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Monthly Archives: May 2021

Improper Entry and What it Means for You

By Peek & Toland on May 17, 2021

It probably seems like all we cover lately is endless information on immigration statutes, and that’s with good reason: 1) we’re an immigration law firm, and that’s our area of expertise, and 2) this information is topical, as we’ve seen a 300% increase in immigration-related arrests in the last month, much in thanks to an executive order from our governor.

And, because we all know that ignorance of the law is not an acceptable defense, let’s take another look at immigration statutes to best understand where the issues lie and how to avoid them. We’ve covered alien smuggling for a few weeks, but let’s delve into another statute: Title 8, Section 1325 of the U.S. Code (U.S.C.): improper entry by an alien.

So, what exactly is improper entry by an alien, and how can you avoid violating this statute?

To better understand what improper entry is, you can click the link above that will take you to the legal codes, which are chockfull of not-so-fun terminology, but for the sake of summation and to save you some sanity, improper is just a nice way of saying illegal. So improper entry equates to unlawful entry, which doesn’t just mean stepping foot across an unguarded border.

Let’s look at some examples of this very broad statute. Improper entry can include:

  • Evading inspection by U.S. immigration officials

Evading inspection doesn’t only mean extreme forms of avoidance, such as stowing away on a cargo vessel or digging an entry tunnel beneath the border. Avoiding a check-point is a sure-fire way to violate this statute.

  • Willfully giving false or misleading information to gain entry into the U.S.

We all know that lying to immigration or falsifying government documents is illegal, but what else?

If romantic comedies and perennial immigration tropes have taught us anything, it’s that you can marry a U.S. citizen and gain legal entry into the U.S… but only if it’s an authentic marriage. Anything less than true is marriage fraud and improper entry. Take a look at our Adjustment of Status Through Marriage blog to better understand the legal requirements to validate an immigrant marriage.

Another way you can be found guilty under this statute is by letting your visa lapse without checking in or filing the applicable paperwork to extend your stay. They had legal entry at some point, but they allowed their papers to expire.

This form of violation also pertains to helping someone else falsify their documents. Take, for instance, a business owner who has a friend whose work visa is soon to expire. So, like a good friend, the business owner fibs and says their friend works for them and files to extend the work visa. That may make you a good friend, but it also makes you a criminal in the eyes of the U.S. government.

  • Entering or attempting to enter the U.S. at any location other than one designated by U.S. immigration officers

This is the easy one, the one we all know about. Don’t cross the border unless it’s at a designated inspection location.

Legal Ramifications

We’ll keep this section short and sweet. Being caught committing any of these offenses or violating this statute in any way affects not only your wallet and freedom but your future, as well. These violations likely make a person inadmissible, thus jeopardizing any future legal entry into the U.S., even if you’ve been on your best behavior since the violation. 

These are only a few of the ways that the statute of improper entry can affect you and your loved ones, and we’ve painted those with some fairly broad strokes. If you have questions or want more information on this statute, please reach out to one of our trusted immigration attorneys at Peek & Toland. We’re more than happy to help you avoid legal trouble and secure a pathway to citizenship.

Posted in Criminal Defense, Immigration

Adjustment of Status through Marriage

By Peek & Toland on May 13, 2021

Ah, wedding bells—congratulations! In addition to the toaster, bath towels, and such you receive as congratulatory gifts, as a newlywed, you can apply for a Permanent Resident Card (most commonly referred to as a Green Card).

You’ve taken your vows, made it through the spousal immigration process, and you’re on your way to citizenship, right? Not so fast.

Marriage + Green Card does not automatically = citizenship. If you’re seeking citizenship for your spouse, there are some important steps and caveats you need to know. Let’s take a look.

It’s a common misconception that citizenship is automatically granted to a foreign national who marries a U.S. citizen, but the truth is that it’s only a stepping stone on that pathway. A pathway with many other steps and requirements. I’m sure you’re aware of the various ways to adjust your status, but we’re looking closely at the route to citizenship through marriage.

So, what comes after getting a Green Card?

First, you must know that the initial Green Card you receive is a Conditional Green Card for two years. There are strings attached, that is why it’s called conditional. At the end of the two years, you’re due for a check-up. Now, this is not to be confused with a Visa renewal. We’re talking about the form I-751, Petition to Remove Conditions on Residence. This is essentially an evaluation of your marriage after two years.

You may have taken vows of a lifetime commitment to your spouse, but Immigration needs a bit more than your word to verify the validity of your marriage and ensure you are abiding by the terms of your residency. 

Let’s first take a look at the timeline for this verification process.

As I mentioned, this verification comes at the end of the two years. It’s incredibly important you do not miss that deadline, as failure to meet the deadline has serious consequences for your likelihood of earning permanent residency and much less citizenship. You can begin the filing process as early as 90 days before the end of those two years.

So, better late than never really is not an acceptable sentiment in this process. It’s more of an “early bird gets the worm” type of deal, and you’re so much better off if you start this process as soon as possible.

I-751: More Than Filing a Form

As we mentioned, Immigration will not just accept your original vows or your word on your marriage status. They want evidence. This process is much like re-applying, as you have to provide significant materials to prove the validity of your marriage.

Honestly, it’s quite a lot, and an experienced immigration attorney can help you collect and prepare the necessary evidence to satiate Immigration’s inquires and check all of their boxes.

The good news is while Immigration is processing this form, you’re able to keep accumulating time here. And if you don’t know, after three years of permanent residency and having met all of the immigration requirements to validate your marriage, you can file for naturalization.

So, while it might seem like an arduous process (and, it is), it has the potential to lead to citizenship.

 I Do, then I Don’t—Now What?

Everything we’ve discussed here so far pertains to marriages that remain happily intact, but we all know that not every story has a fairytale ending. So, what if you’re no longer happily married? What if you’re separated or have started divorce proceedings? You still have options, albeit much more complicated ones. If you’ve not met the marital conditions of your permanent residency, you may still potentially keep your residency, but you need to talk to a lawyer.

As always, our experienced immigration attorneys would love to speak with you about your options and help secure your path to citizenship, so reach out to us if any of this applies to you or someone you know. Continue to follow along with us on social media, where we will continue to dissect the aspects of immigration that are important to you.

Posted in Citizenship, Immigration

Niz-Chavez v. Garland: New Defense Against Deportation

By Peek & Toland on May 12, 2021

Knowing and asserting your rights is something we can’t stress enough in any legal situation. The same is true for immigrants who are facing removal proceedings. We could speak endlessly about immigrants facing removal proceedings and the rights guaranteed to them throughout the process.

These guaranteed rights and whether procedures were properly carried out are a foundation for a great defense against removal. Today, we’re going to take a closer look at one of those defense strategies based on a recent Supreme Court Ruling. This decision is going to affect everybody who is facing removal proceedings.

Removal Proceedings?

Removal proceedings—you probably know them better by the term deportation. This term was changed from deportation to removal proceedings, likely in an attempt to sound more friendly and less severe.

So what are removal proceedings, exactly?

Any instance in which an undocumented person is apprehended by immigration and detained, whether it be due to an arrest for an alleged crime committed or any other violation, removal proceedings is the next step. For removal proceedings to lawfully begin, immigration must provide the apprehended undocumented person with a Notice to Appear document (“NTA” for those familiar with this process).

If you’re not familiar with NTAs, let’s get acquainted now. NTAs have several items of note that contain important details, such as your name, date of birth, country of origin, and the alleged crime for which this person is being held. The note on the NTA that we want to look at today is one of the most important: court information.

The court location and date and time of the proceedings should be listed on your NTA. Now, we say should because the problem is with it not always being there. As a matter of practicality over the past 20 years, immigration has been flexible with that requirement. Many NTAs are issued without that pertinent information, and therein lies the problem.

They’d often say that the relevant court information would later come in the mail. But, that’s an incomplete document, right? Right!

 So, what’s to be done about incomplete NTAs?

Well, in 2018, the Supreme Court heard this exact argument about the unlawful distribution of incomplete NTAs in a case called Pereida. In the Pereida Decision, the Supreme Court concluded that an NTA missing those required court dates is deemed defective notices. Good news, right?

 Wrong.

Remember, this was in 2018 when we were under the Trump Administration, which had a reputation for being unreasonably harsh and playing fast and loose when it came to immigration. The Trump Administration and its Attorney General, Jeff Sessions, did not find the Pereida Decision very pleasing, so they circumvented the Supreme Court’s decision by reinterpreting the decision through the Board of Immigration Appeals, an alternative to Supreme Court immigration. So, this seemingly black-and-white decision became rather gray, but that’s where the Niz-Chavez v. Garland ruling comes into play.

Niz-Chavez v. Garland

Here we are, two and a half years later, and the Supreme Court rules on this issue again, essentially reconfirming what we know to be relatively straightforward: an incomplete NTA, one issued without all information completed, is defective. But what does that mean, and why does that affect so many people?

Remember how we mentioned that immigration has routinely issued incomplete NTAs over the last years? Everyone who received an incomplete NTA is deemed defective. Therefore, you now have a few new defense strategies against their pending removal.

It’s imperative to speak with a well-practiced immigration attorney because they could convince a judge to toss out your case entirely if your NTA was defective.

What’s more? The additional defense of continued accumulating time is an option. Cancellation of removal requires the person to have been in the U.S. for a minimum of 10 years. So, because that NTA document is deemed defective, it didn’t stop the accumulation of time here for the undocumented person to whom it was issued.

 In short: a defective NTA could erase removal. 

At Peek & Toland, we’re pretty excited about this news and the possibilities it makes available for our clients and the immigrant community. If you are in removal proceedings or need to know how this ruling might give you additional defenses and a chance to stay in the U.S., please reach out to one of our trusted immigration attorneys. We’d love to talk to you about your options.

Continue to follow along with us on social media as we continue to cover the latest immigration news that affects you.

Posted in Immigration

Collateral Effects of Alien Smuggling: A Case Study

By Peek & Toland on May 7, 2021

Alien smuggling is a topic we’ve covered in some detail recently, and it’s still worth mentioning again because it is so prevalent and can affect you and your loved ones in a way you’d probably not considered.

When discussing criminal charges and hypotheticals, it can be difficult to place ourselves in those positions and imagine the lingering effects that criminal charges can have on our life and the lives of others. So we wanted to drive home some aspects of alien smuggling through a real-life, practical, understandable account one of our clients had to endure.

We represented a recent high school graduate and his mother in defense of alien smuggling charges. It might sound crazy, but we’re about to tell you how they were affected by alien smuggling having no knowledge they were committing a crime. 

This hard-working, loving mother and her son are U.S. citizens. Like many parents to high school graduates in the U.S., this mother wanted to help him in his new chapter of life, so she did so by co-signing the loan for her son’s new truck. We all know that co-signing a loan for a car makes you legally responsible for the payments, and any missed payments can wreck your credit. But, did you know that as a co-signer, you can also be affected by some illegal activity committed in the car for which you co-signed?

When this mother decided to put her credit and name on the line for her son’s new truck, she had complete faith in him to make the monthly payments on time. Unfortunately for this mother, her son made some missteps that had nothing to do with payments. Instead, it lead to his life and his mother’s life being negatively affected.

You see, her son decided to help out a friend with a ride, so he met his friend at a McDonald’s near a border town and picked up his friend. It came as quite a surprise when these two young men were pulled over by the police, resulting in our client being charged with alien smuggling. This charge and its lingering effects are difficult enough to fight, as it is, but it gets worse. Alien smuggling has such a broad statute on forfeitures, his car (the one co-signed for by mom) was seized. Any vessel used in commission of the crime of alien smuggling will be seized.

So, not only did our client have to tell his mother that he’s been arrested and will require legal defense, but he also had to relay that his mother’s name and credit were in dire trouble as a result of his actions.

Despite this poor decision, our clients were wise enough to seek an experienced criminal defense and immigration counsel from us at Peek & Toland. We were able to get all charges dismissed successfully, and their truck returned to them. This was not without an emotional and financial burden on the family.

We are experts in this area of law and understand how quickly these things can happen. If this happens to you or someone you love, you have just a short window of time to respond with available defenses. If you have any questions about forfeitures and alien smuggling statutes, please give us a call here at Peek & Toland. We’re always glad to help.

Posted in Criminal Defense, Immigration

Immigrant Sponsorship and the Legal Implications

By Peek & Toland on May 6, 2021

What does it mean to sponsor an immigrant? In the U.S., sponsorship of people or events is fairly commonplace, but the sponsorship of an immigrant is much more involved than your run-of-the-mill PTA or a fútbol club, as you can imagine, but how in-depth the commitment of immigrant sponsorship might surprise you.

The premise of the immigration sponsorship is pretty straightforward. A U.S. citizen or permanent resident agrees to sponsor an immigrant entering the United States and does so by completing an Affidavit of Support, or an I-864 form, for the immigrating person. This is also the process for co-sponsoring an immigrant, but we’ll get to that later. First, let’s take a look at what is required to sponsor an immigrant, and then we’ll take a deeper dive into what sponsorship means for you. 

 Who Can Sponsor an Immigrant?

We’ve already established that someone sponsoring an immigrant coming to the U.S. must be a U.S. citizen or permanent resident. It goes without saying that the sponsor must be a legal adult (18+ years of age) currently living in the U.S. Additionally, there are financial responsibilities tied to the sponsorship of an immigrant and, as such, sponsors are required to earn a certain amount of money to be eligible to be a sponsor.

Generally speaking, someone sponsoring an immigrant will have to be financially well off, but there are options to accommodate sponsors who do not meet the financial income minimums, and that is in the form of co-sponsorship. The financial requirements are in place due to the legal responsibility placed on sponsors and co-sponsors to ensure that the immigrants do not become a public charge. 

With that understanding, a sponsor or co-sponsor is financially obligated to provide for the immigrating person they are sponsoring. We can take a closer look at the legal implications involved with signing the Affidavit of Support.

Affidavit of Support and What it Means for Sponsors

Signing an Affidavit of Support is more than just government red tape. It is a serious, legally binding venture that should be taken with careful consideration and complete trust in the immigrant you plan to sponsor. Remember that financial responsibility we just discussed? It’s not just a formality. You are agreeing to be financially responsible for an immigrating person until they:

  1. Become a legal U.S. citizen or resident.
  2. Die.
  3. Have a 10-year record of legal work demonstrated through their work record and a tracked history of payment with contributions to our tax system in the U.S.

This legally enforceable document, the Affidavit of Support, means that failure to adequately provide for the immigrant you sponsor can lead to the immigrant or the U.S. government bringing legal action in court against you. Though you may be a law-abiding legal U.S. resident, the law places the burden and obligation on the sponsor much more than it does the immigrant.

‘Til Death Do You Part

Many of the Affidavits of Support that we see are through marriage. A couple in love, floating on promises of hope and happiness in the future, make what seems like an obvious and easy decision to bring their partner to the U.S. Building a life together and relying on one another for prosperity and wellness in the U.S. is common practice for most marriages, and it’s definitely true in cases of immigration sponsorship in couples. While all of that sounds great, reality and statistics tell us that marriages don’t always end up with fairytale endings.

While your marriage can be annulled and absolved with some legal proceedings with the stroke of a pen, your legal commitment to a sponsored immigrant knows no end. So, marriages may not be until death do you part, but Affidavits of Support definitely are forever.

Even in financial ruin or bankruptcy, a sponsor can still be bound by sponsorship commitments, so treat lightly and cautiously.

Sponsoring an immigrant, especially someone you love, can be truly wonderful and life-changing for the best, but it is a commitment and a legally binding one that should only be entered into after careful consideration and legal guidance from a trusted and seasoned immigration attorney. 

If you are considering becoming a sponsor for an immigrant and would like to review your particular circumstances and receive guidance on the requisite paperwork and qualifications, we are happy to help. Please reach out to us. Please continue to follow our social media channels for breakdowns and alerts on the immigration processes that affect you and your loved ones.

Posted in Immigration Reform

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