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Matthew Kolken on Deportation And Removal

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  1. Fifth Circuit on Crime of Violence

    by , 11-12-2009 at 06:09 AM (Matthew Kolken on Deportation And Removal)
    The United States Court of Appeals for the Fifth Circuit has ruled in Kerr v. Holder, No. 08-60020 (Nov. 10, 2009), that the Board of Immigration Appeals erred in its application of the categorical approach and failed to apply the modified categorical approach when determining whether false imprisonment under Fla. Stat. 787.02 is a crime of violence.
    The Fifth remanded the case back to the BIA for a proper determination on the issue.
    Matthew L. Kolken, Esq.
  2. Transcript of Oral Argument from Kucana v. Holder (Nov. 10, 2009 SCOTUS)

    by , 11-11-2009 at 09:57 AM (Matthew Kolken on Deportation And Removal)
    The Supreme Court of the United States heard arguments yesterday (Nov. 10, 2009) on the issue of whether 8 U.S.C. Section 1252(a)(2)(B)(ii) precludes federal courts from reviewing rulings of the Board of Immigration Appeals relating to motions to reopen.
    Factually the case involves a citizen from Albania who overslept his alarm, and missed his immigration court hearing.  As a result, his application for asylum was denied and the IJ ordered his removal in absentia. 
    Mr. Kucana filed a motion to reopen the case which was also denied by the Board of Immigration Appeals (BIA) in 2002.  Despite the denial of his appeal Mr. Kucana was not removed from the United States, and four years later, Kucana filed a second motion to reopen citing changed conditions in Albania that warranted reconsideration of his asylum application.
    The BIA denied the second motion to reopen again, and Kucana appealed to the Seventh Circuit Court of Appeals. The Seventh Circuit refused to reverse the BIA finding that it did not have jurisdiction to review the BIA's denial of the motion to reopen in disagreement with several other circuits that have found that they do maintain jurisdiction.
    Shockingly, the Supreme Court of the United States granted cert in this case.  As they say in the immigration trenches: bad facts make bad law.  I'm crossing my fingers.  Personally, I just don't have a ton of sympathy for someone who overslept his alarm.  I'm sure I'm not alone.
    Click here to read the transcript of the oral argument. 
    Click here for the SCOTUS Wiki on the case.
    Matthew L. Kolken, Esq.
  3. 212(h) Waiver May be Available to Cure Convictions for Possession or Use of Drug Paraphernalia

    by , 11-06-2009 at 06:48 AM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals has just ruled in Matter of Lael MARTINEZ ESPINOZA, 25 I&N Dec. 118 (BIA 2009) that:
     
    (1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia; and
     
    (2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense "relates to a single offense of simple possession of 30 grams or less of marijuana."
     
    The case involved a citizen of Mexico, conceded his removability under section 212(a)(6)(A)(i) of the Act because he was unlawfully present in the United States, but who sought relief from removal in the form of adjustment of status under section 245(i) of the Act.  Former section 245(i) allows certain individuals to obtain a Green Card inside the United States through the payment a $1,000.00 penalty fee to excuse minor immigration violations.  Section 245(i) does not waiver criminal grounds of removability.
     
    The Immigration Court ruled that the Respondent was not eligible to apply for a Green Card because of a 2006 Minnesota conviction for possessing drug paraphernalia, and that this conviction renders him ineligible for a waiver under section 212(h) of the Act because his offense did not "relate[] to a single offense of simple possession of 30 grams or less of marijuana".
     
    The Respondent appealed the Immigration Court's decision, and the Board of Immigration Appeals concluded that the Respondent's Minnesota conviction for possessing drug paraphernalia does render him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, and that in order to adjust he must obtain a 212(h) waiver, but that the underlying Minnesota criminal statute that the Respondent was convicted under encompasses some offenses that enable him to apply for a 212(h) waiver, and some that do not.
     
    The Board further concluded to qualify for a 212(h) waiver, the Respondent must establish that his conviction "relates to a single offense of simple possession of 30 grams or less of marijuana." 
     
    The Board remanded the case back to the Immigration Court to allow the Respondent the opportunity to establish that the conduct that resulted in his conviction related to a single offense of simple possession of 30 grams or less of marijuana.
     
    Matthew L. Kolken, Esq.
  4. Second Circuit Court of Appeals Dismisses Maher Arar's Lawsuit

    by , 11-04-2009 at 07:42 AM (Matthew Kolken on Deportation And Removal)
    The Second Circuit Court of Appeals, in a 184 page in banc decision, has affirmed the District Court's dismissal of Maher Arar's lawsuit.
    Maher Arar is an individual who was detained while changing planes at Kennedy Airport in New York because Canadian authorities believed that he was a member of Al Qaeda.  Mr. Arar alleges that after being taken into custody he was mistreated over a twelve day period by U.S. officials, and then the real nightmare began. 
     
    After the 12 days of alleged mistreatment by the hand of the United States government, Mr. Arar alleges that the United States government sent him to Syria via Jordan so that he could be properly tortured and interrogated by Syrian officials. 

     
    Mr. Arar sued former United States Attorney General John Ashcroft; former Secretary of Homeland Security Tom Ridge; Robert Mueller, Director of the United States Federal Bureau of Investigation (FBI), and others in the United States District Court for the Eastern District of New York.  Mr Arar's alleged that the above mentioned individuals' actions violated the Torture Victim Protection Act ("TVPA") and the Fifth Amendment.

     
    The District Court dismissed Mr. Arar's complaint unanimously holding that: (1) the District Court had personal jurisdiction over Thompson, Ashcroft, and Mueller; (2) Mr. Arar failed to state a claim under the TVPA; and (3) Arar failed to establish subject matter jurisdiction over his request for a declaratory judgment. See Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008).

     
    Mr. Arar appealed this decision to the Second Circuit Court of Appeals, but his suit was initially dismissed.  Thereafter, an in banc rehearing occurred, and the Second Circuit in a 184 page decision vacated the initial opinion, but unfortunately for justice, affirmed the District Court's ruling. 
     
    Parenthetically, the Honorable Sonia Sotomayor was a member of the in banc panel and participated in oral argument.

     
    So much for accountability.
  5. 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.
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