Category: individual hearing immigration

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. 

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

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.