Category: evidence in immigration court

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The Board in a recent unpublished decision ruled that admission, without being informed of the possible consequences of such conduct and the true definition of the crime, did not trigger the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  Unfortunately, this is an unpublished decision by the Board, which under guidance, the Board does not have to follow.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. 

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Asylum Fraud In Chinatown

The New York Times published a story over the weekend discussing asylum fraud in Chinatown, NY. The article spoke about the widespread fraud in asylum applications, with attorneys, clergy, and paralegals helping applicants fabricate stories to shore up their asylum applications. The fraud has led to the indictment of several people, including eight attorneys. The indictments came as the result of a federal investigation, which recorded several individuals coaching their clients. The fraudulent applications have led to severe backlogs at the asylum office in New York, with more than 7000 applications files in 2012. 
What really surprised me that the majority of indicted attorneys still believe that they did not commit any illegal acts. They simply believed that they were helping these applicants stay in the United States. This is clearly a violation of the ABA Model Rule of Professional Conduct 1.2(d), which prohibits aiding a client in committing fraud.  
Throughout my years of practicing immigration law, I have been asked to commit fraud by potential new clients and clients I represented. Usually, these conversations are very brief and end after I ask that person to leave my office or when I file a motion to withdraw if I am representing the person in removal proceedings or before the Service. I know that people would want to blame all lawyers for this conduct. However, like in other any profession, there are attorneys who choose to sell their reputation for money. 
I am reminded of one of the last scenes of one of my favorite movies “A Few Good Men“, when one of the defendants asks the other “what did we do wrong?.” The answer was “we were supposed to help people who could not help themselves”. As attorneys, and particularly immigration attorneys, we are entrusted with helping the weak apply to stay in the Land of the Free. We have taken oaths that we would not take cases for personal gains. I believe that these attorneys should receive the strictest punishment available under the law.  I will keep you updated on this case.  

Eighth Circuit Rules that Evidence Obtained through a Warrantless ICE Arrest is not Suppressible

The Eighth Circuit ruled this week that evidence of alienage obtained through a warrantless  ICE search is not suppressible in removal proceedings. The petitioners were placed in removal proceedings and moved to suppress evidence of alienage under the Fourth Amendment‘s unreasonable search and seizure clause. They alleged in their affidavits that ICE agents barged into their home and arrested them. The immigration judge denied their motion to suppress since the information contained in their forms I-213 was reliable and the BIA upheld. 
In the petition for review, the petitioners argued that their rights under the Fourth and the Fifth Amendments were violated because the immigration judge did not grant their request for a suppression hearing and did not allow them to confront the ICE agents. In denying their petition, the Eighth Circuit reasoned that the exclusionary rule under the Fourth Amendment does not apply in civil deportation proceedings. The court added that the application of the rule in removal proceedings is reserved to “egregious violations”.  The court ruled that such violation did not exist since the agents went to the petitioners’ home after receiving a tip from an informant. Since the information was obtained from another source, the court upheld the immigration judge and the BIA. The court also denied the petitioners’ argument under the Fifth Amendment since it was a reiteration of their argument under the Fourth Amendment
I agree with the Eighth Circuit’s decision regarding the Fourth Amendment since the agents received evidence of alienage from another credible source. However, the denial of the petition on Fifth Amendment grounds is unfounded since they emanate from different amendments which protect different rights.  It is time to challenge the presumption that information in form I-213 is reliable especially when violation of protected rights occur.