PHAM & CLOVES, PLLC

It’s a sad day today.  As I was preparing to watch the Super Bowl with my friends and playing a friendly poker game, the game with the regular national anthem by Queen Latifah.  Then, Carrie Underwood came up and sang the national anthem again?  If I am not correct, that’s the first time that the national anthem was sang twice during the same Super Bowl.  To make it worse, they have to choose an Anglo country singer and an African American rapper.  If that is not modern segregation, I do not know what is.  Does it matter who sings the national anthem, black, white, yellow, brown, blue or green?  So long as it is an American, what difference does it make?   This shows me that America is still very segregated, and if you think we are a perfect melting pot, it is a wake up call.   I am not politically motivated; however, the singing of a national anthem by a black singer and a white singer at the same Super Bowl boils my blood!  There is only 1 American, an American.  It doesn’t matter what color that person is.  They should have let them sing together!  That’s my 2 cents for the day!  What’s your thought on it?

AGGRAVATED FELONY DOES NOT INCLUDE PROBATION CASES WHERE A “SENTENCE” IS REQUIRED

By The Houston Immigration Lawyers and the Houston Immigration Attorneys at

PHAM & CLOVES, PLLC

The Illegal Immigrant Reform And Immigrant Responsibility Act of 1996 (IIRIRA) stipulates crimes that are removable (deportable) for foreign nationals, including U.S. permanent residents. Among these crimes, those that are classified as “aggravated felonies” are most serious and will deprive the foreign national from many applications and waivers, including but not exclusive to Cancellation of Removal and I-601 extreme hardship waivers.

Under immigration law, “conviction” includes an admission of guilt, such as a “guilty” or “nolo contendre” plea. However, certain crimes that are convicted in Texas that are included in IIRIRA, INA §101(a)(43), are aggravated felonies only if a “term of imprisonment” of at least one year is imposed. For example, thefts, burglaries, and or assault offenses are considered a “crimes of violence;” and as such, an imposed imprisonment of at least 1 year or more would make these convictions aggravated felonies. In these instances, a deferred adjudication is considered as no sentencing of imprisonment.

Under the Texas Code of Criminal Procedure, probations include deferred adjudications. However, deferred adjudication is not a pronouncement of sentence; and therefore, is not a “conviction.” The “pronouncement of sentence” comes only after an adjudication of guilt. Additionally, the “term of imprisonment” is not part of the Texas deferred adjudication statues. Conclusively, while a deferred adjudication is a “conviction: under immigration and naturalization law, it is not a conviction for an “aggravated felony” if INA §101(a)(43) required an imposed sentence of 1 year or more. If so, the foreign national may still be eligible for many immigration benefits, such as cancellation of removal or an extreme hardship waiver.

For more information regarding cancellation of removal, waivers, or deportation, or immigration consequences of criminal convictions, please contact our Houston Immigration Attorneys and our Houston Immigration Lawyers at PHAM & CLOVES, PLLC at 713-492-0337.

PHAM & CLOVES, PLLC - Houston Green Card Attorneys

I usually do not rant and rambling on and on, especially in a blog.  However, I am making an exception today.  It never cease to amaze me as to how our tax money is “well-spent” by our government.  The latest evidence of how wasteful our government spend our tax dollars is a decision by the Board of Immigration Appeals (BIA) on January 25, 2010, In Matter of Rose, 25 I&N Dec. 181 (BIA 2010).  The BIA reversed its own decision a year ago, and remand the case to the immigration judge to make the decision in accordance to their new interpretation of the INA.

Mrs. Rose received her conditional green card through her U.S. citizen husband’s sponsorship in 1995.  Soon thereafter, Mr. Rose died.  After 2 years of her conditional residency, Mrs. Rose timely filed a petition to remove the conditions of residence, Form I-751.   In 1999, the INS (currently U.S.C.I.S) denied her application, stating that (1) she failed to file the application “jointly,” and (2) she was not qualified for a waiver of filing a joint petition.  Mrs. Rose was put in removal proceeding; whereby, she applied again with the immigration judge and was also denied.  Mrs. Rose timely filed her appeal with the BIA.  The BIA, after consideration, denied her appeal in January of 2009 (10 years after her 1999 denial by INS).    Mrs. Rose, through her counsel, timely filed a Motion to Reconsider to the BIA.  After their second evaluation, the BIA finally reversed its previous holding, and remand Mrs. Rose’s case to the immigration court for review accordingly.

INA section 216(d)(1) states that,

IN GENERAL.-In order for the conditional basis established under subsection (a) for an alien spouse or an alien son or daughter to be removed-

(A) the alien spouse and the petitioning spouse (if not deceased) jointly must submit to the Attorney General, during the period described in subsection (d)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1), and

(B) in accordance with subsection (d)(3), the alien spouse and the petitioning spouse (if not deceased) must appear for a personal interview before an officer or employee of the Service respecting the facts and information described in subsection (d)(1).

(Emphasis added)

The INS and the immigration judge interpreted the statutes to say that if there is no joint petition, then the applying spouse must qualify for an “extreme hardship” waiver under the INA.  It does not take a genus to figure that the statute requires a “joint” petition and “joint” interview only if the spouse is NOT deceased.  In case a sponsoring spouse is deceased, how does someone file a “joint” petition?   If Congress did not intend for the surviving spouse to be able to file on her own, they would have not inserted (if not deceased) into the statute.  It is simple as that.  However, it takes our government over 10 years, more likely than not, 100’s of researching and working hours, and thousands of tax dollars, as well as thousands of dollars for Mrs. Rose, to come to a seemingly reasonable, straight-forward decision.

If you or your loved ones needs to file an application and petition to remove your conditions on a conditional green card, contact our Houston green card lawyers and our Houston green card application attorneys.  Our no non-sense attorney will get to the point and properly file for I-751 Petition to remove the  conditions of residence.

H-1B Visa Memo by USCIS’ Associate Director Donald Neufeld

On January 8, 2010, Associate Director Donald Neufeld of USCIS issued a memorandum regarding H-1B visas and employer-employee relationship, acts as a guide to field officer. The following is the Houston H-1B visa attorneys and the U.S. H-1B visas lawyers’ at Pham & Cloves, PLLC interpretation of the Memo. For more information, contact our U.S. H-1B attorneys and our Houston Texas H-1B lawyers for more information.

The Memo is intended to provide guidelines as to how officers should interpret employer/employee relationships where the employees work offsite at another location, such as through a third party client. The memo emphasize on whether the employer has “control” over the employee in those placements, or merely act as a contractor to fulfill a vacancy at a client’s site. If it is the later, the USCIS may determine that the employer lacks control over the employee; and therefore, there is a lack of an employer and employee relationship.

The Memo, however, had created unintended results. Over the past few weeks, immigration and border patrol agents have turned away many H-1B visa holders arriving to the U.S. The basis for the denial of entry is because the employer and the employee failed to established the employer/employee relationship as stated in the January 8, 2010 Memo. To avoid denial of entry, employers must work closely with H-1B visa lawyers that have experience in IT staffing and IT projects.

The Houston H-1B visa lawyers and the U.S. H-1B visa attorneys at Pham & Cloves, PLLC have had over 5 years experience in the staffing industry and IT project management. Our U.S. H-1B visas lawyers will assist employers how to prepare H-1B applications that would meet the employer/employee relationship, and prepare proper documentation for the consulate interview, as well as employee’s entry into the U.S. Contact the Houston H-1B attorneys and the U.S. H-1B lawyers at Pham & Cloves, PLLC for an evaluation and consultation regarding H1B visa applications and H-1B admission at the port of entry.

U.S. Supreme Court’s Holding, Motion to Reopen May Be Reviewed by Federal Court of Appeals

On January 20, 2010, in a rare unanimous decision by the U.S. Supreme Court, the court held that a “motion to reopen” by the Attorney’s General, i.e. the immigration court and the Board of Immigration Appeals (BIA), may be reviewed by the federal court of appeals, the U.S. Circuit Courts of Appeals.  In Kucana v. Eric Holder, 558 U.S. (2010), the Supreme Court clarified languages of 8 U.S.C. Section 1252(a)(2)(B) of the Immigration & Naturaliztion Act (INA), as amended by the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA 1996).  the Court held that the discretionary power of the Attorney General stated in that section doe NOT include the Motion to Reopen, contradicting the Code pf Federal Regulations, 8 CFR Section 1003.2(a), and allow the U.S. Circuit Court of Appeals jurisdiction to review the BIA’s decisions in Motion to Open under the “Abuse of Discretion” standard.

Please contact the experienced Houston Immigration Lawyers and the Southwest Houston Immigration Attorneys at Pham & Cloves, PLLC if you are in deportation and removal proceedings.  There may be immigration solutions to your cases, such as applying for U.S. asylum applications, withholding of removal and Convention Against Torture, U.S. Immigration extreme hardship waivers (I-601 and Section 212-i), cancellation of removal, Texas Writ of Habeas Corpus to vacate your criminal convictions, and voluntary departure.  Our Houston Immigration Attorneys and our Southwest Houston Immigration Lawyers will work with you directly to assist in resolving your immigration concerns.  Contact our Houston Immigration Lawyers and Attorneys at 713-492-0337.