Category: admission

the president should not consider the ban decision a win

Beware Mr. President: The Supreme Court Did Not Give You a Win!!

I read the Supreme Court’s decision on the travel ban today, and all I have to say is that it is not a win for the President. I will discuss below.

What did the Court Say?

The decision to grant certiorari on the case is not a final decision, it is a decision limiting the application of the injunctions currently in place against the President’s executive order. It ruled on two issues 1) whether the states and individuals had the standing to sue to stop the ban and 2)  whether the President can limit refugee admission based on national security grounds.

What will the Court Do?

The Court ruled that the injunction should stay in place for individuals, similarly situated to the Plaintiffs, who had a bona fide relationship with an individual or entity in the United States. The Court lifted the injunction when it came to individuals who do not have such connections. This reasoning also applied to refugees who may claim standing if they have such relationships. This reasoning is sure to lead to more litigation regarding the ban.

What is the Strategy Against the Ban?

I do not believe that the President should claim victory in this case. The simple reason is that this decision, in essence, gave potential standing to refugees, and gave organizations who help refugees standing to sue to further enjoin the ban.

The decision allowed refugees to claim standing if they have connections to an organization in the United States. So for example, a refugee who has gone through the background checks and has been approved for relocation to the United States might, potentially, have the standing to sue if they were denied admission to the United States. This also expands standing to the organizations themselves, who may, in essence, claim the necessary standing based on potential economic injury from the ban. Let us remember that these organizations receive government payments for the relocation of these refugees.

The decision also allows standing to family members to sue if there is a discriminatory reason for the denial of admission for their family members. Basically, the decision will expand standing to affected individuals as applied to their family members. Thus far, the ban has been challenged on facial grounds. In other words, the ban is being challenged because it is discriminatory on facial grounds, i.e. as it is read. if we move forward, the ban will also be challenged on “as applied” grounds i.e. as applied to these individuals with family members in the United States. These two grounds will surely lead to more challenges to the ban in court.

What are the possible Outcomes for the Case?

There are three possible outcomes to this case, and I believe that the Court will punt on the issue to allow a decision on the merits in the lower courts.

The first outcome might be for the Court to decide that the case is moot. The executive order itself will sunset within 90 days after the government conducts a study on the “extreme vetting” procedures for which the President advocated during the campaign. So when this case comes up for a decision before the Court, it might already be moot. However, one possible strategy against this issue is the fact that the issue might be capable of repeated in the future and evading review. This is the argument used in Roe v. Wade for example.

The Court may also remand the case to the lower court for more fact-finding and for a decision on the merits. The main issue here will be whether there are enough facts for the Court to make a decision. The main issue here is the discriminatory intent behind the executive order itself. The Court may remand the case to the lower court who are more equipped for fact-finding than the Supreme Court. The Court may keep the injunction in place until the decisions on the merits are issued.

Lastly, the Court may either uphold the injunction or remove it, allowing the ban to go into effect. This, however, will be unlikely, since the Court will essentially be giving a partial win on the merits to the Administration. I must say that the Court’s prior decisions give standing to states to challenge the President’s authority to enter such executive orders when they harm their interest.

I disagree with the President that today’s decision is an outright win for him. Stay tuned for future posts on this issue. Call us at 1(888)963-7326 to schedule a consultation with us.

BIA Issues Three Decisions Dealing with the Adam Walsh Act

The Board of Immigration Appeals issued three decision dealing with issues related to the Adam Walsh Act. The Adam Walsh Act prevents USCIS from approving any visa petition filed by a United States citizen if the Petitioner was convicted of a charge relating to the abuse of a minor. The Service could approve the petition if the Petitioner proves that he poses no risk to the beneficiary. The standard used for this discretionary decision is very unclear and convoluted. The decisions clarified nothing.

Unlike other immigration laws, the Adam Walsh Act does not seek to prevent an immigrant from receiving an immigration benefit but prevents a United States citizen from ever moving past a mistake he has committed. Despite the numerous arguments made by advocates to limit the law’s interpretation, the Board decided that the law was retroactive, meaning it applies to cases with convictions before its enactment. The Board also refused to delineate the standard of proof the Petitioner must meet to show that he poses “no risk” to the beneficiary, and in the third case, the Board ruled the the Petitioner bore the burden of proof in showing that his conviction is not a “specified offense against a minor”. The latter allowed the Service to use a case-by-case analysis, and permitted the Service to abdicate the long-standing categorical approach in analyzing such offenses.

As I argued before, there are several constitutional problems with the law. The Board can not rule on constitutional challenges to the laws which it applies. The task of determining the constitutionality of these laws falls on circuit and district courts around the nation. I look forward to the constitutional challenges that advocates will bring forward against this injurious law.

To read the three decision visit here.

Know Yourself Before Applying for An Immigration Benefit

I will  be discussing the second case that I discussed in my last post. This case involved a Respondent with so many identities, that the court could not find out his true identity. In Singh v. Holder, a Respondent appealed the Board of Immigration Appeals‘ order affirming the immigration judge’s decision denying his application for adjustment of status. He claimed that his due process rights were violated and that the Board erred in holding that he could not prove that he was admitted into the United States.

Singh claimed that his name in Tarsem Singh and was born on June 13, 1982, and that he entered the United States in 1995. He was also known as Simranjit Singh. He was smuggled into the United States as the daughter of a family friend. He was apprehended by ICE in 1997 and was served with for I-213. The document showed that he was born in 1978, making him 19 years old at the time. He was removed in absentia after he failed to appear for his removal hearing.  His mother procured a new birth certificate for him, with a new name and a new birthday, making him 15 years old. He filed a motion to reopen the case arguing that he did not receive proper notice of the old proceeding, which was granted. He then moved to terminate the proceedings arguing that he was a minor at the time and termination was warranted under 8 C.F.R. § 236.3. The immigration judge ordered his removal reasoning that he was nineteen when served with the first Notice to Appear. He also ruled that he was not inspected by an immigration officer, since his story could not be credited. The Board upheld the immigration judge’s decision.

The First Circuit rejected Singh’s argument that his due process rights were violated since he was given enough notice to speak to his father about his arrest and because the curt could not prove his true age. The court also ruled that Singh could not show that he was inspected since he could not provide proof of such inspection. Thus, the court upheld the Board‘s decision.

I think that this case should not have been appealed. I believe that as practitioners we should be cautious of what we appeal, due to the concern that we establish bad law. I welcome your comments and feedback.

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Second Circuit Remands Asylum Case to the BIA to Issue Decision Regarding Duress

Last month, the Second Circuit Court of Appeals remanded an asylum case to the Board of Immigration Appeals for the latter to consider whether duress should be considered when it comes to the “material support” bar to admission. The “material support bar” bars any person who offered any material support to a terrorist group from being admitted to the United States. Ay is a Kurdish national and a citizen of Turkey. He was accused of providing support to individuals whom he thought were terrorists. He maintained however that he was under duress. The immigration judge ordered his removal after ruling that he was ineligible for asylum under the “material support bar“. The BIA affirmed but added that he could be eligible for a waiver from the Department of Homeland Security. The Second Circuit reasoned the statutory provision might include an exception for duress and the Board’s decision did not have the proper analysis. The Court remanded the case to the Board to issue a precedent decision dealing with the question. 
The main reason for the court’s decision was the fact that the statutory language is ambiguous. I look forward to the Board’s decision. 
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What should Immigration Reform Look like? Part one.

The Washington Post published an opinion piece entitled : “Mr. Bohner’s weak immigration excuses”. The article discussed the “smoke screens” that get used in the immigration debate. The article’s main point was the fact that Republicans use the terms “border security” to scare people about immigration reform at a time when illegal immigration has dropped since 2008. As I discussed before, the emphasis on border security in any immigration reform is misplaced. Below I will discuss some things that, in my opinion, should be in immigration reform. 
High Skilled Immigration: many practitioners believe that the current system is restricting the influx of highly skilled and educated immigration. The current system restricts the number of visas that could be granted to these immigrants, who wish to proper in the United States. I am a strong advocate of the points system that several developed countries like Canada and the United Kingdom use. This system will give more points to intending immigrants depending on their education, experience and skills. This system still restricts the amount of immigrants, which appeases politicians that want to guard American jobs, but also attracts the needed skills that we need. 
Undocumented Immigration (Illegal Immigration): Most politicians should respectfully realize that the magic bullet to end illegal immigration does not exist. There are several causes for illegal immigration, which include economic, political, and problems with our existing system. The economic reasons are paramount here but problems with our existing system, in my opinion, dwarf the economic causes. I have represented numerous people who simply stayed in the United States because all of their relatives live here. Fixing the problems with our legal immigration system will lead to a decrease in undocumented immigration. One of the ways to fix such system, is to eliminate visa limits for family sponsored immigration. This has been addressed in the Senate’s immigration bill. We should now wait and see if the plan will pass the house. 
I will post another entry this week that will discuss other aspects of immigration reform. 
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Ninth Circuit Rules that Applicant Waived Her Application By not Adhering to Deadlines

In an decision issued earlier this month, the Ninth Circuit ruled that an applicant waived her applications for a waiver of inadmissibility and Withholding of Removal by failing to timely apply. The government placed Taggar in  removal proceedings for being inadmissible under 8 U.S.C. § 1227(a)(1)(A) The government added additional charges under 8 U.S.C. § 1227(a)(1)(G)(ii) and 8 U.S.C. § 1227(a)(3)(B)(iii). She applied for Cancellation of Removal and Withholding of Removal. She failed to apply timely as instructed by the immigration judge and the government moved to pretermit the case for her late filing and the judge ordered her removal. She appealed to the Board of Immigration Appeals, which upheld the immigration judge‘s decision. 
In upholding the decisions, the Ninth Circuit ruled that the immigration judge did not abuse his discretion since he is entitled to  set deadlines under 8 C.F.R. § 1003.31. The court ruled that since she did not file within the deadline, she waived her applications and her removal order was proper.
This is a very good decision that should be applied in our circuit. I have had several cases where the government did not meet the immigration judge‘s deadlines and was still able to admit evidence and arguments. I look forward to arguing this case before our immigration judges

Eighth Circuit Upholds Denial of Adjustment of Status

Last week the Eighth Circuit upheld the Board of Immigration Appeals’ decision upholding the denial of an applicant’s adjustment of status application. Luis Garcia-Gonzalez was a native of Mexico and a lawful permanent resident. He was placed in removal proceedings for his 2005 conviction under 18 U.S.C. § 1962(d)  for racketeering. He was placed in removal proceedings for committing an aggravated felony. The immigration judge ordered his removal after sustaining the charge and denied his application for adjustment of status since he was inadmissible and the BIA upheld. 
In his petition for review he argued that the BIA and the immigration judge erred in ruling that he was ineligible for adjustment.  The court ruled that since Garcia-Gonzalez admitted to the essential facts of conspiracy, he was inadmissible and ineligible for adjustment of status

BIA Rules that Unlawful possession of Ammunition by a Felon is Aggravated felony

Last week, the Board of Immigration Appeals (BIA) ruled that the unlawful possession of ammunition by a felon under 8 USC 922(g) is an aggravated felony under the Act. In Matter of Oppedisano,  26 I&N Dec. 202 (BIA 2013), a native of Italy was admitted to the US as a permanent resident on September 9, 1973. Id. He was convicted of unlawful possession of ammunition by a convicted felon under 8 USC 922(g) in 2012 and sentenced to probation for 5 years and fined $15000. Id. at 203. He was placed in removal proceedings and charged as an aggravated felon under 101(a)(43)(E)(ii) and was ordered deported by the immigration judge.
Upon appeal, Oppedisano argued that his conviction was not an offense under 101(a)(43)(E)(ii) since it did not relate to a “firearms offense” since the parenthetical in the section created a limiting clause. The Board reasoned that the offense related to a firearms offense since the quotations did not limit the offenses for which an alien could be deported.  Id. at 204. The Board added that Congressional, ascertained from the language of the statute, was not to limit the offenses under the section since it did not use restrictive language in the law. Id. The Board upheld the removal order for these reasons.
   

Fifth Circuit Rules that Expedited Removal Applies to All Aliens

In a decision issued last week, the Fifth Circuit Court of Appeals ruled that expedited removal under INA 238 applies to all aliens. INA 238 allows the expedited removal of any alien who is confined in a correctional institution and convicted of an aggravated felony. Under the statute the Department of Homeland Security must issue a Notice of Intent to proceed through expedited proceedings. The alien may apply for Withholding of Removal under the Torture Convention if he has a fear of returning to his country.
Valdiviez-Hernandez was under investigation for allegedly using someone else’s identity and social security number. ICE found a firearm in his house for which he was convicted as an illegal alien in possession of a firearm. The Service initiated expedited removal proceedings and he refused to sign the Notice. He also failed to respond to the allegations. The immigration judge denied his request for Withholding of Removal and he appealed. He argued that he was not subject to expedited removal since he was not admitted to the United States since he entered the United States illegally. The court rejected this argument and followed other circuits ruling that nothing in the statute limits these proceedings to lawfully admitted aliens. The court thus denied the petition for review and upheld the removal order. 
The argument that Valdiviez-Hernandez was not subject to expedited removal because he was not admitted was doomed from the beginning since the statute clearly expands these proceedings to legal and illegal aliens. The better argument would have been a challenge to the procedure on Due Process grounds. I will follow this case to see if Valdiviez-Hernandez files a petition for rehearing en banc