Category: BIA

Is Immigration Reform Possible Even After Last Night’s Vote?

We all know that yesterday’s election results are very bad for immigration reform. After all, the last time we had a Democratic President with a Republican controlled Congress we witnesses the passage of IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act).

Despite last night’s vote, President Obama vowed today that he will be using his executive powers on immigration to grant some relief for certain immigrants. However, as I discussed in previous posts, these measures will fall short for several reasons, least of which, they will not be followed by the same people entrusted with enforcing these policies. Executive action will also not deal with the long wait times for both immigrant and work visas.

President Obama promised that the new executive action before the end of the year, unless he gets a bill that “he could sign”. I know that these measures will fall short, but they could allow millions of immigrants remain in the country where they have established family ties for decades.

I just hope that we do not get another IIRIRA.

Board Rules that Conditional Permanent Resident Admitted at POE Ineligible for 212(h) Waiver

The Board of Immigration Appeals ruled today that a conditional permanent resident admitted as such at a port of entry is ineligible for cancellation of removal since he was an aggravated felon. The Respondent in the case was a citizen of North Korea who was convicted of two crimes involving moral turpitude and an aggravated felony. He was admitted as a conditional resident in 1991 and was placed in removal proceedings in 2013. He conceded removability at his hearing but applied for adjustment of status along with a 212(h) waiver. The immigration judge ruled that he was ineligible for adjustment and the waiver since he was admitted to the United States and convicted of an aggravated felony. In upholding the immigration judge’s decision the Board ruled that conditional residents admitted at a port of entry is an alien admitted for permanent residence. The Board ruled that since the conviction was within 7 years of his admission, he was ineligible for cancellation of removal. Click here to read the decision.

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.

Board of Immigration Appeals Holds that Admission of Conviction Might not Trigger Stop-Time Rule

I have been an advocate of changing the Supreme Court’s decision that removal proceedings are civil and not criminal. The main reason being my argument is the fact that criminal law has infiltrated removal proceedings since the criminal grounds for removal have been expanded by Congress on several occasions.

One of the problems in removal proceedings is the definition of “conviction” for immigration law purposes. The common sense definition of the term does not apply in these “civil” proceedings, since a mere admission of enough facts makes you removable for immigration purposes. The consequences that come from such “conviction” are tremendous in the immigration context, including triggering the stop-time rule, a rule that would make a person ineligible for discretionary relief like Cancellation of Removal for non and lawful permanent resident.

The Board in a recent unpublished decision ruled that admission, without being informed of the possible consequences of such conduct and the true definition of the crime, did not trigger the stop-time rule under Matter of K,I&N. Dec. 59 (BIA 1957).  Unfortunately, this is an unpublished decision by the Board, which under guidance, the Board does not have to follow. However, I have used these decisions in court proceedings and they were very persuasive. 

I ask you to please comment and let me know what you think. Also, please feel free to add me or follow me on social networks. Thank you for following me.

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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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First Circuit Upholds Denial of Cancellation of Removal

In one of the most clear discussion of criteria to qualify for non-Lawful Permanent Resident Cancellation of Removal, the First Circuit upheld the Board’s decision denying such relief. To clarify, a non-LPR may qualify for Cancellation of Removal, among other things, if he has been in the United States for more than 10 and has a qualifying relative (child or spouse), who would suffer “extreme and unusual hardship” if the undocumented immigrant were to be removed from the United States. Lawful permanent residents and abused immigrants also qualify for this relief under separate statutes. Typically circuit courts lack jurisdiction to review discretionary decision of immigration judges, including decision denying Cancellation of Removal, unless the appeal includes violation of legal rights.  
In the above-mentioned case, the immigration judge denied relief since the only alleged hardship to which the couple’s US citizen son would suffer is the lack of educational opportunities in the country of removal. The Board upheld the immigration judge‘s denial and the immigrant appealed. The immigrant argued that the immigration judge and the BIA committed legal error by failing to cite Matter of Montreal, the seminal case discussion hardship in these cases. The court ruled that even though the judge did not cite the case, she used the same criteria to deny relief . The court ruled that it did not have to deal with the jurisdictional issue since the case failed on the merits.  
I get so many phone calls asking for the “ten years green card“. I tell them that there is no such thing and that the case is not a slam dunk. This case highlights the difficulty with showing relief in these cases and the importance of preparation by you and your attorney.
Please consult an attorney before you apply for any form of immigration benefit. Also, feel free to add me on twitter @ayakzan or on Google Plus +Ahmad Yakzan or comment if you have any questions. 

When local governments take matters into their own hands…. Get ready for Fremont round 2.

It seems like local government in the west still want to enforce immigration laws, even though the ink from the Arizona decision is not dry yet. You might have heard about a local city’s plan (Fremont, Nebraska) to enforce immigration laws by blocking their ability to rent housing within the city. A federal judge had allowed the old plan to go forward, until opponents could show that the plan is discriminatory. 
The new plan was passed yesterday by voters. The plan requires renters to get a $5 permit and attest that they are in legally in the United States.  The ACLU plans to file a new lawsuit to challenge the ordinance. The ACLU challenged a similar plan that was passed in 2010.  The Eighth Circuit upheld parts of the ordinance. Read the ACLU’s brief here.
I have long been against local enforcement of immigration laws. The Supreme Court agreed that local enforcement is preempted under federal law. Why do you think local governments keep passing these laws? I welsome your comments.
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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

Second Circuit Reverses BIA’s Decision not to Reopen Removal Proceedings

This week the Second Circuit ruled that the BIA‘s decision to deny a Respondent’s Motion to Reopen removal proceedings was erroneous. The immigration judge had denied the respondent’s application for Cancellation of Removal since he allegedly did not show that he has met the ten years of continuous residence and that his removal would lead to hardship to his qualifying relatives. He appealed the decision and the BIA upheld the immigration judge. Hernandez’s Motion to Reopen his removal proceedings was also denied by the Board
The Second Circuit declined to consider the discretionary decision to deny his application for Cancellation of Removal since review is barred by statute. In reversing the decision regarding the Motion to Reopen, the court reasoned that Hernandez has shown through circumstantial evidence that he was present ten years before his hearing in 2007 and was eligible for Cancellation of Removal.
The case is Hernandez v. Holder and you can read it at this link. Happy Thanksgiving.