Thursday, May 19, 2011

Kurt Miller, Esq. Asylum Fraud Case - Seeking INA § 212(i) Waiver

Our office took on the representation of a former Kurt Miller, Esq. client. The client had obtained asylee status sometime in 2000. Later the client married a USC and the couple has a child together.

When the spouse filed an I-130 petition, USCIS sat on the application and did not reach a decision for approximately 4 years. After being summoned to the Field Office for a frauds interview, the client admitted to the Officer that they did not supply any of the documents submitted in support of the I-589 application. They admitted that Kurt Miller had provided everything, including the declaration. which they were to memorize.

Obviously, USCIS held that person inadmissible for procuring an immigration benefit through fraud and/or material misrepresentation, under INA § 212(a)(6)(C)(i). The client had hired another attorney to file an I-601 Hardship Waiver petition under INA § 212(i) and the Field Office denied the application.

The client then came to our office and we filed both an I-290B Motion to Reopen / Reconsider, along with new documentary evidence to support the claim of Extreme Hardship for the qualifying USC relative. Also, in the abundance of caution, we filed an appeal to the AAO, Administrative Appeals Office in Washington, D.C.

Recently, we received the denial of our I-290B Motion to Reopen/Reconsider and today I finished the appellate brief of points and authorities to the AAO, arguing that the hardships must be considered in the aggregate, not singularly, and adjudicated in the totality of the circumstances.

I further moved the AAO to consolidate the two appeals presently pending.

I am cautiously optimistic about this appeal.

Thursday, May 5, 2011

First Crack in Federal Immigration Bar to Same-Sex Partner Benefits

Today, Attorney General Eric Holder, Jr. vacated and remanded the Board of Immigration Appeals precedent decision barring any immigration benefits to same-sex partners. The decision is called Matter of Dorman 25 I&N Dec. 485 (A.G. 2011).

In this decision, the AG has remanded the decision back to the BIA for additional findings on the question of whether domestic partnership of same-sex relationship qualifies for cancellation of removal. This is the first crack in the once solid wall barring any immigration benefits to same-sex partners. As our law practice is in the San Francisco Bay Area, this decision is of especial importance to our office.

The full decision can be found here.

Monday, May 2, 2011

Ninth Circuit Over Turns BIA Post-Departure Bar Rule in 8 CFR § 1003.2(d)

In a published decision, post on April 7, 2011, the Ninth Circuit Court of Appeals overturned the Board of Immigration Appeals Post-Departure Bar Rule, in 8 C.F.R. § 1003.2(d), which the BIA has consistently held to strip them of jurisdiction to an alien's Motion to Reopen or Reconsider once the alien has been physically removed from the U.S.

What this rule has in practice meant, is that once someone has been issued a final order of removal, ICE will use any and all means to physically remove someone before the BIA has to rule on any Motion to Reopen, especially if the have a prima facie showing of ineffective assistance provided by their former counsel.

The case name is REYES-TORRES v. HOLDER. The holding language is as follows:

After reviewing the statutes, we determined that “the intent of Congress is clear,” and that “in passing IIRIRA, Congress anticipated that petitioners would be able to pursue relief after departing from the United States.” Coyt, 593 F.3d at 906. As such, we held that:
The only manner in which we can harmonize the provisions simultaneously affording the petitioner a ninety day right to file a motion to reopen and requiring the alien’s removal within ninety days is to hold, consistent with the other provisions of IIRIRA, that the physical removal of a petitioner by the United States does not preclude the petitioner from pursuing a motion to reopen.
Id. at 907.