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Matthew Kolken on Deportation And Removal

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  1. If the rules of the game change, should your client get a second bite at the apple?

    by , 09-30-2009 at 08:05 AM (Matthew Kolken on Deportation And Removal)
    Today I am working on the issue of whether former exclusion proceedings should be reopened when there has been a change in law that materially affects an individual's eligibility for relief from "deportation". 
     
    My argument is that where an alien's motion to reopen/remand is based on a change in the law, the Board of Immigration Appeals must consider whether this newfound ability to file for relief from removal  warrants a favorable exercise of discretion to lift an exclusion order and reopen proceedings. 
     
    In my specific case, we filed a motion with the Board of Immigration Appeals to reopen the former exclusionary proceedings in consideration of my change in law argument. The Board denied our motion without fully addressing the above  issue, and we have filed a Petition for Review with the Second Circuit Court of Appeals to challenge the Board's denial.
     
    I have a Pre-Argument Conference scheduled this Friday to see if there is the possibility of resolving my client's case without the need for briefing. 
     
    Just to bring some humanity to an otherwise esoteric legal issue my client is married to a United States Citizen, and has two United States Citizen Children who are a product of the marriage, one of which has significant medical issues.  This is of importance because my client is from China, and could become subject to persecution relating to China's coercive family planning policies.
     
    I'll follow up after my conference this Friday.
  2. Nonimmigrant Waiver Approved Despite Previous Denial

    by , 09-29-2009 at 07:24 AM (Matthew Kolken on Deportation And Removal)
    Our client is a Canadian citizen.  Unfortunately, eighteen years ago he attempted to enter the United States using someone else's passport.  As a result, he is inadmissible to the United States for life due to his attempted entry fraud. 
    Three times during the past five years he unsuccessfully applied for admission to the United States , and thereafter he applied for a nonimmigrant waiver of inadmissibility, which was denied.
    At this point, we were retained.  We prepared a new waiver application and supported it with a Legal Brief and voluminous exhibits showing why he was deserving of a favorable exercise of discretion.  The waiver was approved for multiple entries as a visitor for business and pleasure.
  3. Second Circuit to Immigration Judge: If you deny asylum, you must give legally sufficient reasons for the denial.

    by , 09-28-2009 at 08:22 AM (Matthew Kolken on Deportation And Removal)
    In an unpublished decision (Madaminova v. Holder, Sept. 25, 2009), the Second Circuit Court of Appeals has put their foot down ruling that an Immigration Judge must give sufficient reasons for denying an application for asylum, and may not simply just say no.  

     
    The Court ruled that conclusory determinations regarding incidents an asylum applicant describes in their application for asylum are insufficient, and that the Immigration Court must explain why it is denying the asylum application. 
     
    The Court further ruled that the Immigration Judge must identify the legal standard relied upon in assessing whether the testified experience constitutes persecution, must consider the cumulative effect of an asylum applicant's experiences as opposed to assessing them in isolation, and may not simply state that the past described incidents simply do not rise to the level of persecution.

     
    Although this case does not have binding precedential effect on other cases arising out of the Second Circuit, it sends a message to Immigration Judges that you can't just say "no" without explaining your answer thereby precluding an asylum applicant from seeking meaningful judicial review of the denial.
  4. Nonimmigrant Waiver Approved to Overcome Drug Trafficking Finding

    by , 09-25-2009 at 05:31 AM (Matthew Kolken on Deportation And Removal)
    Our client is a Canadian citizen. Sixteen years ago she was arrested for attempting to smuggle a hockey bag full of marijuana into the United States . Because of her tender years, and the fact that she had been taken advantage of by a Columbian drug smuggler, she was placed in a Pre-trial Intervention Program and avoided a criminal conviction.

    Eight years ago, Immigration Court proceedings were instituted against her because of this incident. After trial, she was allowed to withdraw her application for admission over the objection of the Department of Homeland Security, and as a result, she was not ordered deported from the United States. However, the underlying ground involving illicit drug trafficking remained.

    We then applied for a non-immigrant waiver for her, supported by our Legal Brief and various exhibits showing why she was eligible for relief. The waiver has now been granted for multiple entries as a visit for business and pleasure.
  5. The Fourth Circuit refuses to rehear an asylum case of a woman who fears that her genitals will be mutilated.

    by , 09-24-2009 at 08:00 AM (Matthew Kolken on Deportation And Removal)
    The Fourth Circuit Court of Appeals has declined to rehear a case involving the denial of an asylum application of a woman from Senegal.  The woman's asylum application was predicated on her parent's intention to forcibly inflict a tribal customary practice commonly referred to as Female Genital Mutilation.  
     
    This procedure involves anything from cutting off the ******** with scissors to the shearing off of the entirety of the visible parts of the female sex organs with a knife and sewing them together using twine. See World Health Organization, Female Genital Mutilation: A Handbook for Frontline Workers 13 (2000).   
     
    The young woman's parents required her to be mutilated in order to marry a man in his sixties.  She fled the country for the obvious reasons, and her father vowed to use all necessary means to have her returned to Senegal to be mutilated and forced to marry against her will.
     
    It is well settled that the practice of female genital mutilation, which results in permanent disfiguration and poses a risk of serious, potentially life-threatening complications, can be the basis for a claim of persecution. See Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996).
     
    Initially, the Immigration Court ruled that the woman was unable to establish that it was more likely than not that as an educated adult she would be subjected to female genital mutilation upon return to Senegal because in Dakar where she lived the United States Department of State indicated that the barbaric practice was not prevalent.  The Board of Immigration Appeals affirmed the Immigration Court's decision, and the woman appealed to the 4th Circuit, who affirmed the Board's ruling. 

     
    In an unusual twist after the Fourth's ruling, Circuit Judge Gregory sought an en banc poll for a rehearing of the case on the forty-sixth day after the decision, but the 4th ultimately declined to rehear the case and again deferred to the Immigration Court's fact finding because they concluded that no reasonable adjudicator would be compelled to conclude to the contrary.  8 U.S.C. 1252(b)(4)(B).  
     
    In the dissenting opinion from the order denying sua sponte rehearing en banc, Judge Gregory stated that "[W]hile I hope that the Supreme Court will grant certiorari to consider Ms. Gomis's case, it cannot remedy the departure from settled precedent in our Circuit which this case represents. With all due respect to the majority, the reasoning contained therein is unsupported by precedent and makes no meaningful effort to distinguish the case from this Circuit's controlling decision in Haoua v. Gonzalez. It is my opinion that the paucity of distinguishing logic is because the facts in Gomis cannot be squared with that decision."  
     
    The woman has filed a petition for writ of certiorari with the United States Supreme Court.  See Gomis v. Holder, 571 F.3d 353 (4th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3091 (U.S. Aug. 11, 2009) (No. 09-194).
     
    It will be interesting to see how this one plays out.
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