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Matthew Kolken on Deportation And Removal


  1. 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 06:18 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.
  2. BIA Decision: Stepchild is a qualifying relative for Cancellation of Removal

    by , 12-09-2009 at 09:27 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.
  3. President Obama's Empty Immigration Reform Promises

    by , 12-01-2009 at 05:22 AM (Matthew Kolken on Deportation And Removal)
    Am I the only skeptical of President Obama's empty promise of immigration reform in an election year? The way I see it, the President squandered his early popularity and political capital, and is now giving lip service to an issue that he promised to address right out of the gates when asking for our votes.

    It was one of the hallmarks of his campaign and was the carrot dangled to woo the coveted Hispanic vote as well as being an integral part of the "Change" we believed in. With the promise of immigration reform in year-one officially broken we are now supposed to believe that it will happen in 2010 with the mid-term elections looming above. As they say fool me once shame on you, fool me twice shame on me.

    The reason I am so skeptical about the President's sincerity of seriously addressing the issue of comprehensive immigration reform is that actions speak louder than words. So let us look at President Obama's actions.

    It has been reported that President Obama's aunt is facing deportation and the President has turned his back on her. The facts are that the man's own flesh and blood is disabled, and learning to walk again as a result of an autoimmune disorder while facing the threat of removal from the United States, and yet as the leader of the "Free World" he has done absolutely NOTHING in the entire first year in office to address a concern that literally affects millions of individuals in this country, let alone his own family member.

    It is simply unconscionable that a man who has the power of the Executive Branch at his disposal, which ironically includes the very agency that threatens to forcibly remove his elderly, and handicapped family member, is willing to let her fate run its ordinary course. His words not mine. If it were my aunt, she would deserve better.

    Mr. President, your complete inaction on immigration reform speaks volumes of your character, and is simply shameful, especially considering how this issue personally affects you. If you were my relative I would return the favor and turn my back to you. As an ordinary citizen and immigration advocate I am forced to merely turn my back on your Presidency. Bring on 2012.

    "Zeituni Onyango (zay-TUH'-nee awn-YAHN'-goh) told The Associated Press in an exclusive interview that she is troubled that her immigration woes have made her a political liability to her nephew."

    "Onyango said she previously had no trouble visiting Obama when he was state senator in Illinois or after he became U.S. senator, though she declined to discuss details of how often she had contact with Obama and his family."

    "She is disabled and learning to walk again after being paralyzed for more than three months due to an autoimmune disorder called Guillain-Barre syndrome." ~Associated Press

    Updated 07-29-2015 at 08:14 AM by MKolken

  4. A little taste of what immigrants being held in the Stewart Detention Center are forced to endure.

    by , 11-25-2009 at 05:25 AM (Matthew Kolken on Deportation And Removal)
    The following video will give you a little taste of what the individuals who are being housed in Stewart have to endure prior to their deportation. As has been pointed out in the video, the legal issue of deportation in most instances is a civil matter, which does not involve the imposition of jail time, and yet these people are housed like hardened criminals.

    Detention facilities across the country have varying quality standards. Although I have not been to the Stewart Detention facility, I regularly attend hearings in detention facilities and I am often shocked by the inhumane conditions that my clients are forced to endure while fighting to remain in the

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

  5. BIA Decision: Clarification of Voluntary Departure Requirements

    by , 11-20-2009 at 12:06 PM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals has just issued a decision entitled Matter of Catherine VELASCO, 25 I&N Dec. 143 (BIA 2009).
    The Board has ruled that:
    (1) The voluntary departure regulations at 8 C.F.R. 1240.26(c)(4), Nt. (2009), which took effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), do not apply retroactively.
    (2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and the alien failed to timely post the voluntary departure bond required by section 240B(b)(3)of the Immigration and Nationality Act, 8 U.S.C. 1229c(b)(3) (2006), the former regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the penalties imposed by section 240B(d)(1) for failure to depart within the voluntary departure period do not apply.
    (3) Pursuant to 8 C.F.R. 1240.26(c)(3)(ii), Nt., a voluntary departure order entered by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board of Immigration Appeals in its final order on appeal unless the alien provides the Board, within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was timely posted with the Department of Homeland Security.
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