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  1. Apply For Relief From Removal Under Pereira V. Sessions

    On June 21, 2018, the Supreme Court issued a decision in Pereira v. Sessions which will benefit many thousands of persons who are in removal/deportation proceedings, who have been ordered to leave the US or who have already been deported.

    Immigration attorneys are getting ready to file Motions to Reconsider and to apply for Cancellation of Removal for persons who have been found deportable in the past. Some of these persons may also be eligible for other forms of relief from deportation. For example, a person who married a US citizen may be eligible for adjustment of status.

    The Supreme Court, by an 8 to 1 vote, ruled that Mr. Pereira, a Brazilian citizen who came to the US on a visitor’s visa in 2000, overstayed and was placed in removal proceedings in 2006, was eligible to apply for a green card through cancellation of removal as a non-LPR.

    One of the requirements for Cancellation of Removal is that a person be physically present in the US for 10 years or more. The law provides that if the person receives a Notice to Appear (NTA) before an Immigration Judge, his period of continuous residence is deemed to end. This is known as the “stop time rule”.

    How did Mr. Pereira satisfy the 10-year rule since he was served with an NTA 6 years after he arrived in the US?

    The Immigration Judge, the Board of Immigration Appeals (BIA) and the US Court of Appeals for the 1st Circuit all held that he did not satisfy the 10-year requirement since he was served with an NTA in 2006, 6 years after he arrived in the US. However, the Supreme Court held that because the NTA did not specify the date and time of his hearing before the Immigration Judge as required by law, the NTA was invalid and the stop time rule did not apply.

    The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created the requirements for both Cancellation of Removal and the stop-time rule. IIRIRA requires that the NTA must specify the “time and place at which the proceedings will be held”. 8 USC 1229b(d)(1)

    However, the NTA which Mr. Pereira received in 2006 did not specify the date and time of his hearing. Instead, it simply ordered him to appear before an Immigration Judge “at a date to be set at a time to be set”. Therefore, the Supreme Court held that since the NTA did not comply with the requirements of the law, the stop-time rule does not apply.

    Who Benefits Under the Pereira Decision?

    This decision is significant in that it applies not only to Mr. Pereira, but to many thousands of persons who are currently in removal proceedings as well as to persons who have been ordered deported from the US and to those who have already been deported.

    In 1997, after the passage of IIRIRA, the Attorney General promulgated a regulation stating that an NTA served on a noncitizen need only provide “the time, place and date of the initial removal hearing, where practicable.” 62 Fed. Reg. 10332 (1997). Per this regulation, the government typically does not inform persons of the date and time of their initial hearings in Immigration Court on their NTAs. The Supreme Court held this regulation to be invalid, and ruled that these NTAs do not comply with the law and, therefore, the stop-time rule does not apply.

    As a result, there are many thousands of persons who are now eligible to reopen their removal proceedings to enable them to apply for relief from deportation.

    Mr. Pereira was able to accumulate 10 years of physical presence in the US because, in 2007, when the government sent him an NTA with the date and time of his hearing before an Immigration Judge, the government sent the NTA to an incorrect address. By the time he was turned over to the DHS in 2013 as the result of a traffic violation, he had satisfied the 10-year continuous physical presence requirement for cancellation of removal.

    The Supreme Court’s decision will allow thousands of persons whose cases are before Immigration Judges or on appeal to the BIA or the Federal Courts to apply for cancellation of removal. It also benefits persons who have been ordered deported, granted voluntary departure or who have been granted relief, like withholding of removal, which does not lead to permanent resident status.

    To qualify for relief from removal under Pereira, a person must qualify to apply for cancellation of removal if the stop time rule does not apply to them because their NTA did not specify the date and time of their hearing before an Immigration Judge. Cancellation of removal is available to those who meet the following requirements:

    1. You have been physically present in the US for a continuous period of 10 years prior to the institution of removal proceedings. (This requirement is not applicable if you have served a minimum of 24 months in the US Armed Forces, were present in the US during your enlistment or induction, and are either serving honorably or have received an honorable discharge.) “Continuous” means that you can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the 10-year period.
    2. You have been a person of good moral character for 10 years;
    3. You are not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
    4. Your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a lawful permanent resident.

    Persons who meet the above criteria should consult with immigration attorneys as soon as possible to learn what needs to be filed to request that an Immigration Judge or the BIA reconsider their cases. While their applications for cancellation of removal are pending, they are eligible to receive Employment Authorization Documents (EADs).

    An even bigger question is whether any removal proceeding initiated with a defective NTA fails to comply with jurisdictional requirements. Already, some Immigration Judges have granted Motions to Terminate. We will discuss this issue in a subsequent blog post.

    As a former INS Trial Attorney (1976-82), I wouldn’t be surprised if the number of persons who benefit from the Pereira decision number is in the hundreds of thousands.

    Free Legal Consultations Under Pereira

    Our law firm is offering free legal consultations with our deportation defense attorneys Giselle Sotelo and Jennifer Rozdzielski for persons who qualify under the Pereira decision through the end of July.

    If you qualify for relief from removal under Pereira and you need immigration help, please contact our office and provide your information.

    We will get in touch with you to schedule a time for you to speak with Attorney Giselle Sotelo or Attorney Jennifer Rozdzielski.

  2. Border Patrol Arrests of Families and Children Are Lower

    by , 06-27-2018 at 02:43 PM (Matthew Kolken on Deportation And Removal)
    Via Syracuse University's TRAC:

    While there is a distinct month-to-month seasonality in the number of families and unaccompanied children picked up by the Border Patrol attempting to enter the country between official ports of entry, there is nothing particularly unusual about the number that have been arrested so far this year.

    Because the age of each individual is recorded in these detailed data, it is now possible to separately track the number of adults arriving with children over the past three and a half years. While numbers have increased in recent months, they are far from reaching record levels. A time series graph displaying the number of adults arriving with children is shown in Figure 1.

    In fact, the number of adults apprehended with children so far during FY 2018 (23,162) is still 14.5 percent lower than the number of adults arrested with children during the same seven-month period in FY 2017 (27,080). The number of unaccompanied children arrested by the Border Patrol this year is also down as compared with the same period during FY 2017.

    Further, in April 2018, the same month that Attorney General Jeff Sessions announced the "zero tolerance" enforcement policy in response to the alleged crisis on the border, there were a total of 4,537 adults arriving with children, a relatively small number compared to the 24,876 adults arrested without children that same month.

    Click here for more of the report.
  3. Muslim Ban Decision Wasn't About Korematsu, But About Chinese Exclusion Laws and S. Ct. Decisions Upholding Bigotry Against Immigrants. Roger Algase

    ​Update, June 27 at 2:55 pm:

    Justice Anthony Kennedy's just announced retirement could be a disaster for anyone hoping for any kind of fair and unbiased immigration decision from the Supreme Court for many years to come. Kennnedy's short concurring opinion in the Muslim Ban decision seems to have been meant as a clear signal to Trump that there are limits to the amount of anti-immigrant bigotry that Kennedy would be willing to rubber-stamp.

    Even Roberts' majority opinion had some reservations about Trump's open Islamophobia which would be a warning to any president willing to listen - which Trump is obviously not.

    Now, the way is clear for Trump to appoint a young, immigrant-hating white supremacist ideologue to replace Kennedy, with, no doubt, weak-kneed Republican compliance in confirming him or her without any serious opposition.

    Even after Trump leaves office, far right wing Justices may be dominating the Court and unraveling America's race-neutral, nominally non-discriminatory legal immigration system for many decades to come, taking America back to the openly white supremacist system of a century ago.

    The even bigger danger is that the new, more powerful far right wing Supreme Court majority that we can expect to see soon will rubber-stamp the US into a proto-fascist dictatorship in which the courts are independent in name only, as was the case in Hitler Germany, and their only real function is to carry out the Will of the Supreme Leader, Donald J. Trump.

    The only thing that can prevent this outcome would be a resounding defeat for the Republican Party of Trump in this year's Congressional elections. These elections will not only be a referendum on immigration, as is being widely predicted, but also on whether America will continue as a democracy.

    My earlier comment follows below:

    In yesterday's Supreme Court decision upholding Trump's Muslim ban executive order, there was an exchange between Chief Justice Roberts, writing for the majority, and Justice Sonia Sotomayor in her dissent, over the relevance of the Supreme Court's notorious Korematsu decision upholding the WW2 internment of Japanese-American citizens.

    While both Justices agreed that Korematsu was one of the worst Supreme Court decisions in US history, they clashed over its relevance to the Muslim ban case at issue. Justice Sotomayor justifiably pointed to that case as an illustration of the extremes which can result when the courts uncritically accept "national security" as a justification for even the most egregious violations of elementary constitutional and human rights by the government.

    The Chief Justice, on the other hand, dismissed the comparison because Korematsu had nothing to do with immigration and involved the rights of American citizens.

    It is not necessary to take sides in that dispute, because there is a much closer, and arguably even more disturbing, precedent for Trump's Muslim ban executive order and the June 26 Supreme Court decision upholding it. This precedent is the infamous Chinese exclusion law of 1882 and its bigoted successors, which ultimately cut off all legal immigration from Asia in the first half of the 20th century, as well as the Supreme Court decisions upholding these laws, including notably Chae Chan Ping v. US (1882), discussed below.

    The resemblance between that notorious 129 year old decision and the June 26 Muslim ban decision is so close that in some passages, the language of the two decisions are almost interchangeable.

    This is not something that the five-Justice majority in yesterday's Trump v. Hawaii decision can be proud of.

    I will explain in more detail in my next comment on this unfortunate decision, which upholds religious bigotry against Muslim immigrants and US citizens, and gives more impetus to Trump's white supremacist immigration agenda as a whole, in violation of every principle of equal justice before the law that America stands for.

    Roger Algase
    Attorney at Law

    Updated 06-27-2018 at 07:58 PM by ImmigrationLawBlogs

  4. Formerly Incarcerated Families Call on Governor Wolf to #ShutDownBerks

    by , 06-27-2018 at 07:22 AM (Matthew Kolken on Deportation And Removal)
    Via the Shut Down Berks Coalition:

    Today we want to center and amplify the voices of those who have always been the driving force of the campaign. The families who have been affected by the Berks County Detention Center.

    They are the experts of this prison and their message is clear. No family, no person, no child should be incarcerated at Berks or any other family detention center. That is why Governor Tom Wolf must #ShutDownBerks NOW!

    Listen to their messages right at the links below and share with your networks. A huge thank you to Michelle Angela Ortiz/ Artist for her ongoing work with these families and for these videos.

    About the Families

    - Sofia was detained at the Berks County Detention Center with her 14 year old son for 648 days.

    Lorena - Lorena was detained at the Berks County Detention Center with her 3 year old son for 663 days.Delmy - Delmy was detained at the Berks County Detention Center with her 7 year old son for 754 days.

    Waddah - Waddah was detained at the Berks County Detention Center with his 14 year old daughter for 6 months.

    These videos are apart of the Familias Separadas Project, a project created by artist MichelleAngela Ortiz. The project is a series of temporary site-specific public art works mark locations and documents stories of immigrant families affected by detention and deportations in Pennsylvania. Ortiz is currently working on Phase 2 of her project. Since March 2017, Ortiz has interviewed mothers and children formerly detained for close to 2 years at the Berks Detention Center.

    The three mothers featured were part of the fourteen families that were detained at Berks for more than 2 years. During their time in detention the mothers organized labor and hunger strikes as they fought for their freedom. 10 families were deported back to their home country returning to the violence they were fleeing, and 4 families were released in the United States still fighting against their possible deportation and living through the trauma of being detained.

    We want to thank these families for their unending strength and commitment to all of those seeking freedom. It is a honor to have them share their stories with us.

    In Solidarity,
    The Shut Down Berks Coalition

    The Shut Down Berks Coalition is a group of organizations, grassroots groups, churches and individuals fighting to close the Berks family prison in Pennsylvania and end the practice of imprisoning immigrant families in the U.S.

    Updated 06-27-2018 at 07:26 AM by MKolken

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