Saturday, November 8, 2014

California Proposition 47 Offers Deportation Relief to Certain Aliens with Criminal Convictions

Last Tuesday, November 4, 2014, California Voters approved Proposition 47, which brings changes to California criminal law and procedure that will affect thousands of immigrants facing deportation due to pending and prior criminal cases.

The “Safe Neighborhood and Schools Act,” known as “Prop 47,” reduces certain felony and “wobbler” offenses for simple drug possession to straight misdemeanors, reduces many theft and burglary-related wobblers to straight misdemeanors and retroactively allows most people convicted of felonies under prior law to seek reduction of their convictions to misdemeanors if their crimes would not have been felonies if committed after November 5, 2014, the law’s effective date.

Under the new Prop 47 statute, aliens who have are being prosecuted for deportable felonies and wobblers now may be able to avoid convictions that would otherwise render them ineligible for relief from removal and those who have already been convicted may possibly reduce their convictions to misdemeanors and obtain relief from orders of deportation and removal.

As of the effective date of Prop 47, November 5, 2014, a new crime of “shoplifting” is now defined as entering a commercial establishment during business hours with the intent to steal items valued at $950 or less. Any such crime can no longer be charged as “theft” or “commercial burglary.”

This change in California criminal law is extremely important to anyone facing deportation or removal proceedings, since previously, District Attorneys across the state have been charging even “petty theft” crimes as “burglaries” and “theft,” creating the danger of deportation proceedings and possibly an “aggravated felony” with no relief if the sentence was one year or longer in jail.

Prop 47 also makes forgery of checks for “Non-Sufficient Funds”, “grand theft” and receiving stolen property all misdemeanors, unless the value of the checks or property involved exceeded $950.00.

Certain drug crimes will also receive more favorable treatment as “misdemeanors” under Prop 47. Simple possession controlled substances, as well as simple possession of concentrated cannabis or “hashish” are now misdemeanors. “Simple possession” generally means the drug was possessed for personal use and not for sale or trafficking to others.

These changes are enormously important, as many “possession” charges could have been classified as “felonies” under California law and considered “aggravated felonies” under the Immigration and Nationality Act, making a convicted immigrant ineligible for relief from removal.

The changes in the law, under Prop 47, apply to most defendants, except those previously convicted of certain sexually violent offenses, child molestation offenses, cases of elder abuse and homicide.

The provision of Prop 47 having perhaps the most immediate impact on deportation cases is the new California Penal Code section 1170.18, which permits a person previously convicted and sentenced to a felony that is now a misdemeanor to petition for resentencing under the new misdemeanor provisions. The sentencing court should resentence the petitioner in these cases, unless the person is considered an “unreasonable risk” to commit one of an enumerated list of certain violent crimes in the future. Under Prop 47, a post-conviction redesignation of a felony to a misdemeanor is valid for “all purposes,” including deportation treatment.

Aliens who have been ordered deported, are facing possible deportation due to previous convictions, or who are facing pending criminal charges are all impacted by this legislation. Any immigrant fitting in these categories should immediately consult with an immigration attorney to ascertain whether their criminal matter qualifies for relief under Prop 47.

Tuesday, November 4, 2014

Tri-Valley University Founder and President Sentenced to 16 Years in Prison

A San Francisco area woman was sentenced to more than 16 years in prison for running what prosecutors said was a sham university that served as a front for an immigration scam.

Susan Xiao-Ping Su, founder and president of the phony Tri-Valley University, was accused of charging foreigners tuition and other payments for visa-related documents that allowed them to live in the U.S. while she purported that they were here legally to study. She made more than $5.6 million and used the money to buy commercial real estate, a Mercedes Benz and multiple homes, including one at a golf club, federal prosecutors said Monday.

U.S. District Court Judge Jon S. Tigar sentenced Su, 44, on Friday after she was convicted in March of visa fraud and other charges. She was also ordered to forfeit $5.6 million and pay more than $900,000 in restitution, prosecutors said.

"Student visas are intended to give people from around the world a chance to come to this country to enrich themselves with the vast learning opportunities available here," Tatum King, acting special agent in charge for Homeland Security Investigations, San Francisco, said in a statement. "But in this case, the defendant was interested in a different kind of enrichment, her own."

The Tri-Valley case is not unique in the San Francisco area. Jerry Wang, the chief executive officer of Herguan University and the University of East-West Medicine, is also facing visa fraud charges in connection with what authorities say is a similar scheme. He has pleaded not guilty and is scheduled to go on trial next month.

In the Tri-Valley case, employees testified that the school had no graduation or admission requirements, and that Su instructed her staff to fabricate transcripts and other documents.

The school described itself as a "Christian higher education institution" that provided higher education in engineering, business and ministry, according to court documents.

Su allegedly paid recruiters for referring new students

Monday, October 6, 2014

Recent Ninth Circuit Decision on Heightened Discretionary Standards

In Torres-Valdivias v. Holder, No. 11-70532, 2014 WL 4377469 (9th Cir. Sept. 5, 2014), the three-judge panel unanimously held that the heightened discretionary requirements adopted by the Attorney General in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), were properly applied by the Board in the context of applications for adjustment of status under section 245 of the Act.

In Matter of Jean, the A.G. established a presumption that discretion should not be favorably exercised on behalf of an applicant for asylum and adjustment of status under section 209 of the Act who had been convicted of “violent or dangerous crimes,” except in compelling circumstances, such as where removal would cause exceptional and extremely unusual hardship or where there are national security and foreign policy considerations in play. That heightened standard was subsequently extended to cases involving waivers under section 212(h) of the Act by regulation, see 8 C.F.R. § 1212.7(d), and the Board panel in Torres-Valdivias extended it to an adjustment of status application under section 245(i) of the Act.

The Ninth Circuit indicated that it would not extend Chevron deference to the Board’s decision. The court reasoned that the Board was altering the standard set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), in holding that Matter of Jean applied in the section 245(i) context. Matter of Arai also involved an application for adjustment of status under section 245 of the Act. The court noted that Chevron would not apply to an unpublished decision that is not directly controlled by a published decision interpreting the same statute. Noting that an agency “may not . . . depart from a prior policy sub silentio,” the court observed that the Board did not publish its decision or acknowledge Matter of Arai in its unpublished order.

Nevertheless, the court concluded that “the BIA’s decisions in this case are sufficient to satisfy its obligation not to act in an arbitrary or capricious manner.” In this regard, the Ninth Circuit noted that the Board had “adopted and affirmed” the Immigration Judge’s decision which in turn had expressly found that Matter of Jean, had altered the Matter of Arai approach in cases where a violent or dangerous crime was involved.

Monday, September 8, 2014

US Federal Judge in Northern District of California Limits Mandatory Detention of Aliens in Removal Proceedings

Recently, US District Court Judge Yvonne Gonzalez Rogers granted a motion for a preliminary injunction in Preap v. Holder, a class action lawsuit in which the Asian Law Caucus and the American Civil Liberties Union of Northern California challenged the ICE's practice in California of detaining certain immigrants without bond, often for many months, while they face deportation proceedings.

Judge Gonzalez determined that by refusing these detainees bond hearings at which they can demonstrate their fitness for release because they are neither a flight risk nor a public safety risk, the government was effectively tearing immigrants away from their families, their communities, and their livelihoods and compromising their access to representation. Many immigrants caught in the mandatory detention dragnet are longtime residents of the United States who have rehabilitated themselves, raised families and they will now have the opportunity to make an individualized case against their detention.

This court challenge seeks to clarify that the Mandatory Detention provisions of INA section 236 apply only "upon release," meaning if a Respondent is taken directly out of state custody, such as jail or prison, into federal immigration detention, they will be subject to the restriction. However, if an alien is picked up later, sometimes years after the fact, an earlier conviction that falls within the category for mandatory detention subjects that person to be detained for the duration of their immigration proceedings, without an opportunity to seek a bond is erroneous and an incorrect application of the statute.

Wednesday, June 18, 2014

Tri-Valley University Founder to be Sentenced on June 20

Susan Su, age 43, founder and former president of Tri-Valley University of Pleasanton, will be formerly sentenced on June 20, 2014, on the 31 counts ranging from conspiracy to commit visa fraud to money laundering to alien harboring. Su was found guilty after a jury trial in federal court before the Honorable Jon Tigar.

Su was found guilty of operating a so-called "visa mills," related to a multi-million dollar scheme to illegally provide immigration status to foreign nationals. Tri-Valley University, which catered primarily to online students, was a bogus, unaccredited venture designed to rake in millions of dollars from foreigners who sought to obtain student visas so they could remain in the United States.

Su was found to have defrauded the Tri-Valley students out of about $5.5 million in less than two years, using the money to buy commercial properties in Pleasanton that served as the university's offices as well as a mansion at Ruby Hill Golf Club and a Mercedes-Benz for herself.

Su falsified documents and lied to investigators and immigration officials about how students were affiliated with the school, which lacked instructors or appropriate course material. Federal investigators found more than 550 students enrolled at the Alameda County university were registered as living at the same address, a two-bedroom apartment in Sunnyvale.

Monday, June 9, 2014

U.S. Supreme Court Overturns Ninth Circuit's Interpretation of the Child Status Protection Act

On December 10, 2013, the Supreme Court heard oral arguments in the case of Mayorkas v. Cuellar de Osorio, concerning whether a derivative beneficiary of a visa petition who is over twenty-one years old, even when calculating the appropriate Child Status Protection Act (CSPA) age, is able to retain the priority date of the earlier petition filed on behalf of the primary beneficiary (generally his or her parent.

Today, June 9, 2014, a divided Supreme Court sided with the Obama administration in a ruling that will effectively mean many "aged out" immigrants will have to wait several more years to obtain a visa. In other words, if a parent applies for a visa for their family, but one of their children turns 21 before they reach the front of the line (the wait can take years), that "aged out" child will probably have to start his or her wait all over again as an adult.

Justice Elena Kagan, who wrote the opinion, determined that the court had to defer to the interpretation of the law by the Board of Immigration Appeals. That board only grants an exception for an "aged-out" child on a family visa application if, in Kagan's words, "those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent."

There is a law that was designed to protect immigrants from aging out of their own visa eligibility — the Child Status Protection Act — but Kagan's opinion finds that the law plausibly "halts the flow of time" for only some categories of visa applications. Under the formula used for those the BIA excludes from that protection, Kagan writes that time spent waiting for a visa to become available counts against the growing applicant: "Every day the alien stands in that line is a day he grows older, under the immigration laws no less than in life." There's a provision in the law that could require the government to "automatically convert" those petitions into ones that are more age appropriate, but the BIA has decided that this is not necessarily the case for most "aged out" applicants. Although the Obama administration admits that the law's application is ambiguous, it argued before the court that the BIA's interpretation was reasonable.

Kagan agreed: We might call the provision Janus-faced. Its first half looks in one direction, toward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family preference petition. But as the BIA recognized, and we will further explain, the section’s second half looks another way, to- ward a remedy that can apply to only a subset of those beneficiaries—and one not including the respondents’ offspring. The two faces of the statute do not easily cohere with each other: Read either most naturally, and the other appears to mean not what it says. That internal tension makes possible alternative reasonable constructions, bringing into correspondence in one way or another the section’s different parts. And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.

Monday, April 14, 2014

9th Circuit Requests Additional Briefing in Case To Determine Whether to Hear en banc

Recently, the Ninth Circuit Court of Appeal requested additional briefing from my former office on the question of whether to hear the case en banc. I filed the petition for review in 2009 seeking appellate review of the denial of the protection afforded under the Convention Against Torture. This case was filed and fully briefed for my last office, The Law Offices of Haitham Ballout, Esq.in Burlingame, California.

The appellant was a Mexican national, who was a Lawful Permanent Resident at the time, and he was ordered removed for an aggravated felony conviction, first degree burglary. Once he was removed to Mexico, he was kidnapped at the airport in Mexico City by uniformed police officers telling him he did not have proper papers and he needed to go with them. They turned him over to the Federal Police, who transported him to Morelia in Michocan and placed him inside the prison. There he was tortured while his father in the U.S. was on the phone. The crooked cops were demanding ransom, which was eventually paid. The appellant had cigarettes burned into his skin, he had his teeth knocked out, he had electrodes place on his genitals, and he was waterboarded with Coke Cola poured onto a rag placed over his mouth and nose.

Appellant returned to the U.S., crossing in Arizona, but not before he was bit by a rattlesnake and lost his legs before Customs and Border Patrol located him. Appearing before Immigration Judge Yamaguchi in San Francisco, everybody acknowledged that he had suffered torture, by Yamaguchi held that he could safely relocate inside Mexico and ordered him removed.

The Board of Immigration Appeals sustained the removal order and the case was brought to the Ninth Circuit by my former office. I raised the legal issue that the IJ impermissibly held appellant to an incorrect legal standard, namely that under Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), that a CAT petitioner must establish that internal relocation is "impossible." I argued that just as in this case, where the petitioner has established past torture, the burden should shift to the government to prove that relocation is possible, pursuant to Perez-Ramirez v. Holder, 648 F.3d 953, 958 (9th Cir. 2011).

There is seemingly a split of authorities in the Ninth Circuit on this questions and this case is being considered for an en banc decision on what is the correct procedure. My contention is that Perez-Ramirez should be the standard.

"As we have previously acknowledged, "it will rarely be safe to remove a potential torture victim on the assumption that torture will be averted simply by relocating him to another part of the country." Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir.2005). Thus, when the past-persecution is shown, the government bears the burden to show by a preponderance of the evidence that the petitioner can move elsewhere within the country. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.2003) ("[B]ecause a presumption of well-founded fear arises upon a showing of past persecution, the burden is on the INS to demonstrate by a preponderance of the evidence, once such a showing is made, that the applicant can relocate internally to an area of safety."). Additionally, when petitioner "has established a well-founded fear of future persecution at the hands of the government, a rebuttable presumption arises that the threat exists nationwide and therefore that internal relocation is unreasonable." Id.