NYC Immigration Law Firm

In vacating his prior acceptance two and a half years ago of the plea of an criminal defendant/alien, a New York judge has ruled that a judge’s warning that a criminal defendant could be subject to deportation if he pleaded guilty to a misdemeanor did not lessen the ineffectiveness of his lawyer under a new standard expressed by the U.S. Supreme Court in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

The case is People v. Garcia, 4050-06.  Garcia, a lawful permanent resident of the United States since 2005 and a native of the Dominican Republic, was arrested in 2006 after a police officer allegedly spotted him handing over a Ziploc bag containing cocaine to two men.  At a plea hearing, Garcia’s criminal defense attorney claimed that he had discussed with Garcia and an attorney he had hired to advise on immigration matters, that there may be immigration consequences following a guilty plea.

The judge, prior to accepting Garcia’s plea, advised Garcia that he could possibly face deportation if he pleaded guilty.  With this warning in mind, Garcia still pleaded guilty to a class A misdemeanor offense of possession of a controlled substance in the seventh degree.

Two years after his guilty plea, Garcia was apprehended and arrested by the Department of Homeland Security as he was returning from a trip abroad.  He was placed in removal proceedings.  He also filed a motion to vacate his criminal conviction on the basis that he had received ineffective assistance of counsel by his former criminal defense attorney, who Garcia alleged did not know immigration law and simply advised him to seek the assistance of an immigration specialist.  Based upon this advice, Garcia went to an immigration paralegal (note: NOT an immigration lawyer), who told him that a guilty plea would not have any affect on his permanent residency. Garcia claimed that had he known the immigration consequences of his guilty plea, he would have opted to go to a trial instead.

Garcia relied on the Supreme Court’s case in Padilla, where the Court held that an attorney’s failure to inform a client of the deportation consequences of a guilty plea amounted to ineffective assistance of counsel.

The prosecutors in Garcia’s case argued that the Padilla did not apply in Garcia’s case, because the Supreme Court had indicated that Padilla did not apply retroactively to a motion to vacate a judgment or a conviction by a criminal defendant.

The judge admitted that different courts have applied Padilla in different ways, but concluded that Padilla did not create any new “laws”; rather, according to the judge, Padilla applied a well-established constitutional principle (right to effective counsel) to a new circumstance, so it is considered to be an application of an ‘old’ rule, which is always retroactive.

The judge then went on to decide whether Garcia proved, as required under the law, that his former criminal defense lawyer’s deficient performance caused him any legal prejudice.  The judge concluded that because it was easy to determine whether Garcia could have suffered immigration consequences of a guilty plea, simply telling his client to go to an immigration specialist, without doing anything more, was ineffective assistance of counsel on the part of the defense attorney within the meaning of Padilla.

Accordingly, the judge vacated Garcia’s guilty plea from two and a half years ago, and scheduled a trial.

Source:
Noeleen G. Walder
New York Law Journal
September 1, 2010

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Padilla motions by Thaker Berowitz LLP
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Recently, our firm enjoyed a great victory for a client, a United States citizen, whose visa petition for the benefit of his wife had been denied by the U.S. Citizenship and Immigration Service (“USCIS”) pursuant to the Adam Walsh Act Child Protection and Safety Act of 2006 (“AWA”).

Click Here to read the redacted version of the decision issued by the Board of Immigration Appeals.  To preserve confidentiality, all identifying information has been redacted from the decision.

As a background, on July 27, 2006, President George W. Bush signed into law the AWA, which amended §§101(a), 204(a)(1)(A) and 204(a)(1)(B)(I) of the Immigration and Nationality Act (“INA”) to prohibit United States citizen or permanent resident petitioners convicted of a “specified offense against a minor” from filing a relative petition for any beneficiary, unless the Secretary of the Department of Homeland Security (“DHS”) determines in his or her “sole and unreviewable discretion” that there is no risk of harm to the beneficiary or derivative beneficiary.

Our client had been convicted of sexual abuse in the first degree in the State of New York.  After he served his time, he met and fell in love with a woman from another country, whom he later married.  He then sought to petition for her by filing a visa petition, so that she could apply to become a lawful permanent resident of the United States.  He filed his visa petition ten days before the AWA was enacted.  Thus, at the time he filed his visa petition, AWA did not exist to prevent him from petitioning for his wife.

Initially, the USCIS approved our client’s visa petition for his wife.  However, it later revoked the approval, claiming that he did not demonstrate that he posed no risk to his wife, as the AWA required him to show.  In its decision the USCIS mentioned the correct standard of proof our client was required to meet — “preponderance of the evidence” standard — but then denied the visa petition on the basis that he failed to demonstrate “beyond a reasonable doubt” that he posed no risk to his wife.  Our client, through his former lawyer, unsuccessfully appealed the denial.

He then came to our office and we explored the possibility of filing a case in a federal court, challenging the constitutionality of the “sole and unrewiewable” authority the AWA grants the Attorney General in deciding whether a U.S. citizen convicted of a specified offense against a minor poses a threat to his beneficiary spouse.  Before going to federal court, however, we decided to give the USCIS one more opportunity to corrects its mistake, so we filed a motion to reopen the denial of the visa petition.  We challenged the USCIS’ arbitrary decision in denying the visa petition, since it was unclear under which standard it actually analyzed the case.

After our detailed legal analysis of the case, an opposition by the Department of Homeland Security, and our reply to the opposition, the Board of Immigration Appeals agreed with us and sent the case back to the USCIS to clarify its position on which standard it used in our client’s case!  Of course, on a remand, it is entirely possible that after it clarifies which standard of proof it used, the USCIS will still proceed to deny the visa petition on the basis that our client did not demonstrate that he posed no risk to his spouse.

The point is, our client and his family were ready to give up when they realized how difficult it would be to win such a case, especially when the ultimate decision would be “unreviewable” by an appellate body.  However, winning this motion to reopen opens a new door for our client and he may prevail on his visa petition or can eventually take his case to federal court.  Needless to say, our client and his family were very happy!

As we always tell our clients, “you never know what will happen unless you try!”

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Announcements, Uncategorized by Thaker Berowitz LLP
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The State Department has issued its September 2010 Visa Bulletin.  Check to see whether your priority date is current for any petition your relative or employer may have filed for you!

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Visa Bulletins by Thaker Berowitz LLP
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Dear Readers of our blog:

You may or may not be aware that our former clients are gracious enough to take their time to post their review of our firm and our legal services on our Google Maps listing.  As you can see from the reviews, our clients have been incredibly satisfied with the quality of our services.

However, lately, we have been noticing that individuals claiming to have worked with us in the past have posted incredibly negative reviews of our firm.  Specifically, individuals posting reviews under the fictitious names “Ashe,” “Rena,” “Noah,” and “Muffin,” have gone out of their way to make us look incompetent.  It appears that competitor law firms or their marketing companies have posted the fake reviews to discredit the genuine ones.  These reviews have only appeared since May of 2010, and in less than three months, four incredibly negative and hurtful reviews have been plastered on our Google Maps listing.  The nature of these negative reviews are such that the person posting them is attempting to have a conversation by addressing the positive reviews and asking our potential clients not to believe them.  Unfortunately, due to the nature of the Internet, the availability of the reviews for potential clients is a blessing and a curse.

We, the partners of Thaker Berowitz, would like to address the reviews posted by individuals claiming to be “Ashe,” “Rena,” “Noah,” and “Muffin.”  Our clients are intelligent.  They can tell when something is real and when something is fake.  We are hopeful that our taking a stand to address these fake reviews will put aside any doubts anyone has about the integrity of our firm and our legal services.

REVIEW POSTED BY “MUFFIN” (May 2, 2010):

“I’ve decided to leave reviews for all the immigration lawyers that tried to help me but failed. I had to move to Texas because these lawyers put me in trouble. If you want to live in peace, do NOT go to this law firm. Thanks for nothing.‎”

This was the first negative review posted since our firm went into business in April 2007.  Of course, we were naturally concerned at first and wondered who this client could have been.  When we reviewed our client records, we could not find anyone who would have had to moved to Texas because we had “put [them] in trouble.”  Moreover, moving to Texas or to any other state wouldn’t have helped “Muffin” for immigration purposes, because immigration laws are federal laws and moving from one state to another does not resolve any immigration issues to a level where moving may be beneficial.  In fact, Circuit court laws are tougher in Texas.  Finally, we noticed that “Muffin” has also posted incredible negative reviews of other immigration lawyers.  We believe that this individual just would like to make immigration lawyers look bad because either he or she cannot be helped in any way and is frustrated, or this individual works for a marketing company and we are his or her client’s competitor.  Either way, the review by “Muffin” does not shed any light on what we did to him or her that was so bad, assuming he or she even came to us for help.

REVIEW POSTED BY “NOAH” (JUNE 4, 2010):

Almost one month after the review posted by “Muffin” appeared, “Noah” posted this review:

I was so impressed with the positive reviews here that I just had to meet this lawyer who apparently made miracles happen. Unfortunately, when I finally got my schedule together and managed to schedule an appointment, I was so shocked to find out how judgmental and unenthusiastic both Ruchi and Irwin were. They were quick to judge me as an illegal immigrant as soon as I sat down with them and started talking. I’ve been living in the US LEGALLY for the past 15 years, and I really didn’t need two talentless lawyers assuming that I was out of status. By the way, their office is very small. As soon as I found out that this Thaker & Berowitz doesn’t so much as a single personal assistant, secretary, or receptionist, I should’ve canceled my appointment. Everyone, here’s my advice from having met with countless immigration lawyers: When a lawyer judges you too quickly, you know you’re wasting time with him because a lawyer should never assume facts without actually finding out for himself what the facts are. That’s a sign of a very bad lawyer. These two lawyers (as there was no one else in their office or in their entire suite, which was smaller than my living room) sat there and wasted 20 minutes of my time simply asking questions and asked for 400 dollars. There are much higher quality lawyers who don’t even charge you half of that. Please DO NOT GO TO THAKER OR BEROWITZ. They are judgmental, misinforming, and TALENTLESS. I must say, they’re doing a very good job generating these rave reviews themselves. If you look closely, you can tell that all the positive reviews sound and look very similar, and after my meeting with them, I know for sure that no one could have possibly written to positively about two lawyers who are about to vacate their tiny office if they haven’t done so already.

First, we have never consulted with anyone named “Noah.”  If “Noah” is someone who actually consulted with us, we challenge “Noah” to provide his real name and not hide behind his fake review.  We keep an accurate record of every individual who comes into our office, and we can assure you that we have never had any consultation with anyone named “Noah.

“Noah” assumes that we make “miracles” happen.  We have never claimed to make “miracles” happen.  No lawyer can or should ever do that.  All we can do is represent our clients to the best of our abilities based upon the fact of the case and applicable law.  The ultimate decision is not up to us.  However, our track record is consistently positive.  This comes from years of experience, knowledge of the immigration system, and our ability to work very closely with our clients in preparing their cases.

This brings us to the issue “Noah” found disturbing — we do not have a secretary, assistant, or a paralegal.  Frankly, we prefer to talk with our clients directly.  Our clients actually appreciate the fact that they get to speak with a lawyer right away who can answer their questions.  Isn’t that want anyone who hires a lawyer wants?  To talk to the lawyer and not to the secretary or an assistant or a paralegal?  The fact that we can handle all legal and administrative tasks for our clients goes to show our efficiency and willingness to work on any tasks at hand, whether it be a complicated legal matter or a simple administrative task, like answering the phones when our clients call!  Most people WANT this type of a service, so we are simply providing it.  No one (besides “Noah”) has ever complained that this was a negative factor.  In fact, most people hire us because of the level of personal service we provide.

Had “Noah” actually come to our office, he would have known that we never have charged a $400 consultation fee.  This is simply an inaccurate fact.  Anyone who has ever been to our office knows that we do not charge $400 for a consultation fee.

Finally, “Noah” decided to throw in a hurtful statement about us vacating our office.  Well, rest assured, we are not going anywhere!  We are a successful law firm and we are blessed with the best clients any immigration lawyers could ever ask for.  Our clients realize our value and we have no reason to vacate our office.

So “Noah,” we challenge you to reveal your true identity behind your fake review.  Or are you just a marketing company doing your thing for your client in the hopes of preventing people from coming to our firm?  Well, you will not succeed in doing that, because our clients are intelligent and can judge for themselves whether to believe the fake review or countless legitimate ones written by our former clients themselves and which review we can easily verify for anyone having any doubt about its legitimacy.

REVIEW POSTED BY “RENA” (August 2, 2010):

Two months to the date of “Noah’s” review, someone claiming to be “Rena” posted this:

The lawyers at this firm are NOT interested in making miracles happen and bringing happiness to downtrodden immigrants out there. My consultation with them (I had an appointment with Ruchi Thaker, but Irwin Berowitz sat and “contributed” anyway) was a COMPLETE WASTE OF TIME, and they spent 30 minutes asking me pointless questions and charged me 400 DOLLARS for providing me with NO useful information whatsoever. Fellow immigrants, trust me when I say I’ve consulted with my fair share of immigration lawyers, and I’ve seen better – much better. I was initially so impressed with the reviews here that I couldn’t resist making an appointment with them, but after my first visit I’m convinced none of these good reviews are true, or someone’s manipulating them. DON’T WASTE YOUR TIME. SAVE YOUR MONEY AND FIND ANOTHER FIRM.‎

First, we have never consulted with anyone named “Rena.”  If “Rena” is someone who actually consulted with us, we challenge “Rena” to provide her real name and not hide behind her fake review.  We keep an accurate record of every individual who comes into our office, and we can assure you that we have never had any consultation with anyone named “Rena.”

“Rena’s” review also contains the same inaccuracies as “Noah’s” review, and we believe the same individual posted these two fake reviews.  We do not charge $400 for a consultation.  This shows that “Rena” has never been to our office for consultation.  Because we know that, we do not need to address her assumption about the quality of our consultation.  “Rena” claims someone is manipulating the reviews posted by our former clients.  We assure you that is not the case.  It is “Rena” and “Noah” or whoever is hiding behind the fake reviews is manipulating the reviews by posting negative reviews that we cannot control.  “Rena” advises people to go to another lawyer.  This is a sign of a marketing company tactic to dissuade people from coming to our firm and hoping that they will move on to another firm, such as the client firm whose marketing company is posting the negative reviews.

REVIEW POSTED BY “ASHE” (August 11, 2010):

As of right now, this is the final fake review posted on our Google Maps listing:

This is probably one of the funniest set of reviews I’ve ever read for a firm. What kind of firm posts a review of themselves and rate themselves a “5″ and find it completely acceptable to defend themselves against perfectly justified criticisms of their legal practice? I’ve never met the lawyers at this firm, but I know I won’t be booking my next consultation with them. If you have the time to review yourself on Google, I suggest you learn a thing or two about manipulating reviews. It’s not “Rena” who’s fabricating bad reviews, it’s the lawyers at this firm giving themselves positive reviews with multiple gmail accounts, probably. This is a fucking joke. I personally know people who’ve gone to Thaker & Berowitz. They’re not gonna waste their time to post bad reviews here, but they made it loud and clear that all the positive reviews you see here are a load of bullshit. You guys get like, one consultation booked per month, if that?

It is clear that this individual knows how to post fake reviews – by creating multiple email accounts and posting reviews are random individuals.  Also, this is an individual who is clearly tracking our reviews to see when positive reviews have been posted.  Then, he is attempting to discredit the reviews by having a “conversation” via his fake review.  Who does that in real life?  Who has that much interest in OUR firm to be sitting there waiting to write fake reviews?  Only a competitor or his or her marketing company!!  If this person was a former client, he would have spent his time actually reviewing our firm and not simply being technical about posting reviews.  In fact, “Ashe” admits he has never been to our office.  What kind of a person takes time to review a firm or service he has never experienced?  The derogatory language used by “Ashe” shows that he is unhappy that we have taken the matters into our own hands by posting a response to the fake reviews, so that anyone reading the reviews can see what is real and what isn’t.

All the fake reviews posted by individuals who appear to work for a marketing company for other immigration lawyers have actually helped us!  People reading the reviews are calling our office for consultations because they can see that the reviews are not consistent with other reviews and after meeting with us, they are certain that we are the lawyers for them!  So in a strange way, the fake reviews are a blessing, even though they contain ridiculous inaccuracies.

We challenge “Ashe,” “Rena,” “Noah,” and “Muffin,” to come out of the shadows and show their real names instead of hiding behind lies and to provide proof that anything stated in their “reviews” is accurate. No one posting a real review should be afraid to show who they are. We know each of our former client who has posted a review here has done so willingly and we can provide a direct reference.  We hope that you will see for yourself the quality of our services and representation. If you have any questions about any of our genuine client reviews, please give us a call and WE WILL PROVIDE YOU WITH CLIENT REFERENCES FOR VERIFICATION OF THE LEGITIMACY OF THE REVIEWS POSTED BY OUR FORMER CLIENTS. In order to combat the lies posted by the fake reviews, our clients were willing to share their experiences with the world, so that the reader is not misguided by someone who is obviously threatened by our success. As long as the individual (or a firm or their marketing company) feels compelled to make us look bad, we WILL defend our integrity as lawyers.

Thank you!

Sincerely,

Ruchi Thaker and Irwin Berowitz

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Uncategorized by Thaker Berowitz LLP
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U.S. District Court Judge Susan Bolton granted a preliminary injunction today that prevents police in Arizona from questioning people about their immigration status.

She also blocked provisions of the law making it a crime to fail to apply for or carry alien registration papers or “for an unauthorized alien to solicit, apply for, or perform work,” and a provision “authorizing the warrantless arrest of a person” if there is reason to believe that person might be subject to deportation.

CNN’s legal analyst Jeffrey Toobin explains what the ruling means:

To date, seven lawsuits have been filed against the controversial Arizona immigration law, challenging its constitutionality and alleging it will lead to racial profiling.

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Arizona immigration law by Thaker Berowitz LLP
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Today, U.S. Immigration and Customs Enforcement (“USICE”) announced the launch of the Online Detainee Locator System (“ODLS”).  ODLS provides users with information on the location of the detention facility where a particular individual is being held, a phone number to the facility and contact information for the ICE Enforcement and Removal Operations office in the region where the facility is located.

A brochure explaining how to use the ODLS is also available on the website in the following languages: English, Spanish, French, Mandarin, Vietnamese, Portuguese, Russian, Arabic and Somali.

ODLS users will be able to locate detained aliens by two different search methods. First, users can search by entering an individual’s alien registration number, also known as their “A” number, and their country of birth. Users can also search by entering an individual’s first name, last name, country of birth and date of birth.

Click here to access the ODLS.

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Immigration Detention by Thaker Berowitz LLP
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The State Department has issued its August 2010 Visa Bulletin.  Check to see whether your priority date is current for any petition your relative or employer may have filed for you!

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Visa Bulletins by Thaker Berowitz LLP
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On July 6, 2010, the Department of Justice filed a lawsuit against the state of Arizona, seeking to overturn its tough new immigration law, which is set to go into effect in a few weeks.

Arizona’s law requires immigrants to carry their alien registration documents at all times and allows police to question the residency status of people in the course of enforcing another law.

It also targets businesses that hire illegal immigrant laborers or knowingly transport them.

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Arizona immigration law by Thaker Berowitz LLP
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U.S. Citizenship and Immigration Services (“USCIS”) announced today that a new version of  the Application to Replace Permanent Resident Card (Form I-90), is available on the USCIS website.  The new version of the form is dated 8/10/09 and contains more user-friendly features.

USCIS will accept previous versions of Form I-90 for 45 days, until July 28, 2010.  After July 28, 2010, USCIS will reject all previous versions of Form I-90 and will return incorrect applications with a note instructing applicants to refile using the correct version of the form.

Form I-90 can be mailed to one of the designated USCIS lockbox facilities, or you may now file it online using the Internet.

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Forms by Thaker Berowitz LLP
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Today, the Supreme Court issued its decision in Carachuri-Rosendo v. Holder (No. 09-60), which presented the issue of whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.

The Supreme Court announced today that a second or subsequent simple possession offenses are not aggravated felonies under 8 U.S.C. §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction.

© 2010, Thaker Berowitz LLP. All rights reserved.

Filed under: Supreme Court Litigation by Thaker Berowitz LLP
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