Articles Posted in Removal Proceedings

With the recent escalation of armed conflicts in countries like Iraq and Syria, many seek to escape the war-torn areas in search of safety and freedom. The freedom of religion and political opinion that is greatly cherished here in America, is the cause of violence and turmoil amongst the Muslim nations in the Middle East.   In both Iraq and Syria, the ongoing tension and division between the Sunni and Shiite’s has many seeking refuge.

According to the Council on Foreign Relations, the ancient religious divide is helping fuel a resurgence of conflicts and the struggle between Sunni and Shiite forces have fed a Syrian civil war and spurred violence that is fracturing Iraq. This violence includes kidnapping, torture, rape and executions of civilians.

In a recently released report by Amnesty International, which covers human rights violations, it was revealed that Iraqi people are not only suffering from atrocities committed by ISIS militants but also from the armed government-backed Shiite militants. The report claims that the Iraqi government is responsible for the attacks on the civilians since the Shiite militias that target Sunni Iraqis, do so in response to the ISIS attacks. As a result, the ongoing cycle leaves the Shiite civilians targeted by ISIS, whereas the Sunni Muslim’s in Iraq are trapped between the Shiite Militia, the government and ISIS militants who attack anyone that opposes them (including the Sunnis).

gavel-952313-m.jpgOn February 16th, a judge in Texas issued a temporary injunction against parts of the President’s immigration executive action plan, including DAPA and the DACA expansion. This means that they cannot take effect until this court or a higher one eventually rules in favor of the Obama administration or puts a stay on his injunction (which would essentially cancel it). This also means that we had to update our post from February 6th, which talked about the changes’ planned start on the 18th and how to prepare for them. However, the post’s main point is still that the administration was expecting the programs to go on without serious difficulty. It did so knowing about the legal challenges, meaning that it likely viewed them more as political frustration than valid legal analysis. This is an assessment that we share.

Shortly after the initial announcement, a group of Republican Governors and Attorneys General from 26 states got together to file a lawsuit against it. While there are many potential reasons this group of Republicans could have spent so much time fighting the executive action, it is likely not based on a true understanding of economics or the law. (We have written articles on why we think the action is both legal and economical.) So, the fact that they succeeded in at least delaying it may come as an unfortunate surprise for the plan and the millions of people who would benefit from it. However, some analysis will show that this ruling is little cause for concern.

There are two keys to understanding the ruling. The first is the identity of the judge: U.S. District Court Judge Andrew Hanen. This judge is known for calling Obama’s immigration enforcement policy “dangerous and unconscionable” and for saying that his administration “should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws.” He has also taken the opportunity to issue general swipes at U.S. immigration policy in several rulings, even though the cases did not require his opinion on those matters. The second is the nature of the way the case wound up in his lap.

old-bailey-1-301905-m.jpgAlmost as soon as President Obama unveiled his plan for executive action as a means of helping to fix the broken immigration system, Republican members of congress and state attorneys general began putting together a lawsuit to stop it. They claim that he is overstepping his authority as president and seek to nullify these executive orders. The Republican controlled House of Representatives voted 219-197 to make the plan “null and void and without legal effect.” (However, while President Obama is still in office, the Republicans are unable to pass any bills into law without his consent, because in order to override his veto power, they need at least 66% of the seats in both houses of Congress. They will still have less than 60% in both in the upcoming session.)

In order to defeat this executive action, it seems they will have to do so in the courts. However, it is our opinion that these executive orders are legal (and constitutional). The only politically (and perhaps legally) divisive aspect of the plan is the expansion of the deferred action program that will apply to over 4 million undocumented immigrants. The largest part of this is Deferred Action for Parental Accountability (DAPA), which for three years at a time grants relief from deportation to undocumented parents of U.S. Citizens who pay back taxes and pass a background check. (In addition to this, there is an expansion of the existing DACA program).

Nearly all of the claims against the executive action’s legality have to do with this deference of action. (In fact, the lawsuit doesn’t mention much else.) Some are arguing that President Obama is ignoring his executive duty by refusing to deport these people. Granted, they are eligible for legal removal. It may thus appear that offering them the opportunity to not be deported is ignoring the law. However, more extensive review indicates that it isn’t as simple as this.

There are several crimes that qualify as aggravated felony convictions under immigration law. Even if a crime is considered a misdemeanor under state law, it can be seen as an aggravated felony conviction for immigration purposes. A conviction for a crime that qualifies as an aggravated felony will foreclose a non-citizen from applying for most types of relief from removal such as asylum and cancellation of removal.

A non-citizen may be put into removal proceedings due to a conviction for an aggravated felony. Before the non-citizen can apply for relief with the immigration court, he must show that the crime he was convicted of does not qualify as an aggravated felony. This analysis depends on several factors: the language of the state statute of conviction, whether the state statute is divisible, what type of evidence is contained in the conviction record, and the language of the corresponding federal statute.

Recently, the Board of Immigration Appeals (BIA) made some important decisions concerning whether certain convictions qualify as aggravated felonies. The first case comes from North Dakota where the respondent was convicted of the crime of contributing to the delinquency of a minor under North Dakota law. The government charged him as being removable from the United States for being convicted of an aggravated felony, specifically sexual abuse of a minor under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). First, the court looks to the elements of the statute of conviction. In this case they determined that the North Dakota statute did not contain any reference to sexual conduct. Since the elements did not line up, the North Dakota statute is not divisible. Since the statute is not divisible the court may not look at the record of conviction to determine what the actual conduct of the underlying conviction was. A statute is divisible when some but not all of the elements of the offense give rise to removability. In that case, the court can look at the record of conviction to see exactly which part of the statute the person was convicted for and then see if that matches up with an immigration violation. The BIA ended up terminating the removal proceedings against the respondent.

In a second case, the BIA remanded the case back to the Immigration Judge due to the recent Supreme Court decision of Descamps v. United States. The decision in Descamps states that the Immigration Judge can use a modified categorical approach if the statute under which the respondent was convicted is divisible, that is if it sets out various offenses for which someone can be convicted of, and only some of those offenses are a match to the federal standard for the crime. In this case, the respondent was convicted in Minnesota of criminal sexual conduct. That qualifies as an aggravated felony of sexual abuse with a minor. However, the Minnesota statute did not make any reference to the age of the victim. At the time of the Immigration Judge’s decision, the Descamps decision was not yet available. The Immigration Judge decided that the statute was divisible and looked at the record of conviction to find that the victim was 15 years old and indeed a minor. Therefore, the Judge decided that the respondent was guilty of an aggravated felony and not eligible for any immigration relief. Since the Immigration Judge did not have the Descamps decision available, the BIA remanded the case in light of that decision so that the Immigration Judge can conduct further proceedings on the case.

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A foreign national can come in contact with U.S. Immigration and Customs Enforcement (ICE) through the United States criminal justice system. This can happen whether the foreign national is in the country lawfully or unlawfully. This article will focus on those foreign nationals that have been admitted to the United States as lawful permanent residents but the processes discussed are similar for those who are present unlawfully as well.

A lawful permanent resident may come in contact with ICE if they commit certain crimes that render them removable from the United States. In fact, a lawful permanent resident can be deported from the United States if they are found to have committed certain crimes that make them deportable and the Immigration Judge orders them removed. These crimes are enumerated in the Immigration and Nationality Act and include: aggravated felonies, crimes involving moral turpitude, controlled substance offenses, firearms offenses, and domestic violence or child abuse. The list of crimes is quite extensive but, for example, a lawful permanent resident can be arrested by local police for possession of marijuana. If that individual had more than 30 grams of marijuana in his possession then ICE can place a hold on him or her. This means that once the person is released from local police custody, ICE can step in and detain them further.

A bond determination hearing will take place about 48 hours after ICE takes custody of the individual. This is very similar to a bond hearing in a criminal case. Unfortunately, some crimes are labeled “mandatory detention offenses” under immigration law in which there is no opportunity for a bond. The foreign national must remain detained throughout the pendency of his immigration proceedings. Crimes that will subject a foreign national to mandatory detention include: two or more crimes involving moral turpitude, an aggravated felony, a firearms offense, or a controlled substance conviction.

The good news is that in many cases mandatory detention can be challenged. The result being that the foreign national becomes eligible for a bond and can remain free during the pendency of his or her proceedings with immigration. In order to challenge the government’s finding that the foreign national is subject to mandatory detention an attorney must file a motion requesting a Matter of Joseph hearing before the Immigration Judge. Typically, an Immigration Judge has no power to determine whether or not a foreign national should be detained. However, in a Matter of Joseph hearing the Immigration Judge can determine that the government is substantially unlikely to prevail on the charge of removability that is the basis for the mandatory detention.
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u-s--supreme-court-1-745242-m.jpgIf you are a foreign national in removal proceedings, the burden of proof you will face is different depending upon how you entered the United States and what your immigration status is. Depending upon these factors, you may be treated in two different ways: like you are innocent until proven guilty, or guilty until proven innocent. Note that although we prefer not call people “aliens,” we use the term in this discussion for clarification and correctness purposes because it is the actual legal term used in the law and in US courts.

Removal is an adversary proceeding that takes place before the US Immigration Court upon charges filed by the US government against a foreign national (or “alien”) on the basis that the person should be removed from the United States. A foreign national in removal proceedings does not have the same rights and protections that an accused criminal has during a criminal trial. The immigration court is a civil court, not a criminal court, and certain constitutional protections do not apply such as certain Fourth Amendment due process protections like the exclusionary rule for unlawfully obtained evidence and prohibition against unlawful search and seizure.

Standards of proof

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jail-979240-m.jpgThere is new case law from a recent court decision that now allows certain green card holders to apply for a discretionary waiver from removability even for an aggravated felony conviction. The US Court of Appeals for the Seventh Circuit just held that the IIRIRA bar that prohibits 212(h) waivers to green card holders convicted of an aggravated felony, does not apply when the person has not been previously admitted to the US while in permanent residence status. This means that if you have a green card, and you were charged with removability based upon an aggravated felony conviction, you can apply for a 212(h) discretionary waiver of removability if you were never previously admitted to the US while already in green card status.

Section 212(h) of the Immigration and Nationality Act (INA) allows for a discretionary waiver of removability. Prior to the 1996 Immigration Reform and Immigrant Responsibility Act (IIRIRA), the only people who were barred from applying for the 212(h) waiver were those convicted of murder or criminal acts involving torture, or the attempt or conspiracy to commit such crimes. After IIRIRA, the bar was expanded to include those who have been convicted of an aggravated felony.
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file0001074973626.jpgA US court recently held that certain convictions for child abuse involving criminal negligence to not prohibit a person from applying for discretionary relief from removal in the case of Ibarra v. Holder, No. 11-953 (July 12, 2013) by the US Court of Appeals for the Tenth Circuit.

The facts of the case are that the petitioner, Ms. Ibarra, unintentionally left her children home alone while she was at work one evening. The oldest child was 10 years old, and no children were injured. She pled guilty to a charge of child abuse under Colorado Revised Statute §§ 18-6-401 (1) (A), (7) (b) (II) called “child abuse – negligence – no injury” that prohibits the following three types of conduct:
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952313_gavel.jpgThe US Court of Appeals For the 10th Circuit held in a recent decision that an order from the immigration judge denying a discretionary waiver of removal cannot be overturned unless there is a constitutional claim or legal question. Munis v. Holder Case No. 12-9593 (C.A. 10, Jul. 2, 2013).

A foreign national who is in removal proceedings without a legal defense against the charge of removability, may request a discretionary waiver of removal. The immigration judge has discretion to decide whether or not to grant the waiver, and the foreign national does not have a legal right to a discretionary waiver. Rather, the government has the power to decide whether or not to grant the waiver. Once the government has made a decision to deny a discretionary waiver, this decision cannot be appealed because courts have said that they lack jurisdiction unless there is a question of law or constitution claim.
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68948_law_series_4.jpgWhat are the consequences of lying to an immigration official?

Any foreign national who willfully misrepresents a material fact in order to get an immigration benefit, such as a visa or entry into the United States, is inadmissible and subject to removal. Such foreign national is also not eligible to obtain a US permanent resident status (otherwise known as a green card). However, in certain circumstances there is a waiver available at the discretion of the Attorney General, through the USCIS. Even if you qualify for this waiver, it does not mean you are guaranteed to get it since the USCIS has the discretion to grant or deny the waiver.
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