Immigration Law in 2020, with Matthew Olsman
Have you heard that immigration law is changing in 2020? What about how the executive branch has made substantial changes? In this episode of I Know a Lawyer, I speak with Matthew Olsman of the Law Office of Matthew Olsman. Matt is an expert in immigration law and with his criminal law background, has a unique perspective into immigration and how it impacts several areas of the law. In this episode, we discuss:
Overview of applying for immigration benefits (01:03)
Options for people without "status" (03:30)
Process of an application (05:10)
Asylum and what is actually means (07:36)
Executive Branch's exertion of power over immigration law (13:34)
Post-criminal conviction relief (18:38)
Resources for attorneys (23:87)
Thank you to Matt Olsman for joining the show. I learned quite a bit about the continuous wave of change underway in immigration law currently. Contact Matt at (818) 308-4068 or email him at matt@olsmanlawfirm.com. Also check out his website at OlsmanLawFirm.com.
This podcast is brought to you by McKenna Brink Signorotti LLP and nothing in this episode or any episode of I Know a Lawyer is meant to be taken as legal advice. If you need legal advice, call an attorney, don't rely on podcasts.
Transcript
Ryan Lockhart (00:01):
Welcome to, I Know a Lawyer, everyone, as you know, I am Ryan Lockhart, your host. I Know a Lawyer is brought to you by McKenna Brink Signorotti, LLP, a boutique law firm in Walnut Creek, California. Check out our services at mckennabrink.com. If you are listening to this podcast on a podcasting app, go ahead and hit the subscribe button. So you won't miss any future episodes of, I know a lawyer, your support is always greatly appreciated today. I am joined by Matthew Olsman of the Law Office of Matthew J Olsman. Matthew is an immigration attorney and he's here today to provide us with some key updates in the immigration arena. Thank you for joining me today, Matt, how are you?
Matthew Olsman (00:39):
I'm great. Ryan. How about yourself
Ryan Lockhart (00:41):
Doing well doing well. We've got the election coming up soon and I know that immigration is an area that is changing, I would say rapidly, but I think it's even faster than that from what I'm hearing. So thank you for joining me today. No problem. Thanks for having me. Good. So let's just start off. Ulet's say somebody is looking to apply for immigration benefits. What's what's the process like? What's that overview look like?
Matthew Olsman (01:03):
So immigration benefits and immigration law generally is pretty complex. A lot of people feel like it's just filling out some forms and sending them off to the government. And while that's certainly the basics of the process, there's a lot more analysis and evaluation that goes into it. Depending on what status the person has currently various different immigration relief might be available to them. For instance, if you're already here on a green card, if you're a legal, permanent resident, you can apply to become a citizen. If you have no status here in the United States, you cross the border unlawfully or you weren't inspected, or you came on a visa and simply overstate while there's certainly less relief available to you, there still are pathways to get you either to become a permanent resident and in some cases the citizen. So the basic process is, is that you'd come talk to a lawyer like me, have them ask you some questions about your history, how you came here, family members here in the United States.
Matthew Olsman (02:02):
And then we talk about, you know, sort of what your goals are. I always try to focus on my client's goals cause you know, case by case they differ. So it really just sort of depends on the client, by client analysis to see how can I help this person what's the most likely way to achieve those goals. And then once we figure out what we want to do, we kind of go over the processes that we have to do, what forms need to be filed, what evidence we have to get and supportive those forms. And then, you know, if there's any issues that arise, how are we going to deal with those issues?
Ryan Lockhart (02:33):
So you're saying without status, is that when somebody is without status, does that just mean they're here? Like I know I'm going to say without status, but what I really mean is are they just, like you say, cross the border illegally or without permission or something like that?
Matthew Olsman (02:47):
Sure. Some people come what's called entry without inspection, which means they came in some way. They were never inspected by a border patrol officer or any immigration officer. And oftentimes you're it's they crossed over the border and nobody, you know they didn't go through a port of entry of any kind. But there are people here who are, are without status in the sense that they're out of status. And frankly, as you look at the statistics, there's many more people who come and they simply come on a visa, but overstate, for whatever reason, they don't want to go back to their home country or something comes up and they can't go back to their home country. So they were inspected, you know, they came in an airport or on a plane or even sometimes over the border and were allowed to enter but then never left.
Ryan Lockhart (03:30):
So if somebody doesn't have this status, what kind of options do they have?
Matthew Olsman (03:35):
So for people who have been, have entered the United States and they've been inspected and admitted, so they came on for instance, a student visa and they stayed for however many years, they did school and overstate. There are various types of, of applications you can apply for. But like I said, there are a lot more limited than somebody who is currently in status. One of the things that I, a lot of my clients do is they're married to a United States citizen. You know, they've been here sometimes 15, 20, 30 years. And they lived their life. They established their life and they eventually get married to a United States citizen. So assuming that person has proof that they actually were admitted into the country and allowed to come in and simply overstayed a visa, they can just apply for a green card through the United States, citizens, spouse.
Matthew Olsman (04:22):
But if you didn't come in with, you know, some sort of a visa or you weren't inspected and admitted, you can still apply for that green card, but it would require you to leave the country and process your green card application through a consulate in your home country or in some cases, even in another country. So a common way is based on a family relationship, it could be a spouse. That's a United States citizen. It could be a parent that's the United States citizen. And in certain cases, even a child who's in a United States citizen. So long as that child's over 21 can petition for a relative and that they can get a green card that way.
Ryan Lockhart (04:59):
So I'm assuming there might be different requirements depending on what the status or non status is. But if not, let me know what are the requirements, I guess, generally, to become a citizen.
Matthew Olsman (05:10):
So to become a citizen is a, is a, you have to be a permanent resident for five years. In most cases in certain cases, if you belong to the military or you got your green card through being a spouse of a United States citizen, and you still live with that person at the time you apply you can do it in three years instead of the five. But for citizenship, generally, the requirements are that you are a person of good moral character. So that is a very big word or big phrase that the government uses. But basically what it means is you can't have certain types of criminal convictions in your past. You have to keep up with your taxes. You can't do certain things that the government looks at as morally turpitude in this, or, you know, judge you for and presuming all of that's true.
Matthew Olsman (05:59):
There's about a 20 page application. You fill out, you file it. And then eventually you'll have an interview at the interview. In addition to showing that, you know, you're a person of good moral character that you've done all the things you're supposed to do. Another interesting thing is you're not as a permanent resident allowed to leave the country for more than six months at a time. If you leave for more than six months at a time, it could be grounds to take away your permanent residence. And it could be grounds to deny your citizenship. If you can't show that you intend, you've intended in the past five years on actually being here and being a permanent resident of the United States. So they look at all of that. They'll go over the form. And in addition, you have to take two tests. One is an English test, which asks you, it's pretty simple.
Matthew Olsman (06:42):
If they ask you a phrase in English and ask you to write it down, and then they give you a phrase in English, that's written down, you have to say it back to them. And then you have to take a civics test, which is 10 questions. There's a hundred total questions they can ask. They ask you 10 of them. You have to get six, right? And there's stuff that goes from history, American history to, you know, the forms of American governance. They'll ask questions like who's the current speaker of the house. You know, if the president and the vice president were to become incapacitated, who would become the president, things like that. And then assuming that they approve all of that, and then there's nothing else that would deny you citizenship. Usually they recommend you to be approved. And then in a couple of weeks, they'll send you a notice to go to an oath ceremony where you actually take the oath of allegiance to the United States,
Ryan Lockhart (07:28):
Kind of makes me wonder how many U S born and raised would be able to pass that 10 questions, civics test
Matthew Olsman (07:33):
Fewer than you think
Ryan Lockhart (07:36):
For sure. What about asylum? I've heard about asylum, quite frankly. I don't know that much about it. I mean, I understand what the term means, but I don't understand how it would work in this context of immigration.
Matthew Olsman (07:47):
Sure. So the asylum system, especially now has been sort of blown up in the Trump administration as far as the, the press coverage about it and sort of what people know. And honestly, seeing what I see and coming out of the press, it's a fairly misunderstood system asylum for people who just don't even understand the term is asking for protection here in the United States. The basics are, you're afraid to go home to your country for any number of reasons. There's, there's five generally referred to what are called protected grounds that people can apply for asylum, which means that you're afraid because you're going to be persecuted in your home country based on one of these reasons. It goes to your political opinion, your religion, your race, your nationality, or your membership in a particular social group. Now that's a super vague term that most people don't understand, but basically asylum law realizes that not everybody's going to fall in those first four categories, but there's good reason for people to be persecuted.
Matthew Olsman (08:52):
For instance, a lot of my clients are you know, they're not heterosexual, they're either homosexual, bisexual or whatever it may be. You know, there's, there's people who are afraid because in their countries, they're persecuted for who they choose to love. And so if you can show that you fall within, what's called a cognizable group, meaning something that society can sort of look at you and, and see that you're different. It doesn't have to be something physical characteristic about you, but that you can be separated from quote unquote, the rest of our normal society. And that you're going to be persecuted based on that. And that, that is significantly narrow enough that it's not just like anybody could be, you know, included in this group. You can use that as a protected ground to say to the judge or the immigration officer I'm going to be persecuted.
Matthew Olsman (09:40):
No, it doesn't fall because, you know, I don't believe in this religion, or I don't believe in this, this political theory but that I'm still going to be persecuted. So you have to show that you have a reasonable likelihood that you're going to be persecuted in the future. Meaning that if you were to go back, it's, it's reasonably likely somebody is going to persecute you for that reason. Generally it either has to be the government persecuting you or a group that the government cannot or will not control. And that's where you sort of get into the vagaries of, well, what's a group that the government can't or won't control is that, you know, a gang is that a rebel group is that, you know, just somebody who's not necessarily in the government, but favored by the government, whoever that may be. And if you can show all of those things and you can show that you can't just move somewhere else in your country and be safe, it's going to happen no matter what wherever you go in your country.
Matthew Olsman (10:33):
And there's a bunch of other sort of exemptions that they've carved out, but presuming you can show all of that. You can show that you deserve asylum. And asylum is a powerful form of relief because unlike trying to get a green card or even sometimes trying to get a visa, asylum is very forgiving because they understand that people do things all the time. Some they have to lie to get out of their countries and sometimes, and say that they want to come here because they want to be a student, but really they're escaping for their life or their family's lives. So if you can get asylum, you can be here indefinitely, and it puts you on a pathway to eventually after a year, assuming you stay in the country that year, you can actually apply to get a green card. And then once you get the green card, after five years, you can actually become a citizen of the United States. So it's a powerful and very deep area of law that because of the Trump administration and other political agencies that have made drastic changes to it, like you said, changes day by day. But it's really a powerful form of relief. Cause many people they're really afraid of going home. I mean, there's a reason that they picked up all of their stuff, their whole life left it all there and came to the country to restart their lives.
Ryan Lockhart (11:42):
So how has the Trump administration, have they made it more difficult for these asylum claims?
Matthew Olsman (11:52):
Basically what they have done is they've sort of disparaged the asylum seeker and try to, I think, change public opinion, to see them as all fakers in liars, that the people are either are, are predominantly what are called. They call economic migrants, people who are just coming here because they want sort of a better life for themselves. And even though that sort of, we think in the American dream, that's, you know, welcome to poor. What did he send me? Your, you know, everybody, the disheveled masses really, that's not a good cause for asylum. You, you need to be afraid of something, but oftentimes those are kind of mixed in. So what the Trump administration is trying to do is try to narrow the definition of who should be granted asylum to as narrow as possibly can be. And that sort of the ideal quote unquote asylum case where, you know, the police are after you or the government's after you or, and the reason they're after you is cause you don't like their political opinion and that you've actually been significantly harmed by these people.
Matthew Olsman (12:50):
You know, though it can be simple threats in certain cases, oftentimes judges and just practically immigration officers. They're not really going to take, unless you really can show harm. In the past, they're not going to believe that you're going to be harmed in the future. So in addition to just actually changing the rules, they're also just installing both in the immigration courts, as well as what's known as the board of immigration appeals, which are the appellate division of the immigration courts sort of, I won't go so far as to say anti-immigrant judges, but certainly not pro immigrant judges. And a lot of the decisions we've been seeing are, are, are really harsh and, and limiting the amount of people who are going to be able to claim asylum in the United States.
Ryan Lockhart (13:34):
Well, I guess this leads to me, cause I've heard from you and other immigration attorneys that there's just been so much upheaval from, you know, the executive branch on the immigration front. And I don't think a lot of people understand and I, I don't fully understand how the executive branch can exert so much power over the immigration system and policy and choice or in policies in place. So where does the legislature and the executive kind of like split the duties and responsibilities here in immigration?
Matthew Olsman (14:05):
So it's a great question. And you are not the only person who doesn't understand it. I didn't understand the power of the executive branch had until honestly a couple of years into immigration law. And I really started understanding sort of how the procedures work and how the law works. So, you know, like anything Congress passed laws that generally guide the immigration process and the Congress can pass laws even today, if they ever got their act together to do it, to really reform the immigration system. However, because say, it just historically the executive branch has always had a lot of discretion when it comes to allowing who they allow into and out of the United States or really into the United States. They, that Congress doesn't really micromanage the executive in a lot of ways. They give and defer power oftentimes to the attorney general, the department of justice to make a lot of these decisions now pre you know, 9-11 and the Bush administration, all of this fell to a group called ins the immigration nationality service, right?
Matthew Olsman (15:08):
That changed when after 9-11, they've established the department of Homeland security. So the department of Homeland security governs both the U S CIS, the United States citizenship and immigration service, which handles sort of the affirmative type benefits you're applying for. Like, we would say, if you're applying for a green card, you're applying for citizenship, that's all handled by this administrative agency, but DHS also runs ice, the immigration, customs enforcement and customs and border protection, the CBP who, you know, a lot of people now certainly know those acronyms much more than they did before. And those are sort of the enforcement branches of immigration. Now, traditionally USC CIS was a benefits agency. That meant their goal was simply to determine whether or not somebody applying was eligible for a benefit if they were, they granted, if they weren't, they denied it. Now there's been a lot more crossover in those areas.
Matthew Olsman (16:03):
And so now sort of the cops are talking to in many cases, you know, in criminal law, we guess we refer it to like talking to the judges and they're all sort of working together to both identify people who are, don't have status to enforce immigration laws against people who don't have status and doing so in, in my opinion, a pretty heartless way I've heard of, no, it hasn't happened in the Bay area. To my knowledge, I've heard of people getting detained at their interviews when they go and apply for something, they go through the, the, the process, they go to the interview, I shows up, picks them up, puts them in detention. So you just have this, this branch, which is again, all under the executive, all co sort of colluding together to really, to, to be a much stricter enforcement agency. And because there's so much deferred to the department of justice who sets the rules for immigration court, as well as the board of immigration appeals.
Matthew Olsman (17:00):
When you have someone like attorney general, Jeff sessions, or attorney general William Barr, who is very much trying to forward the Trump administration's goals, as far as they pertain to immigration they have so much power to set new, even precedent that it creates this sort of, this sort of Hill that you have to climb that you feel like you're just you, they can change whatever they want on a whim. For instance, attorney general bar can refer himself on administrative immigration appeals case and overrule the board of immigration appeals judges who made the decision so they can change things sort of on a whim without really any rationale besides I want to do it. And unless it's overturned by a circuit appeals court or the Supreme court, that's the law of the land.
Ryan Lockhart (17:51):
Not only is he the top cop, but he can be the top immigration judge if he wants to be
Matthew Olsman (17:55):
Exactly. And that's a huge problem because even though they're separate entities, the government prosecutors are prosecuting immigration cases are part of DHS. And when you have a very unified, in my opinion, anti-immigrant agenda all under the executive branch. They can all work together to really make it really difficult for an immigrant. And I think a lot of people think, you know, they see on TV, you know, you have to have a warrant signed by a judge to arrest people, all these things, the rules don't apply the same way to immigrants and to, I think the shame of this country in a lot of ways, we're slowly starting to take away a lot of the due process. That's accorded to immigrants, which to me, you know, that's what this country was founded on.
Ryan Lockhart (18:38):
Hmm. That's a lot to think about. And I know it's all up in the air now with an election coming up. So maybe there'll be some reform coming sooner than later we'll find out. So, Matt, I know you have a criminal law background and one area that you specialize in is helping immigrants who have prior criminal convictions. And I think that's pretty unique. And I would like for you to talk about that and how, how does that work and what kind of issues should we be? Should we be on the lookout for it?
Matthew Olsman (19:03):
Thanks, Ryan. Yeah, that is something that I really have had sort of prided myself on learning about. I started out, like you said, as a criminal defense attorney. And part of the reason I got involved in immigration and interested is I remember one of the first please, my boss had sent me to right out of law school. We're going through it, I'm going over the form. It was a DUI, it was sort of run of the mill case. But it gets to the part of the plea form where they say, if you're not a citizen, this could result in your deportation removal or exclusion from the United States. My client's eyes got very wide and was like, wait, what? I'm here on a student visa. So it was just an issue. I had no idea about frankly, my boss at the time, really.
Matthew Olsman (19:42):
I don't even if he knew he didn't really tell him to do anything as far as referring them to an immigration lawyer and while the DUI generally doesn't affect people as strongly, and that are immigrants, as far as making them removable, it can have really severe effects. And what I've learned through sort of, you know, actively diving into this, this area is that things that you and I think of as sort of petty or minor crimes, for instance, certain petty theft crimes, which I'm not saying that people should be just stealing stuff all the time, but in the grand scale of things, it's not murders. It's not rapes, it's not arson. It's not these really sort of crimes that we think is really terrible that can render people to portable, especially in the context of right now and the opioid epidemic and all of the the war on drugs.
Matthew Olsman (20:28):
So to speak controlled substance convictions are the death knell of the immigrant. I mean, it can rate basically make it so you can't get any kind of status. And you're definitely the portable, even if you've been a permanent resident for a long time. So what I kind of focus on because California has been on the forefront of a lot of these laws, realizing that things that we, that in California, we don't think of as serious crimes have really serious effects on people's immigration status. And the fact that for many, many years, criminal defense attorneys just weren't asking the right questions and weren't doing the right things as far as getting the right advice on how to do settle these plea deals. And so California allows, if you can show that you didn't understand your conviction was going to have an immigration consequence and you still took a plea, you can actually get that conviction vacated, meaning that it just essentially goes away.
Matthew Olsman (21:22):
And the case is reopened against you. Those charges are still pending against you, but the conviction that made it so that you couldn't come here, you couldn't stay here or that you would get deported or you couldn't apply for any kind of immigration benefits can go away. So it's a really powerful tool. And I come across a lot of immigrant clients who pay, you know, you're married to a United States citizen, you came in on a visa, everything looks good. You know, the citizen could sponsor you all of that. And then all of a sudden, Oh, you got convicted of possession of whatever. It was, whatever kind of drug it was, you know, 30 years ago, you can't get the green card. In fact, they can deport you right now. In some cases you could be even subject to mandatory detention, which means that ice comes into contact with you.
Matthew Olsman (22:05):
You're going into ice detention. And that can be a very difficult place to get out of certainly a really hard place to fight. So, you know, I will go through a person's immigration history, as well as their criminal history, see sort of fitting the square peg in the round hole. I like to call it and kind of figure out which of these convictions are going to be a problem for your immigration status. And if the facts warrant it, I can actually go to the criminal court and say, listen, judge, this person didn't understand that they were going to become deportable. And a lot of people would rather take jail time or prison time if it meant that they could avoid you know, getting, getting deported, because this is where they've lived, their whole lives. So, you know, I sort of work I like to call it holistically, really trying to figure out what's best for the clients.
Matthew Olsman (22:52):
And I think anybody who comes across anybody, who's not a citizen of the United States and has questions about immigration. It's, it's better to talk to somebody who knows what they're talking about and can really help guide you through the process and avoid the pitfalls that come along with applying for benefits, because a lot of people send the forms in and then it comes to the interview. And like I said, sometimes they even get detained at the interviews. And you don't know, you need a lawyer until it's way too late. And so you really want somebody trying to help. And then if a criminal conviction pops up, you really want somebody, an immigration lawyer who understands how that's going to affect you and what options you have in order to see if you can get that conviction vacated, or in certain other instances, you can get it changed or modified somehow to help your immigration status.
Ryan Lockhart (23:37):
Well, that's a great illustration of the crossover from immigration law and criminal law. And I know of other types of lawyers, especially like the family law arena or employment law, where immigration also is a crossover, you know, events. So what kind of resources could those kinds of attorneys look for to try to make sure that they're not falling into some pitfalls potentially
Matthew Olsman (23:59):
You know, I hate to self promote or find somebody like me to talk to. I think it's always better to talk to a lawyer. Who's again, like you said, cause the law is changing so much. I mean, even beyond the rule changes with the executive branch, the circuit courts rule differently on how things can affect an immigrant. And so there are a lot of circuit splits as far as the decisions where in the ninth circuit, a fairly friendly circuit to immigrants, something that would make you deportable wouldn't make you or would make you deportable in another circuit. So really finding somebody who likes to keep up on the law is, is a really good idea, but absent that you don't know an immigration lawyer, you're not sure of one, you can't find one that you built that you can trust. I'd always recommend CEB.
Matthew Olsman (24:45):
They have a host of publications about various things. They have some really good resources specifically for the criminal effects of, or the criminal, the immigration effects of criminal convictions. But you can learn even through ALA the American immigration lawyers association through some of their publications, sort of a basic, well, I don't know what the rules are here, but I know I gotta talk to somebody who does. And that's where I would really, I would, I would focus people to really learn about the various immigration agencies through ALA is I think the best organization, it's the national organization that most immigration lawyers belong to. And they have a ton of really good resources for immigration lawyers, as well as non immigration lawyers to just sort of issue spot. The American immigration council is another organization that does a lot of good practice advisories sort of on these crossover issues. But ultimately, you know, you really want to talk to somebody who knows what's going on now because things that change day by day, month by month, they're there, the record, the advisories, the publications are not always going to reflect that.
Ryan Lockhart (25:53):
Well, there you go. You other attorneys out there, you come across one of these immigration issues or you spot the issue, give Matt a call. So Matt, where can they reach you? At
Matthew Olsman (26:01):
The best way to reach me is either by phone or email, I get free consultations, which is pretty rare for immigration lawyers. I sort of believe that, you know, every immigrant deserves to at least have a chance to talk to somebody if they can't afford it, you know, say lobby. But you can reach me at (818) 308-4068. Or you can email matt@olsmanlawfirm.com. And I'm happy to sit up and, you know, set half an hour, an hour aside, whatever you or your client needs to really talk about the situation. And like I said, I mean, every case is so different. Everything you heard on this podcast could be different tomorrow. So I don't need any of this to be, you know, specific legal advice for specific person, but talking to a lawyer who keeps up on the law, who's willing to work with your client and really take a holistic approach to your clients or to, you know, Mike, anybody listening that is interested in immigration benefits that, that want to listen to your story.
Matthew Olsman (27:00):
That's the best way to do it, whether it's me or somebody else really talk to somebody who follows the law and can do it and give you a really holistic analysis of what your situation is. Cause I've had a lot of people who come in and I, I fix stuff for the lawyers who didn't do it. Right. You know, there's just a lot of people who don't and it's a hard area. I don't even necessarily begrudge those lawyers. Cause like I said, they change all the time. But you really want to figure out the best way to do it and for you and your situation.
Ryan Lockhart (27:27):
Thank you very much, Matt. That was an awesome show. So I appreciate you coming on and giving us an update on what's going on in the immigration area. Like you said, this might change next week or next month and we're by the end of the year, who knows?
Matthew Olsman (27:39)
Yeah, no, it's it's I can almost guarantee and I don't make a lot of guarantees, but I can almost guarantee something will change even over yet. So yeah. Yeah. And we're, you know, up for this big election and the only last thing I'd like to, and I'm sure most of the lawyers on here are probably gonna do it anyway, but if you can please vote and stay involved in the immigration issues. I see, I realized that citizens tend to feel like this isn't something that affects them unless there's somebody in their life that's really been affected by it. This affects the economy. This affects just, just society in general, your ability to eat all the diverse foods you like to eat meat, all the diverse people you like to meet, listen to music, all of these things, it really comes from the background, the backbone of America, which is that we're all immigrants. We all come from other places and sort of bring the best of what we can here. So, you know, just be aware that in addition to all of the many other things that are on the ballot, whether you, whether you are Republican or Democrat, I really just, I urge you to vote for a more sensible immigration system than what the Trump administration is proposing and what we're dealing with now, because it is it's untenable. It will break. And I don't want that to happen to America.
Ryan Lockhart (28:56):
Well, that was Matt Olsman. Thank you very much for joining me. All his contact info will be in the show notes so you can find it, Reach out to him. If you have any of those questions,
Ryan Lockhart (29:05):
I'm Ryan Lockhart. This is, I Know a Lawyer. Take care. Bye bye.