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Matthew Kolken on Deportation And Removal

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  1. BIA remands to Immigration Court for a determination if an individual presents a potential danger

    by , 11-19-2009 at 08:42 AM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals has just issued a precedent decision entitled: Matter of Urena, Interim Decision #3663, 25 I&N Dec. 140 (BIA 2009).
    The Board ruled that:

    (1) Dangerous aliens are properly detained without bond pending the completion of proceedings to remove them from the United States;
    (2) Only if an alien has established that he would not pose a danger to property or persons should an Immigration Judge decide the amount of bond necessary to ensure the alien's presence at proceedings to remove him from the United States; and 
    (3) Where an Immigration Judge characterized an alien seeking release from custody as a "potential" danger to the community but ordered him released upon the posting of a bond amount, the record was remanded for the Immigration Judge to clarify whether the alien met his burden of proving that his release on bond would not pose a danger to property or persons.
  2. 2012 Dobbs-Menendez Match for Senate Seat in N.J.?

    by , 11-18-2009 at 07:49 AM (Matthew Kolken on Deportation And Removal)


    The New York Times has reported that former CNN talking head Lou Dobbs has not denied speculation that he may consider challenging first term incumbent Senator Bob Menendez (D-N.J.) for his seat in 2012. If this were to happen it will be essential for immigration reform activists to get behind Senator Menendez in 2012 when he is up for re-election.

    Senator Menendez is a key figure in the fight for comprehensive immigration reform, and is the co-sponsor of The Military Families Act, a bill that will authorize the adjustment of status for immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts.
  3. BIA Decision: Standard for Adjudicating Motions for Continuance

    by , 11-13-2009 at 05:25 AM (Matthew Kolken on Deportation And Removal)

    The Board of Immigration Appeals has just issued a new decision entitled Matter of Rajah, Interim Decision #3662, 25 I&N Dec. 127 (BIA 2009)
     
    The case involves a native and citizen of Morocco that came to the United States on December 13, 1994 as a visitor.  The Respondent was granted six months of visitor status, but did not depart the United States when his status expired.  Meanwhile the Respondent was able to find unautorized employment in the United States in order to support himself.
     
    The Respondent's employer ultimately filed a labor certification on his behalf on April 30, 2001, which would render him eligible to apply for adjustment of status under former 245(i).
     
    On April 22, 2003, almost ten years after his arrival, immigration court proceedings were instituted against the Respondent charging him with removability for overstaying his visitor status.  The Respondent's first hearing before the Immigration Judge was on May 30, 2003.
     
    The Respondent requested and obtained multiple continuances of his case (thirteen) during an 18-month period. The proceedings were continued to enable him to obtain counsel to represent him, to allow the Department to respond to his motion to terminate proceedings, and to enable the Respondent to provide the Court with a status update on the pending labor certification.
     
    Finally on December 16, 2004, the Respondent sought another continuance based on the pending labor certification, but the Immigration Judge denied his request, and the Board of Immigration Appeals dismissed the appeal.  The case then was reviewed by the Second Circuit Court of Appeals who remanded the case back to the Board of Immigration Appeals for the Board to set "standards that reflect various situations of those seeking such continuances."  See Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008).
     
    On remand the Board ruled that:
     
    (1) In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment -based visa petition or labor certification, an Immigration Judge should determine the alien's place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations;
     
    (2) An alien's unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status; and 
     
    (3) The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.
     
    The Board applied these standards to the Respondent's case and dismissed his appeal because despite the fact that his labor certification was ultimately approved while he was fighting to remain in the United States, an I-140 Petition was not filed within 180 days of the certification.  The Respondent therefore did not have immediate eligibility to apply for adjustment of status despite the fact that he had been grandfathered in under 245(i). 
     
    The Respondent had a new employer who was also willing to sponsor him for his Green Card, but had not taken any steps to begin the process.  As a result the Board dismissed the appeal based upon the Respondent's failure to establish a prima facie case for the relief sought.
  4. Fifth Circuit on Crime of Violence

    by , 11-12-2009 at 07:09 AM (Matthew Kolken on Deportation And Removal)
    The United States Court of Appeals for the Fifth Circuit has ruled in Kerr v. Holder, No. 08-60020 (Nov. 10, 2009), that the Board of Immigration Appeals erred in its application of the categorical approach and failed to apply the modified categorical approach when determining whether false imprisonment under Fla. Stat. 787.02 is a crime of violence.
    The Fifth remanded the case back to the BIA for a proper determination on the issue.
    Matthew L. Kolken, Esq.
  5. Transcript of Oral Argument from Kucana v. Holder (Nov. 10, 2009 SCOTUS)

    by , 11-11-2009 at 10:57 AM (Matthew Kolken on Deportation And Removal)
    The Supreme Court of the United States heard arguments yesterday (Nov. 10, 2009) on the issue of whether 8 U.S.C. Section 1252(a)(2)(B)(ii) precludes federal courts from reviewing rulings of the Board of Immigration Appeals relating to motions to reopen.
    Factually the case involves a citizen from Albania who overslept his alarm, and missed his immigration court hearing.  As a result, his application for asylum was denied and the IJ ordered his removal in absentia. 
    Mr. Kucana filed a motion to reopen the case which was also denied by the Board of Immigration Appeals (BIA) in 2002.  Despite the denial of his appeal Mr. Kucana was not removed from the United States, and four years later, Kucana filed a second motion to reopen citing changed conditions in Albania that warranted reconsideration of his asylum application.
    The BIA denied the second motion to reopen again, and Kucana appealed to the Seventh Circuit Court of Appeals. The Seventh Circuit refused to reverse the BIA finding that it did not have jurisdiction to review the BIA's denial of the motion to reopen in disagreement with several other circuits that have found that they do maintain jurisdiction.
    Shockingly, the Supreme Court of the United States granted cert in this case.  As they say in the immigration trenches: bad facts make bad law.  I'm crossing my fingers.  Personally, I just don't have a ton of sympathy for someone who overslept his alarm.  I'm sure I'm not alone.
    Click here to read the transcript of the oral argument. 
    Click here for the SCOTUS Wiki on the case.
    Matthew L. Kolken, Esq.
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