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.”

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 -

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.

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

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.

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.

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.

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.