The Federal Bar Association’s Immigration Law Seminar that was held from Thursday, May 16 until Saturday, May 18, was an overwhelming success. The staff of government speakers, renowned immigration lawyers and law professors gave attendees insight and knowledge that is rarely assembled under one roof.
Here are some key take aways from the conference:
Driving while intoxicated:
The Department of Homeland Security and the Department of State, DOS, are taking a hard line approach to DWI convictions. If an applicant has more than one DWI conviction, dos is taking the position that the applicant is a “habitual drunkard” and will need medical clearances before a visa is approved. If the visa application is made within 5 years of a DWI conviction or if there are 2 arrests in the last 10 years, DOS is requiring a mandatory assessment to a DOS physician. How to overcome this? The applicant should be evaluated by his own physician first with a prepared report explaining why the applicant is not a “habitual drunkard.” A course of treatment should also be outlined to address any relapse concerns.
Noncitizens who are criminally prosecuted:
Since the advent of Padilla v. Kentucky it is incumbent on criminal defense lawyers to advise noncitizens of the immigration consequences of a plea, prior to the noncitizen pleading guilty to an offense. Sadly, In Chaidez v. Holder, the Supreme Court recently held that Padilla is not retroactive. This means that noncitizens with federal criminal convictions that predate the Padilla decision (March 30, 2010), cannot have their convictions vacated for ineffective assistance of counsel. Chaidez left open two issues. First, whether state courts can interpret their state constitutions more broadly than the Supreme Court interpreted the federal constitution and Second, whether Padilla would be retroactively applied when a lawyer gives affirmative misadvice.
How are courts generally addressing Padilla concerns? During the conference Judge Fowlkes from U.S. District Court, Western District of Tennessee, spoke on a panel with me and commented that most courts are now having the judges themselves give Padilla warnings associated with a plea. Judges want to do everything they can to assure the finality of a plea that will not be open to challenges later on.
Gang asylum cases:
Besides immigration reform, this was the hottest issue during the conference. If you compare homicide rates with Mexico and the United States, you will find an overwhelming spike in the number of homicides in Mexico in the last 5 years. Even though courts have not adopted gang recruitment cases as a basis for asylum, the trend will soon be to recognize this particular social group given the realities of what is happening on the ground in the countries in question such as Mexico, Central American countries and Ecuador.
Immigration reform looks like a certainty. One government official said it is like a runaway train that cannot be stopped. We will keep the follower of this blog up to date on the latest developments. One positive sign is that back taxes may only have to go back 3 years. This will make it a lot easier for people to register once registration begins.
I hope you found this helpful. We will be happy to answer any questions you may have related to this article or any other immigration question.