PHAM & CLOVES, PLLC

PADILLA Vs. KENTUCKY

The Supreme Court held today, March 31, 2010, that a criminal defense attorney must advise an immigrant criminal defendant the immigration consequences of the guilty plea. This is a corner stone to vacate previous convictions whereby noncitizen defendants plead guilty to a crime and are now facing or will be facing deportation. Please contact the Houston Immigration Lawyers at Pham & Cloves, PLLC at 713-492-0337 today for assistance in filing motions to vacate criminal convictions based on their lawyer’s ineffective of counsel.

In Padilla v. Kentucky, the U.S. Supreme Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Supreme Court held that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal in meritorious cases. The held that, “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”

For all questions related to immigration consequences based on criminal convictions, please contact the Houston Immigration lawyers and the Houston Deportation Attorneys at Pham & Cloves, PLLC at 713-492-0337.

Department of State’s Changed Their Processing Procedures For K-3 Marriage Visas

Starting February 1, 2010, the Department of State (DOS) changed its procedures as to how it processes K-3 marriage visas in conjunction with I-130 immigrant petitions. Effectively, the DOS will no longer process K-3 marriage visas if the USCIS approves the K-3 visa application with the I-130 Immigrant Petition alien relative application at the same time. The National Visa Center (NVC), a private company that processes immigrant applications and transfer these applications to the U.S. consular offices abroad, will no longer process the K-3 visa if it receives application transfers from USCIS at the same time. Instead, NVC will process the immigrant visa and will contact the petitioner regarding the IR-1 or CR-1 immigrant visa.

K-3 nonimmigrant visas are marriage visas reserved for U.S. citizen to sponsor for their alien spouses. K-3 visas allow the foreign spouses to come to the U.S. to apply for adjustment of status rather than waiting for an immigrant visa to be processed abroad at the U.S. Consular Office. In most cases, a K-3 would allow the couple to reunite much sooner than if the spouse were to wait for an immigrant visa from the U.S. Consular offices. In processing an immigrant visa, the U.S. Consular officer must wait the FBI background check to clear prior to issuing the immigrant visa. Depending your country of origin and the commonality of your name, the background check usually takes months and sometimes even years.

The Houston immigration attorneys at Pham & Cloves, PLLC suspect that the administrative decision of the DOS will be challenged in federal court. The reason is that the administrative decision frustrates Congressional intent in enacting K-3 marriage visas under the Immigration and Nationality Act. Congress intended to allow alien spouses of U.S. citizens unite in the U.S. while waiting for their spouses’ adjustment of status application (green card application) to be approved by USCIS in the United States. If you or your family is being affected by the Department of State’s decision, please contact our U.S. immigration attorneys and our Houston immigration litigation lawyers at Pham & Cloves a call. We can help and will file suit in U.S. District Courts, if necessary, to protect your rights under the Immigration Nationality Act and reunite you with your family. Contact our Houston immigration litigation attorneys and our U.S. immigration lawyers today at 713-492-0337 or contact us online.

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.