Magdalena Cuprys, Immigration Attorney in Florida

About Magdalena Cuprys

Magdalena Cuprys is the principal lawyer of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries.


Contact


Miami/Coral Gables Office: 4011 W Flagler Street, Suite 406
Coral Gables, FL 33134.
Clewiston Office: 518 E Sugarland Hwy, Clewiston, FL 33440.

Phone 305-924-1133

Website: http://www.servingimmigrants.com


News Reports about the work of Magdalena Cuprys


Magdalena Cuprys’ work on behalf of her clients has been referred to in several news articles. She represented a client in a particular egregious case where detainees were not given the necessary medical attention, which appeared several times in the media.


See news article “Broward Transitional Center: Immigrants With No Criminal History Get Lengthy Stays At Little-Known Jail” https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html

See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4

See also http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/

https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility


News article “Broward Transitional Center: Immigrants With No Criminal History Get Lengthy Stays At Little-Known Jail”, published at https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html

See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4


See also the news reports published at http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/

and https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility


Ms. Cuprys recently prevailed in a hotly contested asylum cases against the U.S. Department of Homeland Security, see press release at https://www.einpresswire.com/article/452266255/immigration-attorney-magdalena-cuprys-prevails-against-u-s-department-of-homeland-security-in-disputed-asylum-claim?r=pavx1xxw1Nt_HxqPVv

and

https://www.prlog.org/12714538-in-disputed-asylum-claim-florida-immigration-attorney-magdalena-cuprys-prevails-against-dhs.html

Find more news about Magdalena Cuprys

Recent Articles about Magdalena Cuprys

Website of Magdalena Cuprys at http://tuabogadadice.com/

Article 1: IMMIGRATION CONSEQUENCES OF CRIMINAL PROCEEDINGS

Article 1: IMMIGRATION CONSEQUENCES OF CRIMINAL PROCEEDINGS


In this comment, Magdalena Cuprys, Esq. addresses and explains the problem of immigration consequences that may unintentionally result from a plea of guilty or nolo contendere


In the first article of her series of Instructional Articles, Florida Attorney Magdalena Cuprys comments on the issue of immigration consequences resulting from criminal pleas of guilty or nolo contendere, and how to challenge such guilty pleas subsequently in court.


Attorney Cuprys recently prevailed in a case in the Circuit Court of the Eleventh Judicial Circuit of Florida where she moved to vacate a judgment and sentence. She bases her comments on that case.


The facts of the case are as follows: The Defendant A.P.B., a Cuban citizen and resident of the U.S. since 2002, plead guilty in trial court to marihuana-related offenses, including selling and possession with intent. Apparently A.P.B.’s home was burglarized, and when police came to investigate, they found he was growing 26 marijuana plants inside the house. He had no prior criminal history. At the time, A.P.B. was represented by a different attorney who apparently did not inform the Defendant of any adverse immigration consequences that would result if he plead guilty. In fact, it seems that the prior attorney informed A.P.B. that there would be no adverse immigration consequences because he was a U.S. resident. It seems the attorney also failed to inform A.P.B. that a diversion program (“Drug Court”) would be available to him after which any charges would be dismissed if successfully completed. A.P.B. plead guilty in 2009 and was promptly arrested by officers of the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), and put into removal (deportation) proceedings.


Based on these facts, Attorney Magdalena Cuprys filed a Motion to vacate A.P.B.’s guilty plea and sentence, and alleging “ineffective assistance of counsel” by the prior attorney. According to A.P.B.’s affidavit, he relied on his attorney’s advice that there would be no adverse immigration consequences.


The key cases in this regard, under these particular circumstances, are Padilla v. Kentucky, 130 S.Ct. 1473, 559 U.S. 356 (2010) (as for federal law), and Julien v. State, 917 So. 2d 213 (Fla. 4 DCA 2005) (as for Florida state law).


According to the Supreme Court’s opinion in Padilla, a criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea. The case extended the Supreme Court's prior decisions on criminal defendants' Sixth Amendment right to counsel to immigration consequences. See Wikipedia, https://en.wikipedia.org/wiki/Padilla_v._Kentucky.


The duties of Counsel recognized in Padilla are broad. After Padilla, if the law is unambiguous, attorneys must advise their criminal clients that deportation will result from a conviction. Also, if the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. 

Finally, attorneys must give their clients some advice about deportation: counsel cannot remain silent about immigration. Id.


Let’s look at couple of the key sections of the Padilla Opinion. The Court summarized the facts and holding as follows:


“Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug distribution charges in Kentucky. In postconviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction. 


Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18.”


The Court recognized that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration law changes have expanded the class of deportable offenses and limited judges’ ability to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. 

Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. See the Court’s summary of the case.


The Supreme Court then concluded that:


“It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the ‘mercies of incompetent counsel.’ Richardson,397 U.S., at 771, 90 S.Ct. 1441. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. Taking as true the basis for his motion for postconviction relief, we have little difficulty 1487*1487 concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. …”


This “ineffective assistance of counsel” argument can then be further supported with state law. In this case (Florida), Attorney Cuprys supplemented the federal law argument with Julien v. State. In the rather brief opinion of Julien v. State, the Court ruled that an attorney provided ineffective assistance of counsel for failing to inform his client of the option to apply for the pre-trial diversion program. That case is similar to the current set of facts as to A.P.B. in that the Drug Court program (just like a pre-trial diversion program) offers an alternative to pleading guilty.


The basic facts are that Maxime Julien was arrested for shoplifting some shoes from Burdines Department Store. A first-time offender, pled guilty to grand theft and was placed on probation. As a result of his plea, the United States commenced removal proceedings to rescind his permanent residence status and remove him to Haiti. Julien filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. In his amended motion for postconviction relief, Julien alleged that his attorney was ineffective in failing to inform him of his option to apply for the Pretrial Intervention Program (PTI), and in failing to investigate his claim that he should have been charged with misdemeanor petit theft instead of felony grand theft because the value of the stolen merchandise was under $300. 


The Court notes that “Florida Rule of Criminal Procedure 3.171(c)(2)(B) places a responsibility upon defense counsel to advise a defendant of all plea offers and "all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant." (Emphasis supplied). As the criminal law expert explained, the PTI program is a "possible alternative" available to a first-time offender. For a first-time offender facing immigration consequences, the program is critical. 


A defendant derives a "tremendous" benefit by having his charge dismissed after completing the program. Considering these factors, we conclude that defense counsel's failure to inform appellant of this possible alternative constituted a deficient performance. See Jones v. State, 832 So.2d 207 (Fla. 1st DCA 2002) (holding that movant for post-conviction relief, who alleged that his counsel was ineffective in allowing him to plead to felony driving while license is suspended or revoked (DWLSR) without advising him of statutory avenue for leniency available to certain DWLSR defendants, made a facially sufficient allegation warranting further post-conviction proceedings); Cottle v. State, 733 So.2d 963, 967 (Fla.1999)(noting that Florida courts, along with other state and federal courts, recognize ineffective assistance claims based on counsel's failure to convey a plea).”


Based on these arguments presented by Attorney Cuprys, the Court granted the Motion on August 31, 2018, ordering that the Defendant’s plea, conviction, judgment and sentence be vacated.
 

The underlying case is State of Florida vs. A.P.B., Case No. F08-0035564 (August 31, 2018).

Article 2: BUSINESS VISAS

Article 2: BUSINESS VISAS


In this comment, Magdalena Cuprys, Esq. addresses and explains the business visa issues and visa alternatives in the U.S.


In the second article of her series of Instructional Articles, Florida Attorney Magdalena Cuprys comments on business visas for employment and possible alternatives.


Preliminary Considerations


Many visa applicants assume that once they complete the lengthy and expensive visa process and detailed interviews both at the U.S. Embassy and upon arrival in the U.S., they have accomplished their American Dream. If only that could be true.


Once they recover from the whole fingerprinting and interviewing stress, there is more to come. Whether you are a professional or a student, American bureaucracy will keep you busy for at least the first two months upon your arrival. You will quickly learn that one simply cannot function without the magic nine digits, known as a social security number (SSN). The social security system was designed to track income and earnings so that people could collect payments at a later point based on how long and how much they contributed over time. 

However, since the government assigns a unique number to each individual, other institutions like to use it for their own purposes. Not having the SSN will make it impossible to open a bank account, as well as to receive a paycheck! Finding a local social security office should be your top priority, especially since you will have to wait for weeks before you get your number in the mail. However, once it arrives, all the barriers and frustration will disappear, and you will be all set to start your new American life.


ALTERNATIVES TO THE H-1B VISA


Because H-1B work visas are limited (currently only 65,000 per year, plus 20,000 for holders of advanced U.S. degrees), it is important to keep in mind that there are alternatives that can help you bring needed foreign workers to the United States. You might want to consider some of the other nonimmigrant visa categories available that are not subject to this limitation. 


Here are some of the choices:


B-1 in lieu of H-1B 


This visa allows employees of a foreign company to come to the United States to participate in a project or training program. Only for short-term assignments, this classification requires that the foreign national continue to be employed by the foreign company and return to the foreign company after the project in the United States has been completed. The visa holder cannot receive a salary or other remuneration from a U.S. source except for an expense allowance or reimbursement for incidental expenses.


Trainee visas: J-1 and H-3 


These visas allow foreign students and professionals to enter the United States for the purpose of training or developing their careers with a U.S.-based host organization for up to 18 months and 24 months of training, respectively.


Intracompany transferee: L-1 visa 


One of the most useful tools available for international companies, the L1 visa category applies to foreign workers who work for a company with a parent, subsidiary, branch, or affiliate in the United States. These workers come to the United States temporarily to perform services either in a managerial or executive capacity (L-1A), or one which entails specialized knowledge (L-1B) for a parent, branch, subsidiary, or affiliate of the same employer that employs the professional abroad. The employee must have been employed abroad for the affiliated company on a full-time basis for at least one continuous year within the last three-year period to qualify. L-1 visas are issued up to a maximum initial period of three years and can be extended for up to seven years for L-1A managers and five years for L-1B specialized knowledge personnel.


Treaty Trader/Investor: E-1/2 visas 


These visas are available to nationals of certain countries that have trader and/or investor treaties with the United States. The E-1 Treaty Trader visa allows you to establish and run a U.S. business that has substantial trade with your home country. The E-2 Treaty Investor visa allows you to establish and run a business with a “substantial investment”


E visas are issued initially for two years and can be extended almost without limit.


Individuals of Extraordinary Ability: O-1 visa 


The O-1 visa category is reserved for individuals of “extraordinary ability” in the sciences, arts, education, business, or athletics. To qualify as an individual of extraordinary ability, applicants must demonstrate that they possess “a level of expertise indicating that the person is one of a small percentage who has risen to the top of a field of endeavor.” Even though it sounds like only Nobel-prize winners can qualify, the truth is that the USCIS has dropped the standard, and the O category has become a useful alternative category. 

An initial O-1 petition can be filed for up to a three-year maximum employment period. Subsequent extensions may be for no more than one year at a time. There is no limit to the number of extensions possible.


J-1 VISAS FOR CULTURAL EXCHANGE 


Under the Mutual Educational and Cultural Exchange Act of 1961, the U.S. Department of State’s Summer Work/Travel program provides “foreign postsecondary students an opportunity to become directly involved in the daily life of the people of the United States through travel and temporary work for a period of up to four months during their summer vacation.” Foreign students participating in the program are authorized to work anywhere in the United States. Typically, most students work in nonskilled service positions at businesses such as resorts, hotels, restaurants, and amusement parks. 

Hiring a foreign student through the Summer Work/Travel program has some distinct advantages.


EMPLOYMENT-AUTHORIZED CANDIDATES 


All the immigration-related matters are coordinated by organizations designated by the U.S. Department of State (sponsors) to administer exchange-visitor programs.


The immigration process and the costs associated with hiring foreign students intimidate many businesses. More often than not, it is the foreign student who initiates the process with a sponsor. It is also the student who pays the sponsors the fee to obtain the required documents to procure a J-1 visa for entry to the U.S.


CANDIDATES PROFICIENT IN ENGLISH 


All prospective exchange visitor participants must possess sufficient proficiency in the English language to participate in their programs. (22 CFR §62.10(a)(2))


QUALIFIED CANDIDATES 


All prospective exchange-visitor participants must be “bona fide postsecondary students actively pursuing degrees or full-time courses of study at accredited educational institutions, or as that status is defined by the foreign national’s home country educational system.” (22 CFR §62.32(b)(2))


Given this educational requirement, all program exchange participants will have completed a secondary-school education or its equivalent. Employers can be assured that candidates will have a certain level of education.


CANDIDATES SELECTED AND QUALIFIED BY YOUR BUSINESS 


No prearranged employment before the foreign student enters the United States is required. Employers can make a hiring decision after the foreign student has arrived in the United States. Businesses will have the benefit of interviewing the candidate before extending an offer of employment. This will assure that the employment relationship will meet the needs of both the employer and the employee.


CULTURAL EXCHANGE 


A foreign student could contribute wonderful cultural influences to a business. Likewise, the opportunity that an employer gives a foreign student to gain an insight into American business and culture is an experience of a lifetime.


Think beyond the traditional sources of seasonal employees. Participating in the Summer Work/Travel program may be just the thing a business needs to turn its next busy season into a financially and culturally rewarding experience.


The article will be published on the Blog of Ms. Cuprys.

Article 3: EMPLOYMENT-BASED GREEN CARD

Article 3: EMPLOYMENT-BASED GREEN CARD


In this comment, Magdalena Cuprys, Esq. addresses and explains the employment-based Green Card through the so-called PERM process


In the third article of her series of Instructional Articles, Florida Attorney Magdalena Cuprys comments on how to obtain a Green Card (“permanent residence”) through employment in the U.S. This is a highly complicated process, which many exceptions and special rules. Thus, this article can only provide a general explanation of the process. Specific issues should be discussed with a qualified attorney based on the facts and circumstances of a specific case.


WHAT IS “Program Electronic Review Management process” (PERM)?


For most people seeking permanent residency (Green Card) in the USA through employment, PERM labor certification through the U.S. Department of Labor is the first step in the process. In a nutshell, PERM is a process whereby an employer who is interested in hiring a foreign worker, places job advertisements to test the U.S. labor market. If no interested or qualified U.S. worker responds, the U.S. Department of Labor certifies that result. With that, the employer can petition a Green Card for the foreign employee.


This article is based in large part on the “OFLC Frequently Asked Questions and Answers” on the U.S. Department of Labor, Employment & Training Administration’s Website: https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm. 


On March 28, 2005, the new Labor Certification for the Permanent Employment of Aliens in the United States (PERM) became effective. Under this system, labor certification are based on the following standards:


* whether or not there are sufficient United States workers who are able, willing, qualified, and available;

* whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and

* whether the employer has met the procedural requirement of the regulations. 


Nevertheless, there have been some significant changes in the PERM system compared to prior procedures:


FILING


Employers may submit the Application for Permanent Employment Certification (ETA 9089) electronically. The employer can access the Department of Labor Website to register and establish an account that will allow the employer to electronically fill out and submit Form ETA 9089. Unlike the former system, employers file applications directly with the U.S. Department of Labor (not with a State Workforce Agency (SWA)). Although an employer has the option of filing an application by mail, the Department of Labor recommends that employers file electronically. Not only is it faster, it ensures that the employer has provided all required information because an electronic application cannot be submitted if the required fields are not completed. Supporting documents are no longer submitted with the application. However, the employer must provide the required supporting documentation if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it. 


The employer is required to retain all supporting documentation for five years from the date of filing the Form ETA 9089.


RECRUITMENT 


PERM requires the employer to conduct recruitment (job advertising) prior to filing. The types of advertising depend on the type of position. Recruitment provisions are divided into “professional” and “nonprofessional” occupations; additional recruitment steps are required for professional occupations. A list of professional occupations is published in Appendix A to the preamble of the final PERM regulations. Professional occupations are those for which a bachelor’s degree or higher is a customary requirement.


Recruitment under PERM also requires advertisements in the Sunday edition of a relevant newspaper. An acceptable newspaper is one that the employer is able to document that will be the most likely to bring responses from able, willing, qualified, and available U.S. workers.


In addition to the required recruitment steps, the employer must place a job order with the SWA serving the area of intended employment. Placement of job orders with a SWA must be in accordance with each SWA’s rules and regulations.


PERM was implemented to improve the operations of the labor certification process. Nevertheless, the essential requirements of the process have remained the same:


* The foreign worker must be hired as a full-time employee. 

* The job must be a bona fide position available to U.S. workers.

* The job requirements must represent those customarily required for the occupation in the United States and may not be tailored to the foreign worker’s qualifications (such as with foreign language requirements).

* The employer must pay at least the prevailing wage for the occupation in the area of intended employment.


Does a PERM Labor Certification mean a quicker Green Card for employees?


Not really. One might think that PERM expedites the entire “Green Card” process. That is not necessarily so. The PERM system went into effect on March 28, 2005, and has in fact expedited the Labor Certification process itself. However, beyond the Labor Certification, there are two more steps involved in becoming a United States permanent resident: (1) filing the I-140, Immigrant Petition for Alien Worker and (2) filing the I-485, Application to Adjust Status. It is with the I-485 that the delays are occurring, especially for applicants from certain countries with many immigration applicants such as Mexico and India.


Once the Department of Labor has approved the PERM Labor Certification, it means the Department of Labor found that there are not enough able, willing, and qualified U.S. workers available to perform the alien’s job. The next step is to file an I-140 with the Immigration Service (USCIS), which is done by the employer of the alien. The I-140 approval means the Immigration Service has found that the alien is in fact qualified for the position certified in the labor certification and approves their employment in this capacity.


The final step, filing an I-485 application to adjust status to that of a “permanent resident,” usually takes the longest. For some nationalities the wait time can be many years. This is due to the fact that there are more individuals (especially those born in India, Mexico, the Philippines, and China) applying for immigrant visas than there are immigrant visas available. As an “immigrant visa” must be immediately available to adjust status, an I-485 application cannot be filed until the “priority date” is earlier than the date listed on the Department of State’s monthly Visa Bulletin. When one files a PERM labor certification, one receives a “priority date” (the filing date). The priority date, the country in which one was born, and the employment-based category (determined by the requirements of the job) determine when one can file an I-485.


To see who is currently eligible to file an I-485, the Department of State issues a monthly Visa Bulletin with a list of current priority dates. This can be found at the following link: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html


For example, as of October 2018, an individual born in India and classified in the third preference employment-based category, who filed the PERM Labor Certification before October 1, 2009, is now eligible to file the I-485, Application to Adjust Status, and thus complete the Green Card process.


The complete article will be published on the Blog of Ms. Cuprys.

More News about Magdalena Cuprys

Immigration Attorney Magdalena Cuprys succeeds in obtaining bond for client evicted from housing

Immigration Attorney Magdalena Cuprys succeeds in obtaining bond for client evicted from public housing as part of an eviction campaign in Pasco County


Former public housing resident was accused of improperly receiving government benefits, but Immigration Court granted bond and release from custody


Miami, FL (September 2018) The law firm of Cuprys and Associates announced today that immigration Lawyer Magdalena Cuprys succeeded in obtaining bond for a client, Ms. C.A., a Mexican citizen.


C.A. was accused of improperly receiving public assistance payments and subsidized housing benefits in Pasco County, Florida, based on a fraudulent Social Security card that she had purchased for $100. She was taken into custody after an investigation at a subsidized housing project where 30 undocumented families and about 60 U.S. born children were evicted. 


According to news reports, some of the residents claimed that Housing Authority officials told them that they could live there regardless of their legal status in the U.S. as long as they had U.S. citizen children.


Ms. Cuprys commented that “it is unfortunate that all those families were evicted and had to find a place to stay elsewhere with their children. It appears that many of them sincerely believed that they were allowed to use public housing facilities. Thankfully the Court granted bond to C.A. so that she could return home to be with her family and especially her children.”


The underlying case is “In the Matter of: A., C.” (Executive Office for Immigration Review, Immigration Court, Florida).


About Magdalena Cuprys


Magdalena Cuprys received her Juris Doctor from the University of Washington School of Law. Before law school, she completed two bachelor’s degrees, one in Political Science and one in Latin American Studies, at the University of Chicago. (AB Degrees Political Science & Latin American Studies from the University of Chicago).

Magdalena Cuprys is the principal attorney of Serving Immigrants (Cuprys and Associates), a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. 


Ms. Cuprys’ website is http://www.servingimmigrants.com

She is a member of the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169

Her professional LinkedIn profile is at https://www.linkedin.com/in/magdalena-cuprys-61619b4/

Immigration Attorney Magdalena Cuprys obtains bond for client

Immigration Attorney Magdalena Cuprys obtains bond for client accused of domestic violence but where facts are in dispute


South African citizen was accused of domestic violence, but he claims that he was in fact the victim; Immigration Court granted bond and release from custody


Miami, FL (September 2018) The law firm of Cuprys and Associates announced today that immigration Lawyer Magdalena Cuprys obtained a bond and release for client Mr. C.W.M., a citizen of South Africa. C.W.M. arrived in the U.S. in 2015 and got married in 2017.


C.W.M. is now in removal (deportation) proceedings after a domestic violence incident in April 2018 when he was arrested. The facts are in dispute. His wife claims that C.W.M. acted violently and she called police. C.W.M. claims that he was the victim of manipulation and violence. C.W.M. has an asylum petition pending, and has lived peacefully in his community since 2015.


Attorney Magdalena Cuprys notes that “this is an unfortunate case, as is every case of domestic discord. Here, the facts are contradictory as to who mistreated whom. Thus, the Immigration Court did the right thing by granting bond and releasing my client from custody so that he can get his life back on track.”


The underlying case is “In the Matter of: C.W.M. (Executive Office for Immigration Review, Immigration Court, Florida)."


About Magdalena Cuprys


Magdalena Cuprys received her Juris Doctor from the University of Washington School of Law. Before law school, she completed two bachelor’s degrees, one in Political Science and one in Latin American Studies, at the University of Chicago. (AB Degrees Political Science & Latin American Studies from the University of Chicago).


Magdalena Cuprys is the principal attorney of Serving Immigrants (Cuprys and Associates), a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. 


Ms. Cuprys’ website is http://www.servingimmigrants.com

She is a member of the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169

Her professional LinkedIn profile is at https://www.linkedin.com/in/magdalena-cuprys-61619b4/

Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm.

Attorney Magdalena Cuprys wins withholding of removal

Colombian entered the U.S. as stowaway.

The law firm of Cuprys and Associates announced today that immigration Lawyer Magdalena Cuprys won a “withholding of removal” (client will not be deported) in Immigration Court after a convoluted legal struggle.


Mr. C.M. is a 25-year-old Colombian citizen who entered the U.S. as a stowaway, and later filed an application for Asylum. All of C.M.’s applications for relief were denied by an immigration judge in August 2016. C.M. appealed to the Board of Immigration Appeals (BIA), which remanded the case to the Immigration Court to clarify and reconsider its prior findings.


The Immigration Court found that C.M. had a credible fear of persecution if he were returned (deported) to Colombia. At the new hearing in Immigration Court, C.M. testified that three of his brothers were killed by a guerilla group, as well as two of his cousins. He himself was abducted and threatened.


Based on that testimony, the Immigration Judge denied C.M.’s asylum request, but granted withholding of deportation. As the Court noted, for a grant of withholding of removal, he must establish that his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. C.M., who is black, testified that he may be persecuted in Colombia based on his race. The U.S. Department of Homeland Security did not present any evidence to the contrary. The Immigration Court thus granted the relief that C.M.’s deportation will be withheld.


Ms. Cuprys expressed her satisfaction when receiving the court decision. “C.M. and his family have suffered greatly. Several young family members were killed, and C.M. himself was abducted but luckily was able to escape. We are happy that C.M. can remain safely in the U.S. for the moment.”


The underlying case is “In the Matter of C… M…, #089-228-877 (Immigration Court, Krome Service Processing Center).


About Magdalena Cuprys


Magdalena Cuprys received her Juris Doctor from the University of Washington School of Law. Before law school, she completed two bachelor’s degrees, one in Political Science and one in Latin American Studies, at the University of Chicago. (AB Degrees Political Science & Latin American Studies from the University of Chicago).


Magdalena Cuprys is the principal attorney of Serving Immigrants (Cuprys and Associates), a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. 


Ms. Cuprys’ website is http://www.servingimmigrants.com

She is a member of the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169

Her professional LinkedIn profile is at https://www.linkedin.com/in/magdalena-cuprys-61619b4/

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Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm.

Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm.

Magdalena Cuprys gets Client’s criminal conviction vacated

Young immigrant from Honduras had pled guilty to attempted robbery.

The law firm of Cuprys and Associates announced today that immigration Lawyer Magdalena Cuprys successfully got the criminal conviction of a young client vacated and set aside, thus giving him a chance of staying in the U.S. instead of being deported.


Ms. Cuprys explained that the client, H.C., is only 21 years old and originally from Honduras. He came to the U.S. at age 8, and at the time of the events held a U.S. work permit under the “deferred action status for childhood arrivals” (DACA). According to the records, he attempted a strongarm robbery and petit theft in 2015 when he was 19 years old, and was arrested as a result. H.C. had allegedly tried to steal someone’s bag.


While represented by another attorney, H.C. plead guilty and the Circuit Court (Eleventh Judicial Circuit, Miami-Dade County) thus found H.C. guilty and ordered 2 years’ probation.

As a consequence of the guilty plea, H.C. ended up in deportation proceedings and was picked up by officers of the U.S. Immigration and Customs Enforcement (ICE). While the deportation proceeding was pending, Attorney Magdalena Cuprys filed a Motion in the Circuit Court to vacate H.C.’s judgment and sentence, based on Padilla v. Kentucky, 130 S.Ct. 1473 (2010) and Julien v. State, 917 So.2d 213 (Fla 4 DCA 2005). 


Ms. Cuprys argued that the prior attorneys did not take all necessary action to protect H.C. In particular, H.C. did not know that the guilty plea would subject him to deportation back to Honduras. Also, according to Ms. Cuprys’ filings, the bag that H.C. allegedly tried to steal was in fact his.


The Circuit Court of the Eleventh Judicial Circuit (Miami-Dade County) now granted the motion that Ms. Cuprys had filed. After the Court granted Ms. Cuprys’ Motion to Vacate, the State of Florida announced that it would “nolle pros” the charge - the finding of guilt be vacated and set aside.


Note: “Nolle prosequi is a Latin phrase meaning “will no longer prosecute.” It is equivalent to a dismissal of charges.


Ms. Cuprys stated she is pleased with the decision. “H.C. came to the U.S. as a child as the result of child trafficking and has lived here ever since. If he were returned to Honduras, a country unknown to him, he will be subject to gang violence and torture. The Court’s decision gives this young man a chance to seek an immigration bond and stay in the United States of America.”


The underlying case is #F15020585 (Circuit Court 11t5h Judicial Circuit, August 16, 2018).


About Magdalena Cuprys


Magdalena Cuprys received her Juris Doctor from the University of Washington School of Law. Before law school, she completed two bachelor’s degrees, one in Political Science and one in Latin American Studies, at the University of Chicago. (AB Degrees Political Science & Latin American Studies from the University of Chicago).


Magdalena Cuprys is the principal attorney of Serving Immigrants (Cuprys and Associates), a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. 


Ms. Cuprys’ website is http://www.servingimmigrants.com. She is a member of the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169

Her professional LinkedIn profile is at https://www.linkedin.com/in/magdalena-cuprys-61619b4/

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More information on this particular case is available by clicking on FIND OUT MORE.

Noted Florida Immigration Attorney Magdalena Cuprys prevails in appeal against US DHS.

Noted Florida Immigration prevails in appeal against US DHS

Board of Immigration Appeals (BIA) addressed the issue of “legitimate” and “illegitimate” children

MIAMI, FLORIDA, UNITED STATES, July 29, 2018 /EINPresswire.com/ -- The law firm of Cuprys and Associates announced today that immigration Lawyer Magdalena Cuprys successfully appealed a denial of an immigrant visa (“Green Card”). On appeal, the Board of Immigration Appeals addressed the issue of “legitimate” and “illegitimate” children, and whether siblings of such children can be sponsored for U.S. immigration.


The client, Ms. N.B. from Honduras, was denied an immigrant visa by the Director of the USCIS California Service Center (“Director”) in February 2015. Her application was based on her being the sibling of a U.S. citizen (her sibling sponsored her application). The Director found that she did not have a bona fide parent-child relationship with their common father because she was an “illegitimate” child.


In its decision, the Board of Immigration Appeals noted that Honduras had eliminated all legal distinctions between legitimate and illegitimate children, making all children legitimate if born after December 1, 1957. See Matter of Sanchez, 16 I&N Dec. 671 (BIA 1979). See https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2687.pdf. Thus, both N.B. and her sibling, both of whom were born after 1957, are legitimate. The Board therefore remands to the Director to continue processing the immigrant visa petition for N.B.


Ms. Cuprys stated she is pleased with the decision. “Not only is this the right decision by the Board, it also helps to further eliminate any discrimination against children previously considered ‘illegitimate.’ It is truly unfair to discriminate against children based on whether they were born in wedlock or not, and whether their parents officially recognized them or not.”


Magdalena Cuprys received her Juris Doctor from the University of Washington School of Law. Before law school, she completed two bachelor’s degrees, one in Political Science and one in Latin American Studies, at the University of Chicago. (AB Degrees Political Science & Latin American Studies from the University of Chicago).


Magdalena Cuprys is the principal attorney of Serving Immigrants (Cuprys and Associates), a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Ms. Cuprys’ website is http://servingimmigrants.com/ 


She is a member of the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169. Her professional LinkedIn profile is at https://www.linkedin.com/in/magdalena-cuprys-61619b4/ 

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The Board of Immigration Appeals (BIA) addressed the issue of “legitimate” and “illegitimate” children and related immigration sponsorship issues. 

Pereira v. Sessions affects immigration beneficiaries

Based on Supreme Court Case Pereira v. Sessions, affected persons should seek legal advice

Miami, FL (June 2018) – The United States Supreme Court announced the decision in Pereira v Sessions regarding the stop-time rule on June 21, 2018. In simple terms, the “stop-time rule” defines when continuous residence or continuous physical presence of a non-citizen ends. See INA § 240A(d). According to INA § 240A(d), continuous residence ends when either the non-citizen commits a criminal offense, or is served with a “Notice to Appear” (“NTA”) placing him/her in removal (deportation) proceedings. See INA § 240A(d)(1)(A)-(B).  In this important decision, the Supreme Court pondered whether the stop-time rule is triggered when the government serves a non-citizen with a document that is labeled “Notice to Appear” but fails to specify either the time or place of the removal proceedings.


Pereira v. Sessions is about Wescley Fonseca Pereira, a Brazilian citizen, who overstayed his visa in the United States. The visa expired on December 21, 2000. In May 2006, Pereira was served with a Notice to Appear by the U.S. Department of Homeland Security (DHS). While the notice ordered Pereira to appear before an immigration judge, the problem with the order was that no specific time or place regarding the hearing was on the Notice. To further complicate matters, the immigration court mailed Pereira a notice that scheduled his hearing for October 31, 2007, but they failed to mail the notice to his designated post office box. Therefore Pereira never received the Notice. After Pereira failed to show up in court, the court ordered Pereira to be removed (deported).

The United States Supreme Court now decided in an 8-1 decision that no, if a non-citizen is not informed of when and where to appear for removal proceedings, this does not trigger the stop-time rule. 


Based on this Supreme Court case, Immigration Attorney Magdalena Cuprys recommends that affected persons seek legal advice. “While we believe the Supreme Court made the correct decision and they delivered a common sense ruling of the law, the issue I want to stress is that if you have a Notice to Appear and it does not have the date and location of the hearing, you may want to speak with an attorney ASAP.” Ms. Cuprys adds that “you need to see if you qualify for termination or may be eligible for relief for which you were not previously eligible.”


The Supreme Court opinion is at https://www.supremecourt.gov/opinions/17pdf/17-459_1o13.pdf. -- Ms. Magdalena Cuprys is the principal attorney of Serving Immigrants, a full-service immigration law firm with over a decade of experience. See www.servingimmigrants.com. Ms. Cuprys received her Juris Doctor from the University of Washington School of Law in 2002 and has a blog where she writes about important immigration issues. You can find her blog at http://magdalenacuprysblog.blogspot.com/

Attorney Magdalena Cuprys starts blog on immigration

The new blog of Magdalena Ewa Cuprys will report on immigration law and how it is applied

Miami, FL July 8, 2018 – Magdalena Cuprys of Cuprys and Associates law firm announced today her new legal blog http://magdalenacuprysblog.blogspot.com/ which will focus primarily on visa and immigration matters, and how they are changing.


“With all the recent news and misinformation regarding immigration, I felt that I could help explain the truths behind the real issues at hand” said Magdalena Cuprys. “Here at Cuprys and Associates we have over a decade of experience working on immigration issues not only for individuals but for corporations as well,” Magdalena added. This experience can help people understand how visa and immigration matters are changing.


One of the important aspects generally not reported in the media is how immigration laws and regulations are applied. Only practitioners like Magdalena Cuprys have insight into these matters. For example, recently the immigration service USCIS seems to have begun to scrutinize in particular L-1B “specialized knowledge” petitions (these are visas for specialized employees who are transferred from abroad to the United States). Because it is difficult to prove exactly what “specialized knowledge” such an employee has in a written application, some attorneys are now using Expert Opinions as proof that the beneficiary in fact has such knowledge. Some practitioners have seen identical “Requests for Evidence” from USCIS about personal income when a U.S. citizen marries a foreign citizen, even when the proof of income that was initially submitted is clearly sufficient.

Magdalena is planning to inform the public about such developments that they may not read about in the newspaper or see on television.


Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services. The firm has a solid decade of experiences helping clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases to name just a few of the services they provide. While the majority of the clients the firm assist live within the state of Florida, Serving Immigrants represents individuals all over the United States and several foreign countries.


Magdalena received her Juris Doctor from the University of Washington School of Law in 2002. She also has two bachelor’s degrees, one in Political Science and one in Latin American Studies, from the University of Chicago. Ms. Cuprys is admitted to the practice of law in Florida and California. 


On a personal note, Ms. Cuprys speaks fluent Spanish and Polish, and is conversant in Russian and Italian. Ms. Cuprys herself is an immigrant, having left communist Poland when she was 8 years old. Ms. Cuprys spent a year living in a refugee camp in Latina, Italy and herself gone through the refugee and immigration process.


A press release about this matter is at https://www.einpresswire.com/shareable-preview/sBoZIEYlmJ4ccoqcNOklgw

Florida Immigration Lawyer Cuprys prevails against U.S. DHS

Florida Immigration Attorney Magdalena Cuprys prevails against U.S. DHS in disputed asylum claim

Immigration client had committed minor offenses in the past; Immigration attorney successfully argued that such minor offenses do not disqualify client from asylum in the U.S.


Immigration Lawyer Magdalena Cuprys of the law firm Cuprys and Associates announced today that the Board of Immigration Appeals ruled in her client’s favor in a disputed asylum case. Ms. Cuprys is a recognized immigration attorney based in Florida but represents clients not only in the United States but from outside of the U.S. as well. She filed an asylum case on behalf of her client H.C., a young man originally from Honduras. H.C. had been in the U.S. since the age of eight and feared persecution if he were to return to Honduras. Ms. Cuprys therefore presented his asylum request before an Immigration Judge.


The Immigration Judge agreed with Ms. Cuprys and her client H.C., and granted asylum in the Fall of 2017. However, the Department of Homeland Security (DHS) appealed the Immigration Judge’s decision. In particular, the Judge found that H.C. established “extraordinary circumstances” so that H.C. could receive asylum. Further, H.C. qualified as a refugee because of fear of persecution should he return to Honduras. On appeal, DHS argued that H.C.’s status under the Deferred Action for Childhood Arrivals (DACA) program does not identify as an “extraordinary circumstances.” DHS opposed the asylum grant.


In its recent appeals decision, the Board of Immigration Appeals agrees with Immigration Lawyer Magdalena Cuprys. Ms. Curprys stated “the order came back that the appeal was dismissed. As you can imagine, we are very pleased with the court’s decision.” She went on to add “as to asylum cases, they are being challenged more and more because of the changing government policies”.


In particular, the Board of Immigration Appeals found that H.C.’s minor run-ins with the law did not disqualify him. While some criminal offenses may be within the “ambit of a particularly serious crime,” they certainly were not serious crimes in this case, as Ms. Cuprys successfully argued. Thus, the Board dismisses the appeal by the Department of Homeland Security. H.C. can now complete the asylum procedures and remain in the U.S.


Magdalena Cuprys is the principal attorney of Serving Immigrants (Cuprys & Associates), a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Ms. Cuprys’ website is www.servingimmigrants.com. She is a member of the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169. Here professional LinkedIn profile is at https://www.linkedin.com/in/magdalena-cuprys-265534a/

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The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws. Its website is https://www.justice.gov/eoir/board-of-immigration-appeals


The U.S. Immigratiom Service USCIS maintains a website with additional information on Asylum at https://www.uscis.gov/humanitarian/refugees-asylum/asylum

Second Circuit addresses issues under Hague Child Abduction

... including whether separating a child from autism therapy is sufficient trigger exceptions ...

The case Ermini v. Vittori arose out of the marital dissolution of an Italian couple. The couple moved to the United States with their two sons and signed a one-year lease on a New York apartment in August 2011 after they were unable to secure adequate treatment in Italy for their autistic son Daniele. They enrolled Daniele in a Comprehensive Application of Behavior Analysis to Schooling (“CABAS”) program in Stony Point, New York. The program offered personalized instruction with an educational team, including a special educational teacher, an occupational therapist, a speech and language therapist, several classroom assistants, and a full-time one-on-one teaching assistant. 


Daniele’s mother, Viviana Vittori (Vittori), instituted divorce proceedings against Daniele’s father, Emiliano Ermini (Ermini) in April 2012 after numerous incidents of domestic abuse. Ermini had remained employed in Italy and traveled between Italy and the United States to visit his family, but petitioned the district court during the divorce proceedings and ensuing custody dispute to have both children returned to Italy pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. 


Specifically, Ermini petitioned the return of his two sons to Italy alleging that the two boys who were Italian citizens had been retained in the United States by Vittori, also an Italian citizen without Ermini’s consent. After a trial, the district court denied the petition without prejudice to renewal if Daniele was not able to continue with his current CABAS program. The Italian court system issued a final order requiring the return of the children to Italy. 


Daniele was diagnosed with autism on March 14, 2008, when he was approximately two years old. Both parents were committed to helping Daniele and took him to several doctors in Italy as well as abroad to Scotland for medical treatment. When their own resources were inadequate to pay for the treatments, they solicited donations through a website dedicated to Daniele. Dr. Antonucci was Daniele’s primary treating professional in Italy from December 2008 until May 2010. One of the treatments that Dr. Antonucci recommended was hyperbaric oxygen therapy, which was eventually administered in a hyperbaric chamber installed in the family home in Italy. Daniele’s support teacher in Italy was not familiar with any specific techniques for treating autistic children. On their own initiative, the parents attended training in Applied Behavioral Analysis (“ABA”) techniques at a private institution. With permission from Daniele’s school principal, Vittori spent two hours daily at Daniele’s school instructing the support teacher in ABA techniques. Both parents consulted another physician in Italy, Dr. Claudia Lerz, to develop an ABA treatment plan for Daniele. According to Vittori’s expert, Dr. Fiorile, ABA therapy is the most common treatment for children with autism in the United States and it can have an enormous impact on the life of an autistic child. 


Dr. Antonucci also endorsed ABA treatment. Vittori estimated that she personally provided 70-80% of Daniele’s thirty to forty weekly hours of ABA treatment while the family was living in Italy. Professional ABA treatment would have been preferable but very expensive. The Italian national health care system covered 90 minutes a week of psycho-motility therapy for the first year after Daniele’s autism diagnosis, with an extra 90 minutes of speech therapy during the second year. However, it did not cover other types of treatment or therapy. Both parents were dissatisfied with the options for Daniele’s schooling and therapy in Italy as they did not see results in his developmental progress. They began to look elsewhere for treatment options. In Spring 2010, the parents met Dr. Giuseppina Feingold in Italy. Dr. Feingold was an Italian-speaking pediatrician with a practice in Suffern, New York specializing in children with special needs. In August 2010, they traveled with both sons to Suffern so that Dr. Feingold could assess and begin treating Daniele. The family stayed with Vittori’s cousins at their Connecticut home. 


During that visit, they met other parents at Dr. Feingold’s clinic who shared provisions for special needs children at the local schools in Suffern. Both were impressed by the treatment options available in the United States. Around this time, they began to formulate a plan to relocate to the United States for two or three years, during which time they would decide if it would be feasible to make a permanent move to the United States. Meanwhile, Ermini met with Marcello Russodivito about potentially investing in Russodivito’s restaurant so that he could obtain a business visa for himself and derivative ones for his family in order to pursue treatment for Daniele in the United States. On September 2, 2011, the couple co-signed a one-year lease for a house near Russodivito’s restaurant. On September 15, 2011, Vittori and her two sons moved into that house. In September and November, the boys were enrolled in the local public school. In an email to Vittori, Ermini said that they should ship “books, clothing, any furniture we can’t sell, ornaments, dishes, sheets, blankets” in a cargo container from Italy to the United States. On September 13, 2011, he wrote to the U.S. Consulate in Rome to apply for visas for himself and his family for the purpose of “exploring the possibilities of entering into a business partnership with Mr. Marcello Russodivito who already owns an established Italian restaurant in the city of Suffern, NY. I also wish to request a B-2 visa for my wife and 2 children, who will accompany me in this trip to the United States.” Vittori traveled with the children to Italy to renew their visas in November 2011 and then returned to Suffern. Meanwhile Ermini traveled to Italy to finish settling the family’s affairs and did not return to the United States until December 2011. Ermini left again for Italy in early January 2012, following an altercation with Vittori. Although the children had not left the United States since November 2011, but Vittori left the country again in April 2012 to attend court proceedings in Italy. On December 1, 2012, Vittori and the two children moved to their current residence in Suffern. Ermini never relocated to the United States. 

Meanwhile, on September 20, 2012, Ermini had applied to the Italian court for an order directing Vittori to return to Italy with the children. With only Ermini in attendance, the court in Velletri ordered Vittori to return to Italy with the children and also ordered temporary measures including that the parents live separately but share parental authority; Vittori and the children would live in the family home; Ermini could visit 8–12 hours per week; and that Ermini would pay spousal and child support of 1,600 Euros per month. At the time of trial, Vittori had not complied with the Italian court’s order to return to Italy with the children, nor had there been visitation or other contact between Ermini and the children. Vittori appealed the Velletri court’s order and on April 5, 2013, the Court of Appeals in Rome vacated several provisions of the September 20, 2012, order and granted her exclusive custody of the children. The April 5, 2013 order also withdrew the Velletri Court’s order thereby revoking both the award of the family home to Ermini. However it did not preclude Ermini’s application to the district court because it was only a temporary order, which appeared to have been designed to conform with U.S. Family Court protective orders. 

Due to Daniele’s limited capacity for speech, he did not appear in court. Vittori testified that she took care of feeding Daniele, grooming him and ensuring that he was properly supervised. According to Vittori and Dr. Fiorile, Daniele had shown significant progress in his school environment in the United States. When he first began school in the United States, Daniele’s test results were far below average; at age six, he demonstrated the motor skills of a three-year old. Dr. Fiorile suggested that Daniele performed poorly on the testing because his Italian treatments had been deficient. According to Dr. Fiorile, the CABAS program offered the best ABA curriculum available to autistic children. Dr. Fiorile further testified that Daniele had one-to-one instruction throughout the day and had made exceptional progress. Dr. Fiorile explained that the high level of intervention in Daniele’s current classroom setting was the key to his success. Moreover, she believed that Daniele required this program in order to continue experiencing meaningful progress in cognition, language, social and emotional skills. While the United States has over 4,000 board certified ABA practitioners, Dr. Fiorile knew of fewer than twenty in Italy. Therefore, she concluded in her January 11, 2013 report that if Daniele were separated from his CABAS program, he “will most certainly fail to make the same level of progress and will, without doubt, demonstrate significant skill regression” and that it would be “extremely harmful” to return him to Italy at this time. The Court found that separating Daniele from CABAS would put him in an intolerable situation due to the grave risk of deterioration of his condition and denial of needed rehabilitation.

On the contrary, Ermini argued that Vittori and the children did not currently have legal immigration status in the United States, as they had overstayed their visas in April 2012. In October or November of 2012, Vittori applied for a visa for both herself and the children on the basis of the domestic abuse. Her application was currently pending.

The district court found that the then couple intended to move to the United States as a family for a period of two to three years, during which time medical and rehabilitative treatment would be pursued for Daniele, and also agreed that it was possible that the move would be made permanent at the end of the three-year period, circumstances permitting. Notwithstanding the plan to sell their house in Italy to fund the restaurant investment, there was no agreement to abandon the family’s ties to Italy.

The court ultimately concluded that the children’s habitual residence for Hague Convention purposes at the time of their retention in the United States was Italy; that the retention was in breach of Ermini’s custody rights under the law of Italy; and that Ermini was exercising those rights at the time of the children’s retention in the United States.

The burden then shifted to Vittori to assert affirmative defenses against the return of the children to Italy. The court accepted Vittori’s argument that return to Italy posed a “grave risk” of harm to Daniele, pursuant to Hague Convention, Article 13(b), which precludes repatriation of a child where there “is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”, and ruled in Vittori’s favor. 


The district court denied Ermini’s petition for return to Italy as to both children without prejudice to renewal if Daniel is no longer able to participate in the CABAS program. Ermini appealed. 


The United States Court of Appeals for the Second Circuit affirmed the district court’s denial and amended the judgment to deny the petition with prejudice. 


The key issue here is whether the psychological and physical harms of separating a child from autism therapy were sufficiently grave to allow a displaced child to remain in the country where they receive the therapy.

The Court reviewed de novo the district court’s interpretation of Hague Convention. 


“The Hague Convention is a pact among nation-states to protect children in limited, though important, circumstances. It establishes uniform standards, on one side, for ensuring the swift return of children wrongfully removed or retained from their home states, and, on the other, for barring return to a home state when doing so would create a grave risk of harm to the children or violate their fundamental human rights and freedoms. See Hague Convention, arts. 13 & 20.”


“The Convention was adopted in 1980 ‘to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.’ Hague Convention, pmbl., 51 Fed.Reg. at 10498. The Convention is not designed to adjudicate custody claims, but only to determine the merits of claims of wrongful removal and abduction. See id., art. 19 (‘A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.’)”


“Under the Convention, removal or retention of a child is deemed ‘wrongful’ when:


[1] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;

and

[2] at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Hague Convention, art. 3.”

“Wrongful removal or retention, however, does not end the matter. If a parent establishes that the removal or retention was wrongful, the child is to be returned unless the defendant establishes one of four defenses. See Blondin v. Dubois (Blondin II), 189 F.3d 240, 245 (2d Cir. 1999); see also 42 U.S.C. § 11601(a)(4). These defenses, or as they are also called, “exceptions,” are to be are to be construed narrowly. See 42 U.S.C. § 11601(a)(4).”


“Two of the four exceptions are to be established by clear and convincing evidence. See id. § 11603(e)(2)(A). The first applies if ‘there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’ Hague Convention, art. 13(b). The second governs when the return of the child ‘would not be permitted by the fundamental principles ... relating to the protection of human rights and fundamental freedoms.’ Id., art. 20. The remaining exceptions are to be established by a preponderance of the evidence. See 42 U.S.C. § 11603(e)(2)(B). The first exception subject to this lesser standard applies if judicial proceedings were not commenced within one year of the child’s abduction and the child is well-settled in the new environment. Hague Convention, art. 12. The second applies if the plaintiff not actually exercising custody rights at the time of the removal. Id., art. 13(a).”

“Finally, it should be noted that, since the Convention is a pact among nation-states, Congress has emphasized ‘the need for uniform international interpretation of the Convention.’ 42 U.S.C. § 11601(b)(3)(B). In light of this necessity, the Supreme Court has made clear that, in interpreting the Convention, we are to give the opinions of our sister signatories ‘considerable weight.’ Air France v. Saks, 470 U.S. 392, 404, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) (quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir.1978)).” (internal quotation marks omitted).


“The Hague Convention does not concern itself with situations where two parents commit to settle a family in a new location, and where in so migrating, neither parent breaches the other’s custody rights. Familial migration across borders is a facet of family life for many, and unless there is wrongful removal or retention of children from their habitual residence and breach of custody rights, the Hague Convention is neither concerned nor involved. […]”

While the Court accepts the district court’s findings that both wrongful retention and breach of custody rights had occurred here, thereby triggering the Convention’s applicability, it doubts as to the district court’s conclusions of law on these issues. 


“We have before stated that, in determining habitual residence, courts are to focus on whether a ‘child’s presence at a given location is intended to be temporary, rather than permanent.’ Gitter v. Gitter, 396 F.3d 124, 132 (2d Cir.2005). And the two-three year trial period here may well have influenced the district court’s conclusion that this move was temporary. We have also earlier credited a district court’s finding that a habitual residence did not change because a move was of a ‘trial nature’ and ‘conditional. Id. at 135. And here, the district court, again with reason, focused on the fact that the parents were to reassess their stay in the United States at the end of what appeared to be a trial period. Ermini, 2013 WL 1703590, at *11-12.”


“But we stress that the period of time of a move is not the only relevant factor in the analysis. Indeed, our sister signatories have clarified that a habitual residence may be established even when a move is for a ‘limited period’ and indeed ‘indefinit[e].’ Shah v. Barnet London Borough Council and other appeals, [1983] 1 All E.R. 226, 235 (Eng.H.L). Drawing on the approach in Shah, the Ninth Circuit has placed emphasis on divining not just the duration of the move but instead, more broadly, the shared intent and ‘settled purpose’ of the parents. Mozes v. Mozes, 239 F.3d 1067, 1074 (2001). As the Third Circuit has stated, when similarly confronted with a two-year relocation, ‘the fact that the agreed-upon stay was of a limited duration in no way hinders the finding of a change in habitual residence. Rather, ... the parties’ settled purpose in moving may be for a limited period of time....’ Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir.2004); see also Gitter, 396 F.3d at 132 (adopting the ‘shared intent’ approach). We thus want to emphasize that the time period attached to a move is but one factor in determining, in a fact-intensive manner, what the settled intent among the parents was in making the move.”


“Nor, as we see it, is it clear that Vittori breached Ermini’s custody rights. Rights of custody are ‘rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ Hague Convention, art. 5(a). Custody rights are provided by ‘the law of the State in which the child was habitually resident immediately before the removal or retention.’ Id., art. 3(a). The district court determined, quite properly, that, under Italian law, custody rights are defined by ‘mutual agreement’ of the parents, and therefore focused on Ermini and Vittori’s agreement. Ermini, 2013 WL 1703590, at *14; see also Title IV, Italian Civil Code of Law, Art. 316 (‘A child is subject to the authority of its parents until majority ... or emancipation. The authority is exercised by both parents by mutual agreement....’).”


“[…][T]he legal issues surrounding custody rights, and defining the family’s habitual residence, are complicated. As a result, while we have doubts about the district court’s conclusions and thought it important to clarify the governing legal standards, we choose not to ground our decision on those issues. The case can be resolved, and the district court’s decision readily affirmed, because we believe—even assuming arguendo that the children’s habitual residence was in Italy and that Vittori breached Ermini’s custody rights—that return would be barred because the children faced a ‘grave risk’ of harm if returned. […]”

The Court then turns to analyze the “grave risk” of harm issue under the Convention. Although the Court agrees with the district courts finding that the risk of harm Daniele faced if removed from his therapy and returned to Italy was grave enough to meet the Hague Convention’s standards, the Court also holds that Ermini’s history of domestic violence towards Vittori and the children was itself sufficient to establish the Hague Convention’s “grave risk” of harm defense.


“We have in the past ruled that a ‘grave risk’ of harm does not exist when repatriation ‘might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences.’ Blondin IV, 238 F.3d at 162. But we have also stressed that a grave risk of harm exists when repatriation would make the child ‘face[] a real risk of being hurt, physically or psychologically.’ Id. The potential harm ‘must be severe,’ and there must be a ‘probability that the harm will materialize.’ Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).”

“Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a ‘sustained pattern of physical abuse and/or a propensity for violent abuse.’ Id. at 104 (internal quotation marks omitted). And we concluded that a ‘grave risk’ of harm from abuse had been established where the ‘petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.’ Id. at 105. Spousal violence, in certain circumstances, can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child. See id. at 103-04 (stating that spousal abuse is relevant insofar as it ‘seriously endangers the child’); see also *165 Khan v. Fatima, 680 F.3d 781, 787 (7th Cir.2012). We have also been careful to note that ‘[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.’ Id. at 104.”

As stated above, the Court finds district court’s conclusion of law as correct when district court concluded that a “grave risk” of harm existed if Daniele would be removed from his current therapy and returned to Italy. 

“This is the first occasion for this Court to consider this kind of psychological harm pursuant to Article 13(b). We note, however, that Article 13(b) explicitly lists ‘psychological’ harm and ‘physical’ harm as appropriate harms for triggering the Convention’s affirmative defenses, both of which are implicated by a developmental disorder such as autism. And we hold that the facts as found by the district court lend themselves straightforwardly to the conclusion that the risk of harm was grave.”


“First, the district court’s findings established there was a ‘probability that the harm w[ould] materialize.’ Souratgar, 720 F.3d at 103. Indeed, the district court credited testimony that does not speak in terms of probability but instead of near certainty: ‘if [Daniele] leaves the Stony Point CABAS program even temporarily, he will face a significant regression in his skills and [] without such an intensive, structured program, [Daniele] will not develop the cognitive, language, social, emotional and independent living skills that he is likely to acquire through such a program.’ Ermini, 2013 WL 1703590, at *16 (emphasis added).”


“Second, the court’s finding that Daniele would lose the ability to develop cognitive, emotional, and relational skills, and potentially lead an independent life, if removed from his current therapy and repatriated, establishes harm of a ‘severe’ magnitude manifestly sufficient to satisfy the exception. Souratgar, 720 F.3d at 103. The harm, in fact, is of such a severity that it threatens to strike to the very core of the child’s development individually and of his ability to participate as a member of society.”


In support of its determination, the Court of Appeals cited a number of cases from countries who were also signatories to the Hague Convention and had ruled on the harm inherent in removing an autistic child from treatment:


J.M.H. v. A.S., [2010] 367 N.B.R.2d 200 (N.B.Fam.Ct.) (Can.) (concluding that the risk to the wellbeing of a child who exhibited signs of autism in removing the child from treatment was sufficiently grave);

DP Commonwealth Cent. Auth., [2001] HCA 39 (High Ct. Austl.) (finding that a lack of adequate treatment facilities for a child with autism in his country of habitual residence was a reason for refusing to return the child).

The Court also agreed with the district court’s decision related to the separation of children, and states:

“[I]n light of the children’s close relationship to each other, and, significantly, the conclusion we reached with respect to abuse, we determine as well that it was not error for the district court to decline to separate the children. See Ermini, 2013 WL 1703590, at *17 (“Courts in this Circuit have frequently declined to separate siblings, finding that the sibling relationship should be protected even if only one of the children can properly raise an affirmative defense under the Hague Convention.’).”


The Court, however, does not agree with district court denial of Ermini’s petition without prejudice to renewal if Daniele is not able to continue with his current CABAS program and the Italian court system issues a final order requiring the return of the children to Italy. 


“[…][A]s we believe the district court’s approach—which is, so far as we can tell, the first such instance of denial without prejudice in a Hague Convention case—to constitute an error of law, neither justified nor allowed by the Convention. Since the ‘proper interpretation of the Hague Convention is an issue of law,’ we review the district court’s decision de novo. Blondin IV, 238 F.3d at 158 (internal quotation marks omitted).”

“‘In interpreting a treaty, it is well established that we begin with the text of the treaty and the context in which the written words are used.’ Swarna v. Al-Alwadi, 622 F.3d 123, 132 (2d Cir.2010) (internal quotation marks and alteration omitted). The Hague Convention provides either for the ‘return of the child forthwith’ if the child is wrongfully removed, pursuant to Article 12, or for a ‘determin[ation] that the child is not to be returned,’ pursuant to Article 16. The Convention authorizes these decisions alone, and stresses the importance of deciding matters ‘expeditiously.’ See Hague Convention., art. 11. It also explicitly keeps courts out of deciding, or acting under the Convention, ‘on the merits of rights of custody.’ Id., art. 16.”

“Furthermore, as the Hague Convention’s Explanatory Report—which we have construed as being an authoritative and official history of the Convention proceedings, see Blondin II, 189 F.3d at 246 n. 5-has explained, the Convention ‘is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision ... on the basis of facts which have subsequently changed.’ Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426 (1980), (“Explanatory Report”) ¶ 71.”

“By denying the petition without prejudice to renewal, the district court allows the parties to call upon future events and engage in prospective modifications in light of changed facts in precisely the way the Convention intended to prohibit. As the Explanatory Report shows, the Convention is concerned with events at a particular *168 moment: it either requires return or, in light of the risks of harm or other circumstances, it does not. Once a determination properly applying the Convention to the facts at hand has been made, all other issues leave the realm of the treaty’s domain. The Convention is not, and cannot be, a treaty to enforce future foreign custody orders, nor to predict future harms or their dissipation. See, e.g., Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir.2013) (‘The Hague Convention targets international child abduction; it is not a jurisdiction-allocation or full-faith-and-credit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent’s custody rights more generally.’); Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012) (‘[T]he Convention’s focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings.’). Indeed, the Convention stresses the need for, and importance of, establishing swiftly a degree of certainty and finality for children.[12] See, e.g., Chafin v. Chafin, ___ U.S. ___, 133 S.Ct. 1017, 1030, 185 L.Ed.2d 1 (2013) (Ginsburg, J., concurring) (‘Protraction ... is hardly consonant with the Convention’s objectives.’); Blondin II, 189 F.3d at 244 n. 1 (noting the necessity that procedural and substantive decision-making be expeditious so they do not exceed the time that the child can endure the uncertainty of the process).”


The Court affirms the District Court’s denial of appellant’s petition, and amends its judgment to deny that petition with prejudice. 


Case Reference: Ermini v. Vittori, 758 F.3d 153 (11th Cir. 2014).