Category: evidence

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 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.  

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.  

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.