Interesting story published in the San Francisco Bay Guardian Newspaper about a once vacant hotel in Mexicali that has been turned into a way station for Mexican Deportees arriving in Mexico.
The story is called Deportation Hotel, written by David Bacon who is also the author of Illegal People — How Globalization Creates Migration and Criminalizes Immigrants (Beacon Press, 2008) and Communities Without Borders (Cornell University/ILR Press, 2006).
***********************************************************
Last year, almost 400,000 people were deported from the United States. That's the largest wave of deportations in U.S. history, even larger than the notorious Operation Wetback of the 1950s, or the mass deportations during the Great Depression.
Often the Border Patrol empties buses of deportees at the border gates of cities like Mexicali in the middle of the night, pushing people through at a time when nothing is open and no services are available to provide them with food or shelter. Most deportees are young people. They had no money in their pockets coming to the United States, and have nothing when they return to Mexico.
These are invisible people. In the wave of anti-immigrant hysteria gripping the United States, no one asks what happens to the deportees once they're sent back to Mexico.
In Mexicali, a group of deportees and migrant rights activists have taken over an old abandoned hotel, formerly the Hotel Centenario (or Hundred Year Hotel). They've renamed it the Hotel Migrante, or the Migrant Hotel. Just a block from the border crossing, it gives people deported from the United States a place to sleep and food to eat for a few days before they go home or try to cross the border again. The government gives it nothing. Border Angels, the U.S.-based immigrant rights group, provides what little support the hotel gets. A cooperative of deportees cooks the food and works on fixing the building.
During the winter, about 50 or 60 people live in the hotel at any given time, while five or six more knock on its doors every night. Last summer, at the peak of the season when people try to cross the border looking for work, the number of deportees seeking shelter at the hotel rose to more than 300. "A lot of people get hurt trying to walk through the mountains around Mexicali," says Benjamin Campista, a cooperative member. "It's very cold there now, and when they get caught and deported, many are just wearing a T-shirt and tennis shoes. Some get sick — those we take to the hospital. The rest stay here a few days until their family can send them money to get home, or until they decide to try to cross again."
Border Angels and the hotel collective agreed to pay the landlord 11,000 pesos a month in rent (about $900), but they're already six months behind. Every day hotel residents go out to the long lines of people waiting to cross through the garita (the legal border crossing). They ask for money to support the hotel, and each resident gets to keep half of what he or she is given. The other half goes mostly for food for the evening meal. Deportees have plenty of time to explain their situation to people standing in line, since on a recent afternoon the wait to get through the garita was two hours.
Every day Campista hears deportees tell their stories. "Three brothers stayed here last summer, before they tried to cross. A month later, one came back. I saw him on the roof, crying as he looked at the mountains where the other two had died from the heat. A woman came here with her two-month-old baby. Her husband had died in the desert too."
"We're human beings!" Campista exclaims. "We're just going north to try to work. Why should we die for this? Our governments should end these violations of human rights. Then our hotel wouldn't even be necessary."
Thursday, December 30, 2010
Wednesday, December 15, 2010
Two-Year Foreign Residency Requirement on a J Waiver
Our office just took on a case involving an alien from Mali - came to the US on a J visa as a Fulbright Scholar. He married a USC and had his I-612 hardship waiver petition denied by the State Department.
I've been researching the current political situation in Mali and the Al-Qaeda insurrection in the north of the country, in and around Timbuktu. This is a hot spot of violence and both the US and UK have imposed travel bans to that country.
I'm cautiously optimistic that we can help this fellow, in spite of the prohibition imposed by the State Department of granting waivers for someone who has received financial support from the US government. We should have the waiver package ready to file in the next 30-45 days.
I've been researching the current political situation in Mali and the Al-Qaeda insurrection in the north of the country, in and around Timbuktu. This is a hot spot of violence and both the US and UK have imposed travel bans to that country.
I'm cautiously optimistic that we can help this fellow, in spite of the prohibition imposed by the State Department of granting waivers for someone who has received financial support from the US government. We should have the waiver package ready to file in the next 30-45 days.
Monday, December 6, 2010
Almost Half of all Graduate Students in the Sciences in the U.S. are now Foreigners
I was reading about the eminent decline of the American Empire and found this quote very prescient about our current economic malaise.
Economic Decline: Present Situation
Today, three main threats exist to America’s dominant position in the global economy: loss of economic clout thanks to a shrinking share of world trade, the decline of American technological innovation, and the end of the dollar's privileged status as the global reserve currency.
By 2008, the United States had already fallen to number three in global merchandise exports, with just 11 percent of them compared to 12 percent for China and 16 percent for the European Union. There is no reason to believe that this trend will reverse itself.
Similarly, American leadership in technological innovation is on the wane. In 2008, the U.S. was still number two behind Japan in worldwide patent applications with 232,000, but China was closing fast at 195,000, thanks to a blistering 400 percent increase since 2000. A harbinger of further decline: In 2009 the U.S. hit rock bottom in ranking among the 40 nations surveyed by the Information Technology & Innovation Foundation when it came to “change” in “global innovation-based competitiveness” during the previous decade. Adding substance to these statistics, in October China's Defense Ministry unveiled the world's fastest supercomputer, the Tianhe-1A, so powerful, said one U.S. expert, that it “blows away the existing No. 1 machine” in America.
Add to this clear evidence that the U.S. education system, that source of future scientists and innovators, has been falling behind its competitors. After leading the world for decades in 25 to 34 year olds with university degrees, the country sank to 12th place in 2010. The World Economic Forum ranked the United States at a mediocre 52nd among 139 nations in the quality of its university math and science instruction in 2010. Nearly half of all graduate students in the sciences in the U.S. are now foreigners, most of whom will be heading home, not staying here as once would have happened. By 2025, in other words, the United States is likely to face a critical shortage of talented scientists.
Such negative trends are encouraging increasingly sharp criticism of the dollar's role as the world’s reserve currency. “Other countries are no longer willing to buy into the idea that the U.S. knows best on economic policy,” observed Kenneth S. Rogoff, a former chief economist at the International Monetary Fund. In mid-2009, with the world's central banks holding an astronomical $4 trillion in U.S. Treasury notes, Russian president Dimitri Medvedev insisted that it was time to end “the artificially maintained unipolar system” based on “one formerly strong reserve currency.”
Simultaneously, China's central bank governor suggested that the future might lie with a global reserve currency “disconnected from individual nations” (that is, the U.S. dollar). Take these as signposts of a world to come, and of a possible attempt, as economist Michael Hudson has argued, “to hasten the bankruptcy of the U.S. financial-military world order.”
From Alfred W. McCoy: Professor of History at the University of Wisconsin-Madison
Economic Decline: Present Situation
Today, three main threats exist to America’s dominant position in the global economy: loss of economic clout thanks to a shrinking share of world trade, the decline of American technological innovation, and the end of the dollar's privileged status as the global reserve currency.
By 2008, the United States had already fallen to number three in global merchandise exports, with just 11 percent of them compared to 12 percent for China and 16 percent for the European Union. There is no reason to believe that this trend will reverse itself.
Similarly, American leadership in technological innovation is on the wane. In 2008, the U.S. was still number two behind Japan in worldwide patent applications with 232,000, but China was closing fast at 195,000, thanks to a blistering 400 percent increase since 2000. A harbinger of further decline: In 2009 the U.S. hit rock bottom in ranking among the 40 nations surveyed by the Information Technology & Innovation Foundation when it came to “change” in “global innovation-based competitiveness” during the previous decade. Adding substance to these statistics, in October China's Defense Ministry unveiled the world's fastest supercomputer, the Tianhe-1A, so powerful, said one U.S. expert, that it “blows away the existing No. 1 machine” in America.
Add to this clear evidence that the U.S. education system, that source of future scientists and innovators, has been falling behind its competitors. After leading the world for decades in 25 to 34 year olds with university degrees, the country sank to 12th place in 2010. The World Economic Forum ranked the United States at a mediocre 52nd among 139 nations in the quality of its university math and science instruction in 2010. Nearly half of all graduate students in the sciences in the U.S. are now foreigners, most of whom will be heading home, not staying here as once would have happened. By 2025, in other words, the United States is likely to face a critical shortage of talented scientists.
Such negative trends are encouraging increasingly sharp criticism of the dollar's role as the world’s reserve currency. “Other countries are no longer willing to buy into the idea that the U.S. knows best on economic policy,” observed Kenneth S. Rogoff, a former chief economist at the International Monetary Fund. In mid-2009, with the world's central banks holding an astronomical $4 trillion in U.S. Treasury notes, Russian president Dimitri Medvedev insisted that it was time to end “the artificially maintained unipolar system” based on “one formerly strong reserve currency.”
Simultaneously, China's central bank governor suggested that the future might lie with a global reserve currency “disconnected from individual nations” (that is, the U.S. dollar). Take these as signposts of a world to come, and of a possible attempt, as economist Michael Hudson has argued, “to hasten the bankruptcy of the U.S. financial-military world order.”
From Alfred W. McCoy: Professor of History at the University of Wisconsin-Madison
Wednesday, December 1, 2010
ICE Seizes Domain Names of Alleged Copyright Infringers
Federal authorities have shut down more than 70 websites in one the broadest actions yet against companies the government suspects of selling counterfeit or pirated products.
Visitors to the affected sites--which offer such diverse goods as scarves, golfing gear and rap music--are greeted with a notice stating their domain names have been seized by U.S. Immigration and Customs Enforcement. The notice cites penalties for willful copyright infringement and trafficking in counterfeit goods.
The latest moves were disclosed earlier by online publications that include TorrentFreak, which on Thursday reported that ICE agents had raided facilities operated by a file-sharing site called RapGodFathers that is dedicated to rap and hip-hop music. Other music-related sites affected include Torrent-Finder, one of many sites that focuses on files distributed through a technology pioneered by BitTorrent Inc.
See the takedown placeholder image ICE put up on one of the seized domains.
Visitors to the affected sites--which offer such diverse goods as scarves, golfing gear and rap music--are greeted with a notice stating their domain names have been seized by U.S. Immigration and Customs Enforcement. The notice cites penalties for willful copyright infringement and trafficking in counterfeit goods.
The latest moves were disclosed earlier by online publications that include TorrentFreak, which on Thursday reported that ICE agents had raided facilities operated by a file-sharing site called RapGodFathers that is dedicated to rap and hip-hop music. Other music-related sites affected include Torrent-Finder, one of many sites that focuses on files distributed through a technology pioneered by BitTorrent Inc.
See the takedown placeholder image ICE put up on one of the seized domains.
Thursday, November 18, 2010
New Walsh Act Case from the USCIS Vermont Service Center
I must apologize for not posting in the last few weeks, but I had a civil trial set to begin on Nov. 29th. I was finally able to settle the case yesterday at the Mandatory Settlement Conference. Interesting case where our client, a cab driver, was punched in the face by a drunken fare on Halloween Morning after being picked up in a bar.
Anyway, just sent out a response to an RFE and NOID (Request for Evidence & Notice of Intent to Deny) from an I-130 petition, where the petitioner had a criminal conviction subject to the harsh penalties of the Walsh Act.
This case is slightly different from the other three cases our office has handled in that here the beneficiary was a minor child living outside the U.S. The petition was being adjudicated by the Vermont Service Center. I feel very optimistic about the case because we have good facts on our side.
Anyway, just sent out a response to an RFE and NOID (Request for Evidence & Notice of Intent to Deny) from an I-130 petition, where the petitioner had a criminal conviction subject to the harsh penalties of the Walsh Act.
This case is slightly different from the other three cases our office has handled in that here the beneficiary was a minor child living outside the U.S. The petition was being adjudicated by the Vermont Service Center. I feel very optimistic about the case because we have good facts on our side.
Wednesday, November 3, 2010
One Word on the Election Results of November 2, 2010
I think this quote from Franklin Delano Roosevelt is apropos at this moment:
"The real truth of the matter is, as you and I know, that a financial element in the large centers has owned the government of the U.S. since the days of Andrew Jackson."
-- Franklin D. Roosevelt (1882-1945), 32nd US President
November 21, 1933
"The real truth of the matter is, as you and I know, that a financial element in the large centers has owned the government of the U.S. since the days of Andrew Jackson."
-- Franklin D. Roosevelt (1882-1945), 32nd US President
November 21, 1933
Friday, October 29, 2010
ICE Agents Raid The Nashville Apartments - Another INS § 287(g) "Success Story"
AS reported by the Nashville Scene:
On the sidewalk in front of The Clairmont Apartments, representatives from the American Civil Liberties Union and the Tennessee Immigrant and Refugee Rights Coalition denounced an Oct. 20 raid of the southwest Nashville complex by Immigration and Customs Enforcement agents that is said to have resulted in the detention of more than 20 residents who were allegedly undocumented.
Immigrant representatives and witnesses say agents broke into the apartments and arrested men and women at gunpoint, forcing them to leave their children behind.
"They came and took my friends and their family members — people who take care of me after school and look out for me every day," said a 13-year-old boy whose name is being withheld.
Immigrant representatives know of no criminal charges filed against the people who agents rounded up, and they claim that warrants were not presented before agents entered the apartments by force. One source says they were taken to a detention facility in Ft. Payne, Ala., despite the fact that Davidson County has a facility that participates in 287 (g), a federal program that allows local law enforcement to screen and detain undocumented immigrants.
Leading up to the raid, advocates say conditions at the department had deteriorated, and that absentee management failed to address issues such as insect infestation, a lack of hot water, unusable bathrooms and broken windows.
Since taking office, the president has signaled an intent to move away from home and workplace raids, placing the onus on employers to ensure workers are documented. Both candidates for Tennessee governor have expressed similar sentiments about employer accountability.
This isn't the first time Hispanics have had trouble at the Clairmont Apartments. In 1999, a local investigation discovered a private security company was beating, harassing and often extorting Hispanic residents of the Clairmont, then known as Ivy Wood.
On the sidewalk in front of The Clairmont Apartments, representatives from the American Civil Liberties Union and the Tennessee Immigrant and Refugee Rights Coalition denounced an Oct. 20 raid of the southwest Nashville complex by Immigration and Customs Enforcement agents that is said to have resulted in the detention of more than 20 residents who were allegedly undocumented.
Immigrant representatives and witnesses say agents broke into the apartments and arrested men and women at gunpoint, forcing them to leave their children behind.
"They came and took my friends and their family members — people who take care of me after school and look out for me every day," said a 13-year-old boy whose name is being withheld.
Immigrant representatives know of no criminal charges filed against the people who agents rounded up, and they claim that warrants were not presented before agents entered the apartments by force. One source says they were taken to a detention facility in Ft. Payne, Ala., despite the fact that Davidson County has a facility that participates in 287 (g), a federal program that allows local law enforcement to screen and detain undocumented immigrants.
Leading up to the raid, advocates say conditions at the department had deteriorated, and that absentee management failed to address issues such as insect infestation, a lack of hot water, unusable bathrooms and broken windows.
Since taking office, the president has signaled an intent to move away from home and workplace raids, placing the onus on employers to ensure workers are documented. Both candidates for Tennessee governor have expressed similar sentiments about employer accountability.
This isn't the first time Hispanics have had trouble at the Clairmont Apartments. In 1999, a local investigation discovered a private security company was beating, harassing and often extorting Hispanic residents of the Clairmont, then known as Ivy Wood.
Friday, October 22, 2010
THOUSANDS OF REFUGEES DENIED PROTECTION DUE TO ASYLUM FILING DEADLINE
Pennsylvania State University just released a new report criticing the Board of Immigration Appeals (BIA) for violating refugee international law with their harsh imposition of the one-year bar.
One in five refugees seeking protection in the United States is denied asylum because they do not apply within one year of their arrival and miss the 12-month deadline imposed by Congress, according to a recently concluded study of the BIA asylum decisions.
“The one-year deadline results in the denial of asylum, a basic human rights protection, because of a technicality,” said Mary Meg McCarthy, executive director, Heartland Alliance’s National Immigrant Justice Center. “The BIA is making a bad law worse by arbitrarily denying exceptions to the deadline and putting the lives of men, women, and children at risk.”
The study’s conclusions are detailed in a new report, The One-Year Asylum Deadline and the BIA: No Protection, No Process, a collaboration among Heartland Alliance’s National Immigration Justice Center’s National Asylum Partnership on Sexual Minorities, Human Rights First, and Penn State Law’s Center for Immigrants’ Rights. The report is the first to examine how the asylum deadline is handled by the BIA, the highest level of administrative appeal available to asylum seekers. The study analyzed 3,472 BIA asylum cases decided in January from 2005 to 2008.
Enacted in 1996, the one-year filing deadline requires asylum seekers to establish by “clear and convincing” evidence that their asylum applications were filed within one year of their arrival in the United States, or demonstrate that their applications were delayed due to changed or extraordinary circumstances. Asylum seekers who cannot meet these requirements, even if they are refugees with well-founded fears of persecution, are barred from asylum protection and face deportation to the countries from which they fled.
Among the report’s key findings are the following:
• One out of five asylum cases was denied because it was filed after the deadline.
• In 46 percent of the 662 filing deadline denials, the BIA did not provide any reason for the denial of the asylum application other than that it was submitted after the filing deadline. Of the 662 filing deadline denials, the BIA did not recognize any exceptions to the filing deadline.
• When an immigration judge granted an exception to the one-year deadline, the BIA affirmed that decision 75 percent of the time. By contrast, when an immigration judge denied asylum based on the one-year deadline, the BIA affirmed the decision 96 percent of the time.
“Our study found that the one-year deadline serves no public policy purpose other than to bar legitimate refugees from obtaining the protection they deserve under international and U.S. law,” said Shoba Sivaprasad Wadhia, clinical professor of law, Penn State Law’s Center for Immigrants’ Rights. “It is not being applied in the way Congress intended and should be repealed.”
Only legislative repeal of the deadline will ensure that refugees are not denied protection based on a technicality. The U.S. Attorney General, who supervises the BIA, also should take a number of steps outlined in the report – including to revise regulations governing exceptions to the deadline and require adjudicators to consider more circumstances that justify delayed filings.
“This study confirms that the filing deadline is leading the United States to deny asylum to credible refugees who are likely to face persecution in their home countries,” said Eleanor Acer, director of Human Rights First’s Refugee Protection Program. “Not only is the deadline inconsistent with this country’s commitment to protecting the persecuted, but it also wastes already limited government resources litigating a technicality. Congress should simply eliminate the asylum filing deadline.”
THE ONE-YEAR ASYLUM DEADLINE AND THE BIA: NO PROTECTION, NO PROCESS -
One in five refugees seeking protection in the United States is denied asylum because they do not apply within one year of their arrival and miss the 12-month deadline imposed by Congress, according to a recently concluded study of the BIA asylum decisions.
“The one-year deadline results in the denial of asylum, a basic human rights protection, because of a technicality,” said Mary Meg McCarthy, executive director, Heartland Alliance’s National Immigrant Justice Center. “The BIA is making a bad law worse by arbitrarily denying exceptions to the deadline and putting the lives of men, women, and children at risk.”
The study’s conclusions are detailed in a new report, The One-Year Asylum Deadline and the BIA: No Protection, No Process, a collaboration among Heartland Alliance’s National Immigration Justice Center’s National Asylum Partnership on Sexual Minorities, Human Rights First, and Penn State Law’s Center for Immigrants’ Rights. The report is the first to examine how the asylum deadline is handled by the BIA, the highest level of administrative appeal available to asylum seekers. The study analyzed 3,472 BIA asylum cases decided in January from 2005 to 2008.
Enacted in 1996, the one-year filing deadline requires asylum seekers to establish by “clear and convincing” evidence that their asylum applications were filed within one year of their arrival in the United States, or demonstrate that their applications were delayed due to changed or extraordinary circumstances. Asylum seekers who cannot meet these requirements, even if they are refugees with well-founded fears of persecution, are barred from asylum protection and face deportation to the countries from which they fled.
Among the report’s key findings are the following:
• One out of five asylum cases was denied because it was filed after the deadline.
• In 46 percent of the 662 filing deadline denials, the BIA did not provide any reason for the denial of the asylum application other than that it was submitted after the filing deadline. Of the 662 filing deadline denials, the BIA did not recognize any exceptions to the filing deadline.
• When an immigration judge granted an exception to the one-year deadline, the BIA affirmed that decision 75 percent of the time. By contrast, when an immigration judge denied asylum based on the one-year deadline, the BIA affirmed the decision 96 percent of the time.
“Our study found that the one-year deadline serves no public policy purpose other than to bar legitimate refugees from obtaining the protection they deserve under international and U.S. law,” said Shoba Sivaprasad Wadhia, clinical professor of law, Penn State Law’s Center for Immigrants’ Rights. “It is not being applied in the way Congress intended and should be repealed.”
Recommendations
Only legislative repeal of the deadline will ensure that refugees are not denied protection based on a technicality. The U.S. Attorney General, who supervises the BIA, also should take a number of steps outlined in the report – including to revise regulations governing exceptions to the deadline and require adjudicators to consider more circumstances that justify delayed filings.
“This study confirms that the filing deadline is leading the United States to deny asylum to credible refugees who are likely to face persecution in their home countries,” said Eleanor Acer, director of Human Rights First’s Refugee Protection Program. “Not only is the deadline inconsistent with this country’s commitment to protecting the persecuted, but it also wastes already limited government resources litigating a technicality. Congress should simply eliminate the asylum filing deadline.”
THE ONE-YEAR ASYLUM DEADLINE AND THE BIA: NO PROTECTION, NO PROCESS -
Friday, October 8, 2010
How does ICE choose an employer for an I-9 Audit?
How does ICE choose an employer for an I-9 Audit?
This is a frequently asked question from employers these days, and the answer is far from clear. In general, ICE conducts I-9 investigations of employers based upon credible leads, which may consist of complaints from disgruntled employees, tips from the public or cases having national security or public safety implications (e.g., employers at airports have been known to be targets). In addition, ICE may also initiate I-9 audits based upon referrals from other government agencies that may have investigated an employer in an unrelated matter. For example, there is a recent article posted on SHRM’s website where attorneys Mary Pivec and Kevin Lashus discuss how the latest round of I-9 investigations may have stemmed (in part) from intelligence gathered by the Department of Labor’s Wage and Hour Division. Lastly, ICE has also been known to target certain employers, most notably those in construction, hospitality, retail and other industries with high turn-over and frequent reports of undocumented workers.
Latest Statistics
Penalties from worksite enforcement inspections have increased five-fold in Fiscal Year 2010 due in large part to increased employer scrutiny and several waves of I-9 audits. While the total number of fines and penalties is a constantly moving target, here are the latest statistics from ICE:
ICE criminally charged a record-breaking 180 owners, employers, managers and/or supervisors — up from 135 in FY 2008 and 114 in FY 2009.
ICE conducted more than 2,200 I-9 audits — up from more than 1,400 in FY 2009.
Since January 2009, ICE has imposed approximately $50 million in financial sanctions.
ICE debarred 97 business and 49 individuals in FY 2010, up from 30 and 53, respectively, in FY 2009.
This is a frequently asked question from employers these days, and the answer is far from clear. In general, ICE conducts I-9 investigations of employers based upon credible leads, which may consist of complaints from disgruntled employees, tips from the public or cases having national security or public safety implications (e.g., employers at airports have been known to be targets). In addition, ICE may also initiate I-9 audits based upon referrals from other government agencies that may have investigated an employer in an unrelated matter. For example, there is a recent article posted on SHRM’s website where attorneys Mary Pivec and Kevin Lashus discuss how the latest round of I-9 investigations may have stemmed (in part) from intelligence gathered by the Department of Labor’s Wage and Hour Division. Lastly, ICE has also been known to target certain employers, most notably those in construction, hospitality, retail and other industries with high turn-over and frequent reports of undocumented workers.
Latest Statistics
Penalties from worksite enforcement inspections have increased five-fold in Fiscal Year 2010 due in large part to increased employer scrutiny and several waves of I-9 audits. While the total number of fines and penalties is a constantly moving target, here are the latest statistics from ICE:
Wednesday, October 6, 2010
Just Released - DHS Office of Inspector General - Annual Performance Plan for 2011
DHS OIG has just released the Annual Performance Plan For Fiscal Year 2011. Among the highlights of this report is the discussion of the new Comprehensive National Cybersecurity Initiative (CNCI) Here is the full report.
DHS Office of Inspector General Report - Fiscal Year 2011
DHS Office of Inspector General Report - Fiscal Year 2011
Wednesday, September 29, 2010
Board of Immigration Appeals' Post-Departure Bar Rule
I am filing a response to the Ninth Circuit's Order to Show Cause (OSC) issued against one of our Petitions For Review. In doing the legal research about the issues, I ran across the BIA's Post-Departure Bar Rule and their precedent decision in Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008) which interprets 8 C.F.R. § 1003.2(d) and 8 C.F.R. § 1003.23(b)(1) as divesting the agency of jurisdiction once the alien is outside of the United States. This holds true even if the alien is forcibly removed by the government itself.
The application of this regulation in such a situation creates a topsy-turvy Alice-in-Wonderland world where you can have a statutory right to file either an appeal (8 C.F.R. § 1003.23(b)(1)) or an motion to reopen (8 C.F.R. § 1003.2(d)) and before the BIA has to rule on the appeal or motion, they can deny a stay of removal (interlocutory decision) and then the government can forcibly remove the alien, thus stripping the BIA of jurisdiction to rule on the merits of the appeal or motion.
Incredibly, this self-serving application of an agency promulgated rule has created a circuit split in the federal appellate courts.
Our client has filed a motion to reopen based upon the ineffectiveness of his prior counsel. Under Compean II he has a legal right to do so. However, he is presently in ICE custody and the BIA denied our Emergency Motion for Stay. Thus, necessitating the Petition for Review to the Ninth Circuit.
However, there is no "Final Order" for the court to review under INA § 242(a)(1), hence the OSC from the Court.
My argument is twofold:
First, under INA § 242(a)(2)(D), the court has appellate jurisdiction to review questions of law or constitutional matter. In this case, the BIA's Post-Departure Bar Rule violates my client's procedural due process right to have a decision rendered on his lawfully raised motion to reopen.
Second, under the jurisdiction stripping Congressional REAL ID Act of 2005, which eliminated habeas review from the district courts, the only way habeas review could be eliminated is if an "adequate and effective" substitute were available, otherwise the Suspension Clause of the Constitution would be violated. Therefore, a claim that could have been raised under traditional habeas review can be raised under a Petition for Review to the appellate court.
The application of this regulation in such a situation creates a topsy-turvy Alice-in-Wonderland world where you can have a statutory right to file either an appeal (8 C.F.R. § 1003.23(b)(1)) or an motion to reopen (8 C.F.R. § 1003.2(d)) and before the BIA has to rule on the appeal or motion, they can deny a stay of removal (interlocutory decision) and then the government can forcibly remove the alien, thus stripping the BIA of jurisdiction to rule on the merits of the appeal or motion.
Incredibly, this self-serving application of an agency promulgated rule has created a circuit split in the federal appellate courts.
Our client has filed a motion to reopen based upon the ineffectiveness of his prior counsel. Under Compean II he has a legal right to do so. However, he is presently in ICE custody and the BIA denied our Emergency Motion for Stay. Thus, necessitating the Petition for Review to the Ninth Circuit.
However, there is no "Final Order" for the court to review under INA § 242(a)(1), hence the OSC from the Court.
My argument is twofold:
First, under INA § 242(a)(2)(D), the court has appellate jurisdiction to review questions of law or constitutional matter. In this case, the BIA's Post-Departure Bar Rule violates my client's procedural due process right to have a decision rendered on his lawfully raised motion to reopen.
Second, under the jurisdiction stripping Congressional REAL ID Act of 2005, which eliminated habeas review from the district courts, the only way habeas review could be eliminated is if an "adequate and effective" substitute were available, otherwise the Suspension Clause of the Constitution would be violated. Therefore, a claim that could have been raised under traditional habeas review can be raised under a Petition for Review to the appellate court.
Friday, September 17, 2010
Happy Ending
I love these stories, ones that have a happy ending.
In July of 2008 - I receive a frantic phone call from someone telling me about an ICE raid at his parent's home early in the morning. ICE Officers were executing an arrest warrant on his sister, a longtime LPR, who had been order removed, in absentia, in 2003. To make matters even worse, she was considered an aggravated felon, under immigration law, for a theft conviction in Alabama she plead to in 1995.
This is the posture that the case was presented to our office - (1) Final Order of Deportation; (2) Alien in ICE custody; and (3) No possibility of release as an aggravated felon.
The brother paid our retainer fee and we went to work.
First, we would need to get her deportation proceeding reopened - starting investigating the attorney she hired in Alabama. He was disbarred for cocaine and alcohol addition (plus stealing money from his clients for his habits). Filed a motion to reopen and rescind the removal order - which stayed the deportation until the Immigration Court ruled on the motion.
Another of the brothers, who still lived in Alabama, hired a local criminal defense attorney to reduce the criminal sanction under the threshold for an aggravated felony. Our client had been caught shoplifting a $25 item, plead to a class three misdemeanor and was sentenced to a one-year suspended sentence. She never spent a day in jail. However, the one-year sentence (even suspended) was the magic number for immigration to consider this an aggravated felony. In California, she would have been convicted of a Petty Theft, but this was Alabama. Under a Writ of Coram Nobis - the DA and the local Judge agreed to reduce the suspended sentence, nunc pro tunc, to 11 months and now our client was eligible to be released from ICE custody.
The Immigration Court in Atlanta granted our motion to reopen and rescind the removal order based on the ineffective assistance of counsel by the disbarred former attorney. We moved to change venue to San Francisco Immigration Court.
At the Individual Merits Hearing, we submitted the I-191, seeking relief under INA § 212(c) waiver, which the IJ granted.
Next we filed an N-400 Naturalization Application, which was recently granted and next Wednesday she will be sworn in as a U.S. citizen.
We took a criminal alien, under a final order of deportation, found to be an aggravated felon, and turned her into a U.S. citizen.
I love these stories.
In July of 2008 - I receive a frantic phone call from someone telling me about an ICE raid at his parent's home early in the morning. ICE Officers were executing an arrest warrant on his sister, a longtime LPR, who had been order removed, in absentia, in 2003. To make matters even worse, she was considered an aggravated felon, under immigration law, for a theft conviction in Alabama she plead to in 1995.
This is the posture that the case was presented to our office - (1) Final Order of Deportation; (2) Alien in ICE custody; and (3) No possibility of release as an aggravated felon.
The brother paid our retainer fee and we went to work.
First, we would need to get her deportation proceeding reopened - starting investigating the attorney she hired in Alabama. He was disbarred for cocaine and alcohol addition (plus stealing money from his clients for his habits). Filed a motion to reopen and rescind the removal order - which stayed the deportation until the Immigration Court ruled on the motion.
Another of the brothers, who still lived in Alabama, hired a local criminal defense attorney to reduce the criminal sanction under the threshold for an aggravated felony. Our client had been caught shoplifting a $25 item, plead to a class three misdemeanor and was sentenced to a one-year suspended sentence. She never spent a day in jail. However, the one-year sentence (even suspended) was the magic number for immigration to consider this an aggravated felony. In California, she would have been convicted of a Petty Theft, but this was Alabama. Under a Writ of Coram Nobis - the DA and the local Judge agreed to reduce the suspended sentence, nunc pro tunc, to 11 months and now our client was eligible to be released from ICE custody.
The Immigration Court in Atlanta granted our motion to reopen and rescind the removal order based on the ineffective assistance of counsel by the disbarred former attorney. We moved to change venue to San Francisco Immigration Court.
At the Individual Merits Hearing, we submitted the I-191, seeking relief under INA § 212(c) waiver, which the IJ granted.
Next we filed an N-400 Naturalization Application, which was recently granted and next Wednesday she will be sworn in as a U.S. citizen.
We took a criminal alien, under a final order of deportation, found to be an aggravated felon, and turned her into a U.S. citizen.
I love these stories.
Thursday, September 9, 2010
New Ninth Circuit Petition - With a Twist
We filed a Petition for Review in the Ninth Circuit Court of Appeals for a client who was facing imminent deportation based upon a final removal order in 2005.
The IJ's denial of his mother's asylum claim was finally exhausted in April of 2009, when the Ninth Circuit denied their direct case appeal.
Our office filed a Motion to Reopen with the Board of Immigration Appeals, under Compean II, Matter of Compean, 225 I&N Dec. 1 (A.G. 2009). and since one of our clients was in immigration custody, we also filed an emergency motion for a stay.
Our client was subsequently moved to Tacoma, Washington, where ICE was staging Asia Deportees for a government charter flight back to Asia which left on August 31, 2010. See the ICE Press Release on this charter flight.
The BIA faxed their decision denying our motion to stay late on August 30, 2010, leaving very little time for us to act. We filed with the Ninth Circuit for an emergency stay that evening, and now I have to file our Memorandum of Points and Authorities on why the stay should be made permanent.
I have struggled with the legal issues presented in this case and I have argued that because the BIA has decided in Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008) that they lose jurisdiction over a motion to reopen if the alien has departed from the U.S., the so called "departure bar rule" under 8 C.F.R. § 1003.2(d), they therefore, constructively denied our motion to reopen and thus, the circuit court has jurisdiction over a final agency decision.
I also argued that this constructive denial of our client's motion to reopen, by virtue of denying his motion for stay, the BIA has violated his Fifth Amendment Right to Due Process of Law to have his motion properly adjudicated under Compean II
Let you know how this flies with the Law & Motion Department.
The IJ's denial of his mother's asylum claim was finally exhausted in April of 2009, when the Ninth Circuit denied their direct case appeal.
Our office filed a Motion to Reopen with the Board of Immigration Appeals, under Compean II, Matter of Compean, 225 I&N Dec. 1 (A.G. 2009). and since one of our clients was in immigration custody, we also filed an emergency motion for a stay.
Our client was subsequently moved to Tacoma, Washington, where ICE was staging Asia Deportees for a government charter flight back to Asia which left on August 31, 2010. See the ICE Press Release on this charter flight.
The BIA faxed their decision denying our motion to stay late on August 30, 2010, leaving very little time for us to act. We filed with the Ninth Circuit for an emergency stay that evening, and now I have to file our Memorandum of Points and Authorities on why the stay should be made permanent.
I have struggled with the legal issues presented in this case and I have argued that because the BIA has decided in Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008) that they lose jurisdiction over a motion to reopen if the alien has departed from the U.S., the so called "departure bar rule" under 8 C.F.R. § 1003.2(d), they therefore, constructively denied our motion to reopen and thus, the circuit court has jurisdiction over a final agency decision.
I also argued that this constructive denial of our client's motion to reopen, by virtue of denying his motion for stay, the BIA has violated his Fifth Amendment Right to Due Process of Law to have his motion properly adjudicated under Compean II
Let you know how this flies with the Law & Motion Department.
Wednesday, September 1, 2010
Win in One of Our Cases Where Aslyee Was Held Inadmissible For Providing "Material Support" to a FTO Under INA § 212(a)(3)(B)
Our client was held inadmissible under sub-section 212(a)(3)(B) of the INA; 8 U.S.C. §1182(a)(3)(B), for providing “material support,” in the sole form of medicines, to a foreign terrorist organization (“FTO”), specifically the New Peoples Army (“NPA”) of the Philippines.
USCIS had used the declaration she previously provided in support of her I-589 Asylum Application. Years ago, she was granted asylee status based upon her fear of persecution by either the paramilitary troops fighting the NPA, or by the NPA guerillas as she was caught in the middle of this conflict.
At the time she filed her I-485 adjustment application, USCIS denied her application on the basis that she was inadmissible under the material support clause. We filed a motion to reopen / reconsider based principally upon the Geneva Conventions, which hold that providing medicines, even to foreign combatants, is explicitly protected and she was only providing medicines to the affected civilian populations, (of which the government concluded it also collaterally aided the NPA).
Our motion languished for several years without any decision on the part of USCIS, until we submitted recently a status update request based upon the recent SCOTUS decision in Holder v. Humanitarian Law Project, which explicitly held that providing medicine did not fall within the criminal statute and was a protected activity. Therefore, we argued that it could not form a basis for inadmissiblity.
Yesterday, we received the notice from USCIS that they had reopened the application and had granted her adjustment of status. Big win, major win for our team.
USCIS had used the declaration she previously provided in support of her I-589 Asylum Application. Years ago, she was granted asylee status based upon her fear of persecution by either the paramilitary troops fighting the NPA, or by the NPA guerillas as she was caught in the middle of this conflict.
At the time she filed her I-485 adjustment application, USCIS denied her application on the basis that she was inadmissible under the material support clause. We filed a motion to reopen / reconsider based principally upon the Geneva Conventions, which hold that providing medicines, even to foreign combatants, is explicitly protected and she was only providing medicines to the affected civilian populations, (of which the government concluded it also collaterally aided the NPA).
Our motion languished for several years without any decision on the part of USCIS, until we submitted recently a status update request based upon the recent SCOTUS decision in Holder v. Humanitarian Law Project, which explicitly held that providing medicine did not fall within the criminal statute and was a protected activity. Therefore, we argued that it could not form a basis for inadmissiblity.
Yesterday, we received the notice from USCIS that they had reopened the application and had granted her adjustment of status. Big win, major win for our team.
Friday, August 27, 2010
New I-290B Appeal for Denied I-601 Waiver
Had a very busy last few weeks, as we took on many new cases. One in particular was interesting, a Chinese national had been previously granted asylum based upon persecution as a practicioner of Falun Gong.
As a asylee, she filed her I-485 adjustment of status petition many years ago, which USCIS left unadjudicated.
Then about 2-3 years ago, she married a U.S. citizen husband who filed I-130 and I-485 petitions on her behalf. At the time of her interview, USCIS confronted her with evidence that her previous I-589 asylum application had "material misrepresentations." USCIS had been investigating the attorney, Kurt Miller, who had prepared the application for her and had provided a fraudulent arrest warrant from the Chinese government for her arrest. Mr. Kurt Miller is now disbarred from the practice of law, by order of the California Supreme Court.
So based upon her "material misrepresentation" in her asylum application, she was held to be inadmissible under INA § 212(a)(6)(C). She was eligible for a waiver under INA § 212(i), based upon the extreme hardship her husband would suffer if she were not permitted to stay in the U.S.
She had another attorney prepared her initial I-601 Waiver application, which was not properly supported with sufficient evidence and was denied. Only then, did they come to our office, with about 3-4 days before the time to file an appeal was exhausted, and we worked very hard and fast to put together a complete package, consisting of an I-290B Motion to Reopen / Reconsider, with new evidence, and an I-290B Appeal to the BIA. We met all our deadlines and now are waiting for a decision.
I feel hopeful because of the equities on the USC spouses side of the scale. Let you know how the appeal is decided.
As a asylee, she filed her I-485 adjustment of status petition many years ago, which USCIS left unadjudicated.
Then about 2-3 years ago, she married a U.S. citizen husband who filed I-130 and I-485 petitions on her behalf. At the time of her interview, USCIS confronted her with evidence that her previous I-589 asylum application had "material misrepresentations." USCIS had been investigating the attorney, Kurt Miller, who had prepared the application for her and had provided a fraudulent arrest warrant from the Chinese government for her arrest. Mr. Kurt Miller is now disbarred from the practice of law, by order of the California Supreme Court.
So based upon her "material misrepresentation" in her asylum application, she was held to be inadmissible under INA § 212(a)(6)(C). She was eligible for a waiver under INA § 212(i), based upon the extreme hardship her husband would suffer if she were not permitted to stay in the U.S.
She had another attorney prepared her initial I-601 Waiver application, which was not properly supported with sufficient evidence and was denied. Only then, did they come to our office, with about 3-4 days before the time to file an appeal was exhausted, and we worked very hard and fast to put together a complete package, consisting of an I-290B Motion to Reopen / Reconsider, with new evidence, and an I-290B Appeal to the BIA. We met all our deadlines and now are waiting for a decision.
I feel hopeful because of the equities on the USC spouses side of the scale. Let you know how the appeal is decided.
Sunday, August 15, 2010
Reports of Links Between Private Prison Corporations Poised to Gain with Lobbyist Inside of Arizona Governor Brewer's Office
An investigation by KPHO-TV finds that Arizona Gov. Jan Brewer's deputy chief of staff was a lobbyist for Corrections Corporation of America, and his wife still is. Another Brewer adviser runs a firm that represents the prison company. And Gov. Brewer didn't answer KPHO's questions about the connections or why she hadn't revealed them.
Morgan Loew, the KPHO reporter who broke the story, is quoted as saying it a simple equation:
"When someone's picked up on the side of the road or for a crime, they're taken to the jail. At that point, their immigration status is determined. If they're an illegal immigrant, they're reported to Immigration and Customs Enforcement. Then they're taken to one of these private prisons, Corrections Corporation of America.
"So, you'd have to do the math. But if you increased the number of people who are picked up, illegal immigrants, increase the number that are sent over to ICE, you're likely going to increase the number that companies like Corrections Corporation of America are going to be housing."
Morgan Loew, the KPHO reporter who broke the story, is quoted as saying it a simple equation:
"When someone's picked up on the side of the road or for a crime, they're taken to the jail. At that point, their immigration status is determined. If they're an illegal immigrant, they're reported to Immigration and Customs Enforcement. Then they're taken to one of these private prisons, Corrections Corporation of America.
"So, you'd have to do the math. But if you increased the number of people who are picked up, illegal immigrants, increase the number that are sent over to ICE, you're likely going to increase the number that companies like Corrections Corporation of America are going to be housing."
Thursday, August 12, 2010
Ninth Circuit Court Asked for Oral Argument in One of Our Cases
Very exciting news yesterday.
One of the cases that I personally briefed to the Ninth Circuit has been scheduled for Oral Arguments on October 6, 2010. I believe the reason they are looking at this case is because of the novel legal argument I raised on appeal.
The issue is unresolved and stems from the statutory interpretation of two on conflicting sections of the INA (Immigration and Nationality Act), 8 USC § 1229a(c)(7)(A) and 8 USC § 1158(a)(2)(B). Both statutes and their enabling regulations govern motions to reopen removal proceedings.
To be continued.
One of the cases that I personally briefed to the Ninth Circuit has been scheduled for Oral Arguments on October 6, 2010. I believe the reason they are looking at this case is because of the novel legal argument I raised on appeal.
The issue is unresolved and stems from the statutory interpretation of two on conflicting sections of the INA (Immigration and Nationality Act), 8 USC § 1229a(c)(7)(A) and 8 USC § 1158(a)(2)(B). Both statutes and their enabling regulations govern motions to reopen removal proceedings.
To be continued.
Monday, August 9, 2010
Unbelievable - Riverside Man Poses as US Marshal and Deport Relative's Wife
I cannot believe this story our of Riverside County, but the story is being posted by the SF Chronicle.
A Riverside County man has pleaded not guilty to falsely deporting a relative's pregnant wife by posing as a U.S. marshal.
Gregory Denny of Hemet entered his plea Monday in San Diego federal court. He is accused of kidnapping, conspiracy and other crimes that carry potential life sentences. His wife Karen is accused of helping him carry out the alleged crime.
Prosecutors say Denny barged into his cousin's home in January to kidnap Cherriebelle Hibbard, who was waiting for a new green card.
The Dennys claimed she was in the U.S. illegally, drove her to San Diego and put her on a plane to the Philippines, where she remains.
Bail was set at $50,000 for Karen Denny, but the mother of three has not been released. Her husband is being held without bail.
A Riverside County man has pleaded not guilty to falsely deporting a relative's pregnant wife by posing as a U.S. marshal.
Gregory Denny of Hemet entered his plea Monday in San Diego federal court. He is accused of kidnapping, conspiracy and other crimes that carry potential life sentences. His wife Karen is accused of helping him carry out the alleged crime.
Prosecutors say Denny barged into his cousin's home in January to kidnap Cherriebelle Hibbard, who was waiting for a new green card.
The Dennys claimed she was in the U.S. illegally, drove her to San Diego and put her on a plane to the Philippines, where she remains.
Bail was set at $50,000 for Karen Denny, but the mother of three has not been released. Her husband is being held without bail.
Friday, August 6, 2010
Success Story Yesterday - Vacated a Domestic Violence Conviction
In Santa Clara County Superior Court, Criminal Division:
Yesterday, I was able to have two criminal charges dismissed against my client, on the court's own motion, for P.C. 243 - Battery and P.C. 273.5 Domestic Violence. He first came to our office to inquire about renewing his "Green Card" status as an LPR.
After he told us about his conviction, we were concerned because under INA § 237(a)(2)(E)- he was deportable for his DV conviction. "any alien who at any time after admission is convicted of a crime of domestic violence . . . is deportable."
So we detailed the legal alternatives to him and he chose to retain our office to attempt to vacate his plea. I filed a P.C. 1016.5 Motion with the Court and after two DA Motions and three appearances, was granted.
Then I pled my client's case to the DA and she agreed to dismiss the charges against him because he had already completed the 52-week counseling course, paid his fines, and had not re-offended since his initial arrest. The Court agreed, and on Monday we will be filing the N-400 application for his citizenship. Our client was a happy man, going from one moment being deportable to the next moment becoming a U.S. citizen.
Yesterday, I was able to have two criminal charges dismissed against my client, on the court's own motion, for P.C. 243 - Battery and P.C. 273.5 Domestic Violence. He first came to our office to inquire about renewing his "Green Card" status as an LPR.
After he told us about his conviction, we were concerned because under INA § 237(a)(2)(E)- he was deportable for his DV conviction. "any alien who at any time after admission is convicted of a crime of domestic violence . . . is deportable."
So we detailed the legal alternatives to him and he chose to retain our office to attempt to vacate his plea. I filed a P.C. 1016.5 Motion with the Court and after two DA Motions and three appearances, was granted.
Then I pled my client's case to the DA and she agreed to dismiss the charges against him because he had already completed the 52-week counseling course, paid his fines, and had not re-offended since his initial arrest. The Court agreed, and on Monday we will be filing the N-400 application for his citizenship. Our client was a happy man, going from one moment being deportable to the next moment becoming a U.S. citizen.
Tuesday, August 3, 2010
Just Finished AAO Appeal of Denied I-129F Petition
Just finished writing and compiling the documentary evidence to support my Form I-290B Administrative Appeals Office (AAO) appeal of our client's denied I-129F fiance visa petition.
Our client, who is a naturalized U.S. citizen from Ethiopia, got engaged to marry her future husband through a family arranged marriage. USCIS however, felt that there was not enough evidence of a bona fide premarital relationship. We supplied as much as we could, but it was an arranged marriage after all.
Our client, who is a naturalized U.S. citizen from Ethiopia, got engaged to marry her future husband through a family arranged marriage. USCIS however, felt that there was not enough evidence of a bona fide premarital relationship. We supplied as much as we could, but it was an arranged marriage after all.
Friday, July 30, 2010
Obama Administration on Track to Deport 10% More Than Bush Administration
Listing to one of my favorite Ipod Broadcasts this morning, the reporter was discussion an underreported fact - that the Obama administration is deporting more immigrants than the Bush administration. So I looked it up and this remarkable fact is accurate and true. Amazing. See the chart below.
According to Frank Sharry, Executive Director of America's Voice, "As the chart shows, the Obama administration is on track to deport a record 400,000 people in 2010, 70% of whom are non-criminal undocumented immigrants who have been caught up in an aggressive dragnet of local, state and federal raids and enforcement actions. As shocking as these numbers are, they are proof that Republican calls for increased immigration enforcement as a pretext to comprehensive immigration reform are just hollow political pot shots."
Deportations more than doubled in the Bush years and are increasing even more in the Obama administration. And even among those considered "criminal" deportees, immigrants could be classified as such for infractions as minor as selling an unauthorized phone cards. In conjunction with the fact that border security spending and personnel have also increased in recent years, the deportation numbers show that ramped-up, enforcement-only immigration policy already is the status quo. As a result, Republican calls for increased immigration enforcement as a necessity before moving forward on comprehensive immigration reform do not ring true in light of these numbers and this reality.
Said Sharry, "Every day, bad actor employers exploit immigrant workers, undercut American workers and undermine honest competitors. Every day, Americans become more frustrated and more polarized as Washington dithers. Unfortunately, the vacuum created by the lack of action on comprehensive immigration reform has been filled by ramped up federal enforcement and discriminatory laws like Arizona's. It's time to deliver on the change that Obama promised on immigration, such as when he spoke eloquently to the National Council of La Raza and said, "The system isn't working when 12 million people live in hiding, and hundreds of thousands cross our borders illegally each year; when companies hire undocumented immigrants instead of legal citizens to avoid paying overtime or to avoid a union; when communities are terrorized by ICE immigration raids - when nursing mothers are torn from their babies, when children come home from school to find their parents missing, when people are detained without access to legal counsel."
According to Frank Sharry, Executive Director of America's Voice, "As the chart shows, the Obama administration is on track to deport a record 400,000 people in 2010, 70% of whom are non-criminal undocumented immigrants who have been caught up in an aggressive dragnet of local, state and federal raids and enforcement actions. As shocking as these numbers are, they are proof that Republican calls for increased immigration enforcement as a pretext to comprehensive immigration reform are just hollow political pot shots."
Deportations more than doubled in the Bush years and are increasing even more in the Obama administration. And even among those considered "criminal" deportees, immigrants could be classified as such for infractions as minor as selling an unauthorized phone cards. In conjunction with the fact that border security spending and personnel have also increased in recent years, the deportation numbers show that ramped-up, enforcement-only immigration policy already is the status quo. As a result, Republican calls for increased immigration enforcement as a necessity before moving forward on comprehensive immigration reform do not ring true in light of these numbers and this reality.
Said Sharry, "Every day, bad actor employers exploit immigrant workers, undercut American workers and undermine honest competitors. Every day, Americans become more frustrated and more polarized as Washington dithers. Unfortunately, the vacuum created by the lack of action on comprehensive immigration reform has been filled by ramped up federal enforcement and discriminatory laws like Arizona's. It's time to deliver on the change that Obama promised on immigration, such as when he spoke eloquently to the National Council of La Raza and said, "The system isn't working when 12 million people live in hiding, and hundreds of thousands cross our borders illegally each year; when companies hire undocumented immigrants instead of legal citizens to avoid paying overtime or to avoid a union; when communities are terrorized by ICE immigration raids - when nursing mothers are torn from their babies, when children come home from school to find their parents missing, when people are detained without access to legal counsel."
Thursday, July 29, 2010
Strange Story Out of Canada - IJ Solicits Sex from Asylee
As reported by the Globe and Mail today:
Immigration judge who wanted sex for granting citizenship gets 18 months
A former Immigration judge who propositioned a South Korean refugee claimant with sex in exchange for citizenship in 2006 was sentenced to 18 months in prison on Thursday.
Steve Ellis, 51, was convicted in April with breach of trust and bribery. He had pleaded not guilty to both charges.
Mr. Ellis was the adjudicator at Ji Hye Kim's refugee hearing in 2006. Ms. Kim was 25 years old at the time.
The court heard that Mr. Ellis visited Ms. Kim twice at the restaurant where she worked and made comments she interpreted as sexual propositions.
The third time they met, Ms. Kim’s boyfriend secretly videotaped the encounter.
The tape, given to CTV news, shows Mr. Ellis and Ms. Kim in a coffee shop. Mr. Ellis proposes that he needs a “girlfriend on the side” of his marriage, and in exchange he’ll see what he can do about Ms. Kim’s refugee claim. Ms. Kim was seeking asylum in Canada from her physically abusive father.
Federal Crown Attorney Lynda Trefler said Mr. Ellis breached a public trust.
“He owed a duty to the Canadian public who trusted him with this power and authority to make decisions on behalf of the Canadian government,” Ms. Trefler said.
She said Thursday’s sentencing sent a message that, when someone in a position like Mr. Ellis's abuses their power, it would be taken seriously.
The sentence paves the way for other vulnerable individuals like Ms. Kim to come forward, she said.
“It certainly sends a message that justice is being done,” Ms. Trefler said.
On Thursday CTV reported that the judge in the case ruled that Mr. Ellis’ bipolar disorder was a mitigating factor, but that Mr. Ellis still knew what he was doing was wrong. Bipolar disorder can lead to errors in judgment.
John Rosen, Mr. Ellis’ lawyer, says his client told him to appeal the sentence. “I have instructions to proceed with an appeal,” Mr. Rosen said from his office.
It could take months to prepare the documents, he said, and there will be an application for bail pending the appeal.
He said he could not comment on the outcome of the sentencing because the issue is still before the court.
Immigration judge who wanted sex for granting citizenship gets 18 months
A former Immigration judge who propositioned a South Korean refugee claimant with sex in exchange for citizenship in 2006 was sentenced to 18 months in prison on Thursday.
Steve Ellis, 51, was convicted in April with breach of trust and bribery. He had pleaded not guilty to both charges.
Mr. Ellis was the adjudicator at Ji Hye Kim's refugee hearing in 2006. Ms. Kim was 25 years old at the time.
The court heard that Mr. Ellis visited Ms. Kim twice at the restaurant where she worked and made comments she interpreted as sexual propositions.
The third time they met, Ms. Kim’s boyfriend secretly videotaped the encounter.
The tape, given to CTV news, shows Mr. Ellis and Ms. Kim in a coffee shop. Mr. Ellis proposes that he needs a “girlfriend on the side” of his marriage, and in exchange he’ll see what he can do about Ms. Kim’s refugee claim. Ms. Kim was seeking asylum in Canada from her physically abusive father.
Federal Crown Attorney Lynda Trefler said Mr. Ellis breached a public trust.
“He owed a duty to the Canadian public who trusted him with this power and authority to make decisions on behalf of the Canadian government,” Ms. Trefler said.
She said Thursday’s sentencing sent a message that, when someone in a position like Mr. Ellis's abuses their power, it would be taken seriously.
The sentence paves the way for other vulnerable individuals like Ms. Kim to come forward, she said.
“It certainly sends a message that justice is being done,” Ms. Trefler said.
On Thursday CTV reported that the judge in the case ruled that Mr. Ellis’ bipolar disorder was a mitigating factor, but that Mr. Ellis still knew what he was doing was wrong. Bipolar disorder can lead to errors in judgment.
John Rosen, Mr. Ellis’ lawyer, says his client told him to appeal the sentence. “I have instructions to proceed with an appeal,” Mr. Rosen said from his office.
It could take months to prepare the documents, he said, and there will be an application for bail pending the appeal.
He said he could not comment on the outcome of the sentencing because the issue is still before the court.
Saturday, July 17, 2010
Update on Our Office's Two Adam Walsh Act Cases
I just received a comment on my earlier post regarding the denial of immigration benefits under the Adam Walsh Act. Congress passed this law which did many thing, including barring any U.S. citizen from petitioning for an immigration benefit.
The two cases our office handled included a naturalized U.S. citizen who had a Statutory Rape conviction 10 years previously. Under California law he must register as a Sex Offender, pursuant to Penal Code section 290. He married a women from Mexico, filed an I-130 Petition on her behalf and it was denied by USCIS.
The other case involved a U.S. citizen who was convicted of Oral Copulation on a minor - also a Registered Sex Offender under P.C. 290.
I am happy to report that we prevailed in both cases. Both of our clients were able to adjust their spouses and they have their green cards in their hands.
We still have one remaining issue and that involves the child of one of the foreign spouses. We are still trying to get the child his green card through the consular processing. We hope to prevail here as well, however, since this process is still new to both USCIS and the State Department, it will take some time convincing them to do the right thing.
The two cases our office handled included a naturalized U.S. citizen who had a Statutory Rape conviction 10 years previously. Under California law he must register as a Sex Offender, pursuant to Penal Code section 290. He married a women from Mexico, filed an I-130 Petition on her behalf and it was denied by USCIS.
The other case involved a U.S. citizen who was convicted of Oral Copulation on a minor - also a Registered Sex Offender under P.C. 290.
I am happy to report that we prevailed in both cases. Both of our clients were able to adjust their spouses and they have their green cards in their hands.
We still have one remaining issue and that involves the child of one of the foreign spouses. We are still trying to get the child his green card through the consular processing. We hope to prevail here as well, however, since this process is still new to both USCIS and the State Department, it will take some time convincing them to do the right thing.
Wednesday, July 14, 2010
ALCU Documents the Unequal Access to Citizenship for Muslims
The Los Angeles Office of the ACLU just wrote a report about the unequal access to citizenship for Muslim Residents. Our office has also extensive experience with this discrimination. We filed an Mandamus Action for a muslim women how has been waiting for over 5 years to obtain the State Department clearance necessary for her N-400 citizenship application.
Here is the text of the ACLU story:
For many immigrants in this country, the chance to take the oath of allegiance to the United States and become sworn in as a U.S. citizen is a moment they dream about and work years to achieve. But for Tarek Hamdi and many other Muslim immigrants around the country, the dream is tarnished by racial and religious discrimination in the naturalization process.
Tarek, a 50-year-old man born in Cairo, Egypt, has lived in the United States since he was a teenager. Over the last three decades, he built what many would consider an ideal American life, marrying his American-born college sweetheart and raising four daughters, all U.S. citizens. He has a successful career as a civil engineer, has never been arrested or charged with a crime, and is a man of faith. As a practicing Muslim, Tarek has stayed involved in his religious community and in accordance with the religious principle, zakat, regularly donates money to support humanitarian causes, both Muslim and secular, for those people he believes are most in need.
Tarek considers himself more American than Egyptian. Yet, despite the fact that he bears all of the qualifications for citizenship, having fully established that he is of "good moral character," our government treats him as suspect because of his religion, just like they have apparently treated so many other naturalization applicants who are Muslim or from Muslim countries.
Naturalization applications, like Tarek's, by law must be processed in six months but his stretched out for nine years. He endured endless scrutiny and frustrating delays because too many Muslim applicants are presumed suspects. The U.S. Citizenship and Immigration Service (USCIS) finally denied his application, claiming that evidence from the FBI showed that he made a single donation to the Benevolence International Foundation (BIF) and thus failed to disclose his "association" with the charity on his application. Tarek donated that money to BIF in 2000, believing that they were providing important humanitarian relief around the world, two years before the charity was shut down by the Treasury Department as an alleged financier of terrorism. Tarek has no more association with the BIF than he does to the American Cancer Society, to whom he also donated money. Tarek's story is unfortunately the story of far too many Muslim immigrants. In the Los Angeles Field Office, Muslim applicants appearing for their naturalization examinations are often asked detailed questions about their religion, including how often they pray and what mosque they attend — none of which is relevant to their eligibility for citizenship. They are singled out for lawful donations to Muslim charities and forced to respond to extensive "requests for evidence" reaching so far back that it is impossible to fully comply. Many are brow-beaten into becoming FBI informants in order to have their applications finally processed. And again and again, Muslim applicants are denied naturalization for bogus reasons.
Congress abolished racism from the naturalization process nearly 60 years ago, making the dream of citizenship possible, at long last, for all people, not just Western European immigrants and African descendants. In 1952, Congress proclaimed in the Immigration and Nationality Act that "[t]he right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race."
While outright prohibited, racial and religious discrimination again infects the naturalization process, disparaging the very meaning of the Constitution to which many new Americans seek to pledge their allegiance.
Here is the text of the ACLU story:
For many immigrants in this country, the chance to take the oath of allegiance to the United States and become sworn in as a U.S. citizen is a moment they dream about and work years to achieve. But for Tarek Hamdi and many other Muslim immigrants around the country, the dream is tarnished by racial and religious discrimination in the naturalization process.
Tarek, a 50-year-old man born in Cairo, Egypt, has lived in the United States since he was a teenager. Over the last three decades, he built what many would consider an ideal American life, marrying his American-born college sweetheart and raising four daughters, all U.S. citizens. He has a successful career as a civil engineer, has never been arrested or charged with a crime, and is a man of faith. As a practicing Muslim, Tarek has stayed involved in his religious community and in accordance with the religious principle, zakat, regularly donates money to support humanitarian causes, both Muslim and secular, for those people he believes are most in need.
Tarek considers himself more American than Egyptian. Yet, despite the fact that he bears all of the qualifications for citizenship, having fully established that he is of "good moral character," our government treats him as suspect because of his religion, just like they have apparently treated so many other naturalization applicants who are Muslim or from Muslim countries.
Naturalization applications, like Tarek's, by law must be processed in six months but his stretched out for nine years. He endured endless scrutiny and frustrating delays because too many Muslim applicants are presumed suspects. The U.S. Citizenship and Immigration Service (USCIS) finally denied his application, claiming that evidence from the FBI showed that he made a single donation to the Benevolence International Foundation (BIF) and thus failed to disclose his "association" with the charity on his application. Tarek donated that money to BIF in 2000, believing that they were providing important humanitarian relief around the world, two years before the charity was shut down by the Treasury Department as an alleged financier of terrorism. Tarek has no more association with the BIF than he does to the American Cancer Society, to whom he also donated money. Tarek's story is unfortunately the story of far too many Muslim immigrants. In the Los Angeles Field Office, Muslim applicants appearing for their naturalization examinations are often asked detailed questions about their religion, including how often they pray and what mosque they attend — none of which is relevant to their eligibility for citizenship. They are singled out for lawful donations to Muslim charities and forced to respond to extensive "requests for evidence" reaching so far back that it is impossible to fully comply. Many are brow-beaten into becoming FBI informants in order to have their applications finally processed. And again and again, Muslim applicants are denied naturalization for bogus reasons.
Congress abolished racism from the naturalization process nearly 60 years ago, making the dream of citizenship possible, at long last, for all people, not just Western European immigrants and African descendants. In 1952, Congress proclaimed in the Immigration and Nationality Act that "[t]he right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race."
While outright prohibited, racial and religious discrimination again infects the naturalization process, disparaging the very meaning of the Constitution to which many new Americans seek to pledge their allegiance.
Monday, July 12, 2010
USCIS Announces Today - Temporary Protected Status Registration Period Extended for Haitian Nationals
U.S. Citizenship and Immigration Services (USCIS) today announced an extension to the registration period for Temporary Protected Status (TPS) for eligible nationals of Haiti. Initially, the 180-day registration period for nationals of Haiti was from Jan. 21 through July 20, 2010. This registration period is now being extended through Jan. 18, 2011.
The Department of Homeland Security (DHS) previously published a Federal Register Notice on Jan. 21, 2010, announcing the TPS designation of Haiti for 18 months, from Jan. 21, 2010 through July 22, 2011. The designation applies only to Haitians who have continuously resided in the United States since Jan. 12, 2010; TPS will not be granted to Haitian nationals who first entered the United States after Jan. 12, 2010.
Haitian nationals eligible for TPS are strongly encouraged to register as soon as possible within the registration period that now ends on Jan. 18, 2011.
TPS applicants must submit both the Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization, to register. Applicants must pay the Form I-821 fee. Applicants age 14 and older must also submit the biometric service fee. Applicants who are age 14 through 65 who request an Employment Authorization Document (EAD) must pay the Form I-765 fee. Applicants under age 14 or over age 65 who request an EAD do not need to pay the Form I-765 fee. If an individual is only seeking to register for TPS, the applicant must still file Form I-765 for data-gathering purposes, but the Form I-765 fee is not required. Applicants who can demonstrate an inability to pay may request a fee waiver for any of these fees. Failure to submit the required applications with any required fees and the biometric fee, or a properly documented fee waiver request, will result in the rejection of the application. For information on TPS fee waivers, please visit the “Questions and Answers: Requesting Waiver of Fees Temporary Protected Status Applicants” webpage.
Further details on the designation of TPS for Haiti, including the application requirements and procedures, are available at www.uscis.gov on the TPS page under Haiti’s designation and in the Federal Register Notices published on Jan. 21, 2010 and today.
TPS forms are available online or by calling the toll-free USCIS Forms line, 1-800-870-3676.
The Department of Homeland Security (DHS) previously published a Federal Register Notice on Jan. 21, 2010, announcing the TPS designation of Haiti for 18 months, from Jan. 21, 2010 through July 22, 2011. The designation applies only to Haitians who have continuously resided in the United States since Jan. 12, 2010; TPS will not be granted to Haitian nationals who first entered the United States after Jan. 12, 2010.
Haitian nationals eligible for TPS are strongly encouraged to register as soon as possible within the registration period that now ends on Jan. 18, 2011.
TPS applicants must submit both the Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization, to register. Applicants must pay the Form I-821 fee. Applicants age 14 and older must also submit the biometric service fee. Applicants who are age 14 through 65 who request an Employment Authorization Document (EAD) must pay the Form I-765 fee. Applicants under age 14 or over age 65 who request an EAD do not need to pay the Form I-765 fee. If an individual is only seeking to register for TPS, the applicant must still file Form I-765 for data-gathering purposes, but the Form I-765 fee is not required. Applicants who can demonstrate an inability to pay may request a fee waiver for any of these fees. Failure to submit the required applications with any required fees and the biometric fee, or a properly documented fee waiver request, will result in the rejection of the application. For information on TPS fee waivers, please visit the “Questions and Answers: Requesting Waiver of Fees Temporary Protected Status Applicants” webpage.
Further details on the designation of TPS for Haiti, including the application requirements and procedures, are available at www.uscis.gov on the TPS page under Haiti’s designation and in the Federal Register Notices published on Jan. 21, 2010 and today.
TPS forms are available online or by calling the toll-free USCIS Forms line, 1-800-870-3676.
Friday, July 9, 2010
Deadline for Haitians Registering for Legal Status is July 20
The initial registration period for any Haitian national, or person last habitually residing in Haiti to file for Legal Status in the United States is July 20, 2010.
The benefit of registering for Temporary Protected Status (TPS) is you can obtain Employment Authorization, a Social Security Card, and apply for any benefits related to having a social security card, such as Earned Income Credit and the Stimulus Benefit.
To qualify you must:
(1) Be a Haitian National or last habitually resided in Haiti;
(2) Have been present in the US on January 12, 2010;
(3) Properly complete and file TPS registration before the July 20 deadline;
(4) Meet certain immigration requirements (such as no felony convictions); AND
(5) File before registration ends.
If you fail to file by the deadline you will not be eligible for TPS.
Note: Failure to properly file for TPS during the deadlines the US government has set could mean that you lose your chance to benefit from Haitian TPS. It is important to utilize experienced TPS immigration attorneys in order to ensure that your filing is performed timely and properly.
The benefit of registering for Temporary Protected Status (TPS) is you can obtain Employment Authorization, a Social Security Card, and apply for any benefits related to having a social security card, such as Earned Income Credit and the Stimulus Benefit.
To qualify you must:
(1) Be a Haitian National or last habitually resided in Haiti;
(2) Have been present in the US on January 12, 2010;
(3) Properly complete and file TPS registration before the July 20 deadline;
(4) Meet certain immigration requirements (such as no felony convictions); AND
(5) File before registration ends.
If you fail to file by the deadline you will not be eligible for TPS.
Note: Failure to properly file for TPS during the deadlines the US government has set could mean that you lose your chance to benefit from Haitian TPS. It is important to utilize experienced TPS immigration attorneys in order to ensure that your filing is performed timely and properly.
Wednesday, June 30, 2010
New ICE Memo on Detention Priorities
AILA just posted a new memorandum from USCIS Deputy Director John Morton to ICE employees directing them on detention priorities.
USCIS Detention Priorities Memo
USCIS Detention Priorities Memo
Friday, June 18, 2010
Much to Common Story Out of Boston About a Kid Who Came to the US as a Small Child
This story was reported in the Boston Globe Editorial Page today and I am reprinting it here because I see too many of these cases and under the present law, there is not much that can be done.
June 18, 2010
WHAT COUNTRY wouldn’t want to be home to someone like Eric Balderas? Balderas was the valedictorian of his high school class and now attends Harvard on a full scholarship. He’s studying molecular and cellular biology and hopes to become a cancer researcher.
Despite those achievements and aspirations, the 19-year old Harvard sophomore could be kicked out of the United States and deported to Mexico. His mother entered this country illegally when Balderas was 4, and he grew up in San Antonio. On June 7, he was detained at a Texas airport by US immigration authorities when he tried to board a flight to Boston. He had lost his Mexican passport and was attempting to use a consular card from the Mexican government and his Harvard identification card.
The next day, he was able to fly back to Boston. But he now has a July 6 court date with an immigration judge. Harvard President Drew Gilpin Faust is asking members of the Massachusetts congressional delegation for help.
His plight is another illustration of the urgent need for a reasoned national dialogue on the subject of immigration, with the end goal being comprehensive reform. As attitudes toward illegal immigration harden, more young people like Balderas risk detainment and deportation. But the logic that approach breaks down in Balderas’s case. Coming to the United States wasn’t his choice, and the nation has vastly more to gain by letting him stay.
A year ago, Faust urged Congress to support the Dream Act, the federal legislation that would allow young people who are illegal immigrants to apply for legal residency, under certain conditions. The Dream Act — once backed by a bipartisan dream team that included Massachusetts Senator Edward M. Kennedy and Arizona Senator John McCain — would create a path to legal residency for young people who come to America before they turn 16 and have lived here for five years.
Kennedy is no longer around to fight for the cause, and McCain has abandoned it. But the country loses if some of the world’s best and brightest are stopped from calling America their home.
Case of Harvard student shows urgency of immigration reform
June 18, 2010
WHAT COUNTRY wouldn’t want to be home to someone like Eric Balderas? Balderas was the valedictorian of his high school class and now attends Harvard on a full scholarship. He’s studying molecular and cellular biology and hopes to become a cancer researcher.
Despite those achievements and aspirations, the 19-year old Harvard sophomore could be kicked out of the United States and deported to Mexico. His mother entered this country illegally when Balderas was 4, and he grew up in San Antonio. On June 7, he was detained at a Texas airport by US immigration authorities when he tried to board a flight to Boston. He had lost his Mexican passport and was attempting to use a consular card from the Mexican government and his Harvard identification card.
The next day, he was able to fly back to Boston. But he now has a July 6 court date with an immigration judge. Harvard President Drew Gilpin Faust is asking members of the Massachusetts congressional delegation for help.
His plight is another illustration of the urgent need for a reasoned national dialogue on the subject of immigration, with the end goal being comprehensive reform. As attitudes toward illegal immigration harden, more young people like Balderas risk detainment and deportation. But the logic that approach breaks down in Balderas’s case. Coming to the United States wasn’t his choice, and the nation has vastly more to gain by letting him stay.
A year ago, Faust urged Congress to support the Dream Act, the federal legislation that would allow young people who are illegal immigrants to apply for legal residency, under certain conditions. The Dream Act — once backed by a bipartisan dream team that included Massachusetts Senator Edward M. Kennedy and Arizona Senator John McCain — would create a path to legal residency for young people who come to America before they turn 16 and have lived here for five years.
Kennedy is no longer around to fight for the cause, and McCain has abandoned it. But the country loses if some of the world’s best and brightest are stopped from calling America their home.
Tuesday, June 15, 2010
U.S. Supreme Court Blocks Deportation over Minor Drug convictions
The Supreme Court blocked the government Monday from routinely deporting legal immigrants for minor drug possession convictions, a decision that immigrant-rights lawyers said will spare tens of thousands of otherwise law-abiding residents from being sent out of this country.
In a 9-0 decision, the justices said a Texas man who had pled guilty at different times to having a marijuana cigarette and a single Xanax pill, an anti-anxiety drug, had been wrongfully deported.
Jose Carachuri-Rosendo was taken into federal custody after he pled no contest to having the Xanax pill without a prescription. Both an immigration judge and the U.S. court of appeals in New Orleans ruled he must be deported because his second drug possession conviction qualified as an "aggravated felony."
His case illustrated the potentially harsh impact of a 1996 federal law that was intended to rid the nation of immigrants who were criminals and violent offenders. Previously immigrants could ask for leniency if they had a job, a family or other ties in this country.
The new law, by contrast, required the deportation of any non-citizen convicted of an "aggravated felony."
But Congress did not carefully define this term. Since then, immigration judges have been deciding which crimes fit the definition.
Monday's ruling marks the third time in six years that the Supreme Court has intervened and ruled that these judges have gone too far.
Justice John Paul Stevens said the government's view defies common sense. "We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an 'aggravated felony'," he wrote.
Because of its strict wording, the 1996 law had required deportation even for legal residents who have lived in the United States for decades and served in the U.S. military. And despite the high court's ruling, immigrants convicted of drug charges still could be deported.
They will, however, have a chance to seek leniency before an immigration judge.
"Today's ruling will affect tens of thousands of immigrants, but it is hard to get a specific number," said Benita Jain, co-director of the Immigrant Defense Project in New York.
In 2009, the Immigration and Customs Enforcement (ICE) deported 139,188 so-called "criminal aliens," but this number included both lawful residents and illegal immigrants, officials said.
The U.S. appeals court in New Orleans and Chicago were among those that said a second drug possession conviction triggered the automatic-deportation rule. Had the Supreme Court agreed with that view, it would have allowed the government to move forward with thousands of deportations, immigration experts said.
Peter Spiro, a Temple University Law Professor and former clerk at the high court, said the justices acted after waiting in vain for Congress to fix the 1996 law.
"This is another in a long line of cases in which the Court is pushing back," he said. "They are giving very clear cues they want this law defined more narrowly."
Six years ago, the court rejected the Bush administration's view that a drunk driving conviction amounted to an aggravated felony. Four years ago, the court in an 8-1 decision rejected deportation for a South Dakota man who pled guilty to cocaine possession -- a felony under state law, but a misdemeanor under federal law.
In its decision, the high court said a second drug possession conviction was not an aggravated felony even if it was a repeat offense. Stevens said the common-sense use of the words "aggravated" and "felony" refer to a serious or violent crime that would be punished by more than a year in prison.
"Congress, like 'Humpty Dumpty', has the power to give words unorthodox meanings," he said, but there is no evidence that Congress meant to make minor drug offenses into aggravated felonies. He noted that drug trafficking does qualify as a felony requiring deportation.
Carachuri-Rosendo, 32, was born in Mexico and came to Texas with his parents when he was five. He became a lawful permanent resident, worked as a carpet installer, and has a wife and four children.
He served 20 days in jail for a misdemeanor marijuana charge. He spent 10 days in county jail for the Xanax pill before he was taken into federal custody and deported to Mexico.
Under Monday's ruling, he can seek to return.
Carachuri-Rosendo v. Holder
In a 9-0 decision, the justices said a Texas man who had pled guilty at different times to having a marijuana cigarette and a single Xanax pill, an anti-anxiety drug, had been wrongfully deported.
Jose Carachuri-Rosendo was taken into federal custody after he pled no contest to having the Xanax pill without a prescription. Both an immigration judge and the U.S. court of appeals in New Orleans ruled he must be deported because his second drug possession conviction qualified as an "aggravated felony."
His case illustrated the potentially harsh impact of a 1996 federal law that was intended to rid the nation of immigrants who were criminals and violent offenders. Previously immigrants could ask for leniency if they had a job, a family or other ties in this country.
The new law, by contrast, required the deportation of any non-citizen convicted of an "aggravated felony."
But Congress did not carefully define this term. Since then, immigration judges have been deciding which crimes fit the definition.
Monday's ruling marks the third time in six years that the Supreme Court has intervened and ruled that these judges have gone too far.
Justice John Paul Stevens said the government's view defies common sense. "We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an 'aggravated felony'," he wrote.
Because of its strict wording, the 1996 law had required deportation even for legal residents who have lived in the United States for decades and served in the U.S. military. And despite the high court's ruling, immigrants convicted of drug charges still could be deported.
They will, however, have a chance to seek leniency before an immigration judge.
"Today's ruling will affect tens of thousands of immigrants, but it is hard to get a specific number," said Benita Jain, co-director of the Immigrant Defense Project in New York.
In 2009, the Immigration and Customs Enforcement (ICE) deported 139,188 so-called "criminal aliens," but this number included both lawful residents and illegal immigrants, officials said.
The U.S. appeals court in New Orleans and Chicago were among those that said a second drug possession conviction triggered the automatic-deportation rule. Had the Supreme Court agreed with that view, it would have allowed the government to move forward with thousands of deportations, immigration experts said.
Peter Spiro, a Temple University Law Professor and former clerk at the high court, said the justices acted after waiting in vain for Congress to fix the 1996 law.
"This is another in a long line of cases in which the Court is pushing back," he said. "They are giving very clear cues they want this law defined more narrowly."
Six years ago, the court rejected the Bush administration's view that a drunk driving conviction amounted to an aggravated felony. Four years ago, the court in an 8-1 decision rejected deportation for a South Dakota man who pled guilty to cocaine possession -- a felony under state law, but a misdemeanor under federal law.
In its decision, the high court said a second drug possession conviction was not an aggravated felony even if it was a repeat offense. Stevens said the common-sense use of the words "aggravated" and "felony" refer to a serious or violent crime that would be punished by more than a year in prison.
"Congress, like 'Humpty Dumpty', has the power to give words unorthodox meanings," he said, but there is no evidence that Congress meant to make minor drug offenses into aggravated felonies. He noted that drug trafficking does qualify as a felony requiring deportation.
Carachuri-Rosendo, 32, was born in Mexico and came to Texas with his parents when he was five. He became a lawful permanent resident, worked as a carpet installer, and has a wife and four children.
He served 20 days in jail for a misdemeanor marijuana charge. He spent 10 days in county jail for the Xanax pill before he was taken into federal custody and deported to Mexico.
Under Monday's ruling, he can seek to return.
Carachuri-Rosendo v. Holder
Tuesday, June 8, 2010
LPR - Special Rule Cancellation under 42B
Recently had a custody case where an LPR (Lawful Permanent Resident) was in removal for CIMT's and a Narcotics Conviction. The narcotics conviction left her under mandatory detention, pending her removal hearing.
We filed both a 42A and a 42B application for cancellation of removal. The 42B application was under the "Special Rule" cancellation for an abused spouse. A recent BIA decision held that an LPR is eligible for 42B relief as the language written by Congress is ambiguous as to who qualifies. What is nice about 42B is that any conviction that is the result of the spousal abuse is waived.
Needless to say, we prevailed and our client was released the same day after the DHS attorney waived appeal.
We filed both a 42A and a 42B application for cancellation of removal. The 42B application was under the "Special Rule" cancellation for an abused spouse. A recent BIA decision held that an LPR is eligible for 42B relief as the language written by Congress is ambiguous as to who qualifies. What is nice about 42B is that any conviction that is the result of the spousal abuse is waived.
Needless to say, we prevailed and our client was released the same day after the DHS attorney waived appeal.
Tuesday, May 18, 2010
End of an Era - SCOTUS Closing Its Front Door
The United States Supreme Court is closing its iconic front doors - the ones that say "Equal Justice Under Law."
Thereafter, visitors will be relegated to a side door for processing through a central screening facility.
Of course, the First Amendment to the United States Constitution still brings with it the right to access the courts, it's just now it will be through a side door, making this the ultimate for Post 9-11 America, since side doors are traditionally used for prisoners.
Here is the News Link
Thereafter, visitors will be relegated to a side door for processing through a central screening facility.
Of course, the First Amendment to the United States Constitution still brings with it the right to access the courts, it's just now it will be through a side door, making this the ultimate for Post 9-11 America, since side doors are traditionally used for prisoners.
Here is the News Link
Wednesday, May 12, 2010
Recent Ninth Circuit Court of Appeals Decision extends Lujan Exception Under FFOA to Under the Influence Convictions
The Ninth Circuit recently held that first-time offenders convicted of using or being under influence of controlled substance and granted relief under California Penal Code section 1203.4 are eligible for same immigration treatment as those whose simple drug possession convictions are expunged under FFOA.
Here is the decision:
Rice v Holder
Here is the decision:
Rice v Holder
Thursday, April 22, 2010
Republican Congressman Brian Bilbray (R-Calif.) says that, Trained professionals" can identify undocumented workers just by looking at their clothes.
John McCain has no reason to fear illegal immigrants "intentionally causing accidents on the freeway" -- according to Rep. Brian Bilbray (R-Calif.), "trained professionals" can identify undocumented workers just by looking at their clothes.
Discussing Arizona's pending profiling bill on "Hardball," Chris Matthews challenged Bilbray to cite a "non-ethnic aspect" by which law enforcement agents could identify illegal immigrants. "They will look at the kind of dress you wear, there is different type of attire, there is different type of -- right down to the shoes, right down to the clothes," Bilbray replied.
Discussing Arizona's pending profiling bill on "Hardball," Chris Matthews challenged Bilbray to cite a "non-ethnic aspect" by which law enforcement agents could identify illegal immigrants. "They will look at the kind of dress you wear, there is different type of attire, there is different type of -- right down to the shoes, right down to the clothes," Bilbray replied.
Friday, April 16, 2010
Update on Motion to Reopen with the Board of Immigration Appeals Based on IAC
I am very happy to report that yesterday our office received the response from the Department of Homeland Security legal counsel on our motion to reopen the deportation proceeding against our LPR from the Philippines. DHS sent us a non-opposition, which is a first for me personally. I have never received a non-opposition for a BIA Motion to Reopen based on Ineffective Assistance of Counsel. Wow.
It is only on rare occasions that anyone in life gets a second chance- our client gets a second chance to stay in the U.S. if we can prevail in his merits hearing.
Just about to file another motion with the Board to reopen based on IAC. This time it is a Mongolian family who lost their asylum claim because their attorney failed to call a single corroborating witness or to provide the court with a single scrap of documentary evidence.
Keep you posted.
It is only on rare occasions that anyone in life gets a second chance- our client gets a second chance to stay in the U.S. if we can prevail in his merits hearing.
Just about to file another motion with the Board to reopen based on IAC. This time it is a Mongolian family who lost their asylum claim because their attorney failed to call a single corroborating witness or to provide the court with a single scrap of documentary evidence.
Keep you posted.
Thursday, April 1, 2010
Two New Cases - Ineffective Assistance of Counsel Claims
Our office had two new cases recently based on the ineffective assistance of counsel they received by prior attorneys. Just sent out the FedEx package yesterday in the first case to the Board of Immigration Appeals.
This case involves a long-term LPR, with 4 USC children, who had a couple of criminal convictions that rendered him removable. However, he was eligible for EOIR-42A relief - Cancellation of Removal. At his Individual Merits Hearing, his attorney shows up with no documents, no witnesses, even though his office had been provided with tax returns, declaration, birth certificates, etc. The IJ the weighs the evidence in the record - two convictions versus nothing and denies him relief.
Second case involves Mongolian refugees seeking asylum relief. Their trial attorney again shows up on the day of the hearing with nothing. The government actually files the Country Conditions Report. The attorney fails to call a single corroborating witness to verify the story the petitioner is telling, even though the wife and kids saw the persecution.
I'm sorry to see such poor lawyering out there.
This case involves a long-term LPR, with 4 USC children, who had a couple of criminal convictions that rendered him removable. However, he was eligible for EOIR-42A relief - Cancellation of Removal. At his Individual Merits Hearing, his attorney shows up with no documents, no witnesses, even though his office had been provided with tax returns, declaration, birth certificates, etc. The IJ the weighs the evidence in the record - two convictions versus nothing and denies him relief.
Second case involves Mongolian refugees seeking asylum relief. Their trial attorney again shows up on the day of the hearing with nothing. The government actually files the Country Conditions Report. The attorney fails to call a single corroborating witness to verify the story the petitioner is telling, even though the wife and kids saw the persecution.
I'm sorry to see such poor lawyering out there.
Wednesday, March 17, 2010
Ninth Circuit Opening Brief on CAT Claim
Finish my initial draft on a Deferral of Removal Claim under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. Because our client had a prior criminal conviction that fell under the definition of an aggravated felony, the only potential relief available was under CAT.
What is interesting about the facts in this case is that had he been a citizen of any other country in the world, he would have been granted relief. Because he is from Mexico, the IJ and the BIA both held that he could safely relocate inside of Mexico.
In their decision, the BIA cited the 9th Circuit Case of Lemus-Galvan v. Holder, 518 F.3d 1081 (9th Cir. 2009) for the proposition that an applicant for relief under CAT must "establish that internal relocation within Mexico was impossible.
My argument is that this impermissibly shifts the burden of proof from the more likely than not standard to this unattainable impossibility standard.
The brief is due in the court next Monday. Keep your posted.
What is interesting about the facts in this case is that had he been a citizen of any other country in the world, he would have been granted relief. Because he is from Mexico, the IJ and the BIA both held that he could safely relocate inside of Mexico.
In their decision, the BIA cited the 9th Circuit Case of Lemus-Galvan v. Holder, 518 F.3d 1081 (9th Cir. 2009) for the proposition that an applicant for relief under CAT must "establish that internal relocation within Mexico was impossible.
My argument is that this impermissibly shifts the burden of proof from the more likely than not standard to this unattainable impossibility standard.
The brief is due in the court next Monday. Keep your posted.
Monday, March 8, 2010
Immigration Arrests on the Rise
HUMAN SMUGGLING ARRESTS SPARK PLANS FOR NEXT CRIME SUPPRESSION OPERATION WITHIN NEXT TWO WEEKS
Sheriff’s Patrol Deputies Arrest Eight More Illegal Aliens on State Human Smuggling Charges
Maricopa County, AZ. - Maricopa County Sheriff’s Office patrol deputies made eight more arrests on state felony human smuggling charges again last night. Human smuggling arrests by patrol deputies are on the rise since Sheriff Joe Arpaio recently initiated a program to provide all 900 sworn deputies training on the detection and arrest of illegal aliens.
Deputies have arrested 77 illegal aliens this past week in the act of human smuggling and Sheriff Arpaio said that this is good reason for another crime suppression/ illegal immigration operation to he conducted within the next two weeks.
The 77 arrests were the result of four traffic stops and one drop house discovered by deputies earlier this week.
The Sheriff’s new training program was initiated after Washington made the decision recently to strip 100 deputies of their authority to act as federal immigration agents.
Sheriff Arpaio stated that despite new interest by the Obama Administration and activist groups on the illegal immigration problem, he will not be deterred and will continue enforcing immigration laws.
Since state human smuggling laws were enacted, the Maricopa County Sheriff’s Office has arrested and booked over 1,900 illegal aliens on felony human smuggling charges. The sheriff’s office continues to be the only law enforcement agency enforcing all aspects of state human smuggling laws.
Source: Maricopa County Sheriff’s Office
Sheriff’s Patrol Deputies Arrest Eight More Illegal Aliens on State Human Smuggling Charges
Maricopa County, AZ. - Maricopa County Sheriff’s Office patrol deputies made eight more arrests on state felony human smuggling charges again last night. Human smuggling arrests by patrol deputies are on the rise since Sheriff Joe Arpaio recently initiated a program to provide all 900 sworn deputies training on the detection and arrest of illegal aliens.
Deputies have arrested 77 illegal aliens this past week in the act of human smuggling and Sheriff Arpaio said that this is good reason for another crime suppression/ illegal immigration operation to he conducted within the next two weeks.
The 77 arrests were the result of four traffic stops and one drop house discovered by deputies earlier this week.
The Sheriff’s new training program was initiated after Washington made the decision recently to strip 100 deputies of their authority to act as federal immigration agents.
Sheriff Arpaio stated that despite new interest by the Obama Administration and activist groups on the illegal immigration problem, he will not be deterred and will continue enforcing immigration laws.
Since state human smuggling laws were enacted, the Maricopa County Sheriff’s Office has arrested and booked over 1,900 illegal aliens on felony human smuggling charges. The sheriff’s office continues to be the only law enforcement agency enforcing all aspects of state human smuggling laws.
Source: Maricopa County Sheriff’s Office
Tuesday, February 23, 2010
New BIA Decision Permits Immigration Courts to Review Police Reports for Domestic Violence Determinations
In applying modified categorical approach to assess conviction, it is proper to consider police reports’ contents as part of conviction record if incorporated into plea or admitted by alien in criminal proceedings. Matter of Milian-Dubon, 25 I&N Dec. 197 (BIA 2010).
Here is the full BIA decision.
Matter of Millian -
Here is the full BIA decision.
Matter of Millian -
Friday, February 12, 2010
ABA Issues Scathing New Report of Immigration System
Yesterday, February 10, 2010, the American Bar Association issued a new report on the current state of the Immigration System.
In its findings, the ABA correctly identified the vast discrepancies between various Immigration Judges and how often they grant a favorable decision to the noncitizen, how the BIA fails in its mission to dispense just decisions, and how all of this mess gets dumped in the Circuit Courts.
And even in the Circuit Courts, the justices spend an inordinate time on deciding jurisdictional issues and not the merits of the appeals. This creates traps for the unrepresented and unwary counsel.'
Here is the full report on the ABA website.
In its findings, the ABA correctly identified the vast discrepancies between various Immigration Judges and how often they grant a favorable decision to the noncitizen, how the BIA fails in its mission to dispense just decisions, and how all of this mess gets dumped in the Circuit Courts.
And even in the Circuit Courts, the justices spend an inordinate time on deciding jurisdictional issues and not the merits of the appeals. This creates traps for the unrepresented and unwary counsel.'
Here is the full report on the ABA website.
Wednesday, January 20, 2010
U.S. Supreme Court Takes on Circuit Court Jurisdiction to Review Motions to Reopen
The U.S. Supreme Court granted certiorari and heard oral arguments in Kucana v. Holder, Attorney General Docket No. 08-911 on November 10, 2009.
A copy of the transcript of the argument can be found here:
Supreme Court Transcipt in Kucana v. Holder
The question that was granted cert is "What is the scope of the jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and whether the statute removes jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?"
This case arises from the Seventh Circuit and is the only circuit that has not found jurisdiction in BIA motion to reopen. If the Supreme Court holds with the decision from the Seventh Circuit, this will create a major impediment in our ability to obtain judicial review of immigration cases.
The facts in the case presented are that an Albanian national filed for political asylum and was ordered deported in absentia because he came late to a hearing in immigration court. His motion to reopen and appeal to the BIA were unsuccessful.
He later filed a motion to reopen for changed country conditions and this is the denial that is now before the Supreme Court.
Here is a link to the Petitioner's Opening Brief:
Petitioner's Opening Brief
A copy of the transcript of the argument can be found here:
Supreme Court Transcipt in Kucana v. Holder
The question that was granted cert is "What is the scope of the jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and whether the statute removes jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?"
This case arises from the Seventh Circuit and is the only circuit that has not found jurisdiction in BIA motion to reopen. If the Supreme Court holds with the decision from the Seventh Circuit, this will create a major impediment in our ability to obtain judicial review of immigration cases.
The facts in the case presented are that an Albanian national filed for political asylum and was ordered deported in absentia because he came late to a hearing in immigration court. His motion to reopen and appeal to the BIA were unsuccessful.
He later filed a motion to reopen for changed country conditions and this is the denial that is now before the Supreme Court.
Here is a link to the Petitioner's Opening Brief:
Petitioner's Opening Brief
Friday, January 8, 2010
Asylum Fraud Conviction of Immigration Attorneys Calls Into Question Hundreds of AslyumCases
Sekhon Fraud Convictions May Lead To Re-Opening Hundreds of Former Clients' Asylum Claims:
Steve Maganini's insightful piece in the Sacramento Bee highlights the difficulties facing immigration judges in evaluating asylum claims. The article also notes that the San Francisco asylum office is interviewing each of the up to 700 former Sekhon clients to determine whether the government should seek to revoke their asylum.
For years, Sacramento's Sekhon & Sekhon law firm was renowned as a beacon of hope.
The firm, boasting a 95 percent success rate, helped more than 1,000 immigrants from a half-dozen nations get political asylum in the United States based on a fear of persecution.
Many of those new asylees now stand to be deported, because as many as 700 – coached by the firm's lawyers and interpreters – told phony stories of torture and rape to immigration judges and asylum officers.
Last June, following a three-month trial in Sacramento's federal court, three of the firm's lawyers and two interpreters were convicted of conspiracy to defraud the government. Prosecutors call it one of the most brazen immigration scams in U.S. history.
In the wake of the Sekhon case, the San Francisco asylum office is interviewing each of the 700 people caught up in the scam to decide whether to revoke their asylum.
If the government ends up sending hundreds of cases back to immigration court, they're going to pose a tremendous challenge, Judge Marks said.
"These are going to be hotly contested cases as to whether or not the person who says he was prejudiced by an unethical lawyer deserves a second chance," Marks said. "We're going to have to work through them case by case, judge by judge, and it's the judge's job not to be cynical and burned out."
Steve Maganini's insightful piece in the Sacramento Bee highlights the difficulties facing immigration judges in evaluating asylum claims. The article also notes that the San Francisco asylum office is interviewing each of the up to 700 former Sekhon clients to determine whether the government should seek to revoke their asylum.
For years, Sacramento's Sekhon & Sekhon law firm was renowned as a beacon of hope.
The firm, boasting a 95 percent success rate, helped more than 1,000 immigrants from a half-dozen nations get political asylum in the United States based on a fear of persecution.
Many of those new asylees now stand to be deported, because as many as 700 – coached by the firm's lawyers and interpreters – told phony stories of torture and rape to immigration judges and asylum officers.
Last June, following a three-month trial in Sacramento's federal court, three of the firm's lawyers and two interpreters were convicted of conspiracy to defraud the government. Prosecutors call it one of the most brazen immigration scams in U.S. history.
In the wake of the Sekhon case, the San Francisco asylum office is interviewing each of the 700 people caught up in the scam to decide whether to revoke their asylum.
If the government ends up sending hundreds of cases back to immigration court, they're going to pose a tremendous challenge, Judge Marks said.
"These are going to be hotly contested cases as to whether or not the person who says he was prejudiced by an unethical lawyer deserves a second chance," Marks said. "We're going to have to work through them case by case, judge by judge, and it's the judge's job not to be cynical and burned out."
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