Matthew Kolken on Deportation And Removal

BIA Decision: Clarification of Voluntary Departure Requirements

The Board of Immigration Appeals has just issued a decision entitled Matter of Catherine VELASCO, 25 I&N Dec. 143 (BIA 2009).

 

The Board has ruled that:

 

(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4), Nt. (2009), which took effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), do not apply retroactively.

 

(2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and the alien failed to timely post the voluntary departure bond required by section 240B(b)(3)of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2006), the former regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the penalties imposed by section 240B(d)(1) for failure to depart within the voluntary departure period do not apply.

 

(3) Pursuant to 8 C.F.R. § 1240.26(c)(3)(ii), Nt., a voluntary departure order entered by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board of Immigration Appeals in its final order on appeal unless the alien provides the Board, within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was timely posted with the Department of Homeland Security.

Immigration Officials to Audit 1,000 More Companies

The New York Times has reported that Immigration enforcement officials intends to expand the E-Verify auditing program to companies the Department of Homeland Security suspects to have engaged in the unlawful hiring of undocumented workers.

The Times reports that 1,000 companies have been targeted for a review, and that a spokesperson of Immigration and Customs Enforcement (ICE) remarked that this initiative is part of President Obama's strategy to address companies that engage in illegal hiring practices.

“ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces,” John Morton - Head of Immigration and Customs Enforcement. Neither the Times, nor Morton identified the companies who will be targeted by the expansion of E-Verify.

BIA remands to Immigration Court for a determination if an individual presents a potential danger

The Board of Immigration Appeals has just issued a precedent decision entitled: Matter of Urena, Interim Decision #3663, 25 I&N Dec. 140 (BIA 2009).

The Board ruled that:

(1) Dangerous aliens are properly detained without bond pending the completion of proceedings to remove them from the United States;

(2) Only if an alien has established that he would not pose a danger to property or persons should an Immigration Judge decide the amount of bond necessary to ensure the alien’s presence at proceedings to remove him from the United States; and 

(3) Where an Immigration Judge characterized an alien seeking release from custody as a “potential” danger to the community but ordered him released upon the posting of a bond amount, the record was remanded for the Immigration Judge to clarify whether the alien met his burden of proving that his release on bond would not pose a danger to property or persons.

2012 Dobbs-Menendez Match for Senate Seat in N.J.?

The New York Times has reported that former CNN talking head Lou Dobbs has not denied speculation that he may consider challenging first term incumbent Senator Bob Menendez (D-N.J.) for his seat in 2012. If this were to happen it will be essential for immigration reform activists to get behind Senator Menendez in 2012 when he is up for re-election.

Senator Menendez is a key figure in the fight for comprehensive immigration reform, and is the co-sponsor of The Military Families Act, a bill that will authorize the adjustment of status for immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts.

BIA Decision: Standard for Adjudicating Motions for Continuance

The Board of Immigration Appeals has just issued a new decision entitled Matter of Rajah, Interim Decision #3662, 25 I&N Dec. 127 (BIA 2009)

 

The case involves a native and citizen of Morocco that came to the United States on December 13, 1994 as a visitor.  The Respondent was granted six months of visitor status, but did not depart the United States when his status expired.  Meanwhile the Respondent was able to find unautorized employment in the United States in order to support himself.

 

The Respondent’s employer ultimately filed a labor certification on his behalf on April 30, 2001, which would render him eligible to apply for adjustment of status under former 245(i).

 

On April 22, 2003, almost ten years after his arrival, immigration court proceedings were instituted against the Respondent charging him with removability for overstaying his visitor status.  The Respondent’s first hearing before the Immigration Judge was on May 30, 2003.

 

The Respondent requested and obtained multiple continuances of his case (thirteen) during an 18-month period. The proceedings were continued to enable him to obtain counsel to represent him, to allow the Department to respond to his motion to terminate proceedings, and to enable the Respondent to provide the Court with a status update on the pending labor certification.

 

Finally on December 16, 2004, the Respondent sought another continuance based on the pending labor certification, but the Immigration Judge denied his request, and the Board of Immigration Appeals dismissed the appeal.  The case then was reviewed by the Second Circuit Court of Appeals who remanded the case back to the Board of Immigration Appeals for the Board to set “standards that reflect various situations of those seeking such continuances.”  See Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008).

 

On remand the Board ruled that:

 

(1) In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment -based visa petition or labor certification, an Immigration Judge should determine the alien’s place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations;

 

(2) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status; and 

 

(3) The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.

 

The Board applied these standards to the Respondent's case and dismissed his appeal because despite the fact that his labor certification was ultimately approved while he was fighting to remain in the United States, an I-140 Petition was not filed within 180 days of the certification.  The Respondent therefore did not have immediate eligibility to apply for adjustment of status despite the fact that he had been grandfathered in under 245(i). 

 

The Respondent had a new employer who was also willing to sponsor him for his Green Card, but had not taken any steps to begin the process.  As a result the Board dismissed the appeal based upon the Respondent’s failure to establish a prima facie case for the relief sought.

Fifth Circuit on Crime of Violence

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.

Transcript of Oral Argument from Kucana v. Holder (Nov. 10, 2009 SCOTUS)

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.

212(h) Waiver May be Available to Cure Convictions for Possession or Use of Drug Paraphernalia

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.

Second Circuit Court of Appeals Dismisses Maher Arar's Lawsuit

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.

Board of Immigration Appeals Rules that Date of Plea Agreement, Not Sentencing, Determines Eligibility for 212(c) Waiver

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.