Sunday, March 9, 2014

Courts are Plugging Several Holes in the Immigration Dam: Child Abduction, SIJS, CAT, & Reinstatement


In the absence of any action on Comprehensive Immigration Reform ("CIR") by the U.S. Congress, this past week saw a great deal of activity by the courts regarding immigration-related matters in an attempt to clarify often confusing rules. For instance, the U.S. Supreme Court held that there is no exception to the one-year filing deadline for a petition filed under the Hague Convention on the Civil Aspects of International Child Abduction to return a child to the U.S. following the child's removal out of the country by one of his/her parents. In Lozano v. Montoya Alvarez, all of the Justices found that the crucial deadline, by which the filing of a relevant petition would mandate the return of the child to the U.S. but after which such return may not be ordered if the child is now settled in his/her new environment, simply could not be postponed or "equitably tolled" because, to summarize as briefly as possible, such tolling does not apply to treaties.

The California Court of Appeal's Fourth Appellate District also addressed immigration-related matters concerning children, in particular a specific avenue for minors to obtain Lawful Permanent Residence ("a Green Card") known as Special Immigrant Juvenile Status ("SIJS"). In Leslie H. v. Superior Court (People), the court found that a California Superior Court Judge is without authority to deny a minor an order allowing him/her to apply for SIJS despite that judge's making the required factual findings, namely that the child (1) is either a dependent of the court or is legally placed with a state agency, a private agency, or a private person; (2) is not best served by being returned either to his/her home country or country in which s/he last resided; and (3) cannot be reunited with his/her parent(s).

Finally, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears petitions for review regarding removal proceedings conducted within the Western States, held in Go v. Holder that motions to reopen regarding claims under the Convention Against Torture, another treaty, are subject to the normal time- and number-related limitations that apply to all other motions to reopen.  On the same day, the Ninth Circuit also held in Montoya v. Holder that the U.S. Department of Homeland Security ("DHS") is permitted to reinstate a previously executed removal order against someone who reentered the U.S. after such removal even if that person had an ultimately approved immigrant petition filed for him/her before the change in the law relating to reinstatement because such a petition failed to create any type of right to any immigration-related relief.

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