States citizens.”

Reports indicate that Tran has never served in any U.S. military branch nor been employed by ICE (ICE generally doesn’t employ deportees). Tran is reported to have even gone so far as to wear a Purple Heart, the military award given for being wounded or killed in combat, to impress his victims. When he was arrested, he was wearing a U.S. military flight suit with a USMC captain insignia. This raises the question, for me, of why he would bother. What real Marine goes about his or her civilian life routinely dressed in uniform? Did he think that being in uniform would make his claims of being able to deliver immigration benefits in exchange for money more believable? Apparently it worked, as reports indicate that Tran received thousands of dollars from at least four Vietnamese nationals for his ‘help.’ His victims thought they were paying a bribe for special, fast-track treatment, such as getting citizenship less than five years after becoming a permanent resident.

While Tran himself is a fine example of what you DO NOT want your children to grow up to be, I find that I also have little sympathy for his ‘victims.’ They bought into his promises of special treatment in return for a bribe. They wanted to jump the line and thought that they could buy their way in. Let me just say, to anyone thinking of taking a ‘shortcut’ by lying or falsifying documents, sure, there’s a chance you might get away with it, and get your citizenship a little sooner. After all, immigration officials are only human. They don’t know everything, and sometimes make mistakes. If you’re caught, however, you not only risk jail time and fines, but also losing whatever rights to immigration benefits you had before.

Applying for immigration benefits can be costly, time-consuming, and frustrating, and the process is often easier with the help of an immigration lawyer.  Believe me, I know this. I know it better than most people. Sometimes the law doesn’t make much sense. But if you don’t respect the law as it exists, and try to go around it for your sole, selfish benefit, please don’t expect to get any sympathy when you get caught. Not only do you do a disservice to yourself and your family, but you also do a disservice to the other members of your community, who must now deal with the bad reputation that your actions will bring upon them. When in doubt as to the law or your options, choose an experienced immigration lawyer to help you address your problems the right way.

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933