Posted on April 15, 2015 in Immigration

In a perfect world, a person who has come before an immigration judge has to wait very little time to move on with his or her life. However, given the United States’ extensive immigration court backlog and current culture of xenophobia, many immigrants who have been through the deportation and appeals processes still find themselves in legal limbo afterward, for reasons both appropriate and misguided.

Post-Order Custody

ICE used to be able to hold people indefinitely. However, in 2001, the Supreme Court decided the case of Zadvydas v. Davis, in which it was held that indefinite detention of (theoretically removable) aliens was impermissible in cases when the alien was not likely to be removed in the near future. In other words, if mere bureaucracy is holding up your departure, or a conflict that makes it temporarily unsafe to return to your home country, you are still permitted to be detained. If circumstances exist that mean your country will be unsafe or unreachable for the foreseeable future, you will be much more likely to receive a supervised release, or parole. While this decision only applied to admissible aliens, the court decided Clark v. Martinez three years later, extending the same standard to the undocumented.

Since Zadvydas was decided, the procedure underwent some modifications. Nowadays, after a final order has been entered in your case, Immigration & Customs Enforcement (ICE) has 90 days to remove you from the country. That period of time does not begin to run unless you have exhausted your appeals and there are no stays pending in your case. However, once it does begin to run, you must be removed during that 90 days. If you are not, you are entitled to a review of your detention.

If you are still in detention after the 90 days has elapsed, you are entitled to have your deportation officer conduct a review of your case. There are rare exceptions to this rule, namely if you have a communicable and dangerous disease or are a significant security risk, but otherwise, you are entitled to a review.

Am I Entitled to Review?

Not everyone is entitled to a review of their post-order status, but many are. In order to determine whether the Zadvydas or Martinez standards apply to you, you must fit the following criteria:

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 Posted on April 13, 2015 in Personal Injury

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 Posted on April 12, 2015 in Personal Injury

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 Posted on April 09, 2015 in Immigration

There is much misinformation out in the media about the legal nature of immigration violations. Many believe that if someone is present in the U.S. without documentation, they are committing a crime. Technically, this is not so, aside from in very exceptional cases. Others wonder why it matters--the answer is because a criminal record is a very different matter than a record of civil infractions, for immigration purposes and otherwise. If you are in the U.S. without documentation, it is absolutely imperative that you know what manner of act you have actually committed.

Unlawful Presence

Unlawful presence is exactly what it sounds like - being present in the United States without benefit of legal status. However, lack of ‘legal status’ can be somewhat misleading to the average person, making it sound as though it is a crime, when in reality, unlawful presence is a civil infraction.

It is interesting to note that Congress actually had the opportunity in 2005 to criminalize unlawful presence, and declined to do so. The Sensenbrenner Immigration Bill, the short name for the Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005, would have made unlawful presence a felony, regardless of circumstance, but after demonstrations around the nation, the Senate voted the bill down.

The only time mere unlawful presence (without any compounding actions) can result in criminal penalties is if it occurs after a person has been formally removed from the country, and then returns without leave to do so. If someone re-enters the U.S. when they have a previous standing removal order, they are at risk of being arrested and sentenced to prison. Most sentences are around two years, but it can vary. If you entered the United States legally, but are accruing unlawful presence, you will likely be subject to deportation, but you have not committed any crime under U.S. law (with very rare exceptions).

Unlawful Entry

Unlike merely being present unlawfully, entering the country without inspection is a federal crime, according to 8 U.S.C. §1325. It can be a felony, but is most often characterized as a misdemeanor punishable by fines and/or jail terms of no less than six months (but normally no more than two years).

One might wonder how someone can be unlawfully present in the U.S. and not have entered unlawfully, but it is in reality quite common. Many who find themselves in this position legally obtain visas and then simply fail to leave before the visa’s expiration date. They enter the country legally, with inspection, but as soon as their visa expires, they begin to accrue unlawful presence. In that scenario, the person would be guilty of a civil infraction, but no crime has been committed.

If you entered the United States without inspection, you are guilty of both the civil infraction of unlawful presence, and the crime of unlawful entry. You are subject to deportation, but you may also be subject to fines and a two-year jail sentence.

Get An Immigration Attorney On Your Side

If you need help with a potential immigration violation, or you need guidance on which penalties you may be subject to, having a good immigration attorney on your side can make all the difference. The skilled DuPage County immigration and deportation attorneys at Mevorah & Giglio Law Offices have years of experience in these cases, and will do our very best to help you with yours. Contact us today.

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 Posted on April 08, 2015 in Family Law

In the United States, defendants who have been accused of domestic abuse are provided with the benefits of the law, regardless of whether they are guilty or innocent. Most times, victims of domestic abuse are not able to easily prove that they have been the subject of abuse by their perpetrator, either because they are scared of the abusers, they love the abusers (regardless of the treatment that they are receiving), and/or there is very little evidence that could be shown to the police. It becomes a he-said, she-said situation, which our criminal justice system has a hard time assessing and evaluating.

Hearsay Evidence Rules

In court, when oral or written statements are brought in as evidence, the law of “hearsay” governs the admissibility of the statements. Hearsay is any out-of-court oral or written statement that is brought in to assert the truth of the matter that is at issue. Except for some outlined exceptions, hearsay is generally not admissible as truth, but could be brought in for another purpose, such as showing that the person had a bias or had received notice, regardless of whether the information held within the statement is true or not.

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 Posted on April 07, 2015 in Personal Injury

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 Posted on April 03, 2015 in Personal Injury

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 Posted on April 01, 2015 in Immigration

Becoming a naturalized U.S. citizen is a joyous feeling for most. It gives a sense of pride, safety and belonging. However, many come to realize that while naturalization means gaining several admirable qualities and protections, it also means giving things up. Some labor under a misapprehension that one can retain perks that they had under their previous nationality. Indeed, some find it better for their personal situation to retain their green card instead of naturalizing, or they may seek dual citizenship. You must figure out what is best for you.

Lawful Permanent Resident Status vs. Citizenship

Being a lawful permanent resident (LPR), or "green card" holder, means that you have the right to live and work in the United States, but you are not a citizen. There are several major differences between LPR status and citizenship.

• LPRs can petition for a select few relatives to join them in the United States (usually parents, spouses and minor children). Citizens may petition for many more relatives, and their closest (also usually parents, spouses and minor children) may be classified as ‘immediate’ relatives, as opposed to ‘preference’ relatives. This is important because ‘preference’ visa categories have a quota, and thus a waiting period, while immediate relatives may come as soon as their petitions are approved.

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 Posted on April 01, 2015 in Family Law

In June 2014, Illinois welcomed the expansion of its Marriage and Dissolution of Marriage Act by incorporating provisions that offer same-sex marriage benefits to same-sex couples. This has not only opened the door to same-sex couples but also to help transgendered citizens to be able to enter into marriage regardless of whether they transitioned before or after entering into marriage. The movement in favor of creating a space for transgendered individuals has moved throughout the country and Illinois has been no exception.

The Importance of the New Shift Toward Gender Marker Changes

In the last two years, Illinois has provided members of the transgender community the legal ability to change their gender markers on various legal documents, including their Illinois birth certificates, as well as their Illinois government IDs. Part of what makes the change in law so integral to the rights of the transgender population is that no longer will transgender people be required to go through genital surgery to be able to change the gender marker. This has been transformative to the transgender community as it provides those within the community the right to change their gender markers to the identities that they identify with more closely without having to go under the knife, especially since sexual reassignment surgery may not be an option or a desired outcome for many.

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 Posted on March 27, 2015 in Family Law

Illinois has a significant backlog of unpaid child support payments due to delinquent non-custodial parents avoiding their child support debt. In August of 2013, the state had almost $3 billion in unpaid child support debt, and was attempting to find ways to garnish payments from known delinquent parents. One of the programs that Illinois has established in the last few years has had great success: the wage garnishment program, which provided that employers of delinquent parents were required to garnish a certain percentage of the delinquent employee’s income to offset the payments due every month.

The Gaming Intercept Program

Illinois took the program one step further and created the Gaming Intercept program in 2013, a joint venture between the Illinois Gaming Board and Department of Healthcare and Family Services. The joint venture provided that the Illinois Gaming Board was able to intercept the jackpot winnings of noncustodial delinquent players and turn in the money to the Illinois Department of Healthcare and Family Services to pay back payments of child support.

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