Published Decision From the Court of Appeal of California, First Appellate District, Division Two, Regarding Penal Code section 1473.7

I now have my first published decision. People v. Morales (2018) 25 Cal.App.5th 502.

The case came out of San Mateo County Superior Court and involved the statutory interpretation of Penal Code section 1473.7, specifically when a motion to vacate could be raised in the trial court. The judge held the language of the statute necessitated that a final order of removal be established or a notice to appear in deportation proceedings.

The court of appeal ruled for appellant that such a reading was too restrictive and not the intent of the Legislature.

A brief summary of the case is as follows:

In 2002, Morales pleaded no contest to a drug offense. He served his sentence, voluntarily departed the U.S., and reentered the country. In 2017, while residing in the U.S., he moved to vacate this conviction under the newly enacted Penal Code section 1473.71, hoping to obtain legal status via a “U visa.” Morales contended that but for his conviction, his assistance in a 2009 law enforcement investigation would have made him eligible for that visa, and that he pleaded no contest only because of the ineffective assistance of his counsel, who failed to tell him his conviction would result in his deportation and inability to ever legally reenter the U.S.. The superior court denied his motion without prejudice based on its interpretation of section 1437(b), which addresses the timeliness and due diligence required of motions filed in the face of removal proceedings. The court of appeal reversed. The lower court ignored the plain terms of section 1473.7(a)(1); interpreting subdivision (b) to prevent noncitizens from seeking relief until and unless they are subject to removal proceedings would turn a provision about timeliness and due diligence into one that guarantees delay and renders section 1473.7 ineffectual in many cases.

USCIS Rule Change Affecting H1-B Renewals

The Trump administration is looking to curtail the ability of foreigners to live and work in the United States. In furtherance of this effort, the Administration is making many changes through executive orders and policy memos and not seeking legislation or working with Congress.

The latest tactic affects holders of the H-1B visa favored by tech companies, as well as other work visas, who are seeking to extend their stays.

Under a new U.S. Citizenship and Immigration Services policy issued Monday, foreigners applying for a visa extension will no longer be given “deference” if their job descriptions haven’t significantly changed. This means that regardless of how long a foreigner has been in the country, immigration officers must review the application as if it were new.

It is the first significant policy change ordered by Lee Francis Cissna, who was sworn in as director of the immigration agency this month.

It’s significant that the change is being made retroactively to people already living in the country and not just to new visa applicants, said William Stock, president of the American Immigration Lawyers Association.

Extensions are common for H-1B visas, which are heavily used in Silicon Valley to employ foreigners with specialized skills for a three-year period. It is a common path for an H-1B holder to apply for extensions — in one- to three-year increments — until they receive permanent residency through a green card.

Previously, if a foreigner’s job description was unchanged, immigration officials would approve the extension under a 2004 rule that instructed them to “defer to prior determinations of eligibility,” except in extreme circumstances.

“By eliminating deference to prior decisions, it opens the door (for officials) to say, ‘I’m changing the rule now, and you didn’t comply with it two years ago when it wasn’t a rule — but, tough,’” Stock said.

YouTube Video of Our Office

The Mira Law Group had a video produced that was posted on YouTube. I am seen several times and also interviewed by the filmographer.

Here is the link:

Introduction to Mira Law Group, APC

USCIS Expands Eligible Aliens for I-601A Provisional Waivers

>Effective August 29, 2016, a new class of individuals may be eligible for a provisional waiver of certain grounds of inadmissibility based on the accrual of unlawful presence in the United States. The newly released rule is intended to encourage eligible individuals to complete the immigrant visa process abroad while promoting family unity.

This rule will allow who are present in the United States to request a provisional waiver of these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas from USCIS. This changes the requirement for individuals that would instead apply for a waiver abroad after their immigrant visa interviews using the Form I-601. An approved provisional waiver will help facilitate immigrant visa issuance at DOS and also reduce the time that applicants are separated from their U.S. citizen or LPR family members.

If you or someone you know believe you may be affected by this new change, contact our office to schedule a free initial consultation at (510) 437-9998.

ICE To Conduct Deportation Raids Beginning in 2016 New Year

The Washington Post reports that their sources tell them Immigration and Customs Enforcement ("ICE") is planning deportation raids beginning in the new year. ICE, an agency of the Department of Homeland Security, has begun preparing for a series of raids that would target for deportation hundreds of families who have flocked to the United States since the start of last year, according to people familiar with the operation.

This is to be a nationwide campaign, carried out by U.S. Immigration and Customs Enforcement agents as soon as early January, and would be the first large-scale effort to deport families who have fled violence in Central America, those familiar with the plan said. More than 100,000 families with both adults and children have made the journey across the southwest border since last year, though this migration has largely been overshadowed by a related surge of unaccompanied minors.

The ICE operation would target only adults and children who have already been ordered removed from the United States by an immigration judge, according to officials familiar with the undertaking, who spoke on the condition of anonymity because planning is ongoing and the operation has not been given final approval by DHS. The adults and children would be detained wherever they can be found and immediately deported. The number targeted is expected to be in the hundreds and possibly greater.

The proposed deportations have been controversial inside the Obama administration, which has been discussing them for several months. DHS Secretary Jeh Johnson has been pushing for the moves, according to those with knowledge of the debate, in part because of a new spike in the number of illegal immigrants in recent months. Experts say that the violence that was a key factor in driving people to flee Central America last year has surged again, with the homicide rate in El Salvador reaching its highest level in a generation. A drought in the region has also prompted departures.

The pressure for deportations has mounted because of a recent court decision that ordered DHS to begin releasing families housed in detention centers, according to the Post. Immigration advocates expressed concern about the plan.

"It would be an outrage if the administration subjected Central American families to even more aggressive enforcement tactics," Gregory Chen, director of advocacy for the American Immigration Lawyers Association, told the Washington Post.

Ninth Circuit Issues Favorable Decision in Petition for Review for Najarro-Portal

The Ninth Circuit Court of Appeals issued their memorandum on December 7, 2015, finding that the Immigration Judge and the Board of Immigration Appeals had erred in failing to grant Mr. Najarro-Portal deferral of removal under the Convention Against Torture and Other Cruel and Unusual Treatment in Case number 13-73958.

The opinion can be found here: Ninth Circuit Memorandum

Interesting Newspaper Article from Utah - "Activist makes app to help ‘dreamer’ undocumented immigrants"

Utah immigration activist, Deyvid Morales, 24, is using his often-in-Utah-headlines immigration battles to write free smartphone apps to help fellow undocumented immigrants.

His latest one seeks to help "dreamers" — immigrants who, like himself, were brought to the United States without papers as children by their parents — to find college scholarships.

It was inspired by a translating job he had at West Valley City's Granger High School, where he saw too many immigrants drop out "because they figure what's the point if college is not an option." But he knows college is possible because he managed to attend despite his own high-profile deportation fights.

It is his second smartphone app.

The first was designed to help undocumented immigrants who face detention and deportation. He developed it after he was pulled off a bus and detained by the Border Patrol in New Mexico — after he had received permission to remain in the country — and shouted out instructions to others about their rights.

"I can't be in every bus telling them their rights, but I could make something that would be like if I was in the bus and telling them what their rights were," Morales previously told The Salt Lake Tribune.

Now, he says, after developing his second app, "I'm not a writer. I'm not an artist. But there's a couple things that I can do, which is to organize information and make an app — and make it available for everybody. ... I'm looking for how I can help as many people as possible with what I have."

Morales' parents brought him to the U.S. from Mexico at age 9 without papers. His struggles and victories since then fuel his desire to help other undocumented immigrants.

He first landed in Utah headlines in 2011, when he had been traveling to start Bible school in Louisiana hoping to become a pastor. But immigration officials boarded his bus to seek people who were not U.S. citizens, and he was arrested.

He soon became a sort-of poster child for the plight of "dreamers," and was featured in several news conferences and news stories.

He tried to file a complaint against a U.S. Immigration and Customs Enforcement agent for allegedly violating his civil rights by telling him not to speak publicly about his case or he would have his bond revoked and would land back in jail pending his deportation hearing.

Just before he expected to be deported, President Barack Obama issued an order to defer deportation of "dreamers" like him with clean criminal records — called Deferred Action for Childhood Arrivals, or DACA.

Morales's new app is called DACA Scholars.

In 2012, after receiving official deferral from deportation, Morales was pulled off a bus and detained by immigration agents again in New Mexico — an incident that provided inspiration for his first app.

Meanwhile, Morales has been attending Salt Lake Community College. His experiences changed the focus of his studies from becoming a pastor to hopes of eventually becoming a civil-rights lawyer.

He is also working full time at the Mexican Consulate in Salt Lake City — doing such things as working with the U.S. Border Patrol to help find missing Mexican nationals. "With my history, it's a little bizarre that I'm now often working with the Border Patrol."

He had worked as a para-educator for a couple of years at Granger High, which included translating for families of troubled immigrant students. He said he was disappointed that students and parents alike "just felt like college was not an option for them because of their status," so "it didn't matter if they dropped out."

But he believes "education is essential for Latinos. It is the way to a better life."

Governor Brown Sign Bill Designed to Help Immigrant Crime Victims By Mandating U-Visa Certification Standardization

Governor Jerry Brown recently signed a bill designed to help undocumented aliens who are victims of violent crime. The new legislation introduces time limits on law enforcement's response to their U.S. visa applications in an attempt to standardize police forces' uneven treatment of applicants.

The federal government grants visas to undocumented immigrants who help law enforcement try to catch criminals. The so-called U visa allows the recipient to live and work in the United States for four years, but to apply, a victim must first ask local law enforcement to verify their cooperation.

California now becomes the first state to mandate that law enforcement sign U visa certifications in a particular time frame.

The new law requires California law enforcement to verify a victim's cooperation within 90 days, unless the agency can demonstrate that the victim was uncooperative. If the victim is in the process of being deported, the time frame shrinks to 14 days.

A Reuters investigation last year found vast geographic disparities in law enforcement approaches to this visa, with some agencies readily verifying cooperation and others stonewalling.

The report showed, for example, that law enforcement in Oakland, California had verified 2,992 immigrants between January 2009 and May 2014 compared to just 300 in Sacramento, California, which has a slightly higher population.

Congress has limited the number of U visas to 10,000 a year, and the program is heavily oversubscribed. In fiscal 2012, U.S. Citizenship and Immigration Services received 24,768 applications from crime victims certified by local law enforcement.

If the agency determines an immigrant is eligible for the visa but the yearly cap has been reached, that person can still obtain protection against deportation and work authorization while joining the U visa queue.

California legislators unanimously passed the bill this year, and Brown announced on Friday that he had signed it.

Crimes covered by the new law include sexual assault, domestic violence, murder, prostitution, perjury, blackmail, kidnapping, obstruction of justice and fraud in foreign labor contracting.

The bill, created by Senate leader Kevin de León and Speaker of the Assembly Toni G. Atkins, is an attempt to boost immigrant trust in and cooperation with law enforcement. “Every time a criminal goes free because the victim fears deportation and the police, we are all a little less safe,” said de León in a published statement.

Senate GOP plans contentious immigration vote - bill set to be taken up targets so-called sanctuary cities

Senate Republicans are planning a vote on a controversial immigration bill this month punishing sanctuary cities like San Francisco that give safe harbor to immigrants in the U.S. illegally — months after authorities say an undocumented immigrant shot and killed a young woman on a San Francisco pier.

The legislation from Sen. David Vitter (R-La.) would target sanctuary cities — localities where local law enforcement officials decline to cooperate with federal immigration authorities — by withholding key federal grants and increasing prison sentences for those who try to re-enter the United States after being deported.

“That will be the comeback vote, in all likelihood, for after the next break,” Majority Whip John Cornyn of Texas, the second-ranking Senate Republican, said Wednesday. He was referring to the week of Oct. 19, after next week’s Senate recess. The vote would come days before Louisiana’s gubernatorial election on Oct. 24; Vitter, a candidate in that race, has been struggling in the campaign.

The sanctuary cities issue, which exploded in the public sphere after the July 1 death of Kate Steinle in San Francisco, had been kicked to the Senate Judiciary Committee, where Republicans struggled to come to a consensus on legislation. The suspect in the slaying, Juan Francisco Lopez Sanchez, had been deported from the United States five times before he returned and allegedly killed Steinle.

That month, Vitter repeatedly called for attaching sanctuary cities legislation to a sweeping rewrite of No Child Left Behind, a move that could have threatened the prospects of the largely bipartisan education reform bill. Vitter ultimately struck a deal with Senate GOP leaders to take up the immigration measure in the Judiciary Committee instead — a move that saved the education bill but became an unresolved headache for Judiciary Committee Republicans that has persisted for nearly three months because of intraparty rifts on the issue.

Many Republicans — including Texas Sen. Ted Cruz, who is running for the GOP presidential nomination — lobbied for a bill that would implement a mandatory minimum prison sentence of five years for an illegal reentry offense as a key part of the party’s response on sanctuary cities. Cruz had been highlighting his efforts to pass that provision on the campaign trail, which Republicans named “Kate’s Law” after Steinle.

But other GOP senators, including Mike Lee of Utah and Jeff Flake of Arizona, opposed that idea. The split increased the likelihood that a tough-on-illegal-immigration proposal would not be able to pass a Republican-led panel. The committee’s chairman, Chuck Grassley of Iowa, had to delay marking up the bill multiple times.

And some Republicans could also defect during the Senate floor battle. In an interview Wednesday, Flake — a longtime GOP advocate of comprehensive immigration reform — said he would oppose the sanctuary cities legislation on the floor if the mandatory minimum provisions weren’t “fixed.”

“I won’t vote for it unless there is some adjustment on the mandatory minimums,” Flake said.

Oral Arguments at the Ninth Circuit Yesterday

I had oral arguments at the Ninth Circuit Court of Appeals yesterday in an immigration appeal. Narrajo-Portal v. Lynch, Case No. 13-73985. The argument was streamed live over the Internet.

The issue was whether the Immigration Judge properly denied Mr. Portal the protection under the Convention Against Torture based primarily on his adverse credibility determination. The Board of Immigration Appeals initially remanded the case back to the IJ for further consideration after finding that he had committed "clear error" in his initial determination.

The video is here:

El Salvador Supreme Court declares MS-13 to be a "Terrorist Group"

El Salvador's supreme court declared the nation's street gangs as well their financial backers to be terrorist groups last Monday, August 24, 2015.

The court said that the Mara Salvatrucha or MS-13 gang and any other gang that seeks to claim powers that belong to the state would be deemed terrorists. It defined terrorism as the organized, systematic use of violence.

The declaration came on the same day that El Salvador's attorney general said an order to kill gang members in a prison this past weekend came from inside another prison. Luis Martinez announced Monday that the recent slaughter of 14 gang members inside the Quezaltepeque prison in western El Salvador came from the San Francisco Gotera prison in the country's east.

The gang members, who were part of the Barrio 18 gang, were all strangled or stabbed to death as part of an internal purge, according to authorities. Martinez said that authorities had advance information that a mass killing was coming, but did not knew where or when.

El Salvador has one of the highest murder rates in the world and the level of violence has increased in the country over the past year with the breakdown of a truce between the Barrio 18 gang and its rival, MS-13. The gangs came to prominence in the 1980s in Los Angeles' Latino neighborhoods.

At least 125 people were murdered in the country in just three days last week, according to police. Government statistics show at least 3,840 people have been killed so far this year in the country of 6.4 million people. President Sanchez Ceren has tried to crack down on criminal gangs since coming to power last year.

Federal Judge blasts ICE, Says Immigrant Children, Parents in Detention Centers Should be Released.

A federal judge has ruled that hundreds of immigrant women and children held in holding facilities should be released, finding their detention “deplorable” and in grave violation of an earlier court settlement.

U.S. District Judge Dolly Gee said federal authorities had violated key provisions of an 18-year-old court settlement that put restrictions on the detention of migrant children.

The ruling, released late Friday, is another blow to President Obama’s immigration policies and leaves questions about what the U.S. will do with the large number of children and parents who crossed the border from Latin America last year.

The Obama administration is detaining an estimated 1,700 parents and children at three detention facilities, two in Texas and one in Pennsylvania.

In her 25-page ruling, Gee blasted federal officials, saying that children had been held in substandard conditions at the two Texas detention centers. She found “widespread and deplorable conditions in the holding cells of Border Patrol stations.” In addition, she wrote that federal officials “failed to meet even the minimal standard” of “safe and sanitary” conditions at temporary holding cells.

“It is astonishing that defendants have enacted a policy requiring such expensive infrastructure without more evidence to show that it would be compliant with an agreement that has been in effect for nearly 20 years,” Gee wrote. Gee gave the government until Aug. 3 to explain why an order she plans to issue should not be implemented within 90 days.

Press Release

THE NATIONAL ASSOCIATION OF DISTINGUISHED COUNSEL

PRESS RELEASE

Stanley Radtke, of the Law Office of Stanley Dale Radtke, has been selected to the 2015 list as a member of the Nation’s Top One Percent by the National Association of Distinguished Counsel. NADC is an organization dedicated to promoting the highest standards of legal excellence. Its mission is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate.

Members are thoroughly vetted by a research team, selected by a blue ribbon panel of attorneys with podium status from independently neutral organizations, and approved by a judicial review board as exhibiting virtue in the practice of law. Due to the incredible selectivity of the appointment process, only the top one percent of attorneys in the United States are awarded membership in NADC. This elite class of advocates consists of the finest leaders of the legal profession from across the nation.

House GOP Votes To Block Protections For Undocumented Immigrants (Eliminate DACA Protection)

House Republicans voted Wednesday to fund the Department of Homeland Security, but with the requirement that millions of undocumented young people, parents and others be put back at risk of deportation.

The DHS funding bill was the opening shot in what is likely to be a contentious weekslong fight over how to deal with appropriations for the agency before its funding runs out at the end of February. For now, Republicans and Democrats have drawn lines in the sand: Most GOP House members said they would not vote to fund DHS without measures to end many of President Barack Obama's immigration policies, while Democrats and the president have vowed to oppose anything that includes those amendments.

But the vote also showed a schism in the House Republicans -- this time from moderates rather than the usual revolts by immigration hardliners. Those moderates nearly derailed an amendment to end the Deferred Action for Childhood Arrivals policy, or DACA, which helps undocumented immigrants who came to the U.S. as children. Twenty-six House Republicans joined with Democrats to oppose that amendment, which narrowly passed in a 218-209 vote.

The vote on the full bill was 236-191. Ten Republicans opposed final passage, and two Democrats split with their party to support it.

"We do not take this action lightly, but simply, there is no alternative," House Speaker John Boehner (R-Ohio) said in a floor speech just before the vote. "It's not a dispute between the parties or even the branches of our government. This executive overreach is an affront to the rule of law and to the Constitution itself."

Court of Appeal Reversed a Criminal Conviction in One of My Recent Cases

This post is not related to any immigration matter, but I do a fair amount of criminal appellate work as a panel attorney in the First, Second, and Sixth District. I accept court appointment for indigent clients in their direct appeal. I recently received a favorable decision in one of my cases, People v. Foster a case out of Alameda County where a young black male was convicted of attempted robbery of a local convenience store.

The decision was actually written up in the San Francisco Chronicle. Here is the link.

The decision was split, 2 to 1, and was based upon the denial by the trial court of a defense motion for a short continuance in order to try and locate a previously subpoenaed defense witness. Here is the link to the full decision at the court of appeal.

California Proposition 47 Offers Deportation Relief to Certain Aliens with Criminal Convictions

Last Tuesday, November 4, 2014, California Voters approved Proposition 47, which brings changes to California criminal law and procedure that will affect thousands of immigrants facing deportation due to pending and prior criminal cases.

The “Safe Neighborhood and Schools Act,” known as “Prop 47,” reduces certain felony and “wobbler” offenses for simple drug possession to straight misdemeanors, reduces many theft and burglary-related wobblers to straight misdemeanors and retroactively allows most people convicted of felonies under prior law to seek reduction of their convictions to misdemeanors if their crimes would not have been felonies if committed after November 5, 2014, the law’s effective date.

Under the new Prop 47 statute, aliens who have are being prosecuted for deportable felonies and wobblers now may be able to avoid convictions that would otherwise render them ineligible for relief from removal and those who have already been convicted may possibly reduce their convictions to misdemeanors and obtain relief from orders of deportation and removal.

As of the effective date of Prop 47, November 5, 2014, a new crime of “shoplifting” is now defined as entering a commercial establishment during business hours with the intent to steal items valued at $950 or less. Any such crime can no longer be charged as “theft” or “commercial burglary.”

This change in California criminal law is extremely important to anyone facing deportation or removal proceedings, since previously, District Attorneys across the state have been charging even “petty theft” crimes as “burglaries” and “theft,” creating the danger of deportation proceedings and possibly an “aggravated felony” with no relief if the sentence was one year or longer in jail.

Prop 47 also makes forgery of checks for “Non-Sufficient Funds”, “grand theft” and receiving stolen property all misdemeanors, unless the value of the checks or property involved exceeded $950.00.

Certain drug crimes will also receive more favorable treatment as “misdemeanors” under Prop 47. Simple possession controlled substances, as well as simple possession of concentrated cannabis or “hashish” are now misdemeanors. “Simple possession” generally means the drug was possessed for personal use and not for sale or trafficking to others.

These changes are enormously important, as many “possession” charges could have been classified as “felonies” under California law and considered “aggravated felonies” under the Immigration and Nationality Act, making a convicted immigrant ineligible for relief from removal.

The changes in the law, under Prop 47, apply to most defendants, except those previously convicted of certain sexually violent offenses, child molestation offenses, cases of elder abuse and homicide.

The provision of Prop 47 having perhaps the most immediate impact on deportation cases is the new California Penal Code section 1170.18, which permits a person previously convicted and sentenced to a felony that is now a misdemeanor to petition for resentencing under the new misdemeanor provisions. The sentencing court should resentence the petitioner in these cases, unless the person is considered an “unreasonable risk” to commit one of an enumerated list of certain violent crimes in the future. Under Prop 47, a post-conviction redesignation of a felony to a misdemeanor is valid for “all purposes,” including deportation treatment.

Aliens who have been ordered deported, are facing possible deportation due to previous convictions, or who are facing pending criminal charges are all impacted by this legislation. Any immigrant fitting in these categories should immediately consult with an immigration attorney to ascertain whether their criminal matter qualifies for relief under Prop 47.

Tri-Valley University Founder and President Sentenced to 16 Years in Prison

A San Francisco area woman was sentenced to more than 16 years in prison for running what prosecutors said was a sham university that served as a front for an immigration scam.

Susan Xiao-Ping Su, founder and president of the phony Tri-Valley University, was accused of charging foreigners tuition and other payments for visa-related documents that allowed them to live in the U.S. while she purported that they were here legally to study. She made more than $5.6 million and used the money to buy commercial real estate, a Mercedes Benz and multiple homes, including one at a golf club, federal prosecutors said Monday.

U.S. District Court Judge Jon S. Tigar sentenced Su, 44, on Friday after she was convicted in March of visa fraud and other charges. She was also ordered to forfeit $5.6 million and pay more than $900,000 in restitution, prosecutors said.

"Student visas are intended to give people from around the world a chance to come to this country to enrich themselves with the vast learning opportunities available here," Tatum King, acting special agent in charge for Homeland Security Investigations, San Francisco, said in a statement. "But in this case, the defendant was interested in a different kind of enrichment, her own."

The Tri-Valley case is not unique in the San Francisco area. Jerry Wang, the chief executive officer of Herguan University and the University of East-West Medicine, is also facing visa fraud charges in connection with what authorities say is a similar scheme. He has pleaded not guilty and is scheduled to go on trial next month.

In the Tri-Valley case, employees testified that the school had no graduation or admission requirements, and that Su instructed her staff to fabricate transcripts and other documents.

The school described itself as a "Christian higher education institution" that provided higher education in engineering, business and ministry, according to court documents.

Su allegedly paid recruiters for referring new students

Recent Ninth Circuit Decision on Heightened Discretionary Standards

In Torres-Valdivias v. Holder, No. 11-70532, 2014 WL 4377469 (9th Cir. Sept. 5, 2014), the three-judge panel unanimously held that the heightened discretionary requirements adopted by the Attorney General in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), were properly applied by the Board in the context of applications for adjustment of status under section 245 of the Act.

In Matter of Jean, the A.G. established a presumption that discretion should not be favorably exercised on behalf of an applicant for asylum and adjustment of status under section 209 of the Act who had been convicted of “violent or dangerous crimes,” except in compelling circumstances, such as where removal would cause exceptional and extremely unusual hardship or where there are national security and foreign policy considerations in play. That heightened standard was subsequently extended to cases involving waivers under section 212(h) of the Act by regulation, see 8 C.F.R. § 1212.7(d), and the Board panel in Torres-Valdivias extended it to an adjustment of status application under section 245(i) of the Act.

The Ninth Circuit indicated that it would not extend Chevron deference to the Board’s decision. The court reasoned that the Board was altering the standard set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), in holding that Matter of Jean applied in the section 245(i) context. Matter of Arai also involved an application for adjustment of status under section 245 of the Act. The court noted that Chevron would not apply to an unpublished decision that is not directly controlled by a published decision interpreting the same statute. Noting that an agency “may not . . . depart from a prior policy sub silentio,” the court observed that the Board did not publish its decision or acknowledge Matter of Arai in its unpublished order.

Nevertheless, the court concluded that “the BIA’s decisions in this case are sufficient to satisfy its obligation not to act in an arbitrary or capricious manner.” In this regard, the Ninth Circuit noted that the Board had “adopted and affirmed” the Immigration Judge’s decision which in turn had expressly found that Matter of Jean, had altered the Matter of Arai approach in cases where a violent or dangerous crime was involved.

US Federal Judge in Northern District of California Limits Mandatory Detention of Aliens in Removal Proceedings

Recently, US District Court Judge Yvonne Gonzalez Rogers granted a motion for a preliminary injunction in Preap v. Holder, a class action lawsuit in which the Asian Law Caucus and the American Civil Liberties Union of Northern California challenged the ICE's practice in California of detaining certain immigrants without bond, often for many months, while they face deportation proceedings.

Judge Gonzalez determined that by refusing these detainees bond hearings at which they can demonstrate their fitness for release because they are neither a flight risk nor a public safety risk, the government was effectively tearing immigrants away from their families, their communities, and their livelihoods and compromising their access to representation. Many immigrants caught in the mandatory detention dragnet are longtime residents of the United States who have rehabilitated themselves, raised families and they will now have the opportunity to make an individualized case against their detention.

This court challenge seeks to clarify that the Mandatory Detention provisions of INA section 236 apply only "upon release," meaning if a Respondent is taken directly out of state custody, such as jail or prison, into federal immigration detention, they will be subject to the restriction. However, if an alien is picked up later, sometimes years after the fact, an earlier conviction that falls within the category for mandatory detention subjects that person to be detained for the duration of their immigration proceedings, without an opportunity to seek a bond is erroneous and an incorrect application of the statute.

Tri-Valley University Founder to be Sentenced on June 20

Susan Su, age 43, founder and former president of Tri-Valley University of Pleasanton, will be formerly sentenced on June 20, 2014, on the 31 counts ranging from conspiracy to commit visa fraud to money laundering to alien harboring. Su was found guilty after a jury trial in federal court before the Honorable Jon Tigar.

Su was found guilty of operating a so-called "visa mills," related to a multi-million dollar scheme to illegally provide immigration status to foreign nationals. Tri-Valley University, which catered primarily to online students, was a bogus, unaccredited venture designed to rake in millions of dollars from foreigners who sought to obtain student visas so they could remain in the United States.

Su was found to have defrauded the Tri-Valley students out of about $5.5 million in less than two years, using the money to buy commercial properties in Pleasanton that served as the university's offices as well as a mansion at Ruby Hill Golf Club and a Mercedes-Benz for herself.

Su falsified documents and lied to investigators and immigration officials about how students were affiliated with the school, which lacked instructors or appropriate course material. Federal investigators found more than 550 students enrolled at the Alameda County university were registered as living at the same address, a two-bedroom apartment in Sunnyvale.