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  1. 2nd Circuit Rules Criminal Sale of Marijuana 3rd is not an Aggravated Felony

    by , 07-20-2018 at 09:49 AM (Matthew Kolken on Deportation And Removal)
    Hot off the presses:

    Hylton v. Sessions, 17‐1567‐ag (JULY 20, 2018)

    Antoine Hylton, a Jamaican national, petitions for review of the order of the Board of Immigration Appeals, which found him ineligible for cancellation of removal because his prior state conviction for sale of marijuana in the third degree constituted an aggravated felony under the Immigration and Nationality Act. The single issue on appeal is whether the minimum offense conduct under Hyltonís statute of conviction, New York Penal Law (ďNYPLĒ) ß 221.45, is necessarily punishable as a federal felony by the Controlled Substances Act. Because NYPL ß 221.45 explicitly extends to the distribution of less than an ounce of marijuana without remuneration, it is punishable as a federal misdemeanor. 2 Hyltonís crime of conviction is therefore not categorically an aggravated felony. We GRANT the petition, VACATE the opinion of the BIA, and REMAND for further consideration consistent with this opinion.

    Click here to read the opinion.
  2. Bowing to Trump's Racist Immigration "Principles", Nielsen Condones White Supremacists as DHS Moves Against Family and Diversity Visas. Roger Algase

    From the moment in June 2015 when Donald Trump announced that he was running for president on a platform of demonizing Mexican immigrants as "criminals", "rapists" and "drug dealers", there has been no doubt that Trumps most basic "immigration principles" have been overt racism and white supremacy.

    This is not to say that anti-immigrant racism originated with Trump - of course it did not. This stain on America and its most fundamental value of equality of all people goes back at least to the time of the infamous late 19th Century Chinese exclusion laws, if not to the pre-civil war Dred Scott decision laying down the "principle" that people of color could not be US citizens because of their race.

    No, Trump certainly did not invent the "principles" of anti-immigrant racism in America. But almost every passng day, there are new indications that these principles are at the foundation of his administration's entire immigration policy. As I discuss below, the "principles" of anti-immigrant racism are now close and closer to becoming official DHS policy under the cowardly leadership of its director, Kirstjen Nielsen, who seems to have abandoned any principles of independence or willingness to stand up to her bigoted boss.

    Sometimes I am asked by sincere and well meaning friends, colleagues or other immigration supporters why my comments focus so much on the issue of racism in my discussions of immigration law and policy. Usually the question runs along the lines of saying that we all know about the overt racism of the Trump administration, as shown by his many openly bigoted attacks on immigrants from Latin America, the Middle East, Africa and other non-white areas of the world, but racist sentiment has always been part of the immigration issue, and there are so many things taking place in immigration today that are separate from, or at least not directly connected to or influenced by Trump's racist rants.

    Some of my friends and colleagues also point out that immigrants of color, as well as Muslims and others whom Trump has spoken out against or taken action against are still arriving with legal permission in America by the hundreds or thousands every single day; and that visas, petitions and applications for benefits are still being approved for applicants from all over the world, and that the "system is still working".

    My response is that while it is true the the underlying immigration system is still functioning, no one can possibly dispute that it is under enormous pressure and that this pressure is in large part directly related to Trump's racial ideology.

    To be sure, if Trump were sign an executive order tomorrow directing that no immigrants were to be allowed into the United States unless they were from "Countries like Norway" (as was actually the law in America from 40 years, from 1924 to 1964 - much to the approval of many Trump supporters, including then Senator Jeff Sessions, writing in a 2015 immigration manifesto) even today's right wing Supreme Court majority would no doubt have a problem with that (though if Brett Kavanaugh is confirmed, Trump might get at least one vote - based on that judge's view of almost unlimited executive power).

    But the non-discriminatory immigration system that America has had for the past half century is under intense attack from white supremacists today. Trump himself complains that America has the "dumbest" immigration laws in the world. If there were any doubt as to what he means by that, his attacks on non-European immigrants for allegedly making that continent "lose" its "culture", which I have discussed in a recent immigration Daily comment, leave no doubt about his views.

    But if this is all just racist talk, why pay any attention to it? Politicians will say anything. Why should we care? The reason we should care is that the Trump administration has shown, from the first few days of taking office, that this is not just talk. Almost day by day, we see fresh signs that anti-immigrant racism is becoming official US policy.

    If there were any doubt about this, we only have to ask the parents of the now almost 3,000 children (according to the latest reports) who were torn away from their parents under Trump's "zero-tolerance" (for non-white immigrants) border policies. Even though many of these children have now been reunited (under pressure from a federal court order) there can be no doubt that more than a few of them will be scarred for life by a policy which some analysts and advocates have condemned as a Crime Against Humanity under international law.

    For an introduction to this topic, see:

    https://slate.com/news-and-politics/...-humanity.html

    The latest sign that the Trump administration's fundamental principle of anti-immigrant racism is closer and closer to becoming official DHS policy is shown in two recent news reports. One deals with DHS Secretary Nielsen's shameful and appalling refusal to speak out against white supremacist violence in Charlottesville last year. The other is in a shocking report that without any debate, discussion or Congressional hearings on this issue, the DHS is now preparing new regulations with an expanded definition of "Public Charge" which would virtually abolish family immigration and Diversity visas for all but the wealthiest few.

    For more about Nielsen's humiliating refusal to criticize Charlotteville's racists and neo-Nazis see: America's Voice, July 20:

    http://bit.ly/2uCfKPN

    See also:

    https://www.alternet.org/dhs-secreta...one-side-right

    And to understand how following Donald Trump's racist views actually plays out in determining DHS policy toward immigrants, see the following shocking report on the way that the DHS is making Trump's racist attacks on family based and Diversity immigrants, most of whom are from outside Europe and do not have the white skin color that Trump seems to regard as essential for legal immigration to the US, into official US policy.

    According to a report by American Progress, an affiliate of America's Voice, the "Public Charge" ground for inadmissibility, which was originally enacted for the express purpose of excluding Chinese immigrants for avowedly racial reasons in the late 19th century, is now in the process of being revived and blown way out of proportion by the DHS in order to exclude all but the most affluent applicants for family based and Diversity-based green cards.

    https://www.americanprogress.org/iss...-health-tests/

    It is no secret that, even though both of these visa programs were originally enacted to boost white immigration, the great majority of their beneficiaries over the past few decades have been from Asia, the Middle East, Africa and Latin America, rather than from Europe. This is why these two visas are now in Donald Trump's direct and intense line of fire.

    http://nymag.com/daily/intelligencer...orrendous.html

    It is a disgrace, not only for Nielsen personally, but for America and its values of racial equality and justice for all, to see the DHS going along so compliantly with yet another racist plank in Trump's anti-immigrant platform.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 07-21-2018 at 08:47 AM by ImmigrationLawBlogs

  3. Trump was right to ditch UNís plan for handling migrants. By Nolan Rappaport



    © Getty Images

    The U.S. is the only member of the United Nations (UN) that did not participate in the entire 18-month process for the development of a Global Compact for Migration, which is supposed to be formally adopted in December.

    The process began when the UN hosted a summit in New York on September 19, 2016, to discuss a more humane way to handle large movements of migrants. Barack Obama was the president then. At the end of the summit, all 193 member states signed the New York Declaration for Refugees and Migrants, a 24-page document that provided a blueprint for the establishment of the compact for migrants (and a separate compact for refugees).

    The declaration included numerous provisions that were inconsistent with U.S. immigration policy and the Trump administrationís immigration principles. Consequently, the Trump administration ended U.S. participation.


    Ambassador Nikki Haley, the U.S. representative to the UN, explained in a press release that, ďThe global approach in the New York Declaration is simply not compatible with U.S. sovereignty.Ē America decides how best to control its borders and who will be allowed to enter.

    The Trump administration was right. The compact is a collective commitment to achieve 23 objectives for safe, orderly, and regular migration. Although it addresses problems that need to be resolved, some its proposed solutions would weaken U.S. border security and others would usurp congressional control over the nationís immigration laws.

    Read more at http://thehill.com/opinion/immigrati...s-and-migrants

    Published originally on The Hill.

    Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.







  4. Corsoís Issues Statement after ICE Raid

    By: Bruce Buchanan, Sebelist Buchanan



    Corsoís Flower and Garden Center of Sandusky, Ohio and Castalia, Ohio, the target of ICE raids on June 5, 2018, recently issued a statement concerning ICEís investigation.

    As you may recall, on June 5, approximately 200 ICE agents swarmed Corsoís two plant nurseries and detained approximately 114 workers suspected of being in the country without proper work authorization. The workers were expected to be placed into deportation proceedings and many criminally charged with identity theft and tax evasion.
    Corsoís press release, which was shared on its Facebook page, read in pertinent part:

    Corsoís is fully complying with the governmentís investigation. Corsoís regrets the stress and pain the raid had on our employees and their familiesÖ. It is our hope that federal authorities will work diligently to ensure minimal disruption to families of our employees as they execute their orders.

    Corsoís prides itself on being a good corporate citizen and has always made it a priority to operate its business with the utmost integrity, both to its employees and to the community. This means that Corsoís does right by the law, just as it does right by its employees and customers. Corsoís therefore demands proper documentation from all those seeking employment at its facilities and also ensures that all employer taxes, are properly paid.

    Just as Corsoís has strived over the past 77 years to be honest and fair in its dealings with its employees, Corsoís expects its employees to be honest with it as well. Corsoís strives to comply with U.S. employment laws and therefore asks its employees and prospective employees for honest and legitimate identification and documentation. If mistakes were made or if anyone used false, fraudulent, or otherwise disingenuous identification documents or other documents to secure employment at Corsoís, the company was not aware of those things.
    Corsoís looks forward to the resolution of this unfortunate situation and in the interim will continue to focus efforts on serving customers as the investigation proceeds.

    In this case, ICE initially served Notices of Inspection weeks ago and had been auditing the 313 I-9 forms supplied by Corsoís. Before the service of the Notices of Inspection, ICE received tips involving Corsoís and began an investigation in October 2017. A triggering event appears to be the arrest and indictment of Martha Buendia-Chavarria, who was charged with operating a document mill. During the ICE audit, according to ICE, they found 123 I-9 forms which were suspicious due to use of duplicate Social Security numbers and identification belonging to other people.

    It will be interesting to see what the result of the raid is as it relates to Corsoís. If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  5. Does Anybody Really Know What Time It Is? Not If You're Using the Asylum Clock (+ Some Other EAD Updates)

    If you're reading this blog, and presumably you are, you probably already know about the "Asylum Clock." The basic story is this: When a person files for asylum (with the Asylum Office or the Immigration Court), the Clock starts to count time. Once the Clock reaches 180 days, the asylum applicant is eligible for an employment authorization document (ďEADĒ). The Clock ďstopsĒ if the asylum applicant causes a delay in her case. The problem is that the rules governing the Asylum Clock are vague, and ever changing. Today, I want to discuss a new change with the Clock, debunk a rumor that has been floating around, and briefly discuss the new EAD application form.


    The official Asylum Clock, kept in a secure vault at DHS.

    First, a few words about the Asylum Clock. The Clock originally went into effect in 1996. Before then, if a person filed for asylum, she could also apply for an EAD. The powers-that-be (i.e. Congress) felt that this system encouraged frivolous asylum applications--people knew that they could file for asylum, get a work permit, and remain in the U.S. for years while their cases were adjudicated, and so they had an incentive to file for asylum even if they had meritless cases.

    To combat this problem (if indeed, it was a problem), Congress created a 180-day waiting period before asylum seekers would become eligible for the EAD (under the regulations, you can file for the EAD after 150 days, but you are not actually eligible to receive the EAD until 180 days have elapsed). The "Asylum Clock" counts this time. In order to avoid the problem of asylum seekers deliberately delaying their cases to obtain an EAD and draw out the process, the law states that any delay by the applicant causes the Clock to stop. It sounds simple, but in practice, it's often been a mess.

    EOIR--the Executive Office for Immigration Review--has a handy memo that lists the reasons why the Clock might stop in Immigration Court or at the Asylum Office. According to the memo, the Clock will stop in Immigration Court if (1) the applicant asks for the case to be continued so he or she can get an attorney; (2) the applicant, or his or her attorney, asks for additional time to prepare the case; or (3) the applicant, or his or her attorney, declines an expedited asylum hearing date. At the Asylum Office, the Clock stops if (1) the applicant requests to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address; (2) the applicant requests to reschedule an interview for a later date; (3) the applicant fails to appear at an interview or fingerprint appointment; (4) the applicant fails to provide a competent interpreter at an interview; (5) the applicant is requested to provide additional evidence after an interview (though I have never seen this used as a basis to stop the Clock); or (6) the applicant fails to appear to receive and acknowledge an asylum decision in person (if required). Other--unspecified--delays can also cause the Clock to stop in the Asylum Office or in Court.

    Also, the Clock sometimes stops for random and unpredictable reasons: In court, different Immigration Judges interpret the rules differently and inconsistently, and so in some cases, one IJ would stop the Clock (or refuse to start it) in a situation where another IJ would do the opposite. Also, the Clock sometimes stops due to administrative error. Correcting these problems or re-starting the Clock is a real hassle, and some people who are eligible for EADs do not receive them.

    Over the last few years, we have seen some improvements in the operation of the Asylum Clock, and it has become less common for the Clock to stop. One particular improvement at the Asylum Office was that moving the case to a new jurisdiction would not cause the Clock to stop--that way, if a person moved within 180 days of filing for asylum, she could still receive her EAD. But that policy has now been reversed, at least according to the notes I received from a recent meeting at the Arlington Asylum Office--

    Please note that for the purpose of the 180-day Asylum employment authorization document (EAD) clock, a request to transfer a case to a new asylum office or interview location (including when the transfer is based on a new address) is considered a delay requested or caused by the applicant. This transfer will cause the EAD clock to stop. The 180-day Asylum EAD clock is resumed once the new asylum office transfers in the applicantís case.

    Given the new last-in, first-out policy, perhaps the change makes sense from the Asylum Office's point of view, but asylum seekers will now need to be more cautious about moving. The bottom line is this: If you move and your case is transferred to a different Asylum Office, the Clock will stop. For how long it will stop is unclear. But since the Clock is notorious for stopping easily and only re-starting with difficultly, it seems important for affirmative asylum seekers to avoid moving after they file for asylum.

    Once you reach 180 days on the Clock, moving has no effect, but to be extra-safe, I am now advising my clients not to move until they actually receive the EAD card. Of course, if you move, and your case remains at the same Asylum Office, there should be no effect. You can check whether moving will cause your case to be transferred to a new office by visiting the Asylum Office Locator and entering your old and new zip codes.

    Another development to discuss is the recent Attorney General memo that rescinds a number of prior memos. There have been rumors that the purpose of this memo is to prevent asylum seekers from obtaining an EAD while their cases are pending. The memo itself does not end EADs for asylum seekers, but whether this memo is a precursor to such a move, I do not know. The government seems to have the authority to end EADs for asylum seekers (the statute says, "An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General"). But given that the new EAD application form allows for work permits for people with pending asylum cases, it seems unlikely that the government will end EADs for such people, at least in the near term.

    Finally, there is a new EAD application, form I-765. I will write more on this another time, but one major change is that asylum applicants must indicate whether they have been arrested for a crime. Many asylum seekers have been arrested for political reasons, as opposed to crimes, so what should they do? The I-765 instructions state that the applicant must list all arrests and convictions, which seems broader than the question actually listed on the form itself (which refers only to arrests for crimes). At this stage, I think it is safer to be over-inclusive. For our clients, if they have been arrested for any reason, even for a political reason, we will reveal that on the form and provide information about it. If there are no records of the arrest, which there often are not, we will include an affidavit from the client about what happened. Whether this will satisfy USCIS, I do not know. But until we learn more, this is the approach we will take.

    So I suppose the good news is that asylum seekers are still eligible to obtain work authorization. They do need to be careful about moving before they receive the EAD card, though. When we know more about the new EAD form, or if there are changes to the process, I will try to post an update here.

    Originally posted on the Asylumist: www.Asylumist.com.
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