Articles Posted in Deportation & Removal

Last week, the Attorney General overruled the Board’s decisions in Matter of Lozada, and Matter of Assaad. The decision held that there is no Fifth Amendment right to counsel in immigration proceedings. Matter of Compean-Bangaly-J-E-C, 24 I&N, Dec. 710 (A.G. 2009).

When immigrants face possible deportation, they don’t have the right to a state-appointed attorney. Now, Attorney General Michael Mukasey says this means they also don’t have the right to a new hearing if the lawyer they hire turns out to be incompetent or a fraud. This decision could hurt thousands of immigrants seeking to stay in the U.S.

For 20 years, various courts have ruled that the clients of such a lawyer had a constitutional right to ask for a new trial with a new attorney. But the Justice Department has disagreed with that concept, and recently some courts upheld its view. The ruling does allow the Justice Department to use its discretion to grant new trials if an immigrant can show that his lawyer’s actions were “egregious,” and if the agency believes the immigrant has a valid claim to avoid deportation.

When the Illegal Immigration Reform and Immigrant Responsibility Act was passed by Congress in 1996, among its main goals was expelling and stiffening penalties against aliens who overstay visa allowances and improving security against illegal immigration on the borders and internally. While the law achieved some its objectives, it also spawned a population of immigrants, green-card holding “lawful permanent residents,” who could be more easily deported.

Key reason for this was a provision in the law that greatly expanded the list of crimes that qualified as “aggravated felonies” that would make aliens deportable. When the category of “aggravated felonies” was first added to immigration law in 1988, it encompassed only murder and trafficking in drugs or firearms. Those crimes along with a number of other violent and sex crimes remain as deportable offenses. But the 1996 law also added dozens of lesser offenses. These can include forgery, burglary, tax evasion, domestic abuse and any attempt to commit an aggravated felony. A number of crimes make aliens deportable if the sentence is a year or more, regardless of time served or whether the sentence was suspended. It even includes crimes that are misdemeanors in some states.

The legislation also reduced leeway for judges to consider providing relief. Issues such as immigration status, time lived in the U.S., existence of family who are citizens, ties to the community, or service to the U.S., including military, are not considered.

ILW.com recently published an interesting article by a former USCIS officer stationed at the London US Embassy, working on I-601 waivers. The question we all ask is whether officers exercise discretion when adjudicating 601 waivers, or are they following the law with respect to the extreme hardship standard.

Officer Heller explains: “When I was adjudicating I-601 waivers at the US Embassy in London my colleagues and I used to theorize on the element of discretion in waiver determinations. Some adhered to a strict constructionist view (discretion only comes into play once extreme hardship is established), others favored what I call a holistic approach (discretion, in a general sense, allows for a contextual assessment of hardship factors).”

He further stated: “In my experience, the holistic approach to 601 waiver adjudication was, in effect, a means of ratcheting the extreme hardship standard one way or another. As such, an individual deemed inadmissible on account of an overstay of one year and two months might enjoy a more relaxed standard than someone who overstayed five years. Similarly, an applicant who worked as a nurse might have an easier time of establishing extreme hardship than, say, a web designer (n.b. I said “applicant” and not “qualifying family member”). Considerations such as those suggested above are not really related to extreme hardship, but they are clearly relevant for assessing discretion.”

It seems that the prediction of more and more enforcement before the elections is true. Federal agents swept through a chicken processing plant today, detaining more than 300 suspected illegal immigrants, sending panicked workers running and screaming through the hallways. Worried relatives collected outside, fearful their loved ones would be deported.

It is a clear message sent by the government – if you are hiring illegals, we will raid you and make sure the rest of the world will know about it. Employers desperate for workers, will find it more and more difficult to hire legally. Those that will hire illegally will pay the price. It is time for our immigration system to change.

Read the full raid story here

Due to limited resources the government is using private contractors to secure and run immigration jails. The abuse and terrible conditions in these jails is beyond unreasonable. Many detainees from California are being sent to Arizona and Washington state jails for lack of detention space. Federal authorities are taking a second look at security guards at the Northwest Detention Center, a privately run immigration lockup in Tacoma, after finding that some were hired without preliminary background checks, The Associated Press has learned.

“Clearly this is a cause for concern,” said Virginia Kice, a spokeswoman for U.S. Immigration and Customs Enforcement.

Read more here

Recently, USCIS, released a memo on inadmissibility due to HIV infection in light of the President’s signing of H.R. 5501.

On July 30, 2008, the President signed into law the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act of 2008, Public Law No.1 10-293. Scction 305 of P.L. 110-293 amends sec. 212(a)(I)(A)(i) of the Act. so that HHS is no longer required to designate HIV infection as a “communicable disease” of public health significance. HHS has not amended 42 CFR 34.2(b) to remove HIV infection from the list of diseases that qualify as a communicable disease of public health significance. Until HHS does amend 42 CFR 34.2(b). someone with HIV infection, as diagnosed by the civil surgeon or panel physician, remains inadmissible under 212(a)( 1)(A)(i) of the Act.

Until further notice, aliens who are applying for an immigrant visa or adjustment of status and who are found to have an HIV infection are still required to file Form 1-60 I, Application for Waiver of Grounds of inadmissibility. Such waivers are extremely complicated, so make sure to consult an experienced attorney.

What is the latest scandal from Washington? Applicants seeking asylum in the United States have been wrongfully rejected by judges whom the administration chose using a conservative political test, according to an analysis of Justice Department data.

According to the New York Times, the investigation suggests that the effects of a patronage-style selection process for immigration judges — used for three years before it was abandoned as illegal, are still being felt by thousands of applicants whose cases are determined by the judges appointed in that period. Tougher times for applicants and for us lawyers trying to defend them. Read the story here…

We have recently taken on a deportation case that touched the hearts of all of us at the office. This Italian national that entered on a visa waiver, married a US citizen and fathered a child. Now he is detained by ICE, subject to expedited removal. Is he eligible for a bond and a hearing before a judge? No, not under our current immigration system. We are fighting to stay his deportation, and the entire Italian community is behind us. We are going to discuss the case on 1170AM KCBQ radio this evening, listen to the show tonight. We will keep you posted on the progress of this case.

Here is what Roberto Roucco, the Italian Vice Consul has to say about this matter in a letter to Congresswoman Susan Davis:

Dear Congresswoman Susan Davis:

Felony cultivation of marijuana in violation of Cal. Health & Safety Code §11358 is categorically an aggravated felony drug trafficking crime under INA §101(a)(43)(B).

In August 1999, Petitioner, a lawful permanent resident, was convicted of felony cultivation of marijuana under Cal. Health & Safety Code §11358. Petitioner was charged with deportability for having been convicted of a controlled substance. The immigration judge concluded that Petitioner’s conviction constituted an aggravated felony which rendered him ineligible for relief from removal. The BIA affirmed and Petitioner was deported to Mexico in August 2004. In November 2004, Petitioner was arrested in California and indicted under INA §276 as a previously deported alien found in the U.S. without the permission of the Attorney General or DHS.

Petitioner moved to dismiss the indictment, arguing that his prior deportation was invalid because the IJ failed to inform him that he was eligible for cancellation of removal.

Read the Decision here Download file

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