Category: Welcome

Litigating Petitions that might be Barred under the Adam Walsh Act

The Adam Walsh Act Child Protection and Safety Act aims to protect minors from sexual exploitation. Section 402  of the Act meets that goal by preventing a United States citizen or a lawful permanent resident from petitioning for an immigration visa if he has been convicted of a sex crime relating to a minor. The Act applies to petitions filed on or after July 27, 2006, when it was passed by Congress. There is an exception under the law if the sexual assault was consensual and with an adult.
The law gives DHS the discretion to waive the criminal bar under the Act, if the petitioner proves, beyond a reasonable doubt, that he poses no risk to the beneficiary.
There are several problems with the Act. To be clear, I do not condone sexual assault on anyone. However, I have represented many US citizens who have truly reformed. They, themselves, had nothing to do with their past, and were subjected to abuse at a young age. They have reformed and they are leading better lives when they come see me. The law precludes these citizens from applying for their spouses, a right that they should have. The law also limits the petitioner’s right to challenge the Service’s discretion and elevates the burden of proof to beyond a reasonable doubt, the level of proof required in criminal cases. AILA has recently filed an amicus brief  in a challenge to the law. I look forward to the decision on the case.

Fifth Circuit Rules that Expedited Removal Applies to All Aliens

In a decision issued last week, the Fifth Circuit Court of Appeals ruled that expedited removal under INA 238 applies to all aliens. INA 238 allows the expedited removal of any alien who is confined in a correctional institution and convicted of an aggravated felony. Under the statute the Department of Homeland Security must issue a Notice of Intent to proceed through expedited proceedings. The alien may apply for Withholding of Removal under the Torture Convention if he has a fear of returning to his country.
Valdiviez-Hernandez was under investigation for allegedly using someone else’s identity and social security number. ICE found a firearm in his house for which he was convicted as an illegal alien in possession of a firearm. The Service initiated expedited removal proceedings and he refused to sign the Notice. He also failed to respond to the allegations. The immigration judge denied his request for Withholding of Removal and he appealed. He argued that he was not subject to expedited removal since he was not admitted to the United States since he entered the United States illegally. The court rejected this argument and followed other circuits ruling that nothing in the statute limits these proceedings to lawfully admitted aliens. The court thus denied the petition for review and upheld the removal order. 
The argument that Valdiviez-Hernandez was not subject to expedited removal because he was not admitted was doomed from the beginning since the statute clearly expands these proceedings to legal and illegal aliens. The better argument would have been a challenge to the procedure on Due Process grounds. I will follow this case to see if Valdiviez-Hernandez files a petition for rehearing en banc

First Circuit Invalidates Post-Departure Bar

The First Circuit ruled last week that the post-departure rule is unconstitutional. The Post-departure bars applies to Motions to Reopen filed after the alien has been deported. Under the pertinent regulations, the motion has to be filed within 90 days of an administrative decision. The BIA has limited the alien’s ability to file such motions if he is outside of the United States under 8 CFR 1003.2(d), or what is known as the post-departure bar.  
In Santana v. Holder an alien was convicted of possession of a controlled substance. He was placed in removal proceedings as an aggravated felon. He moved to reopen his criminal proceedings. The immigration judge ordered his removal after DHS denied his request for a continuance. He moved to reopen his removal proceedings after he was removed and the immigration judge denied the motion. The BIA affirmed.
The First Circuit, in ruling that the BIA abused its discretion reasoned that the rule conflicted with statute. The court reasoned that the statute did not have a geographic requirement to file the motion. The court thus reversed the BIA’s decision  an remanded the case.
The decision raises the number of circuit ruling the same to seven, including the Eleventh Circuit.  

DOS and DHS Change Their Rules Regarding Misrepresentation

In a letter sent to Majority Leader Harry Reid, DHS announced a new procedure regarding the application of section 212 (a)(6)(C)(ii) of the Act. The section makes an  applicant who makes a false claim to citizenship inadmissible into the United States. 
The new policy makes a person inadmissible only when the claim is knowingly made to the immigration officers. A person raising the claim that his misrepresentation was in error bears the burden to prove such assertion. The new policy also establishes a new affirmative defense for people who were under 18 when the claim was made. This defense has two components: 1) that the person was under 18 when the claim was made and 2) that the person could not have appreciated the consequences of such claims. 
I have represented several clients in immigration court who had been charged with misrepresentation under the Act. Several of them did not have the intent to misrepresent a material fact to the officer. I welcome the change and I look forward to pleading the new policy in immigration court. 

BIA Rules that False Claims to Citizenship at Entry Makes Alien Inadmissible

In a decision issued last week, the Board of Immigration Appeals ruled that an alien who makes a false claim to citizenship at an entry-point has not been admitted under the law. In Matter of Pinzon, a citizen of Venezuela obtained a US passport in the 1980s, using a fake birth certificate. She was convicted in 2002 under 18 U.S.C.§ 1001(a)(2) (2000) for making a false statement. She was placed in removal proceedings, where she argued that she was inadmissible and applied for cancellation of removal. The immigration judge denied her application for cancellation of removal and ordered her removal but  granted her voluntary departure. 
I upholding the immigration judge’s decision, the BIA ruled that it has long held that a person who makes a false claim to citizenship at a port of entry has not been admitted under the Act. The Board reasoned that since the scrutiny is different when it comes to a non-US citizen seeking admission, an alien who gains admission under a false claim to citizenship cannot be deemed to have been admitted under the Act. The Board also ruled that a conviction under 18 U.S.C.§ 1001(a)(2) (2000) is a crime involving moral turpitude since the alien had to make a false statement, which usually involves moral turpitude. 
This decision is erroneous since  the crux of “admission” under the Act is whether the alien was in fact inspected by an immigration officer. It was unclear whether Pinzon had undergone such inspection by the Service. We will see if there will be a petition for review in the this case. 
For a definition of “admission” under the Act visit: http://www.law.cornell.edu/uscode/text/8/1101