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Matthew Kolken on Deportation And Removal

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  1. BIA Rules Deportation Priorities May Not Be Considered by Immigration Judges

    by , 04-18-2017 at 02:11 PM (Matthew Kolken on Deportation And Removal)
    This is an important case.

    Matter of W-Y-U-
    , 27 I&N Dec. 17 (BIA 2017)
    :

    (1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

    (2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

    Click here to read the entire decision.

    Updated 04-18-2017 at 02:14 PM by MKolken

  2. President Trump Continues to Protect Undocumented Immigrants with DACA

    by , 02-22-2017 at 08:02 AM (Matthew Kolken on Deportation And Removal)
    Lost in all of the Trump deportation hysteria is the fact that on February 20, 2017, a memorandum was issued by Department of Homeland Security Secretary John Kelly that specifically reinforces protections previously issued in favor of individuals benefiting from Deferred Action for Childhood Arrivals (DACA), as well as parents of United States citizens or lawful permanent residents (DAPA) by protecting them from deportation.

    From the memorandum:

    With the exception of the June 15, 2012, memorandum entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children," and the November 20, 2014 memorandum entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents," all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal are hereby immediately rescinded- to the extent of the conflict-including, but not limited to, the November 20, 2014, memoranda entitled "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants," and "Secure Communities."

    It should be noted that the November 20, 2014 memorandum was enjoined by a U.S. District Court Judge.

    What this means is that Trump has not revoked DACA, those who have it may continue to benefit from work authorization, and President Trump has extended protections from deportations to people with citizen or green card holding children and they should also not be at risk of being deported.

    I can also attest to the fact that government lawyers have acknowledged in open court that their new directive from Headquarters relating to individuals with DACA, or that are DACA eligible is to agree to continuances as the individuals are not a priority for deportation.

    There is always a silver lining.

    Updated 02-22-2017 at 08:17 AM by MKolken

  3. Meet the New Boss, Same as the Old Boss

    by , 01-26-2017 at 10:30 AM (Matthew Kolken on Deportation And Removal)



    Yesterday, there was a tornado of activity on the immigration front coming from the White House. President Trump signed two executive orders relating to immigration. One focused on border security, and the other on interior immigration enforcement.

    Im focusing this explanation on the latter, and more specifically the establishment of new deportation enforcement priorities, which were contained in Section 5 of the interior immigration enforcement executive order. These new priorities supersede the November 20, 2014, memorandum of then Secretary Jeh Johnson.

    The new executive order established the following deportation priorities:

    5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2) (Crimes), (a)(3) (Security Related Grounds), and (a)(6)(C) (Material Misrepresentation Fraud), 235 (Expedited Removal),and 237(a)(2) (Crimes, Controlled Substances, Firearm Offenses, Domestic Violence, Stalking, Violation of a Protective Order, and Crimes against Children) and (4) (Security Related) of the INA (8 U.S.C. 1182(a)(2), (a)(3),and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:

    (a) Have been convicted of any criminal offense;
    (b) Have been charged with any criminal offense, where such charge has not been resolved;
    (c) Have committed acts that constitute a chargeable criminal offense;
    (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
    (e) Have abused any program related to receipt of public benefits;

    Updated 01-26-2017 at 10:52 AM by MKolken

  4. Obama is Still Prioritizing the Deportation of Refugee Children

    by , 02-05-2016 at 08:23 AM (Matthew Kolken on Deportation And Removal)
    On February 3, 2015, the Department of Justice, Executive Office for Immigration Review (EOIR) issued a memorandum advising immigration judges to reassess the scheduling of specific types of deportation cases. This is the first time there has been a formal change of docketing priorities since the summer of 2014, when the Obama administration decided to fast track refugee children through the deportation process, preferably without a lawyer.

    This is great news right? Obama is finally prioritizing the deportation of serious criminals like he has repeatedly said he would? Wrong. Refugee children are still number one the deportation priority list.

    Here is the order:

    • Unaccompanied children that aren't in custody;
    • Mothers with their children that aren't in custody;
    • Mothers with children that are in custody;
    • And finally recent border crossers in custody.

    After immigration judges schedule all of the above for a deportation hearing they can then turn their attention to deporting serious criminal and national security risks.

    #ThanksObama
  5. Obama Admin Still Not Targeting Serious Criminals

    by , 09-01-2015 at 05:56 AM (Matthew Kolken on Deportation And Removal)
    From Syracuse University's TRAC Immigration:



    "According to ICE detainer-by-detainer records released to TRAC, during April 2015 only about one third (32%) of individuals on whom detainers were placed had been convicted of a crime. And only 19 percent had a felony conviction. Fully two-thirds had no criminal conviction of any type (see Figure 2). This contrasts sharply with the announced goal that, unless an individual "poses a demonstrable risk to national security," "ICE should only seek transfer of an alien in the custody of state or local laws enforcement" when that person had been "convicted of specifically enumerated [serious] crimes." [Emphasis supplied.]

    Data for April 2015 thus provide little evidence that ICE has begun to limit detainer requests to individuals with serious convictions, let alone to persons convicted of at least some minor offense. If anything, the trend has since moved opposite what might have been expected based on the new directive. Individuals with criminal convictions have become significantly less common among detainers issued during April 2015 than they were during the FY 2012 FY 2013 period. As TRAC has reported, during that period half of detainers issued were for individuals with a criminal record, not just one third. An even smaller percentage roughly one in five had a felony conviction in either period. This seems to stand at odds to what is called for in Secretary Johnson's directives."

    TRAC also found that "fewer than one out of every five detainers seem to have met the 'special circumstances' set out under Secretary Johnson's directive; this is virtually unchanged from what was observed for the period from FY 2012 through the first four months of FY 2013."

    In sum, and as I predicted, the Obama administration's "deportation priorities" aren't worth the paper they are written on.
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