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.

Friday, March 14, 2014

House GOP Passes Immigration Bill That Would Eliminate DACA: The Relief for Dreamers

House Republicans passed a bill Wednesday that would eliminate President Barack Obama's policy that allows young undocumented immigrants to stay in the United States.

The ENFORCE Act, which passed 233 to 181, goes after Obama for alleged overreach. The bill would allow Congress to sue the executive branch for allegedly failing to enforce the law, and it could lead to the dismantling of a key policy protecting some undocumented immigrants.

The move was a far cry from the votes on immigration reform that Democrats want, and stood in stark contrast to the immigration principles put forward by House Republican leadership in January. While those guidelines called for young undocumented immigrants who came to the United States as children -- often referred to as Dreamers -- to receive eventual citizenship, the bill approved Wednesday could end the Deferred Action for Childhood Arrivals policy that keeps the same people from being deported.

The Obama administration has used prosecutorial discretion, or the decision to use limited resources to enforce some cases over others, to grant some undocumented immigrants a reprieve, while continuing a high level of deportations more broadly.

House Republicans said passing the bill was necessary because the president had shown an unwillingness to enforce the law and a desire to go around Congress, including through the Deferred Action for Childhood Arrivals policy.

"We have seen a pattern: President Obama circumvents Congress when he doesn't get his way," Judiciary Committee Chairman Bob Goodlatte (R-Va.) said on the House floor in support of the bill. "But the Constitution does not confer upon the president the executive authority to disregard the separation of powers and rewrite acts of Congress based on his policy preferences."

The Obama administration threatened to veto both bills should they come to the president's desk, and White House spokesman Jay Carney criticized them during a press briefing, noting the contrast between the legislation and some Republicans' stated desires to work on immigration reform.

"It is, in my view, in our view, pretty amazing that today House Republicans went in the opposite direction by passing legislation targeting the deferred action for childhood arrivals policy that removed the threat of deportation for young people brought to this country as children, known as Dreamers," he said, adding later, "It doesn't require much to look at what House Republicans are doing today and question whether or not they're serious about moving forward on comprehensive immigration reform."

"Instead of voting to fix our broken immigration system as the Senate did in June, House Republicans today voted to prevent the President from fixing the problems that are within his constitutional authority to solve," Reid said. "These irresponsible Republican bills are dead on arrival in the Senate. I strongly support the President’s decision to protect DREAMers from deportation. Republicans should try solving problems for a change instead of blocking progress for our nation and making life more difficult for the immigrant community."

Monday, February 10, 2014

Obama Administration Announces a Relaxations of Some Restrictions on Asylees Found to Have Aided Terrorist Organizations

The Obama administration recently made it easier for people with tangential connections to terror groups to receive refugee status or asylum in the United States.

Two new exemptions to the Immigration and Nationality Act published in the Federal Register Wednesday by the Departments of Homeland Security and State mean that who provided “insignificant” or “limited” material support for terror groups will no longer be automatically denied eligibility from asylum or refugee status. The so called de minimus exception to the harsh consequences of providing material support to a foreign terrorist organization.

The rules will likely affect about 3,000 people who have pending asylum cases and an unknown additional number of people currently in the process of being deported. It will certainly help Syrian refugees who would otherwise be blocked from receiving U.S. aid by existing rules.

The new exemptions apply to “limited material support,” which a DHS spokeswoman said is defined as “material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure.”

DHS provided a series of examples of individuals who would have been ineligible for asylum or refugee status before the new exemptions, including business owners who unwittingly provided service to members of a terror group, aid workers who assisted members of a terror group during the aftermath of a natural disaster or civil conflict and people who had to pay a toll or tax to a terror group to pass through opposition-occupied territory.

“For instance, an owner of a restaurant who serves food to any paying customer, even though he knows some of them are members of an opposition group; or a mother or father who — as any parent would — fed and clothed their young adult child, even when they knew their child is part of a resistance movement,” the DHS spokeswoman said.

Aside from the Federal Register publication, the only public notice announcing the changes came from Sen. Patrick Leahy (D-Vt.), who has for years been championing a change in the “material support” definition.

“The existing interpretation was so broad as to be unworkable. It resulted in deserving refugees and asylees being barred from the United States for actions so tangential and minimal that no rational person would consider them supporters of terrorist activities,” Leahy said. “These changes help return our nation to its historic role as a welcoming sanctuary to the world’s most vulnerable populations.”

The DHS spokeswoman did not say how many people would be impacted by the rule change, but Leahy said tens of thousands of refugees would be helped.

Wednesday, January 8, 2014

The California TRUST Act: A Guide for Criminal Defenders, courtesy of ILRC

ILRC_TRUST_Act_Memo_FINAL.pdf