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 -
Tuesday, February 23, 2010
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."
Tuesday, December 22, 2009
Danger of Notarios Publico
In the United States, the legal duties of the notary public are restricted to such tasks as witnessing signatures and certifying the validity of documents. But in Latin American countries, notarios publico receive extensive legal training and provide a range of legal services.
The problem is that many immigrants to the US fail to realize that notarios don't have the same standing her that they do in other countries. Andmany notarios, whose signs are common in the business districts of Hispanic neighborhoods, do nothing to dissuade their customers, or they simply overstep their bounds in efforts to be helpful.
But the result is the same: significant damage to an immigrant's efforts to secure a legal status that will permit him or her to remain in the US.
Immigration fraud is not confined to Hispanic Communities. "In the Hispanic community it is a notario. In the Arab-American community, signs just say 'immigration expert' or 'immigration," says Abed A. Ayoub, a legal advisor to the American-Arab Anti-Discrimination Committee in Washington D.C.
Our office has handle numerous cases where an immigrant has run afoul of USCIS because their notario failed to properly file the correct document or mishandled the application.
Tomorrow, we will be filing a Motion to Reopen an in absentia Final Order of Removal in a case in Seattle, Washington where the alien used a Russian Language Immigration Consultant who is now in prison for fraud.
Link to Story
The problem is that many immigrants to the US fail to realize that notarios don't have the same standing her that they do in other countries. Andmany notarios, whose signs are common in the business districts of Hispanic neighborhoods, do nothing to dissuade their customers, or they simply overstep their bounds in efforts to be helpful.
But the result is the same: significant damage to an immigrant's efforts to secure a legal status that will permit him or her to remain in the US.
Immigration fraud is not confined to Hispanic Communities. "In the Hispanic community it is a notario. In the Arab-American community, signs just say 'immigration expert' or 'immigration," says Abed A. Ayoub, a legal advisor to the American-Arab Anti-Discrimination Committee in Washington D.C.
Our office has handle numerous cases where an immigrant has run afoul of USCIS because their notario failed to properly file the correct document or mishandled the application.
Tomorrow, we will be filing a Motion to Reopen an in absentia Final Order of Removal in a case in Seattle, Washington where the alien used a Russian Language Immigration Consultant who is now in prison for fraud.
Link to Story
Tuesday, December 15, 2009
U.S. Supreme Court Grants Cert on Question of Whether an Alien Has a Right to Effective Assistance of Counsel
08-651 PADILLA V. KENTUCKY
DECISION BELOW:253 S.W.3d 482
CERT. GRANTED 2/23/2009
QUESTIONS PRESENTED:
Petitioner, who has lived in this country for nearly 40 years and served in the United States Army, is a legal permanent resident of this country, not a citizen. In 2001 Petitioner was indicted for trafficking in marijuana - an offense designated as an "aggravated felony" under the Immigration and Naturalization Act (INA). Prior to entering a plea of guilty to that offense, Petitioner was incorrectly advised by his counsel that the plea would not affect his immigration status. Unfortunately,
because the offense was an aggravated felony, Petitioner's deportation is mandatory. Upon discovery of this fact, Petitioner sought post conviction relief in Kentucky's state courts arguing that his attorney had improperly advised him. The Supreme Court of Kentucky denied post conviction relief holding the Petitioner was not entitled to accurate advice from his attorney on immigration consequences because he had no Sixth Amendment right to counsel in that proceeding. Petitioner now seeks certiorari to review the following questions:
1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the INA, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and
2. Assuming immigration consequences are "collateral", whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.
LOWER COURT CASE NUMBER: 2006-SC-000321-DG
DECISION BELOW:253 S.W.3d 482
CERT. GRANTED 2/23/2009
QUESTIONS PRESENTED:
Petitioner, who has lived in this country for nearly 40 years and served in the United States Army, is a legal permanent resident of this country, not a citizen. In 2001 Petitioner was indicted for trafficking in marijuana - an offense designated as an "aggravated felony" under the Immigration and Naturalization Act (INA). Prior to entering a plea of guilty to that offense, Petitioner was incorrectly advised by his counsel that the plea would not affect his immigration status. Unfortunately,
because the offense was an aggravated felony, Petitioner's deportation is mandatory. Upon discovery of this fact, Petitioner sought post conviction relief in Kentucky's state courts arguing that his attorney had improperly advised him. The Supreme Court of Kentucky denied post conviction relief holding the Petitioner was not entitled to accurate advice from his attorney on immigration consequences because he had no Sixth Amendment right to counsel in that proceeding. Petitioner now seeks certiorari to review the following questions:
1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the INA, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and
2. Assuming immigration consequences are "collateral", whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.
LOWER COURT CASE NUMBER: 2006-SC-000321-DG
Thursday, December 10, 2009
Lujan Exception Only Available in the Ninth Circuit's Jurisdiction
I have written about the severe consequences of any narcotics conviction to anyone not a U.S. citizen. Outside of the jurisdiction of the Ninth Circuit, such a conviction will result in deportation. The Lujan Exception provides relief to someone charged with "first-time, simple possession" of a narcotic if that person is eligible under a rehabilitative state statute equivalent to the FFOA (Federal First Offense Act).
"Indeed, although the BIA acquiesces in the decision in the Ninth Circuit, it correctly declines to follow it outside of that circuit. See In re Salazar-Regino, 23 I&N Dec. 223, (BIA 2002) (“[E]xcept in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under section 101(a)(48)(A) of the [INA].”)
Matter of Erick MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005).
The Attorney General's Decision further states:
"I do not decide whether the Ninth Circuit was correct in concluding that the new definition of conviction did not repeal the FFOA, and therefore, as the Ninth Circuit held, equal protection guarantees require that an alien with a state conviction who would have been eligible for FFOA relief had the conviction been rendered in federal court receive the same treatment as a alien with a federal conviction. I do note, however, that at least three circuits disagree with the Ninth Circuit. See Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that “it seems plain that rational-basis review is satisfied here”);
Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. 2003) (finding Ninth Circuit’s decision “untenable” and declining to follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-99 (8th Cir. 2002) (disagreeing with Ninth Circuit and declining to address possible repeal of FFOA by IIRIRA because no equal protection violation for treating alien convicted under state law differently from alien convicted under federal law where the sentences were dissimilar and Congress could have intended to provide relief only for federal convictions, over which Congress would have control)."
"Indeed, although the BIA acquiesces in the decision in the Ninth Circuit, it correctly declines to follow it outside of that circuit. See In re Salazar-Regino, 23 I&N Dec. 223, (BIA 2002) (“[E]xcept in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under section 101(a)(48)(A) of the [INA].”)
Matter of Erick MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005).
The Attorney General's Decision further states:
"I do not decide whether the Ninth Circuit was correct in concluding that the new definition of conviction did not repeal the FFOA, and therefore, as the Ninth Circuit held, equal protection guarantees require that an alien with a state conviction who would have been eligible for FFOA relief had the conviction been rendered in federal court receive the same treatment as a alien with a federal conviction. I do note, however, that at least three circuits disagree with the Ninth Circuit. See Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that “it seems plain that rational-basis review is satisfied here”);
Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. 2003) (finding Ninth Circuit’s decision “untenable” and declining to follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-99 (8th Cir. 2002) (disagreeing with Ninth Circuit and declining to address possible repeal of FFOA by IIRIRA because no equal protection violation for treating alien convicted under state law differently from alien convicted under federal law where the sentences were dissimilar and Congress could have intended to provide relief only for federal convictions, over which Congress would have control)."
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