JULY 2010 IN REVIEW

July 2010 produced a number of successes for Chow & Hamilton. Several of our Kenyan asylum claims which had been pending for decisions at the asylum office after interview, and at the trial court level, after trial, were approved. Most of those cases were complex, in that our clients were applying for asylum under exceptions to the one-year asylum filing bar. In mid July, we also won adjustment of status, and therefore, Lawful Permanent Residence, for a Kenyan who had been a victim of battery and extreme cruelty at the hand of a US Citizen spouse, under the Violence Against Womens Act (VAWA), and our only marriage-based adjustment of status interview for the month yielded an approval, permitting our Kenyan client, who had resided in the United States for quite a number of years without status, to finally immigrate.

We welcome all of these successful applicants to the United States and are extremely happy to have played a part in their immigration processes.

By: Duane M. Hamilton

PADILLA V. KENTUCKY AND THE OBLIGATION OF CRIMINAL LAWYERS TO PROPERLY ADVISE ON IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTION

Criminal lawyers and their clients often find themselves in a difficult predicament when it comes to representing criminal defendants who are not citizens of the United States. A criminal lawyer may, from a pure criminal law perspective, act brilliantly in crafting a plea arrangement for his client, but at the same time, fail miserably, where that plea arrangement does not fully take into account the immigration consequences of conviction. Depending on the alien's circumstances, a plea to a crime which is classified from an immigration point of view as an "aggravated felony," may subject the alien to nearly certain deportation, though the plea arrangement allowed the alien to suffer minimal criminal consequences. Other crimes classified as Crimes Involving Moral Turpitude (CIMTs) may also trigger "Removal" proceedings, though a broader array of immigration defenses or relief applications may be considered by an Immigration Judge (IJ) when the alien is charged with one or more CIMTs.

How much immigration law does a criminal lawyer really have to know in order to competently represent a non-citizen in the criminal courts of the United States? A considerable amount, it would now appear, in light of Padilla v. Kentucky, decided on March 31, 2010 by the U.S. Supreme Court. The Supreme Court in essence held in Padilla, that where the deportation consequences of a criminal plea are clear, the criminal lawyer has "the duty to give correct advice..." The challenge that this presents for the criminal lawyer is obvious; criminal law and immigration law are separate and distinct specialties, both highly complex in their own right. Criminal lawyers are not typically well versed in immigration law (though many have some rudimentary understanding of the potential for certain criminal convictions to trigger removal proceedings). On the other hand, a great many immigration litigation lawyers (lawyers who represent clients in the immigration court and during immigration appeals) do not regularly represent defendants in criminal courts. Often with significant preparation, such lawyers may cross the boundaries of their specialties, achieving a satisfactory result for the client. A great many immigration lawyers are well versed in moving to vacate guilty pleas on behalf of criminal aliens in criminal court, but may not otherwise be up to date in the procedural or substantive aspects of day-to-day criminal court practice.

A criminal alien (that is a person with a green-card or who is undocumented and is facing criminal charges in a court of law or has already been convicted of a crime) must consider very carefully the experience of his lawyer, with respect to both criminal and immigration law. Where a criminal attorney is not well versed in Immigration "Consequences of Crimes" practice, the alien should require that his counsel collaborate with a seasoned immigration litigation lawyer, and receive a "consequences of crimes" opinion from such lawyer, before he or she pleads guilty or no contest. This, of course, will drive up the cost of the alien's legal representation, since the immigration lawyer must charge for his time and expertise in drafting the opinion. The criminal lawyer should then use the immigration lawyer's opinion in advising the alien, crafting a plea arrangement, or making a decision to take the case to trial. On the other hand, in this attorney's opinion, an immigration lawyer who is taking on the criminal defense of an alien and who has not practiced in immigration court for an extended period of time, should commit him or herself to observing the procedures and practices of the particular criminal judge, and should bring him or herself up to date with the most current criminal law related to the particular case. I believe that the lawyer should also be up front with the client that he or she is primarily and immigration litigation lawyer and that the client should be hiring him or her because the immigration consequences of conviction may be as or more severe than the criminal consequences.

Having said all of this, it is important for alien criminal defendants to understand that even with the best collaboration between criminal and immigration lawyer, or with the best and most experienced of lawyers possessing tremendous expertise in both immigration and criminal law, the facts the lawyer is handed and the prevailing law pertaining to the case, will often constrain the outcome. In other words, an alien who shoots a police officer in the presence of witnesses and whose murder weapon is recovered by the police, and who is confronted in court by the eye witnesses, will most likely be convicted, and will also most likely be deported without any immigration remedy. The lawyers' role is simply to advise the client as fully as possible and to seek the most favorable outcome possible for the client.

Aliens accused of crimes should not wait to be told to consult with an immigration litigation lawyer. And from this lawyers perspective most criminal lawyers now will either have to educate themselves completely on the complexities of immigration consequences of crimes or consult with experienced immigration lawyers in these matters.

Duane M. Hamilton

ATTORNEY HAMILTON WINS ADJUSTMENT OF STATUS FOR GUATEMALAN ALIEN ACCUSED OF A "FALSE CLAIM OF CITIZENSHIP"

Chow & Hamilton today received notice that its motion to reconsider the denial of an adjustment of status for a Guatemalan national accused of having made a "false claim of citizenship" at the time of her attempted entry into the US in 2001, has been granted, and the alien adjusted to lawful permanent resident (LPR) status. The alien had originally sought entry and was "paroled" into the United States in 2001 as a minor.

In March of 2007, Hamilton took the case over from a previous attorney, after the Board of Immigration Appeals had denied the alien's appeal of a deportation order by an immigration Judge (IJ) in Los Angeles, California. Mr. Hamilton petitioned the 9th Circuit Court of Appeals for review of the BIA decision sustaining deportation and subsequently sought reopening of the case with the lower BIA. The BIA upon the request of Hamilton's motion, reopened and remanded the case to the IJ for further proceedings in July of 2007.

Attorney Hamilton then sought to adjust the alien's status with the IJ, who in January 2008, granted a termination of Removal (court) proceedings to allow USCIS to adjudicate the adjustment of status (since IJs generally rule that they do not have jurisdiction over the adjustment of status of aliens "paroled" into the U.S.).

During the process of the alien's adjustment matter the USCIS adjudicating officer accused the alien of having made a false claim of US Citizenship upon attempting to enter the United States. This charge is a serious and devastating one, since, if true, it serves as a barrier to adjustment of status and is not waivable. Further, many officer's view the false claim statute as one of strict liability, meaning that once the false claim is made by word or deed, the negative consequences of that claim attach, regardless of the age of the alien. There are only very limited and narrow defenses to a false claim allegation. In spite of Mr. Hamilton's efforts to explain to the officer the legal reasons why this particular alien should be adjusted in spite of the officer's perception of the false claim, the adjustment was denied.

Hamilton filed a motion to reconsider USCIS's denial of the adjustment application in June 2009, and simultaneously fought off efforts by ICE to recalendar the case with the IJ for renewed removal proceedings. Mr. Hamilton articulated in his memorandum of law why in spite of the government's perception that minors are not exempted from the negative consequences of a false claim of citizenship, this particular minor could not be subjected to those consequences.

The fruit of those efforts are now manifest in the grant of the motion to reconsider and the alien's adjustment of status, allowing said alien for the first time in nine years, to truly embrace the concept of belonging to a specific country.

By: Maria Rangel

ATTORNEY HAMILTON SECURES ASYLUM FOR A KENYAN IN ANOTHER SAN DIEGO COURT CASE

On June 7, 2010, Attorney Hamilton tried yet another Kenyan asylum claim before the San Diego Immigration Court. The case was a complex one, involving a theory of "firm resettlement" in Europe as a ground for denial, posed by the Government, since the alien had resided in a certain European country for many years before coming to the United States. [Aliens, by law, are not entitled to asylum in the United States, if they have been "firmly resettled" in another country]. Mr. Hamilton was further required to overcome the government's initial arguments with regard to the alien's ineligibility due to the alien's failure to apply for asylum within one year of entry. The Immigration Judge, finding that the alien was not firmly resettled and had in fact satisfied a legalistic exception to the one year filing requirement, granted the asylum claim. Chow & Hamilton is grateful for the protection the Court has extended this client. The majority of Mr. Hamilton's immigration litigation matters continue to be conducted in the Los Angeles Immigration Court.

By: Chow & Hamilton

CHOW & HAMILTON FILE CIVIL SUIT IN HEMET DEPT. OF JUSTICE SHOOTING CASE

On June 9, 2010, Attorney, Peter C. Chow, filed suit in Riverside Superior Court in Abel, et al v. State of California. The law-suit seeks unspecified damages from the State of California and the Department of justice for injuries arising out of an incident in which agents of the California Department of Justice are alleged to have entered certain private property in Hemet California, and without provocation or cause, shot at and severely injured Mr. Abel. The shooting is further alleged to have caused further serious injury and damage to other Plaintiffs who were either in the company of Mr. Abel, or on the subject premises at the time of the incident. Mr. Chow has stated that, "we have now initiated a process by which all of the details of this troubling event may be fully discovered and understood, and the injured parties made whole."


By: Maria Rangel

ATTORNEY HAMILTON FILES FEDERAL HABEAS PETITION IN MURDER CASE

On May 28, 2010, Attorney, Duane M. Hamilton filed a petition for writ of habeas corpus with the United States Federal District Court for the Central District of California in Los Angeles. The petition is seeking the reversal of a defendant's February 2008 second degree murder conviction from which the defendant has exhausted all of his state court appeals. Mr. Hamilton's office did not represent the defendant in his state court proceedings.

By: Chow & Hamilton

BACK TO BACK IMMIGRATION COURT ASYLUM APPROVALS FOR KENYANS

On April 29 and April 30, 2010, Attorney Hamilton conducted consecutive asylum trials in San Diego and Los Angeles, California respectively, for two Kenyan clients. In addition to the merits of the asylum claims, both cases involved the presentation of theories which would excuse the applicants from the legalistic one-year filing requirement which mandates that asylum applicants file their claims within one year of their arrival in the United States. Judge Williams of San Diego presided over and approved the April 29 claim, and Judge Riley of Los Angeles approved the claim tried on April 30, 2010. Mr. Hamilton had represented one of these applicants for over two years and the other for over 5 years in their quests for asylum in the United States. Though lengthy, both clients have expressed their gratitude to the court, the government and to a process through which their freedom has been secured.

Maria Rangel.