Thursday, December 16, 2010

What You Post on Facebook Matters

Facebook has become an interesting tool for people who engage in background investigations. People with Facebook accounts are invited to share such information as their relationship status, their birth dates and other personal information. Plus, a person's Facebook page often has links to that person's "Friends."

U.S. immigration authorities, for example, have been know to research social networking sites, like Facebook, to see how an applicant describes his or her relationship status, or with whom that person associates. If an alien is applying for a visa based on a marriage to a U.S. citizen, for example, but has his or her relationship status listed as "single," this may prompt immigration authorities to suspect fraud.

Posts on Facebook can also sometimes inadvertently reveal where a person has been hanging out, what he or she has been doing with their time, and with whom they associate. Such information can be used by immigration authorities to compare with other answers to questionnaires to find inconsistencies.

Another red flag could be where a Facebook user does not have his or her spouse listed as a "friend."

The availability of such information to government investigators has prompted many immigration lawyers to ask whether a client has a social networking account, and request that the client become a "friend," so that the lawyer can monitor the same information.

While social networking sites can be a fun way to stay in contact with friends, family and loved ones, users should be aware that posts which are public can be seen by anyone, including government officials. Social networking users should keep this in mind when posting status updates.

Friday, December 10, 2010

Arlington Circuit Court Grants a Writ to Allow Alien Detainee to Testify

The Arlington Circuit Court issued a writ of habeas corpus ad testificandum, instructing U.S. Immigration and Customs Enforcement to transfer the custody of an immigration detainee to the Arlington County Sheriff's Department, temporarily, to allow the alien to testify in an upcoming hearing in state court.

The alien is challenging a sentence entered years ago in a petit larceny conviction. The sentence was for twelve months, with ten months suspended. However, this makes the conviction one for an aggravated felony under U.S. immigration law, and thus renders the alien ineligible for cancellation of removal. The alien argues that his criminal defense lawyer did not discuss the immigration consequences of his plea bargain. If true, then this would be a clear case of ineffective assistance of counsel, as the Supreme Court recently defined it in Padilla v. Kentucky.

There are many different types of writs of habeas corpus. The one that most people are familiar with is a writ where a prisoner seeks to be released, claiming his imprisonment is in violation of law. Usually, this is sought when the prisoner believes that his conviction was the result of a constitutional violation.

A habeas corpus ad testificandum is a writ addressed to the government entity holding the person, to have that person appear before another court in order to give testimony. It is related to a writ of habeas corpus ad prosequendum, which is a writ used when a state court wants to prosecute a prisoner in federal prison.

Where the legal action is pending in a state court, a writ of habeas corpus ad testificandum or habeas corpus ad prosequendum must be issued by that state court. Federal courts have no power to supervise state court proceedings.

This ruling is significant because it is often difficult to get ICE to permit an immigration detainee to appear for a state court proceeding. That is, some aliens have experienced the problem where the alien is arrested for a state criminal action, ICE places a detainer on them, the alien makes bail, only to find himself in ICE custody. Once in ICE custody, the alien often misses his state court hearing. Having the state court issue a habeas corpus writ may permit the alien to attend the state court proceedings, while preserving ICE's custody over the alien for immigration purposes.