Saturday, December 21, 2013

Recent Post-Conviction Relief Cases Provide Mix of Good and Bad for Foreign Nationals Facing Immigration Consequences for their Crimes

Post-conviction relief ("PCR") refers to the eliminating or otherwise the reducing of the effects of a criminal conviction. Certain criminal convictions carry immigration consequences for foreign nationals. Whether there are any such consequences and how severe they are depend on a number of factors relating to a certain conviction's specifics, which usually may be negotiated during the plea-bargaining phase of a foreign national's criminal proceedings. Oftentimes, however, the foreign national at the time s/he is in such criminal proceedings is only concerned with whether s/he will have to serve jail or prison and for how long. The issue of immigration consequences may escape the plea-bargaining discussion. Nevertheless, that issue unfortunately may arise thereafter only when the foreign national is being placed in removal proceedings before a United States Immigration Court, denied Lawful-Permanent-Resident status ("Green Card") or another type of lawful immigration-related status, or deemed ineligible to naturalize as a United-States citizen. At that time, PCR may be the only avenue to resolve the foreign national's immigration matter.

However, while eliminating or reducing the effects of a certain criminal conviction may have been easy to accomplish during the plea-bargaining phase of a foreign national's criminal proceedings, PCR is usually not as simple because of the reluctance of both the relevant district attorney's or city attorney's office and the conviction-issuing criminal court to reexamine a closed criminal matter. A foreign national typically needs to prove some type of substantive defect in his/her criminal proceedings that led to his/her mistakenly accepting a plea bargain. Moreover, the foreign national typically has to prove that if such defect did not exist, s/he would not have accepted that plea bargain and instead would have either continued to negotiate with the relevant district attorney's or city attorney's office or taken the case to trial.

In the past several years, there have been some notable cases that have swung the pendulum in both ways regarding how easily one can obtain PCR. The differing decisions have made it difficult for one to know whether pursuing PCR is worth his/her time, energy, and money. For example, one of the most famous cases in this area is Padilla v. Kentucky, wherein the United States Supreme Court recognized how important the issue of one's immigration matter is in relation to his/her willingness to accept a proposed plea bargain in a criminal proceeding and found that the United States Constitution mandates criminal-defense attorneys to provide on their own initiative, as opposed to waiting simply to be asked, accurate advice to their foreign-national criminal-defendant clients relating to the immigration consequences of a proposed plea bargain. Nevertheless, a few years later in Chaidez v. United States, the same United States Supreme Court limited its holding in Padilla v. Kentucky to convictions that were issued only on or after March 31, 2010, which is the publication date of the decision in Padilla v. Kentucky.

Similarly, the California Supreme Court a little more than four months ago in People v. Martinez held that to establish eligibility for PCR based on not being advised as required by California law of the immigration-related consequences of criminal conviction, a foreign national need only prove that s/he would have rejected a previously accepted proposed plea bargain and not also that s/he would actually have had a more successful outcome by doing so. That same decision holds relating to the issue of prejudice, i.e., whether the outcome would have been different had the substantive defect not existed, that such a foreign national need prove only that s/he would have attempted to negotiate a better plea bargain following such rejection rather than that s/he would actually have gone to trial.

However, that same California Supreme Court issued a separate decision earlier this month in People v. Palmer holding that in a felony case a criminal-defense attorney's stipulation to a factual basis, rather than to a specific document establishing the factual basis, for a person's guilty or no-contest plea in a criminal proceeding is enough to satisfy the legal requirement that there actually be a real reason for that person's acceptance of such a plea. Because the decision finds a criminal-defense attorney's stipulation alone to be sufficient, it effectively removes a previously available potential avenue of PCR based on the conviction-issuing criminal court's not noting on the record that a particular document reflects the facts necessary to show that the person in criminal proceedings actually committed the elements of the crime for which s/he's being convicted.

While navigating the dueling decisions in both the federal and state courts may appear impossible, skilled legal analysis combined with attention to detail should reveal the possible avenues of PCR, if any, for a foreign national in need of it.

Tuesday, December 10, 2013

Court Bails DHS Out of Otherwise Accepted Evidentiary Requirements in Asylum Hearings

Many people understand the concept of hearsay from various courtroom-drama television shows and movies. The legal definition of hearsay is a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. In layman's terms, if someone were testifying in court as to what someone else told him/her out of court to try to support the truth of that very statement, then that would be hearsay. For example, if I were in court testifying that I knew the person on trial committed the crime for which s/he's being charged because my friend who is not in court but who saw it told me so, then that would be hearsay. One could see that it would be more reasonable for my friend to come into court and testify himself/herself rather than relying on my recollection of what my friend told me.

Hearsay is not limited to spoken words but also applies to documents where the writer of the document is not available in court but the document is being used anyway to prove the truth of the statements within the document. Not taking into account various exceptions, hearsay, whether spoken or written, generally is not accepted in court because of the original statement's not being made under oath, the inability of the opposing party to cross-examine the original speaker or writer, and the judge's or jury's lack of observation of the original speaker or writer as the statement is being spoken or read into evidence. Instead, courts tend to require the original speaker or writer to come into court to testify.

Even though the evidentiary rules in the various United States immigrations courts are more relaxed, several federal courts nationwide have held, at least in the context of asylum applications heard in a United States immigration court, that, "[U]nsworn, unauthenticated, hearsay letters–prepared for litigation by the government and not subject to any form of cross-examination–cannot form the sole basis for denying asylum to an otherwise qualified applicant." Nevertheless, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, explicitly refused last week to follow that trend and held that such letters are acceptable in United States immigration court. The case Angov v. Holder bails out the United States Department of Homeland Security ("DHS") from abiding by otherwise long-accepted almost-universal evidentiary standards within the United States relating to hearsay by effectively permitting DHS to have manufactured the very evidence it uses to prove its position in an immigration-court case.

The issue in the case was the acceptance by the Immigration Judge of a letter prepared by a United States Department of State ("DOS") investigator at the United States Embassy in Sofia, Bulgaria. The letter specifically addressed the Bulgarian-foreign-national asylum applicant's contention that he had been subpoenaed twice to appear in a Sofia, Bulgaria police station. The investigator's letter concludes, among other assertions, that the subpoenas offered by the Bulgarian man were fraudulent based on the investigator's communication with a police officer allegedly posted at the very police station at which the subpoenas required the Bulgarian man to appear. The Bulgarian man submitted evidence to contradict the letter and argued against the acceptance of the letter, in part, on fairness grounds.

Possibly perceiving an issue of unfairness, the Immigration Judge requested DHS to have a DOS employee testify in court regarding the letter. In response, DHS produced yet another letter from a DOS employee who in part wrote in the letter that it is against DOS policy to provide more details about an overseas investigation. Instead of dismissing both letters as inadequate, the Immigration Judge made an adverse-credibility finding against the Bulgarian man and denied his asylum application, a decision that the BIA affirmed and that the Ninth Circuit refused to review because of the fraudulent basis of the Bulgarian man's asylum application.

By refusing to review the BIA's affirmation, the Ninth Circuit accepted as truth the statements made within the first DOS letter without requiring the letter writer, or any DOS employee for that matter, to testify in court regarding the statements, thereby permitting not only hearsay but also double hearsay (the first layer of hearsay being the alleged statement from the Sofia, Bulgaria police officer to the DOS investigator and the second layer being the DOS investigator's words written on the letter) prepared solely for the purpose of the asylum hearing to be accepted as the truth. The Ninth Circuit ducks this otherwise clear violation of any reasonable idea of fairness in part by using the all-encompassing argument that it is the Bulgarian man's burden, and not DHS's, to prove that he merits asylum, thereby requiring all asylum applicants effectively to move mountains to overcome the slightest doubts of legitimacy raised by manufactured hearsay evidence.

Despite this recent decision, it is unsurprising to see a backlash by a federal court regarding evidentiary rules pertaining particularly to asylum applications given the incredible amount of fraud that has been perpetrated against DHS concerning such applications and, relatedly, the great dependence such applications have on the credibility of the applicant. The Ninth Circuit's solution may not be ideal, but it exposes a long-existing frustration within the judiciary relating to immigration cases. The decision is also instructive to asylum applicants moving forward to be more diligent and careful in the preparation of their asylum cases.

Wednesday, December 4, 2013

Court Provides Asylum Seekers a Reason to Give Thanks this Holiday Season

As many American families, including several families that only recently immigrated to the United States, were preparing to celebrate Thanksgiving Day last week, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, reaffirmed that the United States remains a shelter for foreign nationals persecuted in their home countries. The case Doe v. Holder held that a foreign national applying for asylum is not required to show either that his/her home government sponsored or condoned the persecution of the group of which the foreign national is a part or that the government was unwilling for that reason to control the persecution.

The case concerned a gay Russian man who ethnically is of a minority in Russia given his birth in an Eastern Russian area north of Mongolia. Although the Immigration Judge found that the Russian man did suffer harm while living in Russia, the Immigration Judge nevertheless denied the man's asylum application based on the perceived lack of required evidence that such harm resulted from either an unwillingness or inability of law-enforcement authorities within Russia to protect the man from such harm. The BIA agreed with the Immigration Judge in holding that the Russian man had "not shown that there is widespread persecution of homosexuals in Russia which is sponsored or condoned by the Russian government."

Fortunately, the Ninth Circuit reversed the BIA's holding by finding that the Russian man did meet his burden of proving the unwillingness-or-inability requirement through his submitted testimony and documents, that the United States Department of Homeland Security ("DHS") submitted nothing to discredit such evidence, and that the BIA despite accepting the Immigration Judge's conclusion that the Russian man is credible nevertheless held the man to an impermissibly high and consequently unlawful unwillingness-or-inability standard. Specifically, the Ninth Circuit found that the man, in order to meet the unwillingness-or-inability requirement, did not need to show that law-enforcement authorities actually sponsored or condoned the persecution of homosexuals or that such authorities were unwilling for that reason to control the persecution. The case represents not only a continuation of the trend I have discussed previously regarding protections of homosexuals and others within the LGBT community but also a broader understanding of how United States Asylum Law errs on the side of caution in protecting sufferers of persecution.

Nonetheless, as the Ninth Circuit giveth, it taketh away. Less than a week later in Taggar v. Holder, the Ninth Circuit held that Immigration Courts are permitted to establish deadlines by which even mandatory forms of relief, e.g. applications for withholding of removal and/or for deferral of removal, must be filed within one's removal proceedings. In that case, an Indian woman was given multiple opportunities to file applications for relief but simply failed to do so but then argued that the Immigration Judge was without authority to deny her the opportunity to file an application for protection under the Convention Against Torture. The BIA affirmed the Immigration Judge's removal order and refusal to consider the Indian woman's applications for relief, and the Ninth Circuit upheld the BIA's affirmation by agreeing that the Indian woman simply abandoned any forms of relief for which she may have been eligible because she did not comply with the Immigration Judge's filing deadline(s).

Therefore, as the Ninth Circuit has shown in its last couple of decisions, even those without a great deal of indisputable evidence may receive asylum, but they still need to follow the rules.

Monday, November 25, 2013

Court Reconfirms It Does Not Have Jurisdiction to Review Aggravated-Felony Cases

Last week, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, restated what has already long been known: it does not have jurisdiction to review orders of removal for individuals who have been found by the BIA to be deportable from the United States for having been convicted of what is known as an Aggravated Felony. The foreign national in Murillo-Prado v. Holder was told on November 20, 2013 in no uncertain terms by the Ninth Circuit that the Ninth Circuit simply did not have the authority from the United States Congress to review his case if indeed he was properly found to be deportable for having been convicted of an Aggravated Felony but nevertheless maintained the authority to determine whether such finding was made correctly by the BIA. Unfortunately for the foreign national, the Ninth Circuit found that the documents submitted by the United States Department of Homeland Security to prove the foreign national's deportability, including the indictment, plea agreement, & sentencing order, were enough to meet the burden of proving such deportability by clear and convincing evidence.

In other news, it appears the Republicans in the United States Congress's House of Representatives have not given up on Comprehensive Immigration Reform ("CIR") as Majority Whip Kevin McCarthy potentially disingenuously made clear yesterday:

CBS's Face the Nation, November 24, 2013

Sunday, November 17, 2013

Successfully Achieving Protections for LGBT Victims

After the United States Supreme Court barred the United States Government from discriminating against lawfully married same-sex couples in its landmark decision United States v. Windsor, the United States Department of Homeland Security quickly issued guidance on how that decision affects relevant immigration-related filings including immigrant-based ("Green Card") and nonimmigrant-based visa petitions. The result has been foreign-national spouses in same-sex relationships receiving immigration benefits.

However, there is a less celebratory but equally important side to immigration law of which many are not aware and which involves assisting individuals who are victims of abusive or criminal activity. Such individuals are sometimes left without what they believe is the sole basis of resolving their immigration status: their relationship with their United-States-citizen or Green-Card-holding spouse or partner. These same individuals may even face discrimination at the local level pertaining to obtaining justice for their victimization. As a client of mine learned after he had been violently attacked by his United-States-citizen boyfriend of many years and would-be fiancé, a great deal of courage is required to overcome structural societal biases that still linger even in major metropolitan areas of the United States:

Spanish Language Only

Nevertheless, despite the obstacles my client faced in having law-enforcement authorities investigate and prosecute what many would find a clear case of domestic violence, he remained active in seeking some form of justice, including resolving his immigration status. Such resolution came when the same law-enforcement authorities that he had initially believed were being unhelpful nevertheless certified that he was a victim of a crime, e.g., domestic violence, and was helpful in the investigation of that crime. The client was wise to seek skilled immigration-related legal counsel to assist him in obtaining that certification because law-enforcement authorities may have certain procedures in place or personnel to be contacted regarding such certification requests. Not abiding by those procedures or not contacting the correct personnel may lead to a denial of a certification request, the granting of which is solely within the relevant law-enforcement authority's discretionIn my client's case and due in no small part to his courage, he was successful in obtaining lawful immigration status.

It is important to note that the ability of LGBT victims to resolve their immigration cases favorably based on their victimization does not necessarily rely on whether or not they are married or in a relationship with a United-States citizen or Green-Card holder or even on whether such victimization occurred within a domestic relationship at all. It may not even require a police report or other contemporaneous documentary evidence of the victimization. Nevertheless, although the spectrum of relevant scenarios is wide, the difficulty may relate more to overcoming structural societal biases, something which, as my client above has shown, is clearly possible.

Saturday, November 9, 2013

Government Must Comply with Filing Deadlines, Court Says

In what many private practitioners of immigration law find to be a long overdue decision, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, did not permit the United States Department of Homeland Security ("DHS") to bypass the Immigration Court Practice Manual to file evidence in support of its charges of removability against a foreign-national asylee. DHS attempted to bypass the rule that was discussed in my last post and that requires that evidence in support of a party's position be filed at least fifteen days prior to the relevant hearing. Also as discussed in my last post, there is an exception to that rule if the purpose of the offered evidence is to rebut and/or impeach. As one may imagine, such an exception could potentially be subject to abuse by DHS in situations where DHS alleges a foreign national has committed fraud of some sort and therefore can be served with the evidence supporting such a charge on the date of the relevant hearing, instead of fifteen days prior, under the guise that the evidence's purpose is to impeach the foreign national's credibility.

However, a few days ago in Urooj v. Holder, the Ninth Circuit clarified once again the difference between substantive evidence and rebuttal &/or impeachment evidence. The Ninth Circuit specifically referenced the Immigration Court Practice Manual's filing-deadline rule and held that if DHS seeks to support its position with evidence, then such evidence must be filed in concert with such filing deadlines.

The case is also interesting because it involved the foreign national's refusing, per her attorney's instruction, to answer DHS's questions during the relevant immigration-court hearing, but such refusal, the Ninth Circuit held, could not be used to establish DHS's position absent any substantive evidence that was properly filed, i.e., filed pursuant to the Immigration Court Practice Manual's filing deadline.

It is important to note that such tactics would likely be effective not only when the burden is on DHS to prove removability but also when the foreign-national respondent already holds lawful immigration status.

Friday, November 1, 2013

Court Requires Immigration Judge to Give Foreign National Time to Investigate Negative Evidence

The United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, issued a strong rebuke last week against the BIA and an immigration judge who not only permitted the United States Department of Homeland Security ("DHS") to issue last minute evidence that was harmful to an asylum applicant's claim but also failed to permit that asylum applicant time to investigate that evidence. The decision in Bondarenko v. Holder, some would argue, contrasts with the Immigration Court Practice Manual's permission of submission of evidence on the date of the hearing if the sole purpose of the evidence is to rebut and/or impeach. Nevertheless, the Ninth Circuit held that the asylum applicant "had a due process right to 'a reasonable opportunity' to investigate the [evidence]." The decision potentially could be applied in a number of situations in which DHS attempts to submit rebuttal evidence at a hearing without giving advance notice to the foreign national.

Wednesday, October 23, 2013

Knowing the Path v. Walking the Path: Getting the Votes for Comprehensive Immigration Reform

One can easily determine by simply following the news where the weaknesses in the existing immigration-law framework exist, but addressing those weaknesses has proven far easier said than done. Less than a month into the current fiscal year and already the cap for Cancellation of Removal & Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") has been met. The current fiscal year runs from October 1, 2013 to September 30, 2014. The United States Congress has allowed for only 4,000 of such applications to be granted nationwide per fiscal year. While many people are aware of the H-1B temporary-worker cap and how quickly it is met each fiscal year, far fewer are probably aware of the Non-LPR Cancellation cap or even of what Non-LPR Cancellation is. Eligibility for Non-LPR Cancellation typically requires that a person be residing continuously in the United States for at least ten years prior to having been placed in removal proceedings, that the person have had good moral character during that period and up until the grant of the Non-LPR Cancellation application, and that the person have a qualifying United-States-citizen or Green-Card-holding relative, such as a spouse, child, or parent, who would suffer exceptional and extremely unusual hardship were the Non-LPR Cancellation application not granted.

For many undocumented individuals who entered the United States without inspection and who do not qualify for any previously passed amnesty provision, Non-LPR Cancellation appears to be the only way to resolve their immigration matters. Moreover, such individuals are only eligible for Non-LPR Cancellation if they can prove the requisite hardship to the qualifying United-States-citizen or Green-Card-holding relative, i.e., the very people the United States Congress was trying to protect when it passed Non-LPR Cancellation. In fiscal years past when the cap was met, Immigration Courts would continue the individual-merits hearings for Non-LPR-Cancellation applicants until the beginning of the following fiscal year. However, with more pressure on Immigration Courts to resolve removal cases more quickly, immigration judges have shifted course and instead have conducted the hearings on the applications sooner but have withheld a final decision on the Non-LPR-Cancellation applications until the beginning of the following fiscal year. The result, as can be seen in the first month of the current fiscal year, is the cap being met in a matter of weeks because of issuance of approvals for applications that were heard during the last fiscal year.

I have written previously about how the political environment is ripe for both political parties in the United States Congress to try to pass, and consequently to try to take credit for, Comprehensive Immigration Reform ("CIR"). As David Brook, Andrea Mitchell, David Gregory, and E.J. Dionne reference below, it is in President Barack Obama's and the Republicans' interests both substantively and politically to push right now for CIR:

NBC's Meet the Press, October 20, 2013
In the meanwhile, it appears for now that the federal courts, as opposed to the United States Congress, will continue to try to clarify on a large scale, rather than on an individual scale, which people are of the type the United States wants to help remain in the country and which are not. The United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which hears petitions for review from decisions of the Board of Immigration Appeals regarding removal proceedings that have taken place in states such as California, Nevada, Arizona, and Washington, held yesterday that molestation of a fourteen-year-old or fifteen-year-old child by someone at least ten years older than the child categorically is a crime of violence and therefore an aggravated felony barring the perpetrator, if not a United-States citizen, from almost all forms of immigration-related relief, including Non-LPR Cancellation. The decision, Rodriguez-Castellon v. Holder, leaves no room for maneuvering by someone convicted of such an offense to avoid the dreaded aggravated-felon bar in immigration law, leaving such a person to turn to extraordinary and relatively unknown forms of immigration-related relief to resolve his/her immigration matter. It appears that the Ninth Circuit both knows the path and is walking the path. Whether the United States Congress will do the same is yet to be seen, but any more waiting only makes it less likely.

Wednesday, October 16, 2013

Discovering a Post-Shutdown Path to Comprehensive Immigration Reform

At the beginning of this week, the United States celebrated its having been discovered by Europeans more than 521 years ago. Half way through this week, the Members of the United States Congress discovered a way to end the government shutdown and to raise the nation's debt ceiling, thereby avoiding a potential default on the government's loans. Christopher Colombus had to endure the potential threat of being killed by his own crew of the three ships he led across the Atlantic Ocean before seeing on the horizon the islands of the West Indies. Similarly, the end of the shutdown came about despite opposition by a majority of the controlling political party in the United States House of Representatives because the Speaker of that chamber allowed a pre-negotiated deal to come to a vote. As Colombus proved there is no ocean edge over which his ships would fall, Speaker John Boehner proved that he would not permit the government to fall off the fiscal cliff. Colombus rewarded his patrons with the riches of the New World. Now Boehner must reward his supporters by leading his political party out of the figurative hole in which it finds itself as a result of its receiving the lion's share of the blame for the shutdown.

That way out could be to bring quickly the Senate's passed Comprehensive-Immigration-Reform ("CIR") bill to a vote on the floor of the United States House of Representatives. Leading the way in finally passing CIR would provide the Republicans the rehabilitation their brand desperately needs at this time, and Boehner would be wise to take the opportunity immediately rather than allowing it to slip away. By permitting his fellow party members to use the shutdown and debt ceiling as leverage to attempt both to reduce spending and even to defund ObamaCare, Boehner confirmed his conservative credentials and party loyalty despite the strategy's failing. By recognizing before it was too late the reality that that attempt had failed and by bringing the deal brokered in the United States Senate to a vote in the United States House of Representatives, Boehner proved his love for country and consequently drew influence away from the most conservative members of his political party and consolidated it within his office.

Now Boehner can end the popularity-rating free fall his political party is suffering and can therefore be a Republican hero by bringing the Senate's CIR bill to a vote on the floor of the United States House of Representatives. Regardless of political affiliation, one can easily see that the Republicans are in dire need of a boost in popularity, and no issue is better suited to provide that boost than CIR. I had written earlier that it appeared that CIR was already dead, but the current political climate is ripe for it to be passed if passed quickly. Moreover, the news from earlier this week that detention of immigrants is apparently quota-based rather than safety-based provides yet another example of how the current immigration system in the United States could be made better.

If he takes advantage of such a climate, Speaker Boehner's biggest problem will not be the tea-party Republicans, from whom most of the country no longer wants to hear for the time being, but rather the White House's attempts to take credit for what he effectively would have made possible:

Nevertheless, such a battle over who should receive credit for CIR, unlike the government-shutdown and debt-ceiling battles, could actually be won by the Republicans but only if Boehner moves quickly to bring CIR to the floor of the United States House of Representatives for a vote.

Wednesday, October 9, 2013

Continuing Shutdown Negatively Affects Immigration-Related Services

Although there appears to be some light at the end of the tunnel, the continuing Government shutdown is negatively affecting both deportation-related and benefits-related immigration services. Here are the Immigration-Court and Social-Security-Administration informational links I promise in the below video:

Monday, October 7, 2013

Pride Without Prejudice: New Decision Reduces Ability for Immigrants to be Made Whole Following Violation of Rights

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It appears the federal courts are trying to follow the recent dichotomy that has arisen in the news. For instance, the federal government remains shut down due to the inability of the two parties and the two chambers of the United States Congress to agree on a budget. However, ObamaCare continues to move forward.  Moreover, over the weekend, United States Special Forces engaged in special operations to capture alleged terrorist operatives, but while the operation in Libya was successful, the operation in Somalia was not. The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), the western federal appeals court that hears appeals from various federal district courts within its jurisdiction and that hears petitions for review of final orders of removal by the Board of Immigration Appeals regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, now has entered this developing yin-yang fray by issuing today a decision that at first appears to contradict itself.


The decision, United States v. Gomez, concerned a Mexican-citizen man who had been physically deported from the United States on January 20, 2006 because of his not having lawful status in the United States at the time. Although the man also had a couple of criminal convictions, United States Immigration and Customs Enforcement (“ICE”) removed any reference of those in the charging documents it brought against the man to seek his removal from the United States, something that is not unusual when someone is removable anyway regardless of his/her criminal history. The man requested that he see an immigration judge but then subsequently, and according to him without his full knowledge, signed a waiver of rights and agreement to be deported. The man then returned to the United States after having been deported and was located by ICE following his being arrested for yet another criminal matter.

ICE then brought federal criminal charges against the man for illegally reentering the United States after deportation. In federal district court, the Mexican-citizen man argued that he could not be convicted for illegally reentering after deportation because one of the requirements for such a conviction is his having been previously and validly ordered removed. The man’s reasoning was that his removal order was not validly issued because it resulted from a violation of his rights, including his right to see an immigration judge and his right to appeal his removal order. While the federal district court did not agree with the man, the Ninth Circuit on appeal did, at least in part. The Ninth Circuit found that the actions taken by ICE, i.e., first receiving from the man a request to see an immigration judge as was his right but then having him sign a waiver of that right despite his initial request, amounted to the previous removal order’s being invalid.

Nevertheless, and this is the part that continues the pattern of binary events, the Ninth Circuit still upheld the denial of the man’s motion to dismiss the criminal proceeding against him because the violation that led to his previous removal order did not prejudice him, meaning he would have been ordered removed anyway even had he been permitted to see an immigration judge and had he been permitted to appeal his removal order. The case is a classic example of harmless error, i.e., ICE did the man wrong but the end result would have been the same had ICE done the man right. Some would find that such a decision only incentivizes ICE to trample people’s rights in similar situations, but others would find that the decision’s reasoning is an efficient of way of dealing with harmless-error due-process issues. Either way, the decision shows that a simple violation of one’s rights will not pave a way to victory. Victory in immigration cases requires a great deal of effort and precision, and although it may hurt one’s pride to do so, seeking expert assistance may be the only way to achieve it.

Friday, October 4, 2013

Impact of ObamaCare & California Driving Privileges on Immigrants

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This week saw the beginning of the individual-enrollment period for the Patient Patient and Affordable Care Act ("ObamaCare"). It also saw the passage in California of a law that would allow undocumented immigrants to receive driving privileges.  How these two developments affect immigrants is yet to be seen, but it's not as simple as some would suggest.

For instance, undocumented individuals, or unlawfully present immigrants as they are also called, already do not qualify for Medicaid, which is expanded by ObamaCare. They also would not qualify for subsidized medical insurance that could be provided to them through each individual state's insurance exchange. However, ironically, ObamaCare specifically exempts such individuals also from the tax the U.S. Supreme Court earlier this year found could be levied against those who do not comply with ObamaCare's individual mandate. While some unlawfully present individuals may rejoice by their ability to avoid that tax, others are hurt by the inability to receive subsidized medical insurance. Resolving one's immigration situation would enable such persons to be eligible for subsidized medical insurance and perhaps ultimately Medicaid altogether.

Regarding the passage in California of AB-60, the legislative bill that would extend driving privileges to undocumented immigrants, it is important to note, first, that the law will not go into effect probably until the end of 2014 because of the time it will take for the changes to be implemented and, second, that the driving-privileges cards issued will be different from driver's licenses. Therefore, in a way, once the new cards are finally issued, they will differentiate the cardholder immediately from regular driver-license holders. Exposing one's unlawful presence in such a clear way may not be acceptable to certain undocumented immigrants, and it will be a subject of debate how clear that differentiation will be made.

The below video also discusses the two recent events while ending with a summary of the current status of the Government shutdown and its effect on immigration-related services:

Monday, September 30, 2013

Federal Government Shutdown will Affect Immigration-Related Services

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The impending shutdown of the U.S. Government and the consequential furloughing of thousands of federal employees will affect various federal agencies in different ways as explained here. There are four main U.S. agencies that engage in U.S. immigration-related services: the Department of Homeland Security, the Department of Justice, the Department of State, and the Department of Labor.  The federal courts also hear immigration-related cases.  To learn more about how a shutdown will affect the various federal agencies that engage in immigration-related services, watch the following short video:

Monday, September 23, 2013

Comprehensive Immigration Reform Appears Dead


Comprehensive Immigration Reform (“CIR”), the proposed legislation that would bring legal status to millions of undocumented individuals in the United States, appears to have all but been defeated in the United States Congress. Seven Members from both major political parties in the United States House of Representatives (“the House”) had formed a temporary coalition to seek passage of a comprehensive legislative bill that once passed would be the first major step forward to CIR becoming law since the United States Senate passed a legislative bill earlier this year in the summer. However, the Republican members of the “Gang of Seven” as the temporary coalition was called backed away from the proposed legislation after being criticized by more conservative elements within their political party. The breakdown of the coalition has already been acknowledged by the major media outlets as can be seen here. Even President Barack Obama’s former press secretary Robert Gibbs went on nationwide television and said himself that CIR appears dead:
NBC's Meet the Press, September 22, 2013
Although the Democrats are attempting on their own to salvage the CIR effort, the latest breakdown combined with the fact that the Republicans have a majority in the House shows that CIR is likely never to be signed into law.

Nevertheless, those who would have benefited from CIR if it had passed are not necessarily without any options. In recent years, the United States Department of Homeland Security has increased use of prosecutorial discretion, which includes administratively closing pending removal proceedings without issuance of an order of removal, granting stays of removal to those already ordered removed, and issuing Deferred Action for Childhood Arrivals (“DACA”) to those individuals brought to the United States at a young age. The United States Department of Homeland Security has issued a great deal of guidance on such a shift in policy with the latest guidance coming in the form of a memorandum on maintaining family unity found here. That same agency worked cooperatively with the United States Department of State to allow certain individuals, who are within the United States without lawful status and who would be deemed inadmissible upon departure solely for unlawful presence, to apply for a provisional waiver prior to even departing for an immigrant-visa interview abroad.

The federal courts have followed suit. For example, the United States District Court for the Central District of California last month ordered that foreign nationals detained within that court’s jurisdiction must be given a bond hearing at which they can actually be released. That order, found here, makes clear that its language is to be interpreted broadly and consequently is meant to apply to most immigrant detainees held in immigration custody for more than six months regardless of the current status of their removal proceedings.

Additionally, the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), which is the federal appeals court that hears all petitions for review from the Board of Immigrations Appeals (“BIA”) regarding removal proceedings that take place in several Western states including but not limited to California, Arizona, Nevada, Washington, and Oregon, issued a decision today confirming its overturning of a BIA decision that found a foreign national not to be credible regarding his asylum application. The case, Bassene v. Holder, held that the BIA was wrong in concluding that alleged inconsistencies in two separate applications filed by a Senegalese man amounted to his being inconsistent and therefore dishonest. The Ninth Circuit agreed that the foreign national reconciled the alleged inconsistencies and even went out of its way to acknowledge that the foreign national’s asylum application was timely despite its being filed more than a year after his last entry because he filed it within a reasonable time following the expiration of his nonimmigrant status and of his discovery that he initially had filed the wrong form.

Therefore, for those foreign nationals willing to put in a little bit of energy to resolve their immigration matter, opportunities are there. Those who instead want for legal status to be delivered to them on a silver platter so to speak will keep waiting for CIR while these opportunities pass them by.

Wednesday, September 18, 2013

Court Constricts Rights of Those Seeking Fear-Based Forms of Relief



The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), which is the federal appeals court that hears all petitions for review from the Board of Immigrations Appeals (“BIA”) regarding removal proceedings that take place in several Western states including but not limited to California, Arizona, Nevada, Washington, and Oregon, issued two decisions today restricting the ability of foreign nationals to obtain fear-based forms of immigration-related relief such as asylum and withholding of removal.

First, in a case called Garcia-Milian v. Holder the Ninth Circuit found that a woman could not establish that her suffering violent threats in her native Guatemala amounted to persecution based on a perceived political opinion despite such threats coming from individuals who were searching for her common-law husband because of his involvement in a guerilla group. The decision went further to find that the woman also had not established that the police in Guatemala were unwilling or unable to protect her from the threats despite the police’s declining to pursue the matter based on the conclusion that there was insufficient information.

Second, in a case called Kulakchyan v. Holder the Ninth Circuit held that one could not escape a potential frivolous-asylum-application finding simply by withdrawing the application. If an application for asylum is determined by an immigration judge to be frivolous, meaning it is wholly without merit potentially because it is fraudulent, then the applicant is barred not only from receiving asylum but also from receiving many other forms of relief including adjustment of status even if the applicant would otherwise have been eligible for a fraud-based waiver. In the decision, the Ninth Circuit deferred to the BIA’s determination that an Armenian woman’s asylum application was frivolous, triggering the devastating immigration consequences of such a determination, despite the woman’s later withdrawal of that application. The BIA had held, and the Ninth Circuit effectively condoned, that the filing of an asylum application is all that is required to begin an inquiry into whether such an application is frivolous, meaning the applicant does not even need to pursue it or otherwise seek a decision on it after filing for the application to be deemed frivolous.

The decisions are consistent with a similar decision issued at the end of last week by the Ninth Circuit in a case called Gutierrez v. Holder, which held that if the United States Department of Homeland Security (“DHS”) has evidence that a foreign national previously granted withholding of removal is no longer eligible for such relief because of some intervening occurrence, then it can seek to terminate the foreign national’s withholding-of-removal in conjunction with bringing removal proceedings, meaning without providing the foreign national a separate hearing on the issue of such termination. In that decision, the Ninth Circuit did not find that a Mexican woman was owed a separate proceeding solely for determination of whether her withholding-of-removal grant could be terminated and instead found that DHS could seek the termination in the context of new removal proceedings in which DHS need only show by a preponderance of the evidence that termination of such grant would be proper.

The cases show a trend toward making it more difficult for foreign nationals to obtain or maintain asylum, withholding of removal, and other forms of immigration-related relief if not careful in how they go about managing their immigration matter, something that should be taken very seriously.

Wednesday, September 11, 2013

A DREAM Deferred?

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A couple of weeks ago, the United States celebrated as a nation a speech made more than fifty years ago by Dr. Martin Luther King, Jr., who preached acceptance of and dignity for all. Today in the United States there are millions of individuals who face the indignity of not being accepted because of their immigration matter. The prospect of Comprehensive Immigration Reform ("CIR") brought hope to those foreign nationals that they would no longer have to suffer such an indignity. CIR was supposed to be the culmination of what many viewed in the United States as the new civil-rights movement, based not on race but rather on national origin. This movement included the idea that being an “American” did not require one to be born in, or even be a citizen or lawful permanent resident of, the United States. Instead, symbolically, being an American meant being instilled with American values, being raised in the United States, or being a contributing member of American society. If individuals fall into any of such categories, then, as this movement represented, their legal identity should match their symbolic identity.

The shift toward this new definition of what it meant to be an American began to make some actual progress. The debate over elimination of birthright citizenship instead turned toward inclusion of those who carried with them the same ideals that are ingrained in every citizen. For example, first in 2009, the United States Congress amended the Immigration and Nationality Act to permit primary and derivative beneficiaries of pending immigrant petitions to receive lawful permanent residency if they are in the United States despite the passing of the relevant petitioner. Previously, if a petitioner had passed away before the approval of his/her immigrant petition, then the immigrant petition was automatically withdrawn, thereby rendering the primary and derivative beneficiaries of that immigrant petition ineligible. Second, last year, the United States Department of Homeland Security implemented Deferred Action for Childhood Arrivals (“DACA”) to allow certain young people, known as “DREAMers” because they would have benefited from the proposed but defeated DREAM Act, to stabilize their ability to live and to work in the United States despite having no lawful immigration status. DACA became part of an overall shift in policy away from blind enforcement toward prosecutorial discretion. Third, earlier this year, the United States Department of Homeland Security implemented a regulation that permitted certain unlawfully present beneficiaries of immediate-relative immigrant petitions to avoid the uncertainty and long waits associated with returning to their home countries for immigrant-visa processing by allowing them to apply for a waiver provisionally while still in the United States. If the provisional waiver (“I-601A”) is approved, then the foreign national attends the immigrant-visa appointment abroad with confidence that the immigrant visa will be issued in a timely manner so that s/he may return to the United States soon thereafter. Finally, the United States Senate (“the Senate”) earlier this year passed CIR, making those who would benefit from it one step closer to their dream of being accepted in the United States and of having the dignity that comes with such lawful immigration status.

However, when the CIR bill moved to the floor of the United States House of Representatives (“the House”), that dream became indefinitely deferred. First, the Members in the House did not appear as eager to pass CIR as did their colleagues in the Senate. Such lack of eagerness stems from the different politics that exist in the House that do not necessarily exist in the Senate. Second, the United States became focused on the civil war in Syria because of the alleged use by the Syrian government of chemical weapons on those perceived to be rebelling against it. The discussion on whether the United States should use military action in light of the chemical-weapons attack dominated the news stories in the media, which all but stopped reporting on the prospect of CIR. Third, and related to the first two reasons, one of CIR’s strongest driving forces, the President of the United States (“the President”), may have lost any momentum he had with having the House pass a CIR bill similar to the Senate’s, if any, by not garnering the support necessary to obtain a resolution from the United States Congress authorizing the use of military action against the Syrian government. Although the two issues appear at first to be unrelated, their common link is the President’s being a proponent of each, and consistent with the politics that currently exist in the House, the President’s inability to build momentum on one affects such ability regarding the other.

While many remain hopeful that CIR will ultimately pass and become the law in the United States, one must be prepared for the prospect that it will fail and that reliance on the current law and the way in which it is being enforced will remain the only option. While such reliance may not be easy, it may still be beneficial because immigration law in the United States continues to evolve regardless of the United States Congress’s inaction. Such evolution as described above has helped hundreds of thousands if not millions, but the only way to know whether it can be beneficial to a certain individual, i.e., whether the dream of acceptance and dignity may actually be realized, requires confronting one’s immigration matter now rather than deferring it.