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Matthew Kolken on Deportation And Removal


  1. Ex-Marine Caught Surfing Child Pornography found Not Deportable by 9th Circuit

    by , 10-01-2009 at 05:21 AM (Matthew Kolken on Deportation And Removal)
    The 9th Circuit Court of Appeals has just ruled that a conviction for violating Article 92 of the Uniform Code of Military Justice ("U.C.M.J.") is not an aggravated felony, and therefore not a deportable offense. Aguilar-Turcios v. Holder, Sept. 29, 2009.

    The case involves an Ex-Marine Rigoberto Aguilar-Turcios who became a lawful permanent resident in 1996, and who joined the Marine Corp in June 2000.  His conviction on under Article 92 relates to his unauthorized use of government computers for the purpose of surfing **** on the internet.  On face value this seems innocent enough, but unfortunately the pornography that Mr. Aguilar was surfing involved minor children.

    In September 2005, the government initiated removal proceedings against Aguilar, charging him with being subject to removal because they alleged that his conviction was an aggravated felony as defined in 8 U.S.C. 1101(a)(43)(I).

    Understandably, a person is deportable from the United States as an aggravated felon if they are convicted of an offense that involves child pornography.  See 18 U.S.C. 2252(a)(2), (a)(4).

    The question that the 9th Circuit was forced to analyze was not whether Mr. Aguilar should be deported for surfing child pornography, but instead whether the minimal conduct required to substantiate a conviction under Article 92 in any way involves a depiction of a minor engaging in sexually explicit conduct.  As a result, the 9th was required to ONLY look at the language contained in Article 92 to determine if Aguilar's conviction was an aggravated felony, and not the fact that he was viewing child pornography.

    In order to determine if a conviction under Article 92 constitutes an aggravated felony the 9th utilized a system of evaluation known as the categorical approach which requires an examination of the language of the underlying statute that an individual has been found guilty under. See Taylor v. United States, 495 U.S. 575, 600-02 (1990).  Under the categorical approach the court is not permitted to consider the specific conduct that resulted in the conviction or the circumstances under which the crime was

    To be convicted of violating Article 92 , an individual must have engaged in conduct that:

    (1) violates or fails to obey any lawful general order or regulation;
    (2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
    (3) is derelict in the performance of his duties . . . .

    After reviewing the plain language of Article 92 the Court determined that although a violation of section 2-301(a) may involve "pornography," an individual may be found to be in violation of the statue without committing an offense that involves pornography, and moreover the minimal conduct contemplated under the statue to substantiate a conviction does not require the commission of an act involving a depiction of a minor engaging in sexually explicit conduct.

    The Court reasoned that because a violation of Article 92 through violating section 2-301(a) does not necessarily involve a visual depiction of a minor engaging in sexually explicit conduct, Aguilar's Article 92 conviction could not categorically be considered an aggravated felony, and therefore he is not deportable.

    It appears that Mr. Aguilar owes a debt of gratitude to his lawyer David B. Landry, out of San Diego, California.  Job well done Mr. Landry.
  2. If the rules of the game change, should your client get a second bite at the apple?

    by , 09-30-2009 at 07:05 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.
  3. Nonimmigrant Waiver Approved Despite Previous Denial

    by , 09-29-2009 at 06:24 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.
  4. Second Circuit to Immigration Judge: If you deny asylum, you must give legally sufficient reasons for the denial.

    by , 09-28-2009 at 07:22 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.
  5. Nonimmigrant Waiver Approved to Overcome Drug Trafficking Finding

    by , 09-25-2009 at 04:31 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.
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