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Matthew Kolken on Deportation And Removal


  1. BIA Precedent Decision: Matter of Garcia-Garcia

    by , 10-15-2009 at 05:31 AM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals (BIA) has just issued a precedent decision, Matter of GARCIA-GARCIA, 25 I&N Dec. 93 (BIA 2009) Interim Decision #3657.  The case involves the issue of whether an Immigration Judge is authorized to ameliorate a condition placed on an individual by the DHS when the individual is released from immigration custody.  
    The Department argued that 8 C.F.R. 1236.1(d)(1) does not give an Immigration Judge authority to ameliorate the conditions placed by the DHS on an alien's release from custody, and that pursuant to the regulation, the Immigration Judge is only authorized "to detain the alien in custody, release the alien, and determine the amount of bond, if any, under which the respondent may be released."
    The Respondent countered with the argument in support of the IJ's decision that the final sentence in 8 C.F.R. 1236.1(d)(1) affords the Immigration Judge authority to ameliorate the terms of release imposed on an alien's release by the DHS.
    The Board ruled that:
    (1) An Immigration Judge has authority under section 236(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. 1226(a)(2)(A) (2006), and 8 C.F.R. 1236.1(d)(1) (2009) to review and consider whether to modify the conditions of release imposed on an alien by the Department of Homeland Security ("DHS"); and
    (2) Where the respondent filed an application with the Immigration Judge to ameliorate the terms of release within 7 days of his release from custody by the DHS, the Immigration Judge had jurisdiction to review and modify the condition placed on the respondent's release that he participate in the Intensive Supervision Appearance Program.
  2. Padilla v. Kentucky oral argument transcript

    by , 10-14-2009 at 07:47 AM (Matthew Kolken on Deportation And Removal)
    The United States Supreme Court heard arguments yesterday in Padilla v. Kentucky.  The case invovles a lawful permanent resident of the United States who plead guilty to a drug trafficking offense on reliance on his attorney's advice that the guilty plea would have no adverse immigration consequences.
    The issue argued is whether a lawyer who is representing a non-United States citizen in a criminal matter has the affirmative responsibility to properly advise their client of any adverse immigration consequences that may stem from entering a plea of guilty to a criminal charge.  
    Stephen B. Kinnaird, Esq. argued the case for Padilla. Here is a link to the full transcript of the Padilla v. Kentucky oral argument. U.S. Supreme Court, Oct. 13, 2009. 
  3. Third Circuit Rejects Attorney General Decision

    by , 10-09-2009 at 09:51 AM (Matthew Kolken on Deportation And Removal)
    The United States Court of Appeals for the Third Circuit in Jean-Louis v. Attorney General, No. 07-3311, slip op. (3d Cir. Oct. 6, 2009), dealt with the issue of whether under Pennsylvania law simple assault, when the victim was under 12 years of age, and the assailant was over 20 years of age, is a crime involving moral turpitude. See 18 Pa. Cons. Stat. 2701(b)(2).

    In deciding the issue the Court was required to address a recent opinion of the United States Attorney General, Matter of Silva-Trevio, 24 I&N Dec. 687 (A.G. 2008), that adopted a standard for determining whether a particular crime should be designated as a crime involving moral turpitude ("CIMT"), thereby having immigration consequences.

    The Third Circuit rejected the Attorney General's approach as set forth in Silva-Trevio and instead applied the conventional modified categorical approach to determine whether Jean-Louis's conviction was an offense that constitutes a CIMT.  

    The modified categorical approach enables a Court to look to the record of conviction in the limited circumstance where there is multiplicity in an underlying criminal statute that an individual has been convicted under, and where the minimal conduct contemplated to substantiate a conviction under separate parts of the statute may or may not necessarily involve acts that involve moral turpitude.  In this limited situation a Court may look to the facts of the case in an effort to determine what portion of a criminal statue an individual was found guilty under if there is ambiguity. 

    Once this determination is made, the Court must then turn away from the record of conviction, thereby precluding the Court from entertaining an analysis of the particular facts of the case that resulted in a conviction, and must only categorically analyze the specific subsection of a criminal statute to determine if it necessarily involves moral turpitude.

    The Third concluded that Jean-Louis was not convicted of a CIMT, thereby discarding the "realistic probability test"recently adopted by the Attorney General in Silva-Trevio when rendering its decision ruling that "[b]ecause the INA requires the conviction of a crime--not the commission of an act--involving moral turpitude, the central inquiry is whether moral depravity inheres in the crime or its elements--not the alien's underlying conduct."

    Score one for immigrant rights.
  4. Two New Board of Immigration Appeals Precedent Decisions

    by , 10-08-2009 at 12:14 PM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals has just issued a precedent decision, Matter of G-D-M-, Interim Decision #3655, 25 I&N Dec. 82 (BIA 2009), that involves a 46-year-old native and citizen of the Philippines who was lawfully admitted as on June 17, 1994, as a crewman.  The Respondent has lived in the United States since his 1994 arrival, and has a 10-year-old United States citizen daughter. 

    Immigration Court proceedings were instituted against Respondent ten years after his arrival and he was charged with removal for failing to depart the United States after the completion of his authorized period of admission.  At his removal hearing in 2006 the Respondent stated that he was never employed as a crewman and applied for a form of relief called cancellation of removal that requires a showing that his removal will cause an exceptional and extremely unusual hardship to his United States Citizen daughter.

    The Immigration Judge found that the Respondent was statutorily ineligible for cancellation of removal under section  240A(c)(1), which states that cancellation of removal is not available to "[a]n alien who entered the United States as a crewman subsequent to June 30, 1964" Matter of Goncalves, 10 I&N Dec. 277 (BIA 1963).

    The Respondent appealed the Immigration Court's conclusion that he was a crewman arguing that although he was admitted to the United States with a C1/D visa indicating he was a crewman, that he should not be formally classified as a crewman because he did not enter the United States with current employment aboard a ship.

    The Board of Immigration Appeals dismissed his appeal ruling that an alien who enters the United States pursuant to a crewman's visa for the purpose of obtaining employment as a crewman, even though they did not actually obtain such employment is statutorily ineligible for cancellation of removal under section 240A(c)(1) of the Immigration and Nationality Act, 8 U.S.C. 229b(c)(1) (2006).
    In another case, Matter of Silitonga, Interim Decision #3656, 25 I&N Dec. 89 (BIA 2009), the Board has ruled that under 8 C.F.R. 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application.
  5. Follow up to September 30, 2009 blog: “If the rules of the game change, should your client get a second bite at the apple?”

    by , 10-05-2009 at 09:53 AM (Matthew Kolken on Deportation And Removal)
    In my pre-argument conference last Friday I was unfortunately unable to resolve the case that is currently pending before the United States Court of Appeals for the Second Circuit.  This means that I will have to submit a brief in support of my client's position that the Board of Immigration Appeals should have granted our motion to reopen his exclusion proceedings. My Brief is now due at the end of November, and the Government will have until the end of December to respond.

    There are about a dozen issues in this very complex case, which include Constitutional questions of law relating to the fundamental fairness of the underlying 1994 exclusion proceedings, the legality of the BIA's imposition of impermissible standards relating to the adjudication of our motion to reopen, and the practicality of requiring a formal Bar complaint against an attorney who has been disbarred from the practice of law.

    The questions of law presented will require oral argument before the Court.  I'll continue to update the case as it unfolds.
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