Category: deportability

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.

[contact-form-7 404 "Not Found"]

Bieber Fever: Could Egg Throwing Land the Bieb in Immigration Hot Waters?

Last week we all got another reminder why immigrants should behave themselves while in the US. I know you might have heard about it: Justin Bieber caused more than $200,000 in damage to a neighbor’s home and according to news reports was caught racing his car and high on who knows what. I want to make it very clear that a person is always presumed innocent until proven guilty. However, one dimension of the story is shedding some light on immigration reform: The Bieb‘s immigration status
A recent CNN story tackled the question of whether Bieber could be deported. The story discussed the question exhaustively. However, when it came to the question of double-standard, the story compared his case with the stories of thousands of illegal immigrants who get into removal proceedings for lesser offenses. The article credited the difference to the fact that these immigrants have no legal status while Bieber does. This alleged difference is simply untrue. 
I once represented a client who was a legal permanent resident and charged with burglary even though he did not enter the victim’s home. The problem was that Florida has an expanded definition of burglary which criminalizes entering someone’s lawn without permission (if you had the intent to commit a felony within). Adding to it was the fact that the court appointed “translator” told him to plead guilty, on the record. The man never got bail, was ordered removed (unjustly) and he did not see the light of day until the State reduced his charge after the judge granted a post-conviction motion. This is after I fought very hard trying to convince the immigration judge (based on long established law) that Florida’s statute was too broad. 
I mentioned this story because there is a double standard in our system that favors the rich, and it is not only in immigration law. I know that if it were one of my clients, they would not get this treatment. I think that this young man needs serious intervention. 
Please let me know what you think about this story or the blog. Thank you. 

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.
   

Suppressing Evidence in Removal Proceedings

One of the biggest problems in removal proceedings is the limited circumstances under which a respondent could challenge the government’s evidence. Usually the Service tries to introduce unreliable evidence to support the respondent’s deportability. I have had several cases when the government tried t o introduce hearsay statements from unnamed sources. The problem is that the Supreme Court has ruled that removal proceedings are civil in nature, decreasing the protections aliens receive. As a result the respondent would be unable to the Fourth Amendment to suppress evidence. A respondent could use the Fifth Amendment to suppress evidence if the evidence is unreliable and its introduction would be fundamentally unfair.  I have used the Fifth Amendment Due Process Clause to suppress evidence in removal proceedings before.
However, several circuits have applied the Fourth Amendment to suppress or even terminate removal proceedings. These cases are limited to egregious cases where the Service violates a respondent’s protected rights. The BIA has recently terminated proceedings where the Service committed these violations.
My dream is to argue a case where I would challenge the Supreme Court’s determination that removal proceedings are civil. I believe that this classification is erroneous. Removal proceedings have become more sophisticated and more aliens are being removed for criminal violations. These respondents deserve to receive Due Process if they are being banished from the country.