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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 03:11 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 03:14 PM by MKolken

  2. Prosecutorial Discretion for Removal Cases May be Coming to an End

    by , 01-27-2017 at 09:55 AM (Matthew Kolken on Deportation And Removal)
    I just received a report that yesterday a conference call was scheduled among Offices of Chief Counsel to discuss President Trump's new executive orders with respect to guidance for requests for prosecutorial discretion for individuals in removal proceedings. As of the writing of this blog there is no new news to report, however instructions may be issued as early as today or Monday, but it is my understanding that prosecutorial discretion is still being exercised by Office of Chief Counsel.

    That said, there are also reports nationwide that certain local ICE offices have put a hold on processing prosecutorial discretion requests. I will keep you posted as new information becomes available.

    Update: I just received a report that in Miami local Office of Chief Counsel is no longer considering prosecutorial discretion requests, nor are they willing to join in joint motions to reopen old deportation cases.

    Update: All prosecutorial discretion requests are now currently on hold in Buffalo until further notice.

    Updated 01-27-2017 at 12:21 PM by MKolken

  3. The President Does Have the Power to Limit Deportations

    by , 11-26-2013 at 11:41 AM (Matthew Kolken on Deportation And Removal)
    Yesterday, President Obama gave a speech in San Francisco where he was confronted by California Berkeley graduate Ju Hong who pleaded with the President to do something to stem the tide of deportations hallmarking his presidency. Mr. Hong specifically asked: "Mr. President, please use your executive order to halt deportations for all 11.5 undocumented immigrants in this country right now."


    The President's response was as follows:

    But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal that you want to achieve. But it won’t be as easy as just shouting. It requires us lobbying and getting it done. (Applause.)

    In sum, the President said that he is bound to enforce our nation's immigration laws, and is powerless to do anything to limit the carnage of his own deportation grinder. It appears that the President has forgotten about the Morton memo, Deferred Action for Childhood Arrivals, Provisional Unlawful Presence Waivers, and the most recent memorandum providing Parole in Place for Military Families.

    So clearly there is precedent that this President has the authority to favorably exercise prosecutorial discretion on behalf of deserving groups of immigrants. Point being, the President was being disingenuous at best, and lying at worst when he said that you would have to "pretend" that he can do something. He clearly can do something. He already has. Four times. Unless of course he is now saying that his previous prosecutorial initiatives were in violation of law. But I'm sure he wasn't saying that. No, he certainly was not.

    It is firmly established that the President decidedly has the authority to exercise prosecutorial discretion, and he should exercise that authority to an expanded group of undocumented immigrants. For example deferred action for parents of DACA recipients, and parents of United States citizen children under the age of 21. He could also expand parole in place for immediate relatives of citizens that are statutorily ineligible to adjust status because they entered without inspection. These are just a few examples, but they are a start.

    A CNN/ORC poll that was released this week found that a majority of Americans think President Obama is not honest or trustworthy.

    His latest appearance isn't helping matters.

    Updated 11-26-2013 at 05:11 PM by MKolken

  4. Paper Examines the Failure of the Prosecutorial Discretion Initiative

    by , 10-18-2013 at 09:18 AM (Matthew Kolken on Deportation And Removal)
    Nina Rabin, Co-Director of the Immigration Law Clinic at the University of Arizona's James E. Roberts College of Law, has written a paper entitled "Victims or Criminals? Discretion, Sorting, and Bureaucratic Culture in the U.S. Immigration System."

    From the abstract:

    This article examines the Obama Administration’s effort to encourage the use of prosecutorial discretion by Immigration and Customs Enforcement (ICE), the executive agency in charge of the enforcement of immigration laws. Since 2010, the Obama Administration has repeatedly stated that agency officials are to focus enforcement efforts on those who pose a threat or danger, rather than pursuing deportation of all undocumented immigrants with equal fervor. Yet despite repeated directives by the administration, the implementation of prosecutorial discretion is widely considered a failure. Data and anecdotes from the field suggest that ICE has yet to embrace this more nuanced approach to the enforcement of immigration laws.

    In this article, I argue that one key reason that prosecutorial discretion has not taken hold within ICE is the failure of the President and his administration to adequately account for agency culture. In particular, the prosecutorial discretion initiative directly conflicts with the central role that criminal convictions play in ICE culture. To support my argument, I present an in-depth case study of the agency’s refusal to exercise discretion in a highly compelling case. For over two years, ICE aggressively prosecuted a client of University of Arizona’s immigration clinic who appeared to be the quintessential recipient of prosecutorial discretion, as the victim of domestic violence, sex trafficking, and the primary caregiver for three young U.S citizen children. Despite these equities, ICE’s decision to prosecute was based wholly on the single conviction on her record, which was directly related to her victimization and for which she received a sentence of probation only.

    I situate this case study in a theoretical framework regarding bureaucratic culture. Applying this analysis to ICE brings into focus key elements of the agency’s culture, particularly its tendency to view all immigrants as criminal threats. This culture makes the sole fact of a conviction – without regard to its seriousness or context – a nearly irreversible determinant of the agency’s approach to any given case. My analysis of the nature and intensity of ICE’s bureaucratic culture has troubling implications for the capacity of the President and his administration to implement reforms that counter the lack of nuance in the immigration system’s current legal framework. It suggests that locating discretion primarily in the enforcement arm of the immigration bureaucracy has inherent limitations that lead to a system poorly designed to address humanitarian concerns raised in individual cases.

    Click here to download the paper.

    Updated 10-18-2013 at 09:21 AM by MKolken

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