Holiday Blues

I feel that I have neglected by blog for some time now because I have not had any interesting new immigration/deportation issue come across my desk. So as an alternative I will briefly blog about my most recent reading material, Psychology & Religion by Carl Jung.

In his discussion of religion, Jung makes a clear distinction between religion which he calls "a peculiar attitude of the human mind . . . that is, a careful consideration and observation of certain dynamic factors, understood to be 'powers,' spirits, demons, gods, laws, ideas, ideals or whatever name man has given to such factors as he has found in his world powerful, dangerous or helpful enough to be taken into careful consideration, or grand, beautiful and meaningful enough to be devoutly adored and loved," and a creed.

Jung describes as creed as "codified and dogmatized forms of original religious experience. The contents of the experience have become sanctified and usually congealed in a rigid, often elaborate, structure. The practice and the reproduction of the original experience have become a ritual and an unchangeable institution."

Detention of U.S. Citizen Without Charges

Did U.S. push detention of American without charges?

Jonathan S. Landay | McClatchy Newspapers

last updated: November 18, 2008 08:48:41 AM

WASHINGTON — An American Muslim subjected to several years of intense FBI scrutiny and questioning about links to terrorism has been held without charges, access to a lawyer or contact with his family for nearly three months by the security services of the United Arab Emirates.

The case of Naji Hamdan, coupled with FBI interrogations of an American citizen secretly detained without charges in East Africa, raises the question of whether the Bush administration has asked other nations to hold Americans suspected of terrorism links whom U.S. officials lack the evidence to charge.

That allegation is central to a lawsuit that the American Civil Liberties Union was planning to file Tuesday in federal court in Washington against President Bush, Attorney General Michael Mukasey and FBI Director Robert Mueller.

"If the U.S. government is responsible for this detention and we believe it is, this is clearly illegal because our government can't contract away the Constitution by enlisting the aid of other governments that do not adhere to the Constitution's requirements," said Ahilan Arulanantham of the ACLU's southern California office.

The lawsuit, to be brought on behalf of Hamdan's wife and brother, demands that the U.S. government extend to Hamdan his constitutional guarantee against illegal detention by asking the UAE to release him.

"The most elemental legal principles by which we govern ourselves cannot countenance the lawless detention of a United States citizen at the behest of his own government," said a draft of the lawsuit provided to McClatchy by the ACLU.

A spokesman for the FBI's Los Angeles office, Alonzo Hill, referred all inquiries about Hamdan, a former resident of the city's Hawthorne neighborhood, to FBI headquarters in Washington, saying, "This is a counter-terrorism case."

FBI headquarters disputed the allegation that it had asked the UAE to arrest Hamdan but acknowledged that it routinely interviews detainees held in foreign jails.

"The FBI does not ask foreign nations to detain U.S. citizens on our behalf in order to circumvent their rights," said Special Agent Richard Kolko, a spokesman. "In terrorism matters, we routinely work with foreign counterparts and in some cases, with the permission of the host government, FBI Agents have been permitted to interview people who may possess relevant information."

A State Department spokesman said the department had been aware of Hamdan's detention and that a U.S. consular officer visited him nearly two months after he was arrested.

The UAE Embassy said in an e-mail to McClatchy that all questions should be directed to the police in Abu Dhabi, the UAE sheikhdom where Hamdan is being held, because the case "is related to a police/security matter, which involves a private U.S. citizen."

Abu Dhabi, one of seven oil-rich sheikdoms, has cooperated closely with the Bush administration in cracking down against Islamist extremists following the 9/11 attacks.

Hamdan is a 42-year-old naturalized U.S. citizen who immigrated to California from Lebanon in the early 1980s to attend university on a scholarship, worked as an aircraft technician and then opened a used auto parts business in Hawthorne, where he served on the board of a local mosque.

Hamdan's interaction with the FBI began in 1999, when agents visited him at his Hawthorne home and asked if he knew Osama bin Laden. The incident was recounted in a Los Angeles Times article on aggressive tactics used in FBI terrorism investigations.

Hamdan's wife, Mona Mallouk, and brother, Hossam Hemdan, insisted that he's never had any terrorism involvement or been charged with any crime despite the longtime FBI scrutiny.

"Naji hates war. He hates what happened on September 11. He hates terrorism," Mona Hamdan said in a telephone interview from Beirut, Lebanon, where she and her children are living.

Hamdan moved to Abu Dhabi in 2006 and set up a business of importing used cars doing car repairs, but then moved his family to Beirut and traveled between the two countries.

In August, he was questioned at the U.S. embassy in Abu Dhabi by two FBI agents who flew out from Los Angeles. Several weeks later, UAE officials detained him, Mallouk and Hossam Hemdan said.

Hemdan, who owns automobile emissions testing stations in Los Angeles, said he arranged for Hamdan to meet the agents at the FBI's request.

"He (Hamdan) said 'That's fine, I'll see them,'" Hemdan recalled, adding that his brother later declined to discuss the meeting, except to say that "the agents know all this stuff about me and you and other people."

"I believe they are intercepting my phone calls and emails," Hemdan said of the FBI.

On Aug. 28, UAE security officers took Hamdan away as he, his wife and three children ate lunch in their Abu Dhabi apartment on the pretext of bringing him to a police station to sign papers related to a car accident, Mallouk said.

She said that when her husband failed to return, she began a fruitless search for him at police stations.

"I called the U.S. embassy . . . the next day. I was crying. They didn't seem to care," she related. "They said they would call back in an hour, but they didn't call me back for six or seven days."

The consular officer who telephoned confirmed that the embassy was aware of Hamdan arrest the day it occurred, said Mallouk, who hasn't spoken to her husband since he made a brief call to her shortly after his arrest.

The case finds echoes in the secret detention in Kenya last year of Amir Mohammad Meshal, a New Jersey resident who was arrested fleeing the U.S.-backed Ethiopian invasion of Somalia.

Meshal, who had spent time in Somalia with suspected Islamic extremists, was interrogated by FBI agents in Nairobi, secretly flown back into Somalia, turned over to Ethiopian intelligence officers and then flown to the Ethiopian capital of Addis Ababa, where he was imprisoned three months before being released without charges.

"I think you see a trend that reflects illegal detentions going underground or off the books, where the United States . . . out-sources detentions to other governments," said Jonathan Hafetz, an ACLU attorney who's involved in the Meshal and Hamdan cases.

Hemdan said the FBI visited his brother, himself and other Muslims in Hawthorne after the Sept. 11 attacks, showing them pictures of the hijackers and asking if they knew them. Agents called on Hamdan once at home and twice at his business, he said.

The brothers' names were placed on watch lists at airports and they would be pulled aside and interrogated about ties to terrorist groups every time they entered or left the U.S., Hemdan said.

In 2006, Hamdan and his wife moved to the UAE. She said Hamdan was frustrated over the FBI's scrutiny, and both were concerned about drugs and other problems at high school their eldest son was due to attend.

At Los Angeles International Airport, they and their luggage were rigorously searched and they were subjected to lengthy questioning that made them miss their flight, according to Mallouk.

In the UAE, Hamdan set up a used car and auto repair business. But he decided to move the family to Beirut because they have close relatives there and the UAE was too hot, she explained.

Last year, during a visit to Hawthorne, Hamdan came under intense FBI surveillance, according to Hemdan, with agents watching the brothers' businesses, tailing them in automobiles and questioning their friends.

"Where ever he went, they chased him, government vehicles with black windows," said Hemdan. "From my perspective, they wanted him to see them. They'd drive over the (lane) dividers and over curbs. They wanted to be seen so he gets scared and leaves. It's like 'You are not welcomed here.'"

"I told him to go to the Federal Building (in Los Angeles) and talk to the FBI. I gave him the number and he called and left a message, but they didn't call him back," he continued.

Earlier this year, Lebanese security officers detained Hamdan at Beirut airport as he prepared to board a flight to the UAE after visiting his family. They later ransacked the family's house and confiscated two computers, a video game, papers and photos, Mallouk said.

Her husband was "slapped" while being interrogated for four days, during which he was accused alternatively of being an al Qaida member or working for Israeli or U.S. intelligence, she said. Khalid, 16, was also questioned for three hours.

Hamdan was released without charges.

Writ of Error (Coram Nobis) to Vacate State Narcotics Conviction

We are still trying to obtain the release of a client who has been in immigration detention since last July on account of a deferred entry of judgement in a simple possession narcotics case in state court. ICE has maintained that he is subject to mandatory detention throughout his deportation proceedings. We have appealed to the 9th Circuit and our opening brief is due sometime in February 2009.

However, his public defender has been feverishly working to try an vacate this plea agreement before the trial judge. His last effort is to try a Writ of Error, or (Writ of Coram Nobis). The case law holds that if this writ is granted based upon a substantive factual error, this will removed the conviction off the record and he can obtain his release.

"A conviction overturned for substantive, non-immigration reasons may not be used as the basis for removability. See Nath v. Gonzales, 467 F.3d 1185, 1187-89 (9th Cir. 2006) (“[A] conviction vacated because of a procedural or substantive defect is not considered a conviction for immigration purposes and cannot serve as the basis for removability.” (internal quotation marks and citation omitted)); see also Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107-08 (9th Cir. 2006) (remanding for consideration of whether conviction was vacated on the merits or because of immigration consequences)"

Furthermore, "the government bears the burden of proving whether a state court reversed or vacated a prior conviction for reasons other than the merits. Nath, 467 F.3d at 1189; Cardoso-Tlaseca, 460 F.3d at 1107 n.3 (“[F]or the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove with clear, unequivocal and convincing evidence that the Petitioner’s conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e. to avoid adverse immigration consequences.” (internal quotation marks and citation omitted)).

Violation of a Grant of Voluntary Departure

One of our clients is a stateless individual, he is a citizen of no country, who arrived inside of the U.S. and requested political asylum. His request for asylum was denied and he was ordered removed. The Immigration Judge granted him voluntary departure, but since he had no passport or valid travel document to actually leave the U.S.

A little background, our client is ethnically Palestinian, born to Palestinian parents who were living in Saudi Arabis on temporary employment visas. Saudi does not grant citizenship to Palestinians who happen to be born within their country. So, when our guy left Saudi Arabia and remained out of the country for more than 6 months, he could no longer return to Saudi. Saudi Arabia does not even issue a passport to such a situated Palestinian, he was required to petition the Egyptian Consulate for temporary travel papers.

So the fact on the ground is now, our client is under a final order of removal, violated his Voluntary Departure order, and currently on supervised release, deferred entry of action by the local Immigration and Customs Enforcement Field Office.

We currently have a Petition For Review before the Ninth Circuit Court of Appeals, and we have been placed in mediation because our guy has an approved I-130 Immigrant Visa based on marriage to a USC. So the question for us is whether our client can even adjust his status if we win and obtain a remand for adjustment.

The BIA decision on point is Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), which holds that if the aline fails to depart. through no fault of their own, cannot be said to have "voluntarily violated" the period of voluntary departure.

They hold that someone who is "physically unable to depart" falls within the "voluntariness exception" to INA 240B(d)(1), however, there has been no decision on this prong. Our guy may be the test case.

Voice From a Raid

Coming on the heels of the ICE raid on Howard Industries in Mississippi, I thought this video clip was interesting on the aftermath of such a raid by the federal authorities.

Ninth Circuit Finds Adjustment Unavailable to Persons Who Enter the U.S. by Fraudulent Means

Orozco v. Mukasey, (9th Cir. Mar. 25, 2008).

A person who obtains entry into the United States by fraudulent means is statutorily ineligible for adjustment of status under INA §245(a).

On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status under INA §245(a) and a waiver of inadmissibility under INA §212(i). The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry. The BIA affirmed, citing Matter of Burbano, 20 I&N Dec. 872 (BIA 1994).

Under INA §245(a), the status of an alien who was inspected and admitted or paroled into the U.S., may be adjusted to that of a lawful permanent resident in the discretion of the Attorney General if (1) the alien submits an application; (2) the alien is eligible to receive an immigrant visa and is otherwise admissible to the U.S.; and (3) an immigrant visa is immediately available. The term "admitted" is defined as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." INA §101(a)(13)(A) (emphasis added). The court found the statutory language unambiguous - in order to be eligible for adjustment of status under INA §245(a), an applicant's entry into the U.S. must be lawful. See also Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004) (INA §101(a)(13)(A) "leaves no room for doubt, unambiguously defining admission as the lawful entry of the alien into the United States"). Moreover, the court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i).

The petition for review was denied.

Lujan-Armendariz v. INS, Footnote 28

Immigration Courts within the jurisdiction of the Ninth Circuit Court of Appeals have been routinely denying aliens the benefits of the Lujan exception if they have not already expunged their first-time simple possession conviction. The Board of Immigration Appeals has read this exception as narrowly as possible in order to limit the ameliorative affects of this rule. This narrow reading of the Lujan exception is hitting the alien community especially hard. For instance, a Lawful Permanent Resident has taken a negotiated plea on a drug possession charge and the court entered a deferred entry of judgment pending successful completion of Prop 36 Drug Diversion. The county sheriff turns over the alien number to ICE. ICE agents come and take the LPR into custody and the Immigration Courts refuse to release the alien on the basis the alien is subject to mandatory detention provision of INS § 236(c)(1)(C). Once in custody, the alien cannot complete their drug classes and cannot expunge their convictions. Very harsh, but happening all the time.

THE BASIC RULE
In 1994, the Ninth Circuit held that the Federal First Offender Act's ameliorative provisions extended to aliens under an Equal Protection Argument. See Garderding v. INS, 30 F.3d 1187, 1189 (9th Cir. 1994); Matter of Manrique, Int. Dec. 3250 (BIA 1995). This Gaberdingrule further extended the FFOA's ameliorative benefits of the Act to anyone granted relief under a comparable state rehabilitative statute.

Subsequent to Congress’s passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), wherein Congress statutorily codified the definition of what constitutes a “conviction” for immigration purposes, the Ninth Circuit reaffirmed its prior holding in Gaberding, reasoning that the FFOA, and its state equivalent rehabilitative statutes, were not explicitly repealed, nor repealed by implication in the passage of the IIRIRA. The Ninth Circuit held, “in simple drug possession cases any alien who has been accorded rehabilitative treatment under a state statute will not be deported if he establishes that he would have been eligible for federal first offender treatment under the FFOA.” Lujan-Armendariz v. INS, 222 F.3d at 735.

However, at the other end of the spectrum, the Ninth Circuit has held that an alien who could have been eligible for inclusion in a state rehabilitative statute, for a first-time, simple possession charge, but did not availed himself of the ameliorative provisions is not eligible for exclusion of removal under the Lujan exception. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1292 (9th Cir. 2004).

The Ninth Circuit has previously addressed this potential middle ground, in footnote 28 of Lujan, which states in relevant part:
Construing the statute as determining the time at which a conviction occurs, as a general matter, would leave open the question whether the Act [Federal First Offender Act] precludes deportation of an alien who has received a deferred adjudication but has not yet had his proceedings expunged because he has not completed his term of probation and therefore has not yet satisfied a judge that dismissal of the offense is warranted. Our review of the history and purpose of the Act strongly suggests that such a person is protected by the Act's provisions, and our analysis of the law regarding repeals by implication suggests that no implied repeal occurred in that respect either.

Currently the Immigration Courts and the BIA are routinely denying anyone relief if they have not already had their conviction expunged, contrary to the clear intend of the Ninth Circuit. The key is to bring a case before the court so that they can extend their holding to these middle ground cases.

Supreme Court Ruling on Voluntary Departure Overturns Ninth Circuit Pecedent

Supreme Court Holds that Noncitizens Granted Voluntary Departure Must Be Allowed to Seek Reopening; Court Rejects Automatic Tolling

Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16, 2008)

A divided Supreme Court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period in order “to safeguard the right to pursue a motion to reopen.” The Court, however, rejected the argument that the voluntary departure period automatically tolls when a motion to reopen is filed.

This case resolves a circuit split. Four courts had found that the filing of a motion to reopen automatically tolls the voluntary departure period. See Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005); Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005); Ugokwe v. United States Att'y Gen., 453 F.3d 1325 (11th Cir. 2006). Three courts concluded otherwise. See Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006), petition for cert. pending, No. 06-1252 (filed Mar. 22, 2007); Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), cert. denied, 127 S. Ct. 1874 (2007); Chedad v. Gonzales, 497 F.3d 57 (1st Cir. 2007) (pet. for reh'g filed Oct. 15, 2007).

Background:

Petitioner Samson Taiwo Dada was placed in removal proceedings in 2004. While he was in proceedings, his United States citizen wife filed an immigrant petition (I-130) on his behalf. The immigration judge denied Mr. Dada’s request for a continuance pending adjudication of the I-130 petition and entered a voluntary departure order. Mr. Dada filed an appeal with the Board of Immigration Appeals and when his appeal was denied, the Board ordered him to depart within 30 days.

Prior to the expiration of the voluntary departure period, Mr. Dada filed a motion to reopen and reconsider his removal and to stay his removal pending his motion to reopen. In addition, he asked to withdraw his request for voluntary departure. After the voluntary departure period had expired, the Board denied his motion, finding that the overstay made him ineligible for adjustment of status under INA § 240B(d). Mr. Dada petitioned for review to the Court of Appeals for the Fifth Circuit.

While his appeal was pending, the Fifth Circuit held in Banda Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), that a motion to reopen does not toll the voluntary departure period. The Fifth Circuit subsequently denied Mr. Dada’s petition for review in an unpublished decision. The Supreme Court granted certiorari to consider the following question: “Whether the filing of a motion to reopen removal proceedings automatically tolls the period within which an alien must depart the United States under an order granting voluntary departure.” After oral argument, the Court ordered the parties to brief the following questions: “Whether an alien who has been granted voluntary departure and has filed a timely motion to reopen should be permitted to withdraw the request for voluntary departure prior to the expiration of the departure period.”

Supreme Court Decision:

Writing for the majority, Justice Kennedy began the Court’s analysis by describing voluntary departure as a quid pro quo between the noncitizen and the government. The government benefits because voluntary departure expedites removal and avoids the costs of removal. The noncitizen benefits because he or she avoids extended detention, is allowed to choose when to depart, and can select the country of destination. In addition, he or she avoids an order of removal and its consequences (i.e., bar to inadmissibility), and therefore voluntary departure facilitates the possibility of readmission.

Turning to the government’s argument that a person granted voluntary departure knowingly surrenders the opportunity to seek reopening, the Court held that the statute did not support this interpretation. Neither the motion to reopen statute, INA § 240(c)(7), nor the voluntary departure statute, INA § 240B(b)(2), says anything about motions to reopen for people with voluntary departure. Further, there is no statutory language that would put a person on notice that voluntary departure would bar him or her from reopening his removal proceedings if new facts arose.

Yet, the government’s interpretation “would render the statutory right to seek reopening a nullity in most cases of voluntary departure.” A person granted voluntary departure could file a motion to reopen and depart the United States in accordance with the voluntary departure order, but doing so would result in the motion being deemed withdrawn under 8 C.F.R. § 1003.2(d). Alternatively, a person could remain in the United States to pursue reopening, but doing so would likely result in overstaying the voluntary departure period and making him or her statutorily ineligible for the very relief sought through reopening. See INA § 240B(d)(1) (failure to depart renders person ineligible for adjustment of status, cancellation of removal, and change of status for ten years). The Court concluded, “[i]t is necessary, then, to read the Act to preserve the alien’s right to pursue reopening while respecting the Government’s interest in the quid pro quo of the voluntary departure arrangement.”

Despite rejecting the government’s position, the Court did not agree with Petitioner that the voluntary departure period must be tolled during the pendency of the motion to reopen. The Court noted that voluntary departure is an exchange of benefits and that if the noncitizen is permitted to stay past the statutory period of voluntary departure and yet still allowed to depart voluntarily, “the benefit to the Government – a prompt and costless departure – would be lost.”

Rather, the court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period. “As a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure; or, alternatively, to forgo those benefits and emain in the United States to pursue an administrative motion.” The Court recognized that choosing to pursue this motion to reopen puts the person in the same position as someone with a final order of removal. In adopting this compromise solution, the Court
noted that the government has issued a proposed regulation that provides for automatic termination of the voluntary departure grant upon the filing of a motion to reopen filed during the voluntary departure period. See 72 Fed. Reg. 67674 (Nov. 30, 2007).

At the end of its decision, the Court noted that “a more expeditious solution” to the conflict between motions to reopen and voluntary departure would be to allow noncitizens to pursue motions post departure. However, the regulation barring motions
post departure was not challenged in this case. In addition, earlier, the Court noted that it was not deciding whether the courts of appeals may stay voluntary departure during the pendency of a petition for review.

Justices Stevens, Souter, Ginsburg, and Breyer joined the opinion of the Court. Justice Scalia filed a dissent in which Chief Justice Roberts and Justice Thomas joined. Justice Alito filed a separate dissenting opinion. The dissents would have upheld the Fifth Circuit’s decision denying the petition for review.

Lujan-Armendariz Exception to Mandatory Detention of Alien under INA § 236(c)

Within the jurisdiction of the Ninth Circuit Court of Appeals, there is a narrow exception to the harsh immigration consequences of a narcotics possession for a “first-time simple drug possession” charge.

An alien offender, who is accorded rehabilitative treatment under a state statute and would have been eligible for federal first offender treatment under the provisions of the Federal First Offender Act, had he been prosecuted under federal law is not considered to have a conviction for immigration purposes. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). Mr. Caballero is prima facie eligible under this exception.

“In sum, the protection against deportation that results from the Act’s expungment of first-time simple possession drug offenses has been applied not only with respect to offenses expunged directly under the Act, but also in the case of offenses expunged under state rehabilitative laws, regardless of whether the state law allows for the entry of a judgment of conviction and its later expungment or provides for a deferred adjudication procedure similar to that utilized in the Act.” Id. at 735-56.

The Ninth Circuit later incorporated the four-prong test in BIA’s decision in Matter of Manrique, 1995 WL 314732, for purposes of analyzing eligibility of inclusion within this exception. The Court held that if someone “would have been eligible for first offender treatment under federal law, he would not stand ‘convicted’ for purposes of the immigration laws.” Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

“To qualify for first offender treatment under federal law, a person must show that (1) he has been found guilty of simple possession of a controlled substance, an offense described in section 21 U.S.C. 844; (2) he has not, prior to the commission of such offense, been convicted of violating a federal or state law relating to controlled substances; (3) he has not previously been accorded first offender treatment under any law; and (4) the court has entered an order pursuant to a state rehabilitatiuve statute under which the criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000) citing Matter of Manrique, 1995 WL 314732.

No Deportation: The Smoking Gun on U.S. Involvement in Torture

No Deportation: The Smoking Gun on U.S. Involvement in Torture

The Smoking Gun on U.S. Involvement in Torture

The Department of Justice, Office of the Inspector General just issued a 370 page report on the U.S. involvement in officially sanctioned torture around the world. Now comes the $64 question, "What are we going to do with this information?" Do we just ignore the torture and abuse, thus implicitly condoning its continuation, by doing and saying nothing. Does anyone actually care? Or have we reached the "Bread and Circuses" stage of the American Empire?

I for one, who has argued before this same government that my clients did not engage in the persecution of other, or did not materially aid a terrorist organization, am appalled and embarrassed to call myself an American. Are we as a nation not a signature to the Convention Against Torture Treaty?

ICE Raid in Iowa Today - Press Conference

Stateless Refugee

We just took on an interesting case of an ethnic Palestinian who was born in Saudi Arabia and came to the U.S. as an asylum seeker. His affirmative asylum application was denied, appealed to the BIA where it was denied and then to the Ninth Circuit which denied his petition for review.

Prior counsel had filed a motion to reopen for changed country conditions, pursuant to INA § 240(c)(7)(C)(ii). which the Board denied basing their denial on the fact that the country of Saudi Arabia had not materially changed. We filed a motion for reconsideration and a petition to the Ninth Circuit arguing that the Board erred in commingling the two determinations, the country designated for removal and the asylum testing country. In out client's case. early on the Immigration Judge ruled that Saudi Arabia was the country of removal, even though our client had no right to return as Saudi Arabia denies citizenship to anyone not Saudi, especially Palestinians.

Our contention is that the Board erred as a matter of law in using Saudi Arabia as the asylum testing country, when he would never be removed there and the Occupied Territories should have been used in ruling on the motion to reopen.

Just got back the government's opposition to our motion for reconsideration, a one page argument stating that we have not specified any error of fact of law pursuant to 8 C.F.R. § 1003.2(b), see also Matter of Ramos, 23 I&N Dec. 336, 338 (BIA 2002).

Deportation Nation Video

Ran across this YouTube video depicting the heart wrenching damage that deportation reeks across the Dominican Community in New York.

Yoo's Torture Rationalization

John Yoo, one of the legal scholars hired by UC Berkeley's Boalt Hall to indoctrinate the next generation of lawyers run through their legal mill across the bay, and author of the infamous torture memo used by the criminals in the White House to justify torture and renditions of innocent persons, has had his handy-work exposed to the light of day.

This memo just oozed its way to the surface, thanks to a Freedom of Information Act suit by the ACLU, is the March 14, 2003, memo written by John Yoo, former deputy in the Justice Department’s Office of Legal Counsel (OLC), an acolyte of David Addington, Vice President Cheney’s chief of staff and former Cheney legal counsel.

Contrary to claims that the abuses at Abu Ghraib and other prisons were contrived by subordinates on the ground — i.e., “hicks with sticks” — Yoo’s 81-page memo rationalizes motive and establishes the bar for virtually every human rights violation that has taken place in the name of fighting the global war on terrorism.

It is, in the words of Dan Froomkin, author of the Washington Post’s irreplaceable “White House Briefing” blog, “a historic document… the ultimate expression of Cheney’s belief that anything the president or his designates do — no matter how illegal, barbaric or un-American — is justifiable in the name of national self-defense.

"It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.”It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.” Dan Froomkin, of the Washington Post.

As if this weren’t enough, a footnote in the March 2003 memo reveals a second John Yoo masterpiece that blithely undermines the Constitution; in this case, the Fourth Amendment right of the people to be secure against unreasonable searches and seizures.

Written on October 23, 2001, not even a month and a half after 9/11, this still-classified Justice Department memo, titled, “Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” held that the Fourth Amendment had no bearing on domestic military operations.

The United States Constitution, Article II, Section 4, says: "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." What more evidence do we as citizens of this Republic need?

INA § 212(a)(3)(B) - "Material Support" Bar For Providing Aid to an FTO

A licensed pharmacist in the Philippines held to have provided "material support" to a foreign terrorist organization ("FTO") for selling medicines during the regular course of business because the drugs went to the families and friends of a leftist, communist rebel group, the New People's Army.

The USCIS  Director held that by selling drugs, with a valid prescription, from a licensed pharmacist, this act alone constituted "material support" under INA § 212(a)(3)(B)(iv) as,  "to commit an act that  the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or  other  material benefit, false documentation or identification, weapons (including chemical biological, or radiological weapons), or explosives, or training - - - (a) for the commission of a terrorist activity." 

We made several arguments against this decision, a statutory challenge, "as written," the "as applied." We also challenged the decision on a factual basis, arguing  that our client was operating within her sworn duty and  within the ethics of her profession. But our best  argument was a Constitutional challenge wherein we contended that merely providing medical care is a protected activity under the Geneva Conventions of 1949, as Congress did not explicitly include medicines in their list of prohibited activities and there is no clear Congressional intent  to establish that Congress wanted to override  the Geneva Convention protections. 

The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), states in Article 10, “under no circumstances shall any person be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”

In 1870, the U.S. Supreme Court has held that under the Supremacy Clause of the Constitution, “[t]he effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.” Cherokee Tobacco, 78 U.S. 616, 621 (1870).

Therefore, to determine which law is supreme, the Court has held, “[t]here is, first, a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action. "A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed." Cook v. United States, 288 U.S. 102, 120 (1933). See also Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 690 (1979); Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-413 (1968); Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934). Legislative silence is not sufficient to abrogate a treaty. Weinberger v. Rossi, 456 U.S. 25, 32 (1982).” Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984), (italics added).

The threshold canon of statutory interpretation holds that “[using] the language employed by Congress, . . . we assume that the legislative purpose is expressed by the ordinary meaning of the words used.” Singh-Kaur v. Ashcroft, 385 F.3d 293 (3rd Cir. 2004).

Stay tuned for the  decision from DHS. 

Subpoena from Immigration Judge

How do you subpoena documents in a deportation proceeding?

Spent the better part of the morning looking up the methodology and procedure for obtaining a subpoena duces tecum from an Immigration Judge. 8 C.F.R. § 1003.35(b) provides that "subsequent  to commencement of proceedings, an Immigration Judge shall have the exclusive jurisdiction to  issue subpoenas requiring the attendance of witnesses or  for the production of documents, papers, and other documentary evidence."

So the question becomes, how  do I do this? Our client alleges that he was  the victim of  an international organ theft ring and had his kidney removed at an American hospital for an very wealth and  influential donee. Sounds like a far-flung tale, but what he have previously discovered  is that he  in fact had  a kidney removed  for donation in Cleveland. What we need  is more documentary evidence of  this  procedure, and he need  the IJ to compel the hospital to  produce the documents.

Stay tuned for how this works.

 

My Personal Injury Case - Near Trial

Spent the last week or so preparing for a jury trial in San Mateo County Superior Court in a PI case, automobile negligence. We had the plaintiff and he was rear ended by an 83 year old driver who never saw the traffic stop and never braked before slamming into our client. Clear liability. 

Our guy had cervical fusion surgery, two discs removed and three vertebrae fused together. About  $180k in specials. However, the insurance company filed a motion in limine to reduce amount  to bills actually paid. Defeated the motion, but the judge signaled that she would grant a post-trial motion on the same issue. Got an instant lesson on the demise of the Collateral Source Rule in the State of California - which is a horrible loss for any plaintiff's counsel. 

So we settled the case on the morning of jury selection after spending all that time and energy and money to prepare for trial. I was to be second chair and handle two or three of the witnesses.

Anyway, back to immigration cases today, I just finished  a Writ of Mandamus to compel the State Department to conclude their consular visa processing. Our client has a prior approved immigrant visa since 2005 and is still waiting for the State Department to finish. 

Blast From the Past

I just had to share this vintage footage from my youth, via YouTube. 

I remember seeing Ronnie Montrose at the Keystone Theater in Palo Alto in one of my first concert experiences. He was on fire and gave a great performance. 

Ninth Circuit Holds Theft of a Vehicle is Not Categorically an Aggravated Felony

In United States v. Vidal, (9th Cir. Oct. 10, 2007): the Ninth Circuit Court of Appeals held, 

Theft and unlawful driving or taking of a vehicle in violation of Cal. Vehicle Code § 10851(a) is not categorically an aggravated felony under INA § 101(a)(43)(G) because it may be applied to accessories after the fact. 

Following Plaintiff's guilty plea to violating INA § 276, the district court imposed an eight-level sentence enhancement under USSG § 2L1.2(b)(1)(C), based on Plaintiff's prior conviction for theft and unlawful driving or taking of a vehicle in violation of Cal. Vehicle Code § 10851(a).  USSG § 2L1.2(b)(1)(C)  allows an eight-level enhancement for persons who were "previously deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony." On appeal, the court considered whether a conviction under § 10851(a) constitutes an aggravated felony theft offense within the meaning of USSG § 2L1.2(b)(1)(C) and INA § 101(a)(43)(G).

The Ninth Circuit's defines a generic theft offense as "a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026 (9th Cir. 2005). In Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820 (2007), the Supreme Court held that a "theft offense" under INA §101(a)(43)(G) "includes the crime of 'aiding and abetting' a theft offense" and that therefore, the possibility of conviction as an accomplice under §10851(a) does not render the statute broader than the generic definition. In the present case, the court considered whether the possibility of being convicted under §10851(a) as an accessory after the fact renders the statute categorically broader than the generic theft offense.

The court noted that federal law recognizes accessories after the fact as a category separate from principals and accessories before the fact, which are generally lumped together for purposes of criminal liability. Therefore, the court has held that a prior felony conviction for accessory after the fact to murder for hire does not fall within the generic definition of "crime of violence" for purposes of the career offender enhancement under USSG §4B1.1. United States v. Innie, 7 F.3d 840, 850 (9th Cir. 1993). The distinction is appropriate, given the fact that principals and accessories before the fact have all "played a part in the commission of the crime" while an accessory after the fact "had no part in causing the crime." 2 Wayne R. LaFave, Substantive Criminal law §13.6. To sustain a conviction for accessory after the fact under 18 USC §3, one need only have assisted the principal with knowledge that the offense has already been committed. Therefore, the court concluded, an accessory after the fact to theft cannot be said to have committed all of the elements of a generic theft offense which requires the "criminal intent to deprive the owner of rights and benefits of ownership." Martinez-Perez, 417 F.3d at 1026.

In addition to criminalizing the taking of a vehicle by a principal, Cal. Vehicle Code §10851(a) imposes criminal liability for the "[t]heft and unlawful driving or taking of a vehicle" on "any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing…" of a vehicle. The court explained that California explicitly abrogated the common law distinction between principals and accessories before the fact in 1872. See Cal. Penal Code §971; People v. Collum, 122 Cal. 186, 187 (1898). Like the present §10851(a), California's original theft of a vehicle statute, which was enacted in 1923 similarly extended liability to "[a]ny person who assists in, or is a party or accessory to or an accomplice in, any such stealing." Because the distinction between accessories before the fact and principals was abolished before the enactment of the original vehicle code, the court found that the use of the term "accessory to" in §10851(a) can only refer to accessories after the fact. The court also compared Cal. Penal Code §31, which defines "principals" as "[a]ll persons concerned in the commission of a crime" including aiders and abettors, and Cal. Penal Code §1111, defining "accomplice" as "one who is liable to prosecution for the identical offense charged against the defendant," with Cal. Penal Code §32 which defines "accessory" as one "who, after a felony has been committed, harbors, conceals or aids a principal in such felony…." Therefore, the court noted, California explicitly uses the term "accessory" to refer only to accessories after the fact. The court concluded that the full range of conduct proscribed by §10851(a) does not fall within the scope of the generic definition because whereas the generic definition only encompasses principals, accomplices, and others who incur liability based on pre-offense conduct, §10851(a) also covers accessories after the fact.

The court turned to the modified categorical approach and examined the record of conviction to determine whether Plaintiff's guilty plea to a violation of §10851(a) could necessarily support a conviction for generic theft. The court held that Petitioner's plea pursuant to People v. West, 3 Cal. 3d 595 (Cal. 1970), where the "court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense," did not establish the factual predicate for his conviction. People v. Tuggle, 232 Cal. App. 3d 147, 283 (Ct. App. 1991). Moreover, the record of conviction did not "unequivocally establish that [he] pleaded guilty to all the elements of the generic [theft] offense." Li v. Ashcroft, 389 F.3d 892, 896 n.7 (9th Cir. 2004). The court held that the district court erred in applying the eight-level sentencing enhancement on the basis of Plaintiff's 1994 conviction under Cal. Vehicle Code §18051(a), vacated the sentence and remanded the case for resentencing. Judge Callahan dissented, disagreeing that the word "accessory" in §10851(a) necessarily includes accessory after the fact liability.

Cert Denied

Unfortunately, last Monday the Supreme Court denied my cert petition with a one line denial notice, strictly pro forma. Now the clients, Palestinians are without any legal recourse. 

I remember the son, asking us at our last meeting, if joining the military would halt their deportation. To the best of my knowledge, I believe so, but I cannot confirm it. 

On another note, the July Bar Exam complete statistics were released this week and USF was fourth in the state, beating both Boalt Hall (U.C. Berkeley) and Hastings (U.C. Tenderloin), as well as Santa Clara, McGeorge, Pepperdine, and  Loyola. Only Stanford, USC, and UCLA by only 1% beat USF. The U.C. system is slipping bigtime.