Holiday Blues

I feel that I have neglected by blog for some time now because I have not had any interesting new immigration/deportation issue come across my desk. So as an alternative I will briefly blog about my most recent reading material, Psychology & Religion by Carl Jung.

In his discussion of religion, Jung makes a clear distinction between religion which he calls "a peculiar attitude of the human mind . . . that is, a careful consideration and observation of certain dynamic factors, understood to be 'powers,' spirits, demons, gods, laws, ideas, ideals or whatever name man has given to such factors as he has found in his world powerful, dangerous or helpful enough to be taken into careful consideration, or grand, beautiful and meaningful enough to be devoutly adored and loved," and a creed.

Jung describes as creed as "codified and dogmatized forms of original religious experience. The contents of the experience have become sanctified and usually congealed in a rigid, often elaborate, structure. The practice and the reproduction of the original experience have become a ritual and an unchangeable institution."

Detention of U.S. Citizen Without Charges

Did U.S. push detention of American without charges?

Jonathan S. Landay | McClatchy Newspapers

last updated: November 18, 2008 08:48:41 AM

WASHINGTON — An American Muslim subjected to several years of intense FBI scrutiny and questioning about links to terrorism has been held without charges, access to a lawyer or contact with his family for nearly three months by the security services of the United Arab Emirates.

The case of Naji Hamdan, coupled with FBI interrogations of an American citizen secretly detained without charges in East Africa, raises the question of whether the Bush administration has asked other nations to hold Americans suspected of terrorism links whom U.S. officials lack the evidence to charge.

That allegation is central to a lawsuit that the American Civil Liberties Union was planning to file Tuesday in federal court in Washington against President Bush, Attorney General Michael Mukasey and FBI Director Robert Mueller.

"If the U.S. government is responsible for this detention and we believe it is, this is clearly illegal because our government can't contract away the Constitution by enlisting the aid of other governments that do not adhere to the Constitution's requirements," said Ahilan Arulanantham of the ACLU's southern California office.

The lawsuit, to be brought on behalf of Hamdan's wife and brother, demands that the U.S. government extend to Hamdan his constitutional guarantee against illegal detention by asking the UAE to release him.

"The most elemental legal principles by which we govern ourselves cannot countenance the lawless detention of a United States citizen at the behest of his own government," said a draft of the lawsuit provided to McClatchy by the ACLU.

A spokesman for the FBI's Los Angeles office, Alonzo Hill, referred all inquiries about Hamdan, a former resident of the city's Hawthorne neighborhood, to FBI headquarters in Washington, saying, "This is a counter-terrorism case."

FBI headquarters disputed the allegation that it had asked the UAE to arrest Hamdan but acknowledged that it routinely interviews detainees held in foreign jails.

"The FBI does not ask foreign nations to detain U.S. citizens on our behalf in order to circumvent their rights," said Special Agent Richard Kolko, a spokesman. "In terrorism matters, we routinely work with foreign counterparts and in some cases, with the permission of the host government, FBI Agents have been permitted to interview people who may possess relevant information."

A State Department spokesman said the department had been aware of Hamdan's detention and that a U.S. consular officer visited him nearly two months after he was arrested.

The UAE Embassy said in an e-mail to McClatchy that all questions should be directed to the police in Abu Dhabi, the UAE sheikhdom where Hamdan is being held, because the case "is related to a police/security matter, which involves a private U.S. citizen."

Abu Dhabi, one of seven oil-rich sheikdoms, has cooperated closely with the Bush administration in cracking down against Islamist extremists following the 9/11 attacks.

Hamdan is a 42-year-old naturalized U.S. citizen who immigrated to California from Lebanon in the early 1980s to attend university on a scholarship, worked as an aircraft technician and then opened a used auto parts business in Hawthorne, where he served on the board of a local mosque.

Hamdan's interaction with the FBI began in 1999, when agents visited him at his Hawthorne home and asked if he knew Osama bin Laden. The incident was recounted in a Los Angeles Times article on aggressive tactics used in FBI terrorism investigations.

Hamdan's wife, Mona Mallouk, and brother, Hossam Hemdan, insisted that he's never had any terrorism involvement or been charged with any crime despite the longtime FBI scrutiny.

"Naji hates war. He hates what happened on September 11. He hates terrorism," Mona Hamdan said in a telephone interview from Beirut, Lebanon, where she and her children are living.

Hamdan moved to Abu Dhabi in 2006 and set up a business of importing used cars doing car repairs, but then moved his family to Beirut and traveled between the two countries.

In August, he was questioned at the U.S. embassy in Abu Dhabi by two FBI agents who flew out from Los Angeles. Several weeks later, UAE officials detained him, Mallouk and Hossam Hemdan said.

Hemdan, who owns automobile emissions testing stations in Los Angeles, said he arranged for Hamdan to meet the agents at the FBI's request.

"He (Hamdan) said 'That's fine, I'll see them,'" Hemdan recalled, adding that his brother later declined to discuss the meeting, except to say that "the agents know all this stuff about me and you and other people."

"I believe they are intercepting my phone calls and emails," Hemdan said of the FBI.

On Aug. 28, UAE security officers took Hamdan away as he, his wife and three children ate lunch in their Abu Dhabi apartment on the pretext of bringing him to a police station to sign papers related to a car accident, Mallouk said.

She said that when her husband failed to return, she began a fruitless search for him at police stations.

"I called the U.S. embassy . . . the next day. I was crying. They didn't seem to care," she related. "They said they would call back in an hour, but they didn't call me back for six or seven days."

The consular officer who telephoned confirmed that the embassy was aware of Hamdan arrest the day it occurred, said Mallouk, who hasn't spoken to her husband since he made a brief call to her shortly after his arrest.

The case finds echoes in the secret detention in Kenya last year of Amir Mohammad Meshal, a New Jersey resident who was arrested fleeing the U.S.-backed Ethiopian invasion of Somalia.

Meshal, who had spent time in Somalia with suspected Islamic extremists, was interrogated by FBI agents in Nairobi, secretly flown back into Somalia, turned over to Ethiopian intelligence officers and then flown to the Ethiopian capital of Addis Ababa, where he was imprisoned three months before being released without charges.

"I think you see a trend that reflects illegal detentions going underground or off the books, where the United States . . . out-sources detentions to other governments," said Jonathan Hafetz, an ACLU attorney who's involved in the Meshal and Hamdan cases.

Hemdan said the FBI visited his brother, himself and other Muslims in Hawthorne after the Sept. 11 attacks, showing them pictures of the hijackers and asking if they knew them. Agents called on Hamdan once at home and twice at his business, he said.

The brothers' names were placed on watch lists at airports and they would be pulled aside and interrogated about ties to terrorist groups every time they entered or left the U.S., Hemdan said.

In 2006, Hamdan and his wife moved to the UAE. She said Hamdan was frustrated over the FBI's scrutiny, and both were concerned about drugs and other problems at high school their eldest son was due to attend.

At Los Angeles International Airport, they and their luggage were rigorously searched and they were subjected to lengthy questioning that made them miss their flight, according to Mallouk.

In the UAE, Hamdan set up a used car and auto repair business. But he decided to move the family to Beirut because they have close relatives there and the UAE was too hot, she explained.

Last year, during a visit to Hawthorne, Hamdan came under intense FBI surveillance, according to Hemdan, with agents watching the brothers' businesses, tailing them in automobiles and questioning their friends.

"Where ever he went, they chased him, government vehicles with black windows," said Hemdan. "From my perspective, they wanted him to see them. They'd drive over the (lane) dividers and over curbs. They wanted to be seen so he gets scared and leaves. It's like 'You are not welcomed here.'"

"I told him to go to the Federal Building (in Los Angeles) and talk to the FBI. I gave him the number and he called and left a message, but they didn't call him back," he continued.

Earlier this year, Lebanese security officers detained Hamdan at Beirut airport as he prepared to board a flight to the UAE after visiting his family. They later ransacked the family's house and confiscated two computers, a video game, papers and photos, Mallouk said.

Her husband was "slapped" while being interrogated for four days, during which he was accused alternatively of being an al Qaida member or working for Israeli or U.S. intelligence, she said. Khalid, 16, was also questioned for three hours.

Hamdan was released without charges.

Writ of Error (Coram Nobis) to Vacate State Narcotics Conviction

We are still trying to obtain the release of a client who has been in immigration detention since last July on account of a deferred entry of judgement in a simple possession narcotics case in state court. ICE has maintained that he is subject to mandatory detention throughout his deportation proceedings. We have appealed to the 9th Circuit and our opening brief is due sometime in February 2009.

However, his public defender has been feverishly working to try an vacate this plea agreement before the trial judge. His last effort is to try a Writ of Error, or (Writ of Coram Nobis). The case law holds that if this writ is granted based upon a substantive factual error, this will removed the conviction off the record and he can obtain his release.

"A conviction overturned for substantive, non-immigration reasons may not be used as the basis for removability. See Nath v. Gonzales, 467 F.3d 1185, 1187-89 (9th Cir. 2006) (“[A] conviction vacated because of a procedural or substantive defect is not considered a conviction for immigration purposes and cannot serve as the basis for removability.” (internal quotation marks and citation omitted)); see also Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107-08 (9th Cir. 2006) (remanding for consideration of whether conviction was vacated on the merits or because of immigration consequences)"

Furthermore, "the government bears the burden of proving whether a state court reversed or vacated a prior conviction for reasons other than the merits. Nath, 467 F.3d at 1189; Cardoso-Tlaseca, 460 F.3d at 1107 n.3 (“[F]or the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove with clear, unequivocal and convincing evidence that the Petitioner’s conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e. to avoid adverse immigration consequences.” (internal quotation marks and citation omitted)).

Violation of a Grant of Voluntary Departure

One of our clients is a stateless individual, he is a citizen of no country, who arrived inside of the U.S. and requested political asylum. His request for asylum was denied and he was ordered removed. The Immigration Judge granted him voluntary departure, but since he had no passport or valid travel document to actually leave the U.S.

A little background, our client is ethnically Palestinian, born to Palestinian parents who were living in Saudi Arabis on temporary employment visas. Saudi does not grant citizenship to Palestinians who happen to be born within their country. So, when our guy left Saudi Arabia and remained out of the country for more than 6 months, he could no longer return to Saudi. Saudi Arabia does not even issue a passport to such a situated Palestinian, he was required to petition the Egyptian Consulate for temporary travel papers.

So the fact on the ground is now, our client is under a final order of removal, violated his Voluntary Departure order, and currently on supervised release, deferred entry of action by the local Immigration and Customs Enforcement Field Office.

We currently have a Petition For Review before the Ninth Circuit Court of Appeals, and we have been placed in mediation because our guy has an approved I-130 Immigrant Visa based on marriage to a USC. So the question for us is whether our client can even adjust his status if we win and obtain a remand for adjustment.

The BIA decision on point is Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), which holds that if the aline fails to depart. through no fault of their own, cannot be said to have "voluntarily violated" the period of voluntary departure.

They hold that someone who is "physically unable to depart" falls within the "voluntariness exception" to INA 240B(d)(1), however, there has been no decision on this prong. Our guy may be the test case.

Voice From a Raid

Coming on the heels of the ICE raid on Howard Industries in Mississippi, I thought this video clip was interesting on the aftermath of such a raid by the federal authorities.

Ninth Circuit Finds Adjustment Unavailable to Persons Who Enter the U.S. by Fraudulent Means

Orozco v. Mukasey, (9th Cir. Mar. 25, 2008).

A person who obtains entry into the United States by fraudulent means is statutorily ineligible for adjustment of status under INA §245(a).

On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status under INA §245(a) and a waiver of inadmissibility under INA §212(i). The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry. The BIA affirmed, citing Matter of Burbano, 20 I&N Dec. 872 (BIA 1994).

Under INA §245(a), the status of an alien who was inspected and admitted or paroled into the U.S., may be adjusted to that of a lawful permanent resident in the discretion of the Attorney General if (1) the alien submits an application; (2) the alien is eligible to receive an immigrant visa and is otherwise admissible to the U.S.; and (3) an immigrant visa is immediately available. The term "admitted" is defined as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." INA §101(a)(13)(A) (emphasis added). The court found the statutory language unambiguous - in order to be eligible for adjustment of status under INA §245(a), an applicant's entry into the U.S. must be lawful. See also Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004) (INA §101(a)(13)(A) "leaves no room for doubt, unambiguously defining admission as the lawful entry of the alien into the United States"). Moreover, the court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i).

The petition for review was denied.

Lujan-Armendariz v. INS, Footnote 28

Immigration Courts within the jurisdiction of the Ninth Circuit Court of Appeals have been routinely denying aliens the benefits of the Lujan exception if they have not already expunged their first-time simple possession conviction. The Board of Immigration Appeals has read this exception as narrowly as possible in order to limit the ameliorative affects of this rule. This narrow reading of the Lujan exception is hitting the alien community especially hard. For instance, a Lawful Permanent Resident has taken a negotiated plea on a drug possession charge and the court entered a deferred entry of judgment pending successful completion of Prop 36 Drug Diversion. The county sheriff turns over the alien number to ICE. ICE agents come and take the LPR into custody and the Immigration Courts refuse to release the alien on the basis the alien is subject to mandatory detention provision of INS § 236(c)(1)(C). Once in custody, the alien cannot complete their drug classes and cannot expunge their convictions. Very harsh, but happening all the time.

THE BASIC RULE
In 1994, the Ninth Circuit held that the Federal First Offender Act's ameliorative provisions extended to aliens under an Equal Protection Argument. See Garderding v. INS, 30 F.3d 1187, 1189 (9th Cir. 1994); Matter of Manrique, Int. Dec. 3250 (BIA 1995). This Gaberdingrule further extended the FFOA's ameliorative benefits of the Act to anyone granted relief under a comparable state rehabilitative statute.

Subsequent to Congress’s passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), wherein Congress statutorily codified the definition of what constitutes a “conviction” for immigration purposes, the Ninth Circuit reaffirmed its prior holding in Gaberding, reasoning that the FFOA, and its state equivalent rehabilitative statutes, were not explicitly repealed, nor repealed by implication in the passage of the IIRIRA. The Ninth Circuit held, “in simple drug possession cases any alien who has been accorded rehabilitative treatment under a state statute will not be deported if he establishes that he would have been eligible for federal first offender treatment under the FFOA.” Lujan-Armendariz v. INS, 222 F.3d at 735.

However, at the other end of the spectrum, the Ninth Circuit has held that an alien who could have been eligible for inclusion in a state rehabilitative statute, for a first-time, simple possession charge, but did not availed himself of the ameliorative provisions is not eligible for exclusion of removal under the Lujan exception. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1292 (9th Cir. 2004).

The Ninth Circuit has previously addressed this potential middle ground, in footnote 28 of Lujan, which states in relevant part:
Construing the statute as determining the time at which a conviction occurs, as a general matter, would leave open the question whether the Act [Federal First Offender Act] precludes deportation of an alien who has received a deferred adjudication but has not yet had his proceedings expunged because he has not completed his term of probation and therefore has not yet satisfied a judge that dismissal of the offense is warranted. Our review of the history and purpose of the Act strongly suggests that such a person is protected by the Act's provisions, and our analysis of the law regarding repeals by implication suggests that no implied repeal occurred in that respect either.

Currently the Immigration Courts and the BIA are routinely denying anyone relief if they have not already had their conviction expunged, contrary to the clear intend of the Ninth Circuit. The key is to bring a case before the court so that they can extend their holding to these middle ground cases.