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Matthew Kolken on Deportation And Removal

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  1. Board of Immigration Appeals Rules that Date of Plea Agreement, Not Sentencing, Determines Eligibility for 212(c) Waiver

    by , 11-03-2009 at 05:38 AM (Matthew Kolken on Deportation And Removal)
    Matter of Alejandro MORENO-ESCOBOSA, 25 I&N Dec. 114 (BIA 2009)
     
    The Board of Immigration Appeals has sustained the appeal of a Green Card holder who is a native and citizen of Mexico, and the father of four United States citizen children. Unfortunately, on July 21, 1991, Mr. Morena-Escobosa pled guilty in Arizona for unlawful possession of more than 8 pounds of marijuana.  He was sentenced fourteen years later on October 26, 2005, to more than four years of imprisonment.  The delay in sentencing resulted because Mr. Moreno-Escobosa disappeared after entering his guilty plea.
     
    When Immigration Court proceedings were instituted against Mr. Moreno-Escobosa he argued that despite his conviction he remains eligible to apply for relief from removal under former INA 212(c) because he entered a guilty plea on July 21, 1991, prior to the repealing of INA  212(c). 
     
    Mr. Moreno-Escobosa's argument was predicated on the United States Supreme Court's ruling in INS v. St. Cyr, 533 U.S. 289 (2001), where the Court determined that despite the fact that section 212(c) was repealed in 1996, the waiver remains available as a form of relief from removal to individuals who had been convicted by a plea agreement, and where at the time they entered their plea they would have been eligible for a 212(c) waiver.
     
    The Board agreed with Mr. Moreno-Escobosa sustaining his appeal entering the following ruling:
     
    (1) The date of an alien's plea agreement, rather than the date of sentencing, is controlling in determining whether the alien is eligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c) (1994); and
     
    (2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. 1212.3 (2009), so as to preclude an alien who seeks to waive a deportation ground from establishing eligibility for section 212(c) relief.
     
    The case has been remanded back to the Immigration Court so that the Court can properly evaluate all of Mr. Moreno-Escobosa's equities which include his significant employment history and his volunteer and civic activities.
  2. Kucana v. Holder (08-911)

    by , 11-02-2009 at 10:11 AM (Matthew Kolken on Deportation And Removal)
    On November 10, 2009, the United States Supreme Court is set to hear oral arguments on a case that arose from the United States Court of Appeals for the Seventh Circuit, Kucana v. Holder (08-911).
    The case involves, Kucana, an immigrant from Albania, who applied for asylum but overslept his hearing, which resulted in him being ordered removed in absentia by the Immigration Judge. Kucana then filed a motion with the Court requesting that it reopen his proceeding and vacate the removal order.  His motion was denied, and the Board of Immigration Appeals affirmed the IJ's decision. 
    A second motion to reopen was then filed with an affidavit from a professor of Balkan history, who stated that there was a reasonable fear of future political persecution in Albania. The second motion was also denied partially on the basis that conditions in Albania had improved since the filing of the 1997 asylum application.
    Kucana appealed to the Seventh Circuit Court of Appeals to review the Board's ruling, but the 7th ruled that the Court lacked jurisdiction to review the Board's decision in this case.
    The U.S. Supreme Court granted certiorari in order to clarify whether a court has jurisdiction to review a decision by the Board of Immigration Appeals to reopen an alien's immigration proceeding under 8 U.S.C. 1252(a)(2)(B)(ii).
    The question presented is whether Judicial review of an immigrant's legal claim is set forth in 8 U.S.C. 1252(a)(2)(B)(ii), which limits judicial review of discretionary denials by the Attorney General or the Secretary of Homeland Security, and in what situation does a Federal Appeals Court have jurisdiction to review an immigrant's petition to reopen an immigration proceeding that was based on a discretionary denial.
    More specifically,the Court will address whether the Attorney General's discretionary authority is "specified" under 8 U.S.C. 1252(a)(2)(B)(ii) and includes a decision of the Board of Immigration to deny an alien's motion to reopen an immigration proceeding.
  3. Department of Homeland Security Finds that Domestic Violence Constitutes Sufficient Grounds for Asylum

    by , 10-30-2009 at 07:10 AM (Matthew Kolken on Deportation And Removal)
    The New York Times has reported that the Department of Homeland Security, in a one-paragraph document, has determined that spousal abuse is a sufficient ground for asylum eligibility.

    Department of Homeland Security spokesman Matthew Chandler has stated that the Department "continues to view domestic violence as a possible basis for asylum".  Mr. Chandler further advised that the Department is in the process of writing regulations to govern asylum claims based on domestic violence.

    Score one for the little guy.
  4. Board of Immigration Appeals Decision: Matter of Maria C. YAURI, 25 I&N Dec. 103 (BIA 2009).

    by , 10-29-2009 at 10:18 AM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals has just issued a precedent decision: Matter of Maria C. YAURI, 25 I&N Dec. 103 (BIA 2009). 
     
    The case involves an individual that was subject to a final administrative order of removal as a result of the BIA's dismissal of her appeal. Approximately four years later, On March 24, 2008, an untimely motion to reopen was filed with the Board to enable Ms. Yauri to apply for adjustment of status, which motion was opposed by the Department. 
     
    Subsequent to the submission of the motion to reopen, DHS filed a separate motion to reopen and terminate removal proceedings on the basis that USCIS had adjudicated the respondent's adjustment of status application and had granted her lawful permanent residency on February 25, 2009.  The Board granted the DHS motion to reopen and terminate, denying the Respondent's motion.
     
    The Board's ruling in the case is that:
     
    (1) With a narrow exception not applicable to this case, the United States Citizenship and Immigration Services ("USCIS") has exclusive jurisdiction to adjudicate an arriving alien's application for adjustment of status under 8 C.F.R. 245.2(a)(1) (2009) and agrees that it retains jurisdiction to adjudicate the application even where an unexecuted administratively final order of removal remains outstanding.
     
    (2) The Board of Immigration Appeals generally lacks authority to reopen the proceedings of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief over which the Board and the Immigration Judges have no jurisdiction, especially where reopening is sought simply as a mechanism to stay the final order while the collateral matter is resolved by the agency or court having jurisdiction to do so.
     
    (3) With regard to untimely or number-barred motions to reopen, the Board will not generally exercise its discretion to reopen proceedings sua sponte for an arriving alien to pursue adjustment of status before the USCIS.
  5. Study Finds Immigration Enforcement Has Undermined Workers' Rights

    by , 10-28-2009 at 06:47 AM (Matthew Kolken on Deportation And Removal)
    The AFL-CIO, American Rights at Work and the National Employment Law Project has determined that the United States policy on immigration enforcement that utilizes workforce raids by "inadequately trained enforcement agents" has negatively impacted workers who were both born in the United States, and those who have been the target of the enforcement efforts.

    The report, ICED OUT: How Immigration Enforcement Has Interfered with Workers' Rights , examines the need for the Department of Labor to protect workers' rights in conjunction with Immigration and Customs Enforcement's mandate to enforce immigration laws. The report points to ICE's failures that have exacerbated the problem contributing to the undermining of all workers' rights.
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