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 fiancĂ©, 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.