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Matthew Kolken on Deportation And Removal


  1. ICE has secret detention and torture network within US borders [Video]

    by , 12-28-2009 at 06:40 AM (Matthew Kolken on Deportation And Removal)

    Updated 04-12-2016 at 01:03 PM by MKolken

  2. Litigation Clearinghouse Newsletter Vol. 4, No. 14

    by , 12-24-2009 at 06:08 AM (Matthew Kolken on Deportation And Removal)
    The American Immigration Council Legal Action Center has released the December issue of the Litigation Clearinghouse Newsletter.
    This issue covers: "the Supreme Court's grant of certiorari in an immigration case involving whether a second drug possession offense is an aggravated felony, a new LAC resource on motions to suppress, favorable court of appeals' decisions on detention and crimes of violence, and res judicata in removal proceedings."
    Click here to read the newsletter in .pdf format.
  3. SCOTUS to Hear Immigration Case Relating to Deportation Consequences of Drug Convictions

    by , 12-15-2009 at 06:40 AM (Matthew Kolken on Deportation And Removal)
    The Supreme Court of the United States (SCOTUS) has granted cert. in a case involving the issue of whether a conviction under state law for simple drug possession, which is a federal misdemeanor, is an "aggravated felony" which has distinct and fatal immigration consequences.
    The issue before the Court arose out of the 5th Circuit and 7th Circuit Courts of Appeal.  The case from the 7th in unpublished. The title of the case is Carachuri-Rosendo v. Holder; Escobar v. Holder, Docket: 09-60; 09-203.
    The question presented in the Petition for Writ of Certiorari is whether:

    Under the Immigration and Nationality Act, a lawful permanent resident who has been "convicted"of an "aggravated felony" is ineligible to seek cancellation of removal. 8 U.S.C. 1229b(a)(3). The courts of appeals have divided 4-2 on the following question presented by this case:
    Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been "convicted" of an "aggravated felony" on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.
    You can follow the case more closely on It will be very interesting to see how this one plays out.
    Matthew L. Kolken
  4. Board of Immigration Appeals finds a way to look to the facts that resulted in a conviction rather than evaluating the underlying statute

    by , 12-10-2009 at 07:18 AM (Matthew Kolken on Deportation And Removal)
    The Board of immigration Appeals has ruled in Matter of Martinez-Serrano, Int. Dec. 3666, 25 I&N Dec. 151 (BIA 2009) has ruled that:

    (1) An alien's conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. 2(a) (2006) and 8 U.S.C. 1325(a)(2) (2006) establishes that the convicted alien is removable under section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(1)(E)(i) (2006); and

    (2) Where the facts underlying the respondent's conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under section 237(a)(1)(E)(i) of the Act.

    The case involves a native and citizen of Mexico who obtained her Green Card on December 1, 1990. Approximately sixteen years later she was convicted for violating 18 U.S.C. 2(a) (2006) because allowed 15 undocumented individuals to hide in her house. This is a misdemeanor offense, and she was sentenced to 90 days in jail.

    She was also charged with violating 8 U.S.C. 1325(a)(2) (2006) for harboring illegal aliens. This charge was dropped as part of her plea agreement.

    In her plea agreement the Respondent admitted that she harbored 15 individuals in her home, that she knew that the individuals were in the United States without authorization, and that the reason she was harboring them was to assist them in eluding examination by Immigration authorities.

    The Respondent was placed in removal proceedings and charged with removal under section 237(a)(1)(E)(i) of the Act for knowingly aiding and abetting a noncitizen to enter the United States in violation of law. The respondent denied that she assisted the aliens to enter the country. At the individual hearing the DHS introduced the respondent's conviction record which included her plea agreement.
    The Immigration Judge found that although the evidence showed that the respondent harbored aliens after their entry, there was insufficient evidence to establish that she helped them enter the country illegally. As a result the IJ found that the ground of removal was not sustained by the Department, and terminated the proceedings. The Department appealed.

    The Board of Immigration Appeals reviewed the case and concluded that the removal ground that the respondent was charged did not require a conviction, the factual basis for the criminal charges brought against the respondent was tied to their manner of entry, and she maintained a specific intent to harbor them specifically to assist them in eluding inspection or examination by immigration officials.

    The Board disagreed with the Immigration Judge's finding that he was precluded from looking at the underlying facts of the respondent's conviction, and the Board found that the Immigration Judge erred in refusing to consider the documents in the record stating the factual basis for the respondent's conviction.

    As a result the Board sustained the Department's appeal finding that they established by clear and convincing evidence that the respondent knowingly assisted aliens to enter the United States in violation of law and as a result she is removable as charged.

    The case has been remanded back to the Immigration Judge for consideration of any relief from removal that may be available.
  5. BIA Decision: Stepchild is a qualifying relative for Cancellation of Removal

    by , 12-09-2009 at 10:27 AM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals has ruled that a stepchild who meets the definition of a "child" under section 101(b)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(B) (2006), is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. 1229b(b)(1)(D) (2006).* See Matter of Portillo-Gutierrez, ID 3665, 25 I&N Dec. 148 (BIA 2009)
    The*case involved*a 30-year-old native and citizen of Mexico that entered the United States on or about September 1, 1996, without being admitted or paroled. The respondent married a lawful permanent resident on May 25, 2007,*and there are two sons that are a product of the relationship.* The Respondent's wife*has two other children,*a son and a daughter.* The Respondent's step-daughter*has*medical conditions, speech difficulties, and both present and future special needs.*The Respondent*is the primary caretaker of all of the children.
    The Immigration Judge found that the Respondent was statutorily eligible for cancellation of removal but denied the requested relief because he found that the Respondent's step-child was not a qualifying relative for the purpose of establishing the requisite hardship.
    The Board disagreed and*remanded the record back to*the Immigration Judge so that he could*reevaluate his findings concerning the hardship that the Respondent's family might suffer if he is removed from the United States.
    Matthew L. Kolken, Esq.
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