Ninth Circuit Court of Appeals Asylum Handbook

I recently ran across this handy little pdf file from the Ninth Circuit Court of Appeals which lists all the precedent cases involving asylum, withholding, and claims under the Convention Against Torture and thought I should post it on my blog site.

I will be drafting an opening brief to the Ninth Circuit on a CAT claim involving a Mexican National who was tortured by the drug cartel in a kidnapping for ransom scheme. The IJ and the BIA both conceded that he in fact was tortured, but held that he could safely relocate inside of Mexico. Our argument is that the breakdown of law and order inside of Mexico is so severe that there is no safe location in Mexico where the narco-gangs do not have influence or actual control.








9th Circuit Asylum Precedent Handbook -

IDENT / IAFIS Screening

I am reading an interesting book about the US Mexican Border, written by Tim Gaynor, a Reuters Reporter who spent years along the border and was named the 2007 Reuters Journalist of the Year for his immigration coverage.

In his book, Tim describes the IDENT system which is used to screen anyone arriving in the US by checking the arriving person's two index fingers against an immigration database. This is the first biometrics system going down a path of ever greater investigation available to all border stations and airports.

Another system also in use behind the scenes is the Automated Fingerprinting Identification System (IAFIS), which is a more thorough check that reads all ten digits and matches them against law enforcement databases. It is about the size of a tissue box. A detainee's thumbs are run over rollers and held against a flat pane of glass on top of the box, where they are photographed by a digital camera. Then all four fingers on each hand are wiped and held up against the glass and are photographed in turn.

"The IAFIS program scans the unrepeatable sequence of nodes and intersections in each of the prints and transforms it into a numerical code. The results are then matched with data held digitally in a live crime database held by the National Crime Information Center (NCIC) that holds information from federal. state, and local law enforcement throughout the US, as well as details on suspects, criminals, and fugitives sought by Interpol." Midnight on the Line, pg. 90.

California Penal Code § 1016.5 - Motion to Vacate Conviction

Just took on a case involving a Salvadorian National who had lawful status in the U.S. under TPS, (Temporary Protected Status). One of the requirements to maintain TPS status is that any alien cannot be convicted of a felony, or two misdemeanors.

Our client received two misdemeanor conviction, one of which was a conviction for Possessing an Assault Weapon, in violation of Penal Code § 12280(b).

We have two questions surrounding this conviction, one was the weapon actually an assault weapon under the statute, and two did our client receive the required advisement of any immigration consequences of taking a plea for possession.

The current state of the law within California was decided in People v. Superior Court (Zamudio), (2000) 23 Cal. 4th 183.In its decision, the California Supreme Court handed down a far-reaching decision concerning any post-conviction motion to vacate a conviction, specifically under Penal Code section 1016.5. The Court held that in order for a defendant to prevail on a motion to vacate, the defendant must show prejudice stemming from the trial court's failure to give the required advise concerning one or more of the 3 potential immigration consequences of a conviction: deportation, exclusion, and denial of naturalization, all in violation of 1016.5.

So our plan is to use a 1016.5 motion to get on the calendar and then to also argue the actual gun in questions was not in fact an assault weapon under the criminal statute.

Enforcement of H-1B Labor Condition Application

Nonimmigrant Employment Visa - LCA Enforcement

We took on a case involving an Indonesian Native who was sponsored by an Accounting Firm on an H-1B Visa Petition. The company filed the I-129, LCA, and supporting documents, and obtained an approved H-1B Visa for our client from 2008 to 2011.

However, once the visa approval was obtained, then dismissed him and never paid him according to the LCA contracted rate. Under the parlance of the U.S. Department of Labor (DOL), they "parked him." An employer can lawfully "park" one of their H-1B alien employees, but they are required to continue paying that individual.

20 C.F.R. § 655.731(c)(4) states, "If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), . . . the employer is required to pay the salaried employee the full pro-rata amount due, . . . at the required wage for the occupation listed on the LCA."

The only way that an employer can remove their obligation is by complying with 20 C.F.R. § 655.731(c)(7)(ii) which states in pertinent part, "Payment need to be made if there has been a bona fide termination of the employment relationship.INS regulations require the employer to notify the INS that the employment relationship has been terminated so that the petition is cancelled. See 8 C.F.R. § 214.2(h)(11)."

Pursuant to 20 C.F.R. § 655.806, our office filed with the DOL Employment Standards Administration (ESA), Wage and Hour Division (WHD) a Form WH-4 Complaint for all the backpay our client is entitled to.

Ninth Circuit Holds that a Probation Violation Terminates Eligibility for the Lujan Exception

Sad to report that a recent Ninth Circuit Court decision limits an immigrant's eligibility for the Lujan Exception to a First-time, simple possession narcotics conviction. The original holding in Lujan found that under the Equal Protection Clause of the Constitution, anyone, even an alien should be treated equally under the law.



Estrada v. Holder -

Now that this exception has been caved out of Lujan, it is essential that anyone eligible for relief under Lujan must not violate the terms of their probation or they will still face deportation.

USCIS Denies Family Based Visa Petition under Adam Walsh Act

Our office has two cases where a U.S. citizen has filed I-130 Petitions for an Immediate Relative, their spouses, only to have USCIS issue intent to deny letters based upon their interpretation of the Adam Walsh Act of 2006.

The letters read in part,
"On July 27, 2006, the President signed the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248, to protect children from sexual exploitation and violent crimes, to prevent child abuse and child pornography, to promote Internet safety and to honor the memory of Adam Walsh and other child crime victims.

Sections 402(a) and(b) of the Adam Walsh Act amend section 101(a)(15)(K), 204(a)(1)(A) and 204(a)(1)(B)(i) of the INA to prohibit U.S. citizens and Lawful Permanent Residents who have been convicted of any 'specified offense against a minor' from filing a family-based visa petition on behalf of any beneficiary, unless the Secretary of the Department of Homeland Security determines in his of her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary of the visa petition. "

One of our clients was convicted of statutory rape, which was the result of consentual relations between a girl of 14 and an 18 year old boy, all of which occurred over 20 years ago.

Stay posted on how this case finally resolves. I sense some weighty constitutional issues implicated by Congress enacting this harsh ex post facto penalty and impinging upon a fundamental right to marry.

INA § 287(g) - Turning Local Police into Federal Immigration Authorities

Homeland Security Secretary Janet Napolitano announced the expansion of the controversial 287(g) program to eleven new locations across the country. This program allows local law enforcement agencies to enter into agreements with Homeland Security’s Immigration and Customs Enforcement, or ICE. It effectively gives local police the powers of federal immigration agents.

Amy Goodman on Democracy Now recently covered this story in her program.

However, what is particularly uncomfortable for me is the convergence between this 287(g) program and the US-VISIT initiative using multiple layers of security, including the use of biometrics, such as digital fingerprints, to establish and verify international travelers' identities. US-VISIT also includes LPR's even though they are not actually seeking admission when crossing the U.S. border.

The use of these two programs in conjunction is creating the "Big Brother" effect that Orwell warned the world about in 1984. US-VISIT database is now linked to NCIC database (the National Crime Information Center) which all local law enforcement agencies check when someone is detained. One example of how this works is the situation of a non-immigrant visitor on a tourist visa who has overstayed their permitted stay. They are a passenger in a vehicle stopped for a routine traffic stop. The officer runs the ID's through NCIC and the visitor's name pops up as an overstay from the US-VISIT database. The officer is commissioned under 287(g) to enforce immigration laws and now takes the visitor into immigration detention and turns the person over to ICE to initiate removal proceedings.

Total information awareness, thank you Admiral Poindexter.