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Matthew Kolken on Deportation And Removal


  1. Delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony

    by , 07-08-2010 at 05:06 AM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals (BIA) has just overturned a May 6,
    2008, order of an immigration judge that found an alien deportable under
    former sections 241(a)(2)(A)(iii), and (B)(i) of the Immigration and
    Nationality Act, 8 U.S.C. 1251(a)(2)(A)(iii) and(B)(i) (1994), as an
    alien convicted of an aggravated felony and a controlled substance

    In this specific case the alien is a native and citizen of El Salvador.
    He entered the United States without inspection on March 28, 1984, and
    was subsequently convicted on September 4, 1996, in the 185th District
    Court of Harris County, Texas for delivery by actual transfer of a
    simulated controlled substance (cocaine).

    The BIA ruled that the offense of delivery of a simulated controlled
    substance in violation of Texas law is not an aggravated felony, as
    defined by section 101(a)(43)(B) of the Immigration and Nationality Act,
    8 U.S.C. 1101(a)(43)(B) (2006), but it is a violation of a law
    relating to a controlled substance under former section 241(a)(2)(B)(i)
    of the Act, 8 U.S.C. 1251(a)(2)(B)(i) (1994). See Matter of Fidel
    Antonio SANCHEZ-CORNEJO, 25 I&N Dec. 273 (BIA 2010)

    The BIA reasoned that a State drug offense may only
    constitute an aggravated felony under the "illicit trafficking" clause
    if it is (1) a felony under the law of the convicting sovereign that (2)
    involved "unlawful trading or dealing" in (3) a Federally controlled
    substance. Therefore, because simulated cocaine is not a Federally controlled
    substance, a conviction for delivery of a "simulated" controlled substance does not constitute an "illicit
    trafficking" offense, and therefore is not an aggravated felony.
  2. Showdown over Immigration

    by , 07-07-2010 at 11:43 AM (Matthew Kolken on Deportation And Removal)
    "The legal showdown over Arizona's immigration law puts the spotlight on
    the emotional debate over issue. It has sharply divided people along
    political, ideological and ethnic lines. State senator and author of the
    Arizona law Russell Pearce and Isabel Garcia, deputy public defender in
    Pima County, Arizona have a heated discussion with CNN's Tony Harris" ~Sydney McIntosh: Associate Producer CNN
  3. Somali detained in Montreal no-fly list case released from immigration custody

    by , 07-07-2010 at 06:02 AM (Matthew Kolken on Deportation And Removal)
    My client, Abdirahman Ali Gaal, has been released from immigration custody and has been reunited with his family in Seattle, Washington.  Mr. Gaal is a citizen of Somalia, and is a lawful permanent resident of the United States.  This past spring Mr. Gaal spent approximately two months abroad on vacation.  When attempting to return home Mr. Gaal's May 30, 2010 Aeromexico flight that was en route to Mexico was diverted to Montreal, Canada by United States officials because of his placement on a "no-fly" list.  Once in Canada, Mr. Gaal was returned to the United States by Canadian authorities, and was taken into custody by U.S. immigration officials who instituted removal proceedings against him.  My client has been charged with abandoning his Green Card because he went to Canada in 2008 for ten months to console his grieving spouse whose mother had a stroke that ultimately took her life.  The Government has also alleged that Mr. Gaal is inadmissible to the United States for having committed a crime in Canada that he has
    never been charged with, and that he is not guilty of.  The alleged criminal violation relates to him using a name on a Canadian convention refugee application that was not currently his legal name.  The name Mr. Gaal put on his application is a name that
    he has legally used in the past, and is a family name culturally.  Parenthetically, Mr. Gaal withdrew his application prior to ever being scheduled for an interview with Canadian immigration authorities. Mr. Gaal returned to the United States in 2008 after he burried his mother-in-law, resuming his lawful
    status as a Green Card holder.  At that time he was inspected and admitted to the United States by U.S. immigration officials after having disclosed the length of time he was in Canada, and that he had applied for status in Canada that was ultimately withdrawn.  Mr. Gaal then remained in the U.S. until this
    last trip abroad in 2010. When Mr. Gaal was last in Canada after having his flight diverted, the Canadian authorities did not elect to charge Mr. Gaal with a crime, presumably because he hasn't committed one. Mr. Gaal is not currently facing any criminal charges in the United States.  The Department of Homeland Security instead elected to institute immigration proceedings against him rather than hold him under suspicion. Immigration Court proceedings are currently scheduled this Thursday in Batavia, New York but it is anticipated that venue will be changed to Seattle, Washington as a result of Mr. Gaal's release from immigration custody.We intend to vigorously defend the charges against Mr. Gaal as they are entirely frivolous.
  4. Second Circuit Albanian Asylum decision: what constitutes a "political act"

    by , 07-06-2010 at 05:59 AM (Matthew Kolken on Deportation And Removal)
    The U.S. Court of Appeals for the Second Circuit has issued a nonbinding summary order that reverses a denial of an application for asylum, remanding the case back to the Board of Immigration Appeals (BIA) for further proceedings.  See Volaj v. Holder, July 1, 2010, unpub. The case involves two Albanians: a mother and her son.  In her appeal Volaj argues that the BIA misapplied the holding in Yeuqing Zhang v. Gonzales, 426 F.3d 540, 547-48 (2d Cir. 2005) in finding that her husband's whistle-blowing activities did not constitute an expression of political opinion for purposes of qualifying as a refugee under 8 U.S.C. 1101(a)(42).

    Although this case doesn't constitute binding precedent it is worth noting because the 2nd revisited its previous ruling in Zhang that "[w]here the dispute is such that the asylum seeker did not merely seek economic advantage but mounted a challenge to the legitimacy and authority of the ruling regime itself, and where the applicant can show that this 'political threat' is the motive for the persecution perpetrated or feared, the applicant can meet the definition of a 'refugee.'" Yeuqing Zhang 436 F.2d at 547.Keep this case in your toolbox.
  5. In the wake of President Obama's "Immigration Reform" Speech ICE Launches Deportation Sting in Philadelphia

    by , 07-03-2010 at 03:41 AM (Matthew Kolken on Deportation And Removal)
    In the wake of Obama's "immigration reform"
    speech he once again illustrates how he is the most enforcement-centric
    President in the history of our country. It has been reported that 23 cab drivers in Philadelphia have been caught in an Immigration and Customs Enforcement sting operation, and are now facing deportation from the United States. How many times do we have to
    be lied to by this President before we say enough is enough.
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